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Legislation Cited: Supreme Court Act 1970 (NSW), s 69
Workers Compensation Act 1987 (NSW), ss 65A, 66, 151H
Workplace Injury Management and Workers Compensation Act 1998 (NSW), ss 327, 328

Cases Cited: Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456
Day v SAS Trustee Corporation [2021] NSWCA 71
Della Bruna v Health Care Complaints Commission [2025] NSWCA 105
Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26
Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32
Georges v Musico [2025] NSWSC 1085
Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633
Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929
Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12
Mifsud v Campbell (1991) 21 NSWLR 725
Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231
New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792
Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200
Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380
Tagg v Racing New South Wales [2023] NSWSC 1547
Tsakirios v State of New South Wales [2026] NSWCA 132
Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43
Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1

Texts Cited: State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th ed, reissued 1 March 2021)

Category: Principal judgment

Parties: Allison Cox (Plaintiff)
Secretary, Department of Education (First Defendant)
Member Jane Peacock, Dr Douglas Andrews and Dr Michael Hong as an Appeal Panel constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (Second Defendant) (submitting appearance)
President of the Personal Injury Commission of New South Wales (Third Defendant) (submitting appearance)

Representation: Counsel:
J Krieg (Plaintiff)
LD Robison (First Defendant)
Solicitors:
Marsdens Law Group (Plaintiff)
Hall & Wilcox (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2026/17691

Publication restriction: Nil

JUDGMENT

1. PRICE AJA: The plaintiff, Allison Cox, was employed by the first defendant, the Secretary, Department of Education, as a student learning officer at a High School since around 2017. During the course of her employment, the plaintiff sustained a psychological injury following bullying and harassment in the workplace by her direct supervisor. It was common ground that the psychological injury is deemed to have occurred on 15 June 2023.

2. These proceedings arise from a decision of the second defendant, the Appeal Panel of the Personal Injury Commission of New South Wales (“Appeal Panel”) dated 21 October 2025, constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“the WIM Act”). The Appeal Panel confirmed the Medical Assessment Certificate dated 11 June 2025 (“the MAC”) issued by Medical Assessor Dr Patrick Morris (“the MA”), which assessed the plaintiff’s Whole Person Impairment (“WPI”) resulting from her psychological injury to be 9%. As a consequence of the plaintiff’s assessment of 9% WPI, given her injury is psychological, she is not entitled to compensation resulting from a primary psychological injury unless her WPI is assessed at least 15%, nor can “modified common law damages” be awarded: ss 65A(3), 151H(1) of the Workers Compensation Act 1987 (NSW) (“the WC A**ct”).

3. Subsequently, the third defendant, the President of the Personal Injury Commission of New South Wales (“the PIC”), issued a Certificate of Determination dated 25 November 2025, certifying that the plaintiff’s WPI of 9% resulting from the workplace injury did not reach the threshold for lump sum compensation.

4. By amended summons filed with leave on 9 July 2026, the plaintiff challenges the Appeal Panel’s decision by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW). The plaintiff seeks relevantly the following orders:

“1. A declaration pursuant to s.69 of the [Supreme Court Act] that the decision of [the Appeal Panel] dated 21 October 2025 is void and of no effect.

2. The decision issued by [the Appeal Panel] be set aside.

3. Remit the matter to [the PIC] for referral to a differently constituted [Appeal Panel] to determine [the plaintiff’s] appeal according to law.

4. The decision of [the PIC] dated 25 November 2025 be set aside.

…”

5. The plaintiff contends that the Appeal Panel’s decision was affected by material errors and in the amended summons identifies the following four grounds of review:

“1. [The Appeal Panel] fell into jurisdictional error by failing to consider Ground 1 of [the plaintiff’s] appeal.

2. [The Appeal Panel] erred in law and fell into jurisdictional error by failing to consider relevant evidence in relation to its determination of [the plaintiff’s] [a]ppeal.

3. [The Appeal Panel] erred in law by failing to give lawful reasons.

4. [The Appeal Panel] erred in law and/or failed to constructively exercise its jurisdiction by misapplying the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment (4th edition) such that it failed to correct [the MA’s] error in wrongly assigning conduct to the PIRS scale of ‘social and recreational activities’.”

6. The plaintiff asserts that the Appeal Panel’s decision involved a jurisdictional error by reason of a failure to have regard to the limitations in the plaintiff’s ability to holiday with her family and attend the gym and an error of law on the face of the record by failing to consider that relevant evidence, and therefore, the decision should be set aside and remitted to a differently constituted Appeal Panel for determination according to law.

7. The first defendant resists the relief sought in the plaintiff’s amended summons. The PIC and the Appeal Panel have filed submitting appearances. The first defendant is the only active participant in these proceedings. In these reasons, I will refer to the first defendant hereafter as “the defendant”.

8. The parties have agreed that each party should bear its own costs.

9. It is not necessary to reproduce the legislative framework and the tables containing the applicable classes and criteria for assessing impairment under the State Insurance Regulatory Authority, NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Fourth Edition (“the SIRA Guidelines”), but it is apposite to note that they have been discussed in numerous decisions of the Court: see, eg, Tagg v Racing New South Wales [2023] NSWSC 1547 at [65] (Schmidt AJ); Quintiliani-Johns v Secretary, Department of Education [2024] NSWSC 1200 at [6]-[16] (Mitchelmore J) (“Quintiliani-Johns”); Georges v Musico [2025] NSWSC 1085 at [33]-[39] (Griffiths AJ) (“Georges”).

10. However, of relevance in these proceedings is the Psychiatric Impairment Rating Scale (“PIRS”) which provides at cl 11.11 that the “[b]ehavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment”. Of particular relevance is PIRS scale 2, namely “social and recreational activities”, set out in Table 11.2, which contains the following class descriptors for Classes 2 and 3:

| Class 2 | Mild impairment: occasionally goes out to such events eg without needing a support person, but does not become actively involved (eg dancing, cheering favourite team). | | Class 3 | Moderate impairment: rarely goes out to such events, and mostly when prompted by family or close friend. Will not go out without a support person. Not actively involved, remains quiet and withdrawn. |

11. PIRS scale 3, namely “travel”, set out in Table 11.3, which is relevant to Ground 4, contains the following class descriptors for Classes 2 and 3:

| Class 2 | Mild impairment: can travel without support person, but only in a familiar area such as local shops, visiting a neighbour. | | Class 3 | Moderate impairment: cannot travel away from own residence without support person. Problems may be due to excessive anxiety or cognitive impairment. |

12. Clause 11.12 of the SIRA Guidelines is as follows:

“Impairment in each area is rated using class descriptors. Classes range from 1 to 5, in accordance with severity. The standard form must be used when scoring the PIRS. The examples of activities are examples only. The assessing psychiatrist should take account of the person’s cultural background. Consider activities that are usual for the person’s age, sex and cultural norms.”

Factual background prior to the plaintiff’s application to appeal the decision of the MA

13. The plaintiff’s employment with the defendant commenced sometime in 2017. During the course of that employment, the plaintiff sustained a psychological injury on 15 June 2023, by reason of bullying and harassment from her direct supervisor. Following the cessation of her employment, the plaintiff made a claim for compensation for a workplace injury under the WC Act. Liability for that injury was accepted by Allianz Australia Insurance Ltd, as agent of the insurer for the defendant. However, Allianz by letter dated 11 December 2024, denied liability for the plaintiff’s claim for lump sum compensation on the basis that her WPI resulting from the injury did not meet or exceed the threshold of at least 15% WPI.

14. Following the commencement of proceedings by the plaintiff seeking lump sum compensation pursuant to s 66 of the WC Act, an assessment of the plaintiff’s WPI was conducted by the MA, Dr Morris. The MAC was issued by the MA on 11 June 2025, in which the plaintiff’s WPI was assessed at 9%. On 4 June 2025, the MA examined the plaintiff and the material before him included the plaintiff’s statement dated 4 April 2025 and the medical reports of two consultant psychiatrists, a report by Associate Professor Michael Robertson dated 9 July 2024, and a report by Dr Peter Davies dated 11 October 2024, which were relied on by the plaintiff and the defendant respectively.

15. The plaintiff’s statement included that she had isolated herself from everyone, that she had become a shell of the person that she used to be and now struggled to leave the house due to her crippling anxiety. She had stopped going to the gym, she was no longer baking as much as she used to and had lost motivation to do all the things she used to love. The plaintiff stated at pars 95-98:

“95. My husband and I have owned a family holiday home in Shoalhaven Heads for around thirty-four years. My family and I drove to our holiday house every month or so throughout the year, and every few weeks in summer. It was a great bonding opportunity for the family, and we all loved spending time together away. We would relax by the beach at Shoalhaven Heads, go fishing, and water-ski. We would also occasionally invite our family friends to the house and make a weekend-away of it.

96. As I said above, I now struggle to leave the house due to my psychological symptoms. If I do leave the house, the furthest, I will drive without my husband is Camden, as I do not like being too far from home.

97. In January 2025, I tried to visit the family beach house, but around 30 minutes into the drive, I had a panic attack and had to pull over, as I was crying and in hysterics. It was the furthest that I had been from home since the incident, and I was very overwhelmed. I tried to continue the drive which was very difficult. On the return home journey my husband drove, and my son drove the other car.

98. I have only been to the holiday home around six times in total since the incident, and they have all been day trips as I am too anxious to stay there overnight. This is very upsetting, because my family and I loved holidaying together and water-skiing as a family, but we have been unable to do this for some time now due to my condition. My husband usually goes with the children, and I stay home.”

16. Under the heading “Social activities/ADL”, the MA stated at p 3:

“[The plaintiff] said she occasionally goes with her husband to see a young friend play football for an NRL team. She said that she has been a member of the Rotary Club at Camden for the past 12-18 months. She said she drives herself there, which is a 30 minute drive from her home, and attends the weekly meetings there most weeks. She said that she gets involved in activities when she is at the Rotary Club meetings and interacts with other members when there.”

17. In the MA’s opinion, the plaintiff has “the psychiatric condition of Major Depressive Disorder with anxious distress according to [DSM-5] diagnostic criteria”. The MA referred to the report of Associate Professor Robertson dated 9 July 2024, who assessed the plaintiff as having a WPI of 15%. The MA stated at p 5:

“A/Prof Robertson gave [the plaintiff] a [WPI] rating of 15%. Where he differed from me were in his rating for [s]ocial and recreational activities where he rated [the plaintiff] a Class 3. I have rated [the plaintiff] a Class 2 as she said that most weeks she attends a Rotary meeting in Camden by herself which is a 30-minute drive from her home. She drives herself to this meeting and said that she interacts with other members when at the meeting. I therefore believe this best fits a Class 2 rating for [s]ocial and recreational activities.”

18. The MA also referred to his rating of Class 5 for “employability”, whereas Associate Professor Robertson had assessed the plaintiff as Class 3. The MA further referred to Dr Davies’ assessment of the plaintiff’s WPI of 8% and to his rating for “concentration, persistence and pace” as Class 2, whereas the MA rated the plaintiff as Class 3 for that PIRS scale. The MA provided a table at p 8 which set out the PIRS scales in accordance with the SIRA Guidelines. Those PIRS scales included the MA’s evaluation of functional impairment, the assessed Class and the reasons for the selection accompanying each decision. Based on his assessment, the MA determined the aggregate class score of 16 and the median class score of 2. The MA then converted the aggregate score to a percentage of WPI by applying the Conversion Table contained in Table 11.7 of the SIRA Guidelines, which once converted equated to a WPI of 9%. The MA did not make a deduction for any pre-existing impairment nor was any adjustment made for the effects of treatment.

19. In respect of the PIRS scale of social and recreational activities, which the MA had assessed as Class 2, the MA stated the following reasons for that decision at p 8:

“Mild impairment. [The plaintiff] is able to drive by herself to attend Rotary Club meetings in Camden most weeks. She said that she interacts with other members of the Rotary Club and gets involved in activities when she is there. She occasionally goes with her husband to watch a young friend play rugby league. She has lost interest in going shopping with friends, going to the theatre or having dinner with friends.”

20. In relation to the PIRS scale of travel, which the MA had assessed as Class 2, the MA stated the following reasons for that decision:

“Mild impairment. [The plaintiff] is able to drive short distances by herself such as to the local shops and to see her GP and also the 30 minute drive to Camden for weekly Rotary Club meetings. For longer distances or to new destinations, she relies on her husband to drive because of her anxiety.”

The plaintiff’s submissions to the Appeal Panel

21. The plaintiff submitted that the MA had made three demonstrable errors pursuant to s 327(3)(d) of the WIM Act, arising from the MAC issued, in which he assessed the plaintiff’s WPI, all of which related to the MA’s assessment of Class 2 for the PIRS scale of social and recreational activities. One of those demonstrable errors (“Ground 2”), was submitted to be misconstruing the plaintiff’s evidence with regard to her attendance at the Rotary Club meetings. As that asserted error was no longer pressed in the hearing before me, it will not be further mentioned: Tcpt, 9 July 2026, p 10(25-50).

22. The two asserted demonstrable errors that remain relevant are the following:

23. first, the MA made a demonstrable error by failing to have regard to limitations in the plaintiff’s ability to holiday with her family and attend the gym, which was relevant to his assessment of functioning under the PIRS scale of social and recreational activities (“Ground 1”); and

24. second, the MA made a demonstrable error in considering the plaintiff’s ability to travel as part of his assessment of her functioning under social and recreational activities (“Ground 3”).

25. As to Ground 1, the plaintiff made the following submissions to the Appeal Panel at pars 15-20:

“15. Prior to her injury, [the plaintiff] would holiday with her family at their holiday home in Shoalhaven Heads, NSW. They would do this approximately once per month and for a few weeks in the summertime. This would involve activities such as fishing and waterskiing, and [the plaintiff] would often invite family friends for weekends away at the holiday home. [The plaintiff] also attended the gym three times per week prior to her injury.

16. [The plaintiff’s] unchallenged evidence is that she has only attended the holiday home approximately six times since onset of her psychological injury (June 2023) and on those occasions, she has been limited to day trips due to anxiety. Now, it is usually the case that [the plaintiff’s] husband will attend the holiday home with [the plaintiff’s] children, with [the plaintiff] staying at home due to her psychological condition. This has resulted in her being unable to engage in waterskiing activities with her family while on holiday.

17. With regard to [the plaintiff’s] gym attendance, she has not attended since developing her psychological injury.

18. The totality of the MA’s findings in relation to [the plaintiff’s] present functioning is found under subheading ‘Social activities/ADL’ on [p]3 of the MAC, and in the PIRS table on [pp]8-9. Nowhere in these parts of the MAC does the MA record any limitation with [the plaintiff’s] ability to holiday with her family nor her inability to attend the gym since her injury.

19. While [the plaintiff’s] evidence with regard to her restrictions on holidaying is found in her statement under subheading ‘travel’, the activity of holidaying with family and the various elements to that activity, such as waterskiing, staying in alternative accommodation and inviting family friends, should be properly considered under ‘social and recreational activities’ and not ‘travel’.

20. Ultimately, these factors were highly relevant to the MA’s consideration of [the plaintiff’s] functioning under ‘social and recreational activities’ as they related to her ability to participate in such activities and to what extent. The failure to consider them amounts to a demonstrable error, which, it is submitted, led to an understated score of class 2 rather than class 3.” (footnotes omitted)

24. As to Ground 3, the plaintiff contended that her ability to drive should only have been considered with regard to her functioning under the PIRS scale of travel. It was an error for the MA to have regard to this conduct for the purposes of scoring the plaintiff’s functioning under social and recreational activities.

A summary of the statement of reasons of the Appeal Panel

25. The Appeal Panel noted that the plaintiff relied on the following grounds of appeal under s 327(3) of the WIM Act:

26. the availability of additional evidence;

27. the assessment was made on the basis of incorrect criteria; and

28. the MAC contains a demonstrable error.

29. The Appeal Panel recounted in its reasons at [6]-[7], that following a preliminary review of the original medical assessment it had determined that it was not necessary for the plaintiff to undergo a further medical examination. In any event, as the Appeal Panel did not find any error in the MAC nor the assessment of the plaintiff’s WPI, leading to the need for a further examination, the Appeal Panel recognised it had no power to require re-examination of the plaintiff citing New South Wales Police Force v Registrar of the Workers Compensation Commission of New South Wales [2013] NSWSC 1792 at [33] (Davies J).

30. As to the plaintiff’s application to adduce additional evidence under s 328(3) of the WIM Act, the Appeal Panel concluded that it would not admit a medical report dated 3 July 2025 by Joel Volker, a psychologist, as the Appeal Panel determined that there was no basis for the admission of a further medical report. However, a letter dated 7 July 2025 from the Rotary Club at Camden was admitted as it corrected the record of the number of attendances by the plaintiff at that club.

31. After the Appeal Panel briefly recited the parties’ contentions, the Appeal Panel stated at [26] that the plaintiff’s complaint was that in the PIRS scale of social and recreational activities “a Class 3 or moderate impairment should have been assessed instead of the Class 2 or mild impairment rated by [the MA]”.

32. The Appeal Panel recounted at [28]-[29], the MA’s reasons in respect of social and recreational activities for assessing a mild impairment at Class 2 and his explanation why his opinion differed from Associate Professor Robertson. The MA’s explanation is set out at [17] above.

33. The Appeal Panel stated at [30]-[34]:

“30. [The plaintiff] submitted that [the MA] failed to have regard to [the plaintiff’s] limitation with regards to holidaying with her family and attending the gym.

31. [The plaintiff] has a holiday home which prior to her injury she would go with her family approximately once per month. Since her injury in June 2023 she has only attended six times. [The plaintiff] submitted that this restriction on previous enjoyed activities was not taken into account by [the MA] who also failed to take into account that she used to attend the gym times a week but has not attended since her injury.

32. [The plaintiff] submitted that [the MA] incorrectly referred to a travel criterion in this category. [The Appeal Panel] does not consider that this is what [the MA] has done. Reading the MAC as a whole it is clear that [the MA] has taken into consideration that [the plaintiff] is able to go by self to [Rotary] without a support person needing to go with her.

33. [The plaintiff] also submitted that [the MA] incorrectly took into account that [the plaintiff] attends [Rotary] most weeks. The letter from Rotary dated 7 July 2025 which the Appeal Panel has admitted shows the correct attendance was 18 times in a year. The Appeal Panel considers that this does not amount to a rare attendance (which is what a moderate impairment requires) but reflects an occasional attendance (which is the criteria for a mild impairment). [The plaintiff] is actively involved when she is there and interacts with other members. Although she has lost interest in other activities such as going out to dinner with friends, the theatre and shopping, she will go with her husband to watch a young friend play rugby league.

34. [The MA] was required to make an independent clinical assessment in this domain. The Appeal Panel can discern no error in the rating of a mild impairment. [The plaintiff] is attending occasional social activity without the need for a support person. Her social activities (attending Rotary, attending the rugby games, attending the holiday home) are not rarely undertaken but are occasionally undertaken. Class 2 is the best fit and [the MA] has assessed in accordance with the correct criteria and the Appeal Panel can discern no error.”

31. For those reasons, the Appeal Panel determined that the MAC issued on 11 June 2025 should be confirmed.

Ground 1: jurisdictional error by failing to consider a ground of the appeal;

Ground 2: error of law and jurisdictional error by failing to consider evidence relevant to determination of the appeal

32. These grounds of review may be conveniently dealt with together.

33. The plaintiff asserted jurisdictional error by the Appeal Panel on the basis that it failed to address and determine the first ground of appeal to the Appeal Panel. The plaintiff contended that the Appeal Panel’s failure to consider a substantial, clearly articulated argument relying on “established facts” that arose from the plaintiff’s unchallenged evidence constituted a constructive failure to exercise jurisdiction and hence jurisdictional error: Secretary, Department of Communities and Justice v Virtue [2024] NSWSC 1380 at [44] (Basten AJ). The established facts were submitted to be the following unchallenged evidence of the plaintiff:

34. First, following the injury, the plaintiff’s attendance at her holiday home with her family reduced from multiple night stays occurring once per month to just six occasions between approximately June 2023 and April 2025;

35. Second, those occasions on which the plaintiff had been able to attend the holiday home since the injury were limited to day trips. Otherwise, the plaintiff would remain at home while her family attended the holiday home; and

36. Third, following the injury, the plaintiff’s attendance at the gym reduced from three times per week to nil attendances.

37. The plaintiff submitted that in the MAC, the MA’s history relevant to the plaintiff’s social and recreational activities omitted any reference to the unchallenged evidence relying on the kind of error identified in Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 77 ALJR 1088; [2003] HCA 26 at [24]-[25] (Gummow and Callinan JJ, Hayne J agreeing) (“Dranichnikov”). In the Appeal Panel’s reasons at [30]-[31], the Appeal Panel summarised the crux of the plaintiff’s submissions pertaining to the evidence of the plaintiff’s reduced attendance at the holiday home and the gym. However, the plaintiff argued it is clear from the balance of the Appeal Panel’s reasons at [32]-[35], that the Appeal Panel did not make any findings as to whether the MA had considered that evidence. A further submission was that the Appeal Panel’s reasons also show that the Appeal Panel did not attempt to reconcile that evidence with the MA’s score of Class 2 for the PIRS scale of social and recreational activities, nor its own conclusion regarding the correctness of that Class score.

38. The plaintiff contended that had the Appeal Panel properly addressed the plaintiff’s argument there was a realistic possibility that the results could have been different, as consideration of that evidence might have warranted a score of Class 3 rather than Class 2 for the PIRS scale of social and recreational activities. This would have resulted in the aggregate class score of 17 and the median class score of 3 (rounded up from 2.5), which would substantially increase the plaintiff’s overall WPI to 19%.

39. As to Ground 2, the plaintiff submitted that the Appeal Panel’s reasons demonstrate that at no stage was the unchallenged evidence properly considered before arriving at the ultimate conclusion that Class 2 was the correct score for the PIRS scale of social and recreational activities. The plaintiff pointed out that the Appeal Panel is subject to an implied obligation to give reasons referring to Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 at [26]-[31] (Handley JA, McColl JA agreeing), [117] (Basten JA, Handley and McColl JJA agreeing). The plaintiff submitted that consideration of this evidence was necessary for the Appeal Panel to determine Ground 1, such that its failure amounted to a breach of the duty “to consider all the evidence in the case”: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 (Samuels JA, Clarke JA and Hope AJA agreeing).

40. The defendant submitted that the Appeal Panel directed itself to Ground 1 in its reasons at [30]-[31], and the Appeal Panel was alive to the need to resolve this ground as it had considered factual matters such as the plaintiff having a holiday home which she used to go to and that she used to attend the gym but not since her injury. Contrary to the plaintiff’s submissions that the Appeal Panel did not properly consider this ground, the defendant contended that the Appeal Panel clearly made findings as to the plaintiff’s evidence in its reasons at [34]. A further submission was that Ground 1 of the amended summons was predicated on there being an error by the MA that was not corrected by the Appeal Panel, but that such error had never been made.

41. The defendant referred to the Appeal Panel’s reasons at [33], where the Appeal Panel found that the MA had made a factual error in relation to the plaintiff’s attendance at the Rotary Club. The defendant submitted that the Appeal Panel’s findings at [33], demonstrated that the Appeal Panel gave consideration to the plaintiff’s substantial, clearly articulated argument “because it actually accepted error on the part of [the MA] as to the frequency of attendance at Rotary”, by admitting into evidence the letter dated 7 July 2025 from the Rotary Club regarding her attendance at the club: Tcpt, 9 July 2026, pp 24(44)-25(1).

42. As to Ground 2, the defendant raised two preliminary points. First, that the Appeal Panel was not obliged to have regard to all of the facts or all of the evidence. It was required, for administrative law purposes, to have regard to legally mandated considerations: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-40 (Mason J); [1986] HCA 40 (“Peko-Wallsend”); see also Lo v Chief Commissioner of State Revenue (2013) 85 NSWLR 86; [2013] NSWCA 180 at [9] (Basten JA, Beazley P agreeing). Secondly, to have “misconstrued evidence”, provided there be some evidentiary basis for the conclusion, is to have erred only on the merits, which was not susceptible to judicial review. The defendant submitted that even if the “vast majority” of the evidence pointed to a contrary conclusion that was not sufficient to uphold the plaintiff’s amended summons.

Determination

40. Ground 1 of the plaintiff’s appeal to the Appeal Panel was a contention that the MA made a demonstrable error by failing to have regard to limitations in the plaintiff’s ability to holiday with her family and attend the gym, which was relevant to her assessment of functioning under the PIRS scale of social and recreational activities.

41. The plaintiff’s complaint is that the Appeal Panel failed to make any findings as to whether the MA had considered the plaintiff’s unchallenged evidence being (see [15] and [33] above):

42. the plaintiff’s attendance at her holiday home with her family being reduced from multiple stays to just six occasions;

43. those occasions were limited to day trips as she was too anxious to stay there overnight. It was usually the case that the plaintiff’s husband would attend the holiday home with the children, and she would stay at home due to her psychological condition. This had resulted in her being unable to engage in waterskiing activities with her family while on holidays; and

44. the plaintiff was no longer able to attend the gym whereas prior to her injury, she was attending the gym three times a week.

45. A further complaint is that the Appeal Panel failed to reconcile that evidence with the MA’s score of Class 2 for the PIRS scale of social and recreational activities. The plaintiff submitted that in failing to consider a substantial, clearly articulated argument relying upon established facts, there has been a constructive failure by the Appeal Panel to exercise its jurisdiction in the Dranichnikov sense.

46. In Fisher v Nonconformist Pty Ltd (2024) 114 NSWLR 1; [2024] NSWCA 32 (“Fisher”), Kirk JA (with whom Meagher JA and Simpson AJA agreed) conveniently summarised the relevant principles applicable to the Dranichnikov error advanced by the plaintiff at [117]-[119]:

“[117] Constructive failure to exercise jurisdiction arises where a decision-maker purports to have exercised the jurisdiction but in substance has not undertaken or completed the task of doing so because of failure to address some essential matter.

[118] Here the appellants raise a form of constructive failure based on the alleged failure by the member to respond to a critical argument. This is the variant of constructive failure of jurisdiction discussed by members of the High Court in [Dranichnikov]. In that case Gummow and Callinan JJ, with whom Hayne J agreed, held that for an administrative decision-maker ‘[t]o fail to respond to a substantial, clearly articulated argument relying upon established facts’ was both a constructive failure to exercise jurisdiction and a failure to accord natural justice (at [23]-[25]). Kirby J similarly held that where, as in that case, the decision-maker’s mistake ‘amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way’ (at [88]).

[119] As explained in [Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209] at [15], arguments based on this variant of jurisdictional error can often ‘shade into claims about arguments having been resolved incorrectly because misunderstood, or not really grappled with, which tends towards merits or appellate review’. Such review is not within the scope of this court’s jurisdiction either when undertaking judicial review or when, as here, hearing an appeal on points of law. Further, the inquiry is not as simple as identifying whether the decision-maker gave attention to the relevant argument in their reasons, since it is not necessary for decision-makers to address every argument or every piece of evidence in delivering reasons. For the appellants to succeed on this ground, then, there must have been a failure to grapple with a substantial, clearly articulated argument. That language has been reiterated by members of the High Court: Minister for Immigration and Border Protection v SZMTA (2019) 264 CLR 421; [2019] HCA 3 at [13] (Bell, Gageler and Keane JJ) and [105] (Nettle and Gordon JJ); Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582; [2022] HCA 17 at [27] (Kiefel CJ, Keane, Gordon and Steward JJ). The failure to address an issue must be of such significance as to warrant a conclusion that the decision-maker has failed to complete the exercise of their power by reason of having failed to engage with an issue of importance to the matter being resolved.”

44. In Fisher at [120], Kirk JA quoted a passage from Meagher JA (with whom Payne and White JJA agreed) in Day v SAS Trustee Corporation [2021] NSWCA 71 (“Day”), in which it was observed at [37]:

“… a constructive failure to exercise jurisdiction (or a purported exercise, in the sense that there is an appearance of an exercise of jurisdiction) as alleged by the appellant is not a mere failure to consider evidence or to address an argument or submission, which may be contingent or otherwise insignificant, but a failure to understand and determine a case or claim. The ultimate question is whether a failure to consider and address certain issues or arguments involved a failure to address central or critical elements of the case or claim … It will be insufficient for the appellant to show that his ‘three key issues’ were not stated and determined discretely. What he must show is that they raised ‘substantial’ (in the sense of clearly material) arguments or questions which the primary judge in substance failed to address in determining the appellant’s claim …” (citations omitted)

45. More recently, a similar statement of principle as found in Fisher and Day was stated by Kirk JA (with whom Bell CJ and Leeming JA agreed) in Tsakirios v State of New South Wales [2026] NSWCA 132 at [161].

46. The focus of the plaintiff’s argument to the Appeal Panel on Ground 1 was confined to the restrictions in the plaintiff’s functioning summarised at [41] above. Although the Appeal Panel briefly referred to those restrictions at [30]-[31] of its reasons, the Appeal Panel did not address the plaintiff’s substantial, clearly articulated argument that the MA had failed to consider all of the plaintiff’s restrictions in functioning before determining the Class 2 score for the PIRS scale of social and recreational activities. The issue raised by the plaintiff was substantial and not insignificant. It was central to the plaintiff’s contention that the MA had erred in his conclusion of the Class 2 score.

47. Having considered the Appeal Panel’s reasons, read fairly and as a whole, I am satisfied that the Appeal Panel did not engage with the plaintiff’s argument: Quintiliani-Johns at [53]-[55]. There is insufficient evidence in the Appeal Panel’s reasons supporting a conclusion that the Appeal Panel adequately considered Ground 1: Ming v Director of Public Prosecutions (NSW) (2022) 109 NSWLR 604; [2022] NSWCA 209 at [12] (Kirk JA, White and Mitchelmore JJA agreeing). The statement at [34] of the Appeal Panel’s reasons that “[t]he Appeal Panel can discern no error in the rating of a mild impairment”, is a conclusion which did not answer the ground the plaintiff advanced and neither did it reveal whether the Appeal Panel dealt with the plaintiff’s argument. Furthermore, the statement that follows which includes the plaintiff’s social activities such as “… attending Rotary, attending the rugby games, attending the holiday home … are not rarely undertaken but are occasionally undertaken”, adds weight to a conclusion that the Appeal Panel had not undertaken the task required of them. The unchallenged evidence went beyond the plaintiff’s occasional attendance at the holiday home but extended to no longer staying at that home overnight and being unable to engage in waterskiing activities with her family. Furthermore, there was no mention of her inability to attend the gym.

48. I am satisfied that the threshold of materiality has been met. The decision of the Appeal Panel could realistically have been different had it carried out its proper function according to law: LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2024) 280 CLR 321; [2024] HCA 12 at [13]-[16] (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ) (“LPDT”).

49. The Appeal Panel’s error was jurisdictional. Ground 1 has been made out.

50. I do not agree with the defendant’s submissions with respect to the well-known observations by Mason J in Peko-Wallsend. While I recognise that the Appeal Panel does not need to refer to every piece of evidence, it was in the present case bound to take into account all of the plaintiff’s evidence of the restrictions in her functioning. None of her evidence of those restrictions was so insignificant that the failure to take it into account could not have materially affected the Appeal Panel’s decision.

51. The Appeal Panel’s failure to take into account all of the plaintiff’s evidence of the restrictions in her functioning was a material error.

52. Ground 2 has been made out.

Ground 3: error of law by failing to give lawful reasons

53. It follows that as Ground 1 has been made out, this ground may be shortly dealt with. The High Court’s seminal passage in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 at [55] (French CJ, Crennan, Bell, Gageler and Keane JJ) (“Wingfoot”), explained the standard of reasons required as follows:

“The standard required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act can therefore be stated as follows. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.”

54. For the reasons set out above, the Appeal Panel’s reasons failed to demonstrate that it had engaged with Ground 1. However, if as the defendant contends that the brief recitation of the plaintiff’s restrictions at [30]-[31] and the conclusory statements of “discerning no error” at [34] of the Appeal Panel’s reasons and in the remainder of its reasons at [34], demonstrate that the plaintiff’s argument was understood and addressed, those reasons fail to sufficiently reveal a logical path of reasoning to the conclusion that the Class 2 assessment was made in accordance with correct criteria: Wingfoot at [55]; Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55; (2016) 75 MVR 1 at [5]-[6] (Leeming JA, Meagher JA agreeing); New South Wales Land and Housing Corporation v Orr (2019) 100 NSWLR 578; [2019] NSWCA 231 at [77] (Bell P, Ward JA agreeing) (“Housing Corporation”). As the plaintiff submitted, it cannot be sufficiently ascertained in the Appeal Panel’s reasons how it concluded that all the restrictions in her ability to holiday with her family and attend the gym, when viewed in conjunction with other available evidence, warranted a score of Class 2 rather than Class 3.

55. Ground 3 has been made out.

Ground 4: error of law and/or failure to exercise jurisdiction by misapplying the SIRA Guidelines

56. The plaintiff referred to the MA’s reasons for scoring Class 2 for the PIRS scale of social and recreational activities which included her ability to drive by herself to attend the Rotary Club (see [19] above). The plaintiff also referred to the MA’s reasons for scoring Class 2 for the PIRS scale of travel which included her ability to drive short distances by herself to the local shops and to see her GP and “also the 30 minute drive to Camden for weekly Rotary Club meetings” (see [20] above).

57. The plaintiff contended that an individual’s ability to drive must logically fall within the PIRS scale of travel. The plaintiff submitted that the MA’s dual use of the plaintiff’s ability to travel in two PIRS scales amounted to an incorrect application of the SIRA Guidelines. The plaintiff argued that the Appeal Panel’s conclusion at [32] of its reasons was an error of law as the Appeal Panel impermissibly incorporated that conduct into the incorrect PIRS scale. Furthermore, in failing to correct the MA’s error, the Appeal Panel had failed to exercise its jurisdiction to correct a demonstrable error.

58. The plaintiff argued that had the Appeal Panel correctly assigned that conduct to the correct PIRS scale, it is a realistic possibility that the plaintiff’s score for social and recreational activities could have increased, since a factor weighing in favour of a Class 2 score would have been removed.

59. The defendant submitted the Appeal Panel did not misapply the SIRA Guidelines. This was because there was no overlap or mixing of considerations (which can properly only go to one scale). The defendant contended that an MA may use similar language in different categories without committing the kind of error identified in Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [94] (Bell P and Payne JA, Emmett AJA agreeing) (“Ballas”). The defendant argued that, as the Court of Appeal recognised in Ballas, there may be repetition of language across the different PIRS scales.

60. The defendant contended that the word “travel” can be legitimately used in multiple PIRS scales depending on what is being determined. When the MA dealt with an ability to drive as going to Class 2 for travel, this was an assessment of, in a direct way, the plaintiff’s ability to do just that, namely, travel. When the MA referred to travel in the context of social and recreational activities, it was as a matter of fact that the plaintiff drives (and thus travels) to social events. The defendant submitted that in dealing with this Class, the MA was assessing her ability to socialise, not to travel, but it was appropriate in explaining how socialising occurred, to point to the fact that she socialised by arriving by car.

61. A further submission was that because the plaintiff travelled in order to socialise, it was not infelicitous language to refer to travel in two PIRS scales. The defendant contended even if it was, the Court would not be “concerned with looseness in the language … nor with unhappy phrasing” on the Appeal Panel’s part relying on Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ); [1996] HCA 6 (“Liang”).

62. The plaintiff in its written submissions in reply contended that the relevant consideration for the PIRS scale of social and recreational activities is the frequency and quality of one’s participation in those activities. The plaintiff submitted that applying the reasoning in Ballas at [94], conduct demonstrating how one’s participation in those events occurs, that is, the means by which the individual travels to the activity, could never be relevant to that PIRS scale. The plaintiff argued it inevitably follows that there is no plausible explanation for the MA to have included that conduct within the reasons for that PIRS scale unless the MA was purporting to rely on it to support his score of Class 2. The plaintiff submitted that the defendant’s submission concerning looseness in language should be rejected.

Determination

63. It was not in dispute between the parties that the joint judgment of Bell P and Payne JA (with whom Emmett AJA agreed) in Ballas at [93] held that “the characterisation of conduct as going to ‘social and recreational activities’ on the one hand, as opposed to any of the other five [PIRS] scales on the other hand, is not a matter of discretion”. It was also common ground between the parties that the Court in Ballas at [93] recognised a MA must exercise “a degree of clinical judgment” in assigning a person’s impairment to be within a particular class of seriousness in each PIRS scale. The plaintiff relied on the observations by the Court in Ballas at [94]:

“[94] Even if there may, as a matter of English language, be some overlap between some of the scales or categories of functional impairment, for the purposes of the WPI assessment exercise, particular conduct will fit within one or other of the scales. This calls for the correct characterisation of the conduct, that is, whether it goes to ‘self care and personal hygiene’, ‘social and recreational activities’, ‘travel’, ‘social functioning (relationships)’, ‘concentration, persistence and pace’ or ‘employability’. This does not involve an exercise of discretion. If conduct is wrongly assigned to one scale, when it should have been assigned to another, this will result in the [Approved Medical Specialist] taking into account an irrelevant consideration in the context of assigning a class to each of the distinct scales. This will inevitably bear upon the calculation of the WPI which is critical for an injured worker’s entitlement to compensation.”

64. The above passage from Ballas makes clear that the focus is on whether a type of conduct has been “wrongly assigned to one [PIRS] scale, when it should have been assigned to another”, because the consequences of that “[m]isassignment of conduct to a particular area or ‘scale’, and assessment of that conduct for the purposes of assigning a rating or ‘class’ to that area, has the potential to distort the overall WPI”, which is critical to a person’s entitlement to compensation: Ballas at [84]. Consistent with the Court’s limited role in judicial review proceedings, the inquiry does not descend into a review by reference to whether the MA should have assessed the plaintiff’s functional impairment as being a particular class: Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [64] (Basten AJ); Georges at [61]-[62] (Griffiths AJ).

65. The plaintiff’s submission to the Appeal Panel in support of Ground 4, that the MA had wrongly assigned conduct that fell within travel to the PIRS scale of social and recreational activities, was not accepted. The Appeal Panel stated at [32]:

“[The plaintiff] submitted that [the MA] incorrectly referred to a travel criterion in this category. [The Appeal Panel] does not consider that this is what [the MA] has done. Reading the MAC as a whole it is clear that [the MA] has taken into consideration that [the plaintiff] is able to go by self to [Rotary] without a support person needing to go with her.”

66. A descriptor given as an example for assessing whether a person’s impairment falls within Class 2 in the PIRS scale of social and recreational activities is “occasionally goes out to such events eg without needing a support person”: see also Jenkins v Ambulance Service of New South Wales [2015] NSWSC 633 at [60], [64] (Garling J).

67. Although a type of conduct may have some relevance in relation to a distinct scale, the scale to which that conduct is directly relevant is where the conduct is to be assigned. In Ballas, the Court said at [95]-[96]:

“[95] In the present case, it was plainly ‘arguable’, to use the language of [Vannini v Worldwide Demolitions Pty Ltd [2018] NSWCA 324], that the [Approved Medical Specialist] took into account an irrelevant consideration in relation to the scale ‘social and recreational activities’ when he made reference in his reasons to ‘[s]ees one friend regularly’ … This is because there is a separate scale entitled ‘social functioning (relationships)’ to which that conduct is more directly relevant.

[96] Whilst it could be said that seeing a friend is a form of social activity, in the context of a process that has a distinct category or scale dealing with relationships and in circumstances where the AMS is directed by par 11.15 of [the SIRA Guidelines] to address each area of functional impairment separately, the degree of regularity of seeing a friend or friends fell squarely within the ‘social functioning (relationships)’ scale.” (emphasis added)

68. A risk of impermissible “double counting” may arise to the detriment of the person being assessed when the same conduct is assigned to two distinct PIRS scales. This risk is illustrated in the present case by the MA’s reasons for the Class 2 scores for the PIRS scales of social and recreational activities and of travel (see [19] and [20] above).

69. The MA’s reasons for social and recreational activities relevantly provided:

“[The plaintiff] is able to drive by herself to attend Rotary Club meetings in Camden most weeks.” (emphasis added)

70. The MA’s reasons for travel relevantly provided:

“[The plaintiff] is able to drive short distances by herself such as to the local shops and to see her GP and also the 30 minute drive to Camden for weekly Rotary Club meetings.” (emphasis added)

71. As was observed in Ballas at [100], “[t]he ‘social and recreational activities’ scale looks to the injured worker’s degree of participation in such activities”. The plaintiff’s ability to drive to the Rotary Club was directly relevant to the distinct PIRS scale of travel and should not have been a consideration in relation to the PIRS scale of social and recreational activities. Having read the MA’s reasons, fairly and as a whole, and not minutely and finely with an eye keenly attuned to the perception of error, I am satisfied that the MA erroneously took into account the plaintiff’s driving to the Rotary Club: Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 287 (Neaves, French and Cooper JJ); [1993] FCA 456; Liang at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ), 291 (Kirby J); Housing Corporation at [77]; Della Bruna v Health Care Complaints Commission [2025] NSWCA 105 at [9]-[16] (Bell CJ and Kirk JA). That error was material to the Appeal Panel’s decision: LPDT at [14]-[16].

72. The Appeal Panel’s decision not to uphold Ground 4 of the appeal was affected by jurisdictional error: see, eg, Ballas at [126]. Accordingly, Ground 4 has been made out.

Orders

73. In written submissions and during the hearing, the parties informed the Court that they had agreed each party would bear its own costs.

74. Accordingly, I make the following orders:

75. Set aside the decision of the Appeal Panel dated 21 October 2025 and the Certificate of Determination issued by the Personal Injury Commission of New South Wales dated 25 November 2025.

76. Direct that the matter be remitted to the President of the Personal Injury Commission for referral to a differently constituted Appeal Panel under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) to be determined in accordance with law.

77. No order as to costs.

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