Stines v The GEO Group Australia Pty Limited

Judgment

1. HIS HONOUR: By Summons filed on 18 August 2020, the plaintiff, Robert Stines, brings proceedings under s 69 and s 75 of the Supreme Court Act 1970 (NSW) for judicial review. The judicial review seeks orders in relation to a decision of the Medical Appeal Panel (hereinafter "the Appeal Panel") convened under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (hereinafter "the 1998 Act").
2. Leave was sought to file an Amended Summons, which leave was granted. The Amended Summons was filed in Court on 5 February 2021.
3. By the Amended Summons, the plaintiff seeks, to the extent necessary: an extension of time for the filing of the proceedings; that the decision of the Appeal Panel of 18 February 2020 be quashed or set aside; the proceedings for assessment of whole person impairment (hereinafter "WPI") be remitted to the Registrar of the Workers Compensation Commission of New South Wales (hereinafter "the Commission"), who is the third defendant in the proceedings; and costs.

Background

1. The plaintiff was an inmate at Parklea Correctional Centre (hereinafter "Parklea") from 1 October 2013 to 11 January 2014. Parklea was managed by the first defendant, The GEO Group Australia Pty Limited (hereinafter "GEO"), which employed Mr Simon Waterfall as a Corrections Officer.
2. On 6 December 2013, while the plaintiff was in the clinic area at Parklea, he was struck about five times to the left side of his face by Mr Waterfall. The assault is said to be intentional and was conducted in the presence of other officers.
3. Three years later, on 6 December 2016, the plaintiff brought an action for damages against Mr Waterfall in the District Court. The action was for battery and also sought damages against GEO, which, it was said, was vicariously liable for the actions of Mr Waterfall and, to a lesser extent, the other employees. The claim included a claim for exemplary and aggravated damages.
4. An action for damages by an offender in custody is governed by the provisions contained in Pt 2A of the Civil Liability Act 2002 (NSW), which imports the provisions of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) ("the 1998 Act"). While it is not an issue in the current proceedings, the first defendant is a "protected defendant", being a management company within the meaning of the Crimes (Administration of Sentences) Act 1999 (NSW) and the plaintiff is or was, as is clear from the foregoing, an offender in custody.
5. Pursuant to the terms of s 26C of the Civil Liability Act, no damages may be awarded unless the injury results, relevantly, in a degree of WPI of at least 15%. While these reasons refer to WPI, the provisions of s 26C of the Civil Liability Act (and s 26D of the Civil Liability Act) refer to "permanent impairment", rather than whole person impairment. Nevertheless, the provisions of s 26D of the Civil Liability Act require that permanent impairment be assessed in the same way as an assessment of permanent impairment under the 1998 Act. The term whole person impairment or WPI refers to that permanent impairment assessed in accordance with the 1998 Act.
6. As a consequence of the provisions of the Civil Liability Act, it is the regime in the 1998 Act that governs the assessment of permanent impairment or WPI and it is error of law or error of jurisdiction in the decision-making process under that regime that determines whether remedies in the nature of judicial review will issue.
7. On 5 June 2019 and 26 July 2019, the plaintiff obtained a psychiatric medico-legal report from Dr Oldtree-Clarke, who expressed the view that the plaintiff had suffered a WPI of 29%. The first defendant disputed that assessment.
8. As a consequence of the dispute, the first defendant made an Application for Assessment by an Approved Medical Specialist (hereinafter also referred to as "AMS"), which was lodged with the Workers Compensation Commission on 3 October 2019. The Assessment by the Approved Medical Specialist was conducted by audio visual link on 16 January 2020.
9. On 28 January 2020, a Medical Assessment Certificate (hereinafter "the Certificate") was handed down. The Certificate assessed the plaintiff's WPI at 4%, as a result of his psychological injuries.
10. On 25 February 2020, the plaintiff lodged an Application to Appeal against the Certificate. That Appeal was lodged with the Registrar of the Commission. The basis for the Application to Appeal was that the Approved Medical Specialist had applied incorrect criteria and there was otherwise a demonstrable error, disputing the findings as to the level of the WPI.
11. As a consequence of the Application for referral of the Appeal, the Registrar determined that the Appeal would be referred. The Appeal was referred to the Appeal Panel. The Appeal Panel confirmed the Assessment of the AMS and, on 18 May 2020, dismissed the Appeal.

Grounds for Judicial Review

1. The Amended Summons sets out a number of grounds that are alleged to be a basis for judicial review. Those grounds are: 1. The AMS has not taken into account the fact that the plaintiff is in an institutional setting. 2. The AMS has failed to take into account that the plaintiff's clothing, changes and meals are 'regimented' by the correctional setting, as is his social activities. 3. The AMS has not considered how the plaintiff would act outside that setting or failed to provide reasons. 4. The AMS [has failed] to consider a requirement for a support person or the fact that [the plaintiff] has an 'escort' at all times. 5. The Appeal Panel erred in failing to find that there was a demonstrable error and/or application of incorrect criteria in the AMS Report of Dr Bench. 6. The Appeal Panel failed to give any or any sufficient reasons for its Decision. 7. The Appeal Panel failed to engage with the applicant's seriously made submissions.

Particulars 1. The Appeal Panel failed to consider the effect of the applicant's incarceration, in that his activities were mandated and not the result of any psychological condition. 2. The Appeal Panel failed to consider the applicant's reliance on a support person. 1. The Appeal Panel reasoned illogically, irrationally, unreasonably or without active intellectual consideration.

Particulars 1. The Appeal Panel made findings as to the applicant's psychological state without evidence as to the nature and extent of the mandated activities of the institution in which he was incarcerated. 2. The Appeal Panel made findings regarding the way in which the applicant would act outside the institutional setting based on activities which are imposed on him inside that setting, such reasoning being irrational or unreasonable.

1. The Amended Summons does not seek orders in relation to the Assessment of the Approved Medical Specialist. It would seem, as a consequence, to the extent the grounds for judicial review relate to error on the part of the Approved Medical Specialist, it is not intended to find an order against the Certificate issued by the Approved Medical Specialist but, rather, to disclose error on the part of the Appeal Panel, against whose decision judicial review is sought.

Evidence

1. As can be expected in an Application of this kind, the evidence is uncontroversial and relatively formal. The supporting documentation filed with the Application for Assessment by the Approved Medical Specialist is Volume 2 of the Court Book.
2. Volume 1 of the Court Book includes: a Joint Statement of Agreed Facts; the Statement of Claim and Statement of Particulars and Defence thereto in the proceedings below; the Workers Compensation Guidelines for the Evaluation of Permanent Impairment, including Ch 11 of the Psychiatric and Psychological Disorders Rating Scale, otherwise referred to as the Psychiatric Impairment Rating Scale (hereinafter "PIRS"); the Workers Compensation Dispute documents, including the Application for Assessment by an Approved Medical Specialist; the response thereto; the Medical Assessment Certificate prepared by Dr Christopher Bench; the Application to Appeal Against the Decision of the AMS; Notice of Opposition to the Appeal; and the Decision of the Medical Appeal Panel. The parties provided written submissions. The content of the agreed facts has already been included in these reasons.

Submissions

1. The plaintiff's submissions commence with a general outline of the injuries, disabilities and legal framework underpinning the proceedings and a description of the proceedings themselves. The submissions then refer to the decision of the AMS and summarises the history contained in the reasons of the AMS before analysing the decision of the AMS and seeking to describe it in general terms.
2. The first express criticism of the decision of the AMS is the AMS's reference to employment. The plaintiff describes the decision of the AMS as being that the plaintiff had "never worked in the community".
3. This, on the submission of the plaintiff, is incorrect. Nevertheless, the error in the comment is sought to be demonstrated by the fact that the plaintiff had always sought "employment" in custody. The reference by the AMS to not having worked in the community does not refer to work performed in prison.
4. Next, the plaintiff's submissions refer to the description by the AMS of the plaintiff's social activities. It is unnecessary to repeat the submission, but the description of the social activities is not the subject of significant complaint beyond that otherwise described.
5. The plaintiff relies upon the diagnosis of the AMS which confirmed the report originally obtained by the plaintiff from Dr Oldtree-Clarke. That diagnosis was that the plaintiff suffered from Post-Traumatic Stress Disorder and from moderate intellectual disability.
6. The plaintiff's disorders result in symptoms of: an inability to trust others; decreased enjoyment of activity; use of distraction to avoid being reminded of trauma; and a persistently negative emotional state. The AMS attributes the cause of the symptoms to be the assault on 26 December 2013 and remarks that there are no pre-existing or subsequent conditions that are required to be accommodated by a deduction in WPI.
7. The complaint, in the submissions of the plaintiff, relating to the AMS is that during the course of the scoring under the PIRS, there were difficulties in assessment associated with the fact that the plaintiff was located in a correctional facility and, in particular, the plaintiff's capacity to maintain autonomy.
8. The plaintiff complains that the AMS said that incarceration prevented a person from participating in activities of daily living and the plaintiff asserts that that assumption is incorrect. According to the plaintiff, incarceration does not prevent a person from participating in activities of daily living. Rather, incarceration mandates and enforces participation in some activities and prevents participation in others.
9. The plaintiff's submissions then refer to the AMS considering the reports of Dr Oldtree-Clarke of 5 June and 26 July 2019 and commenting on areas of disagreement. While the AMS refers to other supporting material, there is no reference to such material in detail. As a consequence of this process, the plaintiff submits that the AMS failed to take in account relevant material.
10. Finally, the plaintiff submits, correctly, that the AMS assessed the plaintiff as having a 4% WPI. In so doing, the AMS assessed that there was no assessable impairment for self-care (category one); mild impairment for social and recreational activities (category two); no impairment for travel (category one); mild impairment for social functioning (category two); mild impairment for concentration, pace and persistence (category two); and no impairment for employability (category one).
11. It is uncontroversial that the assessment of 4% WPI is able to be appealed on the limited grounds prescribed by s 327(3) of the 1998 Act. Those grounds include an appeal on the ground that the assessment was made on the basis of incorrect criteria or that the assessment contains a demonstrable error. [1]
12. At the time that the plaintiff applied for a reference to the Appeal Panel, the application was made to the Registrar of the Commission. [2] As earlier stated, the Registrar referred the appeal to an Appeal Panel. The Appeal Panel confirmed the assessment of the AMS.
13. The Appeal Panel is required to bring to bear their professional expertise in the exercise of their function. [3]
14. At the heart of the plaintiff's submission as to the error in the assessment by the AMS is the inadequate consideration of the effect of the plaintiff's institutionalisation on the criteria utilised by the AMS and, subsequently, utilised by the Appeal Panel in determining the score under the PIRS.
15. In particular, the plaintiff asserts that incarceration is the accommodation of the plaintiff in an institutionalised setting. The plaintiff submits that, as a consequence of that institutionalised setting, he is unable to prepare his own meals; his hygiene is regimented; or at least ordered or prompted by the institution itself.
16. Thus, the plaintiff is forced to be out of his cell and reference, as a consequence, by the AMS and consideration by the Appeal Panel of the plaintiff's "social activity" in being outside his cell, must be assessed, not on the basis of that which he was forced to do as a consequence of his incarceration, but how he would have behaved were he not incarcerated.
17. The plaintiff submits that the failure to assess behaviour outside the institution is a failure to apply the guidelines properly and is an application of incorrect criteria.
18. Similarly, in regard to social activities, the plaintiff submitted to the Appeal Panel, and submits to the Court, that the AMS failed to note that the plaintiff had lost the capacity to interact with others, other than close friends and family. The AMS had failed to consider that the plaintiff required a support person and the AMS provided no reasoning as to the plaintiff's functioning outside of his institutional setting.
19. The plaintiff was, at the time of the foregoing submission to the Appeal Panel, under protection and escorted inside the institution. Prior to the accident, the plaintiff had no protection. Further again, the plaintiff submitted that his recreation within the prison system is essentially a solo activity.
20. The appeal to the Appeal Panel also complained about the failure by the AMS to consider that the plaintiff's ability to travel by pushbike relates to short distances only and ignored the issue of a support person. In regard to social functioning, the plaintiff's submissions to the Appeal Panel emphasised that the plaintiff had been refusing visits from family members and had lost numerous friendships.
21. In a similar vein, the plaintiff's submission to the Appeal Panel in relation to the error involved in the assessment by the AMS in relation to employability was that the assessment made no reference to the plaintiff's capacity to be employed outside of the correctional centre and paid little or no regard to the difference between "work" in prison and work outside of the institution. In prison, on the submission of the plaintiff, work is an expectation and requirement of the institution, which expectation and requirement was not taken into account by the AMS.
22. The foregoing criticisms of the AMS, in the submissions of the plaintiff to the Appeal Panel, are recited as they form the basis for the criticism of the decision of the Appeal Panel.
23. First, there is an implicit criticism of the Appeal Panel decision as a result of the reference to the plaintiff as the "worker". However, while it may have been more accurate to refer to the plaintiff, or claimant before the Appeal Panel, as an "injured prisoner" or "injured person", the error is not substantive.
24. The process which the Appeal Panel were undertaking was a process of assessment and appeal under the 1998 Act which, in its terms, refers to workers. The effect of the terms of the Civil Liability Act, to which reference has already been made, is that, from the point of view of the exercise of the functions of the AMS and the Appeal Panel, the plaintiff was a "worker".
25. The next criticism of the decision of the Appeal Panel is its summary of the import of the plaintiff's appeal. The Appeal Panel summarised the submission on the appeal and the appeal itself as involving a failure by the AMS "to take into account the effect of the plaintiff's incarceration". As a general statement such a summary is an accurate general comment on the appeal before them; and is probably an accurate summary of the criticisms underpinning the decision of the Appeal Panel in these proceedings for judicial review.
26. The plaintiff submits that the Appeal Panel determined that the AMS had approached the matter correctly, but the plaintiff submits that given the ambiguity in the decision of the AMS, it is not clear whether the Appeal Panel correctly understood the approach taken.
27. One of the issues about which the plaintiff complains is that the Appeal Panel agreed that a relevant factor was the limited proportion of the plaintiff's adult life spent outside the institutional setting. The plaintiff submits that he had spent 10 years of his adult life in gaol at the time of the determination and was 35.
28. It seems that the plaintiff is submitting that he had not spent "a limited proportion of his adult life … outside an institutional setting". Yet, even assuming that one's adult life commences at 18, such would amount to 10 years out of 17 spent in prison.
29. The plaintiff also complains that the Appeal Panel determined that the AMS did not fail to take into account the fact of the plaintiff's incarceration, but that was not the complaint of the plaintiff. Nevertheless, the plaintiff's complaint was that the fact of incarceration was not appropriately factored into each of the criteria that allowed the AMS to determine a score under the PIRS.
30. Further criticism is made of the Appeal Panel decision on the basis that, while the Appeal Panel notes certain arguments, it does not address them. This applies at least to the need for a support person in relation to social and recreational activities and in regard to travel.
31. The plaintiff submits that, in relation to the issue of social functioning, the Appeal Panel misunderstood the facts and attributed loss of social contact and friends to the report of the assault, rather than the disadvantage suffered by the plaintiff and the impairment created by his psychiatric disorder.
32. Further, as in the complaint made to the Appeal Panel on appeal from the decision of the AMS, the plaintiff submits that the Appeal Panel misunderstood the submission that the plaintiff had made in relation to employability and did not deal with the effect of the injury on the capacity to be employed outside of the prison.
33. Further, the plaintiff submits that the requirement for inmates to work in prison was irrelevant; misunderstood the point the plaintiff sought to argue, namely, the fundamental difference between work inside and outside prison; and the effect of prison regulation on the lack of motivation, if such regulation were not in place.
34. The foregoing is intended to give an indication of the detailed criticisms of the two decisions relevant to these proceedings. Fundamentally, the plaintiff, on appeal and before the Court, relies upon a failure by the Appeal Panel to approach the determination of a score under the PIRS in an appropriate manner that gives proper consideration to the prison environment.
35. Fundamentally, the plaintiff submits that the approach taken both by the AMS and by the Appeal Panel was to compare the capacity and/or life of the plaintiff in custody before and after the injury. Properly understood, the plaintiff's appeal is that the PIRS must be applied, bearing in mind that the PIRS is a measure of psychiatric injury and the impairment arising therefrom.
36. As a consequence, the plaintiff submits that conduct that is enforced by an institution in which the plaintiff lived cannot be an appropriate measure of the impairment suffered as a consequence of the psychiatric injury. In that regard, the measure undertaken by both the AMS and the Appeal Panel fails to measure the impairment from the injury, as distinct from that which the plaintiff was physically capable of doing, when forced to do it.
37. The plaintiff refers to the PIRS, which is used as the measure of psychiatric injury and, in particular, that ch 11 of the Guidelines provides tables for the scoring of the level of psychiatric impairment, but utilises examples only. The psychiatrist must take account of the person's cultural background and consider activities that are usual for the person's age, sex and cultural norm; and clinical judgment is important.
38. The plaintiff submits that merely because clinical judgment is important, it does not mean that the decision is not capable of being set aside. That proposition, in the general, is plainly correct.
39. However, the setting aside of an assessment by an Approved Medical Specialist or an Appeal Panel must rest upon the remedies that are available on judicial review. The Court's function is not a merits review of the assessment or the appeal decision.
40. The plaintiff submits that a review will need only be based upon error that is "demonstrable" or an "incorrect criterion". However, the submission is, in many respects, misplaced. The Appeal Panel does not suggest that it is confined to overturning an assessment in circumstances where the error is "glaringly improbable".
41. The grounds upon which an appeal, before an Appeal Panel, can be successful have, to the extent that they were relevant, been set out earlier. They include that the assessment has been made on incorrect criteria or that it contains demonstrable error. Each of those terms and the function of both the "gatekeeper" and the Appeal Panel have been the subject of authoritative comment by the Court of Appeal.
42. In the Second Reading Speech for the introduction of that provision, the Minister for Police referred to s 327(3)(c) of the 1998 Act as one which did not provide an appeal "to challenge or overturn the Guidelines". Rather, the Second Reading Speech suggests that the ground of "incorrect criteria" covers circumstances where the guides themselves have been incorrectly applied. [4]
43. The plaintiff submits that the panel was required to set out its actual path of reasoning and did not. According to the plaintiff's submission, the plaintiff's lifestyle before and after the incident was not normal and was deeply dysfunctional, as a consequence of which the task before the AMS was unusual.
44. The submission that the plaintiff makes is that, even though the plaintiff has spent a significant period of his life in gaol (referring to his adult life), it cannot be assumed that he will continue so to do and the injury needs to be considered according to normal standards. This, on the submission of the plaintiff, was not done.
45. Reference is then made to what are called "baseline errors", which is a reference to the assessment using incarcerated conditions as the basis for the assessment under the tables and the PIRS. The plaintiff submits that the correct method was demonstrated in the report of Dr Oldtree-Clarke.
46. Next the plaintiff submits that the approach of both the AMS and the Appeal Panel was wrong in that, as it appears, the assessment under PIRS was an assessment based on a comparison of the plaintiff's life before and after the assault, rather than the assessment based upon the plaintiff's cultural background and usual activities of a person of that age, sex and cultural norm.
47. Apart from repeating the issues associated with the criticism of the AMS decision and the inconsistency of approach and the assessment undertaken by both the AMS and the Appeal Panel, the plaintiff submits that error occurred in the treatment of the alleged ability by the plaintiff to function independently, because of the failure to consider the requirement for a support person. Further again, "independence" is said not to be an "example" used for the purpose of cl 11.2 of ch 11 of the Guidelines. The plaintiff maintains that evidence was provided that he was "incapable of dealing in a reasonably competent fashion with the ordinary routine affairs of man", and the plaintiff refers, in particular, to the report of Dr Oldtree-Clarke of 26 July 2019. Other evidence that was disregarded is also outlined.
48. The plaintiff then submits that the Appeal Panel failed to give reasons in that it failed to disclose the path of its reasoning and explain why the decision was made.
49. Further, the expression of a general conclusion, at such a high level that the reasoning to obtain it is not exposed, is not the disclosure of the path of reasoning whereby the decision had been reached. The plaintiff also submits that the failure to give reasons, as submitted by him, is indicative of a failure to take into account certain evidence. The failure to refer to critical evidence may, it is submitted, be indicative that the evidence was not taken into account. [5]
50. The plaintiff submits that the Appeal Panel failed to respond to a substantial, clearly articulated argument, which, on the plaintiff's submission, is a failure to accord natural justice and a failure to exercise jurisdiction.
51. Further, it is said that a failure to give proper, genuine and realistic consideration or an active intellectual process to an argument that has been articulated means that the argument has not been considered on its merits and that, absent reasons dealing with the argument, there has been error on the face of the record, which error is jurisdictional.
52. Lastly, the plaintiff submits that the decision of the Appeal Panel is unreasonable and illogical in that it fails to give adequate weight to a relevant factor of great importance or has given excessive weight to an irrelevant factor. Further, such a ground includes illogical or irrational reasoning.
53. The submission in this regard is that the mere fact that the Appeal Panel considered the methodology adopted by the AMS as appropriate or open is a failure to provide proper reasons in relation to the issues raised. For example, the specific submissions, said to have been raised by the plaintiff on appeal to the Appeal Panel, of a failure to take into account the use of the support person, cannot adequately be dismissed by categorising the methodology of the AMS as "appropriate" or "open".
54. The defendant submits that the delineation of error of law and jurisdictional error is not clear from the summons nor from the initial submissions of the plaintiff and objects, to the extent that the plaintiff relies upon error of law on the face of the record, to the admission into evidence of the whole of the second volume of the Court Book. The defendant submits it is not part of the record. Subsequent submissions of the plaintiff, filed by leave of the Court, seek to particularise which of the grounds of judicial review relate to error on the face of the record and which relate to jurisdictional error.
55. The defendant submits that the plaintiff has, at least to a large degree, ignored that which is on the face of the record and impermissibly seeks to reargue matters on a basis that cannot arise on judicial review.
56. The plaintiff submits that the Guidelines require that the plaintiff be assessed on the basis of a clinical assessment on the day that he presented for the assessment and, as a consequence, it required an assessment of the plaintiff's then current function, which could only occur in the context of his then current functional environment, namely imprisonment.
57. The first defendant categorises the plaintiff's submission, as to the necessity to make allowance, clinically, for the imprisonment in assessing the plaintiff's functional capacity, as a merits review and as seeking judicial review on the basis of the different clinical assessment.
58. Secondly, the AMS did in fact make allowance for the unusual or artificial environment associated with the plaintiff's imprisonment. The first defendant argues that the assessment by the AMS is totally in accordance with the PIRS and the Guidelines.
59. Similarly, the defendant deals with the submission as to whether the plaintiff had a requirement for a support person as a matter going to a clinical assessment of the plaintiff's ability to function independently. The defendant submits that the plaintiff, in seeking to make that submission good, again refers to material that is not part of the record.
60. The defendant submits that the submission as to adequacy of reasons is misplaced and relies on the well-known authority that administrative decisions are meant to inform and are not to be scrutinised overzealously to find error in the method or manner of expression. The defendant then seeks to support the adequacy of the reasons based upon the text of the Appeal decision.
61. As to the submission of error on the basis of the failure to respond clearly to articulated submissions put to it, the defendant submits that the Appeal Panel disclosed adequate reason why the submissions put on behalf of the plaintiff to the Appeal Panel were considered and the subject of response and reasons.
62. Further, it is said that insofar as the plaintiff's submission in this regard deals with the different nature of work in a gaol compared with employment in the community, it is inconsistent to submit that there was a failure to respond to submissions and, at the same time, submit that the reasons in so far as they deal with that issue are inadequate or illogical or unreasonable. If they fall within the latter category, there must be reasons that are discernible.
63. Lastly, the defendant submits that the submission on unreasonableness, irrationality or illogicality is an assertion by the plaintiff without any basis and the proposition is wholly without merit.

Psychiatric Impairment Rating Scale

1. As already mentioned, the assessment performed by the AMS was purportedly performed pursuant to the terms of the Guidelines for the Evaluation of Permanent Impairment, ch 11 of which deals with psychiatric disorders and the measurement of impairment. It is appropriate to put the terms of ch 11 in the context of the overall Guidelines.
2. While all of the guidelines are relevant, I extract, below, the most relevant aspects: "1.6 The following is a basic summary of some key principles of permanent impairment assessments: Assessing permanent impairment involves clinical assessment of the claimant as they present on the day of assessment taking account the claimant's relevant medical history and all available relevant medical information to determine: whether the condition has reached Maximum Medical Improvement (MMI) whether the claimant's compensable injury/condition has resulted in an impairment; whether the resultant impairment is permanent the degree of permanent impairment that results from the injury the proportion of permanent impairment due to any previous injury, pre-existing condition or abnormality, if any, in accordance with diagnostic and other objective criteria as outlined in these Guidelines. Assessors are required to exercise their clinical judgement in determining a diagnosis when assessing permanent impairment and making deductions for pre-existing injuries/conditions. In calculating the final level of impairment, the assessor needs to clarify the degree of impairment that results from the compensable injury/condition. Any deductions for pre-existing injuries/conditions are to be clearly identified in the report and calculated. If, in an unusual situation, a related injury/condition has not previously been identified, an assessor should record the nature of any previously unidentified injury/ condition in their report and specify the causal connection to the relevant compensable injury or medical condition. The referral for an assessment of permanent impairment is to make clear to the assessor the injury or medical condition for which an assessment is sought - see also paragraphs 1.43 and 1.44 in the Guidelines. 1.7 Medical assessors are expected to be familiar with chapters 1 and 2 of AMA5, in addition to the information in this introduction. 1.8 The degree of permanent impairment that results from the injury/condition must be determined using the tables, graphs and methodology given in the Guidelines and the AMA5, where appropriate. 1.9 The Guidelines may specify more than one method that assessors can use to establish the degree of a claimant's permanent impairment. In that case, assessors should use the method that yields the highest degree of permanent impairment. (This does not apply to gait derangement - see paragraphs 3.5 and 3.10 in the Guidelines). … Introduction 11.1 This chapter lays out the method for assessing psychiatric impairment. The evaluation of impairment requires a medical examination. 11.2 Evaluation of psychiatric impairment is conducted by a psychiatrist who has undergone appropriate training in this assessment method. 11.3 Permanent impairment assessments for psychiatric and psychological disorders are only required where the primary injury is a psychological one. The psychiatrist needs to confirm that the psychiatric diagnosis is the injured worker's primary diagnosis. Diagnosis 11.4 The impairment rating must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based. Impairment arising from any of the somatoform disorders (DSM IV TR, pp 485-511) are excluded from this chapter. 11.5 If pain is present as the result of an organic impairment, it should be assessed as part of the organic condition under the relevant table. This does not constitute part of the assessment of impairment relating to the psychiatric condition. The impairment ratings in the body organ system chapters in AMA5 make allowance for any accompanying pain. 11.6 It is expected that the psychiatrist will provide a rationale for the rating based on the injured worker's psychiatric symptoms. The diagnosis is among the factors to be considered in assessing the severity and possible duration of the impairment, but is not the sole criterion to be used. Clinical assessment of the person may include information from the injured worker's own description of his or her functioning and limitations, and from family members and others who may have knowledge of the person. Medical reports, feedback from treating professionals and the results of standardised tests - including appropriate psychometric testing performed by a qualified clinical psychologist and work evaluations - may provide useful information to assist with the assessment. Evaluation of impairment will need to take into account variations in the level of functioning over time. Percentage impairment refers to whole person impairment (WPI). …11.11 Behavioural consequences of psychiatric disorder are assessed on six scales, each of which evaluates an area of functional impairment:
3. Self care and personal hygiene (Table 11.1) Activities of daily living
4. Social and recreational activities (Table 11.2)
5. Travel (Table 11.3)
6. Social functioning (relationships) (Table 11.4)
7. Concentration, persistence and pace (Table 11.5)
8. Employability (Table 11.6).

11.12 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."

1. As can be seen from the foregoing, the rating utilising the PIRS must be performed by a psychiatrist and the scale uses examples; it is not prescriptive. Nevertheless, that which is the clear purpose of the PIRS is the assessment of the permanent impairment associated with the psychiatric injury.
2. At the heart of the issues raised by the plaintiff in these proceedings is that the scale and the examples do not easily transfer to an institutional setting such as that contained in prison. In prison, social relationships are contrived or regulated; work is different and requires no self-motivation.
3. The foregoing are two examples of the difficulty associated with the application of these examples and the expert application of the scale to the circumstances and context pertaining to the plaintiff. The difficulty in applying the scale and the examples utilised in the scale produced within the Guidelines does not necessarily give rise to error of the kind that can or should be remedied by judicial review.
4. Errors in the application of the scale may vary from an error of fact to errors of law and even errors of jurisdiction. Fundamentally, that is the issue raised by the proceedings before the Court.

Decision of Approved Medical Specialist (the First Decision)

1. The AMS was Dr Christopher Bench. Dr Bench is a specialist psychiatrist and the reasons given by him for the medical assessment of the plaintiff are structured in the usual format produced by assessors in assessing WPI under the 1998 Act.
2. The first decision sets out the details of the matters referred for assessment, including that the AMS was assessing WPI for psychiatric and psychological disorder. The first decision also set out the superficial details of the plaintiff, being the date of birth and age at examination; date of examination; details of persons attending the examination, which was conducted by audio visual link; date of injury and employer/occupation.
3. The AMS sets out the circumstances of the injury sustained, which circumstances are relatively uncontroversial. It is unnecessary to set them out, although, for obvious reasons, they are relevant.
4. The AMS describes the present symptoms, the opening paragraph of which deals with physical injuries such as occasional jaw pain and difficulty eating very hot or cold foods. The AMS notes that the plaintiff had received no psychiatric treatment for two years and that he stated that his mood was "pretty up and down". The plaintiff did not sleep well, having broken sleep with particular difficulties with middle insomnia.
5. Most relevantly, the AMS notes: "The applicant noted he gets nightmares 'every night I have dreams … every night it comes back'. He awakens hyper-alert, scared, sweating with heart racing and shortness of breath. He has intrusive thoughts and images of the assault a couple of times per day. He has associated physiological symptoms of arousal 'once-a-day' such as heart racing, shortness of breath and sweating. He remains hypervigilant being fearful of further assaults. He is easily startled noting when startled 'I think the screws are coming through the door'. He has on-going negative cognitions including inability to enjoy activities and being more isolative [sic]. He avoids thinking or talking about the trauma. He avoids officers."
6. The AMS decision then deals with the details of any previous or subsequent accidents and the general health of the plaintiff, neither of which are especially relevant. Under the heading work history, the AMS noted: "The applicant has never worked in the community setting. He has been on the Disability Support Pension since age eighteen. He noted his disability is his intellectual disability. On the other hand, he reported when he is incarcerated, he takes up any employment opportunity available to him, such as working as a sweeper."
7. The AMS refers to a period in which the plaintiff worked in the bakery at Long Bay Correctional Centre and in light engineering at the Hunter Correctional Centre. The AMS recites that the plaintiff "would have preferred to be working full-time as he finds it is an excellent distraction".
8. Under the heading social activities or activities of daily living, the AMS deals with the plaintiff's relationship with his siblings including his stepsister and stepbrother and his relationship with his mother and stepfather. The decision, under this heading, also deals with the estrangement between the plaintiff and his father and the family history. The plaintiff denied, to the AMS, that there had been any history of sexual abuse of him as a child or adolescent.
9. The AMS decision noted the plaintiff's activities prior to his incarceration and included the enjoyment of riding motorcycles, car racing and pushbikes. The plaintiff is an avid rugby league fan and the plaintiff gave the AMS a history of being engaged with the Department of Community Services a few times as a result of behavioural issues and refusing to attend school. The plaintiff gave his history in a boy's home and foster care and noted that he had been subjected to verbal abuse and bullying.
10. The AMS also noted that which the plaintiff told him as to his schooling, namely, that he failed to complete year six as a result of his disability. The plaintiff can neither read nor write. The plaintiff's schooling included special education classes and he had been suspended "heaps of times" for fighting and not following the direction of teachers.
11. The applicant has never had any long-term relationships, in part as a result of all the time he has spent in prison. At the time of the assessment, the plaintiff had been in prison for close to 2 years.
12. The AMS noted the plaintiff's conduct-disordered behaviours as a child and adolescent, which included stealing; driving stolen cars; engaging in physical altercations; and "just running amok".
13. The applicant had spent some time in juvenile justice centres, the longest period being for six months. The applicant has been in and out of gaol since the age of 18 and, as earlier stated, had spent 10 years of his adult life in gaol. The longest period in gaol is the period of imprisonment at the time of the assessment. That had been for a period of two years. Moreover, the longest period out of gaol, during the plaintiff's adult life has been for a period of 6 to 12 months.
14. The AMS noted the plaintiff's alcohol consumption and use of cannabis from early ages and to the point of occasional alcoholic blackouts. While he had commenced consuming alcohol at age 18 and consuming cannabis at age 15, he had consumed cannabis on a daily basis from 15 until the date of his arrest on the last occasion. The plaintiff had consumed no cannabis during the course of his incarceration.
15. The plaintiff had also consumed amphetamines from the age of about 32. Again, the plaintiff had not consumed amphetamines since his imprisonment. This latest abstinence from drugs and alcohol is the longest period during which he has not consumed illicit substances.
16. As to daily living, the AMS noted his current accommodation and the two correctional centres prior thereto. It also recorded the plaintiff's comment that depending upon the gaol in which he is housed, he has different liberties and opportunities.
17. The AMS noted that the plaintiff informed him that he showered "twice a day"; brushed his teeth "twice a day"; changed his clothes every day; keeps the cell tidy; mops the floor every day; cleans the shower, toilet and sink "everyday"; is not missing meals; and eats three meals a day. The AMS noted that the plaintiff explained that he had to keep his cell spotless "because of the germs".
18. The plaintiff was forced out of his cell at 7:30 AM and spends the time in the yard "talking to [the plaintiff's] mates"; rings his brother; rings his mother; and rings his sister. The plaintiff plays cards and exercises.
19. The plaintiff "lifts weights twice per week for approximately 60 minutes". His training has been limited as a result of the plaintiff having suffered a hernia. The plaintiff runs on a weekly basis for 30 to 60 minutes. The plaintiff has received no visit since his imprisonment and prefers phone calls.
20. The AMS noted the difficulty in trying to assess the plaintiff's capacity for travel. The plaintiff also noted that the plaintiff was in protection and was required to be escorted whenever he is off the yard.
21. Prior to his arrest, the plaintiff was riding a bicycle and catching public transport and the plaintiff told the AMS he would be equally capable of doing those activities currently. The plaintiff rings his mother "basically every day" and his relationship with his mother is "very, very good".
22. The plaintiff also speaks with his brother every day and the relationship there is also very good. The plaintiff also reported to the AMS that he is close to his nieces and nephews and spoke to them on a monthly basis and spontaneously commented to the AMS: "I've got family out there who care about me".
23. Under the same heading, the AMS noted that the applicant is not currently able to be employed because of his detention at the Metropolitan Reception and Remand Centre ("MRRC"), but also noted that the plaintiff would be applying for work once he is transferred back to his usual Correctional Centre.
24. The AMS summarised the injuries and diagnoses in the following passage: "With a reasonable degree of medical certainty, it is the evaluator's opinion [the plaintiff] meets diagnostic criteria in the [DSM-5] for Post-Traumatic Stress Disorder and Intellectual Disability moderate The applicant was assaulted on 26 December 2013 causative of a fractured mandible. As such, the assault would clearly meet Criterion A for Post-Traumatic Stress Disorder. He has gone on to develop re-experiencing phenomena in the form of recurrent distressing dreams, intrusive thoughts and images with associated psychological distress and physiological symptoms of arousal. He has avoidance, noted by avoidance of thinking or talking about the trauma. He avoids dealing with corrective services offices. He engages in a lot of distraction in order to avoid being reminded of the trauma. He has negative cognitions including an inability to trust others, decreased enjoyment of activities and a persistently negative emotional state including depression and anxiety. He has marked alterations in arousal noted by his hypervigilance, exaggerated startle response and insomnia. There were no stressors unrelated to subject injury that could be seen to meet Criterion A for Posttraumatic Stress Disorder and as such I accept that he is Posttraumatic Stress Disorder was caused by the assault on 26 December 2013."
25. The AMS, after dealing with a diagnosis of intellectual disability, which is not as relevant to the current proceedings as the other material recited, noted that the plaintiff's history was internally consistent and consistent with the collateral materials presented for review.
26. The AMS decision then deals with the evaluation of permanent impairment, some of the questions and answers to which are barely relevant, if relevant at all.
27. Under s 10 of the AMS decision, the AMS deals with his "Reasons for Assessment". In the course of that Section the AMS notes that the Post-Traumatic Stress Disorder was caused by the assault on 26 December 2013 and has caused impairment.
28. The AMS also noted that there was no pre-existing psychiatric condition or disorder, but also noted that the plaintiff has an intellectual disability in the moderate range. The AMS then recorded the following: "It is noted that the [plaintiff] was detained in a correctional centre at the time of the assault. He remains incarcerated to the present time. It is noted the [PIRS] utilises examples from a community setting, some of which are particularly difficult to assess in a correctional setting, most notably with regard to his capacity to maintain autonomy. Clearly a correctional centre by its very nature prevents an individual from participating in the usual activities of daily living. In this context, the assessment of whole person impairment has been adjudged according to comparisons with his functioning at the time of the assault."
29. The AMS then deals at length with the report and medical opinion of Dr Oldtree-Clarke of 5 June 2019, including the supplementary report prepared by Dr Oldtree-Clarke, dated 26 July 2019. Separately, the AMS sets out his notes in relation to that the PIRS scale. Those notes are in the following terms: PIRS Category Class Reason for Decision Self Care and personal hygiene 1 He noted he is showering "twice a day". He is brushing his teeth "twice a day" and changing his clothes "every day, I change them". He noted he is in a cell with one other individual. He noted "I keep the cell tidy … every day I mop the room … you have to keep your cell spotless because of the germs". He noted he cleans the shower, toilets and sink "every day". He is eating three meals a day. He is not missing meals. As such, it is the evaluator's opinion taking into consideration the restrictions with regard to his capacity to cook for himself and the like, such is consistent with there being no assessable impairment. Social and recreational activities 2 The applicant noted that he is forced to be out of his cell from 7.30am. He noted he spends the time in the yard "talking to my mates … I ring my brother, I ring my mother, I ring my barrister". He noted he plays cards including what he described as a gaol card game 41 "you've got to call your tricks". He noted he is exercising. He lifts weights twice per week for approximately sixty minutes. He has limited his training due to his having had a hernia. He runs on a weekly basis for thirty to sixty minutes. He noted he has not received any visits since the time of his incarceration. He noted "I prefer phone calls … I told them, just let me do my time". He noted during his previous incarceration his parents were visiting "every weekend". Taking into consideration the considerable restrictions imposed by the correctional centre, such is consistent with no more than a mild impairment. Travel 1 It was clearly difficult to try to assess his capacity for travel. He noted he has never held a drivers licence and is in fact disqualified until 2055. He noted he is able to move around the yard by himself. On the other hand, given he is in protection, he has to be escorted whenever he is off the yard. He noted prior to this arrest his was riding his bicycle or catching public transport. He noted he would be equally capable of riding his pushbike or catching public transport currently. He in fact stated that he is hoping to complete a traffic offenders' course in order to have his disqualification decreased. Using best clinical judgment, based largely upon the self-report of the applicant, there has been no functional change in his capacity for travel and there is no assessable impairment. Social functioning 2 The applicant noted he has phone calls with his mother "basically every day". He noted his relationship with his mother is "very, very good". He speaks to his brother "every day". He described his relationship with his brother as "very good". His brother is in fact going to visit him in two weeks' time in order to introduce the applicant to his new niece. He reported he is close to his seven nieces and nephews, including speaking to them on a monthly basis. He spontaneously noted "I've got family out there who care about me". He reported having had a loss of a number of friendships "a lot of friends called me a dog because of it". As such, given he would appear to have ceased his family visits, there is some evidence of impairment in social functioning. On the other hand, he reported he remains close to his family of origin including his nieces. He acknowledged having lost some friends as a direct result of the assault and reporting the assault. As such, this is most consistent with a mild impairment. Concentration, persistence and pace 2 The applicant noted since he has been at the Metropolitan Reception and Remand Centre, he has been unable to do any study or courses as they are not available. He reported whilst detained at Hunger Correctional Centre up until November 2019, he was attending a "reading and writing class" five days per week. He noted he plays the card game 41 for up to thirty minutes at a stretch including winning "a few times". As such, this is consistent with a mild impairment compared to his premorbid functioning Employability 1 The applicant is not currently able to be employed due to his being detained at the Metropolitan Reception and Remand Centre. He noted however working greater than full-time hours at Long Bay Correctional Centre in the bakery for six months in 2019 and then approximately twenty to twenty-five hours per week at Hunter Correctional Centre in the engineering department welding beds. He denied being the subject of any work performance or disciplinary issues. He noted once he is transferred to Lithgow Correctional Centre, he will again apply to complete employment having previously worked on the sewing machines during a previous detention at Lithgow Correctional Centre. He noted "I'm going to ask for five days per week", which he noted is the maximum allowed at Lithgow Correctional Centre. As per the applicant's report, he has worked to the maximum hours that have been allowed according to the various correctional centres he has been detained at including working greater than full time hours for 6 months in Long Bay Correctional Centre in 2019. Moreover, he reported he believes himself currently capable of completing full time work when he is transferred to his goal [sic] of classification Lithgow Correctional Centre. AS such, there is no assessable impairment

Score Median Class 1 1 1 2 2 2 = 2

Aggregate Score Impairment Total % +1 +1 +1 +2 +2 +2 9 4 %

Decision of the Appeal Panel

1. As stated, the Registrar referred the appeal, dated 25 February 2020, to the Appeal Panel. [6] The appeal was opposed by the defendant in these proceedings, which opposition included a submission that the appeal should not be referred to an Appeal Panel. The decision of the Appeal Panel issued on 18 May 2020.
2. It is unnecessary to set out the detail of the Appeal Panel decision. The Appeal Panel recited the history given by the AMS and noted that, from its preliminary review, determined that it was unnecessary for the plaintiff to undergo further medical examination. The reasons for it not being necessary to undergo further medical examination were, it was said by the Appeal Panel, given in the decision on the appeal.
3. The Appeal Panel then set out the procedures on appeal, as they understood it, including a reference to the judgment of the Court of Appeal in Campbelltown City Council v Vegan [7] and noted that the Appeal Panel was obliged to give reasons; where there is a dispute of fact it may be necessary to refer to evidence from other material; that necessity may vary from case to case; where more than one conclusion is open, it will be necessary explain why one conclusion is preferred; and the reasons need not be extensive or provide a detailed explanation of the criteria applied by medical professionals in reaching a professional judgement.
4. The Appeal Panel then noted and/or recited a number of other judgments of the Court, either at first instance or in the Court of Appeal.
5. The Appeal Panel decision then went through each of the categories; remarking where there were grounds of appeal; recited the finding of the AMS; and commented on that finding. In relation to self-care and personal hygiene, after reciting the AMS at table 11.8, the Appeal Panel said: "As noted above the AMS has approached the rating for each Category in the most effective manner available. In the circumstances the only practical approach is, where necessary, to substitute the examples from everyday life in the SIRA Guidelines with reference points from Mr Stines' institutional life. The AMS has not applied incorrect criteria but has considered carefully how relevant changes within the institutional setting have affected Mr Stines' functioning in the category. The history taken by the AMS regarding this Category is clear, and he explains his clinical opinion. The Panel discerns no error."
6. The same approach was taken by the Appeal Panel in relation to social and recreational activities. After reciting the PIRS comments of the AMS in relation to Category 2, the Appeal Panel said: "This view was open to the AMS. As with the previous Category discussed, the AMS has not based the assessment on incorrect criteria and there is no demonstrable error on the face of the Certificate."
7. The same or similar approach and reasoning was taken in relation to the assessment in relation to Travel; Social functioning; and Employment. After dealing with each of the categories in similar or identical terms, the Appeal Panel noted that, for the reasons given, it discerned no demonstrable error on the face of the Certificate; and the ground of incorrect criteria had not been made out.

Consideration

1. As is obvious from the extract from the Guidelines, the task of an AMS is, pursuant to cl 1.6 of the Guidelines, to assess the plaintiff on the basis of his medical history and all available relevant medical information, as they present on the day of the assessment. It is obvious from the extracts of the decision of the AMS that the AMS had some difficulty because of the effect of incarceration on an assessment of the categories in the PIRS.
2. The foregoing is not to suggest that the AMS dealt with the difficulties inappropriately or wrongly. However, it cannot be said that the AMS failed to take into account the circumstance of the plaintiff's incarceration.
3. The AMS decision is replete with references to the plaintiff's incarceration and the necessity to adjust the examples, as used in the PIRS scale, to account for the measurement of the impairment suffered by the plaintiff, to be measured on the basis of the history the plaintiff had given and the documents provided to the AMS.
4. It is unnecessary to repeat significant aspects of the AMS decision. It is important to refer to that extract, provided above and given by the plaintiff, of his capacity and his conduct.
5. The AMS sets out the history given by the plaintiff at length. It includes an explanation by the plaintiff as to why he was not in a full relationship as being because of the time he had spent in gaol. It includes a continuingly good relationship with his mother, brother and the remainder of his extended family.
6. Most importantly, the history given by the plaintiff to the AMS and on which the AMS based his assessment, which is extracted above, included: the plaintiff showering twice a day; brushing his teeth twice a day; changing his clothes every day; keeping his cell tidy; mopping the room; keeping the cell spotless because of the germs; cleaning the shower; cleaning the toilets; cleaning the sink, each and every day and eating three meals a day.
7. In the foregoing, we can assume that the eating of meals is a regulated and enforced activity in the prison system. But there is nothing in the history given by the plaintiff to the AMS to suggest that the twice-daily showering and the spotlessness with which he kept his room was an enforced activity. The Court can accept that there would be regulations for showering. However, I do not assume, and the AMS did not have before him, any suggestion of regulations that required a shower twice a day, or the brushing of teeth twice a day. Further, there was, before the AMS, no suggestion of this motivation being regulated or enforced. Moreover, the history given by the plaintiff includes the playing of cards with other inmates; exercising, including weight training and running. None of those, on the history given, are enforced activities. Rather, the plaintiff was self-motivated in relation to them.
8. The history given by the plaintiff also notes motivation for work, not as a result of any regulation or enforcement. There is similar motivation in relation to education, study or courses.
9. The AMS and, to a lesser extent, the Appeal Panel were faced with a difficult task. Nevertheless, the AMS approached that task mindful of the difficulties and bearing in mind that the assessment had to accommodate the regulatory system in force in prison and the inability to measure, by ordinary standards, daily living activities.
10. It seems that the AMS paid particular attention to the capacity of the plaintiff to self-motivate and undertake activities that were not regulated and were not enforced. This, it seems, allowed the AMS to assess the plaintiff on a basis that sought to determine that which would have been disadvantageous and/or disabilities or impairment suffered, if the plaintiff were outside of the correctional facility.
11. The difficulty of the task, facing the AMS and the Appeal Panel, is not to be underestimated. It may well be that, acting reasonably, a different AMS might come to a different assessment. Acting reasonably, Dr Oldtree-Clarke came to a different view.
12. But a difference of opinion measured in the PIRS categories is not, in and of itself, an error of law or an error of jurisdiction. It is not a mis-categorisation of an activity; nor an error of law on the face of the record.
13. Judicial review, with which this Court is dealing, is a process which declares and enforces the law. The Court determines the limits of the power of the decision maker and governs the exercise of that power. If, as a consequence of declaring the power and correcting legal error, administrative injustice is corrected, that is an ancillary aspect of the process of judicial review. [8]
14. It is most important that error of law or error of jurisdiction be distinguished from merit review. The Court's function is not to deal with the merits of the decision which is sought to be impugned. Further, it is important that that distinction be understood and that there is adherence to it otherwise the Court is "apt to encourage a slide into impermissible merit review". [9]
15. The difficult task upon which the AMS and the Appeal Panel embarked was understood by each of them. Each decision-maker applied the correct test.
16. There is no consideration of irrelevant material; nor is there a failure to consider relevant material. Each decision-maker has asked itself the right question and there is no misapprehension of the nature of the limits of the power of the decision-maker or denial of procedural fairness.
17. No jurisdictional error has been established. Each of the decisions is rational, logical and reasonable. Each of the outcomes was reasonably available to the decision-maker.
18. Further, no error of law is disclosed on the face of the record, which, for this purpose, includes the reasons for each decision. Further, even if the material to which the defendant objected is taken into account, it does not disclose error of law or jurisdictional error.
19. As a consequence, the application for judicial review must be dismissed. I should only add that nothing in the foregoing is intended either to criticise or to support the findings of fact and/or the diagnoses and assessments that have been made, as a basis of fact, by either the AMS or the Appeal Panel. Such a view, if the Court had one, is wholly irrelevant to the process now before the Court.
20. The only additional issue is that the complaint of the plaintiff is understandable and reasonable, not because of any error by either the AMS or the Appeal Panel, but because of the difficulty of the factual assessment that was required in the absence of evidence of the plaintiff's conduct or capacity outside the institutional setting. It may well be that, on release, further evidence will be available that discloses factual error in the assessment and which could form the basis of a subsequent further appeal under s 327(3)(b) of the 1998 Act, subject, of course, to the leave of the President under s 327(5).
21. The Court makes the following orders: 1. Summons dismissed; 2. The plaintiff shall pay the defendant's costs of and incidental to the proceedings.

Endnotes

1. Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 327(3)(c) and (d).
2. Workplace Injury Management and Workers Compensation Act 1998-2021, s 327(4); the 1998 Act was amended significantly effective 1 March 2021, which, relevantly, provided that an application of this kind would be made to the President of the Commission.
3. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 460; [2013] HCA 43.
4. New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 19 June 2001 at 14772.
5. Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323; [2001] HCA 30 at [5], per Gleeson CJ.
6. Court Book, vol 1, p 93.
7. Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284.
8. Attorney-General (NSW) v Quin (1990) 170 CLR 1; [1990] HCA 21 (Brennan J).
9. Swift v SAS Trustee Corporation (2010) 6 ASTLR 339; [2010] NSWCA 182 (Basten JA). DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 April 2021