Legislation cited: Motor Accident Injuries Act 2019 ss 8, 9, 10, 38, 65, 66, 68, 134, 138, 140, 186, 188, 189, 190, 191, 192, 193, 197, 199

Subordinate

Legislation cited: Motor Accident Injuries (Internal Review) Guidelines 2019

Cases cited: Australia Associated Motor Insurers Limited v Motor Accidents Authority of NSW [2010] NSWSC 833

Rodriguez v Telstra Corporation Limited [2002] FCA 30

1. The respondent's application to present additional information or evidence dated 12 May 2021 is dismissed.

2. The respondent's decision to reject liability for defined benefits is set aside and the matter is remitted to the respondent for reconsideration in accordance with the Motor Accident Injuries Act 2019 (MAI Act) and the relevant Guidelines.

3. The same provisions of the MAI Act and Guidelines apply to the reconsideration referred to in order 2 and the time same time periods for making the reconsideration decision apply as if order 2 were an application for internal review of the decision to reject liability received on the day after the date of these orders.

1. This is an application pursuant to section 193 of the Motor Accident Injuries Act 2019 (the MAI Act) seeking an external review of a decision by AAI Limited rejecting liability for defined benefits under the Act in respect of injuries sustained by the applicant in May 2020.

2. At about 4pm on 14 May 2020 the applicant left his residence in his motor vehicle. Around 16 minutes later, a witness described how the vehicle:

[left] the road and proceeded up the hill a short distance; The vehicle rolled back downhill and came to rest in a gulley.[1]

3. It is not in dispute that the applicant suffered a cardiac arrest immediately prior to the vehicle leaving the road, and that was the cause of the accident.

4. Passers-by aided the applicant at the scene. He was transported to hospital by ambulance. His recovery was complicated, and he spent a period in ICU.

6. The applicant's wife lodged with the respondent an application dated 29 July 2020 for defined benefits under the MAI Act.

7. On 8 September 2020 the respondent accepted liability for the defined benefits application under section 65 of the MAI Act. The respondent sent the applicant a letter confirming that he was eligible for treatment and care benefits and interim income replacement payments, but that further evidence was required to calculate the applicant's gross pre-injury weekly income (initial decision).

8. On 3 December 2020 the respondent advised the applicant that liability for defined benefits had been rejected (original decision). This decision provided:

The available evidence confirms that your injuries did not result from the motor vehicle accident of 14 May 2020 and therefore GIO is rejecting liability for your defined benefits for the following reasons:

1. The Motor Accident Injuries Act 2019 ACT ("the Act") does not apply to this claim because section 7 of the Act states that the Act only applies to injuries that 'result from a motor accident';
2. You are not considered to be a 'person injured in a motor accident' because your injuries are not 'as a result of a motor accident'; and

1. Defined benefits are not payable because section 38 of the Act states that defined benefits are only payable by the Insurer if a person sustains a personal injury as a result of a motor vehicle accident.[2]

9. On 21 December 2020 the applicant requested an internal review of the rejection decision.

10. On 7 January 2021 the respondent provided an internal review notice to the applicant which upheld the original decision (the internal review decision). The decision provided:

Your injuries are not considered to have been caused by the motor accident but from a medical episode prior to the motor accident.[3]

11. The internal reviewer also set out her reasons, which are considered below.

12. The applicant's wife, on behalf of the applicant, applied on 1 February 2021 to the ACT Civil and Administrative Tribunal (ACAT) for external review of the internal review decision (the applicant's ACAT application).

13. This applicant's ACAT application was set down for hearing on 15 June 2021. Both parties were represented by Counsel. Counsel made submissions and drew the Tribunal's attention to various documents. No witnesses were called.

14. At the hearing the Tribunal considered the respondent's Application to present additional information or evidence dated 12 May 2021 (additional evidence application) seeking leave, pursuant to section 197 of the MAI Act, to admit an additional report prepared by Dr Thomas Gibson, a biomechanical engineer, prepared 7 May 2021 (Dr Gibson's report).

15. The issue of the respondent's additional evidence application and the applicant's ACAT application were reserved for decision.

16. At the hearing, both parties agreed that, in relation to the applicant's ACAT application, the question before the Tribunal was whether the internal review decision was 'correctly made'.

1. what was the externally reviewable decision was- i.e. whether it was the rejection decision or the internal review decision; and
2. what kind of review the tribunal should conduct, and whether it should be a merits review or a review that is more in line with an administrative review or an 'appeal'.

18. Section 8 of the MAI Act defines 'a person injured in a motor vehicle accident' as follows:

8 Meaning of person injured in a motor accident

In this Act: person injured in a motor accident means an individual who sustains a personal injury as a result of a motor accident.

Note Injured person means a person injured in a motor accident

19. Section 9 defines 'personal injury' as follows:

personal injury _means bodily injury and includes - _

(b) damage to spectacles, contact lenses, dentures, hearing aids, crutches, wheelchairs, artificial limbs and prosthetic devices; and

Examples - psychological or psychiatric injury mental or nervous shock

20. Section 10 of the Act defines 'motor accident' as follows:

(a) involves the use or operation of a motor vehicle; and

(ii) someone or something collides with the motor vehicle; or

(iii) someone takes action to avoid colliding with the motor vehicle; or(iv)the motor vehicle runs out of control.

21. Section 38 of the MAI Act establishes when a person is entitled to defined benefits for a personal injury sustained as a result of a motor vehicle accident:

38 Person injured in motor accident entitled to defined benefits

If a person sustains a personal injury as a result of a motor accident in the Territory, defined benefits are payable in relation to the personal injury.

22. Section 65(1) of the MAI Act requires the insurer to give an applicant a notice within 28 days of receipt of the application advising whether it accepts liability for the defined benefits application. Section 65(3) provides that:

_(3) If the relevant insurer does not accept liability for the defined benefits, the relevant insurer must give the applicant either - _

_(a) a written notice (a transfer notice) stating - _

(i) that the insurer does not accept liability for the defined benefits because another insurer is liable; and

(ii) that the application has been given to another insurer; and

(iii) the name and contact details of the other insurer; or

Note Transfers of applications are dealt with in s 69.

_(b) a written notice (a rejection notice) stating - _

(i) that the insurer does not accept liability for the defined benefits; and

(iii) how the applicant may dispute the decision.

66 Accepting liability - payment of defined benefits

(1) If a relevant insurer accepts liability for defined benefits, the insurer must pay the applicant the defined benefits to which the applicant is entitled.

24. Section 68 provides that the insurer who makes a decision under section 65 it may later change its mind:

68 Insurer may change decision about accepting or rejecting liability

(1) A decision by a relevant insurer to accept liability for defined benefits does not prevent the insurer from making a later decision to reject the liability.

Note Section 65(3) applies to a later decision to reject liability.

(3) A decision by a relevant insurer to reject liability for defined benefits does not prevent the insurer from making a later decision to accept the liability.

25. If under section 68 of the MAI act an insurer changes their decision to a decision to reject liability, they must give the applicant a notice under section 65(3) of the MAI Act.

26. A decision made under section 65(3) is an 'internally reviewable decision' as per section 186 and schedule 1, part 1.1, column 3 of the MAI Act. An internal review is conducted by the insurer in accordance with Part 2.10 of the MAI Act. The internal reviewer may consider information that was not provided before the decision being reviewed was made.[4]

27. Pursuant to section 191, the internal reviewer may affirm, amend or set aside a decision and make a substitute decision. In this case, the internal reviewer affirmed the original decision.

28. Section 188 provides that the MAI guidelines may make provision for internal review, and the conduct of the review must comply with the Motor Accident Injuries (Internal Review) Guidelines 2019 (the Guidelines). Compliance with the Guidelines is an issue in this case.

29. The applicant submits that the respondent applied the wrong test when it rejected the applicant's application, both at the time of the rejection decision and on internal review.

30. The applicant says that the decision under review was not the original decision made under section 65, but rather a subsequent decision under section 68 to 'change' its decision and reject liability. The applicant says that, having accepted liability under section 65 of the MAI Act, the applicant must have had evidence upon which it can change its opinion, and it did not.

31. The applicant's case hinges on the operation of section 38 of the MAI Act:

If a person sustains a personal injury as a result of a motor accident in the Territory, defined benefits are payable in relation to the personal injury.

32. The applicant submits that there is no dispute that he was involved in a motor accident in the Territory, and as such all he must prove to satisfy section 38 is that he suffered a 'personal injury', as defined in section 9 of the MAI Act. It is then a matter for the applicant to establish that he is entitled, to payment for defined benefits in relation to 'a personal injury sustained as a result of a motor vehicle accident' (section 66 of the MAI Act).[5]

33. The insurer's decision to reject the claim pursuant to section 65 has denied the applicant the opportunity to establish that he is entitled to defined benefits in respect of an injury sustained in the accident, notwithstanding that he may have suffered other injuries as a consequence of the cardiac arrest for which defined benefits are not payable.

34. The applicant further submits that in making the rejection decision, and when reviewing it, the insurer concentrated too greatly on various other injuries caused by the cardiac arrest and the surrounding circumstances, including the fibrillation. By concentrating on the injuries that were clearly not caused by the accident, the applicant says, the respondent had reached the conclusion that no injuries were caused by the accident. The applicant contends that there is no medical justification for that conclusion, which was reached by the internal reviewer, alone, who drew impermissible inferences from medical reports. Accordingly, the applicant submits, the application was rejected without proper basis.

35. The applicant also says that the internal review decision was procedurally flawed because it did not comply with the Guidelines, which envisage a more consultative process that actively engages the applicant.

36. First, the applicant points to clause 4.2.1 of the Guidelines, which provides:

An insurer that receives an application for internal review must give the applicant a confirmation notice for the application within 3 business days of the application being received...

37. Clause 4.2.2 of the Guidelines then sets out the kind of information that must be included in the notice, including the decision or elements of the decision covered by the application. There is, the applicant submits, no evidence before the Tribunal of this being done.

38. Clause 4.4 then sets out how the internal review is to be conducted. The emphasis is on informality, but the process:

...is to be conducted in a manner that best supports the main objects of the MAI Act having regard to the personal circumstances and any special needs of an applicant ...This may include a document review, informal discussions with an applicant, a teleconference, a video conference or a face to face meeting, as appropriate.

39. In terms of the approach to be taken by the Tribunal, the applicant's representative submitted that the Tribunal's role is to focus on the correctness of the decision, not on a merits review:

The question then is what is a correct approach for the determination of this issue, and we say the focus of the enquiry the tribunal is required to undertake is on the decision itself, and that decision is to be reviewed to see if it is correct, and when we talk of correct, we mean in a sense that it is properly decided by the decision-maker internally with the insurer, and is made according to law and to questions of fact.

So that process ... engages these notions of administrative review, including concepts of procedural fairness, a requirement to give proper reasons, a requirement to apply the correct legal test in arriving at the decision, and in terms of the question of fact to engage in the correct fact-finding process...[6]

40. The applicant points to the capped costs and the possibility of an applicant with a common law claim having to run a full case in both the tribunal and a court as a reason why the MAI Act could not reasonably contemplate a full merits review. Rather, when a decision is incorrectly made, and the evidence is not available, the matter is more appropriately remitted.

42. First, the respondent advanced a technical argument that the decision under review in this case is not the internal review decision, but the rejection decision.

43. In support of this argument, the respondent points out that Schedule 1, Part 1.2 of the MAI Act lists the ACAT reviewable decisions. An internal review decision made under section 191 is not listed in that schedule. Moreover, while the internal reviewer may "set aside a decision and make a substitute decision", pursuant to section 191(1)(a)(iii), there is no provision that provides for affirmed or amended decisions to take effect as the original decision, as there is, for example, in section 199 when the Tribunal makes a decision on external review.

44. The second argument concerns the onus of proof and the operation of sections 65 and 68 of the MAI Act. The respondent's counsel submitted that section 38 puts a focus on causation, and particularly the need for the applicant to establish an injury caused by a motor vehicle accident:

this scheme is one in which a claimant, an applicant, has to demonstrate an entitlement to receive defined benefits and there operates differently from a scheme ...under the Workers Compensation Act, which creates the starting point as a presumption of liability for a person injured at work, and it is then for the insurer to reject the claim, if it has a proper basis to do so. [T]hat's not this scheme.[7]

45. The respondent submits that what can be drawn from the evidence before the decision‑maker in this case is that there was a potential other cause for all the injuries, and that, in those circumstances, the decision‑maker could not be satisfied that the injuries were caused by the motor accident, and hence the decision must be to deny liability. The decision was therefore correct, but may be reviewed or remade if additional evidence comes to light.

Issue 1: The respondent's additional evidence application

46. The respondent sought leave to admit Dr Gibson's report. That report was requested by the insurer prior to making the rejection decision, but was received by the insurer on or after 7 May 2021. As that was after the finalisation of the internal review decision on 6 January 2021, the respondent needs leave under section 197 of the MAI Act before it is admitted.

47. Subject to section 197(3), section 197(2) of the MAI Act provides that in deciding an external review application, the Tribunal must "only consider the information that was available to the decision-maker when the decision was made"

(3) However, the ACAT may, on application by a party, give the party leave to present information or evidence that was not reasonably available to the decision-maker when the decision was made.

a medical report for an examination undertaken, but not reported on, when the decision was made

49. The reasoning behind this provision is set out in the Explanatory Statement:

In deciding an application ACAT must either affirm, amend or set aside the decision and: substitute another decision in its place; or remit the matter back to the insurer. As the application is not a merit review, only a review on questions of law and fact, ACAT can only consider information that was available to the insurer. However, ACAT may give permission for a person involved in the external review to present information that was not reasonably available at the time the insurer made the decision. This may apply in the circumstances where a person has had a medical examination conducted however, the report was not available before the decision was made.

A regulation may prescribe conditions for allowing additional information or evidence that can be provided to ACAT. This provision has been inserted to provide ACAT with sufficient flexibility and the ability to respond to circumstances that arise as external review processes are formalised by the ACAT.

50. Stated briefly, the intention appears to be to encourage the parties to gather all the pertinent information before a decision is made. This is to discourage parties 'building a case' for the purposes of the Tribunal hearing, and is consistent with the nature of the review the tribunal is (according to the Explanatory Statement), intended to undertake, which is clearly stated to be a review 'on questions of law and fact' only (i.e. 'only' a review on questions or law and fact and not a merits review).

51. Dr Gibson's report goes to the factual question of causation. He is a biomechanical engineer, and his report considers whether certain injuries could be caused by the accident in this case. The applicant objects to the respondent's application to rely on the report.

52. I am not satisfied that the information in this report was not available to the respondent at the time the internal review decision was made. Nor am I convinced it was not reasonably available to the respondent before the rejection decision was made. A report from ProCare dated 15 December 2020 raises the possibility that the accident did not cause any of the applicant's injuries. Dr Gibson was briefed, prior to this, on 1 December 2020. The respondent could have obtained Dr Gibson's report before making the rejection decision and the internal review decision. The respondent nonetheless made the decisions prior to receiving the report. Additionally, the applicant is not now able to respond to the report, without the admission of further evidence.

53. Accordingly, the respondent's application to present additional information or evidence dated 12 May 2021 is dismissed.

54. As noted above, the respondent submits that, by reason of a 'lacuna' in the MAI Act, it is the 'original decision', being the rejection decision made on 3 December 2021, and not internal review decision, that is the 'ACAT Reviewable decision' for the purposes of section 192 of the MAI Act.

55. Which decision is under review is significant, because of the operation of section 190 of the MAI Act:

190 Internal review - information to be considered

(1) The applicant must give the insurer the information the insurer requests and reasonably requires for the internal review.

(2) An internal reviewer may consider information that was not provided before the decision being reviewed was made.

56. If it is simply the original rejection decision that is under review, then it is presumably the evidence that was before the decision-maker who made the rejection decision that must be considered, rather than that which may have been sought for the purposes of the internal review decision. This could have a significant impact on the material before the Tribunal.

57. In terms of those matters that are externally reviewable by the Tribunal, 'ACAT Reviewable decision' is defined in section 192 to mean:

192 Meaning of ACAT reviewable decision - div 2.10.3

ACAT reviewable decision _means a decision of an insurer - _

(a) mentioned in schedule1, part 1.2, column 3 under a provision of this Act mentioned in column 2 in relation to the decision; or

Note Power to make a statutory instrument (including a regulation) includes power to make different provision in relation to different matters or different classes of matters, and to make an instrument that applies differently by reference to stated exceptions or factors (see Legislation Act, s 48).

58. Schedule 1, Part 1.2 sets out the decisions that are reviewable by the Tribunal. There are some three pages worth.

59. The schedule does not make any reference to an internal review made under section 191. Nor does it contain any express provision that states that an affirmed or amended internal review decision takes effect as the original decision. This is in contrast to, for example, section 199 of the MAI Act which sets out what happens where the ACAT makes an order in relation to a decision. Section 199(2) provides:

(a) is taken to be the decision of the decision-maker who made the ACAT reviewable decision; and

(i) for an order relating to an application for external review of an internally reviewable decision - on the day the internally reviewable decision was made, unless the ACAT otherwise orders; and

(ii) in any other case - on the day the externally reviewable decision was made, unless the ACAT otherwise orders.

60. As such, there is, arguably, a question of interpretation, in the sense of resolving an ambiguous or obscure provision of the Act.[8]

61. Section 139(1) of the Legislation Act 2001 (Legislation Act) provides:

(1) In working out the meaning of an Act, the interpretation that would best achieve the purpose of the Act is to be preferred to any other interpretation.

62. Section 140 provides:

In working out the meaning of an Act, the provisions of the Act must be read in the context of the Act as a whole.

63. Looking at the MAI Act "as a whole", it is apparent that it deals with the right of review in several ways. In most, but not all, instances an applicant must first apply for internal review of a decision by the insurer before they can apply to the tribunal for external review. Some decisions by the insurer are not externally reviewable. Some decisions that are externally reviewable in the tribunal are not subject to an insurer internal review. In some instances, the tribunal is the primary decision‑maker.

64. In relation to the matters the subject of this application, an initial decision to accept liability pursuant to section 65 of the MAI Act was made on 8 September 2020, and that decision was then 'changed' by the insurer to a rejection decision on 3 December 2020, pursuant to section 68 of the MAI Act. As required, the respondent sent a section 65(3) notice which gave the applicant the opportunity to seek internal review of the rejection decision. The applicant applied on 21 December 2020 for internal review of the rejection decision. The internal reviewer then conducted the internal review. On 7 January 2021 the internal reviewer made the decision, the internal review decision, to affirm the rejection decision. The respondent sent an internal review notice to the applicant, advising of their right to an external review.

65. Under the MAI Act, the role of the internal reviewer is to make a decision to affirm, amend or set aside and substitute an internally reviewable decision. The internal review decision takes effect on the day the internally reviewable decision was made (section 191(3) of the MAI Act), thereby displacing the internally reviewable decision from that date. Significantly, unlike the tribunal (e.g. section 197(1)(c)(ii) and section 19(2)(b)), the internal reviewer is not able to make a decision to remit the decision, nor is the internal reviewer able to vary the date upon which the internal review decision takes effect. The notice advising of the decision must include information on how to apply for external review.

66. On this basis, I am satisfied that this the internal review decision, once made, is 'the decision' of the insurer, and it substitutes for the original decision. As such, it becomes the externally reviewable decision (externally reviewable decision) for the purposes of Item 2 or, probably more appropriately, Item 3 of Schedule 1 Part 1.2 of the MAI Act.

67. In any case, to read the external review provisions in the MAI Act as requiring a review of the original decision would produce in an absurd result. The MAI Act provides that the internal reviewer may have regard to new evidence,[9] and the applicant is required to give the insurer any information requested which is reasonably required for the internal review. The internal reviewer may consider additional information which was not before the original decision maker.[10] This is particularly important, because the Tribunal must grant leave for evidence that was not before the internal review decision-maker to be admitted on external review.[11] This could mean that evidence that which was before the internal reviewer would not be able to put before the external reviewer, other than in the narrow circumstances where leave is granted under section 197(3). That would put the Tribunal in a very difficult position. It would also mean that the decision that which was operative, pursuant to section 191(3), is not the decision under external review, nor would it be the decision replaced by the Tribunal's decision under section 199. That is an absurd result, and one that is clearly inconsistent with the purpose of the Act. An interpretation that would better reflect the purpose of the Act is to be preferred[12].

68. I note for completeness that section 194 of the MAI Act deals with a situation where an internal review decision is required, but not made. Relevantly section 194 describes a situation where an applicant may apply for external review of an internally reviewable decision. Section 194 does not apply in this matter.

Issue three: Were the Guidelines complied with?

69. As set out above, the applicant says that the internal review decision is fundamentally flawed because it did not comply with the Guidelines.

70. The Guidelines suggest that the process should involve some degree of consultation with the applicant or their representative, or at least an opportunity to gather and present any additional evidence, particularly in a circumstance where the insurer is considering reversing a decision to accept liability for defined benefits.

71. There is no evidence of the internal reviewer having engaged with the applicant at all before making an internal review decision as required by the Guidelines. There is no mention of the internal reviewer having consulted with the applicant, or his wife, or sought input from them, during the internal review decision-making process in the internal review decision.

72. The respondent did not address these issues before the Tribunal.

73. Accordingly, it appears - and I cannot go any further than that - that there may have been procedural deficiencies in the process. I cannot be satisfied that the Guidelines were complied with, as required by section 188(2) of the MAI Act.

74. What follows the identification of a procedural failings is determined by the nature of the review. Procedural flaws may sometimes be remedied on a merits review by remaking the decision and ensuring, for example, that natural justice is given, while in an appeal or 'rehearing' there may be a basis for remitting the matter. As such, this issue goes directly to the question of what the Tribunal is being asked to undertake. The applicant submits that the external l review is more in line with an administrative review, and therefore remission is appropriate. I will come back to that later. First, however, I will consider whether the decision to reject liability is supported by the evidence before the Tribunal.

Issue four: The medical evidence before the internal reviewer

75. It is not in dispute that the applicant suffered a cardiac arrest at a proximate time to the accident. It is also not in dispute that the accident involved the applicant's vehicle leaving the road and coming to rest in a depression near the verge. It does not appear to be in dispute that the cardiac arrest was the cause of the accident. It does not appear to be in dispute that the applicant sustained injuries caused by the cardiac arrest, or the treatment that followed, and that those injuries do not relate to the accident. What is in dispute is whether any injuries were caused, or may have been caused, by the accident.

76. The medical reports that were before the original decision-maker were those prepared by the applicant's general practitioner, Dr Alberic Rozario. Dr Rozario provided two reports that suggest that the motor vehicle accident was a consequence of the applicant having suffered a cardiac arrest while driving. These are:

(a) A Motor Accident Report on 24 July 2020 in which he reported "ventricular fibrillation resulting in MVA - hypoxic brain injury at hospital - went into a coma and was in ICU".

(b) A Fitness for Work certificate dated 29 July 2020 diagnoses "low speed MVA after out of hospital ventricular fibrillation arrest".

77. Additionally, a medical certificate for workers compensation dated 31 August 2020 diagnosed "motor vehicle accident caused by abnormal cardiac rhythm".

78. The internal reviewer had the applicant's medical records, including the clinical notes and discharge summaries.

79. Medical imaging suggests he suffered rib fractures, which have healed, and there is some dispute between the parties as to whether these were pre-existing, or caused by the accident or resuscitation.

....your motor accident has been referred to as a low speed one, and therefore on the balance of probabilities the writer considers the force required for such an injury a fracture to be sustained as a result of hitting the steering wheel, for example, would not have been sufficient to cause such an injury.[13]

81. While in hospital the applicant suffered seizures, pneumonia and required a tracheotomy, and his recovery was further complicated by a GI Bleed from a chronic gastric ulcer.

82. Having regard to the totality of that evidence, I accept that on the balance of probabilities, the applicant suffered a cardiac arrest, which preceded a low speed accident during which the vehicle left the road and came to a stop in a depression beside the road. The opinion of Dr Rozario, supported by the accompanying notes, indicate that the majority of the injuries suffered by the applicant were as a consequence of the cardiac arrest - including the hypoxic brain injury, seizure, the gastric bleed and the coma.

83. There are, however, other injuries, including rib injuries, splenic injury, and knee injuries. The discharge summary presents an explanation for many of those, and it may be that they are attributable to the cardiac arrest and the following medical treatment. However there is no diagnoses or medico-legal report that deals comprehensively with the issue of causation for all injuries.

84. This raises the question of what inferences the decision-maker could draw from the material, and who bore the onus of proof.

85. The applicant says the way in which the internal reviewer appears to have drawn conclusions, based on medical reports, without disclosing their intention to do so to the applicant, amounts of a breach of natural justice.

86. The applicant quotes the case of Australian Associated Motor Insurers Limited v Motor Accidents Authority of NSW [2010] NSWSC 833 (AAMIL v MAA). That case involved a claim for administrative review on a decision on the basis that the claims assessor acted beyond jurisdiction by denying the parties procedural fairness by conducting their own research into an issue without giving the parties an opportunity to consider the information obtained, to adduce evidence and to make submissions about it. The applicants says the internal reviewer in this matter acted comparably, by drawing their own conclusions from the medical notes about the cause of all the applicant's injuries.

87. The respondent, on the other hand, submits that the above reasoning is not relevant, because the internal reviewer is not required to make positive findings about the cause of injury, or their symptomology, but rather is concluding that, on the evidence before them, they simply cannot be satisfied that any injury was caused by the accident. The threshold question of causation was not met.

88. AAMIL v MAA seems an unusual case, because the reviewer had regard to Wikipedia to inform himself about Complex Regional Pain Syndrome. There was no relevant medical evidence, and the reviewer did not seek submissions from the parties. The Court observed:

23. It is possible that the material which the claims assessor obtained was completely accurate but in view of the disclaimers published by the service, there seems to be a substantial risk that it contained errors. It seems to me that if the claims assessor had informed the parties that he was informing himself by that means, the parties would have been entitled to and would have wished to make submissions about whether the information derived from that source was reliable and to put before the claims assessor evidence from the medical practitioners they had qualified.[14]

89. This case is not of that nature. The internal reviewer confined themselves to the medical evidence. However, the internal reviewer did draw conclusions from the material about medical matters. So much is reflected in their conclusion that:

...the medical evidence on hand is sufficient to support the contention that you were not involved in, by legislative definition, a motor accident.[15]

90. What the internal reviewer was required to do was consider whether there was evidence upon which they should set aside the decision and "make a decision to accept liability".[16] In making this decision, it seems that there is merit in both the applicant's argument that the internal reviewer needed to have sufficient information to change their decision, and find that the applicant was not injured in motor vehicle accident, and also in the applicant's position that the test must still be one of causation, and the starting point is that the evidence must establish causation, not disprove it, and the respondent may change its decision if the evidence no longer satisfies a test of causation.

91. The Guidelines require that an internal reviewer has the relevant skills, experience, knowledge, training and capacity to undertake the review and make a decision.[17] Clearly, they are expected to apply a degree of judgement, based on those attributes, when making a decision. Additionally, internal reviewers must act with as little formality as possible, and act expeditiously. The reviewer must consider the evidence and apply discretion.

92. Accordingly, it would be consistent for the internal reviewer to conclude that they could not be satisfied, where there is no evidence, that the applicant had suffered an injury in the accident. However, it is another matter to conclude that the applicant was not injured in the accident at all, such as was the basis for the decision to change the original decision and reject liability. Granted, it is very hard to prove a negative, but there was no basis to do so here.

93. It was open to the internal reviewer to seek further information, as they did do, but they did not have the report of Dr Gibson when making the decision and made it without that information. Alternatively, were they to make the decision beyond the opinion expressed in the expert reports that they already had, then procedural fairness required that it be disclosed and the applicant be given an opportunity to consider and respond to it.[18] This does not appear that this was done. Indeed, there is little evidence before me of engagement with the applicant or his representatives at all. This is inconsistent with the requirements in the Guidelines.

94. The Tribunal's role is to consider whether there has been an error of fact or law. The applicant has suggested this is more in the form of an administrative review, akin to the approach the Tribunal would take on an appeal. The respondent submits the Tribunal should conduct a true merits review. The language of the section is perhaps unhelpful, but the explanatory statement[19]is clear, as least in so far as it reflects the intention.

95. In any case, this matter can be decided on the basis that there was an error of fact or law.

96. The insurer could have obtained a medical report prior to making either the rejection decision or, at least, affirming it on internal review. They did not do that. Instead, the internal review decision‑maker drew their own conclusions, opining that there was no evidence of any injury caused by the accident. There was no basis to conclude this on the material before the decision-maker at the time the decision was made.

97. It would also appear that the conclusion was reached without consulting with the applicant.

98. The applicant says that the appropriate thing for the Tribunal to do is to set aside the decision and remit the matter for reconsideration by the insurer. I agree. I will make an order, pursuant to section 197(1)(c)(ii) of the MAI Act, that the original decision of 7 January 2021 is set aside and the matter is remitted to the insurer for reconsideration of the insurer's decision to reject liability for the applicant's defined benefits application.

99. The respondent is to comply with the MAI Act and Guidelines when undertaking the reconsideration, as if the reconsideration were an internal review under section 191 of the MAI Act. The review is to be undertaken by the respondent as if it were an internal review to commence on the day after the date of these orders.

100. Having regard to analysis of the process above, the resulting legal situation will be that liability had been accepted, albeit there is no finding that defined benefits are payable. The insurer may properly consider the report of Dr Gibson, and any submissions made by the respondent, in considering both whether to outright reject liability under section 65, or in considering any claim for treatment and care or income replacement expenses. The applicant may respond to it and submit any further evidence he considers appropriate. The question should be asked of the applicant's medical practitioner as to whether any injury was likely to have been sustained because of the motor vehicle accident, rather than the cardiac arrest.

[1] AFP incident report dated 14 May 2020, statement of Philip Flood

[2] Application for review of insurer's decision, 'Defined Benefits - Rejection Notice' dated 3 December 2020 page 2

[3] Application for review of insurer's decision, 'Internal Review Notice' dated 7 January 2021 page 2

[5] Applicant's submissions dated 13 May 2021 at [2.1.4]

[6] Transcript of proceedings 15 June 2021 pages 10-11

[7] Transcript of proceedings 15 June 2021 page 27

[8] Legislation Act section 138(b)

[12] Legislation Act section 139(1)

[13] Internal review notice dated 7 January 2021 page 12

[15] Application for review of insurer's decision, 'Internal Review Notice' dated 7 January 2021 page 12

[18] Rodriguez v Telstra Corporation Limited [2002] FCA 30 at [24] per Kiefel J

[19] Quotes at paragraph [49] of this decision: "As the application is not a merit review, only a review on questions of law and fact, ACAT can only consider information that was available to the insurer."