AAI Limited trading as GIO v Amos

1. [1]

   KIRK JA: I agree with Adamson JA and agree, too, with the additional observations of Basten AJA.

2. [2]

   ADAMSON JA: The appellant, AAI Limited trading as GIO (the insurer), appeals against the orders made by Rothman J (the primary judge) on 6 October 2023 quashing a decision of the third respondent (the Review Panel) and remitting the insurer’s application for review of the medical assessment of the first respondent, Jesse Amos (the claimant), to the President of the Personal Injury Commission of NSW (PIC) (the President), who is the second respondent. The basis of the primary judge’s decision was that the Review Panel had denied procedural fairness to the claimant. The primary judge rejected the claimant’s second challenge to the decision of the Review Panel that its reasons were not sufficient.

3. [3]

   The primary judge was exercising the Court’s jurisdiction pursuant to s 69 of the Supreme Court Act 1970 (NSW) to grant relief in the nature of prerogative relief from errors of law on the face of the record. The insurer accepts that the amount in issue exceeds the threshold in s 101(2)(r) of the Supreme Court Act and is therefore entitled to appeal as of right from the orders of the primary judge.

4. [4]

   On appeal, Ms Allan, who appeared on behalf of the insurer, submitted that there was, relevantly, no denial of procedural fairness. The claimant filed a notice of contention in which he contended that, contrary to the primary judge’s findings, the reasons of the Review Panel were inadequate. The insurer contested this proposition. The Review Panel and the President have each filed submitting appearances.

5. [5]

   All references to legislation in these reasons are, unless otherwise indicated, references to the Motor Accident Injuries Act 2017 (NSW) (the Act).

6. [6]

   On 26 July 2018, the claimant, a passenger, sustained injuries, including a fractured nose and various musculoligamentous injuries, in a motor vehicle accident (the accident). The insurer admitted liability. About a month after the accident, on about 24 August 2018 (the evidence does not establish the precise date), the claimant fell at home (the fall) and fractured his eye socket (the orbital fracture). A dispute arose between the claimant and the insurer as to whether the fall (and therefore the orbital fracture) was caused by injuries sustained in the accident. The claimant contended that they were because he fell as a result of dizziness which had been caused by a head injury sustained in the accident. The insurer submitted that the fall was unrelated to the accident and noted the claimant’s pre-accident history of dizziness.

7. [7]

   If the fall was a consequence of injuries which the claimant sustained in the accident, the permanent impairment resulting from the orbital fracture would be taken into account in the assessment of the percentage whole person impairment (%WPI) arising from the accident. If the fall was unrelated, no allowance could properly be made for the orbital fracture in the assessment of %WPI.

8. [8]

   Section 4.11 provides that damages for non-economic loss may only be awarded in respect of a motor accident injury if the %WPI as a result of an injury caused by a motor vehicle accident is greater than 10%.

9. [9]

   Section 4.12 requires a dispute about %WPI to be determined by a medical assessor. The dispute between the claimant and the insurer was referred, in accordance with s 7.20(1), to the President who arranged for Dr Steiner, a medical assessor, to assess the degree of the claimant’s %WPI under s 7.21.

10. [10]

    In Dr Steiner’s reasons for his certificate, he said:

11. [11]

    On the basis of the assumption that the orbital fracture was a consequence of the accident, Dr Steiner issued a certificate dated 31 March 2021 pursuant to s 7.23 that the claimant’s %WPI referable to the orbital fracture was 29% and would thus exceed the 10% threshold and entitle the claimant to damages for non-economic loss. But for the orbital fracture, the threshold would not have been exceeded. It is not necessary to recite the other medical assessment certificates which had this effect.

12. [12]

    The insurer contested the assumption made by Dr Steiner that the fall (and therefore the orbital fracture) was caused by the accident and applied for a review of Dr Steiner’s medical assessment by a review panel. On 14 June 2022, a delegate of the President referred the matter to the Review Panel on the basis that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect (namely that causation had been assumed rather than determined).

13. [13]

    On 15 November 2022, the Review Panel found that the fall was not caused by the injuries sustained in the accident, revoked Dr Steiner’s certificate and issued a new certificate which stated that the orbital fracture was not caused by the accident. The effect of the new certificate was that the claimant was not entitled to damages for non-economic loss.

14. [14]

    It is implicit in the Review Panel’s reasons that there were potentially three explanations for the fall: first, that it was accidental (occasioned by a slip or trip or otherwise); second, that it was caused by a vestibular disorder which manifested itself in dizziness; and third, that it was the consequent of post-traumatic paroxysmal positional vertigo (PPV). Only the third explanation could have been caused by the accident.

15. [15]

    The Review Panel excluded PPV as a cause because the symptoms described by the claimant did not correlate with the symptoms of PPV and also because the claimant had a history of dizziness and vertigo, most recently manifested on 16 May 2018 (more than a month prior to the accident), when his general practitioner made a house call to treat the claimant’s “severe vertigo”. The process undertaken by the Review Panel will be described in more detail below.

16. [16]

    In order to address the challenge to the primary judge’s orders, it is necessary to consider the role of the Review Panel in the context of the legislative regime.

The legislative regime

1. [17]

   Division 7.5 makes provision for the medical assessment of people injured in motor vehicle accidents. As referred to above, a medical dispute about a claim may be referred to a medical assessor for assessment: s 7.20. Clause 2, Sch 2 to the Act declares the degree of permanent impairment that has resulted from an injury caused by a motor vehicle accident to be a “medical assessment matter” for the purposes of Part 7.

2. [18]

   Section 7.20(4) provides that a claimant and an insurer must provide to the medical assessor “such information as the assessor may reasonably require for the purposes of the medical assessment.”

3. [19]

   The assessment of the degree of permanent impairment is to be made in accordance with the Motor Accident Guidelines (the Guidelines) and is to be assessed as a percentage: s 7.21. The Guidelines were issued pursuant to Division 10.2 of the Act, by the State Insurance Regulatory Authority, which administers the compulsory third party insurance and compensation scheme under the Act.

4. [20]

   Part 6 of the Guidelines makes provision for the assessment of permanent impairment and is based on the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition (the AMA4 Guides). Clauses 6.5 to 6.7 concern causation.

5. [21]

   Clause 6.6 provides:

6. [22]

   Clause 6.7 provides:

7. [23]

   When the assessment is complete, the medical assessor is to issue a certificate as to the matters referred for assessment: s 7.23(1). Section 7.23(7) provides that the certificate is to set out the reasons for the medical assessor’s finding as to any matter certified in the certificate. The effect of s 7.23(7) is that the reasons form part of the record for the purposes of s 69 of the Supreme Court Act.

8. [24]

   A claimant or an insurer may apply to the President to refer a medical assessment to a review panel (s 7.26(1)) but only on the ground that the assessment was incorrect in a material respect (s 7.26(2)). The review panel is to be constituted by three persons chosen by the President, being two medical assessors and a member of PIC who is assigned to the Motor Accidents Division: s 7.26(5A). Section 7.23 applies to any new certificate issued under s 7.26: s 7.26(9).

The process undertaken by the Review Panel

1. [25]

   Following its first teleconference, the Review Panel decided that an examination of the claimant was required and, further, that the expertise of a neurologist was required. Accordingly, the Review Panel was reconstituted to include Dr John O’Neill, a neurologist, as one of the two medical assessors. The other medical assessor was Dr Ian Wechsler, an ophthalmologist. The Review Panel decided that Dr O’Neill would examine the claimant as part of its review.

2. [26]

   The Review Panel had access to the following for the purposes of its review:

   1. (1)

      records of the claimant’s medical treatment, including the ambulance report following the accident, hospital clinical records pertaining to pre-accident, accident and post-accident events and the medical records of the claimant’s general practitioner, Dr Peter Voutos (the clinical records);

   2. (2)

      certificates of other medical assessors;

   3. (3)

      medicolegal reports;

   4. (4)

      the claimant’s statement dated 14 January 2022; and

   5. (5)

      the claimant’s and the insurer’s submissions.

3. [27]

   In the evidence which was before the primary judge, the parties did not tender all the material which was before the Review Panel, but only the material which they considered to be relevant to the proceedings.

4. [28]

   The ambulance report recorded that, on 26 July 2018, when ambulance officers attended the scene of the accident, the claimant said he had hit his head on the windshield. It also recorded:

5. [29]

   The claimant’s Glasgow Coma Score (a measure of the extent of impaired consciousness) was recorded as 15 (fully responsive) on two occasions when assessed by ambulance officers.

6. [30]

   The Bankstown Hospital notes for the claimant’s admission on 26 July 2018 (following the accident) do not record any complaint of headaches or dizziness. However, the notes record: “pt doesnt remember the event, the first thing to remember when he arrive to the hospital”.

7. [31]

   The claimant attended Bankstown Hospital again on 30 August 2018, after the fall. The referral letter dated 30 August 2018 from Bankstown Hospital to Dr Voutos recorded that the claimant gave the following history of the fall:

8. [32]

   Later that same day, 30 August 2018, the claimant presented at Royal Prince Alfred Hospital (RPA). The RPA records note that the claimant gave the following history of presenting complaint:

9. [33]

   Later on 30 August 2018, at 6.31pm, the RPA records noted the following history:

10. [34]

    Dr Voutos’ clinical notes recorded the following, as noted by the Review Panel:

    1. (1)

       on 9 August 2016, the claimant attended Dr Voutos and reported experiencing vertigo symptoms for two days, for which Dr Voutos prescribed Serc;

    2. (2)

       Dr Voutos also prescribed Serc on 21 August 2017 and 20 December 2017, although the clinical notes do not record vertigo on those dates;

    3. (3)

       on the morning of 16 May 2018, Dr Voutos made a house call to the claimant who was complaining of “severe vertigo” and for which he was given an intra-muscular injection (IMI) of 12mg of Stemetil. Dr Voutos also prescribed medication which included Serc and gave him a medical certificate certifying that he was unfit to attend court that day because he had “severe vertigo”;

    4. (4)

       Dr Voutos’ clinical note of the claimant’s first consultation after the accident, 31 July 2018, recorded no mention of headaches or vertigo;

    5. (5)

       on 7 August 2018, Dr Voutos noted “poor sleep headaches entire body in pain” and “dizzy”. Serc was prescribed for the latter;

    6. (6)

       on 28 August 2018, Dr Voutos noted: “Right SIDE FACE TINGLING HEADACHES DIZZY”;

    7. (7)

       on 30 August 2018, Dr Voutos noted: “add notes from 28/8 that he fell last [F]riday at the back of the yard onto an [sic] and hit Right side face onto object and now periorbital bruising called pt to go to hospital stat [straight away] due to orbital fracture”.

11. [35]

    The medicolegal reports relied on by the claimant included a report of Dr Dryson, to whom the claimant was referred by his solicitors. Dr Dryson said of present relevance:

12. [36]

    In the list of “diagnoses”, Dr Dryson included “Vertigo – not yet investigated”.

13. [37]

    Dr Dryson noted:

14. [38]

    When asked to opine about the connection between the injuries suffered in the fall and the motor vehicle accident, Dr Dryson said, in a passage extracted in the Review Panel’s reasons:

15. [39]

    In his statement of 14 January 2022, the claimant said the fall was caused by “loss of balance” which he attributed to the accident. He said of present relevance:

16. [40]

    The certificates of other medical assessors included that of Dr Scoppa, who assessed %WPI to the claimant’s nose and air passage as well as vertigo, dizziness and headaches. Dr Scoppa examined the claimant on 19 December 2021 and issued a certificate on 28 January 2022. In the portion of his reasons, entitled “Clinical Examination”, “General presentation”, he said:

17. [41]

    The claimant’s solicitors submitted to various medical assessors and the Review Panel that the fall was caused by dizziness which was, in turn, caused by a head injury sustained in the accident.

18. [42]

    They submitted, as summarised in the Review Panel’s reasons:

19. [43]

    Under cover of a letter dated 18 November 2020, the insurer’s solicitors supplied further material to PIC, including the clinical records of Dr Voutos, Bankstown Hospital and RPA (some of which have been referred to above). In respect of the orbital fracture, the insurer submitted:

20. [44]

    The insurer also relied on other material in support of a submission that the claimant was not credible.

The Review Panel’s reasons

1. [45]

   The following reasons of the Review Panel indicate that, during the examination of the complainant which Dr O’Neill conducted, he questioned the claimant about the entries in Dr Voutos’ notes concerning pre-accident treatment for “vertigo”:

2. [46]

   The reasons indicate that, when specifically questioned about these incidents the claimant told Dr O’Neill that he was unable to recall them.

3. [47]

   The history which the claimant gave of the fall (implicitly to Dr O’Neill) was recorded in the Review Panel’s reasons as follows:

4. [48]

   The Review Panel continued:

Consideration

1. [49]

   The claimant argued, both in the Court below and in this Court, that there was an apparent inconsistency between his descriptions of vertigo in [137] of the Review Panel’s reasons and the symptoms of PPV, as described by the Review Panel in [150], to which the claimant ought to have been alerted. He submitted that the Review Panel was obliged, when carrying out the medical assessment of the claimant, to identify its thought processes as to a potential diagnosis which would establish liability (PPV); identify to the claimant the symptoms which would support that diagnosis; and ask the claimant questions to ascertain whether he suffered those symptoms. The claimant submitted that the failure on the part of the Review Panel, and in particular Dr O’Neill, to do each of these matters constituted a denial of procedural fairness.

2. [50]

   The primary judge addressed the requirements of procedural fairness which the Review Panel owed to the claimant in the context of a witness giving evidence in a court and tribunal and discussed the rule in Browne v Dunn (1983) 6 R 67 (HL) (which requires adverse material or alleged inconsistencies to be put to a witness in order that the witness may respond) in this context. His Honour concluded that a similar approach ought to have been taken by the Review Panel when it asked questions of the claimant, as is evident from the following extract from the primary judge’s reasons:

3. [51]

   The primary judge found that the Review Panel had denied procedural fairness to the claimant (by not following the approach that would have been required in a tribunal or court), as follows:

4. [52]

   Grounds 1-6 of the amended notice of appeal allege error in the primary judge’s conclusion that the Review Panel had denied the claimant procedural fairness. The effect of grounds 1-5 is that the primary judge was in error in finding that the Review Panel had to put the claimant on notice of the specific symptoms of PPV. Ground 6 alleges that the primary judge was in error in placing any weight on Dr Steiner’s conclusion that the fall was causally related to the accident, as he assumed, rather than found, causation. It is not necessary to set out the grounds as there is a degree of overlap in the formulation of each of the grounds, all of which challenge the conclusion.

5. [53]

   Procedural fairness depends, in part, on context. For example, in a judicial or arbitral setting, procedural fairness generally requires a hearing, whereby parties have an opportunity to put their cases to relevant witnesses in cross-examination and in submissions to an independent arbiter or judge. However, in the context of a Review Panel, the requirements of procedural fairness are different from those in a contested hearing.

6. [54]

   The High Court considered what procedural fairness requires in the context of a body such as the Review Panel in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (Wingfoot) and said, at [47]:

7. [55]

   Having regard to Wingfoot, it can be seen that the legislative choice to have the assessment of %WPI performed by a medical assessor or a review panel (constituted by three members, two of whom are medical assessors) rather than in court proceedings, had significant ramifications for the nature and extent of procedural fairness which was required. In the context of a medical assessment conducted by a medical assessor or a review panel, procedural fairness requires that the critical issue or factor on which the decision will turn be brought to the parties’ attention in order that they can provide material and make submissions about it: Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39 at [32] and [35] (Leeming JA, Beazley P and Basten JA agreeing), citing Kioa v West (1985) 159 CLR 550 at 587; [1985] HCA 81.

8. [56]

   In the present case, the critical issue was whether the fall was caused by an injury sustained in the accident. Rules that apply in court proceedings, such as the rule in Browne v Dunn, usually have no analogue in a medical assessment under the Act: see, in a different context, SZBYR v Minister for Immigration and Citizenship [2007] HCA 26; (2007) 81 ALJR 1190 at [18] (Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ).

9. [57]

   The requirements of procedural fairness in a context similar to the present were considered by this Court in Frost v Kourouche in which this Court allowed an appeal from an evidentiary ruling by a primary judge. The primary judge rejected a review panel’s certificate (that the %WPI was less than the threshold), finding that the review panel had denied the plaintiff (the respondent on the appeal) procedural fairness by not adjourning its review to permit her to obtain legal advice about the effect of social media posts submitted by the defendant (the appellant), which painted a very different picture of the plaintiff than appeared in the expert reports. Leeming JA (Beazley P and Basten JA agreeing) considered, at [41], that the test was whether the plaintiff had been accorded “practical justice”: see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ).

10. [58]

    Leeming JA said, at [42]:

11. [59]

    In the present case, the principal issue before the Review Panel was whether the injuries sustained in the accident had caused the fall not, as the insurer submitted in this Court, whether the claimant had experienced all or any of the symptoms of PPV. The claimant (through his solicitors) was well aware, by reason of the documents relied on by the insurer and the submissions it made (which have been set out or summarised above), that the insurer was relying on matters, which included the following, to submit that the fall was not caused by those injuries:

    1. (1)

       the claimant’s pre-accident experiences of dizziness, for which Serc had been prescribed;

    2. (2)

       the history of symptoms which was inconsistent with the claimant having sustained PPV at the time of the accident or at the time of the fall;

    3. (3)

       the absence of loss of consciousness at the time of the accident; and

    4. (4)

       what the insurer submitted was the applicant’s preparedness to tailor what he said in medical examinations and in his statements to obtain compensation.

12. [60]

    The claimant submitted that PPV is a “term of art with a particular scientific meaning” and that the Review Panel needed to do more to ensure fairness to the claimant, given the different terminologies used by him when compared with the medical learning, with which the medical assessors on the Review Panel can be taken to have been familiar.

13. [61]

    In these circumstances, it is difficult to accept that the claimant was taken by surprise by the Review Panel’s adverse conclusion, since this was the conclusion for which the insurer contended, as supported by its submissions and documents, and in particular, the clinical notes which recorded the claimant’s presenting histories and contemporaneous symptoms. The Review Panel was not obliged to provide a running commentary of its thought processes or of the effect of particular answers given by the claimant in the course of its examination and questioning of him: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [48] (Gleeson CJ, Kirby, Hayne, Callinan and Heydon JJ); see also Minister for Immigration v SZGUR (2011) 241 CLR 594; [2011] HCA 1 at [9] (French CJ and Kiefel J). Further, the Review Panel was entitled to apply its medical expertise to make findings on the basis of answers given by the claimant to its questions and to explain, as it did in its reasons, that the presence or absence of some PPV symptoms was neither the only, nor a critical, factor in its decision.

14. [62]

    In effect, the standard set by the primary judge would have required the Review Panel to put the three possible causes of the fall (non-specific dizziness, PPV or accidental) to the claimant and ask the claimant whether he experienced the symptoms which the Review Panel found would have established that he had suffered PPV. Such is the power of suggestion that, had this process been followed, there would have been a real possibility that the claimant would have given the answer which he appreciated would result in a favourable medical assessment and entitle him to an award of damages for non-economic loss.

15. [63]

    In the present case, the claimant had several opportunities to describe his symptoms after both the accident and the fall (to the ambulance officers, the hospital staff, Dr Voutos, experts to whom his solicitors referred him, experts by whom he was examined at the request of the insurer, in his statement and to the various medical assessors, as well as in the course of the examination conducted by Dr O’Neill). He well knew the relevance of such descriptions since the matter to be determined by the Review Panel was whether the fall was causally connected with the injuries he sustained in the accident. The claimant and his solicitors were in a position to appreciate that the causal connection could be established if he could show that he suffered a head injury in the accident which caused vertigo of the type that could be shown to have precipitated the fall. While the application of the medical expertise (particularly in neurology) employed by Dr O’Neill in his assessment may not have been known by the claimant or his solicitors, they were in a position to know, at least in a general sense, the significance of the questions about dizziness and vertigo.

16. [64]

    The Review Panel’s reasons indicate that when Dr O’Neill asked the claimant about the incident which had precipitated the need for Dr Voutos’ house call on 16 May 2018, the claimant was unable to recall either the incident or the duration of his symptoms ([109] of the Review Panel’s reasons). In those circumstances, there could be no denial of procedural fairness in Dr O’Neill not taking the matter further by putting to him Dr Voutos’ record of the consultation and pressing him for a description of what he experienced on that occasion.

17. [65]

    The Review Panel’s reasons at [129]-[137] are instructive as to the Review Panel’s process of reasoning. The Review Panel noted, at [129], that the claimant had said that he felt “dizzy” before falling. When describing the claimant’s medication, the Review Panel noted, at [135], the medication which the claimant said he took for “dizziness or vertigo”. In [136] of its reasons, the Review Panel said that the claimant “differentiated dizziness and vertigo” and set out what the claimant meant by dizziness (“a sensation of light-headedness”), as distinct from vertigo (“an internal feeling (in the head) like the room was spinning. There was no actual spinning of the environment.”).

18. [66]

    In [149] of its reasons, the Review Panel accepted the possibility that the closed head injury sustained by the claimant in the accident “could be sufficient to cause PPV”. However, at [150], the Review Panel described how the PPV would have been experienced by the claimant, had PPV (rather than non-specific dizziness) precipitated his fall. Because the claimant’s non-specific descriptions of what he felt immediately before the fall did not correspond with PPV (which is characterised by very specific symptoms), the Review Panel concluded that the fall was not caused by PPV. Further, the Review Panel placed some weight on the circumstance that none of the claimant’s treating doctors had ever referred him for testing for PPV (which suggested that they did not consider it to be warranted).

19. [67]

    The Review Panel was not obliged to put to the claimant the various versions he had given about his symptoms over time, with a view to ascertaining which version was the correct, or most accurate, one. It can be inferred from the Review Panel’s reasons that Dr O’Neill took care to ascertain what the claimant meant by dizziness and vertigo in order that the Review Panel could understand what he meant when describing what led to the fall. The Review Panel was entitled to accept the description of the claimant’s symptoms which the claimant gave in the course of the examination it conducted. The Review Panel was not obliged to spell out its thought processes or inform the claimant of the consequences of giving one answer rather than another, or of describing dizziness or vertigo in one way rather than another.

20. [68]

    In these circumstances, the Review Panel did not deny procedural fairness to the claimant. It was entitled to apply its own medical expertise and to find that the fall was not causally related to the accident because the fall was not caused by PPV.

21. [69]

    The second challenge made by the claimant to the certificate of the Review Panel was that its reasons were inadequate. This challenge was rejected by the primary judge.

22. [70]

    Mr Barry KC, who appeared with Ms Gumbert for the claimant, submitted that there was an inconsistency between [137] and [150] of the Review Panel’s reasons which ought to have been explained and that, absent such an explanation, the reasons were inadequate. For the reasons given above, I am not persuaded that there was any such inconsistency. The Review Panel set out what the claimant meant by the terms dizziness and vertigo and how PPV presented itself before concluding that the claimant’s description of what preceded his fall did not correspond with PPV.

23. [71]

    I have read and considered the reasons of the primary judge for rejecting this second ground of challenge. I am not persuaded that there was any error in the primary judge’s conclusion that the reasons of the Review Panel were sufficient.

Costs

1. [72]

   The parties accepted that costs ought follow the event in accordance with the general rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1.

Proposed orders

1. [73]

   For the reasons given above, I propose the following orders:

   1. (1)

      Allow the appeal.

   2. (2)

      Set aside the orders made by Rothman J on 6 October 2023 and in lieu thereof, make the following orders:

   3. (3)

      Order the first respondent to pay the appellant’s costs of the appeal.

2. [74]

   BASTEN AJA: The circumstances giving rise to the present appeal have been set out by Adamson JA, with whose reasons and proposed orders I agree. The following observations are not intended to qualify any aspect of that reasoning.

3. [75]

   There is a presumption that the principle of procedural fairness applies to all statutory decision-making, whether judicial or administrative. [1] That was not always the case: in R v Electricity Commissioners; Ex parte London Electricity Joint Committee Co (1920) Ltd, [2] Atkin LJ stated that certiorari and prohibition only lay where the respondent was under a duty to act judicially. While that is no longer the case, the concept of acting judicially was not limited to curial proceedings. The nature of the function performed by the decision-maker remains of central importance in determining the content of procedural fairness in a particular matter. In some circumstances, the content becomes highly attenuated. For example, in the present case, there was no obligation on the review panel to conduct a hearing attended by the parties to the dispute. On the other hand, the principle of procedural fairness has been expanded so that it may be described as a breach of procedural fairness simply to fail to carry out the statutory task assigned to the particular body. [3]

4. [76]

   The content of procedural fairness will to a significant extent be determined by the statutory scheme under which a decision-maker operates. In a case of disagreement as to the content, it is necessary to identify the governing statutory scheme. In the present case, the scheme for the determination of medical disputes is constituted by the Personal Injury Commission Act 2020 (NSW) in combination with relevant “enabling legislation” which, in relation to degrees of permanent impairment caused by injuries received in a motor vehicle accident, includes the Motor Accident Injuries Act 2017 (NSW). [4] A dispute as to the degree of permanent impairment is a medical dispute to be assessed by a medical assessor. [5]

5. [77]

   Medical assessors are appointed by the President of the Personal Injury Commission. [6] The President is to arrange for a medical dispute to be dealt with by one or more medical assessors. [7] If a party is dissatisfied with a medical assessment, an application may be made to the President for a review on the ground that the assessment was “incorrect in a material respect”. [8] The subject matter of the review is “a new assessment of all the matters with which the medical assessment is concerned”. [9]

6. [78]

   A review panel comprises two medical assessors and a member of the Commission chosen by the President. [10] The review may include a further medical examination of the claimant, which may be carried out by one member only of the panel. [11] The medical assessment under review had determined the degree of permanent impairment caused by the accident to “eyes – fractured right orbit” as 29%. The review involved an examination of the appellant by a medical specialist (neurologist) on the review panel.

7. [79]

   There was no representation nor adversary present at the examination, nor at any other stage of the review, but both the claimant and the defendant’s insurer had provided factual and legal submissions to the panel prior to its reconsideration of the medical assessment.

8. [80]

   Procedurally, a governing provision was s 43 of the Personal Injury Commission Act, which states:

9. [81]

   Neither the conduct of an assessment by a medical assessor, nor by a review panel, constitutes proceedings before the Commission for the purposes of s 43. However, the Personal Injury Commission Rules 2021 (NSW) provide that s 43 applies in relation to “panel review proceedings” so that a function given to the Commission by s 43 “is to be read as being given to the panel conducting the panel review proceedings”. [12] The term “panel review proceedings” is defined to include a review of a medical assessment. [13]

10. [82]

    Perhaps curiously, no reference to “procedural fairness” appears in the Personal Injury Commission Act, nor in the Rules made under that Act. There is one reference in the Motor Accident Injuries Act, in s 7.23(3), which states that “[i]n any court proceedings, the court may … reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate …”.

11. [83]

    It may be inferred from this provision that, at least in order to obtain its statutory status in curial proceedings, an assessment must comply with the rules of procedural fairness, whatever they may require in particular circumstances. It was not suggested that there was anything in either Act which precluded the operation of such a principle to the extent that it would be required by the general law.

12. [84]

    However, the primary judge took the matter one stage further, holding that s 43(3) expressly required compliance with procedural fairness. [14] That proposition is controversial. Directions to “act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms” may be found in respect of a variety of bodies. Like a privative clause, such provisions must be read in context. In Moses v Parker; Ex parte Moses, [15] the Privy Council accepted that a statute using similar language in conferring power on Supreme Court judges to recommend to the Governor how to dispose of ungranted land in Tasmania, confirmed that the judges were not exercising a judicial function. In British Imperial Oil Company Ltd v Federal Commissioner of Taxation, [16] such a provision was said to be decisive in demonstrating that a Taxation Board of Appeal was not a court of the Commonwealth and therefore could not be invested with judicial power. By way of contrast, similar words conferring powers on the High Court sitting as court of disputed returns in relation to an election to the Commonwealth Parliament, have been said not to be “inimical to the exercise of the judicial power of the Commonwealth” because they “do not exonerate the Court from the application of substantive rules of law and are consistent with, and indeed require the application of, the rules of procedural fairness”. [17] The court of disputed returns is a curial body.

13. [85]

    On the other hand, in Minister for Immigration and Multicultural Affairs v Eshetu in relation to the elements of such a provision governing the procedure of the Refugee Review Tribunal, Gleeson CJ and McHugh J stated: [18]

14. [86]

    Because, absent inconsistent statutory provisions, there will be an implied obligation to comply with principles of procedural fairness, in accordance with the general law, it is not necessary to pursue further the significance of s 43 of the Personal Injury Commission Act. It may be accepted that, if principles of procedural fairness were engaged under the general law, such language would not disengage them.

15. [87]

    Separately, the primary judge implied that the rule applicable in adversarial litigation that a cross-examiner must put to a witness the case on which the cross-examiner’s client proposes to rely in contradiction of that witness, [19] governed the conduct of a review panel carrying out a medical assessment. [20] However, that principle was held not to apply on an application for refugee status before the Refugee Review Tribunal. [21] It cannot apply to the conduct of a medical examination by a medical assessor, where there is otherwise no hearing, adversarial or inquisitorial.

16. [88]

    The function of a medical assessor was addressed by this Court in Insurance Australia Group Ltd t/as NRMA Insurance v Keen. [22] The relevant aspect of Keen was a claim that the medical assessor was required to address a substantial and clearly articulated argument that causation had not been established and, in failing to do so, denied the insurer procedural fairness. [23] Leeming JA stated:

17. [89]

    It is, for completeness, useful to set out the preceding passage in the judgment of the High Court in Wingfoot leading up to the conclusion quoted by Leeming JA. Thus, the passage commenced: [24]

18. [90]

    The primary judge accepted that the function of a review panel was to reach its own conclusions on the medical question before it. [25] The primary judge continued:

19. [91]

    This passage referred to and summarised the extract from Wingfoot at [47] set out above. However, the opportunity to be accorded (which was accorded) was for each party to supply material and make submissions on the basis of that material. Nevertheless, the primary judge went further, stating:

20. [92]

    That expansion was not supported by the reasoning in Wingfoot, which did not refer to procedural fairness at large, but to a specific aspect of the obligation which was described. What the claimant sought to do, and the primary judge accepted, was to expand that obligation to impose on the panel a requirement to provide information to the claimant as to the nature of the medical evidence which the panel thought might be dispositive, so that the plaintiff or his legal representatives could deal with it. That is not the way a medical examination is conducted. The proposed expanded obligation is inconsistent with the function of the medical assessors identified in Wingfoot and with the statutory scheme under the New South Wales legislation noted above.

21. [93]

    That is not to say that there may not be other aspects of principles governing procedural fairness which apply to medical assessors. For example, aspects which guarantee an impartial and independent decision-making process will no doubt apply. Those matters were not relevant to the discussion in Wingfoot, which was addressed to the scope of the reasons required of the Tribunal. They are not relevant here.