Bullers v State of New South Wales

1. [1]

   These proceedings arise from a decision of the third defendant, the Appeal Panel of the Personal Injury Commission of New South Wales (“Appeal Panel”) dated 15 May 2024, constituted under s 328 of the Workplace Injury Management and Workers Compensation Act 1998 (NSW) (“WIM Act”). The Appeal Panel assessed the Whole Person Impairment (“WPI”) resulting from the plaintiff, Michael Bullers, post traumatic disorder to be 8% (after deductions) and issued a new Medical Assessment Certificate (“MAC”). An assessment of 8% WPI falls below the compensation threshold of being at least 15% WPI resulting from a primary psychological injury pursuant to s 65A(3) of the Workers Compensation Act 1987 (NSW) (“WCA”).

2. [2]

   By a summons filed on 14 August 2024, the plaintiff challenges that decision by way of judicial review under s 69 of the Supreme Court Act 1970 (NSW). The plaintiff seeks the following orders:

3. [3]

   The summons identifies the grounds of review as follows:

4. [4]

   The plaintiff asserts that the Appeal Panel’s decision is vitiated by jurisdictional error by reason of a failure to afford procedural fairness and an error of law on the face of the record, and therefore, the decision should be set aside and remitted to a differently constituted Appeal Panel for determination according to law.

5. [5]

   The first defendant resists the relief sought in the plaintiff’s summons. The second defendant, the President of the Personal Injury Commission of New South Wales (“PIC”) and the Appeal Panel have filed submitting appearances. In these reasons, I will refer to the first defendant hereafter as “the defendant”.

6. [6]

   During the hearing, the Court was informed that the parties had agreed there should be no order as to costs.

Relevant legislation

1. [7]

   For the purposes of the present case, it is sufficient to simply set out ss 327 and 328 of the WIM Act (where relevant), which govern the grounds of appeal from a medical assessment and procedure to be applied by the Appeal Panel.

2. [8]

   It is also not necessary to fully set out the tables containing the applicable classes and criteria for assessing impairment under the NSW Workers Compensation Guidelines for the Evaluation of Permanent Impairment, Fourth Edition (“Guidelines”), but they have been discussed in numerous decisions of this Court, and recently set out by Schmidt AJ in Tagg v Racing New South Wales [2023] NSWSC 1547 at [65].

3. [9]

   Sections 327 and 328 of the WIM Act relevantly provides as follows:

Factual background prior to the plaintiff’s application to appeal the decision of the Medical Assessor (“MA”)

1. [10]

   The relevant factual background summarised below (at [11]-[19]) is not disputed.

2. [11]

   The plaintiff’s employment with the defendant as a registered nurse commenced sometime in or around 2009. During the course of that employment, the plaintiff sustained a psychological injury on 1 March 2017, by reason of an assault by a patient with dementia. Following that incident, the plaintiff notified his employer of the workplace injury and made a claim for workers compensation benefits, which was accepted by the defendant. Weekly compensation payments and medical expenses incurred were paid to the plaintiff until around 28 August 2022.

3. [12]

   On 1 November 2022, relying upon a medical report of Associate Professor Robertson dated 10 October 2022, the plaintiff made a claim for lump sum compensation for permanent impairment resulting from his injury under s 66 of the WCA. The plaintiff’s claim was supported by Professor Robertson’s assessment in respect of a WPI of 22% (in the sum of $55,550). That claim was rejected by the defendant’s insurer in a letter dated 28 March 2023. In disputing liability for compensation, the defendant relied upon a report of Dr Peter Young dated 7 February 2023, assessing the plaintiff’s WPI as 11%, which is less than the at least 15% threshold required to be entitled to compensation under s 65A(3) of the WCA. Accordingly, a dispute arose as to the plaintiff’s degree of permanent impairment which constituted a “medical dispute” within the meaning of s 319(c) of the WIM Act.

4. [13]

   On 27 April 2023, the plaintiff filed an Application to Resolve A Dispute (“ARD”) accompanied by supporting documentation with the PIC. The dispute concerned the plaintiff’s claim for lump sum compensation and for weekly compensation payments. The plaintiff’s injury described in the ARD was as follows:

5. [14]

   On 17 May 2023, the defendant lodged its Reply to the ARD (“Reply”). The defendant included supporting documentation with its Reply to dispute the plaintiff’s claim.

6. [15]

   On 27 November 2023, the plaintiff was referred to an approved medical specialist, Dr Samson Roberts (“the MA”). The MA conducted his assessment of the plaintiff by Audio-Visual Link (“AVL”) during which the connection failed and abruptly ended, although about 5 minutes later it was reconnected.

7. [16]

   As the interruption in the assessment became part of the plaintiff’s appeal to the Appeal Panel, it is convenient to refer to the MA’s report of the assessment in par 5 of the MAC which states as follows:

8. [17]

   The MA assessed the plaintiff’s WPI to be 7% and issued a MAC to that effect on 28 November 2023.

9. [18]

   The plaintiff appealed from that decision to the Appeal Panel on 20 December 2023. The appeal was referred to the Appeal Panel as a delegate of the President of the PIC was satisfied that on the face of the application and submissions, at least one of the grounds of appeal specified in s 327(3) of the WIM Act had been made out: s 327(4) of the WIM Act.

10. [19]

    On 15 May 2024, the Appeal Panel determined that the earlier MAC of the MA should be revoked and issued the MAC referred to above at [1].

Submissions to the Appeal Panel

1. [20]

   The plaintiff’s written submissions in support of the application to appeal against the decision of the MA contended that the MAC was made on the basis of incorrect criteria and contained a demonstrable error, both of which are available grounds pursuant to ss 327(3)(c) and (d) of the WIM Act.

2. [21]

   The plaintiff submitted that he had been denied procedural fairness as the AVL was disconnected when the MA was in the process of asking him questions and he was not afforded the opportunity to clarify or provide any additional material that he considered relevant to the questions asked by the MA or the examination generally.

3. [22]

   The plaintiff further submitted that the MA had misapplied the incorrect criteria and/or had fallen into demonstrable error with the consequence being that the degree of impairment (experienced as a WPI) had been assessed at a lower level than ought to have been the case. The errors were submitted to relate to the assessment of the following four Psychiatric Impairment Rating Scale (“PIRS”) scales: (i) “self care and personal hygiene”; (ii) “social and recreational activities”; (iii) “concentration, persistence and pace” (“CPP”) and (iv) “employability”.

4. [23]

   The plaintiff submitted that the MAC issued by the MA should be revoked and that he should be re-examined by the Appeal Panel.

5. [24]

   The plaintiff’s submissions were accompanied by his supplementary written statement dated 20 December 2023 which included the following:

6. [25]

   The defendant filed a notice of opposition to the appeal and contended in written submissions that the assessment by the MA of the classes of impairment disclosed no demonstrable error and the MAC was not based on incorrect criteria.

7. [26]

   By way of a cross appeal, the defendant contended that the MA ought to have applied a deduction in accordance with s 323 of the WIM Act and in failing to do so applied the incorrect criteria and fell into demonstrable error.

8. [27]

   The defendant argued that the MA failed to give sufficient weight to the serious and chronic nature of the plaintiff’s pre-existing psychological illness at the time of assessing his current impairment.

A summary of the statement of reasons of the Appeal Panel

1. [28]

   The Appeal Panel’s reasons consist of 19 pages. The Appeal Panel in its reasons detailed the background to the application to the appeal which included a summary of the findings of the MA and the ratings that the MA made relating to the plaintiff’s impairment in accordance with the PIRS scales which the plaintiff challenged.

2. [29]

   The Appeal Panel recounted at [25]-[26] that a preliminary review of the medical assessment had been conducted, and they had determined it was not necessary for the plaintiff to undergo a further medical examination as the material before them was “sufficient to enable the Appeal Panel to determine the respective appeals that the parties have made”.

3. [30]

   After the Appeal Panel recorded the parties’ submissions, it referred to the plaintiff’s supplementary statement at [51] and noted that “his personal details and details relating to his function in the PIRS he had challenged, is not additional information” pursuant to s 327(3)(b) of the WIM Act as “this information was available to him and could reasonably have been obtained by him before the medical assessment was done”.

4. [31]

   The Appeal Panel stated at [52]-[59]:

5. [32]

   Under the heading “self care and personal hygiene”, the Appeal Panel stated at [60]:

6. [33]

   After referring to examples provided in Table 11.1 of the Guidelines for Class 2 impairment and the descriptors for Class 3 at [61], the Appeal Panel went on to say at [62]-[65]:

7. [34]

   Under the heading “social and recreational activities”, the Appeal Panel found at [67] that the MA erred by rating the plaintiff’s impairment as Class 2, and considered the matters recorded in the MAC “correlate with an impairment falling with the descriptors provided for a Class 3 impairment”.

8. [35]

   Under the heading “CPP”, the Appeal Panel did not accept at [72] the plaintiff’s submission that the MA erred by rating his impairment as Class 2 and not Class 3. The Appeal Panel considered at [79] that the MA was correct to correlate the plaintiff’s impairment in CPP with the descriptors for a Class 2 impairment.

9. [36]

   Under the heading, “employability”, the Appeal Panel accepted at [81] the plaintiff’s submission that the MA erred by rating his impairment as Class 4 and not Class 5.

10. [37]

    As to s 323 of the WIM Act (the defendant’s cross appeal), the Appeal Panel found at [90] that the MA was wrong to find that a proportion of the plaintiff’s permanent impairment from his injury was not due to his pre-existing chronic and severe depression, which was an error material to the outcome.

11. [38]

    The Appeal Panel determined that as it had found errors in the MAC, the MAC would be revoked and a new MAC issued with the errors corrected. The Appeal Panel stated that it had corrected the error in the MA’s rating of the plaintiff’s impairment for social and recreational activities by rating his impairment as Class 3. The Appeal Panel corrected the error in the plaintiff’s rating of employability by rating it as Class 5.

12. [39]

    The Appeal Panel noted that this resulted in PIRS ratings of 2, 3, 2, 2, 2 and 5. This resulted in a total aggregate score of 16, with a median class score of 2, being assessed as a WPI of 9%.

13. [40]

    With respect to the MA’s error by not making a deduction under s 323(1) of the WIM Act, the Appeal Panel considered that it was too difficult to determine precisely the extent to which the plaintiff’s pre-existing chronic depression contributed to his present permanent impairment and the Appeal Panel assumed, in accordance with s 323(2) of the WIM Act, that the deductible proportion of s 323(1) is 10%.

14. [41]

    A new certificate was attached to the statement of reasons.

15. [42]

    The plaintiff does not challenge the Appeal Panel’s finding in respect of the defendant’s cross appeal.

Ground 1: the failure to accord procedural fairness

1. [43]

   The plaintiff identified Ground 1 as being a failure to accord procedural fairness.

2. [44]

   The plaintiff referred to the disconnection of the AVL partway through the MA’s assessment and recounted that after about 5 minutes, the connection was re-established and the MA told him he had no further questions and ended the examination. The plaintiff complained that he was not given the opportunity to clarify any of his answers and was not asked to provide any further information that he thought was relevant. The plaintiff contended the denial of that opportunity amounted to a denial of procedural fairness as was squarely raised by him in written submissions.

3. [45]

   The plaintiff referred to [52] of the Appeal Panel’s reasons which purported to dismiss the ground of appeal under s 327(3)(b) of the WIM Act. The plaintiff submitted that his written submissions relied on both ss 327(c) and (d), and the Appeal Panel had failed to deal with his submission about procedural fairness in accordance with those provisions.

4. [46]

   The plaintiff contended that the Appeal Panel misdirected itself at [53] as to the appropriate legal test and noted that the footnote at [53] cited the following decisions of Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 at [13] (Basten AJ); State of New South Wales v Ali [2018] NSWSC 1783 at [32]-[39] (Harrison J) and CSR Ltd v Ewins [2020] NSWSC 511 at [43]-[50] (Adamson J). The plaintiff argued that the question the Appeal Panel ought to have considered was that enunciated by Deane J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367; [1990] HCA 33 (“Bond”).

5. [47]

   The plaintiff submitted it was not the point that the assessment was “essentially completed” as was relied upon by the Appeal Panel at [55]. But rather the plaintiff’s point was in essence that the assessment ended without affording him the opportunity to provide any further information to the MA. The plaintiff further submitted there was a difference between “essentially completed” being the language adopted by the Appeal Panel and “complete”, the former suggesting some aspects of the assessment were not completed.

6. [48]

   Another submission was that the Appeal Panel’s failure to properly address the plaintiff’s submission and to conduct its own assessment of the plaintiff in these circumstances gave rise to a jurisdictional error. Furthermore, the failure to afford procedural fairness constituted a jurisdictional error which rendered the Appeal Panel’s decision null and void citing the observations of Gleeson CJ in Plaintiff S157/2002 v The Commonwealth of Australia (2003) 211 CLR 476; [2003] HCA 2 at [25].

7. [49]

   The defendant submitted that it does not appear to be suggested for the most part that the Appeal Panel itself denied procedural fairness, but rather that the MA at first instance acted in a manner which was procedurally unfair. The defendant contended it was necessary for the plaintiff to have demonstrated the Appeal Panel’s treatment of that allegation itself amounted to either jurisdictional error or gave rise to an error of law on the face of the record.

8. [50]

   The defendant argued that it was precisely to the point that the assessment was “essentially completed” as the decision maker’s process does not need to be perfect, but only needs to be fair. The defendant referred to the reasoning of Bell P (as the Chief Justice then was, with whom Leeming JA and Emmett AJA agreed) in Moubarak by his tutor Coorey v Holt (2019) 100 NSWLR 218; [2019] NSWCA 102 at [89], [96] (“Moubarak”).

9. [51]

   The defendant contended that ultimately Ground 1 seeks to challenge the merits of a discretionary decision not to examine the plaintiff which does not exist as of right during a medical appeal. The defendant referred to s 328(2A) of the WIM Act. The defendant argued there can be no procedural unfairness in not carrying out an examination on appeal if the MA’s original assessment was fair in a practical sense citing Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [32] (Gleeson CJ).

10. [52]

    In further submissions, the defendant pointed out that when considering whether there was a practical injustice, it should be noted that the parties must submit all their material with the ARD and Reply (together with attachments to both) and that the PIC was “front-end loaded”: Personal Injury Commission Rules 2021 (NSW) r 67.

11. [53]

    The defendant contended that when the MA’s reasons are read as a whole, it is clear that the MA obtained sufficient information to make an assessment. Having correctly rejected the plaintiff’s supplementary statement as irrelevant and regarded the history taken by the MA as complete, it was appropriate for the Appeal Panel to proceed on the papers.

12. [54]

    Another submission was that the plaintiff’s contention that the Appeal Panel purported to dismiss the appeal under s 327(3)(b) of the WIM Act as opposed to ss 327(c) and (d) was not correct. The defendant submitted that at [52] the Appeal Panel was dealing with the statement as constituting a ground of appeal under s 327(3)(b) which deals with fresh evidence. The defendant argued that at [52], the Appeal Panel did not dismiss the appeal in toto but simply addressed the question of what to make of the statement and applied the correct statutory test at [53].

Consideration

1. [55]

   Notwithstanding the way in which par 10(a) of the summons is drafted (see above at [3]), the plaintiff’s contention of a denial of procedural fairness by the Appeal Panel was clarified in written and oral submissions to be that the Appeal Panel failed to deal with the plaintiff’s written submissions concerning procedural fairness and misdirected itself as to the appropriate legal test. The plaintiff’s complaint of jurisdictional error on the part of the Appeal Panel embraces a misunderstanding of the applicable law and asking the wrong question. As was explained by the plurality of the High Court (Gageler CJ, Gordon, Edelman, Steward, Gleeson and Jagot JJ with whom Beech-Jones J agreed) in LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12; (2024) 418 ALR 152 (“LPDT”) at [7]:

2. [56]

   The plaintiff bears the onus of satisfying the Court on the balance of probabilities that the alleged error in fact occurred, and if it did, that error was material: LPDT at [9]-[13]. On the question of materiality, the plurality in LPDT said at [14]:

3. [57]

   The Appeal Panel’s decision to admit only that part of the plaintiff’s supplementary statement as it related to what occurred during the MA’s examination and how he felt which is quoted above at [24] is not challenged on appeal. The Appeal Panel’s decision was made pursuant to s 328(3) of the WIM Act.

4. [58]

   One of the contentions raised in the plaintiff’s written submissions to the Appeal Panel was that he had been denied procedural fairness as the AVL was disconnected during the time which the MA was asking him questions, and after reconnection he was not afforded the opportunity to clarify the information he had already given or to provide additional information to the MA. Without expressly referring to “procedural fairness”, the Appeal Panel summarised the plaintiff’s submission at [29] of its reasons.

5. [59]

   The focus of the Appeal Panel’s reasons at [53]-[54] (see above at [31]) was on a consideration of the availability of additional relevant information and whether the ground of appeal under s 327(3)(b) of the WIM Act was established. The relevant test and the authorities cited at [53] appropriately applied to s 327(3)(b) of the WIM Act but were not relevant to the Appeal Panel’s task of considering whether the plaintiff had been denied procedural fairness by neither being given the opportunity by the MA to clarify his answers nor to provide additional information.

6. [60]

   In Bond, Deane J at 367 referred to the duty of a statutory body “to act judicially (or in accordance with the requirements of procedural fairness or natural justice)”. This statement by Deane J in Bond was referred to with approval by Gleeson CJ in Minister for Immigration and Multicultural Affairs v Rajamanikkam (2002) 210 CLR 222; [2002] HCA 32 at [25].

7. [61]

   The High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 (“Wingfoot”), considered the obligation to afford procedural fairness in the context of a statutory body such as the Appeal Panel and said at [47] (French CJ, Crennan, Bell, Gageler and Keane JJ):

8. [62]

   In Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22, Gaudron J observed at [99]:

9. [63]

   In Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6, Gleeson CJ said at [37]:

10. [64]

    Whilst it may be accepted that a fair trial is not synonymous with a perfect trial, as Bell P observed in Moubarak at [96], “it does not follow … that every imperfect trial is necessarily fair”.

11. [65]

    The Appeal Panel was obliged to consider whether the failure by the MA to give the plaintiff the opportunity to clarify any of his answers or to add additional information after the AVL was reconnected amounted to a practical injustice so as not to accord procedural fairness. The Appeal Panel did not consider that test. This is not a case where the decision-maker failed to refer to the applicable legal test but it is apparent that the decision-maker in fact applied that test: IAG Ltd t/as NRMA Insurance v Chahoud [2019] NSWSC 767; (2019) 89 MVR 87 at [61]-[63] (Bell P); Secretary, Department of Communities and Justice v Taane [2024] NSWSC 54 at [45] (Chen J). Accordingly, the plaintiff has established that the Appeal Panel failed to refer to and apply the correct legal principles relating to procedural fairness: Plaintiff M61/2010E v The Commonwealth of Australia (2010) 243 CLR 319; [2010] HCA 41 at [78] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ); Hossain v Minister for Immigration and Border Protection (2018) 264 CLR 123; [2018] HCA 34 at [29] (Kiefel CJ, Gageler and Keane JJ).

12. [66]

    Whether the error was material to constitute jurisdictional error is not answered by the MA’s note that at the time the issue occurred with the AVL, his examination of the plaintiff was “essentially completed” (see above at [31]). Nor is it answered by the submission that appeals under s 327 of the WIM Act are “front-end loaded”. The question is whether the Appeal Panel’s decision could realistically have been different had there been no error: LPDT at [7].

13. [67]

    The MA’s assessment of the plaintiff undertaken via AVL formed an important part of his evaluation of the plaintiff’s WPI. The answers given by the plaintiff to the MA were relevant to the class of seriousness assigned by the MA to the six scales of functional impairment under the PIRS. As Bell P and Payne JA (with whom Emmett AJA agreed) observed in Ballas v Department of Education (State of NSW) (2020) 102 NSWLR 783; [2020] NSWCA 86 at [94]:

14. [68]

    The distinctions that may arise in reaching the correct characterisation of each of the six scales readily emerge in the plaintiff’s case, and is clearly evident from the different WPI assessments calculated by Associate Professor Robertson, Dr Young, Dr Roberts and the Appeal Panel. Much will depend on the history of the psychiatric/psychological disorder, the account of present symptoms provided by the injured worker and his or her presentation during the assessment.

15. [69]

    The plaintiff referred to his anxiety and difficulties with recollection in his supplementary statement. He had the opportunity to collect his thoughts while the AVL was disconnected. It is a realistic possibility that if he had been given the opportunity to clarify his answers and provide further information after the connection was restored, the further information provided may have had some impact on the MA’s characterisation of the plaintiff’s conduct in each of the six PIRS scales.

16. [70]

    The Appeal Panel’s error was the failure to consider and apply the right test. Should that error not have been made, there is a realistic possibility that the Appeal Panel after conducting a preliminary review of the medical assessment could have decided that the material before it was insufficient to determine the plaintiff’s appeal and found that it was necessary for the plaintiff to undergo a further medical examination.

17. [71]

    I am not persuaded that the plaintiff suffered no practical injustice and the outcome would inevitably have been the same if the error had not occurred. The threshold of materiality has been met: LPDT at [16].

18. [72]

    The Appeal Panel’s error was jurisdictional and the relief sought by the plaintiff should be granted.

Ground 2: Error of law on the face of the record in the assessment of self care and personal hygiene

1. [73]

   The plaintiff takes issue with the Appeal Panel’s reasons at [60] and [65], pointing out that both paragraphs could not be correct. The plaintiff cited Wingfoot at [47]-[48], [54]-[56].

2. [74]

   The plaintiff argued this was not a situation whereby the Court could find that there was an error, but the error did not affect the outcome. The plaintiff argued this was a material error as if self care and personal hygiene had been assessed as Class 3, his PIRS rating would have totalled 17 with a median class score of 3. By applying the conversion table set out under Table 11.7 of the Guidelines, the plaintiff’s WPI would have been assessed at 19% before the deduction under s 323 of the WIM Act.

3. [75]

   The plaintiff submitted that it was not for the Court to speculate whether [60] contained a typographical error. The plaintiff contended once the Court finds an error somewhere, it is not for the Court to decide whether that error is in either [60] or [65].

4. [76]

   The defendant submitted that the Appeal Panel’s statement of reasons at [60]-[65] should be read in their totality and the irresistible conclusion which follows is that [60] contains a typographical error in that it omits the word “not” after the word “does”. The defendant argued there would be an inconsistency of reasons if the Appeal Panel exposed a path of reasoning consistent with upholding the appeal as to self care and personal hygiene, but then concluded with reasons expressed in a manner which was diametrically opposed. It was submitted that [60] is not an expression of reasons rather it is a statement of the conclusion reached by the Appeal Panel on the issue, which is followed by the reasons for that conclusion. The defendant submitted that everything set out from [61] to [65] is consistent with a rejection of this aspect of the appeal.

Consideration

1. [77]

   The MA had characterised the PIRS scale of the plaintiff’s self care and personal hygiene as Class 2. The MA gave the following reasons for that decision:

2. [78]

   The plaintiff submitted to the Appeal Panel that the MA’s rating as Class 2 was inconsistent with the facts because he could not live independently and needed prompting from his wife and daughter to do simple tasks such as showering, eating and changing his clothes. It was submitted that the plaintiff relied upon others for his meals and although he did eat, this was due to prompting by family members. The plaintiff submitted that his rating for self care and personal hygiene should have been assessed as a Class 3.

3. [79]

   The Appeal Panel recorded the plaintiff’s submissions on this issue at [31]. When the Appeal Panel came to consider the plaintiff’s challenge to the MA’s assessment, the Appeal Panel commenced at [60] with the passage quoted above at [32] in which the Appeal Panel stated that “it does accept [the plaintiff’s] submission to the effect that the [MA] erred by rating his impairment in self-care and personal hygiene as Class 2”. However, the Appeal Panel’s further consideration at [61]-[65] which is quoted above at [33] concluded with the statement that the Appeal Panel “consequently discerns no error in the exercise by the [MA] of his clinical judgment in rating the [the plaintiff’s] impairment in this PIRS as Class 2”. It is self-evident that these findings are inconsistent.

4. [80]

   It is well settled that the reasons of an appeal panel are not to be construed “minutely and finely with an eye keenly attuned to the perception of error” and are “not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed”: Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272; [1996] HCA 6 (Brennan CJ, Toohey, McHugh and Gummow JJ).

5. [81]

   A number of decisions in the Federal Court have considered the present situation where it appears that a typographical error may have been made in the reasons for the decision of a tribunal: Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1368 at [44] (Burley J) and the authorities there cited. What is apparent from these Federal Court decisions is that a common sense approach is adopted in determining whether the reasons contain a typographical error: See, eg, CCC v Minister for Immigration and Multicultural Affairs [2001] FCA 682 at [28]-[29] (Marshall J) (“CCC”).

6. [82]

   The Appeal Panel’s actual path of reasoning at [61]-[65] explains why it arrived at the opinion that it was unable to discern error in the MA’s rating as Class 2: Wingfoot at [48]. The Appeal Panel detailed at [61] the Guidelines for Class 2 and Class 3 impairments in this category. In Table 11.1, the PIRS scale in respect of self care and personal hygiene for Classes 2 and 3 are as follows:

7. [83]

   A significant descriptor for Class 2 is “able to live independently”, whereas for Class 3 a significant descriptor is “can’t live independently without regular support”.

8. [84]

   In the Appeal Panel’s reasons at [63]-[64] quoted above at [33], it was determined that the MA had taken into account the plaintiff’s conduct that was relevant to his assessment and had concluded that the plaintiff was “able to live independently”. The Appeal Panel found that the matters highlighted by the MA “best correlate” with the descriptors of a Class 2 and not a Class 3 impairment. The Appeal Panel’s actual path of reasoning plainly demonstrates that there is a typographical error at [60] of its reasons. The word “not” has been mistakenly omitted after the word “does”. The Appeal Panel intended that paragraph to read as it “does not” accept the plaintiff’s submission. This conclusion does not involve improper speculation as the Appeal Panel’s reasoning is undoubtedly explained in sufficient detail to allow this Court to identify the intended conclusion that was arrived at, and as a matter of common sense nothing turns on what could be inferred as a clear and unambiguous typographical error: Wingfoot at [55]; CCC at [28]-[29].

9. [85]

   In my view, Ground 2 should be rejected.

Orders

1. [86]

   For these reasons the Court makes the following orders:

   1. (1)

      Set aside the Medical Assessment Certificate issued by the Appeal Panel dated 14 May 2024 and set aside the decision of the Appeal Panel dated 15 May 2024.

   2. (2)

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

   3. (3)

      As agreed between the parties, no order as to costs.