Procedural Fairness Depends on the Context: AAI Limited trading as GIO v Amos [2024] NSWCA 65

In Brief

• The requirements of procedural fairness in the context of a medical panel assessment are different to those in a contested hearing.
• A medical panel is not required to provide information to the claimant as to the nature of the medical evidence which the panel thought might be dispositive of the medical question referred to it.

Facts

In AAI Limited trading as GIO v Amos [2024] NSWCA 65, the insurer appealed a judicial review decision setting aside a PIC Review Panel’s permanent impairment assessment.

The claimant sustained injuries in a motor vehicle accident and sustained further injuries from a fall at home. The insurer disputed whether the fall (and therefore injuries sustained in the fall) were caused by injuries sustained in the motor vehicle accident.

The Review Panel determined that out of the possible causes of the fall, only post-traumatic paroxysmal positional vertigo (PPV) could have been caused by the accident. The Review Panel stated that the symptoms of PPV involved specifically a sensation of the environment spinning and found the symptoms described by the claimant to be a non-specific spinning sensation. The Review Panel, therefore, concluded that the subsequent fall was not caused by any injuries sustained in the motor accident.

The claimant sought judicial review of the Review Panel’s determination.

The primary judge found that the Review Panel had denied procedure fairness to the claimant by not following the approach that would have been required in a tribunal or court. The primary judge held that it was necessary for the Review Panel to alert the claimant as to the precise symptoms necessary to support the diagnosis of PPV. The primary judge rejected the claimant’s other ground of appeal, which was that the Review Panel’s reasons were insufficient.

The insurer appealed to the Court of Appeal. The claimant filed a notice of contention regarding the ground rejected by the primary judge.

Supreme Court Reasons

Justice Adamson held that procedural fairness depends, in part, on the context. Her honour applied:

1. Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480, where the High Court considered that procedural fairness in the context of a Medical Panel requires the Medical Panel to give an opportunity for parties to supply relevant material and to make submissions based on that material; and
2. Frost v Kourouche (2014) 86 NSWLR 214, where the NSW Court of Appeal held that procedural fairness in the context of a Medical Panel requires that the critical issue be brought to the parties’ attention so that they can provide material and make submissions.

Justice Adamson noted that, in the present case, the claimant was aware (through his solicitors) that the principal issue before the Review Panel was whether he had experienced all or any of the symptoms of PPV. The claimant had several opportunities to describe his symptoms to his treatment providers prior to the assessment by the Review Panel and had been given a further opportunity to do so at the assessment.

Her Honour held that the Review Panel was not obliged to put to the claimant the various versions he had given about his symptoms to ascertain which was the most accurate one, and that the Review Panel was not obliged to inform the claimant the consequence of describing his symptoms in one way rather than another.

In relation to the claimant’s notice of contention, her Honour found the Review Panel’s reasoning to be sufficient.

Justice Basten agreed with Adamson JA’s reasoning and observed, in addition, that the content of procedural fairness is also determined by the statutory scheme under which a decision-maker operates. Justice Basten noted that the relevant provision in this case (s 43 of the Personal Injury Commission Act 2020) does not support the claimant’s contentions regarding the Review Panel’s obligation.

Justices Kirk agreed with Adamson JA’s reasoning and with Basten AJA’s additional observations.

The insurer’s appeal was allowed.

Key Learnings

The decision in AAI Limited trading as GIO v Amos [2024] NSWCA 65 confirms that:

• The requirements of procedural fairness depend on context and on the applicable statutory scheme.
• Procedural fairness in the context of a Medical Panel requires the Medical Panel to give an opportunity for parties to supply relevant material and to make submissions.
• A medical panel is not required to provide information to the claimant as to the nature of the medical evidence which the panel thought might be dispositive of the medical question referred to it.