Author: Bethany Mahler
Judgment date: 29 September 2020
Citation: Briggs v IAG Limited t/as NRMA Insurance  NSWSC 1318
Jurisdiction: Supreme Court of New South Wales1
A dispute arose as to whether Mr Briggs' injuries were "minor" in accordance with s 1.6 of the Motor Accident Injuries Act (NSW) (MAIA). The dispute was determined by a Medical Assessor however, the certificate was challenged by Mr Briggs. A Review Panel constituted by the State Insurance Regulatory Authority (SIRA) provided a new certificate and reasoning. The Review Panel referenced a Spine Journal article in reaching their decision that the lumbar spine injury was a minor injury not causally related to the accident, because it was not an acute traumatic injury. The article had not been referenced in any of the material relied upon by the Medical Assessor or the parties.
Mr Briggs sought judicial review of the Review Panel's certificate on several grounds including that he was denied procedural fairness as he was not given notice of the Review Panel's intention to rely on the Spine Journal article.
At the hearing the main point of contention was whether the Spine Journal article was medical literature referred to by the Review Panel to clarify spinal terminology or, "…a crucial factor in the Review Panel's finding on causation." If the latter, Mr Briggs submitted he was denied procedural fairness as he was not given notice of the Review Panel's intention to draw an adverse finding against his claim or the opportunity to respond.
"As in Pascoe, it is my view that the Review Panel in these proceedings used the article to draw an important adverse conclusion about the plaintiff’s case. The Review Panel had an obligation to provide the plaintiff with notice, and an opportunity to respond, before taking into account concepts drawn from an unknown source. To fail to do so was to deny the plaintiff procedural fairness."Harrison AsJ considered the Review Panel's use of the article extended beyond using medical literature which was straightforward or common knowledge. Rather, the article introduced terms that were unknown to the parties and not defined in the MAIA or the Motor Accident Guidelines.
On that basis, Harrison AsJ found, at :
"The Review Panel has constructively failed to exercise jurisdiction and made errors of law as it relates to findings on whole person impairment arising from the accident."
The matter was remitted to the SIRA to be determined according to law.
This also serves as a reminder for Medical Assessors and the Review Panel constituted by the SIRA of their obligation to provide adequate reasoning for their decision.
1 Harrison AsJ