Author: Tasnim Ali
Judgment date: 1 July 2021
Citation: Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance  NSWSC 804
Jurisdiction: Supreme Court of NSW, Walton J
- Procedural fairness requires decision makers to disclose all material relied upon to inform their decision, unless it is straightforward or within common knowledge. The duty extends to affording those affected by the decision to consider and respond to that material.
- Decision makers must apply the correct test of causation, namely whether the accident caused or contributed to the injury complained of. Failure to look beyond contemporaneous evidence (or lack therof) may well lead a decision maker into error.
On 20 December 2018, the plaintiff was involved in a motor vehicle accident, allegedly sustaining injuries to his cervical and lumbar spine, and to his right 2nd
toe. The insurer disputed that the plaintiff sustained a non-minor injury to either the neck or back and whilst the plaintiff's toe required amputation, the insurer contended that this was not caused by the accident. A medical assessor upheld the insurer's decision, and this was later affirmed by a Medical Review Panel.
The plaintiff sought judicial review on the grounds that the review panel:
(a) denied procedural fairness by failing to give the plaintiff notice of its intention to rely on certain publications to draw an adverse conclusion about the plaintiff's case;
(b) denied procedural fairness by failing to afford the plaintiff an opportunity to address the above mentioned publications;
(c) failed to apply the correct principles of causation in respect of the toe injury; and
(d) erred in finding that the absence of a contemporaneous complaint or report of injury was determinative of the issue of causation.
The court found that the epidemiological material referred to extensively by the Review Panel informed its conclusion that the cervical and lumbar spine injuries were minor injuries. The material was determinative of the issue of whether the injuries to the cervical and lumbar spines were minor injuries for the purposes of the legislation, and was used by the Review Panel adversely to the plaintiff without giving him notice of it. None of this material was provided to the plaintiff for comment/submissions, or for the plaintiff to send to his medical experts for consideration and comment. The material was not within the common knowledge of the plaintiff and was not straightforward. As a result, the plaintiff suffered a practical injustice, because he had not been given a fair opportunity to be heard about this material.
The plaintiff stated that his right foot was on the brake at the time of the accident. The jolting caused by the rear-end collision resulted in his foot being smashed into the bar holding the brake pedal. The insurer relied on a lack of contemporaneous record of this complaint in either the ambulance or hospital records and contended that the subsequent amputation was due to extraneous causes.
The court concluded that the task confronting the Review Panel was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation?
In this regard, Walton J cited AAI Ltd t/as GIO v McGiffen  NSWCA 229, in which the Court of Appeal stated:
 The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
 In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.”
Because the Review Panel failed to afford the plaintiff procedural fairness and failed also to apply the correct of causation, it fell into jurisdictional error and its certificate was set aside.
Why this case is important
This case illustrates the importance of decision makers sharing material relied upon to inform their decisions where that material is not otherwise straightforward or within common knowledge. Persons affected by those decisions are entitled to consider and respond to such material before the decision is made.
The case also serves as a reminder that decision makers must apply the correct test of causation, namely whether the accident caused or contributed to the injury complained of. Failure to look beyond contemporaneous evidence, or a lack of such evidence, may well lead a decision maker into error.