A claims assessor denies the parties procedural fairness by
taking into account his or her own research into an issue without
giving the parties an opportunity to consider the information
obtained and adduce evidence and/or make submissions.
The Supreme Court handed down its decision in Australian
Associated Motor Insurers Ltd v Motor Accidents Authority of
NSW on 30 July 2010.
The claimant was injured in a motor accident on 11 July 2006.
Her claim was referred to a claims assessor for assessment. A sum
in excess of $330,000 was ultimately awarded. Whilst the insurer
asserted a number grounds of jurisdictional error by the assessor,
the primary challenge was based upon the assessor taking into
account information he obtained on Wikipedia, without giving the
parties an opportunity to consider the material and make their own
The assessor stated in his Reasons that he had consulted
Wikipedia to inform himself as to the alleged meaning of the
conditions `reflex sympathetic dystrophy' and `complex regional
pain syndrome'. The insurer argued that it was denied
procedural fairness because the assessor took into account the
information on Wikipedia without first raising it with the insurer
and therefore depriving it of the opportunity to adduce relevant
evidence and/or making submissions on the new material.
During the assessment of the claim, no expert or other evidence
was tendered to explain the nature and implications of the
Claimant's RSD or CRPS. The assessor did not ask the parties
for assistance in understanding the nature of the condition.
In the Supreme Court, the claimant argued that by consulting
Wikipedia, the claims assessor had conducted some research which
was akin to consulting a dictionary to check the meaning of a word.
However, at paragraph 21, Barr AJ rejected that submission, as
"I am unable to accept that
submission. In my opinion the claims assessor's references to
the possibility of symptoms spreading to involve an entire limb and
commonly the opposite limb or other appendages, the softening and
thinning of bones, joint tenderness or stiffness, rapid shedding of
skin, the continuity of the pain and the eventuality that joints
become stiff from disuse and the skin, muscles and bone atrophy
show that the claims assessor was probably doing much more than
that. He was bringing into consideration symptoms and consequences
which had not been understood by the parties as having any
relevance to the case that was before the claims assessor. It is
not easy to understand why the claims assessor mentioned those
matters, at least without some qualification to respect the issues
in the instant case, if he was not going to take them into account
in the assessment."
In addition to finding that the claims assessor used the
information he obtained on Wikipedia to assess the claimant's
entitlement to damages, Barr AJ accepted the insurer's
submission that the information the claims assessor obtained was
possibly unreliable. His Honour explained, at paragraph 22, as
"Evidence was put before
this Court about information published by the proprietor or
operator of the Wikipedia service. Anyone can contribute to the
service and anyone can edit what has been contributed by others.
Specialised qualifications are not required for contributors or
editors. That is not to say that articles on any topic, including
the one of interest here, have not been contributed or edited by
suitably qualified medical persons. However, as the publishers of
the service say, allowing anyone to edit articles means that the
service is more easily vandalised or susceptible to unchecked
information. It warns that articles on subject areas sometimes
suffer from significant omissions, and that while misinformation
and vandalism are usually corrected quickly, that does not always
"It is possible that the
material which the claims assessor obtained was completely accurate
but in view of the disclaimers published by the service, there
seems to be a substantial risk that it contained errors. It seems
to me that if the claims assessor had informed the parties that he
was informing himself by that means, the parties would have been
entitled to and would have wished to make submissions about whether
the information derived from that source was reliable and to put
before the claims assessor evidence from the medical practitioners
they had qualified."
At paragraph 25, Barr JA concluded that the insurer had
established a denial of procedural fairness, as follows:
In my opinion the plaintiff has
established that it was denied procedural fairness and its
entitlement to an order setting aside the assessment and remitting
the matter to the CARS for assessment according to law. It seems to
me that in view of the nature of the information acquired by the
claims assessor it would be better if the assessment were done by
another claims assessor.
Having made this finding, Barr JA set aside the CARS Certificate
and remitted the claim to the PCA for allocation to a different
assessor to re-assess the claim.
The decision in Australian Associated Motor Insurers Ltd v
Motor Accidents Authority of NSW provides a useful example of
the kind of error which can result in a successful administrative
law challenge in the Supreme Court.
It is notoriously difficult to demonstrate administrative law
error in the manner a claims assessor considers the evidence
presented by the parties and forms conclusions. In Insurance
Australia Limited v Helou  NSWSC 1451, the Supreme Court
made it clear that neither an allegation of generosity nor an
allegation that a claims assessor misinterpreted the medical
evidence amounts to jurisdictional error. These kinds of errors are
made `within jurisdiction' and can not, therefore, be
By contrast, what occurred in Australian Associated Motor
Insurers Ltd v Motor Accidents Authority of NSW denied the
insurer procedural fairness. The claims assessor had jurisdiction
to assess damages. He did not have jurisdiction to conduct his own
research – and draw conclusions from that research
– without advising the parties of the research he
conducted and giving the parties an opportunity to respond to it.
By failing to do so, the claims assessor denied the parties an
opportunity to be heard.
1 Barr AJ
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The failure of a party to call a witness does not necessarily give rise to an adverse inference being drawn in accordance with Jones v Dunkel (1959) 101 CLR 298. An unfavourable inference is drawn only if evidence otherwise provides a basis on which that unfavourable inference can be drawn.
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