Australia: Claims Assessor Denies Procedural Fairness by Relying Upon Wikipedia - Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW [2010] NSWSC 833

Curwoods Case Note
Last Updated: 3 August 2010
Article by Peter Hunt

Supreme Court of New South Wales1

In Brief

  • 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 submissions.

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.

Supreme Court

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 follows:

"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 follows:

"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 happen.
"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 [2007] 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 challenged.

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

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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