Australia: Did Review Panel Fail to Afford Natural Justice?

Curwoods Case Note
Last Updated: 21 October 2012
Article by Louise Talbot

Golijan v Motor Accidents Authority of New South Wales [2012] NSWSC 1106

Judgment date: 19 September 2012

Jurisdiction: Supreme Court1

In Brief

The failure of a medical assessor or review panel to expressly refer to evidentiary material in a decision or accept one "competing opinion" over another will not automatically demonstrate a failure to afford natural justice.


On 4 December 2003, the plaintiff was injured in a motor vehicle accident. Medical Assessor Rosenthal assessed injuries to the neck, left arm, left shoulder, back and right arm and certified that only the injuries to the neck and back were caused by the accident and did not give rise to a whole person impairment which was greater than 10%.

On 22 November 2010, the plaintiff lodged a MAS 4A application for further assessment of the injuries to the neck, right shoulder, left shoulder and cervical spine. The plaintiff relied on medical opinion from orthopaedic surgeon Dr Duckworth and an MRI scan. The MRI scan indicated there was a disc protrusion at C5/6 and posterior bulging of the disc at C6/7. Dr Duckworth quantified limitations of the range of motion of the plaintiff's shoulders and described the plaintiff as having wasting of the supraspinatus region and concluded that he had a whole person impairment of 17%.

The insurer provided a report from Dr Harvey in response. Dr Harvey found no muscle wasting and was of the opinion that the plaintiff's symptoms were largely unrelated to the accident and that those symptoms did not "have a significant physical basis". In a supplementary report, Dr Harvey accepted there was some wasting of the plaintiff's spinati muscles but attributed this to lack of use.

The Proper Officer allowed a further assessment of the plaintiff's neck, arms, shoulders and back injuries. A further assessment was undertaken by Dr Rosenthal. Dr Rosenthal did not alter his previous assessment and concluded there was no contemporaneous medical evidence of injury to both arms and shoulders in the accident and proceeded to give a whole person impairment rating of 0%.

The plaintiff applied for review of the certificate issued by Dr Rosenthal. It was contended that Dr Rosenthal's approach involved an error identified by Justice Hall in Nguyen v Motor Accidents Authority of New South Wales 2 . The plaintiff submitted that Dr Rosenthal had excluded the possibility that referred pain from the plaintiff's neck to his shoulders was capable of satisfying a statutory test because it was not an injury that occurred immediately at the time of the accident.

The MAS review panel concluded that the only injury caused by the accident was soft tissue injury to the neck and assessed the level of whole person impairment resulting from that injury at 0%.

The plaintiff sought judicial review of the certificate issued by the review panel constituted under s 63 of the Motor Accidents Compensation Act 1999.

Supreme Court Judgment

The plaintiff complained that the review panel failed to make any reference to the radiological investigations which showed pathology in the plaintiff's cervical spine and argued that the Permanent Impairment Guidelines and AMA 4 3 impose an obligation to refer to this material.

Justice Beech-Jones rejected the plaintiff's argument. In arriving at his decision, his Honour considered the Impairment Guidelines and AMA 4. He concluded they "might form a basis for importing a requirement on an assessor and a review panel to consider the material listed although that would depend upon, inter alia, the nature of the condition being assessed and potentially what the substantive part of the Impairment Guidelines and AMA 4 provided for in respect of that form of condition when assessing whole person impairment".

His Honour noted that Dr Duckworth stated that the radiological reports did not explain the plaintiff's condition and his Honour concluded that, given the marginal relevance of the radiological reports, no relevant form of error can be inferred from the absence of any specific reference to them by the review panel.

The plaintiff also complained that the review panel failed to provide adequate reasons for not accepting the opinion of Dr Duckworth. His Honour rejected the plaintiff's argument on the basis that Dr Duckworth's opinion was not a "competing opinion" as he did not provide any firm opinion as to the cause of the difficulties with the plaintiff's upper extremity. The effect of the review panel's own examination was to disagree with the proposition that there was some connection between the neck and the shoulder wasting which was the premise of Dr Duckworth's opinion and, given the tentative nature of Dr Duckworth's assessment, that was all that was required in this case.

His Honour also rejected the plaintiff's argument that the review panel's decision to reject the injuries to the plaintiff's upper extremities were causally related to the accident involved a breach of natural justice. Firstly, his Honour did not accept that the review panel was confronted with competing medical opinions between Dr Duckworth and Dr Harvey, and secondly, the review panel's assessment was consistent with that of Dr Harvey and did not travel beyond the issues in dispute between the parties.

Justice Beech-Jones ultimately dismissed the summons.


The decision is of assistance to insurers when determining the nature and extent of a medical assessor or review panel's obligation to consider evidentiary material and whether a medical assessor or review panel has failed to afford natural justice by accepting one medical opinion over another.


1 Beech-Jones J
2 [2011] NSWSC 351
3 American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th Ed (1995)

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.