Australia: When in doubt, shout out: Assumptions by administrative law decision-makers
Curwoods Case Note

Currie v Motor Accidents Authority of NSW [2013] NSWSC 83

In Brief

• Denying parties an opportunity to deal with or respond to an issue raised by the decision-maker constitutes a denial of procedural fairness.
• Parties are entitled to an opportunity to respond to conclusions made by decision-makers that are not an obvious and natural evaluation of material.

Background

The plaintiff witnessed a motor vehicle accident that occurred when one of two cars racing on the roadway lost control and collided with a truck, causing the driver to lose control. The truck rolled, finishing upside down. The plaintiff rushed to the aid of the driver, whose legs were trapped; one was partly amputated. The plaintiff tried to lift the cabin dashboard in an attempt to free the driver. Police and paramedics arrived shortly after the accident. The driver was placed in a helicopter; however, he died on the way to the hospital.

The plaintiff alleged that he experienced a sudden onset of lower back pain when he tried to lift the dashboard. The pain became progressively more painful after a couple of hours. He took some Panadol but did not go to see a doctor. Two weeks later, with his back pain worsening and with radiating pain in his upper back and right hip, he went to see his general practitioner and was subsequently referred to a neurosurgeon.

The plaintiff eventually made a claim for compensation but it was rejected by the insurer on the basis that the injuries were not caused as a result of a "motor vehicle accident". This issue, however, was not the subject of this Administrative decision. The issue in this decision related to the plaintiff's MAS Application for assessment of Whole Person Impairment (WPI) and the subsequent assessment.

The matter before MAS and the Review Panel

The MAS assessment was conducted on 17 June 2011 and the Certificate issued on 22 June 2011. Amongst other soft tissue injuries which had resolved, the MAS Assessor (the Assessor) found that the plaintiff had sustained disc damage in the lower back with radiating pain. He concluded that the plaintiff sustained a total 5% whole person impairment as a result of his injuries.

The plaintiff applied for a Review of the assessment, claiming that the percentage of whole person impairment should have been in excess of 10%.

The insurer contended that the matters to which the plaintiff referred as amounting to errors did not do so and, in any event, were not material to the ultimate finding. The insurer also sought a Review on the ground that the whole person impairment was not caused by the accident.

A Review was conducted on 24 November 2011. The Review Panel, consisting of 3 MAS Assessors (the Panel) revoked the assessment and issued a new Certificate to the effect that the plaintiff's injuries were not related to the motor accident. In its review of the assessment, the Panel determined that a re-examination of the plaintiff was not required.

The rationale for the Panel's decision was that there was no contemporaneous evidence of injury or symptoms. Further, the period of three months between the time of the alleged accident and the first report of symptoms was not consistent with him having sustained any significant injury to the lumbar region of his back.

The plaintiff sought relief in the Supreme Court seeking orders that the Panel's decision be quashed and the matter be remitted to the Medical Assessment Service.

Supreme Court Decision

The plaintiff's grounds of relief fell under four heads:

1. Procedural fairness;
2. Procedural ultra vires;
3. Failure to consider relevant material; and
4. The consideration of irrelevant material.

The submissions regarding procedural fairness were found to be the only relevant submissions. His Honour Justice Adams rejected the submissions relating to the other three heads on the basis that they really constituted an attack upon the factual reasoning of the Panel and not in relation to an error of law.

The plaintiff argued that the adverse finding, that if he had sustained any significant injury to the lumbar spine his pain would have been of such severity that he would have sought medical attention, should not have been made without affording him the opportunity to be heard on the matter.

Further, the Panel assumed that the plaintiff had the opportunity to report a significant symptom of back pain to the Ambulance officers at the scene and, in doing so, it again erred in failing to give him the opportunity to be heard.

Adams J found that the Panel assumed that no complaint was made to the Ambulance officer. The absence of a report is mentioned in the context of the Ambulance officers being called to the scene and the conclusion that the "first report" of symptoms in the back occurred three months after the accident.

However, the plaintiff had never been asked whether he had made such a complaint. In that regard, Adams J stated:

His Honour referred to the decision in Commissioner for ACT Revenue v Alphaone Pty Ltd² where it was found that a person likely to be affected by an administrative decision is entitled to an opportunity to "respond to any adverse conclusion drawn by the decision-maker on material supplied by or known to the subject which is not an obvious and natural evaluation of that material".

Adams J found that the Panel had denied the plaintiff natural justice by assuming the plaintiff had an opportunity to report significant back symptoms to the Ambulance officers, without giving him an opportunity to respond to that assumption. Relevantly, the insurer had not raised this issue in its submission to the Assessor or the Panel. His Honour accepted that there were obvious reasons why he might not have had such an opportunity or, even if he did, he might have desisted from reporting at that time, given the horrific situation with which those officers were dealing.

His Honour quashed the Panel's decision and the plaintiff's claim was remitted back to MAS.

Implications

It was the assumption that no contemporaneous complaint was made at the scene of the accident that persuaded the Panel that there was no causal connection between the accident and the injury. At the time of making its decision, the issue that the plaintiff did not report his injury to Ambulance officers at the scene was not raised in the insurer's submissions to the Assessor, or to the Panel. Accordingly, without giving the plaintiff an opportunity to respond to the issue it was found the Panel acted unfairly and denied the plaintiff procedural fairness.

The decision reaffirms that the principles of natural justice dictate that parties are entitled to an opportunity to respond to any adverse conclusion made on the material supplied, which is not an obvious and natural evaluation of that material.

In circumstances where the decision-maker fails to advise of any adverse conclusion which has been arrived at, that would not obviously be open on the known material, the decision may be deemed as unfair as the affected party was denied procedural fairness.

In respect to any MAS Application, the insurer should ensure that any arguments relating to the delay of reported symptoms are addressed in submissions. This would put the plaintiff on notice of the issue and give them an opportunity to address the issue, before the referral to an Assessor or Review Panel.

It is also advised to seek a Review Panel's clinical assessment of a plaintiff, particularly where there are any issues of causation.

Footnotes

¹ Adams J
² (1994) 49 FCR 576

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