Originally Published by Andrew Gorman and Bethany Mahler on Monday, November 2, 2020 10:26:09 AM
Is procedural fairness denied if a Claimant is not put on notice that a decision maker will be relying on introduced information to draw an adverse conclusion about their claim? The Supreme Court of New South Wales provides the answer in Briggs v NRMA.
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Harrison AsJ held the Review Panel's certificate and reasons should be set aside as procedural fairness was denied. She explained, at [60]:
"As in Pascoe, it is my view that the Review Panel in these proceedings used the article to draw an important adverse conclusion about the plaintiff’s case. The Review Panel had an obligation to provide the plaintiff with notice, and an opportunity to respond, before taking into account concepts drawn from an unknown source. To fail to do so was to deny the plaintiff procedural fairness."
Harrison AsJ considered the Review Panel's use of the article extended beyond using medical literature which was straightforward or common knowledge. Rather, the article introduced terms that were unknown to the parties and not defined in the MAIA or the Motor Accident Guidelines.
On that basis, Harrison AsJ found, at [87]:
"The Review Panel has constructively failed to exercise jurisdiction and made errors of law as it relates to findings on whole person impairment arising from the accident."
Final Result
The Supreme Court quashed the Review Panel's certificate and reasoning.
The matter was remitted to the SIRA to be determined according to law.
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