Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318

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.

Author: Bethany Mahler

Judgment date: 29 September 2020

Citation: Briggs v IAG Limited t/as NRMA Insurance [2020] NSWSC 1318

Jurisdiction: Supreme Court of New South Wales¹

Principles

When an introduced source of information is used by a Review Panel to draw an adverse conclusion about the claim, without notice, procedural fairness may be denied.

The lack of contemporaneous evidence of an injury is not a factor determinative of causation of an injury on its own. It is merely one factor.

A Review Panel's obligation to set out their path of reasoning in sufficient detail, to enable a reader to determine whether it fell into error, does not require the Panel to engage with every opinion.

Background

Mr Briggs suffered injuries in a motor vehicle accident on 22 May 2018. He allegedly sustained injuries to the cervical and lumbar spine, including an annular tear of the L4/5 disc.

A dispute arose as to whether Mr Briggs' injuries were "minor" in accordance with s 1.6 of the Motor Accident Injuries Act (NSW) (MAIA). The dispute was determined by a Medical Assessor however, the certificate was challenged by Mr Briggs. A Review Panel constituted by the State Insurance Regulatory Authority (SIRA) provided a new certificate and reasoning. The Review Panel referenced a Spine Journal article in reaching their decision that the lumbar spine injury was a minor injury not causally related to the accident, because it was not an acute traumatic injury. The article had not been referenced in any of the material relied upon by the Medical Assessor or the parties.

Mr Briggs sought judicial review of the Review Panel's certificate on several grounds including that he was denied procedural fairness as he was not given notice of the Review Panel's intention to rely on the Spine Journal article.

At the hearing the main point of contention was whether the Spine Journal article was medical literature referred to by the Review Panel to clarify spinal terminology or, "…a crucial factor in the Review Panel's finding on causation." If the latter, Mr Briggs submitted he was denied procedural fairness as he was not given notice of the Review Panel's intention to draw an adverse finding against his claim or the opportunity to respond.

Decision

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.

Why this case is important

This case confirms that decision makers have a duty to notify a party of reliance on introduced information that may be critical to the outcome of the dispute, and to afford them an opportunity to respond.
This also serves as a reminder for Medical Assessors and the Review Panel constituted by the SIRA of their obligation to provide adequate reasoning for their decision.

¹ Harrison AsJ