MAN INJURED IN A CAR ACCIDENT CLAIMS HE WAS DENIED PROCEDURAL FAIRNESS IN CLAIM FOR INJURIES SUSTAINED
Raina v CIC Allianz Insurance Limited  NSWSC 13 (25 January 2021)
This case involves the plaintiff challenging the decision of a Motor Accidents Medical Assessment Service Review Panel alleging that he was denied procedural fairness due to the lack of medical literature provided to him.
The plaintiff, Mr. Roshaan Raina, challenges the validity of the decision of a Motor Accidents Medical Assessment Service Review Panel (“Review Panel”) whose members are named jointly as the third defendant in these proceedings. The Review Panel was convened by the proper officer of the second defendant, the State Insurance Regulatory Authority of New South Wales (“SIRA”) under s.63(3) Motor Accidents Compensation Act 1999 (“the Act”). Mr. Raina is the claimant for motor accident damages for injuries he suffered in a motor accident.
Counsel for the plaintiff argued that the Review Panel denied Mr. Raina procedural fairness. He submitted that the Review Panel considered 22 studies, of which only 2 had been referred to in the evidence placed before them. Counsel argued that the failure to put Mr Raina on notice of their intention to utilize the studies in informing their decision amounted to a denial of procedural fairness. Further, Counsel submitted that the Review Panel did not give Mr. Raina notice of the questions it had for him and so denied him the opportunity to respond. Mr. Robinson submitted that by operation of cl 16.16, 16.19.6 and 16.21 the panel has the power to request further information and the Review Panel failed to avail itself of this opportunity. Mr. Robinson further submitted that it was a requirement of cl 1.41 of the Guidelines that where there were inconsistencies between the medical assessor’s clinical findings and any medical records that the injured person must be given the opportunity to respond to the inconsistencies.
Counsel for the defendant submitted that the Review Panel did not deny Mr. Raina procedural fairness by referring to peer reviewed articles in making its assessment. He argued that it was unnecessary for the Review Panel to refer to the articles on which it relied but in demonstrating its process of reasoning it chose to outline and summarize the materials it relied upon. Further, Mr. Rewell argued that the material was not a “critical factor” in the Review Panel’s decision.
Issue: Was the plaintiff denied procedural fairness due to the lack of medical literature provided to the plaintiff?
A decision-maker must advise the person affected “of any adverse conclusion which would not obviously be open on the known material”. It is clear that the conclusions adverse to Mr. Raina, drawn from its review of the medical literature, was not drawn to his attention by the Review Panel. He was not asked to comment or allowed the opportunity to make further submissions.
While the court finds plaintiff’s argument that the contents of peer reviewed medical literature forms part and parcel of an expert’s special knowledge, which could be brought to bear in an expert assessment without express mention, the process adopted here was somewhat different. The Review Panel did not draw upon their accumulated medical knowledge including information derived from their ongoing professional development involving the reading of learned literature, just as a lawyer may enhance her or his knowledge by reading law reports. Rather, the members found it necessary to embark upon a specific, targeted review to resolve the issues they identified. Notwithstanding the other important adverse findings made, it cannot be gainsaid that that review was influential in their decision-making process. It may have informed other important findings of fact. The conclusions derived from their specific review should have been drawn to Mr. Raina’s attention for his comment and submissions. Even a court of ordinary jurisdiction may be under a similar obligation in regard to legal precedents not put before the court by the parties, but rather, representing the product of the judge’s own research.
The matter should be referred for reconsideration by a differently constituted Panel in accordance with these reasons. A different Panel should be convened because given the detailed consideration afforded the issues by the members of the previous Panel, it seems unlikely that they will be able to approach the matter entirely afresh.
Court orders to set aside the medical assessment certificate issued by the third defendant and the two medical assessment certificates and to remit the matter to the second defendant for reference to a differently constituted review panel.