Jazairy v GIO: procedural fairness in a psychiatric WPI review

Ms Jazairy was not at the accident scene when her mother was killed on 12 December 2018 after a truck mounted a footpath. She later developed post-traumatic stress disorder after learning what had happened. GIO admitted the truck driver was at fault, accepted that the accident caused her PTSD and accepted that the psychiatric injury was not a threshold injury.

The remaining medical issue mattered because Ms Jazairy sought non-economic loss as part of a common law damages claim. Under section 4.11 of the Motor Accident Injuries Act 2017, damages for non-economic loss are not available unless the degree of permanent impairment caused by the motor accident is greater than 10%. That test is separate from whether a psychiatric injury is a threshold injury.

The medical opinions differed materially. Her treating psychiatrist assessed 17% WPI, while an insurer-arranged psychiatrist assessed 7%. A PIC Medical Assessor later assessed 19% WPI. GIO successfully applied for referral to a Review Panel under section 7.26 of the Act.

A review under section 7.26 is not confined to checking whether the first assessor made the particular error alleged by the applicant. The Review Panel carries out a fresh assessment of all matters referred for assessment. It may form its own medical opinion using the records, submissions, examination and the expertise of its members.

The Panel re-examined Ms Jazairy by videoconference. It revoked the 19% certificate and assessed 7% WPI. The panel reasons focused on the extent of functional impairment shown by the records and the history obtained during the re-examination, including education, work, travel, financial activity and daily functioning.

That change was decisive for non-economic loss because 7% did not satisfy the statutory greater-than-10% test. It did not alter the accepted finding that the PTSD was a recognised psychiatric illness and not a threshold injury.

The challenge concerned additional material that included an unredacted academic transcript, bank statements and further insurer submissions. The claimant argued that the Panel had considered this material without first making an express decision granting leave under the applicable PIC Rules.

Muston J considered Rule 67C and the broader rules governing non-compliance. Rule 8 characterises a failure to comply with the Rules as an irregularity that does not, by itself, nullify the proceedings, a document, a step or a decision unless the Commission determines otherwise. Even if the leave procedure had not been followed, the Court was not satisfied that Parliament intended this kind of irregularity automatically to invalidate the review decision.

The result should not be read as permission to bypass the Rules. A party seeking to rely on further evidence should still identify the material, seek any required leave and explain why it should be received. The other party should state any objection promptly and ask for a practical opportunity to answer it.

Ms Jazairy also argued that she had not been given a written opportunity to respond to the insurer’s later submissions. Procedural fairness is not decided by asking whether an ideal process could have been used. The Court examined whether the process actually caused a practical injustice or forensic disadvantage.

The disputed issues were known, and they were put to Ms Jazairy during the re-examination. She was able to explain the academic results, bank transactions, travel and other matters. The Panel largely accepted those explanations. The Court therefore found that she had received a meaningful chance to deal with the critical issues.

Materiality was also important. Even if a procedural problem had occurred, a court ordinarily asks whether there was a realistic possibility that the decision could have been different without it. No such possibility was established on the evidence. A judicial review challenge should therefore identify not only what step was missing, but what specific answer or evidence could have been provided and how it might have affected the outcome.

One member of the Panel was said to have questioned Ms Jazairy aggressively and to have asked, in substance, why she had not moved forward from her mother’s death. The questions were blunt and concerned a deeply personal loss. The legal question, however, was whether a fair-minded observer might reasonably apprehend that the Panel might not bring an impartial mind to the assessment.

The Court assessed the exchange in the context of an inquisitorial medical review. The Panel had to investigate the severity and continuing functional effect of the PTSD, rather than passively receive competing reports. It was also relevant that the Panel accepted much of Ms Jazairy’s explanation. The questioning did not establish apprehended bias or procedural unfairness on the evidence before the Court.

The judgment does not establish that tone never matters or that any form of confronting psychiatric questioning is acceptable. Intimidating conduct, a closed mind, refusal to hear an answer or treatment that materially prevents a claimant from presenting the case may raise different issues. The full context and the practical effect must be examined.

This was judicial review, not a merits appeal from the medical assessment. The Supreme Court considered alleged legal and procedural error. It did not decide whether 7%, 17% or 19% was the best clinical assessment and did not replace the Panel’s medical opinion with its own.

The case does not mean additional documents can always be considered without leave, that a written response is never required or that an oral answer will cure every problem. Fairness depends on the issue, the timing, the material, what the party knew, the opportunity actually given and whether the process could realistically have affected the result.

Nor does the decision reduce psychiatric WPI to evidence of study, travel or bank transactions. Those records may bear on function, but they require context. A claimant may complete an activity with substantial support, distress, reduced efficiency or later consequences. Medical and functional evidence should explain what the activity does and does not show.

Finally, psychiatric and physical WPI are assessed separately for the greater-than-10% test and cannot be combined to cross the threshold for non-economic loss.

A Review Panel may reconsider the entire medical dispute. Preparation should therefore address the full psychiatric history and function, not merely answer the alleged error in the first certificate. Inconsistencies between reports, study records, work history, travel, financial records and the claimant’s account should be identified and explained before the re-examination.

If new material appears, record when it was received, whether leave was granted, the objection made, the response time requested and the evidence that would answer it. A procedural objection is stronger when it identifies a concrete forensic disadvantage rather than relying only on the absence of a formal step.

After the certificate is issued, distinguish disagreement with medical judgment from a reviewable legal error. Internal review, PIC medical review and Supreme Court judicial review perform different functions and have different requirements. Advice should be obtained promptly because procedural time limits may apply.

The useful evidence depends on the issues in the certificate and review application. A focused file commonly includes:

• the insurer decision, original medical assessment certificate and statement of reasons
• the review application, acceptance decision, directions and all Pathway Portal correspondence
• treating psychiatrist, psychologist and GP records showing diagnosis, treatment and longitudinal function
• medication history, hospital records and evidence of any interruptions or barriers to treatment
• education, work, travel and financial records relied upon by either party, with contextual explanations
• statements or occupational evidence addressing day-to-day function, support, reliability and after-effects
• a chronology of additional documents, leave requests, objections and opportunities to respond
• the Review Panel certificate, reasons, any examination record and accurate notes of the questioning