Speech by the President to Sparke Helmore Lawyers

An Introduction to the Personal Injury Commission of New South Wales

Paper delivered by the President to Sparke Helmore Lawyers

MLC Centre

Wednesday 19 May 2021

It is a pleasure to be with you all here this afternoon.

Before I speak about the new Personal Injury Commission, I want to say a few words about the very fine firm that you are all members of.

As you know, the firm has deep roots in the Newcastle Hunter region having opened its doors in 1882. The firm has always been involved in insurance work, early on building a very strong reputation in statutory insurance before expanding into more specialised insurance lines. It has also had a long and deep history in the mining industry which is not surprising given the Hunter region. Indeed if I pull out the very first volume of the NSW Workers Compensation Reports from 1926, the fourth case reported from 30 September 1926 was a matter called Appleby v Hebburn Ltd. Sparke and Helmore, as it was then described, was appearing for the respondent. This was curiously a case challenging the independence of a medical panel doctor who was an employee of the mine owners’ insurance company. Needless to say, the insurer lost and the worker was awarded 5 pounds, 15 shillings.

What this brief story shows is that your firm not only has long and deep experience in all areas of insurance law, it is part of a very important public service. When the Workers Compensation Commission opened with a civic reception in Newcastle in August 1926 the following was said:

“We must however bear in mind that the State depends upon its industries to a very large extent for its prosperity, and we are desirous of its resources being fully developed and exploited. The Government’s wish is therefore that the industries shall expand, not that they shall be crippled. In the process of expansion, one important matter which should not be overlooked by either employers or employees is the elimination as far as humanly possible of personal injuries to those employed in the industries.”

So at this early time in the evolution of personal injury law, the economic welfare of our community was recognised, as was the need to protect those who work in those industries which contribute to and provide that prosperity.

These remarks were true in 1926 and they are true today. The existence of affordable insurance means that citizens can work, drive vehicles, and otherwise live their lives knowing that if they are injured, potentially some of this loss can be shared around the community through insurance. This means that individuals and their families are not crushed financially by the loss of a breadwinner or by having to support a catastrophically injured relative from their own funds. Sparke Helmore has been involved in these considerations since its inception, particularly in the Hunter, and has contributed markedly to the community as a result. I know we can all get bound up in the day to day business of preparing cases and running a practice and sometimes it is easy to lose sight of the wider public good that the practice of law contributes to.

I look forward to working closely with the profession, particularly firms like this, as we take this area of the law into its next stage of development.

The Personal Injury Commission Act 2020 was assented to on 11 August 2020 and it abolished the Workers Compensation Commission after 95 years of operation and the Dispute Resolution Service after 20 years of operation. Each legacy body was reconstituted as a Division in the new tribunal.

The legislation itself was subject to wide consultation with various stakeholders, and I am very pleased to say that it has widespread support amongst these stakeholder groups. This is of great benefit as we work to establish and build out the new tribunal.

If you followed the Act’s passage through the Parliament, it was variously described as a minimalist reform or a “lift and shift”. Now these statements are self-evidently true. There is no change to any of the underlying benefits under either the workers compensation or motor accidents schemes.

But it would be a mistake to say that there will be no change at all. Because there will be change, which I hope that you will all see in time will be change for the better as the new tribunal finds its legs and begins to operate as envisaged by the Act.

Most of the change it is true will be on the motor accidents side. This is simply because the motor accidents work is transitioning into a tribunal environment. The policy choice twenty years ago was to remove these matters from the courts and put them into a relatively informal process conducted by the Dispute Resolution Service within the office of the regulator, the State Insurance Regulatory Authority.

Now it moves into a tribunal, which of necessity means that the usual type of formality which is associated with tribunal practice will apply. I am sure nothing in that proposition will catch anyone in this room by surprise.

I do think that for each of you as practitioners, particularly with insurer clients, it will mean this. Each matter will have a fairly predictable life as it winds its way through the Commission’s processes.

What I want to get to, is that if an applicant files their case and it is prepared, we will hear it quickly. That means that if you are acting for an insurer, don’t wait until the case is filed thinking that you are going to have months or years in which to prepare your defence to the case. Clearly your insurer clients will have had dealings with the applicant well before any claim is filed in the Personal Injury Commission. I am consulting fairly closely with the Insurance Council and you will be pleased to know I have formed a CTP Insurers User Group, so that as we move to implement new processes across CTP, that practitioners and stakeholders  such as the insurance industry are not caught by surprise.

But this approach is actually in accordance with the Act.

Section 3 of the Act is the objects provision. Unsurprisingly for a new tribunal, we are mandated to resolve the real issues in the proceedings justly, quickly and cost-effectively, with as little formality as possible. We are also to ensure that decisions are timely, fair, consistent and of a high quality and we are to promote public confidence in the decision making of the Commission and the conduct of its members. Our processes are to be open and transparent, and I will have something more to say about this when it comes to publication of decisions.

Importantly in motor accidents though, the objects require the Commission to encourage early dispute resolution.

Now you all might be aware of the provision in the workers compensation legislation which requires the Commission member to conciliate the dispute first, and then the mere fact they have done this is not a ground for that member being excluded from hearing the case. I don’t suggest that the provision in s 3 is as strong or forceful as that, but it is a change in the motor accidents side. It will mean that the Personal Injury Commission members hearing motor accidents matters will be obligated to encourage early dispute resolution before proceeding into formal hearing.

But what is clear from s 3 is that we are being directed by the Parliament to get things on and have them heard quickly.

The second provision I want to draw your attention to is s 42 which is the guiding principle. In broad terms, it says that the guiding principle of the Act and the Commission Rules is to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings. It places a positive duty to cooperate with the Commission in giving effect to this guiding principle. This duty is imposed on all parties to the proceedings and any Australian legal practitioners appearing. Further, when it comes to applications for costs on the motor accidents side, s 42(4) says that the practice and procedure of the Commission should be implemented to facilitate the resolution of issues so that it is proportionate to the importance and complexity of the subject-matter of the proceedings. So if you are litigating about a small amount it will have cost ramifications. You should therefore make sure that whether it’s you or a counsel instructed by you appearing in the Commission, you are all well aware of s 42. I can tell you in my talks with the new members of the Commission, I have highlighted the need to require compliance with s 42 in every proceeding.

Section 43 unsurprisingly is the usual type of provision that you see in tribunal practice which says that the matter should proceed with as little formality and technicality as the proper consideration of the case permits and that the Commission is not bound by the rules of evidence but may inform itself in the way that it thinks is appropriate and proper. Finally, the Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicality or legal form. None of that will surprise anyone here, that is certainly the way the Commission has been conducted in the workers compensation area and is pretty typical of tribunal practice.

Next I want to draw your attention to s 58 and where this is dealt with in the Rules. Section 58 mandates that the Commission must cause details of its decisions to be published. Section 58(1) sets out the types of decisions that this mandatory provision applies to. Now those of you familiar with the operation of the Dispute Resolution Service over the years would recall that unlike the courts and tribunals, the DRS did not have any exemptions from privacy laws. So they have had some difficulty over time publishing their decisions, although in the recent past that has been ameliorated somewhat by de-identifying a number of matters. This however now all changes because of the statutory mandate to publish in s 58. Now we all know that injured persons can be concerned about the publication of details in decisions involving them. The Rules deal with this in rr 131 and 132. I would commend a close reading of those two provisions to you all here, but basically there is a power under the Rules to de-identify or redact aspects of decisions for example if the safety, health or well-being of a person could be adversely affected and where there is a public interest in so doing and that outweighs the public interest in open justice or there is a need to prevent prejudice to the proper administration of justice. So if you need to make that application, you will have 7 days to do so after you are notified of the decision. You also need to be aware of this. Section 3, which I referred to before, talks about the Commission being open and transparent in its processes. The publication of decisions is an aspect of compliance with the objects of the Act as well as the mandatory obligation to publish which appears in s 58.

I think on the motor accidents side the development with regards to the publication of decisions is a welcome and long overdue development. It means that no matter where you are in New South Wales you have access to all the up-to-date precedent decisions on all areas of the Commission’s practice and that can only be a good thing. It puts everyone and their lawyers on a very even playing field when it comes to the preparation and conduct of cases.

I will say that this aspect of the new Commission’s operations has not been without controversy. I have fielded a number of complaints from the medical profession about this and they actually think no decision should be published because of the potential to affect an individual’s wellbeing. With the greatest of respect to these practitioners, I don’t agree with that proposition. As we all in this room know, justice not only must be done it must be seen to be done and an aspect of this involves the publication of decisions. I also think that the publication of decisions encourages honesty and candour, but it also more importantly for the Commission’s members, both legal and medical, is a very public statement of their accountability for their decisions.

The next provision of the Act that I would commend to your reading is Schedule 6. Schedule 6 contains all of the consequential amendments to the workers compensation and motor accidents legislation which underpins the Personal Injury Commission Act and also contains some transitional provisions. I am expecting that there will be some argument about these matters which occurs every time there is a statutory amendment which carries with it transitional provisions. I would commend them to your attention.

The next matter that I would refer you to is really all of the powers which exist under both the workers compensation and motor accidents legislation. You are probably all well familiar with how it has worked historically in workers compensation - the Registrar of the Workers Compensation Commission was really the repository of virtually all of the powers under the Workers Compensation Act and there were various delegations flowing from the Registrar to various officers. Importantly, the Registrar was also a member of the Commission.

Likewise in motor accidents, the Principal Claims Assessor, which is a statutory office, was also the repository of virtually all of the powers under the legislation and this would be delegated to various proper officers, merit reviewers or assessors, but ultimately all of the power resided in the office of the Principal Claims Assessor.

This is no longer the case under the Personal Injury Commission Act. All of the powers under both schemes have been placed with the President of the Personal Injury Commission. I have recently published a table of the delegations, and they have principally gone to three roles, that is the Principal Registrar of the Personal Injury Commission, the Division Head of the Workers Compensation Division and the Division Head of the Motor Accidents Division. Those roles in turn have been granted a capacity in some circumstances to sub-delegate functions. On the Personal Injury Commission website, there is a table of all of the delegations that were made on the 1st of March. I think that’s important because I understand that from time to time questions are asked about which decision maker is entrusted with the power to decide particular matters.

I will say this and this is going to be a bit of a change in motor accidents, in the scheme as it has existed over the past 20 years, there have been various different decision makers, for example the Principal Claims Assessor, proper officers, assessors and merit reviewers. With regards to the assessors some of them would only deal with 1999 Act matters, others only 2017 Act and a few were across both schemes. As far as I am concerned, these old distinctions are now gone and each member assigned to the Motor Accidents Division is empowered to deal with virtually any matter which comes up and which is proper and appropriate to be dealt with by that member. Obviously gatekeeper decisions will still be dealt with by members of the legal and policy team but one thing I can guarantee you, which is a bit different to past practice in the Dispute Resolution Service, is that every decision maker in the Commission, whether they are a member or one of the gatekeeper type decision makers, will all be legally qualified.

Another aspect of change under the Act pertains to the composition of medical panels in third party matters. Medical appeal panels as conducted by the Dispute Resolution Service were comprised of three medical specialists. The Act has changed this, the composition of the appeal panel going forward will be two medical specialists and one of the legally qualified members. Again, this amendment has been met with protest from the medical profession.

Unsurprisingly, I don’t agree with their views in this regard, I think it is a splendid and long overdue reform. In this regard, there was a recent case where Justice Campbell said this of the medical appeal panel in third party matters:

“One may accept that a review panel is engaged in a process of dispute resolution by expert assessment of medical issues arising under the Act. However, the questions arise in a legal context and it is incumbent upon the panel, medical practitioners they may be, to correctly apply the law including the law of causation in the exercise of those powers.”

This is of course a very succinct statement of what I consider to be uncontroversial principle. The substitution of one of the medical specialists for one of our legally qualified members will mean that the medical panels are now better placed to meet this statement of principle as set out by Justice Campbell. This will be completely consistent with the obligation contained in s 3 of the Act to ensure that the decisions are fair, consistent and of a high quality. I should say this though, there are a number of existing medical appeal panels constituted by three medical specialists which need to be conducted under the current regime. We will be providing some decision making or judicial support to those panels to ensure that their decisions are consistent with the object of ensuring the accuracy of those decisions, but of course ultimately the decisions remain those of the medical panel and the medical panel alone.

You are doubtless aware that prior to the commencement of the Commission, the statutory Rule Committee published its Rules. I also issued a number of Procedural Directions.

With regard to the Rules, I have told the profession that later this year, probably around October or November, the Rule Committee will be conducting a review of the Rules in order to discern whether they have been working as intended or whether there are any unforeseen results arising from their operation in practice.

One matter that we are definitely going to be revisiting, and I have made this clear to everybody concerned, pertains to the use of surveillance material in third party matters. Those of you who practise in that area know that there was no requirement to serve film or other surveillance material ahead of a hearing.

That situation I will not allow to endure. There are a number of reasons for this.

Firstly, the new Commission cannot meet its objects under the Act of just, swift and cost-effective proceedings if material is served late. I will be consulting with the profession and the insurance industry about this, but really the question will be is what is the point in the proceedings when such surveillance material, if it is to be relied upon, is to be served. I can tell you it is not the night before, and it is probably not the week before. What I can’t have is cases being adjourned because of late service of such material. So those of you here who practice in CTP, get your thinking caps on because we will be coming to you and your clients probably in July/August to consult purely about this matter. Secondly, what I want to do is collect as many views about this as possible and put them before the Rule Committee so it can consider what is the best solution. A change like this I do not intend to implement overnight, and there will be some discussion about exactly when this change will be implemented.

While I am on the Rules and Procedural Directions, I think it is important that I let you know my attitude to changing them. Obviously I don’t want to persevere with Rules or Directions which are having unintended consequences and adversely affecting the operation of the Commission. Equally, I was in practice a long time, and I know that as a practitioner I would not want to have in the one year multiple versions of Rules or Procedural Directions, so what I will do is this. Generally we will have an annual review of the Rules and Procedural Directions, and if there are any changes we will give everybody notice of them. There is nothing worse than a counsel standing up and addressing upon a set of superseded Rules. But apart from the surveillance issue that we are looking at, there has pleasingly been very little complaint about the Rules as they currently are.

Operationally there are a few things that I do want to speak to you about. Firstly, we now have 6 full time members in the Motor Accidents Division, and two principal members who are appointed to both divisions. This means that we will be able to progress matters through the Commission’s list much more quickly. As you are aware the previous situation with regards to the DRS assessors was that they were all sessional and most of them were actively in legal practice. I hope that in time you will see the benefit from the new configuration of the decision makers on the motor accidents side.

With regards to workers compensation, we have kept the same structure of members and that seems to be working well.

Another change with regards to the CTP members is this. Previously as DRS assessors, they could be both decision makers and practitioners in the jurisdiction. I have ended that practice. This is consistent with the obligation in the Act for the new Commission to be independent and for it to have public confidence.

I also want to speak to you a bit about our IT platform and what we will be doing with it in future. Given there were only 6 months between the passage of the Act and the commencement on 1 March 2021, I have had to maintain the separate IT systems of the  legacy organisations. But I have a project underway, the purpose of which is to discern what the single IT platform will be in order to conduct the new Commission. If you’ve listened to the Minister, he announced on the passage of the Act that the new Commission would be fully digital. On the workers compensations side we are well down this path in that there are no paper filings, and a similar situation exists in CTP. Whilst there have been some teething troubles with the new IT system on the motor accidents side, we have made great strides to remedy those problems and each week the functionality of the system is getting better.

In terms of in-person and audio-visual hearings, my view is that once the pandemic is behind us, the aspiration is that about 25% of the Commission’s work could be conducted online. We will always sit in the larger regional areas, but there is a whole range of work that we can conduct quickly and efficiently online.

In terms of in-person hearings, we are currently having very few of those. The reason is partly to do with the pandemic, but mainly to do with a renovation which is shortly to commence of our 1 Oxford Street premises. I need to build some new hearing rooms to cater for the increased workload of the new tribunal and I need to create a modern set of premises that will be able to accommodate what will be a fully digital tribunal. If any of you have been on the public servants’ and members’ floor at 1 Oxford Street, you would know that they haven’t been touched for probably 20 years and whilst I like the kind of 1970s look and feel of it, it’s not really as functional as it could be. So we are signing a new lease and I would hope to have the renovation done by November this year. Clearly while the builders are in I will not be able to conduct in-person hearings.

Additionally, I am building 8 medical rooms and a hearing booth in 1 Oxford Street. Both divisions have a degree of medical assessments which need to be undertaken. Indeed in CTP it’s about 40% of the work. By having our own medical rooms, we will be able to control the list and more efficiently push cases through, and with the assistance of Commission staff issue the certificates consequent upon a medical examination far more quickly. My expectation is that these will be up and running in the second quarter of 2022.

This last point leads me to a matter which is getting some comment, which is delays in medical assessments in the third party area.

As you might have noticed, we had a once in a century pandemic in 2020. For about 4 or 5 months, in-person medical examinations were suspended at the height of the pandemic. Now during that time, claimants continued to file their usual number of applications for medical assessments. Since late last year, the former Dispute Resolution Service gradually got back to re-commencing medical examinations, some were in-person, some were by audio-visual means, but as at May 2021 we are now fully back to in-person medical examinations, subject to health controls which would not catch any of you by surprise. We are working on a plan to dispense with the delayed matters that we acquired on 1 March and I am sure that with some goodwill and patience we will clear those delayed matters this year. We are working on more efficient listing of these matters, we are getting the doctors to open their diaries and give us more appointments and we are throwing some more resources at being able to deal with these matters. I do however issue this word of caution. I am not going to rush this process. We will work through them methodically and logically. I don’t want to rush these examinations only to create a series of decisions which could be subject to challenge.

So before I take your questions, I would remark this about the commencement on 1 March. You might recall we had a ceremonial sitting of the new tribunal on that day, there is a video of it on our website as well as a transcript of the speeches given by the Attorney General, the Minister for Customer Service, myself and the heads of the Bar and the Law Society. It is worth a look because if you consider all of those commencement speeches, what they do is give the reader the flavour of the history, namely how the Personal Injury Commission came into being and what are some of its plans for the future. The older folks in this room will know that the idea of the combined tribunal has been around for a long time. Indeed the Compensation Court, even though it only heard workers compensation matters, was called the Compensation Court because there was a hope at its inception that it could hear a wider category of matters. It wasn’t until last year that the requisite combination of intent, desire and luck led to the passage of the Act and the creation of the new tribunal.

I think the Personal Injury Commission is an exciting development and has the potential to open up a new era of practice in this area. There are a number of reasons for this view:

• Previously the Dispute Resolution Service sat within a government department. It was neither a court nor a tribunal and that is not a particularly secure situation for any legal practitioner wanting to develop a career in that area of the law.
• Whilst the Commission will operate in accordance with tribunal practice, namely quick, just, efficient and no rules of evidence, the fact is that both motor accident and workers compensation insurance schemes are attended upon by great complexity. A modern tribunal which has skilled members and which publishes its decisions can only enhance practice in this area.
• Quite a lot of practitioners practice across both workers compensation and CTP and I am committed to harmonising as much of the Rules and practice as possible so as to make it easier and more cost effective for practitioners to undertake their work in the new Commission. Obviously we cannot harmonise everything because one has to respect individual aspects of each insurance scheme. But where practice and procedure can be sensibly harmonised, that is our aim.
• On the CTP side, the mere fact of being in a tribunal will make things more formal than what was previously the case. I think this is a good thing, and once we get some of the backlogs we inherited out of the way and I can get into a business as usual operating situation, I will be publishing performance criteria. In that way, you and your clients will be able to anticipate what the life of each matter will be before the Commission.