Supreme Court New South Wales

• Medium Neutral Citation: NRMA Insurance Limited v Ainsworth [2011] NSWSC 344
• Hearing dates: 21 March 2011
• Decision date: 29 April 2011
• Jurisdiction: Common Law
• Before: Rothman J

Decision

(i) Judgment for the defendants;

(ii) Proceedings dismissed;

(iii) The plaintiff shall pay the first defendant's costs of and incidental to the proceedings, as agreed or assessed.

• Catchwords: ADMINISTRATIVE LAW - Motor Accidents Compensation Act - Claims Assessor's preference for certain evidence over inconsistent evidence - Browne v Dunn - failure to cross-examine claimants - no error of law - merits appeal - finding as to degree of likelihood of future domestic care - no evidence to support degree of likelihood - no evidence of likely periods that domestic assistance required - error of law - exercise of discretion not to issue orders
• Legislation Cited: Civil Procedure Act 2005; Motor Accidents Compensation Act 1999; Supreme Court Act 1970
• Cases Cited: Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090; (2006) 68 NSWLR 266; Allianz Australia Insurance Ltd v Roger Ward & Ors [2010] NSWSC 720; Allianz Australia Insurance Ltd v Ward [2009] NSWCA 264; Allied Pastoral Holding Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1; Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1; Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126; Browne v Dunn (1893) 6 R 67; Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; (2006) 67 NSWLR 372; Checchia v Insurance Australia Ltd trading as NRMA Insurance [2009] NSWSC 1005; Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135; Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; Dolan v Australian and Overseas Telecommunications Corporation [1993] FCA 202; (1993) 31 ALD 510; Edwards v Santos Limited [2011] HCA 8; Employers Federation of NSW v Greco (1993) 51 IR 451; Haberfield v Department of Veterans' Affairs [2002] FCA 1579; (2002) 72 ALD 33; Haider v JP Morgan Holdings Aust Ltd Trading as JP Morgan Operations Australia Ltd [2007] NSWCA 158; Hoskins v Repatriation Commission [1991] FCA 559; (1991) 32 FCR 443; Insurance Australia Limited Ltd trading as NRMA Insurance v Hutton-Potts and Ors [2010] NSWSC 1446; Kirk v Industrial Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531; Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638; Marelic v Comcare [1993] FCA 599; (1993) 47 FCR 437,; Ormwave Pty Limited & Anor v Smith [2007] NSWCA 210; Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell Whit [No 2] (1990) 35 IR 60; R v Birks (1990) 19 NSWLR 677; R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389; R v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation [1981] HCA 33; (1981) 147 CLR 471; R v R (1989) 18 NSWLR 74; Re Association of Architects; Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 63 ALJR 298; Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 [2003] HCA 60; (2003) 201 ALR 437; Re National Building Trades Construction Award 1975 & Other Matters (1983) 17 I.R. 446; Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82; Re Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185; Rodger v De Gelder & Anor [2011] NSWCA 97; Sullivan v Department of Transport (1978) 20 ALR 323
• Category: Principal judgment
• Parties: NRMA Insurance Limited (Plaintiff); Jennifer Anne Ainsworth (First Defendant); Colin Stoten in his capacity as a Claims Assessor of the Motor Accidents Authority of New South Wales (Second Defendant); Motor Accidents Authority of New South Wales (Third Defendant)
• Representation: Counsel: M A Robinson (Plaintiff); M Perry (First Defendant); Submitting appearance (Second Defendant); Submitting appearance (Third Defendant); Solicitors: Moray & Agnew Lawyers (Plaintiff); Fishburn Watson O'Brien (First Defendant); Crown Solicitor's Office (Second Defendant) Crown Solicitor's Office (Third Defendant)
• File Number(s): 2011/8996

Judgment

1 The plaintiff, NRMA Insurance Limited (hereinafter "NRMA"), seeks orders in the nature of certiorari, challenging the validity of an assessment and certificate issued by Mr Colin Stoten (hereinafter "the Assessor"), a Claims Assessor with the Motor Accidents Authority of New South Wales (hereinafter "the Authority") (the third defendant), in relation to an accident in which the first defendant, Mrs Jennifer Ainsworth (hereinafter "Mrs Ainsworth"), was injured. The second and third defendants submit to any order of the Court, save as to an order for costs.

2 On 20 December 2010, the Assessor issued a certificate and reasons assessing the amount of damage at $632,313.21, reduced by an amount of $26,643.94 in accordance with s 130 of the Motor Accidents Compensation Act 1999 (hereinafter "the Act") plus costs of $46,811.09 (including GST). NRMA submit that the assessment and certificate are vitiated by error of law on the face of the record and/or jurisdictional error (including a constructive failure to exercise statutory power).

3 The facts giving rise to the motor vehicle accident are irrelevant except as possible background. NRMA has accepted liability for the accident. Medical Assessors have certified in accordance with the Act and the Assessor's purported issuing of the certificate and reasons therefor, on 20 December 2010, were pursuant to the terms of s 94 of the Act, by which, pursuant to the terms of s 95(2)(b) of the Act, NRMA is formally bound. There being no appeal from the Claims Assessor's determination, the only remedy for error of law that is determinative of the certificate is an application for certiorari, or orders in the nature thereof.

4 Notwithstanding the foregoing, it is necessary to recite, very briefly, the facts giving rise to the motor vehicle accident and, more relevantly, the material upon which the Assessor purported to Act. These facts are not controversial and are generally taken from the reasons for decision issued by the Assessor.

Facts and decision below

5 On 10 January 2007, Mrs Ainsworth was driving her car and was involved in a head-on collision with another vehicle. The driver of the other vehicle was at fault and, as has been stated, NRMA has admitted liability.

6 Mrs Ainsworth was trapped in the vehicle and her left calf was pinned underneath the clutch. She was conveyed by ambulance to Coffs Harbour District Hospital. Her injuries were life threatening and she was conveyed by air ambulance to the John Hunter Hospital in Newcastle where she was treated for multiple injuries and observed in respect of a serious head injury resulting in seven days of post-traumatic amnesia.

7 Her injuries were described in the clinical notes at Coffs Harbour District Hospital as:

(a) closed severe head injury requiring transfer to a tertiary hospital;

(b) dislocated and fractured right hip which was relocated in hospital and a large posterior wall fragment was observed;

(c) fractured left forearm involving both the radius and ulna bones;

(d) laceration over the left anterior tibula; and

(e) other injuries including a fractured right orbit and lung contusion.

8 The John Hunter Hospital discharge summary confirmed those injuries and noted:

"multi-trauma fracture and posterior dislocation of the right hip, fracture of the left radius and ulna and fracture of the right orbital floor.

Other diagnosis included parietal contusion anterior to the vertex, haematoma in the CSF posterior vertex."

9 The parties disputed whether, as a result of the accident, there was an injury or a specified injury, to the left ankle. The Assessor determined that there was an injury to the left ankle and that it was caused by the motor accident of 10 January 2007. In doing so, the Assessor, accepted the opinion/assessment of Dr Lethlean.

10 The other area of contention, and plainly the most serious area of medical controversy, was the issue of the degree to which Mrs Ainsworth suffered cognitive impairment, if any.

11 The issue in relation to the cognitive impairment arises from the existence of conflicting medical/psychological reports. Two specialists, qualified by NRMA, provided reports, which were tendered before the Assessor. Neither specialist was cross-examined. Those specialists were Associate Professor Mattick (Psychologist) and Professor Lance (Neurologist). Rather, the Assessor relied on Dr Lethlean (Neurologist). The report of Professor Lance was dated 27 April 2010 and the report of Associate Professor Mattick was dated 26 May 2010. The report of Dr Lethlean was dated 13 October 2010. Dr Lethlean was a Medical Assessor and, also, a specialist in the relevant area. The Assessor dealt with the controversy, at least in part, in the following way:

"12. The other major source of contention between the parties is in respect of the claimant's cognitive impairment. The claimant indicates in her statements and in the statements of her husband that she continues to be troubled to a moderate degree by difficulties in memory, speed of thought processing, slowness of speech and difficulties with maintaining communication with friends and by telephone as well as difficulties in dealing with loud noises and crowds with she avoids where possible. The insurer says, based on appropriate medical evidence from Associate Professor Richard Mattick and Professor Lance, both eminent Medical Specialists, that the claimant for all intents and purposes has recovered from her head injury and that she is really left with no ongoing sequelae of significance.

13. I do not accept the opinions of Associate Professor Mattick or Professor Lance for the following reasons:-

(i) Both of the opinions expressed appear to accept what they have indicated has been given to them as a history of the claimant's improvement since the accident. Both the claimant and her husband have now provided statements dealing with those histories and I accept that the histories obtained by each of those doctors is unreliable, probably because the claimant tends to understate her difficulties.

(ii) Furthermore, I accept the opinion of Dr. Lethlean, an experienced and senior clinician that the claimant continues to exhibit evidence of cognitive impairment as is set out in his report dated 13 th October, 2010. Dr. Lethlean took a careful history from the claimant and had available to him the opinions of Professor Lance and Associate Professor Mattick. Significantly Dr. Lethlean states:-

' She appears to understate her difficulties '

And further:-

' In my opinion, and particularly on the basis of probability, there is a mild memory defect ... In my opinion there are two error in Serial 7's subtractions (NMSE) is consistent with her own reports of difficulties which I have not thought adequately explained by depression. Impairment of concentration is included '.

Ultimately Dr. Lethlean ascribes 12% Whole Person Impairment as a result of the cognitive impairment.

(iii) I accept the claimant's evidence to me that she continues to be affected in terms of her day to day activity as a result of her memory problems and concentration problems. The claimant's husband has provided detailed statements as to the nature and extent of those problems and he was not required for questioning by the insurer and therefore I have little difficulty in accepting what he has set forth in those statements. Clearly the accident has resulted in a significant impairment of the claimant's cognitive abilities and on the material before me I have little doubt in accepting that those difficulties will continue with her for the balance of her lifetime."

12 NRMA were aware that Dr Lethlean's report was before the Assessor. Dr Lethlean was, also, not the subject of cross-examination. It is appropriate to set out certain relevant extracts from the reports of Professor Lance and Associate Professor Mattick. Professor Lance's report states:

"She considers that her intellectual functioning has become more rational from when she was examined before in 2008 and that she was functioning almost at pre- accident levels, although she concedes that her concentration is not as good as it was before.

She and her husband agree that her short-term memory is intact but she is occasionally vague about past memories. She has less confidence in herself. She enjoys gardening and taking holidays now as she feels that she is no longer doing unnecessary activities that were cluttering up her life.

...

Cognitive Testing

From Paragraph 5.9 on Page 31 of the MAA Permanent Impairment Guidelines for an assessment of mental status impairment there should be:

i) evidence of significant impact to the head or of cerebral insult or that the motor accident involved a high velocity vehicle impact and

ii) one or more significant medically verifiable abnormalities such as an abnormal initial post-injury Glasgow Coma Scale Score or post-traumatic amnesia or brain imaging abnormality.

...

EXAMINATION

Mrs Ainsworth had an attractive presentation and manner and made no attempt to embellish any symptoms.

...

OPINION

The question of possible cognitive impairment resulting from her head injury of 10 January 2007 hinges on the assessment of her recent memory which she and her husband said is now normal. By the MAA criteria the other elements of cognitive function cannot be taken into consideration if recent memory is normal. On the evidence that I have before me at the moment, the balance of probabilities is that her memory is normal and that she does not therefore qualify for an assessment of Whole Person Impairment."

13 Associate Professor Mattick's report, in part, states:

"4.11 I inquired about current problems affecting her ability to work because of the accident and she listed the following difficulties:

4.11.1 She complained that her left ankle has 'deteriorated', explaining that for two years prior to the accident in question her left ankle could be 'a little swollen and sometimes it ached' and she would rub it with Tiger balm. She said, however, that because of the right hip fracture she has had to weight bear on the left leg and this weight bearing, plus her left shin injury, has led to numbness and 'now I'm hobbling more' and she is forced to wear orthotic inserts in her shoes.

4.11.2 When asked about other problems affecting her ability to work, Ms Ainsworth complained by initially saying, 'That's the main one,' referring to the previous problem, but then said that she can suffer right hip aching getting into or out of a borrowed car which she drives.

...

7. CURRENT COMPLAINTS:

7.1 Ms Ainsworth listed the following current complaints as still affecting her because of this motor vehicle accident:

7.1.1 She complained of left ankle pain.

7.1.2 She complained of right hip pain if she is tired.

7.1.3 She denied other major problems affecting her day to day currently.

...

11. ASSESSMENT OF COGNITIVE FUNCTIONING:

11.1 Neuropsychological Observations : Ms Ainsworth said that she was assessed in terms of her cognitive functioning in Coffs Harbour, being unsure of the date that this occurred. She said that her memory and concentration have 'improved since then', telling me that at the time 'I just felt like an idiot... early on'.

11.2 I note that she was assessed by Mr McCombie in terms of her cognitive functioning in February 2009 (see below).

11.3 Predicted Pre-Injury Cognitive Capacity : I assessed her likely pre-injury cognitive capacity using the Wechsler Test of Adult Reading, a measure of pre-morbid IQ, and she achieved the following results:

Predicted pre-accident Verbal IQ	= 99
Predicted pre-accident Non Verbal IQ	= 100
Predicted pre-accident Full Scale IQ	= 99

11.4 Intellectual Abilities Today : She has been assessed by Mr McCombie in terms of her intellectual abilities and based on his raw scores she appears to have achieved the following results for him:

Verbal IQ	= 102
Non Verbal IQ	= 113
Full Scale IQ	= 107
Verbal Comprehension	= 101
Perceptual Organisation	= 118
Working Memory	= 109
Processing Speed	= 91

11.5 Today on the Wechsler Adult Intelligence Scale - Third Edition (WAIS-III) she achieved the following result for her Processing Speed Index:

Processing Speed

= 103

11.6 Memory Functioning : She was assessed previously in terms of memory functioning and for Mr McCombie in February 2009 she achieved the following results:

Auditory Immediate Memory	= 102
Visual Immediate Memory	= 112
Immediate Memory	= 108
Auditory Delayed Memory	= 99
Visual Delayed Memory	= 118
Auditory Recognition Delayed	= 85
General memory	= 104
Working memory	= 111

...

12.4 Injury In Question : She obviously suffered a head injury in the accident in question with decreased Glasgow Coma Scale scores and a CT brain scan showed right parietal contusion as well as haematoma.

12.5 She was administered morphine at the accident scene as well as midazolam and the combination of these medications would have robbed her of recall at that time. Thereafter she underwent surgery with multiple anaesthetic administrations as well as potent analgesic medication.

12.6 She reportedly had a post-traumatic amnesia period of 12 days.

...

12.15 Cognitive Functioning : Ms Ainsworth has always been a woman of average intellectual abilities as she is now.

12.16 Mr McCombie assessed her and found no problems with her intellectual abilities, although he thought her processing speed was a little slow. I point out that her processing speed was in fact not significantly discrepant from expectation given her overall IQ. I also point out that he found that on one of the two subtests assessing processing speed her results were exactly in the middle of the average range, whilst on the second subtest she performed in a less efficient manner. He did not take account of the possibility that this may have been due to variable effort given one normal result and one lacklustre result.

...

12.22 Mr McCombie also diagnosed a post-concussional disorder.

12.22.1 I disagree.

12.22.2 I think that her memory and intellect are intact. Her other cognitive abilities are intact currently."

14 The other issue about which NRMA complains is the assessment insofar as it deals with the head of damage for future care. That part of the judgment is in the following terms:

"39. At the Assessment Conference, I enquired as to whether or not a claim for future care was being made. A claim for future care was not apparent from the claimant's written submissions although the CARS Application Form did in fact make such a claim. The insurer's position was that they opposed any such claim being made because there [sic] were not really put on notice in relation to it. Mr Perry, for the claimant pointed to various parts of Dr. Cummine's report in which he deals with the need for care because of the prospect of advancing osteoarthritis particularly in respect of the left ankle. Ultimately the claimant made a claim for six to seven hours per week of domestic assistance calculated from the time the claimant aged 60 and for the balance of her life expectancy. I asked Mr Perry what evidence he relied upon in order to base that submission and he frankly conceded that there was no such evidence but that it would be a reasonable assumption to make having regard to the claimant's injuries. The insurer indicated that if I allowed the claimant to make a claim for future domestic assistance that they would not require time within which to obtain any further evidence to meet that claim.

40. It seems to me that based on the evidence that the claimant will likely suffer future disability in respect of the inevitable osteoarthritis which will occur in relation to her left ankle and mostly likely, further down the track in relation to her right hip. Dr. Cummine rightly says that she will require assistance as the osteoarthritis progresses. However it should be noted that I have allowed for in these Reasons future surgery to deal with the position that the claimant will ultimately find herself in, in future years when she becomes incapacitated to the extent that she, and her medical advisors, consider that surgery will be necessary. The very purpose of surgery is of course is to make the claimant better and reduce her level of pain and it seems to me that in the absence of any claim made for paid care that any future gratuitous domestic assistance in relation to Section 128 would be limited to the period of perhaps several months prior to any such surgery and several months post surgery. Such surgery of course is not likely to take place it would seem before perhaps ten years into the future so that a discount factor will need to be applied to any claim that is made. The relevant deferral multiplier for ten years is .614. The current rate for gratuitous domestic assistance is $24.57 per hour and I accordingly allow the following: -

6 hours per week x 26 weeks x $24.67 x .614 (deferred for ten years) = $2,363.00 and I allow that sum."

15 The aspect about which complaint is made relating to future care amounts to a total of $2,363 in a total amount of damage of over $600,000. The issue of the acceptance of Dr Lethlean over the reports of Professor Lance and Associate Processor Mattick is a matter that affects each of the heads of damage that make up the total damages assessed.

Jurisdiction to issue certiorari

16 The jurisdiction to issue certiorari is an inherent power of the Court that it has possessed since at least 1824. By operation of s 69 of the Supreme Court Act 1970, the Court continues to have the jurisdiction to grant certiorari: see s 69(1)(c) of the Supreme Court Act . The foregoing subsection continues the jurisdiction to grant certiorari but, as a matter of form, prohibits the issue of the writ and substitutes, for that writ, relief or remedy in or to the same effect by way of judgment or order: see s 69(1)(d), (e) and (f) of the Supreme Court Act .

17 The provisions of s 69 of the Supreme Court Act do not limit the jurisdiction of this Court to issue certiorari, or orders in the nature of certiorari, and do not limit the jurisdiction of the Court to exercise its powers of judicial review, and, therefore, no issue of validity of that section arises: Kirk v Industrial Commission of New South Wales [2010] HCA 1; (2010) 239 CLR 531.

18 By s 69(3) and s 69(4) of the Supreme Court Act , the Court's jurisdiction to grant orders in the nature of certiorari include the jurisdiction to quash the ultimate determination, if that determination were to have been made on the basis of an error of law on the face of the record, which is defined to include the reasons expressed for that ultimate determination. In that respect, the provisions of s 69(3) and s 69(4) of the Supreme Court Act arguably broaden the jurisdiction to grant certiorari, or orders in the nature thereof, beyond that which was available under the common law: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163. Nevertheless, the limits on the issue of the writ, imposed by the nature of the writ in common law, still apply.

19 Certiorari, or orders in the nature thereof, do not issue as a form of appeal. Appeals are a statutory remedy, generally broader than the common law right of review. In Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1, Brennan J said, at 35-36:

"The duty and jurisdiction of the courts to review administrative action do not go beyond the declaration and enforcing of the law which determines the limits and governs the exercise of the repository's power. If, in so doing, the court avoids administrative injustice or error, so be it; but the court has no jurisdiction simply to cure administrative injustice or error. The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power, and, subject to legal control for the repository alone.

The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and extension of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case.

There is one limitation, ' Wednesbury unreasonableness' (the nomenclature comes from Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223), which may appear to open the gate to judicial review of the merits of a decision or action taken within power. Properly applied, Wednesbury unreasonableness leaves the merits of a decision or action unaffected unless the decision or action is such as to amount to an abuse of power: Nottingham Shire County Council v Secretary of State for the Environment [1986] AC 240 at 249. Acting on the implied intention of the legislature that a power be exercised reasonably, the Court holds invalid a purported exercise of the power which is so unreasonable that no reasonable repository of the power could have taken the impugned decision or action. The limitation is extremely confined."

20 This has been recently reiterated, albeit in dissent, in the judgment of Hayne J in Edwards v Santos Limited [2011] HCA 8. The fact that, on the issue of costs in the court below, Hayne J was in dissent, does not, with great respect, detract from the eloquent statement of principles of his Honour, which was in the following terms:

"[17] The certiorari to which the plaintiffs in this matter are entitled is certiorari to quash the orders made at first instance and in the Full Court of the Federal Court. Reference is made in Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; (2002) 209 CLR 372 at 463-465 [255]-[260]; [2002] HCA 16 to some aspects of the history of the development in England of certiorari to quash and the relationship between the development of certiorari to quash and the writ of error. But as was pointed out in McBain [2002] HCA 16; (2002) 209 CLR 372 at 465-467 [261]-[266], the place which is now occupied by certiorari alongside the constitutional writs of prohibition and mandamus must be determined having close regard to the Australian constitutional context. In particular, in a matter of the present kind, where certiorari is directed to a superior court of record for jurisdictional error, it is not to be expected that immediate assistance will be gained by consideration of 19th century English practice in relation to certiorari.

[18] ... [A]s was said in R v Northumberland Compensation Appeal Tribunal; Ex parte Shaw [1951] EWCA Civ 1; [1952] 1 KB 338 at 357:

'It is plain that certiorari will not issue as the cloak of an appeal in disguise. It does not lie in order to bring up an order or decision for rehearing of the issue raised in the proceedings. It exists to correct error of law where revealed on the face of an order or decision, or irregularity, or absence of, or excess of, jurisdiction where shown. The control is exercised by removing an order or decision, and then by quashing it.'

Or, as the same point was put in Craig v South Australia [1995] HCA 58; (1995) 184 CLR 163 at 175; [1995] HCA 58, certiorari 'is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made ' (emphasis added)." ( Edwards v Santos , supra, per Hayne J.)

21 The comments of Hayne J as to the position of certiorari alongside the constitutional writs is more apposite to the federal jurisdiction than the jurisdiction exercised by this Court, although, as is clear from Kirk , supra, the writ issued out of this Court must still be read in the context of the Constitution. For present purposes, the distinction between the issue of orders in the nature of certiorari, on the one hand, and an appeal on the other, is important. This Court, on judicial review, will not rehear issues going only to the merits of the decision under review, or exercise the jurisdiction or power of the decision maker afresh.

The structure of the Motor Accidents Compensation Act 1999

22 It is necessary to outline the general structure of the Act, within which context, the particular issues raised in this Court are to be considered. The Act has been the subject of much authority. The general overview of the objects of the legislation and the purposes of the legislature should be recited.

23 The purpose of the legislation was to facilitate compensation for motor accidents without the need for curial proceedings. Medical Assessors, under the Act, resolve the differences between the victims of a motor accident and the relevant insurer, on behalf of the driver at fault, and, in particular, whether the alleged accident occurred, whether it was the cause of any injury suffered, and the extent of such injury. From that medical assessment, there exists a right of appeal to a Review Panel (which also consists of Medical Assessors, being duly qualified medical practitioners, usually in the area of specialty to which the injury relates).

24 The insurer is obliged by the Act to endeavour to resolve the claim, by settlement or otherwise, justly and expeditiously. It is the insurer's duty to make a reasonable offer of settlement, where liability is not in issue, and in those circumstances, the insurer is required to cover hospital, medical and other expenses from the time that the insurer admitted such liability, or, if liability were not admitted, from such time as it is determined. It is also necessary for the insurer to take reasonable steps for the medical rehabilitation of the claimant under the Act.

25 In return, the claimant is required to cooperate fully with the insurer about the claim and provide to the insurer enough information to satisfy it as to the validity of the claim and in order to facilitate early settlement.

26 Generally, while there are claims that are subject to court proceedings, which are claims that are considered complex, claims will be assessed by Claims Assessors in accordance with guidelines that have been issued.

27 While Medical Assessors are appointed from amongst the ranks of qualified medical practitioners, usually amongst those relevant specialists in a particular area of dispute, Claims Assessors are, generally, legal practitioners who are certified specialists in the particular area. The process is one in which an assessment is made, more informally than in curial proceedings, by a specialist tribunal governed by the terms of the Act and the Guidelines promulgated under it.

28 For a general discussion on the details of the Act see, inter alia, my judgment in Checchia v Insurance Australia Ltd trading as NRMA Insurance [2009] NSWSC 1005, at [7]-[11]; and see, also, Insurance Australia Limited Ltd trading as NRMA Insurance v Hutton-Potts and Ors [2010] NSWSC 1446, at [13]-[29] (per Schmidt J).

29 I respectfully adopt the analysis of the scheme of the Act by her Honour Schmidt J and, without reiterating same, rely, in particular, on that passage to which reference has already been made and the passage from the judgment of Young JA in Allianz Australia Insurance Ltd v Ward [2009] NSWCA 264, in which Young JA said, at [48]-[50]:

"[48] The ' MAC Act ' clearly sets up a regime whereby there is to be a relatively informal assessment of damages by an administrative official. This displaces the former system of trial by judge or judge and jury with witnesses called and cross-examined. The new system is doubtless much cheaper. However, one would not expect that its accuracy would be as great as the result obtained through what is now regarded as a 'Rolls Royce' procedure.

[49] The legislature doubtless considered that errors could emerge out of the new procedure. However, it provided that there would be a review for obvious error by the Principal Claims Assessor, but only for obvious error and provided no appeal to the insurer.

[50] The aim of the legislature was to see that claimants were assessed quickly and cheaply and paid their entitlements promptly."

30 I do not recite the provisions of the Guidelines promulgated under the Act, but I will return to some of those provisions. It is sufficient, for present purposes, to reiterate that the Claims Assessor is bound by the rules of natural justice and/or procedural fairness which are, possibly in stricter terms, repeated in the Guidelines: see Allianz Australia Insurance Limited v Crazzi [2006] NSWSC 1090; (2006) 68 NSWLR 266, at [182]. The Claims Assessor is required to take into account the objects of the Act, and even if that were not expressly required by the terms of the Guidelines, it would, of necessity, inform the exercise of any discretion under the Act.

31 Further, the Claims Assessor is required to provide a timely, fair and cost effective system for the assessment of claims under the Act, which is supposed to be accessible, transparent, independent and professional (Guidelines 1.14.1). The Assessor is required to assess claims and disputes fairly and according to the substantial merits of the application with as little formality and technicality as is practicable and minimising cost (Guideline 1.14.2), all the while ensuring quality and consistency (Guideline 1.14.3).

32 The Guidelines also require measures to be taken, so far as is reasonably practicable, to ensure the parties have an opportunity to have their submissions considered (Guidelines 16.2.3) and to ensure that relevant material is available so as to enable all the relevant facts in issue to be determined (Guidelines 16.5). The Assessor may also admit into evidence the contents of any document that has previously been provided despite non-compliance with any time limit or other requirement (Guidelines 16.6). Each of these powers is informed by the duty of the Claims Assessor to deal with the matter "quickly, fairly and as cost effectively as is practicable".

The preference for the opinion of Dr Lethlean: the first issue

33 As earlier stated, NRMA contends that error of law is disclosed in the Assessor's acceptance of the opinion of Dr Lethlean and, expressly or impliedly, his rejection of the opinions of Professor Lance and Associate Professor Mattick. This conduct is said to constitute:

(a) an error of law on the face of the record; and/or

(b) jurisdictional error;

(c) constructive failure to exercise statutory power.

34 These errors are said to arise because the Assessor failed to provide reasons or lawful reasons for these conclusions and the conclusion was inconsistent with the duty of the Assessor to act fairly towards the parties and to accord equity to each of them.

35 There can be no controversy as to the duty of the Assessor to provide reasons. By operation of s 94(5) of the Act, the Assessor was bound to record a "brief statement" of his reasons for the assessment.

36 I have already recited that part of his Honour's published reasons for determination, which deal with his preference for Dr Lethlean over the other two medical specialists. It cannot be said that the Assessor did not consider the two medical reports relied upon by NRMA. It cannot be said that the Assessor did not disclose why he preferred Dr Lethlean to those two reports.

37 In essence, NRMA seeks to impose upon the Assessor the requirements of a court of law, in circumstances where the Act expressly provides for an informal process. Neither of the parties before the Assessor required, or applied to have, any of the doctors available for cross-examination. The Assessor, therefore, was left with three medical/psychological reports, which were contradictory.

38 In a court of law, it may well be that, absent cross-examination, onus of proof issues would determine causation and/or damage. In a matter before a Claims Assessor, and in the absence of an application to cross-examine any of the doctors by either of the parties, each of whom are represented by legal practitioners, it is not an error of law for the Assessor to arrive at a conclusion of which there is evidence, simply because that conclusion is inconsistent with another conclusion that was available to the Assessor.

39 A wrong conclusion of fact, so long as there is evidence of the fact, is not an error of law. There is said to be a distinction between a lack of logic and an error of law, to which distinction the High Court referred in Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321. In that case Mason CJ said:

"[88] But it is said that '(t)here is no error of law simply in making a wrong finding of fact': Waterford v. The Commonwealth [1987] HCA 25; (1987) 163 CLR 54, per Brennan J. at p 77. Similarly, Menzies J. observed in Reg. v. The District Court; Ex parte White [1966] HCA 69; (1966) 116 CLR 644, at p 654:

'Even if the reasoning whereby the Court reached its conclusion of fact were demonstrably unsound, this would not amount to an error of law on the face of the record. To establish some faulty (e.g. illogical) inference of fact would not disclose an error of law.'

[89] Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."

40 The acceptance of Dr Lethlean's view of the continuing cognitive impairment suffered by Mrs Ainsworth is complicated by the practice before Claims Assessors, as I understand it, where expert witnesses are not cross-examined. The practice, however, does not prohibit cross-examination of lay witnesses who, again as I understand it, are cross-examined by leave and in a manner that is confined to the essential issues.

41 Indirectly, this raises the issue of the applicability of the rule in Browne v Dunn (1893) 6 R 67, extracts from which are reiterated at length in Allied Pastoral Holding Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, per Hunt J; and see, also, R v Birks (1990) 19 NSWLR 677, at 686-692, per Gleeson CJ.

42 The issue of the applicability of Browne v Dunn , supra, to proceedings of this kind is not without controversy or difficulty. It depends, essentially, on the nature of the administrative decision undertaken and the process to form it. The High Court of Australia has authoritatively stated that in the context of an administrative decision arrived at by an inquisitorial process, the rule in Browne v Dunn has no application: Re Minister for Immigration and Multicultural Affairs; Ex parte S154/2002 [2003] HCA 60; (2003) 201 ALR 437, at 449, [56]-[57]. The High Court there made clear that the non-adversarial nature of the decision-making process was an essential feature of its reasoning process.

43 On the other hand, courts and tribunals have, almost invariably, determined that in adversarial proceedings, even non-judicial proceedings, governed by rules of fairness, the rule in Browne v Dunn applies: see Re National Building Trades Construction Award 1975 & Other Matters (1983) 17 I.R. 446 (Australian Conciliation & Arbitration Commission, Ludeke, Alley JJ and Merriman C); Pastrycooks Employees, Biscuit Makers Employees & Flour & Sugar Goods Workers Union (NSW) v Gartrell Whit [No 2] (1990) 35 IR 60, at 64-69, per Hungerford J; Employers Federation of NSW v Greco (1993) 51 IR 451, at 455, per Maidment and Schmidt JJ and Redman CC; Marelic v Comcare [1993] FCA 599; (1993) 47 FCR 437, at 442, per Beazley J; Haberfield v Department of Veterans' Affairs [2002] FCA 1579; (2002) 72 ALD 33, at 345, per Sackville J; Dolan v Australian and Overseas Telecommunications Corporation [1993] FCA 202; (1993) 31 ALD 510, at 512, 513 and 515, per Spender J; Hoskins v Repatriation Commission [1991] FCA 559; (1991) 32 FCR 443, at 446, per Pincus J.

44 The Full Bench of the then Australian Conciliation & Arbitration Commission in Re National Building Trades Construction Award 1975 & Other Matters , supra, put the proposition succinctly:

"Although the Commission is relieved by s 40 of the Act from any obligation to act in a formal manner and although it is not bound by any rules of evidence and indeed although it may inform itself on any matter in such manner as it thinks just, we believe nevertheless that the rule in Browne v Dunn should be observed in proceedings in the Commission.

In particular we adopt what was said by Lord Herschell in this case, when his Lordship said:

'It is absolutely essential for the proper conduct of a cause; where it is intended to suggest that a witness is not speaking to truth on a particular point, to direct his attention to the fact by some questions put in cross-examination, showing that that imputation is intended to be made and not to take his evidence and pass it by as a matter altogether unchallenged and then when it is impossible for him to explain, as perhaps he might have been able to do if such questions had been put to him, the circumstances which it is suggested in the case that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit.'

In our view this is no more than a rule which we adopt as being essential to fair play and fair dealing with witnesses."

45 Dealing with the procedures in the Administrative Appeals Tribunal, Sackville J said:

"[58] The AAT is not bound by the rules of evidence: AAT Act, s 33(1)(c). It is, however, obliged to adopt 'fair procedures which are appropriate and adapted to the circumstances of the particular case': Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550, at 585, per Mason J; Dolan v Australian and Overseas Telecommunications Corporation (1993) 42 FCR 206, at 207, per Spender J; Lodkowski v Comcare (1998) 53 ALD 371, at 386, per Goldberg J. The application of the rule in Browne v Dunn has been treated as an aspect of procedural fairness and, if breached, capable of vitiating a decision of the AAT: Hoskins v Repatriation Commission (1991) 32 FCR 443, at 446, per Pincus J; Dolan v AOTC, at 208, per Spender J. The rule in Browne v Dunn was formulated by Hunt J in Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1, at 16, as follows:

'It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn.'

[59] The application of the rule in Browne v Dunn as an aspect of procedural fairness must take account of the statutory functions of the AAT. The task of the AAT is not necessarily limited by the issues identified by the parties. As was said by Brennan J in Bushell v Repatriation Commission [1992] HCA 47; (1992) 175 CLR 408, at 425, in substance the AAT's review of the primary decision is inquisitorial in character, with the AAT under a duty to arrive at the correct or preferable decision on the material before it. Subject to the rules of procedural fairness, the AAT is entitled to inform itself on any matters relevant to the pleadings in such manner as it thinks appropriate: s 33(1)(c)."

46 In my view, subject always to the rules of fairness imposed not only by the common law but by the guidelines promulgated and binding on Claims Assessors, Claims Assessors are entitled to inform themselves on matters relevant to the issue before them in such manner as they think appropriate. Ordinarily, and subject to the attitude of the parties, this would require that the parties (and through them their witnesses) be put on notice as to matters that are relevantly in issue concerning the evidence adduced by them. In other words, I take the same view as did Sackville J in Haberfield , supra.

47 Relevant to the issue under discussion, and raised in a somewhat different context by the plaintiff in these proceedings, is the procedure adopted by the Assessor. The claims assessment procedure, amongst other things, is governed by the Claims Assessment Guidelines, and, most relevantly, at Chapters 15 and 16. While the Guidelines must be read as a whole, the most relevant aspects of the Guidelines, and the most relevant aspects of Chapters 15 and 16, are:

"15.2 The Assessor may direct the parties to the assessment to submit to the Assessor and to any other party to the assessment a signed statement detailing the evidence to be given by any witness to be questioned. If the witness does not attend the assessment, the statement by the witness need not be disregarded, and may be taken into account by the Assessor.

15.3 The Assessor may require the presentation of the respective cases of the parties to be limited to the periods of time that the Assessor determines are reasonably necessary for the fair and adequate presentation of the cases.

15.4 The Assessor shall determine the manner in which evidence is presented, at an Assessment Conference, ensuring that:

15.4.1 each party is to be given an opportunity to address the Assessor on any issue in dispute and to put to the Assessor any questions that the party seeks that the Assessor ask or any areas that the party wants the Assessor to explore;

15.4.2 the examination of parties and witnesses is usually by the Assessor and questions to other parties or witnesses may only be put as directed by the Assessor;

15.4.3 the Assessor may, at the request of a party allow the questioning of a witness or a party, by either party's legal representative or agent, subject to any limitations as determined by the Assessor;

15.4.4 the Assessor may question any party or witness to such extent as the Assessor thinks proper in order to elicit information relevant to the claim; and

15.4.5 the Assessor cannot compel any party or witness to answer any question, but may have regard to the failure of a party or witness to answer a question in the determination of the assessment, unless the party has a reasonable excuse for that failure to answer.

...

15.9 An Assessor may not take into consideration in respect of the case of each party, reports (excluding reports from treating practitioners) from:

15.9.1 more than one medical expert in any specialty (unless there is a substantial issue as to a medical dispute referred to in section 58 - in which case two medical expert reports in any specialty relevant to the injury concerned may be allowed); and

15.9.2 experts in the same field of any other kind;

except as provided in clause 15.10.

...

15.11 If a claim, or a dispute in connection with a claim, is to be assessed by holding an Assessment Conference, the Assessment Conference is to be conducted between the Assessor, the claimant (and/or the claimant's legal representative or agent) and any parent, spouse, legal guardian, carer or other support person of the claimant, the insurer (and/or the insurer's legal representative or agent), and any interpreters or witnesses, or other persons the Assessor requires or allows to appear, and otherwise the Assessment Conference is not to be open to the public. The Assessment Conference is not to be recorded by way of a video or tape recording or other electronic device without the prior approval of the Assessor and all of the participants in the Assessment Conference.

...

16.1 In conducting an assessment the Assessor may determine the Assessor's own procedure and is not bound by the rules of evidence and may inquire into any matter in such manner as the Assessor thinks fit.

16.2 The Assessor is to take such measures as are reasonably practicable to:

16.2.1 ensure that the parties to the application understand the nature of the application, the issues to be considered and the role of the Assessor as an independent decision-maker;

16.2.2 explain to the parties any aspect of the procedure of the assessment, and any interim decision or ruling made by the Assessor during the course of the assessment, in respect of that procedure, that relates to the application;

16.2.3 ensure that the parties have an opportunity to have their submissions considered; and

16.2.4 ensure that the parties have had an opportunity to explore the settlement of the dispute.

16.3 The Assessor is to act with as little formality as the circumstances of the matter permit and according to equity, good conscience and the substantial merits of the matter without regard to technicalities and legal forms.

16.4 The Assessor is to take into account the objects of the Act and the objects of CARS at all times.

16.5 The Assessor is to ensure that relevant material is available so as to enable all of the relevant facts in issue to be determined.

16.6 The Assessor may admit into evidence the contents of any document that has previously been provided by one party to the other party, despite non-compliance with any time limit or other requirement specified in the Act or the Guidelines in relation to that document or service or exchange of it after taking into account any submissions of the parties.

16.7 The Assessor is to progress the resolution of the matter as quickly, fairly and as cost effectively as is practicable.

16.8 The Assessor shall determine the way in which an assessment is to proceed and may:

16.8.1 decide the elements of a claim on which oral evidence or oral argument may be submitted;

16.8.2 direct that evidence or argument be presented in writing;

16.8.3 direct that submissions be presented in writing;

16.8.4 determine whether an Assessment Conference is necessary and the time and place for any Assessment Conference that is to be held;

16.8.5 determine whether any other conference is necessary; and

16.8.6 direct the number and/or type of witnesses who can give evidence at the conference."

48 The foregoing establishes a scheme that, in part, is an inquisitorial system, and in other respects an adversarial system. It is the Assessor who determines the number and type of witnesses, albeit subject to Chapter 15. By Chapter 15.4, it is the Assessor who "usually" examines witnesses and parties, but the Assessor may "at the request of a party" allow questioning of a witness or party. I am informed by the parties in these proceedings, and I am otherwise aware, that the practice is generally that the Assessor will, in a manner not totally dissimilar to the way in which this Court conducts concurrent evidence, when allowing cross-examination, lead the examination of the witness and strictly control the subject matter and timing of any cross-examination by the parties thereafter or as a consequence thereof.

49 Usually, as the Court is informed, there is examination of lay witnesses (including the parties) by the tribunal and thereafter cross-examination within the limits imposed by the Claims Assessor. For cross-examination to occur, it must occur after an application to cross-examine. Further, it is uncommon in the Claims Assessor process for expert witnesses to be cross-examined, either by the tribunal or by any one or all of the parties.

50 In this case, no application was made by either party to cross-examine any of the medical/psychological experts. As a consequence, Dr Lethlean was not cross-examined by NRMA. And Professor Lance and Associate Professor Mattick were not cross-examined by Mrs Ainsworth. More relevantly, neither Mr Ainsworth nor Mrs Ainsworth were cross-examined by NRMA; nor was an application made for their cross-examination.

51 The latest statement of Mrs Ainsworth was dated 30 June 2010 and was available to NRMA well prior to the assessment conference. The latest statement of her husband, Mr Peter Ainsworth was dated 24 June 2010.

52 Associate Professor Mattick, whose report is dated 26 May 2010, conducted a document review for which the latest statements were not available and, from that review, it does not seem that even the earlier statements (dated December 2009), of either Mr or Mrs Ainsworth, were available to him. He stated (Exhibit A, p 849) that other than the left ankle and hip pain, Mrs Ainsworth "denied other major problems affecting her day-to-day currently".

53 The report of Associate Professor Mattick does recite the comment of Mr Ainsworth that Mrs Ainsworth's memory seemed to have improved but she may be slower with word finding when she is tired and that she was more private and tended to avoid crowds. Associate Professor Mattick also recites the comments of Mr Ainsworth as to Mrs Ainsworth's lower confidence, the serious effect on her emotional wellbeing and self-worth, bouts of depression, suicidal ideation, avoidance of decision making and that she tended never to complain. Nevertheless, Associate Professor Mattick relied upon Mrs Ainsworth's statement that her memory and concentration have improved since her cognitive functioning had been measured at Coffs Harbour.

54 Associate Professor Mattick seems to rely significantly on his assessment that Mrs Ainsworth performed as a general average student and worked at occupations which required average ability. He also relied, significantly, on her statement that she had no difficulties with concentration or her ability to read short novels. Associate Professor Mattick seems to assess her pre-injury cognitive capacity at a lower level than her cognitive capacity after the injury.

55 Professor Lance's report, dated 27 April 2010, also repeats Mrs Ainsworth's statement that her intellectual functioning has become more rational from when she was examined in 2008 and that she was functioning almost at pre-accident levels. He does qualify that by suggesting that Mrs Ainsworth concedes her concentration is not as good as it was before. Like Associate Professor Mattick, it does not seem that Professor Lance was provided, or took account of, the statements of December 2009 and obviously did not have the latest statements. He also relies, significantly, on her statement, and her husband's statement that her memory is now normal. Mr Ainsworth's statement of 24 June 2010 raises significant problems with his capacity to be allowed to explain to Professor Lance the true position of Mrs Ainsworth.

56 On the other hand, Mrs Ainsworth's statement of December 2009 refers to her continuing to suffer, amongst other things, loss of memory; occasional word finding difficulty; change in personality - withdrawn and less prone to be initiative [sic]; difficulty with attending to personal finances; difficulty with pre-accident domestic and recreational activities; fatigue and tiredness; and depression and anxiety (see Exhibit A, p 315 and following).

57 Professor Lance, as recited above, makes it clear that his opinion "hinges on the assessment of her recent memory which she and her husband said is now normal" (Exhibit A, p 864).

58 In those circumstances, the failure to cross-examine or apply to cross-examine Mrs Ainsworth and Mr Ainsworth as to the veracity, or continued veracity, of their statements of December 2009 and June 2010, takes on an added significance. Each of Associate Professor Mattick and Professor Lance rely for their opinion on the return to normal cognitive skill described by Mrs Ainsworth.

59 Dr Lethlean (Exhibit C, p 10) takes account of the statements of December 2009 and the further statements of June 2010, each of which were not available to the two Professors. Neither of the Professors expressly takes into account the statements of December 2009.

60 The further statements of 30 June 2010 and 24 June 2010, of Mrs Ainsworth and Mr Ainsworth respectively, are inconsistent with a return to normal behaviour and a return to full-cognitive capacity. The statement of Mrs Ainsworth refers to her need to refer to a calendar and diary to remind her of daily activities in a manner that is far greater than before the accident. It also refers to her difficulty in recalling names, her use of incorrect words in a sentence, such as the use of the term "refrigerator" for "telephone" and her inability to recall past events.

61 Mr Ainsworth's June statement corroborates the evidence of Mrs Ainsworth and specifically points to being prevented, when speaking to Professor Lance, from elaborating on the problems that Mrs Ainsworth was suffering. As earlier stated, none of this was the subject of cross-examination.

62 As earlier stated, the Assessor, at paragraph 12 and paragraph 13, deals with why it is, in his opinion, the opinions of Associate Professor Mattick and Professor Lance should not be accepted and the opinion of Dr Lethlean should be. The reference to the statements in paragraph 13(1) is plainly a reference to the statements of June 2010 which, for obvious reasons of timing, neither Associate Professor Mattick nor Professor Lance could have considered. Further, the statement of Mr Ainsworth dealing with the problems in providing to Professor Lance a true history of his wife's incapacity, to some extent, explains Professor Lance's different view.

63 NRMA may not agree with the Assessor's preference for the opinion of Dr Lethlean over either of the experts qualified by it. Nevertheless, it cannot be said, as was the original submission, that reasons for that preference have not been given.

64 Further, as I have sought to make clear, the preference for Dr Lethlean depends, fundamentally, it seems, on the acceptance of the statement of Mrs Ainsworth and Mr Ainsworth as to the continuing disability, which statements were not the subject of cross-examination and on the acceptance of the statement of Mr Ainsworth as to the problems in giving an accurate history to Professor Lance.

65 The Tribunal was required to accord NRMA fairness, procedural fairness and, if it be different (which I doubt), natural justice. It was also required to deal with the issues before it on the basis of the Guidelines for Claims Assessors and the Act that allowed their promulgation. The determination of fact, being the preference for the medical opinion of Dr Lethlean over Associate Professor Mattick and Professor Lance, was not inherently, or otherwise, unfair to NRMA, did not deny NRMA procedural fairness and accorded with both the Motor Accidents Compensation Act and the Guidelines for Claims Assessors. The process by which the Claims Assessor determined the factual dispute between Dr Lethlean, on the one hand, and Associate Professor Mattick and Professor Lance on the other hand was a process that did not contravene the requirement to afford procedural fairness.

66 The decision of the Claims Assessor, if it be wrong, is an error of fact, not of law. The Claims Assessor has not denied to NRMA any opportunity to deal with the differences in the material and has not failed to comply with the provisions of the Act or the Guidelines. Further, there is no error of law disclosed in the decision to prefer the evidence of Dr Lethlean and deal with the claim on that basis, rather than the opinions of Professor Lance and Associate Professor Mattick. If there were a mistake or error, it was an error of fact and not of law. Certiorari, or orders in the nature thereof, will not issue for error of fact (that is not jurisdictional) and this ground of review fails.

Future care

67 I have already recited, at [15] above, that part of the reasons for decision of the Assessor that deals with the claim for future care. The Assessor awarded $2,363 for future care on the basis that the claimant would likely suffer some disability in the future from osteoarthritis. NRMA submitted that an error of law in any part of the reasons for decision that gives rise to the certificate specifying the total damages vitiates the whole award and that the award for future claim was arrived at as a result of errors of law being:

(i) the Assessor failed to apply s 128 of the Act;

(ii) there was no evidence before the Assessor to support the findings made;

(iii) the determination (or more accurately the reasons accompanying the determination) are unable to be understood and the assessor failed to provide reasons (or lawful reasons) for the conclusions reached;

(iv) the assessor failed to act fairly towards NRMA and accord it equity, in accordance with the Guidelines.

68 As earlier stated, the Act (and the Guidelines) requires each certificate of damages to be accompanied by a brief statement of the Assessor's reasons for the assessment: s 94(5) of the Act and clause 18.4 of the Guidelines. The reasons need not be lengthy, formal or technical, but they must disclose the process by which the Claims Assessor has determined the result and why the outcome has been reached: see Allianz Australia Insurance Ltd v Roger Ward & Ors [2010] NSWSC 720 at [40]. Failure to state reasons is an error of law: Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; (2006) 67 NSWLR 372, at 399. The Act imposes a limit on the award of damages for the value of future attendant care services. Relevantly, a limitation is imposed that no compensation is to be awarded unless the services are provided or are to be provided for at least six hours per week and for a period of at least six consecutive months: s 128(3) of the Act.

69 The Assessor, in his reasons, did not deal expressly with the provisions of s 128 of the Act. NRMA seek to rely on the judgment of Hidden J in Ward , supra, in which his Honour expressly determined that the reasons for the Assessor in that matter did "not disclose a consideration of whether the threshold test in respect of each claim was examined and found to have been met": at [20]. Later, Hidden J said, at [37]:

"Before allowing an award for either claim, it was necessary that he [the Assessor] make it clear in his reasons that he had considered the relevant test and found it to be satisfied, and it was incumbent upon him to set out the periods and number of hours per week which he found to meet the statutory requirements."

70 But Ward , supra, was a very different situation to that which applied to the reasons for decision by the Assessor in this case. In Ward , the claimants sought an allowance for gratuitous domestic care and also for loss of capacity to provide domestic services to his dependants, namely, his children. Each of these is a distinct head of damage governed by statute. The claim made by Mr Ward aggregated the damages for personal assistance, i.e. his own care, and the Claims Assessor, in the decision subject to application in Ward , supra, did not separately identify future care and determine whether such future care met the threshold below which no damages were allowed in this respect. It is necessary to return to this issue after dealing with the existence of reasons, whether there was evidence to support the findings purportedly made and whether the Assessor acted fairly towards NRMA.

71 As already stated, a failure to provide reasons in the context of this Act and the Guidelines promulgated thereunder, is an error of law and a failure to comply with the requirements of the Act. Ordinarily, such a failure would result in the quashing of any determination for which there were no reasons and a remittal of the proceedings back to the Motor Accident Authority in order for it to deal with the proceedings in accordance with law and finalise the claims assessment process.

72 The earlier discussion in these reasons as to the necessity to provide reasons is relied upon for the purposes of this particular ground of review. The issue turns on whether the Assessor disclosed his reasoning process, namely, the process undertaken by him and why he reached the outcome described.

73 It is unnecessary to reiterate the terms of the decision on this question. It is set out previously. The applicant's CARS application form made a claim for future care. The written submissions filed in support of the claimant's case did not expressly deal with that claim. The Assessor enquired as to whether the claim was being pursued and the position of NRMA was that they opposed any such claim being made, because they were not put on notice. However, NRMA took the tactical decision not to seek or to obtain an adjournment to deal with the issues raised in support of this claim.

74 The failure to seek an adjournment is not, of itself, an answer to any procedural unfairness. Notwithstanding that principle, in this case NRMA were represented by a legal practitioner, faced with a claim relating, at best, to an insignificant aspect of the total claim for damages, who made a tactical decision not to seek or obtain an adjournment.

75 The issue of whether a refusal to grant an adjournment, even when not the subject of an application, may amount to a denial of natural justice has been dealt with by the High Court of Australia, referring, with authority, to the statement of Deane J when a member of the Federal Court. In the Federal Court judgment, Sullivan v Department of Transport (1978) 20 ALR 323, at 343, Deane J says:

"A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr Evans' attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."

The foregoing approach was confirmed by the High Court in Re Association of Architects; Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 63 ALJR 298, at 305, in which judgment Gaudron J said:

"As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 84."

76 In this case, NRMA were given the opportunity to prepare and to present whatever case it sought and must have been aware that the issue of future care was a matter with which the tribunal was dealing. There has been no denial of natural justice. Nor has NRMA relied on a denial of natural justice. Nevertheless, the Court must consider that aspect as part of the general context in which NRMA claims a lack of fairness in the manner in which this claim has been determined.

77 It is necessary to refer to the report of Dr Cummine to which the Assessor refers in his decision.

78 There are a number of reports of Dr Cummine. The latest report, 29 July 2010, reviews Mrs Ainsworth's current symptoms and general activities of daily living and notes that Mrs Ainsworth remains personally and domestically independent. However, some of her sports and hobbies and work activities have altered. Dr Cummine examined Mrs Ainsworth and noted her range of movements in relation to her hip. He also noted that girths of both thighs were equal but there was a 1cm wasting of the left calf which had not been present at the earlier examinations and, in Dr Cummine's view, "is best explained by the progression of the osteoarthritis in her left ankle". There continued to be a deformity in the ankle joint with reduction in both dorsiflexion and plantar flexion.

79 Dr Cummine compared the imaging that had been performed on Mrs Ainsworth's left ankle and noted that there had been "significant deterioration". Dr Cummine stated:

"The important observation is in coming to the new film. There has been marked deterioration in the tibiotalar joint and it is now bone on bone at the junction of the medial talus with the tibial plafond. Previously, there was a joint space of at least 1mm and possibly 2mm in the medial area. This would fit with her noting some deterioration."

Dr Cummine also referred to a metal bulk of her right posterior pelvis which may be the cause of the discomfort of which Mrs Ainsworth was complaining. Dr Cummine also referred, in relation to the hip, that there were not, at that time, signs of early post-traumatic osteoarthritis, but Mrs Ainsworth was at risk of developing this complication, which has not yet materialised.

80 Dr Cummine took the view that Mrs Ainsworth's left ankle injury was unrelated to the subject accident. This is a view not accepted by the Assessor and the Assessor's determination, in this regard, is not subject to challenge. Relevantly, Dr Cummine opined that Mrs Ainsworth's left ankle injury was, on the radiographic evidence, displaying signs of significant deterioration since his last review and the osteoarthritis results in a whole person impairment of approximately 12%. He does not consider that Mrs Ainsworth presented in anything other than an extremely balanced and rational way and she did not make any claims in relation to personal and domestic care, or in relation to work, that were not "entirely credible and reasonable". Dr Cummine then says:

"In regard to prognosis, she remains at some risk of developing premature post-traumatic osteoarthritis, as noted above. To this point, that complication does not appear to have materialised clinically, and it was not present on a radiograph done two years ago.

...

Were she to develop osteoarthritis in her right hip, she may require domestic assistance, but the extent of that assistance will vary widely depending on the degree to which osteoarthritis affects her hip, should it occur.

She may also require domestic assistance in relation to her left ankle if pain becomes a more major issue, and I do note that she has started to wear a brace on a daily basis, and, therefore, that situation needs to be kept under review.

Should pain progress such that she needs a fusion of her left ankle, there would be certain heavy aspects of domestic duties and handyman work, such as ladders, heights and roofs, where she would require assistance."

81 From the foregoing medical opinion, and others, the Assessor came to a view as to Mrs Ainsworth's injuries for the purpose of assessing non-economic loss. This view, and finding of fact, has not been (and probably could not be) the subject of challenge. The Assessor determined:

"(ii) The claimant suffered from a severe fracture to her right acetabulum and there is no doubt in my mind, and accepting the opinion of Dr. Hopcroft as I do, that this claimant will eventually come to hip replacement surgery. Whilst Dr. Cummine opines that at this point in time (July, 2010) there is no indication for surgery of the hip, the fact of the very severe fracture requiring surgery will inevitably lead to a development of arthritis in the longer term as opined by Dr. Hopcroft.

(iii) The claimant continues to be troubled by a significant left ankle pain aggravated by the accident and which troubles her on a regular basis. She has observable arthritis in the ankle and surgery has been recommended but she is reluctant to do so at the present time because the surgery involved is a fusion of the ankle joint which will significantly limit joint mobility in the left ankle." (Reasons for determination, Exhibit B, p 6 at paragraphs 18(ii) and 18(iii).)

82 For completeness I should refer to the reports of Dr Hopcroft, who examined Mrs Ainsworth on 9 April 2008 and 21 August 2009 and issued reports on 9 April 2008 and 21 August 2009 and a final report on 11 May 2010 after an examination on that date (Exhibit A, p 1126 and following). Dr Hopcroft describes Mrs Ainsworth as continuing "to have ongoing problems, most particularly affecting her right hip and left ankle as a result of her motor vehicle accident". He stated:

"I believe this patient will inevitably develop arthritis in her right hip joint in the longer term and well may come to the right hip joint replacement surgery in her later life."

He then gave figures as to the costs for items associated with that and proceeded in the following terms:

"I believe this patient is very likely to come to left ankle joint fusion surgery in the longer term with a significant proportion of that requirement arising directly from her left ankle injury suffered in the motor vehicle accident of 10 January, 2007. Such a procedure to include the surgical fees, anaesthetic fees, hospital stay and rehabilitation programme runs to approximately $10,000.00."

83 The Assessor stated, more than once, that he accepted the opinions of Dr Hopcroft. It is in that context that the Assessor dealt with the issue of future care in the passage already recited. If the view of Dr Hopcroft were accepted, as it was, it accords, generally, with that of Dr Cummine and it is likely that Mrs Ainsworth will undergo surgery, being a hip replacement and left ankle fusion arising from what is described by the Assessor as "inevitable osteoarthritis".

84 The Assessor then referred to the provisions of s 128 as being the basis for any award of future gratuitous domestic assistance. Plainly, the Assessor has taken into account s 128 of the Act.

85 Properly understood, it seems that the Assessor accepted that osteoarthritis is inevitable and accepted that left ankle fusion would occur and, most likely, a right hip replacement. Each of these, in the view of the Assessor, would be a direct result of the injuries sustained, or aggravated, by the accident.

86 The Assessor then took a view that such a surgery would "take place ... perhaps 10 years into the future" and would occur only when her injuries became so bad that surgery was essential. The logic in that assessment is compelling. The Assessor then determined that, if the injury were to have become that problematic, there would be a period of "several months" during which gratuitous domestic assistance would be needed prior to the operations and a similar period of gratuitous domestic assistance after the operations. The two periods of several months ought, it seems, amount to over 12 months of gratuitous domestic care. Because this assessment depends upon uncertain events, the Assessor, it seems, heavily discounted the future gratuitous domestic assistance to 6 hours per week for 26 weeks (presumably 3 months either side of the future operation) deferred for the 10-year period before which the operation would not be essential. That process has the same effect as the process contemplated for any uncertain event and described in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.

87 However, the process adopted by the Assessor is problematic. First, there was no evidence of when any such operation was likely to occur. Secondly, there was no evidence of the period during which, prior to the operation, Mrs Ainsworth would be likely to require, or possibly require, gratuitous domestic assistance. Thirdly, there was no evidence of any rehabilitation period, or likely or possible rehabilitation period, after such an operation, were it to occur, during which Mrs Ainsworth would need gratuitous domestic assistance. Lastly, at least for present purposes, there was no evidence of the degree to which any of the foregoing was likely and therefore the degree to which any such assessment would be discounted.

88 It may well be, because of the commonsense nature of these assessments, that if evidence were available on these questions, gratuitous domestic assistance far greater than that allowed would result. But, as NRMA submits, the difficulty is these findings are made in the absence of evidence.

89 In terms of the issues raised by NRMA as to this aspect of the claim, a number of comments ought to be made. The Assessor did not, contrary to the submission of NRMA, fail to apply s 128 of the Act. The Assessor expressly referred to s 128 of the Act. Unlike the situation with which Hidden J dealt in Ward , supra, the determination disclosed, plainly, that the Assessor considered and came to a view that the threshold limitation in s 128 had been satisfied and had been satisfied in relation to the particular claim of future gratuitous assistance.

90 Further, the Assessor provided reasons for the conclusions that he reached. NRMA may not agree with those reasons, but, as expressed, those reasons are logical, intelligible and set out the process undertaken by the Assessor and why it was he reached the conclusion that he did.

91 Thirdly, other than the issue with which I will next deal, the Assessor acted fairly towards the parties and accorded them equity, in the process that he adopted. The Assessor offered an adjournment to NRMA in order for them to deal with the issue, which offer was refused. I add, lest it be thought otherwise, that I am not being critical of NRMA for refusing the offer. It seems to me that NRMA were entitled to deal with the matter on that basis and took a most reasonable approach in seeking to have the matter dealt with as expeditiously as possible.

92 Lastly, I deal with the submission that there was no evidence before the Assessor that could support the findings. At least in relation to the findings as to the degree of likelihood that operations would occur, the periods before and after such operations during which Mrs Ainsworth would require gratuitous domestic assistance, and the timeframe during which it was likely that such an operation would occur, NRMA is correct. There is no evidence to support calculations based upon those propositions. There is evidence upon which the Assessor could have come to the view that the operations were likely and the osteoarthritis was inevitable.

93 Counsel for Mrs Ainsworth, frankly, concedes, to some extent, the absence of evidence on some aspects. That is a most appropriate concession, which could not be avoided.

94 A finding that is based on no evidence, as distinct from sufficiency or reliability of evidence, is an error of law: Australian Broadcasting Tribunal v Bond , supra, at 355-356; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; Ormwave Pty Limited & Anor v Smith [2007] NSWCA 210, at [11]-[15], and the cases cited therein; Haider v JP Morgan Holdings Aust Ltd Trading as JP Morgan Operations Australia Ltd [2007] NSWCA 158 (per Basten JA); and R v R (1989) 18 NSWLR 74, at 84 (per Gleeson CJ, Maxwell and Wood JJ agreeing).

95 Notwithstanding what may be a commonsense approach to the final determination of proceedings expeditiously, the assessment of damage in relation to future gratuitous domestic assistance depends upon facts and circumstances that were not the subject of evidence before the Assessor, nor from which the Assessor was entitled to draw an inference. It may be that a less strict test should be applied to inferences of this kind before a Claims Assessor than would be the case in curial proceedings or before a tribunal that was not a specialist tribunal, deliberately established for the purpose of reducing formality and expense, as is the Claims Assessor under the Act. But, on present authority, it seems to me that there is a finding based upon inferences that were incapable of being drawn and an absence of evidence to support those findings and/or those inferences.

96 The foregoing requires the conclusion that the Assessor's determination was arrived at by reason or reasons that disclose an error of law. The error of law, however, is not an error of jurisdiction. It is, in terms of the provisions of s 69(3) and s 69(4) of the Supreme Court Act , an error on the face of the record, for which orders in the nature of certiorari would, ordinarily, issue.

97 Mrs Ainsworth, through her counsel, submits that, in the exercise of the Court's discretion, orders would not issue, because, inter alia, of the insignificant and/or minimal effect of this error on the ultimate determination.

98 There are many instances in which courts have expressed the view that the issue of orders in the nature of certiorari is discretionary (see, for example, Rodger v De Gelder & Anor [2011] NSWCA 97 at [84]) . There are very few examples of the exercise of that discretion. Certainly, in the case of jurisdictional error, it would be an extremely rare occasion for a superior court to take the view that jurisdictional issue existed, but that no remedy should issue. Usually, in such circumstances prohibition or mandamus would issue.

99 Where, as here, the error of law on the face of the record is an error of law in the reasons, and is not a jurisdictional error, there is some greater flexibility for the exercise of a discretion not to issue orders. However, that discretion, in my view, ought to be exercised in rare circumstances. Parties are entitled to have administrative decisions determined in accordance with law. It is one of the features of the rule of law and one of the fundamentals of democracy. In Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135, at 157 [56], Gaudron J stated.

"Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less."

100 Nevertheless, there is a discretion to be exercised judicially by the courts in relation to the grant of relief of this kind. In the case of prohibition, Gibbs CJ in Re Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 said, at 194:

"If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the Court retains its discretion to refuse relief if in all the circumstances that seems the proper course."

101 Care must be taken in applying the statements of the High Court, as to its jurisdiction, to the jurisdiction exercised by the Supreme Court of New South Wales under s 69 of the Supreme Court Act . The High Court's jurisdiction, and comments on it, usually refer to the issue of constitutional writs under s 75(v) of the Constitution. Mandamus and prohibition issue for jurisdictional error and, for some time, notwithstanding its status as the "Federal Supreme Court" (see s 71 of the Constitution and Kirk , supra), the High Court has confined its jurisdiction to issue certiorari to circumstances which arise from proceedings for the constitutional writs which define its original jurisdiction under s 75(v) of the Constitution.

102 In the present proceedings, it cannot be said that the drawing of the inferences, as to the likelihood that an operation will occur, its timing, and the period of incapacity during which future gratuitous domestic assistance would be required, was an actual or constructive refusal to exercise the jurisdiction of the tribunal below or in excess of the jurisdiction. As earlier stated, while these findings of fact, and/or the drawing of inferences, were not available because there was no evidence, the errors of law occasioned thereby were not jurisdictional. Even the constitutional writs have been refused in cases where jurisdictional error has been disclosed. This is usually in circumstances where there is an internal appeal which, for example, would overcome any denial of procedural fairness: R v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation [1981] HCA 33; (1981) 147 CLR 471, at 484-485. Indeed, as is clear from the citation of the judgment of Gibbs J in Re Ross-Jones , supra, the High Court has always, even in relation to jurisdictional error, reserved the right to exercise a discretion to refuse relief.

103 As stated, the circumstances in which orders in the nature of certiorari ought to be refused on discretionary grounds must be rare. Certainly, in the case of jurisdictional error, it must be extremely rare and, in the words of the High Court, "the discretion with respect to [such] remedies ... is not to be exercised lightly against the grant of a final relief, particularly where ... there is no avenue of appeal". ( Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, at 107, [55], per Gaudron and Gummow JJ.)

104 In Aala , supra, at [56], Gaudron and Gummow JJ (Gleeson CJ agreeing at [5]) cited with approval the well-known passage of the High Court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, at 400, in which the High Court said:

"For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."

105 As earlier stated, in this case there is no jurisdictional error. The overriding and overwhelming public interest in ensuring that public officials exercise the duty required of them and do not exercise that which is beyond their power does not inform the jurisdiction to exercise a discretion to refuse certiorari in circumstances where the error is not jurisdictional. Nevertheless, the exercise of the discretion must be rare.

106 A further consideration is that the Court, in exercising its discretion, must be guided, amongst other things, by the injunctions in the Civil Procedure Act 2005 to ensure the quick, cheap and just resolution of the real issues between the parties.

107 In this case, a number of factors inform the exercise of the discretion. First, the error of law relates to an assessment of future gratuitous care of $2,363 in a total damages award of over $600,000. This represents approximately 0.374% and certainly a figure significantly less than 1% of the total damage. Secondly, the costs awarded to one party is over $40,000 and the effect of issuing an order quashing the determination would be to require the parties to re-litigate the proceedings before a Claims Assessor and incur, presumably, at least a further $20,000 (or perhaps $80,000, being twice the original order for costs), in circumstances where the only identifiable error relates to an amount of just over $2,000. Thirdly, the error arises because of the acquiescence of the parties in a procedure, which invited the Assessor to "do the best he could" on the material that was before him, being the effect of asking the claimant whether the head of damage was being pursued and the insurer as to whether, if it were pursued, an adjournment was necessary. For the foregoing stated reasons, I will exercise the discretion not to issue orders to quash the Assessor's determination.

108 One other matter should also be mentioned, even though it is not a consideration in the foregoing decision. As earlier stated, the Assessor has discounted the amount of future gratuitous care significantly to account for the uncertainties in the nature of the operation and the degree to which pre and post-surgery incapacity would arise. As a consequence, if the matter were remitted to the Assessor, or any Claims Assessor, the result may be an award of a greater amount for future gratuitous care and a higher overall assessment. It is not absolutely clear, that the correction of the error of law, if the matter were re-litigated, would advantage NRMA. The amount ultimately awarded is the minimum amount that could have been awarded pursuant to the terms of s 128 of the Act. The temptation on the Assessor to finalise the proceedings in this way is, at one level, understandable. Nevertheless, it is essential that assessments be based upon evidence and material that are rationally probative of the findings to be made.

109 Because I have determined to exercise the discretion reposed in the Court not to issue orders, it is appropriate to determine the orders I would have made were it not so exercised.

110 I agree with Hidden J in Ward , that the issue of certiorari goes against the assessment, not each part of the assessment, and an error in one head of damage, if the discretion were not exercised, would result in the whole of the assessment being quashed and the matter remitted to the Assessor (or another Claims Assessor). In current circumstances, were I to have issued such orders, I would have apportioned costs in these proceedings and required the plaintiff to pay 90% of the costs, given, in this case, the preponderance of the major point relating to the acceptance of the report of Dr Lethlean.

111 There is a public interest in the finality of proceedings. In my view, these proceedings constitute one of those exceptional circumstances where, given there is no jurisdictional error, the Court should exercise its discretion to refuse to issue an order in the nature of certiorari. Indeed, the circumstances are such that, even if there were jurisdictional error in the assessment of future care, exercise of the discretion would be warranted.

Conclusion

112 As a result of the foregoing determination as to the absence of error in relation to the acceptance of the report of Dr Lethlean and the exercise of discretion not to issue orders quashing the determination because of the error in assessing the future gratuitous care, the summons must be dismissed.

113 The Court makes the following orders:

(i) Judgment for the defendants;

(ii) Proceedings dismissed;

(iii) The plaintiff shall pay the first defendant's costs of and incidental to the proceedings, as agreed or assessed.

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Decision last updated: 29 April 2011