Supreme Court New South Wales

• Medium Neutral Citation: Insurance Australia Group Ltd t/as NRMA Insurance v Motor Accidents Authority of NSW [2013] NSWSC 318
• Hearing dates: 27/03/13
• Decision date: 11 April 2013
• Jurisdiction: Common Law - Administrative Law
• Before: Harrison AsJ

Decision

The Court declares that:

 

(1)  The decision of the CARS assessor in matter number 2012/12/0951 issued on 11 September 2012 is vitiated by error of law.

 

The Court makes an order:

 

(2)  In the nature of certiorari removing into the Court the decision of the CARS assessor issued on 11 September 2012 in matter number 2012/12/0951 and quashing that decision.

 

The Court furthers orders that:

 

(3)  Matter number 2012/12/0951 is remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.

(4)  The first defendant is to pay the plaintiff's costs as agreed or assessed.

 

• Catchwords: ADMINISTRATIVE LAW - Motor Accidents Compensation Act 1999 - damages assessment by claims assessor - whether claims assessor failed to consider medical evidence - whether claims assessor misstated submissions by plaintiff - whether assessor failed to give adequate reasons
• Legislation Cited: Motor Accidents Compensation Act 1999; Supreme Court Act 1970
• Cases Cited: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; Allianz Australia Insurance Ltd v Girgis [2011] NSWSC 1424; Allianz Australia Insurance Ltd v Sprod [2011] NSWSC 1157; Allianz Australia Insurance Ltd v Ward [2010] NSWSC 720; Brown v Lewis [2006] NSWCA 87; Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393; Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163; Insurance Australia Limited t/as NRMA Insurance v Helou [2008] NSWCA 240; Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1; (2010) 239 CLR 531; Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259; Pham v Shui [2006] NSWCA 373
• Category: Principal judgment
• Parties: Insurance Australia Group Ltd t/as NRMA Insurance (Plaintiff); Brendon Smith (First Defendant); Motor Accidents Authority of NSW (Second Defendant); Elyse White (Third Defendant)
• Representation: Counsel: K Rewell SC (Plaintiff); L King SC and A Reoch (Defendants); Solicitors: Sparke Helmore, Lawyers (Plaintiff); Marshall & Gibson Lawyers (First Defendant); Crown Solicitor (Second and Third Defendants)
• File Number(s): 2012/342228

Decision under appeal

• Date of Decision: 2012-12-11 00:00:00
• Before: Assessor Elyse White
• File Number(s): 2012/12/0951

Judgment

1 HER HONOUR: By summons filed 2 November 2012, the plaintiff seeks firstly, a declaration that the Certificate (including reasons) of the third defendant, issued on 11 September 2012 is affected by error of law on the face of the record and/or jurisdictional error; secondly, an order in the nature of certiorari, quashing the said Certificate (and reasons) of the third defendant; thirdly, an order the matter be remitted to the second defendant to be dealt with according to law; and fourthly, that the defendants pay the plaintiff's costs of these proceedings.

2 The plaintiff is Insurance Australia Group t/as NRMA Insurance ("NRMA Insurance"). The first defendant is Brendon Smith. The second defendant is the Motor Accidents Authority of NSW ("MAA") and the third defendant is Elyse White in her capacity as a Claims Assessor on behalf of the second defendant. The second and third defendants have filed submitting appearances.

Judicial review generally

3 This Court has jurisdiction to grant any relief or remedy in the nature of a writ of certiorari which includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. The face of the record includes the reasons expressed by the court or tribunal for its ultimate determination: s 69 of the Supreme Court Act 1970.

4 In Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163, Brennan, Deane, Toohey, Gaudron and McHugh JJ set out an inclusive definition of jurisdictional error at [14]:

"...If such an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it."

5 In Chase Oyster Bar Pty Ltd v Hamo Industries Pty Ltd [2010] NSWCA 190; (2010) 78 NSWLR 393, McDougall J referred to Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales [2010] HCA 1; (2010) 239 CLR 531 and said, at [158]:

"The majority pointed out (at [71]) that '[i]t is neither necessary, nor possible, to attempt to mark the metes and bounds of jurisdictional error'. However, by reference to the decision in Craig v South Australia (1995) 184 CLR 163 at 177-178, the majority identified three categories of jurisdictional error (at [72]):

'(1) the mistaken denial or assertion of jurisdiction, or (in a case where jurisdiction does exist), misapprehension or disregard of the nature of or limits on functions and powers;

(2) entertaining a matter or making a decision of a kind that lies, wholly or partly, outside the limits on functions and powers, as identified from the relevant statutory context;

(3) proceeding in the absence of a jurisdictional fact; disregarding something that the relevant statute requires to be considered as a condition of jurisdiction, or considering something required to be ignored; and misconstruction of the statute leading to misconception of functions. (Of this last example, it was said in Craig (at 178) that 'the line between jurisdictional error and mere error in the exercise or jurisdiction may be particularly difficult to discern.').'"

6 In Kirk v Industrial Relations Commission of New South Wales; Kirk Group Holdings Pty Ltd v WorkCover Authority of New South Wales, the High Court discussed jurisdictional error in Australia at [71] - [77].

7 In relation to a judicial review of an assessment by a claims assessor under the Motor Accidents Compensation Act 1999, Hoeben J stated recently in Allianz Australia Insurance Ltd v Sprod [2011] NSWSC 1157:

"[27] It should also be noted that this is not an appeal by way of rehearing, nor is it an appeal on the merits. It is an application based on administrative law principles which seeks to establish either lack of jurisdiction or error of law on the face of the record."

8 The plaintiff seeks a judicial review and a declaration pursuant to s 69 of the Supreme Court Act on the ground that the Certificate and reasons of Ms White, issued on 11 September 2012 involved an error of law on the face of the record and/or jurisdictional error.

Background

9 The first defendant, Brendon Smith, suffered severe injuries to his right ankle and right foot in a motor vehicle accident on 14 December 2007. NRMA Insurance is the compulsory third party insurer of the vehicle at fault. There was no issue as to liability and the claim proceeded to assessment under the Claims and Assessment Resolution Service ("CARS") system.

10 Mr Smith underwent multiple assessments by medical specialists appointed by the Medical Assessment Service ("MAS"). Only one of which needs to be referred to in this judgment and that is the one by Dr Gibson.

11 On 13 August 2010, a combined certificate under s 61 of the Motor Accidents Compensation Act 1999 ("MAC Act") was issued with a combined whole person impairment for physical injuries of 35%.

12 A medical treatment dispute concerning Mr Smith's alleged care needs was referred to the MAS for assessment. On 2 March 2011, the treatment dispute was assessed by Dr Margaret Gibson and on 4 April 2011, Dr Gibson issued a Certificate in respect of the treatment dispute. I shall refer to this determination in more detail later in this judgment.

13 On 3 September 2012 at an assessment conference, Mr Smith's damages were assessed by the CARS assessor, Ms White, the third defendant. On 11 September 2012, Assessor White issued a Certificate under s 94 of the MAC Act, assessing total damages in the sum of $2,658,722.77 together with prescribed costs of $146,817.63. This amount comprised of:

Non economic loss	$300,000.00
Past out of pocket expenses	$113,819.77
Future treatment expenses	$120,000.00
Past economic loss	$216,672.00
Fox v Wood	$23,716.00
Past loss of superannuation	$23,834.00
Future economic loss	$873,922.00
Future loss of superannuation	$81,831.00
Past attendant care	$165,600.00
Future attendant care	$739,328.00

14 It is only the assessment of past attendant care and future attendant care (the last two components in bold) that are the subject of challenge. NRMA contends that the assessment of damages for past and future care by the third defendant is affected by errors of law on the face of the record and jurisdictional error; and secondly, that the plaintiff was denied procedural fairness in that Assessor White mis-recorded, misunderstood and/or misapplied the submissions made on behalf of NRMA Insurance.

15 The starting point is to briefly identify the relevant statutory provisions of the MAC Act.

The legislation

16 The statutory regime under which the Motor Accident Scheme medical assessments take place is contained in Part 3.4 of the MAC Act. This part applies to a disagreement between a defendant and an insurer. Part 3.4 of the MAC Act is entitled Medical Assessment. Section 57 defines "medical dispute" to mean a disagreement or issue to which Part 3.4 applies.

17 Section 42(1) defines "treatment" as including:

"treatment means:

...

(d) the provision of attendant care services..."

18 And "attendant care services" is defined in s 3 to include:

"... services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services."

19 Section 58(1)(a) and (b) relevantly read:

"This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters):

(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,

(b) whether any such treatment relates to the injury caused by the motor accident..."

20 Section 61 reads:

"Status of medical assessments

(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned."

21 Finally, s 94 relevantly reads:

"94 Assessment of claims

(1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of:

...

(b) the amount of damages for that liability (being the amount of damages that a court would be likely to award).

(2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate.

(3) The assessment is to specify an amount of damages.

(4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment.

(5) The claims assessor is to attach a brief statement to the certificate, setting out the assessor's reasons for the assessment.

(6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error."

22 The central ground of this judicial review is that the CARS assessor did not provide adequate reasons.

What are adequate reasons?

23 I shall refer to the guidelines and some decisions of this Court on this topic.

24 As can be seen above, in s 94(5) of the MAC Act the claim assessor is to attach brief reasons setting out the assessor's decision for the assessment.

The Guidelines

25 Clause 18.4 of the Claims Assessment Guidelines issued by the Motor Accidents Authority elaborates on s 94(5) and sets out the requirements for a CARS assessor to give reasons. It relevantly states:

"18.4 A certificate under section 94 or 96 is to have attached to it a statement of the reasons for the assessment. The statement of reasons is to set out as briefly as the circumstances of the assessment permit:

18.4.1 the findings on material questions of fact;

18.4.2 the Assessor's understanding of the applicable law if relevant;

18.4.3 the reasoning processes that lead the Assessor to the conclusions made; and

18.4.4 in the case of an assessment certificate pursuant to section 94, the Assessor must specify an amount of damages and the manner of determining that amount."

26 While the reasons of a CARS assessor need only be brief, they must be sufficient to demonstrate that the assessor has properly considered the issues and the evidence. In Allianz Australia Insurance Ltd v Ward [2010] NSWSC 720, Hidden J said at [40]:

"40 Clearly, an assessor's reasons need not be lengthy or discursive, and should avoid undue formality and technicality. Nevertheless, they must demonstrate that the issues raised by the case have been determined and that any relevant statutory requirements have been considered. Those ends can be achieved in concise reasons."

27 In Insurance Australia Limited t/as NRMA Insurance v Helou [2008] NSWCA 240, the Court of Appeal per Campbell JA (with whom Allsop P and Bell JA agreed) said:

"61 The obligations of an assessor to give reasons is qualified by the requirement, in section 94(5) MAC Act, that it be a 'brief statement', and by the requirements of clause 16.3 of the Claims Assessment Guidelines. When the MAC Act and the Guidelines makes this express provision concerning the nature of obligations of an assessor to give reasons, they differ from the Workplace Injury Management and Workers Compensation Act 1998 provisions concerning medical assessments that were considered by this Court in Campbelltown City Council v Vegan, where the extent of the obligation to give reasons needed to be derived as a matter of implication from the statute.

62 When, for the reasons I have already given, the assessor has performed the task required of him to 'assess the damages', and when his reasons identify the various heads of damage that he has awarded, and how he has arrived at the numbers attributed to each of those heads of damage, his statutory obligation to give reasons has been performed."

28 NRMA Insurance submitted that Assessor White made four errors in her reasons, firstly, that the assessor did not consider Dr Gibson's Certificate; secondly, that the assessor misstated Mr Ryan's submissions in relation to the report by Ms Beaver, an Occupational Therapist; thirdly, that the assessor failed to refer to the medical evidence apart from the report by Ms Lucinda Smith, a Consultant Occupational Therapist; and finally, that the assessor failed to note an error in Ms Smith's approach to future care. I shall deal with each of these alleged errors in turn.

29 On behalf of the defendant, Mr Smith, senior counsel submitted that it is not necessary to refer to the medical evidence in detail and, as long as it was clear that the evidence had been considered, no particular reference was required.

The determination of the CARS assessor

30 The claim was referred to Ms White for assessment. On 3 September 2011, an Assessment Conference took place. On 11 September 2011, Ms White issued a Certificate accompanied by her reasons.

31 In her reasons, Assessor White stated, in relation to Attendant Care Services:

"7. The Insurer accepts that Brendon has satisfied a need for care which exceeds the statutory threshold of 6 hours a week. Mr Ryan for the Insurer does not rely on the opinion of Ms Beaver. The real question then is, what level above 6 hours each week is needed to satisfy Brendon's requirements for personal and domestic assistance.

...

10. Reviewing the report of Ms Lucinda Smith, she estimates the transport need at approximately 7 hours each week. For the future, 7 hours will need to be deducted from the need for future care, assuming Brendon will buy and modify a vehicle to enable him to drive to the shops and any other locations he requires.

11. After reading all the medical evidence, statements and hearing from Brendon, I am satisfied that his past need for attendant care services has been 30 hours a week as claimed and I will adopt Mr Reoch's calculations.

12. However, this need will reduce in the future by 7 hours each week and therefore I accept that the continuing need is 23 hours each week. Part of this will be provided gratuitously, such as self care and some domestic assistance, and the balance will need to be provided commercially. Having regard to the fact that Brendon is unable to contribute to any meaningful attendant care services and that Tina works at least 12 hours a day, 5 days a week, I will allow 6 hours future gratuitous care and the balance to be calculated on the basis of a commercially paid carer.

...

Past Attendant Care Services

29. I have previously made findings on attendant care services. The Claimant has established a need for an average of 30 hours per week attendant care services on a gratuitous basis for the past. The average Australian Bureau of Statistics home care rate for the last 5 years is $23.00 per hour, which amounts to $690.00 per week. As agreed between the parties, the number of weeks since the motor vehicle accident is 240 and the amount of $690.00 per week is the need for past care, which amounts to $165,600.00."

32 In relation to future care services, Assessor White made the following determination:

"Future Attendant Care Services

30. For reasons set out above, I have been persuaded that Brendon has established a need for 6 hours future gratuitous care and 17 hours a week paid care on a commercial basis.

31. The current home care rate submitted by Mr Reoch is $24.50 per hour, which amounts to $147.00 per week.

32. There is no evidence that suggests Brendon's current disability will improve, in fact, the medical professionals suggest his symptoms are likely to deteriorate. He is therefore entitled to care for life. His life expectancy is 55 years and the multiplier is 996.4.

32.1 $147.00 x 996.4 = $146,470.00.

33. The current commercial rate accepted by the occupational therapist's opinion is an average of $35.00 per hour for 17 hours per week, amounting to $595.00 per week.

33.1 $595.00 x 996.4 = $592,858.00.

34. Total future attendant care services - $739,328.00."

33 From [10] of the assessor's reasons, it is clear that the future attendant care has been reduced to 23 hours on the basis that the plaintiff will buy a car which he will modify. He will then be able to drive himself and will no longer need the attendant services of a driver.

(1) Assessment of the "treatment dispute"

34 Prior to the CARS assessor making her determination, on 2 March 2011, Mr Smith attended the Medical Assessment Service for assessment by Dr Gibson.

35 The specific questions to be determined by Dr Gibson were whether:

"28.5 to 34.5 hours a weeks of domestic assistance arising out of the injuries to the right ankle and foot with washing clothes, placing them on line or in dryer and ironing, vacuuming, dusting and making beds, cleaning bathrooms, cooking evening meal, cleaning the kitchen, washing dishes, shopping, assistance with personal care for showering, getting on and off toilets, chairs and bed and handyman work and gardening from the date of the accident to the date of MAS assessment.

...

are REASONABLE AND NECESSARY in the circumstances."

(my emphasis added)

36 The same question was asked in relation to the period from the date of the MAS assessment and ongoing and the same answer was given.

37 On 4 April 2011 the Medical Assessor, Dr Gibson, issued a Certificate and answered the two questions:

"Treatment - Reasonable and Necessary

Based on the above I conclude the listed domestic assistance for the periods indicated is not reasonable and necessary in relation to the injuries sustained in the subject accident."

38 Hence, Dr Gibson determined that care of 28.5 to 34.5 hours per week for both past and future domestic assistance was not reasonable and necessary in relation to the injuries Mr Smith suffered as a result of the accident.

39 By virtue s 42 of the Act "treatment" includes "the provision of attendant care services". "Attendant care services" is defined in s 3 of the Act to include "domestic services". Accordingly, such services fall within s 58 and, where there is a disagreement between a claimant and an insurer, is a "medical assessment matter" for the purposes of that provision. The status of an assessment by a medical assessor is set out in s 61 of the MAC Act and a certificate "as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned" - s 61(2).

40 CARS assessor White assessed damages for past attendant care services on the basis of a need for an average of 30 hours per week on a gratuitous basis from the date of the accident (14 December 2007) to the date of the CARS Assessment Conference (3 September 2012) and 23 hours per week, 6 hours of gratuitous care and 17 hours paid care on a commercial basis for the future.

41 NRMA Insurance submitted that the CARS assessment is contrary to the specific determination of Dr Gibson, that such a need for past assistance was not reasonable and necessary and did not relate to the injuries caused by the motor accident. It is submitted that Dr Gibson's Certificate was "conclusive evidence" as to those matters and was binding on the assessor (my emphasis added). In oral submissions, senior counsel expanded this submission to probably also include future care (T4.43).

42 Senior counsel for Mr Smith submitted that the question asked of the assessor was whether 28.5 to 34 hours was reasonable and necessary for a range of attendant care services to which Dr Gibson said it was not reasonable or necessary. The Certificate was therefore conclusive as to the matters certified. However, he says in oral submissions that the CARS assessor had regard to the evidence and the totality of the medical evidence and that the allowance made in respect of care is not necessarily inconsistent with the Certificate.

43 I accept that driving was not specified in the listed activities for which attendant care was to be assessed. Hence, the activity of driving was not considered by Dr Gibson when assessing whether 28.5 to 34.5 hours of past domestic care was reasonable and necessary. Senior Counsel for Mr Smith submitted that if driving was excluded from Dr Gibson's assessment of past domestic care, that care would be 23 hours and this calculation is not inconsistent with the Certificate issued by the CARS assessor that assessed past attendant care at 30 hours.

44 It is fair to say that the CARS assessor does not refer to the earlier determination of Dr Gibson in her reasons. The CARS assessor determined that Mr Smith had required 30 hours per week for past attendant care. Counsel for NRMA submitted that these findings are inconsistent with the determination of Dr Gibson and in support of that proposition referred to Allianz Australia Insurance Ltd v Girgis [2011] NSWSC 1424.

45 In Allianz Australia Insurance Ltd v Girgis, Adams J considered the effect of an earlier determination of a medical assessor had upon a latter determination by a CARS assessor. The facts were that Ms Girgis claimed that she required six hours a week of domestic services from 30 May 2008 and would require six hours a week of such assistance in the future and continuing for a period of 20 years. Allianz denied that any such need was caused by the motor accident nor that the claim for domestic assistance was reasonable and necessary. This dispute was sent to a medical assessor for assessment.

46 In Girgis, on 21 October 2010, the medical assessor issued a certificate under s 61 of the Act certifying that the injuries to the cervical and lumbar spine in the accident did not cause a need for domestic assistance of six hours a week from 30 May 2008 and would not cause a need for six hours a week of domestic assistance in the future. The medical assessor further certified that six hours a week of domestic assistance from 30 May 2008 to the date of his assessment was not reasonable and necessary in the circumstances, nor was the six hours a week of assistance proposed by Ms Girgis from the date of the assessment continuing for a period of 20 years reasonable and necessary.

47 The medical assessor, in Girgis, found that the injuries to the cervical and lumbar spines caused by the motor accident did cause a need for domestic assistance of two hours a week from 30 May 2008 until the date of his assessment and would cause a need for assistance of two hours a week for a period of six months. The medical assessor considered that this domestic assistance was "reasonable and necessary in relation to the injuries sustained in the subject accident". Hence, the medical assessor assessed that Ms Girgis required not six but the lesser amount of two hours per week of domestic assistance. The medical assessor stated that he was "satisfied that there is sufficient evidence to link the subject accident with a low back injury and that Ms Girgis has sustained an aggravation of her pre-existing cervical spondylosis".

48 Adams J in Girgis stated at [45] to [48]:

"[45] It is clear, in relation to domestic assistance, that the questions posed by s 58(1)(a) and (b) require consideration of the actual matters in disagreement. In respect of the statutory questions the answers, plainly enough, could be either yes or no. No doubt a process of reasoning is required resulting in those answers, s 61(9) making this requirement explicit and mandatory. In substance, it is submitted on behalf of Ms Girgis, that the only matter certified is the direct answer to the questions posed and not any part of the underlying reasoning.

[46] No doubt, it would be appropriate for the Medical Assessor to specify, in respect, say, of domestic assistance, the extent he or she thought it related to the injury caused by the motor accident and what would be reasonable and necessary in the circumstances. This, however, would depend on the nature of the disagreement. It might be that each competing proposal was so unreasonable that the Medical Assessor could explain why this was so and not think it necessary to specify, say, what would be reasonable and necessary in the circumstances.

[47] The matter certified in the present case by Dr Menogue [the medical assessor] is that 'six hours per week of gratuitous domestic assistance from 30 May 2008 until the date of the assessment was not causally related to the injuries sustained in the subject accident' and that 'six hours per week of paid domestic assistance from the date of assessment and continuing for a period of 20 years is not causally related to the injuries sustained in the subject accident' together with his concomitant findings that the six hours per week of gratuitous domestic assistance for the past and paid domestic assistance for the ensuing 20 years was neither reasonable and necessary nor related to the injuries sustained in the accident.

[48] It is important to note that the questions posed by paras (a) and (b) of the subsection are narrowly phrased, pointing to 'the treatment provided or to be provided' and 'such treatment' (emphasis added). This is a reference, to my mind, to the treatment proposed by the contending parties and not in the abstract. If it had been intended to permit a Medical Assessor to certify as to the treatment which, in his or her opinion would be reasonable and necessary and related to the injury caused by the accident, this would have been a simple matter to provide. Its absence fortifies my view of the limited character of the 'medical assessment matter' to which these paragraphs refer, in respect of the certification of which conclusiveness is ascribed. ... In my view, as Assessor Broomfield [the CARS assessor] decided, he was bound by the Medical Assessor's rejection of the appropriateness of the assistance proposed by Ms Girgis but he was not bound to accept the Assessor's view as to the appropriate level of such assistance."

49 Hence, a CARS assessor, both in Girgis and these proceedings, is bound by the medical assessor's rejection of the appropriateness of the assistance. The certificate issued by Dr Gibson, in relation to the questions posed and their answers, is conclusive evidence: see s 61(2).

50 As previously stated, the CARS assessor made no mention of Dr Gibson's conclusive determination that 28.5 to 34.5 hours of domestic assistance (as defined) for past assistance was not reasonable and necessary in relation to the injuries Mr Smith suffered as a result of the accident. While it is true that the CARS assessor's determination covers both personal and domestic assistance, not just the domestic assistance that was previously determined by Dr Gibson, without any explanation in her reasons it appears that the CARS assessor's determination is inconsistent with the prior conclusive certificate issued by Dr Gibson. It is not clear whether or not the CARS assessor took this earlier conclusive certificate into account in relation to past care. It should also be noted that the CARS assessor did not refer to Dr Gibson's conclusive certificate in her reasons for future care. Dr Gibson's certificate of determination was a relevant consideration and the CARS assessor is bound to take it into account. It is my view that by not mentioning it, the CARS assessor did not provide adequate reasons. She fell into jurisdictional error.

(2) Whether there was a misstatement

51 Ms Beaver, an Occupational Therapist, assessed the defendant's current care needs as 5.5 hours per week and his future needs as 3 hours per week. At the hearing before the CARS assessor Mr Ryan, for NRMA Insurance, conceded that it was reasonable on the evidence to assess the current care needs as 7 hours per week.

52 NRMA Insurance submitted that it appears from Assessor White's reasons that she disposed of the report of Ms Beaver with the statement at [7] that "Mr Ryan for the Insurer does not rely on the opinion of Ms Beaver" and that the assessor proceeded on the basis that Mr Ryan had conceded that any and all opinions expressed by Ms Beaver should be completely disregarded. It is further submitted that the misstatement of Mr Ryan's submissions is an error of law, sufficient of itself to vitiate the award and a denial of procedural fairness.

53 The defendant submitted that this submission by the plaintiff does not give a fair reading of para [7] of the assessor's reasons, that all she was doing was noting that a concession had been made, namely that the plaintiff did not rely upon the opinion of Ms Beaver to contend that the defendant did not pass the threshold for an award in respect of care services. It was conceded by the plaintiff that the defendant did presently exceed the threshold. It was then for the assessor to move on to assess the needs on all the evidence, medical and lay, which she did.

54 It should be noted that the CARS assessor's reasons should not be read with an eye too keenly attuned to error: see Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259.

55 It is my view that a fair reading of [7] of the CARS assessor's reasons, where she stated, "The real question then is, what level above 6 hours each week is needed to satisfy Brendon's requirements for personal and domestic assistance" she correctly addressed the issue raised before her. The issue to be determined was what was the need for weekly care that was greater than 6 hours per week. I do not read into the assessor's reasons that Ms Beaver's report was to be completely disregarded, there is no error of law nor was there a denial of procedural fairness. This submission fails.

(3) Failure to refer to medical evidence

56 NRMA Insurance submitted that the assessor failed to take into account relevant material in assessing damages for past and future attendant care services, and economic loss, namely medical evidence on which each party relied. It was submitted that while there is no obligation on the part of a CARS assessor to address every piece of evidence presented where there is evidence which contradicts evidence accepted by the assessor, and which contradicts the assessor's conclusions on disputed issues and is not addressed or referred to, the Court may infer that the assessor failed to consider material.

57 NRMA Insurance further submitted that when assessing damages for care, the assessor failed to refer to the medical reports of Dr Adler and Dr Breit who had assessed the defendant's past and future care needs at a far lower level than had Ms Smith. It is submitted that an analysis of their opinions, and the basis on which they were rejected, was required. It is also submitted that the assessor specifically disregarded the opinion of Ms Beaver as to the defendant's care needs.

58 Counsel for Mr Smith submitted that para [11] of the assessor's reasons show that the evidence in toto was considered. He further submitted that NRMA Insurance in its submissions effectively concedes that there is no need to refer to individual pieces of evidence and that it is difficult to even contend that there was a legal obligation to take particular evidence into account: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 at [22].

59 In Allianz Australia Insurance Ltd v Cervantes, Basten JA (with whom McColl and Macfarlan JJA agreed) discussed the nature of "relevant considerations" for the purpose of judicial review. At [15] to [22], his Honour said:

"15. ...First, to describe evidence as 'relevant' to the case of one party is not to identify a 'relevant consideration' for judicial review purposes. ... The reference to a 'relevant consideration' in judicial review is a reference to a factor which, by law, the decision-maker is bound to take into account: Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; 162 CLR 24 at 39 (Mason J). This ground required that the appellant identify the legal obligation on which it relied to identify what were mandatory factors to be taken into account for the purposes of the assessment.

16. Secondly, the obligation is, as stated in Peko-Wallsend, to take a consideration 'into account'. How it is to be taken into account and what weight it is to be accorded in all the circumstances are matters within the authority of the decision-maker. Thus, assuming for present purposes that the assessor was bound to take into account the particular statement set out above, he could do so by dismissing it, by giving it little weight, or by giving it decisive weight.

17. Thirdly, the appellant needed to establish on the balance of probabilities that the assessor did not take the identified material into account. ... The mere fact that the specific statement relied upon by the appellant was not identified by the assessor in his reasons was, of itself, neutral. The assessor, as noted above, had more than 600 pages of material before him and could not possibly be expected to refer to the whole of it in reasons which were permissibly brief.

...

19. Although this ground must be dismissed for the reasons given above, it is desirable to return to the first step in the reasoning, namely identifying the legal obligation to take particular evidence into account. No case was referred to which supported a proposition expressed in these terms. In Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 77 ALJR 1088, at [24], Gummow and Callinan JJ stated:

'To fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice.'

20. A similar point was made by Kirby J at [86] referring to a passage in the judgment of Gaudron J in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; 206 CLR 57 at [81] where, after noting that it was not always easy to distinguish an error of law which is jurisdictional from one that is not, her Honour continued:

'However, the present case is, in my view, a clear case of constructive failure to exercise jurisdiction. That is because the delegate failed to consider the substance of Mr Miah's application and could only have failed to do so because he misunderstood what is involved in the Convention definition of "refugee".'

21. Two propositions may be drawn from these statements. First, although not articulated in these terms, a constructive failure to exercise jurisdiction may arise because the statutory conferral of power has not been exercised according to its terms. Thus, in the present case, s 94 of the Compensation Act requires that a claims assessor 'is, in respect of a claim referred to the assessor for assessment, to make an assessment of ... the amount of damages': s 94(1)(b). It is, therefore, mandatory that the assessor address the claim and carry out the statutory function.

22. The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of any no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; 243 CLR 164 at [35]."

60 While the CARS assessor did not specify to the individual reports that she considered, at [11] she did say that "after reading all the medical evidence, statements and hearing from Brendon" she was satisfied that his past need for attendant services is 30 hours as claimed. It is not necessary for the assessor to identify the reports nor to refer to every piece of evidence presented. The CARS assessor indicated that she accepted the evidence presented by Mr Smith, the claimant, and that of his experts. If Mr Smith's evidence was accepted, then it follows that any report that is consistent with his evidence would also be accepted. While the reasons are brief, they disclose her reasoning process. There has been no jurisdictional error. Nor is there a denial of procedural fairness. This submission fails.

(4) Failure to note an error in Ms Smith's approach to future care

61 Ms Lucinda Smith, a Consultant Occupational Therapist, assessed Mr Smith on 30 December 2010 and provided a Medico-Legal Activities of Daily Living (ADL) Assessment report which was included in the material considered by CARS Assessor White as part of her assessment.

62 NRMA Insurance submitted that Assessor White, when referring to Ms Smith's report, did not refer to the explanation provided by Ms Smith for her assessment of the defendant's future care needs. Ms Smith, in her report, relied on an assessment of 46% whole person impairment in respect of the defendant's right lower limb made by Dr Adler in his report dated 9 October 2009, as justifying her assessment of future care needs.

63 NRMA Insurance submitted that Dr Adler's assessment far exceeds the MAS assessment of impairment arising from the physical injuries and it was also erroneous for Ms Smith to extrapolate from the assessments of whole impairment in assessing matters such as the defendant's care needs: Brown v Lewis [2006] NSWCA 87; Pham v Shui [2006] NSWCA 373 at [93].

64 As a further example of error in Ms Smith's approach to future care, in oral submissions, counsel for NRMA also referred to an allowance for pet care in Ms Smith's report of 3.2 hours per week but no specific mention was made by the CARS assessor as to whether that item was disallowed.

65 Counsel for Mr Smith submitted that it is incorrect to say that the assessor largely accepted the opinion of Ms Smith, that this proposition is contrary to [11] of Assessor White's reasons. It was submitted that there is no basis for concluding that Dr Adler was singled out for special importance and even if this were so, this would not constitute jurisdictional error. It was further submitted that there is no rational basis for saying that Ms Smith "clearly relied on" Dr Adler's assessment of whole person impairment or that that assessment in any way informed the award in respect of care.

66 As Cervantes makes clear, it is not incumbent on the CARS assessor to consider every piece of evidence and to say why particular paragraphs of each report have been accepted or rejected, there has been no jurisdictional error. Nor has there been a denial of procedural fairness. This submission fails.

67 The result is that the CARS assessor did fall into jurisdictional error, as her reasons do not reveal how she dealt with the earlier conclusive certificate. Dr Gibson's certificate of determination was a relevant consideration and the CARS assessor is bound to take it into account.

68 The result is that the decision of the CARS assessor in matter number 2012/12/0951 issued on 11 September 2012 is vitiated by error of law. I make an order in the nature of certiorari removing into the Court the decision of the CARS assessor issued on 11 September 2012 in matter number 2012/12/0951 and quashing that decision. Matter number 2012/12/0951 is to be remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.

69 I adopt the words of Hidden J in Ward where at [73] he says that he trusts that the parties would take a practical approach to the new assessment and, by agreement, limit the matters which would need to be revisited.

70 Costs are discretionary. Costs usually follow the event. The first defendant is to pay the plaintiff's costs as agreed or assessed.

The Court declares that:

(1) The decision of the CARS assessor in matter number 2012/12/0951 issued on 11 September 2012 is vitiated by error of law.

The Court makes an order

(2) In the nature of certiorari removing into the Court the decision of the CARS assessor issued on 11 September 2012 in matter number 2012/12/0951 and quashing that decision.

The Court furthers orders that:

(3) Matter number 2012/12/0951 is remitted to the Motor Accidents Authority of New South Wales to be determined in accordance with law.

(4) The first defendant is to pay the plaintiff's costs as agreed or assessed.

**********

Decision last updated: 11 April 2013