Supreme Court New South Wales

• Medium Neutral Citation: Allianz Australia Insurance Limited v Harrison [2013] NSWSC 1211
• Hearing dates: 11 July 2013
• Decision date: 02 September 2013
• Jurisdiction: Common Law - Administrative Law
• Before: Hoeben CJ at CL

Decision

1. An order in the nature of certiorari quashing the certificate of the Claims Assessor, Ms Daley, the second defendant, made on 28 August 2012.

2. An order in the nature of mandamus remitting the first defendant's Assessment Application to the third defendant, or Principal Claims Assessor of the third defendant for re-allocation of the matter to a different Claims Assessor for determination of the matter according to law.

3. The first defendant is to pay the plaintiff's costs of these proceedings.

• Catchwords: ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 - assessment conference during which damages assessed - refusal to allow cross-examination on a specific credit issue - denial of procedural fairness - Motor Accidents Compensation Act 1999.
• Legislation Cited: Motor Accidents Compensation Act 1999
• Cases Cited: Allianz Australia Insurance Ltd v Anderson [2013] NSWSC 1186; Allianz Australia Insurance Limited v Crazzi and Others [2006] NSWSC 1090; 68 NSWLR 266; Checchia v Insurance Australia Ltd trading as NRMA Insurance [2009] NSWSC 1005; 54 MVR 55; CIC Allianz Insurance Ltd v Erturk & Ors [2010] 55 MVR 224; [2010] NSWSC 302; Lee v Yang [2006] 46 MVR 243, [2006] NSWCA 214; National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; 156 CLR 296; Sivas v Government Insurance Office of New South Wales [1990] 12 MVR 272; Smalley v Motor Accidents Authority of NSW [2012] NSWSC 1456; The Nominal Defendant v Gabriel & Ors [2007] NSWCA 52; 71 NSWLR 150; Zurich Australia Insurance Ltd v Motor Accidents Authority of New South Wales & Ors [2010] NSWSC 214
• Category: Principal judgment
• Parties: Allianz Australia Insurance Limited - Plaintiff; Tulasi Harrison - First Defendant; Geraldine Daley, in her 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: Mr MA Robinson SC/Mr JJ Ryan - Plaintiff; Mr CT Barry QC/Ms HK Wall - First Defendant; Submitting Appearance - Second and Third Defendants; Solicitors: Gillis Delaney Lawyers - Plaintiff; Shine Lawyers - First Defendant; IV Knight, Crown Solicitor - Second and Third Defendants
• File Number(s): 2013/56294

Decision under appeal

• Date of Decision: 2012-08-28 00:00:00
• Before: CARS Assessor Geraldine Daley
• File Number(s): 2011/12/0028

Judgment

1 HIS HONOUR: The plaintiff by an Amended Summons seeks the following orders:

"1 An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the assessment and/or the certificate of the claims assessor Geraldine Daley, the second defendant, made on 28 August 2012 purportedly pursuant to section 94 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act") ("the assessment decision").

2. An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servants or agents from acting on or taking any further step in reliance on the assessment decision.

3. An order in the nature of mandamus remitting the claimant's assessment application to the third defendant or the Principal Claims Assessor of the third defendant for reallocation of the matter to a different claims assessor for determination of the matter according to law and for the determination of any exemption application to be lodged by the plaintiff pursuant to section 92 of the Act.

4. If necessary, an interim order or stay in the nature of prohibition or an interlocutory injunction preventing the defendants or any of them or their officers, servants or agents from acting on or taking any further step in reliance on the assessment decision until the final determination or these proceedings or until further order.

5. A declaration that the certificate issued under section 94(4) of the Act on 28 August 2012 is not binding on the plaintiff and the plaintiff is not required to pay to the first defendant the amount of damages specified in the said certificate by reason of section 95 of the Act or at all.

6. Costs."

Factual background

2 On 7 August 2002 the first defendant was a front seat passenger in a car driven by her de facto partner when they had a head on collision with another car. At the time the first defendant was aged 25. In the accident she suffered a fracture/dislocation of the left ankle involving a fracture of the medial malleolus and a fracture of the left lower fibula, with lateral displacement of the talus in the ankle mortise. She also claimed soft tissue injuries to the lumbar and cervical spine and that she had developed a major depressive disorder, post traumatic stress disorder, social phobia and a generalised anxiety disorder.

3 The first defendant made a claim for damages under the Motor Accidents Compensation Act 1999 (the MAC Act). The plaintiff is the CTP insurer against whom the claim for damages has been made. The second defendant is the Claims Assessor, in relation to whose findings these proceedings have been brought. The third defendant is the Motor Accidents Authority of New South Wales (MAA).

4 The first defendant was one of nine children and had a somewhat disturbed childhood in which she frequently changed schools. Her schooling included time as a boarder at the Hari Krishna Community School in Murwillumbah. She left school at the age of 15, without having achieved any significant education. At that time she was taken in by the Powell family because of her relationship with Mathew Powell. Mathew's parents, Susan and Phillip Powell, became an alternative family for her.

5 The matter came before Mr Cowley, CARS Assessor, for assessment on 11 August 2011. Assessor Cowley delivered his reasons for the assessment on 29 August 2011. I propose to set out some findings by Mr Cowley, not as findings of fact upon which I propose to rely, but in the context of these proceedings, to indicate that there was evidence before him which was capable of bearing the interpretation which he gave it.

6 The paragraph references are to the reasons which he delivered for his assessment.

"22 It is submitted on behalf of Ms Harrison that prior to the accident she had intended to further her career as an Event Manager at an annual salary of $51,000. She submitted an Employment Agreement, dated 10 June 2002, between her father-in-law, Phillip Powell, and herself to this effect and that her employment would commence on 20 January 2003 when her baby, Bessie, would be about six months of age. At the outset, I must say that I find the agreement incredible. It became clear from the evidence that Mr Phillip Powell had no such business at the time he purportedly entered into the agreement with the claimant and apparently had no resources to do so. No statement was submitted by Mr Phillip Powell concerning his plans at that time for this business or his plans for Ms Harrison. It was said that he was available to give evidence by telephone as apparently he was too incapacitated to travel from his home at Winnum North to Byron Bay. However, it appears that neither I nor the insurer was made aware of this proposal. But in any event, no statement had been submitted by Mr Powell and so that there was nothing that one could question him about. It is apparent that an agreement exists, but I cannot accept that the business existed nor that Mr Powell was in a position to employ Ms Harrison but for the accident. I hesitate to say that the agreement was a concoction fabricated by Mr Powell or his family in order to enhance the claim of Ms Harrison for damages .

...

28 The other very unusual feature about this assessment is that it is claimed that almost from the outset Susan Powell provided care on a commercial basis to the claimant. I was provided with multiple invoices in the name of her maiden name, Susan Monaghan, which had been raised on a monthly basis and which simultaneously purported to be receipts. No ABN number was evident on the invoice, nor is there any suggestion that GST has been added. The invoices are said to include "Home care for four children" on many of the invoices, although they do include notes which suggest domestic care was included in the care provided.

29 The evidence of the claimant was to the effect that in order to pay for this care provided by her mother-in-law, she went into considerable debt. She gave evidence that she took out a bank loan with St George in the sum of $13,000 and that they also gave her a credit card with a $1,000 limit. Neither of these debts has been repaid. In addition, she states that she borrowed $35,000 from her brother-in-law, Leo Powell. This loan has not been repaid. She borrowed $5,000 from Ask Funding, a litigation lender, and this loan has not been repaid. She borrowed a further $20,000 in two loans from her brother-in-law. The later loans were to pay for her daughter's funeral. She states that she is in default on all these loans and has a bad credit rating. She agreed that the invoices for the paid care had been created by her father-in-law on his computer. When it was suggested to her that the employment agreement with her father-in-law and the invoices and receipts created by her father-in-law in favour of her mother-in-law were a sham, she responded "That is insulting and ridiculous". Mrs Powell responded to the same suggestion put to her by the Insurer's counsel that he was "being disrespectful"."

7 It was common ground that before Assessor Cowley, the claim for past economic loss based on the agreement, was $80,000. It was also common ground that the amount for care claimed in the invoices for the period from the date of the accident until 1 May 2009 was $98,041.25. Assessor Cowley assessed the first defendant's damages at $378,459.98 in the reasons which he gave on 29 August 2011.

8 The plaintiff brought proceedings seeking judicial review of the assessment of Assessor Cowley. The first defendant did not contest those proceedings. By agreement, his assessment was set aside and the matter was transferred to the second defendant, Ms Daley, as the CARS Assessor. In due course, an assessment conference date of 9 July 2012 was allocated.

9 By letter dated 2 May 2012 the solicitors for the first defendant advised the solicitors for the plaintiff as follows:

"We wish to advise that we have been instructed by the claimant to withdraw her claim for past domestic assistance as detailed in the Statement of Particulars which was served under cover of a letter dated 27 September 2010. In this regard we have been instructed by the claimant that she will no longer rely upon the tax invoices issued by Susan Monaghan (also known as Susan Powell) and Phillip Powell during the period 7 August 2002 to May 2009.

We have also been instructed by the claimant to withdraw her claim for economic loss as detailed in paragraphs 7 and 8 of the Statement of Particulars served under cover of letter dated 27 September 2010 which was made on the basis of an alleged Employment Contract entered between the claimant and Phillip Powell in June 2002. In this regard our instructions are that the claimant will no longer rely upon the alleged Employment Contract between herself and Phillip Powell. ..."

10 An Amended Statement of Particulars was filed on behalf of the first defendant. That statement of particulars did not include the claim for past economic loss based on the agreement nor did it include a claim for care from the date of the accident until 1 May 2009. An assessment conference took place on 9 July 2012 before Assessor Daley. Both the plaintiff and the first defendant were legally represented at that assessment conference.

11 Assessor Daley gave reasons for her decision on 28 August 2012. She awarded damages in favour of the first defendant in the amount of $396,279.02. Those damages were made up of the following components:

"Non Economic Loss $ Not claimed

Economic losses

Past loss of earnings $nil

Future loss of earnings $nil

Past treatment (incl. S83 payments) $ 10,098.72

Future treatment - "buffer" $ 50,000.00

Past gratuitous care - as claimed $ 62,844.30

Future commercial care $273,336.00

$396,279.02"

12 Included in the reasons of Assessor Daley was the following:

"10 Shortly prior to the assessment conference on 9 July 2012, the Claimant abandoned her claim for past paid care of $98,041.25 based on tax invoices which were produced. The Claimant does not make a claim for paid care for the period 7 August 2002 to 1 May 2009 being a period of approximately 351 weeks. However, she makes a claim for past gratuitous care for 15 hours and 10 minutes per week from 1 May 2009 to the date of the assessment conference on 9 July 2012 being approximately 166 weeks.

11 In addition, the Claimant shortly prior to the assessment conference also abandoned her claim for past economic loss based on an executed Employment Agreement with Road Safety promotions dated 10 June 2002 to commence employment as an event manager on 20 January 2003 for a period of 3 years.

12 In its place, as I understand her claim, the Claimant now makes a claim for a "buffer" of $50,000 for past and future loss of earning capacity.

13 On the basis of those matters canvassed in [10] and [11] above, the Insurer raises the Claimant's credibility as an issue and alleges that the Claimant is manufacturing evidence. I determined at the assessment conference that the Insurer was not entitled to ask individual questions about the abandoned claims of paid past care and past economic loss but may make submissions on the Claimant's credibility based on the abandonment of the claims.

14 The Claimant is entitled to abandon aspects of her claim. As the alleged past paid care claim and the alleged employment contract are not being pursued by the Claimant, there is no need for any further consideration on my part of the abandoned aspects of her claim."

13 In par [21] of her reasons, Assessor Daley noted a submission by the plaintiff that the first defendant's back complaints might not be related to the motor vehicle accident as "there is no contemporaneous record in hospital records of any injury to the cervical, thoracic or lumbar spine". Assessor Daley rejected this submission:

"23 I prefer the evidence of Medical Assessor Long referable to the causation of the Claimant's back symptoms. The Claimant's evidence at the assessment conference was that "my left ankle has given way and I have fallen hundreds of times". She concedes that she had some back pain prior to the motor vehicle accident but "it has got worse since the accident." The Claimant says her psychological and physical problems are getting worse."

14 In reviewing the first defendant's psychiatric condition, Assessor Daley said:

"34 The Insurer arranged for the Claimant to be assessed by Dr Igor Petroff, consultant psychiatrist. He initially assessed the Claimant on 18 February 2011. At page 4 of his report dated 1 March 2011 Dr Petroff says he accepts:

"... the diagnosis of Post Traumatic Stress Disorder even though I would prefer a diagnosis of Chronic Adjustments Disorder with Anxious, Depressed and Panicky Moods with symptoms of maximum severity (his emphasis not mine)"

He then states in the same paragraph:

... however, really, at the bottom of this case is Ms Harrison's very dysfunctional personality that Dr Synnott mentions. She came from a grossly dysfunctional family, had a bizarre childhood with absent parents whom she now avoids."

35 On page 5 of his report of 1 March 2011 at the penultimate paragraph, Dr Petroff opines that:

"I certainly think that she is really quite dysfunctional with her strongly dependent traits and that she would need about four to eight hours a week input from those around her ..."

36 Dr Igor Petroff provided two supplementary reports to McCourts in response to letters from McCourts. The supplementary reports are dated 7 March 2011 and 22 March 2011. Significantly, Dr Petroff opines in his supplementary report dated 22 March 2011 on page 1 that "I do not suspect Ms Harrison to be lying and consciously distorting the truth". I accept Dr Petroff's opinion that the claimant is a truthful witness. On page 2, he opines that "the bizarre features of this case are Ms Harrison's family of non-copers, her bizarre childhood, her unusual schooling and her inability to achieve any occupational goals or targets". He does not find a pre-existing psychiatric diagnosis or condition rather a personality trait.

37 Dr Petroff opined that the Claimant had a "severely abnormal dependent personality". He further states that "I would certainly not be one bit surprised if I had come across Ms Harrison in her present state without her having been involved in any car accident."

38 I am satisfied on the evidence that the Claimant is a truthful witness and certainly not consciously distorting the truth. I accept Dr Petroff's opinion on this aspect of the evidence. I accept the overwhelming evidence of Medical Assessor Synnott, Dr Chau and Dr Petroff that the Claimant has a vulnerable personality. She came across at the assessment conference as very fragile indeed."

15 In relation to the first defendant's claim for past gratuitous care, Assessor Daley said:

"78 The Claimant claims past gratuitous care of 15 hours and 10 minutes per week provided by her ex partner Matthew Powell from May 2009 to 9 July 2012 calculated mathematically at $62,844.30. She relies on the OT report of Lesley Stephenson dated 28 March 2011 and the report of Dr Chau dated 8 September 2010 (refer [29] above) in support of her claim. I accept the Claimant's evidence and the evidence of Dr Chau and Dr Petroff (refer [35] above) that she at the very least is in need of care as a result of the psychiatric injuries she received from the motor vehicle accident. The Claimant also gave evidence that her motor vehicle accident and related back and left ankle symptoms create the need for care.

79 The Insurer's primary submission is "that the claimant does not suffer from any ongoing disability related to the subject accident which requires assistance in any event" (refer page 8 last paragraph of its submissions dated 3 July 2012). The Insurer does not concede any need arising from the motor vehicle accident for past gratuitous care or future paid care on the part of the Claimant. I am not persuaded by this submission. The overwhelming medical evidence and the evidence of the two OTs is that the Claimant is in need of care as a result of the motor vehicle accident.

...

81 The Claimant's evidence at the assessment conference was that she does sweeping but does not vacuum. She goes shopping with her ex partner every Tuesday. He comes over every morning at about 11am and encourages the Claimant to get out of bed. The Claimant says she needs assistance around the house. She looked after her daughter Ruby until her death.

82 The Claimant gave evidence that she understood Matthew Powell will be moving to NSW or back to New Zealand in September 2012. This will mean he will no longer be able to provide gratuitous domestic assistance to the Claimant.

83 Matthew Powell says he has been providing gratuitous domestic assistance to the Claimant since May 2009. He says the Claimant has changed 'a lot' since the motor vehicle accident. He confirmed that he will be moving to NSW or back to New Zealand in September 2012. ...

...

85 Susan Powell, Matthew's mother, is a fulltime carer for her ex-husband who lives downstairs and the Claimant lives upstairs. Susan Powell cares for her ex-husband 5 to 6 hours a week. She also assists the Claimant with various domestic tasks. She currently does the laundry for the Claimant. She used to assist the Claimant a lot more before Ruby died. She will not be able to continue providing gratuitous domestic assistance to the Claimant as she wants to look after her three grandchildren. She will be arranging for someone else to care for her ex-husband. She says she will probably be moving to NSW or New Zealand also."

16 In relation to past gratuitous care, Assessor Daley set out her conclusion as follows:

"97 I am comfortably satisfied on the evidence of the Claimant, Matthew Powell and Susan Powell that the Claimant's injuries have created a need for care. The Claimant has demonstrated a need for gratuitous care for the period May 2009 to 9 July 2012. The medical reports of Dr Chau and Dr Petroff support such a claim. I am satisfied that such need is as a result of the motor vehicle accident and related physical and in particular psychiatric injuries. I prefer the OT report of Nancy Stephenson (1) to the OT reports (3) of Stephanie Johnson."

17 A statement made by the first defendant, dated 18 November 2010 and signed by her was before both Assessors. Relevantly, that statement included the following:

"Economic Loss Claim

7. At the time of the motor vehicle accident I was not employed as I was pregnant and expecting my fourth child. However, I had entered into an employment contract with Road Safety Promotions on 10 June 2002 to commence employment as an Event Manager commencing 20 January 2003. In this regard I refer to paragraphs 7 and 8 of the Statement of Particulars which is annexed to this statement.

...

Claim for Past and Future Care

11. Following the accident I was unable to care for my children, my then partner, or myself due to the injuries sustained in the accident on 7 August 2002. As a result of this I received domestic assistance. I understand that the insurer has been provided with all invoices issued by Susan Powell and Phillip Powell in relation to the assistance provided.

..."

18 In relation to future paid care, Assessor Daley said:

"100 I accept the evidence of Matthew Powell and his mother, Susan Powell, at the assessment conference that the care they say they are currently providing to the Claimant is likely to cease in September 2012 when Matthew Powell and their three daughters and his mother, Susan Powell, move to NSW or they all return to New Zealand to live. I find that this change in circumstances will necessitate the Claimant engaging commercial assistance."

19 Comprehensive notes were taken of the evidence and what happened at the assessment conference by Ms Field, who is a Senior Claims Consultant employed by the plaintiff. While it is acknowledged that her notes are not an alternative to a transcript, they are the only record of what happened at the assessment conference. It was accepted that these notes were contemporaneous and to the extent that they were relied upon by the plaintiff, their accuracy was not challenged.

20 The notes reveal that when counsel for the plaintiff attempted to cross-examine the first defendant concerning the documents which had been relied upon in her case until the letter of 2 May 2012, objection was taken by her counsel. Having heard argument, the Assessor refused to allow cross-examination and gave the direction which is set out in par [13] and [14] of her reasons. Similarly, when counsel for the plaintiff attempted to cross-examine Susan Powell in relation to the claim for paid care between the date of the accident and May 2009, objection was taken and any cross-examination on that subject was disallowed.

21 At the conclusion of the evidence before the Assessor, submissions were made by counsel for the plaintiff concerning the credit of the first defendant. Those submissions were directed to the nature of the documents relied upon in respect of the claim for past economic loss and past paid care. The submissions were also directed to the unexplained abandonment of those claims in May 2012.

22 In relation to order 5 of the Amended Summons, it is necessary to set out the correspondence upon which reliance is placed by the plaintiff.

23 On 8 May 2003 the plaintiff wrote to the first defendant, care of her solicitors, as follows:

"SECTION 81 NOTICE

RE: MOTOR ACCIDENT ON 7 AUGUST 2002 AT TERRAGON

We refer to previous correspondence in respect to the above matter and wish to advise we are now in a position to admit a breach of duty of care in relation to the circumstance of the above accident.

This admission is made after considering all the relevant information available at this time. However, we reserve our right to withdraw our admission and re-assess our position if, at a later date, further information is received that would cause us to alter our view.

We will now consider payment of all reasonable and necessary medical and rehabilitation expenses received by this office and request you forward any outstanding accounts/invoices in your possession. Reimbursement will only be made on original documentation being forwarded to this office.

We support and encourage the early settlement of claims. If you feel you are in a position to discuss settlement, please contact the writer on the telephone number listed below.

Yours faithfully,"

24 It was common ground that following the issuing of the certificate under s94(4) of the Act on 28 August 2012, the first defendant sent the plaintiff a notice "accepting that amount" being the amount awarded by the Assessor Daley.

25 A useful overview of the compensation scheme under the MAC Act is set out in Checchia v Insurance Australia Ltd trading as NRMA Insurance [2009] NSWSC 1005; 54 MVR 55 (Rothman J):

"7 The scheme established by the Act has been the subject of significant authority, mostly relating to the process of assessment. ...

8 The purpose of the legislation was the establishment of a new scheme for motor accident compensation that, generally, did not involve curial proceedings. Medical assessors resolve differences between injured persons and the relevant insurer as to the extent of the injury and whether the alleged accident was the cause of the injury. There exists a right of appeal to a Review Panel (which also consists of medical assessors).

9 The insurer is obliged by the Act to endeavour to resolve the claim, by settlement or otherwise, justly and expeditiously. It is, in that context, required to give written notice of its attitude to liability no later than three months from the making of the claim. It is also an insurer's duty to make a reasonable offer of settlement (either a money amount for damages or a method of calculating same) within the later of one month from the stabilisation of the injury or two months from the provision of particulars by the claimant. It is required to cover hospital, medical and other expenses from the time of admitting liability (or having it determined) and also to take reasonable steps for the medical rehabilitation of the claimant.

10 On the other hand, the claimant is required under the Act to cooperate fully with the insurer (and insured) as to the claim, by providing enough information to satisfy the insurer as to the validity of the claim and in order to facilitate an early offer of settlement. Further, a claimant is required to answer any reasonable request for particulars and to provide copies of documents.

11 Generally, although some claims are the subject of court proceedings, Claims Assessors will assess claims in accordance with guidelines that have been promulgated. It is unnecessary, for present purposes, to discuss the details of the foregoing. It is sufficient to note the general scheme and the imposition of obligations on claimants and insurers. Further, it is a criminal offence (and often a breach of the licence conditions) for an insurer to contravene an obligation imposed upon it under the Act."

Submissions

26 The plaintiff's submissions raise two issues. The first relates to the refusal by the Assessor to allow cross-examination of the first defendant and Ms Susan Powell concerning the abandoned claim for past economic loss and for past paid care.

27 The second is based on ss 81 and 95 of the MAC Act. In that regard, the plaintiff asserts that the letter which it sent on 8 May 2003 only partially admitted liability and that by reference to s95, it is not obliged to pay the damages which have been assessed by Assessor Daley against it.

First issue - procedural fairness

28 When conducting an assessment conference, an Assessor is obliged to comply with the Claims Assessment Guidelines promulgated by the Motor Accidents Authority of NSW (the Guidelines). It was common ground that these Guidelines operate as delegated legislation. Para 15.4 of the Guidelines provides:

"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

..."

29 Chapter 16 of the Guidelines deals with the Assessor's role during 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:

...

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

...

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.

...

16.7 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;

..."

30 It was also common ground that an Assessor is bound by the common law to comply with the rules of natural justice and procedural fairness (Allianz Australia Insurance Limited v Crazzi and Others [2006] NSWSC 1090; 68 NSWLR 266 at [177] (Johnson J)).

31 The plaintiff submitted that the Assessor erred when she refused to give the plaintiff the opportunity of asking the first defendant and Ms Susan Powell any questions concerning her past paid care claims and in refusing the plaintiff the opportunity to ask the first defendant any questions concerning her claim for past economic loss. The plaintiff submitted that such questions were directed to the credit of the first defendant and Ms Susan Powell. The plaintiff submitted that their credit, particularly that of the first defendant, was an important issue because issues such as medical causation and the need for and extent of care provided and to be provided for the first defendant were important disputed issues. The plaintiff submitted that this could be seen from pars [23], [36], [38], [78], [81] and [97] of the Assessor's reasons where the Assessor based her decision substantially on an acceptance of the reliability and honesty of the first defendant.

32 The plaintiff submitted that this failure by the Assessor constituted a denial of procedural fairness. It had the effect of preventing the plaintiff from properly presenting its case. The plaintiff submitted that the Assessor was in breach of paras 16.2.3,16.3, 16.4, 16.5 and 16.7 of the Guidelines.

33 The first defendant submitted that the Assessor acted within power when she gave the impugned direction. She submitted that there was no right to cross-examine a party at an assessment conference and that the plaintiff's position was adequately protected by the right to make submissions with respect to her credibility.

34 The first defendant submitted that because she had abandoned her claim with respect to paid care and past economic loss before the assessment conference, the plaintiff could not establish that the damages awarded to her would have been any different had it been allowed to cross-examine her as to credit. She submitted that the Assessor made findings based on the whole of the evidence in accordance with her obligations under the Act and the Guidelines. She submitted that there was ample evidence before the Assessor from the medical referees to support the first defendant's claim.

35 In summary, the first defendant's position was that there was no entitlement on the part of the plaintiff to an unrestricted cross-examination of the first defendant as to credit. As a result, there was no denial of procedural fairness in the Assessor refusing to permit what the Guidelines did not otherwise require.

Consideration

36 The reason given by the Assessor for not allowing the plaintiff to ask questions about the abandoned claim was because "the alleged past paid care claim and the alleged employment contract are not being pursued by the claimant, there is no need for any further consideration on my part of the abandoned aspects of her claim".

37 That reasoning is problematic. It is correct that there is no express entitlement under the MAC Act or Guidelines for a party to ask questions of a witness or other party. Par 15.4 of the Guidelines directs that a party is to be given an opportunity to put to the Assessor any questions that the party wanted the Assessor to ask but does not impose any requirement on the part of the Assessor to comply with that request. Par 15.3 gives a power to the Assessor to allow questioning of a witness by either party's legal representatives, but does not require an Assessor to exercise that power. Par 16.8 of the Guidelines gives an Assessor a wide discretion as to the way in which an assessment was to proceed.

38 The position of an Assessor was helpfully summarised by Whealy J in Zurich Australia Insurance Ltd v Motor Accidents Authority of New South Wales & Ors [2010] NSWSC 214 where his Honour said in relation to an Assessor's powers generally:

"58 ... The Assessor had power to determine his own procedure and was entitled to enquire into the assessment in such manner as he thought fit. Moreover, he was entitled to determine the manner in which evidence was presented at the Assessment Conference. This included a power to limit, curtail or prohibit cross-examination. Of course, the obligation lay on the Assessor to ensure that each party was able to present its case fairly. In that regard, it is plainly the situation that the right to cross-examination is not, in every situation, an absolute. It may well be required in many litigious exercises where a refusal to allow cross-examination may constitute a denial of procedural fairness. But, as I say, it is not an absolute requirement. Much will depend upon the legislation, the nature of the litigation and the point at issue in the litigation. There are other ways of allowing a party to present its case fairly, absent cross-examination."

39 In this case the credit of the first defendant and to a limited extent Ms Susan Powell, were important matters. Medical opinion was substantially dependent upon the reliability and honesty of the first defendant as were the conclusions of the Assessor. The Assessor based a number of important findings on her acceptance of the first defendant as a witness of truth. This is not to say that there was any requirement for the Assessor to allow wide ranging and lengthy questioning. At the very least, however, the plaintiff was entitled to request an explanation as to the origin of the impugned documents and the reason for the abandonment of the claims which were based on them.

40 The following paragraphs in the Zurich case provide some elucidation of what Whealy J had in mind.

"59 Mr Kunc relied on two decisions to advance the proposition that cross-examination was very important. I accept that it is important. Those cases were Australian Postal Commission v Hayes & Anor (1989) 23 FCR 320 and Ramsay v Australian Postal Corporation [2005] 147 FCR at 39. In the first case, Wilcox J held that, in proceedings before the Administrative Appeals Tribunal the Commission was denied procedural fairness by a decision which fettered the proposed cross-examination of a claimant to such an extent that her evidence could not properly be tested. The point at issue there was that the Tribunal had directed that a surveillance film be shown to the claimant at the commencement of her evidence-in-chief. Wilcox J said that the Commission was entitled to show the film to the claimant after the conclusion of her evidence-in-chief.

60 The second case involved a situation where the applicant was denied the opportunity to cross-examine a medical practitioner whose written reports were admitted into evidence. It was plainly the situation in that case that the relevant written reports were critical to the Tribunal's decision. Spender J held that the right to challenge by cross-examination a deponent whose evidence is adverse in important respects to the case a party wishes to present is an incident of the obligation to accord procedural fairness."

41 Support for an entitlement to ask questions of a witness or a party in certain circumstances can be deduced from the Guidelines. If under clause 15.4.1 of the Guidelines a party is to be given an opportunity to address the Assessor on any issue in dispute, there must be a commensurate entitlement to provide an evidentiary basis for such an address. It is true that this does not have to be by way of the legal advisors asking questions of a party, but by the Assessor putting such questions either of his or her own motion or at the request of a party. Nevertheless, there seems to be an implicit entitlement within par 15.4 of the Guidelines to establish an evidentiary basis to support a submission concerning an issue in dispute.

42 Chapter 16 of the Guidelines also supports that interpretation. Regard is to be had to the "equity, good conscience and substantial merits of the matter" (par 16.3) and the Assessor is "to ensure that relevant material is available so as to enable all of the relevant facts in issue to be determined" (Par 16.5). Finally, the Assessor is to "progress the resolution of a matter as quickly, fairly and as cost effectively as is practicable" (Clause 16.7).

43 On the facts of this case, I am of the opinion that there was an entitlement on the part of the plaintiff to either ask questions of the first defendant through its legal advisors concerning the impugned documents and the abandonment of the claims which were based on them or to have the Assessor ask such questions.

44 It was no answer to the plaintiff's request to say that it might "make submissions on the claimant's credibility based on the abandonment of the claim". If the plaintiff had made such submissions, how could the Assessor have made any findings adverse to the first defendant or any of her witnesses without her being given the opportunity to explain the origin of the documents and the abandonment of those parts of her claim based upon them. The principles of procedural fairness would undoubtedly have been breached in such a circumstance.

45 In other words, the Assessor by determining that the plaintiff was not entitled to ask questions about the abandoned claims and by not herself asking such questions, in effect precluded any prospect of success which the plaintiff might have had in making submissions concerning those issues. It follows that the concession made to the plaintiff that it could make submissions concerning the claimant's credibility, based on the abandonment of the claims, was illusory and of no value.

46 Part of the reasoning of the Assessor for refusing the plaintiff's application was based on relevance. Because the claims had been abandoned, they would not form any part of any award of damages in favour of the first defendant. That, however, does not exhaust the test for relevance. As already indicated, the first defendant's credibility was an important consideration in this claim.

47 In that regard, the observations and conclusions of Assessor Cowley (at [6] hereof) are helpful. While it cannot be suggested that Assessor Daley would have reached the same conclusions, it can be said that the documents were capable of bearing the interpretation given to them by Assessor Cowley. That being the case, they were clearly important for the assessment of the first defendant's credit and were capable of influencing the positive finding in favour of the first defendant made by Assessor Daley at [38] of her reasons that "I am satisfied on the evidence that the claimant is a truthful witness and certainly not consciously distorting the truth".

48 Procedural fairness is to be determined having regard to all of the circumstances. It is dependent very much upon context and the relevant legislation. In National Companies and Securities Commission v News Corporation Ltd [1984] HCA 29; 156 CLR 296 Gibbs CJ referred to the issue in these terms at [15]:

15 In Russell v The Duke of Norfolk (1949) 1 All ER 109 Tucker L.J. said, at p 118:

"The requirements of natural justice must depend on the circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject-matter that is being dealt with, and so forth."

The passage has frequently been approved - for example, by this Court in Reg v Commonwealth Conciliation and Arbitration Commission; Ex parte Angliss Group (1969) 122 CLR 546, at p 552. The authorities show that natural justice does not require the inflexible application of a fixed body of rules; it requires fairness in all the circumstances, which include the nature of the jurisdiction or power exercised and the statutory provisions governing its exercise. Moreover, as Stephen J said in Salemi v MacKellar (No 2) [1977] HCA 26; (1977) 137 CLR 396, at p 444, the rules of natural justice "may also vary from case to case although each be conducted before one and the same tribunal or person." ...

49 In this case the plaintiff was entitled to more than merely an opportunity to put submissions at the conclusion of evidence in circumstances where those submissions could not be properly acted upon by the Assessor. I have concluded that there has been a denial of procedural fairness and a denial of natural justice so that the first issue raised by the plaintiff in its Summons has been made out. For that reason, the certificate of Assessor Daley, made on 28 August 2012, should be set aside.

Second issue - is the plaintiff bound by the assessment

50 In relation to declaration 5 in the Amended Summons, the plaintiff submitted that on the proper construction of s95 of the Act, the assessment by Assessor Daley did not bind it. In order to understand the plaintiff's submissions on this issue, it is necessary to set out the following sections of the MAC Act.

"81 Duty of insurer with respect to admission or denial of liability

(1) It is the duty of an insurer to give written notice to the claimant as expeditiously as possible whether the insurer admits or denies liability for the claim, but in any event within 3 months after the claimant gave notice of the claim under section 72.

(2) If the insurer admits liability for only part of the claim, the notice is to include details sufficient to ascertain the extent to which liability is admitted.

(3) If the insurer fails to comply with this section, the insurer is taken to have given notice to the claimant wholly denying liability for the claim.

(4) Nothing in this section prevents an insurer from admitting liability after having given notice denying liability or after having failed to comply with this section.

(5) It is a condition of an insurer's licence under Part 7.1 that the insurer must comply with this section.

...

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:

(a) the issue of liability for the claim (unless the insurer has accepted liability), and

(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.

...

95 Status of assessments

(1) An assessment under this Part of the issue of liability for a claim is not binding on any party to the assessment.

(2) An assessment under this Part of the amount of damages for liability under a claim is binding on the insurer, and the insurer must pay to the claimant the amount of damages specified in the certificate as to the assessment if:

(a) the insurer accepts that liability under the claim, and

(b) the claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued.

Note. If the amount of damages is not accepted by the claimant within that period, section 151 makes provision with respect to liability for legal costs incurred after the certificate of assessment was issued.

..."

51 The plaintiff developed its argument as follows. A notice was issued pursuant to s81 ([23] hereof). It specified that the plaintiff admitted "a breach of duty of care" in relation to the circumstances of the accident. The plaintiff submitted that this constituted an admission of "liability for only part of the claim" (s81(2)). This was because it had admitted duty of care and breach of duty of care but had not admitted that any damage or loss had thereby been suffered.

52 The plaintiff submitted that "liability" for the first defendant's claim within the meaning of that word as used in s95(1) and (2) had not thereby been admitted and that it had not accepted liability under the claim. In that regard, the plaintiff relied upon Lee v Yang [2006] NSWCA 214 (Giles, Hodgson and Ipp JJA); [2006] 46 MVR 243. There the Court of Appeal considered a case where a claims assessment had been undertaken and contributory negligence was a large issue between the parties. While the claimant accepted the damages so determined by the claims assessor, the insurer advised that it did not accept the claims assessor's determination of contributory negligence and argued that the claimant should commence court proceedings.

53 The plaintiff relied upon the following passages from that case:

"21 It was common ground that an assessment of "the issue of liability for the claim" in s94(1)(a) encompassed contributory negligence and the extent of any reduction of damages. The effect of s9 of the LR Act is that a claim is not defeated by contributory negligence, but that the damages recoverable are reduced; by s11, the total damages recoverable but for the contributory negligence must be found and recorded. Notwithstanding that the statutory effect is on damages, contributory negligence can readily be regarded as going to liability, see the heading to s9 "Apportionment of liability in cases of contributory negligence". Thus the assessment of "the amount of damages for that liability" in s94(1)(b) is of the damages payable to the claimant after any reduction for contributory negligence. There is no occasion to question the common ground.

...

23 These difficulties suggest that the Judicial Registrar's construction is flawed, and that s95(2) states the double consequence of satisfaction of the two conditions in paras (a) and (b): that the assessment is binding on the insurer, and that the insurer must pay the claimant. The structure is readily understandable. Section 95(1) is in the terms of an assessment being not binding. Section 95(2) follows it in the terms of an assessment being binding, and adds an obligation to pay the claimant. It is necessary to impose the obligation, because s95(2) will commonly operate in the absence of legal proceedings. But both conditions must be satisfied.

24 In my opinion, the double consequence construction is correct.

25 What may be binding is "the amount of damages for liability under a claim". This picks up the liability found on the issue of liability for the claim, and is "the amount of damages for that liability" in s94(1)(b) and so the damages payable to the claimant after any reduction for contributory negligence. The claimant may accept "that amount of damages" in settlement of the claim, and correspondingly the insurer may accept "that liability under the claim", being the liability assessed "on the issue of liability for the claim".

26 Section 95(2) provides a mechanism by which the non-binding assessment of the issue of liability for a claim and the assessment of the amount of damages for that liability become binding as a package. By accepting "that amount of damages", the claimant agrees to liability, including any reduction in damages for contributory negligence; the claimant can do so if the damages are an amount the claimant is prepared to take to resolve the claim. By accepting "that liability under the claim", the insurer also agrees to liability, and is then precluded from contesting the amount of the damages; the insurer can do so if the damages are an amount the insurer is prepared to pay to resolve the claim. But there must be the conjunction of the two conditions in paras (a) and (b), and each of the claimant and the insurer may decline to accept and thereby make the other go to court. The subsection refers to the assessment of the amount of damages for liability under the claim being binding on the insurer, rather than on both the claimant and the insurer, because the claimant's acceptance necessarily involves the assessment being binding on the claimant in the event of the insurer's acceptance; and because it is open to the insurer to contest the assessment of damages only if the insurer contests the liability as found by the assessor."

54 The plaintiff submitted that it had not accepted "that liability under the claim" and was therefore not precluded from contesting the amount of the damages and was not bound by the assessment.

55 The first defendant did not accept this analysis. She did not accept that the s81 notice constituted an admission of liability for only part of the claim. This was because the plaintiff's CARS documents appeared to concede liability as a whole. She also relied upon the decision of Sivas v Government Insurance Office of New South Wales [1990] 12 MVR 272. In that case, there had been "an admission of liability" which Kirby P held to include an admission as to the existence of duty, breach of duty and material injury to the interests of the plaintiff. The first defendant submitted that the s81 notice in this case operated in the same way.

56 The first defendant submitted that the s81 notice did not comply with that section in that it did not make plain that liability was disputed in respect of injury, loss and damage. The first defendant submitted that by consenting to the assessment conference and the assessment process, the plaintiff had, in effect, fully admitted liability so that in reality the only issue in dispute was the amount of damages rather than the fact of damage having been suffered.

Consideration

57 The plaintiff's first proposition that the s81 notice operated as a partial admission of liability should be accepted. The phrase "admit breach of duty of care" has been considered in this context on a number of occasions and that is the approach which has been followed.

58 In CIC Allianz Insurance Ltd v Erturk & Ors [2010] 55 MVR 224; [2010] NSWSC 302, Simpson J said of this phrase:

"39 The terminology used is not entirely in accordance with s81 - s81 requires notice whether the insurer "admits or denies liability for the claim" but permits an insurer to admit liability for only part of the claim (subs (2)). To admit, as did the plaintiff, "breach of duty of care", was something less than a full admission of liability - it encompassed duty of care, and breach of duty of care, but not injury, loss and damage. It was a partial admission of liability."

59 In The Nominal Defendant v Gabriel & Ors [2007] NSWCA 52; 71 NSWLR 150 the Court of Appeal (Hodgson Campbell JJA, Basten JA dissenting) appears to have approved such an interpretation.

60 Hodgson JA said:

"2 In my opinion, AAMI's letter of 3 June was an admission of liability within s.81, subject to a reduction of 25% for contributory negligence. The admission was expressed to be an admission of breach of duty of care, but the reference to a deduction of 25% from any final settlement, and to payment in full of medical expenses, amounted to an implied admission of at least some consequential suffering of damage."

Campbell JA said:

"85 The admission made by AAMI's letter of 3 June 2003 was of breach of duty of care. As the claim made by the plaintiff was that the driver of the unidentified vehicle had committed the tort of negligence, and as someone is liable for the tort of negligence only if that person owes a duty of care to the plaintiff, has breached that duty of care, and the plaintiff has thereby suffered damage, the admission made by AAMI was not, strictly, an admission of liability for the claim. The admission of breach of duty of care necessarily contained within it an admission of the existence of a duty of care, but no admission was made of any consequential suffering of damage. Thus it counts as an admission of liability for only part of the claim. An admission of liability for part of a claim, in this way, can fairly be described as a notice that includes "details sufficient to ascertain the extent to which liability is admitted", and thus is expressly contemplated by section 81(2) MAC Act."

61 The approach of Basten JA, while different, was not necessarily inconsistent with such an approach:

"41 This gives rise to a minor subsidiary question as to the terms on which it sought to admit liability. The admission, contained in the notice of 3 June 2003, admitted "breach of duty of care" and asserted contributory negligence estimated at 25% (apparently based on the failure of the claimant passenger to wear a seat belt). There is no liability in negligence without damage. Further, the purpose of the statutory scheme is demonstrated by the preceding section, which requires an insurer "to endeavour to resolve a claim, by settlement or otherwise, as justly and expeditiously as possible": s 80. It is also demonstrated by the terms of the subsequent section, which requires an insurer to make "a reasonable offer of settlement to the claimant (unless the insurer wholly denies liability for the claim)": s 82(1). The offer of settlement "is to specify an amount of damages or a manner of determining an amount of damages": s 82(2). Thus, although s 81(2) permits the insurer to admit liability "for only part of the claim", read in context an admission of liability involves a concession that damage has been suffered as a result of a breach of duty. Accordingly, I would read the notice as an admission of liability limited in extent by the claim of contributory negligence and, possibly, by the reservation of rights of contribution, though it is doubtful that Part 4.3 of the MAC Act is concerned with questions of contribution."

62 On the same point, Rein J in Smalley v Motor Accidents Authority of NSW [2012] NSWSC 1456 said:

"21 ... The Act provides that an admission of fault in respect of a motor accident claim is an admission of the tort of negligence. The Guidelines make a distinction between admitting fault and admitting liability. An admission of breach of duty is not an admission of the tort of negligence, as the passage from Gudelj v Motor Accidents Authority of New South Wales at [67] set out above demonstrates. This is because the tort of negligence encompasses not only breach of duty but injury or damage consequent upon that breach - that is the position at common law: see Sivas v Government Insurance Office (NSW) (1990) 12 MVR 272 per Samuels JA, followed in Davis v Davis (1995) 21 MVR 348."

63 This, however, does not end the matter. As the Court made clear in Lee v Yang, an assessment of damages by an assessor is binding on an insurer if "the insurer accepts that liability". This was explained where Giles JA said:

"26 ...The subsection refers to the assessment of the amount of damages for liability under the claim being binding on the insurer, rather than on both the claimant and the insurer, because the claimant's acceptance necessarily involves the assessment being binding on the claimant in the event of the insurer's acceptance; and because it is open to the insurer to contest the assessment of damages only if the insurer contests the liability as found by the assessor."

And at:

"27 ... It is correct that the assessment would only be binding on the insurer if the insurer accepted the liability assessed on the issue of liability for the claim, but equally it would only be binding on the claimant if the claimant accepted the assessment within the 21 days."

64 The application of those statements of principle was relatively straightforward in Lee v Yang in that the insurer made it clear, following the assessment, that it disputed the assessor's assessment of contributory negligence. By raising that issue, the insurer also made it clear that it was not accepting "the liability as found by the assessor". The situation in this case is different.

65 Here the insurer, having made a partial admission of liability as to the existence of a duty of care and its breach, did not in terms make a formal admission as to an entitlement to damages. It did, however, as the first defendant submitted, make such admissions in its CARS documents. After the assessment by Assessor Daley, it disputed the quantum of damages and the amounts awarded under some heads of damage but did not dispute an entitlement to damages generally. This is not surprising given the circumstances of the accident and the fact that the first defendant had suffered undoubted physical injury in it. Questions of quantum of damages and heads of damage of course do not relate to liability and are treated quite separately in the Act (s58 and following).

66 In those circumstances, I am not satisfied that the plaintiff has established that following the issuance by the assessor of her certificate, it was contesting "the liability as found by the assessor" or that it had not "accepted the liability assessed on the issue of liability for the claim". It seems apparent from its approach to the assessment conference and conduct afterwards, that the plaintiff had accepted the assessor's assessment of liability per se, and was disputing the quantum of the damages. It follows that the requirements of s95(2) were met and that the assessment of damages by Assessor Daley was binding on the plaintiff.

67 Since dictating the above reasons, I have had occasion to read the judgment of Rothman J in Allianz Australia Insurance Ltd v Anderson [2013] NSWSC 1186. His Honour there had occasion to consider the same question as is raised by the "second issue" in these proceedings. I note that his Honour has reached the same conclusion as I have by a different process of reasoning.

Conclusion

68 Although the plaintiff has not succeeded in obtaining declaration 5 in its Amended Summons, it has succeeded on the issue of procedural fairness. As a result, it has succeeded in having the assessor's certificate of 28 August 2012 set aside. In those circumstances, the first defendant should pay the plaintiff's costs of these proceedings. I am confirmed in that conclusion because only a small part of the argument in this Court related to the issue raised by declaration 5.

69 The orders which I make are as follows:

1. An order in the nature of certiorari quashing the certificate of the Claims Assessor, Ms Daley, the second defendant, made on 28 August 2012.

2. An order in the nature of mandamus remitting the first defendant's Assessment Application to the third defendant, or Principal Claims Assessor of the third defendant for re-allocation of the matter to a different Claims Assessor for determination of the matter according to law.

3. The first defendant is to pay the plaintiff's costs of these proceedings.

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Decision last updated: 02 September 2013