Supreme Court New South Wales

• Medium Neutral Citation: Allianz Australia Insurance Limited v Serria Girgis & Ors [2011] NSWSC 1424
• Hearing dates: 2 August 2011
• Decision date: 25 November 2011
• Jurisdiction: Common Law
• Before: Adams J

Decision

Summons dismissed

• Catchwords: ADMINISTRATIVE LAW - Claim for prerogative relief - motor accidents compensation scheme - medical assessment of degree of permanent impairment of person as a result of injury caused by motor accident - whether Medical Assessor's certificate under ss 58(1) and 61(2) of the Motor Accidents Compensation Act 1999 is conclusive evidence of causation of injury by accident for all purposes - Whether Assessor bound by finding of causation by Medical Assessor in assessing earning capacity or economic loss.; ADMINISTRATIVE LAW - Reasons of Claims Assessor under the Motor Accidents Compensation Act 1999 - whether reasons given by Claims Assessor adequate - appropriate test for examining adequacy of Claims Assessor's reasons.
• Legislation Cited: Civil Liability Act 2002; Motor Accidents Compensation Act 1999; Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007
• Cases Cited: Ackling v QBE Insurance (Aust) Limited [2009] NSWSC 881; (2009) 75 NSWLR 482; Allianz Australia Insurance Limited v Sprod & Ors [2011] NSWSC 1157; Azar v Kathirgamalingen (unreported, District Court of NSW 21 April 2011); Motor Accidents Authority (NSW) v Mills & Anor [2010] NSWCA 82; (2010) 55 MVR 243; Pham v Shui [2006] NSWCA 373
• Category: Principal judgment
• Parties: Allianz Australia Insurance Limited (Plaintiff); Serria Girgis (First Defendant); Motor Accidents Authority of New South Wales (Second Defendant); Terry Broomfield (Third Defendant); Principal Claims Assessor of the Motor Accidents Authority of New South Wales (Fourth Defendant)
• Representation: K. Rewell SC and M.A. Robinson (Plaintiff); E.G. Romaniuk (First Defendant); Sparke Helmore Lawyers (Plaintiff); Slater & Gordon (First Defendant); Crown Solicitor's Office (Second, Third and Fourth Defendants)
• File Number(s): 2011/64813

Judgment

1 Allianz Australia Insurance Limited (Allianz) seeks an order in the nature certiorari or, alternatively, a declaration setting aside or declaring invalid the assessment and certificate made by an assessor of the Claims Assessment and Resolution Service on 23 December 2010 under s 94 of the Motor Accidents Compensation Act 1999 (Act), together with ancillary relief.

Background

2 The first defendant, Ms Girgis, was injured in a motor accident on 30 May 2008. Allianz was the compulsory third party insurer of the vehicle at fault and admitted breach of duty of care. Ms Girgis made a claim for damages against Allianz under the Act. There being no issue as to liability. The claim was dealt with by the Claims Assessment and Resolution Service.

3 There was a dispute between Ms Girgis and Allianz as to whether the physical injuries suffered by Ms Girgis in the accident gave rise to permanent impairment greater than 10% and as to the justified extent of domestic assistance. Each question was referred to a different Medical Assessor for certification. The injuries referred for assessment were musculo-ligamentous injuries to the cervical spine, the thoracic spine, the lumbar spine and the left shoulder together with a tear/musculo-ligamentous injury to the right shoulder. A certificate under s 61 of the Act was issued by Dr Dowda on 16 May 2009. He found that the musculo-ligamentous injuries to the cervical and lumbar spine were caused by the accident of 30 May 2008 but that the other injuries were not caused by the accident. He found that the impairment arising from the injuries to the cervical and lumbar spines was not permanent as at the time of his assessment on 13 May 2009 and, accordingly, was unable to assess the degree of permanent impairment. However, on 20 January 2010 Dr Dowda assessed the degree of permanent impairment in respect of the injury to the cervical spine at 5%; although the injury to the lumbar spine gave rise also to a permanent impairment of 5%, he found that this was pre-existing and that the accident did not cause any greater degree of permanent impairment. Accordingly, total permanent impairment caused by the motor accident was assessed at 5%. As to the extent of the domestic assistance required by Ms Girgis as a result of the injuries caused by the accident, Dr Menogue certified on 21 October 2010 that the injuries to Ms Girgis' cervical and lumbar spine did cause a need for domestic assistance of two hours a week from the date of the accident to six months after the date of his assessment. He certified that the (much larger) allowance claimed by Ms Girgis was not reasonable and necessary.

4 By virtue of s 61(2) of the Act, 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".

5 The medical assessment process being complete, an assessment conference took place before Assessor Broomfield on 21 December 2010. On 23 December 2010 Assessor Broomfield issued a certificate, including reasons, under s 94 of the Act. As he noted, Allianz contended that Ms Girgis had merely suffered a temporary aggravation of a previous injury to her right shoulder and neck, Dr Dowda having misread an ambulance report in certifying otherwise, whilst it was argued for Ms Girgis that, although she had a prior history of neck, right shoulder and low back complaints, those conditions were essentially asymptomatic until permanently and severely aggravated in the accident and suffered an additional degree of disability by the aggravation of a pre-existing psychiatric condition. The Assessor posed the issue to be determined as: what physical and psychiatric injuries were sustained in the accident and what disabilities has and does the Claimant suffer". He concluded that the motor accident had caused injuries to the neck, right shoulder, low back and left shoulder of Ms Girgis and had also aggravated a pre-existing psychological condition warranting the diagnosis of Chronic Adjustment Disorder with depressed mood. These findings, of course, provided the basis for his assessment as to the past and future treatment expenses and economic loss. For understandable reasons he did not attempt to separately quantify the contribution that each injury made to Ms Girgis' incapacity. (It is, perhaps. worth noting that, even if Assessor Broomfield had gone no further than Dr Dowda's identification of the injuries caused by the accident, it would be very doubtful, in light of Ms Girgis' psychiatric condition, that the assessment of loss would have been significantly less.)

6 Assessor Broomfield awarded a buffer for future economic loss of $50,000.

Issues

7 It submitted by Mr Rewell SC for Allianz that (contrary to its approach at the assessment) Assessor Broomfield was bound by the findings of Dr Dowda as to which injuries were and were not caused by the accident and erred in determining this question for himself. It also submits (again, contrary to its earlier approach) that the Assessor was bound by Dr Menogue's conclusions as to what was an appropriate level of domestic assistance. It is also submitted that the reasons for determining the amount of the buffer did not satisfy the requirements of s 126 of the Act.

8 The four questions posed by this case are: first, whether Dr Dowda's certificate conclusively identifies the only (physical) injuries caused by the accident or whether, on the other hand, Assessor Broomfield was entitled to come to his own view as to what injuries were caused by the accident for the purpose of determining the extent of her disabilities giving rise to economic loss; second, whether Assessor Broomfield was entitled to come to his own view about the extent of domestic assistance required in the past and for the future or was bound by the assessment of Dr Menogue; third, whether in respect of the award of $50,000 for future economic loss, Assessor Broomfield's reasons were sufficient; and, fourth (if Allianz established the legal errors for which it contended), whether relief should be refused relief in light of the manner in which it litigated the case before Assessor Broomfield.

The legal framework

9 Chapter 3 of the Act provides for medical assessments to be made in respect of motor accident injuries. The provisions presently relevant are -

s58 Application

(1) 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,

(c) (Repealed)

(d) whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.

(e) (Repealed)

(2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.

s61 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.

(3) (Repealed)

(4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party.

(5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings.

(6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part.

(7) Except as provided by subsection (6), a court may not substitute its own determination as to any medical assessment matter.

(8) This section:

(a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and

(b) does not require a court to refer a matter again for assessment under this Part if the matter is not a medical assessment matter.

(9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.

(10) The following procedure is to apply if the assessment of more than one medical assessor is required to assess whether the degree of permanent impairment of the injured person is greater than 10% (not being an assessment of the degree of permanent impairment resulting from psychiatric or psychological injury):

(a) each medical assessor is to give a certificate as to the degree of permanent impairment of the injured person resulting from the particular injury or injuries with which the medical assessor's assessment is concerned,

(b) based on the matters certified in each such certificate a medical assessor nominated by the Authority for the purpose is to make an assessment of the total degree of permanent impairment resulting from all the injuries with which those certificates are concerned and is to give a certificate (a combined certificate ) as to that total degree of permanent impairment,

(c) the combined certificate is conclusive evidence as to whether the degree of permanent impairment of the injured person is greater than 10% and this section applies to the combined certificate accordingly.

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.

(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.

126 Future economic loss-claimant's prospects and adjustments

(cf s 70A MAA)

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.

10 "Treatment" is defined in s 42 of the Act as including "the provision of attendant care services". "[A]ttendant care services" is defined in s 3 of the Act to include "domestic services".

Submissions

11 Allianz submitted that the effect of s 61(2) of the Act was that the certification by Dr Dowda was conclusive for all purposes as to whether and which injuries were and were not caused by the accident, as was that by Dr Menogue as to the extent of domestic assistance to which those injuries gave rise.

12 (I deal with the discretionary question separately below.)

13 So far as the buffer was concerned, although Assessor Broomfield referred to the likelihood that Ms Girgis would in the future undertake a combination of part-time and full-time work with a chance of some periods of unemployment and was able with further training to attain other qualifications with good prospects of obtaining significant part-time work and thus enjoy improved psychiatric health, this did not provide an adequate explanation for the amount awarded for future economic loss. It was at least necessary to identify what form of employment Ms Girgis might have obtained had the accident not occurred, some assessment of potential earnings, the ratio of part-time to full-time work and the extent of the possible periods of unemployment and the way in which her impairments impacted upon the kind and extent of employment she could undertake. It was submitted that the reasons given did not satisfy the requirements of s 94(5) and, in particular, the requirement of s 126(3) that the assumptions on which an award of future economic loss is made and the relevant percentage by which damages are adjusted must be stated.

14 It is submitted by Mr Romaniuk on behalf of Ms Girgis that a certificate of a Medical Assessor is conclusive only as to whether the degree of permanent impairment of the injured person is greater than 10%. It is submitted that, since the discussion in the guidelines relating to causation, based upon the assertion that a "determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied" in any assessment of the degree of permanent impairment, explains causation in a constrained and partial way "which does not reflect the subtleties and nuisance [sic, perhaps an understandable mistake but I think counsel meant nuance] of the common law of causation or address the statutory test contained in s 5D of the Civil Liability Act 2002 ", and it is the latter two characterisations of the test for causation which apply to the assessment of economic loss, the finding of the Medical Assessor should be confined to the assessment of the degree of permanent impairment. It is argued that the "special" (my word) test of causation in the Guidelines bespeaks an intention to confine the Medical Assessor's determination of the degree of permanent impairment to the entitlement to damages for non-economic loss. At all events, s 61(2) in giving conclusiveness "as to the matters certified", should be interpreted as meaning only that the finding of the degree of permanent impairment is conclusive evidence as to that assessment and no evidence can be adduced as to whether it is greater or lesser than 10%.

15 So far as the adequacy of the reasons are concerned counsel for Ms Girgis submit that assessors should act with as little formality as the circumstances permit according to equity, good conscience and the substantial merits of the matter without regard to technicalities and legal form, taking into account amongst other things the minimisation of formality and technicality and the desirability of early resolution. Counsel pointed to the accepted view that a buffer is appropriate where the impact of an injury upon earning capacity is difficult to determine and that the Assessor's description of the consideration that led him, first to provide a buffer award and, secondly allow $50,000 was adequate and that court should be careful not to turn a view of the adequacy of the Assessor's reasons into a reconsideration of the merits of the decision.

Discussion

16 By virtue of s 58(1), Part 3.4 applies to a "disagreement between a claimant and an insurer about any of the following matters..." The degree of permanent impairment resulting from the injury caused by the motor accident is one of those matters and is defined as a "medical dispute" by s 57. Section 60 requires such a dispute to be referred to a medical assessor. Section 61 requires the Medical Assessor to whom the "medical dispute is referred... to give a certificate as to the matters referred for assessment". Since it is obvious that a dispute could well arise as to whether any particular nominated injury was present at all or, if present, whether it was greater than 10% or not and whether it is caused by the motor accident in question, decisions as to these matters must necessarily be capable of being made by the Assessor. It is of course, more than merely theoretically possible that the real dispute as to whether injuries were caused by a motor accident is whether an accident occurred at all although there is no dispute that the claimant has been injured and suffered a permanent impairment of some kind. It would indeed be difficult to describe a dispute of this kind as a "medical dispute" in ordinary language. Nevertheless, Allianz contends that such a disagreement is a medical assessment matter within the meaning of s 58 and, hence, the decision that there was or was not a motor accident (where there is a finding that the claimant was injured) is conclusive evidence to that effect within the meaning of s 61(2). Even if the Medical Assessor determined for patently mistaken reasons that a motor accident occurred (to which the injuries were attributable), the certificate would nevertheless be binding in any court proceedings unless a denial of procedural fairness were established: s 61(4). A mere mistake of fact, however patent, would not be a denial of procedural fairness. Under s 63, however, the party aggrieved by the decision in this example could apply for a review panel on the ground that "the assessment was incorrect in a material respect": s 63(2). It seems obvious that a mistaken finding as to whether or not any motor vehicle accident occurred would satisfy this requirement. Under s 63(3A) the review is a "new assessment of all the matters with which the medical assessment is concerned". One would naturally expect that a patent mistake would be corrected. Of course, not every mistake is patent and their existence is not made any less likely where the relevant material is complex. It is, perhaps, worth noting that, in the present case, the reasons that led Dr Dowda to certify as he did in relation to the issue of causation were indeed essentially medical.

17 In approaching the interpretation of s 58 and s 61(2), it is instructive to consider the changes in language effected by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007.

18 The former s 58(1) applied the medical assessment scheme prescribed in Part 3.4 of the Act to disagreements about three specified areas of concern: the first was the treatment that had or was to be provided to the injured person; the second was the degree of permanent impairment; and the third was the degree of impairment of the earning capacity of the injured person. In the first case, whether the treatment related "to the injury caused by the accident" was identified as a distinct question. In the second case, no separate issue of causation was specified; rather, the matter subject to disagreement was described as a composite, namely the degree-of-permanent-impairment-of-the-injured-person-as-a-result-of-the-injury-caused-by-the-motor-accident. In the third case, the same approach was taken, namely describing the matter as a composite: the-degree-of-impairment-of-the-earning-capacity-of-the-injured-person-caused-by-the-motor-accident. Section 61(1) provided for the giving of "a certificate as to the matters referred for assessment", of course, being those specified in s 58(1). Having regard to the way in which the matters are specified, this would necessarily involve making a decision as to causation. The effect of the certificate is covered by s 61(2), which gives the character of conclusiveness only to decisions as to specified matters, a list that is distinctly narrower than the list of matters in s 58(1) and does not mention causation. These are -

• "as to ... whether the degree of permanent impairment of the injured person is greater than 10%" (para 2(a))
• "as to ... whether any treatment already provided ... was reasonable and necessary in the circumstances" (in para 2(b))
• "as to ... whether any treatment to be provided ... is reasonable and necessary in the circumstances" (para 2(b1))
• "as to whether an injury has stabilised" (para 2(c)).

19 Since, in terms, conclusiveness is attributed only to those issues listed in s 61(2), it is difficult to see why a decision as to causation, not mentioned in s 61(2), should be regarded as being conclusive. That it is not conclusive is reinforced by the terms of s 61(3), which gives to other certified matters the quality of evidence that is expressly "not conclusive". If the relevant "matters certified" in s 61(2) were coterminous with those "referred for assessment" as listed in s 58(1) (and thus include the causation question) there would be no need at all to specify the matters listed s 61(2). The omission in this latter provision of any reference to causation, which is explicitly mentioned in s 58(1), does not seem to me to be accidental. Rather, it seems to me inescapable that the issues listed in s 61(2) are identified precisely for the purpose of giving a conclusive character to findings in respect of them as distinct from other incidental (though perhaps essential) findings, to which subs 61(3) applies. In short, both s 58(1) and s 62(2) list matters requiring decision, but the issues listed in the earlier provision are wider than those listed in the later. Thus, in my view and uninstructed by authority, I would hold that the purpose of the list in the former s 61(2) was to narrow the scope of conclusiveness to the matters specified in the paragraphs and, in its previous form, the Act did not give conclusiveness to findings of causation.

20 This issue was considered in Pham v Shui [2006] NSWCA 373 where the Court of Appeal concluded that a finding by the trial judge to the effect that the disability or impairment found by the Medical Assessor and subsequently by the Review Panel was the only compensable matter under the Act, including economic loss and, accordingly, that evidence which contradicted the matters dealt with in the certificates and accompanying reasons was therefore inadmissible for all purposes, including for the purpose of establishing economic loss, was wrong. The Panel had determined that a number of claimed injuries were not caused by the accident and that, in respect of the injuries caused by the accident, permanent impairment was no more than 10%. The claimant submitted that the reports and oral evidence of the excluded injuries was relevant to this issue of economic loss and, although it was conceded they were not available to contradict the certificate in relation to the degree of permanent impairment and, thus, that the claimant was not entitled to non-economic loss, they should not have been treated as conclusionary against any compensation for the economic loss, here consisting of domestic care.

21 Santow JA, (with whom Bryson JA and Brereton J agreed) said -

[90] ... [The] certificate was required for the purpose of determining whether, within s131 MACA, damages could be awarded for non-economic loss. The certificate was conclusive that the degree of permanent impairment of the injured person was not greater than 10%. I consider that s61(2)(a) can have no other meaning than that the certificate's conclusivity applies only to the bare conclusion that the degree of permanent impairment for that purpose was (or was not) greater than 10%; here that it was not greater than 10%. As Mason P observed in Brown v Lewis [2006] NSWCA 87 at [23] 'Section 61(2)(a) only deals with the threshold issue whether the degree of permanent impairment is greater than 10%", having earlier emphasised that "extreme caution is required before anything relevant or useful could be extrapolated from a certificate under s61(2) for the purpose of calculating economic loss ' [emphasis added].

[91] I understand the latter reference to be to the degree to which such a certificate can constitute evidence which is not conclusive bearing upon economic loss. I do not take that reference to mean that the certificate has any extended conclusivity beyond the matters specifically referred to in s61(2).

His Honour pointed out ( ibid at [92]), quoting Mason P, that the calculation of permanent impairment does not involve consideration of the economic consequences of the injury, indeed, matters such as derivative psychiatric conditions that may be of considerable importance in the assessment of economic loss are excluded, and went on to say -

[93] That very methodology of s133 therefore points to the inappositeness of extrapolating from the matters certified under s61(2) for purposes not related to the s131 non-economic loss threshold; in particular for purposes of determining economic loss to which Pt 5.2 rather Pt 5.3 applies. The structure of MACA reinforces that conclusion. The regime in Pt 5.2 is clearly a separate and distinct regime concerned with economic loss. It operates as a parallel universe to Pt 5.3 dealing with damages for non-economic loss.

[94] What I have said earlier concerning s61(2) applies a fortiori to what s61(3) refers to as "any other matter". The latter is expressed to be "evidence" but "not conclusive evidence" as to the matters certified in any court proceedings. While it is true that s61(9) requires the certificate to set out the reasons for any finding by the medical assessor or assessors, this is only "as to any matter certified in the certificate in respect of which the certificate is conclusive evidence".

[95] Relating this to s58, there is no doubt that its provisions have a wider ambit than the strict subject matter of conclusivity set out in s61(2). In particular s51(1)(d) renders Pt 3.4 applicable to a disagreement between a claimant and an insurer about "the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident" [emphasis added].

[96] Mr Stitt, QC for the opponent placed great emphasis on the words "caused by". He contended that this language, with other textual indications, meant that the certificate was conclusive as to what he called the medical aetiology, meaning the medical causation of the relevant "injury". So much can be accepted. But what does not follow is that the certificate, incorporating as it does reasons which may range from surmise to certitude, are thereby rendered conclusive, outside of the strict limits of s61(2). In particular there is no conclusivity extending to a matter outside s61(2) such as that in s58(1)(d) ('the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident'). Rather, matters falling outside s61(2) are simply capable of constituting evidence, but not conclusive evidence, as to the non-s61(2) matters insofar as they are "certified" in terms of s61(3).

Accordingly, his Honour concluded -

[98] The review certificate ...insofar as certifying to the matters stated in s61(2) is conclusive, but only for the purposes of non-economic loss. It is not conclusive for the purposes of economic loss. The reasons which are incorporated in the certificate may be evidence as to the matters certified, but extreme caution is required in admitting such evidence in relation to damages for economic loss governed by Pt 5.2, having regard to the different methodology of Pt 5.3. [Emphasis added.]

[99] It necessarily follows that the claimant's reports and certain oral evidence [as to the injury rejected by the Review Panel] were wrongly excluded.

22 Santow JA's acceptance of the submission that the review certificate was conclusive in respect of the "medical causation of the relevant injury" concerned only the aetiology of the injury giving rise to the permanent impairment and applied only in respect of non-economic loss. The term "medical causation" deals with the link between the injury and the permanent impairment, not the link between the accident and the injury. That this is so is clear from the italicised passage above and his Honour's determination -

[101] The conclusions of the trial judge as to non-economic loss [sic, I think this is meant to be "economic loss - there was no claim for non-economic loss] were in my opinion vitiated by the incorrect approach to the conclusivity of the review certificate with the consequent exclusion of relevant reports and oral evidence sought to be advanced by the claimant.

23 It seems to me that I am bound by the decision in Pham , at least so far as the earlier scheme was concerned. For reasons which will appear, the decision is also significant for the purpose of considering the effect of the amendments on the extent of conclusiveness of a Medical Assessor's certificate under s 61 having regard to the Court's view of the separate areas of operation of Parts 5.2 and 5.3 of the Act.

24 The relationship between the questions posed by s 58(1) and the evidentiary effect of the answers stipulated by s 62(1) was significantly changed by the amendments. The list of the 58(1) questions still contained the element of causation and the reference as to treatment was not changed; however, the disagreement about the "degree of permanent impairment" etc was changed to "whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%". The question as to the degree of impairment of earning capacity (as to which no aspect was given any conclusiveness by the earlier s 61(2)) was omitted altogether, thus emphasising what might be called the disconnect between Parts 5.2 and 5.3, mentioned in Pham . The remaining questions were defined as "medical assessment matters". Section 61(2) was then amended to remove the previous more limited list and simply provide that a certificate "as to a medical assessment matter is conclusive evidence as to the matters certified ..." Section 62(3) was therefore repealed, as it evidently had no further work to do, there being no "leftover" matters remaining to be certified.

25 What then of the decision about causation when answering the s 58(1) questions? As with the earlier form of s 58(1), the matter identified in that subsection for the purpose of medical assessment remained a composite, namely whether the-degree-of-permanent-impairment-of the injured-person-as-a-result-of the injury-caused-by-the-motor-accident-is-greater-than-10%. Although causation is an essential element of this matter, since otherwise the impairment in question cannot be identified and measured, it is not expressed to be an independent issue but, rather, is rolled up in the issue of the extent of permanent impairment.

26 Section 61(2) concerns the effect of certificates "as to a medical assessment matter", thus, here, as to the extent of permanent-impairment-as-a-result-of-the-injury-caused-by-the-motor-accident. As the matter in s 58(1)(d) is drafted, the question of causation remains to be decided and, by virtue of s 61(2), this decision, I think, is conclusive, as an element of the assessment. It is thus not open to attack the assessment of the extent of permanent impairment on the basis that the injury giving rise to the assessment was not caused by the accident. Does it, however, have any significance as to other issues, such as earning capacity? It is worth noting, I think, that it would have been easy to draft the matter in such a way as to separate out the question of causation and then provide a cascade of succeeding issues depending on the answer. That this was not done suggests strongly that it was indeed not the purpose of the provision to make the decision as to causation as an independent element, conclusive in respect of all issues that depend upon causation which might arise in a claim, and thus as to the injuries to be considered for the purpose of awarding compensation for economic loss.

27 Apart from this argument, however, it seems to me that the question is answered in the negative by Pham . It will be recalled that there the Court pointed out that the question of the degree of permanent impairment is posed by virtue of s 131 of the Act, s 132 requiring an assessment under Part 3.4 of the degree of permanent impairment where this is in dispute and providing, in s 133, for the method of assessment. In Pham , the Court of Appeal held that the findings of conclusiveness relate only to issues arising in the context of an assessment of non-economic loss. The issue of whether the degree of permanent impairment exceeds 10% is significant only in respect of the question whether or not a claim for non-economic loss can be made. It has no other function. In particular, it cannot, for inherent reasons, play a useful role in assessing the extent of incapacity or disability for determining economic loss. It is possible, even inevitable, in arriving at the conclusion as to whether the degree of permanent impairment exceeds 10%, the Medical Assessor will make some incidental findings in addition to causation. These findings also are not "medical assessment matters". Nor are they certified. (Whether a finding as to the injuries caused by the accident is binding on the assessment of non-economic loss where the degree of permanent impairment is assessed as greater than 10% is a matter that I do not need to determine, though it seems to me that it is so far as it goes.)

28 On the face of it, it is a strange drafting device to extend by implication the effect of a decision as to causation made as part of a rolled up medical assessment, which has only the limited (if brutal) purpose of dividing cases between those where non-economic loss can be claimed and those where it cannot, to all questions of causation of injuries arising in the assessment of damages. Thus, the issue of earning capacity (if any) is one of economic loss and hence is inevitably to be considered whether or not the degree of permanent impairment is greater than 10% but, though it is not a medical assessment matter, if Allianz's argument be correct, despite this exclusion, causation decided as an element of whether the injured person has suffered permanent impairment of more than 10% would be conclusive for the purpose of deciding what injuries can be taken into account for the purpose of determining loss of earning capacity or other economic loss. In the context of removing the role of the Medical Assessor in respect of the degree of impairment of the earning capacity of the injured person as a result of the injury caused by the accident (the former s 58(1)(e)), retaining reference to causation only in the more limited context of treatment and assessment of the degree of permanent impairment is to my mind a telling argument against Allianz's contention. This is especially so if (as I have already mentioned) in their earlier form, s 58(1) and s 61 did not give causation findings other than very limited conclusive effect. Thus Allianz's argument entails accepting that the amendments made a fundamental change in respect of earning capacity but implied that causation findings as to other matters also applied to decisions about earning capacity yet to be made by the Claims Assessor or a court. I cannot imagine any drafter adopting such a daft scheme.

29 The reference in s 61(2) to "the matters certified" in plural might suggest that the constituent parts of a "medical assessment matter" have independent conclusive effect. However, in my opinion, the repetition of the word "matter" is intended to only indicate one or more of the enumerated subjects in s 58(1).

30 The conclusion that the finding of causation does not have an independent role to play in the assessment of economic loss is fortified by the terms of s 61(10). The opening clause identifies a procedure to apply where more than one assessor is required to assess the degree of permanent impairment. A combined certificate is to be issued. By para 61(10)(c) such a certificate is "conclusive evidence as to whether the degree of permanent impairment of the injured person is greater than 10% and this section applies to the combined certificate accordingly". It may readily be accepted that the only impairment that matters is that arising from an injury caused by the accident. However, given the avoidance of all mention of causation in the subsection, it is difficult to read into para 61(10)(c) a legislative intention to make a finding as to causation conclusive for any other purpose than identifying the relevant permanent impairment.

31 In my opinion, although the Medical Assessor is bound to make a finding that involves identifying injuries caused by the accident, that conclusion is only part of the composite medical assessment matter and does not have any independent status. Causation of itself is not "a medical assessment matter" within s 58(1) or s 61(2) and is not a "matter referred for assessment" within the meaning of s 61(1); such a matter is described in and confined to the questions posed by that subsection and the matter that is given conclusive effect is the rolled up finding as to whether the extent of permanent impairment resulting from the injury caused by the accident is greater than 10%. The parties are unable to contend for a different answer in respect of the relevant degree of permanent impairment being or not greater than 10%.

32 Even if the conclusion of the Medical Assessor that the injury giving rise to the permanent impairment is caused by the accident is binding for all purposes, it does not follow that a conclusion of the Medical Assessor that an injury was not caused by the accident - and hence does not give rise to a relevant permanent impairment - has conclusive effect. The Medical Assessor cannot simply be asked whether a particular injury was or was not caused by the accident; the task is to answer the questions listed in s 58(1). In each case, the matter requiring decision concerns injuries that were caused. It might or might not follow that other injuries were not so caused. In coming to that answer, no doubt a range of possible injuries and their significance might need to be assessed and some rejected as irrelevant. The distinction between reasons on the one hand and the "matter certified" on the other is recognized in s 61(9). Reasons are not given conclusive effect. The mere fact that, in the course of identifying the injuries caused by the accident requiring assessment, other claimed injuries did not call for assessment because the Medical Assessor considered that they were not caused by the accident does not, as it seems to me, mean that this dismissal is a matter given conclusive effect by s 61(2); it is merely part of the reasons for identifying the injuries that do give rise to the degree of permanent impairment being assessed. It is not a matter that can be certified and such a form ought not to be adopted. For his or her part, the Claims Assessor is not concerned with any attempt to measure permanent impairment but only with the assessment of economic loss, although he or she might need to consider whether any disability or incapacity is permanent for the purpose of so doing and is not bound to refuse to consider the effect of injuries that he or she considers were caused by the accident because the Medical Assessor found otherwise.

33 At all events, since the assessment as to permanent impairment has consequences only in respect of whether compensation can encompass non-economic loss, a finding that an injury was not caused by the accident is not conclusive for the purpose of assessing economic loss. This is precisely what Pham decides and is not affected by the amendments, since it rests upon what follows from the relationship between Parts 3.4 and 5.3 on the one hand and the "parallel universe" of Part 5.2 as a "separate and distinct regime" on the other.

34 There is no other basis for concluding that the finding of causation for the purpose of answering the question posed by s 58(1)(e) is material to any other issue. Whether earning capacity and, if so, to what extent, is adversely affected by an injury caused by the accident - a matter now omitted from the operation of Part 3.4 by the amendment of s 58(1) - cannot be governed by any Medical Assessment certificate and the Claims Assessor (or a court, for that matter) is bound to come to an independent conclusion about the relevant injuries, including as to their causation.

35 A contrary argument can be mounted on the basis that the purpose of the Act is "to streamline the resolution of disputes in regard to the injuries sustained by victims of motor vehicle accidents and to change the adversarial approach taken in regard to third party cases in the past": per Williams DCJ, Azar v Kathirgamalingen (unreported, District Court of NSW 21 April 2011). It might be seen as inconsistent with this purpose to permit a Claims Assessor or court to reconsider the question of causation (necessarily where there was a negative decision made by the Medical Assessor) merely because the damages question would be confined to economic loss. On the other hand, the rest of the scheme - early payment for treatment and lost earnings, payments for medical and related expenses, duties as to claimants and insurers, settlement conferences, and assessments by Claims Assessors etc - would still apply. Thus, one is left with the question as to how far the streamlining was intended to go. It is important also to note that medical disputes, for example, as to incapacity, are not resolved by medical assessment under Part 3.4 and, if impairment arising from an injury caused by the accident is greater than 10%, full litigation of the medical issues is still possible, though within the legislative structure. At the same time, it seems significant that, in effect, no claim (where the matter is disputed) as to treatment, including domestic assistance, can be mounted without a certificate as to its appropriateness and causal link to the accident.

36 The need to resort to the notion of legislative purpose is itself an admission that the language is uncertain and does not, in its own terms, express that purpose. It is not persuasive in the present context. And there is a countervailing notion. As a matter of more general significance, the removal of common law rights to litigate substantial claims and substitute an administrative process for that operated by independent courts is a very serious matter and, it is well established, should not be held to have occurred unless by the clearest language. Of course, the Claims Assessor is not a court, but at least each party has an opportunity to present material and make submissions. The medical assessment is a fundamentally different process: it is, in substance, a decision made by an investigator. If it had been intended by the Legislature to provide that a Medical Assessor's certificate is conclusive evidence of whether an injury was or was not caused by an accident and that such a certificate was binding for all purposes, it would have been easy to say so and it should have been said. It was not. I do not think this was accidental.

37 In the result, I am not prepared - on the basis of a philosophical view about the purpose of the legislation - to read into s 58(1) and s 61(2) implications as to the conclusiveness of the matters certified by the Medical Assessor that are not strictly essential to the effectiveness of those particular provisions. In particular, I do not accept that a finding on causation would bind the Claims Assessor (or, for that matter, a court) in respect of a determination of earning capacity. Moreover, I am bound by authority to reject this contention.

38 Johnson J in Ackling v QBE Insurance (Aust) Limited [2009] NSWSC 881; (2009) 75 NSWLR 482 concluded, in respect of the Act in its previous form, that whether an injury is caused by the relevant motor accident was within the jurisdiction of the assessor to determine": ibid at [83]. As appears from the above discussion, I would respectfully agree with this conclusion.

39 This matter was discussed in obiter dicta by Giles JA (Tobias JA agreeing) and Handley AJA in Motor Accidents Authority (NSW) v Mills & Anor [2010] NSWCA 82; (2010) 55 MVR 243 which was concerned with questions arising under the earlier provisions. This issue is not directly raised in the present case because I am concerned with the amended provisions. It has only been necessary for me to deal with their earlier form because, as it seems to me, the comparison is instructive. For the reasons that I have given, I would respectfully disagree with their Honours' view that, under the former s 61(2), a finding as to causation of an injury giving rise to permanent impairment of a greater or lesser degree is given conclusive effect, at least in respect of the assessment of economic loss. I note that the judgment of Johnson J in Ackling at [80] is said by Giles JA (at [64]) to have expressed the view that "the conclusiveness of the medical assessment, as certified, included the medical assessor's finding that the permanent impairment was or was not as a result of the injury caused by the motor accident". However, that paragraph actually states that "[the] certificate issued by a Medical Assessor is conclusive evidence as to whether the degree of permanent impairment of the injured person as a result of injury caused by the motor accident is greater than 10% ... [and] I reject the plaintiff's submission to the contrary". I can find no passage in Johnson J's judgment that reflects the point made by Giles JA.

40 Having noted that "the only function [of the certificate assessing the degree of permanent impairment] was to open, or to keep closed, the gateway to an award of damages for non-economic loss" an interpretation, Giles JA suggested, was supported by the amendment of "s 58(1)(d) specifically to refer to the 10% threshold, rather than degree of permanent impairment in general", his Honour went on to say -

[59] The statement of the threshold in s131 contained the composite phrase, "the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident", with the two elements of degree of permanent impairment and of causation of the degree of permanent impairment. The same phrase with its two elements was found in ss131, 133 (1) and 58(1)(d)."

His Honour considered that other provisions in Part 3.4 of the Act (in its earlier form) which used the shorter phrase "the degree of permanent impairment" without express reference to the element of causation must be read, however, as implicitly referring to this matter. His Honour pointed out that, "a medical assessment of degree of permanent impairment without regard to causation from the motor accident had no statutory basis or function" (ibid at [61]).

41 It is apparent that Giles JA was considering only the conclusive effect of a certificate as to whether the degree of permanent impairment is greater than 10%: see ibid [62] and [63], where his Honour stated that the "conclusiveness of the medical assessment, as certified, included the medical assessors' finding that the permanent impairment was or was not as a result of the injury caused by the motor accident". Accordingly, as conceded by Counsel for Allianz, Giles JA did not deal with the question whether a certificate as to the degree of permanent impairment is conclusive evidence of causation or lack of causation for all purposes, or only for the purpose of determining whether a claimant is or is not entitled to damages for non-economic loss.

42 For completeness, I should refer briefly to the argument of counsel for Ms Girgis that points to the different language in which the causation provisions in the guidelines are couched from both the common law and s 5D of the Civil Liability Act . The question of causation is not one that is usefully susceptible of nice analysis. It seems to me that the guidance provided in the guidelines, if conscientiously followed by a medical assessor, and applied with common sense to the facts giving rise to controversy or potential controversy as to causation will not lead to error (cf Ackling at [86]). In my view, the argument has no merit.

Conclusion as to causation

43 It follows that Assessor Broomfield did not err in regarding himself as free to conclude on the evidence presented to him that the injuries to the right and left shoulders were caused by the subject motor accident for the purpose of assessing Ms Girgis' economic loss.

Domestic assistance

44 By 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. 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 and that the claim for domestic assistance was reasonable and necessary. Accordingly, this dispute was referred to Dr Menogue for assessment. On 21 October 2010, as has been mentioned, he issued a certificate under s 61 of the Act certifying that the injuries to the cervical and lumbar spines 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. He 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. On the other hand, Dr Menogue 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. He considered that this domestic assistance was "reasonable and necessary in relation to the injuries sustained in the subject accident". Dr Menogue said 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 with [ sic , I think he meant "in"] the subject accident".

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 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 paragraphs (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 this case, there is another complicating feature capable of reflecting on the assessment of need for domestic services, namely the significant psychological injury to which I referred and which had the effect, it is clear from Assessor Broomfield's reasons, of adversely affecting Ms Girgis' functioning and thus affecting the domestic assistance which was and will be appropriate. Assessor Broomfield did not deal with this aspect distinctly, simply referring in a general way to Ms Girgis' disabilities. In my view, as Assessor Broomfield 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.

Adequacy of reasons

49 This question was the subject of a helpful discussion by Hoeben J in Allianz Australia Insurance Limited v Sprod & Ors [2011] NSWSC 1157. In the course of which his Honour comprehensively discussed the relevant authorities. His Honour considered, with respect, rightly, that the reasons of a Claims Assessor should not be tested in the same way as the reasons of a judge (ibid at [20]), expressing the opinion -

"[24]... the appropriate test when examining the reasons of an assessor is that of clarity. It has to be clear how the assessor reached his or her decision and what process of reasoning was involved. It is not necessary, however, that each step in that reasoning process by enunciated if it is otherwise clear how the assessor arrived at his or her conclusion.

[26] To insist upon a series of specific and detailed findings on the part of a claims assessor so that if one of those findings is not articulated, there has been default in apply the Act and consequently error of law, is quite antithetical to the philosophy behind the Act and the objects of the Act and guidelines. It represents a triumph of form over substance, which the Act and guidelines expressly seek to avoid..."

50 In this case, Assessor Broomfield pointed to Ms Girgis' "strong work history albeit part-time and [she] was constantly accessing courses to improve her employability and the likely level of remuneration". He referred to the physical and psychiatric effects on Ms Girgis' level of fitness for work, her employment with a pharmacy and the reasons for resigning from it, her applications for employment and attitude to the work she wished to undertake, her inability for a period to obtain work and the period for which in the past she had been unemployed. He expressed his confidence that, had the accident not occurred, "she would have secured some part-time employment that may have been, as with the pharmacy of short term duration or may have indeed continued into the future... [since she] had a financial imperative to provide for her son and her relative impecuniosity... appears to have been a significant motivator for her to actively pursue employment". He considered that Ms Girgis retained a degree of residual earning capacity and, as her son grew older, "would have been pursuing with vigour full-time employment to cater for the increasing expenses associated with her son's schooling and extra-curricular activities". Assessor Broomfield considered that the only appropriate way to deal with past economic loss was to provide a buffer award and specified the material considerations which it needed to reflect. It is not submitted that these reasons were inadequate. Assessor Broomfield noted Ms Girgis' past and future earnings. This was not in substantial dispute as to the weekly rate, the argument concerning the extent to which she would have been likely to undertake full-time work had the accident not occurred and the extent of loss of earning capacity. So far as future economic loss is concerned, not surprisingly Assessor Broomfield looked at the past and discussed the likely future circumstances of Ms Girgis, to which he had already made reference continuing, as it seems to me, the line of reasoning upon which he had earlier relied and looking into the future, his finding that "the most likely future circumstances of the claimant would have been a combination of part-time and full-time work with initially the chances of some periods of some unemployment" and, taking into account his earlier findings about her seeking to attain qualifications in interpreting and translation work, he awarded a buffer for the future of $50,000. This strikes me as modest sum indeed but, at all events, in my view the reasons for awarding it are adequately expressed.

Conclusion

51 It is not necessary for me to consider the question whether, having regard to the reversal of approach of Allianz, relief should be refused even if it had succeeded in demonstrating error.

52 The summons is dismissed with costs.

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Decision last updated: 30 November 2011