Allianz Australia Insurance Limited ACN 000 122 850 v Moo Ok Park

[2015] NSWSC 122

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Allianz Australia Insurance Limited ACN 000 122 850 v Moo Ok Park [2015] NSWSC 122

Hearing dates:

3 February 2015

Date of orders:

27 February 2015

Decision date:

27 February 2015

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

The Court declares that:

(1) The assessment certificate and the determination of CARS Assessor Thomas Goudkamp, the second defendant is invalid.

The Court makes an order

(2) In the nature of certiorari removing into the Court the decision of the CARS Assessor in matter number 2013/12/2949/BR made on 25 July 2014 and quashing that decision.

The Court further orders that:

(3) Matter number 2013/12/2949/BR is remitted to the Motor Accidents Authority of New South Wales to be determined according to law.

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

Catchwords:

ADMINISTRATIVE LAW – judicial review – Motor Accidents Compensation Act – decision of a claims assessor – past economic loss – whether the claims assessor provided adequate reasons

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:

Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244
Allianz Australia Insurance Ltd v Kerr (2012) 60 MVR 194; (2012) 83 NSWLR 302
Allianz Australia Insurance Ltd v Sprod (2012) 81 NSWLR 626; [2012] NSWCA 281
Allianz Australia Insurance Ltd v Ward (2010) 57 MVR 327; [2010] NSWSC 720
Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Collector of Customs v Pozzolanic (1993) 43 FCR 280
Insurance Australia Limited Ltd trading as NRMA Insurance v Hutton-Potts (2010) 57 MVR 194; [2010] NSWSC 1446
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6

Category:

Principal judgment

Parties:

Allianz Australia Insurance Limited (Plaintiff)
Moo Ok Park (First Defendant)
Thomas Goudkamp in his capacity as a Claims Assessor appointed by the Motor Accidents Authority of New South Wales (Second Defendant)
Motor Accidents Authority of New South Wales (Third Defendant)

Representation:

Counsel:
Robinson SC/A Poljak (Plaintiff)
Romaniuk SC/DL Del Monte (First Defendant)

Solicitors:
McInnes Wilson Lawyers (Plaintiff)
WD Hunt & Associates (First Defendant)

File Number(s):

2014/285429

Publication restriction:

Nil

JUDGMENT

1. HER HONOUR: This is an application for judicial review of a Claims Assessor in the Workers Compensation Commission. By summons filed 28 September 2014, Allianz Australia Insurance Ltd seeks an order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the decision of the second defendant, made pursuant to s 94 of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”); and an order (in the nature of mandamus) remitting the matter to the third defendant for determination of the application according to law to be heard by a different claims assessor.

2. The plaintiff is Allianz Australia Insurance Ltd (“Allianz”). The first defendant is Moo Ok Park (“Ms Park”). The second defendant is Thomas Goudkamp in his capacity as a Claims Assessor (“the CARS Assessor”) appointed by the Motor Accidents Authority of New South Wales. The third defendant is the Motor Accidents Authority of New South Wales. The second and third defendants have filed submitting appearances.

3. Allianz relied on three affidavits of Elizabeth Ann Medland affirmed 13 October 2014, 24 November 2014 and 8 January 2015. Ms Park relied only on a few documents contained in the affidavit of her solicitor Wendy Deborah Hunt affirmed 23 December 2014.

Factual Background

4. On 20 October 2005, Ms Park was injured in a motor vehicle accident. At the time of the accident she was a self-employed contract cleaner. Allianz was the compulsory third party insurer for the driver at fault. Liability was not in issue.

5. On 25 July 2014, the AMS issued a certificate awarding Ms Park the sum of $496,457.45, which included the amount of $454,656.00 for past economic loss. The sum awarded for past economic loss makes up the bulk of the assessment. That sum is the subject of this judicial review.

The CARS Assessor’s reasons dated 25 July 2014

6. The CARS Assessor detailed Ms Park’s account of her pre and post-accident history as follows:

“Pre-accident history

…

On 15 June 2004 the claimant entered into a franchise agreement with Jani-King (NSW) Pty Ltd to undertake contract-cleaning work. The claimant purchased this business for $40,000.00 and sold it for the same sum several weeks before the accident.

…

The claimant, whilst self-employed in the franchise business, worked approximately 54 hours per week as a cleaner.

The claimant left the franchise because she said the hours were ‘too long’.

At the time the franchise was terminated the claimant was earning approximately $1,800.00 net per week.

…

In the two months before the accident the claimant worked 24 hours per week as a cleaner. She was employed by her husband who had a cleaning contract for ‘The Monkey Bar’ Hotel at Chatswood.

The claimant intended actively to look for other cleaning work, in addition to the 24 hours per week which she was working at Chatswood.

The claimant’s longer-term intention was to work ‘hands-on’ until aged 70 and thereafter work in a supervisory capacity until age 75.

…

Post-accident history

…

The husband’s contract cleaning business in relation to The Monkey Bar Hotels in Chatswood and Balmain folded in 2009. He applied to Centrelink for a Newstart allowance.

…

The claimant has not worked since the accident and denied that… she was working.”

7. When assessing the reliability of the evidence of Ms Park, the CARS Assessor said that:

“I find that parts of the claimant’s evidence are unreliable and therefore I question the veracity of the claimant’s evidence in relation to the severity of her injuries, and her claims that she remains unfit for work and for most household duties.”

8. In particular, the CARS Assessor stated:

“The claimant’s assertion that she terminated the franchise to work fewer hours, only to seek extra cleaning work shortly thereafter. This evidence strikes me as being contradictory and somewhat curious.”

9. When assessing Ms Park’s most likely future circumstances but for the accident, the CARS Assessor said:

“Had the claimant not been injured her most likely future circumstances are that she would have continued to work as a contract cleaner, either in her own business or as an employee. There was no physical reason, prior to the accident, why the claimant could not have continued to work the hours which she had been working with Jani-King (NSW) Pty Ltd. Her decision to work fewer hours was, in my opinion, a lifestyle choice at the time. She had the retained capacity to increase her working hours, if she so wished and I find that the claimant’s most likely future circumstances were that she would, in time, have increased her working hours to meet her ongoing financial commitments."

10. It is necessary for me to briefly set out all of the CARS Assessor’s reasoning in relation to loss of income. The CARS Assessor stated:

“(vi)   What, if any loss of income has the claimant suffered because of her injuries?

There was a dispute between the parties as to what the claimant was earning at the time of the accident.

Both parties relied on a number of reports from forensic accountants, the claimant relying on reports from Dolman Bateman dated 28 January 2010, and 11 June 2014 and the insurer relying on Vincents Chartered Accountants’ report dated 12 May 2014.

The author of the Dolman Bateman reports, Ms Fiona Bateman, has wrongly assumed that the claimant was working full-time in the franchise business at the time of the accident, and also wrongly assumed that the claimant’s injuries continue to render her unfit for work.

In light of these incorrect assumptions I consider Ms Bateman’s opinion to be unreliable.

I have also carefully considered the opinions of the author of the Vincents’ report and the author’s calculations in relation to past and future economic loss. I do not fully accept the Vincents’ opinions because I consider they have not, in my view, taken in to account the severity of the claimant’s injuries, the claimant’s reasonably impressive pre-accident work history and, also, because for the most part I have accepted the claimant as a witness of truth and my conclusions regarding the medical evidence.

At the time of the accident the claimant was earning approximately $600.00 net per week in her part-time cleaning job and that she had a retained earning capacity of $1,200.00 net per week.

I find that the claimant was unfit for any work, because of her injuries, from the date of the accident, namely 20 October 2005, for a period of 3 years, until 20 October 2008.

I find that the claimant was partially unfit for work from 21 October 2008 until 31 December 2013, and that she had a retained residual earning capacity of $300.00 net per week.

I allow the following sums for the claimant’s claim for past loss of income:

From 20 October 2005 until 20 April 2006, being 26 weeks at $600.00 net per week, a total of $15,600.00.

From 21 April 2006 until 20 October 2008, a period of 126 weeks at $1,200.00 net per week = $151,200.00.

From 21 October 2008 until 31 December 2013, a period of 270 weeks, at $900.00 net per week (being the difference between $1,200.00 and $300.00 net per week), a total of $243,000.00.

I find that the claimant has suffered no loss of earnings or earning capacity since 1 January 2014 and that any incapacity for work which the claimant may suffer is due to unrelated lower back and right knee pain. Specifically I find that any lower back pain resulting from an injury to her lower back in the accident resolved by 31 December 2013.

For past economic loss I allow the claimant a total of $409,600.00.

I further allow loss of superannuation of $45,056.00.

Total allowed for past economic loss = $454,656,00.”

11. Allianz contended that the above reasoning of the CARS Assessor for awarding past economic loss to Ms Park contains four significant errors and is accordingly erroneous in law and should be set aside. I will dealt with each error below but it is convenient that I deal with ground 4 first then with the other overlapping grounds.

(1)   Failure to provide adequate reasons – Ground 4

12. According to Allianz, the CARS Assessor erred in failing to state reasons as to why he awarded the said amount of damages to Ms Park for past economic loss as required by s 94(5) of the Act and clause 18.4 of the Claims Assessment Guidelines (“the Guidelines”). The Guidelines are made pursuant to ss 69(1) and 106 of the Act. As a result of not doing so, Allianz submitted that the decision is invalid and should be set aside.

13. Section 94(5) of the Act reads:

“94   Assessment of claims

…

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

14. Allianz’s main complaint was that the CARS Assessor failed to spell out, if only in brief, his real reasons for his determination on past economic loss, in order to comply with s 94. It was submitted that he also failed to provide reasons that adequately and demonstrably comply with the law and referred to Allianz Australia Insurance Ltd v Ward (2010) 57 MVR 327; [2010] NSWSC 720 where Hidden J at [40] stated:

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

15. Allianz also contended that the CARS Assessor failed to set out the reasoning processes that led him to his conclusions on past economic loss, as expressly required by clause 18.4 of the Guidelines. Clause 18.4 provides:

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

18.4.1   the findings on material questions of fact;

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

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

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

16. Allianz also referred to Insurance Australia Limited Ltd trading as NRMA Insurance v Hutton-Potts (2010) 57 MVR 194; [2010] NSWSC 1446 at [43] where Schmidt J held that clause 18.4.3:

“[43] [W]as an express obligation, which s 106 required the assessor to observe, but which was not complied with. The assessor made no reference to the requirements of s 126; did not explain his departure from the conclusion reached as to a patchy work history; and did not explain how the figure of $500 was arrived at on the evidence.”

17. Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 was cited by Allianz to highlight the importance of fully stated reasons as an essential legal requirement for a quasi-judicial tribunal. In Vegan, the reasons were held to be inadequate and the decision was set aside. As Basten JA explained at [130]:

“[130]   There is extensive authority for the proposition that a failure, on the part of a tribunal exercising judicial functions, to give reasons for its decision will constitute an error of law which will permit the decision to be set aside on appeal, where the right of appeal is limited to errors of law: see, for example, Soulemezis [Soulomezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247]. Whether it also constitutes jurisdictional error is not a matter which needs to be determined, in relation to the statutory mandate of the Appeal Panel. It is sufficient for the purposes of relief under s 69 of the Supreme Court Act that an error of law has been identified, which appears on the face of the record. Because the record includes the reasons of the Panel, inadequacy of reasons will inevitably be such an error. As a result, the decision of the Panel may be set aside.”

18. In Vegan, Basten JA (with McColl JA agreeing) also set out the proper standard for reasons (when speaking of statutory medical assessments made under the NSW workers compensation legislation) at [121]-[122]:

“Adequacy of reasons

[121]   Where it is necessary for the [Medical Appeal] Panel to make findings of primary fact, in order to reach a particular conclusion as to the existence, nature and extent of any physical impairment, it may be expected that the findings of material facts will be set out in its reasons. Where facts are in dispute, it may be necessary to refer to evidence or other material on which findings are based, but the extent to which this is necessary will vary from case to case. More importantly, where more than one conclusion is open, it will be necessary for the Panel to give some explanation of its preference for one conclusion over another. That aspect may have particular significance in circumstances where the medical members of a Panel have made their own assessment of the applicant’s condition and have come to a different conclusion from that reached by other medical practitioners, as set out in reports provided to the Panel.

[122]   On the other hand, to fulfil a minimum legal standard, the reasons need not be extensive or provide detailed explanation of the criteria applied by medical specialists in reaching a professional judgment…”

19. Basten JA in Vegan at [128] continued:

“[128]   No doubt the assessment of physical impairment involves matters of evaluation and judgment by medical specialists. Such matters are often not reducible to precise explanations, and the choice of a particular figure will only be a point within a legitimate range. The content of reasons must be assessed with those factors in mind...”

20. While Allianz conceded that sometimes it may be obvious from the way a case is run what the real reasons were, it argued that this was not one of those cases. According to Allianz, the findings referred to are not only manifestly illogical, but are wholly unexplained and due to this lack of any plausible justification, the decision is invalid by any standard.

21. Allianz argued that by reference to which reasons or adequate reasons might be reasonably assessed by a Court, the CARS Assessor’s reasons are entirely bereft of support and are, in effect, no reasons at all.

22. In particular, Allianz argued that the CARS Assessor failed to explain:

(i)   Whether Ms Park would have worked as a self-employed contract cleaner or as an employer cleaner and at what material time after the accident;

(ii)   Whether Ms Park’s lifestyle choice of working fewer hours in the months before the date of the motor vehicle accident would have continued after the accident and why or why not;

(iii)   Whether Ms Park would have increased her working hours after the date of the motor vehicle accident and, if so, when and for periods and for what reasons;

(iv)   What were Ms Park’s “ongoing financial commitments” at the time of the accident and afterwards and how and when and by how much would they have changed and in what found circumstances;

(v)   How was the finding that Ms Park earned $600 net per week at the time of the accident determined?

(vi)   How was the finding that Ms Park’s earning capacity at the time of her accident was $1,200 per week determined?

(vii)   How was the finding that Ms Park was partially unfit for work from 21 October 2008 until 31 December 2013 and that she had a residual earning capacity of $300 net per week determined?

(viii)   How was the finding that from 21 April 2006 until 20 October 2008, a period of 126 weeks, Ms Park should be awarded $1,200 net per week = $151,200 determined?

(ix)   How was the finding that from 21 October 2008 until 31 December 2013, a period of 270 weeks, at $900 net per week (being the difference between $1,200 and $300 net per week), a total of $243,000, determined?

23. Ms Park’s overall response is that when understood correctly, the reasoning behind the findings of the CARS Assessor concerning past economic loss was obvious and met the above statutory and delegated obligations, particularly in light of decisions such as Allianz Australia Insurance Ltd v Sprod (2012) 81 NSWLR 626; [2012] NSWCA 281.

24. Senior Counsel for Ms Park attempted to explain the reasoning behind the findings of the CARS Assessor, by saying at [8] to [20]:

“[8]   The evidence before the Second Defendant demonstrated that at the time of the accident the First Defendant was working part-time type hours, approximately half of a full workload. The detail was she was working 24 hours per week, at the time of the accident…

[9]   The First Defendant and her husband separated for the period in July 2004 to about July 2005, before reconciling…

[10]   The Second Defendant did not accept the First Defendant’s case that at the time of the accident (October 2005) she was intending to at that time obtain additional hours to perform a full workload. Rather, he found that she had reduced her work for lifestyle choice…

[11]   Accordingly, based on the First Defendant’s full workload earnings in the financial year of the accident the First Defendant’s pre-accident earning capacity was of the order $1,200 net per week. The Second Defendant made that finding: ‘At the time of the accident’… ‘she had a retained earning capacity of $1,200 net per week’…

[12]   However, as the Second Defendant had rejected the First Defendant’s case of her intending to return to a full workload as at the time of the accident, finding that she had reduced her work for lifestyle choices, her earnings were to be approximated with half her full workload. The Second Defendant made that finding: ‘At the time of the accident the claimant was earning approximately $600 net per week’…

[13]   As the First Defendant was self-employed, and as the finding as to earnings were earnings from a full workload in the financial year of the accident, and as she had reduced her workload for lifestyle choice at the time of the accident, the Second Defendant’s finding as to her earnings at the time of the accident were necessarily approximate, and the Second Defendant identified that the finding was approximate.

[14]   From the First Defendant’s earnings from her full workload in the financial year of the accident, the $1,200 net per week figure was then logically applied based on the Second Defendant’s findings as to probable earnings and capacity to work over time.

[15]   The Second Defendant found that the First Defendant only suffered economic loss in the period 20 October 2005 to 31 December 2013, and no award was made in respect of economic loss suffered in the future…

[16]   The Second Defendant also found that the First Defendant would have returned to a full workload by about 20 April 2006, after 6 months (26 weeks) of working a half workload for lifestyle choice, because financial commitments would have necessitated that by that time…

[17]   On the Second Defendant’s findings, the assessment of damages reflected, first, a claim for past economic loss where the impairment of earning capacity was reducing over time until it ceased, and second, because of the reduction of workload at the time of the accident for lifestyle choice, and the emergence of financial commitments leading to resuming a full workload, a change in the probable earnings from approximately half to the whole of the weekly sum based on that financial year’s earnings for a full workload.

[18]   As to the First Defendant’s fitness for work in different periods, the Second Defendant found:

18.1   First, the First Defendant was unfit for any work because of her injuries for a period of 3 years after the accident, viz., 20 October 2008;

18.2   Second, the First Defendant was partially unfit from 21 October 2008 to 31 December 2013 and had a residual earning capacity of $300 net per week in this period (in effect, a 25 percent residual earning capacity).

[19]   As to the First Defendant’s probable earnings in different periods (which reflected the reduction of workload for lifestyle choice and the increase in workload to a full workload due to financial commitments), the Second Defendant found:

19.1   First, probably earnings of $600 net per week until 20 April 2006;    and

19.2   Second, probable earnings of $1,200 net per week from 20 April 2006.

[20]   The loss assessed had three phases, representing the combining of the matters referred to above:

20.1   First, 26 weeks x $600 net per week, $15,600… This is the reduced for lifestyle choice probable earnings until returning to a full workload to meet financial commitments, and unfit for any work phase.

20.2   Second, 126 weeks x $1,200 net per week, $151,200. This is the returned to a full workload to meet financial commitments, and unfit for any work phase;

and

20.3   Third, 270 weeks x $900 net per week, $243,000. This is the returned to full workload to meet financial commitments, and partially unfit for work with a $300 net per week residual earning capacity phase.”

25. According to Ms Park, the statements above provide the explanation as to why the CARS Assessor could have expected a return by Ms Park to her full workload with weekly earnings of approximately $1,200. Senior Counsel for Ms Park interpolated that if one were to take the monthly amount of $7,288, reduce it to a weekly sum and then apply the appropriate tax rate in place the result would roughly equate to the $1,200 figure. He argued that as the CARS Assessor was only obligated to provide brief reasons, he was not required to go into such detail about the reasoning processes behind such figures. Ms Park conceded that while it was inconvenient that certain connections were not spelled out, it is not unlawful in the relevant sense.

26. Ms Park referred to several authorities in support of her proposition. They are Attorney-General (NSW) v Quin [1990] HCA 21; (1990) 170 CLR 1 at 35-36 (and cited with approval in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6 at [31]) and Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244. In Cervantes, Basten JA said at [22]:

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

27. Allianz’s response was that Ms Park’s submissions seek to provide her own explanation for the CARS Assessor’s calculation of past economic loss, which is wholly unhelpful and inappropriate and involves “reverse engineering”.

Conclusion

28. The starting point for this Court in determining whether the CARS Assessor had failed to state reasons in his assessment of Ms Park’s past economic loss is that set out in Wu Shan Liang at 271-272. The CARS Assessor reasons should not be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. This Court should not be concerned with “looseness in the language … nor with unhappy phrasing”: Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.

29. It must also be borne in mind what was said by Basten JA in Allianz Australia Insurance Ltd v Kerr (2012) 60 MVR 194; (2012) 83 NSWLR 302 at 316:

“The limitations of the obligation to give reasons must be kept firmly in mind by a judicial officer accustomed to a higher obligation.”

30. A number of the CARS Assessor’s findings in relation to past economic loss are clear. They are firstly, that had Ms Park not been injured her most likely future circumstances were that she would have continued to work as a contract cleaner, either in her own business or as an employee; secondly, that there was no physical reason, prior to the accident, why Ms Park could not have continued to work the hours which she had been working with Jani-King (NSW) Pty Ltd; thirdly, that Ms Park’s decision to work fewer hours was a lifestyle choice at the time; and fourthly, that Ms Park had the retained capacity to increase her working hours, if she wished. The CARS Assessor also made a finding that Ms Park’s most likely future circumstances were that she would, in time, have increased her working hours to meet her ongoing financial commitments.

31. In relation to the amounts Ms Park actually earned, her retained earning capacity and loss of earnings during her periods of incapacity, the CARS Assessor made further findings. They are that firstly, at the time of the accident Ms Park was earning approximately $600 net per week, in her part time cleaning job, and that she had a retained earning capacity of $1,200 net per week. As to the periods of incapacity, the CARS Assessor made a finding that Ms Park was unfit for work because of her injuries from the date of the accident, namely, 20 October 2005, for a period of three years until 20 October 2008, and then made a further finding that Ms Park was partially unfit from 21 October 2008 until 31 December 2013, and that during this latter period she had a retained residual earning capacity of $300 net per week.

32. In his assessment of past economic loss, the CARS Assessor took into account both parties forensic accountant’s reports but did not fully accept the opinions of either author. Ms Park relied upon the Dolman Bateman reports and Allianz relied upon the Vincents’ report. The opinion expressed in the Dolman Bateman report was not accepted by the CARS Assessor on the basis that its author, Ms Fiona Bateman, had wrongly assumed that Ms Park was working full-time in the franchise business at the time of the accident, and had also wrongly assumed that her injuries continued to render her unfit for work. In light of these incorrect assumptions, the CARS Assessor considered Ms Bateman’s opinion to be unreliable. So far as the Vincents’ report is concerned, the CARS Assessor stated that he had also carefully considered the author’s opinions and calculations in relation to past and future economic loss but he did not fully accept them because he considered they had not taken into account the severity of Ms Park’s injuries, her reasonably impressive pre-accident work history and, also because for the most part he accepted Ms Park as a witness of truth and Vincents’ opinions did not reflect the conclusions he made in relation to the medical evidence.

33. So far as the calculation for past economic loss is concerned, the CARS Assessor split it into three staggered periods of loss. No amount was assessed for future economic loss because he made a finding that the back pain Ms Park suffered as a result of the accident had resolved by 31 December 2013. The CARS Assessor made two findings that at the time of the accident Ms Park was earning approximately $600 net per week in her part-time cleaning job and that she had a retained earning capacity of $1,200 net per week and that she was totally unfit for any form of work because of her injuries for a period of three years, namely 20 October 2005 to 20 October 2008. This period of total incapacity was split into two periods. The first was from 20 October 2005 until 20 April 2006 and her past economic loss was calculated at $600 net per week. The next period was from 21 April 2006 until 20 October 2008, a period of 126 weeks at $1,200 net per week, presumably because she would have increased her working hours from 24. The last period, where she was partially unfit, was from 21 October 2008 until 31 December 2013, when she had a retained residual earning capacity of $300 net per week. The CARS Assessor then made the arithmetic calculations and assessed Ms Park’s past economic loss at $454,656.

34. The subject of judicial review is in relation to the actual amounts the CARS Assessor assessed for actual earnings at the time of the accident and the retained earning capacity. In short, the issue is how did the CARS Assessor arrive at the figures of $1,200 net per week, $600 net per week and $300 net per week, and did he sufficiently set out the reasoning process that led him to make those conclusions (Guideline 18.4.3).

35. The Dolman Bateman report dated 28 January 2010 annexed some source documents. They are Ms Park’s individual income tax returns for the financial years 2002 to 2006; partnership income tax returns for financial years 2002 to 2008 and the profit and loss statements for financial years 2005 to 2006; remittance advices in relation to the Balmain and Chatswood Monkey Bars in the name of Soung Jin Park (Ms Park’s husband); Cleaning and Building Services Contractors (State) Award wages and the Australian Bureau of Statistics average weekly earnings of female cleaners. The CARS Assessor made no specific reference to any of those documents in his reasons.

36. The premise upon which, Senior Counsel for Ms Park explained, the CARS Assessor made the calculations of the past economic loss is, he said, set out in the Doleman Bateman report dated 11 June 2014 at (3) where it states:

“… the plaintiff worked from 1 July 2005 to 20 October 2005, some 3.5 months. She earned approximately $7,288 per month (after most expenses) from Jani-King. This distribution recognised the plaintiff’s pre-accident earnings”.

37. From that premise, Senior Counsel for Ms Park then explained how the CARS Assessor arrived at the amounts of $1200, $600 and $300 net per week (the more expanded explanation has been set out in paragraphs [11] to [20] of his submissions reproduced at [24] of this judgment).

38. The CARS Assessor recorded that Ms Park’s evidence is that at the time the franchise [Jani-King] was terminated she was earning approximately $1,800 net per week. I have perused the forensic accountant’s reports and documentation attached to the Dolman Bateman reports to ascertain whether there was an implicit reference in them that must be accepted to support the figures of $600, $1,200 and $300 net per week (Cervantes at [22]). There was no such material or clear evidence to support those conclusions. It is clear from the CARS Assessor’s reasons that after the accident Ms Park’s back condition continued to improve and that meant that she was able to increase her actual earning capacity. However, it is not satisfactory that one should be required to undertake the exercise that Senior Counsel for Ms Park asked this Court to do. That is, to make a best guess as to why those figures were relied upon by the CARS Assessor.

39. It is not clear how the CARS Assessor arrived at the figures $600 net per week, $300 net per week or the retained earning capacity of $1,200 net per week. The reasoning process that led the CARS Assessor to make these conclusions have not been set out as required by Guideline 18.4.3. In my view, the CARS Assessor failed to provide proper reasons and the decision is invalid and should be quashed. It is not necessary to deal with the other overlapping grounds of judicial review.

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

The Court declares that:

(1)   The assessment certificate and the determination of CARS Assessor Thomas Goudkamp, the second defendant is invalid.

The Court makes an order

(2)   In the nature of certiorari removing into the Court the decision of the CARS Assessor in matter number 2013/12/2949/BR made on 25 July 2014 and quashing that decision.

The Court further orders that:

(3)   Matter number 2013/12/2949/BR is remitted to the Motor Accidents Authority of New South Wales to be determined according to law.

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

**********

Amendments

04 March 2015 - corrected paragraph numbering from [1] - [40]

Decision last updated: 04 March 2015