Allianz Australia Insurance Ltd v Roger Ward

[2010] NSWSC 720

CITATION:	Allianz Australia Insurance Ltd v Roger Ward & Ors [2010] NSWSC 720 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	14 October 2009
JUDGMENT DATE :	30 November 2010
JUDGMENT OF:	Hidden J
DECISION:	Certificate and determination of claims assessor set aside, matter remitted for re-determination by different assessor. Cross-claim dismissed.
CATCHWORDS:	ADMINISTRATIVE LAW - Motor Accidents Compensation Act - CARS assessment of damages - errors of law in assessment of future gratuitous assistance, determination of retirement age for claim for future economic loss - prerogative relief sought - whether discretion to refuse relief should be exercised - whether entire assessment should be set aside
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Civil Liability Act 2002 Motor Accidents Act 1988 Social Security Act 1991 (Cth) Supreme Court Act 1970 Justices Act 1902 Civil Procedure Act 2005 Suitors' Fund Act 1951
CATEGORY:	Principal judgment
CASES CITED:	Allianz Australia Insurance Ltd v Crazzi and Ors [2006] NSWSC 1090, 68 NSWLR 266 Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380 Roads and Traffic Authority v McGregor & Anor [2005] NSWCA 388, 44 MVR 261 Geaghan v D'Aubert [2002] NSWCA 260, 36 MVR 542 Cai v Zheng [2009] NSWCA 13 Insurance Australia Limited v Helou [2008] NSWCA 240 Goodman v Impact Hire Australia Pty Limited & Anor [2009] NSWSC 941 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1, 239 CLR 531 Craig v South Australia (1995) 184 CLR 163 Lee v Yang [2006] NSWCA 214 Zurich Australian Insurance Limited v Motor Accidents Authority of NSW & Ors [2006] NSWSC 845 Alliance Australia Insurance Ltd v Ward [2009] NSWCA 264 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355 Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 288, 204 ALR 55 Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597 Anderson v Judges of District Court NSW (1992) 27 NSWLR 701 Production Spray Painting and Panel Beating Pty Ltd v Newnham [No. 2] (1992) 27 NSWLR 659 Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497
PARTIES:	Allianz Australia Insurance Ltd (Plaintiff) Roger Ward (1st Defendant) Motor Accidents Authority of New South Wales (2nd Defendant) Allan Cowley (3rd Defendant) Principal Claims Assessor, of the Motor Accidents Authority of New South Wales (4th Defendant)
FILE NUMBER(S):	SC 2009/298074
COUNSEL:	R Letherbarrow SC, M A Robinson & A Douglas-Baker (Plaintiff) P Mahony SC & R E Quickenden (1st Defendant)
SOLICITORS:	Sparke Helmore Lawyers (Plaintiff) Michael Kerridge and Company (1st Defendant) I V Knight, Crown Solicitor (2nd & 4th Defendants)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HIDDEN J

Tuesday 6 July 2010, Tuesday 30 November 2010

2009/298074 Allianz Australia Insurance Ltd
v
Roger Ward & Ors
JUDGMENT

1 HIS HONOUR: In these proceedings, the plaintiff, Allianz Australia Insurance Limited (“Allianz”) seeks prerogative and declaratory relief in respect of the decisions of two officers of the Motor Accidents Authority of New South Wales. The first defendant, Roger Ward, claimed an assessment of damages under Pt 4.4 of the Motor Accidents Compensation Act 1999 (“MAC Act”) for personal injury suffered in a motor vehicle accident. A stolen vehicle, which was unregistered and uninsured, collided with his vehicle while being pursued by police. Liability was not in issue. Allianz assumed responsibility of defending the claim for damages as the insurer of the Nominal Defendant.

2 Reference to the purposes of the MAC Act and a helpful summary of relevant provisions of Pt 4.4 are to be found in the judgment of Johnson J in Allianz Australia Insurance Ltd v Crazzi and Ors [2006] NSWSC 1090, 68 NSWLR 266, at [8] - [20]. For present purposes, it is sufficient to note that the assessment of damages is an administrative, not a judicial, exercise. By s 94, the claim for damages is assessed by a claims assessor, who is to specify an amount of damages: subs (3). As soon as practicable after an assessment, the assessor is to issue to the claimant and to the insurer a certificate as to the assessment: subs (4), and is to attach to the certificate a brief statement setting out his or her reasons for the assessment: subs (5). If the Principal Claims Assessor is satisfied that the certificate or statement of reasons contains “an obvious error”, he or she may issue, or permit the claims assessor to issue, a replacement certificate or statement correcting the error: subs (6).

3 By s 95(2), an assessment of damages becomes binding on the insurer if the insurer accepts liability under the claim and the claimant accepts the amount of damages in settlement within 21 days after the issue of the certificate of assessment. In that event, the insurer must pay to the claimant the amount of damages specified in the certificate.

4 On 26 May 2009, the claims assessor in the present case issued a certificate assessing Mr Ward’s damages at an amount close to 1.1 million dollars, and attached a statement of his reasons. On 11 June 2009, Allianz wrote to the Principal Claims Assessor seeking a replacement certificate on the basis that the reasons disclosed errors of law. By a letter of reply the following day, the Principal Claims Assessor refused to do so on the basis that none of the alleged errors was “obvious”, within the meaning of s 94(6).

5 Allianz asserts the same errors of law in the present proceedings, and seeks the quashing of the decision of the claims assessor or, alternatively, the Principal Claims Assessor. The second defendant is the Motor Accidents Authority, the third defendant is the claims assessor (“the assessor”) and the fourth defendant is the Principal Claims Assessor. Each of those three defendants has entered a submitting appearance. The only contradictor is the first defendant, Mr Ward.

6 Allianz claims that the assessor fell into error in three respects:

(1) in his approach to the assessment of “future gratuitous assistance”;
(2) in awarding damages for economic loss for the first 5 days during which that loss was suffered, contrary to s 124 of the MAC Act (since repealed);

(3) in his approach to the assessment of future economic loss.

7 Allianz seeks an order in the nature of certiorari or a declaration setting aside the assessment, and an order in the nature of mandamus remitting the matter for determination according to law. It claims that, if any of the asserted errors of law is established, the entire certificate of assessment should be set aside and the case remitted to the Principal Claims Assessor for allocation to a different assessor. I shall refer later to the alternative relief sought against the Principal Claims Assessor herself.

Future gratuitous assistance

8 Mr Ward sought an allowance for gratuitous domestic care furnished, or to be furnished, to him and also for loss of his capacity to provide domestic services to his dependants, that is, his children. These are distinct, albeit related, heads of damage, each governed by statute. Mr Ward’s claim in respect of gratuitous care afforded to himself was subject to s 128 of the MAC Act, dealing with compensation for the value of “attendant care services”. That expression is defined in s 3 of that Act to mean “services that aim to provide assistance to people with everyday tasks …”. His claim for loss of capacity to provide services to his children was subject to s 15B(2) of the Civil Liability Act 2002 (“CL Act”), which is concerned with an award to a claimant in respect of loss of capacity to provide gratuitous domestic services to his or her dependants.

9 Each of those provisions places limitations upon the damages which may be awarded. Relevant for present purposes is one of those limitations, which is common to them. Section 128(3) of the MAC Act provides:

“… no compensation is to be awarded unless the services are provided (or to be provided):
(a) for at least 6 hours per week, and
(b) for a period of at least 6 consecutive months.”

By s 15B(2) of the CL Act, damages under the subsection may be awarded only if the court is satisfied (among other things) that:

“ …
(c) there is a reasonable expectation that, but for the injury to which the damages relate, the claimant would have provided the services to the claimant’s dependants:
(i) for at least 6 hours per week, and
(ii) for a period of at least 6 consecutive months …”

10 Section 15B was introduced into the CL Act in 2006. Section 128(3) of the MAC Act in its present form is the product of an amendment in 2008. The purpose of that amendment was to overcome the decision of the Court of Appeal in Harrison v Melhem [2008] NSWCA 67, 72 NSWLR 380. It is clear that each provision imposes a two-fold requirement before a claim can succeed. It will be necessary later to examine them more closely.

11 In his reasons, under the heading “Past Care”, the assessor noted that Mr Ward had received gratuitous care, mostly from his wife. He awarded compensation on the basis of an allowance of 9 hours per week from the time of the accident. (This would appear to include a component for loss of his capacity to provide services for his children, which was not separately assessed: see the reasons at [42]. As far as past care is concerned, no point was taken by Allianz about this approach.)

12 Under the heading “Future Care”, the assessor referred to Mr Ward’s claim for certain paid services, such as gardening and home maintenance, and continued (at [44]):

“To this he has added 14 hours per week … until the youngest child turns 15 in 10 years time and 9 hours per week deferred 10 years for a future 18 years for gratuitous care.”

I understand this to mean that Mr Ward sought an award for 14 hours per week for his own care and for his services to his children for 10 years, reduced thereafter to 9 hours per week (presumably for his own care) over the ensuing 18 years. That claim, extending over 28 years, would be until he turned 70.

13 The assessor arrived at a figure for future paid care, and then dealt with the matter which is central to these proceedings, under the heading “Future Gratuitous Assistance”. It is necessary to set out [48] of the reasons in full:

“The Insurer submits firstly that if I find that the Claimant’s need for voluntary future care is less than 6 hours per week extending for 6 months as required by s 15B of the Civil Liability Act , then the threshold has not been achieved and the Claimant cannot be awarded any damages under this head. That seems to me to be an incorrect understanding of the Act. If at any time I find that the claimant’s need for voluntary care has exceeded the threshold, whether in the past or in the future, then as I understand it the Claimant is entitled to make a claim under this head even if he later falls under the initial threshold.”

14 He found that Mr Ward would not need as much care as had been claimed, noting improvements in his condition disclosed by the medical reports. He observed that the children would “eventually support themselves”. He concluded that justice would be done by “a compromised amount of 4 hours per week averaged for the balance of the Claimant’s life”, adding that he was “not going to attempt making different calculations as the children mature”: [49]. This was based on a life expectancy of 43 years.

15 A number of observations can be made about the assessor’s reasoning in relation to this aspect of the matter:

(a) There were claims both for the provision of services in the future to Mr Ward and for his inability to provide services to his children, engaging both s 128 of the MAC Act and s 15B of the CL Act. Yet the assessor made no reference to the MAC Act provision, and did not assess those claims separately. He arrived at a global figure in respect of them, without distinguishing between them.
(b) Consistently with that approach, he expressed no finding about whether the 6 hour/6 month threshold for each of those claims had been met. At most, his reasons imply that it had if the two claims were considered in combination.
(c) In determining that the threshold had been met in that global way, he did not have regard only to the evidence of Mr Ward’s need and capacity in the future. He considered it sufficient if the threshold had been exceeded at any time, whether in the past or in the future.
(d) He saw the threshold as the need for “voluntary future care” for at least 6 hours per week over a period of 6 months. Thereafter, Mr Ward would be entitled to compensation for as long as the need endured, even if it fell below 6 hours per week.

16 Mr Letherbarrow SC, who appeared with Mr Robinson and Ms Douglas-Baker for Allianz, submitted that in all these respects the assessor had fallen into error. He also challenged the adequacy of the assessor’s reasons for his decision on this aspect.

The two provisions

17 As I have said, s 128 of the MAC Act and s 15B of the CL Act are related but, nevertheless, distinct provisions. Claims under them must be separately assessed, with an eye to the limitations upon an award imposed by each provision. That includes the 6 hour/6month threshold, which must be applied to each claim. The statutory requirements are not met by the application of that test in some global way to the two claims, viewed in combination.

18 Mr Mahony SC, who appeared with Mr Quickenden for Mr Ward, submitted that a fair reading of the assessor’s reasons discloses that he was conscious of the distinction between the two claims and did address the threshold test in respect of each of them. Although s 128 of the MAC Act was not mentioned, the reasons refer to a claim by Mr Ward in respect of services provided to him, on the one hand, and services he would have provided to his children but for his injuries, on the other. At [49], he expressly referred to the ability of the children eventually to support themselves. Mr Mahony argued that he was entitled to arrive at an average number of hours per week in respect of both claims over the period of Mr Ward’s life expectancy, and was not bound to identify for what part of that period he allowed the s 15B claim and for what part he allowed the s 128 claim. Nor was he required to allocate a specific number of hours for any specific period in respect of each of the claims. This, it was said, would have been “too onerous and artificial” in an assessment of this kind.

19 Mr Mahony noted that the assessor expressly acknowledged the 6 hour/6 month threshold. Although he referred at that point only to s 15B of the CL Act, Mr Mahony argued that it is apparent from the terms of [48] of the reasons, set out above, and the findings in [49] that he was conscious that the threshold applied to both claims and that he did apply it to each of them.

20 I cannot accept these arguments. My summary of the assessor’s reasons demonstrates that he conflated the two claims, rather than giving each of them the separate consideration it required. In particular, the reasons do not disclose a consideration of whether the threshold test in respect of each claim was examined and found to have been met. That is at best a matter of inference from the reasons and, in my view, it is not one which can fairly be drawn.

Future claims

21 I am satisfied that the assessor fell into error in asserting that, for the purpose of claims for future care or services, it was sufficient that the 6 hour/6 month threshold had been met at any time, whether in the past or the future. Before a future claim can succeed it must be shown that the threshold will be met in the future. Mr Mahony accepted as much, at least as far as the 6 hour requirement was concerned.

22 In Roads and Traffic Authority v McGregor [2005] NSWCA 388, 44 MVR 261, the Court of Appeal had occasion to consider s 15 of the CL Act, dealing with gratuitous attendant care services afforded to a claimant for damages. In particular, the Court examined s 15(3) as it stood before it also was amended in 2008. Subsection (3) then provided:

“(3) … no damages may be awarded to a claimant for gratuitous attendant care services if the services are provided, or are to be provided:
(a) for less than 6 hours per week, and
(b) for less than 6 months.”

23 Section 128(3) of the MAC Act had been in that form until both provisions were amended in identical terms in 2008. What is significant for present purposes is that the Court noted that the subsection distinguished between services which “are provided” and those which “are to be provided”. The Court rejected an argument that, for the purpose of a claim for future services, it was sufficient that the 6 hour/6 month threshold had been met in respect of a claim for past services.

24 Campbell JA, with whom McColl JA and Bell J agreed, said at [171] – [172]:

“171 Mr Williams put that Judge Bishop’s findings established that in respect of past assistance Mrs McGregor had clearly crossed the ‘six-hour six month threshold’ and that having done so the prohibition no longer applies.
172 In my view this concept requires a construction of ss 15(3) which sets aside the provision for ‘services which are provided’ on the one hand and ‘are to be provided’ on the other. I do not consider such a construction to be open on the clear words of the section.”

25 As will be seen, RTA v McGregor was overruled in Harrison v Melhem (supra) but its status has been restored since the 2008 amendments. It remains binding authority on the approach to claims for future care or services under s 128 of the MAC Act in its present form and s 15B of the CL Act.

26 On this aspect also, Mr Mahony argued that the assessor’s reasons were sufficient to demonstrate, albeit impliedly, that he had not fallen into error. Mr Mahony relied upon his reference at [48] to the necessity for Mr Ward to establish a need for voluntary care which exceeded the threshold, “whether in the past or in the future”, and noted that the average of 4 hours per week for both claims for the period of Mr Ward’s life expectancy was described as a “compromised amount”. From this, Mr Mahony argued, it should be inferred that he had satisfied himself that for both claims the threshold would be met in the future.

27 Again, that is not an inference which I am prepared to draw. To do so would be to read a great deal into the reasons which is not expressed. The assessor’s award for past care on the basis of 9 hours per week conveys that the threshold had been met for that purpose, and I think it most likely that he considered that to be sufficient for the future claims.

The threshold

28 To understand the threshold created by s 128(3) of the MAC Act and s 15B(2)(c) of the CL Act, it is necessary to refer to Harrison v Melhem and sketch briefly the legislative history. As I have said, prior to the 2008 amendments s 15(3) of the CL Act was in the form, set out at [22] above, in which it was considered in RTA v McGregor. Section 128(3) of the MAC Act was in identical terms. Each subsection provided that no damages could be awarded for gratuitous services if they were, or were to be, provided for less than 6 hours per week and for less than 6 months.

29 A provision in exactly the same terms was to be found in s 72(2) of the Motor Accidents Act 1988. That subsection was held by the Court of Appeal to impose a requirement of the provision of services for at least 6 hours per week and over a period of at least 6 months before compensation was payable: Geaghan v D’Aubert [2002] NSWCA 260, 36 MVR 542. As Stein JA, with whom Handley JA and Foster AJA agreed, put it at [38]:

“No compensation is to be awarded if less than 6 hours per week of service is provided or is to be provided. Similarly, no compensation is to be awarded if the services are provided or are to be provided for less than 6 months.”

This decision was applied in RTA v McGregor .

30 However, the issue was reconsidered by a five judge bench in Harrison v Melhem, which was concerned with s 15(3) of the CL Act. The Court decided that the effect of the provision was that a claimant could recover damages if the services were, or were to be, provided for at least 6 hours per week or for at least 6 months. It was only if neither of those conditions could be met that an award would be precluded. The principal judgment was delivered by Mason P, with whom the other members of the Court agreed on this issue. At [181], the President expressed his conclusion in this way:

“…. I construe s 15(3) as a preclusion upon the award of Griffiths v Kerkemeyer damages unless the plaintiff can overcome one of the two thresholds by showing either that the gratuitous services are provided for a long period (ie more than six months) or that the services are provided for a significant period of time (that is, more than six hours per week).”

31 At [99], his Honour summarised the effect of the construction of the section in Geaghan v D’Aubert as follows:

“… a need that continues for 12 months (or even a lifetime) is to be ignored unless its intensity requires 6 or more hours per week of services. So too a need for 6 or more hours per week of services is to be ignored unless it lasts for at least 6 months.”

Geaghan v D’Aubert was overruled, as was RTA v McGregor to the extent that it followed that decision.

32 It was the interpretation in Harrison v Melhem which the legislature addressed by the 2008 amendments. Hence s 128(3) of the MAC Act in its present form, set out at [9] above. It is now clear that a claimant cannot recover damages for gratuitous services unless they are, or are to be, provided for at least 6 hours per week and for a period of at least 6 months. (The use of the term “consecutive” in subs (3)(b) makes it clear that that period must be a continuous one.) Accordingly, the approach in Geaghan v D’Aubert has been restored, and it is applicable to s 15B(2)(c) of the CL Act (also set out at [9] above).

33 That this is the effect of the amendments is put beyond doubt by the decision of the Court of Appeal in Cai v Zheng [2009] NSWCA 13, which was concerned with s 128(3) of the MAC Act in its present form. At [63] – [65], Hoeben J (with whom Giles and Basten JJA agreed) summarised the effect of Geaghan v D’Aubert, and recounted the decision in Harrison v Melhem and the 2008 amendments passed in consequence of it. Referring in particular to the amendment of the MAC Act provision, his Honour said at [65]:

“The parties agreed that the effect of this amendment was to restore to s 128(3) MAC Act the meaning given to it in Geaghan .”

Although expressed as a matter about which the parties agreed, this was clearly the view of the Court.

34 Let me turn, then, to the assessor’s assertion that the threshold is crossed with the provision of services for at least 6 hours per week over a 6 month period, and that services provided thereafter are compensable regardless of the number of hours per week required.

35 Mr Mahony did not support that view. Indeed, he argued that it is not what the assessor meant. He acknowledged that the 6 hour requirement is not spent once the 6 month period has expired. Clearly, that is so. For the purpose of s 128(3) of the MAC Act and s 15B(2)(c) of the CL Act, if a claimant establishes a need for care or services for at least 6 hours per week over a 6 month period, he or she is entitled to compensation for that period. Thereafter, that entitlement continues for as long as the need for the care or services remains at 6 hours per week or more. Compensation ceases to be payable if it drops below that level.

36 Mr Mahony submitted that the assessor’s reasons at [48] should be understood in that way. As noted, the assessor said that Mr Ward would be entitled to make a claim if his need for voluntary care had exceeded the threshold at any time, “even if he later falls under the initial threshold”. Mr Mahony argued that by those last words he was acknowledging that there might be a period, or periods, in the future when Mr Ward’s need would fall below 6 hours per week and when, for that reason, he would not be entitled to compensation. What he sought to do, Mr Mahony repeated, was to assess the period or periods over which the 6 hour threshold would be met for each claim, and reduce that to an average weekly figure over Mr Ward’s life expectancy.

37 Yet again, that would be to read into the assessor’s reasons a process of reasoning which is not exposed at all. Before allowing an award for either claim, it was necessary that he make it clear in his reasons that he had considered the relevant test and found it to be satisfied, and it was incumbent upon him to set out the periods and number of hours per week which he found to meet the statutory requirements. (Having done so, it might have been appropriate to average the hours per week out over Mr Ward’s life expectancy.) To place such an obligation upon an assessor is neither onerous nor artificial.

Adequacy of reasons

38 As I have found error in a number of aspects of the assessor’s approach to this aspect of the case, it is not necessary to decide the complaint about the adequacy of his reasons. However, it is obvious that the problem with those reasons in large part is the lack of particularity with which the two claims, and the statutory requirements governing them, were addressed.

39 No doubt, consistently with the objects of the MAC Act set out in s 5, the legislative scheme is directed to the prompt and cheap resolution of claims for motor accident compensation. As Campbell JA (with whom Allsop P and Bell JA agreed) observed in Insurance Australia Limited v Helou [2008] NSWCA 240 at [61], an assessor’s obligation to give reasons “is qualified by the requirement, in section 94(5) MAC Act, that it be a ‘brief statement’ … .” His Honour continued at [62]:

“When … the assessor has performed the task required of him to ‘ assess the damages ’, and when his reasons identify the various heads of damage that he has awarded, and how he has arrived at the numbers attributed to each of those heads of damage, his statutory obligation to give reasons has been performed.”

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.

The first 5 days

41 Section 124 of the MAC Act (since repealed) provided:

“ Damages for economic loss – no compensation for first 5 days of loss of earnings etc
No damages for economic loss due to loss of earnings or the deprivation or impairment of earning capacity is to be awarded in respect of the first 5 days (whether or not consecutive days) during which the plaintiff suffered that loss because of the injury.”

42 Believing that the section did not apply to the assessment because it had been repealed, the assessor made an allowance for the first 5 days in his award for past economic loss. It is common ground that, in fact, the section did apply. Mr Ward’s accident had occurred before the commencement of the amendment, and the effect of a transitional provision was that the repeal of the section did not apply to his case.

43 In this respect, then, the assessor was in error. Mr Mahony noted that the amount involved was only $500 and that, if this were the only error found, I would exercise my discretion to refuse the relief which Allianz seeks. However, it is not, and whether that might have been an appropriate course is not a matter which I need to decide.

Future economic loss

44 The assessor allowed a claim for future economic loss on the basis that Mr Ward would retire at the age of 67. At the time of the assessment the legal age for retirement in Australia, determined by reference to the Social Security Act 1991 (Cth), was 65.

45 The assessor recorded in his reasons that, at an assessment conference prior to his determination, both parties had proceeded on the basis of a retirement age of 65. The following day, the Federal Government presented its 2008/2009 budget in Parliament, which included an announcement that the pension age would be increased to 67, phased in from 2017 to 2023. The assessor noted that Mr Ward would not turn 65 until 2030 and, accordingly, his entitlement to an aged pension would be affected by that proposal. He arranged for a further conference by telephone, inviting further submissions from the parties. For Mr Ward it was submitted that future economic loss should be assessed on the basis of a retirement age of 67. Allianz argued for the legal retirement age of 65, noting that the budget had yet to be passed by Parliament and that a rise in the pensionable age to 67 remained in the realm of speculation.

46 The assessor’s reasons for proceeding on the basis of a retirement age of 67 were expressed at [35] – [36]:

“35 The Insurer’s submissions have some force however in my assessment they are misguided. The question of whether or not a Claimant will work to a certain age is not a matter determined by the Federal Government or by ‘law’. The Federal Government has only indicated that it intends to increase the age at which one is entitled to an aged pension from age 65 to age 67. Submissions are quite often made by Insurer’s (sic) (and sometimes conceded by Claimants) that a particular claimant will not work beyond say age 60. In my experience I have also received many submissions on behalf of Claimant’s that a particular Claimant will work at least to age 70. This is particularly true of Claimant’s who are professionals such as doctors and lawyers. Each Claimant has to be assessed on their peculiar facts and as one finds them.
36 I also note that in the previous administration the former Treasurer, the Honourable Peter Costello, indicated that he intended raising the retirement age from age 65. The Sydney Morning Herald reported today, 22 May 2009, that the Honourable Tony Abbott, who is the Opposition Representative shadowing the Minister for Community Services, that (sic) the Federal Government had stolen the Coalition Policy and that they had recommended that the pension age be raised from 65 to 67 by 2015 in order to deal with an ageing population. It seems inevitable therefore that whichever party was going to be in power, the Claimant would not be entitled to an old age pension until the age of 67, if he was to still be in the workforce.”

47 Mr Letherbarrow’s submission about this aspect of the reasons was two-fold. Firstly, he argued that the assessor was bound by law to calculate damages on the basis of the retirement age provided by law, 65. He cited the judgment of Patten AJ in Goodman v Impact Hire Australia Pty Limited & Anor [2009] NSWSC 941. His Honour was there giving supplementary reasons relating to certain aspects of a damages claim, having previously delivered his principal judgment. At [8] – [11], his Honour said:

“8 In the reasons I calculated compensation for future diminished earning capacity in respect of a period up to Mr Goodman attaining the age of 65. I was required by statute to limit it in this way against Impact. In respect of Inasmuch, Mr Stone submitted that I should allow the loss up to age 67, principally in consequence of a statement by the Federal Government that it proposes to increase by 2 years the age at which a person otherwise entitled may receive an aged pension.
9 As Kirby P indicated in Baldwin v Silicic [1993] NSWCA 18 in the absence of specific evidence, it is appropriate to calculate future income loss up to the age upon which a person is ‘entitled by law to retire and receive an Australian pension.’ There was no such evidence in this case.
10 Mr Stone unsurprisingly was able to refer to little authority in support of his contention, the exception being the decision of Levy DCJ in H v State of NSW [2009] NSWDC 193 in which His Honour recognised normal retirement age ‘in current terms’ as 67.
11 The law as it presently stands is that pensionable age is 65. Despite the government’s announcement it has not yet been translated into legislation and I do not think I should speculate upon the subject. It is not unknown for government announcements not to come to fruition, either at all or for many years.”

48 Mr Letherbarrow also referred to the assessor’s reference in the passage at [36] of the reasons cited above to a Sydney Morning Herald report published the same day as the reasons, and the conclusion he drew from that report that the pension age would be increased to 67, “whichever party was going to be in power …”. Obviously, that material was not available to the parties when they presented submissions to him at the telephone conference. Accordingly, Mr Letherbarrow argued, Allianz had no opportunity to adduce further evidence or make further submissions about the matter, and had been denied natural justice.

49 Mr Mahony relied upon [35] of the reasons, and argued that it was a matter for the assessor to determine how long Mr Ward would remain in the workforce. As it was put in written submissions, “The longevity of a person’s working life is a matter for the discretion of the decision maker.” No doubt that is so, but it does not appear from the reasons that there was any evidence about how long Mr Ward was likely to work. It is clear enough that the assessor had regard only to what he predicted would be the legal age of retirement. In that regard, he fell into error for the reasons identified by Patten AJ in the passage from his judgment which I have cited.

50 I am also satisfied that Allianz was denied natural justice in the manner advanced by Mr Letherbarrow. Mr Mahony put no argument to the contrary.

51 However, Mr Mahony noted that the difference in assessment of future economic loss between the retirement age of 65 and 67 was only about $12,000. Again, he argued that I would exercise my discretion not to intervene because that amount was such a small proportion of the total damages awarded. Yet again, that is an argument which might call for consideration if this were the only error in the assessor’s reasons, but it is not.

Relief

52 I am satisfied, then, that the assessment of Mr Ward’s damages is affected by several errors on the face of the record, the record here being the assessor’s statement of reasons: s 69(4) of the Supreme Court Act 1970. As to one matter, there has also been a denial of natural justice. Relief in the nature of certiorari is available. Mr Mahony argued that any of the errors of law, if established, would amount to no more than an error within the assessor’s jurisdiction. He referred to Insurance Australia Limited v Helou (supra) at [59], where Campbell JA, having found that certain asserted errors by an assessor had not been established, added that if the assessor had made any of those errors, “they are errors within jurisdiction, and not errors of law on the face of the record”. That was no more than a passing observation, and was clearly obiter.

53 After I reserved judgment in the matter, counsel brought my attention to the recent decision of the High Court in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1, 239 CLR 531. It is unnecessary to analyse that lengthy and important decision, except to observe that it examined the notion of jurisdictional error in the context of the review of decisions of inferior courts, focusing on the distinction between errors within jurisdiction and errors outside it. In the course of so doing, the Court referred to the principles governing the review of the decision of an administrative tribunal or decision maker enunciated in Craig v South Australia (1995) 184 CLR 163. The Court said at [67]:

“The drawing of a distinction between errors within jurisdiction and errors outside jurisdiction was held, in Craig , to require different application as between ‘on the one hand, the inferior courts which are amenable to certiorari and, on the other, those other tribunals exercising governmental powers which are also amenable to the writ’ [at 176]. The Court said [at 179] that:
‘If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal’s exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it.’”

Clearly, that passage applies to the present case.

54 At the hearing of this matter, counsel foreshadowed the need to make further submissions about the appropriate orders, should any of the asserted errors of law be established. I would appreciate the further assistance of counsel on these questions:

Is there anything in the structure and purpose of the relevant legislation which militates against a grant of relief?
If relief is to be granted, is it inevitable that the certificate of assessment be set aside?
Is there another appropriate remedy, given that it is only a relatively small part of the total assessment of damages which is infected by error?
If the case is to be remitted, is it necessary that it be remitted to another assessor?

55 As well as dealing with these matters, it will be necessary to hear argument on costs.

30 November 2010

56 In relation to the four questions upon which I sought further assistance, I have had regard to the parties’ original submissions and I have since had the benefit of supplementary submissions, written and oral, by junior counsel: Mr Robinson for Allianz and Mr Quickenden for Mr Ward.

Structure and purpose of the legislation

57 On the question whether the structure and purpose of the MAC Act militates against the grant of relief, it is to be noted that an assessment of damages under s 94 is not binding at the time it is made. It becomes binding only if the insurer has accepted liability under the claim and the claimant accepts the damages assessed within 21 days after the issue of the certificate: s 95(2). If those conditions are met, the insurer cannot contest the amount of the damages: Lee v Yang [2006] NSWCA 214, particularly per Giles JA at [23] – [26].

58 Such was the present case. Allianz had accepted liability before the assessment was undertaken. The certificate of assessment having been issued, whether it became binding was entirely at the initiative of Mr Ward. He accepted the assessment in accordance with s 95(2). Allianz had no recourse under the Act other than that which it sought unsuccessfully, that is, an application under s 94(6) for a replacement certificate on the basis of obvious error.

59 The Act does not provide an insurer with any avenue of appeal or review in respect of an assessment of damages. This, Mr Quickenden submitted, is consistent with the aim of the Act to achieve the quick and cheap resolution of claims. One of the expressed objects of the Act, set out in s 5(1)(b), is “to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims … .” Section 80(1) imposes a duty on an insurer “to endeavour to resolve a claim, by settlement or otherwise, as justly and expeditiously as possible”. In Allianz Australia Insurance v Crazzi (supra), Johnson J examined some of the general features of the statutory scheme at [8] – [10], referring to the observations of Hoeben J in Zurich Australian Insurance Limited v Motor Accidents Authority of NSW & Ors [2006] NSWSC 845 at [22] – [26].

60 In short, Mr Quickenden argued that the legislation creates a framework for the resolution of motor accident claims which embraces a degree of tolerance of administrative error. Consistently with this, he said, the only remedy it provides to an insurer in respect of assessment of damages is the correction of obvious error under s 94(6).

61 It will be necessary later to refer to some ancillary proceedings in this matter in which an order of McCallum J was the subject of an application by Allianz for a stay, which was dealt with by Young JA: Allianz Australia Insurance Ltd v Ward [2009] NSWCA 264. Relevantly for present purposes, Young JA made some observations in the course of that judgment upon which Mr Quickenden relies. His Honour said at [48]:

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

After a brief review of some recent administrative law authorities, his Honour observed at [61] that in recent years “superior courts have long recognised that it is often just to allow decisions of authorities charged with the principal administration of statutory schemes, whose decisions may be infected by minor error, to stand.”

62 Reference was also made to the frequently cited passage from the joint judgment in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28, 194 CLR 355, at [91]:

“An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.”

63 In Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCA 288, 204 ALR 55, Gray and Downes JJ at [42] referred to that passage in the course of their review of the decision of the High Court in Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11, 209 CLR 597. It is not necessary to examine these three cases. It is sufficient to say that the passage from Project Blue Sky v ABA should be understood in its context. It was directed to the question whether the exercise of a statutory power is necessarily invalid if a precondition of its exercise has not been met. The present case is concerned with error of law in the process of reasoning towards an administrative determination. Both issues raise a question of jurisdictional error and might invoke the supervisory jurisdiction of a superior court, but they do so from different perspectives.

64 Undoubtedly, the grant of prerogative or declaratory relief is discretionary and, as Johnson J observed in Crazzi at [224], there is no “closed category of cases” in which that relief might be refused on discretionary grounds. It may be that this Court would be justified in declining to intervene where the most that could be said of an administrative decision is that it was, to adopt the words of Young JA, “infected by minor error”. In the present case that might have been a fair description of the assessor’s allowance for economic loss for the first 5 days but, as I have said, whether that would have justified the refusal of relief need not be decided.

65 Viewed as a whole, the present case is not one of minor error. The assessor’s errors in relation to future gratuitous assistance are significant, and in monetary terms this aspect of the claim was substantial. It is not to the point that only small amounts were involved in the other two areas of identified error and, importantly, in the assessment of the claim for future economic loss there was a denial of natural justice.

66 In the view I have formed of the matter, it is unnecessary to determine Allianz’s alternative claim for relief against the refusal of the Principal Claims Assessor to find obvious error under s 96(4) of the Act. Accordingly, it is neither necessary nor appropriate for me to express any concluded view about the scope of that provision. Nevertheless, it is obviously limited. Johnson J had occasion to consider it in Crazzi at [124] – [148]. At [144] his Honour expressed the view that “errors caught by this provision are errors which must be readily apparent to the Principal Claims Assessor on the face of the certificate and/or statement of reasons”, and that the error “must be clear and not merely arguable”. Later, at [184], he described the subsection as “a relatively narrow slip rule provision”.

67 Allianz has demonstrated errors in the assessor’s determination warranting the exercise of this Court’s supervisory jurisdiction. Resort to that jurisdiction is its only effective remedy. To say so is not to suggest that an insurer has a general right of appeal against any determination with which it is dissatisfied. Subject to the matter I am about to deal with, I see nothing in the legislative scheme which would lead me to exercise my discretion against granting relief.

68 That said, it is to be noted that the assessor fell into error only in respect of three heads of damage which, in money terms, amount to a relatively small proportion of his total award. It appears that the amounts which might be at stake as a result of the errors amount to a little less than $100,000, whereas the total award is in excess of $1,000,000. The assessment of the other heads of damage was not challenged in these proceedings. It is this which raises the question whether the assessor’s certificate must be set aside as a whole or whether some other remedy might be fashioned, directed to the reconsideration of the particular heads of damage affected by error.

Any remedy other than setting aside the certificate?

69 The parties are agreed that, if Allianz is entitled to relief, an order in the nature of certiorari is the appropriate remedy. They are also agreed that, in that event, the assessor’s certificate must be set aside. However, in his reasons the assessor set out the amounts he awarded in respect of each head of damage. Mr Quickenden argued that it was not necessary to set aside the whole of the assessment, but only the assessment in respect of those heads of damage affected by error. Upon re-assessment of them, he submitted, a fresh certificate specifying the total amount of the damages could be issued.

70 On the face of it, that might be seen as a practical approach with much to commend it. However, I am persuaded by the submissions of Mr Robinson that it is not an available course. Section 94(4) of the MAC Act requires a claims assessor to issue a certificate as to an assessment. Separate provision is made in subs (5) for the attachment to the certificate of a brief statement of the assessor’s reasons. If the conditions set out in s 95(2) are met, an insurer becomes liable to pay “the amount of damages specified in the certificate … .” Accordingly, it is the certificate which founds the insurer’s obligation, and the certificate specifies the amount of damages assessed as a single, global figure.

71 If the assessment of the amount specified in the certificate is affected by jurisdictional error, the certificate must be set aside and the court cannot divide the amount specified into those parts which are valid and those which are not. As Mr Robinson put it, it is “an organic whole and not divisible”.

72 The situation is analogous to that considered by Kirby P, with whom the other members of the Court agreed, in Anderson v Judges of District Court NSW (1992) 27 NSWLR 701, at 712 – 3. Under review in that case was the order of a District Court judge, on appeal against a summary conviction, confirming the conviction, the penalty imposed and an order for forfeiture of a sum of money. The Court held that the forfeiture order was invalid. However, after an examination of s 125 of the Justices Act 1902, dealing with the power of the District Court to dispose of such an appeal, it was held that the District Court judge’s order was indivisible, that the confirmation of the forfeiture order could not be severed from it, and that the whole order must be set aside.

73 So it is in the present case. The certificate must be set aside and the matter remitted for re-assessment generally. That said, I trust that the parties would take a practical approach to the new assessment and, by agreement, limit the matters which would need to be revisited. Mr Robinson informed me that Allianz acknowledges that the plaintiff is entitled to a very substantial award, albeit significantly less than that which was arrived at.

Another assessor?

74 The question whether the matter should be remitted for re-determination by a different assessor is uncontroversial. The parties are agreed that, in the circumstances, that would be the appropriate course.

75 Accordingly, I am satisfied that Allianz has made out a case for relief and I do not consider that there is any discretionary reason to refuse it.

Cross-claim

76 There remains to be determined a cross-claim by Mr Ward against Allianz. It was agreed that a decision about that claim would be made after I had determined the outcome of the principal claim by Allianz. To understand the cross-claim, it is necessary to refer briefly to some interlocutory proceedings after Allianz filed its summons in this Court on 3 July 2009.

77 Allianz did not seek a stay of its statutory obligation to pay to Mr Ward the amount of damages specified in the assessor’s certificate. By summons filed on 9 July 2009, Mr Ward sought payment of that amount notwithstanding the proceedings instituted by Allianz. McCallum J made that order but, mindful that Allianz might make good its claim for relief, directed that so much of the damages as was said to be affected by error should be maintained in the trust account of Mr Ward’s solicitor. Allianz appealed against that decision and sought a stay of her Honour’s order pending the hearing of the appeal. It was that application which was dealt with by Young JA in the decision to which I have referred in these reasons at [61]. There is no need to examine Young JA’s reasons or the precise terms of the order he made. It is sufficient to say that effectively the stay was refused.

78 In the event, two payments were made to Mr Ward’s solicitor on separate occasions, totalling the amount of the assessment less certain statutory deductions to which Allianz was entitled. The cross-claim alleges that those payments were not made on the day on which they were due, and claims interest pursuant to s 101 of the Civil Procedure Act 2005. The defence to the cross-claim does not concede that any interest is payable but, in any event, challenges the manner in which the interest claimed was assessed.

79 It is unnecessary to go to the detail of the cross-claim or the defence to it. It is sufficient to say that the cross-claim could not be pursued unless I found that Allianz has not made out its claim for relief. The assessment having been set aside, Mr Ward is not entitled to any of the money paid pursuant to it. Indeed, Allianz would be entitled to a unconditional order for repayment of the money: cf Production Spray Painting and Panel Beating Pty Ltd v Newnham [No. 2] (1992) 27 NSWLR 659, especially per Handley JA at 661 – 2. Allianz does not seek such an order, but the reasoning of that decision demonstrates that the claim for interest in the cross-claim cannot now be maintained. The cross-claim is dismissed.

Costs

80 Allianz seeks the costs of the proceedings generally, that is, of the principal claim and the cross-claim. On that issue Mr Robinson read an affidavit and presented other material concerning negotiations to settle the matter which had been initiated by Allianz. In the event, it is not necessary to make any determination about that material.

81 Mr Quickenden opposed an order for costs on the basis of the respective positions of the parties: Mr Ward, a man seriously injured in a motor vehicle accident and suffering the sequelae of that injury, pitted against a corporate insurer. He also pointed out that, if the matter were remitted for reassessment, Mr Ward might secure an even greater assessment or, at least, one no less favourable than the present assessment. Mr Ward, he reminded me, was in no way responsible for the assessor’s errors.

82 Sympathetic as one must be to a person in Mr Ward’s position, these arguments are misconceived. Allianz undertook administrative law proceedings, as it was entitled to do, and Mr Ward contested them. I see no reason why the usual rule that costs follow the event should not apply. Mr Ward will have the benefit of a certificate under the Suitors’ Fund Act 1951 for the costs of the principal claim. In my view, a claims assessor exercising jurisdiction under the MAC Act constitutes a “court” for the purposes of s 6(1) of that Act: cf Australian Postal Commission v Dao (No. 2) (1986) 6 NSWLR 497, per Kirby P at 511 – 14 and McHugh JA at 515 – 6. Of course, he will have to bear the costs of the cross-claim but I would assume that they are relatively modest.

Orders

83 I make the following orders:

(a) An order in the nature of certiorari that the assessment certificate and the determination of the third defendant, the claims assessor, be set aside.

(b) An order in the nature of mandamus remitting Mr Ward’s application for general assessment to the fourth defendant, the Principal Claims Assessor, for allocation by her to a different claims assessor for determination of the application according to law.

(c) The cross-claim filed on 17 August 2009 is dismissed.

(d) Mr Ward is to pay Allianz’s costs. In respect of the costs of Allianz’s claim for relief, I grant him a certificate under s 6 of the Suitors’ Fund Act 1951.

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