Insurance Australia Limited t/as NRMA Insurance v Rababeh

[2022] NSWSC 942

Supreme Court

New South Wales

Medium Neutral Citation:

Insurance Australia Limited t/as NRMA Insurance v Rababeh [2022] NSWSC 942

Hearing dates:

29 April 2022

Date of orders:

15 July 2022

Decision date:

15 July 2022

Jurisdiction:

Common Law

Before:

Harrison AsJ

Decision:

(1) The decision of the third defendant, Tribunal Member Maurice Castagnet, dated 23 August 2021 is set aside.

(2) The matter is remitted to the second defendant, the President of the Personal Injury Commission of New South Wales, for determination according to law.

(3) Costs reserved.

Catchwords:

ADMINISTRATIVE LAW – Judicial Review – Motor Accidents Compensation Act – Treatment dispute – Damages for future care and domestic assistance – Whether Certificate is conclusive evidence of the matters certified within it? – Whether the first defendant was totally or partially incapacitated? – Whether the Tribunal provided adequate reasons? – Decision set aside

Legislation Cited:

Motor Accident Claims Assessment Guidelines, Ch 18

Motor Accidents Compensation Act 1999 (NSW), ss 3, 42, 57, 58, 61, 94,

Personal Injury Commission Act 2020 (NSW), s 42

Personal Injury Commission Rules 2021(NSW), r 78

Cases Cited:

Allianz Australia Insurance Limited v Serria Girgis & Ors [2011] NSWSC 1442; (2011) 59 MVR 548

Attorney-General (NSW) v Quin (1990) 170 CLR; [1990] HCA 21

Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280

Kallouf v Middis [2008] NSWCA 61

Mead v Kerney [2012] NSWCA 215

Medlin v State Government Insurance Commission (1995) 182 CLR 1

Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259

Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11

Pham v NRMA Insurance Ltd [2014] NSWCA 22

Pham v Shui [2006] NSWSCA 373; (2006) 47 MVR 23

Scott v Insurance Australia Limited [2016] NSWSC 1249; (2015) 72 MVR 300

Zahed v IAG Limited t/as NRMA Insurance (2016) MVR 1; [2016] MSWCA 55

Category:

Principal judgment

Parties:

Insurance Australia Limited t/as NRMA Insurance (Plaintiff)
Dana Rababeh (First Defendant)
The President of the Personal Injury Commission of New South Wales (Second Defendant)
Maurice Castagnet, in his capacity as a Member of the Personal Injury Commission of New South Wales (Third Defendant)

Representation:

Counsel:
K. Rewell SC (Plaintiff)
M. Robinson SC with J. Gumbert (First Defendant)

Solicitors:
Hall & Wilcox Lawyers (Plaintiff)
Harrow Legal (First Defendant)

File Number(s):

2021/286768

Publication restriction:

Nil

Judgment

1. HER HONOUR: This matter involves the Judicial Review of a decision of a Member of the Personal Injury Commission of New South Wales.

2. The plaintiff is Insurance Australia Limited trading as NRMA insurance (“the insurer”). The first defendant is Dana Rababeh. The second defendant is the President of the Personal Injury Commission of New South Wales. The third defendant is Maurice Castagnet, in his capacity as a Member of the Personal Injury Commission of New South Wales (“the Member”). The second and third defendants made submitting appearances. For convenience I will refer to the first defendant as “the defendant”.

3. The parties relied on a court book (“Ex A”).

4. By way of amended summons filed 21 October 2021, the insurer relevantly seeks the following orders:

1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the Certificate of the third defendant, Maurice Castagnet, in his capacity as a member of the Personal Injury Commission of NSW, dated 23 August 2021 issued under the authority of the second defendant purportedly in accordance with s 94(5) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”).

2. An order that the matter be remitted to the second defendant for assessment of the first defendant’s damages by a different Member according to law.

3. …

Background

5. On 7 February 2017, the first defendant was involved in a motor accident. The insurer is the third-party insurer of the vehicle at fault in the accident. The first defendant alleges as a result of the accident she suffered physical and psychiatric injuries.

6. The first defendant made a claim against the insurer for damages under the MACA: Annexures A and B to the Affidavit of Marcel Joukhador sworn on 9 December 2021 (“Joukhador Aff 9 December 21”). The insurer wholly admitted liability but disputed that the first defendant suffered a greater than 10% whole person impairment (“WPI”) as a result of the injuries she alleged she had sustained in the accident (“impairment dispute”) and the allegation that since the accident the first defendant has required, and will require in the future, domestic assistance as a result of her injuries (“treatment dispute”).

7. Both of these disputes were originally assessed by the Medical Assessment Service (“MAS”), a division of the Dispute Resolution Service (“DRS”) of the State Insurance Regulatory Authority (“SIRA”). The MAS became the Personal Injury Commission of NSW on 1 March 2021.

8. In each dispute there were separate assessments relating to the first defendant’s alleged physical and psychiatric injuries. The parties agreed that the first defendant is not entitled to damages for non-economic loss.

9. There are a number of earlier assessments that I need to briefly refer.

The impairment dispute

10. On 15 October 2019, the first defendant was assessed by MAS Assessor Dr Sharon Reutens, psychiatrist, (“Assessor Reutens”) in relation to the psychiatric injuries she allegedly suffered as a result of the accident.

11. Assessor Reutens issued a certificate under Part 3.4 of the MACA dated 3 November 2019 (“Reutens Certificate”) and accompanying reasons (Annexure E to Joukhador Aff 9 December 21). Assessor Reutens certified that the first defendant has a “persistent depressive disorder” with “anxious distress” caused by the accident. She assessed the first defendant’s WPI arising from her psychiatric injuries at 6%.

12. On 23 October 2019, the first defendant was assessed by MAS Assessor Dr David Gorman (“Assessor Gorman”) in relation to the physical injuries she allegedly suffered as a result of the Accident.

13. Assessor Gorman issued a certificate under Part 3.4 of the MACA dated 10 December 2019 (“Gorman Certificate”) and accompanying reasons (Annexure D to Joukhador Aff 9 December 21). Assessor Gorman certified that the first defendant suffered from injuries to her neck, back and both shoulders that were causally related to the Accident. Assessor Gorman assessed the insurer’s WPI arising from her physical injuries at 10%.

The treatment dispute

14. The treatment dispute as recorded by Assessor Thomas Rosenthal (“Assessor Rosenthal”) was:

“Domestic assistance – causation – the physical injuries give rise to a need for domestic assistance MVA to the date of the MAS Assessment,

Domestic assistance – causation – the physical injuries give rise to a need for domestic assistance from the date of the MAS Assessment for a period of 12 months.”

15. The insurer only agreed that the first dot point was correct. Under the heading Treatment Disputes to be assessed, Assessor Rosenthal records:

“2. The following treatment and/or care disputes were referred by DRS for assessment:

…

Domestic assistance – causation – the physical injuries give rise to a need for domestic assistance from the date of the MAS assessment for a period of 12 months and whether this assistance is casually related.

Domestic assistance – reasonable and necessary – 0-14 hours per week (and every frequency and duration in-between) of domestic assistance arising from the physical injuries caused by the motor vehicle accident and relating to assistance, from the date of the MAS Assessment for a period of 12 months.”

16. Under the heading ‘Determinations’ Assessor Rosenthal records:

“…

Accepting that she still could be having some symptoms from her soft tissue injuries, it is unlikely that the physical injuries themselves are causing her any major impact in regards to her domestic chores. The soft tissue injury symptoms are expected to completely resolve within the next 12 months in my opinion.

Thus, in terms of the treatment disputes, I would accept that there may have been some minimal impact on her domestic chores from the soft tissue injuries between the motor vehicle accident to the date of the MAS assessment, I would accept that there would be very minimal impact on domestic chores from the physical injuries caused by the accident for the next 12 months. Certainly the injuries will resolve and there is no long term need for domestic assistance for the claimant’s life expectancy.

Conclusion

Thus, the dispute in regards to domestic assistance from the date of motor vehicle accident to the date of MAS assessment is casually related in relation to the claim for domestic assistance. The dispute of domestic assistance from the date of MAS assessment is reworded for a period of 12 months and is casually related.”

17. On 17 February 2021, the first defendant was examined by Assessor Rosenthal in relation to the physical injuries she allegedly suffered as a result of the Accident.

18. Assessor Rosenthal was required to conduct an assessment of the medical assessment matters specified in s 58(1)(a) and (b) of the MACA namely whether the proposed domestic assistance for the first defendant was reasonable and necessary and/or causally related to the accident.

19. Assessor Rosenthal did not assess the number of hours per week of domestic assistance that were and will be reasonable and necessary to meet the first defendant’s needs, deferring to an assessment by an occupational therapist on that matter, as was appropriate for him to do.

20. Assessor Rosenthal issued a certificate under Part 3.4 of the MACA dated 19 February 2021 (“Rosenthal Certificate”) and accompanying reasons: Annexure T to Joukhador Aff 9 December 21. Assessor Rosenthal certified that the physical injuries caused by the accident gave rise to a need for domestic assistance from the date of the Accident to 17 February 2021. Assessor Rosenthal further certified that the injuries would give rise to a need for domestic assistance from 17 February 2021 for a period of 12 months, that is, up to 17 February 2022.

21. On 19 March 2021, the first defendant was examined by MAS Assessor Dr Matthew Jones, psychiatrist, (“Assessor Jones”) in relation to the psychiatric injuries she allegedly suffered as a result of the accident.

22. Assessor Jones was asked to assess whether the first defendant has required, and/or will require in the future, any number of hours of domestic assistance up to a maximum of 14 hours per week, as a result of a psychiatric injury, whether that assistance is related to the Accident and whether it is reasonable and necessary.

23. Assessor Jones issued a certificate under Part 3.4 of the MACA dated 19 March 2021 (“Jones Certificate”) and accompanying reasons (Annexure U to Joukhador Aff 9 December 21). Assessor Jones determined that the first defendant has not required in the past, and will not require in the future, any domestic assistance as a result of psychiatric injury.

The decision under review

24. The first defendant’s claim was referred to Maurice Castagnet (the Member), in his capacity as a Member of the Personal Injury Commission, for assessment of the damages to be awarded to the first defendant.

25. On 5 May 2021, the first defendant lodged further submissions. On 17 May 2021, the insurer lodged further submissions. On 20 May 2021, the assessment conference (“Assessment Conference”) took place.

26. On 23 August 2021, the Member issued a certificate dated 23 August 2021 (“Castagnet Certificate”) and accompanying reasons, in accordance with s 94(5) of the MACA.

27. Under the heading ‘My findings’ the Member made the following findings (Ex A, 47):

“[117]   I am satisfied that the claimant's evidence, the above medical evidence, the clinical records of the treating doctors, establish that the claimant has suffered significant injuries to the neck, shoulders, and the lower back, resulting in persistent pain and restrictions in the neck, shoulders, and lower back.

[118]   In coming to that conclusion, I preferred the evidence of Dr Alameddin, Dr McKechnie, Assessor Gorman, and Dr Davis. Dr Keller did not disagree with their views.

[119]   Considering the claimant's evidence and the evidence of Assessor Reutens, I am satisfied that the ongoing physical disabilities have created a significant adverse psychiatric reaction.

[120]   I do not accept Dr Pierides' opinion to the extent that he believed that the claimant's injuries to her cervical spine, right shoulder, and lumbar spine were a mere possibility, mild in nature and lasting for about four weeks. His opinion is inconsistent with the opinions of Dr Alameddin, Dr McKechnie, Assessor Gorman, and Dr Davis, and with the claimant's evidence of continuing disability.

[121]   I am satisfied that the physical and psychiatric injuries and ongoing disabilities have created a need for past and future medical treatment and care.

[122]   I am satisfied that those disabilities have impacted on her past ability to work and will continue to impact on her future earning capacity.

[123]   I am satisfied that the claimant will in future be restricted to carrying out work that does not involve prolonged standing or repetitive movements and that she will not be able to pursue a career in hairdressing.

[124]   I am satisfied that there are no pre-existing injuries or ailments that have had an impact on the claimant’s impairments and disabilities caused by the accident.”

28. Under the heading ‘What loss of income has the claimant suffered to date as a result of her injuries?’ the Member stated (Ex A, 49):

[141]   I have already made a finding that the claimant's disabilities and impairments arising from her injuries have impacted on her past ability to work. I am satisfied that but for the accident; the claimant would have commenced employment as a full-time hairdresser at Jocelyne Chidiac Hair sometime in late February 2017:

[142]   I calculate working 40 hours full-time per week at $25 per hour equates to $1,000 gross per week. That in turn equates to about $817 net per week.:

[143]   I therefore propose to allow the claimant past economic loss from 27 February 2017 to the date of the assessment conference at the rate of $800 net per week. The period is 220 weeks, and the total loss equates to $176,000. ·

[144]   I make an award of $176,000 for the claimant's past economic loss.

29. Under the heading ‘What were the claimant’s most likely future circumstances but for the motor accident and what loss of income is the claimant likely to suffer in the future cause of her injuries?’ the Member stated:

“[146]   In her updated submissions and schedule of damages, the claimant makes a claim for future economic loss in the amount of $250 per week until age 67 to a total of $166,387. Alternatively, the claimant seeks a buffer of $100,000. For reasons set out below, l do not believe this amount would adequately compensate the claimant.

[147]   In cases such as Medlin v State Government Insurance Commission (1995) 182 CLR 1 and Husher v Husher (1999) 197 CLR 138, the High Court confirmed that the issue to be determined is whether the claimant has sustained a loss or diminution in her earning capacity and, if so, whether that loss or diminution will result in economic loss. In calculating any such loss, l must have regard to the provisions of s 126 of the Act.

[148]   The insurer concedes that there has been a modest diminution of earning capacity.

[148]   I find that the claimant's most likely future circumstances, but for the accident, would be that she would have continued her career path as a hairdresser and beauty therapist, and may have established her own business.

[149]   l have already made a finding, based on the totality of the evidence, that the claimant's disabilities and impairments arising from her injuries have impacted on her past ability to work and will continue to impact on her future earning capacity.

[151]   I have not been assisted by a vocational assessment, but it appears to me that the claimant's employment prospects will be hampered not only by her injuries but also her English language difficulties. It is difficult to conceive of an occupation that the claimant would be fit to perform on a regular and reliable basis.

[152]   In all the circumstances and taking into account additional vicissitudes of running her own business, I consider that the claimant has sustained a diminution in her earning capacity of at least 50%. Based on earnings of $800 net week that she would have earned shortly after the accident as a base level hairdresser, that equates to a loss of $400.00 net week until retirement.

[153]   The claimant will be 40 years old in November 2021. Assuming that she would work until age 67, the 5% multiplier for 27 years is 783. $400 net per week x 783 x .85 (considering vicissitudes at 15%) = $266,220.

[154]   Based on my findings, I make an award of future economic loss of $266,220.

[155]   I also allow superannuation contributions on half of that amount, on the basis that the claimant intended to conduct her own business. I make an award for the future loss of superannuation entitlements of $266,220 x 11.5% x 50%=$15,307.65.”

30. Under the heading ‘Is the claimant likely to require attendant care services in the future because of her injuries and if so, will such care be compensable?’ the Member stated:

“[164]   On 19 February 2021, MAS Assessor Rosenthal issued a certificate making a determination that the claimant’s physical injuries gave rise to a need for domestic assistance for a period of 12 months from the date of his assessment. His determination was made in response to a specific question framed within that parameter.”

31. The Member awarded damages to the first defendant in the total sum of $619,052.55 plus costs. This sum included:

1. $61,116 for future care, on the basis that that the first defendant has a need for domestic assistance of 6 hours per week which will continue for 5 years from the date of the assessment, and which will be provided commercially;

2. $176,000 for past loss of earnings; and

3. $266,220 for future loss of earnings

32. The insurer contends that the Member’s Certificate is affected by legal error and seeks orders to set it aside.

Relevant Legislation

33. I shall briefly refer the relevant provisions of the Motor Accidents Compensation Act statutory scheme, in particular attendant services.

34. The word “treatment” is defined in s 42 of the MACA to include “the provision of attendant care services”, which in turn is defined in s 3 of the MACA to include the provision of domestic assistance.

“42 Definitions

In this Chapter—

…

‘treatment’ means--

(a) medical treatment, or

(b) …

(c) the provision of rehabilitation services, or

(d) the provision of attendant care services, or

(e) …

3 Definitions

In this Act—

‘attendant care services’ means services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”

35. Section 57 of the MACA provides definitions for the terms “medical assessment matters”, “medical assessor” and “medical dispute” as follows:

“57 Definitions

In this Part--

‘medical assessment matters’ means any of the matters referred to in section 58.

‘medical assessor’ means a person appointed under the Personal Injury Commission Act 2020 as a medical assessor for the purposes of this Act.

‘medical dispute’ means a disagreement or issue to which this Part applies.”

36. The “medical assessment matters” that may be referred for assessment are set out in s 58 of the MACA. Section 58 reads:

“58 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,

…

(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%.

…”

37. Under s 61 of the MACA, a Certificate as to a “medical assessment matter” is conclusive evidence of the matter certified in any assessment of damages by the Personal Injury Commission. Section 61 reads:

“61 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 the Commission in respect of the claim concerned.

…

(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.

…”

38. Section 94 of the MACA outlines the tasks that the Personal Injury Commision is to undertake when assessing a claim under the MACA. It reads:

94 Assessment of Claims

(1) The Commission is, in respect of a claim referred to the Commission for assessment, to make an assessment of--

…

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

(2) Such an assessment is to be made having regard to such information as is conveniently available to the Commission, 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 Commission must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment.

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

39. The SIRA published the Motor Accident Claims Assessment Guidelines (“Guidelines”) under s 69(1) of the MACA for or with respect to procedures for the assessment of claims under Part 4.4 of the MACA relating to the Claims Assessment and Resolution Service (“CARS”). They apply in respect of a motor accident occurring on or after 5 October 1999 and before 1 December 2017. Chapter 18 of the Guidelines provides:

“Chapter 18 - Certificate and statement of reasons

18.1 Upon completion of the assessment the Assessor is to send a certificate under section 94 or 96 to CARS.

…

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.

…

18.6 The Assessor may with the consent of both parties provide reasons orally at the Assessment Conference provided that, in accordance with section 94(4) and (5), a certificate is issued with a brief written statement summarising those reasons.

40. The first defendant referred to the Personal Injury Commission Act 2020 (NSW) which came into force on 11 August 2020. Section 42 of the Personal Injury Commission Act speaks to the guiding principle to be applied to practice and procedure within the Personal Injury Commission. It relevantly reads:

“42 Guiding principle to be applied to practice and procedure

(1) The ‘guiding principle’ for this Act and the Commission rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.

(2) The Commission must seek to give effect to the guiding principle when it—

(a) exercises any power given to it by this Act or the Commission rules, or

(b) interprets any provision of this Act or the Commission rules.

(3) …”

41. For all matters from 1 March 2021, practice and procedure is governed by the Personal Injury Commission Rules 2021 (“PIC Rules”). The first defendant makes reference to r 78 of the PIC Rules which delineates some requirements for a statement of reasons accompanying a decision with similar language to Chapter 18 of the Guidelines. It relevantly reads:

“78 Statement of reasons for decision

(1) …

(2) A determination of the appropriate decision-maker in applicable proceedings to which this rule applies is to be accompanied by a brief statement of the appropriate decision-maker’s reasons for the determination that includes the following—

(a) the appropriate decision-maker’s findings on material questions of fact, referring to the evidence or other material on which those findings were based,

(b) the appropriate decision-maker’s understanding of the applicable law,

(c) the reasoning processes that led the appropriate decision-maker to the conclusions made.

(3) Without limiting subrule (2), the reasons are to be stated sufficiently, in the opinion of the appropriate decision-maker, to make the parties to the proceedings aware of the appropriate decision-maker’s view of the case made by each party.”

Grounds of Judicial Review

42. The insurer raised 4 grounds of judicial review. They are as follows.

Ground 1 – damages for future care and domestic assistance

43. The Member erred in law in awarding damages for future care and domestic assistance after 17 February 2022.

44. The Member awarded damages for future care for 5 years from the date of his award, that is, to 23 August 2026.

45. The Member assessed damages for future domestic assistance based on a need of 6 hours per week at a commercial cost of $44 per hour ($264 per week).

46. The award for future care was $61,116. Had the Member limited his award for future care to a period from 23 August 2021 to 17 February 2022, as he was bound to do, the award would have been for 25 weeks at $264 per week or $6,600.

47. The Member’s error in awarding damages for future assistance beyond 17 February 2022 resulted in an over award of damages under this head of $54,516. The error is not de minimus.

Ground 2 – Past loss of earnings

48. The Member erred in law in assessing damages for past loss of earnings from the date of the Accident on 7 February 2017 to the date of his assessment on the basis that the first defendant was totally incapacitated for all forms of work throughout that period, when there was no medical evidence to support that finding, and the medical evidence accepted by him is to the contrary.

49. It is an error of law to assess damages on the basis of total incapacity if there is no medical evidence to support such a finding: Kallouf v Middis [2008] NSWCA 61 (“Kallouf”).

Ground 3 – Partial incapacity

50. The Member erred in law in failing to consider whether the first defendant was only partially incapacitated for work for some or all of the period from the date of Accident to the date of the Assessment Conference, despite that matter being in issue between the parties.

Ground 4 – adequacy of reasons

51. The Member erred in law in awarding damages for future loss of earnings of almost $100,000 more than the amount claimed by the first defendant without providing adequate reasons for making such an award.

52. I will deal with the Judicial Grounds of Review in chronological order but with Ground 2 and 3 being dealt with together.

Judicial Review Ground (1)

53. The insurer’s first ground of judicial review was that the Member erred in law in awarding the first defendant damages for future care and domestic assistance after 17 February 2022.

The insurer’s submissions

54. The Member awarded damages to the first defendant for future care for 5 years from the date of his award, that is, to 23 August 2026.

55. Pursuant to s 61(2) of the MACA, a certificate as to a "medical assessment matter" is conclusive evidence of the matter certified in any assessment of damages. In the insurer’s submission, the Rosenthal Certificate and the Jones Certificate finally determine "whether any such treatment relates to injury caused by the motor accident” and are conclusive evidence as to the matters certified.

56. The insurer submitted that the first defendant misunderstood the Rosenthal Certificate and suggested that it may be that there is a similar misunderstanding in the Member’s reasons at [164]. The insurer noted that the Member stated at [164] of his reasons (Ex A, 51):

“On 19 February 2021, MAS Assessor Rosenthal issued a certificate making a determination that the claimant's physical injuries gave rise to a need for domestic assistance for a period of 12 months from the date of his assessment. His determination was made in response to a specific question framed within that parameter.”

57. Both the first defendant and the Member appear to have failed to appreciate that the question referred to Assessor Rosenthal by the DRS, to which the matter certified relates, was in the following terms:

“Whether the physical injuries give rise to a need for domestic assistance from the date of the MAS Assessment, and ongoing for the remainder of the claimant's life expectancy, and whether this assistance is causally related to the injury sustained in the subject accident.”

58. In any event, the meaning of the matter certified by Assessor Rosenthal, and the reason he "reworded" the question referred to him, are set out Assessor Rosenthal's reasons at p 6-7. They are unambiguous (Annexure T to Joukhador Aff 9 December 21 at [21]) and are as follows:

“Accepting that [the first defendant] still could be having some symptoms from her soft tissue injuries, it is unlikely that the physical injuries themselves are causing her any major impact in regards to her domestic chores. The soft tissue injury symptoms are expected to completely resolve within the next 12 months in my opinion.

Thus, in terms of the treatment disputes, I would accept that there may have been some minimal impact on her domestic chores from the soft tissue injuries between the motor vehicle accident to the date of the MAS assessment. I would accept that there would be very minimal impact on domestic chores from the physical injuries caused by the accident for the next 12 months. Certainly the injuries will resolve and there is no long term need for domestic assistance for the claimant's life expectancy.

Conclusion

Thus, the dispute in regards to domestic assistance from date of motor vehicle accident to the date of the MAS assessment is causally related in relation to the claim for domestic assistance. The dispute of domestic assistance from the date of MAS assessment is reworded for a period of 12 months and is causally related.

Both disputes are referred to an occupational therapist to determine reasonable and necessary treatment.”

59. It is clear from these paragraphs of Assessor Rosenthal's reasons that the first defendant will not require domestic assistance for the remainder of her life expectancy, but for the next 12 months only.

60. The Member assessed damages for future domestic assistance based on a need of 6 hours per week at a commercial cost of $44 per hour ($264 per week). The award for future care was $61,116. Had the Member limited his award for future care to a period from 23 August 2021 to 17 February 2022, as the insurer submitted that he was bound to do, the award would have been for 25 weeks at $264 per week or $6,600.

61. Therefore, the Member’s error in awarding damages for future assistance beyond 17 February 2022 resulted in an over-award of damages under this head of $54,516, and that error is not de minimus.

The first defendant’s submissions

62. Assessor Rosenthal’s task was to conduct an assessment of the medical assessment matters specified in s 58(1)(a) and (b) of the MACA, namely whether the proposed “treatment” (in this case, domestic assistance) was reasonable and necessary and/or causally related to the accident.

63. The distinction between the conclusive nature of the “Certificate” on the one hand, compared to the “reasons” on the other hand, has been considered in many cases.

64. The first defendant referred first to Pham v Shui [2006] NSWSCA 373; (2006) 47 MVR 231 (“Pham v Shui”), in which the Court of Appeal (per Santow, Bryson JJA and Brereton J agreeing) said at [90]–[91]:

“[90] This 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.

[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).”

65. The first defendant then referred to Allianz Australia Insurance Limited v Serria Girgis & Ors [2011] NSWSC 1442; (2011) 59 MVR 548 (“Girgis”), where Adams J said, at [32]:

“[32] …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.”

66. His Honour went on to say, with respect specifically to “treatment” disputes such as the present one at [48]:

“[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’. 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.”

67. The first defendant noted that Girgis has been cited with approval and applied numerous times, including Scott v Insurance Australia Limited [2016] NSWSC 1249; (2015) 72 MVR 300 as per Campbell J at [67].

68. The only matter that is conclusive evidence is the medical assessment matter that is certified in the certificate in terms, and the reasons are not conclusive evidence at all.

69. The insurer had sought assessment of domestic assistance requirements “for life”.

70. However, by the time the dispute was referred to Assessor Rosenthal, it was in somewhat narrower terms. At page 2 of the Rosenthal Certificate dated 17 February 2021, Assessor Rosenthal set out the statutory task that was before him. In relation to domestic assistance, Assessor Rosenthal identified what he was required to assess, where he stated (Annexure T to Joukhador Aff 9 December 21 at [2]):

“Domestic assistance – causation – the physical Injuries give rise to a need for domestic assistance from the date of the MAS Assessment for a period of 12 months and whether this assistance is causally related.

Domestic assistance – reasonable and necessary 0 – 14 hours per week (and every frequency and duration in-between) of domestic assistance arising from the physical Injuries caused by the motor vehicle accident and relating to assistance, from the date of the MAS Assessment for a period of 12 months.”

71. The insurer referred to an email from the Personal Injury Commission dated 12 November 2021 annexed to its submissions. At the hearing of this judicial review, the first defendant objected to the admissibility of this evidence on the basis that it was not before the decision maker at the time of the decision under review and therefore it was not properly admissible in these judicial review proceedings. I agree that this email was not before the Member at the time of his decision, I disallow this email being relied upon in this judicial review.

72. In any event, Assesor Rosenthal apprehended that he was assessing a dispute for a 12-month period into the future, and that is abundantly clear in the reasons attached to his Certificate. If the insurer took issue with the dispute that was ultimately assessed by Assessor Rosenthal, it should have taken steps to remedy the situation rather than doing nothing until after receipt of an unfavourable claims assessment, and then troubling this Court seeking relief.

73. Regardless of whether or not the dispute was originally framed by the insurer to be “for life”, the first defendant noted that the insurer accepted that Assessor Rosenthal ultimately did not issue a certificate in those terms. In the first defendant’s submission the “reworded” certificate only certified as to causation of the first defendant’s domestic assistance for a period of 12 months (ie, to 17 February 2022).

74. Critically, and contrary to the insurer’s submissions, the Rosenthal Certificate does not contain any words to the effect “and not beyond that date.” The Rosenthal Certificate was completely silent on the requirement (or absence of requirement) for care beyond 17 February 2022.

75. It would have been simple enough for Assessor Rosenthal to answer the remainder of the original dispute (if he had been aware of the scope of the original dispute, which is unclear) in the Certificate by saying something like “the domestic assistance from 17 February 2022 and for the remainder of the first defendant’s life is not causally related to the accident” (if that is what he intended). However, he did not do this.

76. The insurer’s submissions require reference to not only the reasons of the decision, but also to other extraneous material including emails from the Personal Injury Commission, in an attempt to try and “flesh out” and expand the Rosenthal Certificate. The first defendant submitted that this is impermissible, and that the Rosenthal Certificate alone is conclusive evidence of the matters certified.

77. It would have been open to the insurer to demand that Assessor Rosenthal complete the task that was allocated to him and assess the entirety of the dispute that was before him but failed to do so.

78. In particular, the insurer failed to take any of the following steps that were then available, namely:

1. Writing to SIRA and requesting that the remainder of the dispute be assessed.

2. Asking Assessor Rosenthal to re-issue the Certificate having regard to the principles in Minister for Immigration and Multicultural Affairs v Bhardwaj (2002) 209 CLR 597; [2002] HCA 11.

1. Lodging an application for review under section 63 of the MAC Act.

2. Seeking judicial review.

The insurer’s submissions in reply

79. The first defendant's submissions contend that the question referred to Assessor Rosenthal for determination is irrelevant, and that the only matter that is conclusive evidence is the medical assessment matter certified in the Rosenthal Certificate in terms.

80. The only words in the Rosenthal Certificate that amount to conclusive evidence in relation to future domestic assistance are:

“The following treatments, namely:

…

Domestic assistance – causation – the physical injuries give rise to a need for domestic assistance from the date of the MAS assessment for a period of 12 months

RELATE TO THE INJURIES caused by the motor accident.”

81. Further, on this argument, the terms of the Rosenthal Certificate relating to future domestic assistance may (or may not) be ambiguous: does Assessor Rosenthal's determination mean that the first defendant's physical injuries give rise to a need for domestic assistance from the date of his assessment for a period of 12 months only, or is the meaning that Assessor Rosenthal only considered a period of 12 months from the date of his assessment, and has made no determination as to any need for domestic assistance after that period of 12 months?

82. The first defendant’s approach is adopted, the preferred meaning to be given to the terms of the matter certified is that the first defendant's physical injuries give rise to a need for domestic assistance for only 12 months after the date of Assessor Rosenthal's assessment. There is nothing in the words of the Certificate set out above from which it could be inferred that Assessor Rosenthal limited his assessment of the first defendant's future care needs to 12 months from the date of the assessment, only that he determined that any need for assistance will not persist beyond 12 months.

83. However, the insurer noted that the first defendant seeks to rely on Assessor Rosenthal’s "re-wording" of the question referred to him for determination, to extract the opposite meaning of the terms of the matter certified. The insurer submitted that this contradicts the first defendant's own assertion that only the words of the matter certified can be taken into account.

84. If recourse is to be had to any other part of the Rosenthal Certificate (and accompanying reasons), then the Rosenthal Certificate must be read as a whole, and the reasons used to understand the terms of the matter certified, set out above.

85. The insurer referred to the Rosenthal Certificate where under the heading "Treatment Disputes to be assessed" Assessor Rosenthal sets out the treatment and/or care disputes that "were referred by DRS for assessment": Rosenthal Certificate p 2. However the third and fourth disputes there set out, are not in the terms referred by DRS for assessment, as the email attached to the insurer’s submissions in reply demonstrates.

86. The third and fourth disputes referred by DRS for assessment were for a period "ongoing for the remainder of the first defendant's life expectancy", not for a period of 12 months from Assessor Rosenthal's assessment.

87. In the insurer’s submission it is self-evident that Assessor Rosenthal was aware that the disputes referred to him relevantly required his determination of whether the first defendant had a need for domestic assistance "ongoing for the remainder of (her) life expectancy". For reasons that may have seemed logical to him, Assessor Rosenthal "re-worded" the relevant question as to the need for future domestic assistance. While the reasons for this are set out in the penultimate sections of Assessor Rosenthal's reasons, entitled "Determinations" and "Conclusion" (pp.6-7), the "re-worded" question appears much earlier (p.2).

88. The insurer submitted that the "re-worded" question is no more part of the matter certified than other sections of Assessor Rosenthal's reasons are part of the matter certified.

89. The terms of the matter certified are ambiguous, recourse may be had to Assessor Rosenthal's reasons to resolve the ambiguity. Once recourse is had to the reasons as a whole, any ambiguity in the matter certified is resolved.

Resolution

90. The insurer’s first ground of judicial review centres the Member’s award of damages for future care and domestic assistance after 17 February 2022.

91. In essence, the insurer argues that pursuant to s 61(1) of the MACA the Rosenthal Certificate is conclusive evidence of the matters certified within it, and one of those matters is that the first defendant’s injuries occasioned in the accident gave rise to a need for domestic assistance only until 17 February 2022, and therefore the Member’s award of damages beyond this date is an error of the kind that is reviewable by this Court.

92. The first defendant however, with reference to Pham v Shui and Girgis, argues that while she accepts that the Rosenthal Certificate is conclusive evidence of the matters certified within it, what is certified is no more than those words contained on the Certificate, and does not include the accompanying reasons, and therefore the Member was entitled to award damages beyond 17 February 2022.

93. The Rosenthal Certificate dated 17 February 2021 relevantly reads (Annexure T to the Joukhador Aff 9 December 21 p1):

“The following treatments, namely:

Domestic assistance – causation – the physical injuries give rise to a need for domestic assistance MVA to the date of the MAS Assessment

Domestic assistance – causation – the physical injuries give rise to a need for domestic assistance from the date of the MAS Assessment for a period of 12 months

RELATE TO THE INJURIES caused by the motor accident.

Details of the assessment are set out in the reasons below, which form part of this certificate.”

(my emphasis)

94. It is the emphasised portion that the first defendant disagrees with.

95. In reasons accompanying the Rosenthal Certificate, Assessor Rosenthal records the relevant questions referred by DRS as being (Annexure T to the Joukhador Aff 9 December 21 at p2):

“2. The following treatment and/or care disputes were referred by DRS for assessment:

…

Domestic assistance – causation – the physical injuries give rise to a need for domestic assistance from the date of the MAS Assessment for a period of 12 months and whether this assistance is causally related

Domestic assistance – reasonable and necessary – 0-14 hours per week (and any frequency and duration in between) of domestic assistance arising from the physical injuries caused by the motor vehicle accident and relating to assistance, from the date of the MAS assessment for a period of 12 months.”

(my emphasis)

96. The critical issue of this dispute is whether Assessor Rosenthal meant to say, as the insurer contends, that the first defendant is only entitled to damages for domestic assistance for the next 12 months, or was he intending, as the first defendant contends, to limit his assessment of damages to that period and say nothing about whether assistance after that period has elapsed is required? In my opinion, are several pieces of evidence which show that the insurer’s reading is to be preferred.

97. The first of these is the rest of the reasons, which, as is elucidated by the second emphasised passage above, form part of the Rosenthal Certificate. Following the heading “Determinations 21. Causation and reasons” on p 6 of Assessor Rosenthal’s reasons, he relevantly states:

“Determinations

[21]    Causation and reasons

…

Accepting that she could be having some symptoms from her soft tissue injuries, it is unlikely that the physical injuries themselves are causing her any major impact in regards to her domestic chores. The soft tissue injury symptoms are expected to completely resolve within the next 12 months in my opinion.

Thus, in terms of the treatment disputes, I would accept that there may have been some minimal impact on her domestic chores from the soft tissue injuries between the motor vehicle accident to the date of the MAS assessment, I would accept that there would be very minimal impact on domestic chores from the physical injuries caused by the accident for the next 12 months. Certainly the injuries will resolve and there is no long term need for domestic assistance for the claimant’s life expectancy.

Conclusion

Thus, the dispute in regards to domestic assistance from date of the motor vehicle accident to the date of MAS assessment. The dispute of domestic assistance from the date of MAS assessment is reworded for a period of 12 months and is causally related.

…”

(my emphasis)

98. As is evident from the emphasised passages, Assessor Rosenthal appears to be of the opinion that the first defendant’s injuries will have completely resolved by 17 February 2022 and appears to have acknowledged rewording the question referred to him. I agree with the insurer’s oral submission that given the ambiguity in the Rosenthal Certificate on its terms, regard should be had to the reasons to interpret exactly what Assessor Rosenthal certified, and the reasons support the insurer’s submission that the first defendant’s injuries occasioned in the accident gave rise to a need for domestic assistance only until 17 February 2022: T16.10.

99. This is bolstered by reference to the Jones Certificate, as Assessor Jones was referred the same question as Assessor Rosenthal save that Assessor Jones was assessing psychiatric not physical injuries, and in the reasons accompanying the Jones Certificate, Assessor Jones cites the relevant questions referred by DRS as being (Annexure U to the Joukhador Aff 9 December 21 at p2):

“[2]    The following treatment and/or care disputes were referred by DRS for assessment:

…

Whether the psychiatric injuries give rise to a need for domestic assistance from the date of the MAS assessment, and ongoing for the remainder of the claimant’s life expectancy, and whether this assistance is causally related to the injuries sustained in the subject accident

Whether 0 to 14 hours per week (and any frequency and duration in between) of domestic assistance arising from the psychiatric injuries caused by the motor vehicle accident and relating to assistance, from the date of the MAS assessment, and ongoing for the remainder of the claimant’s life expectancy is reasonable and necessary in relation to the injuries sustained in the subject accident.”

(my emphasis)

100. Finally, and crucially, the Member states the following at [164] of his reasons (Ex A, 51):

“[164]    On 19 February 2021, MAS Assessor Rosenthal issued a certificate making a determination that the claimant’s physical injuries gave rise to a need for domestic assistance for a period of 12 months from the date of his assessment. His determination was made in response to a specific question framed within that parameter.”

101. In this paragraph the Member appears to indicate that his understanding is that Assessor Rosenthal made an assessment of the likelihood that the first defendant required attendant care services for 12 months from the date of his assessment only, as that was the question referred to him. As has been shown above, this is not the case. Rather Assessor Rosenthal appears to have altered the words of the question referred to him to reflect his opinion on the resolution of the first defendant’s injuries.

102. Given both parties accept that the Rosenthal Certificate is conclusive evidence of the matters certified within it, and given my opinion that one of those matters is that the first defendant’s injuries occasioned in the accident gave rise to a need for domestic assistance only until 17 February 2022, the Member has made an error in awarding damages for future care and domestic assistance after that date. On this basis, the decision of the Member should be set aside as he misconstrued his statutory duty.

Judicial Review Grounds (2)-(3) – Past loss of earnings, partial incapacity

103. Given the similarity of these two grounds of review, I shall deal with them together here.

104. The insurer’s second ground of judicial review is that the Member erred in law in assessing damages for past loss of earnings from the date of the accident to the date of his assessment on the basis that the first defendant was totally incapacitated for all forms of work throughout that period, when there was no medical evidence to support that finding, and the medical evidence accepted by him is to the contrary.

105. The insurer’s third ground of judicial review is that the Member erred in law in failing to consider whether the first defendant was only partially incapacitated for work for some or all of the period from the date of accident to the date of the Assessment Conference, despite that matter being in issue between the parties.

The insurer’s submissions

106. There was evidence before the Member from Dr Davis that the first defendant had been and would continue to be unfit for work as a hairdresser, which was the employment offered to the first defendant two weeks before the accident on 7 February 2017. However, neither Dr Davis nor any other medical expert asserted that the first defendant has been and will be unfit for any form of work.

107. When assessing the damages for past loss of earnings, the Member accepted that, but for the accident, the first defendant would have commenced employment as a hairdresser by 27 February 2017 earning $1,000 gross $817 net per week. The Member then proceeded to award damages for past loss of earnings at the rate of $800 net per week from 27 February 2017 to the date of the assessment.

108. The Member’s award can only be justified on the basis that the first defendant had no effective earning capacity during that period, however there was no medical evidence to that effect.

109. In the first defendant’s response filed on 12 November 2021 she asserted that having proved that she was unfit for work as a hairdresser up to the date of the Assessment Conference, the insurer failed to discharge its onus of proving that there was some other suitable employment that she could undertake that was not merely theoretical, citing Mead v Kerney [2012] NSWCA 215 (“Mead”).

110. However in the insurer’s submission that was not the manner in which the Member approached his assessment of damages for past loss of earnings. The insurer noted that the Member did not specifically mention Mead, nor did he make any finding as to whether that case was relevant, nor did he make any finding as to whether the insurer had or had not discharged an onus akin to the onus referred to in that case.

111. The medical evidence accepted by the Member allowed for a wide range of employment that the first defendant is physically capable of performing. However, the Member simply proceeded directly from his finding that the accident prevented the first defendant from taking up her employment as a hairdresser, to an award of damages equivalent to the total earnings the first defendant could have had, if she commenced and remained in that employment up to the time of the assessment.

112. The insurer submitted that evidence that there were other potential forms of employment for which the first defendant was and is fit, was not considered at all in the Member’s reasons. The insurer further submitted it is an error of law to assess damages on the basis of total incapacity if there is no medical evidence to support such a finding and referred to Kallouf.

The first defendant’s submissions

113. The first defendant submitted that the insurer is mistaken both as to legal onus and factual basis for the asserted legal errors in the Member’s award for past economic loss.

114. The first defendant referred to the Court of Appeal’s decision in Mead (per Macfarlan JA, McColl JA and Sackville AJA agreeing), where the issue of onus was discussed at [32]–[37]:

“[32]    The evidence of what occurred in the period of almost four years prior to the trial strongly supported the primary judge's conclusion that there was, or was likely to be, no practically available work for which the respondent's theoretical residual earning capacity could be exercised. The respondent's evidence was that he had unsuccessfully sought employment in that period. He had sought the assistance of the Commonwealth Rehabilitation Service and Recovery, had undertaken courses to obtain further qualifications, had scoured newspapers and the internet for job advertisements and had even attempted voluntary work at a garage in order to test his ability to work. He had learned to drive an excavator, a forklift, a bobcat and backhoe and also obtained a certificate for the Responsible Service of Alcohol.

[33]    The respondent had a long and satisfactory work history prior to the accident. After the accident, he was, as is evident from the VCC report, eager to obtain any available employment as soon as possible. The appellants did not contradict the respondent's evidence concerning his efforts to obtain employment in the period prior to the trial and did not put to him in cross-examination that the efforts were not genuine or that there were other practical steps he could have taken to obtain employment.

[34]    Moreover, the appellants did not plead that the respondent failed to take reasonable steps to mitigate his loss in the period prior to the trial. In the absence of such a plea and in light of the way that the case was conducted, the inevitable conclusion was that for almost four years prior to the trial the respondent had made bona fide and reasonable efforts, albeit unsuccessful, to find employment. His theoretical residual earning capacity was thus of no value to him in this period. Without evidence that the respondent's condition will improve or be accommodated by future employment markets, it cannot be concluded that his theoretical residual earning capacity will be of any use to him in the future. As observed in the State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [64] and [71], Kallouf at [80] and Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [24], evidence of the position between an accident and trial may be a good indicator of current and future earning potential.

[35]    The appellants submitted that even if it could not be concluded that the respondent would be able to utilise fully his residual earning capacity in the future, it did not follow that there was no significant prospect that he would be able to do so. Accordingly, the appellants submitted that a percentage lower than 40 per cent, say 25 per cent, should be adopted to reflect the prospect of the respondent utilising his earning capacity in the future.”

[36]    The appellants relied in this connection upon the following passage in Kallouf and the statement in Ahmedi v Ahmedi (1991) 23 NSWLR 288 referred to in that passage.

"[49]    Any assessment in respect of the impairment of future earning capacity necessarily involves a consideration of possibilities. In some cases, it would be an error in treating as certain the fact that a plaintiff would lose wages for a period of years from the date of trial. Where incapacity is established as at the date of trial, what is to be evaluated will be the extent of the possibility that the plaintiff may not work in the future or may lose time from work and determine the allowance of proper compensation in respect of that possibility. That evaluation will depend upon the evidence. Where there is no evidence to support a conclusion that, as a matter of certainty, an injured plaintiff would not earn monies from employment for a number of years post trial, then such a finding would involve an error of principle: Ahmedi v Ahmedi (1991) 23 NSWLR 288 (at 302) per Clarke JA, Handley JA agreeing" (see also Allianz v Kerr at [27]).

[37]    I do not accept this submission. As I have pointed out, the evidence demonstrated that the respondent had tried unsuccessfully to obtain employment for nearly four years prior to the trial. The evidence at the trial offered no reason to suggest that the position would be any different in the future. The appellants did not identify any practical job opportunities that were available to the respondent in the past of which he failed to avail himself, or any such opportunities that might arise in the future. In these circumstances, to attribute a percentage chance to the prospect of the respondent obtaining a job in the future would involve mere speculation. There was no tangible basis in the evidence for such an assessment.”

115. The insurer explicitly accepted that the first defendant had adduced evidence below from Dr Davis to the effect that she was unfit for her former employment as a hairdresser. The Member specifically accepted the evidence of Dr Davis at [110] of his reasons.

116. The Member continued at [117]-[124]:

“[117]   I am satisfied that the claimant's evidence, the above medical evidence, the clinical records of the treating doctors, establish that the claimant has suffered significant injuries to the neck, shoulders, and the lower back, resulting in persistent pain and restrictions in the neck, shoulders, and lower back.

[118]   In coming to that conclusion, I preferred the evidence of Dr Alameddin, Dr McKechnie, Assessor Gorman, and Dr Davis. Dr Keller did not disagree with their views.

[119]   Considering the claimant's evidence and the evidence of Assessor Reutens, I am satisfied that the ongoing physical disabilities have created a significant adverse psychiatric reaction.

[120]   I do not accept Dr Pierides' opinion to the extent that he believed that the claimant's injuries to her cervical spine, right shoulder, and lumbar spine were a mere possibility, mild in nature and lasting for about four weeks. His opinion is inconsistent with the opinions of Dr Alameddin, Dr McKechnie, Assessor Gorman, and Dr Davis, and with the claimant's evidence of continuing disability.

[121]   I am satisfied that the physical and psychiatric injuries and ongoing disabilities have created a need for past and future medical treatment and care.

[122]   I am satisfied that those disabilities have impacted on her past ability to work and will continue to impact on her future earning capacity.

[123]   I am satisfied that the claimant will in future be restricted to carrying out work that does not involve prolonged standing or repetitive movements and that she will not be able to pursue a career in hairdressing.

[124]   I am satisfied that there are no pre-existing injuries or ailments that have had an impact on the claimant’s impairments and disabilities caused by the accident.”

117. The first defendant submitted that she discharged her onus of establishing that she was incapable for her former work, and the Member accepted that she was unfit for that work.

118. The first defendant correspondingly submitted that the onus was then on the insurer to establish both that the first defendant had a residual earning capacity and that the capacity was capable of being exercised on a more than theoretical basis (ie, that there were jobs in the real world that would be available to her that she could perform).

119. In the first defendant’s submission it matters not that “… neither Dr Davis nor any other medical expert asserted that the first defendant has been and will be unfit for any form of work.” Dr Davis did not need to assert this. The onus was squarely on the insurer to establish that there were other forms of work that were both suitable and available. There was no attempt by the insurer in the proceedings below to discharge this onus with respect to past economic loss. Even if the evidence permitted a finding that there were alternate forms of work that the first defendant was capable of performing, as alleged by the insurer, there was no evidence that such work was actually available to her.

120. The first defendant pointed out that there was notably, no vocational report that set out the other types of work that were suitable and available to the first defendant, having regard to the disabilities and impairment that the Member accepted she had.

121. In the first defendant’s submission, it does not matter that the Member did not specifically reference Mead in his decision. He did not need to. His approach was correct. A Member has to do his or her best on the available evidence.

122. The first defendant referred to Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152 (“Pham v NRMA”) in which the Court of Appeal stated at [14]:

“The evidence before the assessor was limited but, in accordance with well-established authority, she had to do the best she could to estimate Mr Pham’s loss (see for example Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 at 83; 104 ALR 1 at 11; New South Wales vMoss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [71]–[72]).”

123. The Member has made findings available on the evidence before him. The insurer had not discharged the Mead onus.

The insurer’s submissions in reply

124. The insurer noted that the first defendant asserts that Mead provides a basis for the Member’s award of damages for past loss of earnings, calculated on the basis that the first defendant has been totally incapacitated for work from the date of the accident to the date of the damages assessment, despite there being no medical evidence to that effect.

125. The insurer suggested that the first defendant asserts, in effect, that the Member could have justified his assessment of damages for past wage loss on the basis that the insurer failed to discharge its legal onus of proving that there was alternative work available to the first defendant within her physical capacity, but that was not what the Member did.

126. The Member did not refer to Mead or any other decision in that line of authority, nor did the Member refer to any legal onus borne by the insurer of the kind discussed in Mead.

127. The Member turned his mind to whether alternative employment was available for the first defendant, which he clearly did not, he may have found, consistently with the medical evidence, that the first defendant has been fit for a range of commonly available modes of employment. The insurer was not required to prove, for example, that work as a shop assistant is available in Sydney.

128. The Member’s failure to consider what areas of employment have remained open to the first defendant, in circumstances where none of the medical evidence is to the effect that she has been totally incapacitated for work, is the error identified by the Court of Appeal in Kallouf, which is not overruled by Mead or any other appellate decision.

Resolution

129. These grounds of judicial review centre on the contentions that that the Member erred in law in assessing damages for past loss of earnings from the date of the accident to the date of his assessment on the basis that the first defendant was totally incapacitated, and that the Member should have instead considered that the first defendant was only partially incapacitated during that period.

130. The Member discusses the first defendant’s past loss of earnings at [132]-[145] of his reasons under the heading “d) What loss of income has the claimant suffered to date as a result of her injuries?”: Ex A, 48.

131. The Member discussed the first defendant’s claim for $200,000 plus loss of past superannuation and sets out the basis for this claim as being a loss of $1000 net per week from the date of the accident to 28 April 2021 (the date of her submissions to the Member) at [132]-[133]: Ex A, 48. He notes that the insurer disputes this claim, that while the first defendant was unemployed at the time of the accident, two weeks previous to that date she was offered a full-time job as a hairdresser in Bankstown and was due to commence employment approximately two weeks after the accident at [134]-[137]: Ex A, 49. At [138]-[139] the Member lays out the reasons why he accepted that this is not inconsistent with the first defendant’s contention that she was “looking for a job” at the time of the accident: Ex A, 49.

132. As noted by the first defendant, at [110] of his reasons the Member explicitly accepted the evidence of Dr Davis that the first defendant will not be able to work as a hairdresser in either a full or part time role due to the prolonged standing such work requires, and at [123] stated that the first defendant would “be restricted to carrying out work that does not involve prolonged standing or repetitive movements and that she will not be able to pursue a career in hairdressing”.

133. At [140]-[144] of his reasons the Member stated (Ex A, 49):

“[140]    The evidence reveals that the claimant discontinued her work experience a few days after the accident due [to] the effects of her injuries and disabilities sustained in the accident. I consider that the same would have occurred if she had been in paid employment.

[141]    I have already made a finding that the claimant’s disabilities and impairments arising from her injuries have impacted on her past ability to work. I am satisfied that but for the accident, the claimant would have commenced employment as a full-time hairdresser at Jocelyne Chidiac Hair sometime in late February 2017.

[142]    I calculate working 40 hours full-time per week at $25 per hour equates to $1000 gross per week. That in turn equates to about $817 net per week.

[143]    I therefore propose to allow the claimant past economic loss from 27 February 2017 to the date of the assessment conference at the rate of $800 net per week. The period is 220 weeks, and the total loss equates to $176,000.

[144]    I make an award of $176,000 for the claimant’s past economic loss.”

134. The insurer asserted that the Member did not have any regard to the other potential forms of employment for which the first defendant was fit, and that the medical evidence the Member accepted allowed for a wide range of employment that the first defendant is physically capable of performing. In this regard, the Member writes at [151] of his reasons (Ex A, 50):

“[151]   I have not been assisted by a vocational assessment, but it appears to me that the claimant’s employment prospects will be hampered not only by her injuries but also her English language difficulties. It is difficult to conceive of an occupation that the claimant would be fit to perform on a regular and reliable basis.”

(emphasis added)

135. While this passage appears where the Member is discussing the first defendant’s future loss of earnings it is nevertheless significant. The Member’s reasons are to be read fairly and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at [24]) and "are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (“Pozzolanic”) at 287.

136. The first defendant referred to Kallouf. In Kallouf, the Court, in discussing principles related to the assessment of future earning capacity, stated at [49]:

“[49]   Any assessment in respect of the impairment of future earning capacity necessarily involves a consideration of possibilities. In some cases, it would be an error in treating as certain the fact that a plaintiff would lose wages for a period of years from the date of trial. Where incapacity is established as at the date of trial, what is to be evaluated will be the extent of the possibility that the plaintiff may not work in the future or may lose time from work and determine the allowance of proper compensation in respect of that possibility. That evaluation will depend upon the evidence. Where there is no evidence to support a conclusion that, as a matter of certainty, an injured plaintiff would not earn monies from employment for a number of years post trial, then such a finding would involve an error of principle: Ahmedi v Ahmedi (1991) 23 NSWLR 288 [(Ahmedi)] (at 302) per Clarke JA, Handley JA agreeing.”

137. There was medical evidence before the Tribunal Member which included the clinical records of the treating doctors that established that the plaintiff had suffered significant injuries to the neck, shoulders and lower back resulting in persistent pain and restrictions in these areas. The Tribunal Member was also satisfied that these disabilities have impacted on her ability to work and will continue to impact on her future working capacity. The Tribunal Member found that the plaintiff will, in the future, be restricted to carrying out work that does not involve prolonged standing or repetitive movements and that will not be able to pursue a career in hairdressing. The Tribunal did not find that she had no future earning capacity but rather she had a deduction of earning capacity of at least 50%.

138. The insurer asserted that had the Member turned his mind to whether alternative employment was available he may have found that the first defendant was fit for a range of commonly available modes of employment. In my opinion the Member did turn his mind to that possibility and was not satisfied that such alternatives were available to her.

139. The insurer submitted it is “not required to prove, for example, that work as a shop assistant is available in Sydney”. While I appreciate this example is simply illustrative, it would be consistent with the Member’s reasoning at [151] that such work was inappropriate. In any event, the insurer has misconstrued the onus. In accordance with the principle in Mead, the first defendant discharged her duty to show that she was incapable of performing her former role, the onus was then on the insurer to establish that she retained a residual earning capacity and she was able to pursue other means of employment. It cannot point to what it says are commonly available modes of employment without ever explaining how the first defendant was suitable for those modes of employment despite her injuries, or even stating what they are.

140. In the situation where there is a dispute as to the residual earning capacity of a claimant as there was here, a vocational report is a prudent step towards evidencing the claimant’s capacity. Here there was not one. The evidence before the Member was limited and those limits noted by him. He was required only to do his best on the available evidence: Pham v NRMA at [14].

141. Judicial grounds 2 and 3 fail.

Judicial Ground (4)

142. The insurer’s fourth ground of judicial review was that the Member erred in law in awarding damages for future loss of earnings of almost $100,000 more than the amount claimed by the first defendant without providing adequate reasons for making such an award.

The insurer’s submissions

143. The insurer agreed that the Member made findings, at [122]-[123], that he was satisfied that the first defendant’s disabilities have impacted on her past ability to work and will continue to impact on her future earning capacity.

144. At [146] of his reasons, the Member found that in her updated submissions and schedule of damages the first defendant made a claim for future economic loss to age 67 in the sum of $166,387, being a loss of $250 per week, and that alternatively, the first defendant sought a buffer for future economic loss of $100,000.

145. At [152] of his reasons, the Member made findings that the first defendant has suffered a diminution in her earning capacity of at least 50%. Based on her probable earnings of $800 net per week as a hairdresser, the first defendant calculated damages for future economic loss on the basis of a loss of $400 net per week until retirement, which after deducting 15% for vicissitudes produced an award for future economic loss of $266,220, almost exactly $100,000 more than the amount claimed.

146. It is not impermissible for a Member of the Personal Injury Commission to award more than the amount claimed, detailed reasons will be required for doing so. In this case, the amount awarded was substantially more than the amount claimed, but the reasons (at [146]-[154]) were brief.

147. While the necessary inference from the Member’s findings is that the first defendant does retain a capacity for work, the Member’s reasons provide no analysis of the manner in which her physical or psychological disabilities limit her capacity for work, or the type of work suited to a person with those limitations.

148. Such an analysis was required in circumstances where the third defendant awarded an amount for future economic loss substantially higher than the amount claimed.

The first defendant’s submissions

149. While the insurer conceded that the Member was entitled to award more than the sum claimed by the first defendant and that 10 paragraphs were specifically given to explain the path of reasoning for the Member’s conclusions, it nevertheless contends that the Member has not sufficiently illustrated the nature of impairment warranting such a finding.

150. The first defendant submitted firstly that the decision must be read fairly and as a whole: Wu Shan Liang at [24]; see also Pham v NRMA at [16], and [28]-[31].

151. Secondly, that the Member’s task was to consider the evidence before him to come to conclusions on damages. The Member’s task was not, as the insurer would have it, to illustrate with fine medical precision the precise nature of the first defendant’s injury that would stop particular actions or work modes. That is a matter for medical evidence. All the Member was required to do was to give “brief” reasons to support his decision, as is required by section 94(5) of the MACA.

152. The first defendant referred to Zahed v IAG Limited t/as NRMA Insurance (2016) MVR 1; [2016] MSWCA 55 (“Zahed”) where Leeming JA said, at [3]–[4]:

“[3] Subsection 94(5) of the Motor Accidents Compensation Act 1999 (NSW) required the Assessor to ‘attach a brief statement to the certificate, setting out the assessor’s reasons for the assessment’. Further, cl 18.4.3 of the Claims Assessment Guidelines imposed an obligation that the statement of reasons set out, ‘as briefly as the circumstances of the assessment permit ... the reasoning processes that lead the Assessor to the conclusions made’. It was common ground that s 106(1) of the Act made the Claims Assessment Guidelines binding upon the Assessor. For completeness, it may be noted that neither party suggested that the obligations imposed by the Act and the Guidelines were inconsistent.

[4] Plainly enough, there may be a tension between the obligation to explain and the obligation to be concise. That is a familiar tension (for example, pleadings must “contain only a summary of the material facts on which the party relies’, and be ‘as brief as the nature of the case allows’: see now UCPR Pt 14 rr 14.7 and 14.8). The resolution of the competing obligations imposed by s 94(5) and cl 18.4.3 ought not to result in an unduly demanding burden of providing reasons. It is to be borne in mind that the objects of the Guidelines are ‘to provide a timely, fair and cost effective system for the assessment of claims’ and ‘to assess claims and disputes fairly and according to the substantial merits of the application with as little formality and technicality as is practicable and minimising the cost to the parties’ (cl 1.14), and the obligation to set out the reasoning process is to be construed accordingly. The obligation thereby imposed is less than that imposed on courts: see eg Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [53]- [59]; Pham v NRMA Insurance Ltd [2014] NSWCA 22; 66 MVR 152 at [29]- [31]. Further, as Basten JA’s judgment in Kerr indicates, by reference to authority, the nature of the Assessor’s task may mean that aspects are insusceptible of any detailed articulation of reasons.”

153. The principles set out in Zahed are still broadly applicable, and the duty imposed on a member to give “brief” reasons is a lower duty than that imposed on a Court.

154. The first defendant noted that the relevant guidelines have since been replaced by the PIC Rules, which contain a similar requirement to the Guidelines at Rule 78(2) which is extracted at [33] of this judgment.

155. The first defendant further noted that the Personal Injury Commission Act provides at s 42 that the guiding principle to be applied to practice and procedure within the Personal Injury Commission is “to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”

156. The first defendant thirdly submitted that the Member illustrated over 174 paragraphs the reasons for his decision. Specifically, the first defendant referred to the Member’s reasons at [117]-[123] (reproduced earlier in this decision).

153. The Member has provided a path of reasoning that illustrates, with no uncertainty, that there was a significant reduction in the first defendant’s employability. Specifically, the Member found that hairdressing has been rendered an unsuitable occupation for the first defendant as a result of the injuries sustained in the subject motor collision and that she had had a complete loss of earning capacity to the date of the assessment.

154. The Member then dealt specifically with future economic loss in paragraphs [146]–[155].

155. Referring to the above extracts, the Member comprehensively explained the basis for the findings.

156. This ground was in reality a thinly veiled merits review and that the insurer did not establish any error of law on the face of the record or otherwise.

The insurer’s submissions in reply

161. While a decision-maker in the position of the third defendant is not required to provide expansive reasons, the Member had to provide some analysis of the manner in which the first defendant 's physical or psychological disabilities limit her capacity for work. No such analysis was provided. The Member’s reasons do little more than state a conclusion on this issue.

Resolution

162. This ground of judicial review focuses on the Member’s award of $266,220 for future economic loss, approximately $100,000 more than the amount claimed by the first defendant without, the insurer submitted, providing adequate reasons.

163. The starting point for such a contention is the MACA which, in s 94(5), sets out a number of requirements for the assessment of claims. As per the words of s94(4) of the MACA the requirement imposed on the Member to give reasons, in terms, was to “attach a brief statement to the certificate, setting out the Commission's reasons for the assessment.” (my emphasis)

164. The Member discussed the first defendant’s future economic loss at [146]-[155] of his reasons under the heading “e) What were the claimant’s most likely future circumstances but for the motor accident and what loss of income is the claimant likely suffer in the future because of her injuries”: Ex A, 49

165. The Member, citing Medlin v State Government Insurance Commission (1995) 182 CLR 1 considered the issue to be determined as being to determine whether the first defendant had sustained a loss in her earning capacity and if so whether that will result in any economic loss: Ex A, 50 at [147]. In accordance with s 126 of the MACA the Member found that the first defendant’s most likely future circumstances would be that she continued as a hairdresser and beauty therapist and may have owned her own business: Ex A, 50 at [147]. The Member made reference to his previous finding that the claimant’s disabilities and impairments arising from her injuries did impact and would continue to impact her earning capacity and considered the first defendants English language difficulties and injuries would hamper her employment prospects: Ex A, 50 at [150]-[151]. He stated the assumptions on which the award was based and the relevant percentages by which damages were adjusted: Ex A, 50 at [152]-[155].

166. As noted in Zahed at [4] there is a familiar tension between the statutory requirement for brevity and the obligation to explain one’s reasons fully and clearly. The parties should be able to understand the reasoning process that the decision maker used to arrive at their decision, but it should be remembered that the reasons are to be read ‘fairly and as a whole’ (Wu Shan Liang at [24]) and "are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287). As Leeming JA explains in Zahed the requirement to set out one’s reasoning process must be viewed with the object of the just, quick and cheap resolution of the real issues between the parties in mind and construed accordingly: Zahed at [4]

167. The member’s task was to consider the evidence before and to arrive at a conclusion as to the appropriate amount of damages to be awarded. He was only required to give brief reasons explaining his reasoning. It is my view that he has discharged both of these duties. This ground of judicial review fails.

Result

168. The result is the insurer has established that the Member committed an error of law as set out in Judicial Ground (1). So far as Judicial grounds (2), (3) and (4) are concerned, the insurer has failed to establish error on behalf on the Member. As such, the decision and certificate of the Member dated 23 August 2021 is set aside. The matter is remitted to the President of the Personal Injury Commission of New South Wales to be determined according to law.

Costs

169. Costs are discretionary. Costs normally follow the event. The first defendant is to pay the plaintiff’s costs on an ordinary basis.

The Court Orders

1. The decision of the third defendant, Tribunal Member Maurice Castagnet, dated 23 August 2021 is set aside.

2. The matter is remitted to the second defendant, the President of the Personal Injury Commission of New South Wales, for determination according to law.

3. Costs reserved.

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Decision last updated: 15 July 2022