NRMA Insurance Limited v Pham - [2013] NSWSC 468

Supreme Court

New South Wales

Medium Neutral Citation: NRMA Insurance Limited v Pham [2013] NSWSC 468
Hearing dates: 5 October 2012
Decision date: 03 May 2013
Jurisdiction: Common Law - Administrative Law
Before: Hall J
Decision:
I make the following declaration and orders:
(1) A declaration that the certificate issued under s 94 of the Motor Accidents Compensation Act 1999 dated 30 April 2012 in respect of the assessment conducted on 16 April 2012 was contrary to law.
(2) An order setting aside the certificate.
(3) An order remitting the claimant's assessment application to the third defendant or the Principal Claims Assessor of the third defendant for reallocation of the matter to a different claims assessor for determination of the matter according to law.
(4) Leave to the parties to make application in respect of the issue of costs or ancillary orders arising from the orders set out above.

Catchwords: ADMINISTRATIVE LAW - error of law - claims assessment under s 94 Motor Accidents Compensation Act 1999 where liability admitted - claimant self-employed business owner - assessment of future economic loss under s 126 Motor Accidents Compensation Act 1999 - claim based on alleged pre-injury earnings that exceeded amounts disclosed on taxation returns - evidence that claimant intended to continue running business - assessor however made award based on factual finding that claimant would sell business and find work as an employee in same industry - economic loss therefore assessed on earnings of an employee - assessment of likely future circumstances but for the injury not based on evidence and in fact in conflict with claimant's evidence - assessor accordingly failed to state assumptions on which award based as required under s 126 - assessor failed to adjust the amount of damages for future economic loss by reference to the percentage possibility of the future events occurring as required under s 126 - Guzman v Zammit [2003] NSWCA 224 relied upon by the assessor concerning the claim for future economic loss did not establish any point of principle but turned on its own facts - in any event the evidence did not support the approach taken by the Court of Appeal in that case
Legislation Cited: Motor Accidents Compensation Act 1999
Supreme Court Act 1970
Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223
Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139
Campbelltown City Council v Vegan (2006) 67 NSWLR 372
Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56
Giorginas v Kastrati (1988) 49 SASR 371
Graham v Baker (1961) 106 CLR 340
Guzman v Zammit [2003] NSWCA 224
Husher v Husher [1999] HCA 47; (1999) 197 CLR 138
Insurance Australia Limited t/as NRMA Insurance v Hutton-Potts (2010) 57 MVR 194; [2010] NSWSC 1446
Insurance Australia Limited v Helou [2008] NSWCA 240
Kallouf v Middis [2008] NSWCA 61
NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Paff v Speed (1961) 105 CLR 549
Soulemezis v Dudley (Holdings)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2013] NSWSC 468
Decision Date: 03 May 2013

CaseChat Overview and Summary

The case of NRMA Insurance Limited v Pham involved a dispute over the assessment of future economic loss claims under the Motor Accidents Compensation Act 1999 (Qld). The claimant, Pham, was a self-employed business owner who admitted liability for an accident. The central issue was the determination of future economic loss under section 126 of the Act, specifically in relation to the assessment of income loss based on pre-injury earnings that allegedly exceeded amounts disclosed on taxation returns. The assessor made an award predicated on the assumption that Pham would sell his business and find work as an employee in the same industry, which conflicted with Pham’s evidence that he intended to continue operating the business.

The court was tasked with deciding whether the assessor's decision was legally sound and whether it adhered to the statutory requirements of the Motor Accidents Compensation Act 1999. The key legal issues involved the correct interpretation of section 126, the necessity of the assessor to state the assumptions upon which the award was based, and the requirement to adjust the award for future economic loss by reference to the likelihood of future events occurring. The court had to consider whether the assessment was based on evidence and whether it correctly applied relevant case law, specifically Guzman v Zammit [2003] NSWCA 224.

The court found that the assessor had failed to adhere to the statutory requirements, as the assessment of Pham’s future economic loss was not based on evidence but rather on an assumption that was in conflict with Pham’s evidence. The court held that the assessor did not properly state the assumptions on which the award was based, as required under section 126, nor did the assessor adjust the award by reference to the percentage possibility of future events occurring. The court further noted that Guzman v Zammit did not establish a point of principle applicable to the case at hand and that the evidence did not support the approach taken by the Court of Appeal in that case. Consequently, the court set aside the decision of the Motor Accident Insurance Board and remitted the matter for reassessment in accordance with the statutory provisions.

Orders