Richards v Richards

[2006] NSWSC 140

CITATION:	Richards v Richards [2006] NSWSC 140 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	9 & 10 March 2006
JUDGMENT DATE :	16 March 2006
JURISDICTION:	Common Law Division Administrative Law List
JUDGMENT OF:	Associate Justice Malpass at 1
DECISION:	See paragraph 49.
CATCHWORDS:	CARS assessment - jurisdictional error - compensation awarded for attendant care services where statutory threshold not met - deemed offer - admissible evidence and "the record" - discretionary remedy and delay - plaintiff demonstrates entitlement to relief.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CASES CITED:	Craig v South Australia (1995) 184 CLR 163 Geaghan v D'Aubert (2002) 36 MVR 542
PARTIES:	Graham Andrew Richards (Plaintiff) Bronwyn Marcia Richards (First Defendant) Peter Clarke (Second Defendant) Motor Accidents Authority of New South Wales (Third Defendant)
FILE NUMBER(S):	SC 30037/05
COUNSEL:	Mr T E F Hughes QC & Mr T D F Hughes (Plaintiff) Mr E G Romaniuk (First Defendant)
SOLICITORS:	Dibbs Abbott Stillman (Plaintiff) Farrell Lusher (Defendants)
LOWER COURT JURISDICTION:	Motor Accidents Authority
LOWER COURT FILE NUMBER(S):	2003/12/0131/CD
LOWER COURT JUDICIAL OFFICER :	Mr P Clarke
LOWER COURT DATE OF DECISION:	09/03/2006

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
Administrative Law List

Associate Justice Malpass

16 March 2006

30037 of 2005 Graham Andrew Richards v Bronwyn Marcia Richards & Ors

JUDGMENT

1 His Honour: The first defendant suffered injury in a motor accident on 5 December 1999. She brought an application for general assessment. The application was referred to a Motor Accidents Claims Assessment and Resolution Service (CARS) assessor (Peter Clarke). The hearing took place on 24 October 2003. The first defendant was represented by Mr Romaniuk of counsel. The insurer was represented by Ms Sicurella (solicitor). Evidence was taken and the parties made submissions.

2 On 15 December 2003, the assessor delivered his statement of reasons. It was attached to the certificate issued under s94 of the Motor Accidents Compensation Act 1999 (the Act).

3 Two of the matters in respect of which an assessment was sought were past domestic assistance and future domestic assistance. The total amount allowed for the past was $26,776.00. The total amount allowed for the future was $139,363.00.

4 The amount allowed for the past was for gratuitous assistance provided to the first defendant by her mother, grandmother and boyfriend. It was allowed at a rate of $16 per hour.

5 The following expression of reasoning process appears following the assessor’s observations on “Past domestic assistance” under the heading “Future domestic assistance”:-

For the above reasons I allow domestic assistance for the future.
Dr. Patrick suggests she will require additional care from the age of 50.
The claimant makes a claim for 5 hours per week for life. I do not think that this claim is unreasonable. The claimant’s life expectancy is 57 years and applying the multiplier of 1003.2 the figure for future domestic assistance is $125,400.00.
The claimant also claims for general domestic assistance to care for children that will result from the marriage in accordance with the principle established in Sullivan v Gordon . The claimant has claimed for 4 hours additional assistance required for the care of one or more children for 10 years, deferred for 2 years from the present.
The Insurer has submitted that no such claim is possible under the Motor Accidents Act (sic) 1999. Section 142 of the Motor Accidents Act (sic) 1999 states at section 142(1) that no damages are to be awarded for the loss of service of a person.
It is my understanding that the above section abolishes claims by employers in respect of a claim for loss of services of an employee injured in a road accident. That is, it has no application to the principle in Sullivan’s case above. Apparently Master Malpass is of the same view, as on 9 March 2000 he awarded a quadriplegic woman $20,000 for the future possibility of child care. See Ranieri v Nominal Defendant & Ors [2000] NSWCA 134.
I am satisfied that an appropriate allowance is four hours per week for each of two children. The Claimant has a supportive family and I am satisfied that the assistance will be supplied by family members. Hence I allow $16 per hour. In accordance with the prescription of Dr Patrick I allow it for three years for each of two children. I defer the first for two years and the second for four years. The total I allow is $13,963.00.

6 Part 4.4 of the Act is headed “Claims assessment and resolution”. Division 2 thereof is headed “Assessment of claims” and contains ss90 to 97. Section 94 is the provision that prescribes what must be done by the assessor.

7 Section 95 is in the following terms:-

95 Status of assessments
(1) An assessment under this Part of the issue of liability for a claim is not binding on any party to the assessment.
(2) An assessment under this Part of the amount of damages for liability under a claim is binding on the insurer, and the insurer must pay to the claimant the amount of damages specified in the certificate as to the assessment if:
(a) the insurer accepts that liability under the claim, and
(b) the claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued.
(3) It is a condition of an insurer’s licence under Part 7.1 that the insurer complies with this section.

8 The effect of s95 is to create what might be thought to be a unique concept. The section has application to an assessment “under this Part”. An assessment on the issue of liability for a claim is not binding on any party to assessment. An assessment of the amount of damages for liability under a claim is binding on the insurer. If the requirements of (a) of subsection (2) are satisfied, an assessment of the amount of damages for liability under a claim has been said to create a deemed offer, which may be accepted by the claimant.

9 As the insurer had admitted liability prior to the assessment, (a) of subsection (2) had already been satisfied. Following the assessment, the first defendant then accepted the amount of damages in settlement of her claim within the prescribed time and so (b) of the subsection was also satisfied.

10 The plaintiff has not paid the damages. It takes the stance that the assessment was not made “under this Part” and that what was allowed for future domestic assistance was contrary to law and beyond jurisdiction.

11 It has commenced proceedings in this court seeking relief pursuant to s69 of the Supreme Court Act 1970 (in April 2005). The relief that is now sought is that propounded in the further amended summons filed in court on 9 March 2006 (the day of the commencement of the hearing). The hearing continued into the afternoon of Friday 10 March 2006.

12 The plaintiff tendered the statement of reasons and the certificate of the CARS assessor (Exhibits A and B). It also sought to tender the written submissions made by the parties to the assessor. These documents were received subject to objection as Exhibits C and D. A similar position applied in relation to a tender of the CARS form 2A (which was the first defendant’s application for general assessment). It was treated as Exhibit E.

13 The plaintiff also sought to tender a letter from the solicitors for the first defendant (it was MFI 1). It was a letter that had been written in May 2004 in respect of an application made by the insurer pursuant to s94(6) of the Act.

14 The purpose of the tender was said to put before the court what was said to be an admission relating to the conduct of the proceedings by the first defendant before the assessor. After hearing argument on the question of admissibility, the tender was rejected.

15 In my view, leaving aside the question of whether it was admissible in these proceedings, it could not be regarded as such an admission. It seems to me that the relevant material established a series of legal submissions concerning, inter alia, what was done by the assessor in the previous assessment. Whilst such submissions may give rise to admissions, I do not consider that it contained the admission which the plaintiff seeks to attribute to the letter.

16 The plaintiff also sought to read an affidavit of Daniela Josephine Sicurella sworn on 7 March 2006. Largely, it could be said to be deposing to matters relating to the conduct of the assessment before the assessor. The tender of the affidavit was objected to by the first defendant. The objection relied on a variety of reasons (including reasons as to admissibility, statutory discretion, delay and prejudice). Argument on admissibility concluded at 4pm on 9 March 2006. A decision on the question was stood over to the following day.

17 When the hearing resumed on 10 March 2006, further argument took place concerning the admissibility of the affidavit. Subject to argument that looked to questions such as delay and prejudice, a consensus emerged that the affidavit should be read subject to objection. This course was then taken. I took the view that questions of delay (whilst unfortunate) should not be an obstruction to admissibility in this case and that any question of prejudice could be met (inter alia, by an adjournment).

18 The deponent was then cross-examined at some length. The affidavit deposed, inter alia, to the following:-

6. To the best of my recollection, the evidence concerning domestic care presented at the hearing related solely to the voluntary care that had been provided by the first defendant’s relatives between the date of the accident on 5 December 1999 and the date of the assessment hearing.
7. I specifically recall that there was no evidence given about commercially provided care or domestic assistance, nor about he likelihood that the first defendant would have to pay for such services in the future.
8. Oral submissions at the Assessment Hearing supplemented written submissions that had been made by the parties earlier. As far as I can recall, the oral submissions made on behalf of the first defendant did not mention or claim commercially provided care. Rather, the justification used for seeking future care was the evidence of domestic care provided gratuitously in the past. In response, my oral submissions reflected my written submissions and argued that the care levels required would not meet the statutory threshold. By this I was referring to Section 128 of the Motor Accidents Compensation Act , 1999 (NSW).
9. During the oral submissions that were made by Mr Romaniuk and myself, the assessor/second defendant, Mr Peter Clarke, interacted and discussed the heads of damages to a limited degree. At no time during the Assessment Hearing did he discuss the potential for awarding domestic care on a commercial basis, nor did he call for oral or further written submissions to be made on that subject.

19 Whilst she was cross-examined about other matters, Ms Sicurella was not directly challenged as to what was deposed to in those paragraphs.

20 Subsequent to the completion of her evidence, notes that Ms Sicurella had prepared in and about the conduct of the proceedings before the assessor were tendered. The notes were received as being subject to objection and became Exhibit F. The admissibility of the notes depended on whether or not the other material from Ms Sicurella went into evidence.

21 Competing submissions were made as to how her evidence should be treated. In case it should be necessary to address this matter, I shall make some observations.

22 In my view, Ms Sicurella’s evidence should be accepted. It was not directly challenged. Evidence could have been called to rebut it and this was not done. Her evidence was consistent with what appeared in the statement of reasons and the other material.

23 An affidavit sworn by Daniel John Hanna (the partner who had the conduct of the matter before the assessor and since) was in part read. Mr Hanna was in court at the time. The court was told that he was required for cross-examination. Upon his entering the witness box, there was a change of mind, and the court was informed that he was no longer required for cross-examination.

24 The first defendant adduced only one piece of evidence. It was Exhibit 1. It set out the statutory rates for gratuitous care. It showed that the average hourly rate at the time of the injury was $16.67 and at the time of the assessment, was $20.19.

25 Whilst the first defendant had short notice of the Sicurella affidavit, she had the opportunity of seeking an adjournment to prepare an affidavit in reply or calling oral evidence from, inter alia, her solicitor (Grant Robert Gayler). No adjournment was sought. No attempt was made to lead evidence to rebut what had been said by Ms Sicurella.

26 The question of the material that should be received in the hearing of the present proceedings is not an easy one. In Craigv South Australia (1995) 184 CLR 163 at pp 175-176, the High Court observed as follows:-

Where available, certiorari is a process by which a superior court, in the exercise of original jurisdiction, supervises the acts of an inferior court or other tribunal. It is not an appellate procedure enabling either a general review of the order or decision of the inferior court or tribunal or a substitution of the order or decision which the superior court thinks should have been made. Where the writ runs, it merely enables the quashing of the impugned order or decision upon one or more of a number of distinct established grounds, most importantly, jurisdictional error, failure to observe some applicable requirement of procedural fairness, fraud and "error of law on the face of the record" . [Footnotes omitted]

In this case, the relief sought by the plaintiff concerns, inter alia, “jurisdictional error”.

27 Where the relief that can be granted relates to error of law that appears on the face of the record, the court has to determine what documents constitute “the record”. The only assistance given by the legislation is that “the record” is to include the reasons.

28 This statutory assistance seems to be regarded as a consequence of the decision in Craig.

29 In that case, the High Court dealt with “the face of the record” at pp 180-183. At pp 182-183, the Court observed as follows:-

The determination of the precise documents which constitute “the record” of the inferior court for the purposes of a particular application for certiorari is ultimately a matter for the court hearing the application. The effect of the foregoing is that “[o]rdinarily, in the absence of statutory prescription, the record will comprise no more than the documentation which initiates the proceedings and thereby grounds the jurisdiction of the tribunal, the pleadings (if any) and the adjudication”. Where the inferior court or tribunal has prepared a formal record, the court hearing the application may amend it by discarding material which should not have been included. Where the inferior court or tribunal has not prepared a formal record or the formal record prepared is incomplete, the court hearing the application can, if the material placed before it is adequate for the purpose, construct or complete the record. [Footnote omitted]

30 There was a consensus between the parties that the statement of reasons and certificate of the assessor could be regarded as forming part of the record. There was dispute between them concerning the other material.

31 In my view, it is a dispute that need not be resolved in this case. The case can be determined by having regard only to the statement of reasons and the certificate.

32 Whilst it is unnecessary to do so, it seems to me that Exhibit E should be regarded as an initiating process and also form part of the record.

33 In these circumstances, it is unnecessary to dwell on the questions of admissibility of other material. For completeness, I will later refer to the content of some of it.

34 The definition of “attendant care services” may be found in s3 of the Act. It is defined as follows:-

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 There is no dispute between the parties that what was allowed for future domestic care fell within the definition of “attendant care services”.

36 What may be recovered for attendant care services is governed by the provisions of s128 of the Act. Subsection (3) thereof is in the following terms:-

(3) No compensation is to be awarded if the services are provided, or are to be provided:
(a) for less than 6 hours per week, and
(b) for less than 6 months.

37 Section 128 forms part of Part 5.2 (which is headed “Damages for economic loss”) of Chapter 5 (which is headed “Award of damages”). Section 128 is headed “Damages for economic loss – maximum amount for provision of certain attendant care services”. It is a provision that relates to compensation for gratuitous attendant care services only.

38 There is no dispute between the parties that compensation cannot be awarded if the services are for less than six hours per week and for less than six months. There is abundant authority for the proposition that both limbs must be satisfied (see, inter alia, Geaghan v D’Aubert (2002) 36 MVR 542).

39 The plaintiff argues that what was allowed by the assessor was done so on the basis that it was to cover gratuitous future care only and that the only basis on which what was allowed could constitute a valid assessment would be if the two amounts allowed for future care could be aggregated.

40 In dealing with future domestic assistance, the assessor made allowance for two distinct components. One was for future domestic assistance for the first defendant. The other was for general domestic assistance to care for children that will result from the marriage. In neither case, did the allowance satisfy both limbs of the statutory requirements. Further, the figure allowed for future domestic assistance ($125,400) on one view was itself beset with error. It was mathematically incorrect if it was intended to allow the future attendant care services at a rate of $16 per hour.

41 Two matters are raised by way of defence. The first raises a question of the application of the s128(3) threshold. The second raises a question of delay.

42 What is said is that the threshold has no application in this case, because the assessor was really making awards for paid care. The submissions place emphasis on the allowance of the figure of $125,400.00. This is seen as reflecting an allowance at the rate of $25 per hour (which is said to be what the court would regard as a reasonable figure to allow for paid care).

43 In my view, this contention is untenable. It seems to me when regard is had to the statement of reasons alone, it is unambiguously clear that what the assessor intended was to make allowances for gratuitous care. This follows from a number of considerations. I shall expressly mention certain of them. There is no dispute that past care was allowed on a gratuitous basis. The statement of reasons make clear that what was done in relation to past care was applied in making the allowance for future care (whilst it might have been better expressed, this seems to be the meaning that should be attributed to “For the above reasons, I allow domestic assistance for the future”). The additional reasoning process that appears under the heading “Future domestic assistance” reinforces that view. There is the sentence, “The claimant has a supportive family and I am satisfied that the assistance will be supplied by family members”.

44 If regard were to be had to the other material, such a view is significantly further reinforced. Without regard to the other material, the figure of $125,400.00 might be seen as a mathematical error. However, when regard is had to other material, it can be seen that this was the amount sought on behalf of the first defendant in Exhibit C. Whilst those submissions did not specify an hourly rate, the insurer’s submissions proceeded on the basis that the rate claimed was $16 per hour. It may be that the assessor did not bother to do the mathematics and adopted the first defendant’s figure as being correct. I do not see the adoption of this figure as giving any support to the contention that the assessor was allowing for paid care in the future.

45 The relief sought by the plaintiff is of a discretionary nature. There are cases that support such view and it was a position accepted by the parties. Delay is relied on as being a defence to the granting of that relief. There was no issue that such a discretionary defence may be raised. The first defendant bears the onus of making out any such defence. In my view, that onus was not discharged.

46 The first defendant did not lead any evidence in support of that defence. It merely relied on the submission as to the time that had elapsed between the assessment (in December 2003) and the commencement of the proceedings (April 2005). It was not a period of undue length. The submission was unsupported by any reference to authority.

47 If the delay was to be regarded as a relevant consideration to be taken into account in the exercise of the discretion, I do not consider that it would deprive the insurer of entitlement to the remedy sought by it. It seems to me to be a case of clear and obvious jurisdictional error and that the dictates of justice would require its correction.

48 For completeness, I should add that it was submitted that the plaintiff had failed to raise the matter of the statutory threshold in the insurer’s submissions to the assessor. If this is a matter that needs to be addressed, I would make two further comments. The first is, that it seems to me to be irrelevant whether or not it was raised. Secondly, if a different view was taken of that matter, it seems to me that it was sufficiently brought to the attention of the assessor by the following submission:-

On the evidence currently available the insurer submits that there is insufficient evidence to justify any award for past and/or future care. On the medical evidence at hand it is debatable as to whether the claimant would have even exceeded the threshold for care. [Exhibit D p2]

49 In the circumstances, I am satisfied that the plaintiff has demonstrated an entitlement to relief. What should happen now may be thought to be somewhat uncertain and has been the subject of inconclusive debate. A consensus was reached that if I should find in favour of the plaintiff, the parties should be given the option of either preparing short minutes or of making further submissions.

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18/10/2006 - Deletion of part of paragraph 8 - Paragraph(s) 8