Toubia v Peters and 2 Ors

[2006] NSWSC 1088

CITATION:	TOUBIA v PETERS & 2 ORS [2006] NSWSC 1088 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	16/10/2006
JUDGMENT DATE :	20 October 2006
JUDGMENT OF:	Associate Justice Malpass
DECISION:	The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings.
CATCHWORDS:	Judicial review - assessment by CARS assessor - alleged misapplication or misunderstanding of statutory criteria - statutory scheme of assessment and award of damages - findings of fact on quantum - no jurisdictional error or error of law on face of the record
LEGISLATION CITED:	Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 Supreme Court Act 1970
CASES CITED:	House v R (1936) 55 CLR 499 March v E & MH Stramare Pty Limited (1991) 171 CLR 506 Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 Richards v Richards [2006] NSWSC 140
PARTIES:	Tahani TOUBIA Robert PETERS Helen WALL MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES
FILE NUMBER(S):	SC 30045/06
COUNSEL:	Mr A Robertson SC / Mr G Bellew SC (Pl) Mr E Romanick (Def)
SOLICITORS:	Dibbs Abbott Stillman (Pl) Robert Dawson (Def)
LOWER COURT JURISDICTION:	Motor Accidents Authority of NSW Motor Accidents Assessment Service
LOWER COURT FILE NUMBER(S):	2004/12/1750 HB
LOWER COURT JUDICIAL OFFICER :	Assessor Wall
LOWER COURT DATE OF DECISION:	6/12/05

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

20 October 2006

30045/06 Tahani TOUBIA v Robert PETERS & 2 Ors

JUDGMENT

1 HIS HONOUR: As at 6 May 2001, the first defendant was unemployed. Some months earlier he had been employed as a machine operator. Prior to 6 May 2001, he had been looking for work. At the time, there existed quiescent degenerative changes in his cervical region.

2 On 6 May 2001, he was involved in a motor vehicle accident in respect of which the plaintiff had liability. He suffered, inter alia, substantial aggravation of those changes and an annular tear and disc protrusion in the lumbar spine.

3 On 15 July 2002, the first defendant commenced working as an apprentice motor mechanic. He was attending a course at TAFE and had planned perhaps to open his own business.

4 On 25 June 2003, whilst working as an apprentice he suffered a crush injury to his left non-dominant hand. Thereafter, he did not return to his employment and has not worked since.

5 He made a claim pursuant to Chapter 4 of the Motor Accidents Compensation Act (1999) (the Act). The claim came to be assessed by a CARS Assessor (Helen K. Wall). Liability was not in dispute. There was an assessment conference on 18 November 2005. Reasons for decision were given. The Assessor made an assessment of damages in the sum of $241,601.00 (including the sum of $53,338.16 for past economic loss and the sum of $141,525.00 for future economic loss). On 6 December 2005, she issued a certificate to that effect.

6 The plaintiff has brought proceedings in this Court. The claim that is now made is as set forth in the amended summons filed in Court on 16 October 2006 (which was the date of the hearing of the proceedings). In substance, the plaintiff seeks the setting aside of the assessment and the certificate. The plaintiff and the first defendant are the participating parties. The other defendants have filed a submitting appearance.

7 The plaintiff claims that there has been error of law that appears on the face of the record and seeks judicial review pursuant to s69 of the Supreme Court Act 1970.

8 The error is said to arise in respect of the assessment of both past economic loss and future economic loss.

9 In assessing past economic loss, the Assessor made an assessment in respect of three periods. She came to be satisfied that the claimant was totally incapacitated because of the injuries arising from his motor vehicle accident for the period from 13 May 2001 to 14 July 2002. She allowed $553.24 net per week (this being an agreed rate for the earnings of a machine operator) and allowed a total sum of $33,747.64. For the period 15 July 2002 to 25 June 2003, she accepted that the claimant was working within his limitations (he was still on restricted duties) and could not lift heavy objects or do too much bending. She allowed $113.24 net per week (this being the difference between $553.24 net per week and the $440.00 net per week he was receiving as an apprentice) and allowed the total sum of $5548.76. For the period from 26 June 2003 to the date of the assessment, she assessed loss also in the sum of $113.24 and allowed a total in the sum of $14,041.76.

10 In her reasons for her decision, the following appears in relation to the assessment of future economic loss [at pp 7-8]:-

“The claimant intended to become a motor mechanic and commenced the course which would lead to that qualification and appeared to have been coping with the duties of practical work of mechanics as well as attending the TAFE course, albeit with restrictions on lifting and bending prior to his hand injury in June 2003.
As indicated above his wage loss which I am satisfied reflected his true earning capacity prior to the hand injury was $113.24 per week.
In consideration of the requirements of section 126 of the Motor Accident Compensation Act, 1999 I note the following issues in relation to future economic loss of the claimant.
i. But for the injury sustained in the motor vehicle accident, the claimant would have continued his training at TAFE as an apprentice mechanic and qualified as a apprentice and maybe eventually open his own business. However, this plan has been affected by the injury to his left non-dominant hand in June 2003. This injury has rendered him totally incapacitated as opposed to partially incapacitated before that injury. I therefore must make a deduction and allow for the fact that the hand injury has caused a fairly significant diminution in his earning capacity. However doing the best I can on all of the medical reports before me in relation to the motor vehicle accident claim, I am satisfied that the injuries arising from the motor vehicle accident claim were permanent in nature and therefore would have given a substantial diminution in earning to this claimant for many years to come. It is impossible to be mathematically precise in the number of years he would suffer that incapacity. I further take into account that but for the motor vehicle accident, the claimant would have gone on to finish his course at TAFE and become a mechanic and maybe eventually open his own business. There was no evidence before me to suggest otherwise but I have to take into consideration that the left hand injury played a major part in the prevention of that course of events and, doing the best I can on the figures, one would assess that the hand injury has had at least 50-60% of an impact on prevention of that course.
ii. The pre-hand injury economic loss was $113.24 per week and on the basis that the claimant more likely than not would have gone on to finish his course and become an apprentice and possible open his own business, I allow the sum of $300.00 for 15 years on the 5% tables with a 15% deduction as a reasonable amount to compensate the claimant for future economic loss arising from the motor vehicle accident ($300.00 x 555.0 - 15%), $141,525.00 .”

11 The plaintiff complains that no past economic loss should have been awarded after June 2003. He also complains that no account was taken for the fact that the first defendant was unemployed as at the date of the motor vehicle accident.

12 The outline of submissions made on behalf of the plaintiff sets out the complaints as to the assessment as to future economic loss as follows:-

“36. The claims assessor/second defendant has, with respect, confused the injury sustained in the motor vehicle accident with the injury sustained to the first defendant/claimant’s left hand in June 2003.
37. This is made clear in the paragraph numbered (i) on page 7 of the reasons, where the claims assessor/second defendant says twice that, but for the motor vehicle accident, the claimant would have gone on to finish the course at TAFE and become a mechanic and maybe eventually open his own business.
38. The true position was that, but for the injury to the first defendant/claimant’s left hand, the claimant would have continued his training at TAFE and qualified as an apprentice and maybe eventually opened his own business.
39. Alternatively, no reason is given for switching from the pre-hand injury economic loss of $113.24 per week to $300 per week.”

13 In essence, the plaintiff contends that the Assessor misapplied or misunderstood statutory criteria (in particular, what are said to be causation requirements to be found in sections 94, 124, 126 and 130 of the Act). Examples are “because of the injury” and “as a consequence of a motor accident”.

14 The Act introduced a new regime for the providing of compensation for injuries sustained in motor accidents. The objects are set forth in section 5. At this stage, it is convenient to look at certain of the provisions contained therein.

15 Chapter 4 of the Act (sections 66-121) is headed “Motor accident claims”. Part 4.4 thereof is headed “Claims assessment and resolution”. It contains definitions and an application provision (which section 89 specifies as being to “any claim”). I digress to observe that “claim” is defined in section 3 as a claim for damages in respect of the matters prescribed therein. Division 2 thereof is headed “Assessment of claims”. The Division places responsibility on the Principal Claims Assessor for making arrangements as to the Claims Assessor who is to assess any particular claim.

16 Section 94 is in the following terms:-

“(1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of:
(a) the issue of liability for the claim (unless the insurer has accepted liability), and

(b) the amount of damages for that liability.

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

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

(6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error.”

17 Section 95 of the Act is headed “Status of assessments”. The section is in the following terms:-

“(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.

Note. If the amount of damages is not accepted by the claimant within that period, section 151 makes provision with respect to liability for legal costs incurred after the certificate of assessment was issued.

(3) It is a condition of an insurer’s licence under Part 7.1 that the insurer complies with this section.”

18 Part 4.5 of Chapter 4 is headed “Court proceedings on claims”. This Part prohibits the commencement of court proceedings unless the requirements of section 108 are met (one such requirement is the issue of a certificate pursuant to section 94).

19 Chapter 5 of the Act (Sections 122-146) is headed “Award of damages”. Part 5.1 of the Chapter is headed “Application” and contains sections 122 and 123. Part 5.2 is headed “Damages for economic loss” and contains sections 124-130.

20 Section 122 is an application provision (it applies to and in respect of an award of damages which relates to the matters prescribed therein). Section 123, which is headed “General regulation of court awards”, provides that a court cannot award damages to a person in respect of a motor accident contrary to this Chapter. The provisions of Part 5.2 contain prescriptions as to the manner in which damages for economic loss are to be quantified. Some contain the words “the court” or “A court”, others do not. Chapter 5 contains no reference to “assessor” or “assessment”. Sections 125, 126 and 130 are framed in terms of what a court cannot do or must do.

21 Under the statutory scheme, claims are assessed unless exempt from assessment. An assessed claim may be later heard by a Court where there has been the issue of certificate pursuant to s94 (in cases where the claimant does not accept the assessed amount of damages in settlement of his or her claim). An exempt claim may also be litigated.

22 The assessment process is non-curial. The Assessor is required to make an assessment of the issue of liability and the amount of damages for that liability. There are guidelines for, or with respect to, procedures for the assessment of claims (these are issued pursuant to s 69 of the Act). The guidelines place the conduct of the assessment in the hands of the Assessor. He or she is not bound by the rules of evidence. The Assessor is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case. The Assessor is to take into account the objects of the Act at all times. The procedure may involve, inter alia, the conduct of an assessment conference.

23 Section 94 requires regard being had to information that is conveniently available to the Claims Assessor. It requires that the assessment specify an amount of damages (which is defined to include “specify a manner of determining the amount of damages”). It requires a brief statement setting out the Assessor’s reasons for the assessment.

24 As was observed in Richards v Richards [2006] NSWSC 140, the effect of s95 is to create what is thought to be a unique concept. The statutory language presents the process as being of the nature of a settlement procedure. 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. It is a condition of the insurer’s licence that it complies with the section.

25 Chapter 5 is expressed to have application to an award of damages (as opposed to an assessment of the amount of damages for a liability). It evinces a clear intention of a prohibition placed upon “a court” (it cannot award damages to a person in respect of a motor accident contrary to the Chapter). Leaving aside other provisions contained in the Chapter, sections 125, 126 and 130 can only be read to impose restrictions on a court.

26 The plaintiff seeks to have the Court disturb findings (which he seeks to put into the category of causation) that have brought about the assessment of damages made by the Assessor. In so doing, it seems to me that the Court is being asked to interfere in findings of fact made by the assessor (March v E & MH Stramare Pty Limited (1991) 171 CLR 506 at p515).

27 In my view, these findings did not involve any misapplication or misunderstanding of statutory criteria relating to causation.

28 The Assessor was confronted with competing submissions. She was required to make findings of fact as to the impact of the motor accident injury on the earning capacity of the plaintiff. In so doing, she had to have regard to other impediments to earning capacity (including the injury to the left hand). The process involved forming a view as to the credibility of the plaintiff and evaluating conflicting medical opinion.

29 The first defendant had problems that preceded the motor vehicle accident. These were aggravated by that accident. It also caused to new problems. The impact of the accident injuries was to give rise to an impediment to earning capacity (which was found to be a partial incapacity) of a permanent nature which was found to play the part of a substantial diminution to it. The work injury to his left hand took away his residual capacity and was found to have brought about total incapacity. In the circumstances, she correctly allowed damages for the past and the future (including past economic loss subsequent to June 2003).

30 It may be that another Assessor may have taken a different approach to the material and may have assessed damage in different amounts (including in respect of his unemployment at the time of the accident and the selection of the sum of $300). Be that as it may, it seems to me that the complaints made by the plaintiff fall within the category of quibbles with the quantum that was assessed by her.

31 In the circumstances of this case, I consider that the plaintiff has not demonstrated that there was jurisdictional error or error of law that appears on the face of the record (see, inter alia, Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323 at p 351), and accordingly the proceedings must fail. As earlier said, I am not satisfied that the Assessor misapplied or misunderstood statutory criteria concerning causation.

32 Before concluding this judgment, for completeness I should briefly address certain of the other matters that were argued.

33 In submissions, there has been discussion as to whether or not the Act confers a discretion upon the Assessor and whether what was said in House v R (1936) 55 CLR 499 has application. In my view, the Assessor’s role in performing what he or she is required to do under s94 of the Act does not involve the exercise of a discretion. In my view, it involves a fact-finding and evaluation process in the performance of the task of making an assessment of liability and quantum.

34 The first defendant has made submissions on the question of interest and other orders. It is unclear whether any claim for interest is maintained in circumstances where the proceedings are dismissed. If it is, I am not satisfied that any order for interest should or could be made in this case. There was a broad brush reference to s100 of the Civil Procedure Act 2005 and/or the common law. In my view, s100 has no application in the present circumstances. Otherwise, I find this submission unhelpful.

35 The proceedings are dismissed. The plaintiff is to pay the costs of the proceedings. The exhibits are to be returned.

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23/10/2006 - wrong date in body of judgment - Paragraph(s) date at beginning of judgment