Zurich Australia Insurance Limited v Motor Accidents Authority of NSW

[2010] NSWSC 214

CITATION:	Zurich Australia Insurance Limited v Motor Accidents Authority of NSW & Ors [2010] NSWSC 214
HEARING DATE(S):	16/03/10; 17/03/10
JUDGMENT DATE :	31 March 2010
JUDGMENT OF:	Whealy J at 1
DECISION:	1. Summons dismissed. 2. Plaintiff to pay 4th defendant's costs. 3. The Exhibits may be returned.
CATCHWORDS:	Denial of procedural fairness refusal to allow cross-examination: Procedures under CARS scheme prerogative relief under s 69 of Supreme Court Act 1970 use of DVD in place of written statement.
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 Supreme Court Act 1970 Workers Compensation Act 1987 Workplace Injury Management and Workers Compensation Act 1998
CASES CITED:	Allianz Australia Insurance Limited v Crazzi & Ors [2006] NSWSC 1090; [2006] 68 NSWLR 266 South Western Area Health Service v Edmonds [2007] NSWCA 16 Aluminium Louvres & Ceilings Pty Ltd v Xue Quin Zheng [2006] NSWCA 34 at [22] R v War Pensions Entitlement Appeal Tribunal; Ex Parte Bott (1993) 50 CLR 228 at 256, 257 Craig v South Australia (1995) 184 CLR 163 Minister for Immigration v Yusuf [2001] 206 CLR 323 at 351 Kirk & Anor v Industrial Relations Commission (NSW) & Anor [2010] HCA 1 at [66] - [70] Kioa v West (1985) 159 CLR 550 at 584 Annetts v McCann (1990) 170 CLR 596 at 598 Van Meld Pty Limited v Fairfield City Council (1999) 46 NSWLR 70 at 91-92 Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex Parte Lam 214 CLR 1; [2003] HCA 6 Australian Postal Commission v Hayes & Anor (1989) 23 FCR 320 Ramsay v Australian Postal Corporation [2005] 147 FCR at 39 Goodrich Aerospace Pty Limited v ARSIC [2006] 66 NSWLR 186; [2006] NSWCA 187 per Ipp JA at 16-27 Stead v State Government Commission (1986) 161 CLR 141 at 145-147 Minister for Local Government v South Sydney City Council [200] 55 NSWLR 381 at 394 per Spigelman CJ
PARTIES:	Zurich Australia Insurance- Limited v Motor Accidents Authority of New South Wales & Ors
FILE NUMBER(S):	SC 2009/298127
COUNSEL:	Mr F Kunc SC; Mr H El-Hage - Plaintiff Mr A J Stone; Ms M L Holz - 4th Defendant
SOLICITORS:	Mr George Mallos - Plaintiff Grogan & Webb - 4th Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
ADMINISTRATIVE LAW LIST

WHEALY J

WEDNESDAY 31 March 2010

2009/298127 - ZURICH AUSTRALIA INSURANCE LIMITED v MOTOR ACCIDENTS AUTHORITY OF NEW SOUTH WALES & Ors

JUDGMENT

1 HIS HONOUR: The plaintiff Zurich Australia Insurance Limited (“Zurich”) has sought orders setting aside the assessment made by Alex Bolton (the second defendant). The latter is a Claims Assessor and an officer of the first defendant in the Motor Accidents Claims Assessment and Resolution Service (“CARS”), appointed pursuant to ss 98 and 99 of the Motor Accidents Compensation Act 1999.

2 On 4 December 2009, Harrison J heard and refused an application for a stay in relation to the substance of the present summons. I take the following background essentially from Harrison J’s decision, although I have had regard to the affidavit material as well.

Background

3 The fourth defendant, Mrs Robinson, was born in 1921. She was hit by a bus and injured on 13 May 2003 when she was crossing Belgrave Street at Manly. She was on a pedestrian crossing when the bus hit her. Zurich had issued CTP insurance for the bus and later admitted liability in respect of the accident. The principal issue in dispute before the assessment hearing had been the quantification of Mrs Robinson’s damages.

4 It appears that, as part of the evidence relied upon by Mrs Robinson at the CARS assessment hearing, her counsel had tendered a DVD that recorded an interview conducted between Mrs Robinson and her counsel on 23 August 2009 in her home at Manly. This interview took the form of Mrs Robinson’s counsel asking her questions relating to her claim. The solicitor for Zurich objected to the DVD interview being put before Assessor Bolton at the CARS Assessment Conference on 18 September 2009. Mrs Robinson did not attend that Assessment Conference when this occurred as she was said to be agoraphobic. She was therefore, unavailable for cross-examination. Notwithstanding Zurich’s objection, Mr Bolton allowed Mrs Robinson to rely upon the DVD as part of her case.

5 On 6 October 2009, the Assessor issued an assessment in which he formulated the amount of damages payable to Mrs Robinson. The amount was $225,184.10. (As a consequence of an arithmetic error, another Assessor later issued a replacement certificate. This explains the presence in the proceedings of the defendant, Belinda Cassidy). In any event, Mrs Robinson accepted the assessment and half the sum awarded was paid to her on 23 November 2009. Zurich, being dissatisfied with the procedural aspect of the assessment, commenced the present proceedings.

6 By its summons, Zurich sought an order pursuant to s 69 of the Supreme Court Act 1970 setting aside the assessment of Assessor Bolton made on 6 October 2009 (as amended) on the ground that the plaintiff had been denied procedural fairness. This was because, so the plaintiff asserted, Assessor Bolton allowed Mrs Robinson to rely on the video recording when she did not attend the Conference and was not available for cross-examination.

Mrs Robinson’s injuries

7 Mrs Robinson was 82 at the time of the accident and will shortly turn 89. According to her treating doctor (Dr Wong), Mrs Robinson sustained a fracture of the head of the left humerus, shoulder dislocation, a subdural hematoma and a degree of post-traumatic stress following the accident. She reported a loss of balance and the onset of panic attacks. Dr Wong also noted that Mrs Robinson had a history of asthma, hypothyroidism, ischaemic heart disease, Meniere’s disease, peptic ulcer, hiatus hernia and dry eyes. She had undergone a left knee medial meniscectomy in 1999. Later medical reports indicated that Mrs Robinson, who had before the accident been a very active and outgoing person, developed a fear of going out alone and often needed the company and assistance of her daughters. Residual consequences of the accident included some calcific tendonopathy in the left shoulder and the consequence that she was having some difficulty with domestic activities and movement. A consulting clinical psychologist, Dino Cipriani, (who interviewed Mrs Robinson in her home) said in the conclusions of his report to the Insurance company: -

“Mrs Robinson has suffered some mild cognitive impairment due to the impact of a subdural hydroma though some generalised decline would also be expected from any pre-existing cerebral atrophy. Cognitive functions remain remarkably preserved. The main impact on activities of daily living was due to post-traumatic stress disorder and pain and physical limitations involving the left shoulder, arm and neck. This has caused increased dependency on others physically and psychologically. …Mrs Robinson is motivated to improve and normalise her life as much as possible and with recommended interventions, prognosis seems favourable”.

8 Dr E. D. Price, a consultant medico legal practitioner also provided a report to Zurich. This generally confirmed the majority of the physical and mental matters I have mentioned. He also interviewed Mrs Robinson in her home. His diagnosis was expressed as follows: -

“This 85 year old lady has suffered a left shoulder rotated cuff syndrome, following dislocation and fracture of the greater tuberosity, and she has some secondary calcification. There was a contribution to this condition from her degenerative disease.
She also has some secondary muscle spasm on the left side of the neck and this, in my opinion, is the cause of her headaches. Her neck movements are otherwise full. She does have a subdural hydroma, but I do not feel this is significant contribution to her symptoms. I feel her headaches are more related to her left neck muscle spasm.
She has a mild post-traumatic stress reaction in relation to crossing roads and this should settle. She has some mild degenerative disease of the right knee and this may have a very minor traumatic component from this accident”.

9 In a second report to Zurich, Dr Price assessed Mrs Robinson as having “6% Whole Person Impairment” due to the accident.

The Course of the Proceedings

10 Zurich had admitted liability on 14 November 2003. This was hardly surprising since, as I mentioned, Mrs Robinson had been hit by the STA bus while she was on a pedestrian crossing.

11 As I understand it, her claim with CARS was not lodged until approximately April 2006. Initially, Zurich through its representatives, dealt with the claim directly. On 6 August 2009, however, Mr George Mallos was retained by Zurich to act on its behalf in relation to the claim.

12 The claim was set down for its first preliminary conference with Assessor Bolton on 1 May 2008. Mr Bolton was to hold a further 11 preliminary conferences on various occasions throughout 2008-2009, leading up to the assessment conference on 18 September 2009. There were reports issued for each preliminary conference. A number of the reports and statements available throughout the assessment period referred to the fact that Mrs Robinson, post-accident, had been experiencing a degree of anxiety and a feeling of a lack of confidence when moving about outside her apartment. There was also material which supported the existence of panic attacks and anxiety on occasions when she was undertaking medical testing. There was material from her daughter, Patricia Robinson which corroborated and adverted to the fact that the daughter was endeavouring to build her mother’s confidence, particularly in relation to walking and moving outside the apartment. In the years following the accident, there was some improvement in this situation and Mrs Robinson was being continuously encouraged to move out of the apartment although some anxiety, it appears, remained. Her daughter would accompany her to medical appointments. She indicated that Mrs Robinson was experiencing high levels of anxiety on some of these occasions. It seems that there was nothing remarkable about this situation, given Mrs Robinson’s age and the consequences of the accident.

13 Difficulties about Mrs Robinson’s ability to attend appointments organised for the purposes of medical assessment were flagged in the first preliminary conference report. Nevertheless, a MAS assessment was arranged. There were varying degrees of “Whole Person Impairment” assessed throughout the process. I have already referred to Dr Price’s opinion on this point. There were other assessments within the MAS system, which were at a higher level. In particular, Dr Moore, in a final medical assessment, assessed Mrs Robinson as having a “Whole Person Impairment” with respect to psychiatric disabilities of 17%.

14 On 4 June 2009, during the eighth preliminary conference, Mrs Robinson’s representative indicated that Mrs Robinson would not be available to give evidence. Indeed, as I understood it, there seemed to be a degree of tacit understanding from the very outset of the procedure that the assessment would have to take place “on the papers” if the claimant was unwilling or unable to attend an assessment conference. There was, it seems, nothing remarkable about that situation. The Assessor’s report of 4 June 2009, however, relevantly stated: -

“Ms Holz indicated that this will not be assessment on the papers as first indicated. The claimant will not be available to give evidence. However, her son and daughter-in-law will be called to evidence in the assessment conference”.

15 It appears that Zurich did not object to this process at that time.

16 As recorded in Mr Bolton’s tenth preliminary conference, Zurich’s application for a review of Dr Moore’s Whole Person Impairment in respect to psychiatric disabilities was unsuccessful. Mr Bolton then gave directions to progress the matter to a final damages assessment. These included a direction that Mrs Robinson provide an “updated signed statement” setting out additional matters relevant to the assessment of non-economic loss, past and future treatment and past and future care responses. It also invited a response to certain surveillance material I will shortly mention. (Earlier Mrs Robinson had already provided two statements which dealt with her injuries and disabilities in a comprehensive fashion). The directions for the final assessment plainly provided, in effect, that the evidence from Mrs Robinson and her providers of care was to be in the form of written statements. Mrs Robinson would not be required to attend the hearing, although the carers would be available for cross-examination, if that were required. They were also invited to produce update statements for the final assessment.

17 Zurich had obtained two surveillance reports. In addition, video surveillance of Mrs Robinson was available through Rogers Services Group and GCI Group Pty Limited. These were private investigators. The video surveillance has been recorded on two DVDs and it was plainly contemplated that these might be shown by consent to Assessor Bolton at the final hearing. Mrs Robinson’s representatives did not object to the playing of these two DVDs at the hearing. Essentially, they showed her moving about on foot in the area near her apartment, carrying a shopping bag and using her left arm, for example, to put on a rain hood and a backpack. None of these movements was inconsistent with her claim and the general medical evidence available on both sides.

18 On 4 September 2009, counsel for Mrs Robinson (who had inspected the surveillance material) sent Mr Mallos a list of the additional documents to be relied upon at the conference. One of those documents was described as “DVD Interview of Claimant”. Essentially, this was a video recording of Ms Holz asking Mrs Robinson questions relating to her claim. The videos had been recorded at Mrs Robinson’s unit at Manly on 23 August 2009. Mr Mallos took the stance that he would object to the DVD interview being put before the CARS Assessor. He made it clear, however, that he would not object to a transcript of the DVD being relied upon by the Assessor, but simply opposed the DVD itself. Paragraph 5 of the preliminary conference report of 11 September states: -

“Mr Mallos confirmed his objection on the basis of the lack of procedural fairness to the insurer. Ms Holz suggested that there was little difference between the video and a written statement. To this Mr Mallos noted that there are emotional issues and that the DVD evidence might be seen as an attempt to “pull at heart strings”.

19 At paragraph 6, the report continues: -

“Mr Mallos said that without the opportunity to test the evidence, it is unfair. He said that he did not have a problem with the transcript of the evidence being provided as given from the DVD, but when it came to a visual presentation of the evidence, this was an entirely different and unsatisfactory form from the point of view of the insurer”.

20 And later, the Assessor noted in his report that Mr Mallos requested that “limited weight by way of evidential value be given to the DVD if it were admitted as part of the evidence”.

21 Mr Bolton did not accept Zurich’s objection to the DVD interview being placed before him as part of the assessment process. On 17 September 2009, he informed the parties of this decision. He permitted Ms Holz to rely on the DVD interview as part of her case. In his reasons for decision dated 6 October 2009, Mr Bolton stated: -

“This is a claim arising out of an incident involving Mrs Theresa Robinson when, as a pedestrian, she was knocked over by a bus, on 13 May 2003. Mrs Robinson was crossing Belgrave Street, Manly, near where she lives. She was 84 years of age when the accident occurred.

At the time of the accident, Mrs Robinson was a very active member of the community. She was effectively juggling 3 voluntary positions for the provision of counselling services in her local area and as far a field as Sydney City and Parramatta.

Mrs Robinson is now 88 years of age, having been born on 10 April 1921.

Breach of duty of care was admitted by the insurer on 14 November 2003 following service of the claim form on or around 16 September 2003.

The claimant did not attend any MAS examinations, because of her condition so I am informed. Accordingly, MAS assessments were undertaken on the papers.

The matter is complicated by the claimant having a number of age related illnesses but also developing considerable anxiety and post traumatic stress disorder following the accident. Mrs Robinson has also apparently developed a condition of agoraphobia which has not been specifically diagnosed but apparently does considerably limit her daily activities outside of her unit. As a result of this, Mrs Robinson has not been able to attend any medical examinations and did not attend the assessment conference.

As part of the claimant’s case, I was presented with a DVD of evidence from Mrs Robinson of just under 35 minutes and which I have seen. Mr Mallos had objected to evidence being presented in this form. Two preliminary conferences had occurred for the discussion of the admission of this evidence or otherwise but ultimately I have accepted evidence in this form. I note the continued objection of Mr Mallos for the presentation of evidence in this manner.

With respect to the video evidence provided, it is to some considerable degree along the lines of the statement provided by Mrs Robinson and does not take the matter too much further. Mr Mallos has said that such evidence provides an unfair advantage to the claimant as it provides no ability for him to cross-examine or for me to ask questions and, additionally, it is evidence of ‘an emotional nature’. I accept what Mr Mallos says about this. Having viewed this evidence, Mrs Robinson appears to be someone who is not embellishing her claim but of course Mr Mallos has not had the ability to test this. On this basis, whilst I have considered the evidence provided, I rely mainly on the two statements made by Mrs Robinson of 13 June 2008 and the two statements of her daughter, Patricia Robinson of 12 June 2008 and 3 September 2009 in addition to the report of Mr Hembry, the claimant’s son-in-law, of 12 June 2008.

I noted at the commencement of the assessment conference that whilst it had always been put to me that Mrs Robinson suffered from agoraphobia, there was no medical evidence about this. Ms Holz agreed but said that all of the symptoms displayed by the claimant are indicative of the diagnosis of agoraphobia. That is perhaps not entirely correct and it would be inappropriate for me to accept this ‘diagnosis’. One might suspect with agoraphobia that a person, including the claimant, would have a fear of open spaces. Clearly from the video surveillance of the claimant, this is not absolutely correct although I acknowledge that she does have reported feelings of panic and that these feelings can occur at all times. Furthermore, Mrs Robinson has said that there are days when she wakes up and she just does not feel like going out but she has other days that are better. She clearly is anxious and, as I observed from the surveillance video, when she crosses a road with a traffic control light in her favour, as a pedestrian, she is very cautious about vehicles approaching the crossing and very hesitant. At other times though, from the video surveillance, she does appear to be able to lead a normal life. However, the video surveillance may actually only demonstrate her on one of those goods days when she did feel she was able to go outside from her unit, which she has never denied that she can do, on occasion.”

22 The remainder of the reasons for decision were in considerable detail. They examined each and every aspect of the claim, including all the matters of contention raised by Mr Mallos. As might be expected, Mrs Robinson succeeded on some issues, Zurich on others. The reasons span nine pages of detail. I will not reproduce them in this decision.

23 Patricia Robinson’s written statements were before the Assessor. They contain a very detailed list itemising the way the accident had affected her mother. Some of the consequences of the accident were listed as follows:-

· Unable to keep appointments

· Unable to wash and set her own hair

· Limited to the Manly Corso, a place very familiar to her. Generally, uses all the back streets and arcades to avoid major roads

· Able to carry light things only

· Unable to travel and often gets car sick

· Crosses major roads with difficulty

· Unable to do proper shopping

· Often at home for extended periods without going out especially in heavy rain

· No longer fit

· No longer involved with various groups

· Has lost a sense of belonging and usefulfullness and therefore feels isolated

· Often unable to make decisions

24 In one passage, Patricia Robinson’s first statement says: -

“In summary the video reflects her very limited life. She only goes where she knows on the Corso. While the video was three hours, two hours were spent sitting at the hairdresser where she has been going for at least five years. She negotiates an appointment because she cannot make one and keep it. She cannot wash or manage her hair because of the limited range of her shoulder movement. Her other chores were picking up her mail, paying her bills immediately as becomes anxious if they are not paid, picking up Vitamin pills and scripts. She engages in short, less than fulfilling interactions at her own initiation and finished at her choice. She puts her hand to her back and suffers constant backache. Carrying her walking stick as security and not for walking. Scurrying across the road. She tires quite quickly…nothing has changed from Dr Cipriani’s original assessment. The video shows nothing has changed.”

25 There was also a statement from Ian Hembrey. He is Mrs Robinson’s son-in-law. His statement records that prior to the accident, his mother-in-law was “a motivated, strong and interesting woman with a life of her own”. This, he said, has changed. He described a difficult transition and, while there were flashes of the pre-accident woman, her general health, motivation and focus had been severely impaired. He confirmed that he and his wife acted, in effect, as fulltime carers for Mrs Robinson.

26 Both Patricia Robinson and Ian Hembrey were at the final assessment conference. Mr Mallos did not object to the tender of their statements and did not seek to cross-examine either of them. In his final assessment, Mr Bolton referred to his reliance upon the statements of both these witnesses.

27 Mr Bolton’s final assessment was made, as I have said, on 6 October 2009. The replacement certificate, as to the matters referred for assessment, was issued by Claims Assessor Cassidy dated 6 October 2009 and received by Zurich on 23 October 2009.

Legislation

28 It is necessary to say something briefly about the legislation under which the assessment was made. The Motor Accidents Compensation Act 1999 took effect in respect of motor accidents which occurred after 4 October 1999. It implemented a special scheme for the resolution of damages arising out of motor vehicle accidents and, in so doing, modified or eliminated common law rights, particularly rights to damages for non-economic loss. It is not necessary to set out in full ss 5 and 6 of the Act. They are important, however, in setting out the objects of the legislation. These include the encouragement of early and appropriate treatment and rehabilitation to achieve optimal recovery from injuries sustained in motor accidents. In addition, the legislation was designed to provide compensation for compensable injury sustained in motor accidents and to encourage early resolution of claims. It was also part of an overall scheme to keep premiums affordable, recognising that third party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales. There was an acknowledgement that the legislation carried with it an intention to restrict the level of non-economic loss compensation in cases of minor injuries. The objects of the Act were to be promoted in all matters relating to the interpretation of the legislation.

29 An important feature of the Act was its restriction upon access to damages for non-economic loss (ss 131-134). Non-economic loss would not be awarded unless the degree of permanent impairment of the injured person was greater than “10% Whole Person Impairment” (s 131). Where injuries were assessed at greater than “10% Whole Person Impairment”, common law principles in relation to the assessment of damages for non-economic loss would apply, although s 134 set a maximum indexed amount.

30 The Act introduced a new system of medical assessments (ss 57-65) by the Medical Assessment Service (MAS). Where there was a dispute as to the level of permanent impairment, that dispute was referred to and determined by a Medical Assessor in accordance with the provisions of the Act. Those Medical Assessors were required to issue a certificate in relation to their finding on the matter referred. A Court’s capacity to review, reject or substitute such a certificate was limited (s 61(4)). The Medical Assessor’s decision as to permanent impairment was binding on the parties.

31 Finally, it is necessary to mention that the Act created a Claims Assessment and Resolution Service (CARS) (ss 90-95). CARS dealt with liability and damages dispute. Like the approach to damages for non-economic loss, these provisions were a significant departure from previous legislation relating to motor accidents. The process of assessment was, broadly speaking, administrative and not judicial. An assessment on quantum was binding on the insurer where liability had been admitted, and also on the claimant if the claimant accepted the assessment within a stipulated period, following the issue of the certificate of determination. The Assessor was entitled to hold conferences with all relevant parties in attendance, and with any relevant experts or hold separate assessment conferences in private with them or, where an Assessor was satisfied that sufficient information has been supplied, without holding any assessment conferences or other formal hearing at all (s 104).

32 Section 94(2) of the Act provides that 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”.

33 Apart from the legislation itself, it is clear that the assessment process is aided by guidelines promulgated under s 69 of the Act. A number of the guidelines are relevant for the purposes of understanding the arguments in the present matter. I shall mention several of these briefly: -

Clause 15.2

“The Assessor may direct the parties to the assessment to submit to the Assessor and to any other party to the assessment a signed statement detailing the evidence to be given by any witness to be questioned. If the witness does not attend the assessment, the statement by the witness need not be disregarded, and may be taken into account by the Assessor.”

Clause 15.3

“The Assessor may require the presentation of the respective cases of the parties to be limited to the periods of time that the Assessor determines are reasonable necessary for the fair and adequate presentation of the cases”.


Clause 15.4

“The Assessor shall determine the manner in which evidence is presented at an Assessment Conference, ensuring that:

15.4.2 The examination of parties and witnesses is usually by the Assessor and questions to other parties or witnesses may only be put as directed by the Assessor;
15.4.3 The Assessor may at the request of a party allow the questioning of a witness or a party by either the party’s legal representative or agent, subject to any limitations as determined by the Assessor;
15.4.5 The Assessor cannot compel any party or witness to answer any question, but may have regard to the failure of a party or witness to answer a question in the determination of the assessment, unless the party has a reasonable excuse for that failure to answer.
…”.
15.12 In accordance with section 102, if a party fails to appear at an Assessment Conference, the PCA [Principal Claims Assessor] may issue a summons requiring their attendance at the time and date specified in the notice, being a day more than 10 days after the date of the issue of the summons”.

Clause 16.1

“In conducting an assessment the Assessor may determine the Assessor’s own procedure and is not bound by the rules of evidence and may enquire into any matter in such manner as the Assessor thinks fit.”

Clause 16.3

“The Assessor is to act with as little formality as the circumstances of the matter permit and according to equity, good conscious and the substantial merits of the matter without regard to technicalities and legal forms”.

Clause 16.5

“The Assessor is to ensure that the relevant material is available so as to enable all the relevant facts and issues to be determined”.

Clause 16.6

“The Assessor may admit into evidence the contents of any document that has previously been provided by one party to the other party despite non-compliance with any time limit or other requirements specified in the Act or the guidelines in relation to that document…”.

Clause 16.7

“”The Assessor is to progress the resolution of a matter as quickly, fairly and as cost effectively as is practicable.”

34 In Allianz Australia Insurance Limited v Crazzi & Ors [2006] NSWSC 1090; [2006] 68 NSWLR 266, Johnson J held that the guidelines may be characterised as delegated legislation. For that reason, the guidelines are unable to affect the proper construction of the MAC Act or limit rights governed by the Act. They are subordinate legislation in the nature of regulations but give guidance as to how relevant assessments are generally to be carried out. The general principles relating to the interpretation of Acts of Parliament are equally applicable to the interpretation of delegated legislation. The normal purpose of subordinate legislation is to give effect to the provisions of the parent statute. This would include the existence of an obligation on assessors to have regard to the objects of the parent legislation, including those objects which require the assessment of “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”.

35 Provisions similar to the guidelines in Clauses 16.1 and 16.3 were considered by the New South Wales Court of Appeal in South Western Area Health Service v Edmonds [2007] NSWCA 16. The principal judgment was given by McColl JA with whom Giles and Tobias JJA agreed. The legislation in question related to the Workers Compensation Act 1987 and the Workplace Injury Management and Workers Compensation Act 1998. The principal issue was an assertion of pre-judgment on the part of the Arbitrator who gave the interim decision from which part of the appeal was brought.

36 McColl JA reviewed the legislative framework underpinning the issues on the appeal at paras 55 to 74. At paras 87 and 88 her Honour said: -

“I have already set out the legislative framework in detail. To recapitulate briefly the jurisdiction the Arbitrator was exercising under s 354 of the WIM Act required proceedings to be conducted with as little formality and technicality as the proper consideration of the matter permitted. Section 354(4) provided that the Arbitrator was not bound by the rules of evidence but might inform himself on any matter in such manner as he thought appropriate and as the proper consideration of a matter permitted. It enabled him to act according to equity, good conscience and the substantial merits of the case without regard to technicality or legal forms, and enabled informal hearings to be conducted. Section 354(6) enabled him to dispense with a conference or hearing. Section 354 and other provisions give the Commission a wider range of discretionary choices about the procedure appropriate for a particular case than existing under earlier legislation: Aluminium Louvres & Ceilings Pty Limited v Xue Quin Zheng [2006] NSWCA 34 at [22] per Bryson JA (Handley JA and Bell AJA agreeing).
Provisions such as s 354 do not release the Commission from the obligation to apply rules of law in arriving at its decisions: see Qantas Airways v Guvvins (1002) 28 NSWLR 26 at 29 per Gleeson CJ and Handley JA. In Minister for Immigration and Multicultural Affairs v Eshetu (1999) HCA 21; (1999) 197 CLR 611 at (49), speaking of s 420 of Migration Act 1958 (Cth) which is in like terms to s 354, Gleeson CJ and McHugh J said:
“Such provisions are intended to be facultative, not restrictive. Their purpose is to free Tribunals, at least to some degree, from constraints otherwise applicable to Courts of law, and regarded as inappropriate to Tribunals. The extent to which they free Tribunals from obligations applicable to the Courts of law may give rise to dispute in particular cases, but that is another question.”

37 McColl JA determined (paras 91-95) that the Arbitrator in that case was prima facie obliged to act in accordance with the obligations of procedural fairness and natural justice. Further, the Commission was obliged to act impartially. The requirement to act impartially was not excluded by the legislation.

38 In Aluminium Louvres, Bryson J had upheld a decision by an Arbitrator limiting the time for cross-examination by the employer. In that decision, Bryson J noted that, in the case of Administrative Tribunals, there may well be circumstances in which a fair hearing takes place although cross-examination is not allowed. In that regard, his Honour referred to the decision of the High Court in R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1993) 50 CLR 228 at 256, 257. His Honour noted that: -

“The practices of common law courts are not the only way in which fair procedures may lead to a just determination of facts which are in dispute. As ever, when a claim is made that natural justice has not been accorded, regard must be paid to the legal context in which the decision maker operates and to the law regulating the conduct of the proceedings”.

Procedural fairness

39 Zurich seeks relief in the form of an order in the nature of certiorari to quash the Assessment and the Certificate on the basis that it had been denied procedural fairness. Relief of this kind is available to quash a decision where there has been a failure to observe applicable requirements of procedural fairness (Craig v South Australia (1995) 184 CLR 163). In that case, the High Court drew a distinction between a failure by an inferior Court to take into account some matter which it was, as a matter of law, required to take into account in determining a question within jurisdiction, and the position where an Administrative Tribunal fell into the same type of error of law wherein it had exceeded its authority or powers. The basis for the distinction was identified in the lack of authority of an Administrative Tribunal either authoritatively to determine questions of law or to make an order or decision otherwise than in accordance with the law. By contrast, the ordinary jurisdiction of a Court encompassed authority to decide questions of law, as well as questions of fact, involved in matters which it had jurisdiction to determine. (For comments on Craig’s case see Minister for Immigration v Yusuf [2001] 206 CLR 323 at 351; Kirk & Anor v Industrial Relations Commission (NSW) & Anor [2010] HCA 1 at [66] - [70]).

40 Zurich’s assertion that the requirements of procedural fairness applied to the subject assessment process has not been disputed by Mrs Robinson. Consequently, I find that the requirements of procedural fairness did apply to the assessment process (Kioa v West (1985) 159 CLR 550 at 584 per Mason J; Annetts v McCann (1990) 170 CLR 596 at 598 per Mason CJ, Deane and McHugh JJ. Indeed, there is nothing in the MAC Act or the guidelines to demonstrate any statutory intention to the contrary; Van Meld Pty Limited v Fairfield City Council (1999) 46 NSWLR 78 at 91-92 per Spigelman CJ. As the written submissions for Zurich pointed out, the guidelines expressly provide that the assessment of claims must be made “fairly”.

41 An essential element of procedural fairness is the right to be heard and the opportunity to present one’s case. In Re Minister for Immigration & Multicultural & Indigenous Affairs; Ex Parte Lam (214 CLR 1; [2003] HCA 6) Gleeson CJ said: -

“Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice”.

42 There are three essential questions in the present matter. The first is whether the rules of procedural fairness applied to the assessment. It is agreed between the parties that they did. The second question, perhaps the principal one, is whether the rules of procedural fairness dictated a right to cross-examine Mrs Robinson. In other words, did the refusal to allow cross-examination in the circumstances deprive Zurich of the opportunity to present its case?

43 The third essential question in the present matter is, if the right to cross-examine Mrs Robinson was required in the proceedings, did Zurich lose an opportunity to secure a successful or different outcome. (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-147; Minister for Local Government v South Sydney City Council [2002] 55 NSWLR 381 at 394 per Spigelman CJ). The second and third questions must be addressed not in an abstract way but against the background of the actual circumstances of the assessment hearing. The content of the requirement to afford procedural fairness will vary according to the situation disclosed. I turn now to examine whether there has been a breach of procedural fairness in the present matter.

Resolution of the issue

44 The essential submission of Zurich is that the Assessor’s decision to allow the tender of the DVD effectively deprived it of the opportunity to cross-examine Mrs Robinson in the circumstances of the case. It is said, in turn, that this deprived Zurich of the opportunity to present its case. Mr George Mallos has flagged in his affidavit of 23 November 2009 the particular matters he would have raised in cross-examination of Mrs Robinson if she had been present at the hearing. As I shall point out, these were all matters that were substantially raised before the Assessor in final submissions. The matters referred to by Mr Mallos, stated briefly, were: -

(a) Cross-examination in relation to the surveillance evidence which had depicted Mrs Robinson moving about in public without assistance and without the need for a companion.

(b) Cross-examination of Mrs Robinson to highlight the fact that she suffered poor health from causes unrelated to the effects of the accident. These other ailments were essentially detailed in the records of her general practitioner and the other doctors, which were before Assessor Bolton. They were also confirmed in Mrs Robinson’s DVD statement.

(c) Cross-examination concerning the number of long-term medications Mrs Robinson used, especially those that were for conditions unrelated to the effects of the accident.

(d) Cross-examination to highlight four different conditions which were referred to in her medical records as “medicals warnings”. Mr Mallos said he would like to establish that these were not referrable to the subject accident .

(e) Cross-examination concerning the extent of care actually required for Mrs Robinson’s well being, and to identify, against her medical background, the precise reasons giving rise to each area of care claimed. This cross-examination would be essentially to examine the care provided in the past and the care claimed for the future.

45 Mr Stone, who appeared in the present proceedings with Ms Margaret Holz, for Mrs Robinson, provided the Court with both oral and written submissions. Mr Stone took issue with the proposition that Zurich had been denied procedural fairness. Essentially, counsel submitted that the DVD played no role in the decision and that Zurich had been able to present its case perfectly adequately without the presence of Mrs Robinson at the final hearing. Mr Stone, in his written submissions, argued that the Zurich summons had identified only one ground on which it claimed to have been denied procedural fairness, namely that the DVD was allowed into evidence. Mr Stone submitted that there was no allegation that Zurich had ever requested and were denied the opportunity to cross-examine Mrs Robinson. This is clearly the case in the sense that, after the DVD was admitted, Mr Mallos did not expressly demand to cross-examine Mrs Robinson. However, I consider that it would be unreasonable to restrict Zurich in this way. It seems to me that the allegation that the DVD should not have been admitted always carried with it the assertion that Zurich might be denied procedural fairness in that Mrs Robinson, as a practical matter, was not likely to have ever been available for cross-examination. The wording of the summons allows for the broader point to be made. Further, as Mr Mallos made clear in his evidence before me, it was made perfectly obvious to him throughout the assessment process that, because of Mrs Robinson’s disabilities, she would not be required to attend in any event. There was no point in his making an application to have Mrs Robinson present once the Assessor decided to admit the DVD.

46 Mr Stone invited me to find that Mr Mallos, in truth, never intended to cross-examine Mrs Robinson. In this regard, counsel’s submission was that I should not accept Mr Mallos’ claim that it was his wish to cross-examine the claimant. In effect, I was invited to disbelieve Mr Mallos. Mr Stone made a number of submissions in support of this contention. I am satisfied, however, that at all times Mr Mallos did intend to cross-examine Mrs Robinson, if he were permitted to do so. The reality was, as he recognised, that it was extremely unlikely that the Assessor would allow cross-examination. In that context, Mr Stone is probably correct in saying that the submissions were probably more designed to lead to a rejection of the DVD and to allow the substitution, in its place, of a statement taken from the DVD. Counsel’s main point was that the decision not to cross-examine the carers, and the reasons given by Mr Mallos, did not sit easily with the suggestion that Mr Mallos wanted to cross-examine the claimant. However, I see the decision not to test the carers, illogical though the reasons may seem, as no more than a forensic decision taken by Mr Mallos in the “heat of battle”. I see no reason to disbelieve Mr Mallos on the point at issue.

47 I turn now to the merits of the competing submissions. In my view, Zurich has failed to establish that it was denied procedural fairness. In my opinion, Zurich was given an opportunity to present its case fairly and it is not now open to it to complain that it was denied procedural fairness. In the circumstances of the matter, there is no substance in Zurich’s claim that it sustained practical injustice. I do not consider that, in the rather unusual circumstances of this matter, the rules of procedural fairness dictated or demanded that Zurich have the right or opportunity to cross-examine Mrs Robinson. I shall now state my reasons for this conclusion.

48 First, it is clear that Zurich was perfectly content to consent to the tender of the transcript of the DVD without further ado. Mr Mallos’ comments at the time made it clear that, if the transcript were placed before the Assessor, there would be no need for Mrs Robinson to be cross-examined upon its contents. Mr Mallos’ only complaint was to the fact that the DVD allowed “a visual presentation of the evidence”. As Harrison J observed in his decision of the 4 December 2009 refusing the stay, Zurich had no fundamental trouble or concern with the substance of Mrs Robinson’s evidence since Mr Mallos was perfectly content for the transcribed words of the DVD to be tendered. The spoken and written words (when transcribed) were always going to be precisely identical. If Mr Mallos “did not have a problem with the transcript of the evidence” it must be the case that he was perfectly content to abandon each and every one of the topics he later nominated as topics for cross-examination for Mrs Robinson. He must have been content to rely on the medical evidence, the surveillance and his own written and oral submissions.

49 Secondly, Mr Mallos took the decision at the hearing that he did not require either Mrs Robinson’s daughter or son-in-law for the purposes of cross-examination. The evidence of Patricia Robinson, in particular, was replete with detailed descriptions of the way in which her mother had been affected by this accident. This went to the heart of the matters Mr Mallos said he wanted to test. In particular, her first statement (and indeed, her second) focused precisely on the way in which she and her husband were required to give care to her mother as a consequence of the disabilities sustained following the accident. According to Mr Mallos, this was a fundamental matter about which he would have cross-examined the claimant (although presumably he would not have done so, if the words of the DVD statement went in, as opposed to its visual content).

50 In Mr Mallos’ affidavit at para 31 he endeavours to explain why it was he decided not to cross-examine these witnesses. He said: -

Ms Robinson’s daughter and son-in-law were in attendance at the CARS Assessment Conference. I did not seek to cross-examine either of them. They have provided evidence of the care which they provide to Ms Robinson. Zurich’s case was not that Ms Robinson had little or no care requirements. Zurich’s case was that the need for such care was not substantially due to any injuries suffered by Ms Robinson in the accident giving rise to her claim but rather due to age and unrelated medical factors. I took the view that the evidence of Ms Robinson’s daughter and son-in-law does not go to that issue and I can see no benefit in cross-examining either of them as to why they provide the services that they claim to have provided. In my opinion, those were matters for Ms Robinson to give evidence about.”

51 These statements by Mr Mallos show that, inexplicably, he must have misconstrued the thrust of Patricia Robinson’s statements. The first statement commences with an analysis of her mother’s mode of living prior to the accident. It is headed “Prior to the Accident”. It contains a detailed analysis showing that, prior to the accident, Mrs Robinson “had led an active, interesting and independent life”. Considerable detail is provided in this regard. Patricia Robinson then describes the immediate consequences of the accident on her mother during the early recuperation period. It then goes on to deal with her disabilities and need for care after the accident. This section of the statement is headed “Post Accident”. Once again it is very detailed and makes the point, time and again, that these changes to her mother’s lifestyle only came into existence following the accident. For example, she says on page 2: -

“It is really difficult to explain to outsiders the amount of stress this accident has caused our family and the degree to which it has changed our relationships. The time and effort that has gone into my mother’s rehabilitation to get her to a minimal state of being has been inordinate”.

52 Patricia Robinson then asks:

“What has changed in her life as a result of the accident?”

53 The answer to this question is contained in the lengthy list of disabilities I have extracted earlier at page 10 of this decision. Patricia Robinson’s second statement “updates” these matters. Mr Ian Hembrey’s statement, although less detailed, makes the clear point that the significant changes in the condition of his mother-in-law, requiring extensive care, all occurred after the accident and were generally related to it.

54 In my opinion, Mr Mallos’ decision not to cross-examine these witnesses meant that he was in truth content, as a matter of forensic choice, to deprive Zurich of the very opportunity they now claim they have lost in the assessment process. It is clear to me that a forensic decision was made by an experienced solicitor, probably on the basis that the Insurance Company might be worse off if any attack were made on the care witnesses to suggest that Mrs Robinson’s disabilities were not related to the accident. But, whether this be so or not, Mr Mallos made, so it seems, vigorous submissions to the Assessor on all the matters he has mentioned in his affidavit. In my opinion, his client was not compromised in any way by the decision he made. A fair reading of the Assessor’s reasons in their entirety shows that this was so.

55 In any event, as I have already said, Mr Mallos had decided that he would not need to cross-examine Mrs Robinson if the transcript of the DVD had been placed in evidence, as opposed to its oral contents.

56 Thirdly, there is, in my opinion, no substance in the claim that cross-examination of Mrs Robinson on the identified medical issues would have advanced Zurich’s case at all. The “medical issues” to which I refer are those I have set out above, taken from Mr Mallos’ affidavit. They include the “medical ailments” points, the “long term medications” point and the “medical warnings” point. None of these was particularly apt to be put to Mrs Robinson herself. Each of the points identified by Mr Mallos was essentially a medical question (accident related verus non accident related ailments and care needs). All the medical records were in evidence. There is no suggestion that Zurich was compromised or prejudiced in any way since it could make (and presumably did make) any points it wanted to make through the medical records. It is difficult to see that any questions put to Mrs Robinson would advance the medical questions at all. This was not a case in which Zurich was making any submission to the Assessor that there had been any dishonesty by Mrs Robinson in the presentation of her case, or that there had been any exaggeration by her or concealment of any relevant material. Despite the force of Mr Kunc SC’s submissions, I do not accept that Mrs Robinson’s credit was in issue at all in this assessment. Mr Mallos, in his comprehensive affidavit, did not suggest it was. The matters I have latterly pointed to were all essentially matters for medical assessment. Mr Mallos, however, did not suggest to the Assessor that Mrs Robinson’s general practitioner was required to answer any questions in relation to her non-accident related medical conditions.

57 Fourthly, although Mr Mallos was plainly unhappy about the tender of the DVD, it seems that it did not affect in any way the content of his written submissions. There were some 11 pages of written submissions sent to the Assessor by Zurich after the DVD was served, but none make any reference to the contents of the DVD.

58 Fifthly, the guidelines I have set out earlier make it clear that the Assessor had a reasonably wide discretion as to whether he would or would not allow cross-examination. During argument, I put a hypothetical example to Mr Kunc SC. I asked him to assume that, in the present matter, Mrs Robinson had provided a written statement to the Assessor at the final assessment. I asked senior counsel to further assume that Mr Mallos had, contrary to the actual decision he took, insisted that Mrs Robinson attend for cross-examination for the very reasons he set out in his affidavit. On the further assumption that the Assessor determined that the claimant’s age, disabilities, and fear of medical appointments etc made it inappropriate for her to attend for cross-examination, would that have amounted, in those circumstances, to a denial of procedural fairness? Although Mr Kunc was not prepared to make a conclusive statement on the point, he generally accepted that it would be unlikely that such a decision by the Assessor would have constituted a denial of procedural fairness. Mr Kunc’s broad acceptance of the proposition I put to him was, in my view, fairly and properly made. That being the case, I urged upon counsel the further proposition that a decision to protect Mrs Robinson from cross-examination, upon tender of the DVD statement, was essentially in no different category. The Assessor had power to determine his own procedure and was entitled to enquire into the assessment in such manner as he thought fit. Moreover, he was entitled to determine the manner in which evidence was presented at the Assessment Conference. This included a power to limit, curtail or prohibit cross-examination. Of course, the obligation lay on the Assessor to ensure that each party was able to present its case fairly. In that regard, it is plainly the situation that the right to cross-examination is not, in every situation, an absolute. It may well be required in many litigious exercises where a refusal to allow cross-examination may constitute a denial of procedural fairness. But, as I say, it is not an absolute requirement. Much will depend upon the legislation, the nature of the litigation and the point at issue in the litigation. There are other ways of allowing a party to present its case fairly, absent cross-examination.

59 Mr Kunc relied on two decisions to advance the proposition that cross-examination was very important. I accept that it is important. Those cases were Australian Postal Commission v Hayes & Anor (1989) 23 FCR 320 and Ramsay v Australian Postal Corporation [2005] 147 FCR at 39. In the first case, Wilcox J held that, in proceedings before the Administrative Appeals Tribunal the Commission was denied procedural fairness by a decision which fettered the proposed cross-examination of a claimant to such an extent that her evidence could not properly be tested. The point at issue there was that the Tribunal had directed that a surveillance film be shown to the claimant at the commencement of her evidence-in-chief. Wilcox J said that the Commission was entitled to show the film to the claimant after the conclusion of her evidence-in-chief.

60 The second case involved a situation where the applicant was denied the opportunity to cross-examine a medical practitioner whose written reports were admitted into evidence. It was plainly the situation in that case that the relevant written reports were critical to the Tribunal’s decision. Spender J held that the right to challenge by cross-examination a deponent whose evidence is adverse in important respects to the case a party wishes to present is an incident of the obligation to accord procedural fairness.

61 The outcome in each of these cases is generally to be accepted. Neither is authority, however, for the proposition that cross-examination is an absolute right.

Other argument advanced on behalf of Zurich

62 Mr Kunc advanced a number of further arguments in support of his client’s case. I shall briefly deal with these remaining arguments.

63 The first was an argument that the tender of the DVD statement disturbed the “level playing field” his client was entitled to expect in the assessment process. His client had been prepared to have the assessment carried out “on the papers” but the tender of the DVD unfairly tipped the balance in favour of Mrs Robinson, without providing a commensurate opportunity to Mr Mallos to cross-examine her. There are a number of responses to this submission.

64 First, it might be thought that Zurich itself had tipped the level playing field in its favour, or at least attempted to do so, by tendering in evidence the surveillance videos and reports. This process itself disturbed the notion that the assessment would be carried out merely “on the papers”. Secondly, and more importantly, Mr Mallos’ decision to allow the contents of the DVD to be in evidence, provided the visual images did not accompany them, meant that it became necessary for Mr Kunc to demonstrate what it was about the visual images that disturbed the level playing field to such an extent that natural justice would be denied if cross-examination were not to be allowed. In my opinion, Mr Kunc, despite his best endeavours, has failed to demonstrate why this was so. As I have said earlier, this was not a case in which Mrs Robinson’s credit was in issue. It was not a case in which she was exaggerating her claims. It was not a case in which she was fabricating disabilities she did not have. True it is there was an issue as which of her disabilities were properly attributable to the accident but those were essentially medical issues and well capable of resolution “on the papers”. Senior counsel argued that Mrs Robinson’s demeanour, her reactions and emotions as she gave her evidence in response to questions put to her by Ms Holz about her ailments and care needs after the accident must have impressed the Assessor. I have taken the opportunity of viewing the whole of the DVD interview and, for my part, I do not consider that this was likely at all. This was not a matter in which demeanour – an unreliable guide in any event (see Goodrich Aerospace Pty Limited v ARSIC [2006] 66 NSWLR 186; [2006] NSWCA 187 per Ipp JA at 16-27) – played any part.

65 Mr Kunc however, advanced three arguments in support of this further argument. First, he said that, in the reasons, the Assessor concluded that Mrs Robinson appeared “to be someone who is not embellishing her claim”. Secondly, senior counsel argued that the Assessor observed and took into account her physical demonstration of raising her arm at one point in the DVD interview. Thirdly, it was argued that leading questions were put to Mrs Robinson without an opportunity for Zurich to object. These were all said to be forensic advantages over the giving of evidence in a written statement.

66 It is necessary to turn to the reasons for decision to assess the extent to which the Assessor did place reliance on the DVD statement. Mr Bolton’s reasons for decision must be read fairly. I have set out at pages 8 and 9 of my decision, the remarks made by the Assessor in relation to the degree to which the Assessor determined to take into account its contents. First, the Assessor noted that he had accepted evidence in the form of the DVD. He noted, however, the continued objection by Mr Mallos concerning the presentation of evidence in that form. The Assessor expressed the opinion that video evidence did not take “the matter too much further” than the statements provided by Mrs Robinson. I do not think, fairly read, that Mr Bolton was saying that he had determined that Mrs Robinson was a person who was not embellishing her claim or that he had formed that view, on a concluded basis, having viewed the DVD. Rather, he was saying that, while on a preliminary basis that seemed to be so, he was persuaded by Mr Mallos’ submissions to rely mainly on the two statements made by Mrs Robinson, the two statements made by her daughter and the additional report from Mr Hembrey.

67 Secondly, the Assessor referred to a statement made by Mrs Robinson in the DVD that there are days when she “does not feel like going out” but that she has “other days that are better”. This was admittedly a statement contained in the DVD statement. However, it needs to be recalled that Mr Mallos was content for statements in the DVD to be placed in evidence without cross-examination. There was nothing in the manner of Mrs Robinson’s statement that carried any meaning beyond the words she used. In the context of that statement, the Assessor then referred to the surveillance video which showed Mrs Robinson crossing a road with a traffic control light in her favour. He noted that, as a pedestrian, she was very cautious about vehicles approaching the crossing and indeed, very hesitant. The surveillance video was entirely consistent with the statements made by Mrs Robinson in that regard.

68 There were only two further references to the DVD statement in the Assessor’s reason for decision. There was a reference (at para 12) to the fact that she had suffered from hiatus hernia. The Assessor mentioned that, in her video evidence, she had said that the hernia could be “very painful”. It was no part of the claimant’s case, however, that the hernia was related to the accident, nor did the Assessor treat it as such. The final reference arose in connection with a claim for hairdressing expenses on the basis that the claimant could not use her left shoulder sufficiently to be able to properly wash her hair. The Assessor said that: -

“She demonstrated in the video that she could not raise her arm above shoulder level. She would however, be capable of bending over a sink and washing her hair, as evidenced by the video surveillance but given the claimant’s age, this would no doubt pose some problems”.

69 Mrs Robinson’s demonstration of the extent to which she could lift her arm without pain was entirely consistent with the medical evidence and her own statements. It was no part of her claim that she could never lift her arm above this level. Rather the case put on her behalf was that the pain and stiffness was present on a variable basis. There was no dispute between the medical practitioners that she had pain and stiffness in her arm. Once again, it is necessary to stress that the carers, who knew her well, were available for cross-examination but it was not required of them. Their evidence was entirely unchallenged and, more to the point, deliberately untested.

70 The third matter said to disturb “the level playing field” was the use of leading questions in the DVD. First, it might be observed that the preparation of a statement in written form is itself leading. Indeed, the careful crafting of a statement by an experienced solicitor is apt to be leading in every sense of the word. Mr Mallos had no problem with a written statement. Secondly, an examination of the DVD material demonstrates that, overall, there was very little use made by Ms Holz of leading questions. True it is there were a number, but these were principally in areas that would have been unlikely to be in dispute or where the witness was invited to make a comment on certain matters. Thirdly, the rules of evidence did not apply to these proceedings and there was no reason why leading questions or statements could not be used. Fourthly, Mr Mallos was perfectly free to comment in relation to any part of the material in the DVD statement (and no doubt did) on the basis that leading questions had been put. The complaint in this regard is not made out and, in any event, the use of leading questions did not dictate a need for cross-examination. This aspect of the DVD statement did not prevent Zurich from putting its case and its arguments fairly.

71 The final point made by Mr Kunc was one that was made in a number of different ways. Essentially, it was submitted that there were “inconsistencies“ in Mrs Robinson’s case that could only be resolved by cross-examination of her. Those asserted “inconsistencies” comprised matters arising from the surveillance evidence and the matter elaborated on in Mr Mallos’ affidavit. There is no need for me to revisit the latter topic as I have dealt with it already. So far as suggested “inconsistencies” arising from the surveillance was concerned, senior counsel said they were:

· Mrs Robinson’s use of her left arm putting on a backpack in the street

· Mrs Robinson carrying a shopping bag with her left arm

· Mrs Robinson raising her left arm to put on a rain hood

· Her general mobility in walking around the shopping area at Manly

72 (I might add that, with the possible exception of the last, these were not matters mentioned by Mr Mallos in his affidavit. Rather they appeared to be topics, conjured up in armchair fashion, by the plaintiff’s lawyers during preparation for this hearing).

73 There was nothing in Mrs Robinson’s statements or in the DVD statement that raised an inconsistency arising from the use of her left arm in putting on a backpack. This action was equally consistent with the medical evidence, including the evidence relied on by Zurich. A similar remark can be made about the fact that she was observed carrying a shopping bag on her left arm. The same response may be put in relation to her using her left arm to put on a rain hood. The possibility of these simple movements was not denied by Mrs Robinson, nor was it put in issue by the medical evidence. They were not matters of inconsistency.

74 So far as her general mobility was concerned, the surveillance material plainly showed that she was somewhat unsteady on her feet, that she moved hesitantly and apprehensively where traffic was involved and that her “unaided” travel was in the vicinity of her own apartment and not much further afield. None of this was inconsistent with the case made on her behalf. Her daughter made the point in her statement that Mrs Robinson was given assistance in relation to any major shopping around Manly but that she was encouraged to get out and about as much as she could to help allay the psychiatric consequences arising from the accident.

75 It might also be noted that Mrs Robinson did not address these four matters in her DVD statement. While it is true she was asked to demonstrate her ability to raise her arm, that was not in the context of any of the four suggested issues at all. As I have said, there was no dispute on the medical evidence that the claimant had pain and stiffness in her arm and that this varied from time to time. When the entire matter of these “inconsistencies” is examined carefully, it is my view that there was no conflicting evidence that needed to be resolved by cross-examination. There were points to be made, of course, and Mr Mallos was able to and did make these in his submissions to the Assessor. No doubt, he was aided in that by the surveillance material gathered on behalf of the Insurance Company. Some of Mr Mallos’ submissions were successful. Others were not. The Assessor had little difficulty in dealing with those submissions and did so, broadly speaking, without any need to have recourse to the DVD statement. I have earlier noted the brief exceptions to this situation. It is clear that the Assessor said that he would rely mainly on the written statements and it seems that he did so. Mr Kunc suggested that the Assessor may have been influenced by Mrs Robinson’s demeanour in the DVD statement. It may readily be said that there is not the slightest reference in his reasons to any aspect of her demeanour, apart from the “embellishment” passage I have quoted earlier. I repeat that, read fairly, the reasons do not elevate that reference into a positive finding that called for cross-examination. It was, in truth, a deferral to the submission Mr Mallos had made about his inability to test the claimant.

76 Mr Kunc argued that Mrs Robinson’s lawyers must have thought there was an advantage in the Tribunal seeing her on DVD. I do not know why a decision was made to place her statement in DVD form. It may well be that they thought there was an advantage but this, in my opinion, did not trigger the principles of natural justice so as to dictate cross-examination of her in all the circumstances I have outlined. It may well be that the decision to place her statement on DVD was prompted by any number of reasons, including her age, health or her apprehension and nervousness concerning the assessment process. It may have been no more than a legitimate forensic response to the surveillance evidence although, as I have said, the DVD statement did not respond to dwell directly on any aspect of the surveillance evidence.

Conclusion

77 Initially, I posed three questions that needed to be answered to resolve the contention arising in these proceedings. The first question was resolved in favour of Zurich. The second question has now been resolved in favour of Mrs Robinson. As I am satisfied that the rules of procedural fairness did not, in the circumstances of this matter, require or dictate cross-examination of the fourth defendant to enable Zurich to present its case fairly and adequately, there is no need for me to address the third question.

78 It will be apparent from the length and complexity of this decision that both sides have been responsible for a literal barrage of submissions on what is, in truth, a simple issue. Mc Kunc suggested these proceedings were in the nature of a test case. If that be so, it is hard to imagine a more unsuitable case to test the point. The situation, involving as it did, an elderly and apprehensive injured claimant who was unlikely, under the legislation, to have been a candidate for cross-examination, was highly unusual. The issues to be resolved were essentially of a medical nature and did not extend to credibility or reliability. The situation was ideal for presentation “on the papers”. The limited use of a DVD statement did not, at least in this case, disturb “a level playing field”. I am comprehensively satisfied, in the present circumstances, that Zurich had the capacity to present its case fairly without cross-examination. The orders I make are: -

1. Summons dismissed.

2. Plaintiff to pay 4th defendant’s costs.

3 The Exhibits may be returned.

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