Court supports CARS Assessor's brief reasons

Judgment date: 29 April 2011

Allianz Australia Insurance Limited v Kerr [2011] NSWSC 347

Supreme Court of NSW – Justice Hislop

In Brief

The opportunities for successfully challenging a CARS Assessment remain limited.

Background

The insurer sought to set aside the CARS decision of Assessor Cowley. The four grounds of error submitted by the insurer were that the Assessor:

1. rejected a causation finding of a MAS Assessor and either found the injury causally related to the subject accident or failed to state reasons on the issue;
2. awarded a buffer of $200,000 without explanation, reasoning or attempt to comply with the s 126 criteria;
3. awarded past care without addressing the statutory threshold and/or failed to state reasons for the award;
4. allowed future commercial assistance failing to record reasons regarding the level or to identify or apply the principles in Miller v Galderisi¹.

The Court's findings can be summarised as follows:

1. The Assessor did not implicitly disagree or reject the causation findings of MAS. The reasons given by the CARS Assessor were adequate.
2. The Assessor complied with the requirements of s 126. There was no comment specifically on the submission that the reasons were inadequate.
3. The Court noted that while the medical evidence did not support a need greater than the threshold for one period of past care – there was evidence of a "credible witness". It appears that the claims assessor did not precisely identify (for the second period of past care) the hours provided or the hourly rate allowed. The Court considered that it was apparent from the reasons for decision that the Assessor was "mindful of the applicable threshold and the need to meet it".
4. The decision of Miller v Galderisi does not establish any principle of law and could be distinguished on the facts of the present case.

The Court's discussion of an Assessor's obligation to state reasons highlighted the following cases, legislation and guidelines:

• Minister for Immigration and Ethnic Affairs v Wu²:
  "The reasons of an administrative decision maker...are not to be construed minutely and finely with an eye keenly attuned to the perception of error."
• Insurance Australia Ltd v Helou³:
  "The obligations of an assessor to give reasons is qualified by the requirement, in s 94(5) MAC Act, that it be a "brief statement" ... When, for the reasons I have already given, the assessor has performed the task required of him to "assess the damages", and when his reasons identify the various heads of damage that he has awarded, and how he has arrived at the numbers attributed to each of those heads of damage, his statutory obligation to give reasons has been performed."
• The Claims Assessment Guidelines and the object of the Act to minimise formality, technicality and promote early resolution were referred to specifically.

Implications

• The mere suggestion or possibility that a claimant might lose his or her job may be sufficient to ground a buffer award for economic loss.
• In assessing each head of damage a CARS Assessor does not need to precisely identify the figures used to calculate the sum if it can be gleaned from the surrounding reasons that the Assessor has had regard to the law, including the statutory thresholds.
• This decision is another example of the difficulty insurers face in establishing inadequacy of reasons and challenging the outcomes of CARS Assessments.

1 [2009] NSWCA 353

2 (1989) 169 CLR 379

3 [2008] NSWCA 240

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