Case Note: Insurance Australia Limited t/as NRMA Insurance v Helou
[2007] NSWSC 1451
Malpass AJ
In Brief
- The grounds for successfully challenging a CARS Assessment on the basis of jurisdictional error are extremely limited.
- An allegation of generosity in the assessment of damages does not amount to jurisdictional error.
- An allegation that an Assessor misinterpreted a medical report does not amount to jurisdictional error.
Background
The Supreme Court handed down its decision in Insurance Australia Limited v Helou on 14 December 2007.
The Claimant was seriously injured in a motor accident on 22 November 2000. The claim proceeded to Assessment and a Certificate was issued in the sum of $1,494.794.30 plus costs of $90,879.50.
The Assessment included a sum of $1,015,982 for future domestic assistance.
The Claimant was approximately 55 years of age at the time of the accident. It was common ground that the Claimant suffered from a serious back condition prior to the accident which was likely to give rise to a need for care in the future. Nevertheless, the Assessor found a need for 45.5 hours of gratuitous care per week for 10 years and, thereafter, a need for commercial care at 50 hours per week for the next 20 years.
The Insurer sought to have the Section 92 Certificate set aside on the grounds of jurisdictional error.
In general terms, the Insurer argued jurisdictional error on the following bases:
- The Assessor failed to apportion the Claimant's disability referable to his cervical spine and lumbar spine, in circumstances where the Claimant suffered from a serious pre-accident lumbar condition,
- Having found a significant pre-accident lumbar condition which was "very precarious" and was "likely to have had a significant detrimental effect on his ability to work and live without some form of care in the future", the Assessor's assessment of future care was so unreasonable that no reasonable decision maker would have made it,
- The Assessor misread or misapplied various medical opinions as to the Claimant's condition.
Malpass AJ
The Application came before Malpass JA for determination. His Honour found no jurisdictional error and, accordingly, refused the Application.
At paragraphs 36 and 37, his Honour made some general observations about an Assessor's role:
"36 A statutory process for assessment has been put in place. What must be done by the Assessor is to be gleaned from the relevant statutory provisions and guidelines. The role of the Assessor is distinguished from that of either a court or the Court& He is required to specify an amount of damages for the liability of the [Insurer] in respect of the claim and to attach a brief statement to his certificate setting out his reasons for the assessment. The statement has to comply with Chapter 16 of the guidelines. The Assessor has to assess damages in accordance with Chapter 15 (sic) of the Act.
"37 It seems to me that this is what he did and I am not satisfied that the Assessor did other than perform the role prescribed by the statutory scheme."
After stating an assumption that an Assessor must apply "well-established common law principles" (see paragraph 38) such as Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164, Malpass JA held that the Assessor properly identified and resolved the issues arising from the Claimant's significant pre-existing lumbar condition. Specifically, his Honour reasoned, as follows, at paragraphs 40 and 41:
"40 The statement reveals that the Assessor had a clear and accurate understanding of the issues that he was required to address. He identified the pre-existing lumbar spine condition (2.5.1.). He made a finding of aggravation of that condition/disc protrusion (2.5.4.2.). He made a finding that the accident did make a material contribution to the [Claimant's] lumbar spine condition (3.9.). He made a finding that the pre-existing condition was very precarious and was likely to have had a significant detrimental effect on the [Claimant's] ability to work and live without some form of care in the future (3.10.). Thereafter, he made various observations which confirmed that he continued to have in mind that in assessing the claim for damages an allowance had to be made for the pre-existing condition in the lumbar spine (inter alia, 3.10., 7.1., 8.7., 9.1. and 9 .7.). There are passages in the statement in which he records expressly that such an allowance is being made.
"41 I am not satisfied that the amount allowed for any head of damage has been assessed on a global basis (without regard having been had to causation). It seems to me that the Assessor performed the assessment task by addressing the issues identified in the statement. I consider that his assessment took into account both the accident's material contribution to the first defendant's lumbar spine condition and the precarious pre-existing condition of that spine."
Having found that the Assessor made no error in his assessment of the Claimant's pre-existing condition, Malpass AJ proceeded to also reject the argument that the award for future care was so unreasonable that no reasonable decision-maker would make it. His Honour did so, at paragraph 46, by highlighting the very narrow grounds upon which an allegation of jurisdictional error will succeed:
"46 It needs to be appreciated that the Court is not hearing an appeal on quantum from the assessment, it is considering an application for judicial review, where the grounds for intervention are restricted to jurisdictional error and error of law on the face of the record. Whilst some minds may put the assessment of future care in the high category, I do not consider that any such generosity attracts the relief that is available to the plaintiff. Accordingly, for this further consideration, I am of the view that the unreasonableness ground fails."
In respect of the assessment of the medical evidence, Malpass AJ held that even if the Assessor misunderstood or misinterpreted the content of a medical report, this does not amount to jurisdictional error or error on the face of the record. The reports were relevant to the live issues in the Assessment and the Assessor was, therefore, entitled to have regard to them. Attacking the Assessor's interpretation of the reports amounted to challenging the Assessor's findings of fact, which can not constitute jurisdictional error.
Malpass AJ therefore rejected each ground of review raised by the Insurer and dismissed the Application.
Implications
The decision in Helou highlights how difficult it is for a party to set aside a CARS Assessment on the basis of jurisdictional error.
Such an Application will only succeed on the basis of an error which is obvious on the face of the record.
An example of such an error is Richards v Richards [2006] NSWSC 140 where the Assessor made an award for future gratuitous care at a level below the 6 hour per week threshold in s 128. In that case, the failure to apply s 128 was obvious and rendered the decision susceptible to administrative challenge.
It is important to recognise the different standards which apply to an appeal from a District Court Judge's assessment of quantum and an administrative law challenge from a CARS Assessment.
The arguments made by the Insurer in Helou may have succeeded if the appeal were from a District Court Judge. An argument that the decision-maker's assessment of damages was excessive, in light of a pre-existing need, is an argument which is often made in the Court of Appeal, as is the contention that the decision-maker misinterpreted the medical evidence.
Yet in Helou, Malpass AJ held that neither potential generosity in the assessment of damages, nor a potential misreading of a medical report amounted to jurisdictional error.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
