AAI Ltd v Josipovic

The decision about future care 11The claims assessor set out her reasons for the allowance she made in respect of future care as follows (reasons page 8-9 [66] - [74]): Future care 66. The Claimant claims four hours per week for life at $38.00 per hour as recommended by Dr Sun 67. Ms Moodley has recommended 11.75 hours per week until her children leave home and thereafter seven hours per week. I note that most of those duties include duties for all household members and not just for the Claimant. I find that recommendation excessive in the circumstances. 68. Ms McMaster does not recommend any care over and above the general give and take in a family household with five family members. Equally I do not accept that recommendation given the ongoing disabilities and symptoms that the Claimant experiences. 69. Dr Sun in his report dated 5 September 2012 has recommended six hours domestic and shopping assistance per week to be reviewed every two years. 70. I find that the Claimant still has a need for domestic assistance as a result of the injuries sustained in the subject motor vehicle accident. The Claimant claims this on a commercial basis but the Insurer submitted that if I were to award any care, it should not be on a commercial basis given that the Claimant allegedly told Ms McMaster that she would not want anybody to come into her house to clean her house. 71. I appreciate that the Claimant may have said that but it was not challenged at the assessment conference but in any event that it not the test in determining need for future care. 72. The Claimant's children will move out of home and her husband continues to work full time. Therefore her needs will be on a commercial basis as opposed to provided by her family on a gratuitous basis. 73. I allow three hours per week at $38.00 per hour for a further 20 years as follows: $3 x $38 x 666.4 = $75,969.60 74. I assess future care at $75,969.60 [emphasis in the original].

Evidence 12The insurer relied upon the affidavit of Ms Laura Marie D'Alessandri sworn 27 June 2013 annexing some of the material that was before the claims assessor. Ms D'Alessandri is the solicitor for the insurer. The claimant relied upon the affidavit of her solicitor, Ms Shmeet Kaur Dalliwall, affirmed 29 August 2013. The affidavits were filed on 11 July 2013 and 3 September 2013 respectively. 13Given the narrowness of the dispute it is, in my view, sufficient to refer only to some minor details to supplement the reasons of the claims assessor as set out above, to the extent to which the insurer relies upon jurisdictional error, and to better understand the legal issues argued before me. 14The claimant gave the following evidence in her statement dated 14 September 2011, which appears to have been substantially accepted by the claims assessor: 50. I have continuing problems with the heavier cleaning activities of vacuuming, sweeping and mopping. I occasionally have trouble with putting away the dishes and I regularly have difficulty cleaning pots and pans and the like. I also require assistance on occasions with the shopping particularly if I am having a larger shopping day. 51. In this regard my eldest daughter Jelena presently aged seventeen, provides the principle assistance. There have been occasions when she has worked considerably to the order of eight to ten hours a week, although on average I am comfortable to say eight hours a week would be an accurately conservative figure. Jelena gets some assistance from her sister, Dragana, but it is Jelena who does most of the work. 52. Jelena tells me that she will be home for the next year or so, but after that she is planning to join the police force and that will involve her going to the Goulbourn police academy. 53. Thereafter I will need some assistance and Dr Sun has recommended an ongoing need of four hours per week by way of paid care and assistance. 15The insurer relied particularly on the following passage in the report obtained by it from an occupational therapist, Ms Margie MacMaster, dated 1 November 2012 (page 31): [The claimant] indicated that she would feel uncomfortable about having outside assistance and does not want outside assistance. She stated that she believes that the family can all share the tasks that they are involved in and this appears reasonable and consistent with most family unit living. 16The insurer made the following submissions in writing: Whether the claimant should be awarded commercial care 19. The insurers primary submission is that the claimant requires no domestic assistance, particularly as she is working full time as a cleaner which indicates that she has the capacity to undertake these duties. 20. In any event, the insurer submits that commercial care is not indicated and relies on the history obtained by Ms MacMaster at page 31 that the claimant would feel uncomfortable about having outside assistance and does not want outside assistance.

Relevant statutory provisions 17The claims assessor was exercising the power conferred by s.94 of the Act which provides as follows: (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 (being the amount of damages that a court would be likely to award). (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. 18In particular the claims assessor was making an assessment of "the amount of damages" for which the insurer was liable. As the words in parenthesis in s.94(1)(b) make clear, the claims assessor is required to direct herself to, and apply, the common law of damages as modified by the provisions of Chapter 5 of the Act (see also ss.122 and 123 of the Act) for the purpose of her assessment. It is well to record that there is no statutory provision modifying the operation of the common law compensatory rule in the determination of an allowance for future care on a commercial basis (cf s.141B of the Act) other than in relation to the applicable "discount rate": s.127 of the Act. 19The argument before me proceeded on the basis that the application of the compensatory principle in respect of damages referrable to the value of future services of a domestic nature to be provided on a commercial basis was to be approached by analogy with the principle established in Graham v Baker [1961] HCA 48; 106 CLR 340 at 347 in as much as the diminution in the ability of the claimant to perform services of a domestic nature for her own benefit gives rise to a need that "is or may be productive of financial loss". Conventionally where, as here, the question is whether that need may be productive of financial loss in the future, that is a hypothetical question to be assessed in accordance with Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 640 and 643; see also Miller v Galderisi at [22] - [24]; Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [46]. 20Section 104 of the Act is concerned with proceedings before claims assessors and is in the following terms: (1) In this section: assessment conference means any conference or other proceeding held with or before a claims assessor in connection with an assessment of a claim, and includes any such proceedings at which the parties (or some of them) participate by telephone, closed-circuit television or other means. (2) A person who is a party to an assessment under this Part is entitled to be represented by an Australian legal practitioner or by an agent. The claims assessor may however refuse to permit a party to be represented by an agent if of the opinion that the agent does not have sufficient authority to make binding decisions on behalf of the party. (3) A party to an assessment at an assessment conference is entitled to such representation or assistance (for example, the assistance of an interpreter) as may be necessary to enable the party to communicate adequately at the assessment conference. (4) A claims assessor must take into account any written submission prepared by an Australian legal practitioner acting for a party to the assessment and submitted by or on behalf of the party (whether or not the party is represented by an Australian legal practitioner at an assessment conference on the assessment of the claim). (5) A claims assessor may, subject to any general directions of the Principal Claims Assessor, hold an assessment conference with all relevant parties in attendance and with relevant experts in attendance, or a separate assessment conference in private with any of them. (6) If the claims assessor is satisfied that sufficient information has been supplied to him or her in connection with an assessment, the assessor may exercise functions under this Act without holding any assessment conference or other formal hearing. (7) In proceedings before a court with respect to a claim (other than proceedings under Part 4.6), evidence of a statement made during an assessment conference is not admissible unless the person who made the statement agrees to the evidence being admitted. 21In the context of the present dispute, I would emphasise s. 69(4) empowers the authority to issue guidelines for claims assessment, which have the force of delegated legislation: s.69(6). 22I was provided with a copy of the current form of the Claims Assessment Guidelines (the Guidelines) to refresh my judicial memory of them. No particular emphasis was placed upon the provisions of Chapter 15 of the Guidelines dealing with the assessment conference. But having regard to the statutory obligation of the claims assessor to attach a brief statement of her reasons to the certificate of assessment, the insurer drew my attention to the provisions of clause 18.4, which is in the following terms: A certificate under section 94 or 96 is to have attached to it a statement of the reasons for the assessment. The statement of reasons is to set out as briefly as the circumstances of the assessment permit: 18.4.1 the findings on material questions of fact; 18.4.2 the Assessor's understanding of the applicable law if relevant; 18.4.3 the reasoning processes that lead to the Assessor to the conclusions made; and 18.4.4 in the case of an assessment certificate pursuant to section 94, the Assessor must specify an amount of damages and the manner of determining that amount. In regard to these considerations, the reasoning of Basten JA in Kerr at 314 [47] to 318 [52] is, with respect, applicable.

The applicable principles governing judicial review 23The Motor Accidents Claims Assessment and Resolution Service is a unit established by the Motor Accidents Authority in compliance with s.98 of the Act. It consists, inter alia, of claims assessors. I summarised the legal principles relevant to the exercise of the Court's supervisory jurisdiction in this context in Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650; 61 MVR 245 at 254 [38] - 255 [42] in the following terms: [38] On the other hand, for the purpose of identifying what may constitute jurisdictional error, it is important to observe that the review panel is not a court, but is rather an administrative tribunal: Craig [[1995] HCA 58; 184 CLR 163] at CLR 176-80; ALR 600-3; ALD 197-200; Re. Refugee Review Tribunal; Ex parte Aala (2000) 204 CLR 82 ; 176 ALR 219 ; 62 ALD 285 ; [2000] HCA 57 at [141]-[163]; Minister for Immigration and Multicultural Affairs v Yusuf (2001) 206 CLR 323;180 ALR 1; 62 ALD 225; [2001] HCA 30 at [82]; Kirk v Industrial Court (NSW) (2010) 239 CLR 531; 113 ALD 1 ;262 ALR 569 ;[2010] HCA 1 at [66]-[70]. Accordingly, the test expressed in Craig at CLR 179; ALR 602; ALD 199, broadly defining jurisdictional error of law, applies. [39] In some Australian jurisdictions the width of the applicable principle may have rendered the distinction between jurisdictional errors and errors of law on the face of the record otiose. Section 69(3) and (4) Supreme Court Act 1970 maintain the vitality of the category of error of law on the face of the record in this jurisdiction. [40] There is no necessary dichotomy between jurisdictional error, on the one hand, and error of law on the face of the record, on the other: the same error may satisfy both descriptions: Kirk at [55]. Although a conclusion that jurisdictional error is shown makes consideration of whether there is an error of law on the face of the record superfluous: Kirk at [78]. The subsequent discussion in Kirk explains that the continued vitality of the category of error of law on the face of the record depends not only upon the provisions of s 69(3) and (4), but also upon constitutional considerations (Kirk at [78]-[79]). Naturally an error of law on the face of the record needs to be dispositive before certiorari will lie: Jabetin Pty Ltd v Liquor Administration Board (2005) 63 NSWLR 602 ; [2005] NSWCA 92 at [28]; Ackling [Ackling v QBE Insurance (Australia) Ltd and Anor [2009] NSWSC 881; 75 NSWLR 482] at [43]. There is no privative provision to take non-jurisdictional error of law on the face of the record out of play in the present case: Kirk at [100]. Disposition [41] It is worthwhile setting out in full [82] of Yusuf: It is necessary, however, to understand what is meant by "jurisdictional error" under the general law and the consequences that follow from a decision-maker making such an error. As was said in Craig v South Australia, if an administrative tribunal (like the Tribunal) " falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and the tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it". "Jurisdictional error" can thus be seen to embrace a number of different kinds of error, the list of which, in the passage cited from Craig, is not exhaustive. Those different kinds of error may well overlap. The circumstances of a particular case may permit more than one characterisation of the error identified, for example, as the decision-maker both asking the wrong question and ignoring relevant material. What is important, however, is that identifying a wrong issue, asking a wrong question, ignoring relevant material or relying on irrelevant material in a way that affects the exercise of power is to make an error of law. Further, doing so results in the decision-maker exceeding the authority or powers given by the relevant statute. In other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he or she did not have jurisdiction to make it. Nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law. [42] The failure to take into account a relevant consideration is, of course, a ground of judicial review for jurisdictional error. As McHugh, Gummow and Hayne JJ pointed out in Yusuf at [74], by reference to Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 35-6 ; 93 ALR 1 at 25 per Brennan J, the ground is essentially concerned with whether the decision-maker has properly applied the law, and not ... with the process of making the particular findings of fact upon which the decision-maker acts. As Mr Robinson pointed out in argument by reference to Minister for Aboriginal Affairs. v Peko-Wallsend Ltd (1986) 162 CLR 24 at 39-42 ; 66 ALR 299 at 308-11 per Mason J, the ground is only made out if a decision-maker fails to take into account a consideration which he is bound to take into account in making that decision (emphasis in the original). Doubtless this is why the plurality in Yusuf laid emphasis on the question of whether the law had properly been applied. 24As Basten JA pointed out in Kerr at 318 [62]: ...the range of challenges on a judicial review application is limited to errors of law on the face of the record and jurisdictional error. In the case of the latter, the kind of error is more limited, but the scope of inquiry is broader. In principle, in order to go beyond the face of the record, it would be necessary to identify a jurisdictional error. His Honour pointed out that a breach of the obligation to express reasons for a material finding would be an error of law on the face of the record. His Honour continued, however, there may be some question about whether such a matter constitutes jurisdictional error, notwithstanding what was said by Hidden J in Allianz Australia Insurance Ltd v Ward [2010] NSWSC 720; 79 NSWLR 657 at [53]. Unless the insurer's complaints about the adequacy of the claims assessor's reasons constitute jurisdictional error, I would not be justified in going beyond the record itself and having regard to the additional material defining the issues before the claims assessor I have set out above.

The arguments of the parties 25As I have set out above, the insurer impugned the legality of the claims assessor's decision on three grounds. By way of elaboration of these grounds extensive written submissions were relied upon. Central to the argument in respect of each matter was the submission that the claims assessor had failed to have regard to what the claimant had said to Ms. MacMaster about her disinclination to have persons outside the family enter the home to provide domestic assistance. However, as I understood the argument of Mr. Robinson SC, who appeared for the insurer, he did not contend that the claimant's statement, which I would categorise as an "evidential admission", was a mandatory consideration of the type discussed by Mason J (as he then was) in Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40;162 CLR 24 at [39] - [42]. Rather, I understood Mr. Robinson to argue that the claims assessor's failure to expand on what she regarded as the relevant legal test in [71] (page 9) of her reasons disclosed error in a manner which underpinned each of the three ways in which the insurer categorised its complaints. The point seems to be that the admission made to Ms. MacMaster, considered in the light of the decision in Miller v. Galderisi, required the claims assessor to reject the claim for future commercial care. 26Mr. Sexton SC, who appeared with Mr. Trainor and Mr. Lee for the claimant, argued that the relevant principle was the compensatory principle and the only question involved is whether there was sufficient evidence, or material, to justify an allowance for commercial care. It was submitted that this question should be answered in the affirmative. It was further submitted that the evidence of the claimant, the statement from her daughter, and the medical evidence referred to by the claims assessor provided ample justification for the allowance in fact made. It was argued that if the assessor's reasons were succinct, given the obligation of brevity incumbent upon her, they were sufficient. 27Page 9 [71]) involves some syntactical infelicity, but the meaning was tolerably clear; that is, that the admission was not decisive of the claimant's entitlement. Rather the claims assessor was entitled to evaluate the admission in the light of the other material she found acceptable. Looked at this way, the claims assessor's decision was that she identified the evidence she found acceptable, by reference to it resolved the issues the parties had raised for determination in favour of the claimant, and made an allowance open on the material she identified. None of the grounds relied upon by the insurer, according to the claimant's argument, had been made good.

Disposition 28I accept the claimant's argument that Miller v Galderisi does not give rise to any inflexible rule applicable in all circumstances where, up to the date of assessment, a family member or friend has provided the necessary care voluntarily. I accept Mr. Sexton's argument that the present case falls into the category discussed by Basten JA in Kerr at 314[44] - [46] which I will set out in full: [44] The complaint raised by the applicant is not concerned with the hours allowed, but with the assumption that, for the future, gratuitous care would not be available and commercial assistance would be required. [45] Before the primary judge, the applicant submitted that the reasoning in Miller v Galderisi [2009] NSWCA 353 required the assessor to be satisfied that domestic assistance would, on the balance of probabilities, be obtained on a commercial basis in the future and not make an award "because there is a remote, though not entirely fanciful, chance of the need for commercial domestic assistance in the future": at [24]. No such finding was made, nor was the issue addressed by the assessor. [46] As the respondent correctly pointed out, the principle derived from Miller must be seen in its factual context. In that case the claim for commercial assistance was allowed at trial in circumstances where the claimant was obtaining assistance from her spouse and members of her family. It is possible to envisage circumstances in which family members (through age or departure from the family home) may no longer be able or available to provide such assistance. That would provide a sound basis for an award of compensation for commercial assistance, if those circumstances were properly established, but they were not established in Miller. In the present case, no such presumption of continuity arose: the main provider of gratuitous assistance, Mr Hillard, was a long-term friend, but not a family member. There was no relevant legal error affecting this aspect of the assessment. 29Given the explanation obviously accepted by the claims assessor at page 9 [72], this case was a case where it was open to the claims assessor to make an allowance for domestic care on a commercial basis. There was no presumption of continuity in the present case; the evidence accepted by the claims assessor explained that the support previously provided by the claimant's elder daughter was unlikely to be available beyond the relatively short term. Given that the statement was made in September 2011, expressing the claimant's expectation that her elder daughter's help would not be available within the following year or so, it was open to the claims assessor to run the allowance for future commercial care from the date of her decision in March 2013. To the extent to which Malec was engaged by the uncertainties and imponderables inherent in the hypothetical question under consideration, the limitation of the calculation by the claims assessor for a period of 20 years for a female claimant aged 39 years and 5 months at the date of the assessment sufficiently accommodated it. 30The obligation of the claims assessor to give reasons must be determined by the language of s.94(5) itself, rather than by the requirements of clause 18.4 of the guidelines, for the reasons explained by Basten JA in Kerr at 315 [52] - 316 [53]. If clause 18.4 purports to impose any greater obligation than s.94(5), as Basten JA pointed out, "there might be an issue as to [its] validity". 31Likewise for the reasons given by Basten JA at 316 [53], it ought to be accepted that the obligation imposed by s.94(5) is more limited than the obligation falling on a judge deciding the same question. The legal standard is the "minimum acceptable level" to constitute a proper discharge of the statutory obligation: cf Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48] per Basten JA, Beazley JA (as her Honour then was) and Macfarlan JA agreeing. 32After reviewing relevant authorities such as Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; 206 CLR 323 at [5] - [9], and Re Minister for Immigration and Multicultural and Indigenous Affairs, Ex parte Palme [2003] HCA 56; 216 CLR 212 at [40], Basten JA explained the obligation of the assessor in the following terms (at 317 [59] and 318 [61]): [59] While is it sometimes, but not always, true that lengthy reasons will give greater assistance and understanding than brief reasons, the obligation on the assessor was not to give lengthy reasons. The explanation provided was sufficient to warrant the award of a significant sum of money for future economic loss. The obligation imposed by statute did not require him to explain why some particular amount was chosen as opposed to another. Even in circumstances where this court has intervened on an appeal by way of rehearing, the amount chosen has been identified with little explanation as to how the figure was selected: see, eg, Werner v Krahe [2002] NSWCA 168 at [29] (Foster AJA, Hodgson JA agreeing); Sretenovic v Reed [2009] NSWCA 280 at [86] (McColl JA, Beazley JA agreeing); see also, in rejecting a challenge, Leichhardt Municipal Council at [34] and, in assessing a buffer, Ilic v O'Connor [2004] 2 DCLR (NSW) 249 at 264-265 (Patten DCJ). [60] The applicant has not demonstrated error of law in this respect. [61] With respect to the separate challenge based on inadequacy of reasons in awarding an amount for future domestic assistance, at commercial rates, a somewhat different analysis applies. Reasons are designed to dispose of issues before the Tribunal. Adapting the analysis of Gleeson CJ in respect of fact-finding in Yusuf , if the reasons do not refer to a particular matter the inference may readily be drawn, absent evidence to the contrary, that the issue had not been raised for determination. In Campbelltown City Council v Vegan [2006] NSWCA 284 ; 67 NSWLR 372 at [130], I suggested that because the record included the reasons of the tribunal, inadequacy will inevitably be an error of law on the face of the record. In other words, if the reasons have failed to deal with some matter which should have been dealt with, a different kind of error may be revealed. Just as the assessor was not required to give reasons for findings he did not make, so he was not required to give reasons for issues he did not determine. 33In the present case, it is clear on the face of the record by reference to the claims assessor's reasons, and also by reference to the additional material I have set out above on the assumption that an error of this type will be jurisdictional error, that an issue was raised about the likelihood of future assistance being provided on a commercial basis. The claims assessor's reasons identified the claim for commercial care and the terms on which it was sought, together with the insurer's challenge to that aspect of the claim and the basis of it. Whilst, as Mr Sexton submitted, the claims assessor's reasons were succinct, she resolved the issue that she had identified in the passage at page 8 [66] - 9 [70] by the following three paragraphs, all of which I have set out above and will not repeat. In context no more was required. 34As I have said, there is a syntactical infelicity at page 9 [71]. Both parties accepted as much, but differed as to the true meaning to be ascribed. Viewed from the standpoint of the insurer, it may be that the claims assessor was accepting that the claimant did not dispute making the admission to Ms. MacMaster. Even accepting that, in my view the admission of itself could not have been determinative and the claims assessor was not bound to treat it as decisive. Her statement that the claimant's desire not to have an outsider come in to clean her house [is] "not the test" for determining the need for future care was undoubtedly correct. Whatever the claimant's state of mind at the time she saw Ms. MacMaster, the claims assessor was entitlted to find, as she did (for the reason expressed at page 9 [72]), that future care would be provided on a commercial basis. 35I accept that the claims assessor was bound to give serious consideration to the issue about future care on a commercial basis that had been raised for determination by the parties: Lafu v Minister for Immigration & Citizenship at [47]. In my judgment, for the same reasons I have already given, she complied with this obligation. 36The insurer has failed to make good its claim for an order in the nature of certiorari. I might add for completeness that no discretionary ground was raised in opposition to the relief sought had jurisdictional error or error of law on the face of the record been demonstrated. 37My orders are: (1)Proceedings dismissed; (2)The plaintiff to pay the first defendant's costs of and incidental to the proceedings forthwith after they have been agreed or assessed.

Amendments 30 October 2013 - Insert the word "not" after the word "desire". Amended paragraphs: 34 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 30 October 2013