Allianz Australia Insurance Limited v Serria Girgis & Ors

Judgment 1Allianz Australia Insurance Limited (Allianz) seeks an order in the nature certiorari or, alternatively, a declaration setting aside or declaring invalid the assessment and certificate made by an assessor of the Claims Assessment and Resolution Service on 23 December 2010 under s 94 of the Motor Accidents Compensation Act 1999 (Act), together with ancillary relief. Background 2The first defendant, Ms Girgis, was injured in a motor accident on 30 May 2008. Allianz was the compulsory third party insurer of the vehicle at fault and admitted breach of duty of care. Ms Girgis made a claim for damages against Allianz under the Act. There being no issue as to liability. The claim was dealt with by the Claims Assessment and Resolution Service. 3There was a dispute between Ms Girgis and Allianz as to whether the physical injuries suffered by Ms Girgis in the accident gave rise to permanent impairment greater than 10% and as to the justified extent of domestic assistance. Each question was referred to a different Medical Assessor for certification. The injuries referred for assessment were musculo-ligamentous injuries to the cervical spine, the thoracic spine, the lumbar spine and the left shoulder together with a tear/musculo-ligamentous injury to the right shoulder. A certificate under s 61 of the Act was issued by Dr Dowda on 16 May 2009. He found that the musculo-ligamentous injuries to the cervical and lumbar spine were caused by the accident of 30 May 2008 but that the other injuries were not caused by the accident. He found that the impairment arising from the injuries to the cervical and lumbar spines was not permanent as at the time of his assessment on 13 May 2009 and, accordingly, was unable to assess the degree of permanent impairment. However, on 20 January 2010 Dr Dowda assessed the degree of permanent impairment in respect of the injury to the cervical spine at 5%; although the injury to the lumbar spine gave rise also to a permanent impairment of 5%, he found that this was pre-existing and that the accident did not cause any greater degree of permanent impairment. Accordingly, total permanent impairment caused by the motor accident was assessed at 5%. As to the extent of the domestic assistance required by Ms Girgis as a result of the injuries caused by the accident, Dr Menogue certified on 21 October 2010 that the injuries to Ms Girgis' cervical and lumbar spine did cause a need for domestic assistance of two hours a week from the date of the accident to six months after the date of his assessment. He certified that the (much larger) allowance claimed by Ms Girgis was not reasonable and necessary. 4By virtue of s 61(2) of the Act, a "certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned". 5The medical assessment process being complete, an assessment conference took place before Assessor Broomfield on 21 December 2010. On 23 December 2010 Assessor Broomfield issued a certificate, including reasons, under s 94 of the Act. As he noted, Allianz contended that Ms Girgis had merely suffered a temporary aggravation of a previous injury to her right shoulder and neck, Dr Dowda having misread an ambulance report in certifying otherwise, whilst it was argued for Ms Girgis that, although she had a prior history of neck, right shoulder and low back complaints, those conditions were essentially asymptomatic until permanently and severely aggravated in the accident and suffered an additional degree of disability by the aggravation of a pre-existing psychiatric condition. The Assessor posed the issue to be determined as: what physical and psychiatric injuries were sustained in the accident and what disabilities has and does the Claimant suffer". He concluded that the motor accident had caused injuries to the neck, right shoulder, low back and left shoulder of Ms Girgis and had also aggravated a pre-existing psychological condition warranting the diagnosis of Chronic Adjustment Disorder with depressed mood. These findings, of course, provided the basis for his assessment as to the past and future treatment expenses and economic loss. For understandable reasons he did not attempt to separately quantify the contribution that each injury made to Ms Girgis' incapacity. (It is, perhaps. worth noting that, even if Assessor Broomfield had gone no further than Dr Dowda's identification of the injuries caused by the accident, it would be very doubtful, in light of Ms Girgis' psychiatric condition, that the assessment of loss would have been significantly less.) 6Assessor Broomfield awarded a buffer for future economic loss of $50,000. Issues 7It submitted by Mr Rewell SC for Allianz that (contrary to its approach at the assessment) Assessor Broomfield was bound by the findings of Dr Dowda as to which injuries were and were not caused by the accident and erred in determining this question for himself. It also submits (again, contrary to its earlier approach) that the Assessor was bound by Dr Menogue's conclusions as to what was an appropriate level of domestic assistance. It is also submitted that the reasons for determining the amount of the buffer did not satisfy the requirements of s 126 of the Act. 8The four questions posed by this case are: first, whether Dr Dowda's certificate conclusively identifies the only (physical) injuries caused by the accident or whether, on the other hand, Assessor Broomfield was entitled to come to his own view as to what injuries were caused by the accident for the purpose of determining the extent of her disabilities giving rise to economic loss; second, whether Assessor Broomfield was entitled to come to his own view about the extent of domestic assistance required in the past and for the future or was bound by the assessment of Dr Menogue; third, whether in respect of the award of $50,000 for future economic loss, Assessor Broomfield's reasons were sufficient; and, fourth (if Allianz established the legal errors for which it contended), whether relief should be refused relief in light of the manner in which it litigated the case before Assessor Broomfield. The legal framework 9Chapter 3 of the Act provides for medical assessments to be made in respect of motor accident injuries. The provisions presently relevant are - s58 Application (1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters (referred to in this Part as medical assessment matters ): (a)whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances, (b)whether any such treatment relates to the injury caused by the motor accident, (c)(Repealed) (d)whether the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%. (e)(Repealed) (2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor. s61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (3) (Repealed) (4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party. (5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings. (6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part. (7) Except as provided by subsection (6), a court may not substitute its own determination as to any medical assessment matter. (8) This section: (a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and (b) does not require a court to refer a matter again for assessment under this Part if the matter is not a medical assessment matter. (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. (10) The following procedure is to apply if the assessment of more than one medical assessor is required to assess whether the degree of permanent impairment of the injured person is greater than 10% (not being an assessment of the degree of permanent impairment resulting from psychiatric or psychological injury): (a) each medical assessor is to give a certificate as to the degree of permanent impairment of the injured person resulting from the particular injury or injuries with which the medical assessor's assessment is concerned, (b) based on the matters certified in each such certificate a medical assessor nominated by the Authority for the purpose is to make an assessment of the total degree of permanent impairment resulting from all the injuries with which those certificates are concerned and is to give a certificate (a combined certificate ) as to that total degree of permanent impairment, (c) the combined certificate is conclusive evidence as to whether the degree of permanent impairment of the injured person is greater than 10% and this section applies to the combined certificate accordingly. 94 Assessment of claims (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. 126 Future economic loss-claimant's prospects and adjustments (cf s 70A MAA) (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted. 10"Treatment" is defined in s 42 of the Act as including "the provision of attendant care services". "[A]ttendant care services" is defined in s 3 of the Act to include "domestic services". Submissions 11Allianz submitted that the effect of s 61(2) of the Act was that the certification by Dr Dowda was conclusive for all purposes as to whether and which injuries were and were not caused by the accident, as was that by Dr Menogue as to the extent of domestic assistance to which those injuries gave rise. 12(I deal with the discretionary question separately below.) 13So far as the buffer was concerned, although Assessor Broomfield referred to the likelihood that Ms Girgis would in the future undertake a combination of part-time and full-time work with a chance of some periods of unemployment and was able with further training to attain other qualifications with good prospects of obtaining significant part-time work and thus enjoy improved psychiatric health, this did not provide an adequate explanation for the amount awarded for future economic loss. It was at least necessary to identify what form of employment Ms Girgis might have obtained had the accident not occurred, some assessment of potential earnings, the ratio of part-time to full-time work and the extent of the possible periods of unemployment and the way in which her impairments impacted upon the kind and extent of employment she could undertake. It was submitted that the reasons given did not satisfy the requirements of s 94(5) and, in particular, the requirement of s 126(3) that the assumptions on which an award of future economic loss is made and the relevant percentage by which damages are adjusted must be stated. 14It is submitted by Mr Romaniuk on behalf of Ms Girgis that a certificate of a Medical Assessor is conclusive only as to whether the degree of permanent impairment of the injured person is greater than 10%. It is submitted that, since the discussion in the guidelines relating to causation, based upon the assertion that a "determination as to whether the claimant's symptoms and impairment are related to the accident in question is therefore implied" in any assessment of the degree of permanent impairment, explains causation in a constrained and partial way "which does not reflect the subtleties and nuisance [sic, perhaps an understandable mistake but I think counsel meant nuance] of the common law of causation or address the statutory test contained in s 5D of the Civil Liability Act 2002 ", and it is the latter two characterisations of the test for causation which apply to the assessment of economic loss, the finding of the Medical Assessor should be confined to the assessment of the degree of permanent impairment. It is argued that the "special" (my word) test of causation in the Guidelines bespeaks an intention to confine the Medical Assessor's determination of the degree of permanent impairment to the entitlement to damages for non-economic loss. At all events, s 61(2) in giving conclusiveness "as to the matters certified", should be interpreted as meaning only that the finding of the degree of permanent impairment is conclusive evidence as to that assessment and no evidence can be adduced as to whether it is greater or lesser than 10%. 15So far as the adequacy of the reasons are concerned counsel for Ms Girgis submit that assessors should act with as little formality as the circumstances permit according to equity, good conscience and the substantial merits of the matter without regard to technicalities and legal form, taking into account amongst other things the minimisation of formality and technicality and the desirability of early resolution. Counsel pointed to the accepted view that a buffer is appropriate where the impact of an injury upon earning capacity is difficult to determine and that the Assessor's description of the consideration that led him, first to provide a buffer award and, secondly allow $50,000 was adequate and that court should be careful not to turn a view of the adequacy of the Assessor's reasons into a reconsideration of the merits of the decision. Discussion 16By virtue of s 58(1), Part 3.4 applies to a "disagreement between a claimant and an insurer about any of the following matters..." The degree of permanent impairment resulting from the injury caused by the motor accident is one of those matters and is defined as a "medical dispute" by s 57. Section 60 requires such a dispute to be referred to a medical assessor. Section 61 requires the Medical Assessor to whom the "medical dispute is referred... to give a certificate as to the matters referred for assessment". Since it is obvious that a dispute could well arise as to whether any particular nominated injury was present at all or, if present, whether it was greater than 10% or not and whether it is caused by the motor accident in question, decisions as to these matters must necessarily be capable of being made by the Assessor. It is of course, more than merely theoretically possible that the real dispute as to whether injuries were caused by a motor accident is whether an accident occurred at all although there is no dispute that the claimant has been injured and suffered a permanent impairment of some kind. It would indeed be difficult to describe a dispute of this kind as a "medical dispute" in ordinary language. Nevertheless, Allianz contends that such a disagreement is a medical assessment matter within the meaning of s 58 and, hence, the decision that there was or was not a motor accident (where there is a finding that the claimant was injured) is conclusive evidence to that effect within the meaning of s 61(2). Even if the Medical Assessor determined for patently mistaken reasons that a motor accident occurred (to which the injuries were attributable), the certificate would nevertheless be binding in any court proceedings unless a denial of procedural fairness were established: s 61(4). A mere mistake of fact, however patent, would not be a denial of procedural fairness. Under s 63, however, the party aggrieved by the decision in this example could apply for a review panel on the ground that "the assessment was incorrect in a material respect": s 63(2). It seems obvious that a mistaken finding as to whether or not any motor vehicle accident occurred would satisfy this requirement. Under s 63(3A) the review is a "new assessment of all the matters with which the medical assessment is concerned". One would naturally expect that a patent mistake would be corrected. Of course, not every mistake is patent and their existence is not made any less likely where the relevant material is complex. It is, perhaps, worth noting that, in the present case, the reasons that led Dr Dowda to certify as he did in relation to the issue of causation were indeed essentially medical. 17In approaching the interpretation of s 58 and s 61(2), it is instructive to consider the changes in language effected by the Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007. 18The former s 58(1) applied the medical assessment scheme prescribed in Part 3.4 of the Act to disagreements about three specified areas of concern: the first was the treatment that had or was to be provided to the injured person; the second was the degree of permanent impairment; and the third was the degree of impairment of the earning capacity of the injured person. In the first case, whether the treatment related "to the injury caused by the accident" was identified as a distinct question. In the second case, no separate issue of causation was specified; rather, the matter subject to disagreement was described as a composite, namely the degree-of-permanent-impairment-of-the-injured-person-as-a-result-of-the-injury-caused-by-the-motor-accident. In the third case, the same approach was taken, namely describing the matter as a composite: the-degree-of-impairment-of-the-earning-capacity-of-the-injured-person-caused-by-the-motor-accident. Section 61(1) provided for the giving of "a certificate as to the matters referred for assessment", of course, being those specified in s 58(1). Having regard to the way in which the matters are specified, this would necessarily involve making a decision as to causation. The effect of the certificate is covered by s 61(2), which gives the character of conclusiveness only to decisions as to specified matters, a list that is distinctly narrower than the list of matters in s 58(1) and does not mention causation. These are -