Insurance Australia Limited trading as NRMA Insurance v Helou; Helou v NRMA Insurance Australia Ltd

Supreme Court of NSW|2007-12-13|Before: Mr J, Malpass J

CITATION : Insurance Australia Limited trading as NRMA Insurance v Helou; Helou v NRMA Insurance Australia Ltd [2007] NSWSC 1451

DECISION : 1) The proceedings brought by the plaintiff are dismissed. 2) The plaintiff is to pay the costs of those proceedings. 3) The proceedings brought by the first defendant are stood over to a date to be fixed. 4) The parties are to have liberty to apply. 5) Exhibits may be returned.

LEGISLATION CITED : Motor Accidents Compensation Act 1999 Supreme Court Act 1970

Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223 Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; (2006) NSWLR 372 CASES CITED : Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 Richards v Richards [2006] NSWSC 140 Toubia v Peters [2006] NSWSC 1088 Watts v Rake [1960] HCA 58; (1960) 108 CLR 158

Insurance Australia Limited trading as NRMA Insurance (Plaintiff) Joseph Helou (1st Defendant) PARTIES : Robert Quickenden (2nd Defendant) Motor Accidents Authority of New South Wales (3rd Defendant) Joseph Helou (Plaintiff) NRMA Insuramce Australia Ltd (Defendant)

COUNSEL : Ms C E Adamson SC / Mr W Fitzsimmons (Plaintiff) Mr A Morrison SC / Mr J Jobson (1st Defendant)

SOLICITORS : Moray & Agnew (Plaintiff) Andresakis & Associates (1st Defendant)

LOWER COURT JURISDICTION : Motor Accidents Authority

LOWER COURT FILE NUMBER(S) : CARS matter number 2004/12/2399NB

LOWER COURT JUDICIAL OFFICER : Assessor R E Quickenden

19 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

30115/07 Insurance Australia Limited t/as NRMA Insurance v Joseph Helou & Ors

15241/07 Joseph Helou v NRMA Insurance Australia Ltd

JUDGMENT 1 HIS HONOUR: The first defendant suffered injury in a motor vehicle accident that took place on 22 November 2000 (the accident). The plaintiff was the compulsory third party insurer for the vehicle at fault for the injury. It admitted liability for the accident. 2 On 23 June 2004, the first defendant made application for general assessment. An assessment conference was held on 9 August 2007. Mr Quickenden (the second defendant) was the Assessor. The parties were represented by Counsel. 3 The first defendant gave oral evidence. The parties relied on many documents (including medical reports). The parties made written submissions. 4 Mr Quickenden assessed damages in respect of the claim in the sum of $1,494.794.30. On 5 September 2007, he issued his certificate, which also provided for costs in the sum of $90,879.50 (inclusive of GST). Attached to it was a Statement setting out his reasons (the statement). It is a document of 14 pages. 5 Both parties have brought proceedings in this Court. The plaintiff seeks relief pursuant to s 69 of the Supreme Court Act 1970 (alleged jurisdictional error and/or error of law on the face of the record). In effect, it seeks to have the assessment and the certificate set aside. The power to grant such relief is discretionary. 6 The mere demonstration of error may not suffice to justify a disturbance of the decision under challenge. There needs to be a materiality between the error and the decision that justifies the disturbing of it. 7 The defendant seeks relief pursuant to s 95 of the Motor Accidents Compensation Act 1999 (the Act). I shall return to this provision in due course. 8 The hearing took place on 13 December 2007. The plaintiff and the first defendant were legally represented (including by Senior Counsel). There were written submissions, supplemented by oral argument. 9 It is appropriate to first look at what is argued on behalf of the plaintiff. Written submissions summarise its arguments as follows:- "3. The jurisdictional errors, or errors of law, made by the Assessor in [sic] are: a. The Assessor refused to apportion Mr Helou's disability referable to his cervical and lumbar spine ([8.3] of the reasons), in circumstances where he was obliged, as a matter of law, to do so in order to work out the appropriate quantum of damages to which the defendant was entitled (the apportionment ground) ; b. The assessment of damages for future care was, in light of the finding at [3.10] of the reasons, so unreasonable that no reasonable decision maker could have arrived at it. Accordingly it bespeaks error and indicates that the Assessor failed to discount damages for future care by reference to his finding at [3.10] (the unreasonableness ground) ; c. The Assessor purported to base his finding that the subject motor vehicle accident made a material contribution to Mr Helou's lumbar spine condition on the opinion of Associate Professor Sheridan, when such opinion; i. was either irrelevant to such finding because it did not address the question; or. ii. by its silence, provided some support for the contrary proposition (the Sheridan ground) d. The Assessor based his finding that the subject motor vehicle accident made a material contribution to Mr Helou's lumbar spine condition on an erroneous reading of Dr Couch, the MAS Assessor (the Couch ground) ."

The apportionment ground has been described as the principal ground relied on by the plaintiff. 10 In both Richards v Richards [2006] NSWSC 140 and Toubia v Peters [2006] NSWSC 1088 I had been required to give consideration to the assessment process enacted by the Act. For present purposes, the assessment of the claim of the first defendant was governed by s 94 of the Act. 11 This section appears in Part 4.4 of Chapter 4 of the Act (which is headed "Motor accident claims"). Part 4.4 is headed "Claims assessment and resolution". Both Division 2 thereof and s 94 itself are headed "Assessment of claims". 12 The section is in the following terms:- "(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. (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."

13 As liability was not in issue, the Assessor was required to make an assessment (in respect of the claim) of the amount of damages that flowed from the admitted liability (the damages that were caused by the accident). 14 There are MAA Claims Assessment Guidelines 2006 (the guidelines). The guidelines are made pursuant to s69 (1) of the Act. Chapter 14 of the guidelines is headed "Assessment Procedure". The chapter contains the following:- "14.13 When undertaking an assessment and making an assessment of the amount of damages for the claim under s94(1), the assessor is to assess damages in accordance with Chapter 5 of the Act." 15 Chapter 5 of the Act is headed "Award of damages" and comprises ss 122-146. Certain of these provisions are expressed to have application to a court or the Court (see Toubia at paragraph 20). 16 Chapter 16 of the guidelines is headed "Certificate and Statement of Reasons". The chapter contains the following:- "16.3 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: 16.3.1 the findings on material questions of fact, and 16.3.2 the assessor's understanding of the applicable law if relevant, and 16.3.3 the reasoning processes that lead the assessor to the conclusions made, and 16.3.4 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."

17 It is common ground that prior to the accident the first defendant had a substantial pre-existing condition in his lumbar spine and that the accident brought about injuries to both his cervical spine and his lumbar spine. There was also injury to the right shoulder. It does not seem to be regarded as being of significance. The task of the Assessor was to assess damages for the injuries caused by the fault of the owner or driver of the motor vehicle insured by the plaintiff. 18 The real issue was the extent to which his lumbar spine condition could be related to the accident. The stance taken by the plaintiff was that the accident had caused but a temporary problem and that such problem had ceased before the assessment. 19 At this stage it is convenient to briefly refer to the structure of the statement provided by the Assessor. The statement commences with introductory provisions and a recitation of issues. The recitation contains the following:- "2.1. The injuries sustained in the MVA. In particular, the Claimant's lumbar spine condition manifesting in 2005/2006 and its referability to the MVA. 2.2. The extent of the Claimant's MVA related disability. 2.3. The measure of the Claimant's loss of earning capacity and its referability to the injuries and disabilities sustained in the MVA. 2.4. The measure of the Claimant's need for care and its referability to injuries and disabilities sustained in the MVA." 20 The recitation of issues is followed by a statement of the position of each party in relation to each head of damage (he was given a range in respect of each such head). 21 The Assessor then proceeded with the making of certain general findings of fact, which were said to be relevant to all issues (these included findings as to pre-accident condition, a recording that it came to be common ground that the first defendant suffered significant disability and could not be gainfully employed or looked after without care and that he had a poor prognosis). 22 The statement proceeds with the following:- "2.5.4. In making the following findings of injury I rely on the Claimant's treating medical practitioners2 2 Dr Teychenne (neurologist) and Associate Professor Sheridan (neurosurgeon). and the MAS report of Dr M. Couch dated 20 March 2006. 2.5.4.1. Neck / aggravation of degenerative change / disc protrusion. 2.5.4.2. Back / aggravation of degenerative change / disc protrusion. 2.5.4.3. Right shoulder musculo ligamentous injury." 23 Under the heading of "Past Treatment" the Assessor proceeded to list the claims made in relation to that head of damage and what was in dispute. The statement then contains the following:- "3.4. The Insurer generally submits I cannot be satisfied the disputed items relate to the injuries sustained in the MVA. Part of the submission being that they probably relate to the Claimant's lower back condition. The Claimant submits all his injuries and disabilities subsequent to the MVA are related to the MVA. It is common ground the Claimant's cervical spine condition is MVA related. 3.5. The Insurer submits the issue is whether the Claimant's "lumbar spine complications" occurring in 2006 is related to any aggravation sustained in the MVA or a continuation of the underlying degenerative condition which would have developed irrespective of the MVA. Further, it is the Claimant's lumbar spine condition that disables him most and not his cervical spine condition. Mr Fitzsimmons submits the preponderance of medical opinion including the MAS Assessor (Dr M Couch) support non-referability of the Claimant's lumbar spine condition. 3.6. Some of the medical opinions are not clear. However, Dr Kai Lee (orthopaedic surgeon), P. Teychenne (consultant neurologist) and Associate Professor M. Sheridan (neurosurgeon) appear to me to support the Claimant's contention that the MVA has materially contributed to the Claimant's lumbar spine condition and has caused the Claimant's cervical spine condition. My construction of Associate Professor Sheridan's opinion is that the MVA caused a disc prolapse resulting in cervical myelopathy symptoms materially contributing to both the Claimant's cervical and lumbar spine conditions. 3.7. Dr L. Pierides (occupational physician) (Insurer medico-legal) opines the Claimant's lumbar spine would have become evident in 2006 irrespective of the MVA. My interpretation of Dr N. McGill's (consultant rheumatologist) is that the Claimant's lumbar spine condition referable to the MVA would have disabled him for one or two years but his lumbar spine degenerative condition and the 1985 accident are the enduring causes of his current significant lumbar spine condition. 3.8. Dr M. Couch states inter alia the lumbar spine condition "cannot be related directly to the MVA'. However, Dr Couch also opines the MVA aggravated the Claimant's degenerative changes/disc protrusion. Dr Couch attributes 40% WPI to the Claimant's cervical spine and 1% to his right shoulder with 5% (all pre-existing) to his lumbar spine. This does tend to support the Insurer's submission although I am not satisfied Dr Couch supports the view the MVA was only a temporary aggravation until about January 2001 of the Claimant's pre-existing lumbar spine condition. 3.9. I am conscious that legal causation issues are not determined by medical opinion alone. Legal principles and the assessment or litigious process determine the issue Phan v Shui [2006] NSWCA 373. There are factors which, in my opinion support the Insurer's contention. The Claimant's 1985 lumbar spine injury, the lapse of time between the MVA and the lumbar spine manifestation in 2005/2006 (5-6 years) together with the Claimant's pre-existing back pain albeit relatively minor immediately before the MVA. My conclusion, however, is consistent with Mr Jobson's submission. I am satisfied the MVA did make a material contribution3 3 See March v Stramare Pty Ltd (1991) 171 CLR 506. to the Claimant's lumbar spine condition based on the opinion of the Claimant's treating medical practitioners especially Dr Teychenne and Associate Professor Sheridan. I am not satisfied Dr Couch's opinion is to the contrary although I acknowledge uncertainty in this respect. 3.10. I am also satisfied, however, that even without the intervention of the MVA the Claimant's lumbar spine condition 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. I base this finding on the universal medical opinion the Claimant's lumbar spine condition was significant even before the subject MVA condition was evident." 24 The statement then proceeds to address other heads of damage (Future Treatment, Non-Economic Loss, Past Economic Loss, Future Economic Loss, Past Voluntary Services, Future Care, Holidays and Equipment). 25 Under the heading "Future Economic Loss", the statement contains, inter alia, the following:- "7.1. Based on my findings the MVA has been the major contributor to the Claimant's inability to work in the construction industry6 6 The Claimant was variously a truck driver or concrete truck driver in that industry from the early 1990s. in any capacity for what would have been the rest of his working life." 26 Under the heading "Past Voluntary Services", the statement contains, inter alia, the following:- "8.3. Since November 2005 I am satisfied the Claimant has needed personal care and domestic assistance because of his cervical spine and lumbar spine condition. On the basis of my findings on causation of the Claimant's lumbar spine condition I do not consider it necessary to determine the proportion of the Claimant's disability referable to the cervical spine and lumbar spine. The Claimant's disability to my mind is significantly caused by both conditions." 27 In 8.7 thereof, the Assessor set out his assessment of the reasonable and necessary voluntary care that the first defendant was given and which was referrable to the accident. 28 Under the heading "Future Care" the statement contains, inter alia, the following:- "9.1 The claim is based on commercial 24 hours per day care for the Claimant's life expectancy9 9 On the median tables approximately 30 years. . The Insurer acknowledges the need for MVA related care at 7 hours per week. In making this submission the Insurer assumes the Claimant's lumbar spine condition is paramount in the Claimant's need for care and this is unrelated to the MVA. Because of my findings in paragraphs 3.6 and 3.7 I am compelled to reject that submission. … 9.6 I find his current and likely future domestic care needs are as follows: 9.6.1. Assistance in the bathroom (principally toilet and showering). 1.5 hrs per day 9.6.2. Assistance in home transfers and Supervision including night supervision 2.5 hrs per day 9.6.3. Home care including emergency bedding Changes 0.5 hrs per day 9.6.4. Transport 0.75 hrs per day 9.6.5. Domestic duties including shopping 1 hr per day 9.6.6. Home property and motor vehicle cleaning 0.25 hr per day ____________ 6.5 hrs per day ____________ 6.5 hours per day at 45.5 hours per week. On the 5% tables for the next 10 years (412.9) on a current hourly rate of $21.41 this equates to 45.5 x 21.41 = $974.16 x 412.9 = $402,228.00 (rounded off). 9.7. At the end of the voluntary care period I anticipate the claimant will be approximately 65 years of age. In determining the fair and reasonable paid care requirement for the future in terms of hours per week I should and do take into account the probable need for care as a result of non-related MVA factors such as the Claimant's age and degenerative lumbar spine condition in his advancing years and allow a commercial hourly rate for reasonable care for approximately 20 years. The time involvement of commercial carers can be reasonably assessed to be at least the current voluntary care needs. It is not possible on the evidence to conclude the Claimant will need 24 hour care in ten years time nor the accurate form or cost of care. I am satisfied however, a fair and reasonable allowance should be for 50 hours per week at a current cost of $30.00 per hour1 11 This figure is taken from experience and the report of I. Davey. 1 = $1,500.00 deferred for 10 years 0.614 = $921.00 for 20 years on the 5% tables (666.4) = $613,754.00 (rounded off)." 29 The statement then provides an "Assessment of Damages Summary" which contains a component for future care (13.7. Future care $1,015,982). 30 The statement concludes with the assessment of "Costs and Disbursements".

31 The submissions on the apportionment ground contain, inter alia, the following:- "9. The Assessor's refusal to distinguish between the disabilities caused by the cervical spine condition and those caused by the lumbar spine condition ([8.3] of the decision), or his belief that such apportionment was not necessary, amounts to a jurisdictional error. In light of his finding at [3.10], no assessment of damages could proceed without such a finding." 32 The submissions on this ground refer also to what is described as the finding made in respect of current and likely future domestic care needs (9.6. of the statement). It is said that it was reasonable to infer that this was a global assessment (without regard to causation) rather than a discounted assessment. 33 The Court was informed that the issues set forth in the statement were those identified by the Assessor himself. However, the Court was also informed that the plaintiff does not disagree that these were the issues that he should address. 34 Whilst the Assessor was asked to do an apportionment between lumbar spine problems that were caused by the accident and those that were not, he was not expressly asked to apportion the first defendant's disability referrable to his cervical and lumbar spine. He came to the view that it was not necessary for him to do so. I am not persuaded that the Assessor was required to undergo an apportionment process as contended by the plaintiff. I do not accept the submission that no assessment of damages could proceed without such apportionment. 35 Before proceeding further, I shall make certain observations concerning a matter that was not dwelt upon in argument. It is that of the statutory scheme for assessment of claims. 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 (see Toubia at paragraph 22). He is required to specify an amount of damages for the liability of the plaintiff 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 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.

38 Putting the question of the operation of the statutory scheme aside, the parties proceeded on the basis that an assessment of damages is to proceed along well-established common law principles. I shall now proceed on the assumption that this is the approach to be taken. An argument was put to the effect that what was decided in Watts v Rake [1960] HCA 58; (1960) 108 CLR 158 and Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164 had application to this assessment. 39 These decisions are authority on the question of the onus borne by a defendant in presenting a case that the plaintiff's alleged incapacity was due, whole or in part, to a pre-existing condition. The argument propounded by the plaintiff relied on the proposition that the Assessor had found that the plaintiff had discharged such onus in this case. In respect of this contention, the Court was referred to 3.10. of the statement. There was dispute between the parties upon the question. In my view, what was said by the Assessor does not make out the argument put by the plaintiff. It seems to me that what was found by him reflects a failure on the part of the plaintiff to adduce evidence that established with the requisite reasonable measure of precision, inter alia, the likely future effects of the pre-existing condition. 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 first defendant'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 first defendant'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. 42 What is described as the unreasonableness ground relates to what was allowed for future care. It is said that a substantial discount had to be made to take account of the significant detrimental effect of the pre-existing condition. The amount that was allowed is said to be "wholly exorbitant" when regard is had to the injuries sustained in the accident. 43 The basis upon which this ground was founded was somewhat unclear. There seemed to be the suggestion (at least at one stage) that the plaintiff relied on the decision in Associated Provincial Picture Houses Limited v Wednesbury Corporation [1948] 1 KB 223. It was a decision that concerned unreasonable exercise of a discretion (where extraneous considerations have not been excluded or where what has been done is so absurd that no sensible person could ever dream that it lay within the powers of the authority). It has been said to be a high test. As was said in Toubia, the Assessor is not exercising a discretion (see paragraph 33). Ultimately, it seemed that the plaintiff came to not really press reliance on that decision. If that not be the case, it is my view that the decision does not assist the plaintiff in this case. 44 The plaintiff seemed to come to accept the position that the unreasonableness ground really formed part of what was being put in respect of the apportionment ground. If that is the position taken by the plaintiff, the unreasonableness ground fails for the reasons earlier expressed. However, before finally disposing of this ground, I will make certain further observations.

45 The findings in relation to future care were made in the context where there had been a huge gap between what was claimed by the first defendant ($3,990,929) and what the plaintiff was prepared to allow ($97,961). The findings were a consequence of the Assessor resolving the real issue between the parties in favour of the first defendant. What he allowed fell within the range offered to him by the parties (indeed, it fell well short of what had been claimed by the first defendant).

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.

47 In relation to what is described as the Sheridan ground, it is said that there was reliance by the Assessor on a report from Associate Professor Sheridan in respect of the finding that the accident made a material contribution to the first defendant's lumbar spine condition (3.9.). The report was dated 18 September 2006. It is said that the Associate Professor did no more than opine that there was a connection between the accident and the cervical myelopathy. As a consequence, it is said that the Assessor relied on irrelevant material and thereby committed a jurisdictional error. 48 The Associate Professor was a treating neurosurgeon. He carried out surgery on the first defendant's neck and arranged for later lumbar surgery. The lumbar surgery was performed by another surgeon subsequent to the Associate Professor's report. 49 Whilst the report contains references to the lumbar spine, no expression of opinion is made therein concerning relationship between the lumbar spine and the accident. 50 The first defendant has made the submission that in 3.9. of the statement, the Assessor has placed emphasis on the opinion of Dr Teychenne ("especially Dr Teychenne and Associate Professor Sheridan"). There was no dispute between the parties that the opinion of Dr Teychenne supported the finding. 51 The Sheridan ground is, in reality, an attack on the fact-finding of the Assessor made in the course of the assessment. The real contention of the plaintiff is that the Assessor erred in finding that the accident made a material contribution to the first defendant's lumbar spine condition (the contribution issue). If there has been error in relying on the Associate Professor's report, it is not a basis for relief by way of judicial review in this case (see Basten JA in Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; (2006) NSWLR 372 at paragraph 40). 52 In my view, it is erroneous to contend that the Assessor relied on irrelevant material. On any view, the report from the Associate Professor was a relevant document. It was received by the Assessor without objection and the plaintiff relied on its contents in submissions on the contribution issue (see paragraphs 16-17 of the written submissions made by the plaintiff to the Assessor). 53 Accordingly, the Sheridan ground also fails.

54 What is described as the Couch ground relates to a finding made by the Assessor that he was not satisfied that Dr Couch's opinion was contrary to the proposition that the accident made a material contribution to the lumbar spine condition. 55 The written submissions made on behalf of the plaintiff contain the following:- "16. Accordingly, the Assessor made a jurisdictional error in taking into account evidence that was irrelevant to the finding and on any analysis did not support the finding. 17. As with the Sheridan ground, the relevant error was in misapprehending evidence (which is a jurisdictional error in this context) as distinct from making a finding against the weight of evidence (which would not amount to a jurisdictional error), or in the absence of evidence. Although the evidence of Dr Teychenne supported the finding, the other evidence relied upon by the Assessor (the Sheridan report and the absence of opinion to the contrary) did not." 56 Dr Couch made two assessments. The first document produced by him was dated 23 February 2004. The second was dated 2 June 2006. It is the relevant document for present purposes. 57 It contained the following [at p13]:- "There probably was some degree of aggravation of his low back symptoms in the subject motor vehicle accident (noting that the back of his seat apparently collapsed) but development of more serious sequelae such as spinal canal stenosis, possibly leading to the need for decompressive surgery, cannot be related directly to the motor vehicle accident." 58 It contained a determination that "Back - aggravation of degenerative change/disc protrusion" was caused by the accident. 59 It also contained the following [at p14]:- "Although the cervical spine and the lumbar spine injuries have not yet stabilised, there is no doubt that injuries to the cervical spine and lumbar spine give rise to permanent impairment. In addition, and as stated at my previous assessment injury to the right shoulder causes a small permanent impairment." 60 The Associate Professor made determinations that the injury to the back had not stabilised and that it was regarded as permanent. 61 Further [at p 15] it stated:- "However, and as argued above and in my original assessment, I do not consider that any deterioration in the lumbar spine condition over the past two years is causally related to the motor vehicle accident. It is therefore most probable, that when eventually his lumbar spine condition has stabilised, there will still be 0% WPI in relation to the motor vehicle accident."

62 What has been said by Dr Couch is not without its ambiguity. However, it does give support for a finding that there was a connection between the first defendant's post-accident lumbar condition and the accident and that the condition was regarded as being a permanent one. It may well not be erroneous for the Assessor to have said that he was not satisfied that Dr Couch's opinion was to the contrary of his finding (that the accident did make a material contribution to the first defendant's lumbar spine condition). 63 It is unnecessary to pursue the question of whether or not there was error on the part of the Assessor in relation to this matter. If there was error, it does not assist the plaintiff. It would also be an error that concerned a finding of fact made in the course of the assessment process. 64 Again, the evidence from Dr Couch was relevant to the finding that was being made. It was also relied on by the plaintiff in its written submissions on the contribution issue (see paragraphs 18-20). If there was a misapprehension of that evidence, I do not consider that it gives rise to jurisdictional error.

66 The first defendant seeks relief pursuant to s 95 of the Act. This is a provision that deals with "Status of assessments". It is in the following form:- "(1) An assessment under this Part of the issue of liability for a claim is not binding on any party to the assessment. (2) An assessment under this Part of the amount of damages for liability under a claim is binding on the insurer, and the insurer must pay to the claimant the amount of damages specified in the certificate as to the assessment if: (a) the insurer accepts that liability under the claim, and (b) the claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued. Note. If the amount of damages is not accepted by the claimant within that period, section 151 makes provision with respect to liability for legal costs incurred after the certificate of assessment was issued. (3) It is a condition of an insurer's licence under Part 7.1 that the insurer complies with this section."

67 In this case, the insurer has accepted liability under the claim and presumably the claimant has accepted the amount of damages in settlement of the claim within the prescribed time. If that be the case, what has been described as a "deemed offer" has been accepted. As a consequence, the assessment of the amount of damages is binding on the plaintiff and it must pay to the first defendant the amount of damages specified in the certificate. 68 It seems to me that in this case the question of whether or not the first defendant is entitled to an order under this provision does not need to be decided. As things presently stand, there would not seem to be any necessity for any order. Section 95 contains its own means of compliance with the statutory obligation that it imposes. Compliance is made a condition of the insurer's licence. If there be a need to give further consideration to this question, the parties are to have leave to apply. 69 During the course of submissions, Counsel came to a consensus that further consideration of the relief sought by the first defendant should be deferred pending determination of the proceedings brought by the plaintiff. 70 The proceedings brought by the plaintiff are dismissed. The plaintiff is to pay the costs of those proceedings. The proceedings brought by the first defendant are stood over to a date to be fixed. The parties are to have liberty to apply. Exhibits may be returned. **********

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Judgment (28 paragraphs)

Cases Cited (9)

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