Insurance Australia Ltd t/as NRMA Insurance v Taylor

The injuries and medical history

1. In the First Defendant's submissions attached to his CARS 2A application dated 7 April 2016, the First Defendant identified the following physical injuries: 4.1 Head injury (resolved). 4.2 Neck injury. 4.3 Left upper extremity injury, including fracture to the left clavicle requiring surgical repair. 4.4. Right arm injury consequent on injury to the left upper extremity. 4.5 Back injury requiring microdiscectomy. 4.6 Surgical scarring of the surgical sites on the left shoulder and low back. 4.7 Left hip abrasion (resolved).
2. Records of Shaheena Khan Physiotherapy produced in answer to an authority from the First Defendant disclosed that on 3 April 2013 (three weeks before the accident) the First Defendant injured his back. The records contained the following information provided by the First Defendant: Which part and side of your body have you injured? Back. How long ago did the injury occur? 3 days. Have you received any treatment for this injury? Yes.
3. The physiotherapist noted on the file: 6 weeks low back. Mx: Endone: Referred by Kirrawee GP. Agg: Bending
4. The physiotherapy records disclosed that the First Defendant had been treated by the physiotherapist since 2000. The records showed a number of consultations on the following dates referrable to the First Defendant's back and shoulders: 15/5/00 - lbp [low back pain] 21/11/00 - complaints of back [r] shoulder pain 22/1/00 [scil. 22/1/01] - back and mid thoracic issues. 6/9/01 - R shoulder/arm pain 29/2/08 - Sore L shoulder blade 7/04/00 [scil. 7/4/08] - very stiff back
5. On 2 August 2016 the solicitors for the Plaintiff wrote to the solicitors for the First Defendant. They alleged false and misleading statements in the following ways: - your client's personal injury claim form completed on 15 May 2013 indicated your client had never previously had any other injuries, disability or illness before or since the accident to the same part(s) of his body. Your client signed a statutory declaration indicating that the contents of his claim form were true and correct; - when seeing your client on 18 August 2014, Dr Patrick, general and vascular surgeon, noted the following: "There is no prior history at all of accident, injuries or symptoms of significance affecting his head, left shoulder, low back or legs"; - when seen by Dr Shatwell, consultant in orthopaedic and accident surgery on 4 June 2015 a history was taken that 'Mr Taylor has enjoyed good health in the past. He states he has had no significant accidents or operations prior to the motor cycle accident on 24 April 2013'; - when seen by Dr Muratore, sports physician on 17 June 2015, it was reported 'Mr Taylor reported having had no previous injuries, illnesses, workers compensation claims or motor vehicle accidents prior to the subject motor vehicle accident. He then remembered he did sustain a fracture to his left fifth finger in his youth when playing rugby league football, he has had no sequelae from that injury'; - when seen by Dr Prior on 1 May 2015 it was noted 'he denied pre-existing significant general medical conditions, enduring physical injuries, chronic pain perception or being on significant general medical medications'; - when seen by Rehab Consulting on 12 May 2014 it was reported 'he advised that he did not have any significant medical history and did not have any injuries to his left clavicle or lower back'; - when seen by Dr Guirguis in November 2014, Dr Guirguis noted your client's work history and the history of the accident and reported 'there was no other significant past history'. No reference to any prior complaints of back pain was recorded; - when seen by MAS Assessor Crocker on 22 January 2016, a history was recorded; 'in relation to past medical history, Mr Taylor stated that he had otherwise been well but had sustained a fracture of the left fifth finger when playing football that had been treated conservatively'; - when seen by MAS Assessor Synnott on 9 November 2015 it was noted 'Mr Taylor said that prior to the subject MVA he was basically a fit and healthy person, no significant medical or surgical problems, no past psychiatric history, no MVAs and no drug or alcohol history' - your client's statement attached to his CARS 2A application and signed on 7 April 2016 indicates that he was fit and well' at the time of the accident. There is no mention of the your client suffering from any prior back or other symptoms.
6. On the same day the solicitors for the Plaintiff wrote to the Assessor seeking to have the matter exempted on a discretionary basis pursuant to cl 14.6.11 of the Claims Handling Guidelines on the basis that the insurer had made an allegation that the claimant had made a false and misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident. In that letter the solicitors summarised the basis of the false and misleading statements and also attached a copy of the letter to the First Defendant's solicitors that detailed the statements made to the various doctors.

Submissions

1. The Plaintiff submitted that the Assessor misunderstood or misconstrued the scope and nature of her power and incorrectly applied that power to the application. She approached the question to be determined on the basis of asking whether a claims assessment can in fact be conducted at all in the circumstances. The Plaintiff submitted that the correct question was whether the insurer, having notified the particulars of the false and misleading statements (that was tantamount to fraud), should be afforded an opportunity to have a fair hearing of the personal injury damages claim conducted in the District Court by reason of the attack on the credit of the claimant and the lack of utility of any of the medical reports and assessments thus far obtained.
2. The Plaintiff submitted that the Assessor misunderstood s 92(1)(b) by saying that the insurer had not alleged any fraud surrounding the accident and that the issue was merely "inaccurate histories given to doctors". The Plaintiff submitted that the Assessor failed to take into account relevant considerations in that she failed to respond to the Plaintiff's substantial, clearly articulated argument relying upon established facts, namely that the Plaintiff's application for exemption was based substantially on the adverse credit of the First Defendant and the unfairness to the Plaintiff of any oral hearing or assessment before CARS.
3. The Plaintiff submitted that although the Claims Assessor said twice in her Reasons that the matter was suitable for assessment at CARS she failed to say why. She gave no reasons that would elucidate her decision-making process.
4. The First Defendant submitted that the law did not recognise an allegation which was tantamount to fraud. The First Defendant submitted that merely making an allegation that a claimant has made a false and misleading statement is not of itself sufficient to secure an exemption from a CARS assessment. It is simply one factor required to be taken into account.
5. The First Defendant submitted that the Assessor's characterisation of the Plaintiff's submission that the issue was one of "inaccurate histories given to doctors" was both succinct and accurate. The First Defendant submitted that the Assessor correctly concluded that CARS had facilities where both the medico-legal and treating doctors could be made available to have questions put to them in respect of the First Defendant's medical history and that the First Defendant would be available for cross-examination by the Plaintiff and to be asked questions by the Assessor herself.
6. The First Defendant submitted that the manner in which Assessments were conducted under the CARS scheme was determined by Parliament to be the norm, and in prescribing the informality of the assessment process with no right to compel witnesses either to attend or answer questions, no sworn evidence and no right of cross-examination beyond the assessor's agreement, the fact that credit would be in issue was not of itself a reason to exempt a matter from the CARS assessment process. Reference was made to Zurich Australian Insurance Ltd v MAA [2006] NSWSC 645 at [53].
7. The First Defendant submitted that the Plaintiff was effectively arguing that the factual basis for the application for exemption was so egregious that the Assessor's decision to refuse it bespeaks error. The First Defendant submitted that such an approach amounted to a merits review. Reference was made to Zahed v IAG Limited (t/as NRMA Insurance) [2016] NSWCA 55; (2016) 75 MVR 1 at [6] - [9] and [43].

Consideration

1. The Guidelines deal with assessment conferences and how they are to be conducted. The Guidelines relevantly provide: 15.2 The Assessor may direct the parties to the assessment to submit to the Assessor and to any other party to the assessment a signed statement detailing the evidence to be given by any witness to be questioned. If the witness does not attend the assessment, the statement by the witness need not be disregarded, and may be taken into account by the Assessor. 15.3 The Assessor may require the presentation of the respective cases of the parties to be limited to the periods of time that the Assessor determines are reasonably necessary for the fair and adequate presentation of the cases. 15.4 The Assessor shall determine the manner in which evidence is presented at an Assessment Conference, ensuring that: 15.4.1 each party is to be given an opportunity to address the Assessor on any issue in dispute and to put to the Assessor any questions that the party seeks that the Assessor ask or any areas that the party wants the Assessor to explore; 15.4.2 the examination of parties and witnesses is usually by the Assessor and questions to other parties or witnesses may only be put as directed by the Assessor; 15.4.3 the Assessor may, at the request of a party allow the questioning of a witness or a party, by either party's legal representative or agent, subject to any limitations as determined by the Assessor; 15.4.4 the Assessor may question any party or witness to such extent as the Assessor thinks proper in order to elicit information relevant to the claim; and 15.4.5 the Assessor cannot compel any party or witness to answer any question, but may have regard to the failure of a party or witness to answer a question in the determination of the assessment, unless the party has a reasonable excuse for that failure to answer. … 15.9 An Assessor may not take into consideration in respect of the case of each party, reports (excluding reports from treating practitioners) from: 15.9.1 more than one medical expert in any specialty (unless there is a substantial issue as to a medical dispute referred to in section 58 - in which case two medical expert reports in any specialty relevant to the injury concerned may be allowed); and 15.9.2 experts in the same field of any other kind; except as provided in clause 15.10. 15.10 An Assessor may decide to take into consideration a greater number of reports than allowed in clause 15.9, and in deciding whether to take into account a greater number of expert reports in the claim the Assessor should consider: 15.10.1 the objects of the Act, and the objects of CARS; 15.10.2 clauses 14(1) and (2) of the Regulation; and 15.10.3 fairness to both parties. … Chapter 16 - Assessment procedure Assessor's role 16.1 In conducting an assessment the Assessor may determine the Assessor's own procedure and is not bound by the rules of evidence and may inquire into any matter in such manner as the Assessor thinks fit. 16.2 The Assessor is to take such measures as are reasonably practicable to: 16.2.1 ensure that the parties to the application understand the nature of the application, the issues to be considered and the role of the Assessor as an independent decision-maker; 16.2.2 explain to the parties any aspect of the procedure of the assessment, and any interim decision or ruling made by the Assessor during the course of the assessment, in respect of that procedure, that relates to the application; 16.2.3 ensure that the parties have an opportunity to have their submissions considered; and 16.2.4 ensure that the parties have had an opportunity to explore the settlement of the dispute. 16:3 The Assessor is to act with as little formality as the circumstances of the matter permit and according to equity, good conscience and the substantial merits of the matter without regard to technicalities and legal forms. 16.4 The Assessor is to take into account the objects of the Act and the objects of CARS at all times. 16.5 The Assessor is to ensure that relevant material is available so as to enable all of the relevant facts in issue to be determined. 16.6 The Assessor may admit into evidence the contents of any document that has previously been provided by one party to the other party, despite non-compliance with any time limit or other requirement specified in the Act or the Guidelines in relation to that document or service or exchange of it after taking into account any submissions of the parties. … Chapter 17 - Documentation and other supporting material 17.13 If during the course of an assessment by an Assessor, or the determination by the PCA of an application for exemption, a party makes an allegation that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim, the Assessor may require that party to give to the other party and the Assessor particulars in writing of the general nature of any such allegation (but not necessarily the evidence or proof of same), sufficient to enable the Assessor to determine whether or not the claim is suitable for assessment in accordance with the provisions in clauses 14.11 to 14.16. … Chapter 18 - Certificate and statement of reasons Privacy 18.7 CARS assessments are conducted in private and are not open to the public, under clause 14.5 and 15.11, and a certificate and any statement of reasons issued by an Assessor are not available to the public. (Note: An Individual's privacy should be respected. Failure to respect the privacy of an individual may result in a breach of the Privacy and Personal Information Protection Act 1998 (NSW) and/or the Health Records and Information Privacy Act 2002 (NSW). The MAA recommends that no certificate and/or statement of reasons should be published, distributed or used in any way unless the privacy of all individuals referred to in the documents is respected, including claimants, their relatives, support persons, claims officers, legal representatives, medical practitioners, witnesses, interpreters. Assessors, and any other individual person. The MAA recommends that no such documents should be published, distributed or used in any way unless the express consent of any such individuals has first been obtained, or unless the documents have been thoroughly and sufficiently de-identifled to ensure that the privacy of those individuals is respected.)
2. The issue of a discretionary exemption on the basis of a false or misleading statement has been considered in two cases. The first was Allianz Australia Insurance Ltd v Tarabay (2013) 62 MVR 537; [2013] NSWSC 141. In that case the allegation concerned representations made by the claimant in relation to his employment and involved a document which might have been forged.
3. Ultimately the Assessor determined the matter by forming a view about whether or not a false and misleading statement had been made. The Assessor concluded: 39. Therefore having looked at all of the issues and the replies thereto I am not satisfied that the claimant or any other person has made a statement knowing that it is false and misleading in a material particular in relation to all of the headings pursuant to s 117 of the Act.
4. Justice Rothman held that the Assessor asked herself the wrong question and answered it. Justice Rothman said: [62] ... There is a far more fundamental issue raised by the plaintiff. The "issue" that was before the Assessor was whether an exemption should be granted. The question that has been answered is whether Allianz has proved fraud. That is not the question that was before the Assessor. [63] As recited above, the Assessor has come to a conclusion (without evidence directly on the issue or even indirectly on the issue) as to the veracity of the explanation of Mr Tarabay, relayed by his solicitor, that Mr Tarabay does not know how the second PAYG payment summary has come into existence. The Assessor expressly states that she accepts that explanation. The Assessor accepts that "in the absence of any evidence from the Insurer to the contrary". … [66] The only proceeding heard by the Assessor was an interlocutory proceeding in which the task of Allianz was not to prove the fraud alleged but to satisfy the Assessor, on the basis of an allegation, reasonably put, of fraud so that the matter was not one that should be heard in a CARS assessment. [67] The Assessor asked herself the wrong question and answered it. In doing so she has reached a concluded view as to the substance of the matter alleged, without having heard the parties in full on the issue. In so doing, the Assessor has issued a decision vitiated by jurisdictional error and error of law on the face of the record: Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163 at 179; Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2001) 206 CLR 323 at [82].
5. In Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519; (2013) 65 MVR 312 the claimant said that she had not previously had any other injuries, disability or illness before or since the accident to the same parts of the body that were said to have been injured in the accident. She also denied ever having made a claim for personal injury compensation, worker's compensation or other damages previously. The insurer subsequently ascertained that she had suffered an injury in a previous motor vehicle accident in respect of which she was awarded damages. The claimant had also had a fall at home and had sustained injury to parts of her body injured in the index accident. The insurer sought to have the claim exempted from the CARS assessment under s 92(1)(b).
6. The Assessor refused to exempt the claim and gave as her reasons for doing so the following: 7. Clearly answers in the personal injury claim form are incorrect. She had made a prior claim for compensation. In the 2005 accident she injured her neck and back. From the list of injuries recorded in the 2010 accident there is no mention of the neck or the back. Although [the claimant] failed to properly answer question 35 I do not regard this as a deliberate false or misleading statement.
7. The Assessor also rejected a claim by the insurer that the claimant had failed to disclose relevant pre-accident medical history to doctors. In relation to the insurer's claim that she had mis-stated her symptoms and capacity for domestic tasks when assessed by doctors and occupational therapists, the Assessor characterised that as "mis-statements" and went on to say: Video surveillance shows [the claimant] freely using her right hand and arm which again the Medical Assessor had the advantage of viewing. This evidence is relevant when assessing damages and again confirms that [the claimant] may be exaggerating her symptoms. It is not in my opinion the basis of an allegation of false and misleading statements.
8. Justice Campbell upheld the insurer's appeal and said: [35] As explained by Rothman J in Tarabay at 550 [65] - [67], the claims assessor fell into jurisdictional error when she determined as a concluded fact that the claimant had not deliberately, or knowingly, made false or misleading statements as particularised by the insurer. As Rothman J explained in Tarabay at [65], "that was not an issue before the assessor. Far more fundamentally, it is not an issue that could be decided before a full hearing on the question of the 'fraud'". Rothman J continued: [66] The only proceeding heard by the Assessor was an interlocutory proceeding in which the task of Allianz was not to prove the fraud alleged but to satisfy the Assessor, on the basis of an allegation, reasonably put, of fraud so that the matter was not one that should be heard in a CARS assessment. [67] The Assessor asked herself the wrong question and answered it. In doing so she has reached a concluded view as to the substance of the matter alleged, without having heard the parties in full on the issue. In so doing, the Assessor has issued a decision vitiated by jurisdictional error and error of law on the face of the record: Craig v South Australia; Minister for Immigration and Multicultural Affairs v Yusuf (references to Craig and Yusuf omitted). [36] This determination vitiates the conclusions expressed at [7], [9] and [13] of the claims assessor's reasons and in my judgment invalidates her whole decision. The same conclusion probably demonstrates that what was said at [14] was affected by jurisdictional error when the claims assessor found that the inconsistency in presentation demonstrated by the video surveillance "is not in my opinion the basis of an allegation of false and misleading statements".
9. His Honour then went on to say this: [37] The matters relied upon by the insurer to found its application for discretionary exemption are the very type of thing inherently capable of founding a successful cross-examination as to the credit of a claimant. By credit I am referring to the claimant's reliability and honesty as an accurate medical historian. In personal injuries litigation this question will often be fundamental to the determination by the court or tribunal of the nature and extent of the injuries and disabilities caused by the negligence of the defendant. [38] As Rothman J pointed out in Tarabay it is erroneous for a claims assessor, called upon to determine the question raised by s.92(1)(b) - that is whether the claim "is not suitable for assessment under" Part 4.4 - to decide for himself or herself in the context of that preliminary assessment whether the impugned statements are in fact false or misleading; whether the histories proffered are accurate; whether the claimant's presentation to doctors, and on other occasions, is consistent with the alleged injuries; whether apparent discrepancies are likely to have an innocent explanation; and whether or not the claimant's account of her injuries and disabilities should be believed. [39] There may be cases, difficult to conjure in the abstract, where a claims assessor making a preliminary assessment to determine, inter alia, whether the claim is not suitable for assessment could find as a matter of law that a proffered statement or alleged inconsistency was not capable of calling into question the reliability of the claimant's account. But such cases must necessarily be very rare. The present case, in my judgment, certainly did not fall into that category. As I have said, the matters raised by the insurer were the very type of matters which are commonly afforded significant weight in the process of assessing the nature and extent of a claimant's injuries and disabilities, particularly when, as they appear to be here, they are soft tissue in nature and not wholly susceptible to entirely independent and objective evaluation. [40] I would also observe in passing that the claims assessors' statement (at [12] of her decision) that "it is a matter for the medical assessor to accept or reject symptoms described by patients" is contrary to a series of decisions of this Court, and more significantly the Court of Appeal. A medical certificate is conclusive only of the matters certified (s.61(2)), which are limited to the "medical assessment matters" specified in s.58 of the Act: Allianz Australia Insurance Ltd v Girgis [2011] NSWSC 1424; 59 MVR 548; Rodger v De Gelder [2012] NSWCA 167; 61 MVR 140 at [9]; Brown v Lewis [2006] NSWCA 87, 65 NSWLR 587 at [23]; Motor Accidents Authority (NSW) v Mills [2010] NSWCA 82, 78 NSWLR 125; 55 MVR 243 at [57] - [69], [91] and [102]; Owen v Motor Accidents Authority (NSW) [2012] NSWSC 650; 61 MVR 245 [32] - [36]. As the claims assessors' decision was not impugned on this basis, I leave that consideration to one side. [41] As clause 14.16 of the claims assessment guidelines suggest, a claim may not be suitable for assessment for a variety of reasons. Clause 14.16 provides eleven examples of considerations that may be taken to be relevant to the claims assessor's decision. Clearly it is not incumbent upon the claims assessor to consider each one of those matters in every case in which s.92(1)(b) is invoked. Rather, the function of the claims assessor requires him or her to bear firmly in mind at all times the statutory question, which, I reiterate, is whether the claim is not suitable for assessment under Part 4.4 of the Act. Naturally, in deciding the matter he or she is required to weigh and assess such of the clause 14.6 grounds, if any (and the question is not limited to those considerations), as the parties may invoke. [42] In a case like the present, where only clause 14.16.11 is invoked, the claims assessor will fall into jurisdictional error if he or she purports to decide whether the claimant, or some other person, has in fact made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant; at least except in the rarest of cases where it is so clear that a person has not made such a false or misleading statement as to be beyond argument. As Rothman J pointed out, a determination that a person has in fact made a false or misleading statement may only properly be made after what I will refer to as a full hearing on the merits during which the person whose statements are impugned has been given a fair opportunity to meet the allegations in accordance with the requirements of the rule in Browne v Dunn (1893) 6 R 67, or its administrative law equivalent where applicable cf Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S154/2002 [2003] HCA 60; 77 ALJR 1909 at [56] - [57]. [43] When deciding the statutory question in a case that turns upon whether a person has made a false and misleading statement, the following considerations are likely to be relevant. I do not mean to be exhaustive: (a) the Act contemplates that the great majority of disputes will be resolved by the assessment process, and not in court; (b) however, the consideration that s.92 provides for both mandatory exemptions and discretionary exemptions provides a clear legislative guidepost that appropriate cases should be "redirected" to the court system at an early time by way of preliminary determination; (c) a primary question will be, having regard to the nature of the issue raised, whether both parties can be afforded a hearing (assessment conference) which is in a practical sense fair having regard to the nature of the allegation raised; (d) a related question will be which mode of hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment conference on the one hand, and a court hearing on the other. Advantages of the latter may include a better opportunity for proper and fair cross-examination of witnesses whose credit is to be impugned and the greater availability of cross-examination of medical experts on the material which may call a claimant's reliability into question; (e) as it is clear the claimant's credit will be called into question, a consideration of whether it is in the public interest that such an examination occur in open court; (f) Finally, but by no means least, the consideration that it is not mandatory, whenever a credit issue is raised, to decide that the claim is not suitable for assessment under Part 4.4.
10. I agree with the matters identified by Campbell J in Banos at [43]. Respectfully, I would add the following comments to supplement and expand on those matters.
11. First, it is of significance that all that is necessary for the Assessor's discretion to be triggered with regard to an exemption on this ground is an allegation by the insurer. Subject to the requirement by an assessor to provide particulars pursuant to cl 17.13 of the Guidelines that is all that the insurer needs to do for the Assessor to be required to determine whether the claim is not suitable for assessment. Indeed, cl 17.13 when dealing with a requirement that a party give particulars in writing of the general nature of any such allegation, the clause adds "but not necessarily the evidence or proof of same".
12. Secondly, it is significant that there is a corresponding provision for an allegation by the insurer in cl 8.11.6 in relation to a fraudulent claim. Such an allegation results in a mandatory exemption of the matter from an assessment. The matter referred to in cl 14.16.11 can on one level be seen as the corresponding provision to cl 8.11.6 in respect of damages, although without the mandatory exclusion when such an allegation is made. Although the use of the phrase "tantamount to fraud" by the insurer in the present case might be thought to deflect the proper enquiry, what might be being alleged in any given case under cl 14.16.11 could be as serious as a fraudulent claim: e.g. Tarabay at [57] and [66].
13. It can be reasonably inferred from the mandatory exemption in relation to a fraudulent claim that the absence of sworn compellable evidence with a right of cross-examination in the CARS process meant that neither truth nor fairness to the parties was likely to be achieved other than in a court hearing where, additionally, the rules of evidence apply. That is a relevant consideration where it is alleged a false or misleading statement has been made.
14. That matter is emphasised by the provisions of ss 117 and 118 of the Act which provide: 117 False claims (cf s 65 MAA) A person who makes a statement knowing that it is false or misleading in a material particular: (a) in an accident notification form under Part 3.2, or (b) in a notice of a claim given to a person or an insurer under Part 4.2, or (c) in the course of the assessment of a claim under Part 4.4, or (d) when otherwise furnishing information to any person concerning a motor accident or any claim relating to a motor accident, is guilty of an offence. Maximum penalty: 50 penalty units or imprisonment for 12 months, or both. 118 Remedy available where claim fraudulent (cf s 66 MAA) (1) This section applies to a claimant or insurer if it is established that, for the purpose of obtaining a financial benefit, the claimant or insurer did or omitted to do anything (including the making of a statement) concerning a motor accident or any claim relating to a motor accident with knowledge that the doing of the thing or the omission to do the thing was false or misleading. (2) If this section applies to a claimant: (a) a person who has a liability in respect of a payment, settlement, compromise or judgment relating to the claim is relieved from that liability to the extent of the financial benefit so obtained by the claimant, and (b) a person who has paid an amount to the claimant in connection with the claim (whether under a settlement, compromise or judgment, or otherwise) is entitled to recover from the claimant the amount of the financial benefit so obtained by the claimant and any costs incurred in connection with the claim. (3) If this section applies to an insurer, the claimant is entitled to recover from the insurer as a debt the amount of the financial benefit so obtained by the insurer and any costs incurred by the claimant in connection with the claim.
15. Thirdly, although, as Tarabay and Banos make clear, it is an error for the Assessor to make a determination about whether a statement is false or misleading, it is difficult to see how an assessor would be in error in forming some sort of preliminary view, and it is difficult to see how the assessor would not have to form such a preliminary view, about the allegation to determine whether the claim is not suitable for assessment: Insurance Australia Limited t/as NRMA Insurance Limited v Milton [2016] NSWSC 1521 at [26]-[27]. As Campbell J makes clear at 43 it is not sufficient that an allegation alone has been made for the discretion to be exercised that a claim is not suitable for assessment. Something more will be needed. Clause 17.3 also points to the view that the seriousness of what has been alleged must be a consideration. Justice Campbell allowed for the rare position at [39] and [42] that the Assessor could determine that a person clearly had not made such a false or misleading statement. That points also to the forming of a preliminary view.
16. Fourthly, in Tarabay Rothman J drew attention to some of the limitations on an assessment conference and on an assessor. His Honour said: [36] It is necessary, at least briefly, to reiterate the nature of proceedings before an assessor. The proceedings are informal. By Chapter 15 (clause 15.4.2) the examination of parties and witnesses is usually by the Assessor and questions by other parties to witnesses may only be put as directed by the Assessor. [37] Further, pursuant to Guideline 15.4.3 the Assessor may allow questioning of a witness by another party's legal representative, but may make that questioning subject to any limitations determined by the Assessor. [38] The Assessor questions, or may question, a party or witness to such extent as the Assessor thinks proper, but the Assessor cannot compel any party or witness to answer any question. [39] If, in the last mentioned circumstance, a party fails to answer a question or a witness fails to answer a question, the Assessor can have regard to that failure in the determination of the assessment, unless the party has a reasonable excuse for that failure to answer: see Guideline clause 15.4.5. … [57] …The Assessor has no power to subpoena or require the attendance of any person. The Assessor has no power to require an answer to any question. The most that the Assessor is able to do, in dealing with an issue of that kind, is take into account a failure to answer a question in determining an assessment. The matters set out in those parts of clauses 15, 16 and 18 of the Guidelines (at [24] above) highlight those matters.
17. In my opinion, error is established in the present case either because there has been a constructive failure on the part of the Assessor to exercise her jurisdiction or because she has not correctly dealt with the question that she ought to have asked. The question she was required to answer was whether the claim was not suitable for assessment on the basis that there was an allegation that the First Defendant had made a false or misleading statement in a material particular in relation to his injuries.
18. The Plaintiff specifically directed the Assessor's attention to a specific and significant matter, namely, whether the matter should be exempted so that the claimant's claims could be tested under oath. The Plaintiff did that in its letter to the Assessor of 2 August 2016 making the application and again in its submissions in reply to the Assessor dated 22 September 2016. In that letter the Plaintiff said this: The insurer submits given the histories recorded and the contents of the current clinical notes, it is appropriate that the claimant give evidence in Court under oath in respect of the accident and his claim for damages. The CARS process does not allow for the claimant's claims to be tested under oath. The insurer does not agree with the claimant's submissions that the claimant's claims can be properly dealt with under cross-examination at CARS. We confirm the claimant would not be required to give an oath at CARS prior to providing his evidence and no transcript would be available. Given the histories repeatedly provided by the claimant that he had no relevant pre-accident symptoms or injuries, the insurer submits CARS is not the appropriate forum for the matter to be heard.
19. The Assessor made no reference to the significance of evidence being given under oath in the circumstances. She merely said that the insurer had not alleged any fraud surrounding the accident (an irrelevant matter for this particular application) but failed to note that what was alleged was a false and misleading statement that, like fraud, might require a consideration of whether the more appropriate venue would be one of where evidence is given under oath. Her characterisation of the complaint as "inaccurate histories" was an inadequate acknowledgement that what was alleged was "false" and misleading rather than being inaccurate.
20. In Tarabay Rothman J said: [56] I accept the opinion expressed by the Assessor that often issues associated with inconsistencies in periods of employment are resolved in a CARS assessment as are inconsistencies in documents and statements. Often they are resolved in the proceedings by examination by the insurance company that is permitted by the assessor. This however is slightly different. [57] The allegation by Allianz is an allegation of fraud in relation to the reliance upon a document that is said to be a forgery (if not two such documents). The Assessor has no power to subpoena or require the attendance of any person. The Assessor has no power to require an answer to any question. The most that the Assessor is able to do, in dealing with an issue of that kind, is take into account a failure to answer a question in determining an assessment. [58] There is a significant difference between inconsistent evidence of earnings and evidence of potential forgery. The only conclusive means of determining the forgery, and its source, is by compelling production, compelling answers under oath, and cross-examination of Mr Tarabay and third parties. That course is impossible in an assessment.
21. I accept that forgery was not alleged in the present case but the remarks made by Rothman J are relevant when another form of false or misleading statement is alleged.
22. There is no indication in the Reasons of the Assessor (effectively paragraphs 8 - 12 of her Reasons) of the significance of testing evidence alleged to be false and misleading under oath as discussed by Rothman J in Tarabay at [57] - [58] or by Campbell J in Banos at [37] - [43].
23. The particularisation by the Plaintiff of what was said to be the false and misleading statements was sufficiently extensive as to require the Assessor to consider whether it would in the circumstances be more appropriate for the credit of the First Defendant to be properly tested under oath, heard in open court and subject to proper cross-examination, none of which was available in the CARS assessment process. Moreover, if a false or misleading statement had been made by the First Defendant s 117, or indeed probably s 118 of the Act, would not be able to be availed of if the matter was not heard by a court.
24. One appropriate consideration for the Assessor was the extent to which the First Defendant's credit was capable of being impugned at any hearing, whether at a CARS assessment or in court. The records from the physiotherapist showed that the First Defendant had low back problems in 2000, 2008 and for a period of six weeks prior to the consultation on 3 April 2013, three weeks before the accident. During that six week period he had been medicated with Endone, a well-known strong opioid analgesic. By the consultation two days later he was on Mobic, an anti-inflammatory medication, although he was "much better". He had also sought attention for his left shoulder in 2008HHhHe had also sought attention for his left shoulder in 2008.
25. Although Senior Counsel for the First Defendant submitted that the references in most of the doctors' reports was to no "significant" problems, about which there would need to be medical evidence to determine what was "significant", an examination of the reports suggests a less nuanced denial of prior problems to a number of medical advisers: 1. Dr Patrick reported "there is no prior history at all of accidents, injuries or symptoms of significance, affecting his head, left shoulder, low back or legs". (emphasis added); 2. Dr Shatwell reported, "Mr Taylor states he has had no previous problems with his back. … Mr Taylor alleges he had no pre-existing conditions"; 3. Dr Muratore reported "He does not recall any back pain at the time of the injury. He developed back pain approximately four weeks after the subject motor vehicle accident"; 4. The occupational therapist Kathleen Whitmore reported "He advised that he did not have any significant medical history and did not have any injuries to his left clavicle or lower back" (emphasis added).
26. From the point of view of the First Defendant's credit it may also be significant that to Dr Crocker and Dr Muratore he mentioned a fracture of the left fifth finger when playing football "in his youth". As he did not sustain or complain of any injury to his left hand in the accident mentioning that matter suggests someone who was endeavouring to be scrupulous and yet, at the same time, he told Dr Crocker "[i]n relation to past medical history, Mr Taylor stated that he had been otherwise well", and he told Dr Muratore he "had no previous injuries, illnesses, workers' compensation claims or motor vehicle accidents prior to the subject motor vehicle accident".
27. Dr Crocker's report is also of significance because he provided his report as a medical assessor under the Act with the result that his report was binding on the assessor as medical assessment matters.
28. However, even as far as denials of "significant" problems go, an inference was available, in the light of what was reported to the physiotherapist three weeks before this accident, that the First Defendant's credit was not an insignificant issue at any hearing. When considering all of the medical material identified by the Plaintiff in its application to the Assessor, the case did not simply involve "inaccurate histories which may impact on their opinions and conclusions". Those opinions and conclusions were to some extent secondary to the issue of the First Defendant's credit about which the Assessor said nothing.
29. Further, the Assessor's emphasis on the capability of the CARS process to obtain evidence including any modified opinions from the doctors demonstrates that she did not understand the argument that was being put to her, nor the significance of the argument for her decision in the light of what had been said in Tarabay and Banos.
30. In my opinion, there was a failure in that regard by the Assessor to respond to a substantial, clearly articulated argument in reliance upon the particulars that formed the basis of the allegation: Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; (2003) 77 ALJR 1088 at [24]. Alternatively, the Assessor failed to address the substance of the Plaintiff's application and in that way was a clear case of constructive failure to exercise jurisdiction: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; [2001] HCA 22 at [81]; AAMI Ltd v Ali [2012] NSWSC 969 at [48].
31. In addition, although the assessor twice said that the matter was suitable for a CARS assessment her only reasons were that fraud concerning the accident was not alleged and that medical histories could be sent to the doctors for further comment. The former reason was irrelevant. The latter failed to engage with the issue and the test to be applied. The First Defendant's submission that CARS assessments are to be regarded as the norm can be accepted but that does not fill any hole created by the Assessor's failure to address adequately or at all this application for an exemption.

Conclusion

1. Accordingly, I make the following orders: 1. An order in the nature of certiorari quashing the order of the Third Defendant made 31 October 2016. 2. An order in the nature of mandamus remitting the matter to the Second Defendant for allocation to a different claims assessor to determine the Plaintiff's exemption application in accordance with law. 3. The First Defendant is to pay the Plaintiff's costs of the proceedings. 4. The First Defendant is to have a certificate under the Suitors' Fund Act 1951 (NSW) if otherwise so entitled.

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: 05 May 2017