Future care
67I have already recited, at [15] above, that part of the reasons for decision of the Assessor that deals with the claim for future care. The Assessor awarded $2,363 for future care on the basis that the claimant would likely suffer some disability in the future from osteoarthritis. NRMA submitted that an error of law in any part of the reasons for decision that gives rise to the certificate specifying the total damages vitiates the whole award and that the award for future claim was arrived at as a result of errors of law being:
(i) the Assessor failed to apply s 128 of the Act;
(ii) there was no evidence before the Assessor to support the findings made;
(iii) the determination (or more accurately the reasons accompanying the determination) are unable to be understood and the assessor failed to provide reasons (or lawful reasons) for the conclusions reached;
(iv) the assessor failed to act fairly towards NRMA and accord it equity, in accordance with the Guidelines.
68As earlier stated, the Act (and the Guidelines) requires each certificate of damages to be accompanied by a brief statement of the Assessor's reasons for the assessment: s 94(5) of the Act and clause 18.4 of the Guidelines. The reasons need not be lengthy, formal or technical, but they must disclose the process by which the Claims Assessor has determined the result and why the outcome has been reached: see Allianz Australia Insurance Ltd v Roger Ward & Ors [2010] NSWSC 720 at [40]. Failure to state reasons is an error of law: Campbelltown City Council v Vegan & Ors [2006] NSWCA 284; (2006) 67 NSWLR 372, at 399. The Act imposes a limit on the award of damages for the value of future attendant care services. Relevantly, a limitation is imposed that no compensation is to be awarded unless the services are provided or are to be provided for at least six hours per week and for a period of at least six consecutive months: s 128(3) of the Act.
69The Assessor, in his reasons, did not deal expressly with the provisions of s 128 of the Act. NRMA seek to rely on the judgment of Hidden J in Ward , supra, in which his Honour expressly determined that the reasons for the Assessor in that matter did "not disclose a consideration of whether the threshold test in respect of each claim was examined and found to have been met": at [20]. Later, Hidden J said, at [37]:
"Before allowing an award for either claim, it was necessary that he [the Assessor] make it clear in his reasons that he had considered the relevant test and found it to be satisfied, and it was incumbent upon him to set out the periods and number of hours per week which he found to meet the statutory requirements."
70But Ward , supra, was a very different situation to that which applied to the reasons for decision by the Assessor in this case. In Ward , the claimants sought an allowance for gratuitous domestic care and also for loss of capacity to provide domestic services to his dependants, namely, his children. Each of these is a distinct head of damage governed by statute. The claim made by Mr Ward aggregated the damages for personal assistance, i.e. his own care, and the Claims Assessor, in the decision subject to application in Ward , supra, did not separately identify future care and determine whether such future care met the threshold below which no damages were allowed in this respect. It is necessary to return to this issue after dealing with the existence of reasons, whether there was evidence to support the findings purportedly made and whether the Assessor acted fairly towards NRMA.
71As already stated, a failure to provide reasons in the context of this Act and the Guidelines promulgated thereunder, is an error of law and a failure to comply with the requirements of the Act. Ordinarily, such a failure would result in the quashing of any determination for which there were no reasons and a remittal of the proceedings back to the Motor Accident Authority in order for it to deal with the proceedings in accordance with law and finalise the claims assessment process.
72The earlier discussion in these reasons as to the necessity to provide reasons is relied upon for the purposes of this particular ground of review. The issue turns on whether the Assessor disclosed his reasoning process, namely, the process undertaken by him and why he reached the outcome described.
73It is unnecessary to reiterate the terms of the decision on this question. It is set out previously. The applicant's CARS application form made a claim for future care. The written submissions filed in support of the claimant's case did not expressly deal with that claim. The Assessor enquired as to whether the claim was being pursued and the position of NRMA was that they opposed any such claim being made, because they were not put on notice. However, NRMA took the tactical decision not to seek or to obtain an adjournment to deal with the issues raised in support of this claim.
74The failure to seek an adjournment is not, of itself, an answer to any procedural unfairness. Notwithstanding that principle, in this case NRMA were represented by a legal practitioner, faced with a claim relating, at best, to an insignificant aspect of the total claim for damages, who made a tactical decision not to seek or obtain an adjournment.
75The issue of whether a refusal to grant an adjournment, even when not the subject of an application, may amount to a denial of natural justice has been dealt with by the High Court of Australia, referring, with authority, to the statement of Deane J when a member of the Federal Court. In the Federal Court judgment, Sullivan v Department of Transport (1978) 20 ALR 323, at 343, Deane J says:
"A refusal to grant an adjournment can constitute a failure to give a party to proceedings the opportunity of adequately presenting his case. If the Tribunal had, in the present matter, refused an application by the appellant for an adjournment to enable him to procure Dr Evans' attendance as a witness, that refusal may well have constituted such a failure. No such application for an adjournment was, however, made. If it had been made, it is highly probable that the Tribunal would have acceded to it: indeed, counsel who appeared for the appellant stated that he did not dispute that, if the appellant had applied for an adjournment, the Tribunal would have granted it. The absence of any application for an adjournment does not, however, necessarily conclude the issue adversely to the appellant. The failure of a tribunal which is under a duty to act judicially to adjourn a matter may, conceivably, constitute a failure to allow a party the opportunity of properly presenting his case even though the party in question has not expressly sought an adjournment (see Priddle v Fisher & Sons [1968] 1 WLR 1478; [1968] 3 All ER 506). In this regard, however, it is important to remember that the relevant duty of the Tribunal is to ensure that a party is given a reasonable opportunity to present his case. Neither the Act nor the common law imposes upon the Tribunal the impossible task of ensuring that a party takes the best advantage of the opportunity to which he is entitled."
The foregoing approach was confirmed by the High Court in Re Association of Architects; Ex Parte Municipal Officers Association of Australia [1989] HCA 13; (1989) 63 ALJR 298, at 305, in which judgment Gaudron J said:
"As was pointed out by Deane J in Sullivan v Department of Transport (1978) 20 ALR 323 at 343, procedural fairness requires only that a party be given 'a reasonable opportunity to present his case' and not that the tribunal ensure 'that a party takes the best advantage of the opportunity to which he is entitled'. And it is always relevant to inquire whether the party or his legal representative should reasonably have apprehended that the issue was or might become a live issue: see Re Building Workers' Industrial Union; Ex parte Gallagher (1988) 62 ALJR 81 at 84."
76In this case, NRMA were given the opportunity to prepare and to present whatever case it sought and must have been aware that the issue of future care was a matter with which the tribunal was dealing. There has been no denial of natural justice. Nor has NRMA relied on a denial of natural justice. Nevertheless, the Court must consider that aspect as part of the general context in which NRMA claims a lack of fairness in the manner in which this claim has been determined.
77It is necessary to refer to the report of Dr Cummine to which the Assessor refers in his decision.
78There are a number of reports of Dr Cummine. The latest report, 29 July 2010, reviews Mrs Ainsworth's current symptoms and general activities of daily living and notes that Mrs Ainsworth remains personally and domestically independent. However, some of her sports and hobbies and work activities have altered. Dr Cummine examined Mrs Ainsworth and noted her range of movements in relation to her hip. He also noted that girths of both thighs were equal but there was a 1cm wasting of the left calf which had not been present at the earlier examinations and, in Dr Cummine's view, "is best explained by the progression of the osteoarthritis in her left ankle". There continued to be a deformity in the ankle joint with reduction in both dorsiflexion and plantar flexion.
79Dr Cummine compared the imaging that had been performed on Mrs Ainsworth's left ankle and noted that there had been "significant deterioration". Dr Cummine stated:
"The important observation is in coming to the new film. There has been marked deterioration in the tibiotalar joint and it is now bone on bone at the junction of the medial talus with the tibial plafond. Previously, there was a joint space of at least 1mm and possibly 2mm in the medial area. This would fit with her noting some deterioration."
Dr Cummine also referred to a metal bulk of her right posterior pelvis which may be the cause of the discomfort of which Mrs Ainsworth was complaining. Dr Cummine also referred, in relation to the hip, that there were not, at that time, signs of early post-traumatic osteoarthritis, but Mrs Ainsworth was at risk of developing this complication, which has not yet materialised.
80Dr Cummine took the view that Mrs Ainsworth's left ankle injury was unrelated to the subject accident. This is a view not accepted by the Assessor and the Assessor's determination, in this regard, is not subject to challenge. Relevantly, Dr Cummine opined that Mrs Ainsworth's left ankle injury was, on the radiographic evidence, displaying signs of significant deterioration since his last review and the osteoarthritis results in a whole person impairment of approximately 12%. He does not consider that Mrs Ainsworth presented in anything other than an extremely balanced and rational way and she did not make any claims in relation to personal and domestic care, or in relation to work, that were not "entirely credible and reasonable". Dr Cummine then says:
"In regard to prognosis, she remains at some risk of developing premature post-traumatic osteoarthritis, as noted above. To this point, that complication does not appear to have materialised clinically, and it was not present on a radiograph done two years ago.
...
Were she to develop osteoarthritis in her right hip, she may require domestic assistance, but the extent of that assistance will vary widely depending on the degree to which osteoarthritis affects her hip, should it occur.
She may also require domestic assistance in relation to her left ankle if pain becomes a more major issue, and I do note that she has started to wear a brace on a daily basis, and, therefore, that situation needs to be kept under review.
Should pain progress such that she needs a fusion of her left ankle, there would be certain heavy aspects of domestic duties and handyman work, such as ladders, heights and roofs, where she would require assistance."
81From the foregoing medical opinion, and others, the Assessor came to a view as to Mrs Ainsworth's injuries for the purpose of assessing non-economic loss. This view, and finding of fact, has not been (and probably could not be) the subject of challenge. The Assessor determined:
"(ii) The claimant suffered from a severe fracture to her right acetabulum and there is no doubt in my mind, and accepting the opinion of Dr. Hopcroft as I do, that this claimant will eventually come to hip replacement surgery. Whilst Dr. Cummine opines that at this point in time (July, 2010) there is no indication for surgery of the hip, the fact of the very severe fracture requiring surgery will inevitably lead to a development of arthritis in the longer term as opined by Dr. Hopcroft.
(iii) The claimant continues to be troubled by a significant left ankle pain aggravated by the accident and which troubles her on a regular basis. She has observable arthritis in the ankle and surgery has been recommended but she is reluctant to do so at the present time because the surgery involved is a fusion of the ankle joint which will significantly limit joint mobility in the left ankle." (Reasons for determination, Exhibit B, p 6 at paragraphs 18(ii) and 18(iii).)
82For completeness I should refer to the reports of Dr Hopcroft, who examined Mrs Ainsworth on 9 April 2008 and 21 August 2009 and issued reports on 9 April 2008 and 21 August 2009 and a final report on 11 May 2010 after an examination on that date (Exhibit A, p 1126 and following). Dr Hopcroft describes Mrs Ainsworth as continuing "to have ongoing problems, most particularly affecting her right hip and left ankle as a result of her motor vehicle accident". He stated:
"I believe this patient will inevitably develop arthritis in her right hip joint in the longer term and well may come to the right hip joint replacement surgery in her later life."
He then gave figures as to the costs for items associated with that and proceeded in the following terms:
"I believe this patient is very likely to come to left ankle joint fusion surgery in the longer term with a significant proportion of that requirement arising directly from her left ankle injury suffered in the motor vehicle accident of 10 January, 2007. Such a procedure to include the surgical fees, anaesthetic fees, hospital stay and rehabilitation programme runs to approximately $10,000.00."
83The Assessor stated, more than once, that he accepted the opinions of Dr Hopcroft. It is in that context that the Assessor dealt with the issue of future care in the passage already recited. If the view of Dr Hopcroft were accepted, as it was, it accords, generally, with that of Dr Cummine and it is likely that Mrs Ainsworth will undergo surgery, being a hip replacement and left ankle fusion arising from what is described by the Assessor as "inevitable osteoarthritis".
84The Assessor then referred to the provisions of s 128 as being the basis for any award of future gratuitous domestic assistance. Plainly, the Assessor has taken into account s 128 of the Act.
85Properly understood, it seems that the Assessor accepted that osteoarthritis is inevitable and accepted that left ankle fusion would occur and, most likely, a right hip replacement. Each of these, in the view of the Assessor, would be a direct result of the injuries sustained, or aggravated, by the accident.
86The Assessor then took a view that such a surgery would "take place ... perhaps 10 years into the future" and would occur only when her injuries became so bad that surgery was essential. The logic in that assessment is compelling. The Assessor then determined that, if the injury were to have become that problematic, there would be a period of "several months" during which gratuitous domestic assistance would be needed prior to the operations and a similar period of gratuitous domestic assistance after the operations. The two periods of several months ought, it seems, amount to over 12 months of gratuitous domestic care. Because this assessment depends upon uncertain events, the Assessor, it seems, heavily discounted the future gratuitous domestic assistance to 6 hours per week for 26 weeks (presumably 3 months either side of the future operation) deferred for the 10-year period before which the operation would not be essential. That process has the same effect as the process contemplated for any uncertain event and described in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638.
87However, the process adopted by the Assessor is problematic. First, there was no evidence of when any such operation was likely to occur. Secondly, there was no evidence of the period during which, prior to the operation, Mrs Ainsworth would be likely to require, or possibly require, gratuitous domestic assistance. Thirdly, there was no evidence of any rehabilitation period, or likely or possible rehabilitation period, after such an operation, were it to occur, during which Mrs Ainsworth would need gratuitous domestic assistance. Lastly, at least for present purposes, there was no evidence of the degree to which any of the foregoing was likely and therefore the degree to which any such assessment would be discounted.
88It may well be, because of the commonsense nature of these assessments, that if evidence were available on these questions, gratuitous domestic assistance far greater than that allowed would result. But, as NRMA submits, the difficulty is these findings are made in the absence of evidence.
89In terms of the issues raised by NRMA as to this aspect of the claim, a number of comments ought to be made. The Assessor did not, contrary to the submission of NRMA, fail to apply s 128 of the Act. The Assessor expressly referred to s 128 of the Act. Unlike the situation with which Hidden J dealt in Ward , supra, the determination disclosed, plainly, that the Assessor considered and came to a view that the threshold limitation in s 128 had been satisfied and had been satisfied in relation to the particular claim of future gratuitous assistance.
90Further, the Assessor provided reasons for the conclusions that he reached. NRMA may not agree with those reasons, but, as expressed, those reasons are logical, intelligible and set out the process undertaken by the Assessor and why it was he reached the conclusion that he did.
91Thirdly, other than the issue with which I will next deal, the Assessor acted fairly towards the parties and accorded them equity, in the process that he adopted. The Assessor offered an adjournment to NRMA in order for them to deal with the issue, which offer was refused. I add, lest it be thought otherwise, that I am not being critical of NRMA for refusing the offer. It seems to me that NRMA were entitled to deal with the matter on that basis and took a most reasonable approach in seeking to have the matter dealt with as expeditiously as possible.
92Lastly, I deal with the submission that there was no evidence before the Assessor that could support the findings. At least in relation to the findings as to the degree of likelihood that operations would occur, the periods before and after such operations during which Mrs Ainsworth would require gratuitous domestic assistance, and the timeframe during which it was likely that such an operation would occur, NRMA is correct. There is no evidence to support calculations based upon those propositions. There is evidence upon which the Assessor could have come to the view that the operations were likely and the osteoarthritis was inevitable.
93Counsel for Mrs Ainsworth, frankly, concedes, to some extent, the absence of evidence on some aspects. That is a most appropriate concession, which could not be avoided.
94A finding that is based on no evidence, as distinct from sufficiency or reliability of evidence, is an error of law: Australian Broadcasting Tribunal v Bond , supra, at 355-356; Australian Gas Light Co v Valuer-General (1940) 40 SR (NSW) 126 at 138; Ormwave Pty Limited & Anor v Smith [2007] NSWCA 210, at [11]-[15], and the cases cited therein; Haider v JP Morgan Holdings Aust Ltd Trading as JP Morgan Operations Australia Ltd [2007] NSWCA 158 (per Basten JA); and R v R (1989) 18 NSWLR 74, at 84 (per Gleeson CJ, Maxwell and Wood JJ agreeing).
95Notwithstanding what may be a commonsense approach to the final determination of proceedings expeditiously, the assessment of damage in relation to future gratuitous domestic assistance depends upon facts and circumstances that were not the subject of evidence before the Assessor, nor from which the Assessor was entitled to draw an inference. It may be that a less strict test should be applied to inferences of this kind before a Claims Assessor than would be the case in curial proceedings or before a tribunal that was not a specialist tribunal, deliberately established for the purpose of reducing formality and expense, as is the Claims Assessor under the Act. But, on present authority, it seems to me that there is a finding based upon inferences that were incapable of being drawn and an absence of evidence to support those findings and/or those inferences.
96The foregoing requires the conclusion that the Assessor's determination was arrived at by reason or reasons that disclose an error of law. The error of law, however, is not an error of jurisdiction. It is, in terms of the provisions of s 69(3) and s 69(4) of the Supreme Court Act , an error on the face of the record, for which orders in the nature of certiorari would, ordinarily, issue.
97Mrs Ainsworth, through her counsel, submits that, in the exercise of the Court's discretion, orders would not issue, because, inter alia, of the insignificant and/or minimal effect of this error on the ultimate determination.
98There are many instances in which courts have expressed the view that the issue of orders in the nature of certiorari is discretionary (see, for example, Rodger v De Gelder & Anor [2011] NSWCA 97 at [84]) . There are very few examples of the exercise of that discretion. Certainly, in the case of jurisdictional error, it would be an extremely rare occasion for a superior court to take the view that jurisdictional issue existed, but that no remedy should issue. Usually, in such circumstances prohibition or mandamus would issue.
99Where, as here, the error of law on the face of the record is an error of law in the reasons, and is not a jurisdictional error, there is some greater flexibility for the exercise of a discretion not to issue orders. However, that discretion, in my view, ought to be exercised in rare circumstances. Parties are entitled to have administrative decisions determined in accordance with law. It is one of the features of the rule of law and one of the fundamentals of democracy. In Corporation of the City of Enfield v Development Assessment Commission [2000] HCA 5; 199 CLR 135, at 157 [56], Gaudron J stated.
"Those exercising executive and administrative powers are as much subject to the law as those who are or may be affected by the exercise of those powers. It follows that, within the limits of their jurisdiction and consistent with their obligation to act judicially, the courts should provide whatever remedies are available and appropriate to ensure that those possessed of executive and administrative powers exercise them only in accordance with the laws which govern their exercise. The rule of law requires no less."
100Nevertheless, there is a discretion to be exercised judicially by the courts in relation to the grant of relief of this kind. In the case of prohibition, Gibbs CJ in Re Ross-Jones; Ex parte Green [1984] HCA 82; (1984) 156 CLR 185 said, at 194:
"If, therefore, a clear case of want or excess of jurisdiction has been made out, and the prosecutor is a party aggrieved, the writ will issue almost as of right, although the Court retains its discretion to refuse relief if in all the circumstances that seems the proper course."
101Care must be taken in applying the statements of the High Court, as to its jurisdiction, to the jurisdiction exercised by the Supreme Court of New South Wales under s 69 of the Supreme Court Act . The High Court's jurisdiction, and comments on it, usually refer to the issue of constitutional writs under s 75(v) of the Constitution. Mandamus and prohibition issue for jurisdictional error and, for some time, notwithstanding its status as the "Federal Supreme Court" (see s 71 of the Constitution and Kirk , supra), the High Court has confined its jurisdiction to issue certiorari to circumstances which arise from proceedings for the constitutional writs which define its original jurisdiction under s 75(v) of the Constitution.
102In the present proceedings, it cannot be said that the drawing of the inferences, as to the likelihood that an operation will occur, its timing, and the period of incapacity during which future gratuitous domestic assistance would be required, was an actual or constructive refusal to exercise the jurisdiction of the tribunal below or in excess of the jurisdiction. As earlier stated, while these findings of fact, and/or the drawing of inferences, were not available because there was no evidence, the errors of law occasioned thereby were not jurisdictional. Even the constitutional writs have been refused in cases where jurisdictional error has been disclosed. This is usually in circumstances where there is an internal appeal which, for example, would overcome any denial of procedural fairness: R v Marks; Ex parte Australian Building Construction Employees Builders Labourers' Federation [1981] HCA 33; (1981) 147 CLR 471, at 484-485. Indeed, as is clear from the citation of the judgment of Gibbs J in Re Ross-Jones , supra, the High Court has always, even in relation to jurisdictional error, reserved the right to exercise a discretion to refuse relief.
103As stated, the circumstances in which orders in the nature of certiorari ought to be refused on discretionary grounds must be rare. Certainly, in the case of jurisdictional error, it must be extremely rare and, in the words of the High Court, "the discretion with respect to [such] remedies ... is not to be exercised lightly against the grant of a final relief, particularly where ... there is no avenue of appeal". ( Re Refugee Review Tribunal; Ex parte Aala [2000] HCA 57; (2000) 204 CLR 82, at 107, [55], per Gaudron and Gummow JJ.)
104In Aala , supra, at [56], Gaudron and Gummow JJ (Gleeson CJ agreeing at [5]) cited with approval the well-known passage of the High Court in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Ozone Theatres (Aust) Ltd [1949] HCA 33; (1949) 78 CLR 389, at 400, in which the High Court said:
"For example the writ may not be granted if a more convenient and satisfactory remedy exists, if no useful result could ensue, if the party has been guilty of unwarrantable delay or if there has been bad faith on the part of the applicant, either in the transaction out of which the duty to be enforced arises or towards the court to which the application is made. The court's discretion is judicial and if the refusal of a definite public duty is established, the writ issues unless circumstances appear making it just that the remedy should be withheld."
105As earlier stated, in this case there is no jurisdictional error. The overriding and overwhelming public interest in ensuring that public officials exercise the duty required of them and do not exercise that which is beyond their power does not inform the jurisdiction to exercise a discretion to refuse certiorari in circumstances where the error is not jurisdictional. Nevertheless, the exercise of the discretion must be rare.
106A further consideration is that the Court, in exercising its discretion, must be guided, amongst other things, by the injunctions in the Civil Procedure Act 2005 to ensure the quick, cheap and just resolution of the real issues between the parties.
107In this case, a number of factors inform the exercise of the discretion. First, the error of law relates to an assessment of future gratuitous care of $2,363 in a total damages award of over $600,000. This represents approximately 0.374% and certainly a figure significantly less than 1% of the total damage. Secondly, the costs awarded to one party is over $40,000 and the effect of issuing an order quashing the determination would be to require the parties to re-litigate the proceedings before a Claims Assessor and incur, presumably, at least a further $20,000 (or perhaps $80,000, being twice the original order for costs), in circumstances where the only identifiable error relates to an amount of just over $2,000. Thirdly, the error arises because of the acquiescence of the parties in a procedure, which invited the Assessor to "do the best he could" on the material that was before him, being the effect of asking the claimant whether the head of damage was being pursued and the insurer as to whether, if it were pursued, an adjournment was necessary. For the foregoing stated reasons, I will exercise the discretion not to issue orders to quash the Assessor's determination.
108One other matter should also be mentioned, even though it is not a consideration in the foregoing decision. As earlier stated, the Assessor has discounted the amount of future gratuitous care significantly to account for the uncertainties in the nature of the operation and the degree to which pre and post-surgery incapacity would arise. As a consequence, if the matter were remitted to the Assessor, or any Claims Assessor, the result may be an award of a greater amount for future gratuitous care and a higher overall assessment. It is not absolutely clear, that the correction of the error of law, if the matter were re-litigated, would advantage NRMA. The amount ultimately awarded is the minimum amount that could have been awarded pursuant to the terms of s 128 of the Act. The temptation on the Assessor to finalise the proceedings in this way is, at one level, understandable. Nevertheless, it is essential that assessments be based upon evidence and material that are rationally probative of the findings to be made.
109Because I have determined to exercise the discretion reposed in the Court not to issue orders, it is appropriate to determine the orders I would have made were it not so exercised.
110I agree with Hidden J in Ward , that the issue of certiorari goes against the assessment, not each part of the assessment, and an error in one head of damage, if the discretion were not exercised, would result in the whole of the assessment being quashed and the matter remitted to the Assessor (or another Claims Assessor). In current circumstances, were I to have issued such orders, I would have apportioned costs in these proceedings and required the plaintiff to pay 90% of the costs, given, in this case, the preponderance of the major point relating to the acceptance of the report of Dr Lethlean.
111There is a public interest in the finality of proceedings. In my view, these proceedings constitute one of those exceptional circumstances where, given there is no jurisdictional error, the Court should exercise its discretion to refuse to issue an order in the nature of certiorari. Indeed, the circumstances are such that, even if there were jurisdictional error in the assessment of future care, exercise of the discretion would be warranted.