Widitz v AAI Limited t/as AAMI

Supreme Court of NSW|2020-03-18|Before: Schmidt AJ

Solicitors: Maurice Blackburn Lawyers (Plaintiff) Barry.Nilsson Lawyers (First Defendant) File Number(s): 2019/00323424

Issues

There was no issue about the nature of assessor Ford's obligations under s94 or clause 18.4 of the applicable Claims Assessment Guidelines, issued under s69 of the MAC Act; or that a "beneficial construction" must be applied to his reasons. The reasons given may not be examined minutely or finely, or with an eye keenly attuned to the perception of error: Immigration & Ethnic Affairs, Minister for v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-2.
In issue was whether: 1. the reasons assessor Ford gave for Ms Widitz' future treatment and commercial care expenses were inadequate, given the obligations imposed by s94 and the applicable guidelines; 2. the damages assessed for those expenses were legally unreasonable, that involving jurisdictional error.
For the reasons which follow, I am satisfied that Ms Widitz' case on both issues must succeed.

The statutory obligation to give reasons

Section 94(1) required the assessor to make an assessment of Ms Widitz' damages "being the amount of damages that a court would be likely to award" her. That assessment had to be made having regard to such information as was "conveniently available" to the assessor: s94(2). The assessor also had to provide reasons for his assessment: s94(4).
Clause 18 of the Guidelines also obliged the assessor's statement of reasons "to set out as briefly as the circumstances of the assessment permit: 18.4.1 The findings of material questions of fact; 18.4.2 The assessor's understanding of the applicable law if relevant; 18.4.3 The reasoning processes that led the assessor to the conclusion; and 18.4.4 In the case of an assessment certificate issued pursuant to s94 the assessor must specify an amount of damages and the manner determining that amount."
In resolving what here lies in issue it is settled that reasons given by an assessor should not be scrutinised over zealously: Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55 at [43]. In a statement of reasons the path of reasoning which led to the assessor's opinion must, however, be disclosed in sufficient detail to enable a court to see whether the opinion does or does not involve an error of law: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [55] and Zahed at [34].

The assessor's decision

In order to understand assessor Ford's reasons for the disputed heads of damage it is thus necessary to consider the reasons given for those assessments, in their context.
Under the heading non-economic loss, the assessor began with his conclusion that the injuries and disabilities which Ms Widitz had suffered as the consequence of her accident "have had significant impact upon her physically". He then referred to her statements, quoting Ms Widitz' description of her current restrictions from her first statement, before turning to her husband's supportive statement. He noted that her husband had described the restrictions in her activities after the accident which he had observed, including that she could no longer run as had been her prior habit, as well as their impact upon her and their family and social life.
The assessor explained the physical difficulties Ms Widitz described suffering as the result of her ongoing pain to be difficulty sitting for long periods; impaired concentration; depressed mood and anxiety; inability to work overtime; having to take frequent breaks and a requirement of flexibility; and their impacts on her personal and social life, as well as on her travel for work and pleasure. The assessor also observed later in his reasons that he accepted Ms Widitz was "genuine in her complaints in respect of her ongoing physical disabilities".
The assessor then dealt with assessor Wilding's certificate and statement of reasons, before turning to the competing expert evidence and the opinions various doctors, including treating doctors, had expressed.
The assessor first dealt with Dr Bodel's three reports, the first of February 2016 where he observed that Ms Widitz had a somewhat guarded prognosis three years after her injury, having been doing well with her chronic renal illness before the accident. Dr Bodel considered that her overall disability associated with the accident was significant and required hard work on physical fitness, for her to maintain optimal function. Dr Bodel also noted her reported problems with prolonged sitting, standing and driving.
The assessor also noted that in April 2016 Dr Bodel considered that Ms Widitz required domestic assistance, given the care she had to take with bending, twisting, lifting and avoiding overhead activities, because of her spinal pain. In August 2018 Dr Bodel noted no particular restrictions on her pre-injury duties at work, but that she suffered with onsite work.
The assessor also referred to the report of a vocational assessor, Mr Martin and that of the psychiatrist Dr Parmegiani, who in August 2018 noted that Ms Widitz had been unable to continue full time work because prolonged sitting had exacerbated her pain and associated depression, in his opinion creating a vicious cycle. Dr Parmegiani had recommended an increase in antidepressant medication, to allow Ms Widitz to resume fulltime employment.
The assessor then dealt with the report of the orthopaedic surgeon Dr Shatwell who the insurer had examine Ms Widitz in 2014 and 2018. He observed that Dr Shatwell had expressed an opinion in his report as to the lumbar spine in modern car seating being well protected and not subject to injury in low velocity rear end collisions of the type in which Ms Widitz had been involved. It was not apparent to the assessor that Dr Shatwell had the expertise to make that observation.
The assessor also noted that Dr Shatwell had observed that Ms Widitz was managing 30 hours' work per week, managing to drive to work and use a flight of stairs there. She had also described being unable to manage a standing desk for more than a few minutes and difficulty sitting for prolonged periods, but felt that she was likely to continue her work for some years. Dr Shatwell did not consider that any incapacity was due to Ms Widitz' symptoms and that the reduction in her hours of work was due to her general medical condition, which had not been aggravated by the accident.
The insurer also had Ms Widitz examined by the psychiatrist Dr Vickery and the assessor noted that he had not noted any psychiatric impairment, in his clinical examination of her.
Having accepted that Ms Widitz was genuine in her complaints, the assessor concluded that he had to prefer the opinions of Dr Bodel and Dr Parmegiani. He concluded on all of the evidence that her non-economic loss should be assessed as $180,000.
The assessor then turned to the issue of Ms Widitz' past loss of earnings, again accepting her evidence and preferring the opinions of Dr Bodel over those of Dr Shatwell. He concluded that Ms Widitz had commenced working reduced hours by arrangement with her employer as the result of her genuine difficulties carrying out her day to day work activities, because of her ongoing disabilities.
The assessor noted that the parties had agreed on the mathematical calculation of Ms Widitz' past loss of earnings, with the result an award of $30,228 damages for her past non-economic loss and $3,325 for past superannuation.
On future loss of earnings the assessor accepted the evidence of Ms Almeida and Ms Houston as to the consequences of Ms Widitz' injuries and ongoing disabilities having denied her opportunities for promotion and pay increases. He accepted that a precise calculation of this loss could not be calculated and that there should be a buffer awarded.
Ms Widitz claimed $250,000 and the insurer, relying on the opinions of Dr Shatwell and Dr Vickery, contended that there should be no allowance for any future economic loss.
The assessor accepted that Ms Widitz' most likely future circumstance was that she would continue to suffer from her disabilities, which would cause a diminution in her earning capacity for the remainder of her working life and that if she lost her employment, she would encounter difficulty in the open labour market in seeking suitable alternative employment and would always be at risk when seeking work. He assessed economic loss by way of a buffer of $130,000.
The assessor then assessed Ms Widitz past treatment expenses of $10,555, as the parties had also agreed.
As to future treatment expenses, the assessor explained: The solicitor for the insurer has submitted an appropriate allowance for future treatment expenses in the sum of $10,000.00 by way of a buffer. Having regard to the medical reports in relation to the necessity for future treatment expenses, this sum is appropriate, and therefore I allow $10,000.00 for future treatment expenses.
The assessor then dealt with the claim for past gratuitous care, noting that before him were the reports of the occupational therapist Ms Kirkham relied on by Ms Widitz and that of Ms McLaughlin, relied on by the insurer. He said nothing about what the reports contained or what was agreed or disagreed.
The assessor then referred to Ms Widitz' evidence about her overseas travel after the accident, as well as her hospital admissions and a schedule which the insurer had compiled of these occasions.
The assessor then concluded, having taken into account he said Ms Widitz' evidence as well as that of her husband and the medical and therapist reports, that the level of gratuitous assistance she had received in the past had not surpassed the statutory threshold. Accordingly, no damages were awarded for the past care she had received.
As to the claim for future commercial care the Assessor then explained: The solicitor for the Claimant has sought an amount for future commercial care in the sum of $537,113.00. I do not accept this submission. I find the Claimant will require assistance in the future with heavier domestic chores, because of the extent of her injuries and ongoing disabilities, and it is difficult for me to say with any precision when this occasional assistance with heavy domestic chores will be required. Having regard to the Claimant's age, I believe it is appropriate to allow an amount by way of a buffer in the sum of $30,000.00.
For these reasons total damages of $394,108 were awarded.

Adequacy of the reasons for the assessed future treatment expenses

The parties' cases

Ms Widitz' case was that the assessor had failed not only to identify the reports which led him to his conclusions, but that he had also failed to explain why her claim, which rested on medical opinions on which she had relied, but the assessor did not refer to, had been rejected. Further, that his conclusion was inconsistent with his earlier conclusions about her evidence and the competing medical opinions and that none of the assumptions on which his assessment of a buffer of only $10,000 rested were identified, as they had to be.
The insurer's case was that it was open to the assessor to weigh up the parties' competing submissions as he had and to accept the amount of the buffer it had suggested, as being reasonable. That was because Ms Widitz had failed to discharge the onus of establishing the loss which she had claimed. Further, that the assessor's reasoning was "self-evident and conformed with the applicable authorities."
No further explanation than that given by the assessor was necessary, $10,000 representing the assessor's "intuitive assessment" of Ms Widitz' possible future loss, which required nothing more to be said, when a buffer was awarded: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 at [69].
The assessor had accepted Ms Widitz' evidence and Dr Bodel's opinion that she had a somewhat guarded prognosis; her overall disability associated with the accident was significant; that she would need to work hard with her physical fitness levels to maintain optimal function; that she struggled with prolonged sitting or standing or work at a computer and had difficulty driving for any length of time and had to take care needing, twisting or lifting because of spinal pain and had to avoid overhead activities.
The insurer submitted that while the assessor had not referred to the opinions of Dr Molnar and Dr Randhawa, it was relevant that they had predated Dr Bodel's reports. In his last report Dr Bodel had confirmed that Ms Widitz treatment remained conservative and that he saw "no indication for interjections or surgery or other invasive tests or treatment at this time". In the result, there was uncertainty about her future treatment and that the claim for $15,000 for surgery was a bare assertion, without any evidence as to cost, which well explained the acceptance of the $10,000 the insurer had urged.

Ms Widitz' case must succeed

There was no issue between the parties that Ms Widitz should be awarded damages for her future treatment expenses by way of a buffer.
A buffer is used when it is concluded that damages must be awarded, but that the impact of an injury is difficult to determine: Penrith City Council v Parks [2004] NSWCA 201 at [5]. Still, the amount of the buffer must be shaped by the available evidence: Allianz Australia Insurance Ltd v Scrod [2012] NSWCA 281 at [26].
Under the MAC Act, buffers have often arisen for consideration in the context of awards for future economic loss under s126. Allianz v Kerr was such a case. Section 126 imposes an obligation on a claimant to satisfy the court that the assumptions about future earning capacity, or other events on which the award is to be based, accord with the claimant's most likely future circumstances but for the injury. The MAC Act imposes no such obligation in relation to damages for future treatment expenses.
What s 94 and the applicable Guideline required was that these expenses be assessed on the material before the assessor on the basis of the amount of damages that a court would be likely to award the claimant, albeit the obligation to set out the reasoning process which led to the assessor's conclusion, was less than that imposed on courts: Zahed at [4].
Nevertheless, the assessment of this disputed head of damage necessarily turned on what the parties had put in issue about the claimed expenses and the evidence which they led about those matters.
While the assessor did not refer to the amount of Ms Widitz' claim for future treatment expenses in his reasons, there was no issue that it was for a $40,000 buffer. That claim was advanced on the basis explained in the written submissions before the assessor, by reference to the opinions of Dr Bodel, Dr Molnar and Dr Randhawa, as well as the evidence of Ms Widitz.
Ms Widitz' thus pressed a claim for expenses of medication, consultations with a GP and the exercise program Dr Bodel had recommended, as well as a pain management program assessed at $7,500 - $10,000 and the hip surgery which in the view of her treating orthopaedic surgeons Dr Molnar and Randhawa, she would require in the future, assessed at $15,000. The assessor also made no reference, however, to how the $40,000 claim was so arrived at.
In his reasons the assessor did note that the insurer's case was that the buffer should be $10,000. That had been described in the insurer's written submissions to the assessor as "a modest allowance", because its "medico-legal experts as a whole do not support significant ongoing treatment needs".
What was in issue before the assessor about Ms Widitz' future needs on the evidence which the parties led was thus not that the conservative treatment which Dr Bodel and Dr Shatwell agreed she had received in the past, at the agreed cost of $10,555, would continue. What was in issue was rather whether she should also receive damages for the future expenses for pain management and hip surgery, by way of the claimed buffer of $40,000.
It is apparent from the damages assessed at $10,000 that the assessor accepted the insurer's case. But the only reasons given were "Having regard to the medical reports in relation to the necessity for future treatment expenses, this sum is appropriate".
Given what was in issue about future treatment expenses, that sentence did not satisfy the obligation to explain the reasoning processes that had led the assessor to his conclusion that Ms Widitz had not established her claim for a buffer of $40,000.
The claims for pain management and the cost of hip surgery had to be considered by the assessor, given what was in issue. But neither those claims, nor the opinions of Dr Molnar and Dr Randhawa on which Ms Widitz relied to advance her case, were referred to by the assessor. That they were considered is not apparent from the reasons given, the assessor not having made reference to them elsewhere.
The conclusion that the buffer should be the $10,000 the insurer had conceded, necessarily involved the rejection of Ms Widitz' claims in relation to pain management and future surgery. But the path of reasoning which led to that conclusion was not disclosed by the assessor, as it had to be, given what was in issue. To the contrary, no reference at all was made either to those claims, or the evidence on which they were advanced.
The assessor had earlier accepted that Ms Widitz had suffered what she and Dr Bodel described, as the result of her accident. She was in her forties and still receiving conservative treatment, it was common ground between the medico legal experts. But she had also been advised by treating doctors that she would in future require surgery on her hip and had thus sought damages for future pain management and hip surgery. Dr Bodel had expressed no opinion about that possibility.
In Kerr Macfarlan JA also observed at [68] that from the reasons given in that case, "the factors that led the assessor to award the buffer were apparent": That is not the position in this case.
Section 94(1) required that the amount of damages that a court would be likely to award Ms Widitz for her future treatment expenses be assessed. That depended both on what was in issue and the evidence on which the parties advanced their cases. The assessor had to make findings of material questions of fact on that evidence and then to disclose the reasoning process which led him to the conclusion that a basis for the claim for a $40,000 buffer had not been established.
The onus which fell on Ms Widitz under the MAC Act to satisfy the assessor that a court would award her future treatment expenses was not in issue. Nor was there an issue as to that head of damage being awarded by way of a buffer. The only issue was its amount.
Given that this was the issue which the assessor had to resolve, it was thus not open to him simply to accept the insurer's concession that a $10,000 buffer for future treatment expenses could be awarded, the statutory obligation being to assess the amount of damages that a court would be likely to award. That had to be determined on all of the evidence relevant to her claim for a buffer of $40,000, in light of the competing cases advanced.
The assessor had accepted both Ms Widitz' evidence and Dr Bodel's opinions about her ongoing disabilities and her past treatment expenses of $10,555 had been agreed. Both Dr Bodel and Dr Shatwell considered that her past treatment had been conservative and would continue. Her case was that those treatment needs would not only continue, but that in future she would also require pain management and hip surgery, relying on the opinions of Dr Molnar and Dr Randhawa.
The assessor simply did not deal with this aspect of Ms Widitz' case. Nor did he explain why it failed. Why the sum awarded was even less than the agreed cost of past treatment is also not apparent from the reasons, especially given the agreed continued need for future treatment and Ms Widitz' age, which also had to be taken into account.
The assessor's reference to "the medical reports in relation to the necessity for future treatment expenses", simply does not make apparent that he considered this, or the opinions of Dr Molnar or Dr Randhawa, as he had to, given Ms Widitz' reliance on them.
This was thus not a case like that which arose for consideration in Mulcahy v NRMA Insurance Limited & Ors [2018] NSWCA 189, where it was concluded that an assessor's adoption of an identified part of a report in evidence in the statement of reasons given, had the result that this aspect of the report formed part of the record of the proceedings.
Given what was in issue the assessor had to explain, by reference to the evidence, why Ms Widitz' claim that her damages for the expense of future treatment should include pain management and hip surgery failed, if the statutory obligation to disclose the path of reasoning which led to that conclusion was to be met.
It follows that Ms Widitz must succeed on this issue

Adequacy of the reasons for the assessed future commercial care expenses

The parties' cases

Ms Widitz' case was that the assessor had given no reasons for his conclusion that her damages for future commercial care should be assessed by way of a $30,000 buffer; the assessor had not exposed his process of reasoning; and the assumptions on which the $30,000 rested, had not explained. How his 'impression' of the evidence was formed, was also not apparent.
The insurer contended that the assessor's reasons in relation to future commercial care had to be understood in the context of the conclusions he had reached about the past care Ms Widitz had received. That had precluded the acceptance of Ms Kirkham's opinions, given her failure to take into account the periods of Ms Widitz' overseas travel and hospitalisation.
In the result it had been reasonable for the assessor to have been unable to say when assistance with heavy domestic task would be required and so to awarded a buffer of $30,000, which still reflected the assessor's acceptance of Dr Bodel's opinions.

Ms Widitz' case must succeed

The case advanced by Ms Widitz in written submissions before the assessor relied on Dr Bodel's opinions about the consequences of her ongoing disabilities and Ms Kirkham's assessment and recommendations as to the actual types of care which she would require in future and their cost.
The value of Dr Bodel's evidence was in assessing the true extent of Ms Widitz' physical injury and her resulting need for reasonable assistance: Sampco Pty Ltd v Wurth [2015] NSWCA 117 at [83]. Ms Widitz' claim had to be assessed as "hypothetical matters which, like vicissitudes, are properly addressed by reference to possibilities and probabilities in a proportionate sense, rather than on an all or nothing basis": Boral Bricks Pty Ltd v Cosmidis; Boral Bricks Pty Ltd v DM & BP Wiskich Pty Ltd [2013] NSWCA 443 at [96].
Dr Bodel had identified that given her problems with bending, twisting, lifting, or using her arms overhead, which he considered would impact tasks such as vacuuming, cleaning and carrying shopping, Ms Widitz would indefinitely require domestic assistance. He had thus recommended that Ms Widitz be assessed by an occupational therapist.
Ms Kirkham provided that assessment and Ms Widitz' claim for $537,113 was based on her report. While not referred to by the assessor in his reasons she had concluded, amongst other things, that Ms Widitz had future need for assistance with various domestic tasks, including heavy cleaning, heavy laundry and spring cleaning tasks, they being assessed to be 5.5 hours per week.
Ms McLaughlin's opinion was also not referred to by the assessor, but she had concluded that Ms Widitz had no need for any future commercial care as the result of the accident. The insurer's case before the assessor was that her report thus did not support any damages being awarded for future care.
In his reasons the assessor did note that Ms Widitz' claim for future care was $537,113.00, but not that the insurer's case was that there should be no damages at all awarded for such care.
It is apparent that while the assessor accepted Dr Bodel's opinions and Ms Widitz' evidence, he did not accept either Ms McLaughlin's opinions, nor those of Ms Kirkham. He also did not refer to the consequences of future hip surgery, on her need for care.
The assessor was, however, satisfied that Ms Widitz had established that she needed future commercial care "with heavier domestic chores, because of the extent of her injuries and ongoing disabilities". But he found it difficult to "say with any precision when this occasional assistance with heavy domestic chores will be required." He awarded a buffer of $30,000, which he believed to be "appropriate, given her age".
How that figure was arrived at was not otherwise explained.
These reasons had to be understood in light not only of the assessor's earlier acceptance of Ms Widitz' evidence and Dr Bodel's opinions about the nature of her ongoing disabilities and their consequences for her need for ongoing domestic assistance, but also in light of his conclusions about the past gratuitous care Ms Widitz had received.
As to past gratuitous care the assessor had concluded that the occupational therapists reports, medical reports and the evidence of Ms Widitz' husband had established that she had received some past gratuitous care "for various lengthy periods" when not travelling or in hospital. But he concluded that the statutory threshold for those damages had not been satisfied.
Still, the assessor concluded that in the future, Ms Widitz would only require "occasional" assistance with heavy domestic chores. The assessor's reasons do not disclose how the evidence led him to this conclusion, when he had found that in the past she had received care for "lengthy periods", when she was not travelling or in hospital.
It follows that how the buffer of $30,000 was shaped, even by the evidence which the assessor had accepted, was not apparent. Nor were the factors which had led the assessor to award that buffer.
The obligation which fell on the assessor was to make findings of fact from the relevant evidence, which included the possibility of future hip surgery and then to disclose the reasoning processes which led him to the conclusion that despite having required assistance for lengthy periods in the past, the assistance with heavy domestic tasks which this then 44 year old woman would require in future would arise only occasionally, resulting in a buffer of $30,000.
I am thus also satisfied that this aspect of Ms Widitz case was made out.

Were the disputed conclusions legally unreasonable?

Given the conclusions I have already reached this issue can be dealt with succinctly.
There is no issue that the assessor's discretions had to be exercised reasonably. The decision had to be reached by reasoning which was intelligible, reasonable and directed towards and related intelligibly to the purposes of the statutory power being exercised: Minister for Immigration and Citizenship v Li [2013] HCA 18.

The parties' cases

Ms Widitz' case was that the conclusions which the assessor had reached in relation to both the disputed heads of damage were unreasonable, lacking as they did a rational foundation and inconsistent as they were with earlier findings he had made on the lay and expert evidence. The result was damages which did not flow logically from the findings he had made in respect of her injuries and their ongoing consequences and which had no intelligible justification.
The insurer's case was that it was not the assessor's reasons which were contradictory, but the case which Ms Widitz had advanced. In the case of the claim for future treatment expenses, because the claimed buffer of $40,000 had not been substantiated and in the case of future care, because Ms Kirkham had not taken into account the periods of Ms Widitz' travel and hospitalisation. In any event, in both cases Ms Widitz had not met the onus which fell upon her, to establish the losses which she had claimed.

The conclusions reached were legally unreasonable

I have explained the problems which flowed from the assessor's failure to address what lay in issue between the parties on the amount of the buffer for future treatment expenses; to consider evidence on which Ms Widitz had advanced her claims; or to explain why her claims had failed.
I have also explained the inconsistency between on the one hand, the assessor's acceptance of Ms Widitz' evidence and Dr Bodel's opinions about the nature and consequences of her ongoing disabilities and the conclusions which he reached about the occasions on which, as a result, she had required care in the past for various lengthy periods and on the other, his conclusion that in future, she would only require "occasional" assistance with heavy domestic chores.
I have also discussed the failure to consider the evidence as to the possibility of future hip surgery, or to deal with its consequences for the disputed claims.
Given the conclusions which had to be reached on all of these matters, contrary to the case advanced for the insurer, I am also satisfied that the assessor's conclusions about the assessment of Ms Widitz damages for both future treatment expenses and future commercial care by way of the buffers arrived at, were legally unreasonable.
In the result it must be concluded that this aspect of the case Ms Widitz advanced was also established.

Costs

The usual order as to costs under the Uniform Civil Procedure Rules 2005 is that costs follow the event. In this case that is an order that the insurer pay Ms Widitz' costs of the proceedings, as agreed or assessed.
Unless the parties approach to be heard within 7 days, that will be the Court's order.

Orders

For these reasons I order that: 1. The Assessor's decision is set aside. 2. The matter is remitted to the State Insurance Regulatory Authority; 3. All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.

Amendments 31 March 2020 - Coversheet: corrected case name, cases cited, parties and representation fields. Paragraph [1] - changed "Wilde" to "Wilding". Paragraphs [39] and [51] - inserted Dr title. Paragraph [89] - changed "Wilditz" to "Widitz". Paragraph [91] - changed "In this case that is in order" to "In this case that is an order". Order (1) - corrected punctuation. 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: 31 March 2020

At a glance

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Judgment (17 paragraphs)

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Legislation Cited (1)

Cases Cited (15)