Zurich Australian Insurance Ltd v MAA and Anor

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

Buck v Bavone (1976) 135 CLR 110 at 118-119 Craig v South Australia (1985) 184 CLR 163 at 179 CASES CITED : Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [6] Ex parte H (2001) 75 ALJR 982 [28] Lee v Young [2006] NSWCA 214 Ryan and Anor v Watkins and Anor [2005] NSWCA 426 at [134]

Zurich Australian Insurance Ltd - Plaintiff PARTIES : Motor Accidents Authority of NSW - First Defendant Steven Clarence Young - Second Defendant

J Gracie/Ms E Glover - Plaintiff COUNSEL : C Jackson - First Defendant C Twomey - Second Defendant

Rankin Nathan Lawyers - Plaintiff SOLICITORS : Motor Accidents Authority of NSW - First Defendant Thompson Wheelahan & Hampshire - Second Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11866/2006 - ZURICH AUSTRALIAN INSURANCE LTD v MOTOR ACCIDENTS AUTHORITY OF NSW & ORS

JUDGMENT 1 HIS HONOUR: Factual background The second defendant, Stephen Young (the claimant in the Claims Assessment and Resolution Service (CARS) proceedings), was born on 25 May 1964 and was an Acting Senior Field Officer with the National Parks and Wildlife Service when he was involved in a motor vehicle accident on 8 November 2001. He was a passenger in a vehicle owned by Synergy Travel Australia Pty Ltd and driven by one of its employees. 2 Following the accident, the second defendant had periods on and off work and was medically retired from his employment on 6 February 2004. Since 10 May 2004 he has been in receipt of workers compensation payments and has been working 10.5 hours per week as a part-time school bus driver. 3 The plaintiff in these proceedings, Zurich Australian Insurance Ltd (hereinafter called Zurich) is a licensed insurer under the Motor Accidents Compensation Act 1999 (the Act) and was the compulsory third party insurer of Synergy Travel Australia Pty Limited. The second defendant's claim for damages is governed by the provisions of the Act. The second defendant's claim form was served in June 2002. Breach of duty of care was admitted by Zurich on 18 February 2003. 4 On 26 October 2004 the second defendant lodged an application for General Assessment with CARS pursuant to Part 4.4 of the Act. On the same day, he lodged an application for Assessment of a Stabilisation or Permanent Impairment Dispute with the Medical Assessment Service (MAS) pursuant to Part 3.4 of the Act. 5 There was a disagreement between Zurich and the second defendant about whether or not his degree of permanent impairment was greater than 10% whole of body. Under the Act unless the degree of permanent impairment of an injured person, as a result of the injury caused by the motor accident is greater than 10% whole of body, he or she is not entitled to non-economic loss (s131). 6 Dr Chris Oates examined the second defendant on behalf of the MAS on 8 February 2005 and on 17 February 2005 certified that his whole person impairment was greater than 10%, ie 25%. 7 On or about 8 July 2005 the first defendant, the Motor Accidents Authority of NSW (the Authority), advised that the matter had been allocated to Mr Flynn as Claims Assessor. Under the Act an assessor is an officer of the Authority who in the opinion of the Authority, is suitably qualified to be a claims assessor (ss 88, 99 ). 8 The assessor conducted a first preliminary conference on 10 August 2005 and on that day set the matter down for an assessment conference to take place at Grafton on 27 October 2005. Subsequently the second defendant was examined by Dr Potter, on behalf of Zurich. That doctor reported on 15 August and 6 September 2005 concerning the causation of the second defendant's condition. 9 On 29 September 2005 Zurich made an application for Further Assessment of a Medical Dispute to the MAS which resulted in a further assessment by Dr Oates. The application for a further assessment meant that the 27 October 2005 assessment conference could not proceed. 10 Dr Oates reported on 16 February 2006 and again certified the second defendant as having a whole person impairment greater than 10%, ie 19%. The reason why a second assessment had been sought by Zurich was that the reports of Dr Potter suggested that the x-rays of the second defendant's back did not show anterior wedge compression fractures, but rather a pre-existing Scheuerman's Disease. In making his assessment, Dr Oates had regard to that opinion but continued to certify the second defendant as having a whole person impairment greater than 10%. At the conclusion of his report, Dr Oates said: "I consider that the degree of permanent impairment remains at greater than 10% but if additional information as alluded to earlier in this report is provided, it may lead me to reconsider my decision. "

That additional information was an assessment of the second defendant's x-rays by an independent radiologist. 11 At a further preliminary conference on 8 November 2005 the assessor fixed the matter for an assessment conference on 26 April 2006 in Grafton. On 10 March 2006 Zurich made an application which was headed "Application for Exemption from the Claims Assessment and Resolution Service". That document was sent to the Authority. Annexed to it were five pages of submissions on behalf of Zurich in support of the application (pp 153-168 of exhibit C - the agreed bundle of documents). 12 In the course of the proceedings before the assessor Zurich sought a direction from him pursuant to s100 "that the claimant provide his original films to radiologist Dr Schnier so that Dr Schnier can perform review of the kind suggested by MAS Dr Oates." The assessor declined to give such a direction. 13 In a four page email dated 20 March 2006 the assessor reviewed the matter and made certain recommendations to Ms Cassidy, the Principal Claims Assessor (PCA), in respect of the application for exemption by Zurich (pp 209-212 of exhibit C). He concluded his review with the following recommendation: "Furthermore, the issue in respect of the medical evidence is not such that requires it being too complex and prevents it from being suitable for assessment. In the circumstances I would recommend that the application for exemption be declined." 14 On 28 March 2006 the PCA issued the following document: " CERTIFICATE Issued under Section 92(1)(b) of the Motor Accidents Compensation Act 1999 as to the matters referred for assessment, being WHETHER A CLAIM IS NOT SUITABLE FOR ASSESSMENT This is to certify that the claim made by: Steven Clarence Young on: 19 June 2002 against: Zurich Insurance Ltd in respect of a motor vehicle accident on: 08 November 2001 was assessed by The Principal Claims Assessor: Belinda Cassidy

The assessment was conducted on 27 March 2006 At Sydney

The findings of this assessment are as follows: · Section 92(1)(b) of the Motor Accidents Compensation Act 1999 and clause 4.23 of the Claims Assessments Guidelines, states that in determining whether a claim is not suitable for assessment, an assessor and the PCA shall have regard to the circumstances of the claim at the time of assessment. Assessor Mark Flynn explored the grounds for seeking an exemption at the preliminary conference stage of the general assessment. I have read the exemption file and Assessor Flynn's preliminary conference report dated 20 March 2006 indicating that he has formed the view that this matter is suitable for assessment. I concur with his reasoning for why this matter is suitable for assessment. · This matter is suitable for assessment and therefore not exempt under s92(1)(b) of the Act, taking into account clause 4.23 of the Claims Assessment Guidelines, Assessor Flynn's reasons and the objects of the Act." (p218 of exhibit C.) 15 This application by Zurich challenges the determination by the assessor and the PCA that the matter was suitable for assessment by CARS and the refusal by the assessor to give a direction to the second defendant in accordance with the request in [12] hereof. 16 As of the date of the hearing, Mr Flynn was no longer an assessor appointed by the Authority (exhibit A). As a result it became necessary to amend the orders sought in the summons. 17 The orders sought by Zurich in the summons are: "1. An order pursuant to s69 of the Supreme Court Act 1970 directing the Principal Claims Assessor (Belinda Cassidy) to exercise her power of approval under s92 of the Motor Accidents Compensation Act 1999 and MAA Claims Assessment Guideline 4.23.4 according to law, such exercise to occur after receipt of a preliminary assessment and determination by a duly appointed assessor but not later than the cumulative period of 25 days provided for in clauses 4.14 and 4.17 of the MAA Claims Assessment Guidelines. 2. An order pursuant to s69 of the Supreme Court Act 1970 directing the Principal Claims Assessor to make arrangements pursuant to s93 of the Motor Accidents Compensation Act 1999 for the claim of Stephen Young against Zurich Australian Insurance Ltd to be assessed by a duly appointed assessor. 3. An order pursuant to s69(3) of the Supreme Court Act 1970 quashing the certificate of the Principal Claims Assessor dated 28 March 2006, alternatively a declaration that such certificate is a nullity. 4. A declaration pursuant to s23 and s69 of the Supreme Court Act 1970 that the claim of Stephen Young against Zurich Australian Insurance Ltd under the Motor Accidents Compensation Act 1999 is a claim of a kind that is exempt under clause 4.23.4 of the MAA Claims Assessment Guidelines. 5. An order pursuant to s23 and s69 of the Supreme Court Act 1970 directing the Principal Claims Assessor to issue a certificate pursuant to s92(2) of the Motor Accidents Compensation Act 1999 in respect of the claim of Stephen Young against Zurich Australian Limited under the Motor Accidents Compensation Act 1999. 6. An order pursuant to s69 of the Supreme Court Act 1970 directing an assessor to conduct a preliminary assessment of the claim and a make a further determination under s92 of the Motor Accidents Compensation Act 1999 and MAA Claims Assessment Guideline 4.23.4 according to law. 7. An order pursuant to s69 of the Supreme Court Act 1970 directing an assessor to give a direction pursuant to s100 of the Motor Accidents Compensation Act , 1999 requiring the production to him of the original chest x-ray film dated 3 January 1997; the original thoracic spine x-ray film dated 8 November 2001; the original thoracic spine x-ray film dated 7 January 2002 and the original thoracic spine MRI scan imaging dated 3 February 2003. 8. An order pursuant to s69 of the Supreme Court Act 1970 directing an assessor to produce or furnish to Messrs Rankin Nathan, solicitors for Zurich Australian Insurance Ltd, pursuant to s101 of the Motor Accidents Compensation Act , 1999 the original chest x-ray film dated 3 January 1997; the original thoracic spine x-ray film dated 8 November 2001; the original thoracic spine x-ray film dated 7 January 2002 and the original thoracic spine MRI scan imaging dated 3 February 2003 on their undertaking to safeguard such documents and to return same upon reasonable request. 9. An order pursuant to s69 of the Supreme Court Act 1970 continuing the order for restraint made by this Court on 24 April 2006 until further order of the court. 10. An order pursuant to s69(3) of the Supreme Court Act 1970 quashing the determination of an assessor (Mark Flynn) dated 20 March 2006 alternatively a declaration that such determination is a nullity. 11. A declaration pursuant to s23 and s69 of the Supreme Court Act 1970 that the claim of Stephen Young against Zurich Australian Insurance Limited under the Motor Accidents Compensation Act 1999 is a claim of a kind that is exempt under clause 4.23.4 of the MAA Claims Assessment Guidelines." 18 On 24 April 2006 this Court made orders restraining the assessor from proceeding with an assessment under Part 4.4 of the Act. Their effect has been to prevent the second defendant's claim proceeding until the issues raised by Zurich in the summons have been resolved. 19 It is common ground that the Authority is a statutory corporation and that it is the entity properly amenable to the orders sought in the summons. The orders sought against the Authority arise from the actions of Ms Cassidy, the PCA, and Mr Flynn, the assessor. It is common ground that no privative clauses apply so that this Court can approach the matter in accordance with s69 of the Supreme Court Act.

Legislative Scheme of the Act 20 Since this application involves a consideration of Part 4.4 - "Claims Assessment and Resolution" of the Act, it is necessary to understand how the Act operates. 21 The Act took effect in respect of motor accidents which occurred after 4 October 1999. Sections 5 and 6 are important in that they set out the objects of the Act and provide some guidance as to its interpretation. "5(1) The objects of this Act are as follows: (a) To encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities; (b) To provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims;

(c) To promote competition in the setting of premiums for third party policies, and to provide the Authority with a prudential role to ensure against market failure;

(d) To keep premiums affordable, recognising that third party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales;

(e) To keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disability;

(f) To ensure that insurers charge premium that fully fund their anticipated liability;

(g) To deter fraud in connection with compulsory third party insurance. (2) It must be acknowledged in the application and administration of this Act: (a) That participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable; and (b) That the law (both the enacted law and the common law) relating to the assessment of damages in claims under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries; and … 6(1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects. (2) In the exercise of a discretion preferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would be promote the objects of this Act or the provision concerned." 22 An important feature of the Act is that it restricted access to damages for non-economic loss (ss131-134). Non-economic loss would not be awarded unless the degree of permanent impairment of the injured person was greater than 10% whole person impairment (s131). That assessment was to be made in accordance with the medical guidelines issues by the Authority. Where injuries were assessed at greater than 10% whole of person permanent impairment, common law principles in relation to the assessment of damages for non-economic loss would apply although s134 sets a maximum indexed amount. 23 The Act introduced a new system of medical assessments (ss57-65) by the Medical Assessment Service (MAS). Where there was a dispute as to the level of permanent impairment, that dispute was referred to and determined by a medical assessor in accordance with the provisions of the Act. Those medical assessors must issue a certificate in relation to their finding on the matter referred. A Court's capacity to review, reject or substitute such a certificate was limited (s61(4)). The medical assessor's decision as to permanent impairment was binding on the parties. 24 The Act created a Claims Assessment and Resolution Service (CARS) (ss90-95). CARS dealt with liability and damages disputes. Like the approach to damages for non-economic loss, these provisions were a significant departure from previous legislation relating to motor accidents in that this process of assessment was administrative and not judicial. 25 Assessors are appointed by the Authority but are not subject to the control or direction of the Authority in relation to their decisions (s105). An assessor's decision on liability is not binding but an assessment on quantum is binding on the insurer if the insurer accepts that liability and also on the claimant if the claimant accepts the assessment within twenty one days of the issue of the Certificate of Determination. (Lee v Young [2006] NSWCA 214.) The assessors may hold conferences with all relevant parties in attendance and with the relevant experts in attendance or hold separate assessment conferences in private with any of them or, where an assessor is satisfied that sufficient information has been supplied, without holding any assessment conferences or other formal hearing at all (s104). 26 The Act recognised that there would be claims which would be exempted from CARS assessment (s92). Claims which are exempted from CARS assessment are issued with a certificate to enable court proceedings to be commenced thus bypassing the CARS procedure. A further novel feature of the Act was that access to the courts was significantly restricted by comparison with previous legislation in relation to motor accidents. 27 The following sections of the Act are relevant to this application: "Part 4.4 88(1) In this Part: "Claims Assessor" means an officer of the Authority in the Motor Accident Claims Assessment and Resolution Service who is designated as a Claims Assessor pursuant to s99.

"Party" to an assessment under this part means the claimant or the insurer in respect of the claim referred for assessment.

"Principal Claims Assessor" means the claims assessor designated as the Principal Claims Assessor pursuant to s99.

"Specify" an amount of damages includes specify a manner of determining the amount of damages. (2) A reference in this Part to referring a claim for assessment under this Part includes a reference to referring a claim for a Certificate of Exemption from assessment under this Part. (3) A reference in this Part to an assessment of a claim includes a reference to the result of the assessment. 89(1) This Part applies to any claim, whether or not the insurer admits or denies liability …

90 A claim may be referred to the Authority by the claimant or the insurer, or both, for assessment under this Part.

92(1) A claim is exempt from assessment under this Part if: (a) The claim is of a kind that is exempt under MAA Claims Assessment Guidelines or the regulations; or (b) A claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part. (2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned). 93 The Principal Claims Assessor is responsible for making arrangements as to the claims assessor who is to assess any particular claim or class of claims that are not exempt from assessment. 94(1) The claims assessor is, in respect of the claim referred to the assessor for assessment, to make an assessment of: (a) The issue of liability for the claim (unless the insurer has accepted the liability); and (b) The amount of damages for that liability. (2) Such an assessment is to be made having regard to such information as is conveniently available to the Claims Assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate. (3) The assessment is to specify an amount of damages. (4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment. (5) The claims assessor is to attach a brief statement to the certificate, setting out the assessor's reasons for the assessment. (6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the Claims Assessor issuing a replacement certificate or statement to correct the error. 95(1) An assessment under this Part of the issue of liability for a claim is not binding on any party to the assessment. (2) An assessment under this Part of the amount of damages for liability under a claim is binding on the insurer, and the insurer must pay to the claimant the amount of damages specified in the certificate as to the assessment if: (a) The insurer accepts the liability under the claim; and (b) The claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued. (3) It is a condition of an insurer's licence under Part 7.1 that the insurer complies with this section." 28 In addition to the provisions of the Act, it is necessary to consider the "MAA Claims Assessment Guidelines" (the guidelines) made by the Authority which were operative at the time. The guidelines gain their force from ss69 and 106 of the Act. They can be characterised as subordinate legislation in the nature of regulations and were described by Campbell AJA as "Australian law" (Ryan and Anor v Watkins and Anor [2005] NSWCA 426 at [134]). It was common ground that the provisions relevant to the summons comprised not only the Act but also the guidelines. The guidelines applicable to the second defendant's claim were gazetted on 17 December 1999 and provide: "Chapter 4. Exemption Of Matters From General Assessment Section 92(1)(a) 4.1 For the purpose of s92(1)(a) the PCA shall issue a certificate of exemption when satisfied that, at the time of assessment, the matter involves one or more of the following circumstances: 4.1.1 The insurer denies liability or breach of duty of care for the claim under s81(1).

4.1.2 The insurer admits liability or breach of duty of care for only part of the claim under s81(2) and makes an allegation of contributory negligence claiming a reduction of damages by more than 25%.

4.1.3 The insurer makes an allegation that a claim is a false or misleading claim under s117.

4.1.4 The claimant lacks legal capacity. 4.2 The claimant, the insurer or both may make an application to the PCA for a certificate of exemption. 4.3 An application for exemption may be made at any time subject to s91. 4.4 An application by either party for a certificate of exemption must: 4.4.1 Be in the form approved by the Authority and

4.4.2 Set out or be accompanied by such particulars and information as may be required by that form. 4.5 An officer of CARS is to send a copy of the application to the respondent, together with the service copy of material in support of the application provided by the applicant, within 10 days of receipt of the application in the registry. 4.6 The respondent must reply to the PCA within 15 days of the date of sending the copy of the application. The PCA may deal with the matter in the absence of a reply. 4.7 The reply by either party, to an application for exemption must: 4.7.1 Be in the form approved by the Authority; and

4.7.2 Set out or be accompanied by such particulars and information as may be required by that form. 4.8 An officer of CARS is to send a copy of the reply to the applicant, together with the service copy of material in support of the reply provided by the respondent, within 10 days of receipt of the reply in the registry. 4.9 The PCA is to consider the application and make a determination within 10 days of the date that the reply is due (including any revised due date following an extension of time by the PCA). If a matter is to be exempted under s92(1)(a) the PCA must issue a certificate forthwith. 4.10 Once a certificate of exemption is issued it may not be withdrawn without the consent of all parties. Section 92(1)(b): 4.11 An application for a preliminary determination that a matter is not suitable for assessment can be made to the PCA at any time, subject to s91. 4.12 An application by either party for a preliminary determination that a matter is not suitable for assessment must: 4.12.1 Be in the form approved by the Authority and

4.12.2 To assist the Assessor in the exercise of their discretion, set out or be accompanied by such particulars and information as may be required by that form. 4.13 An officer of CARS is to send a copy of the application to the respondent together with the service copy of material in support of the application provided by the applicant within 10 days of receipt of the application in the registry. 4.14 The respondent must reply to the PCA within 15 days of the date of sending the copy of the application. The PCA may deal with the matter in the absence of a reply. 4.15 The reply by either party, to an application for a preliminary determination must;

4.15.1 Be in the form approved by the Authority and

4.15.2 Set out or be accompanied by such particulars and information as may be required by that form. 4.16 An officer of CARS is to send a copy of the reply to the applicant together with the service copy of material in support of the reply provided by the respondent, within 10 days of receipt of the reply in the registry. 4.17 The PCA is to consider the application and make a determination within 10 days of the date that the reply is due (including any revised due date following any extension of time by the PCA). If a matter is determined as unsuitable for assessment under s92(1)(b) the PCA must issue a certificate of exemption forthwith. 4.18 For the purpose of s92(1)(b) an assessor may, in dealing with an application for general assessment and following a preliminary assessment of the claim, determine that the matter is not suitable for assessment. 4.19 An assessor may make a preliminary determination that a claim is not suitable for assessment upon application by the claimant or the insurer or both at any time. 4.20 If the assessor determines that the matter is not suitable for assessment, the matter must be returned forthwith to the PCA for approval with a statement of reasons. 4.21 If the PCA approves of the preliminary determination under s92(1)(b) the PCA shall issue a certificate of exemption within 5 days of return of the matter from the assessor. 4.22 If the PCA does not approve of the preliminary determination, an officer of CARS is to forward the matter to a different assessor for assessment within 10 days of the return of the matter from the original assessor. 4.23 In determining whether a matter is not suitable for assessment an assessor and the PCA shall have regard to the circumstances of the claim at the time of assessment including: 4.23.1 The heads of damage claimed by the claimant and the extent of any agreement by the insurer as to the entitlement to those heads of damage.

4.23.2 Whether the matter involves complex legal issues.

4.23.3 Whether the matter involves complex factual issues.

4.23.4 Whether the matter involves complex issues of quantum or complex issues in the assessment of the amount of the claim including but not limited to major or catastrophic, spinal or brain injury claims.

4.23.5 Whether the claimant has been medically assessed and is entitled to non-economic loss pursuant to s131 and the matter involves other issues of complexity.

4.23.6 Whether the matter involves complex issues of causation in respect of the relationship between the accident, the injury sustained and the disabilities arising from it including but not limited to multiple accidents or pre-existing injuries or medical conditions.

4.23.7 Whether the injuries sustained by the claimant in the accident have not stabilised within 3 years of the date of accident.

4.23.8 Whether the matter involves issues of indemnity or insurance.

4.23.9 Whether the insurer is deemed to have denied liability under s81(3).

4.23.10 Whether the claimant or a witness, considered by the assessor to be a material witness, resides outside the jurisdiction.

4.23.11 Whether the claimant seeks to proceed against one or more non CTP parties [NOTE - A party may either seek an exemption under s92(1)(b) by completing the appropriate form or the assessor can on the assessor's own motion consider the matter unsuitable for assessment at the preliminary assessment stage.] 4.24 Once a certificate is issued stating that the matter is unsuitable for assessment, it may not be withdrawn without the consent of all parties. 4.25 An assessor and the PCA may make a request for the production of documents or the furnishing of information during the course of an assessment of an exemption application or an application for determination that the matter is not suitable for assessment." "Chapter 16. Certificate and statement of Reasons 16.1 Upon completion of the assessment the assessor is to issue a certificate under section 92,94 or 96. 16.2 A copy of the certificate and any statement of reasons is to be provided to the PCA and each party within 10 days of the conclusion of any assessment conference or in the absence of any assessment conference, within 10 days of the provision by the parties of all information and documentation sought by the assessor at the preliminary conference. 16.3 A certificate under section 92(1)(b), 94 or 96 is to have attached to it a statement of the reasons for the assessment. The statement of reasons is to set out: 16.3.1 The findings on material questions of fact; and

16.3.2 The assessor's understanding of the applicable law; and

16.3.3 A list of any documents tendered or submitted to the assessor at or before the assessment conference but not listed in the application or reply forms; and

16.3.4 A brief description of any oral evidence given; and

16.3.4 The reasoning processes that lead the Assessor to the conclusions made.

16.3.5 In the case of an assessment certificate pursuant to section 94, the assessor must specify an amount of damages and the manner of determining an amount of damages. 16.4 The assessor may at any time issue a certificate in accordance with an agreed settlement, provided the terms of the agreed settlement are reduced to writing, signed by or on behalf of the parties and lodged with the assessor, and the assessor is satisfied that the terms of the agreed settlement are matters upon which the assessor has power to make an assessment. In these circumstances the assessor need not provide a statement of reasons."

Submissions on behalf of Zurich 29 It was common ground that Zurich could not bring itself within s92(1)(a) of the Act. For Zurich to be successful in having the second defendant's claim made exempt from assessment under Part 4.4, it had to have a determination that the claim was unsuitable for assessment under s92(1)(b). 30 Zurich submitted that the words "the assessment … under s92 … "in para 16.1 of the guidelines included a determination by a claims assessor that a claim was suitable for assessment under Part 4.4 and that consequently a certificate had to be issued with a statement of reasons as required by para 16.3. This had clearly not happened. As a result the determination by the assessor was void for failure to comply with the guideline. It followed that the approval by the PCA was also a nullity. 31 I do not agree with this interpretation of Chapter 16 of the guidelines. It seems to me that the "certificate under section 92(1)(b)" in para 16.3 of the guidelines refers to the preliminary assessment and determination that the claim is not suitable for assessment under Part 4.4. That is the only assessment specifically referred to in s92. Unless the assessment was of that kind then Chapter 16 of the guidelines does not require a certificate to issue and does not require compliance with para 16.3. 32 I appreciate that the very concept of "assessment" envisages a balancing of outcomes. If the word "assessment" as used in s92 were unqualified then the argument put on behalf of Zurich would have considerable force. That, however, is not how s92 operates. 33 Section 92 in its terms refers to one kind of assessment only, ie a preliminary assessment with a determination that the claim is not suitable for assessment under Part 4.4. Unless the assessment is of that kind, it is not an assessment under s92 which only refers to claims which are exempt from assessment under Part 4.4. 34 No assistance is provided for Zurich's application by Chapter 16 of the guidelines. 35 It was submitted on behalf of Zurich that there was jurisdictional error or an error of law on the face of the record on the part of both the claims assessor and the PCA because neither of them carried out the functions required of them under s92(1)(b) of the Act and by Chapter 4 of the guidelines, in particular paras 4.17 and 4.23 thereof. 36 That submission was elaborated as follows. Insofar as the assessor was concerned, he had made an assessment but no determination as required by the Act. Even the assessment was flawed in that he had not had regard to the matters in para 4.23 of the guidelines and had not had regard to all of the heads of damage which would be affected by the causation finding of the medical assessor if it were allowed to stand. In relation to the PCA it was submitted that the concept of "approval" in s92(1)(b) required an independent assessment and determination by the PCA. This was also required in terms by paras 4.17 and 4.23 of the guidelines. Rubber-stamping the assessment of an assessor was not sufficient. An independent function had to be performed by the PCA. 37 In relation to the PCA it was submitted that exhibit D, which was the "Determination Review Form", relating to the second defendant, was not completed which indicated that the PCA had not had regard to the matters contained in it. In addition the purported certificate issued by the PCA indicated jurisdictional error in its failure in terms to address the matters required to be considered in para 4.23 of the guidelines. 38 The start point for a consideration of these submissions is s92 of the Act. Section 92(1) is structured so as to mandate exemption where required by the regulations or the guidelines under (a) whilst allowing a discretion in other cases. 39 The claims assessor's discretion under s92(1)(b) is broad with no express fetter and is capable of being exercised at his or her own instigation. The fact that the decision requires "the approval" of the PCA reflects the intention of the Act that the primary means of assessment and resolution of disputed claims (excepting prescribed categories of cases) is the claims assessment system in Part 4.4. Absent the criteria prescribed under s92(1)(a) it is for the claims assessor with the concurrence of the PCA to determine what is not capable of resolution within that system. 40 What needs to be understood is that s92 identifies those claims which are exempt from assessment and procedures to be followed in relation to them but says nothing about what process (if any) is to be followed with respect to claims which are assessed as suitable for assessment under Part 4.4 of the Act. 41 Section 92(1)(b) refers to "a preliminary assessment of the claim". This is not defined. In the guidelines it is contrasted with the term "general assessment". From the way in which it is used in the Act it is obviously something less than the sort of assessment envisaged by s94. I do not regard the phrase as a term of art, but take it to have the ordinary meaning which its words convey, ie an assessment which is of its nature based on incomplete information and which is conducted at an early stage in an application. 42 Chapter 4 of the guidelines needs to be considered in that context. As a start point the guidelines appear to draw a distinction between the issuing of a "Certificate of Exemption" when s92(1)(a) is relied upon for exempting a claim and the issuing of "a preliminary determination that the matter is not suitable for assessment" when dealing with the exemption of a claim under s92(1)(b). That distinction appears to be maintained in para 4.25 of the guidelines. 43 As the Application for Exemption form completed by Zurich makes clear, its application was for a preliminary determination that the matter was not suitable for assessment as provided by para 4.11 of the guidelines. The application was addressed to the Authority and not to the Claims Assessor. This would seem to confirm that the application was made in accordance with para 4.11 and not 4.19 of the guidelines and was the sort of application envisaged by s88(2) and s90 of the Act. 44 The use of the words "preliminary determination" in the guidelines is not particularly helpful since it appears to telescope the two concepts referred to in s92(1)(b), ie "a preliminary assessment" and a determination that the claim is not suitable for assessment under Part 4.4. That, however, appears to be what para 4.11 of the guidelines envisages. 45 Para 4.12 of the guidelines imposes a mandatory requirement that a specific form be completed and that it be completed in a certain way. It is mandatory that the form "set out or be accompanied by such particulars and information as may be required by that form". 46 In para 8 of the form completed by Zurich (p 159 of exhibit C) the two boxes ticked referred to the following matters: "The matter involves complex issues in the assessment of quantum or the value of the claim - provide a summary of the issues about quantum or the value of the claim and a brief statement explaining why you say they are complex." "The matter involves complex issues in respect of the relationship between any other accident, injury or condition and this accident and the injury sustained in it - attach a copy of any relevant medical reports and provide a summary of the issues and a brief statement explaining why you say they are complex." 47 As indicated, the form was accompanied by five pages of submissions which focused upon the causation issue apparently raised by the medical assessor's reports and the reports of Dr Potter and the need for Zurich to be able to conduct further investigations into that issue. No other matters were relied upon. This is important because para 8 of the form listed all the matters in para 4.23 of the guidelines. What para 8 as completed by Zurich made clear, was that Zurich was only relying upon two of the matters referred to in para 4.23 of the guidelines, ie 4.23.4 and 4.23.6. 48 As I read Chapter 4 of the guidelines, there is a distinction between an application for a preliminary determination under para 4.11 and under 4.19. An application under 4.11 has to follow the procedures specified in 4.12, 4.13, 4.14, 4.15, 4.16 and 4.17. An application under para 4.19 does not. As I read Chapter 4 of the guidelines, an application under para 4.19 could be made orally and informally. Paras 4.19, 4.20, 4.21 and 4.22 of the guidelines make provision for what happens in that latter circumstance. 49 The claim by Zurich, however, was made pursuant to para 4.11 of the guidelines. That being so, it was necessary, in accordance with para 4.17 of the guidelines, for the PCA to consider the application and make a determination within a specified time. It is clear from the use of the word "determination" in para 4.17 of the guidelines that it envisages one of two results, either that the matter was unsuitable for assessment under Part 4.4 of the Act, or that it was suitable for such assessment. The guidelines say nothing about the consequences of the latter determination, ie that the matter was suitable for assessment under Part 4.4. The guidelines only deal with the consequences of a finding as to unsuitability for assessment. 50 There also seems to be some tension between para 4.17 of the guidelines and s92 of the Act. Although the word "only" is not used in s92, the scheme of the Act would seem to suggest that the only way in which a claim is exempt from assessment under Part 4.4 of the Act is if one of the two limbs of s92 have been satisfied. Para 4.17 of the guidelines if read literally suggests a third limb, ie a determination by the PCA that a matter is unsuitable for assessment under Part 4.4 without any contribution from the claims assessor. 51 Quite clearly the guidelines are to be read subject to the Act. It is possible to reconcile para 4.17 of the guidelines with s92 in that the second sentence in para 4.17 makes specific reference to an assessment "under s92(1)(b)". This would suggest that if the PCA made a determination that a matter was unsuitable for assessment under Part 4.4 of the Act then the assessor would have to become involved and perform the specific functions referred to in subs 92(1)(b) for the subsection to take effect. 52 It is for that reason, it seems to me, that para 4.23 requires both an assessor and the PCA to have regard to the circumstances of the claim, including the specific matters set out therein when determining whether a matter is not suitable for assessment. 53 Against that background the scheme of the Act in relation to exemptions from assessment seems to be tolerably clear. Most claims will be assessed in accordance with Part 4.4 of the Act. There will be some claims which are exempt from assessment, but they will be in the minority and be the exception. Lest such exemptions be granted too freely (and thereby defeat the objects and purpose of the Act) strict requirements are imposed before a claim is exempt from assessment. In the case of an exercise of a discretion by an assessor, that requires the approval of the PCA before a certificate of exemption can issue. It follows that if a party to a claim wished to challenge a certificate of exemption, or a determination that a matter was not suitable for assessment under Part 4.4, it could do so for failure to follow the procedure set in place for the granting of such exemptions from assessment. What is less clear (as has arisen here) is what can be done by a party which is aggrieved because either a certificate of exemption from assessment has not been granted or a determination as to non suitability has not been made. 54 The scope for intervention by this Court with regard to administrative decision making is limited. For Zurich to be successful in establishing jurisdictional error it has to bring itself within the principles in Craig v South Australia (1985) 184 CLR 163 at 179: "If … an administrative tribunal falls into an error of law which causes it to identify a wrong issue, to ask itself a wrong question, to ignore relevant material, to rely on irrelevant material or, at least in some circumstances, to make an erroneous finding or to reach a mistaken conclusion, and a tribunal's exercise or purported exercise of power is thereby affected, it exceeds its authority or powers. Such an error of law is jurisdictional error which will invalidate any order or decision of the tribunal which reflects it." 55 Zurich submits that at most the memorandum by Mr Flynn to the PCA of 20 March 2006 provides a preliminary assessment of the claim but does not contain a determination and consequently has not complied with the requirements of s92(1)(b) of the Act. As indicated above, I am not persuaded that where a claims assessor has made a preliminary assessment that a matter is suitable for assessment under Part 4.4 that subs 92(1)(b) has to be complied with. 56 If I am wrong in that conclusion, it seems to me that Mr Flynn in his memorandum of 20 March 2006 has in fact made a preliminary assessment and has made a determination. The memorandum comprehensively reviewed the arguments which had been put before him on behalf of Zurich and reached a conclusion in relation to them. That it seems to me is all that is required by the word "determined" as used in s92(1)(b), ie that the decision maker has in fact made a decision. Accordingly, I reject the submission by Zurich that in the memorandum of 20 March 2006 Mr Flynn did not make a preliminary assessment and a determination. 57 Zurich also submitted that jurisdictional error had occurred in that the assessor had ignored relevant material and had asked himself the wrong question by failing to have regard to the matters referred to in para 4.23 of the guidelines. It was submitted that the same jurisdictional error had occurred when the PCA issued her certificate in that she had uncritically approved the assessor's defective approach and had herself failed to comply with the requirements of both the Act and the guidelines. This was because she had not carried out an independent assessment, such as was required by the use of the word "approval" in subs 92(1)(b) and she had not independently had regard to the matters referred to in para 4.23 of the guidelines. 58 It is clear from the combination of paras 4.17 and 4.23 of the guidelines that the PCA has to make a determination within a specified time limit. Para 4.17 envisages two possible outcomes although it only makes provision for certain steps being taken if the determination is that the matter is unsuitable for assessment. Since para 4.23 of the guidelines uses the word "determining" it seems to me that a determination by both the assessor and the PCA has to have regard to the specific items identified in the sub-paragraphs of para 4.23. In that regard I accept the submission on behalf of Zurich. 59 I do not accept, however, that compliance with guideline para 4.23 requires both the assessor and the PCA to specifically refer to each sub-paragraph in 4.23 by way of indicating that he or she has had regard to it. 60 Para 4.23 needs to be read with para 4.12. As indicated, the form by which the application was brought listed all of the sub-paragraphs in para 4.23. It was then up to the applicant (as required by para 4.12) to "assist the assessor" by setting out the particulars and information required by the form. What is envisaged and what happened in this case was that two specific sub-paragraphs of para 4.23 were identified on the form as being relied on, ie 4.23.4 and 4.23.6. It was to these sub-paragraphs that the applicant's submissions were addressed. It was these sub-paragraphs and the submissions in relation thereto which were specifically considered by the assessor. 61 The words used in para 4.23 are "have regard to the circumstances of the claim at the time of assessment including" the various sub-paragraphs in 4.23. It seems to me that an assessor "has regard" to those sub-paragraphs when he or she reads the form by which the application has been brought, in particular para 8 of the form, and having checked the various sub-paragraphs of para 4.23 there referred to, sees that two in particular have been identified as providing the basis for the application. 62 This is what the assessor clearly did, as can be seen from his email of 20 March 2006 to the PCA. I do not consider that the assessor had to do anything more to comply with para 4.23 of the guidelines. 63 This is particularly so when the challenge is one that relates to the formation of an opinion by an administrative tribunal (Buck v Bavone (1976) 135 CLR 110 at 118-119.) It also needs to be kept in mind that neither the assessor nor the PCA is obliged to give reasons for his or her determination. The primary requirement in para 4.23 of the guidelines is that regard be had to the "circumstances of the claim". This it seems to me carries the meaning that only so many of the sub-paragraphs of para 4.23 as are engaged by the "circumstances of the claim" need to be considered by the assessor. The particular sub-paragraphs of para 4.23 which were relevant as "circumstances of the claim" were those identified and relied upon by the plaintiff in its application. 64 The situation is the same in relation to the PCA. I accept that she had to make a separate determination as required by paras 4.17 and 4.23 of the guidelines. There is nothing to suggest that the "certificate" issued by the PCA (para [14] hereof) was anything other than a separate determination by her. The fact that exhibit D had not been filled out is at best neutral. Once it is accepted that the PCA carried out a separate determination the same considerations apply as they did to the determination of the assessor. I consider the "certificate", which refers to the assessment conducted by the PCA on 27 March 2006, is a sufficient compliance on its face with both paras 4.17 and 4.23 of the guidelines. 65 There is nothing in s92(1)(b) nor in s105(3) of the Act which would lead to a contrary conclusion. In fact s105(3) is irrelevant to the matters under consideration. That subsection is in terms unrelated to the decision making functions of the assessor. 66 Two further challenges were made by the plaintiff to the form of the assessor's determination of 20 March 2006. It was submitted that the assessor had applied the wrong test under sub-paras 4.23.4 and 4.23.6 of the guidelines when he determined: "The issue in respect of the medical evidence is not such that requires it being too complex and prevents it from being suitable for assessment." 67 It was submitted that the use of the words "too complex" involved a concession that the issues were complex. Once that determination was made the assessor should have determined that the matter was not suitable for assessment under Part 4.4 of the Act. 68 I am of the opinion that the guidelines are not to be read or applied in the inflexible manner implicit in this submission. The assessor was exercising an administrative discretion which of its nature required a comparative assessment. The assessment itself was preliminary. To assess whether or not something is "complex" of necessity involves a comparison. 69 I am not satisfied that the use of the words "too complex" in the context of a preliminary assessment and determination demonstrated error in the assessor's approach. 70 It was submitted by the plaintiff that when the assessor said: "In my view it is neither my role or appropriate that I embark upon a fact finding mission in respect of these medical issues" he was refusing to undertake the task required of him by para 4.23 of the guidelines and consequently his exercise of discretion miscarried. I do not agree. 71 In context what the assessor was saying was that the MAS had made detailed findings as to medical issues in his report and the assessor was not going to "second guess" those findings by the MAS. The effect of what the assessor was saying was that he was not going to analyse the medical material to determine whether the conclusions of the MAS were correct. He was going to accept the doctor's conclusions and to apply them as best he could in performing the particular function given to him by the Act and the guidelines. Not only has no error been revealed in that approach, it seems to me that it would have been erroneous for the assessor to involve himself in questions which involved purely medical issues and which under the Act were the exclusive preserve of the MAS. 72 It was submitted by the plaintiff that the comments and conduct of the assessor gave rise to a reasonable apprehension of bias in the exercise of his discretion. Reliance was placed upon the following comments by the assessor in his determination of 20 March 2006: "I was extremely sceptical as to the merits of the Application"

And: "In the absence of this evidence being available it seems to me quite futile to make any further directions requiring the production of any further radiology reports." 73 In curial proceedings the test is whether "a fair minded lay observer may reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide" (Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 [6]). That test has been modified for administrative proceedings so that the question becomes "whether a hypothetical fair minded lay person who is properly informed as to the nature of the proceedings, the matters in issue and the conduct which is said to give rise to an apprehension of bias" would reach that conclusion (Ex parte H (2001) 75 ALJR 982 [28]). 74 The particular decision by the assessor under challenge is his determination that a matter was suitable for assessment under Part 4.4 of the Act. It is only views expressed on that question, or relevant to that question, which are to be taken into account when determining whether anything that the claims assessor said or did could give rise to such an apprehension. 75 In that regard the application for exemption by the plaintiff was received on 10 March 2006. The comment by the assessor that he was extremely sceptical as to the merits of the application, did not refer to the application for exemption, but to the application made by the plaintiff on 22 September 2005 for the assessment conference scheduled for 27 October 2005 to be vacated so that a further MAS assessment could be made which took into account the opinion of Dr Potter. Accordingly, that comment had nothing to do with the application for exemption. 76 The comment concerning the futility of making further directions was in the context of the assessor's refusal to give a direction under s100 of the Act. That related to the second question in the summons and had nothing to do with the application for exemption. 77 Leaving those considerations aside, the determination of 20 March 2006 does not satisfy the tests required to establish bias. It was a preliminary exercise carried out when all relevant information had not yet been obtained. It was specifically directed at the two issues as to complexity, specifically raised by the plaintiff in its application for exemption. The fact that the assessor reached a conclusion does not mean that he "prejudged" the issue. He was doing no more than that which was required of him, ie to make a preliminary assessment and then a determination based on that preliminary assessment. 78 This challenge to the assessor's determination has not been made out. 79 In a supplementary submission the plaintiff argued that in further correspondence between the assessor and the PCA dated 23 March 2006 the PCA had been misled as to a material fact which was capable of influencing her decision making and that this was indicative of both the assessor's discretion and that of the PCA miscarrying. 80 The letter of 23 March 2006 on which the supplementary submission was based read as follows: "Thank you for your email dated 21 March 2006 and I note your comments. For the record I note I am now in receipt of Insurer's submissions dealing, inter alia, with non-economic loss and taking no further issue with the MAS Assessment. I certainly will be proceeding on the basis that the Assessment will not be exempted and I was simply forwarding to you previously my recommendations and no doubt you will issue a Determination to the parties. I confirm the matter is booked for Assessment hearing on 26 April 2006 in Grafton. In the event that you have any further query, please do not hesitate to contact me." 81 The plaintiff submitted that it was incorrect to say that the plaintiff was "taking no further issue with the MAS Assessment." It submitted that the submissions expressly reserved the plaintiff's right to alter its position should new evidence in the form of a neutral independent special radiologist's review become available. 82 On my reading of the plaintiff's submissions, their effect was correctly characterised by the assessor. He did not say that the issue of the MAS assessment had been abandoned by the plaintiff. All that he said was that the submissions did not deal further with that issue. In any event, I do not see how that brief and somewhat enigmatic communication by the assessor to the PCA was indicative of either his or her discretion miscarrying in relation to the plaintiff's application to be exempt from assessment under the Act. 83 This submission is not made out. 84 It follows from the above that error has not been demonstrated in the assessment and determination by the assessor and the determination by the PCA. I do not propose to interfere with their conclusions as to the outcome of the plaintiff's application for exemption from assessment under the Act. 85 The second matter raised in the summons concerned s100 of the Act. That section provides: "100(1) A claims assessor may give a direction in writing to a party to an assessment under this Part requiring the party: (a) to produce to the assessor, at a time and place specified in the direction, specified documents in the possession of the party, being documents that the assessor considers relevant to the assessment of the claim concerned; or (b) to furnish specified information to the assessor within a time specified in the direction, being information that the assessor considers relevant to the assessment of the claim concerned. (2) A party to an assessment who fails without reasonable excuse to comply with the direction given to the person under this section is guilty of an offence. Maximum penalty: 50 penalty units. (3) If a party to an assessment fails without reasonable excuse to produce a document or furnish information in compliance with a direction given to the person under this section, the person cannot as a party to proceedings before a court have the document or information admitted in the proceedings unless the court otherwise orders in the special circumstances of the case. (4) The regulations may make provision for or with respect to any of the following matters: (a) exempting specified kinds of documents or information from the operation of this section; (b) specifying cases and circumstances in which a claims assessor is required to exercise the assessor's powers under subsection (1)."

The parties were not able to bring to the attention of the Court any relevant regulations which had been made pursuant to subs 100(4). 86 In order to understand the plaintiff's submission it is also necessary to set out in part section101 of the Act: "101(1) When documents or information are produced or furnished to a claims assessor by a party to an assessment (whether or not pursuant to a requirement under this Act), the assessor may produce or furnish the documents or information to any other party to the assessment." 87 The directions sought by the plaintiff from the assessor were: "1. That the Claimant provide his original films to Radiologist Dr Shnier so that Dr Schnier can perform a review of the kind suggested by MAS Assessor Dr Oates. 2. That the matter not be listed for general assessment until this has been attended to." (p146 of exhibit C) 88 The assessor dealt with these matters in his assessment of 20 March 2006 as follows: "Contrary to what is suggested I have no power pursuant to s100 to require production of any further specialist radiological reports. It is clear that Assessor Oates has had the benefit of radiology reports in respect of the claimant prior to his accident. The critical issue in the case is consistent with Assessor Oates' comments at page 9 of his report: "The best definitive way to have distinguished between acute injury in the form of compression fractures and merely exacerbation of pre-existing Scheuermann's disease would have been a bone scan showing increased uptake typical of fracture of the mid thoracic vertebrae or a CT or MRI scan done shortly after the accident which may have documented the findings of fracture of the thoracic vertebrae. However, these were not done and we have to rely on the consideration of the evidence which is available." In the absence of this evidence being available it seems to me quite futile to make any further directions requiring the production of any further radiology reports." (Exhibit C, page 211.) 89 The plaintiff submits that in refusing to give the direction sought by it the assessor acted unfairly and that the assessor erred in saying that he did not have power to give the directions sought. 90 The exercise of the powers given to an assessor by ss100 and 101 is discretionary. There is no obligation on the part of the assessor to give reasons for either giving a direction or declining to give a direction of the sort provided for by the sections. In this case the assessor did give reasons and consequently those reasons can be scrutinised to see whether on administrative law principles error is revealed. 91 There is no doubt that by a combination of ss100 and 101 the assessor could have directed the second defendant to provide him with copies of x-rays and that he could have then provided those copies to the plaintiff. What he could not do was direct that a third party, Dr Shnier, perform a review of the xrays and/or prepare a report setting out the results of that review. Yet that was the effect of the direction sought by the plaintiff. The assessor was correct in saying that he did not have the power to require the production of any further specialist radiological reports of that kind. 92 The other reason given by the assessor concerned the merits of the application. It was the opinion of the assessor that no useful function would be served by requiring the production of a further radiological report. He based that conclusion on his interpretation of the report of the MAS. That is a matter which he could properly take into account when declining to exercise his discretion under ss100 and 101. Accordingly even if the assessor had power to give the direction sought by the plaintiff he was entitled to refuse to do so for the reasons advanced. 93 No error has been identified in the assessor's approach to ss100 and 101.

Conclusion 94 The orders which I propose are as follows:

(1) The order of the Court made on 24 April 2006 restraining the further assessment of the matter under Part 4.4 of the Act is discharged.

(3) The plaintiff is to pay the costs of the first and second defendants. **********

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