Insurance

Properly constituted certificates addressing treatment and care are binding on those assessing damages in motor accident claims

25 July, 2022

Judgment date: 15 July 2022

Citation: Insurance Australia Limited t/as NRMA Insurance v Rababeh [2022] NSWSC 942

Jurisdiction: Common Law, Supreme Court, Harrison AsJ

Introduction

Can a medical assessor’s reasons be examined to understand what has been certified in their certificate and thus what binds a decision maker in an assessment of damages? The Supreme Court considered this and other issues in NRMA v Rababeh.

Principles

Medical certificates issued by the Medical Assessment Service (MAS) and Personal Injury Commission (PIC) constitute conclusive evidence of the matters certified within them, however reasons are not given the same conclusive effect, although they may be relevant to understanding what precisely has been certified.

The onus set out in Mead v Kearney[1] applies to a damages assessment regardless of whether it is specifically mentioned in a Member’s decision and insurers must provide evidence of alternative employment the injured person can realistically (not simply theoretically) obtain.

Reasons for an Award must be brief (as required by subsection 94(5) of the Motor Accidents Compensation Act 1999 (NSW) and cl 18.4.3 of the Claims Assessment Guidelines). As such, the tension between the just, quick and cost-effective resolution of proceedings and the onus to provide adequate reasons must be considered fairly by parties.

When considering the existence of error, the court must avoid reading decisions “minutely and finely with an eye keenly attuned to the perception of error”.[2]

Background

Ms Rababeh (the Claimant) was a hairdresser who sustained injuries to her neck, shoulders and lower back, as well as a psychological injury, as a result of a motor vehicle accident on 7 February 2017.

A treatment dispute arose as to whether past and future domestic assistance was reasonable and necessary, and causally related to the accident. The Claimant was assessed by Assessor Rosenthal for the purposes of that dispute.

Assessor Rosenthal determined that the Claimant’s physical injuries would completely resolve within 12 months from the date of his assessment. As such, he determined that her physical injuries gave rise to a need for domestic assistance from the date of the MVA to the date of the MAS assessment (past treatment), as well as from the date of the MAS Assessment for a period of 12 months (future treatment), and that the need for this assistance was causally related to the accident.

The matter proceeded to an Assessment Conference before Member Castagnet. Member Castagnet awarded damages in the total sum of $619,052.55, including:

$61,116 for future care on the basis that the Claimant had a need for domestic assistance that would continue for 5 years from the date of the Assessment Conference;

$176,000 for past economic loss on the basis the Claimant suffered a total loss of earning capacity from the date of accident to the date of the assessment; and

$266,200 for future economic loss, which was almost $100,000 more than the amount claimed.

Grounds for judicial review

NRMA (the Plaintiff) contended that the Member’s Award was affected by legal error and sought orders to have it set aside on 4 grounds of judicial review, specifically:

Damages for future care and assistance – the Member was confined to award damages only within the terms set out in Assessor Rosenthal’s Certificate (i.e. for 12 months after the date of the MAS Assessment). This resulted in an over-award of $54,516.

Past loss of earnings – there was no medical evidence to support a finding that the Claimant was totally incapacitated for all forms of work from the date of the accident to the date of the Assessment Conference. The Member had relied on a medical report opining that the Claimant had been and would continue to be unfit for work as a hairdresser. However, there was no medical evidence to support a finding that she had been and would continue to be unfit for any form of work.

Partial incapacity – the Member failed to consider if the Claimant had some capacity for work from the date of the accident to the date of the Assessment Conference, despite this being in issue between the parties.

Adequacy of reasons – the Member failed to provide adequate reasons for awarding almost $100,000 more than had been claimed for future economic loss.

Decision

Harrison AsJ held:

Ground 1 was successful. Due to ambiguity in Assessor Rosenthal’s certificate, Harrison AsJ found that regard should be had to the Assessor’s reasons (being that the Claimant’s injuries would resolve in 12 months). Assessor Rosenthal’s reasons supported the Plaintiff’s submission that the Claimant’s injuries gave rise to a need for domestic assistance only until 17 February 2022 (being 12 months after the MAS Assessment). The Certificate did not contain any words to the effect of “and not beyond that date” and was completely silent on the requirement for care beyond the period assessed. For this reason, regard must be had to the reasons within the Certificate. The Member had misconstrued his statutory duty by awarding damages for treatment beyond a period certified in conclusive evidence, in breach of s61(1) of the Act.

Grounds 2 and 3 were dealt with together and failed. The Plaintiff had not discharged their onus required by Mead v Kearney to prove the existence of suitable employment opportunities available to the Claimant beyond a merely theoretical basis. It was therefore up to the Member to “do his or her best on the available evidence” [122] to determine whether these opportunities existed. Harrison AsJ made specific note about the absence of a vocational assessment report, that would have assisted the Member and allowed the Insurer to discharge the onus set out in Mead.

Ground 4 failed. The Member had discharged his statutory duty to give a brief statement under subsection 94(5) of the Motor Accidents Compensation Act 1999 (NSW) and cl 18.4.3 of the Claims Assessment Guidelines. Harrison AsJ noted the tension previously articulated in Zahed,[1] between the statutory requirement for brevity and the obligation to explain one’s reasons fully and clearly:

[166] The parties should be able to understand the reasoning process that the decision maker used to arrive at their decision, but it should be remembered that the reasons are to be read ‘fairly and as a whole’ (Wu Shan Liang at [24]) and “are not to be construed minutely and finely with an eye keenly attuned to the perception of error” (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287).

[1] Zahed v IAG Limited t/as NRMA Insurance (2016) MVR 1; [2016] MSWCA 55.

Final result

The Supreme Court set aside the Member’s decision, and the matter was remitted to the President of the Personal Injury Commission of NSW (the Second Defendant) for determination according to law.

Implications

Parties should pay close attention to the scope of a medical assessment and consider how that may affect an assessment of damages. If a Member awards damages beyond that scope, there may indicate grounds for judicial review. Medical certificates generally constitute conclusive evidence of the matters certified within them, as distinct from the accompanying reasons, but those reasons may be critical in understanding precisely what has been certified. Ultimately, however, the decision maker has a statutory mandate for brevity and his or her decision cannot be attacked on that ground alone.

Insurers must be diligent in discharging this evidentiary onus set out in Mead should they be alleging that an injured person has a residual earning capacity. Vocational assessment reports generally constitute persuasive evidence supporting the discharge of that onus.

[1] Mead v Kerney [2012] NSWCA 215.

[2] Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 287.

[3] Zahed v IAG Limited t/as NRMA Insurance (2016) MVR 1; [2016] MSWCA 55.

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