Insurance Australia Limited t/as NRMA Insurance v Rababeh

1. [1]

   HER HONOUR: This matter involves the Judicial Review of a decision of a Member of the Personal Injury Commission of New South Wales.

2. [2]

   The plaintiff is Insurance Australia Limited trading as NRMA insurance (“the insurer”). The first defendant is Dana Rababeh. The second defendant is the President of the Personal Injury Commission of New South Wales. The third defendant is Maurice Castagnet, in his capacity as a Member of the Personal Injury Commission of New South Wales (“the Member”). The second and third defendants made submitting appearances. For convenience I will refer to the first defendant as “the defendant”.

3. [3]

   The parties relied on a court book (“Ex A”).

4. [4]

   By way of amended summons filed 21 October 2021, the insurer relevantly seeks the following orders:

   1. (1)

      An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the Certificate of the third defendant, Maurice Castagnet, in his capacity as a member of the Personal Injury Commission of NSW, dated 23 August 2021 issued under the authority of the second defendant purportedly in accordance with s 94(5) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”).

   2. (2)

      An order that the matter be remitted to the second defendant for assessment of the first defendant’s damages by a different Member according to law.

   3. (3)

      …

Background

1. [5]

   On 7 February 2017, the first defendant was involved in a motor accident. The insurer is the third-party insurer of the vehicle at fault in the accident. The first defendant alleges as a result of the accident she suffered physical and psychiatric injuries.

2. [6]

   The first defendant made a claim against the insurer for damages under the MACA: Annexures A and B to the Affidavit of Marcel Joukhador sworn on 9 December 2021 (“Joukhador Aff 9 December 21”). The insurer wholly admitted liability but disputed that the first defendant suffered a greater than 10% whole person impairment (“WPI”) as a result of the injuries she alleged she had sustained in the accident (“impairment dispute”) and the allegation that since the accident the first defendant has required, and will require in the future, domestic assistance as a result of her injuries (“treatment dispute”).

3. [7]

   Both of these disputes were originally assessed by the Medical Assessment Service (“MAS”), a division of the Dispute Resolution Service (“DRS”) of the State Insurance Regulatory Authority (“SIRA”). The MAS became the Personal Injury Commission of NSW on 1 March 2021.

4. [8]

   In each dispute there were separate assessments relating to the first defendant’s alleged physical and psychiatric injuries. The parties agreed that the first defendant is not entitled to damages for non-economic loss.

5. [9]

   There are a number of earlier assessments that I need to briefly refer.

6. [10]

   On 15 October 2019, the first defendant was assessed by MAS Assessor Dr Sharon Reutens, psychiatrist, (“Assessor Reutens”) in relation to the psychiatric injuries she allegedly suffered as a result of the accident.

7. [11]

   Assessor Reutens issued a certificate under Part 3.4 of the MACA dated 3 November 2019 (“Reutens Certificate”) and accompanying reasons (Annexure E to Joukhador Aff 9 December 21). Assessor Reutens certified that the first defendant has a “persistent depressive disorder” with “anxious distress” caused by the accident. She assessed the first defendant’s WPI arising from her psychiatric injuries at 6%.

8. [12]

   On 23 October 2019, the first defendant was assessed by MAS Assessor Dr David Gorman (“Assessor Gorman”) in relation to the physical injuries she allegedly suffered as a result of the Accident.

9. [13]

   Assessor Gorman issued a certificate under Part 3.4 of the MACA dated 10 December 2019 (“Gorman Certificate”) and accompanying reasons (Annexure D to Joukhador Aff 9 December 21). Assessor Gorman certified that the first defendant suffered from injuries to her neck, back and both shoulders that were causally related to the Accident. Assessor Gorman assessed the insurer’s WPI arising from her physical injuries at 10%.

10. [14]

    The treatment dispute as recorded by Assessor Thomas Rosenthal (“Assessor Rosenthal”) was:

11. [15]

    The insurer only agreed that the first dot point was correct. Under the heading Treatment Disputes to be assessed, Assessor Rosenthal records:

12. [16]

    Under the heading ‘Determinations’ Assessor Rosenthal records:

13. [17]

    On 17 February 2021, the first defendant was examined by Assessor Rosenthal in relation to the physical injuries she allegedly suffered as a result of the Accident.

14. [18]

    Assessor Rosenthal was required to conduct an assessment of the medical assessment matters specified in s 58(1)(a) and (b) of the MACA namely whether the proposed domestic assistance for the first defendant was reasonable and necessary and/or causally related to the accident.

15. [19]

    Assessor Rosenthal did not assess the number of hours per week of domestic assistance that were and will be reasonable and necessary to meet the first defendant’s needs, deferring to an assessment by an occupational therapist on that matter, as was appropriate for him to do.

16. [20]

    Assessor Rosenthal issued a certificate under Part 3.4 of the MACA dated 19 February 2021 (“Rosenthal Certificate”) and accompanying reasons: Annexure T to Joukhador Aff 9 December 21. Assessor Rosenthal certified that the physical injuries caused by the accident gave rise to a need for domestic assistance from the date of the Accident to 17 February 2021. Assessor Rosenthal further certified that the injuries would give rise to a need for domestic assistance from 17 February 2021 for a period of 12 months, that is, up to 17 February 2022.

17. [21]

    On 19 March 2021, the first defendant was examined by MAS Assessor Dr Matthew Jones, psychiatrist, (“Assessor Jones”) in relation to the psychiatric injuries she allegedly suffered as a result of the accident.

18. [22]

    Assessor Jones was asked to assess whether the first defendant has required, and/or will require in the future, any number of hours of domestic assistance up to a maximum of 14 hours per week, as a result of a psychiatric injury, whether that assistance is related to the Accident and whether it is reasonable and necessary.

19. [23]

    Assessor Jones issued a certificate under Part 3.4 of the MACA dated 19 March 2021 (“Jones Certificate”) and accompanying reasons (Annexure U to Joukhador Aff 9 December 21). Assessor Jones determined that the first defendant has not required in the past, and will not require in the future, any domestic assistance as a result of psychiatric injury.

20. [24]

    The first defendant’s claim was referred to Maurice Castagnet (the Member), in his capacity as a Member of the Personal Injury Commission, for assessment of the damages to be awarded to the first defendant.

21. [25]

    On 5 May 2021, the first defendant lodged further submissions. On 17 May 2021, the insurer lodged further submissions. On 20 May 2021, the assessment conference (“Assessment Conference”) took place.

22. [26]

    On 23 August 2021, the Member issued a certificate dated 23 August 2021 (“Castagnet Certificate”) and accompanying reasons, in accordance with s 94(5) of the MACA.

23. [27]

    Under the heading ‘My findings’ the Member made the following findings (Ex A, 47):

24. [28]

    Under the heading ‘What loss of income has the claimant suffered to date as a result of her injuries?’ the Member stated (Ex A, 49):

25. [29]

    Under the heading ‘What were the claimant’s most likely future circumstances but for the motor accident and what loss of income is the claimant likely to suffer in the future cause of her injuries?’ the Member stated:

26. [30]

    Under the heading ‘Is the claimant likely to require attendant care services in the future because of her injuries and if so, will such care be compensable?’ the Member stated:

27. [31]

    The Member awarded damages to the first defendant in the total sum of $619,052.55 plus costs. This sum included:

    1. (1)

       $61,116 for future care, on the basis that that the first defendant has a need for domestic assistance of 6 hours per week which will continue for 5 years from the date of the assessment, and which will be provided commercially;

    2. (2)

       $176,000 for past loss of earnings; and

    3. (3)

       $266,220 for future loss of earnings

28. [32]

    The insurer contends that the Member’s Certificate is affected by legal error and seeks orders to set it aside.

Relevant Legislation

1. [33]

   I shall briefly refer the relevant provisions of the Motor Accidents Compensation Act statutory scheme, in particular attendant services.

2. [34]

   The word “treatment” is defined in s 42 of the MACA to include “the provision of attendant care services”, which in turn is defined in s 3 of the MACA to include the provision of domestic assistance.

3. [35]

   Section 57 of the MACA provides definitions for the terms “medical assessment matters”, “medical assessor” and “medical dispute” as follows:

4. [36]

   The “medical assessment matters” that may be referred for assessment are set out in s 58 of the MACA. Section 58 reads:

5. [37]

   Under s 61 of the MACA, a Certificate as to a “medical assessment matter” is conclusive evidence of the matter certified in any assessment of damages by the Personal Injury Commission. Section 61 reads:

6. [38]

   Section 94 of the MACA outlines the tasks that the Personal Injury Commision is to undertake when assessing a claim under the MACA. It reads:

7. [39]

   The SIRA published the Motor Accident Claims Assessment Guidelines (“Guidelines”) under s 69(1) of the MACA for or with respect to procedures for the assessment of claims under Part 4.4 of the MACA relating to the Claims Assessment and Resolution Service (“CARS”). They apply in respect of a motor accident occurring on or after 5 October 1999 and before 1 December 2017. Chapter 18 of the Guidelines provides:

8. [40]

   The first defendant referred to the Personal Injury Commission Act 2020 (NSW) which came into force on 11 August 2020. Section 42 of the Personal Injury Commission Act speaks to the guiding principle to be applied to practice and procedure within the Personal Injury Commission. It relevantly reads:

9. [41]

   For all matters from 1 March 2021, practice and procedure is governed by the Personal Injury Commission Rules 2021 (“PIC Rules”). The first defendant makes reference to r 78 of the PIC Rules which delineates some requirements for a statement of reasons accompanying a decision with similar language to Chapter 18 of the Guidelines. It relevantly reads:

Grounds of Judicial Review

1. [42]

   The insurer raised 4 grounds of judicial review. They are as follows.

2. [43]

   The Member erred in law in awarding damages for future care and domestic assistance after 17 February 2022.

3. [44]

   The Member awarded damages for future care for 5 years from the date of his award, that is, to 23 August 2026.

4. [45]

   The Member assessed damages for future domestic assistance based on a need of 6 hours per week at a commercial cost of $44 per hour ($264 per week).

5. [46]

   The award for future care was $61,116. Had the Member limited his award for future care to a period from 23 August 2021 to 17 February 2022, as he was bound to do, the award would have been for 25 weeks at $264 per week or $6,600.

6. [47]

   The Member’s error in awarding damages for future assistance beyond 17 February 2022 resulted in an over award of damages under this head of $54,516. The error is not de minimus.

7. [48]

   The Member erred in law in assessing damages for past loss of earnings from the date of the Accident on 7 February 2017 to the date of his assessment on the basis that the first defendant was totally incapacitated for all forms of work throughout that period, when there was no medical evidence to support that finding, and the medical evidence accepted by him is to the contrary.

8. [49]

   It is an error of law to assess damages on the basis of total incapacity if there is no medical evidence to support such a finding: Kallouf v Middis [2008] NSWCA 61 (“Kallouf”).

9. [50]

   The Member erred in law in failing to consider whether the first defendant was only partially incapacitated for work for some or all of the period from the date of Accident to the date of the Assessment Conference, despite that matter being in issue between the parties.

10. [51]

    The Member erred in law in awarding damages for future loss of earnings of almost $100,000 more than the amount claimed by the first defendant without providing adequate reasons for making such an award.

11. [52]

    I will deal with the Judicial Grounds of Review in chronological order but with Ground 2 and 3 being dealt with together.

Judicial Review Ground (1)

1. [53]

   The insurer’s first ground of judicial review was that the Member erred in law in awarding the first defendant damages for future care and domestic assistance after 17 February 2022.

2. [54]

   The Member awarded damages to the first defendant for future care for 5 years from the date of his award, that is, to 23 August 2026.

3. [55]

   Pursuant to s 61(2) of the MACA, a certificate as to a "medical assessment matter" is conclusive evidence of the matter certified in any assessment of damages. In the insurer’s submission, the Rosenthal Certificate and the Jones Certificate finally determine "whether any such treatment relates to injury caused by the motor accident” and are conclusive evidence as to the matters certified.

4. [56]

   The insurer submitted that the first defendant misunderstood the Rosenthal Certificate and suggested that it may be that there is a similar misunderstanding in the Member’s reasons at [164]. The insurer noted that the Member stated at [164] of his reasons (Ex A, 51):

5. [57]

   Both the first defendant and the Member appear to have failed to appreciate that the question referred to Assessor Rosenthal by the DRS, to which the matter certified relates, was in the following terms:

6. [58]

   In any event, the meaning of the matter certified by Assessor Rosenthal, and the reason he "reworded" the question referred to him, are set out Assessor Rosenthal's reasons at p 6-7. They are unambiguous (Annexure T to Joukhador Aff 9 December 21 at [21]) and are as follows:

7. [59]

   It is clear from these paragraphs of Assessor Rosenthal's reasons that the first defendant will not require domestic assistance for the remainder of her life expectancy, but for the next 12 months only.

8. [60]

   The Member assessed damages for future domestic assistance based on a need of 6 hours per week at a commercial cost of $44 per hour ($264 per week). The award for future care was $61,116. Had the Member limited his award for future care to a period from 23 August 2021 to 17 February 2022, as the insurer submitted that he was bound to do, the award would have been for 25 weeks at $264 per week or $6,600.

9. [61]

   Therefore, the Member’s error in awarding damages for future assistance beyond 17 February 2022 resulted in an over-award of damages under this head of $54,516, and that error is not de minimus.

10. [62]

    Assessor Rosenthal’s task was to conduct an assessment of the medical assessment matters specified in s 58(1)(a) and (b) of the MACA, namely whether the proposed “treatment” (in this case, domestic assistance) was reasonable and necessary and/or causally related to the accident.

11. [63]

    The distinction between the conclusive nature of the “Certificate” on the one hand, compared to the “reasons” on the other hand, has been considered in many cases.

12. [64]

    The first defendant referred first to Pham v Shui [2006] NSWSCA 373; (2006) 47 MVR 231 (“Pham v Shui”), in which the Court of Appeal (per Santow, Bryson JJA and Brereton J agreeing) said at [90]–[91]:

13. [65]

    The first defendant then referred to Allianz Australia Insurance Limited v Serria Girgis & Ors [2011] NSWSC 1442; (2011) 59 MVR 548 (“Girgis”), where Adams J said, at [32]:

14. [66]

    His Honour went on to say, with respect specifically to “treatment” disputes such as the present one at [48]:

15. [67]

    The first defendant noted that Girgis has been cited with approval and applied numerous times, including Scott v Insurance Australia Limited [2016] NSWSC 1249; (2015) 72 MVR 300 as per Campbell J at [67].

16. [68]

    The only matter that is conclusive evidence is the medical assessment matter that is certified in the certificate in terms, and the reasons are not conclusive evidence at all.

17. [69]

    The insurer had sought assessment of domestic assistance requirements “for life”.

18. [70]

    However, by the time the dispute was referred to Assessor Rosenthal, it was in somewhat narrower terms. At page 2 of the Rosenthal Certificate dated 17 February 2021, Assessor Rosenthal set out the statutory task that was before him. In relation to domestic assistance, Assessor Rosenthal identified what he was required to assess, where he stated (Annexure T to Joukhador Aff 9 December 21 at [2]):

19. [71]

    The insurer referred to an email from the Personal Injury Commission dated 12 November 2021 annexed to its submissions. At the hearing of this judicial review, the first defendant objected to the admissibility of this evidence on the basis that it was not before the decision maker at the time of the decision under review and therefore it was not properly admissible in these judicial review proceedings. I agree that this email was not before the Member at the time of his decision, I disallow this email being relied upon in this judicial review.

20. [72]

    In any event, Assesor Rosenthal apprehended that he was assessing a dispute for a 12-month period into the future, and that is abundantly clear in the reasons attached to his Certificate. If the insurer took issue with the dispute that was ultimately assessed by Assessor Rosenthal, it should have taken steps to remedy the situation rather than doing nothing until after receipt of an unfavourable claims assessment, and then troubling this Court seeking relief.

21. [73]

    Regardless of whether or not the dispute was originally framed by the insurer to be “for life”, the first defendant noted that the insurer accepted that Assessor Rosenthal ultimately did not issue a certificate in those terms. In the first defendant’s submission the “reworded” certificate only certified as to causation of the first defendant’s domestic assistance for a period of 12 months (ie, to 17 February 2022).

22. [74]

    Critically, and contrary to the insurer’s submissions, the Rosenthal Certificate does not contain any words to the effect “and not beyond that date.” The Rosenthal Certificate was completely silent on the requirement (or absence of requirement) for care beyond 17 February 2022.

23. [75]

    It would have been simple enough for Assessor Rosenthal to answer the remainder of the original dispute (if he had been aware of the scope of the original dispute, which is unclear) in the Certificate by saying something like “the domestic assistance from 17 February 2022 and for the remainder of the first defendant’s life is not causally related to the accident” (if that is what he intended). However, he did not do this.

24. [76]

    The insurer’s submissions require reference to not only the reasons of the decision, but also to other extraneous material including emails from the Personal Injury Commission, in an attempt to try and “flesh out” and expand the Rosenthal Certificate. The first defendant submitted that this is impermissible, and that the Rosenthal Certificate alone is conclusive evidence of the matters certified.

25. [77]

    It would have been open to the insurer to demand that Assessor Rosenthal complete the task that was allocated to him and assess the entirety of the dispute that was before him but failed to do so.

26. [78]

    In particular, the insurer failed to take any of the following steps that were then available, namely:

27. [79]

    The first defendant's submissions contend that the question referred to Assessor Rosenthal for determination is irrelevant, and that the only matter that is conclusive evidence is the medical assessment matter certified in the Rosenthal Certificate in terms.

28. [80]

    The only words in the Rosenthal Certificate that amount to conclusive evidence in relation to future domestic assistance are:

29. [81]

    Further, on this argument, the terms of the Rosenthal Certificate relating to future domestic assistance may (or may not) be ambiguous: does Assessor Rosenthal's determination mean that the first defendant's physical injuries give rise to a need for domestic assistance from the date of his assessment for a period of 12 months only, or is the meaning that Assessor Rosenthal only considered a period of 12 months from the date of his assessment, and has made no determination as to any need for domestic assistance after that period of 12 months?

30. [82]

    The first defendant’s approach is adopted, the preferred meaning to be given to the terms of the matter certified is that the first defendant's physical injuries give rise to a need for domestic assistance for only 12 months after the date of Assessor Rosenthal's assessment. There is nothing in the words of the Certificate set out above from which it could be inferred that Assessor Rosenthal limited his assessment of the first defendant's future care needs to 12 months from the date of the assessment, only that he determined that any need for assistance will not persist beyond 12 months.

31. [83]

    However, the insurer noted that the first defendant seeks to rely on Assessor Rosenthal’s "re-wording" of the question referred to him for determination, to extract the opposite meaning of the terms of the matter certified. The insurer submitted that this contradicts the first defendant's own assertion that only the words of the matter certified can be taken into account.

32. [84]

    If recourse is to be had to any other part of the Rosenthal Certificate (and accompanying reasons), then the Rosenthal Certificate must be read as a whole, and the reasons used to understand the terms of the matter certified, set out above.

33. [85]

    The insurer referred to the Rosenthal Certificate where under the heading "Treatment Disputes to be assessed" Assessor Rosenthal sets out the treatment and/or care disputes that "were referred by DRS for assessment": Rosenthal Certificate p 2. However the third and fourth disputes there set out, are not in the terms referred by DRS for assessment, as the email attached to the insurer’s submissions in reply demonstrates.

34. [86]

    The third and fourth disputes referred by DRS for assessment were for a period "ongoing for the remainder of the first defendant's life expectancy", not for a period of 12 months from Assessor Rosenthal's assessment.

35. [87]

    In the insurer’s submission it is self-evident that Assessor Rosenthal was aware that the disputes referred to him relevantly required his determination of whether the first defendant had a need for domestic assistance "ongoing for the remainder of (her) life expectancy". For reasons that may have seemed logical to him, Assessor Rosenthal "re-worded" the relevant question as to the need for future domestic assistance. While the reasons for this are set out in the penultimate sections of Assessor Rosenthal's reasons, entitled "Determinations" and "Conclusion" (pp.6-7), the "re-worded" question appears much earlier (p.2).

36. [88]

    The insurer submitted that the "re-worded" question is no more part of the matter certified than other sections of Assessor Rosenthal's reasons are part of the matter certified.

37. [89]

    The terms of the matter certified are ambiguous, recourse may be had to Assessor Rosenthal's reasons to resolve the ambiguity. Once recourse is had to the reasons as a whole, any ambiguity in the matter certified is resolved.

38. [90]

    The insurer’s first ground of judicial review centres the Member’s award of damages for future care and domestic assistance after 17 February 2022.

39. [91]

    In essence, the insurer argues that pursuant to s 61(1) of the MACA the Rosenthal Certificate is conclusive evidence of the matters certified within it, and one of those matters is that the first defendant’s injuries occasioned in the accident gave rise to a need for domestic assistance only until 17 February 2022, and therefore the Member’s award of damages beyond this date is an error of the kind that is reviewable by this Court.

40. [92]

    The first defendant however, with reference to Pham v Shui and Girgis, argues that while she accepts that the Rosenthal Certificate is conclusive evidence of the matters certified within it, what is certified is no more than those words contained on the Certificate, and does not include the accompanying reasons, and therefore the Member was entitled to award damages beyond 17 February 2022.

41. [93]

    The Rosenthal Certificate dated 17 February 2021 relevantly reads (Annexure T to the Joukhador Aff 9 December 21 p1):

42. [94]

    It is the emphasised portion that the first defendant disagrees with.

43. [95]

    In reasons accompanying the Rosenthal Certificate, Assessor Rosenthal records the relevant questions referred by DRS as being (Annexure T to the Joukhador Aff 9 December 21 at p2):

44. [96]

    The critical issue of this dispute is whether Assessor Rosenthal meant to say, as the insurer contends, that the first defendant is only entitled to damages for domestic assistance for the next 12 months, or was he intending, as the first defendant contends, to limit his assessment of damages to that period and say nothing about whether assistance after that period has elapsed is required? In my opinion, are several pieces of evidence which show that the insurer’s reading is to be preferred.

45. [97]

    The first of these is the rest of the reasons, which, as is elucidated by the second emphasised passage above, form part of the Rosenthal Certificate. Following the heading “Determinations 21. Causation and reasons” on p 6 of Assessor Rosenthal’s reasons, he relevantly states:

46. [98]

    As is evident from the emphasised passages, Assessor Rosenthal appears to be of the opinion that the first defendant’s injuries will have completely resolved by 17 February 2022 and appears to have acknowledged rewording the question referred to him. I agree with the insurer’s oral submission that given the ambiguity in the Rosenthal Certificate on its terms, regard should be had to the reasons to interpret exactly what Assessor Rosenthal certified, and the reasons support the insurer’s submission that the first defendant’s injuries occasioned in the accident gave rise to a need for domestic assistance only until 17 February 2022: T16.10.

47. [99]

    This is bolstered by reference to the Jones Certificate, as Assessor Jones was referred the same question as Assessor Rosenthal save that Assessor Jones was assessing psychiatric not physical injuries, and in the reasons accompanying the Jones Certificate, Assessor Jones cites the relevant questions referred by DRS as being (Annexure U to the Joukhador Aff 9 December 21 at p2):

48. [100]

    Finally, and crucially, the Member states the following at [164] of his reasons (Ex A, 51):

49. [101]

    In this paragraph the Member appears to indicate that his understanding is that Assessor Rosenthal made an assessment of the likelihood that the first defendant required attendant care services for 12 months from the date of his assessment only, as that was the question referred to him. As has been shown above, this is not the case. Rather Assessor Rosenthal appears to have altered the words of the question referred to him to reflect his opinion on the resolution of the first defendant’s injuries.

50. [102]

    Given both parties accept that the Rosenthal Certificate is conclusive evidence of the matters certified within it, and given my opinion that one of those matters is that the first defendant’s injuries occasioned in the accident gave rise to a need for domestic assistance only until 17 February 2022, the Member has made an error in awarding damages for future care and domestic assistance after that date. On this basis, the decision of the Member should be set aside as he misconstrued his statutory duty.

Judicial Review Grounds (2)-(3) – Past loss of earnings, partial incapacity

1. [103]

   Given the similarity of these two grounds of review, I shall deal with them together here.

2. [104]

   The insurer’s second ground of judicial review is that the Member erred in law in assessing damages for past loss of earnings from the date of the accident to the date of his assessment on the basis that the first defendant was totally incapacitated for all forms of work throughout that period, when there was no medical evidence to support that finding, and the medical evidence accepted by him is to the contrary.

3. [105]

   The insurer’s third ground of judicial review is that the Member erred in law in failing to consider whether the first defendant was only partially incapacitated for work for some or all of the period from the date of accident to the date of the Assessment Conference, despite that matter being in issue between the parties.

4. [106]

   There was evidence before the Member from Dr Davis that the first defendant had been and would continue to be unfit for work as a hairdresser, which was the employment offered to the first defendant two weeks before the accident on 7 February 2017. However, neither Dr Davis nor any other medical expert asserted that the first defendant has been and will be unfit for any form of work.

5. [107]

   When assessing the damages for past loss of earnings, the Member accepted that, but for the accident, the first defendant would have commenced employment as a hairdresser by 27 February 2017 earning $1,000 gross $817 net per week. The Member then proceeded to award damages for past loss of earnings at the rate of $800 net per week from 27 February 2017 to the date of the assessment.

6. [108]

   The Member’s award can only be justified on the basis that the first defendant had no effective earning capacity during that period, however there was no medical evidence to that effect.

7. [109]

   In the first defendant’s response filed on 12 November 2021 she asserted that having proved that she was unfit for work as a hairdresser up to the date of the Assessment Conference, the insurer failed to discharge its onus of proving that there was some other suitable employment that she could undertake that was not merely theoretical, citing Mead v Kerney [2012] NSWCA 215 (“Mead”).

8. [110]

   However in the insurer’s submission that was not the manner in which the Member approached his assessment of damages for past loss of earnings. The insurer noted that the Member did not specifically mention Mead, nor did he make any finding as to whether that case was relevant, nor did he make any finding as to whether the insurer had or had not discharged an onus akin to the onus referred to in that case.

9. [111]

   The medical evidence accepted by the Member allowed for a wide range of employment that the first defendant is physically capable of performing. However, the Member simply proceeded directly from his finding that the accident prevented the first defendant from taking up her employment as a hairdresser, to an award of damages equivalent to the total earnings the first defendant could have had, if she commenced and remained in that employment up to the time of the assessment.

10. [112]

    The insurer submitted that evidence that there were other potential forms of employment for which the first defendant was and is fit, was not considered at all in the Member’s reasons. The insurer further submitted it is an error of law to assess damages on the basis of total incapacity if there is no medical evidence to support such a finding and referred to Kallouf.

11. [113]

    The first defendant submitted that the insurer is mistaken both as to legal onus and factual basis for the asserted legal errors in the Member’s award for past economic loss.

12. [114]

    The first defendant referred to the Court of Appeal’s decision in Mead (per Macfarlan JA, McColl JA and Sackville AJA agreeing), where the issue of onus was discussed at [32]–[37]:

13. [115]

    The insurer explicitly accepted that the first defendant had adduced evidence below from Dr Davis to the effect that she was unfit for her former employment as a hairdresser. The Member specifically accepted the evidence of Dr Davis at [110] of his reasons.

14. [116]

    The Member continued at [117]-[124]:

15. [117]

    The first defendant submitted that she discharged her onus of establishing that she was incapable for her former work, and the Member accepted that she was unfit for that work.

16. [118]

    The first defendant correspondingly submitted that the onus was then on the insurer to establish both that the first defendant had a residual earning capacity and that the capacity was capable of being exercised on a more than theoretical basis (ie, that there were jobs in the real world that would be available to her that she could perform).

17. [119]

    In the first defendant’s submission it matters not that “… neither Dr Davis nor any other medical expert asserted that the first defendant has been and will be unfit for any form of work.” Dr Davis did not need to assert this. The onus was squarely on the insurer to establish that there were other forms of work that were both suitable and available. There was no attempt by the insurer in the proceedings below to discharge this onus with respect to past economic loss. Even if the evidence permitted a finding that there were alternate forms of work that the first defendant was capable of performing, as alleged by the insurer, there was no evidence that such work was actually available to her.

18. [120]

    The first defendant pointed out that there was notably, no vocational report that set out the other types of work that were suitable and available to the first defendant, having regard to the disabilities and impairment that the Member accepted she had.

19. [121]

    In the first defendant’s submission, it does not matter that the Member did not specifically reference Mead in his decision. He did not need to. His approach was correct. A Member has to do his or her best on the available evidence.

20. [122]

    The first defendant referred to Pham v NRMA Insurance Ltd [2014] NSWCA 22; (2014) 66 MVR 152 (“Pham v NRMA”) in which the Court of Appeal stated at [14]:

21. [123]

    The Member has made findings available on the evidence before him. The insurer had not discharged the Mead onus.

22. [124]

    The insurer noted that the first defendant asserts that Mead provides a basis for the Member’s award of damages for past loss of earnings, calculated on the basis that the first defendant has been totally incapacitated for work from the date of the accident to the date of the damages assessment, despite there being no medical evidence to that effect.

23. [125]

    The insurer suggested that the first defendant asserts, in effect, that the Member could have justified his assessment of damages for past wage loss on the basis that the insurer failed to discharge its legal onus of proving that there was alternative work available to the first defendant within her physical capacity, but that was not what the Member did.

24. [126]

    The Member did not refer to Mead or any other decision in that line of authority, nor did the Member refer to any legal onus borne by the insurer of the kind discussed in Mead.

25. [127]

    The Member turned his mind to whether alternative employment was available for the first defendant, which he clearly did not, he may have found, consistently with the medical evidence, that the first defendant has been fit for a range of commonly available modes of employment. The insurer was not required to prove, for example, that work as a shop assistant is available in Sydney.

26. [128]

    The Member’s failure to consider what areas of employment have remained open to the first defendant, in circumstances where none of the medical evidence is to the effect that she has been totally incapacitated for work, is the error identified by the Court of Appeal in Kallouf, which is not overruled by Mead or any other appellate decision.

27. [129]

    These grounds of judicial review centre on the contentions that that the Member erred in law in assessing damages for past loss of earnings from the date of the accident to the date of his assessment on the basis that the first defendant was totally incapacitated, and that the Member should have instead considered that the first defendant was only partially incapacitated during that period.

28. [130]

    The Member discusses the first defendant’s past loss of earnings at [132]-[145] of his reasons under the heading “d) What loss of income has the claimant suffered to date as a result of her injuries?”: Ex A, 48.

29. [131]

    The Member discussed the first defendant’s claim for $200,000 plus loss of past superannuation and sets out the basis for this claim as being a loss of $1000 net per week from the date of the accident to 28 April 2021 (the date of her submissions to the Member) at [132]-[133]: Ex A, 48. He notes that the insurer disputes this claim, that while the first defendant was unemployed at the time of the accident, two weeks previous to that date she was offered a full-time job as a hairdresser in Bankstown and was due to commence employment approximately two weeks after the accident at [134]-[137]: Ex A, 49. At [138]-[139] the Member lays out the reasons why he accepted that this is not inconsistent with the first defendant’s contention that she was “looking for a job” at the time of the accident: Ex A, 49.

30. [132]

    As noted by the first defendant, at [110] of his reasons the Member explicitly accepted the evidence of Dr Davis that the first defendant will not be able to work as a hairdresser in either a full or part time role due to the prolonged standing such work requires, and at [123] stated that the first defendant would “be restricted to carrying out work that does not involve prolonged standing or repetitive movements and that she will not be able to pursue a career in hairdressing”.

31. [133]

    At [140]-[144] of his reasons the Member stated (Ex A, 49):

32. [134]

    The insurer asserted that the Member did not have any regard to the other potential forms of employment for which the first defendant was fit, and that the medical evidence the Member accepted allowed for a wide range of employment that the first defendant is physically capable of performing. In this regard, the Member writes at [151] of his reasons (Ex A, 50):

33. [135]

    While this passage appears where the Member is discussing the first defendant’s future loss of earnings it is nevertheless significant. The Member’s reasons are to be read fairly and as a whole (Minister for Immigration & Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 (“Wu Shan Liang”) at [24]) and "are not to be construed minutely and finely with an eye keenly attuned to the perception of error”: see Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 (“Pozzolanic”) at 287.

34. [136]

    The first defendant referred to Kallouf. In Kallouf, the Court, in discussing principles related to the assessment of future earning capacity, stated at [49]:

35. [137]

    There was medical evidence before the Tribunal Member which included the clinical records of the treating doctors that established that the plaintiff had suffered significant injuries to the neck, shoulders and lower back resulting in persistent pain and restrictions in these areas. The Tribunal Member was also satisfied that these disabilities have impacted on her ability to work and will continue to impact on her future working capacity. The Tribunal Member found that the plaintiff will, in the future, be restricted to carrying out work that does not involve prolonged standing or repetitive movements and that will not be able to pursue a career in hairdressing. The Tribunal did not find that she had no future earning capacity but rather she had a deduction of earning capacity of at least 50%.

36. [138]

    The insurer asserted that had the Member turned his mind to whether alternative employment was available he may have found that the first defendant was fit for a range of commonly available modes of employment. In my opinion the Member did turn his mind to that possibility and was not satisfied that such alternatives were available to her.

37. [139]

    The insurer submitted it is “not required to prove, for example, that work as a shop assistant is available in Sydney”. While I appreciate this example is simply illustrative, it would be consistent with the Member’s reasoning at [151] that such work was inappropriate. In any event, the insurer has misconstrued the onus. In accordance with the principle in Mead, the first defendant discharged her duty to show that she was incapable of performing her former role, the onus was then on the insurer to establish that she retained a residual earning capacity and she was able to pursue other means of employment. It cannot point to what it says are commonly available modes of employment without ever explaining how the first defendant was suitable for those modes of employment despite her injuries, or even stating what they are.

38. [140]

    In the situation where there is a dispute as to the residual earning capacity of a claimant as there was here, a vocational report is a prudent step towards evidencing the claimant’s capacity. Here there was not one. The evidence before the Member was limited and those limits noted by him. He was required only to do his best on the available evidence: Pham v NRMA at [14].

39. [141]

    Judicial grounds 2 and 3 fail.

Judicial Ground (4)

1. [142]

   The insurer’s fourth ground of judicial review was that the Member erred in law in awarding damages for future loss of earnings of almost $100,000 more than the amount claimed by the first defendant without providing adequate reasons for making such an award.

2. [143]

   The insurer agreed that the Member made findings, at [122]-[123], that he was satisfied that the first defendant’s disabilities have impacted on her past ability to work and will continue to impact on her future earning capacity.

3. [144]

   At [146] of his reasons, the Member found that in her updated submissions and schedule of damages the first defendant made a claim for future economic loss to age 67 in the sum of $166,387, being a loss of $250 per week, and that alternatively, the first defendant sought a buffer for future economic loss of $100,000.

4. [145]

   At [152] of his reasons, the Member made findings that the first defendant has suffered a diminution in her earning capacity of at least 50%. Based on her probable earnings of $800 net per week as a hairdresser, the first defendant calculated damages for future economic loss on the basis of a loss of $400 net per week until retirement, which after deducting 15% for vicissitudes produced an award for future economic loss of $266,220, almost exactly $100,000 more than the amount claimed.

5. [146]

   It is not impermissible for a Member of the Personal Injury Commission to award more than the amount claimed, detailed reasons will be required for doing so. In this case, the amount awarded was substantially more than the amount claimed, but the reasons (at [146]-[154]) were brief.

6. [147]

   While the necessary inference from the Member’s findings is that the first defendant does retain a capacity for work, the Member’s reasons provide no analysis of the manner in which her physical or psychological disabilities limit her capacity for work, or the type of work suited to a person with those limitations.

7. [148]

   Such an analysis was required in circumstances where the third defendant awarded an amount for future economic loss substantially higher than the amount claimed.

8. [149]

   While the insurer conceded that the Member was entitled to award more than the sum claimed by the first defendant and that 10 paragraphs were specifically given to explain the path of reasoning for the Member’s conclusions, it nevertheless contends that the Member has not sufficiently illustrated the nature of impairment warranting such a finding.

9. [150]

   The first defendant submitted firstly that the decision must be read fairly and as a whole: Wu Shan Liang at [24]; see also Pham v NRMA at [16], and [28]-[31].

10. [151]

    Secondly, that the Member’s task was to consider the evidence before him to come to conclusions on damages. The Member’s task was not, as the insurer would have it, to illustrate with fine medical precision the precise nature of the first defendant’s injury that would stop particular actions or work modes. That is a matter for medical evidence. All the Member was required to do was to give “brief” reasons to support his decision, as is required by section 94(5) of the MACA.

11. [152]

    The first defendant referred to Zahed v IAG Limited t/as NRMA Insurance (2016) MVR 1; [2016] MSWCA 55 (“Zahed”) where Leeming JA said, at [3]–[4]:

12. [153]

    The principles set out in Zahed are still broadly applicable, and the duty imposed on a member to give “brief” reasons is a lower duty than that imposed on a Court.

13. [154]

    The first defendant noted that the relevant guidelines have since been replaced by the PIC Rules, which contain a similar requirement to the Guidelines at Rule 78(2) which is extracted at [33] of this judgment.

14. [155]

    The first defendant further noted that the Personal Injury Commission Act provides at s 42 that the guiding principle to be applied to practice and procedure within the Personal Injury Commission is “to facilitate the just, quick and cost effective resolution of the real issues in the proceedings.”

15. [156]

    The first defendant thirdly submitted that the Member illustrated over 174 paragraphs the reasons for his decision. Specifically, the first defendant referred to the Member’s reasons at [117]-[123] (reproduced earlier in this decision).

16. [157]

    The Member has provided a path of reasoning that illustrates, with no uncertainty, that there was a significant reduction in the first defendant’s employability. Specifically, the Member found that hairdressing has been rendered an unsuitable occupation for the first defendant as a result of the injuries sustained in the subject motor collision and that she had had a complete loss of earning capacity to the date of the assessment.

17. [158]

    The Member then dealt specifically with future economic loss in paragraphs [146]–[155].

18. [159]

    Referring to the above extracts, the Member comprehensively explained the basis for the findings.

19. [160]

    This ground was in reality a thinly veiled merits review and that the insurer did not establish any error of law on the face of the record or otherwise.

20. [161]

    While a decision-maker in the position of the third defendant is not required to provide expansive reasons, the Member had to provide some analysis of the manner in which the first defendant 's physical or psychological disabilities limit her capacity for work. No such analysis was provided. The Member’s reasons do little more than state a conclusion on this issue.

21. [162]

    This ground of judicial review focuses on the Member’s award of $266,220 for future economic loss, approximately $100,000 more than the amount claimed by the first defendant without, the insurer submitted, providing adequate reasons.

22. [163]

    The starting point for such a contention is the MACA which, in s 94(5), sets out a number of requirements for the assessment of claims. As per the words of s94(4) of the MACA the requirement imposed on the Member to give reasons, in terms, was to “attach a brief statement to the certificate, setting out the Commission's reasons for the assessment.” (my emphasis)

23. [164]

    The Member discussed the first defendant’s future economic loss at [146]-[155] of his reasons under the heading “e) What were the claimant’s most likely future circumstances but for the motor accident and what loss of income is the claimant likely suffer in the future because of her injuries”: Ex A, 49

24. [165]

    The Member, citing Medlin v State Government Insurance Commission (1995) 182 CLR 1 considered the issue to be determined as being to determine whether the first defendant had sustained a loss in her earning capacity and if so whether that will result in any economic loss: Ex A, 50 at [147]. In accordance with s 126 of the MACA the Member found that the first defendant’s most likely future circumstances would be that she continued as a hairdresser and beauty therapist and may have owned her own business: Ex A, 50 at [147]. The Member made reference to his previous finding that the claimant’s disabilities and impairments arising from her injuries did impact and would continue to impact her earning capacity and considered the first defendants English language difficulties and injuries would hamper her employment prospects: Ex A, 50 at [150]-[151]. He stated the assumptions on which the award was based and the relevant percentages by which damages were adjusted: Ex A, 50 at [152]-[155].

25. [166]

    As noted in Zahed at [4] there is a familiar tension between the statutory requirement for brevity and the obligation to explain one’s reasons fully and clearly. 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). As Leeming JA explains in Zahed the requirement to set out one’s reasoning process must be viewed with the object of the just, quick and cheap resolution of the real issues between the parties in mind and construed accordingly: Zahed at [4]

26. [167]

    The member’s task was to consider the evidence before and to arrive at a conclusion as to the appropriate amount of damages to be awarded. He was only required to give brief reasons explaining his reasoning. It is my view that he has discharged both of these duties. This ground of judicial review fails.

Result

1. [168]

   The result is the insurer has established that the Member committed an error of law as set out in Judicial Ground (1). So far as Judicial grounds (2), (3) and (4) are concerned, the insurer has failed to establish error on behalf on the Member. As such, the decision and certificate of the Member dated 23 August 2021 is set aside. The matter is remitted to the President of the Personal Injury Commission of New South Wales to be determined according to law.

Costs

1. [169]

   Costs are discretionary. Costs normally follow the event. The first defendant is to pay the plaintiff’s costs on an ordinary basis.

   1. (1)

      The decision of the third defendant, Tribunal Member Maurice Castagnet, dated 23 August 2021 is set aside.

   2. (2)

      The matter is remitted to the second defendant, the President of the Personal Injury Commission of New South Wales, for determination according to law.

   3. (3)

      Costs reserved.