Insurance Australia Ltd t/as NRMA Insurance v Pate

1. [1]

   In October 2010, Mrs Pate was injured in a car accident at Grafton. NRMA was the compulsory third party insurer of the vehicle at fault. It admitted liability. Mrs Pate was then employed full-time as a property manager. She also farmed rabbits in partnership with her husband. After the accident Mrs Pate worked only part-time. She was not, however, entitled to compensation for non-economic loss under the Motor Accidents Compensation Act 1999 (NSW), given the nature of the physical and psychiatric injuries which she suffered in the crash. There was a dispute between the parties as to her entitlement to compensation for past and future economic losses, given the nature of her injuries and her claimed losses, including in relation rabbit farming.

2. [2]

   In June 2015, Mr Cowley, a claims assessor appointed by the Motor Accidents Authority, assessed Mrs Pate’s damages. Her damages for past loss of income were assessed to be $120,073.46. Future economic loss was assessed to be $405,572 and total damages at $828,141.

3. [3]

   NRMA now seeks an order under s 69 of the Supreme Court Act 1970 (NSW), quashing the assessor’s decision. The Authority and Mr Cowley have filed submitting appearances.

Issues

1. [4]

   NRMA contends that the assessor made two errors of law in the assessment of Mrs Pate’s past and future economic losses. The first, by wrongly taking into consideration irrelevant matters. The second, by failing to deal with an issue it had advanced, in relation to Mrs Pate’s claimed loss of earnings from the rabbit farming business.

2. [5]

   In issue between the parties on this appeal were:

   1. (1)

      The admissibility of certain evidence.

   2. (2)

      Whether the assessor had erred in failing:

   3. (3)

      Whether the assessor had attached inappropriate significance to Mrs Pate’s permanent impairment in the assessment of her economic damages.

3. [6]

   Mrs Pate contends that the assessor made no material error and that the summons should be dismissed with costs.

The requirements of the Statutory Scheme

1. [7]

   Mrs Pate’s injuries had been assessed at 5% whole person impairment for her physical injuries and 8% whole person impairment for her psychiatric injuries. They were not compensable because they fell below the 10% whole person impairment limit specified by s 131 of the Motor Accidents Compensation Act.

2. [8]

   Under s 94(1)(b) of the Motor Accidents Compensation Act the assessor was required to assess the amount of Mrs Pate’s economic damages, that “being the amount of damages that a court would be likely to award” her. Under s 94(2) the assessor had to determine Mrs Pate’s damages, having regard to such information as was conveniently available. The parties provided the information they respectively relied on at a hearing at which both oral and documentary evidence, including expert evidence, as well as written submissions were advanced. Rules of evidence did not apply at this hearing and no transcript of the proceedings was kept.

3. [9]

   The obligations imposed by s 94 on the assessor included providing the insurer and claimant with a certificate and attaching “a brief statement to the certificate, setting out the assessor’s reasons for the assessment” (s 94(5)). Under the Motor Claims Assessment Guidelines, Guideline 18.4 required that the assessor provide with the certificate of assessment:

4. [10]

   Section 122(3) of the Motor Accidents Compensation Act provides that the provisions of Chapter 5 of the Act, which deals with various heads of damages, apply to assessors acting under s 94.

5. [11]

   Chapter 5 includes s 126, which provides:

6. [12]

   This provision thus imposes an onus on a claimant such as Mrs Pate, not on the insurer.

How the resolution of the issues lying between the parties must be approached

1. [13]

   In proceedings such as this, reasons for a decision given by an administrative decision maker such as the assessor are not to be scrutinised by “over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reason are expressed” (see Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at [31]).

2. [14]

   Further, s 69 of the Supreme Court Act does not empower the Court to review an assessor’s decision for error of fact. Such a review is confined, in the case of an error of law that appears on the face of the record of the proceedings, to the reasons expressed by the assessor for the certificate issued and the certificate itself (see s 69(4)). The Court may also review the decision for jurisdictional error (see Craig v State of South Australia [1995] HCA 58; (1995) 184 CLR 163).

3. [15]

   In Australian Broadcasting Tribunal v Bond [1990] HCA 33; (1990) 170 CLR 321 Mason CJ explained at [42] - [43] that ordinarily, a finding of fact, including an inference drawn from primary facts, will not constitute a reviewable decision. If, however, a statute requires or authorizes the decision-maker to determine an issue of fact as an essential preliminary to the taking of ultimate action or the making of an ultimate order, then the determination of that issue of fact is reviewable. An ultimate determination which depends upon a finding of fact which is vitiated by error of law, or made without evidence, is also reviewable.

4. [16]

   Further, while there is no error of law simply in making a wrong finding of fact, whether there is any evidence of a particular fact is a question of law, as is the question of whether a particular inference can be drawn from facts found or agreed (see at [87] - [89]). Making findings and drawing inferences in the absence of evidence, also involves an error of law.

5. [17]

   As discussed in QBE Insurance (Australia) Ltd v Miller [2013] NSWCA 442 at [36], review proceedings are thus:

6. [18]

   Failing to take into account a “relevant consideration”, that is, a factor which, by law the decision-maker is bound to take into account, also involves jurisdictional error (see Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 at 39; Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443). A constructive failure to exercise jurisdiction may also arise because the statutory conferral of power has not been exercised, according to its terms (see Cervantes at [21]).

7. [19]

   The reasons given for an assessment under the Motor Accidents Compensation Act have to be directed to what is in issue between the parties. As explained in Insurance Australia Limited trading as NRMA Insurance v Helou [2008] NSWCA 240 at [62], such reasons must identify the various heads of damage awarded and explain how the numbers attributed to each of those heads of damage have been arrived at.

8. [20]

   Further, to fail to respond to a substantial, clearly articulated argument relying upon established facts, can involve a denial of natural justice (see Dranichnikov v Minister for Immigration and Multicultural Affairs ; [2003] HCA 26; (2003) 77 ALJR 1088 at [24].) A failure to accord procedural fairness can also involve jurisdictional error (see Kirk v Industrial Court of New South Wales [2010] HCA 1; (2010) 239 CLR 531 at [60] and Re Refugee Review Tribunal; Ex parte HB [2001] HCA 34; (2001) 179 ALR 513 at [10].)

9. [21]

   What the law is concerned with, both in the case of questions of procedural fairness and natural justice, is to avoid practical injustice (see Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; (2003) 214 CLR 1 at [37] per Gleeson CJ).

10. [22]

    It follows that in order to resolve the various issues lying between the parties on this application, it is necessary to consider not only the assessor’s reasons for the disputed conclusions which he reached, but also to consider the cases which the parties had advanced at the hearing and the evidence which they then led.

The assessor’s reasons

1. [23]

   Mrs Pate was employed by a real estate agency as a property manager at the time of the accident. She and Mr Pate gave affidavit evidence in support of her claim. She was cross-examined. Mr Pate was not called. The parties also led expert evidence as to the claims relating to the rabbit farming business.

2. [24]

   The assessor identified at [7] the issues lying between the parties to be:

3. [25]

   During the course of the hearing it became necessary to ask the parties to address me on what the assessor had decided, given certain somewhat cryptic aspects of his decision. The result of that request was submissions made by both parties, which confirmed that there was some difficulty in following what had been decided. As a result, the parties sought and were granted the opportunity to discuss the reasons and to provide a note, in hopefully agreed terms. Some days later an agreed note was provided, to which I will return.

4. [26]

   The assessor examined the nature and extent of Mrs Pate’s physical and psychiatric injuries, noting at [17]:

5. [27]

   The assessor concluded as to Mrs Pate’s medical conditions at [35]:

6. [28]

   On NRMA’s case these observations revealed the first error into which the assessor fell, namely, wrongly taking into account the percentages of Mrs Pate’s permanent impairment as having an impact on her loss of earning capacity, contrary to the observations in Brown v Lewis [2006] NSWCA 87; (2006) 65 NSWLR 587 at [23].

7. [29]

   The assessor then turned to Mrs Pate’s past economic loss. He concluded that the whole $60,073.46 Mrs Pate had claimed had been established, in circumstances where for some four years after the accident, she had worked part-time as a receptionist, performing sedentary work for her employer. NRMA’s case that only $35,000, should be allowed, given the nature of her injuries, was rejected.

8. [30]

   In the parties’ note it was agreed that the amount the assessor had awarded was the sum repayable to the workers’ compensation insurer, for Mrs Pate’s wages, including top up, tax and superannuation. NRMA did not claim that any error had been made in this aspect of the award. The parties also agreed that logically, there may have been some overlap between the past economic loss awarded for Mrs Pate’s real estate property management work and the past economic loss otherwise awarded for the rabbitry, but no issue was taken by NRMA about what might have been a minor overlap.

9. [31]

   As to the rabbitry, the assessor outlined the affidavit evidence given by Mrs Pate and her husband and that given in Mrs Pate’s oral evidence. After referring to Mrs Pate’s background and past work in a business she and her husband had pursued, he noted that:

10. [32]

    The assessor also noted at [47] that:

11. [33]

    At [54] – [57] the assessor noted:

12. [34]

    The assessor then referred to the reports of the forensic accountants who the parties had each engaged. For past economic loss the assessor concluded at [89] - [91]:

13. [35]

    NRMA claims that the $60,000 allowed for past economic loss was infected by error, the assessor having taken the view, explained at [88] of his reasons, that the NRMA had conceded that lack of Council approval for the rabbitry was no longer in issue. NRMA’s case was that it had made no such concession.

14. [36]

    The assessor then turned to consider future economic loss, finding at [92] - [94]:

15. [37]

    The assessor took the view that Mrs Pate’s employment at the real estate agency had come to an end on 16 April 2015 (at [101]). He concluded that:

16. [38]

    NRMA does not assert that the assessment of future loss by reference to Mrs Pate’s loss of employment was infected by error.

17. [39]

    As to the rabbitry, the assessor concluded at [106] - [107]:

18. [40]

    NRMA’s case is that the buffer of $200,000 was also infected by error, given that the assessor had misunderstood its case in relation to the rabbitry.

The assessor erred as to NRMA’s case

1. [41]

   Part of Mrs Pate’s case rested on claimed loss of earnings from the rabbitry which she conducted with her husband. Mrs Pate gave affidavit evidence and was cross-examined, other evidence was received and the parties’ legal representatives each advanced written and oral submissions, including as to the rabbitry claim.

2. [42]

   There was an objection to the admissibility of evidence, as to the case NRMA had advanced before the assessor, given s 69(4) of the Supreme Court Act. I have already discussed the consequences of a failure to deal with a clearly articulated aspect of a party’s case.

3. [43]

   Over objection I thus received the evidence as to the case which NRMA had pressed at the assessment conference, that clearly being relevant to what lay in issue between the parties and therefore admissible under s 55 of the Evidence Act 1995 (NSW).

4. [44]

   The disputed evidence was given by way of affidavit. Mr Wilson of counsel deposing:

5. [45]

   It was also argued that this evidence amounted to a conclusion as to what had happened at the conference. That objection was resolved on the basis that it was accepted that Mr Wilson was saying “At no time did I make a statement to the assessor that I withdrew or abandoned or conceded that any part of the written submissions, but particularly this part, was no longer pressed by the insurer”.

6. [46]

   Mr Wilson was not required for cross examination. His evidence was corroborated by the unchallenged evidence given by Ms James, the solicitor with carriage of the matter, who deposed that Mr Wilson had said in his oral submissions at the conference that he relied on his written submissions.

7. [47]

   In the written submissions, NRMA’s case was explained to be that Mrs Pate’s claim for loss of earning capacity from the rabbitry was speculative; that there was an issue as to whether it was intended to be an income producing operation, rather than a hobby, which was not compensable (at [44]); and that its viability and the associated business planning were dubious (at [42]).

8. [48]

   Reliance was placed on aspects of the reports of the experts, Dr Gliksman and Ms Berger, as well as on the fact that Mr and Mrs Pate had other employment. It was argued that if the rabbitry was actually intended to be a serious income producing entity, that basic matters such as council consents, licences and business plans and the like would have been attended to (at para 43(c)). It was also submitted to be relevant that development consent to operate the rabbitry had not been sought from the Clarence Valley Council, (at 45). Other reasons why the business was not viable were developed at para 44, to support the submission that there should be no allowance for past or future loss of earning capacity from the rabbitry.

9. [49]

   The evidence led on this application establishes that what lay in issue between the parties as to the assessment of Mrs Pate’s claimed damages, included whether Mr and Mrs Pate truly intended to operate the rabbitry as a commercial business and whether it was viable. NRMA relied on Mr and Mrs Pate not having obtained development approval for the rabbitry from the Clarence Valley Council. Both parties had led evidence and made submissions about this.

10. [50]

    The assessor, however, observed at [88] that:

11. [51]

    The evidence established that the assessor’s observation that this aspect of NRMA’s case had not been pressed was incorrect. That involves material error on the face of the record. Unlike the situation considered in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13, in this case the face of the record demonstrates that a matter was raised which the assessor was required to consider. The evidence established that he erred in concluding that NRMA had made any concessions about that issue.

12. [52]

    This was not conceded in these proceedings by Mrs Pate, whose case was that what was advanced on this application was different to what had been argued before the assessor. In any event, she submitted, the material on which NRMA had advanced its case did not establish that Council consent was required for the rabbitry, or that it could not have been obtained, if her understanding that it was not required was incorrect. It was also contended for Mrs Pate that an evidentiary onus fell on NRMA, to establish this aspect of its case. It had not proved what it needed to prove and so its complaint must fail.

13. [53]

    In the result, it was also contended, even if the assessor had erred as NRMA has established, there had been no practical injustice for NRMA. The assessment of damages had been properly approached on the basis of a buffer, by which account was taken of uncertainties and vicissitudes the assessor had identified. It followed that even if error had been established, the Court’s discretion to refrain from granting the relief sought would be exercised.

14. [54]

    Contrary to these submissions, it has been established on the evidence that the assessor’s error had the result that in resolving what lay in issue between the parties, the assessor failed to take a relevant consideration into account. The result was that the assessor fell into both legal and jurisdictional error (see Minister for Immigration and Multicultural Affairs v Yusuf [2001] HCA 30; (2011) 206 CLR 323 at [82]), having denied NRMA procedural fairness in not taking into account that aspect of its case, a denial of natural justice of the kind discussed in Dranichnikov.

15. [55]

    Nevertheless, given Mrs Pate’s case, that there was no practical injustice, it is necessary to consider what transpired at the hearing.

The hearing before the assessor

1. [56]

   On the evidence led in this case, there is no doubt as to the submissions which NRMA advanced before the assessor. There is some difficulty in determining what all the evidence received at the hearing was, given that no transcript was kept of the proceedings and that the assessor wrongly understood that an aspect of NRMA’s case was not being pressed.

2. [57]

   There is no issue that Mrs Pate’s case rested on her and her husband’s claimed intention to operate the rabbitry for commercial purposes, at a significantly increased scale, so that they could sell 2000 rabbits per month. That this was their intention, was in issue.

3. [58]

   The evidence before the assessor included a request from NRMA’s solicitor for advice from the Council, as to whether its approval was required for the conduct of such a rabbitry business and the advice provided by the Council. This evidence was not considered by the assessor in arriving at the conclusions which he reached.

4. [59]

   In December 2014 the advice from Council provided by its compliance officer was:

5. [60]

   There is no issue that the Pate’s land was zoned RU2.

6. [61]

   The proper inference to be drawn from the advice given by Council’s compliance officer and that part of Mrs Pate’s evidence referred to by the assessor in his reasons, is that no Council consent for the rabbitry had been sought. The evidence given by Mrs Pate, referred to by the assessor at [88], was that her understanding was that ‘no such approval was needed for a rural property”. That understanding was plainly not consistent with the compliance officer’s December 2014 advice, given the zoning of the property.

7. [62]

   The evidence received at the hearing did not establish that Council approval for the rabbitry was not required.

8. [63]

   The compliance officer’s advice was that the scale of farming on which Mrs Pate’s damages claim rested, was likely to require consent, given the zoning of the property. The guidelines to which the compliance officer referred in the December letter were not, however, in evidence.

9. [64]

   That it was necessary for NRMA to tender those guidelines, given the compliance officer’s advice and Mrs Pate’s own evidence, is not apparent. The advice was that the guidelines would have been used by Council to assess whether what was proposed amounted to "intensive livestock agriculture” as defined. That definition referred to farming pursued for commercial purposes and feeding wholly or substantially on externally-sourced feed. The details of the evidence given by Mrs Pate about the rabbitry operation were not addressed by the assessor, but it cannot be overlooked that her entire claim was advanced on the basis that the rabbitry was being pursued for commercial purposes, not as a hobby.

10. [65]

    That was challenged by NRMA, but if accepted, it followed from the case which it had advanced, that the need for Council consent was necessary for the assessor to consider, given that s 126 imposed an onus on Mrs Pate to satisfy the assessor that the assumptions about her future earning capacity, or other events on which the award was to be based, accorded with her “most likely future circumstances but for the injury”.

11. [66]

    The basis of Mrs Pate’s understanding that Council approval was not required for the proposed significantly increased commercial rabbitry operation was not referred to in the assessor’s decision, understandably, given that he did not appreciate that there was an issue between the parties about this and its consequences for what the Pate’s intended at the time of the accident.

12. [67]

    Mr and Mrs Pate had just begun selling rabbits at the time of her accident. The operation was then adversely affected by the outbreak of disease. Work then had to be undertaken to restock. Other work was necessary to be undertaken, if the scale of the business was to be increased. Seemingly the operation ceased before that work was undertaken, on Mrs Pate’s case because Mr Pate could not manage the rabbitry on his own.

13. [68]

    Whether Council consent would have been sought by Mr and Mrs Pate and obtained from Council, if they pursued the rabbitry for the commercial purposes on which Mrs Pate’s claims rested, could not be known. Such approval was never sought. NRMA relied on its absence to challenge Mr and Mrs Pate’s evidence as to what they intended to do with the rabbitry.

14. [69]

    The assessor was, accordingly, required to consider this aspect of NRMA’s case, in arriving at a conclusion as to the assumptions on which Mrs Pate’s damages in respect of the rabbitry was calculated. The assessor also had an obligation to explain the reasoning process which led him to a conclusion about those assumptions. Because of the assessor’s error as to NRMA’s case, those obligations were not met.

Past economic loss for the rabbitry

1. [70]

   The assessor concluded that past loss for the rabbitry was not capable of precise calculation, but that increasing the rabbitry operation by a further 200 does would have required an additional 30 hours work per week. He concluded that this would have required Mrs Pate to have reduced her employment as a property manager to three days per week. Seemingly, despite this conclusion, the award for her past employment loss was calculated on the assumption that she would have performed her property manager work for a five day week.

2. [71]

   The reasoning process which led to this result was not revealed by the assessor.

3. [72]

   The result was that in addition to the damages of some $60,073.46 for the loss which flowed in respect of her employment, a further allowance for the rabbitry of $60,000 was made, the assessor said, he “having considered all of the issues”. That conclusion is difficult to understand, notwithstanding what the parties said in their note.

4. [73]

   The assessor’s conclusion appears to have paid no attention to the time at which the reduction in Mrs Pate’s working hours as a property manager would have occurred, had she not been injured and the rabbitry operation increased as he accepted had been planned. It was undoubtedly a relevant consideration, particularly given the evidence referred to at [55], that soon after the accident steps had to be taken to restock the rabbitry, after the majority of the rabbits had been killed during an outbreak of disease.

5. [74]

   How the assessor complied with the requirement in guideline 18.4.3, to expose the reasoning processes that lead him to the conclusions reached as to the calculation of past damages, is difficult to see. A bare statement that all of the issues had been considered, is incapable of satisfying that obligation, especially given the assessor’s error as to one of the matters which NRMA had put in issue.

6. [75]

   As I have explained, the evidence established that because of the assessor’s error as to NRMA’s case, no consideration was given to the question of the need to obtain Council approval to conduct the commercial rabbit farming proposed. NRMA’s case was that this shed light on the Pate’s claimed intention to conduct the rabbitry as a commercial venture, rather than as a hobby, as well as on the viability of the rabbitry and what income it might generate, if the operation was increased as was claimed to have been planned.

7. [76]

   Contrary to the assessor’s understanding of the parties’ cases, the question of the need for Council consent was in issue. That was a relevant consideration, raised both on the evidence and NRMA’s written submissions, both as to Mrs Pate’s case that the rabbitry would have been pursued for the commercial purposes but for her accident, and if that was accepted, in calculating Mrs Pate’s damages.

8. [77]

   In the result, it is not open to conclude that the assessor’s failure to consider the case NRMA had advanced and the conclusions which the assessor may have reached, had this aspect of NRMA’s case been considered, had no impact on the assumptions on which Mrs Pate’s damages were assessed. Nor can it be safely concluded that this error resulted in no practical injustice for NRMA, in the assessment of Mrs Pate’s damages for past economic loss.

9. [78]

   This is not a case like that considered in Frost v Kourouche [2014] NSWCA 39, where it was concluded that there had been no practical injustice in not giving an applicant a warning, or allowing an adjournment, in order to consult her solicitor and address a review panel further. That was because on the parties’ respective cases, the possibility that her evidence would be disbelieved was apparent, given what lay in issue between them.

10. [79]

    Here, too, the case which NRMA advanced was apparent, but it was misunderstood. That had the result that a matter relevant to a determination of Mrs Pate’s damages claims was not considered, as it had to be under this statutory scheme.

11. [80]

    It follows that the discretion not to interfere in the assessor’s decision, notwithstanding the error established, does not arise to be exercised in this case.

Future economic loss

1. [81]

   The same conclusion must be reached in relation to the claim for future economic loss.

2. [82]

   Mrs Pate’s claim for future economic loss was calculated on the basis that she would have worked as a property manager for only three days a week, when the increased rabbitry operation was pursued. Despite not considering the question of Council consent, the assessor concluded that the rabbitry was a farming enterprise at substantial risk, with the result that only a “modest amount” as a cushion or global assessment should be awarded for the rabbitry. Even though the claim finally pressed was for only $400,000, what was awarded was $200,000, by way of a buffer. That conclusion was arrived at without regard to NRMA’s case in relation to Council approval.

3. [83]

   Under s 126 the onus fell on Mrs Pate to establish the assumptions on which the damages she was awarded for future economic loss rested. Those assumptions were put in issue in ways that the assessor did not resolve, as he was obliged to do, in assessing Mrs Pate’s future economic losses.

4. [84]

   It also follows that it cannot be safely concluded that the result of the assessor’s error was no practical injustice for NRMA, in relation to the calculation of Mrs Pate’s damages for future economic loss.

Taking into account an irrelevant consideration

1. [85]

   NRMA’s case was that given the nature of the injuries Mrs Pate had suffered, she was entitled only to a relatively modest damages award. Contrary to its case, the past damages Mrs Pate was awarded were calculated by reference to the difference between what she had earned in her past employment working five days a week as a property manager and what she had earned since the accident, working three days a week performing modified duties, together with the allowance of $60,000 for what she would have earned from the rabbitry.

2. [86]

   The assessor also concluded that Mrs Pate would not return to her pre injury work in the foreseeable future. The calculation of her future damages rested on the assessor’s conclusion that she would have reduced her work as a property manager to three days a week, to work in the increased rabbitry operation. Her employment had, however come to an end and the assessor concluded that Mrs Pate would be at a disadvantage in obtaining similar sedentary employment in the open labour market. The figure arrived at for employment damages was $185,200 plus $20,372 for superannuation. There was also a $200,000 buffer for the rabbitry.

3. [87]

   Under the heading “What is the nature and extent of the claimant’s injuries?”, the assessor outlined what had occurred in the accident and its consequences for Mrs Pate, including on her ability to work as a property manager and in the rabbitry, which on her case closed some 14 months after the accident, because she could not carry out her share of the duties she was required to perform in the business.

4. [88]

   The assessor outlined what had happened to Mrs Pate in the 2010 accident, when she was trapped in her vehicle after being t-boned at an intersection and pushed some 30 metres before colliding with a give way sign and being trapped in her car, after being hit by the airbag. She returned to work after several days, before seeking further medical advice for severe pain some weeks later. In July 2010, her working hours were reduced and she sought further treatment, which the assessor described. In October 2011 she had a month off work and in July 2012 and February 2013 her working hours were again reduced. He then turned to the assessment of her injuries, observing:

5. [89]

   At [20] – [28], the assessor discussed Mrs Pate’s evidence as to the consequences of her injuries. The assessor then noted the insurer’s concession that she had suffered an injury to her neck (at [29]). He then discussed the various medical reports in evidence as to Mrs Pate’s conditions, before turning to the medical assessor’s findings. The assessor concluded at [35]:

6. [90]

   This, NRMA submitted, revealed an error which had infected the entirety of the assessor’s approach to the questions which he had to determine, because he had taken an irrelevant consideration into account.

7. [91]

   For Mrs Pate it was submitted that this aspect of the assessor’s reasons, read fairly in context, was but a reference to “the nature and character” of the injuries and disabilities which she had suffered and had not involved an error of the kind discussed in Brown v Lewis.

8. [92]

   In Brown v Lewis, it was observed at [22] – [24]:

9. [93]

   These observations were discussed in Pham v Shui [2006] NSWCA 373 , it being observed that the reference to what could be extrapolated from a certificate under s 61(2) for the purpose of calculating economic loss was a reference to:

10. [94]

    What was here in issue before the assessor was the nature and extent of the impact which Mrs Pate’s injuries had on her earning capacity. The fact that her physical injuries had been assessed under the Motor Accidents Compensation Act at 5% whole person impairment and her psychiatric injures at 8%, could not, of itself, provide a foundation for the assessor’s conclusion that “such a level of injuries would result in a loss of earning capacity”.

11. [95]

    As discussed in Brown v Lewis such a finding could only rest on the evidence as to the actual impact of the particular injuries which Mrs Pate had suffered. It could not rest on the assessment of the whole person impairments which had resulted from those injuries, under this legislative scheme. It follows that the assessor erred in taking the view that those percentages could provide a basis for the conclusion that she had suffered a loss of earning capacity.

12. [96]

    It was contended, nevertheless, for Mrs Pate, that the assessor’s reference to those percentages did not have an impact on the assessor’s assessment of damages, of the kind about which NRMA complained. It was also submitted that:

13. [97]

    Further, it was argued, it was not illegitimate for the assessor to have referred to these assessments as he did, given the case which NRMA had advanced in its submissions. In its written submissions, there is certainly reference made to one of the objective matters NRMA relied on, being that the statutory assessment was below the threshold, which had resulted in Mrs Pate having no entitlement to non-economic loss.

14. [98]

    It was also submitted that when what the assessor discussed at [8]-[35] was read together, it would be accepted that there had been a permissible reference to the assessment under the Motor Accident Compensation Act, Brown v Lewis not having barred any reference at all being made to such percentages, as part “of the overall medical dialogue”.

15. [99]

    What was identified at [22] of Brown v Lewis to be necessary for an assessor to focus on, was both what capacity Mrs Pate had lost and what economic consequences had flowed from that loss.

16. [100]

    It seems to me that on a fair reading of the assessor’s reasons, while there are problems which I have discussed, it must be accepted that the assessor did also consider the economic impact of the physical and psychiatric injuries which Mrs Pate had actually suffered. He arrived at particular conclusions by reference to her altered duties, reduced hours of work and inability to perform her former work in connection with the rabbitry. He also came to the conclusion that she was unlikely to improve in the foreseeable future, with the result that in future she would only be able to work three days a week. He also concluded that given her ongoing impairments, she was unlikely to find other employment in the marketplace.

17. [101]

    In the assessor’s conclusions reference was also made to the significance of Mrs Pate’s by then chronic ailments, which he considered were reflected in the WPI findings which he considered individually and combined, “would have an impact upon her loss of earning capacity, need for treatment and care”. That was, it must be accepted, an irrelevant consideration. Nevertheless I consider that despite this error and the difficulty with aspects of the assessor’s explanation of the conclusions which he reached, earlier discussed, that necessary consideration was given to the nature of her particular injuries and what economic impact they had had on Mrs Pate in the past and were likely to have on her in the future.

18. [102]

    The assessor’s reasons, when fairly read in the way discussed in Minister for Immigration & Ethnic Affairs v Wu Shan Liang, thus do not leave open the conclusion that in arriving at the damages awarded, the assessor failed to determine what injuries Mrs Pate had suffered and what economic consequences had flowed from that loss. The assessor’s decision must, nevertheless, be quashed because in arriving at his conclusions, he misunderstood NRMA’s case and failed to determine what it had put in issue, as I have explained.

19. [103]

    In the result the summons cannot be dismissed, as was urged for Mrs Pate.

20. [104]

    Given the nature of the assessor’s errors, NRMA is entitled to have the assessor’s decision set aside. The usual order as to costs is that they follow the event. In this case that is an order for costs as agreed or assessed, in NRMA’s favour. Unless the parties approach within 14 days, that will be the Court’s order as to costs.

21. [105]

    For the reasons given, I otherwise order that:

    1. (1)

       The assessor’s decision be set aside.

    2. (2)

       Mrs Pate’s application for damages under the Motor Accidents Compensation Act be assessed according to law.

    3. (3)

       Unless the parties approach within 14 days, the Court's order as to costs is that the first defendant must bear the plaintiff's costs, as agreed or assessed.

    4. (4)

       All exhibits and subpoenaed material may be returned forthwith; any exhibits returned must be retained intact by the party or person that produced the material until the expiry of the time to file an appeal, or until any appeal has been determined.