Cahill v Allianz Australia Insurance Ltd

1. [1]

   HIS HONOUR: Thomas Cahill, the plaintiff, was involved in a motor vehicle accident whilst driving his vehicle on the Spit Road, Mosman (“the accident”). He claimed to have suffered a personal injury as a result of the accident. The plaintiff claimed damages under the Motor Accidents Compensation Act 1999 (NSW) (“the Act”) for those injuries or disabilities and economic loss (“the claim”).

2. [2]

   Pursuant to Pt 4.4 of the Act, the plaintiff lodged an application on 27 February 2017 for General Assessment by the Claims Assessment and Resolution Service (“CARS”). The application was made by lodging a form known as “CARS Form 2A: Application for General Assessment by the Claims Assessment and Resolution Service” (“Form 2A”) pursuant to s 90 of the Act.

3. [3]

   On 10 April 2017, Allianz Australia Insurance Ltd (“the defendant”) filed a reply in the form a “CARS Form 2R: Reply to an Application for General Assessment by the Claims Assessment and Resolution Service” (“Form 2R”).

4. [4]

   The defendant is the compulsory third party insurer of the vehicle alleged to be at fault in the accident, which resulted in the plaintiff’s claimed injuries.

5. [5]

   The plaintiff’s claim was allocated to a Claims Assessor, Mr Robert Foggo (“the Assessor”), pursuant to s 93 of the Act. The Assessor conducted a CARS Assessment Conference on 9 November 2017 (“the Assessment Conference”), pursuant to s 104 of the Act. On 22 December 2017, the Assessor issued a certificate pursuant to s 94(4) of the Act (“the Certificate”).

6. [6]

   The Certificate bore an entry in bold after the formal headings to the document, which was in the following terms: “THE INSURER HAVING WHOLLY ACCEPTED LIABILITY FOR THE CLAIM, THE AMOUNT OF DAMAGES FOR THAT LIABILITY”. In the body of the document the Assessor made four findings. The first three findings concerned the amount of damages assessed with respect to the claim, the plaintiff’s economic loss and the amount of the plaintiff’s costs taking into account the amount of damages assessed with respect to the claim, respectively. There was a fourth finding which read: “Details of the assessment and reasons for this decision are attached to this certificate”.

7. [7]

   In a document headed “Reasons for Decision – General Assessment”, issued pursuant to s 94(5) of the Act, the Assessor stated, inter alia, that “I find that the claimant is entitled to a full claim of damages without any deduction for contributory negligence”.

8. [8]

   On 22 December 2017, the plaintiff informed the solicitor for the defendant that he accepted the assessment of damages specified in the Certificate. In reply, the defendant’s solicitor wrote to the plaintiff’s solicitor stating that, inter alia, “the insurer does not accept liability under the claim. Accordingly, the insurer does not accept the assessment”. The defendant has not paid the damages in the amount awarded by the Assessor.

9. [9]

   By a summons filed 6 February 2018 (“the summons”), the plaintiff sought, as the relief claimed, inter alia, a declaration that “the Defendant must pay to the Plaintiff the amount of damages specified in the Certificate of Assessor Foggo” and an order that the defendant pay the plaintiff the amount of damages specified in the Certificate.

10. [10]

    This judgment concerns the determination of the relief sought in the summons.

11. [11]

    The core issue in the proceedings concerns the operations of ss 94 and 95 of the Act (see extracted below at [32] and [35]) in the facts and circumstances of this matter.

12. [12]

    The discussion of that issue is best introduced by reference to the judgment of Giles JA (with whom Hodgson and Ipp JJA agreed) in Lee v Yang (2006) 46 MVR 243; [2006] NSWCA 214 at [21]-[26], where his Honour observed, as to the construction of s 95, as follows:

13. [13]

    Once a claim proceeds to assessment under Pt 4.4 of the Act, s 94(1) requires a Claims Assessor to make an assessment of “the issue of liability for the claim (unless the insurer accepts liability)” and “the amount of damages for that liability”. The assessment of the “issue of liability” for the claim is not binding on any party to the assessment (s 95(1)). Nonetheless, if the insurer accepts liability under the claim, damages for liability under the claim become binding on the insurer in circumstances where the claimant accepts the amount of damages assessed by the Claims Assessor.

14. [14]

    It may also be observed, in that respect, that it was common ground that the judgment in Lee v Yang had made it clear that the issue of liability for a claim, as described in s 94(1)(a) of the Act, encompassed contributory negligence (see at [21]). However, notwithstanding references (to use, at this stage, a neutral expression) to contributory negligence by the defendant in the context of conforming with the steps required under Pts 4.3 and 4.4 of the Act, as to the claim made with respect to the accident, the plaintiff contended that the defendant had wholly admitted liability with respect to that claim.

15. [15]

    When considered in that light, and having regard to the acceptance by the plaintiff in this case of the assessment of damages by the Assessor, the seminal issue may be described as whether the Certificate enlivened the provisions of s 95(2) due the defendant wholly accepting liability for the claim. The plaintiff contended the insurer had accepted liability and that, in those circumstances, the damage assessed by the Assessor was binding on the defendant.

THE ISSUES

1. [16]

   Notwithstanding the statement of the core issue above, the issues in the proceedings may also be distilled to a number of subsidiary issues. Whilst those issues depend partially upon an understanding of the factual background, it is convenient to describe them at the outset of the judgment so as to make clear the parameters of the debate between the parties.

2. [17]

   A useful starting point for the discussion of these issues is to set out contentions advanced by the plaintiff in his written submissions as follows:

   1. (1)

      The Certificate specified, on its face, to have been issued on the basis of “[t]he insurer having wholly accepted liability for the claim”. An affirmative conclusion of that kind on the face of the Certificate was sufficient to make the damages assessed by the Assessor in the Certificate binding on the defendant;

   2. (2)

      At no stage had the defendant asserted that there was an error in the Certificate being issued on the basis of “[t]he insurer having wholly accepted liability for the claim”;

   3. (3)

      At no stage did the defendant make a bona fide assertion of a reduction for contributory negligence. The suggestion that liability was in issue, in that respect, with the effect that the defendant was not bound to pay the damages in the amount specified in the Certificate was a contrivance (“the third contention”); and

   4. (4)

      Any allegation of contributory negligence was abandoned at (or before) the commencement of the Assessment Conference on 9 November 2017, consistent with the failure to cross-examine the plaintiff on any matter that could be said to go to an allegation of contributory negligence (“the fourth contention”).

3. [18]

   In oral submissions, Mr D J Hooke SC, with whom Mr S J Holmes appeared for the plaintiff, distilled the issues to the following:

   1. (1)

      Does the Certificate incorporate the Assessor’s reasons for the assessment? If not, the plaintiff submitted that it must be found on the face of the Certificate that the insurer accepted liability under the claim.

   2. (2)

      If the Certificate incorporated the reasons for the Assessor’s decision, whether the insurer discharged the onus of demonstrating that the Certificate, when read with those reasons, did not have the effect of declaring the defendant had “wholly accepted liability for the claim”?

   3. (3)

      Did the insurer abandon any position for contributory negligence at or before the Assessment Conference of 9 November 2017?

4. [19]

   It should be observed that issues, so refined, broadly reflected the plaintiff’s contentions in his written submissions in [17(1)], [17(2)] and [17(4)] above.

5. [20]

   Whilst the plaintiff did not initially abandon the third contention concerning the bona fides of the defendant’s position vis-à-vis contributory negligence, the plaintiff’s submissions ultimately had that effect. The plaintiff accepted that, if the issue of contributory negligence remained an issue at the end of the Assessment Conference that the issue of bona fides “would not trouble the Court”. The plaintiff maintained a glimmer of the bona fides issue at the end of the hearing, referring to a question as to whether the defendant had “in truth abandoned” contributory negligence but that submission was clarified as being resolved on a particular basis, namely, if Rothman J had not introduced the notion of the bona fides of a defendant insurer in assessing whether liability was put in issue or admitted, in Allianz Australia Insurance Ltd v Anderson [2013] NSWSC 1186 (“Anderson”) at [77], then the defendant would not press submissions concerning the bona fides in the third contention in this matter. Rather the plaintiff would rely on abandonment per se.

6. [21]

   Given the conclusions I will reach as to the judgment in Anderson it will not be necessary, on the basis of that concession, to consider the contention and issue of bona fides raised by the third contention. Rather the Court will address the question of whether the issue of contributory negligence was abandoned per se as raised by the fourth contention.

LEGISLATIVE PROVISIONS

1. [22]

   The objects of the act appear under Pt 1.1 of Ch 1 of the Act. The objects appear in s 5 in the following terms:

2. [23]

   Chapter 4 of the Act is entitled “Motor accident claims”. Part 4.2 deals with the making of claims. Section 72(2) provides as follows:

3. [24]

   Section 74 deals with the form of the notice of a claim. Section 74(1) provides:

4. [25]

   Section 78 provides:

5. [26]

   Part 4.3 of Ch 4 is entitled “Duties with respect to claims”. Sections 80-82 are relevant and are in the following terms:

6. [27]

   The plaintiff placed emphasis upon the provisions of ss 81(5) and 82(7) as illustrating the importance attached to the provisions by the legislature. Reference was also made to s 82(3) whereby, if an offer of settlement is made on the basis of the insurer admits only part of the liability for the claim, the offer is to include details sufficient to ascertain the extent to which liability is admitted.

7. [28]

   Part 4.4 is entitled “Claims assessment and resolution”. Division one contains definitional and application provisions, noting that s 89(1) provides that Pt 4.4 applies to any claim whether or not the insurer admits or denies liability.

8. [29]

   Division 1A of Pt 4.4 deals with document exchange and settlement conferences before claims assessments. Sections 89A, 89B and 89C are extracted below:

9. [30]

   The plaintiff emphasised that s 89C(1) required that, if the parties participated in a settlement conference but the claim is not settled, each party must make an offer of settlement within 14 days after the settlement conference concludes. Section 89C(3) provides that an offer of settlement must include a schedule of damages sufficiently explaining the manner of calculation of the damages to which the offer relates. It was accepted that the provision does not require, in terms, the description of any reduction in damages due to contributory negligence but any such reduction should be apparent between the offers of settlement in the assessment of costs.

10. [31]

    Division 2 of Pt 4.4 deals with the assessment of claims. As earlier noted s 90 deals with the reference of claims for assessments. Section 91 deals with time limit for referring claims and s 92 deals with exemptions from assessment. Section 93 provides that the Principal Claims Assessor makes arrangements to allocate a Claims Assessor.

11. [32]

    Section 94 appears in Div 2 and provides as follows:

12. [33]

    The plaintiff emphasised that s 94(6) had some real significance because it provides that, if the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to a certificate contains an “obvious error”, the Principal Claims Assessor may issue, or approve of the Claims Assessor issuing, a replacement certificate or statement to correct the error.

13. [34]

    Section 94A deals with any assessment of costs by the Claims Assessor and is in the following terms:

14. [35]

    As mentioned the outset of this judgement s 95 is pivotal to the determination of the issues in relation to the summons. Section 95 is in the following terms:

CLAIMS ASSESSMENT GUIDELINES

1. [36]

   The parties placed reliance upon guidelines issued by the Motor Accidents Authority (“MAA”) of New South Wales pursuant to s 69 of the Act with respect to procedures to be followed by Claims Assessors in the assessment of claims under Pt 4.4 of the Act.

2. [37]

   Reliance was placed upon Chapters 16 and 19 of the Act by the defendant and plaintiff, respectively. The relevant component of Ch 16 (cll 16.1, 16.3 and 16.8) provides:

3. [38]

   That relevant component of Ch 19 (in cll 19.1-19.4) were as follows:

FACTUAL BACKGROUND

1. [39]

   The plaintiff made a claim for compensation under the Act by submitting a personal injury claim form dated 23 October 2013.

2. [40]

   On 10 March 2014, the defendant sent a notice under s 81(1) of the Act to the plaintiff’s solicitor stating, inter alia, as follows:

3. [41]

   It was submitted by the plaintiff that that basis upon which contributory negligence was contended was vague and very broadly expressed.

4. [42]

   Rothman J in Anderson described the requirements of a “s 81 offer” as follows (at [51]-[55]):

5. [43]

   By letter dated 27 January 2015, the defendant conveyed an offer of settlement pursuant to s 82 of the Act in the amount of $25,000 in full and final settlement of the claim (“the s 82 offer”). The amount of the offer was broken down to show the various heads of damage of which its total was comprised (the most significant of which was past medical expenses). The letter made no reference to a reduction for contributory negligence. Mr Rewell SC, for the defendants, submitted – “nor does the offer wholly admit liability”.

6. [44]

   Pursuant to s 89A(1) of the Act, the parties participated in a settlement conference on 20 November 2015. By a letter dated 22 February 2017, the defendant conveyed an offer pursuant to s 89C of the Act of $650,000 (“the s 89C offer”). The amount of the offer was broken down to show the various heads of damage of which its total was comprised. The letter made no reference to a reduction for contributory negligence.

7. [45]

   The plaintiff invited an inference that the absence of suggestion that the offer could be reduced by contributory negligence in the s 82 and s 89C offers meant that the defendant had abandoned such a claim. The defendant submitted that they were “simply compensation offers” and that it was hardly surprising contributory negligence was not offered as it was only claimed at 5%.

8. [46]

   On 23 February 2017, the plaintiff lodged by his solicitor the Form 2A. The lodgement was made, in this case, to the MAA.

9. [47]

   Part 7 of the Form 2A is entitled “Details About Liability”. The form inquired in that section whether the insurer had “alleged contributory negligence”. That concept was defined in the form as follows: “the insurer admits liability, fault or breach of duty of care on the part of its insured but says that the claimant, injured person or deceased was also partly at fault” (original emphasis). The first question was answered in the affirmative by Mr Garling making an entry in the form of cross in a box adjacent to that question. A subsidiary question was asked as follows: “what is the amount of contributory negligence alleged by the insurer”. The answer to that question was “5%”. Further, Mr Garling, on behalf of the plaintiff, indicated that he did not consider that he was partly at fault.

10. [48]

    In the Form 2R filed by the defendant's solicitor on 10 April 2017, it was agreed that the information the plaintiff gave, with respect to Pt 7 of the Form 2A was correct.

11. [49]

    The defendant prepared written submissions dated 10 April 2017, which were included with the Form 2R. The reference to contributory negligence in the defendant's written submissions was the following:

12. [50]

    After the Assessor was appointed, a "First Preliminary Conference" took place between him, Mr Garling and Mr Cooper on 4 May 2017.

13. [51]

    As he is required to do, Mr Foggo prepared and distributed, on 4 May 2017, a report of the first preliminary conference.

14. [52]

    Under the heading "Claim Summary", Mr Foggo recorded the position on liability:

15. [53]

    Written submissions dated 6 September 2017 were prepared on behalf of the plaintiff. Those submissions made no reference to contributory negligence. The report does not refer to any position taken by the plaintiff in this respect. There was no request by the plaintiff for particulars of the allegation of contributory negligence.

16. [54]

    As previously mentioned, the claim was allocated a date for an Assessment Conference, which was held on 9 November 2017. The plaintiff was represented by Mr Toomey SC, Mr Morgan of counsel and Mr Garling. The defendant was represented by Mr Renshaw of counsel and Mr Cooper.

17. [55]

    There is no transcription of the Assessment Conference.

18. [56]

    The defendant submitted that the allegation of 5% contributory negligence was maintained throughout the case management process.

19. [57]

    The plaintiff’s solicitor, Mr Garling, recalled Mr Renshaw saying to the Assessor, "I don't wish to make any submissions in relation to the issue of contributory negligence".

20. [58]

    Senior Counsel for the plaintiff at the Assessment Conference, Mr Toomey SC, recalled Mr Renshaw saying to the Assessor at the commencement of the Assessment Conference, "I don't wish to say any fining about contributory negligence; you've seen the statement of the driver". The "statement of the driver" to which Mr Renshaw referred was the statement of the driver of the vehicle insured by the defendant, namely, Mr Jarrett Hadid, dated 4 February 2014, in which Mr Hadid said as follows:

21. [59]

    Junior Counsel for the plaintiff at the Assessment Conference, Mr Morgan, recalled the Assessor asking Mr Renshaw, "What would you like to say about contributory negligence?". To which Mr Renshaw replied, "We don't wish to say anything".

22. [60]

    The defendant's solicitor, Mr Cooper, recalled Mr Renshaw saying the following to the Assessor, "I have nothing further to add. We rely on the statement of the driver and the evidence before you and don't wish to add anything further".

23. [61]

    Ultimately, the parties agreed the Court should proceed upon an agreed fact as to the submissions from Mr Renshaw for the defendant vis-à-vis contributory negligence as follows: “I do not want to say anything other than which has been put in writing” and Mr Renshaw made a reference to the driver’s statement.

24. [62]

    There was no cross-examination of the plaintiff regarding the issue of contributory negligence during the Assessment Conference.

25. [63]

    Prior to the issuing of the Certificate, the defendant made a further written submission dated 20 December 2017. The submission concerned a further statement provided on behalf of the plaintiff concerning non-economic loss. The submission advanced by the defendant was in lieu of the matter being relisted for the purpose of the witness being cross-examined. The plaintiff contended in a chronology provided to the Court that no submission were made as to contributory negligence in this submission although it is unclear why a submission going to that issue would have been applicable having regard to the subject matter of that submission.

26. [64]

    The Assessor also issued reasons for decision under a heading “Reasons for Decision – General Assessment” (“the Reasons for Decision”). Under the sub-heading “Introduction”, the Assessor stated as follows:

27. [65]

    The third heading in the reasons for decision is entitled “Contributory Negligence”. Under that heading, the Assessor stated the following:

28. [66]

    That heading is followed by a series of headings in the Reasons for Decision entitled: “Background”; “Additional Material Provided at the Assessment Conference”; “Additional Material Provided after the Assessment Conference”; “Evaluation”; “Non Economic Loss”; “Past Treatment Expenses”; “Future Treatment Expenses”; “Past Loss of Earning Capacity”; “Future Loss of Earning Capacity”; “The Claims for Domestic Assistance”; “Assessment of Damages Summary”; and “Costs and Disbursements”.

29. [67]

    As to the latter two headings, under the heading “Assessment of Damages Summary”, the following appears (the amounts for each head of damages were redacted in the evidence):

30. [68]

    Under the heading, “Costs and Disbursements” the assessor stated as follows:

31. [69]

    By email from his solicitor dated 22 December 2017, the plaintiff informed the solicitor for the defendant, as earlier mentioned, that he accepted the assessment of damages specified in the Certificate, pursuant to s 95(2) of the Act.

32. [70]

    By letter dated 8 January 2018, the defendant's solicitor wrote to the plaintiff’s solicitor in the following terms:

33. [71]

    The defendant has not paid the damages in the amount awarded by the Assessor.

Did the Certificate incorporate the Reasons for Decision?

1. [72]

   The plaintiff contended, in this respect, as follows:

   1. (1)

      The incorporation of the Reasons for Decision into the Certificate or the importation of the content from the Reasons for Decision into the Certificate is, as a matter of statutory construction, not available. Unless something is done to set aside, quash or correct the Certificate that document stands as “the record” for the purposes of s 95 and gives rise to the rights and obligations of the parties under that provision as the “operative instrument”.

   2. (2)

      Section 94(4) and (5) of the Act both distinguish between the Certificate and the Reasons for Decision and treat them disjunctively.

   3. (3)

      The reference to “attach a brief statement to the certificate” in s 94(5) merely emphasises there are two separate documents. The attachment is merely for convenience in an “effort to avoid one going without the other”. The Parliament could have but expressly did not provide the Certificate shall incorporate brief reasons for the assessment.

   4. (4)

      Section 95 creates rights and obligations solely by reference to the Certificate. Section 95(2)(b) provides that the Certificate triggers the time for a claimant’s acceptance of the assessment.

   5. (5)

      Whilst Pt 4.4 of the Act does not contain a provision stating that the Certificate is conclusive evidence of the matters it conveys, s 94(6) is to the same effect in that it provides that errors may be corrected on application to the Principal Claims Assessor (and remedies are available under s 69 of the Supreme Court Act 1970 (NSW)).

   6. (6)

      The judgment of Leeming JA in Pham v NRMA Insurance Ltd (2014) 66 MVR 152; [2014] NSWCA 22 (“Pham”) does not avail the defendant on this issue as Leeming JA was dealing with what formed part of the record for the purposes of judicial review proceedings. So to was Lord Cairns LC in Overseers of the Poor of Walsall v London and North Western Railway Company [1878] 4 AC 30 (“Overseers of the Poor”) at 40. Pham should be understood in the context of Leeming JA’s reference to the certificate in Pham in which the following was stated: “Details of the assessment and full reasons for this decision” being attached to the Certificate. By this, Leeming JA preserved the distinction between the Certificate and the reasons as was emphasised by his Honour, in the final sentence of [27] of Pham. The question considered by His Honour in that context was of what constituted the record in a case concerning error of law on the face of the record and not whether the reasons were part of the certificate.

   7. (7)

      Finally, the judgment of Leeming JA in Pham was obiter and not binding (whilst not put as such, it may be presumed that if the reasons of his Honour were contrary to those proposed by the plaintiff they should not be followed).

2. [73]

   I do not consider the submissions of the plaintiff as to the judgment of Leeming JA (with whom Tobias JA agreed) in Pham may be accepted.

3. [74]

   Pham concerned a disputed claim for damages under the Act where the defendant insurer had admitted liability. Those damages were assessed by a Claims Assessor.

4. [75]

   The insurer brought proceedings for judicial review pursuant to s 69 of the Supreme Court Act alleging the Claims Assessor made errors of law that vitiated her decision which were recorded in a brief statement of reasons pursuant to s 94(5) (see at [3], [12] and [16] per Macfarlan JA and [27] per Leeming JA).

5. [76]

   The Claims Assessor’s decision was set aside at first instance essentially upon the basis that there was no evidence before the Claims Assessor to sustain her decision so far as it concerned future economic loss (and that the requirements of s 126 of the Act were not complied with). That determination was reversed on a number of bases including that the trial judge had regard to evidence not tendered at the hearing before him.

6. [77]

   Leeming JA agreed with Macfarlan JA that the appeal should be allowed substantially for the reasons given by Macfarlan JA, but also for additional reasons. The fourth of those reasons (at [27]) attracted attention here and is extracted for the purposes of analysis below:

7. [78]

   The judgment of Lord Cairns LC in Overseers of the Poor at 40, relied upon by Leeming JA (and cited in the above extract), is extracted below:

8. [79]

   The question being considered by Leeming JA in Pham at [27] was whether the Claims Assessor’s reasons were caught by the provisions of s 69(4) of the Supreme Court Act; a proposition his Honour recognised as contentious.

9. [80]

   In that sense, his Honour was, as submitted by the plaintiff, concerned with whether the Claims Assessor’s reasons formed part of the record for the purposes of judicial review. However, that submission overlooks the fact that the focus of his Honour’s attention was upon why it was unnecessary to rely upon s 69(4) of the Supreme Court Act in the case of the Claims Assessor’s reasons given under s 94(5) of the Act. It is that part of his Honour’s analysis, which directly bears upon the question now under consideration.

10. [81]

    I accept the submission advanced for the defendant that, where Leeming JA referred to the Certificate having “incorporated her reasons” his Honour was using the word “incorporated” advisedly, by reference to Overseers of the Poor, namely, the incorporation in the Certificate of the Claims Assessor’s reasons. The Certificate issued under s 94(4) of the Act is analogous to or is a “speaking order” which may be examined by a Court in the sense that the Court may examine the circumstances that gave rise to the Certificate. Thus, in my view, Leeming JA concluded that, in the circumstances referred to by his Honour, the Claims Assessor’s reasons issued pursuant to s 95(5) of the Act were incorporated in the Certificate by the attachment of those reasons to the Certificate as required by that provision. In doing so, the reasons become analogous to a speaking order where the bases for the certification become part of the Certificate itself.

11. [82]

    The final sentence of [27] of Pham constitutes, in my view, no more than a reference to authority supportive of the conclusions made in the balance of the paragraph.

12. [83]

    There was an argument that that passage of his Honour’s remarks was obiter. That may be doubted but, in any event, and with respect, I agree with them. Given the consideration concerned equivalent provisions of the Act, I consider they should be applied in the present circumstances.

13. [84]

    Rather than s 95(5) being demonstrative of a distinction between the Certificate and the reasons attached to the same, I consider the provisions, when seen in the light of the foregoing analysis, are constructive of a conclusion that the Certificate given under s 94(4) will incorporate the reasons given under s 94(5) when those reasons are, in accordance with the provisions of s 94(5) attached to the Certificate. Here the Assessor attached the reasons to the Certificate and he noted that he was doing so on the face of the Certificate. The fact that the Assessor actually made his reasons part of his finding on the Certificate makes for an a fortiori conclusion.

14. [85]

    Section 94(6) warrants no different conclusion; on one view, it is consistent with this analysis as it permits correction of both the Certificate and the reasons. The word “or” in the context it is used in a s 94(6) is conjunctive in the sense that it means both the Certificate and reasons may be corrected.

15. [86]

    The provisions in s 95(2)(b) are neutral to the question of construction.

16. [87]

    In my view, the Certificate incorporated the Assessor’s Reasons for Decision.

Did the Assessor find that the Defendant had wholly admitted liability?

1. [88]

   Before embarking upon this question, it is useful to expand upon the observation made at the beginning of this judgment.

2. [89]

   The defendant contended that the assessment of damages by the Assessor is not binding upon it because it did not wholly accept liability by maintaining contributory negligence.

3. [90]

   In Lee v Yang, Giles JA found that contributory negligence can be readily regarded as going to liability and, in that context, it is open to an insurer to not accept an award of damages of the insurer contesting liability with a contributory negligence. In those circumstances s 95(2)(a) is not satisfied and the assessment by the Assessor is not binding.

4. [91]

   The plaintiff contended that in Lee v Yang, Giles JA found (at [26]) it was open for the insurer to contest the assessment of damages only if the insurer contested liability “as found by the assessor”.

5. [92]

   The plaintiff first contended that the defendant’s liability was not found by the Assessor.

6. [93]

   It was contended (partly by way of connection to the plaintiff’s bona fides contention) as follows:

7. [94]

   It was also contended that the defendant did not “contest” any aspect of liability at the Assessment Conference and it was not now open to contest any aspect of liability arising from the Certificate.

8. [95]

   As to this contention, the plaintiff further contended:

9. [96]

   It was submitted there was an obvious inconsistency between the Certificate and the Reasons for Decision, although the expression of a view by the Assessor did not mean he determined the issue of contributory negligence. He was expressing dissatisfaction as to the approach taken by the defendant.

10. [97]

    If the defendant wished to assert that the Certificate is not what it says on its face, then the onus of establishing the same rests on the defendant as the insurer. The Assessor did no more than, in effect, find the issue of contributory negligence abandoned. This is what he meant by the words “I find that the claimant is entitled to a full award of damages without any deduction for contributory negligence”.

11. [98]

    In my view, the Reasons for Decision reflect the outcome of an adjudication process by the Assessor over the question of contributory negligence and do not demonstrate the Assessor perceived the issue as having been abandoned by the defendant. His pejorative remarks were only directed to the merit of the defendant’s position.

12. [99]

    The use of the words “I find” in the expression “Accordingly, I find that the claimant is entitled to a full award of damages without any deduction for contributory negligence” are clearly consistent, when considered alone or with the balance of his reasons, with the Assessor having adjudicated upon and determined an extant issue of contributory negligence.

13. [100]

    Paragraph 5 of the Assessor’s reasons is not consistent with the Assessor merely expressing disapproval at the defendant’s conduct. He makes a finding on the evidence. In the context used, the word “find” means to disclose the outcome or hold or adjudge.

14. [101]

    I agree with the defendant that where the Assessor stated in his reasons “there is no evidence before me that the claimant contributed to the cause of the motor vehicle accident”, the Assessor does not find that there was literally no evidence but rather that the evidence did not support a finding of contributory negligence. The Assessor had the insured driver’s statement and rejected the evidence.

15. [102]

    It is true the Assessor stated at the outset of para 5 that “Counsel for the insurer advised that no submissions would be made in respect of this issue”. However, the Assessor did have a written submission from the defendant (as Mr Renshaw’s submission confirmed) and hence, he must be taken as referring to there being no further submissions.

16. [103]

    Finally, the Assessor refers to “0” deduction for contributory negligence in his final assessment, consistent with him having determined that, although sought by the defendant, no such reduction would be made in that respect.

17. [104]

    The same factors support the conclusion that the Assessor did not consider the issue of contributory negligence had been abandoned. It is inconceivable an experienced Claims Assessor would make a finding as to contributory negligence in that manner if the issue had, in fact, been abandoned.

18. [105]

    Upon those conclusions there is an obvious tension between the reasons given by the Assessor for the Certificate and what appears on the face of the Certificate in that part of the Certificate in which it is stated the defendant had accepted liability for the claim.

19. [106]

    The reconciliation of that tension should properly result, in my view, in the conclusion that the heading on the Certificate constituted an error in the senses of a mistake whether that was, as the defendant proffered, due to the use of a pro forma (as illustrated by the entry at the bottom of the first page) or some other reason.

20. [107]

    There are two reasons for that approach. First, the Assessor attached the reasons to the Certificate as part of a finding he made under the Certificate. Those reasons reflected a conscious consideration of the issue of contributory negligence. His reasons not only express that the defendant had maintained contributory negligence but went further to discuss why that proposition had not been established on the evidence.

21. [108]

    Secondly, the Certificate has a further contraindication, namely, the Assessor’s findings as to costs, the third finding on the Certificate.

22. [109]

    The amount awarded is redacted but presumably corresponds to his assessment of costs in his Reasons for Decision.

23. [110]

    In that respect, the defendant’s submission, which did not seem to be the subject of dispute, may be accepted:

24. [111]

    Those conclusions strongly weigh against the grant of the declaration insofar as the declaration was sought upon the basis that the Certificate certifies not only an assessment of damages (accepted by the plaintiff) but that liability was wholly accepted by the defendant. The Reasons for Decision should result in the conclusion that the Assessor made determinations, which arose out of the Assessment Conference, upon the basis that liability was contested vis-à-vis contributory negligence.

25. [112]

    It is difficult to see how the availability of the defendant to seek a correction under s 94(6) could enliven the discretion of the Court to grant the declaration as the correction could, on my findings, only operate in the manner found in this judgment vis-à-vis the entry as to liability on the Certificate.

Was the Allegation of Contributory Negligence Abandoned at or by the Commencement of the Assessment Conference?

1. [113]

   Whilst put partially in the contest of liability, the submission of the defendant as to abandonment were neatly encapsulated in the following written submission by the defendant:

2. [114]

   Further, it was submitted:

3. [115]

   It was contended by the defendant that Mr Renshaw’s submissions to the Assessor were consistent with him adhering to his instructions and his primary duty not to advance unmeritorious arguments. The driver’s statement could not have sustained a case for contributory negligence.

4. [116]

   This issue needs to take place having regard to the scheme of the Act that is helpfully described in the judgment of Giles JA in Lee v Yang at [1]:

5. [117]

   As earlier mentioned, it was submitted by the plaintiff that the judgment of Rothman J in Anderson stood for the proposition that the Court may, in considering whether an insurer had admitted liability for the purposes of ss 94(1) and 95(2)(a), inquire into the bona fides of any communication (or conduct) by the insurer that liability is not wholly admitted – in this case that the insurer maintained there was contributory negligence by the plaintiff. That submission fixed upon the observations by his Honour at [77].

6. [118]

   As this issue goes to whether any issue as to bona fides or the genuineness of the defendant’s position was pressed in support of the declaration sought by the defendant, those contentions should be firstly addressed in considering this last issue.

7. [119]

   His Honour stated at the outset of his judgment that the question for determination was whether an assessment of damages made by a Claims Assessor as stipulated in a certificate was binding on the insurer. The answer to that question depended upon resolution of a further issue, namely, whether the insurer had admitted liability under the claim made by the defendant for the purposes of s 95(2)(a) of the Act. His Honour found the insurer had admitted liability (Anderson at [92]) and found for the first defendant, Ms Anderson.

8. [120]

   His Honour recorded that the issue had little to do with the details of the motor accident involving the Ms Anderson but concerned the operation of ss 94 and 95 of the Act and “a proper construction of the statements and conduct” of the insurer (at [2]).

9. [121]

   His Honour encapsulated his reasons for judgment as follows (at [88]):

10. [122]

    That conclusion may be explained by reference to the following aspects of the judgment in Anderson:

    1. (1)

       The insurer issued a s 81 notice. The notice issued stated that the insurer admitted a “breach of duty of care” in relation to the circumstances of the accident and further stated “we reserve our right to withdraw our admission and re-assess our position, at a later date, if further information is received that would cause us to alter our view” (at [5]).

    2. (2)

       The insurer submitted that it had admitted a breach of duty of care but not liability. His Honour found that an admission of a duty of care but a denial of a breach of that duty was a denial of liability (at [54]). The insurer had patently not admitted liability but admitted one aspect of liability.

    3. (3)

       The insurer at all stages had conceded damage had been suffered as a result of the breach of duty which was admitted (at [64]). There was not only an admission of breach of duty of care but an admission that damage arose as a consequence of that breach (at [82]).

    4. (4)

       By s 81(4), the insurer was permitted to admit liability, where a denial had been earlier made, but not to deny it, where an admission had been made (at [59]).

    5. (5)

       In the subsequent communication and conduct by the insurer after the s 81 notice it admitted liability. The insurer had made an admission by the Form 2R filed by the insurer. His Honour recorded that, in in the Form 2R, the insurer stated that liability was not in issue.

    6. (6)

       The report issued by the Claims Assessor after the Preliminary Conference confirmed that admission, although a final report by the Claims Assessor indicated there was a “causation” issue which would be canvassed by the insurer (see at [13]-[17]).There was no dispute by the insurer as to those reports.

    7. (7)

       His Honour thus observed that, by its comments, statements and conduct the insurer admitted liability (at [58]).

11. [123]

    It was in this context that his Honour distinguished the circumstances in Anderson from those in Lee v Yang as follows (Anderson at [77]):

12. [124]

    In my view, no part of his Honour’s findings was predicated upon an assessment of the bona fides of any statement made or position advanced by of the insurer in that case. Rather, his Honour was concerned with what the objective facts showed vis-à-vis any admission. The reference to whether there was “in truth” liability should be read as being the equivalent of his opening statement that he was concerned with the “proper construction of the statements and conduct” of the insurer; those statements and comments being reflected in the actual text of relevant communications or the insurer’s recorded response to communications which stated there was no issue as to liability.

13. [125]

    So far as the various steps required to be taken with respect to a claim were concerned, his Honour concluded the insurer expressly agreed there was no dispute as to liability or that it acquiesced in statements or reports to that effect. As to the distinction sought to be drawn by the insurer between its concession, as to a breach of duty of care and liability, his Honour found all of the elements of liability were present in the admission made by the insurer.

14. [126]

    Anderson is not authority for the bona fides of an insurer’s conduct or statements as to liability being available for consideration in the course of assessing whether an insurer had accepted liability for a claim for the purposes of ss 94(1)(a) and 95(2)(a) of the Act. It is in that light I turn to the resolution of the third issue in this matter.

15. [127]

    The plaintiff submitted that, if the allegation of contributory negligence was “never truly made”, then the defendant subsequently abandoned that position and wholly admitted liability.

16. [128]

    The determination of whether the defendant abandoned contributory negligence based on the statements and conduct of the defendant may be examined in two parts. First, conduct prior to the Assessment Conference and then conduct at the Assessment Conference.

17. [129]

    In the plaintiff’s written submissions, the plaintiff challenged the genuineness of the s 81 notice. That notice, amongst other aspects of the defendant’s conduct, were described as a “sham”.

18. [130]

    In the light of the above analysis of the judgment in Anderson and the concessions made on behalf of the plaintiff, in that respect, that contention may be put aside, save to mention that the defendant clearly raised contributory negligence in the notice. By that notice the defendant thereby denied liability insofar as contributory negligence was pleaded.

19. [131]

    It was then suggested the ss 82 and 89C offers by the defendant represented an abandonment, presumably by omission, as the offers made no mention of contributory negligence in those offers. Thus, the plaintiff relied upon, in that respect, a failure to incorporate in the offers any reference to contributory negligence, which must result in that conclusion the defendant abandoned the issue.

20. [132]

    I do not agree. There is no warrant in inferring that the defendant had abandoned its position regarding liability as a result of those omissions for three reasons. First, there was no statutory obligation to make a statement regarding contributory negligence or admission of liability per se under ss 82 or 89C. Secondly, the defendant conveyed a simple offer of compromise as contemplated by those provisions. Thirdly, and most significantly, the solicitor for the plaintiff recognised in the Form 2A that the claim for contributory negligence by the defendant was extant.

21. [133]

    The defendant’s stated position on contributory negligence in the s 81 Notice did not change in the defendant’s written submission to CARS or by the report of its position in the Preliminary Conference.

22. [134]

    Two considerations arise from that conclusion. First, in order for the plaintiff to demonstrate abandonment it must be shown that abandonment occurred during the hearing of the Assessment Conference. Secondly, this matter sits in contrast to Anderson where the insurer had not disputed liability in either the Form 2R or the Preliminary Conference.

23. [135]

    The plaintiff submitted that the conduct of Mr Renshaw was such that, in Court proceedings he would have been taken by the Court to have abandoned any denial of liability by the insurer; he was not really keeping alive the issue of contributory negligence and, consistent with his professional obligation the Court, Mr Renshaw had not advanced a “baseless argument”. That the argument was baseless is confirmed by the absence of cross-examination of the plaintiff and a failure to articulate the basis for the claim of negligence by the plaintiff beyond an ambit statement of unsafe driving. Further, the reference to the driver’s statement did not elucidate the basis for the claim.

24. [136]

    This contention meets three immediate difficulties.

25. [137]

    The first is the earlier finding of the Court, namely, that the Assessor made a determination as to contributory negligence by his finding rejecting the defendant’s contention in that respect. Thus, the Assessor adjudicated the issue. His approach, I have found, was inconsistent with any conclusion that the defendant had abandoned contributory negligence.

26. [138]

    Secondly, it was common ground Mr Renshaw relied upon his written submissions, which expressly conveyed the defendant’s position as to contributory negligence. There was, in fact, no inconsistent position by the defendant as to the question of contributory negligence from the making of the claim by the plaintiff under s 72 of the Act.

27. [139]

    Thirdly, whilst there is no transcript of the Assessment Conference, what is known is that Mr Renshaw did not expressly abandon contributory negligence.

28. [140]

    What remains then is the plaintiff’s contention that, when properly understood, Mr Renshaw should be taken to have abandoned the claim in deference to his duties as counsel not to pursue “baseless arguments”.

29. [141]

    It should be at once recalled that the relevant issue here is not merit of the defendant’s case on contributory negligence. The question is not whether Mr Renshaw should have abandoned that position based upon the Court’s assessment that there was no basis to find contributory negligence by the plaintiff (consistent with an ethical obligation held by Mr Renshaw) but whether, in fact, he did, implicitly, take that step, notwithstanding the consistent maintenance of the defendant’s position as to contributory negligence since the inception of the claim. Further, the plaintiff’s submission, in this respect, had the hallmarks of his earlier submissions as to bona fides in that they required the Court to make qualitative assessments as to the defendant’s case as put by its counsel.

30. [142]

    In any event, I do not consider the plaintiff’s contentions in that respect may be accepted.

31. [143]

    The three immediate difficulties faced by the plaintiff’s contention, as described above, are significant contradictors to the plaintiff’s case in this respect.

32. [144]

    However, there are other factors both contextual and substantive in nature which point against the plaintiff’s case.

33. [145]

    I agree with the submission advanced by the defendant as to the relevance of Ch 16 of the Claims Assessment Guidelines, to which I now turn.

34. [146]

    The conduct of counsel needs to be assessed in circumstances where the procedure adopted at the Assessment Conference is largely inquisitional in nature and where the Assessor is given wide power over the conduct of the proceedings which are informal. The presentation of cases in this context may be shortened or propositions put in largely perfunctory terms, even though, in this case, the Assessor expressed criticism of the defendant’s position on contributory negligence.

35. [147]

    The Court does not have full account as to how Mr Renshaw’s submissions arose and whether there was any other exchange with the Assessor, but the common account of Mr Renshaw’s submissions was consistent with submissions being advanced in such an environment (particularly where, as I have noted, the insurer has at no earlier stage abandoned contributory negligence).

36. [148]

    There are further observations which may be made as to why counsel had not abandoned his client’s position as to contributory negligence in the light of the circumstances in which counsel’s submissions were put.

37. [149]

    It is one thing to offer no submission in support of a pleading or contention, it is quite another to rely on a prior written submission (consistent with the maintenance of the contention) and evidence, even if, as the plaintiff submitted, both were relatively weak. Counsel’s submissions may also be understood as demonstrative of recognition that his case, in that respect, may be unsuccessful rather than an abandonment per se.

38. [150]

    Further, the Assessor’s statement that there was no evidence before him as to how the plaintiff contributed to the cause of the accident needs to be understood, in light of Mr Renshaw’s submissions, relying upon the evidence of the driver represented by the defendant. That evidence may have been properly doubted as to its veracity or the weight to be given to it but that was the evidence of the interest represented by the insurer which was before the Assessor and did not amount, in itself, to an abandonment.

39. [151]

    For the reasons given above, I do not consider that the statements made by or conduct of the defendant at the Assessment Conference supports a conclusion that the defendant accepted liability at the Assessment Conference.

CONCLUSION

1. [152]

   The plaintiff has not established that the declaration he seeks should be granted by the Court. Whilst the Certificate incorporated the Reasons for Decision and there was a discrepancy between the opening entry on the Certificate and the Reasons for Decision, I have found that, when read with the Reasons for Decision, the Certificate should be understood as not conveying the defendant wholly accepted liability for the claim. Further, I do not consider that the defendant abandoned contributory negligence at any point including in the Assessment Conference.

2. [153]

   Thus, the assessment by the Assessor of damages is governed by s 95(1) as the defendant did not accept liability for the claim with no reduction for contributory negligence.

3. [154]

   It follows that s 95(2)(a) was not satisfied and the Assessor’s award is not binding on the defendant.

4. [155]

   Further, it follows that the order for relief sought in prayer 2 of the summons must be refused.

ORDERS

1. [156]

   The Court orders:

   1. (1)

      The summons filed by the plaintiff on 6 February 2018 is dismissed; and

   2. (2)

      The plaintiff shall pay the defendant’s costs as agreed or, in default of agreement, as assessed.