Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55

Leeming JA

3. Subsection 94(5) of the Motor Accidents Compensation Act 1999 (NSW) required the Assessor to “attach a brief statement to the certificate, setting out the assessor’s reasons for the assessment”. Further, cl 18.4.3 of the Claims Assessment Guidelines imposed an obligation that the statement of reasons set out, “as briefly as the circumstances of the assessment permit … the reasoning processes that lead the Assessor to the conclusions made”. It was common ground that s 106(1) of the Act made the Claims Assessment Guidelines binding upon the Assessor. For completeness, it may be noted that neither party suggested that the obligations imposed by the Act and the Guidelines were inconsistent.
4. Plainly enough, there may be a tension between the obligation to explain and the obligation to be concise. That is a familiar tension (for example, pleadings must “contain only a summary of the material facts on which the party relies”, and be “as brief as the nature of the case allows”: see now UCPR Pt 14 rr 14.7 and 14.8). The resolution of the competing obligations imposed by s 94(5) and cl 18.4.3 ought not to result in an unduly demanding burden of providing reasons. It is to be borne in mind that the objects of the Guidelines are “to provide a timely, fair and cost effective system for the assessment of claims” and “to assess claims and disputes fairly and according to the substantial merits of the application with as little formality and technicality as is practicable and minimising the cost to the parties” (cl 1.14), and the obligation to set out the reasoning process is to be construed accordingly. The obligation thereby imposed is less than that imposed on courts: see eg Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 38 NSWLR 302 at [53]-[59]; Pham v NRMA Insurance Ltd [2014] NSWCA 22; 66 MVR 152 at [29]-[31]. Further, as Basten JA’s judgment in Kerr indicates, by reference to authority, the nature of the Assessor’s task may mean that aspects are insusceptible of any detailed articulation of reasons.
5. Applying that low threshold, it suffices in this appeal to focus upon the damages awarded for past care. The only paragraph in a lengthy statement of reasons which purports to do more than reciting background, evidence or competing submissions on that issue was paragraph 44:

“Taking into account all the expert opinions as well as the opinions of both Assessor Davidson and Dr Maniam (who considered that the need for care four hours a day two days a week was continuing at the time he saw her) and making some allowance for the deduction of time spent on childcare and with the assistance of the summary recommendations of Assessor Davidson at page 35 I allow an amount of 6.76 hours per week for past gratuitous care from the date of the accident to date of assessment as reasonable and necessary.”

9. …But to say merely that all of the conflicting evidence was taken into account is, in the facts of this case, insufficient. The matter may be tested against the parties’ rights of review: how are the parties to know whether the reasoning is affected by judicially reviewable error of law?

Emmett AJA:

34.  In making an assessment of the future need for domestic services, precision is almost impossible. Such a question is largely one of impression: see Wener v Krahe [2002] NSWCA 168 at [27]. Nevertheless, at least in relation to assessing past needs, the reasons given by a claims assessor must explain the actual path of reasoning by which the claims assessor in fact arrives at the opinion that the claims assessor in fact forms on the question. The statement of reasons must explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law: see Wingfoot Australia Partners Pty Limited v Kocak [2013] HCA 43; 252 CLR 480 at [55].

42. …It is not possible to discern from the Assessor’s reasons the actual path of reasoning by which he arrived at the result stated in the Assessment. It does not explain the actual path of reasoning in sufficient detail to enable a court to determine whether his decision does or does not involve an error of law. The Assessor did not comply with the requirement of s 94(5) that he set out his reasons for the Assessment. He did not comply with s 106 in so far as the Assessment was subject to the provisions of clause 18.4 of the Guidelines in requiring that his statement of reasons attached to his certificate set out, albeit as briefly as the circumstances of the assessment permit, the reasoning process that led the Assessor to the conclusions made.
43. A fine line is sometimes to be drawn between the grant of relief under s 69 of the Supreme Court Act by reason of inadequate reasons (as in this case), and what is ultimately, in substance, merits review. The grant of relief in a case such as this should not be taken as an encouragement to challenge administrative decisions of the nature of that made by the Assessor in this case. As the Primary Judge observed, quite correctly, the reasons of a claims assessor should not be scrutinised over zealously. While the reasons required are not necessarily those which may be expected of a judge, the reasons must demonstrate the path of reasoning that leads the claims assessor to a conclusion as to the amount of damages that a court would be likely to award. In order to make an assessment of the amount of damages that a court would be likely to award, a claims assessor must have regard to the reasoning process that the court would be required to adopt in awarding damages. Again, a fine line is to be drawn between the reasons that might be given by a court for making an award and the reasons of a claims assessor for making an assessment for the amount of damages that a court might be likely to award. The former is a more burdensome task than the latter. However, the Assessor did not in this case, satisfy the latter burden. That is the conclusion reached by the Primary Judge.