Supreme Court of New South Wales1
In Brief
- A claims assessor denies the parties procedural fairness by taking into account his or her own research into an issue without giving the parties an opportunity to consider the information obtained and adduce evidence and/or make submissions.
Background
The Supreme Court handed down its decision in Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW on 30 July 2010.
The claimant was injured in a motor accident on 11 July 2006. Her claim was referred to a claims assessor for assessment. A sum in excess of $330,000 was ultimately awarded. Whilst the insurer asserted a number grounds of jurisdictional error by the assessor, the primary challenge was based upon the assessor taking into account information he obtained on Wikipedia, without giving the parties an opportunity to consider the material and make their own submissions.
The assessor stated in his Reasons that he had consulted Wikipedia to inform himself as to the alleged meaning of the conditions `reflex sympathetic dystrophy' and `complex regional pain syndrome'. The insurer argued that it was denied procedural fairness because the assessor took into account the information on Wikipedia without first raising it with the insurer and therefore depriving it of the opportunity to adduce relevant evidence and/or making submissions on the new material.
During the assessment of the claim, no expert or other evidence was tendered to explain the nature and implications of the Claimant's RSD or CRPS. The assessor did not ask the parties for assistance in understanding the nature of the condition.
Supreme Court
In the Supreme Court, the claimant argued that by consulting Wikipedia, the claims assessor had conducted some research which was akin to consulting a dictionary to check the meaning of a word. However, at paragraph 21, Barr AJ rejected that submission, as follows:
In addition to finding that the claims assessor used the information he obtained on Wikipedia to assess the claimant's entitlement to damages, Barr AJ accepted the insurer's submission that the information the claims assessor obtained was possibly unreliable. His Honour explained, at paragraph 22, as follows:
At paragraph 25, Barr JA concluded that the insurer had established a denial of procedural fairness, as follows:
Having made this finding, Barr JA set aside the CARS Certificate and remitted the claim to the PCA for allocation to a different assessor to re-assess the claim.
Implications
The decision in Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW provides a useful example of the kind of error which can result in a successful administrative law challenge in the Supreme Court.
It is notoriously difficult to demonstrate administrative law error in the manner a claims assessor considers the evidence presented by the parties and forms conclusions. In Insurance Australia Limited v Helou [2007] NSWSC 1451, the Supreme Court made it clear that neither an allegation of generosity nor an allegation that a claims assessor misinterpreted the medical evidence amounts to jurisdictional error. These kinds of errors are made `within jurisdiction' and can not, therefore, be challenged.
By contrast, what occurred in Australian Associated Motor Insurers Ltd v Motor Accidents Authority of NSW denied the insurer procedural fairness. The claims assessor had jurisdiction to assess damages. He did not have jurisdiction to conduct his own research – and draw conclusions from that research – without advising the parties of the research he conducted and giving the parties an opportunity to respond to it. By failing to do so, the claims assessor denied the parties an opportunity to be heard.
1 Barr AJ
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