Allianz Australia Insurance Limited v Kerr  NSWSC
Supreme Court of NSW – Justice Hislop
The opportunities for successfully challenging a CARS Assessment
The insurer sought to set aside the CARS decision of Assessor
Cowley. The four grounds of error submitted by the insurer were
that the Assessor:
rejected a causation finding of a MAS Assessor and either found
the injury causally related to the subject accident or failed to
state reasons on the issue;
awarded a buffer of $200,000 without explanation, reasoning or
attempt to comply with the s 126 criteria;
awarded past care without addressing the statutory threshold
and/or failed to state reasons for the award;
allowed future commercial assistance failing to record reasons
regarding the level or to identify or apply the principles in
Miller v Galderisi1.
The Court's findings can be summarised as follows:
The Assessor did not implicitly disagree or reject the
causation findings of MAS. The reasons given by the CARS Assessor
The Assessor complied with the requirements of s 126. There was
no comment specifically on the submission that the reasons were
The Court noted that while the medical evidence did not support
a need greater than the threshold for one period of past care
– there was evidence of a "credible witness".
It appears that the claims assessor did not precisely identify (for
the second period of past care) the hours provided or the hourly
rate allowed. The Court considered that it was apparent from the
reasons for decision that the Assessor was "mindful of the
applicable threshold and the need to meet it".
The decision of Miller v Galderisi does not establish
any principle of law and could be distinguished on the facts of the
The Court's discussion of an Assessor's obligation to
state reasons highlighted the following cases, legislation and
Minister for Immigration and Ethnic Affairs v
"The reasons of an
administrative decision maker...are not to be construed minutely
and finely with an eye keenly attuned to the perception of
Insurance Australia Ltd v Helou3:
"The obligations of an
assessor to give reasons is qualified by the requirement, in s
94(5) MAC Act, that it be a "brief statement" ... When,
for the reasons I have already given, the assessor has performed
the task required of him to "assess the damages", and
when his reasons identify the various heads of damage that he has
awarded, and how he has arrived at the numbers attributed to each
of those heads of damage, his statutory obligation to give reasons
has been performed."
The Claims Assessment Guidelines and the object of the Act to
minimise formality, technicality and promote early resolution were
referred to specifically.
The mere suggestion or possibility that a claimant might lose
his or her job may be sufficient to ground a buffer award for
In assessing each head of damage a CARS Assessor does not need
to precisely identify the figures used to calculate the sum if it
can be gleaned from the surrounding reasons that the Assessor has
had regard to the law, including the statutory thresholds.
This decision is another example of the difficulty insurers
face in establishing inadequacy of reasons and challenging the
outcomes of CARS Assessments.
1  NSWCA 353
2 (1989) 169 CLR 379
3  NSWCA 240
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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