Australia: Assessor fails to provide adequate reasons for damages assessed

Curwoods Case Note
Last Updated: 20 June 2012
Article by Elizabeth Doan

CIC Allianz Australia Limited v Daniel Luke McDonald & Ors [2012] NSWSC

Supreme Court of New South Wales1

In Brief

  • An Assessor is obligated to provide adequate reasons regarding future economic loss.
  • Non-compliance of s 126 of the Motor Accidents Compensation Act (the Act) may result in the certificate being set aside and reassessment with a different assessor.


The matter arises out of an administrative law review of an assessment of damages by CARS Assessor Goudkamp.

The claimant alleges he sustained a cervical injury causing persistent headaches and pain and stiffness in his neck as a result of a motor vehicle accident. At the time of the accident, the claimant was employed as a carpenter.

On 1 December 2010, Assessor Goudkamp handed down his assessment of damages in the amount of $535,000.

The insurer took issue with the assessment of damages and sought judicial review, alleging that the Assessor:

  1. erred in failing to provide adequate reasons after disregarding the insurer's accountants' report;
  2. failed to provide adequate reasons when assessing future economic loss;
  3. erred in failing to provide adequate reasons after disregarding medical evidence; and
  4. erred in the assessment of future commercial care.

The Judgment

The matter was heard by his Honour Justice Hidden on 8 April 2011. His Honour handed down his judgment on 13 June 2012.

The judgment as a whole provides a useful summary of the relevant case law in respect of providing reasons in assessing damages under the common law and in conjunction with the Act.

His Honour found for the insurer and dealt with each alleged error in turn. The Assessor's certificate was set aside and the matter was remitted for assessment by a different assessor.

First alleged error – accountants' report

The insurer alleged that the Assessor had failed to provide reasons for his assessment of future economic loss as required by s 94(5) of the Act and cl 18.4 of the Motor Accident Authority Guidelines.

His Honour noted that the Assessor's findings for future economic loss were based upon medical and lay evidence, and that the Assessor had not provided adequate reasons in giving the accountants' report "little weight".

The insurer's report was disregarded by the Assessor as he believed the authors relied too heavily on the claimant's tax returns and business records, made erroneous assumptions, and did not fully appreciate the claimant's symptoms.

His Honour found that the Assessor in fact gave the accountants' report no weight at all and simply put it aside without providing adequate reasons for doing so. The report's analysis based upon the financial records was not even mentioned, let alone addressed.

His Honour found that there was an error of law as alleged by the insurer.

Second alleged error – assessment of future economic loss

The insurer alleged that the Assessor had failed to correctly calculate future economic loss and provide reasons for his assessment as required by s 126 of the Act.

The Assessor allowed a figure of a little under $352,000 for future economic loss. He appeared to formulate this figure based upon a comparison of the number of hours the claimant worked before and after the accident at a given rate per hour.

His Honour noted that the Assessor based his assessment upon a postulated weekly wage loss, rather than an hourly rate. This was also based upon the assumption that, but for the accident, the claimant would have continued to work as an employed carpenter rather than starting his own carpentry business.

His Honour found that there was an internal inconsistency in the figures upon which the Assessor relied and failed to expose the assumptions upon which the award was based. As such, his Honour found a fresh assessment was required.

Third alleged error – medical evidence

The insurer submitted that the Assessor simply accepted the claimant's medical evidence where it was in conflict with the opinions of the insurer's medico-legal doctors, which fell well short of his statutory duty to provide reasons.

His Honour carefully considered whether the Assessor had met his obligations pursuant to s 126 of the Act.

His Honour found that there was no error of law as alleged by the insurer. His Honour noted that the Assessor's findings were based upon medical and lay evidence and that the Assessor's reasons, although sparse, were adequate to justify the conclusions reached.

Fourth alleged error – assessment of future commercial care

The Assessor awarded one hour per week of commercial care for the period of the claimant's life expectancy, equating to a little over $32,000.

The insurer submitted that the assessor failed to identify or apply any of the principles found in Miller v Galderisi 2 and gave no reason for selecting the figure of one hour per week.

His Honour opined that the reasons given by the Assessor were barely adequate but was not a matter which he needed to determine.


This case illustrates the insurer successfully seeking administrative relief, particularly when alleging failure to provide adequate reasons. It is accepted that claims assessors are not required to give elaborate reasons, as found in Allianz Australia Insurance Ltd v Kerr 3 . However, this does not relieve an assessor of the obligation of conveying reasons, which s 69 requires.

Without having evidence that addresses all injuries sustained by a claimant and their impact upon the claimant's capacity, a defendant/insurer is at risk of not establishing a residual earning capacity. 4 In this instance, the insurer obtained a vital accountants' report that discharged the evidentiary onus upon it that the claimant has a greater residual earning capacity. His Honour noted that the fact remained that the Assessor's reasons failed to deal with important evidence.


1 Hidden J
2 [2009] NSWCA 353 at [18]–[24]
3 [2012] NSWCA 13
4 QBE Insurance (Australia) Limited v Durkin and Ors [2012] NSWSC 72

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.