Australia: Supreme Court quashes Claims Assessment and Resolution Service assessor's - implications for insurers

Insurance Australia Group Ltd t/as NRMA Insurance v Motor Accidents Authority of NSW [2013] NSWSC 318

A decision by Associate Judge Harrison of the Supreme Court, delivered on 11 April 2013, has resulted in the decision of a CARS Assessor being quashed and the CARS matter being remitted to the Motor Accidents Authority for re-assessment

Background

The claimant brought a claim in New South Wales for injuries sustained in a motor vehicle accident on 14 December 2007. Liability was admitted by the insurer and the matter proceeded to General Assessment on 3 September 2012. A CARS Certificate was issued on 11 September 2012 and damages of $2,658,722.77 were awarded, plus regulated costs.

The insurer filed a Summons in the Supreme Court on 2 November 2012 seeking a declaration that the Certificate was affected by error or law and that it be quashed. The insurer applied to the Court for the CARS Certificate to be quashed, arguing that the Certificate contained errors of law, jurisdictional error and that procedural fairness had been denied.

Decision

Her Honour found that the CARS Assessor gave inadequate reasons. The CARS Assessor fell into error by failing to refer to a MAS Assessor's findings regarding a domestic assistance dispute. Her Honour found, at par 50

"...It is not clear whether or not the CARS Assessor took this earlier conclusive certificate into account in relation to past care. It should also be noted that the CARS Assessor did not refer to [the MAS Assessor's] conclusive certificate in her reasons for future care.

[The MAS Assessor's] certificate of determination was a relevant consideration and the CARS Assessor was bound to take it into account...by not mentioning it, the CARS Assessor did not provide adequate reasons. [The CARS Assessor] fell into jurisdictional error."

Accordingly, the decision of the CARS Assessor has been quashed and the matter has been remitted to MAAS for re-assessment. An order for costs was made in the insurer's favour.

Implications for insurers

Whilst the case does not address the arguably flawed approach taken to MAS treatment disputes in Allianz Australia Insurance Ltd v Girgis, it does reinforce the continuing relevance of MAS Treatment Dispute findings at CARS and at Court.

Where a MAS Treatment Dispute has been determined, the MAS Certificate is a relevant consideration and the CARS Assessor or Court is bound to take it into account.

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