Insurance Australia Group Ltd t/as NRMA Insurance v
Motor Accidents Authority of NSW  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
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.
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
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.
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.
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