Judgment date: 31 March 2010, Zurich Australia Insurance Limited v Motor Accidents Authority of NSW and Ors  NSWSC 2141
- A party to a CARS Assessment does not have an automatic right to cross-examine a witness.
- Whether a refusal to allow cross-examination – or to limit cross-examination – amounts to a denial of procedural fairness depends upon the circumstances of the case.
- One factor relevant to whether cross-examination is necessary is whether there are any issues in dispute which require questioning of the witness.
The Supreme Court of New South Wales handed down its decision in Zurich Australia Insurance Limited v Motor Accident Authority of NSW on 31 March 2010.
In that matter, the insurer sought an order under s 69 of the Supreme Court Act 1970 setting aside a CARS Certificate and Reasons on the ground that the insurer had been denied procedural fairness.
The specific ground for alleging a denial of procedural fairness was a decision by the CARS Assessor to allow the claimant to rely on a video recording of herself providing oral responses to her barrister regarding the accident and its consequences. This interview between the claimant and her barrister took place at the claimant's home in Manly. The claimant did not attend the CARS assessment hearing because she suffers from agoraphobia.
The insurer argued that it was denied procedural fairness because the DVD was tendered and the claimant was not available for cross examination.
The claimant was 82 years of age at the time of the accident in May 2003. There was no significant dispute that the accident caused the onset of panic attacks and that the claimant did develop anxiety when leaving her home.
It was made clear, at the final Preliminary Conference, that whilst the claimant would not attend the Assessment Conference, her care providers would be available for questioning.
According to the Preliminary Conference report prepared by the Assessor, the insurer objected to the claimant's evidence being given by way of DVD. The insurer had no difficulty with the claimant's evidence being given in a written form, including by way of a transcript of the DVD, but merely objected to the DVD itself on the grounds that the DVD evidence "might be seen as an attempt to pull at heartstrings".
Supreme Court Judgment
The application for judicial review came before Whealy J for determination.
At paragraph 47 of the judgment, Whealy J stated:
His Honour proceeded to summarise his reasons as follows:
- The insurer was perfectly content to consent to the tender of the transcript of the DVD, without cross examination, and it was only the DVD, itself, which was the subject of complaint.
- The insurer made a tactical decision during the CARS assessment not to cross examine either of the claimant's care givers, who were available for questioning, even though they had provided evidence in their statements regarding the change in the claimant following the accident.
- There is no substance to the claim that cross examination of the claimant on the medical issues identified by the insurer's solicitor would have advanced the insurer's case.
- Although unhappy about the tender of the DVD of the interview between the claimant and her barrister, no submissions were made about the content of the DVD in written submissions, covering 11 pages, served by the insurer after receipt of the DVD.
- The Claims Assessment Guidelines make it clear that an Assessor has a "reasonably wide discretion" as to whether to allow or not allow cross examination.
In addition, the insurer argued that the use of the DVD to give the claimant's evidence, as opposed to a written statement, disturbed the "level playing field". However, given that the insurer was prepared to proceed to an assessment on the papers, Whealy J rejected this submission on the basis that there was no reason to find that use of visual images resulted in any unfairness to the insurer. This was particularly so given that there were no issues with regard to credibility or reliability in the case. The primary issue in dispute was the medical need for the claimant's alleged need for domestic assistance.
The insurer also argued that the use of the DVD was unfair because the claimant's barrister had asked some leading questions and the insurer had no opportunity to object. This argument was also rejected because the insurer had been prepared to accept an assessment on the papers which involved a written statement by the claimant. The court noted that "the careful crafting of a statement by an experienced solicitor is apt to be leading in every sense of the word".
Ultimately, Whealy J held that the insurer had not demonstrated any procedural unfairness and therefore dismissed the summons.
At paragraph 78, his Honour concluded as follows:
It is clear from the decision in Zurich Australia Insurance Limited v Motor Accidents Authority of NSW that there is no universal right to cross examination in the CARS process.
Whether or not a denial to allow – or a decision to limit – cross examination amounts to a denial of procedural fairness will depend upon the particular circumstances of the case.
In this case, it was implicit in some of the remarks made by the court that cross examination of the claimant was not integral to affording the insurer a fair hearing given that the primary issues in dispute were medical in nature, rather than based in issues of the credibility of the claimant or the reliability of her evidence.
In addition, there were valid reasons for the claimant not being present at the Assessment Conference given her age and medical condition.
The decision, should not, however, be interpreted as providing support for a broad proposition that a claimant may give evidence by DVD or by written statement without expecting to be cross examined.
As already indicated, the issues in dispute and the claimant's particular circumstances did not dictate the necessity for cross examination in this particular matter.
Moreover, there were tactical decisions taken by the insurer during the case management phase of the matter and during the Assessment Conference which had an impact upon the ultimate outcome.
For example, the court may have been more inclined to find a "right" to cross examination, if the insurer had not indicated that it was prepared to proceed to an assessment on the papers without questioning of the claimant and if the insurer had not declined the opportunity to question the claimant's care givers, particularly with regard to the change in the claimant's condition before and after the accident.
1. Whealy J
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