Allegations of false and misleading statements do not automatically necessitate an exemption from CARS

Is an allegation of false and misleading statements enough to warrant an exemption from CARS? Insurance Australia Limited v Howard examines the CARS Assessor's role in considering exemption applications and highlights the competing factors that warrant consideration.

 

Judgment date: 7 March 2019
Citation: Insurance Australia Limited t/as NRMA v Howard [2019] NSWSC 224
Jurisdiction: Supreme Court of New South Wales (Common Law)

Principles

Chapter 14 of the Motor Accident Guidelines (the Guidelines) provides guidance to an Assessor as to when an exemption can be granted. Despite the Guidelines, an Assessor is entitled to take into account any matter which is considered to be relevant and to ultimately determine whether a claim is unsuitable for assessment in the context of all matters relevant to the claim.

Background

The Claimant was injured in a motor vehicle accident. The Insurer admitted liability.

The Claimant lodged a General Assessment Application with the Claims Assessment and Resolution Service (CARS).  Prior to assessment of the claim the Insurer lodged an Application for Assessment of a Treatment Dispute with the Medical Assessment Service (MAS). On the basis of the pending treatment dispute, the Insurer requested an adjournment of the CARS Assessment Conference (AC). The adjournment was refused by the Claims Assessor (the Assessor).

Subsequently, the Insurer applied for a discretionary exemption pursuant to Section 92(1)(b) of the Motor Accidents Compensation Act 1999 (NSW) on the basis of clause 14.16.11 of the Guidelines and sought a further adjournment of the AC. The Assessor vacated the AC and allocated a date for hearing of the Insurer's discretionary exemption application. The primary ground in support of the application was that the Claimant had made false or misleading statements in relation to his injuries, having regard to a pre-existing medical condition that was, allegedly, not fully disclosed.

After considering argument the Assessor refused the Insurer's discretionary exemption application on the basis that as the claim did not involve complex legal or factual issues, it could be appropriately dealt with by CARS. The matter proceeded to AC and the Assessor issued a certificate certifying the Claimant's damages.

The Insurer filed a summons with the Supreme Court of NSW to have the decision of the Assessor set aside.

Decision

The Insurer challenged the decision of the Assessor on three (3) grounds.

Catastrophic Injury

Clause 14.16.5 of the Guidelines provides that a matter is unsuitable for assessment if the claim involves "complex issues of quantum or complex issues in the assessment of the amount of the claim including but not limited to major or catastrophic, spinal or brain injury claims".

In declining the application the Assessor had concluded that whilst the claim was one of substance it was not one involving "catastrophic injury".

Her Honour held that the Assessor was not bound to disregard all matters but chose to address the above in his reasoning as a relevant, but not a determinative factor (Minister for Aboriginal Affairs v Peko-Wallsend (1986) 162 CLR 24; [1986] HCA 40). Her Honour commented that it was for the Claims Assessor to determine how, if at all, he would take that into account and what weight he would give to it (Carr v Western Australia (2007) 232 CLR 138; [2007] HCA 47 at [5]-[7] (Gleeson CJ)).

This ground was not made out.

Legal Unreasonableness

The Insurer contended that the Exemption Decision ought to be set aside for legal unreasonableness because the reasons provided by the Assessor were neither rational nor logical and provided neither an explanation nor a justification for the decision (Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 (Li) at [76]). Further, the Insurer alleged that the Assessor did not adequately consider the Claimant's false and misleading statements regarding his pre-existing lumbar spine injury.

The Assessor identified matters raised by the parties and determined that the only relevant matter was the allegation of a false and misleading statement. However, the Assessor concluded that he was not satisfied that the claim was unsuitable for assessment and recorded his view that a fair and just hearing could still be had at an AC. He additionally noted that credit is often an issue in an AC and that credibility could still be determined in that context.

Her Honour endorsed this approach and held that the Assessor's reasons were sufficiently clear.

This ground was not made out.

Allegations

The Insurer argued that the Assessor did not apply the correct weight to the false and misleading allegations that were made pursuant to clause 14.16.11 of the Guidelines in his reasoning.

The court observed that the Assessor had clearly accepted that there was substance to the Insurer's allegations that the Claimant had not disclosed his prior back conditions in circumstances which would be relevant to his credit and capacity. He had gone on to acknowledge that if further material become available then this could impact the Assessor's decision.

Her Honour was not persuaded by the Insurer's argument. There was nothing inappropriate, nor unlawful, in his reasoning.

This ground was not made out.

As such, the Insurer's summons was dismissed with costs.

Why this case is important

This decision confirms the well-established view that Claims Assessors have a broad discretion in determining whether a claim is unsuitable for assessment under s92(1)(b) of the Act. Chapter 14 of the Guidelines sets out circumstances that may be relevant to the issue, but these are not conclusive. Mere reliance on an allegation that the claimant has made a false or misleading statement is not enough to satisfy the requirement of unsuitability. Even if there is evidence supporting the allegation, its seriousness needs to be weighed against competing factors which may favour a timely, fair and cost effective forum for dispute resolution. In the present case there were "several infelicities of expression" behind the Assessor's reasoning, but those did not cloud his path of reasoning. If that path of reasoning is clear, parties should carefully consider whether a challenge to an Assessor's determination on discretionary applications is viable.