The plaintiff was involved in an accident on 23 August 2010, in which her vehicle was rear-ended by the defendant’s vehicle. The defendant admitted breach of duty of care, but denied that the plaintiff suffered any injury, loss or damage as a result of the collision.
At first instance, the trial judge, Judge P Taylor SC, was not satisfied that the plaintiff had suffered any injury, loss or damage, and dismissed the proceedings. The plaintiff appealed the decision on eight grounds, although only two grounds constituted the essence of challenge at the hearing. These grounds were that:
1. The trial judge ought to have given no weight to the MAS assessment as there was no claim for non-economic loss; and
2. The trial judge erred in failing to treat payments made by the defendant under s 83 of the MACA as constituting an admission of damage, caused by the subject accident.
Was the trial judge entitled to take the MAS assessment into account?
The MAS certificate concluded that although the plaintiff did suffer from a whole person impairment (WPI), it was not attributable to the subject accident. The certificate was tendered without objection at trial. Counsel for the plaintiff conceded that although it was only conclusive as to whether the plaintiff’s WPI was above 10%, a court can take it into account for other purposes. However, on appeal the plaintiff submitted that the report was entirely irrelevant as there was no claim for non-economic loss.
Although previous authority had warned that “extreme caution” was required in relying upon the contents of a MAS certificate for assessing damages other than non-economic loss, the plaintiff attempted to draw a principle from these authorities that “although MAS reports are admissible, they should be given minimal weight because their authors cannot be cross-examined”. The New South Wales Court of Appeal (the Court of Appeal) rejected this as a statement of legal principle, noting that this statement merely recognises a particular factor, and highlighted that in the motor accidents jurisdiction medical reports are frequently relied upon without the author being called for cross-examination. There was therefore nothing to prevent the trial judge from considering the MAS certificate within the context of the other medical reports in assessing whether the plaintiff had suffered any injury, loss or damage.
Did the trial judge err in failing to treat s 83 payments as an admission of damage having been caused?
Although the trial judge did accept the s 83 payments as an admission of injury, loss or damage caused in the subject accident, the plaintiff contended that the admission was not given sufficient weight.
The Court of Appeal summarised the principle in Lustre Hosiery Ltd v York (1935 CLR 34) as follows:
“An admission as to liability is an expression of the belief of a party based on its state of knowledge, in this case the knowledge of the insurer. Where an admission is withdrawn, its effect must be assessed by reference to the state of knowledge of the party making the admission at the time it was made.”
It was noted that the MACA “puts the parties on a tight rein in relation to procedural steps.“ For example, s 72 requires a claimant to make a claim within six months, s 81 requires the insurer to determine liability within three months, s 80 requires the insurer to resolve a claim as justly and as expeditiously as possible, and s 83 obligates the insurer to make payments of medical and pharmaceutical expenses.
In this instance, all s 83 payments were made based on consultations which occurred prior to the issue of a s 81 notice. Furthermore, the plaintiff’s claim form made reference to the prior accident, noting similar injuries, and also noted that there was no ambulance attendance, no hospital admission, and only conservative treatment. It could therefore be inferred that any admission of liability was contingent upon the insurer having the opportunity to assess medical evidence as to severity, causation and attribution of the injuries.
The Court of Appeal stated that it is not reasonable to attribute any serious weight to the willingness of an insurer to make payments in accordance with its statutory duties in the early stages of the claim, and to bind the insurer to that admission as further evidence comes to light and the matter progresses.
Although the Court of Appeal rejected the principle that MAS certificates are an irrelevant consideration in assessing anything other than non-economic loss, this case serves as a reminder that courts will be cautious in relying upon a MAS certificate for any other head of damage, and will consider them only within the context of all other medical reports.
The case reinforces the principle that while payments made by insurers under their s 83 obligations may constitute an admission of liability, that admission must be assessed within the context in which it was made. If evidence subsequently comes to light which justifies a denial that a claimant has suffered any injury, loss or damage, no substantial weight should be placed upon the willingness of the insurer to make payments while the claim was being investigated.