NRMA Insurance Limited v Pham [2013] NSWSC 468

Supreme Court New South Wales

Medium Neutral Citation: NRMA Insurance Limited v Pham [2013] NSWSC 468 Hearing dates: 5 October 2012 Decision date: 03 May 2013 Jurisdiction: Common Law - Administrative Law Before: Hall J Decision: I make the following declaration and orders: (1) A declaration that the certificate issued under s 94 of the Motor Accidents Compensation Act 1999 dated 30 April 2012 in respect of the assessment conducted on 16 April 2012 was contrary to law. (2) An order setting aside the certificate. (3) An order remitting the claimant's assessment application to the third defendant or the Principal Claims Assessor of the third defendant for reallocation of the matter to a different claims assessor for determination of the matter according to law. (4) Leave to the parties to make application in respect of the issue of costs or ancillary orders arising from the orders set out above. Catchwords: ADMINISTRATIVE LAW - error of law - claims assessment under s 94 Motor Accidents Compensation Act 1999 where liability admitted - claimant self-employed business owner - assessment of future economic loss under s 126 Motor Accidents Compensation Act 1999 - claim based on alleged pre-injury earnings that exceeded amounts disclosed on taxation returns - evidence that claimant intended to continue running business - assessor however made award based on factual finding that claimant would sell business and find work as an employee in same industry - economic loss therefore assessed on earnings of an employee - assessment of likely future circumstances but for the injury not based on evidence and in fact in conflict with claimant's evidence - assessor accordingly failed to state assumptions on which award based as required under s 126 - assessor failed to adjust the amount of damages for future economic loss by reference to the percentage possibility of the future events occurring as required under s 126 - Guzman v Zammit [2003] NSWCA 224 relied upon by the assessor concerning the claim for future economic loss did not establish any point of principle but turned on its own facts - in any event the evidence did not support the approach taken by the Court of Appeal in that case Legislation Cited: Motor Accidents Compensation Act 1999 Supreme Court Act 1970 Cases Cited: Associated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223 Azzopardi v Tasman UEB Industries Limited (1985) 4 NSWLR 139 Campbelltown City Council v Vegan (2006) 67 NSWLR 372 Dyldam Developments Pty Ltd v Jones [2008] NSWCA 56 Giorginas v Kastrati (1988) 49 SASR 371 Graham v Baker (1961) 106 CLR 340 Guzman v Zammit [2003] NSWCA 224 Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 Insurance Australia Limited t/as NRMA Insurance v Hutton-Potts (2010) 57 MVR 194; [2010] NSWSC 1446 Insurance Australia Limited v Helou [2008] NSWCA 240 Kallouf v Middis [2008] NSWCA 61 NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 Paff v Speed (1961) 105 CLR 549 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 Category: Principal judgment Parties: NRMA Insurance Limited (Plaintiff) Thang Van Pham (First Defendant) Elyse White (Second Defendant) Motor Accidents Authority of New South Wales (Third Defendant) Representation: Counsel: Mr M Robinson SC; Ms A Poljak (Plaintiff) Mr M Daley (First Defendant) Solicitors: Holman Webb (Plaintiff) MN Compensation Lawyers (First Defendant) Crown Solicitor (Second and Third Defendants) File Number(s): 2012/178133