Supreme Court New South Wales Medium Neutral Citation: Cahill v Allianz Australia Insurance Ltd [2019] NSWSC 328 Hearing dates: 20 July and 9 August 2018 Date of orders: 27 March 2019 Decision date: 27 March 2019 Jurisdiction: Common Law Before: Walton J Decision: The Court orders: (1) The summons filed by the plaintiff on 6 February 2018 is dismissed; and (2) The plaintiff shall pay the defendant's costs as agreed or, in default of agreement, as assessed. Catchwords: ADMINISTRATIVE LAW – declaratory relief – Motor Accidents Compensation Act 1999 – operation of ss 94 and 95 of the Act – contributory negligence – Certificates – incorporation of reasons in certificate – whether insurer wholly accepts liability – Assessment Conference – abandonment – bona fides not applicable – dismissed Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Allianz Australia Insurance Ltd v Anderson [2013] NSWSC 1186 Lee v Yang (2006) 46 MVR 243; [2006] NSWCA 214 Pham v NRMA Insurance Ltd (2014) 66 MVR 152; [2014] NSWCA 22 Overseers of the Poor of Walsall v London and North Western Railway Company [1878] 4 AC 30 Category: Principal judgment Parties: Thomas Cahill (Plaintiff) Allianz Australia Insurance Ltd (Defendant) Representation: Counsel: D J Hooke SC with S J Holmes (Plaintiff) K P Rewell SC (Defendant) Solicitors: Garling & Co Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): 2018/39758 judgment 1. HIS HONOUR: Thomas Cahill, the plaintiff, was involved in a motor vehicle accident whilst driving his vehicle on the Spit Road, Mosman ("the accident"). He claimed to have suffered a personal injury as a result of the accident. The plaintiff claimed damages under the Motor Accidents Compensation Act 1999 (NSW) ("the Act") for those injuries or disabilities and economic loss ("the claim"). 2. Pursuant to Pt 4.4 of the Act, the plaintiff lodged an application on 27 February 2017 for General Assessment by the Claims Assessment and Resolution Service ("CARS"). The application was made by lodging a form known as "CARS Form 2A: Application for General Assessment by the Claims Assessment and Resolution Service" ("Form 2A") pursuant to s 90 of the Act. 3. On 10 April 2017, Allianz Australia Insurance Ltd ("the defendant") filed a reply in the form a "CARS Form 2R: Reply to an Application for General Assessment by the Claims Assessment and Resolution Service" ("Form 2R"). 4. The defendant is the compulsory third party insurer of the vehicle alleged to be at fault in the accident, which resulted in the plaintiff's claimed injuries. 5. The plaintiff's claim was allocated to a Claims Assessor, Mr Robert Foggo ("the Assessor"), pursuant to s 93 of the Act. The Assessor conducted a CARS Assessment Conference on 9 November 2017 ("the Assessment Conference"), pursuant to s 104 of the Act. On 22 December 2017, the Assessor issued a certificate pursuant to s 94(4) of the Act ("the Certificate"). 6. The Certificate bore an entry in bold after the formal headings to the document, which was in the following terms: "THE INSURER HAVING WHOLLY ACCEPTED LIABILITY FOR THE CLAIM, THE AMOUNT OF DAMAGES FOR THAT LIABILITY". In the body of the document the Assessor made four findings. The first three findings concerned the amount of damages assessed with respect to the claim, the plaintiff's economic loss and the amount of the plaintiff's costs taking into account the amount of damages assessed with respect to the claim, respectively. There was a fourth finding which read: "Details of the assessment and reasons for this decision are attached to this certificate". 7. In a document headed "Reasons for Decision – General Assessment", issued pursuant to s 94(5) of the Act, the Assessor stated, inter alia, that "I find that the claimant is entitled to a full claim of damages without any deduction for contributory negligence". 8. On 22 December 2017, the plaintiff informed the solicitor for the defendant that he accepted the assessment of damages specified in the Certificate. In reply, the defendant's solicitor wrote to the plaintiff's solicitor stating that, inter alia, "the insurer does not accept liability under the claim. Accordingly, the insurer does not accept the assessment". The defendant has not paid the damages in the amount awarded by the Assessor. 9. By a summons filed 6 February 2018 ("the summons"), the plaintiff sought, as the relief claimed, inter alia, a declaration that "the Defendant must pay to the Plaintiff the amount of damages specified in the Certificate of Assessor Foggo" and an order that the defendant pay the plaintiff the amount of damages specified in the Certificate. 10. This judgment concerns the determination of the relief sought in the summons. 11. The core issue in the proceedings concerns the operations of ss 94 and 95 of the Act (see extracted below at [32] and [35]) in the facts and circumstances of this matter. 12. The discussion of that issue is best introduced by reference to the judgment of Giles JA (with whom Hodgson and Ipp JJA agreed) in Lee v Yang (2006) 46 MVR 243; [2006] NSWCA 214 at [21]-[26], where his Honour observed, as to the construction of s 95, as follows: [21] It was common ground that an assessment of "the issue of liability for the claim" in s 94(1)(a) encompassed contributory negligence and the extent of any reduction of damages. The effect of s 9 of the LR Act is that a claim is not defeated by contributory negligence, but that the damages recoverable are reduced; by s 11, the total damages recoverable but for the contributory negligence must be found and recorded. Notwithstanding that the statutory effect is on damages, contributory negligence can readily be regarded as going to liability, see the heading to s 9 "Apportionment of liability in cases of contributory negligence". Thus the assessment of "the amount of damages for that liability" in s 94(1)(b) is of the damages payable to the claimant after any reduction for contributory negligence. There is no occasion to question the common ground. [22] There are difficulties in the Judicial Registrar's construction of s 95(2). On that construction, the words before the comma make an assessment of the amount of damages binding on the insurer but leave its effect on the claimant up in the air. If the assessment is binding on the insurer, why by the words following the comma provide for payment only if the two conditions in paras (a) and (b) are satisfied, including the condition of acceptance by the insurer of "that liability under the claim"? Absent acceptance by the insurer of "that liability under the claim", curial determination of liability for the claim does not satisfy the conditions and enliven the statutory obligation to pay; nor can the court take up the binding assessment, because s 115 of the Act prohibits disclosing the amount before the court's determination of the amount of damages in the proceedings. So the asserted binding effect on the insurer leads nowhere. [23] These difficulties suggest that the Judicial Registrar's construction is flawed, and that s 95(2) states the double consequence of satisfaction of the two conditions in paras (a) and (b): that the assessment is binding on the insurer, and that the insurer must pay the claimant. The structure is readily understandable. Section 95(1) is in the terms of an assessment being not binding. Section 95(2) follows it in the terms of an assessment being binding, and adds an obligation to pay the claimant. It is necessary to impose the obligation, because s 95(2) will commonly operate in the absence of legal proceedings. But both conditions must be satisfied. [24] In my opinion, the double consequence construction is correct. [25] What may be binding is "the amount of damages for liability under a claim". This picks up the liability found on the issue of liability for the claim, and is "the amount of damages for that liability" in s 94(1)(b) and so the damages payable to the claimant after any reduction for contributory negligence. The claimant may accept "that amount of damages" in settlement of the claim, and correspondingly the insurer may accept "that liability under the claim", being the liability assessed "on the issue of liability for the claim". [26] Section 95(2) provides a mechanism by which the non-binding assessment of the issue of liability for a claim and the assessment of the amount of damages for that liability become binding as a package. By accepting "that amount of damages", the claimant agrees to liability, including any reduction in damages for contributory negligence; the claimant can do so if the damages are an amount the claimant is prepared to take to resolve the claim. By accepting "that liability under the claim", the insurer also agrees to liability, and is then precluded from contesting the amount of the damages; the insurer can do so if the damages are an amount the insurer is prepared to pay to resolve the claim. But there must be the conjunction of the two conditions in paras (a) and (b), and each of the claimant and the insurer may decline to accept and thereby make the other go to court. The subsection refers to the assessment of the amount of damages for liability under the claim being binding on the insurer, rather than on both the claimant and the insurer, because the claimant's acceptance necessarily involves the assessment being binding on the claimant in the event of the insurer's acceptance; and because it is open to the insurer to contest the assessment of damages only if the insurer contests the liability as found by the assessor. [Emphasis added.] 1. Once a claim proceeds to assessment under Pt 4.4 of the Act, s 94(1) requires a Claims Assessor to make an assessment of "the issue of liability for the claim (unless the insurer accepts liability)" and "the amount of damages for that liability". The assessment of the "issue of liability" for the claim is not binding on any party to the assessment (s 95(1)). Nonetheless, if the insurer accepts liability under the claim, damages for liability under the claim become binding on the insurer in circumstances where the claimant accepts the amount of damages assessed by the Claims Assessor. 2. It may also be observed, in that respect, that it was common ground that the judgment in Lee v Yang had made it clear that the issue of liability for a claim, as described in s 94(1)(a) of the Act, encompassed contributory negligence (see at [21]). However, notwithstanding references (to use, at this stage, a neutral expression) to contributory negligence by the defendant in the context of conforming with the steps required under Pts 4.3 and 4.4 of the Act, as to the claim made with respect to the accident, the plaintiff contended that the defendant had wholly admitted liability with respect to that claim. 3. When considered in that light, and having regard to the acceptance by the plaintiff in this case of the assessment of damages by the Assessor, the seminal issue may be described as whether the Certificate enlivened the provisions of s 95(2) due the defendant wholly accepting liability for the claim. The plaintiff contended the insurer had accepted liability and that, in those circumstances, the damage assessed by the Assessor was binding on the defendant. THE ISSUES 1. Notwithstanding the statement of the core issue above, the issues in the proceedings may also be distilled to a number of subsidiary issues. Whilst those issues depend partially upon an understanding of the factual background, it is convenient to describe them at the outset of the judgment so as to make clear the parameters of the debate between the parties. 2. A useful starting point for the discussion of these issues is to set out contentions advanced by the plaintiff in his written submissions as follows: 1. The Certificate specified, on its face, to have been issued on the basis of "[t]he insurer having wholly accepted liability for the claim". An affirmative conclusion of that kind on the face of the Certificate was sufficient to make the damages assessed by the Assessor in the Certificate binding on the defendant; 2. At no stage had the defendant asserted that there was an error in the Certificate being issued on the basis of "[t]he insurer having wholly accepted liability for the claim"; 3. At no stage did the defendant make a bona fide assertion of a reduction for contributory negligence. The suggestion that liability was in issue, in that respect, with the effect that the defendant was not bound to pay the damages in the amount specified in the Certificate was a contrivance ("the third contention"); and 4. Any allegation of contributory negligence was abandoned at (or before) the commencement of the Assessment Conference on 9 November 2017, consistent with the failure to cross-examine the plaintiff on any matter that could be said to go to an allegation of contributory negligence ("the fourth contention"). 1. In oral submissions, Mr D J Hooke SC, with whom Mr S J Holmes appeared for the plaintiff, distilled the issues to the following: 1. Does the Certificate incorporate the Assessor's reasons for the assessment? If not, the plaintiff submitted that it must be found on the face of the Certificate that the insurer accepted liability under the claim. 2. If the Certificate incorporated the reasons for the Assessor's decision, whether the insurer discharged the onus of demonstrating that the Certificate, when read with those reasons, did not have the effect of declaring the defendant had "wholly accepted liability for the claim"? 3. Did the insurer abandon any position for contributory negligence at or before the Assessment Conference of 9 November 2017? 1. It should be observed that issues, so refined, broadly reflected the plaintiff's contentions in his written submissions in [17(1)], [17(2)] and [17(4)] above. 2. Whilst the plaintiff did not initially abandon the third contention concerning the bona fides of the defendant's position vis-à-vis contributory negligence, the plaintiff's submissions ultimately had that effect. The plaintiff accepted that, if the issue of contributory negligence remained an issue at the end of the Assessment Conference that the issue of bona fides "would not trouble the Court". The plaintiff maintained a glimmer of the bona fides issue at the end of the hearing, referring to a question as to whether the defendant had "in truth abandoned" contributory negligence but that submission was clarified as being resolved on a particular basis, namely, if Rothman J had not introduced the notion of the bona fides of a defendant insurer in assessing whether liability was put in issue or admitted, in Allianz Australia Insurance Ltd v Anderson [2013] NSWSC 1186 ("Anderson") at [77], then the defendant would not press submissions concerning the bona fides in the third contention in this matter. Rather the plaintiff would rely on abandonment per se. 3. Given the conclusions I will reach as to the judgment in Anderson it will not be necessary, on the basis of that concession, to consider the contention and issue of bona fides raised by the third contention. Rather the Court will address the question of whether the issue of contributory negligence was abandoned per se as raised by the fourth contention. LEGISLATIVE PROVISIONS 1. The objects of the act appear under Pt 1.1 of Ch 1 of the Act. The objects appear in s 5 in the following terms: 5 Objects of Act (1) The objects of this Act are as follows: (a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, (c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure, (d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales, (e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities, (f) to ensure that insurers charge premiums that fully fund their anticipated liability, (g) to deter fraud in connection with compulsory third-party insurance. (2) It must be acknowledged in the application and administration of this Act: (a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and (b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and (c) that: (i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and (ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and (iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and (iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law, and (d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability. 1. Chapter 4 of the Act is entitled "Motor accident claims". Part 4.2 deals with the making of claims. Section 72(2) provides as follows: 72 Time for and notice of making of claims … (2) A claim is made by giving notice of the claim as follows: (a) in the case of a claim against a person whose insurer is a third-party insurer, to the person's insurer, (b) in any other case, to the person against whom the claim is made. 1. Section 74 deals with the form of the notice of a claim. Section 74(1) provides: 74 Form of notice of claim (1) A notice of a claim under this Part must: (a) be in the form approved by the Authority, and (b) set out or be accompanied by such particulars and information as may be required by that form. 1. Section 78 provides: 78 Power of insurer to act for insured (1) When a claim is made against a person, the person's insurer may: (a) conduct and control negotiations in respect of the claim, and (b) conduct, or take over the conduct of, any legal proceedings in respect of the claim and may conduct those proceedings in the name and on behalf of the person, and (c) at any stage of those negotiations or proceedings, compromise or settle the claim, and (d) exercise any function conferred by this Act on the person in respect of the claim. (2) The person against whom the claim is made is required to sign all such warrants, authorities and other documents as may be necessary to give effect to this section. (3) If the person fails to do so or is absent or cannot be found, the insurer may sign the warrants, authorities or other documents on behalf of the person. (4) Nothing said or done by an insurer under this section in connection with the settlement of a claim or the conduct of proceedings in respect of a claim is to be regarded as an admission of liability in respect of or in any way prejudice any other claim, action or proceeding arising out of the same occurrence. 1. Part 4.3 of Ch 4 is entitled "Duties with respect to claims". Sections 80-82 are relevant and are in the following terms: 80 General duty of insurer to try to resolve claim expeditiously (1) It is the duty of an insurer to endeavour to resolve a claim, by settlement or otherwise, as justly and expeditiously as possible. (2) It is a condition of an insurer's licence under Part 7.1 that the insurer must comply with this section. 81 Duty of insurer with respect to admission or denial of liability (1) It is the duty of an insurer to give written notice to the claimant as expeditiously as possible whether the insurer admits or denies liability for the claim, but in any event within 3 months after the claimant gave notice of the claim under section 72. (2) If the insurer admits liability for only part of the claim, the notice is to include details sufficient to ascertain the extent to which liability is admitted. (3) If the insurer fails to comply with this section, the insurer is taken to have given notice to the claimant wholly denying liability for the claim. (4) Nothing in this section prevents an insurer from admitting liability after having given notice denying liability or after having failed to comply with this section. (5) It is a condition of an insurer's licence under Part 7.1 that the insurer must comply with this section. 82 Duty of insurer to make offer of settlement (1) It is the duty of an insurer to make a reasonable offer of settlement to the claimant (unless the insurer wholly denies liability for the claim): (a) within 1 month after the injury is sufficiently recovered to enable the claim to be quantified, or (b) within 2 months after the claimant has provided to the insurer all relevant particulars about the claim as required by section 85A, whichever is the later. (2) An offer of settlement is to specify an amount of damages or a manner of determining an amount of damages. (3) If an offer of settlement is made on the basis that the insurer admits only part of the liability for the claim, the offer is to include details sufficient to ascertain the extent to which liability is admitted. (4) This section does not apply to: (a) a claim made in respect of the death of a person, or (b) a claim in respect of an injury that is not sufficiently recovered within 3 years after the motor accident to enable the claim to be quantified, or (c) a claim in respect of which a medical assessor has declined to make an assessment under Part 3.4 of the degree of permanent impairment of the injured person because the impairment caused by the injury has not become permanent. (5) (Repealed) (6) The insurer is not entitled to delay the making of an offer of settlement under this section on the ground that any particulars about the claim are insufficient unless the insurer requested further relevant particulars within 2 weeks after the claimant provided particulars. Note. Section 96 provides that a dispute about whether particulars about a claim are sufficient may be referred to a claims assessor. (7) It is a condition of an insurer's licence under Part 7.1 that the insurer must comply with this section. Note. Section 91 provides that 2 months after the insurer makes an offer of settlement the claim, if not resolved, may be referred for assessment. If an offer is not duly made, the claim may be referred for assessment as soon as the time for making the offer has expired. 1. The plaintiff placed emphasis upon the provisions of ss 81(5) and 82(7) as illustrating the importance attached to the provisions by the legislature. Reference was also made to s 82(3) whereby, if an offer of settlement is made on the basis of the insurer admits only part of the liability for the claim, the offer is to include details sufficient to ascertain the extent to which liability is admitted. 2. Part 4.4 is entitled "Claims assessment and resolution". Division one contains definitional and application provisions, noting that s 89(1) provides that Pt 4.4 applies to any claim whether or not the insurer admits or denies liability. 3. Division 1A of Pt 4.4 deals with document exchange and settlement conferences before claims assessments. Sections 89A, 89B and 89C are extracted below: 89A Parties required to participate in settlement conference (1) The parties to a claim must participate in a settlement conference as soon as practicable after the insurer makes an offer of settlement to the claimant under section 82. (2) A claim cannot be referred to the Authority for assessment under this Part until the parties have participated in a settlement conference. (3) A party can however refer a claim for assessment if a claims assessor is satisfied that the party is ready and willing to participate in a settlement conference but the other party has refused or failed to participate despite having had a reasonable opportunity to do so. (4) A settlement conference is a conference, the purpose of which is to settle the claim, in which the following persons participate: (a) the claimant, the claimant's guardian or some other person authorised by the claimant to settle the claim on the claimant's behalf, (b) a person authorised by the insurer to settle the claim on the insurer's behalf. 89B Parties to exchange documents before settlement conference (1) Before the parties' settlement conference, each party to the claim must provide the other party or parties to the claim with a copy of all the documents on which the party proposes to rely for the purposes of the assessment of the claim under this Part. (2) If a party does not provide a copy of a document before the parties' settlement conference, the document (and any information contained in the document) is not to be considered or otherwise taken into account by a claims assessor for the purposes of the assessment of the claim under this Part unless the claims assessor admits the document to assessment on being satisfied that the probative value of the document substantially outweighs any prejudicial effect it may have on another party. (3) An insurer is not required to provide a copy of documents under this section if the insurer suspects on reasonable grounds that the claim is fraudulent or otherwise not made in good faith. 89C Settlement offers to be made if claim not settled (1) If the parties participate in a settlement conference but the claim is not settled, each party must make an offer of settlement within 14 days after the settlement conference concludes. (2) A claim cannot be referred to the Authority for assessment under this Part until each party has made the required offer of settlement. (3) An offer of settlement must include a schedule of damages sufficient to explain the manner of calculation of the damages to which the offer relates. (4) A party who has made the required offer of settlement can refer the claim for assessment if more than 14 days have elapsed since the settlement conference concluded and a claims assessor is satisfied that the other party has refused or failed to make the required offer of settlement. 89D Compliance with Division (1) A claims assessor may, in assessing costs on a claim that is the subject of assessment under this Part, impose a costs penalty on a party to the claim if the claims assessor is satisfied that: (a) the party has failed without reasonable excuse to participate in a settlement conference or to make an offer of settlement as required by this Division, or (b) the party has failed without reasonable excuse to provide a copy of a document to other parties before the parties' settlement conference and the document was subsequently admitted to assessment under this Part despite that failure. (2) The costs penalty that may be imposed on a party is a penalty of up to 25% (imposed by increasing the costs to be awarded against the party, or decreasing the costs to be awarded in favour of the party, by up to 25%). In this section, costs means costs for the provision of legal services (including disbursements). (3) It is a condition of a licence granted under Part 7.1 that the licensed insurer must comply with the requirements of this Division. 1. The plaintiff emphasised that s 89C(1) required that, if the parties participated in a settlement conference but the claim is not settled, each party must make an offer of settlement within 14 days after the settlement conference concludes. Section 89C(3) provides that an offer of settlement must include a schedule of damages sufficiently explaining the manner of calculation of the damages to which the offer relates. It was accepted that the provision does not require, in terms, the description of any reduction in damages due to contributory negligence but any such reduction should be apparent between the offers of settlement in the assessment of costs. 2. Division 2 of Pt 4.4 deals with the assessment of claims. As earlier noted s 90 deals with the reference of claims for assessments. Section 91 deals with time limit for referring claims and s 92 deals with exemptions from assessment. Section 93 provides that the Principal Claims Assessor makes arrangements to allocate a Claims Assessor. 3. Section 94 appears in Div 2 and provides as follows: 94 Assessment of claims (1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of: (a) the issue of liability for the claim (unless the insurer has accepted liability), and (b) the amount of damages for that liability (being the amount of damages that a court would be likely to award). (2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate. (3) The assessment is to specify an amount of damages. (4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment. (5) The claims assessor is to attach a brief statement to the certificate, setting out the assessor's reasons for the assessment. (6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error. 1. The plaintiff emphasised that s 94(6) had some real significance because it provides that, if the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to a certificate contains an "obvious error", the Principal Claims Assessor may issue, or approve of the Claims Assessor issuing, a replacement certificate or statement to correct the error. 2. Section 94A deals with any assessment of costs by the Claims Assessor and is in the following terms: 94A Claims assessor may assess costs (1) In making an assessment and specifying damages under section 94 in respect of a claim, a claims assessor may include in the assessment an assessment of the claimant's costs (including costs for legal services and fees for medico-legal services) in the matter. (2) An assessment of those costs may also be made (whether or not an assessment has been made under subsection (1)) if a court does not determine a matter after the issue of a certificate under section 94 but remits the matter for further assessment under this Part. (3) In making an assessment under this section, a claims assessor: (a) may have regard to the amount of any written offer of settlement made by either party to the matter, and (b) must give effect to any requirement of a court under section 151 (3), and (c) must give effect to any requirement of the regulations under Chapter 6 as to costs that may be included in an assessment or award of damages or fixing maximum fees and costs, (d) must have regard to the principles and matters referred to in section 200 of the Legal Profession Uniform Law (NSW). (4) A claimant or an insurer (or an Australian legal practitioner acting for a claimant or an insurer in respect of the relevant claim) has the same right of appeal against an assessment made under this section as the claimant, insurer or legal practitioner would have under section 89 of the Legal Profession Uniform Law Application Act 2014 if the assessment were a decision of a costs assessor under Part 7 of that Act in respect of a bill of costs. 1. As mentioned the outset of this judgement s 95 is pivotal to the determination of the issues in relation to the summons. Section 95 is in the following terms: 95 Status of assessments (1) An assessment under this Part of the issue of liability for a claim is not binding on any party to the assessment. (2) An assessment under this Part of the amount of damages for liability under a claim is binding on the insurer, and the insurer must pay to the claimant the amount of damages specified in the certificate as to the assessment if: (a) the insurer accepts that liability under the claim, and (b) the claimant accepts that amount of damages in settlement of the claim within 21 days after the certificate of assessment is issued. Note. If the amount of damages is not accepted by the claimant within that period, section 151 makes provision with respect to liability for legal costs incurred after the certificate of assessment was issued. (2A) The amount of damages payable by an insurer (including any costs assessed as payable by the insurer) must be paid within such period as may be prescribed by the regulations and the regulations may require the payment of interest on so much of the amount payable as is from time to time unpaid after the end of that period. The rate of interest may be set by reference to the rate of interest prescribed for the purposes of section 101 of the Civil Procedure Act 2005 but may not exceed that rate. (3) It is a condition of an insurer's licence under Part 7.1 that the insurer complies with this section. CLAIMS ASSESSMENT GUIDELINES 1. The parties placed reliance upon guidelines issued by the Motor Accidents Authority ("MAA") of New South Wales pursuant to s 69 of the Act with respect to procedures to be followed by Claims Assessors in the assessment of claims under Pt 4.4 of the Act. 2. Reliance was placed upon Chapters 16 and 19 of the Act by the defendant and plaintiff, respectively. The relevant component of Ch 16 (cll 16.1, 16.3 and 16.8) provides: 16.1 In conducting an assessment the Assessor may determine the Assessor's own procedure and is not bound by the rules of evidence and may inquire into any matter in such manner as the Assessor thinks fit. … 16.3 The Assessor is to act with as little formality as the circumstances of the matter permit and according to equity, good conscience and the substantial merits of the matter without regard to technicalities and legal forms. … 16.8 The Assessor shall determine the way in which an assessment is to proceed and may: 16.8.1 decide the elements of a claim on which oral evidence or oral argument may be submitted; 16.8.2 direct that evidence or argument be presented in writing; 16.8.3 direct that submissions be presented in writing; 16.8.4 determine whether an Assessment Conference is necessary and the time and place for any Assessment Conference that is to be held; 16.8.5 determine whether any other conference is necessary; and 16.8.6 direct the number and/or type of witnesses who can give evidence at the conference. 1. That relevant component of Ch 19 (in cll 19.1-19.4) were as follows: 19.1 If a party to an assessment considers that the Assessor has made an obvious error in a certificate or a statement of reasons attached to the certificate, that party may make an application to the PCA to have the error corrected within 21 calendar days after the certificate of assessment was issued. (Note: This period is different to the obvious error correction period at MAS, which is set at 30 working days after the MAS certificate was sent to the parties, which is timed to be generally consistent with the period of time for lodging a MAS review. Instead this CARS obvious error correction period is timed to be consistent with the period for accepting a CARS assessment as set out in clause 18.9 of these Guidelines.) 19.2 Any such application is to be made in writing, setting out details of the obvious error and the terms of the suggested correction. 19.3 The party making the application is to send a copy of the application to the other party. 19.4 Examples of obvious errors in the certificate or statement of reasons include, but are not limited to: 19.4.1 an arithmetic, clerical or typographical error in the certificate or statement of reasons; 19.4.2 an error arising from an accidental slip or omission; 19.4.3 a defect of form; or 19.4.4 an obvious inconsistency between the certificate and the statement of reasons explaining the certificate. FACTUAL BACKGROUND 1. The plaintiff made a claim for compensation under the Act by submitting a personal injury claim form dated 23 October 2013. 2. On 10 March 2014, the defendant sent a notice under s 81(1) of the Act to the plaintiff's solicitor stating, inter alia, as follows: We wish to advise pursuant to the Motor Accidents Compensation Act 1999, breach of duty of care has been admitted for your client's claim, however it is alleged your client was contributory negligent to the extent of 5%. This decision is made after considering all the relevant information available at this time. Our decision to allege contributory negligence is as follows: 1. Driving in an unsafe manner … 1. It was submitted by the plaintiff that that basis upon which contributory negligence was contended was vague and very broadly expressed. 2. Rothman J in Anderson described the requirements of a "s 81 offer" as follows (at [51]-[55]): [51] The provisions of s 81(1) of the Act require an insurer, in this case Allianz, to give written notice (expeditiously) as to whether it admits or denies liability. There is no third choice. There is an election: liability is either denied or admitted, each of which is mutually exclusive: State of Victoria v Sutton [1998] HCA 56; (1998) 195 CLR 291 at [40] per Gaudron, Gummow and Hayne JJ; Immer (No. 145) Pty Ltd v The Uniting Church in Australia Property Trust (N.S.W.)(1993) 182 CLR 26 at 41-2. [52] The provisions of s 81(2) of the Act allow the insurer, and allowed Allianz, to admit liability "for only part of the claim". It does not allow Allianz, or an insurer in any other claim, to admit part of the liability for the entire claim. [53] In other words, liability must be admitted or denied. The provisions of s 81 do not allow some, but not all, criteria giving rise to liability to be admitted. Such an "admission" would be a statement denying liability, if the remaining criteria, essential to the establishment of liability, were denied. [54] For example, s 81 does not permit an insurance company to admit a duty of care, but deny a breach of the duty of care. Of course an admission as to duty of care may be made, but it is not being made under s 81 of the Act. A statement by an insurance company that it admitted a duty of care but denied a breach of the duty of care would be a denial of liability. It would not be an admission of liability for only part of the claim. [55] Allianz submits that the "admission" in its s 81 Notice was an admission of partial liability. It is not. … 1. By letter dated 27 January 2015, the defendant conveyed an offer of settlement pursuant to s 82 of the Act in the amount of $25,000 in full and final settlement of the claim ("the s 82 offer"). The amount of the offer was broken down to show the various heads of damage of which its total was comprised (the most significant of which was past medical expenses). The letter made no reference to a reduction for contributory negligence. Mr Rewell SC, for the defendants, submitted – "nor does the offer wholly admit liability". 2. Pursuant to s 89A(1) of the Act, the parties participated in a settlement conference on 20 November 2015. By a letter dated 22 February 2017, the defendant conveyed an offer pursuant to s 89C of the Act of $650,000 ("the s 89C offer"). The amount of the offer was broken down to show the various heads of damage of which its total was comprised. The letter made no reference to a reduction for contributory negligence. 3. The plaintiff invited an inference that the absence of suggestion that the offer could be reduced by contributory negligence in the s 82 and s 89C offers meant that the defendant had abandoned such a claim. The defendant submitted that they were "simply compensation offers" and that it was hardly surprising contributory negligence was not offered as it was only claimed at 5%. 4. On 23 February 2017, the plaintiff lodged by his solicitor the Form 2A. The lodgement was made, in this case, to the MAA. 5. Part 7 of the Form 2A is entitled "Details About Liability". The form inquired in that section whether the insurer had "alleged contributory negligence". That concept was defined in the form as follows: "the insurer admits liability, fault or breach of duty of care on the part of its insured but says that the claimant, injured person or deceased was also partly at fault" (original emphasis). The first question was answered in the affirmative by Mr Garling making an entry in the form of cross in a box adjacent to that question. A subsidiary question was asked as follows: "what is the amount of contributory negligence alleged by the insurer". The answer to that question was "5%". Further, Mr Garling, on behalf of the plaintiff, indicated that he did not consider that he was partly at fault. 6. In the Form 2R filed by the defendant's solicitor on 10 April 2017, it was agreed that the information the plaintiff gave, with respect to Pt 7 of the Form 2A was correct. 7. The defendant prepared written submissions dated 10 April 2017, which were included with the Form 2R. The reference to contributory negligence in the defendant's written submissions was the following: 2. Liability has been admitted with an allegation of contributory negligence at 5%. 1. After the Assessor was appointed, a "First Preliminary Conference" took place between him, Mr Garling and Mr Cooper on 4 May 2017. 2. As he is required to do, Mr Foggo prepared and distributed, on 4 May 2017, a report of the first preliminary conference. 3. Under the heading "Claim Summary", Mr Foggo recorded the position on liability: 1. Liability (a) The insurer has admitted liability (including admission of breach of duty of care), and asserts that the Claimant was guilty of contributory negligence to the extent of 5%. 1. Written submissions dated 6 September 2017 were prepared on behalf of the plaintiff. Those submissions made no reference to contributory negligence. The report does not refer to any position taken by the plaintiff in this respect. There was no request by the plaintiff for particulars of the allegation of contributory negligence. 2. As previously mentioned, the claim was allocated a date for an Assessment Conference, which was held on 9 November 2017. The plaintiff was represented by Mr Toomey SC, Mr Morgan of counsel and Mr Garling. The defendant was represented by Mr Renshaw of counsel and Mr Cooper. 3. There is no transcription of the Assessment Conference. 4. The defendant submitted that the allegation of 5% contributory negligence was maintained throughout the case management process. 5. The plaintiff's solicitor, Mr Garling, recalled Mr Renshaw saying to the Assessor, "I don't wish to make any submissions in relation to the issue of contributory negligence". 6. Senior Counsel for the plaintiff at the Assessment Conference, Mr Toomey SC, recalled Mr Renshaw saying to the Assessor at the commencement of the Assessment Conference, "I don't wish to say any fining about contributory negligence; you've seen the statement of the driver". The "statement of the driver" to which Mr Renshaw referred was the statement of the driver of the vehicle insured by the defendant, namely, Mr Jarrett Hadid, dated 4 February 2014, in which Mr Hadid said as follows: 33. I thought there was a gap so I merged into the middle lane. As I did so i heard a crunching sound and hit my brakes and stopped immediately. 34. I was only travelling at 1 or 2 km/h when the crash happened. The other car was travelling quite fast. It flew past me and then came to a stop in the middle of the intersection. 1. Junior Counsel for the plaintiff at the Assessment Conference, Mr Morgan, recalled the Assessor asking Mr Renshaw, "What would you like to say about contributory negligence?". To which Mr Renshaw replied, "We don't wish to say anything". 2. The defendant's solicitor, Mr Cooper, recalled Mr Renshaw saying the following to the Assessor, "I have nothing further to add. We rely on the statement of the driver and the evidence before you and don't wish to add anything further". 3. Ultimately, the parties agreed the Court should proceed upon an agreed fact as to the submissions from Mr Renshaw for the defendant vis-à-vis contributory negligence as follows: "I do not want to say anything other than which has been put in writing" and Mr Renshaw made a reference to the driver's statement. 4. There was no cross-examination of the plaintiff regarding the issue of contributory negligence during the Assessment Conference. 5. Prior to the issuing of the Certificate, the defendant made a further written submission dated 20 December 2017. The submission concerned a further statement provided on behalf of the plaintiff concerning non-economic loss. The submission advanced by the defendant was in lieu of the matter being relisted for the purpose of the witness being cross-examined. The plaintiff contended in a chronology provided to the Court that no submission were made as to contributory negligence in this submission although it is unclear why a submission going to that issue would have been applicable having regard to the subject matter of that submission. 6. The Assessor also issued reasons for decision under a heading "Reasons for Decision – General Assessment" ("the Reasons for Decision"). Under the sub-heading "Introduction", the Assessor stated as follows: 1. The claimant was driving his vehicle south on Spit Road, Mosman when a car in the adjacent lane moved into his lane, colliding with his vehicle. 2. The insurer alleged that the claimant was guilty of contributory negligence and sought a reduction of the claimant's damages of 5%. 3. The insurer also disputes the damages sought by the claimant. 1. The third heading in the reasons for decision is entitled "Contributory Negligence". Under that heading, the Assessor stated the following: 5. During the [A]ssessment [C]onference, counsel for the insurer advised that no submissions would be made in respect of this issue. There is no evidence before me that the claimant contributed to the cause of the motor vehicle accident. The insured driver purports to make an estimate of the claimant speed prior to impact, without having seen the claimant until after the collision, and for some reason which eludes me, obviously believes that the claimant was responsible for the accident. Accordingly, I find that the claimant is entitled to a full award of damages without any deduction for contributory negligence. 1. That heading is followed by a series of headings in the Reasons for Decision entitled: "Background"; "Additional Material Provided at the Assessment Conference"; "Additional Material Provided after the Assessment Conference"; "Evaluation"; "Non Economic Loss"; "Past Treatment Expenses"; "Future Treatment Expenses"; "Past Loss of Earning Capacity"; "Future Loss of Earning Capacity"; "The Claims for Domestic Assistance"; "Assessment of Damages Summary"; and "Costs and Disbursements". 2. As to the latter two headings, under the heading "Assessment of Damages Summary", the following appears (the amounts for each head of damages were redacted in the evidence): I assess the claim as follows on the finding set out above: Non-Economic Loss [redacted] Economic losses • Past loss of earnings (incl. superannuation and Fox v Wood) [redacted] • Future loss of earnings (incl. superannuation) [redacted] • Past treatment (incl. s 83 payments) [redacted] • Future treatment [redacted] • Past gratuitous care [redacted] • Future gratuitous care [redacted] Total of economic losses and non-economic loss Reduction for contributory negligence – $nil 1. Under the heading, "Costs and Disbursements" the assessor stated as follows: a. I assess the Claimant's legal costs and disbursements in accordance with s[s] 149 and 150 of the Act and the Motor Accidents Compensation Regulation 2015 in accordance with the attached sheet in the sum of [redacted]. b. The only issue taken by the insurer in respect of costs was the witness expenses charged by Mr Eakin for attending the [A]ssessment [C]onference and also for a conference with senior counsel. In my view, Mr Eakin'[s] fees are appropriate and given the complexity of the matter and the extent of the material which he had provided to the insurer and also in response to my s 100 direction, a conference with senior counsel was warranted prior to his oral evidence. In addition, it appears to me that witness expanses are not regulated disbursements. Mr Eakin'[s] expenses are an expense to his practice for the loss of his chargeable time and as such attract GST. I accordingly allowed his witness expenses as claimed. 1. By email from his solicitor dated 22 December 2017, the plaintiff informed the solicitor for the defendant, as earlier mentioned, that he accepted the assessment of damages specified in the Certificate, pursuant to s 95(2) of the Act. 2. By letter dated 8 January 2018, the defendant's solicitor wrote to the plaintiff's solicitor in the following terms: We refer to the Award of the Assessor and advise pursuant to s95 of the Motor Accident [sic] Compensation Act 1999 the insurer does not accept that liability under the claim. Accordingly, the Insurer does not accept the assessment. As the Plaintiff is at liberty to now commence proceedings, we look forward to receiving the Plaintiff's Statement of Claim in due course … 1. The defendant has not paid the damages in the amount awarded by the Assessor. CONSIDERATION Did the Certificate incorporate the Reasons for Decision? 1. The plaintiff contended, in this respect, as follows: 1. The incorporation of the Reasons for Decision into the Certificate or the importation of the content from the Reasons for Decision into the Certificate is, as a matter of statutory construction, not available. Unless something is done to set aside, quash or correct the Certificate that document stands as "the record" for the purposes of s 95 and gives rise to the rights and obligations of the parties under that provision as the "operative instrument". 2. Section 94(4) and (5) of the Act both distinguish between the Certificate and the Reasons for Decision and treat them disjunctively. 3. The reference to "attach a brief statement to the certificate" in s 94(5) merely emphasises there are two separate documents. The attachment is merely for convenience in an "effort to avoid one going without the other". The Parliament could have but expressly did not provide the Certificate shall incorporate brief reasons for the assessment. 4. Section 95 creates rights and obligations solely by reference to the Certificate. Section 95(2)(b) provides that the Certificate triggers the time for a claimant's acceptance of the assessment. 5. Whilst Pt 4.4 of the Act does not contain a provision stating that the Certificate is conclusive evidence of the matters it conveys, s 94(6) is to the same effect in that it provides that errors may be corrected on application to the Principal Claims Assessor (and remedies are available under s 69 of the Supreme Court Act 1970 (NSW)). 6. The judgment of Leeming JA in Pham v NRMA Insurance Ltd (2014) 66 MVR 152; [2014] NSWCA 22 ("Pham") does not avail the defendant on this issue as Leeming JA was dealing with what formed part of the record for the purposes of judicial review proceedings. So to was Lord Cairns LC in Overseers of the Poor of Walsall v London and North Western Railway Company [1878] 4 AC 30 ("Overseers of the Poor") at 40. Pham should be understood in the context of Leeming JA's reference to the certificate in Pham in which the following was stated: "Details of the assessment and full reasons for this decision" being attached to the Certificate. By this, Leeming JA preserved the distinction between the Certificate and the reasons as was emphasised by his Honour, in the final sentence of [27] of Pham. The question considered by His Honour in that context was of what constituted the record in a case concerning error of law on the face of the record and not whether the reasons were part of the certificate. 7. Finally, the judgment of Leeming JA in Pham was obiter and not binding (whilst not put as such, it may be presumed that if the reasons of his Honour were contrary to those proposed by the plaintiff they should not be followed). 1. I do not consider the submissions of the plaintiff as to the judgment of Leeming JA (with whom Tobias JA agreed) in Pham may be accepted. 2. Pham concerned a disputed claim for damages under the Act where the defendant insurer had admitted liability. Those damages were assessed by a Claims Assessor. 3. The insurer brought proceedings for judicial review pursuant to s 69 of the Supreme Court Act alleging the Claims Assessor made errors of law that vitiated her decision which were recorded in a brief statement of reasons pursuant to s 94(5) (see at [3], [12] and [16] per Macfarlan JA and [27] per Leeming JA). 4. The Claims Assessor's decision was set aside at first instance essentially upon the basis that there was no evidence before the Claims Assessor to sustain her decision so far as it concerned future economic loss (and that the requirements of s 126 of the Act were not complied with). That determination was reversed on a number of bases including that the trial judge had regard to evidence not tendered at the hearing before him. 5. Leeming JA agreed with Macfarlan JA that the appeal should be allowed substantially for the reasons given by Macfarlan JA, but also for additional reasons. The fourth of those reasons (at [27]) attracted attention here and is extracted for the purposes of analysis below: [27] Fourthly, NRMA submitted that the assessor's reasons attracted s 69(4) of the Supreme Court Act 1970 (NSW), on the basis that she was a "quasi-judicial tribunal". No written or oral argument was addressed to that proposition, which is not self-evident (and was merely assumed in Kerr: see at [17]). It is not necessary to rely on s 69(4). The assessor's certificate undoubtedly incorporated her reasons, and not merely by reference, but also by physically attaching them to the certificate, in accordance with the obligation to do so in s 94(5) of the MAC Act. After recording the amounts of damages and costs, the certificate states "Details of the assessment and full reasons for this decision are attached to this Certificate". The certificate thereby became analogous to the "speaking order" as opposed to the "unspeaking or unintelligible order" to which Earl Cairns LC referred in this context in Overseers of the Poor of Walsall v London and North Western Railway Co (1878) 4 AC 30 at 40. A very clear way of causing the reasons to form part of the record is for statute to require reasons to be given and to be attached to the certificate: cf Craig v South Australia [1995] HCA 58; 184 CLR 163 at 181-183. 1. The judgment of Lord Cairns LC in Overseers of the Poor at 40, relied upon by Leeming JA (and cited in the above extract), is extracted below: … But supposing that the Court of Quarter Sessions did not adopt that course, there was still another mode by which any question of law which appeared to the Court of Quarter Sessions doubtful, might be left open for the exercise of the judgment of a higher tribunal. All that was necessary was that the Court of Quarter Sessions, in making its order, should not make it an unspeaking or unintelligible order, but should, in some way state upon the face of the order, the elements which had led to the decision of the Court of Quarters Sessions. If the Court of Quarter Sessions stated upon the fact of the order, by way of recital, that the facts were so and so, and the grounds of its decision were such as were so stated, then the order became upon the face of it, a speaking order; and if that which was stated upon the face of the order, in the opinion of any party, was not such as to warrant the order, then that party might go to the Court of Queen's Bench and point to the order as one which told its own story, and ask the Court of Queen's Bench to remove it by certiorari, and when so removed to pass judgment upon it, whether it should or should not be quashed. … 1. The question being considered by Leeming JA in Pham at [27] was whether the Claims Assessor's reasons were caught by the provisions of s 69(4) of the Supreme Court Act; a proposition his Honour recognised as contentious. 2. In that sense, his Honour was, as submitted by the plaintiff, concerned with whether the Claims Assessor's reasons formed part of the record for the purposes of judicial review. However, that submission overlooks the fact that the focus of his Honour's attention was upon why it was unnecessary to rely upon s 69(4) of the Supreme Court Act in the case of the Claims Assessor's reasons given under s 94(5) of the Act. It is that part of his Honour's analysis, which directly bears upon the question now under consideration. 3. I accept the submission advanced for the defendant that, where Leeming JA referred to the Certificate having "incorporated her reasons" his Honour was using the word "incorporated" advisedly, by reference to Overseers of the Poor, namely, the incorporation in the Certificate of the Claims Assessor's reasons. The Certificate issued under s 94(4) of the Act is analogous to or is a "speaking order" which may be examined by a Court in the sense that the Court may examine the circumstances that gave rise to the Certificate. Thus, in my view, Leeming JA concluded that, in the circumstances referred to by his Honour, the Claims Assessor's reasons issued pursuant to s 95(5) of the Act were incorporated in the Certificate by the attachment of those reasons to the Certificate as required by that provision. In doing so, the reasons become analogous to a speaking order where the bases for the certification become part of the Certificate itself. 4. The final sentence of [27] of Pham constitutes, in my view, no more than a reference to authority supportive of the conclusions made in the balance of the paragraph. 5. There was an argument that that passage of his Honour's remarks was obiter. That may be doubted but, in any event, and with respect, I agree with them. Given the consideration concerned equivalent provisions of the Act, I consider they should be applied in the present circumstances. 6. Rather than s 95(5) being demonstrative of a distinction between the Certificate and the reasons attached to the same, I consider the provisions, when seen in the light of the foregoing analysis, are constructive of a conclusion that the Certificate given under s 94(4) will incorporate the reasons given under s 94(5) when those reasons are, in accordance with the provisions of s 94(5) attached to the Certificate. Here the Assessor attached the reasons to the Certificate and he noted that he was doing so on the face of the Certificate. The fact that the Assessor actually made his reasons part of his finding on the Certificate makes for an a fortiori conclusion. 7. Section 94(6) warrants no different conclusion; on one view, it is consistent with this analysis as it permits correction of both the Certificate and the reasons. The word "or" in the context it is used in a s 94(6) is conjunctive in the sense that it means both the Certificate and reasons may be corrected. 8. The provisions in s 95(2)(b) are neutral to the question of construction. 9. In my view, the Certificate incorporated the Assessor's Reasons for Decision. Did the Assessor find that the Defendant had wholly admitted liability? 1. Before embarking upon this question, it is useful to expand upon the observation made at the beginning of this judgment. 2. The defendant contended that the assessment of damages by the Assessor is not binding upon it because it did not wholly accept liability by maintaining contributory negligence. 3. In Lee v Yang, Giles JA found that contributory negligence can be readily regarded as going to liability and, in that context, it is open to an insurer to not accept an award of damages of the insurer contesting liability with a contributory negligence. In those circumstances s 95(2)(a) is not satisfied and the assessment by the Assessor is not binding. 4. The plaintiff contended that in Lee v Yang, Giles JA found (at [26]) it was open for the insurer to contest the assessment of damages only if the insurer contested liability "as found by the assessor". 5. The plaintiff first contended that the defendant's liability was not found by the Assessor. 6. It was contended (partly by way of connection to the plaintiff's bona fides contention) as follows: 34. As to the first, as is apparent on the face of the Certificate, the damages were assessed with "the insurer having wholly admitted liability for the claim". It is not open to the Defendant to assert that Assessor Foggo made a finding as to liability, in circumstances where it made no submission, either or all) or in writing, as to the way in which the Plaintiff was said to have been negligent or how any negligence was causative of his damage, and in circumstances where no information was ever provided to the Plaintiff as to the way in which he was said to have been negligent and nothing in that regard was ever put to the Plaintiff in cross-examination. 1. It was also contended that the defendant did not "contest" any aspect of liability at the Assessment Conference and it was not now open to contest any aspect of liability arising from the Certificate. 2. As to this contention, the plaintiff further contended: 35. As to the second, there is nothing in the Defendant's written submissions, or in any variation of what Mr Renshaw said to the Assessor that could be construed as a "contest" concerning any aspect of liability. If anyone on the Defendant's side of the record thought there was a contest, it was never taken up with the Plaintiff, and it eluded him, his legal representatives, and the Assessor. Moreover, its terms were never so much as articulated. No contest is now open. 1. It was submitted there was an obvious inconsistency between the Certificate and the Reasons for Decision, although the expression of a view by the Assessor did not mean he determined the issue of contributory negligence. He was expressing dissatisfaction as to the approach taken by the defendant. 2. If the defendant wished to assert that the Certificate is not what it says on its face, then the onus of establishing the same rests on the defendant as the insurer. The Assessor did no more than, in effect, find the issue of contributory negligence abandoned. This is what he meant by the words "I find that the claimant is entitled to a full award of damages without any deduction for contributory negligence". The Reasons for Decision 1. In my view, the Reasons for Decision reflect the outcome of an adjudication process by the Assessor over the question of contributory negligence and do not demonstrate the Assessor perceived the issue as having been abandoned by the defendant. His pejorative remarks were only directed to the merit of the defendant's position. 2. The use of the words "I find" in the expression "Accordingly, I find that the claimant is entitled to a full award of damages without any deduction for contributory negligence" are clearly consistent, when considered alone or with the balance of his reasons, with the Assessor having adjudicated upon and determined an extant issue of contributory negligence. 3. Paragraph 5 of the Assessor's reasons is not consistent with the Assessor merely expressing disapproval at the defendant's conduct. He makes a finding on the evidence. In the context used, the word "find" means to disclose the outcome or hold or adjudge. 4. I agree with the defendant that where the Assessor stated in his reasons "there is no evidence before me that the claimant contributed to the cause of the motor vehicle accident", the Assessor does not find that there was literally no evidence but rather that the evidence did not support a finding of contributory negligence. The Assessor had the insured driver's statement and rejected the evidence. 5. It is true the Assessor stated at the outset of para 5 that "Counsel for the insurer advised that no submissions would be made in respect of this issue". However, the Assessor did have a written submission from the defendant (as Mr Renshaw's submission confirmed) and hence, he must be taken as referring to there being no further submissions. 6. Finally, the Assessor refers to "0" deduction for contributory negligence in his final assessment, consistent with him having determined that, although sought by the defendant, no such reduction would be made in that respect. 7. The same factors support the conclusion that the Assessor did not consider the issue of contributory negligence had been abandoned. It is inconceivable an experienced Claims Assessor would make a finding as to contributory negligence in that manner if the issue had, in fact, been abandoned. The Certificate 1. Upon those conclusions there is an obvious tension between the reasons given by the Assessor for the Certificate and what appears on the face of the Certificate in that part of the Certificate in which it is stated the defendant had accepted liability for the claim. 2. The reconciliation of that tension should properly result, in my view, in the conclusion that the heading on the Certificate constituted an error in the senses of a mistake whether that was, as the defendant proffered, due to the use of a pro forma (as illustrated by the entry at the bottom of the first page) or some other reason. 3. There are two reasons for that approach. First, the Assessor attached the reasons to the Certificate as part of a finding he made under the Certificate. Those reasons reflected a conscious consideration of the issue of contributory negligence. His reasons not only express that the defendant had maintained contributory negligence but went further to discuss why that proposition had not been established on the evidence. 4. Secondly, the Certificate has a further contraindication, namely, the Assessor's findings as to costs, the third finding on the Certificate. 5. The amount awarded is redacted but presumably corresponds to his assessment of costs in his Reasons for Decision. 6. In that respect, the defendant's submission, which did not seem to be the subject of dispute, may be accepted: 29. Mr Foggo again refers to contributory negligence in his "Assessment of Damages Summary" (Mr Cooper's Affidavit, pp. 65 - 66). 30. Mr Foggo then proceeded to assess the costs and disbursements that the Defendant is required to pay to the Plaintiff's solicitor. 31. Costs in the CARS process are prescribed by regulation. The amount of costs awarded depends on, inter alia, the amount awarded by the claims assessor, and whether liability was or was not wholly admitted by the insurer. 32. The assessment of costs is set out in a "Costs Calculator" which the assessor is required to attach to his Certificate and Reasons (Mr Cooper's affidavit, p. 68). 33. As can be seen, Mr Foggo assessed the Claimant's costs on the basis of "liability not wholly admitted". The assessment under "Stage 4", based on the damages awarded, was $53,085.83 plus GST, to which was added an additional 2% under "Stage 5", because the claim was not finalised until the issue of Mr Foggo's Certificate. The additional costs awarded were $42,685.83 plus GST. 34. There has been no objection by the Claimant's solicitor to costs being awarded on the basis that liability was "not wholly admitted" by the Defendant (those costs exceed the amount prescribed if liability is wholly admitted). [Original emphasis.] 1. Those conclusions strongly weigh against the grant of the declaration insofar as the declaration was sought upon the basis that the Certificate certifies not only an assessment of damages (accepted by the plaintiff) but that liability was wholly accepted by the defendant. The Reasons for Decision should result in the conclusion that the Assessor made determinations, which arose out of the Assessment Conference, upon the basis that liability was contested vis-à-vis contributory negligence. 2. It is difficult to see how the availability of the defendant to seek a correction under s 94(6) could enliven the discretion of the Court to grant the declaration as the correction could, on my findings, only operate in the manner found in this judgment vis-à-vis the entry as to liability on the Certificate. Was the Allegation of Contributory Negligence Abandoned at or by the Commencement of the Assessment Conference? 1. Whilst put partially in the contest of liability, the submission of the defendant as to abandonment were neatly encapsulated in the following written submission by the defendant: 27. Mr Foggo does not state that the allegation of 5% contributory negligence was abandoned by the Defendant at the Assessment Conference. This is consistent with the Defendant's assertion that contributory negligence was never abandoned. [Original emphasis.] 1. Further, it was submitted: 28. The dispute as to contributory negligence is determined by Mr Foggo. Mr Foggo makes a specific finding on the question of contributory negligence. [Original emphasis.] 1. It was contended by the defendant that Mr Renshaw's submissions to the Assessor were consistent with him adhering to his instructions and his primary duty not to advance unmeritorious arguments. The driver's statement could not have sustained a case for contributory negligence. 2. This issue needs to take place having regard to the scheme of the Act that is helpfully described in the judgment of Giles JA in Lee v Yang at [1]: [1] GILES JA: The stated objects of the Motor Accidents Compensation Act 1999 ("the Act") include encouraging the early resolution of claims to compensation for injuries sustained in motor accidents (s 5(1)(b)). As part of the encouragement, notice of a claim is to be given to the third party insurer of the person against whom the claim is made (s 72(2)), the insurer acts for that person (s 78), and the insurer must try to resolve the claim justly and expeditiously (s 80(1)). By s 81(1), the insurer must promptly notify the claimant whether it admits or denies liability for the claim. Part 4.4 of the Act provides for claims assessment and resolution. By s 108, court proceedings in respect of a claim may not be commenced unless a certificate has issued that the claim is exempt from assessment, or there has been assessment of the claim and a certificate has issued in respect of the claim. 1. As earlier mentioned, it was submitted by the plaintiff that the judgment of Rothman J in Anderson stood for the proposition that the Court may, in considering whether an insurer had admitted liability for the purposes of ss 94(1) and 95(2)(a), inquire into the bona fides of any communication (or conduct) by the insurer that liability is not wholly admitted – in this case that the insurer maintained there was contributory negligence by the plaintiff. That submission fixed upon the observations by his Honour at [77]. 2. As this issue goes to whether any issue as to bona fides or the genuineness of the defendant's position was pressed in support of the declaration sought by the defendant, those contentions should be firstly addressed in considering this last issue. 3. His Honour stated at the outset of his judgment that the question for determination was whether an assessment of damages made by a Claims Assessor as stipulated in a certificate was binding on the insurer. The answer to that question depended upon resolution of a further issue, namely, whether the insurer had admitted liability under the claim made by the defendant for the purposes of s 95(2)(a) of the Act. His Honour found the insurer had admitted liability (Anderson at [92]) and found for the first defendant, Ms Anderson. 4. His Honour recorded that the issue had little to do with the details of the motor accident involving the Ms Anderson but concerned the operation of ss 94 and 95 of the Act and "a proper construction of the statements and conduct" of the insurer (at [2]). 5. His Honour encapsulated his reasons for judgment as follows (at [88]): [88] On the facts in these proceedings, Allianz by the issue of the s 81 Notice and its subsequent documentation has admitted breach of the duty of care and damage, thereby admitting liability, and has also admitted liability by acknowledging that liability was not in issue. 1. That conclusion may be explained by reference to the following aspects of the judgment in Anderson: 1. The insurer issued a s 81 notice. The notice issued stated that the insurer admitted a "breach of duty of care" in relation to the circumstances of the accident and further stated "we reserve our right to withdraw our admission and re-assess our position, at a later date, if further information is received that would cause us to alter our view" (at [5]). 2. The insurer submitted that it had admitted a breach of duty of care but not liability. His Honour found that an admission of a duty of care but a denial of a breach of that duty was a denial of liability (at [54]). The insurer had patently not admitted liability but admitted one aspect of liability. 3. The insurer at all stages had conceded damage had been suffered as a result of the breach of duty which was admitted (at [64]). There was not only an admission of breach of duty of care but an admission that damage arose as a consequence of that breach (at [82]). 4. By s 81(4), the insurer was permitted to admit liability, where a denial had been earlier made, but not to deny it, where an admission had been made (at [59]). 5. In the subsequent communication and conduct by the insurer after the s 81 notice it admitted liability. The insurer had made an admission by the Form 2R filed by the insurer. His Honour recorded that, in in the Form 2R, the insurer stated that liability was not in issue. 6. The report issued by the Claims Assessor after the Preliminary Conference confirmed that admission, although a final report by the Claims Assessor indicated there was a "causation" issue which would be canvassed by the insurer (see at [13]-[17]).There was no dispute by the insurer as to those reports. 7. His Honour thus observed that, by its comments, statements and conduct the insurer admitted liability (at [58]). 1. It was in this context that his Honour distinguished the circumstances in Anderson from those in Lee v Yang as follows (Anderson at [77]): [77] Given the circumstances that liability was unarguably in issue in the proceedings that gave rise to the appeal in Lee v Yang, the comments of the Court of Appeal do not support the submission of Allianz, which depends upon a construction as to whether, in truth, liability was put in issue or admitted. 1. In my view, no part of his Honour's findings was predicated upon an assessment of the bona fides of any statement made or position advanced by of the insurer in that case. Rather, his Honour was concerned with what the objective facts showed vis-à-vis any admission. The reference to whether there was "in truth" liability should be read as being the equivalent of his opening statement that he was concerned with the "proper construction of the statements and conduct" of the insurer; those statements and comments being reflected in the actual text of relevant communications or the insurer's recorded response to communications which stated there was no issue as to liability. 2. So far as the various steps required to be taken with respect to a claim were concerned, his Honour concluded the insurer expressly agreed there was no dispute as to liability or that it acquiesced in statements or reports to that effect. As to the distinction sought to be drawn by the insurer between its concession, as to a breach of duty of care and liability, his Honour found all of the elements of liability were present in the admission made by the insurer. 3. Anderson is not authority for the bona fides of an insurer's conduct or statements as to liability being available for consideration in the course of assessing whether an insurer had accepted liability for a claim for the purposes of ss 94(1)(a) and 95(2)(a) of the Act. It is in that light I turn to the resolution of the third issue in this matter. 4. The plaintiff submitted that, if the allegation of contributory negligence was "never truly made", then the defendant subsequently abandoned that position and wholly admitted liability. 5. The determination of whether the defendant abandoned contributory negligence based on the statements and conduct of the defendant may be examined in two parts. First, conduct prior to the Assessment Conference and then conduct at the Assessment Conference. Conduct prior to the Assessment Conference 1. In the plaintiff's written submissions, the plaintiff challenged the genuineness of the s 81 notice. That notice, amongst other aspects of the defendant's conduct, were described as a "sham". 2. In the light of the above analysis of the judgment in Anderson and the concessions made on behalf of the plaintiff, in that respect, that contention may be put aside, save to mention that the defendant clearly raised contributory negligence in the notice. By that notice the defendant thereby denied liability insofar as contributory negligence was pleaded. 3. It was then suggested the ss 82 and 89C offers by the defendant represented an abandonment, presumably by omission, as the offers made no mention of contributory negligence in those offers. Thus, the plaintiff relied upon, in that respect, a failure to incorporate in the offers any reference to contributory negligence, which must result in that conclusion the defendant abandoned the issue. 4. I do not agree. There is no warrant in inferring that the defendant had abandoned its position regarding liability as a result of those omissions for three reasons. First, there was no statutory obligation to make a statement regarding contributory negligence or admission of liability per se under ss 82 or 89C. Secondly, the defendant conveyed a simple offer of compromise as contemplated by those provisions. Thirdly, and most significantly, the solicitor for the plaintiff recognised in the Form 2A that the claim for contributory negligence by the defendant was extant. 5. The defendant's stated position on contributory negligence in the s 81 Notice did not change in the defendant's written submission to CARS or by the report of its position in the Preliminary Conference. 6. Two considerations arise from that conclusion. First, in order for the plaintiff to demonstrate abandonment it must be shown that abandonment occurred during the hearing of the Assessment Conference. Secondly, this matter sits in contrast to Anderson where the insurer had not disputed liability in either the Form 2R or the Preliminary Conference. Conduct at the Assessment Conference 1. The plaintiff submitted that the conduct of Mr Renshaw was such that, in Court proceedings he would have been taken by the Court to have abandoned any denial of liability by the insurer; he was not really keeping alive the issue of contributory negligence and, consistent with his professional obligation the Court, Mr Renshaw had not advanced a "baseless argument". That the argument was baseless is confirmed by the absence of cross-examination of the plaintiff and a failure to articulate the basis for the claim of negligence by the plaintiff beyond an ambit statement of unsafe driving. Further, the reference to the driver's statement did not elucidate the basis for the claim. 2. This contention meets three immediate difficulties. 3. The first is the earlier finding of the Court, namely, that the Assessor made a determination as to contributory negligence by his finding rejecting the defendant's contention in that respect. Thus, the Assessor adjudicated the issue. His approach, I have found, was inconsistent with any conclusion that the defendant had abandoned contributory negligence. 4. Secondly, it was common ground Mr Renshaw relied upon his written submissions, which expressly conveyed the defendant's position as to contributory negligence. There was, in fact, no inconsistent position by the defendant as to the question of contributory negligence from the making of the claim by the plaintiff under s 72 of the Act. 5. Thirdly, whilst there is no transcript of the Assessment Conference, what is known is that Mr Renshaw did not expressly abandon contributory negligence. 6. What remains then is the plaintiff's contention that, when properly understood, Mr Renshaw should be taken to have abandoned the claim in deference to his duties as counsel not to pursue "baseless arguments". 7. It should be at once recalled that the relevant issue here is not merit of the defendant's case on contributory negligence. The question is not whether Mr Renshaw should have abandoned that position based upon the Court's assessment that there was no basis to find contributory negligence by the plaintiff (consistent with an ethical obligation held by Mr Renshaw) but whether, in fact, he did, implicitly, take that step, notwithstanding the consistent maintenance of the defendant's position as to contributory negligence since the inception of the claim. Further, the plaintiff's submission, in this respect, had the hallmarks of his earlier submissions as to bona fides in that they required the Court to make qualitative assessments as to the defendant's case as put by its counsel. 8. In any event, I do not consider the plaintiff's contentions in that respect may be accepted. 9. The three immediate difficulties faced by the plaintiff's contention, as described above, are significant contradictors to the plaintiff's case in this respect. 10. However, there are other factors both contextual and substantive in nature which point against the plaintiff's case. 11. I agree with the submission advanced by the defendant as to the relevance of Ch 16 of the Claims Assessment Guidelines, to which I now turn. 12. The conduct of counsel needs to be assessed in circumstances where the procedure adopted at the Assessment Conference is largely inquisitional in nature and where the Assessor is given wide power over the conduct of the proceedings which are informal. The presentation of cases in this context may be shortened or propositions put in largely perfunctory terms, even though, in this case, the Assessor expressed criticism of the defendant's position on contributory negligence. 13. The Court does not have full account as to how Mr Renshaw's submissions arose and whether there was any other exchange with the Assessor, but the common account of Mr Renshaw's submissions was consistent with submissions being advanced in such an environment (particularly where, as I have noted, the insurer has at no earlier stage abandoned contributory negligence). 14. There are further observations which may be made as to why counsel had not abandoned his client's position as to contributory negligence in the light of the circumstances in which counsel's submissions were put. 15. It is one thing to offer no submission in support of a pleading or contention, it is quite another to rely on a prior written submission (consistent with the maintenance of the contention) and evidence, even if, as the plaintiff submitted, both were relatively weak. Counsel's submissions may also be understood as demonstrative of recognition that his case, in that respect, may be unsuccessful rather than an abandonment per se. 16. Further, the Assessor's statement that there was no evidence before him as to how the plaintiff contributed to the cause of the accident needs to be understood, in light of Mr Renshaw's submissions, relying upon the evidence of the driver represented by the defendant. That evidence may have been properly doubted as to its veracity or the weight to be given to it but that was the evidence of the interest represented by the insurer which was before the Assessor and did not amount, in itself, to an abandonment. 17. For the reasons given above, I do not consider that the statements made by or conduct of the defendant at the Assessment Conference supports a conclusion that the defendant accepted liability at the Assessment Conference. CONCLUSION 1. The plaintiff has not established that the declaration he seeks should be granted by the Court. Whilst the Certificate incorporated the Reasons for Decision and there was a discrepancy between the opening entry on the Certificate and the Reasons for Decision, I have found that, when read with the Reasons for Decision, the Certificate should be understood as not conveying the defendant wholly accepted liability for the claim. Further, I do not consider that the defendant abandoned contributory negligence at any point including in the Assessment Conference. 2. Thus, the assessment by the Assessor of damages is governed by s 95(1) as the defendant did not accept liability for the claim with no reduction for contributory negligence. 3. It follows that s 95(2)(a) was not satisfied and the Assessor's award is not binding on the defendant. 4. Further, it follows that the order for relief sought in prayer 2 of the summons must be refused. ORDERS 1. The Court orders: 1. The summons filed by the plaintiff on 6 February 2018 is dismissed; and 2. The plaintiff shall pay the defendant's costs as agreed or, in default of agreement, as assessed. ******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 28 March 2019