CHAPTER 5: ASSESSMENTS - sira.nsw.gov.au · CHAPTER 5 ASSESSMENTS . ... refer to clause 14.16 of the Claims ... that the claimant has a once and for all chance at compensation as

CHAPTER 5 ASSESSMENTS

Once CARS has conducted an allocation review of the file and considers the

claim ready and appropriate for assessment the preliminary conference, the PCA

through the case managers allocates the claim to an Assessor. This chapter will

guide and assist CARS Assessors with all facets of the assessment process.

5.1 Preparing for the Preliminary conference

5.1.1 Are there any conflicts or disqualifying associations?

In deciding whether an Assessor should disqualify him/herself from assessing the

claim, Assessors should consider the following:

1. Have you or your firm acted for either party?

2. Have you had any involvement with any of the likely witnesses?

3. Do you have a pecuniary or similar interest in a claim before you?

The fair minded lay observer test should be applied. There is no rule of automatic

disqualification where there is an interest, as the High Court stated (per Gleeson

CJ, McHugh, Gummow and Hayne JJ) said in Ebner v Official Trustee (2000)

205 CLR 337:

“The bare assertion that a judge (or juror) has an interest in litigation or an

interest in a party to it, will be of no assistance until the nature of the

interest and the asserted connection with the possibility of departure from

impartial decision making is articulated. Only then can the reasonableness

of the asserted apprehension of bias be assessed”

Issued 1 July 2009 Chapter 5 5 - 1

Assessors should to some extent be robust in view of the fact all Assessors are

coalface practitioners. For more guidance on conflicts and disqualifying

associations please refer to chapter 4 of this Practice Manual.

If an Assessor determines there is a conflict or otherwise chooses to disqualify

him or herself, notify the case manager immediately so that the claim can be

reallocated as soon as possible. If the conflict is discovered shortly before the

preliminary conference then it may be best to conduct the preliminary

conference, inform the parties and then notify the case manager and return the

file to CARS. Of course if the parties waive the right to object to you hearing and

determining the claim then proceed.

5.1.2 What is the Claim About?

The Assessor may find it helpful to make a file summary which will assist in

preparing for the first preliminary conference and which may be used to refresh

the Assessor’s memory at subsequent preliminary or assessment conferences.

Some of the issues that may be included in the summary are as follows:

• Date of accident/date of birth of Claimant.

• What is the liability status – admitted or is contributory negligence

alleged?

• Has entitlement (or non-entitlement) to non-economic loss been agreed or

determined by MAS? Do the parties accept the MAS determination or is

there still an issue e.g. causation?

• What is in issue in terms of heads of damage?


• What issues are there within each head of damage e.g. for economic loss

is it rate of pay; overtime; age of retirement?

• What information is available and are there gaps in the available

information? Is there any readily available information that could be

obtained by either party before any further preliminary conference?

• Plan questions for the preliminary conference and any variation to the

appropriate standard directions for the preliminary conference report.

5.1.3 Is the Claim Ready to Proceed to Assessment?

The Assessor should consider such things as:

• Whether there are any MAS referrals likely and necessary?

• Is one or other of the parties waiting on additional medical reports,

taxation returns, particulars and so on?

• Whether the parties have fully explored settlement or whether time should

be given for them to negotiate?

• Is there sufficient information for the Assessor to proceed?

5.1.4 Is the Claim Suitable for Assessment?

Section 92(1)(b) provides that an Assessor may make a preliminary

determination and determine that a claim is unsuitable for assessment. The

Assessor makes a recommendation to the PCA and if the PCA agrees with that

recommendation, the PCA issues a certificate of exemption. Assessors should


refer to clause 14.16 of the Claims Assessment Guidelines and chapter 6 of this

Practice Manual, (the exemption chapter) for guidance in considering the

suitability of the claim for assessment.

5.1.5 How should the Assessment be Conducted?

Consider clause 16.8 of the Claims Assessment Guidelines and the following

points in deciding whether to hold an assessment conference or undertake the

assessment on the papers:

• Is the matter complex or straightforward? The more complex it is the more

likely it is there should be an assessment conference.

• Is it a special assessment or general assessment? Special assessments

are generally conducted on the papers.

• What is the likely quantum of the claim and any agreements? The bigger

the claim and the more matters in dispute, the more likely it is you should

conduct an assessment conference.

• Is the Claimant’s credit (or the credit of a witness) in issue? Is there film? If

so you should conduct a conference.

If the Assessor decides to proceed on the papers, be mindful of

making adverse findings based on the Claimant’s credit in the

statement of reasons. An Assessor may have difficulty making a

finding on credit without the opportunity of having seen or heard from

the Claimant.


• Are there problems with travelling to an assessment conference? In a

matter where domestic assistance and non-economic loss was in issue,

an Assessor undertook the assessment on the papers because the

interstate Claimant was unable and unwilling to travel to New South Wales

and had provided extensive material including statements enabling the

Assessor to proceed on the papers.

Having come to a preliminary view about whether a conference is needed,

whilst reviewing the file, Assessors should hear what the parties have to

say at the preliminary conference – they may persuade the Assessor of a

different view. If the Assessor decides to proceed one way despite the

submissions of one party brief reasons for the decision are required in the

preliminary conference report.

Note: It is not a matter of parties consenting to an assessment

conference being held or not – the Assessor makes the decision for the

parties to follow.

5.1.6 Is any other Documentation or Information Required?

An Assessor cannot answer this question unless he/she has read the file and

worked out what is in dispute and what the claim is about. The following are

some considerations for the Assessor:

• There is a balance between being inquisitorial and enquiring as to the

disputes between the parties. As one Assessor put it at a briefing 'We

have a duty to enquire only about what is in dispute between the parties'.

It is difficult to be hard and fast about this but the assessor must consider

that the claimant has a once and for all chance at compensation as a

result of the accident and an insurer has a duty to resolve a claim justly as

well as expeditiously. An assessor can always determine that a head of


damage claimed is not to be allowed but if an assessor is of the view that

a head of damage could be allowed but has not been claimed the

assessor should at least point it out at the preliminary conference in such

a way as not to suggest the assessor is biased for example “I note there is

no claim for xxx, is that correct?” or “I note the report of Dr X suggests the

claimant has received care from her mother but no claim is made for this,

is this correct?”

• There is also a balance between seeking out documentation that would

assist the Assessor in determining the matter and delaying the resolution

of the matter whilst the Assessor searches for every last piece of relevant

information. The question is “can you arrive at the correct decision without

the documentation in question?” if yes then there is no need to request it.

If the answer is no then you need that document and you should request

it.

• The Assessor should ask for relevant information that is easily accessible

e.g. tax returns, a letter from the Claimant’s employer, sick leave records;

'Do you have a report from the Claimant’s treating GP Dr X; have you

requested one?'

• In respect of claims made before 1 October 2008, section 100 authorises

an Assessor to request information – but only information from the parties

(not third parties) or documentation in the possession of the parties (but

not third parties).

• Section 100 (unamended) authorises the production of documents to the

Assessor and not to a third party or one of the parties.

• In respect of claims made on or after 1 October 2008, in addition to

section 100 as discussed above, section 100(1A) authorises an Assessor


to give a direction in writing to third parties. Assessors should consider

Clauses 16.13 -15 which govern the production of third party documents.

Once the Assessor has prepared for the preliminary conference the next step is

to conduct the preliminary conference.


5.2 Conducting the Preliminary conference

5.2.1 Contacting the Parties

It is best to ring the applicant first, put them on hold (explain that to them), get the

respondent on the line and proceed;

• If you are having difficulties contacting the applicant, ring the respondent

and explain;

• Do not hold any meaningful or substantive discussions with either party in

the absence of the other party;

• Get back to the applicant if you are having difficulty contacting the

respondent, explain any delay particularly if the Claimant/applicant is

unrepresented;

Canvass with the parties how you will refer to them to avoid any offence – how

you are addressed is a matter for you (Assessor, Madam Assessor, your name

etc).

HINT: Some Assessors get their administrative assistant to ring the day before a

preliminary conference to confirm the date and time and who will be "attending".

5.2.2 What if a Party is not Available?

Clause 14.7 of the Claims Assessment Guidelines provides that if a party is

unavailable "without reasonable excuse" at the time of a preliminary conference

then the Assessor may conduct the preliminary conference in the absence of the

party.


Case management of a CARS assessment is a matter for the Assessor. It is not

something that can be the subject of hard and fast rules because each case, and

the circumstances of each case, will be different. It is a delicate exercise,

balancing the rights of one party, who seeks to proceed with the other party who

may by some minor slip not be available.

Case management of files will be dealt with in a little more detail at 5.8 of this

chapter however an Assessor should consider these things:

• The applicant made the application and should be ready to proceed.

• The respondent has had a month to reply to the application.

• Both parties should have had about three weeks’ notice of the preliminary

conference and have had the opportunity to reschedule it.

• When will the party be available, in an hour, later in the day? Consider a

short deferral – at the Assessor’s convenience and taking into account

the attitude of the other side.

• Ask the other side their attitude. Do they consent to a short deferral or a

longer (a few days or week) deferral?

• If it is the respondent who is not available, is there a reply?

• Try to speak to another solicitor or the solicitor’s secretary, assistant, para-

legal.

• Is the Claimant unrepresented?


• Is it the Insurer who is unavailable? Is there another claims officer or the

claims officer’s supervisor?

• Has this happened before?

• How old is the file – when did the accident happen? What other delays

have there been in respect of the claim?

• Check the paperwork, when did the letter go out from CARS; who did it go

to? Any problem with the addresses?

• Can you progress the matter in the absence of one of the parties? In

which case conduct the preliminary conference in the absence of the

missing party.

Make notes of who you have spoken to and when. You should refer to your

efforts to contact the "missing" party in your preliminary conference report.

If the absent party is a legal representative consider sending your preliminary

conference report both to the legal representative and directly to the party.

Consider inserting the following sample direction in respect of any further

preliminary conference.

I will hold another preliminary conference in this matter at q time on x

date in order to further progress the matter. A copy of this preliminary

conference report has been sent direct to the Claimant/Insurer. If the

Claimant’s/Insurer’s solicitor is not available for the next preliminary

conference, I will telephone the Claimant/Insurer direct.


5.2.3 Rescheduling Preliminary Conferences

The case manager schedules the first preliminary conference for an Assessor

and notifies the parties of that preliminary conference date. After that first

preliminary conference date is set it is a matter for the Assessor if either of the

parties or the Assessor seeks to reschedule it. A rescheduled preliminary

conference is a preliminary conference that never actually takes place, it is

simply a change to the date and/or time of the preliminary conference.

It is a matter for Assessors to diarise future dates and times for attendances on

preliminary conferences.

If the time, but not the date of a preliminary conference changes, there is no

need to inform CARS. If the date of a preliminary conference changes you do not

need to submit a full preliminary conference report but you do need to notify

CARS immediately and prudent case management practice would suggest that

the Assessor confirms any new date with the parties.

For every preliminary conference recorded in Sirius, there needs to be an

outcome recorded. For rescheduled preliminary conferences there are three

possible outcomes:

1. a reschedule at the request of the Claimant,

2. a reschedule requested by the Insurer or


3. a reschedule requested by the Assessor because the date is no longer

convenient to the Assessor.

If a party requests the rescheduling of a preliminary conference the Assessor

must let CARS know who requests it otherwise CARS will assume it was the

Assessor.

HINT: Send an email to the case manager and the parties advising of the details

of the rescheduled preliminary conference and the new date.

5.2.4 Conducting the Preliminary Conference

All the Assessors agree that the key to a successful PC is preparation. If you

have been well prepared the preliminary conference should be straightforward

and any necessary assessment conference will also benefit from the groundwork

laid at the PC.

1. Proceed through the preliminary conference using the preliminary

conference report template as your guide. Confirm what is in issue in

the matter – liability, entitlement to NEL etc.; get the parties to confirm

precisely what is in dispute – overtime, rate of pay or retirement age in

respect of future economic loss;

2. Is the matter ready? If not why not?

3. What documents are the parties waiting on?

4. Set a generous timetable – it is better to have too much time than to

not defer it for long enough and then having to have a further

preliminary conference later and adjourn an assessment conference.

Usually three to four weeks for the Claimant to get his/her material


together and two to three weeks for the Insurer to reply (if all medicals

and so on have been obtained).

Clause 14.3 provides that an Assessor may conduct one or more further

preliminary conferences. Case management of an individual claim is a matter for

the Assessor. If a matter is not ready Assessors should be proactive and make

directions to get the matter ready. Set a generous timetable but always have a

date to work towards.

A further preliminary conference may need to be held because MAS is dealing

with a matter – if rescheduling or deferring for MAS here are some time frames to

guide you:

• If a referral to MAS has not been made – allow six months for a

primary referral, four months for a further MAS Assessment.

• If a referral to MAS has only just been made and no preliminary

assessment has been undertaken by MAS – allow five months for

primary referral, three months for a further MAS Assessment.

• If a referral to MAS has occurred and medical appointments have been

made – allow two months after the last medical appointment (which

gives time for the parties to lodge a review application).

• If all MAS reports have been received allow a further one month for

any review application to be lodged.

• If a review determination is outstanding from the Proper Officer allow

two months.


If an Assessor is uncertain of any MAS timeframes, do not hesitate to contact the

case manager who can inform you of any future dates in relation to the MAS

matter.

An Assessor should hold on to the file, set a future preliminary conference date

and diarise it. DO NOT send the file back to CARS even if the new preliminary

conference date is six months away.

A matter should never be deferred indefinitely – always set a date even if it is six

months or more away.


5.3 The Preliminary conference Report

5.3.1 Templates

Type or dictate the report as soon as the conference is finished – whilst it is fresh

in your mind.

Email your preliminary conference report to the parties and then to CARS care of

preliminary [email protected]. There is no need to send a

hard copy by mail or DX if a soft copy is emailed to CARS (request a "read-

receipt" when sending the email if you want confirmation it has been received).

Faxing preliminary conference reports is not encouraged but if a preliminary

conference report is faxed, there is no need to send a copy by mail/DX.

CARS should receive the preliminary conference report within 10 workings days

(2 weeks) of the preliminary conference. If CARS does not receive the report

within 10 working days the preliminary conference report will be noted in Sirius

as late. Note, it is the date the preliminary conference report is received at

CARS (not the date it was sent by you) that determines whether it is late or not.

The first preliminary conference report should follow the template and contain the

following information:

1. Names of the persons attending (and if a party was not available the

steps you took to locate them) including the firms/companies that they

work for. If a party has you on ‘speaker phone’ confirm who is there in

the room and note their ‘attendance’.

2. Recommendations as to suitability if that is in issue.


3. Commentary on the readiness of the matter and what needs to be

done to get the matter ready.

4. What your file review and discussions revealed in terms of

issues/heads of damage in dispute.

5. Your directions.

6. A date (we do not stand matters over generally – there must always be

another date you and the parties are working towards):

a. For the next preliminary conference;

b. For the assessment conference; or

c. By which you will provide your statement of reasons.

7. Diarise any dates in your own diary 8. Highlight any dates for the case manager or action you want the

case manager to take (such as booking an interpreter or a hearing room).

9. Assessors may often set a further PC date as well as set the matter

down for an AC. The further PC is the ‘check-up’ PC which is used by

the Assessor to ensure the matter is ready to proceed and that the AC

is not going to be cancelled or deferred at the last minute.

5.3.2 Issue Directions

When issuing your directions consider the following:


1. General rule – if you are directing a party be specific and make your

directions time focused. For example, do not just say 'Provide me with

a list of out of pocket expenses'. Say 'Provide me with a list of out of

pocket expenses paid to date by x date'.

2. Watch your wording, be clear but not legalistic – remember you only

have the power to issue directions under section 100. For instance

you cannot issue or make "orders". Third parties cannot be directed. A

further example is you assess claims and costs, you do not make

awards.

3. In relation to referrals to MAS you can make a referral under section

60(1) or 62(1) and Assessors can refer issues to MAS under section

58(2). Assessors can make recommendations to MAS as to how a

MAS assessment is to proceed but a CARS Assessor cannot direct

MAS at all or for example tell MAS to refer a dispute to a particular

assessor or an assessor from a particular speciality.

4. If a party fails to comply with your directions – draw their attention to

section 100(2) and the associated penalty of $5,500. Failure to comply

with directions is also a ground for dismissal of the application –

Clause 13.1.3.

5. Remember section 94(2) – ' … an assessment is to be made having

regard to such information as is conveniently available to the claim

Assessor, even if one or more of the parties to the assessment does

not co-operate or ceases to co-operate'.

6. If there is to be an assessment conference, consider clause 15.1 of the

Claims Assessment Guidelines and the notification required.


5.3.3 Listing a Matter for Assessment Conference

Assessors should conduct an assessment conference within 25 working days of

the last preliminary conference or within 25 working days of the last direction

made. For example if the last preliminary conference was conducted on 13 June

the assessment conference is due 18 July. However, if the last preliminary

conference was conducted on 13 June and further directions were made (the last

direction for example being the Insurer to file submissions on or before 10 July)

then the assessment conference is due 25 days from the last direction (in this

example 14 August) (clause 16.9).

If you are unable to schedule an assessment conference on or before the due

date (for example counsel for a party is not available, the Claimant is in hospital

and will not be available etc) remember to make it clear in your preliminary

conference report that you are extending the time to conduct the assessment

conference giving brief reasons for the extension of time (clause 5.1).

5.3.4 Location of the Assessment Conference

The location of the assessment conference (for example Sydney or Newcastle) is

a matter for the Assessor however the venue in which the assessment is

conducted (for example the Court House in Newcastle or the CTTT rooms) must

be a venue that has been approved. Please refer to the venue policy and the

document titled CARS Approved Conference Venues, located on the MAA’s

internet.


5.4 Assessment Conferences

5.4.1 Opening the Assessment Conference

Assessors should have a standard opening prepared and use it every time to

promote consistency. This opening should be made in the presence of all parties

and their legal representatives. Make bullet points to remind you of what you

need to cover. Some of the material that should be covered in your opening is as

follows:

• Introduce yourself and have all the parties in the room introduce

themselves (this is important as insurers for example may have a

barrister, a solicitor and one or two claims people in attendance. They

should not be excluded and claimants should know who they are).

There is a template attendance sheet which might assist.

• Thank both parties for attending.

• Inform the parties that you have read the application, the reply and the

supporting documents, submissions etc sent by the parties – clause

16.2.1.

• Explain what will happen, how the assessment will proceed, what your

role is and your decision making timetable – clause 16.2.2.

• Offer the parties a short period of time in which to discuss settlement –

clause 16.2.4 but set a timetable (e.g. come back in 10 minutes to let

me know how you are progressing).

• You may want to offer the parties your preliminary view of the

strengths and weaknesses of their respective cases. Do not discuss

figures but indicate where gaps may exist, for example, 'there seems to


be a gap in the evidence in relation to care'; 'the Insurer’s submissions

in relation to future economic loss do not in my view cover the point

about overtime … ', and so on. You do not want to be seen to pre-

judge the issues but you want to give the parties an indication of the

strengths and weaknesses of their respective cases to perhaps

encourage resolution.

5.4.2 Conducting the Assessment Conference

In conducting the assessment the Assessor may refer to the following best

practice and ‘inquisitorial’ model:

1. The Assessor should provide their introduction.

2. No part of the assessment should be conducted in the absence of the

parties themselves unless the parties specifically request it. For

example the Assessor should not shut the door and have a discussion

with the legal representatives in the absence of the claimant and the

insurance company claims staff. In particular the claimant should not

be excluded if the insurer’s claims staff are still in the room.

3. The Assessor should ask the Claimant any questions to fill in the ‘gaps’

in the Assessor’s knowledge or understanding of the claim. If there is

some aspect of the Claimant’s claim that the Assessor requires

additional information on then the Assessor should ask about it.

4. The Assessor may offer the Claimant’s representative and then the

Insurer’s representative the opportunity to ask some questions. The

Assessor should remember that the Assessor is not required to allow

the parties an opportunity to ask questions. It is a matter for the


Assessor as to who will ask questions, on what topics and how many

questions will be asked.

5. The pattern is repeated for other witnesses.

6. The Assessor should control the proceedings and ensure the

conference proceeds civilly. If the assessor notices a party or witness

becoming upset, then the Assessor may wish to intervene and offer a

break.

7. The Assessor discusses the submissions in the light of the evidence

received.

8. The Assessor concludes the conference by setting a date for the

issuing of reasons or the provision of additional material. Reasons and

certificates are due within 15 working days or within 3 weeks of the

assessment or any additional material/submissions received.

HINT: This inquisitorial model should not need to be varied if the Claimant and

the Insurer are unrepresented or where there are two QCs appearing for the

parties. It may however need to be varied if the Claimant’s credit is in issue in

which case a slightly more adversarial model should be chosen – as the

Assessor should consider taking a step back with regards to questioning the

claimant on matters of credit lest there be an allegation of bias.

5.4.3 Rescheduling an Assessment Conference

If one or both of the parties request to reschedule the assessment conference

this is a matter for the Assessor in the exercise of the Assessor’s discretion. It is

a delicate balancing exercise between the rights of the respective parties and the


requirements to afford procedural fairness. In exercising your discretion you may

like to consider some of the following points:

1. What is the real reason for rescheduling?

2. Is it a good reason – the Claimant may be pregnant, about to go into

hospital or the Claimant may have gone overseas.

3. Consider the other party, their attitude, the age of the claim, the

general state of readiness or otherwise.

4. You may get a telephone call or a letter requesting a reschedule. If you

get a telephone call it may be best to request something in writing. Has

the party requesting the reschedule spoken to the other side? What is

their view?

5. The Assessor may need to convene a short teleconference to discuss

the matter and discover the attitudes of both parties.

6. If the reschedule is contested you will need to write short reasons

explaining the course of action you have chosen to take.

7. Keep CARS informed of any changes to the assessment conference

date.

8. Can you take some evidence and start the assessment.

For the purposes of Sirius, a rescheduled assessment conference is one where

no evidence was taken. If the assessment conference commences but no

evidence is taken the assessment can be deferred for a further preliminary-


teleconference. It is still important to record and inform CARS of who was in

attendance.

5.4.4 Further Assessment Conferences

If the assessment conference commences and some but not all evidence is

taken and another face-to-face assessment conference date has been scheduled

the Assessor must notify CARS, confirm any new date with the party and issue

an Assessment Conference Report and Further Directions document. If a tele-

conference date is scheduled this is not a preliminary conference but a further

assessment conference and the Assessment Conference Report and Further

Directions document should be used.

It is important to confirm in writing (an email will do) any new dates and directions

to ensure there is no confusion and that the parties and CARS are aware of what

is happening with the matter.

5.4.5 Assessment Conference Report and Further Directions

Sometimes at an assessment conference the Assessor forms the view that

further directions are required to enable the Assessor to write the reasons. In the

event that an Assessor feels it is necessary to issue further directions he or she

should do so using the Assessment Conference Report and Further Directions

document at or after general assessment. A copy of this document can be found

in the templates section of the extranet.

Do not use a preliminary conference report template. This confuses the

parties and case management as there has not been a preliminary conference.

In the Assessment Conference Report and Further Directions document

Assessors should record the reason for issuing the document and make any


directions that are required. Record in this post assessment report the new date

your reasons and certificate are now due, that is 15 days after the last direction

made.

Example

An Assessor conducted an AC where the only outstanding issue was the amount

of payback to HIC. The Assessor concluded the AC issuing the AC Report and

Further Directions at or after General Assessment. A copy of the report is

provided below (omitting the formal parts).

CONFERENCE REPORT

The matter proceeded to Assessment Conference on [insert date]. The only outstanding issue is the amount of the payback to the Health Insurance Commission. Apparently an HIC notice has been issued but it is a ‘deemed’ notice and includes over $3,000 worth of treatment most of which both parties doubt is accident related.

The parties agree on an amount for past expenses plus the HIC payback when it is determined. In those circumstances I agreed to defer the finalisation of my decision and provide the Claimant with the opportunity of requesting an additional HIC notice or seek clarification of the list of payments made by HIC.

DIRECTIONS MADE UNDER SECTION 100

Note: Non-compliance with these directions may result in the dismissal of the application (clause 14.12.2) or the assessment of the claim on the information available (Section 94(2)).

1. On or before x date, the Claimant’s solicitor is to send to me and the Insurer’s solicitor an up to date HIC notice or advise if it has not yet been received.

2. I will undertake my assessment on the information from the Assessment Conference and this additional material and I will provide the certificate and reasons on or before y date [15 working days later].

3. If anything occurs to cause this timetable to be varied, the party seeking the variation is to contact the other party and let me know of the variation sought and the attitude of the other party.

5.4.6 What if the Matter Settles?


If the matter settles the parties may require assistance with the issuing of a

certificate and the calculation of costs.

If one party objects to the issuing of a certificate consider clause 18.5 of the

Guidelines that provides:

The Assessor may at any time issue a certificate in accordance with an

agreed settlement, provided the terms of the agreed settlement are

reduced to writing, signed by or on behalf of the parties and sighted by

the Assessor, and the Assessor is satisfied that the terms of the agreed

settlement are matters upon which the Assessor has power to make an

assessment.

Remember there is no power in the Act or the Guidelines to enter a ‘consent

award’. However clause 18.5 allows Assessors to issue a certificate 'in

accordance with an agreed settlement.'

If you decide to issue a certificate even though one party objects then provide

short reasons as to why you are issuing a certificate.

It is a matter for you and your discretion noting that if a certificate is issued the

Claimant should get the additional costs for stage 5 of the assessment (not

necessarily the maximum). In determining the amount of costs for stage 5 the

Assessor should consider how much work has been done in terms of

submissions, reports and so on? How long after the assessment conference

started did it settle?


If you are asked to calculate costs, seek submissions from the Claimant and the

Insurer as to disbursements. Bear in mind which amounts are the "maximum"

and consider the amount of work undertaken.

Advise CARS as soon as the matter settles and if before the assessment

conference in time for CARS to cancel any interpreters or hearing rooms CARS

has booked. If the matter settles before the conference you must cancel any

hearing room you have booked.

5.4.7 New Claims Raised at Preliminary Conference or Assessment Conference

Clause 17.14 of the Claims Assessment Guidelines provides that no additional

documents or information may be lodged by either party after the lodgement of

their application or their reply, except;

17.14.1 by consent of the other party;

17.14.2 before allocation to an Assessor …

17.14.3 after allocation to an Assessor, in response to a specific request

or direction from the Assessor in circumstances where:

17.14.3.1 the Assessor is satisfied that any such document

would be of assistance to the conduct of the assessment; or

17.14.3.2 the Assessor is satisfied that appropriate

circumstances exist;

and any such documents must have been provided to the other party..


There is nothing in the Act or the Guidelines that prevents a Claimant from

arguing a new head of damage that has previously not been particularised.

However it may be relevant in relation to the validity of the application if the

Insurer is not duty bound to make an offer (pursuant to section 82(5) if it applies

to the claim before you) because these particulars of a head of damage have not

previously been provided. If an application is made in breach of the time limits in

section 91(1)(b) (as in force to claims made before it was amended) then it is

arguably an invalid application and cannot be considered by the Assessor and

should be dismissed (by the Assessor). Assessors should refer to section 91 and

the time limits information in chapter 4 of this Manual.

Assessors should also refer to time limits practice note located on the MAA’s

website.

Of course if the application is otherwise validly made in accordance with the time

limits and late particulars are provided of a new head of damage then, as there is

nothing to prevent it in the Act or the Guidelines it is a matter for the Assessor

whether to allow the assessment conference to proceed, whether to adjourn the

assessment to enable the Insurer to meet the claim and so on.

5.4.8 Dealing with Matters that the Parties do not raise as Issues

The general consensus amongst Assessors is that Assessors deal with issues

that are in dispute. If a matter is not in dispute it is not an issue between the

parties and therefore not an issue to be dealt with. If an Assessor is going to

raise an issue not disputed by the parties, then the Assessor should do so in the

presence of all parties and give all parties an opportunity to make submissions

and otherwise deal with the issue.


There is however an overriding obligation of fairness in conducting assessments

set out in Clause 16.7 and for CARS generally as set out in Clause 1.14.2.

Insurers have a duty imposed on them to resolve claims justly as well as

expeditiously in Section 80 of the Act. If an assessor is of the view the parties

mistakenly believe the claimant has no entitlement to non-economic loss, the

Assessor may wish to raise it. For example an Assessor dealt with a matter

where the claimant’s physical injuries had been assessed by two different MAS

assessors. One had assessed the claimant’s whole person impairment for a

certain injury at 6% and the other had assessed the claimant’s other injury as not

stabilised but likely to attract an impairment of 7%. MAS had issued a certificate

that the claimant had a whole person impairment of not greater than 10% but the

parties had failed to appreciate the non-stabilised injury. The Assessor raised

that issue with the parties and the assessment was deferred pending a further

assessment by MAS. In the end the insurer conceded the claimant had a greater

than 10% whole person impairment and was entitled to non-economic loss.

5.4.9 Withdrawal of Settlement

If the parties "settled" the matter however the settlement was conditional upon

the happening of an event that did not occur, the settlement was withdrawn or

there is argument that the settlement did not actually take place the Assessor

should consider.

1. If the conditional event did not happen the Assessor should probably

proceed to assess the matter noting clauses 14.10 and 15.8 of the

Guidelines which provides that an Assessor is not disqualified from

assessing a claim because he or she becomes aware of any offer that

has been made.

2. If the parties are not in dispute about the withdrawal of the settlement

proceed to assess the matter as usual.


3. If the parties are in dispute as to whether the claim has settled and

therefore whether the assessment can proceed, one party will usually

argue that the other is estopped from withdrawing the settlement. In

the absence of any deed of release or other documentation it would be

open for the Assessor to proceed as a party does not need a certificate

to commence proceedings in equity or for breach of contract as they

are probably not ‘court proceedings … in respect of a claim’ as

required by section 108.

5.4.10 Claimant Does Not Attend Assessment Conference

If the Claimant does not attend an assessment conference and cannot be

located, the Assessor can do the following:

1. Defer the assessment conference to a further assessment conference

or tele-conference date.

2. Assess the claim on the papers (see section 94(2)).

3. Ask the PCA to issue a summons (see section 102 which permits the

PCA to issue a summons where a party has failed without reasonable

excuse to comply with a request to attend the assessment

conference).

4. Dismiss the claim (clause 13.1.3 or 4).

When deciding which course of action to embark upon, remember to accord

procedural fairness to the parties. Notify the parties of your intention to take a

particular course of action before you take it to provide the parties with an


opportunity to respond. For example if you are considering dismissing the

application – do not just dismiss without giving fair warning that that is what you

intend to do if the Claimant does not attend say on the next occasion.

Defer the assessment conference

Ascertain the attitude of both sides before proceeding. There may be good

reasons why the claimant did not attend and has been unable to contact the

assessor, the insurer or the legal representatives.

Assess the claim on the papers

Section 94(2) provides that an Assessor may proceed to an assessment if one or

other party fails to co-operate. In addition section 104(6) of the Act provides the

following:

If the claims Assessor is satisfied that sufficient information has been

supplied to him or her in connection with an assessment, the Assessor

may exercise functions under this Act without holding any Assessment

Conference or other formal hearing.'

If the Claimant refused to attend the assessment conference and the Assessor

seeks to proceed to assess the claim on the papers the Assessor should

consider writing to all parties scheduling a new conference date and advising the

Claimant that if he/she fails to attend the assessment conference without a valid

reason then the Assessor will conduct the assessment on the papers on that day.

If the Claimant fails to attend again the Assessor has given fair notice and can

assess the claim on the papers.


PCA to issue summons

Section 102 of the Act provides:

The Principal Claims Assessor may issue a summons requiring the

attendance of a party to an assessment at an AC ... on the assessment

of a claim if the Principal Claims Assessor is satisfied that the party has

failed without reasonable excuse to comply with a request by a claims

Assessor to attend an AC on the assessment.

If the Claimant fails to attend the assessment conference an Assessor may

request that the Principal Claims Assessor issue a summons to attend the

hearing on the next occasion. There are a few points to remember in relation to

section 102.

1. The PCA is the only Assessor who can summons a party to the

assessment conference. section 88(1) defines a party to an

assessment as ‘the Claimant or the Insurer in response of the claim

referred for assessment' and Insurer for this Part is further defined in

section 66(1) as being ‘the Insurer who insurers the person … ’.

Therefore the PCA can only issue a summons to the Claimant or the

Insurer to attend.

2. A summons cannot be issued in advance of the assessment

conference to compel attendance. The way section 102 is written it

requires (in the PCA’s view) the Assessor requesting the attendance of

the one of the parties to the assessment, an assessment conference to

have taken place and the party failing to have attended.


Dismiss the application

If the Claimant has not attended the conference because he or she has fallen out

of contact with his or her solicitor or again for no other reason than the Claimant

does not want to attend then the Assessor can dismiss the application under

clause 13.1.4 or 13.1.3.

Before dismissing the application the Assessor should write to the Claimant

direct even if the Claimant has legal representation. In that correspondence the

Assessor should clearly set out the course of action the Assessor plans to take. If

there is no response to the Assessor’s correspondence the Assessor should

consider dismissing the application. The Claimant can re-lodge her/his

application at a later date. Remember if dismissing the application Assessors

should not issue a certificate.


5.5 Dismissing Applications

5.5.1 Introduction

Clause 13.1 of the Claims Assessment Guidelines provides that an Assessor

may, at any stage dismiss an application if:

13.1.1 the applicant has withdrawn the application;

13.1.2 the application is not likely to be ready to be assessed

within the next 12 months;

13.1.3 ,the applicant fails, without reasonable excuse, to comply

with the Assessor’s directions;

13.1.4 it appears that the claimant is not pursuing or prosecuting

the application or the claim;

13.1.5 the application is frivolous, vexatious, misconceived or

lacking substance;

13.1.6 the application is being used for an improper purpose or is

otherwise an abuse of process; or

13.1.7 the application is made by a person who has died after the

application was referred to CARS unless a copy of the

grant of probate or letters of administration or equiavalent

are provided, and the PCA or Assessor is satisfied that the

estate seeks to pursue the CTP claim or the application.

It should be remembered that it is the application before CARS and not the CTP

claim that is being dismissed and therefore no certificate should be issued. The

parties can always lodge a fresh application.

5.5.2 The Applicant Withdraws the Application


Clause 13.1.1 is straightforward. If the applicant withdraws his/her/its application

then the Assessor can dismiss the application. Note that this clause provides a

discretion on the part of the Assessor. An Assessor does not have to dismiss a

withdrawn application if for example it is the Insurer who made the application

and the Claimant is ready to proceed and would otherwise be out of time (for

Court action).

Notify CARS in your preliminary conference report that the application has been

dismissed as the applicant has withdrawn the application.

5.5.3 Non- compliance With Directions

If the Applicant fails to comply with an Assessor’s directions the Assessor may of

his/her own motion or on the motion of the Respondent dismiss the application.

In either case the Assessor should seek submissions from both parties as to their

respective positions. In deciding whether to dismiss the application or not the

Assessor is to give reasons. It is strongly suggested that the reasons be given in

writing.

Warning should be given and an opportunity for the defaulting party to remedy

the situation for example, 'I note the Claimant has failed to comply with my

previous directions on two previous occasions. If the Claimant does not provide

the material the subject of those directions by x date I will on the next occasion

consider dismissing the claim pursuant to clause 13.1.1’.

Section 94(2) provides that an Assessor may assess the claim despite one party

failing to co-operate (for example by not complying with directions).

5.5.4 Claimant is Not Pursuing or Prosecuting the Claim


In some cases it appears that the Claimant is not pursuing or prosecuting the

claim. Perhaps the Claimant is no longer in contact with his or her solicitor or the

Claimant refuses to comply with directions.

If it appears that the Claimant is not prosecuting the claim because the Claimant

has lost contact with his/her solicitors the Assessor should make efforts to

contact the Claimant direct. If the Claimant is not contactable by telephone then

the Assessor should write to the Claimant direct at the Claimant’s last known

address. The Assessor is to provide clear instructions in plain English that the

application may be dismissed if the Claimant does not contact CARS.

If the Claimant is unrepresented then the Assessor could enlist the services of

CAS (See chapter 1 for explanation on CAS) to assist in locating the Claimant. If

the Assessor dismisses the application as it appears that the Claimant is failing

to pursue or prosecute the claim the Assessor should write his/her reasons in

plain English. A copy is to be sent to the Claimant at the Claimant’s last known

address. The Assessor should indicate that the Claimant can lodge a fresh

application for general assessment in the future.


5.6 Case Management Issues

5.6.1 General Principles

As stated earlier in this manual case management of the CARS file is a matter for

the Assessor. It is not something that can be the subject of hard and fast rules

because as indicated each case and the circumstances of each case are

different. The Australian Law Reform Commission in a paper titled, Judicial and

case management, discussed judicial management and case management

processes and their relevance to the adversarial reform agenda. It refers to key

research, recommendations and initiatives in the area of judicial management

and case management.

In this paper the Commission defined case management as 'a term used to

describe processes involving the control of movement of cases through a court or

tribunal (caseflow management) or the control of the total workload of a court or

tribunal (caseload management)' and stated that the 'critical element of any case

management system is whether it is successful in minimising the delays in the

litigation process.'

In this paper the following are identified as the objectives of case management:

• Early resolution of a dispute.

• Reduction of trial time.

• More effective use of judicial resources.

• The establishment of trial standards.


• Monitoring of case loads.

• Development of information technology support.

• Increasing accessibility to the courts.

• Facilitating planning for the future.

• Enhanced public accountability.

• The reduction of criticism of the justice system by reason of perceived

inefficiency.

The Commission then goes on to list the following as the fundamental elements

of a successful caseflow management system:

• Judicial commitment and leadership. • Court consultation with the legal profession. • Court supervision of case progress. • The use of standards and goals. • A monitoring information system. • Listing for credible dates. • Strict control of adjournments.


The objectives and the elements identified by the Commission are applicable to

CARS and the practices of Assessors. In particular CARS was established as

part of the 1999 reforms aimed at bringing about the early resolution of claims.

The Commission identifies the directions hearings as the core of successful case

management – to progress the claim to hearing with the aim to keep the matter

under the control of the courts as opposed to the parties. As noted on a number

of occasions CARS is not a court however an assessment of the claim should be

under the control of the Assessor not the parties.

The 2008 version of the Claims Assessment Guidelines contain in Chapter 1 a

series of objects of CARS one of which “to provide a timely, fair and cost

effective system for the assessment of claims under the Motor Accidents

Compensation Act 1999 that is accessible, transparent, independent and

professional”. Some tribunals have as their goals to be just, quick and cheap and

sometimes the comma is omitted in achieving the first and the last goals. At

CARS, assessments should proceed as fast as is fair to both parties to the

dispute.

• Similarly to the directions hearing the preliminary conference is the

Assessor’s weapon for efficient case management. It is at the

preliminary conference where the Assessor should explore the issues

with the parties. Make sure it is clear to you and the parties what the

issues in dispute are and what has to be done to progress the claim to

assessment.

• Be wary of rescheduling matters where a reschedule or deferment is

not required. For guidance on considerations of whether to reschedule

a preliminary conference or defer the assessment conference refer to

the earlier sections in this chapter.


• If you are going to reschedule a preliminary or assessment conference,

schedule another date that is credible, is the future date too long or too

short? • Remember that the Claims Assessment Guidelines are all about

timeframes and part of your job as an Assessor is sticking to those

timeframes and holding the parties to the timeframes as well.

5.6.2 Refer to MAS/Defer for MAS?

Justice Johnson in Allianz v Crazzi and Ors [2006] NSWCA 1090 (at paragraphs

108,196 and 207) indicated that whether an Assessor defers a matter to allow

one or both parties to proceed to MAS is a matter for the Assessor’s discretion.

There is nothing in the Act or the Guidelines that says an Assessor must wait for

MAS to finalise before proceeding with the general assessment. This view was

also adopted by Judicial Registrar MacDonald in Muljescovic v Zreika

(unreported District Court judgment 15 December 2006).

Crazzi - was an appeal from the decision of former Assessor Flynn. In that

matter Assessor Flynn purported to issue a final certificate and

reasons on 30 December 2005. He "Bhardwajed" himself when it

was brought to his attention that he had failed to deal in his

decision with the Claimant’s claim for interest and he had failed to

provide detailed reasons for refusing an adjournment of the

general assessment to enable the Insurer to lodge a further MAS

application. Former Assessor Flynn reissued his decision in

March 2006 dealing with interest but with no additional reasons

with regards to the adjournment for MAS. The Insurer argued this

decision was invalid, the earlier decision must stand and as it had

not been accepted within 21 days it was deemed rejected. Justice

Johnson found the reissued decision was valid and that the


assessor’s decision to adjourn or not was a matter for his

discretion and he did not have to wait for the finalisation of a MAS

assessment before completing the exercise of his own statutory

function.

Muljescovic - involved two infant plaintiffs who had been assessed at MAS as

having a permanent impairment in excess of 10%. Agreement

was reached between the parties as to settlement however the

judge before whom the matter was listed for approval declined to

approve the settlement. The Claimants/Plaintiffs immediately

sought to have the matters listed for hearing. At the listings

hearing the Defendant/Insurer sought an adjournment to allow a

further assessment at MAS to take place.

In seeking a further MAS assessment the defendant submitted

that there had been further improvement in the condition of both

Plaintiffs since the last MAS assessment. Judicial Registrar

McDonald pointed out however that Section 61(1) of the Act

provided for further assessment 'only on the grounds of the

deterioration of the injury or additional relevant information about

the injury'. It makes no specific mention of improvement. The new

information relied on was a report of a psychiatrist and some

school reports. Her Honour said of the doctor’s report that simply

because his opinion differed from others it should not form the

basis for further assessment. She thought however that the

school reports could be regarded as new information however she

found they were not in this case as the MAS Assessor had had

access to school reports.


Her Honour cited the Crazzi decision with approval in that it

provides that it is not mandatory for the Court to await

determination of all possible MAS applications before hearing the

matter. She thought each matter must be considered individually

and, in this matter, because of the possible traumatising effect on

the children from further examinations she declined to adjourn the

matter further.

In considering whether to defer for MAS before finalising the assessment of a

claim, in addition to considering the judgments of Crazzi and Muljescovic,

Assessors should consider the following scenarios, discussed at the 2007 Annual

CARS conference:

1. What should Assessors consider when deciding whether to defer or adjourn to allow the parties to go back to MAS?

a. The merits of the application would be relevant – although

Assessors must be careful not to overstep the proper officer’s

role.

b. The age of the claim, the age of the Claimant, the age of the

application.

c. Prejudice can not easily be compensated by the regulated costs

scheme.

d. The type of MAS application (binding or not).


e. Is it an original assessment never undertaken by MAS before, or

a further assessment – if it is an original assessment Assessors

agreed they would more likely allow the adjournment.

f. If the parties have lodged a review under section 63 an Assessor

should adjourn as that is effectively the "appeal".

g. Also important is the attitude of the parties – if they agree to defer,

the Assessor should probably not stand in their way?

2. What should the Assessor do if neither party raises a dissatisfaction with the MAS determination?

The general consensus at the 2007 CARS Annual conference was to

leave the assessment alone. As discussed earlier in this chapter

Assessors have a duty to enquire about matters in issue. Having said

that one of the objects of the Act is to ensure that full compensation

should go to those with serious injuries and that non-economic loss

should not be awarded to people with minor injuries therefore it may be

necessary to bring to the attention of both parties an issue about the

MAS determination.

3. What should the Assessor do if the Insurer asks you to refer the matter [with film] to MAS for further assessment? Or if the Insurer seeks an adjournment of the matter so it can refer the matter back to MAS for further assessment?

When faced with this scenario the Assessor may consider the

following:

a. How old is the film?


b. Why was the film not available earlier?

c. Is the film likely to make a difference?

Most Assessors indicated they would be reluctant to send it back to

MAS in those circumstances and would prefer that the parties refer the

matter to MAS. Note however the case of Bouveng v Bolton [2009]

NSWDC 19 where Judge Sidis referred a dispute about whole person

impairment back to MAS under section 62(1)(b) despite the claimant

having not referred the matter back to MAS first under section 62(1)(a).

4. What do you do if the Claimant asks you to refer the matter to MAS for further assessment? Or if the Claimant seeks an adjournment so s/he can refer the matter back to MAS for further assessment?

The Assessors indicated that they would be reluctant to send the

matter back and would invite the parties to do so. If the Assessor did

send it back, it would be with whatever new material had been

presented including any statements from the Claimant.

5. What sort of things should Assessors consider when deciding whether to refer a matter back to MAS?

The consensus was that a CARS Assessor should not send a matter

back to MAS simply because the Assessor disagreed with the MAS

Assessor or did not like the outcome, there had to be new material or

an incorrect application of the Impairment Guidelines or for example

the law in respect of causation. The consideration would be whether or

not it would make a difference to the original assessment, that is would


a further assessment change the outcome so that the Claimant would

go from under to over or over to under 10%. There would have to be

new facts or information, not necessarily just a different medico-legal

opinion.

6. If CARS Assessors are making the referral – what should they give or tell MAS?

It was agreed that it is simply not enough to fill in the form 6. It was

agreed that if an Assessor sends the matter back to MAS the Assessor

should give MAS an idea of what is important to the Assessor in the

assessment of the claim and why it is important. If there were disputed

facts on causation, there is merit in going partway through the

assessment conference, hearing all the evidence, making some

preliminary findings on causation and referring the matter back to MAS

with details of the relevant evidence and some suggestion as to the

application of the law.

7. Can a CARS Assessor tell MAS who to refer the Claimant to? Or make a suggestion?

The consensus was a CARS Assessor cannot tell MAS who to refer

the claim to but an Assessor could make respectful suggestions.


5.7 Assessment of Damages and Costs

5.7.1 Indexation of Damages

Indexation of non-economic loss damages

Section 134 of the MAC Act imposes limitations on the amount of damages an

injured person may receive for non-economic loss in relation to a motor vehicle

accident personal injury claim. Section 146 of the MAC Act enables the Minister

to adjust or index the maximum amount that may be awarded for non-economic

loss annually, on or before 1 October or each year.

The maximum amount that may be awarded for NEL as at 5 October 2008 is

$390,000.00

Assessors should note that the indexed amount is the amount that is to be used

for all assessments on or after that date. In other words the amount of NEL that

can be awarded is not based on the day of accident but the day of assessment.

Indexation of economic loss damages

Section 125 of the MAC Act places a limit upon the award of damages for past or

future economic loss and the loss of expectation of financial support. Provision

has been made in section 146 of the Act for the Minister to index the limit

annually.

The maximum weekly amount for weekly wage loss as at 5 October 2008 is

$3,584.00


Note: The maximum weekly loss is to include any loss of business earnings and

any loss of superannuation (see Kaplantzi and Anor v Pascoe [2003] NSW CA

386])

5.7.2 Interest

Whilst section 137 talks in terms of plaintiffs and defendants the usual CARS

references of claimant and insurer are used in this section.

Section 137(1) provides that a claimant ‘has only such right to interest on

damages payable in relation to a motor accident as is conferred by this section'.

Section 137(4) provides that interest is only payable in the following

circumstances

• The Insurer had enough information to make a proper assessment of

the claim and a reasonable opportunity to make an offer of settlement

and the Insurer has not made an offer; or

• The Insurer had a reasonable opportunity to make a revised offer of

settlement after further information was received but failed to do so; or

• The Insurer failed to comply with its duty under section 83 (to make

payments for medical treatment etc); or

• The Insurer has made an offer but the damages awarded (or assessed

by CARS) are more than 20% higher than the highest offer and the

highest offer is unreasonable having regard to the information available

to the Insurer at the time.


The highest offer is not considered unreasonable if the insurer was not able to

make a reasonable assessment of the Claimant’s full entitlement to all damages

– section 137(4)(b).

The offer must be in writing – section 137(4)(c).

As an Assessor it is then a matter for you to make a finding on the

reasonableness of the offer. Matters the Assessor may consider:

1. Could the Insurer make a reasonable assessment of the Claimant’s full

entitlement to damages on the information it had?

2. Was there material, evidence, information you had at the assessment

conference that the Insurer did not have and which was crucial in your

decision?

3. If you find the offer unreasonable then interest is payable.

4. If you find the offer reasonable then interest is not payable.

5. You must make a finding on the reasonableness or otherwise of the

offer.

Interest is not payable on gratuitous domestic assistance (section 137(2)), non-

economic loss (section 137(3)) or loss of services (section 18(1) Civil Liability Act

2002). Interest is not payable in respect of that part of economic loss which may

have been covered by payments of Workers Compensation or Centrelink

payments. Similarly, interest is not payable on past treatment expenses if they

are unpaid or paid by the Insurer or Workers Compensation Insurer.


The Assessor may issue a draft set of reasons when a claim for interest has

been made. In circumstances where there is a prima facie entitlement to interest

it may be prudent to issue a draft set of reasons and seek submissions on

interest in particular submissions from the Insurer as to the reasonableness or

otherwise of the offer.

Before making an assessment of interest the Assessor should refer to the

Practice note on interest which can be found on the MAA’s internet.

5.7.3 Assessing Costs

Clause 15 of the Regulations provides:

In making an assessment and specifying damages under section 94 of

the Act 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 referred to in schedule 1 and fees for medico-legal

services referred to in schedule 2) in the matter.

There has been no judicial interpretation on this section yet however it would

appear that:

1. A CARS Assessor has "power" to assess costs when assessing the

claim. Therefore, if there is no claim to assess the Assessor has no

power to assess costs.


2. If a CTP claim is withdrawn there is no longer a CTP claim in existence

and arguably no power to assess costs in relation to it whether it is

before an Assessor or a party seeks to refer it to an Assessor.

3. If a claim settles, a certificate does not have to be issued (but may in

accordance with Clause 18.5). If the parties do not request a certificate

but by consent the parties ask the Assessor to assess costs it should

be noted that the Assessor has no power to assess costs. If however it

would assist the parties to resolve the whole of the claim an assessor

may wish to give a non-binding indication of the likely assessment of

costs.

4. The PCA has no greater power than an Assessor in relation to costs. If

the Assessor is unable to assess costs the PCA is unable to assess

costs.

Note section 94A is in basically the same terms as Clause 15 and provides

legislative basis for the power to assess costs. However that section only applies

to Claims made on or after 1 October 2008.

5.7.4 Costs, Paybacks and Recoveries

The certificate that the Assessor issues for a general assessment should only be

issued in relation to the assessment of damages and costs. Questions of

paybacks, credits and recoveries are issues between the parties and should be

of no concern to the Assessor. The fact that there is a worker's compensation

payback of $x should not affect the quantum of the assessment of damages

under the Motor Accidents Compensation Act. Some details may be relevant, for

example if treatment expenses are agreed as including certain amounts paid by

the workers compensation Insurer. For the most part however the Assessor

should avoid mentioning paybacks and credits leaving it to the parties to sort out.


Assessors should however consider section 130 of the Act which provides that

'payments made to or on behalf of the Claimant by an Insurer or Nominal

Defendant in relation to a claim made by the Claimant (including payments made

under part 3.2 or part 4.3)' are to be deducted from the amount of damages

assessed for the Claimant’s economic losses.

5.7.5 Costs Calculator

The cost calculator has never been a mandatory requirement in undertaking an

assessment. However, the PCA has consistently requested that all Assessors

use the costs calculator and submit it with their reasons because:

1. Case managers can enter the data into Sirius more efficiently and the

data entered is more likely to be correct.

2. It ensures that the Assessor has included all costs.

3. It saves the Assessor time.

4. It reduces the number of obvious errors that Assessors make and that

the PCA has to correct.

Note – If an Assessors makes an obvious error and has not used the

costs calculator the PCA will send the matter back to the

Assessor to correct and there will be no payment for the time

spent correcting the error. If the Assessor used the costs

calculator and still made an error in the calculations the PCA

will usually correct the assessment of costs and issue any

replacement documents.


When assessing costs Assessors may want to deal with any contentious issues

in the body of the reasons and then attach and refer to a copy of the costs

calculator. There is no need to complete the assessment of costs in the reasons

as all the detail is on the sheet.

The costs calculator is on the MAA’s website so Assessors can inform

practitioners that they can access it and make submissions in accordance with it.

The cost calculator can be located on the MAA website by navigating the

following links >> Dispute resolution >> Claims Assessors >> Damages and cost

calculator.

5.7.6 Life Tables

In the matter of Zhang v Golden Eagle International Trading Pty Ltd & Ors [2006]

NSWCA 25, the Court of Appeal considered in respect of damages and life

expectancy whether to use historic tables or prospective tables. At page 4 of the

judgment, at about point 5, his Honour Basten JA, with Ipp and McColl JJA

agreeing, stated:

It is appropriate for the courts to make their estimation as to life

expectancy on the basis of the best information available. The projected

tables would appear to be a more accurate assessment of future trends

than the historical tables and the trial judge should have referred instead

to the projected tables.

At paragraph 55 on page 16, Basten JA said:


On the basis that the projections of changes in life expectancy should be

accepted as an appropriate estimate of life expectancy, there was no

challenge by the Respondents to the figure relied upon by the Appellant.

In my view it is appropriate for the courts to make their estimations on

the basis of the best information available: the projected tables would

appear to be a more accurate assessment of future trends than the

historical tables. Accordingly, it would have been appropriate for the trial

judge to adopt the projected table and the figure resulting therefore, in

the present case. According to the report prepared by Cumpston

Sarjeant Truslove Pty Ltd, that gave a predicted life expectancy for a

man of the Appellant’s age as at 3 May 2004 as 54.28 years.

Assessors agreed that for the sake of consistency Assessors will use the

medium life expectancy life tables. A copy of these life tables can be located at

www.cumsar.com.au.

5.7.7 Superannuation

In the case of Najdovski v Crnojlovic [2008] NSWCA 175 the court discussed

allowances for past and future superannuation. The Court endorsed the

approach of assessing superannuation at 9% of the gross allowance or 11% of

the net figure.


http://www.cumsar.com.au/

5.8 Returning Files to CARS

Once the Assessor has completed the assessment the following must be

returned to the case manager:

5.8.1 A Covering Letter

Please use the precedent covering letter.. This standard letter enables the case

manager to quickly and easily determine what has happened in the matter which

in turn assists them in prioritising and delegating their work.

5.8.2 The File

The file includes all material that was sent to the Assessor and all material sent

directly to the Assessor by the parties in the course of the assessment process.

This includes any film, tapes and DVDs. As stated earlier at 5.8.1 CARS must

have a copy of the entire file.

You should not keep copies of any documents, including documents or letters

you have created. CARS must have a copy of the entire file for these reasons:

1. As a complete record of the documents upon which the assessment

was based.

2. As officers of the Authority CARS assessors would need to abide by

the State Records Act 1998 and a disposal or alteration of a state

record may be a contravention of section 21 of that Act.

3. If at some stage the file is the subject of a subpoena CARS can

answer that subpoena confident that all documents are on file.


Assessors may wish to keep copies of documents that he/she seeks to use

as precedents for future matters however all precedents and templates must

obviously be de-identified.

5.8.3 Your Invoice

Assessors are to use the precedent tax invoice which may be obtained from the

CARS extranet.

Please note your invoice will not be paid unless the file has been returned to the

case manager.


5.9 Timeframes

5.9.1 Summary of Timeframes

CARS Assessors are bound by certain timeframes as set out in the Claims

Assessment Guidelines. The timeframes assist all involved in the CARS process.

The parties know when they can expect information from an Assessor and the

PCA/Case Management Services know how the assessment of a claim is

progressing. The Assessor knows when he/she must complete certain tasks in

connection with assessing a claim. The Assessor can also monitor his/her own

performance by referring to whether the time limits have been complied with.

Clause 14.1 Allocation to first preliminary conference = 15 days

When the case manager sends you an email requesting a preliminary conference

date you must provide a date that falls within 15 working days of receiving that

email. If you do not provide a date within 15 days you will most probably be late

with your first preliminary conference.

Clause 14.8 Preliminary conference to preliminary conference report = 10 days

Once you have completed the preliminary conference a preliminary conference

report must be provided to the CARS case manager and the parties within 10

working days of conducting the preliminary conference.

Clause 16.9 Last preliminary conference to assessment conference date = 25 days

Assessors MUST conduct an assessment conference within 25 working days of

the last preliminary conference or within 25 working days of the last direction

made. For example if the last preliminary conference was conducted on 13 June

the assessment conference is due on 18 July. However, if the last preliminary


conference was conducted on 13 June and further directions were made (the last

direction for example being the Insurer to file submissions on or before 10 July)

then the assessment conference is due 25 days from the last direction (in this

example 14 August).

Clause 18.2 Assessment Conference to Reasons = 15 days

Assessors have 15 working days after the conclusion of the assessment

conference to issue reasons and the certificate. If the assessment is done on the

papers without an assessment conference, reasons and the certificate are due

15 workings days after the last preliminary conference. If the Assessor requires

additional information the reasons are due 15 days after that. In some

circumstances an Assessor may be waiting on further information. For example

at the assessment conference on 3 July the Claimant seeks past treatment

expenses but there is uncertainty as to what is paid and unpaid and the HIC

notice is not yet available. The Assessor makes directions that a list of paid and

unpaid expenses and the HIC notice is to be provided on or before 22 August. In

such a case the reasons and certificate will be due date on 12 September.

Clause 18.2 also provides for an assessor to fix a date for the provision of

reasons or a certificate beyond the 15 day period.

5.9.2 Hints and Tips

Assessors should always be clear in his/her instructions to all parties including

case management as to what is required and by when. Case managers will

record an assessment conference as late if there is no explanation for the

lateness. In an email or covering letter, CARS Assessors should explain that the

assessment conference was conducted late because, for example the parties did

not provide the material as requested until x date, or the Claimant’s solicitor had

a personal matter to attend to or the Insurer’s claims officer was unwell and so



on. The case manager will record the information that is provided and amend the

due date for reasons.

Documents

CHAPTER 5: ASSESSMENTS - sira.nsw.gov.au · CHAPTER 5 ASSESSMENTS . ... refer to clause 14.16 of the Claims ... that the claimant has a once and for all chance at compensation as