Gumbert, Jnana --- "How to deal with a CARS assessment" [2019] PrecedentAULA 14; (2019) 150 Precedent 54

• ‘CARS’ is the (oh so clever) acronym for the Claims Assessment and Resolution Service, a ‘unit’ operating within the State Insurance Regulatory Authority (SIRA) pursuant to s98 of the Motor Accidents Compensation Act 1999 (NSW) (the Act). It consists of claims assessors.
• LEGISLATIVE FRAMEWORK
• Chapter 1 of SIRA’S ‘Claims Assessment Guidelines’ contains the objects of CARS which provides relevantly:
• ‘1.14 The objects of CARS in dealing with claims and disputes in connection with claims referred are:
• A ‘claims assessor’ is a person who is ‘suitably qualified’ (as determined by SIRA) and who is ‘appointed’ as a claims assessor by SIRA pursuant to s99 of the Act. Claims assessors are required to assess claims under Part 4.4 of the Act (claims assessment and resolution, ss88 to 121) and also in accordance with ch 5 of the Act (award of damages, ss122 to 156).
• Claims assessors are also empowered by and have regard to guidelines made under the Act establishing procedures for assessing claims. The ‘Claims Assessment Guidelines’ (the guidelines) were issued pursuant to s69(1) of the Act and took effect on 1 May 2014.
• As far as an assessment conference is concerned (a final oral hearing at which evidence is adduced), ch 16 of the guidelines is most significant, especially cls 16.1 to 16.12 which set out the assessor's role and powers. While the assessor is bound by common law to comply with the rules of natural justice or procedural fairness (for example, Allianz Australia Insurance Limited v Crazzi1) the guidelines here set out further and more particular obligations. For example: cl 16.4 provides that the claims assessor ‘is to take into account the objects of the Act and the object of CARS at all times’.
• In a situation where liability has already been wholly admitted by an insurer, claims assessors are able to make binding determinations pursuant to s94 once a hearing (called an ‘assessment conference’) has occurred. Once a claimant formally accepts an amount of damages awarded by a claims assessor, the insurer becomes liable to pay the assessed amount: s95(2)(b). In situations where liability is not wholly admitted, the claims assessor will determine both the liability issues and the quantum issues, but neither determination will be binding on either party.
• TIME LIMITS FOR APPLYING TO CARS
• There is no time limit for applying to CARS. However, in the event that the matter subsequently needs to proceed to court for a re-hearing, the s109 time limits do apply to the commencement of court proceedings. A matter may need to proceed for re-hearing either because the claimant does not wish to accept the award, or because the award is not binding on the insurer (usually because liability is not admitted in full) and the insurer can therefore refuse to accept the assessment.
• The s109 time limitation period is suspended from the time a matter is referred to SIRA for assessment, until two months after a Certificate of Assessment or Exemption has been issued. If an application to CARS is lodged (validly) within three years of the date of the accident, and assuming the application is not dismissed, then time will be suspended until the CARS process is finalised, and court proceedings can then be commenced if necessary. However, if the CARS application is lodged after the expiration of the s109 limitation period, then the matter will already be ‘out of time’ before time is suspended.
• Practitioners should also bear in mind that there are numerous pre-CARS procedures that must be attended to before an application can be lodged (see Part 4.3 and Part 4.4 Division 1A of the Act, the time limits in s91, and also the further pre-CARS requirements set out in the guidelines). It is necessary to start ticking off the necessary procedural requirements many months prior to the time you wish to apply to CARS.

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HOW TO DEAL WITH A CARS ASSESSMENT

By Jnana Gumbert

‘CARS’ is the (oh so clever) acronym for the Claims Assessment and Resolution Service, a ‘unit’ operating within the State Insurance Regulatory Authority (SIRA) pursuant to s98 of the Motor Accidents Compensation Act 1999 (NSW) (the Act). It consists of claims assessors.
LEGISLATIVE FRAMEWORK
Chapter 1 of SIRA’S ‘Claims Assessment Guidelines’ contains the objects of CARS which provides relevantly:
‘1.14 The objects of CARS in dealing with claims and disputes in connection with claims referred are:

1.14.1 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;

1.14.2 to assess claims and disputes fairly and according to the substantial merits of the application with as little formality and technicality as is practicable and minimising the cost to the parties;

1.14.3.1 to ensure the quality and consistency of CARS decision-making...’

A ‘claims assessor’ is a person who is ‘suitably qualified’ (as determined by SIRA) and who is ‘appointed’ as a claims assessor by SIRA pursuant to s99 of the Act. Claims assessors are required to assess claims under Part 4.4 of the Act (claims assessment and resolution, ss88 to 121) and also in accordance with ch 5 of the Act (award of damages, ss122 to 156).
Claims assessors are also empowered by and have regard to guidelines made under the Act establishing procedures for assessing claims. The ‘Claims Assessment Guidelines’ (the guidelines) were issued pursuant to s69(1) of the Act and took effect on 1 May 2014.
As far as an assessment conference is concerned (a final oral hearing at which evidence is adduced), ch 16 of the guidelines is most significant, especially cls 16.1 to 16.12 which set out the assessor's role and powers. While the assessor is bound by common law to comply with the rules of natural justice or procedural fairness (for example, Allianz Australia Insurance Limited v Crazzi^[1]) the guidelines here set out further and more particular obligations. For example: cl 16.4 provides that the claims assessor ‘is to take into account the objects of the Act and the object of CARS at all times’.
In a situation where liability has already been wholly admitted by an insurer, claims assessors are able to make binding determinations pursuant to s94 once a hearing (called an ‘assessment conference’) has occurred. Once a claimant formally accepts an amount of damages awarded by a claims assessor, the insurer becomes liable to pay the assessed amount: s95(2)(b). In situations where liability is not wholly admitted, the claims assessor will determine both the liability issues and the quantum issues, but neither determination will be binding on either party.
TIME LIMITS FOR APPLYING TO CARS
There is no time limit for applying to CARS. However, in the event that the matter subsequently needs to proceed to court for a re-hearing, the s109 time limits do apply to the commencement of court proceedings. A matter may need to proceed for re-hearing either because the claimant does not wish to accept the award, or because the award is not binding on the insurer (usually because liability is not admitted in full) and the insurer can therefore refuse to accept the assessment.
The s109 time limitation period is suspended from the time a matter is referred to SIRA for assessment, until two months after a Certificate of Assessment or Exemption has been issued. If an application to CARS is lodged (validly) within three years of the date of the accident, and assuming the application is not dismissed, then time will be suspended until the CARS process is finalised, and court proceedings can then be commenced if necessary. However, if the CARS application is lodged after the expiration of the s109 limitation period, then the matter will already be ‘out of time’ before time is suspended.
Practitioners should also bear in mind that there are numerous pre-CARS procedures that must be attended to before an application can be lodged (see Part 4.3 and Part 4.4 Division 1A of the Act, the time limits in s91, and also the further pre-CARS requirements set out in the guidelines). It is necessary to start ticking off the necessary procedural requirements many months prior to the time you wish to apply to CARS.

PREPARING FOR CARS

CARS proceedings are largely based on written material. The idea is that most of the evidence will be in writing, and therefore the actual length of the hearing can be very short (two to three hours on average).

Therefore, preparation is key. Each party should ensure that all of the evidence they wish to rely on is up to date and lodged with the CARS application or reply.

It is important to note that (for claimants’ lawyers) statements of the claimant and any other witnesses should be lodged with the CARS application. The statement of the claimant should be comprehensive, covering pre-accident history, the details of the accident, post-accident consequences, and information regarding each head of damage. The evidence-in-chief that the claimant gives at the hearing should be brief, their statement forming the bulk of the claimant’s evidence.

Statements from other lay witnesses can be crucial to the strength of the claim. If there is a claim for care, statements from care providers should be provided. If there is a claim for loss of earning capacity, a statement from the employer and/or work colleagues to support it should also be provided. Other witnesses may be helpful depending on the particular circumstances of the case.

The claimant should also include detailed submissions and a schedule of damages.

The insurer is usually the party to reply to the claimant’s application for assessment (although there is nothing stopping an insurer lodging an application for assessment itself). Aside from annexing the evidence, the insurer will also provide a detailed schedule of damages and submissions.

Parties should note that claims assessors are not provided by SIRA with copies of MAS assessors’ decisions. Therefore, these need to be included in the application or reply.

Bear in mind that s104(4) provides that ‘a claims assessor must take into account any written submission prepared by an Australian legal practitioner acting for a party to the assessment and submitted by or on behalf of the party (whether or not the party is represented by an Australian legal practitioner at an assessment conference on the assessment of the claim).’ This provision amplifies the need for detailed written submissions to be lodged with CARS, as there is a statutory requirement for those submissions to be taken into account. There is also a corresponding common law duty to have regard to a substantial and clearly articulated argument, as a matter of procedural fairness (Allianz Australia Insurance Ltd v Cervantes^[2]; Rodger v De Gelder^[3]).

PRELIMINARY CONFERENCES

Once the application and reply have been lodged, the matter will be allocated by SIRA to a claims assessor, and a preliminary conference (via telephone) will be scheduled.

At the preliminary conference, the claims assessor will identify the issues and will ascertain whether any further preparations are required by either party. In this regard, s89B of the Act needs to be borne in mind, as it does place restrictions on any additional material that can be adduced after the application and reply have been lodged.

If a party has been unable to obtain material that is considered to be relevant, a direction can be sought from the claims assessor pursuant to s100. Claims assessors do have powers to require the provision of information, similar to a subpoena for production, under s100 of the Act, and it is an offence for a person not to comply with such a direction from a claims assessor. A party requiring a s100 direction should request it at the preliminary conference.

If further material is to be obtained by either party, the claims assessor will make directions regarding the service of such material, and then may list the matter for a further preliminary conference, or set it down for an assessment conference.

THE CARS ASSESSMENT CONFERENCE (THE HEARING)

As already mentioned, hearings are brief and are designed to be relatively informal. Generally speaking, the only witnesses will be the claimant and any persons who have provided lay witness statements (such as care providers and employers) if required. Doctors are not generally cross-examined, and indeed there is no power to require a doctor (or in fact any witness other than a party) to give evidence at a CARS hearing (s102). Medical assessors (from the Medical Assessment Service) are not compellable to give evidence (s59A).

Generally, both parties are represented by counsel at an assessment conference, although it is not uncommon for a solicitor to appear (or occasionally for a party to be self-represented).

The parties sit on either side of a long conference table, with the claims assessor at one end and the claimant at the other end. The hearing is conducted in a seated position. The claimant gives (usually brief) evidence-in-chief, followed by cross-examination. Depending on the claims assessor, hearings may be conducted in a more inquisitorial fashion, with the claims assessor taking a leading role in the asking of questions, with opportunities for both parties’ legal representatives to ask further questions if necessary. The guidelines allow the claims assessor to determine their own procedure, and they are not bound by the rules of evidence (cl 16.1 of the guidelines). However, the rules of procedural fairness do apply, which means that some rules of evidence (particularly those that are designed to ensure procedural fairness) are sometimes applied to the extent necessary.

Following the evidence of the claimant, the other lay witnesses may be required for cross-examination. The absence of a witness being present (or required) for cross-examination does not prevent their evidence being taken into account (cl 15.2).

At the conclusion of the evidence, each party has the opportunity to make oral submissions to supplement their written submissions. Generally the insurer goes first but there is no hard and fast rule in this regard (given that each claims assessor can determine their own procedure).

There is no transcript of CARS proceedings. This can be problematic for a number of reasons. Firstly, there may be mistranscribing by the claims assessor of the evidence that was actually given, which may ultimately affect their findings. Secondly, the lack of a transcript poses a problem in the event that a party wishes to seek judicial review of the decision, and needs to put in evidence (in the Supreme Court proceedings) the evidence that was given, and the submissions that were made, during the CARS assessment conference.

The only way to overcome the shortcomings of the lack of a transcript is to ensure that detailed contemporaneous notes are taken of what is said during the hearing (both evidence and submissions). These notes can then be tendered in Supreme Court proceedings in lieu of a transcript, if necessary.

Jnana Gumbert is a barrister at Jack Shand Chambers in Sydney. PHONE [phone] EMAIL [e-mail].

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^[1] [2006] NSWSC 1090; (2006) 68 NSWLR 266, [177].

^[2] (2012) 61 MVR 443, [19]-[20].

^[3] [2015] NSWCA 211; (2015) 71 MVR 514, [89]-[96].