NRMA Insurance Limited v Pham [2013] NSWSC 468

NRMA Insurance Limited v Pham [2013] NSWSC 468

The assessment certificate was contrary to law because the assessor assessed economic loss on the hypothesis that Mr Pham would have been forced by economic circumstances to sell or close his self-employed dry cleaning business and earn wages as an employee, although his claim and evidence were that he had operated and intended to continue operating his own dry cleaning business. Guzman v Zammit did not supply a legal principle justifying that approach, the evidence did not support the assumed future employed-work scenario, and the assessor failed to comply with s 126 of the Motor Accidents Compensation Act 1999 by basing future economic loss on assumptions not shown to reflect the...

Jurisdiction
Australia
Judgment Date
03 May 2013
Procedural Posture
Administrative Law Judicial Review Under S 69 of the Supreme Court Act 1970 of a Claims Assessor's Certificate Under S 94 of the Motor Accidents Compensation Act 1999 / Principal Judgment on the Plaintiff Insurer's Summons Seeking to Set Aside the Claims Assessment Certificate
Outcome
Plaintiff insurer's challenge upheld; the claims assessment certificate was declared contrary to law, set aside, and the assessment remitted for reallocation to a different claims assessor.
Legal Topics
['error of Law on the Face of the Record' 'claims Assessment Certificate' 'future Economic Loss' 'loss of Earning Capacity' 'self Employed Claimant' 'section 126 Assumptions and Percentage Adjustments' 'certiorari']
['administrative Law' 'motor Accidents Compensation' 'judicial Review' 'damages'] ['error of Law on the Face of the Record' 'claims Assessment Certificate' 'future Economic Loss' 'loss of Earning Capacity' 'self Employed Claimant' 'section 126 Assumptions and Percentage Adjustments' 'certiorari']

Case Brief

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Procedural Posture

Administrative Law Judicial Review Under S 69 of the Supreme Court Act 1970 of a Claims Assessor's Certificate Under S 94 of the Motor Accidents Compensation Act 1999 / Principal Judgment on the Plaintiff Insurer's Summons Seeking to Set Aside the Claims Assessment Certificate

Legal Issues

  1. 1 ["Whether the claims assessor made jurisdictional error or an error of law on the face of the record in assessing past and future economic loss by reference to earnings of an employed laundry worker rather than the claimant's self-employed dry cleaning business." "Whether Guzman v Zammit [2003] NSWCA 224 justified the assessor's finding that, but for the accident, the claimant would have been forced to sell or close his business and seek employed work." "Whether the assessor complied with s 126 of the Motor Accidents Compensation Act 1999 by identifying assumptions about the claimant's most likely future circumstances but for the injury and adjusting future economic loss by reference to the percentage possibility of future events occurring." 'Whether the assessor gave sufficient reasons for determining that the claimant would have been forced to sell or close his business and become an employee.']

Ratio Decidendi

The assessment certificate was contrary to law because the assessor assessed economic loss on the hypothesis that Mr Pham would have been forced by economic circumstances to sell or close his self-employed dry cleaning business and earn wages as an employee, although his claim and evidence were that he had operated and intended to continue operating his own dry cleaning business. Guzman v Zammit did not supply a legal principle justifying that approach, the evidence did not support the assumed future employed-work scenario, and the assessor failed to comply with s 126 of the Motor Accidents Compensation Act 1999 by basing future economic loss on assumptions not shown to reflect the...

Court Disposition

Plaintiff insurer's challenge upheld; the claims assessment certificate was declared contrary to law, set aside, and the assessment remitted for reallocation to a different claims assessor.

Orders

  • ['A declaration that the certificate issued under s 94 of the Motor Accidents Compensation Act 1999 dated 30 April 2012 in respect of the assessment conducted on 16 April 2012 was contrary to law.' 'An order setting aside the certificate.' "An order remitting the claimant's assessment application to the third...