Allianz Aust Insurance Ltd v Habib & Ors

The assessment

Other than the matter noted at [18], the following was taken from the Assessor's reasons which form part of the "record" for the purposes of considering relief in the nature of certiorari (Supreme Court Act 1970, s 69(4)).
At the time of the assessment Mr Habib was 40 years old. His claim for out of pocket expenses has been agreed. The matters requiring assessment were his claims for past and future economic loss, future commercial care and future treatment expenses.
Under the heading "medical material", the Assessor reviewed various medical reports before finding that Mr Habib was "in constant pain" and that his "[persistent] back injury … adversely affects his ability to undertake day to day activities". Next the Assessor addressed past economic loss. The Assessor described his work history as follows: "The Claimant has shown significant fortitude in the manner in which he has continued to work. He has for the last 20 years or so worked in bathroom fittings sales work. Since 2006 he has worked in the bathroom section of Domayne at Alexandria under a franchisee and in 2010 he commenced working for his brother when his brother, Elie Habib, took over the franchise. He is what is described as a '2IC'. He effectively manages the store and selling bathrooms and bathroom renovations as well as fittings. At the Assessment Conference the Claimant confirmed he essentially manages the store's bathroom sales operations. This includes administrative duties, a sales team of about 7 staff. He also is responsible for a couple of administrative staff and warehouse workers."
The Assessor recorded that part of the claimant's remuneration was commissions that were payable only upon completion of a renovated bathroom.
The Assessor accepted that Mr Habib had "some difficulties with this work since the accident", that his "promotional and vocational opportunities have been adversely affected", and that he is less likely to earn commissions from sales than he would have been because his injuries cause him to refer customers to other sales staff. The Assessor accepted that his tax returns showed a loss in the most recent financial year (2013/2014) of $3,500.00 and that was likely to continue into the financial year ended 30 June 2015. In relation to so much of Mr Habib's past loss as concerned lost promotional opportunities the Assessor stated: "19. It is difficult with any precision to identify the loss occasioned by any loss of promotional opportunities as such figures were not clearly identified or agreed but are reflective of a suggested figure from September 2014 of $10,000.00 per annum gross would give rise to a figure in the order of about $6,000.00 per annum net. This would only be a figure which would apply over only about 8 months or about $4,000.00. 20. It is appropriate to provide a buffer to reflect the vagaries and uncertainties of the Claimant's loss but specifically to [compensate] him for the loss of vocational and promotional opportunities which I accept would have been available to him from about September 2014. Additionally I accept that there has been some loss of earnings and commissions of which the Claimant would have had a better knowledge of than his employer."
The Assessor determined the past economic loss including employer based superannuation payments was $10,000.
Next the Assessor addressed future economic loss. The Assessor reiterated his findings about the extent of the claimant's back injury ("troubled [him] quite significantly") and his acceptance that he "suffers losses associated with difficulties attending to customer work sites, and loss of promotional and vocational opportunities". Further the Assessor accepted that Mr Habib faced "grave difficulties" in taking "long flights" to attend trade fairs and exhibits in Europe and that affected his promotional and vocational opportunities. The Assessor accepted that he would continue to work "in his current work environment" but that due to his injuries he had been "overlooked for promotions and pay rise[s]". The Assessor continued: "29. I consider it appropriate to provide a buffer for future loss of earning capacity to reflect the uncertainty of such losses [ie promotions and pay rises], particularly in respect to the timing in which the losses would occur, the uncertainty in respect to how long he would continue in such employment as well as the prospect of perhaps some minor improvement or worsening of his physical condition. 30. I accept the Claimant's submission [that] it is appropriate to allow a figure roughly reflective of about $200.00 per week as a loss of commissions and promotional opportunities. I agree with the Claimant's calculations that this gives rise to a figure, after the deduction for vicissitudes and making an allowance for employer based superannuation contributions of about $160,000.00. 31. Accordingly, I assess the Claimant's Future Economic Loss, including loss of superannuation contributions in the amount of $160,000.00." (emphasis added)
The reference to the "Claimant's calculations" in this extract is to a schedule of damages provided by the plaintiff. This document was tendered and received on the basis that Allianz contended that the Assessor's decision was affected by jurisdictional error (Craig at 176). The document included a calculation of future economic loss of $159,304.00 which was based on a loss of $200.00 per week projected to an age of retirement of 70 years with a deduction for vicissitudes of 15%. The document was not otherwise referred to in the Assessor's reasons.
Next the Assessor dealt with Mr Habib's claim for future commercial care. Mr Habib sought an amount of 3 hours per week. The Assessor reviewed some of the evidence and concluded that Mr Habib "has some difficulties with daily activities" and continued: "37. That said, the bulk of the tasks [which] the Claimant previously performed are likely to continue to be performed by his wife. There are likely to be some intermittent heavy regular activities which do lend themself to commercial assistance. Heavy cleaning, cleaning of windows, gardening or home maintenance activities and tasks which are, consequent on his injuries, beyond the physical capacity of the Claimant and accordingly I accept the Claimant has established a need for commercial assistance. 38. Given the heavier and intermittent nature of such assistance I consider it is appropriate to allow a buffer for such assistance based loosely on about 4 hours of domestic assistance monthly. I note the parties have agreed with a commercial rate of $38.50 per hour. This gives rise to a figure of $36,500.00 for the remainder of the Claimant's life expectancy. I accept there are likely to be occasions when for one reason or another the Claimant may not require this assistance every month. Similarly there may also be occasions, particularly should the Claimant move to premises which require more outdoor maintenance, where such assistance [may be] required slightly more often. 39 Notwithstanding such likely variations I consider it an appropriate basis for the calculation of future commercial assistance. In these circumstances I assess the Claimant's Future Commercial Care in the amount of $36,500.00."
It should be noted that this claim was not one for recompense for the voluntary additional care and services provided to Mr Habib because of his injuries (cf Griffiths v Kerkemeyer [1977] HCA 445; 139 CLR 161). Any claim to that effect would have had to overcome the requirement that it had been provided or would be provided for at least 6 hours per week and for a period of at least 6 consecutive months (MAC Act, s 141B(3)). Nevertheless, no point was taken in this Court that the above passage does not contain any finding that Mr Habib has or will purchase commercial care of 4 hours per month or more (see CSR Ltd v Eddy [2005] HCA 64; 226 CLR 1 at [31]).

Grounds of Review and Future economic loss

Allianz's amended summons identifies the grounds of review as follows: "The claims assessor … erred in the following respects: (a) The first error - in making his assessment of future economic loss and of future commercial care of the first defendant, the claims assessor erred in law in that he applied the wrong legal test to such damages. (b) The second error - in making his assessment of future economic loss and future commercial care of the first defendant, the claims assessor erred in law in that he failed to provide reasons or lawful reasons for his assessment … (c) The third error - in making his assessment of future economic loss and future commercial care of the first defendant, the claims assessor erred in law in that he failed to provide his reasons and conclusions in accordance with assumptions pursuant to section 126 of the Act. (d) The fourth error - in making his assessment of future economic loss and future commercial care of the first defendant, the claims assessor erred in law in providing a buffer and also a calculation of losses in his assessment. (e) The fifth error - in making his assessment of future economic loss and future commercial care of the first defendant, the claims assessor['s] decision was irrational and illogical and lacked any intelligible justification."
Ms Poljak's written and oral submissions reveal considerable overlap between these grounds. Further, each of the grounds attacks the determination of future economic loss and commercial care yet there is a need to distinguish between them as s 126 of the MAC Act applies to the former but not to the latter. The grounds are best addressed by differentiating between those two heads of damage. Further, while it is not clear, the essence of the complaints concerning the finding in relation to future economic loss appears to be a complaint that s 126 was not complied with by the Assessor relying on both a "buffer" approach and utilising calculations (ground 4), not complying with s 126(3) by failing to state the assumptions on which the award was based (ground 3) and otherwise failing to provide appropriate reasons for the determination (ground 2). In relation to ground 1, the details of the complaint were set out in the written submissions as follows: "In arriving at his decision, the claims assessor here failed to address in any detail the first defendant's most likely career progression, how long he was expected to remain in the work force, the percentage of vicissitudes deducted from the loss calculated and even when the first defendant would be expected to retire. The claims assessor failed to address any of these hypothetical assumptions with specificity and detail, which he was required to do. In making his decision he did something else, which is unintelligible and unclear from the reasons given." This complaint raises no separate matter to grounds 2, 3 and 4.
I have set out the Assessor's reasons for the award for future economic loss. Contrary to the repeated complaints of Allianz the basis for the award was in most respects clear. The Assessor accepted that Mr Habib would continue to work in his current position, that his injuries caused him loss of opportunities for promotion and pay rises, but that their quantification was affected by the uncertainties noted in [29] of the Assessor's reasons (see [17]). Accepting that it was a rough figure, the Assessor decided to allow $200 per week for those losses projected over the balance of Mr Habib's working life with a deduction for vicissitudes.
In [29] of his reasons the Assessor referred to allowing a "buffer" for the two aspects of Mr Habib's loss. One matter debated in these proceedings is how s 126 of the MAC Act accommodates an award of a so called "buffer", that is "a figure for economic loss [that] is so fraught with uncertainty that the preferred course is to award a lump sum as a buffer, without engaging in an artificial exercise of commencing with a precise figure, and reducing it by a precise percentage" (Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [30] ("Kerr") per Basten JA). The submissions in this Court appeared to proceed on the basis that the Assessor's characterisation of his approach as involving a "buffer" was correct, although clearly it was only a buffer in respect of one component of the calculation of future economic loss. I will act on that premise, although it only highlights the difficulty in proceeding on the basis that there is a strict demarcation between a buffer and an approach involving calculations.
Section 126 does not preclude an award of a buffer (Penrith City Council v Parks [2004] NSWCA 201 and the cases cited in Kerr at [30]). If a buffer is awarded, compliance with the section is still required but "the obligations imposed by s 126 upon the Assessor may be discharged by much more generalised statements" (Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281; 81 NSWLR 626 ("Sprod") at [30] per Barrett JA citing Kerr at [69] per Macfarlan JA).
In Sprod an Assessor accepted that there was a "chance" that the injured claimant would lose his job and, if that occurred, he would then be at a disadvantage "on the open labour market" (at [4]). The Assessor calculated an award of future economic loss by allowing $250 per week for the balance of the claimant's expected working life, namely 18.3 years with a 15% discount for vicissitudes to yield a figure of $134,300.00 (at [4]). The Court of Appeal held that the Assessor failed to comply with s 126 and that failure gave rise to an error of law on the face of the record (at [39] per Barrett JA, with whom Campbell JA and Sackville AJA agreed). Barrett JA noted the effect of the authorities dealing with the awards of buffers that I have just noted but stated that the Assessor had not adopted a buffer approach but had instead "made and articulated a calculation" (at [31]). His Honour noted that there was no "explicit explanation" for the choice of 18.3 years and a 15% discount for vicissitudes but accepted in relation to those matters that a "brief statement of what might seem to be reasonably obvious may well suffice" (at [33]). However, according to his Honour of greater significance was the failure of the Assessor to make any statement "of the assumption or assumptions underlying the figure of $250 net per week as lost earnings for the balance of the working life" (at [34]).
Ms Poljak submitted that Sprod is authority for the proposition that in order to comply with the requirements of s 126 there is a strict dichotomy between a "true buffer" case for future economic loss and a figure derived from a calculation. It was submitted that Sprod precludes an Assessor from adopting an approach whereby one of the integers or components of future economic loss is in effect a buffer, but the balance is a calculation. In support, Ms Poljak referred to the following passage from Sprod (at [37]): "There was, in my opinion, a failure of the assessor in these respects to engage with and perform the tasks prescribed by s 126. Once the assessor embarked on a process of calculation, the duties imposed by s 126 were enlivened (they would also have been enlivened, but required potentially very much less by way of explanation of assumptions, had the circumstances exhibited such uncertainties and imponderables as to justify the broad evaluative 'buffer' approach)".
I do not accept that either this passage or any other part of Sprod precludes the approach adopted in this case of utilising a buffer to reflect the uncertainties associated with one component or integer of a calculation of economic loss. If a component or integer of an award for future economic loss answers a description of a buffer then the assumptions that support it must still be stated although they can be "generalised statements" (Sprod at [30]). If other components or integers do not answer that description then more precisely expressed assumptions must be stated. In the end the ultimate question is whether s 126 has been complied with, and no strict dichotomy of the kind asserted is to be found in the section. Sprod speaks to the obligations imposed on an Assessor within the area of uncertainty that arises in relation to an award of future economic loss but it does not establish a strict demarcation between awards that involve the use of a buffer and awards that utilise calculations.
The true vice of the assessment in Sprod was that there was a figure calculated by reference to a notional weekly loss that relied on calculations, but the connection between that approach and the underlying rationale for the making of the award was not explained by any statements of the kind required by s 126(3). Given that the rationale for the award was the potential loss of the claimant's employment and his impaired prospects of finding work if that occurred, it is difficult to see how there could be a statement of the assumptions on which an award that used a calculation of a weekly amount was based. It is difficult to see how that type of potential loss has any connection to a weekly amount.
However, by contrast in this case, the awarding of a weekly amount can be seen to have a connection with the two aspects of loss that were accepted as having been suffered, namely a loss of commission and a loss of prospects of promotion. Further the figure chosen could also be seen to have some connection to the assessment of past loss. In this respect the award of future economic loss conformed with s 126 of the MAC Act. I reject ground 4 of the summons so far as it concerns the awarding of future economic loss.
However s 126(3) still required the Assessor to state the assumptions on which the award was based even allowing for the generality with which they may be expressed where a buffer is awarded. Thus in Sprod at [30] Barrett JA stated: "In a true 'buffer' case, the obligations imposed by s 126 upon the assessor may be discharged by much more generalised statements: see [Allianz Australia Insurance Ltd v] Kerr [above] at [69] per Macfarlan JA. But there will still be, of necessity, some assumptions. Assumptions as to life expectancy and likely remainder of working life are examples, even if circumstances mean that the assumptions are necessarily somewhat impressionistic. But if that is the quality of the relevant assumption, it is still possible for it to be stated, if only in very general terms, for example, that remaining working life has been assumed to be a minimum of five years and a maximum of 20 years. That, while it would do little to elucidate any basis of calculation, would serve to accentuate one aspect of the uncertainty that formed the very basis for resort to the evaluative approach of 'buffer'." (emphasis added)
The necessity to identify and state the assumption as to likely working life that underpins an award of future economic loss has been reiterated in a number of decisions (see Nominal Defendant v Livaja [2011] NSWCA 121 at [41]; Sprod at [27]).
There is no doubt that an assumption as to the age at which Mr Habib would have and will cease work underlay the Assessor's award. There was also a deduction adopted for vicissitudes being the percentage possibility that Mr Habib might have suffered an affectation of his earning but for the injuries in any event (s 126(2); cf Penrith City Council at [5]). Those assumptions are not expressly stated in the award but they can be deduced from examining the "Claimant's calculations" referred to in [30] of the award as noted above (at [17]). Mr Romaniuk submitted that in circumstances where the opposing party received those calculations that is sufficient to constitute compliance with s 126(3). I disagree. In Sprod Barrett JA explained the significance of compliance with s 126(3) as follows (at [27]): "27. The duty under s 126(1) to be satisfied that the adopted assumptions accord with the most likely future circumstances but for the injury is supplemented by the s 126(3) duty to articulate the assumption on which the award is based. This, as has been said in this Court more than once, is to ensure transparency and, at the same time, to inject an element of rigor or method that may be overlooked or simply abandoned if the statutory system did not insist on the identification and articulation of the assumptions employed. … 42. … The purpose of s 126, a provision directed at judges and applied in a derivative way to assessors, is to produce a reasonable degree of transparency as to assumptions and the reasons for them so that those interested in the assessment may have an insight into the way in which the task of assessment was performed. The section recognises that assumptions are necessary and appropriate …" (emphasis added)
These statements suggest that it is not sufficient for the Assessor to simply refer to a set of calculations provided by one of the parties which in turn contains the assumptions on which the award is based. Such an approach would not "ensure transparency" of the kind referred to by Barrett JA. Without the assumptions being expressly stated the task of determining whether they accord with the claimant's "most likely future circumstances but for the injury" as specified in s 126(1) is either impossible or at least rendered that much more difficult.
In a particular case one component of an assessment of future economic loss, such as expected age of retirement, may not be disputed. It may be that in such a case a failure to state that assumption might, as a matter of discretion, warrant the refusal of relief at the behest of a party who participated in that agreement. However there is nothing to suggest that any component of the award of future economic loss was agreed upon in this case. The consequence is that there was a failure to comply with s 126(3). At the very least it amounted to an error of law on the face of the record (Sprod at [39]). It follows that I uphold ground 3 so far as it concerns future economic loss.
Two complaints remain in relation to the award of future economic loss. In view of the conclusion in relation to ground 3 they can be dealt with briefly.
First, ground 1 and ground 2 complain about the adequacy of the Assessor's reasons. To the extent they extend beyond what I have already upheld I reject the complaint. The provisions dealing with the scope of the obligation to provide reasons are set out above at [9]. Leaving aside the requirements of s 126(3), the reasons need only be "brief" (s 94(5); Sprod at [42]). Their contents differ from the scope of the reasons required for a medical assessment under the Workplace Injury Management and Workers Compensation Act 1998 as discussed in Campbelltown City Council v Vegan [2006] NSWCA 284; 67 NSWLR 372 ("Vegan") at [121] to [128] (Insurance Australia Ltd t/as NRMA Insurance v Helou [2008] NSWCA 240 at [61]) and even Vegan must be read subject to the discussion in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 252 CLR 480 at [56] ("Wingfoot")).
The written submissions in support of ground 2 identify the particular failings of the Assessor in providing reasons as being a failure to provide reasons as to (a), whether or not Mr Habib's alleged conditions would improve and how it would impact on his working ability, (b) his age of retirement, (c) his "promotional opportunities and loss of commissions" at the time of the accident and how much they would have changed in the circumstances, (d) what part of the claims assessor's decision was a "buffer" and what part was a "calculation", (e) whether Mr Habib would reduce or increase his working hours after the date of the accident and if so, when, for what periods and for what reasons, and (f) Mr Habib's most likely future circumstances but for the accident.
In relation to (b), I have already upheld the complaint about the failure to state (and to the extent necessary explain) Mr Habib's age of retirement. However, I reject the balance of the complaints. In relation to (a) and (e), there is no suggestion that the Assessor acted on the basis that Mr Habib's condition would improve or that he would reduce or increase his working hours. The Assessor was not required to give reasons for findings that he did not make (Kerr at [61] per Basten JA; Wingfoot at [56]). In relation to (c) and (d) the Assessor's approach to the loss of promotional opportunities and commission and what part of his assessment was a buffer and what part was a calculation has already been explained. The Assessor was not required to make any more elaborate or precise findings than the evidence permitted and his failure to do so does not amount to a failure to give adequate reasons (see Kerr at [36] per Basten JA). In relation to (f), and leaving aside the deduction for vicissitudes, the Assessor proceeded on the basis that, but for the accident, Mr Habib would have had the opportunity to receive commissions and take up promotional opportunities that were available for someone who had travelled overseas to attend trade fairs.
Second, Ms Poljak's written submissions in support of its fifth ground quote extensively from the discussion in Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 ("Li") of the ground of review known as Wednesbury unreasonableness. Ms Poljak contends that the ground is made out because the Assessor "failed to set out any real explanation or provide any real reasoning for his decision" and otherwise erred "by determining that the first defendant earned an amount inconsistent with the evidence before him".
This contention has no substance. The discussion in Li relied on by Ms Poljak concerning unreasonableness was confined to the exercise of discretionary powers (Li at [63]) which in Li was the power to adjourn a hearing. The determination under challenge here was that made under s 94(1)(b) of the MAC Act and, at this point, concerns so much of that determination that was predicated on a determination of the amount of future economic loss. No discretionary power was exercised by the Assessor.
The only analogous basis to challenge the Assessor's determination is the illogicality ground of review that is sometimes traced to R v Connell; ex parte Hetton Bellbird Collieries Ltd [1944] HCA 42; 69 CLR 407 at 430 and 432 (per Latham CJ). I discussed the scope of this form of review so far as it concerns findings of fact in O'Shannessy at [57ff]. Establishing this ground of review is that much harder in the context of a statutory scheme that does not provide a "binary choice" of outcomes but a range (Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244 at [46] per Basten JA). It follows from the above that it has not been shown that the Assessor's approach to determining future economic loss was either irrational or illogical. Otherwise no material was put forward in support of the contention that the findings of the Assessor were inconsistent with the evidence before him.
Accordingly I reject grounds 1, 2 and 5 in so far as they concern the award for future economic loss.

At a glance

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Judgment (8 paragraphs)

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Legislation Cited (4)

Cases Cited (16)

Cited By (10)