Allianz Australia Insurance Limited v Zein

Supreme Court of NSW|2016-03-03|Before: Adamson J, Hidden J

Solicitors: Moray & Agnew Lawyers (Plaintiff) C & M Lawyers (1st Defendant) File Number(s): 2015/321534

Introduction

By amended summons filed on 15 December 2015 the plaintiff, Allianz Australia Insurance Limited (Allianz) seeks relief under s 69 of the Supreme Court Act 1970 (NSW) in respect of a certificate issued on 6 October 2015 by the third defendant, a claims assessor under the Motor Accidents Compensation Act 1999 (NSW) (the Act). The assessor assessed the damages in respect of a claim made by Saadallah Zein, the first defendant (the claimant), for injuries he sustained in a motor vehicle accident on 2 February 2012 at $1,420,801.23.
Submitting appearances were filed on behalf of the second defendant, the State Insurance Regulatory Authority (the Authority) and the third defendant.

The assessor's decision

On 2 February 2012 the claimant (then aged 37) was driving to work. When the insured's vehicle failed to give way to the claimant's vehicle, the two collided, as a result of which the claimant's vehicle hit a telegraph pole. The insurer accepted liability for the claim pursuant to s 94(1)(a) of the Act. The assessor was obliged to assess damages pursuant to s 94(1)(b) of the Act.
The four challenges to the assessor's decision relate to the assessment of future economic loss, which comprised $685,025 of the amount in the certificate. In order to address these challenges it is necessary to summarise the assessor's finding as well as to set out the assessor's reasons for the part of the award that related to economic loss in full.
The relevant findings of the assessor were, in summary, as follows. The paragraph references are to paragraphs in the reasons.
Immediately prior to the accident, the claimant was physically and mentally healthy and was working full-time ([52]). He was a skilled and conscientious worker who had, in the period 2007-2010, owned and operated his own dental laboratory ([75]).
The claimant sustained the following injuries in the accident: scarring and disfigurement to his right forearm and to the back of his head; musculoligamentous strain to his cervical and lumbar spine; soft tissue injury to his left knee; right macular scar; chronic post-traumatic stress disorder; and major depressive episode ([37]). These injuries and disabilities have had a severe mental and physical impact on the claimant ([48], [50], and [53]). Any other health problems are relatively immaterial ([52]).
As a result of these injuries and disabilities the claimant has been unable to work since the accident and, at the time of the assessment, the claimant remained unable to work, including in his pre-accident work as a dental technician ([64]-[66]). It was common ground that, but for the accident, the claimant would have been earning $1,150 net per week at the time of the assessment ([67], [78]). The claimant will probably be unable to work again as a dental technician ([72]).
The assessor made the following finding as to the claimant's work history prior to the accident: "48.1 The claimant completed his Higher School Certificate at Prairiewood High School and successfully undertook a Diploma in Dental Technology at Randwick TAFE between 1993 and 1995. The claimant appears to have had an uninterrupted work history as a dental technician/ceramist until the time of the motor vehicle accident. That period calculates to about 16 years. In the years preceding the motor vehicle accident, the claimant had been a successful dental technician and ceramist. The claimant had worked with Sydney Dental Restorations between 2002 and 2007 as a manager/senior ceramist fabricating crowns, bridges and implant cases. Between January 2007 and March 2010, the claimant had his own business (Zein Dental Ceramics (Crown and Bridge Laboratory)) -in Perth, Western Australia. The claimant returned to work with Sydney Dental Restorations in April 2010 until the date of the motor vehicle accident (2 February 2012). This is a good work record and suggests the claimant would have suffered mentally and/or physically due to an inability for him to undertake his work and pursue his career."
The assessor's reasons for the component of the assessment that related to future economic loss were as follows: "FUTURE ECONOMIC LOSS 71 The claim is for $1,352,297 based on a net weekly loss of $2,060 for about 26.5 years (772.3) less 15%. 72. The insurer submits a $50,000 buffer including future superannuation loss. The insurer's buffer sum is based on the claimant becoming employed in his pre-accident employment but to take account of periods of illness and a delay in finding employment in his pre-accident work. For the reasons already recorded I have found the claimant will probably not be able to recommence employment as a dental technician. 73. Both parties' submissions acknowledge the criteria set out in s. 126 and related cases (see, for example, Nominal Defendant v Livaja [2011] NSWCA 121, Insurance Australia Limited (t/as NRMA Insurance) v Hutton-Potts [2010] NSWSC 1446 and Allianz Australia Insurance Limited v Kerr [2012] NSWCA 13) have been satisfied. 74. The basis of the claim assumes the claimant would have been successful in his own dental technician laboratory. This is distinct from an employed dental technician (see the letters from Leonid Onofrei and Glen Bright at A51 and A52). 75. The claimant was a skilled, conscientious worker and provider who had experience in owning and operating his own dental laboratory in Perth, Western Australia between about 2007 and 2010. The claimant's written statement dated 28 January 2015 at paragraph 35 states the claimant's goal was to open his own business in Sydney in 2013. The claimant further states this was delayed pending the anticipated profit on sale of a property in Perth. 76. I am not satisfied to the civil standard the claimant was likely to have his own successful business earning $2,060 net per week for the following reasons: The claimant had been successful but did not pursue his own business in Perth. Most of the claimant's career had been as an employed dental technician/ceramist. The claimant has been committed to his family which adversely impacts on his ability to work long hours in his own business. The likely variation in earnings, even assuming the claimant was employed in his own business. 77. Notwithstanding the findings in paragraph 80, I consider it appropriate to allow a reduced s. 126(2)/ vicissitudes percentage to take account of the possibility the claimant would have been successful in his own business and has lost that opportunity. I intend applying a discount for vicissitudes of 12% rather than 15% for this reason. 78. I have noted the parties agreed the claimant would be currently earning $1,150 net per week if he was currently employed in his pre-accident employment. 79. The report of C. Martin suggests the claimant probably has a de minimus earning capacity. For example as a "general clerk" (see page 30 of Mr Martin's report). There is medical evidence supporting a finding the claimant has a significant residual earning capacity. For example, Dr Buckley, Dr Horsley, Dr O'Neil and Dr Newlyn. In my assessment, the claimant's evidence on his inability to work since the motor vehicle accident should be accepted. There is also a concession by the claimant during questioning by Mr Catsanos that he could be a supervisor in a dental laboratory (although he would have difficulty standing for long periods) and possibly work in the Randwick TAFE still within his industry. 80. I have already found I am satisfied to the civil standard the claimant's physical and mental condition is likely to improve. I am also satisfied the claimant is a person likely to improve his health and employment prospects when this claim has been finalised. This is consistent with the opinions of Dr L. Lee and Dr Newlyn. It is probable the claimant will recommence driving a motor vehicle. 81. A problematic and speculative determination is the measurement of the claimant's residual earning capacity. I am satisfied the claimant will take approximately five years before he obtains any remunerative employment. I make this finding on the basis of the following evidence. The claimant has a significant chronic psychiatric condition. This condition needs treatment and is likely to prevent the claimant from obtaining employment for a significant period. There will be a period before the claimant's physical condition will enable him to undertake any form of employment. It is likely the claimant will have to retrain to enable him to become employed. The loss over the next five years is assessed at $1,150 net per week x 5% (231.5) = $266,225. Given this is a relatively short period (5 years), and based on the claimant's work history, I do not consider it is reasonable to discount this sum. 82. After the five year period, it is likely the claimant will be employed in some capacity. In percentage terms I am satisfied the claimant's residual earning capacity after five years is about 25% of what his current earning capacity would be if he was employed as a dental technician. This means the claimant has a residual earning capacity assessed at $287.50 (25% of $1,150). His loss of earning capacity after five years is therefore $862.50 ($1150 x 75%) deferred for five years (0.784) = $676.20 projected until age 67 that is an approximate further 22 years (703.8) - 12% = $418,800. 83. Total future economic loss $685,025 (266,225 + 418,800)."

Assessment of damages under the Act

Chapter 5, headed "Award of damages", applies to assessments of damages by claims assessors under Pt 4.4 in the same way as it applies to such assessments by a court: s 122(3). A Court is bound by Chapter 5: s 123(1). Accordingly a claims assessor is bound by Chapter 5.
Section 126, which is contained in Chapter 5, provides: "Future economic loss - claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted."
Section 90 of the Act provides that a claim may be referred to the Authority by the claimant or the insurer, or both, for assessment under Pt 4.4 of Ch 4 (Motor accident claims). Section 99 empowers the Authority to appoint a claims assessor. Section 94(1)(b) of the Act requires a claims assessor, relevantly, to make an assessment of the amount of damages for the insurer's liability (being the amount of damages a court would be likely to award). The assessor is to specify an amount of damages (s 94(3)) and attach a brief statement to the certificate, setting out the assessor's reasons for the assessment (s 95(5)).
The assessment of claims under Pt 4.4 is subject to the Motor Accidents Claims Assessment Guidelines (the Guidelines): s 106. For present purposes the only relevant provision of the Guidelines is cl 18.4 which provides: "18.4 A certificate under section 94 or 96 is to have attached to it a statement of the reasons for the assessment. The statement of reasons is to set out as briefly as the circumstances of the assessment permit: 18.4.1 the findings on material questions of fact; 18.4.2 the Assessor's understanding of the applicable law if relevant; 18.4.3 the reasoning processes that lead the Assessor to the conclusions made; and 18.4.4 in the case of an assessment certificate pursuant to section 94, the Assessor must specify an amount of damages and the manner of determining that amount."

This Court's jurisdiction

This Court has jurisdiction under s 69(3) of the Supreme Court Act to grant relief in respect of an error of law on the face of the record. The record includes the claim form, the certificate and, by reason of s 69(4), the assessor's reasons. It does not include the evidence considered by the assessor: Craig v South Australia (1995) 184 CLR 163 at 182-183.
This Court's jurisdiction under s 69 of the Supreme Court Act and its inherent jurisdiction to correct jurisdictional error are to be contrasted with its appellate jurisdiction under s 75A of the Supreme Court Act. An appeal under s 75A is a rehearing in which the Court of Appeal is to form its own assessment, subject to the advantage enjoyed by the tribunal of fact in seeing and hearing the witnesses. When damages arising from a motor vehicle accident are assessed by a judge, the merits of the assessment can be reviewed by the Court of Appeal on an appeal (either from the District Court or the Supreme Court) pursuant to s 75A. However, when, as in the present case, the assessment of damages is conducted by an assessor appointed under the Act, this Court has no jurisdiction to review the merits of the award.
As Brennan J said in Attorney-General (NSW) v Quin (1990) 170 CLR 1 at 36: "The merits of administrative action, to the extent that they can be distinguished from legality, are for the repository of the relevant power and. . . for the repository alone. The consequence is that the scope of judicial review must be defined not in terms of the protection of individual interests but in terms of the extent of power and the legality of its exercise. In Australia, the modern development and expansion of the law of judicial review of administrative action have been achieved by an increasingly sophisticated exposition of implied limitations on the extent or the exercise of statutory power, but those limitations are not calculated to secure judicial scrutiny of the merits of a particular case."
In the present case, the repository of the relevant power to make the assessment is the assessor, not this Court. Accordingly, subject to the confines of administrative unreasonableness, no judgment can be made about the merits, correctness or appropriateness of the quantum of the assessment. The sole question for determination is its legality.

The grounds for judicial review

The grounds for judicial review were, in substance, as follows: 1. The assessor erred in assessing damages for future economic loss by performing a calculation which lacked the requisite precision and specificity, when it "would have been more appropriate and warranted in the circumstances" to award a "buffer". 2. The assessor failed to provide reasons in accordance with s 94(5) of the Act and cl 18.4 of the Guidelines as required by s 126 of the Act. 3. The assessor erred in assessing damages on the basis that it would be approximately five years before the claimant would obtain any remunerative employment when there was no evidence to support such a finding. 4. The assessor's assessment of damages for future economic loss was "irrational and illogical and lacked any intelligible justification" in that: 1. the assessor found that the claimant was not likely to have his own successful business ([76] of the reasons) but reduced the percentage for vicissitudes to take account of the possibility that the claimant would have been successful in his own business ([77] of the reasons); and 2. the assessor was satisfied that the claimant would improve his employment prospects and health after the claim was finalised and that he still had residual earning capacity in other roles ([79]-[80] of the reasons) but then found that it would take about five years before the claimant would obtain any remunerative employment ([81] of the reasons).

The principles for assessment of non-economic loss

In order to address Allianz's submission that the assessor erred in law by failing to award a buffer I propose to summarise the relevant principles (which are collected in Basten JA's judgment in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 at [21]-[31]).
The purpose of an award for future economic loss is to compensate the claimant, in so far as money can do it, for the loss of the capacity to earn, in so far as it may be productive of financial loss: Graham v Baker (1961) 106 CLR 340 at 347. It involves predicting the chance and effect of future (and therefore necessarily uncertain) events, including on a hypothetical basis (if the accident had not occurred). The approach to be adopted was authoritatively determined by the High Court in Malec v JC Hutton Pty Ltd (1990) 169 CLR 638 at 643 (Deane, Gaudron and McHugh JJ): ". . . in the case of an event which it is alleged would or would not have occurred, or might or might not yet occur, the approach of the court is different. . . . unless the chance is so low as to be regarded as speculative - say less than 1 per cent - or so high as to be practically certain - say over 99 per cent - the court will take that chance into account in assessing the damages. Where proof is necessarily unattainable, it would be unfair to treat as certain a prediction which has a 51 per cent probability of occurring, but to ignore altogether a prediction which has a 49 per cent probability of occurring. Thus, the court assesses the degree of probability that an event would have occurred, or might occur, and adjusts its award of damages to reflect the degree of probability."
The task of the trier of fact is to form a "discretionary judgment". As Heydon JA said in State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [87]: "Though the trier of fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on a balance of probabilities, but the assessment of the value of a chance, it is appropriate to take into account a range of possible outcomes even though the likelihood of any particular outcome being achieved may be no more than a real possibility."
An assessment for future economic loss is commonly expressed in one of two ways. A calculation can be made of likely future loss on the basis of a weekly figure (whether deferred or otherwise) which is then capitalised and discounted to reflect the present value of a future periodic income loss. Alternatively, when the uncertainties are such as to make the first approach too artificial, a rounded figure, referred to as a "buffer" is selected. The choice of method is, largely, a matter for the trier of fact, it being a question of evaluative judgment which of the two methods is more apposite to the case: Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 per Basten JA at [24], McColl and Macfarlan JJA agreeing. The benefit of the first method is that it appears to give greater transparency; however, its disadvantage is that it may produce such an artificial and contrived set of figures as to make the exercise unrealistic and unhelpful.
After s 126 was enacted, the question arose whether its operation precluded the second of these orthodox methods for assessing damages for future economic loss. The Court of Appeal in Penrith Council v Parks [2004] NSWCA 201 (Giles JA at [3]-[5], Cripps AJA and McClellan AJA agreeing) confirmed that assessment by way of a buffer was not precluded by s 126. It is of the nature of an award by way of buffer that compliance with s 126 can be satisfied by more "generalised statements" than were a lump sum on the basis of a capitalised weekly amount to be ordered: Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281; 81 NSWLR 626 at [30] per Barrett JA.
A further question arose whether the need for the assumptions in s 126(1) to accord "with the claimant's most likely future circumstances but for the injury" also affected the obligation to state "the assumptions on which the award was based" in s 126(3). In other words, the question arose whether only the assumptions that were "most likely" were to be considered. The answer to this question appears from the language of the section. The assumptions in s 126(1) relate to the "but for (the accident)" scenario. However, the assumptions in s 126(3) are, in substance, the basis for the award. The award is based on the difference between the "but for the accident" scenario and the actual (and future) situation of the claimant as a result of the accident. Section 126(1) applies to the former but not to the latter.
In enacting s 126 (and its equivalent in the Civil Liability Act 2002 (NSW), s 13) Parliament intended to disturb neither the principles established by Graham v Baker, nor those established by Malec v JC Hutton Pty Ltd.

Whether assessment by way of capitalised sum constituted an error of law

In order to establish that the assessment of future economic loss by way of a capitalised sum constituted an error of law, Allianz must establish that it was not open to the assessor, as a matter of evaluative judgment, to assess damages in that way.
In my view it was open to the assessor to assess damages for future economic loss by way of a capitalised sum rather than a buffer. In the circumstances of the present case, the first integer of the comparison (what the claimant would have been earning at the time of the assessment but for the accident) was substantially agreed, in that the weekly figure was agreed (see [78]). It appears to have been accepted that the claimant's most likely circumstances but for the accident would have been that he would have continued in his pre-accident employment. The second integer of the comparison (what his future circumstances would be) was, as is commonly the case, more difficult. The assessor identified each of the matters considered and his findings (including as a matter of future or hypothetical fact, with the relative chance assessed). His approach fulfilled the requirements of s 126.
Ms Poljak confirmed in oral submissions that Allianz would not take issue with the assessor's reasoning if the end result was to assess damages for future economic loss by way of buffer. This submission demonstrates why the first ground must fail: the legality of an assessment of damages for future economic loss cannot depend on the label applied to the method if the basis of the assessment fulfilled (as Ms Poljak accepted it would have if it had been a buffer) the legal requirements of s 126 of the Act.
Had the assessor taken the approach of awarding a buffer (which it was within the evaluative judgment which was open to him to make), he might have given less detail about how the buffer was calculated. But he could hardly have given more detail than he actually did in his reasons, which were both comprehensive and, relevantly, sufficient. This ground has not been made out.

The second ground: failure to give reasons

The relevant requirements to give reasons are set out above. Allianz's submissions were largely, if not wholly, confined to a challenge to compliance with the requirements of s 126.
In my view, Allianz's submissions fail to take account of the nature of the task of assessing future economic loss which is necessarily conjectural. The comparison between the "what if" (the accident had not happened) and the "what now" (that it has) cannot be determined in the same way as a historical fact can be determined. What s 126(1) requires is that the "what if" (the accident had not happened) be articulated in terms of the claimant's most likely circumstances. What s 126(3) requires is that the assumptions on which the award was based, with relevant percentages, are stated.
Allianz's criticisms of the assessor were trenchant, as the following extract demonstrates: "At [76] and [81] of the reasons for decision, the claims assessor attempted to make some assumptions of the nature prescribed by section 126, but they are largely open ended, meaningless, incorrect and based on incorrect reasoning that the first defendant will have a successful business and that the [sic] he will not undertake any form of remunerative employment for 5 years. The claims assessor's reasoning here was purely speculative and not supported by probative evidence. 57. The claims assessor, failed to lawfully, adequately and/or logically assess, the first defendant's most likely future circumstances but for the accident and as a result he fell into error when applying these incorrect assumptions to the assessment of the first defendant's future loss."
In the present case, the claimant was unfit for work at the time of the assessment. Questions including the following needed to be considered: whether the claimant would become fit for work again; when he would become fit for work again; what work he would be fit for; whether he would have to retrain in order to become employable having regard to his disabilities; and what his residual earning capacity was likely to be compared with his pre-accident income. Each of these questions required a degree of evaluation and estimation, as well as conjecture and prediction.
The particular criticisms levelled by Allianz for the alleged lack of reasons in the third ground were expressed in its written submissions as follows: "60. The claims assessor failed in particular to provide reasons as to (as detailed in the summons at paragraph 12): Whether or not the first defendant's alleged conditions would improve and how it would impact on his working ability; Why it would take approximately 5 years before the first defendant would obtain any remunerative employment and how the claims assessor arrived at this approximate time period; What type of retraining the first defendant would need to undertake to become employed, how long it would take to successfully complete the retraining and how it would impact on his future earning capacity; What alternative work the first defendant could undertake while he retrained and/or until he was able to return to his previous employment capacity; Why the first defendant's residual earning capacity after 5 years was determined to be 25%; The most likely future circumstances of the first defendant but for the accident; All of these reason [sic] are wholly unexplained and the decision is accordingly invalid."
I consider that each of the matters listed above was addressed sufficiently in the reasons. As to (a), the reasons are to be found in [79]-[81]. The matter in (b) involved the making of an evaluative judgment as to the matters referred to above. The reasons for (b) were sufficiently exposed at [81] as well as [79]-[80]. As to (c), it cannot be an error of law to fail to mention something in reasons where there is no legal obligation to do so. The assessor considered the possible need for retraining, which was sufficient. I am not persuaded that any finding beyond that needed to be made or addressed. As to (d), it is plain that the assessor considered that it was preferable to allow for a period of five years for recovery and retraining than to calculate damages on the basis of a staged return to work. This was a choice open to the assessor whose reasons were sufficient. The assessment of residual earning capacity is, as with many aspects of the task of assessing damages for future economic loss, an evaluative judgment. The reasons are adequately set out, in particular at [79].
As to (f), this was the integer which required the least evaluative judgment since the claimant had a continuous work history prior to the accident. The assessor explained (at [67], [75], [76] and [77]) why he considered that, but for the accident, the claimant's most likely future circumstances would have been that he would have continued to work as a dental technician at his current wage. The assessor's reasons were sufficient to fulfil the requirements of s 126 as well as the general requirements to give reasons in the Act and the Guidelines referred to above.
The second ground has not been made out.

The third ground: no evidence for specific findings

In so far as the third ground is said to involve an error of law on the face of the record, my consideration is restricted to a consideration of the record, as referred to above, which includes the assessor's reasons. As is apparent from the extract from the assessor's reasons set out above there is detailed reference to the evidence relied upon for various findings. For this reason, were I restricted to the record, I would dismiss this ground.
However, Ms Poljak, who appeared for Allianz, relied on jurisdictional error and, on that basis, submitted that it was necessary for the claimant to identify the basis for the findings for which there is alleged to be no evidence. I have reservations about this approach since it would appear to be an attempt to obtain merits review of the findings, which is no part of my jurisdiction. However, Mr Beckett, who appeared with Mr Gemmell on behalf of the claimant, submitted that the evidence to support the findings could readily be identified and tendered for the purposes of determining this ground. In these circumstances, I admitted such evidence as an exhibit in the claimant's case.
The "fact" in respect of which it was alleged that there was no evidence was the assessor's finding in [81] that the claimant will take approximately five years to obtain any remunerative employment.
The first difficulty with Allianz's submission is that it is necessarily the case that there can be no direct evidence of such a finding, it being a matter of prediction, speculation, conjecture or "opinion". Accordingly the gravamen of Allianz's complaint must be that there was no evidence of the matters identified as forming the basis of the inferential finding, or that the inference was not open as a matter of law.
I propose to address each of the matters the assessor identified as a basis for the finding (taken from [81]) to determine whether there was evidence to support it. As there is evidence for each of the findings (in so far as there could be, having regard to the nature of the finding), it is not necessary to consider what occurred at the conference at which the Claims Assessment and Resolution Service (CARS assessment) took place or the evidence of the claimant himself. As appears from the assessor's reasons, the claimant gave evidence at the conference, which was largely accepted by the assessor. At the conclusion of the reasons with respect to the claimant's credit, the assessor said at [50]: "I am further satisfied, however, those disabilities are significantly disabling including an incapacity to currently undertake any form of employment."

The finding: the claimant has a significant chronic psychiatric condition

The reports of Dr McClure, Dr Hayek, Dr Lee and Dr Mayne support this finding, as well as the medical certificates of Dr Awada. For example, in a report of 7 April 2015 Dr Mayne said: "He still has flashbacks of the road traffic accident but most importantly he remains depressed in his mood with almost complete lack of interest in any activity."

The finding: the claimant's psychiatric condition needs treatment

The reports of Dr Hayek, Dr Lee and Dr Mayne support the finding that the claimant continued to require counselling as well as anti-depressant medication.

The finding: the claimant's psychiatric condition is likely to prevent him from obtaining employment for a significant period.

The evidence in support of this finding is contained in the medical reports referred to above.

The finding: there will be a period before the claimant's physical condition will enable him to undertake any form of employment

The reports of Dr Deveridge, Dr Buckley, Dr Saunders and Mr Martin support this finding. For example, in his report of 4 December 2013 Mr Martin said: "[the claimant's] ability to adapt to alternate employment on the open labour market at present is extremely poor. Some of the reasons are as follows: significant physical and psychological injuries."

The finding: it is likely the claimant will have to retrain to enable him to become employed

There is evidence to support this finding in the reports of Dr Deveridge and Mr Martin and in the claimant's statement.

The assessment: the loss over the next five years is assessed at $1,150 net per week x 5% (231.5) = $266,225.

The selection of a figure of five years was one that was not susceptible of evidence. Because of the nature of the claimant's disabilities (which were both physical and psychological) it was a matter of judgment for the assessor, assisted by expert opinion, as to the length of the period during which the claimant would be unable to engage in paid work. It is not a necessary precondition of such a finding that there be an expert opinion to support it. Indeed, an expert opinion may well not be admissible because the judgment called for is not obviously one falling within an area of expertise, but rather one which requires the weighing and consideration of lay and expert evidence by the trier of fact.
The third ground has not been made out.

The fourth ground: illogicality or irrationality

The starting point is the following passage from the judgment of Mason J in Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 356: "Thus, at common law, according to the Australian authorities, want of logic is not synonymous with error of law. So long as there is some basis for an inference - in other words, the particular inference is reasonably open - even if that inference appears to have been drawn as a result of illogical reasoning, there is no place for judicial review because no error of law has taken place."
Ms Poljak relied on Minister for Immigration and Citizenship v Li [2013] HCA 18; 249 CLR 332 in support of the proposition that unreasonableness can amount to jurisdictional error. That case concerned the Migration Review Tribunal's decision to refuse an adjournment. I do not regard that case as applying to the present. However, it is unnecessary to consider the extent to which the decision of an assessor could be set aside on the grounds of unreasonableness in circumstances where I am not persuaded, for the reasons given below, that there is any illogicality or unreasonableness in the matters relied upon.

The first aspect: the difference between a possibility and a probability

The first of the specific complaints made by Allianz in the fourth ground is that there is an inconsistency, or discrepancy between the finding that the claimant was not likely to have a successful business and the finding that it was possible that he would have a successful business (which required an adjustment to the percentage for vicissitudes). I am unable to discern any inconsistency. The first proposition is, in effect, that the claimant has a chance of having a successful business but the chance is not greater than the chance that he will not. The second proposition is, in effect, that the claimant has a chance of having a successful business, which, though possible, is not probable. These propositions are consistent. As the High Court said in Malec v JC Hutton Pty Ltd in the passage set out above, a prediction which has a 49% chance of occurring is no more to be disregarded than a prediction which has a 51% chance of occurring is to be treated as a certainty.

The second aspect: improvement below a threshold of employability

The second of the specific complaints made by Allianz in the fourth ground is that the claimant's health and employment prospects would improve but that it would take five years before he would obtain remunerative employment. There does not appear to me to be anything either illogical or irreconcilable about these propositions. The claimant's health and employment prospects might improve over time but unless and until they improved to the point where he could obtain remunerative employment, there would still be a gap between the improvement and the obtaining of remunerative employment. The assessor adjudged this period to be five years. For the reasons given above there was a basis for this inference. Accordingly, there is no place for judicial review.

Conclusion

Allianz has failed to make out any of its grounds for judicial review, either under s 69 of the Supreme Court Act or on the basis of jurisdictional error. As a stay was ordered by Hidden J on 25 November 2015, it is necessary to dissolve the stay, no successful challenge to the assessment having been made.

Orders

I make the following orders: 1. Dismiss the amended summons. 2. Unless an application for a different order is made in writing to my Associate within seven days hereof, order the plaintiff to pay the defendants' costs. 3. Dissolve the stay granted by Hidden J on 25 November 2015 on the basis that the proceedings have been determined by the refusal of the relief sought.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 March 2016

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