IAG Limited t/as NRMA Insurance v Rahif Adhami

Background

1. On 31 May 2012, the defendant sustained injuries in a motor vehicle accident in NSW and lodged a claim for compensation with the compulsory third party ("CTP") insurer of the vehicle at fault in the collision, the insurer.
2. The insurer admitted liability for the defendant's claim, leaving only the question of damages to be determined.
3. The insurer and the defendant filed an application for assessment of the defendant's personal injuries in the State Insurance Regulatory Authority of New South Wales ("SIRA").
4. The assessor was appointed by SIRA to assess the quantum of damages. On 25 August 2015, an assessment conference was held. It was attended by the defendant, who was assisted by an interpreter, his legal representatives, representatives of the insurer and the assessor. The defendant was interviewed by the assessor. On 7 October 2015, the assessor provided a certificate in accordance with s 94(4) of the Act together with reasons for his decision.
5. The following matters were agreed as between the parties for the purposes of the assessment: 1. Past treatment expenses were agreed at $18,049.98; 2. Section 83 payments (included in the agreed past treatment expenses) totalled $12,360.78; 3. The defendant has a working life expectancy of 32 years; 4. The defendant has a life expectancy of 50 years; and 5. The 5% multiplier relevant to the period of 50 years is 976.2.
6. The defendant made no claim for past loss of earnings and conceded that he had no entitlement to non economic loss damages.
7. What was in dispute before the assessor was, firstly, the extent of the defendant's injuries and disabilities; and secondly, the defendant's claims in respect of care, assistance and his diminution of earning capacity. The insurer argued that the defendant's entitlement ought to be limited to the past treatment expenses he had incurred with a modest buffer of no more than $2,000 for future treatment on the basis of a need for intermittent analgesia and GP attendances. The insurer's position was that the defendant should not receive an award for future economic loss.
8. The assessor awarded the defendant $183,049.98 in damages. This sum comprised of $18,049.98 for past treatment; $15,000 for future treatment expenses; and $150,000 for future loss of earnings including superannuation.
9. The issue in this judicial review is confined to the assessor's assessment of the defendant's future economic loss. The plaintiff does not dispute the appropriateness of the assessor's decision to award an amount for future economic loss but says that the assessor failed to comply with the requirements of the Act in making an award for future economic loss.

The assessor's decision

1. The relevant parts of the assessor's reasons for decision are as follows.
2. The assessor set out the defendant's history. (D [9] to [17]). As at 7 October 2015, the defendant was 35 years old. In 2006, he migrated to Australia and married. He attended school in Lebanon until the age of 12, which is when he started work as an "exhaust engineer", so described in his statement. His English language skills are limited and he required an interpreter for the purpose of the assessment conference. He has three children. At the time of the assessment, his son was six years old and his twin children were aged four (one boy and one girl). He resides in Bankstown with his wife, children, parents-in-law, brother-in-law and sister-in-law. He had had various employments in Australia, including as a traffic controller, general labourer, cement renderer and formworker.
3. In 2011, the defendant's wife began to suffer from severe migraines requiring him to cease work in order to look after her. Since 2011, he has received a carer's pension as he is caring for both his wife and their children.
4. The assessor also stated that: "[The defendant] makes the claim that he intended to eventually return to gainful employment when his children are older and able to look after themselves, and otherwise provide assistance around the home." (D [20]).
5. The assessor considered that the defendant was a truthful witness who did his best to assist the assessment process, he did not seek to exaggerate or otherwise embellish his claim and his responses to the questions of the insurer's solicitor at the assessment conference were spontaneous and credible. (D [21]-[23]).
6. So far as the defendant's injuries are concerned, the assessor was satisfied that the defendant suffered ligamentous injuries to his cervical and lumbar spine as well as injuries to both his shoulders and as a consequence he developed symptoms of anxiety, panic and depression. (D [24]-25]). However, at the time of the assessment, the assessor noted that the defendant acknowledged the shoulder conditions had completely recovered. (D [26]).
7. In relation to the defendant's ability to work and the extent of his capabilities the assessor stated: "I accept that he continues to suffer with neck and back pain, although intermittent, but which will come on with activity involving lifting, carrying, bending and prolonged sitting or standing." (D [35]).
8. So far as the defendant's future economic loss is concerned, the assessor stated: "(ii) Future economic loss (claimed as a buffer) 75. Mr Adhami has limited education and limited vocational skills. 76. He has a limited grasp of the English language. 77. As a 35 year old he has working life expectancy in the order of 32 years. 78. For the last 4 years he has been out of the workforce caring for his wife and 3 young children. 79. He has apparently been in receipt of a carer's pension from Centrelink since 2011 due to his wife's medical condition which I understand involves regular and severe migraine attacks from which she is often incapacitated. 80. His claim is put on the following basis:- "It is submitted that the Claimant is entitled to a buffer of economic loss, having regard to the ability that he had but for the accident to return to gainful employment in the future. This is particularly important in the more distant future, particularly when his children leave home. It is noted that in the past, the Claimant engaged in a range of fields of employment working as a traffic controller, general labourer, cement renderer and formworker. The Claimant intended to eventually return to gainful employment". 81. In his supplementary statement dated 22/07/15 Mr Adhami explained:- "I was unable to return to the work force in 2011 as my wife started suffering from severe migraines and I had to look after her. I began receiving a carer's pension of about $648.00 per fortnight in order to support my family while caring for my wife. I spent most of my time since 2011 up until the subject accident caring for my wife and our children as she was unable to do so. Although I have stopped working and was caring for my wife and children, I always had an ambition to return to the workforce as soon as I could when my children were old enough to care for themselves and did not require my assistance with care as much. I would still need to look after my wife but my children would also help with this once they were old enough". 82. It follows that any allowance for future economic loss needs to take account of the fact that such a loss would be deferred for some years. 83. The youngest of his children, the twins, are presently 4 years of age and on the information available to me and consistent with Mr Adhami's evidence his return to the workforce would likely be delayed for at least another 10 years. 84. The Insurer maintains that I ought approach the assessment of economic loss on the basis that the motor accident related injuries were minor in reliance on the radiological studies and Dr Ginsberg's opinion that the whiplash injury suffered in the accident was of no real significance and that the restrictions on his future employment related to a pre-existing thoracic scoliosis which he also referred to as a "congenital spinal condition" that would impose physical restrictions on work activity. 85. I have also ready commented on the reports of both Dr Ginsberg and Dr Rosenthal whose opinions the Insurer relies on in support of the submissions. 86. I am not persuaded by those opinions suggesting that he has not been left with any permanent impairment related to the motor accident. 87. The Insurer's position is that there ought be a nil allowance for future economic loss. … 89. In view of the imponderables and uncertainty as to the future this is a matter where any allowance for future economic loss needs to be assessed as a buffer. 90. In view of an agreed working lifetime of some 32 years it was submitted that the buffer ought be an amount of $150,000.00. 91. Reliance was placed on an analysis of average weekly earnings of fulltime employed males referable to the construction industry ($1,755.70 gross per week) and the average total for all industries ($1,681.20 gross per week). 92. I note that in both reports of Dr Bodel he expressed the view that Mr Adhami's ability to find work on the open labour market "has been compromised by the injury", although he did express the opinion in his 19/12/12 report that Mr Adhami ought be capable of a return to "traffic control work". 93. MAS Assessor Dr Nigel Marsh was of the view that the motor accident injuries, particularly the low back injury, would have an adverse effect on Mr Adhami's ability to carry out heavier physical activity. 94. Whilst Dr Ginsberg did not consider the motor accident related injuries as impacting on Mr Adhami's employability he did suggest that bench work or work as a traffic controller would be suitable to accommodate his restrictions (restrictions which he did not relate to the accident). 95. Dr Rosenthal addressed the work capacity issue expressing the view that he did not believe Mr Adhami would suffer any impairment to his future earning capacity. 96. Having regard to Mr Adhami's limited education, language skills, limited experience in unskilled occupations and his present family circumstances giving rise to the potential for economic loss deferred for some years yet, I am satisfied that there is presently an impairment of his earning capacity referrable to the motor accident related injuries but that such impairment will not be productive of loss of income for at least 10 years. 97. I am further satisfied that it would be reasonable to assess that buffer as a present day lump sum of $150,000.00 as claimed and inclusive of the loss of future employer sponsored superannuation contributions. 98. Accordingly I assess the Claimant's entitlement to future economic loss (claimed as a buffer) at $150,000.00."

Grounds of review

1. The insurer relies on four grounds of review. The essence of the insurer's grounds of appeal is that the assessor failed to properly apply s 126 of the Act in awarding an amount for future economic loss by failing to state his assumptions for awarding this amount and by failing to give reasons as to the assumptions he relied upon. The insurer says that in so doing, the assessor's decision contains an error of law on the face of the record and jurisdictional error in so far as he failed to provide reasons for his decision and failed to exercise his jurisdiction. Alternatively, the insurer submits that the assessor constructively failed to exercise his statutory power in making the decision. As a result of these errors, the insurer says that the decision is invalid and should be set aside. (Grounds (a) and (b)). It may not be necessary to address Grounds (c) and (d) if Grounds (a) and (b) are correct.
2. The grounds of review are: "(a) The claims assessor failed to perform his statutory duty pursuant to s 126 of the Act in that he failed to make any findings as to the first defendant's prognosis, and how that prognosis related to the first defendant's future earning capacity. (b) The claims assessor failed to provide adequate reasons for the decision, in that the statement of reasons does not reveal an actual path of reasoning and does not reveal how the claims assessor formed his conclusion. In particular, the claims assessor failed to provide any or any adequate reasons for the following conclusions: 1. Why the claimant would experience economic loss after a period of "at least" 10 years from the date of the decision. 2. Whether the buffer of $150,000 included a discount for deferral of "at least 10 years", being the period of time that the claims assessor found would elapse before the claimant's impairment would be productive of any loss of income. (c) In forming his conclusion regarding future economic loss, the claims assessor stated that he was "not persuaded by" the opinions of medical experts relied upon by the plaintiff, in relation to their opinion that the first defendant had not been left with any permanent impairment (at [85]-[86] of the decision). In doing so the claims assessor applied the wrong test and asked himself the wrong question in that: 1. The evidentiary onus was on the first defendant to establish a loss of income related to the accident, not on the plaintiff to disprove such a loss, and 2. The claims assessor incorrectly equated permanent impairment with earning capacity. (d) The decision was vitiated by legal unreasonableness in that: 1. no sensible claims assessor acting with due appreciation of his responsibilities would have so decided; 2. the claims assessor failed to give adequate weight to relevant factors of great importance; 3. the claims assessor gave excessive weight to irrelevant factors of no importance; 4. the claims assessor reasoned illogically or irrationally; 5. the decision is a disproportionate response by reference to the scope of his power; and/or 6. the decision lacks evident and intelligible justification."
3. It is common ground that an assessor is required to comply with s 126 of the Act when performing his statutory function of awarding damages for future economic loss.

Section 126 of the Motor Accidents Compensation Act 1999 (NSW)

1. Section 126 of the Act falls within "Part 5.3 Damages for non-economic loss". It reads: "126 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."
2. The parties referred to Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 83 NSWLR 302 ("Kerr"); Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281 ("Sprod"); and Allianz Aust Insurance Ltd v Habib & Ors [2015] NSWSC 1719 ("Habib").
3. In NRMA Insurance Limited v Buckley [2016] NSWSC 475 ("Buckley").a recent case on the topic of s 126 of the Act, Rothman J stated (at [39]-[40]): "The awarding of damages for "future economic loss" is a misnomer. A court, and, in this case, the Claims Assessor, does not calculate the income that will be earned for the remainder of the first defendant's working life and then capitalise those payments. The head of damage is more accurately described (and has been so described in some of the grounds of alleged error) as the loss of future earning capacity or the loss of earning capacity. Unlike the calculation of past losses, this head of damage assesses the value of the diminution of the claimant's earning capacity resulting from the injury. This head of damage is, to use an analogy from other areas of law, an assessment of capital loss not the calculation of income lost."
4. In Kerr, McColl JA made the following observations in respect of the power given by s 126 to award an amount of damages for future economic loss by way of a buffer: "6 The circumstances in which damages by way of a buffer are appropriate was summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; (2008) 172 IR 453 (at [84]) per McColl JA (Mason P and Beazley JA agreeing), a case in which a challenge to a buffer of $120,000 failed, as follows: "84 As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K'Mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that 'a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future', but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present." 7 The award of a buffer for future economic loss in circumstances "where earning capacity has unquestionably been reduced but its extent is difficult to assess" reflects the proposition that, to paraphrase, the want of precise evidence "does not necessarily result in non-recovery of damages": State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 (at [87]) per Heydon JA. It must also be taken into account, when considering the appellant's complaint about the adequacy of the claims assessor's reasons for quantifying the buffer, that the task of assessing damages for lost earning capacity is "necessarily impressionistic"; Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 388 (at [49]) per Mason P (Spigelman CJ and Priestley JA agreeing)."
5. In Kerr, Basten JA (McColl and Macfarlan JJA agreeing) observed in relation to the operation of s 126 (at [23]-[24]): "… Sub-section (1) requires a claimant to satisfy the assessor as to certain matters. By implication, it would be erroneous for an assessor to make an "award" in respect of future economic loss without being satisfied as to relevant factors on which the award is to be based. Secondly, those factors referred to as "assumptions" must be stated: s 126(3). That means they must be identified in the reasons given by the assessor for the award. … Section 126 does not purport to codify legal principles relevant to assessment of loss of earning capacity. It does not identify factors to be taken into account in making an assessment. Nor does it appear to depart from or vary the general law principle that the compensable loss is not a loss of income but the loss of capacity to earn income which "is or may be productive of financial loss": Graham v Baker [1961] HCA 48; 106 CLR 340 at 347; State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [71] (Heydon JA); State of New South Wales (NSW Police) v Nominal Defendant [2009] NSWCA 225 at [86] (Beazley JA; Allsop P and Macfarlan JA agreeing). Income earned prior to the accident may well be the best evidential basis to assess the earning capacity of the claimant, but for the injury, subject to adjustment for the passage of time since that income was last earned. Income earned between the accident and the trial may be (but often is not) a good indicator of current capacity. The latter may be capable of extrapolation into the future, but it will usually be necessary to consider whether, and to what extent, both pre-accident capacity and post-accident capacity might have been and might be expected to vary in the future."
6. In Kerr, Basten JA continued (at [31]): "As the applicant correctly stated, a combination of sub-ss (1) and (3) required the assessor to identify and state the assumptions about future earning capacity and other events on which the award was based. In Livaja [[2011] NSWCA 121], the Court noted at [41]: "The assumptions or events upon which a baseline may commonly be calculated include: (a) identification of the skills, training and experience of the plaintiff, as at the date of the accident; (b) the work he or she was undertaking immediately prior to the accident; (c) the likelihood that he or she would have continued in such employment, but for the accident; (d) the possibility that he or she might have obtained promotion or other benefits, but for the accident; (e) the age to which he or she was likely to have worked in that employment, and (f) the possibility that the employment would not have been continuous.""
7. In Kerr at [53] Basten JA stated: "… The limitations of the obligation to give reasons must be kept firmly in mind by a judicial officer accustomed to a higher obligation."
8. Finally, in Kerr, Macfarlan JA (at [69]) considered that the amount of buffer the assessor in that case arrived at, namely $200,000, more likely represented the assessor's "intuitive assessment of the claimant's possible future loss" and that it could not be inferred that the assessor undertook a process of calculation in order to arrive at the amount. His Honour considered that in such circumstances "there was nothing more that the assessor was required to say in his reasons for decision."
9. In Sprod, Barrett JA stated (at [26], [27], [30] and [42]): "26 The underlying principle is that the plaintiff should have a sum by way of damages for the difference between earning capacity as it would have been in the absence of the injury and the earning capacity as it is following the injury. Both elements involve uncertainty and conjecture and, therefore, require that assumptions be made, albeit assumptions shaped by the available evidence. The assumptions cover, among other things, remaining expectancy of working life, the impact of the injury on that expectation, the extent to which the ability to function will be curtailed and the earnings that work according to the reduced ability will produce, together with assumptions regarding discounted present value and investment returns and as to vicissitudes or adverse contingencies. Because of s 126(1), an assessor has a duty to form an opinion that the assumptions to be applied in relation to such matters going to future earning capacity "accord with the claimant's most likely future circumstances but for the injury". 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. … 30 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… 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 twenty 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". … 42 Second, it is important to emphasise that nothing I have said is intended to suggest that assessors must prepare elaborate statements of reasons and explanations of assumptions. They must, of course, work on the basis of facts but an important element of the statutory scheme is the deployment of the expertise and experience of assessors as specialists. They are not meant to act as if they were judges. Their task is only to assess the amount that "a court would be likely to award" as damages. The function is no more than to estimate and to predict likelihood. There is a clear place for informed intuition and speculation. 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. It does not seek to define aspects that may or may not properly be made the subject of assumptions about future earning capacity. Its aim is merely to ensure that an insight can be obtained into the content of the assumptions and the reasons for their adoption."
10. Finally, in Habib, Beech-Jones J concluded that the assessor had failed to set out necessary assumptions that underpinned his award. So far as the requirement to state assumptions under s 126 is concerned, his Honour stated (at [37] and [38]): "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. … 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."

Submissions

1. In essence, the insurer's complaint concerns what the assessor did not say, as opposed to what he did. Senior counsel for the insurer submitted that the assessor did not make any findings as to the defendant's most likely future circumstances but for the accident.
2. Senior counsel for the insurer argued that it was incumbent on the assessor to state his assumptions regarding the defendant's most likely future circumstances were it not for the accident, including: 1. When the defendant was likely to have returned to the workforce, had the accident not occurred; 2. Why the defendant would be likely to be able to return to the workforce, in circumstances where he was currently required to be a carer for his wife; and 3. In what capacity the defendant would have been able to return to the workforce.
3. Senior counsel for the insurer also submitted that in the present case, the assessor made no findings about what the defendant's likely circumstances would have been, and instead, he proceeded to deal only with the issue of what his disability would be now as a result of the accident.
4. On the topic of the sufficiency of the assessor's reasons, senior counsel for the insurer submitted that the assessor failed to give lawful reasons to explain his award for future economic loss, at least in the following respects: 1. He failed to give any reasons as to why the defendant would have returned to work at all, were it not for the accident; 2. He failed to give adequate reasons as to why the defendant's future economic loss would be deferred for at least 10 years (as opposed to some other period of time); 3. In using the phrase "at least 10 years" in respect of the deferral for economic loss, the assessor failed to explain whether, in making his calculation, he was allowing a deferral for 10 years or in fact some longer period of time; and 4. Whether the buffer of $150,000 that was ultimately awarded included any deferral and if so whether it was for 10 years or some other period of time.
5. Counsel for the defendant submitted that the limitations of the obligation to give reasons must be kept firmly in mind by a judicial officer accustomed to a higher obligation (Kerr [53]) and that a proper reading of the assessor's reasons reveal that the assessor has properly complied with the statutory requirements set out in s 126. Counsel for the first defendant also referred to the well known statements set out in Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; 185 CLR 259, at 271-2 (Brennan CJ, Toohey, McHugh and Gummow JJ) ("Wu Shan"): "It was said that a court should not be "concerned with looseness in the language … nor with unhappy phrasing" of the reasons of an administrative decision-maker. The Court [in Collector of Customs v Pozzolanic (1993) 43 FCR 280] continued: "The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error." These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed. In the present context, any court reviewing a decision upon refugee status must beware of turning a review of the reasons of the decision-maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court." (Most citations omitted).
6. And in Wu Shan, where Kirby J observed (at 291): "The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law (Collector of Customs v Pozzolanic (1993) 43 FCR 280 at 286-287)."
7. The defendant submitted that the insurer is seeking to have this Court scrutinise the assessor's decision in a way contrary to these passages from Kerr and Wu Shan. I accept that the assessor's decision must be read fairly and as a whole. Reading the decision as a whole, counsel for the defendant submitted that the assessor made the following findings in relation to the defendant's "most likely future circumstances but for the injury": 1. The defendant was a witness of truth (D [21]); 2. The assessor accepted the defendant's evidence relating to his future intention regarding work and that, although the defendant had stopped working and was caring for his wife and children, his children would be able to assist in caring for his wife when they were old enough (D [81]); 3. Based on these findings, the defendant's most likely future circumstances but for injury was a return to the work force at some stage in the future when the defendant's children were old enough to assist in caring for his wife if he was to pursue employment (D [82]); and 4. The defendant's return to work would likely be delayed for at least another 10 years (D [83]).
8. In respect of the "assumptions" about future earning capacity upon which the award was based, counsel for the defendant submitted that these were properly stated by the assessor. These assumptions included: 1. The defendant's employment history was generally in labour related areas or work involving physical exertion, including as a traffic controller, general labourer, cement renderer and form worker, before he became his wife's carer in 2011; 2. As a result of the motor accident, the defendant sustained ligamentous injury to the cervical spine, ligamentous injury to the lumbar spine, injuries to both shoulders (which, the assessor noted, had healed), and symptoms of anxiety, panic and depression (D [24]-[25]); 3. The defendant continued to have intermittent neck and back pain which was triggered by activity involving lifting, carrying, bending and prolonged sitting or standing (D [35]); 4. Acceptance of medical evidence to the effect that the claimant's ability to find work on the open labour market had been compromised (D [92]) and would have an adverse effect on his ability to carry out heavy physical activity (D [93]); and 5. A rejection of the medical opinions that did not support a restriction in employment capacity as the medical examiners did not believe that the defendant had been left with any permanent impairment related to the motor accident.
9. Senior counsel for the insurer disputes that, with the exception of one, they are "assumptions".
10. Finally, counsel for the defendant contended that, by reason of the combination of the above matters, the assessor determined that the defendant had a reduction of earning capacity productive of financial loss (D [96]) and therefore a proper reading of the assessor's reasons reveals that the appropriate matters identified in s 126(1) of the Act have been stated.

Conclusion

1. In view of the imponderables and uncertainty as to the defendant's "likely future circumstances but for the injury" the assessor determined that any allowance for future economic loss should be assessed as a buffer. (D [89]). There is no complaint by either party about that approach. The defendant claimed a buffer of $150,000 whereas the insurer's position was that the defendant's future economic loss should be assessed at nil.
2. The assessor recorded that the defendant placed reliance on an analysis of average weekly earnings of full time employed males either in the construction industry ($1,755.70 gross per week), or as, the average for all industries ($1,681.20 gross per week). (D [91]). At the hearing of this judicial review, counsel for the defendant handed up some calculations made based on the 5% multiplier. The 5% multiplier for 22 years (agreed 32 years less the found 10 year delay) is 703.8 and the deferred multiplier for 10 years is 0.614. There were two calculations made. The first at $1,000 net per week x 703.8 x 0.614 - 15% equates to $367,313 or the second at $500 net per week equates to $183,657. Neither of these calculations reflect the sum that the defendant claimed as a buffer at the assessment.
3. While the assessor does not use the word "assumption" or "assumptions" when considering the award for future economic loss, a fair reading of his reasons include the making of the following assumptions:

• The defendant has limited education and limited vocational skills. (D [75]).
• He has a limited grasp of the English language. (D [76]).
• As a 35 year old he has a working life expectancy in the order of 32 years. (D [77]).
• For the last four years he has been out of the workforce caring for his wife and three young children. (D [78]).
• He has been in receipt of a carer's pension from Centrelink since 2011 due to his wife's medical condition which involves regular and severe migraine attacks from which she is often incapacitated. (D [79]).
• That any allowance for future economic loss needs to take account of the fact that such a loss would be deferred for some years and that the youngest of the defendant's children, the twins, were four years of age and the defendant's return to the workforce would likely be delayed for at least another 10 years. (D [79]).
• The defendant's future loss of earnings would be inclusive of future employer sponsored superannuation contributions. (D [97]).

1. Earlier in his decision, the assessor stated that the defendant was a witness of truth. From the material available to him the assessor was satisfied that the defendant suffered injuries in the motor vehicle accident, a ligamentous injury to the cervical spine, a ligamentous injury to the lumbar spine and injuries to both shoulders. At the assessment, the defendant acknowledged that his shoulder conditions had completely recovered. As a consequence of these injuries the defendant has also developed symptoms of anxiety, panic and depression. (D [24]-[26]).
2. The assessor referred to various doctors' views and made an assumption that he was not persuaded by the opinion suggesting the defendant had not been left with any permanent impairment related to the accident. (D [40]-[57]; [84]-[86]).
3. At (D [96]) the assessor stated: "Having regard to Mr Adhami's limited education, language skills, limited experience in unskilled occupations and his present family circumstances giving rise to the potential for economic loss deferred for some years yet, I am satisfied that there is presently an impairment of his earning capacity referrable to the motor accident related injuries but such impairment will not be productive of loss of income for at least 10 years."
4. Here the assessor has made two assumptions, the first is that there is presently an impairment of the defendant's earning capacity referrable to the motor accident related injuries and the second is that such impairment will not be productive of loss of income for at least 10 years. That means the defendant had less than 22 years of working life left, although this was not stated as an assumption.
5. The assessor at (D [97] concluded: "I am further satisfied that it would be reasonable to assess that buffer as a present day lump sum of $150,000 as claimed and inclusive of the loss of future employer sponsored superannuation contributions."
6. Section 126(3) of the Act provides that the assessor is required to state the assumptions on which the award was based. Those assumptions must be assumptions as identified in s 126(1) of the Act, that is, the court must be satisfied 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." In a true "buffer" case the obligation imposed by s 126(3) upon the assessor may be discharged by more generalised statements.
7. The assessor made an assumption about the past earning capacity that the defendant had limited experience in unskilled occupations. The assessor also made assumptions as to the injuries the defendant suffered attributable to the motor accident and his present family circumstances. The only assumptions that the assessor made about the defendant's future earning capacity is that his permanent impairment of earning capacity would not be productive of loss of income for at least 10 years and that the sum of $150,000 was inclusive of the loss of future employer sponsored superannuation contributions. The assessor did not make any further assumptions about future earning capacity or other events on which the award is based that accord with the defendant's "most likely future circumstances but for the injury".

The Court declares that: (1) The decision of the claims assessor of the State Insurance Regulatory Authority of New South Wales in matter number 2015/12/0946 made on 7 October 2015 is vitiated by jurisdictional error.

The Court makes an order: (2) In the nature of certiorari removing into the Court the decision of the claims assessor of the State Insurance Regulatory Authority of New South Wales in matter number 2015/12/0946 made on 7 October 2015 and quashing that decision.

The Court further orders that: (3) Matter number 2015/12/0946 is remitted to the State Insurance Regulatory Authority of New South Wales to be determined in accordance with law. (4) The first defendant is to pay the plaintiff's costs on an ordinary basis as agreed or assessed.

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: 17 August 2016