IAG Limited Trading as NRMA Insurance v Ozdemir & Ors

The Background

1. The injury the subject of the impugned assessment occurred on 2 March 2012 at Auburn. The first defendant was stationary in his car at traffic lights on Chisolm Road at the intersection with Mona Street, waiting for a green light. Another vehicle, insured by the plaintiff, drove through the intersection along Mona Street, and attempted to make a right hand turn into Chisolm Road. The driver of the vehicle lost control in the rainy conditions, and the insured vehicle collided with that driven by the first defendant.
2. There was conflicting evidence as to the speed at which the insured vehicle was driving, being either at "high speed" (Mr Ozdemir's description), at about 40 kilometres per hour (Westmead Hospital patient admission notes relating to Mr Ozdemir), or at 15 kilometres per hour (the police report concerning the crash).
3. The crash impact was with the front of the first defendant's car, extending along the driver's side of the car as far as the driver's door mirror.
4. The first defendant claimed to be in good health at the time of the crash, and employed full time as a fork lift driver.
5. In a statement made almost two years after the crash, for the purpose of his claim for personal injuries damages, the first defendant said that he was unable to get out of his car because of serious pain to his neck. Upon the attendance of ambulance personnel, he was fitted with a neck brace and removed from the car. He was taken to hospital and released that same day without having been admitted. He was given a script for analgesia.
6. Although the evidence before me does not establish when this occurred, at some stage following the crash the first defendant filed a claim for damages for personal injury pursuant to the Act. He claimed to have suffered injuries to his neck, left shoulder, upper back, and thoracic spine, which aggravated pre-existing injuries.
7. In 2002 the first defendant was involved in a motor vehicle crash and sustained lower back and neck injuries that had been the subject of an earlier claim for personal injuries damages. An award of damages was paid to him for those injuries, also assessed under the statutory scheme.
8. The first defendant had returned to work after the 2002 crash but suffered ongoing difficulties and was off work from time to time as a result. The nature and conditions of his employment also contributed to his shoulder and neck problems and a workers compensation claim was pursued by the first defendant referrable to a workplace injury occasioned on 9 October 2009. Mr Ozdemir required shoulder surgery in 2010.
9. The first defendant was able to return to work full-time only a little over four months before the crash in March 2012.
10. He claimed that the injuries received in March 2012 aggravated the earlier injuries, and caused fresh damage to the first defendant's left shoulder. He suffered limitation in the use of his neck and left upper arm. These difficulties led to the first defendant's dismissal from his employment as a fork lift driver, and he has not been employed since.
11. His claim was for loss of income and injury to his capacity to work, past and future out of pocket expenses, and past and future domestic assistance. Mr Ozdemir's injuries were not such as to reach the statutory level whereby he could claim non-economic loss.
12. The plaintiff did not dispute liability, but quantum was in issue. The plaintiff also took issue with the credit of the first defendant.
13. The first defendant's claim was assessed in the Medical Assessment Service ("MAS") of the State Insurance Regulatory Authority ("the Authority"). An assessment conference hearing before the second defendant took place over three hours on 27 February 2015. There was a second assessment conference conducted by teleconference over half an hour on 8 April 2015, and a third assessment conference on 19 May 2015, also conducted by teleconference, over an unstated period of time.
14. The plaintiff's position during the assessment process was that the neck injuries that prevented Mr Ozdemir from returning to employment were attributable, not to the 2012 crash, but to a pre-existing spondylosis. Mr Ozdemir attributed the injury leading to his loss of work to the 2012 crash.
15. The second defendant assessed Mr Ozdemir's claim pursuant to s 94 of the Act which provides: "94 Assessment of claims: (1) The claims assessor is, in respect of a claim referred to the assessor for the assessment, to make an assessment of: (a) the issue of liability for the claim (unless the insurer has accepted liability), and (b) the amount of damages for that liability (being the amount of damages that a court would be likely to award). (2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate. (3) The assessment is to specify an amount of damages. (4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment. (5) The claims assessor is to attach a brief statement to the certificate, setting out the assessor's reasons for the assessment. (6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor, a replacement certificate or statement to correct the error."
16. On 6 October 2015 the second defendant issued a certificate in accordance with s 94(4) of the Act, in which the amount of the first defendant's damages was assessed as $882,131.35. Costs were assessed at $55,583.28. A thirty-four page statement of reasons accompanied the certificate.

The First Error

1. In what is described as "the first error", the plaintiff contends that the assessor failed to deal with and determine significant aspects of its case dealing with Mr Ozdemir's credit, the evidence of injury, and the extent of damages, as argued before the assessor in three sets of written submissions (dated 7 March 2015, 1 May 2015, and 6 June 2016).

The Issue of the First Defendant's Credit

1. In its written submissions the plaintiff addressed the issue of the first defendant's credit, submitting that Mr Ozdemir had consistently sought to minimise his pre-crash disability, and exaggerate that which was attributable to the 2012 crash. It was argued that his evidence should only be accepted where supported by other credible evidence.
2. Specifically, at [10] - [12] of the submissions of 7 March 2015, the NRMA argued that the first defendant had made and then sought to withdraw, or lessen the effect of, a concession that his neck had returned to normal by 2014.
3. At [17] of the submissions of 1 May 2015 (filed after the NRMA had obtained access to the claim file relating to the 2002 crash), the plaintiff drew attention to a number of asserted inconsistencies in the evidence and accounts of the first defendant in relation to his injuries.
4. The asserted inconsistencies were between the first defendant's accounts of the injury occasioned to him in 2002 and the ongoing debilitating effects of the injuries at the time of his claim for damages relevant to that crash, and his insistence in relation to his claim for damages relevant to the 2012 crash that the earlier injuries had resolved, such that all ongoing disability was attributable to the later crash.
5. Finally, the NRMA pointed to the evidence that emerged only in cross-examination of the first defendant, to the effect that he was considering going into the kebab business, as markedly inconsistent with his claims to be precluded from undertaking most forms of employment because of the index injuries.
6. The assessor's reasons comprise 288 paragraphs. The assessment is structured by reference to sub-headings dealing with specific aspects of the disputed claim. There are two sections in which the issue of the first defendant's credit is considered.
7. Under a heading "Prior Injuries," the assessor noted "Mr Ozdemir is no stranger to injury" (at [14] of the assessment report), and went on to refer to information concerning the earlier claim, including that the first defendant had received an award of damages following "soft tissue injuries to his lower back, neck and abdomen, and an adjustment disorder with anxiety" (at [17]). Reference was made to the conclusion of the assessor who assessed the 2002 claim that the first defendant was "impressive" (at [20]) and "truthful, open and honest" (at [21]).
8. At [26] - [27], the assessor noted: "26. By 2007 Mr Ozdemir had returned to full duties as a forklift driver at Amcor acknowledging that he had problems with his back from time to time whilst his neck problems eventually settled down. 27. He told me during the assessment conference and I accept his testimony:- "The pain in my neck went away and I went back to work.""
9. This would appear to address, at least to some extent, the inconsistencies the plaintiff contended existed between the first defendant's claim (as late as 2006) for ongoing serious disability when prosecuting his claim for damages for the 2002 crash.
10. The assessor went on to refer to further injuries sustained by the first defendant at work in 2006, and again in 2009. The assessor quoted, and appears to have accepted (at [34]), the first defendant's evidence that: "After I had returned to work on 27/10/11 my back wasn't giving me any problems, my left shoulder was fine as was my neck, I was 100% fit and that would have continued to have been the case but for the accident of 02/03/12."
11. The assessor concluded that, whilst the insurer had argued that the first defendant had attempted to play down his prior neck symptoms, "I am not persuaded by that submission" (at [36]).
12. The assessor referred to the first defendant's evidence (of which no transcript was taken out) and statements concerning the earlier injuries, and clearly accepted the evidence, noting that he was satisfied that the source of the neck pain earlier complained of by the first defendant had stabilised by October 2011 such that he was able to return to work without restriction (at [44]).
13. The plaintiff's submission that the first defendant had understated his earlier injuries relevant to his 2012 claim was specifically referred to at [45]. The assessor considered the evidence to which the NRMA had referred him at [46] - [62], but expressed himself as satisfied that the first defendant's neck pain was not in fact a significant feature of his post 2010 symptomology.
14. The next relevant section of the assessment report commences at [63] under the heading "The Claimant and the Credit Issue", concluding at [90] as follows: "90. I reject the insurer's challenge to Mr Ozdemir's credit."
15. The second defendant referred to the first defendant's history since arriving in Australia, and to the positive observations of him by the assessor of the 2002 claim. He went on (at [73]) to set out his own observations of the first defendant as a witness, to the effect that: "[…] He presented as a straightforward witness who did not seek to embellish or otherwise exaggerate his claim. He impressed as an honest and reliable witness […]"
16. The second defendant referred specifically to each of the written submissions filed by the plaintiff, and the "attack on Mr Ozdemir's credit" contained therein, but concluded that he did not accept the contention that the first defendant had sought to minimise his earlier injuries, or that the inconsistencies argued in the various accounts of those injuries were any more than failures of recollection of events of some age (being between 2002 and 2006).
17. The assessor quoted from the plaintiff's submissions of 7 March 2015, in which criticism of Mr Ozdemir as a witness at the assessment hearing was made, but concluded (at [79]) that: "79. All of this stands in stark contrast to my assessment of the Claimant at the assessment conference."
18. He went on to set out his own observations and impressions of the first defendant, basing his rejection of the NRMA's submissions upon them (at [80] - [90]).
19. Later, at [121] - [127] the second defendant referred to medical evidence from Dr van Gelder to the effect that confusion could arise with overlapping symptoms in cases of neck and shoulder injury.
20. Having considered those matters set out by the second defendant in his reasons annexed to the certificate, and bearing in mind that s 94(5) of the Act requires the claims assessor to attach "a brief statement" setting out the reasons for the assessment, I am not persuaded that the assessor has failed to address significant aspects of the plaintiff's case, as the plaintiff contends.
21. The plaintiff's complaint to the assessor was that the first defendant had minimised his post-2002 disabilities, exaggerated the post-2012 disabilities, and was a witness whose evidence should not be accepted absent corroboration. The assessor was cognisant of that complaint, and addressed it, directly referring to the complaint, the matters advanced in support of it, and the basis of his rejection of it.
22. In a "brief" statement of reasons, more could not be required.

The Medical Evidence of Injury

1. The plaintiff submits that the assessor failed to deal with, or did not adequately deal with, its case as to the medical evidence of a pre-existing age related cervical spondylosis that the first defendant suffered, and the impact of that condition on the assessment of damages.
2. The plaintiff addressed these matters in its written submissions to the assessor as follows: 1. At [28] - [30] and [34] - [35] of the submissions dated 7 March 2015 the plaintiff noted the medical evidence (of Dr van Gelder) that the plaintiff had a pre-existing condition, and there was a question as to whether the symptoms attributed to the crash would have developed in any event. 2. At [32] of the same submissions the plaintiff contended that the evidence of Dr Harvey-Sutton should be preferred on this issue, as she had a number of advantages in forming her opinion, such as having a detailed history, and reviewing the observations and opinions of other experts. 3. At [38] of the March 2015 submissions the plaintiff pointed to deficiencies in the examination conducted by Dr Herald such that his opinion should be rejected. 4. In submissions of 1 May 2015, the plaintiff criticised aspects of the medical evidence relied upon by Mr Ozdemir, contending that the opinion of Dr Habib was of limited utility. It was submitted that the first defendant's on-going symptoms were best explained by reference to degenerative processes that had no link to the crash injuries.
3. In his reasons, the assessor concluded (at [91]) that, referable to the 2012 crash, the first defendant had sustained: "- Whiplash associated disorder of the cervical spine (severe aggravation of cervical spondylosis); - Grade 2-3 left shoulder aggravation of previous rotator cuff repair."
4. He continued with an account of the history of observations of the first defendant by Dr Herald, together with details of an MRI scan which showed compromise to the first defendant's condition. It was noted that Dr Herald began treating the first defendant less than three weeks after the crash.
5. Reference to the evidence of Dr Manohar and Dr Dowla followed.
6. The assessor considered medical evidence relevant to the first defendant's condition prior to the 2012 crash, and after it, and noted the differences in MRI scans and the conclusions reached by doctors as to those differences, which suggested musculoskeletal pain rather than cervical radiculopathy, a feature the assessor considered to be consistent with the first defendant's evidence as to his condition and medical progress following the 2002 crash and the workplace injuries ([110]).
7. The assessor considered the evidence of Drs Herald and van Gelder, placing particular reliance upon the opinion of Dr van Gelder as to the confusion that could arise with overlapping symptoms of neck pain and disability (at [112] - [126]). It is apparent that the assessor regarded Dr van Gelder's evidence as compelling, and he accepted it without reservation. The doctor's opinion was entirely favourable to the first defendant and his assertions as to significant on-going disability attributable to the 2012 crash.
8. His conclusions were pessimistic as to the first defendant's prospects of recovery, with that opinion extracted at [119] of the assessor's reasons: "He has a complex cervical condition for which treatment is available but reversing his cervical spondylosis is not possible. He will continue to have symptoms from cervical spondylosis at other levels in his cervical spine and there will be residual symptoms from the C7/T1 level. For these reasons, the likelihood of full recovery is small. I would expect a partial improvement in his symptoms but I am pessimistic about a functional recovery."
9. Dr van Gelder concluded that the worsening of the first defendant's symptoms was attributable to the 2012 crash, in that a substantial aggravation of the pre-existing age related disc degenerative disease reported by the first defendant coincided with the crash. This was an opinion the assessor accepted.
10. At [135] of the assessor's reasons, reference was made to the medical evidence relied upon by the plaintiff, that of Dr Casikar and Dr Harvey-Sutton.
11. Dr Casikar had concluded that the crash injury had no impact on the first defendant's pre-existing cervical spondylosis, it being a constitutional problem unrelated to the 2012 crash. He regarded a pre-existing shoulder injury as in fact responsible for much of the symptomatology reported by Mr Ozdemir.
12. The assessor afforded little weight to Dr Casikar's opinion, noting (at [137]) that the doctor's examination of the first defendant was compromised because of the absence of an official interpreter, and his opinion undermined by a prognosis of recovery which had proved illusory. Having set out Dr Casikar's opinion, the assessor concluded (at [142]): "142. I am satisfied that the consensus of the medical opinion upon which Mr Ozdemir relies in fact persuades me otherwise."
13. Consideration of the evidence and opinion of Dr Harvey-Sutton commenced at [149] of the reasons.
14. Dr Harvey-Sutton was extensively briefed by the NRMA for the purposes of her examination of the first defendant and saw him with the assistance of an accredited interpreter. Her report of 20 February 2014 contains a thorough summary of medical investigations following the 2002 crash, and the 2012 crash, and a statement of her own examination of him. Dr Harvey-Sutton reached the same conclusions as did Dr Casikar.
15. As with Dr Casikar, the assessor gave little weight to the opinion of Dr Harvey-Sutton, referring to her seventeen page report as "internally inconsistent" (at [154]), and dismissing it in a few paragraphs. The assessor was critical of what he regarded as inconsistencies between Dr Harvey-Sutton's and that of Dr Casikar, in circumstances where the former had noted her concurrence with the latter.
16. The assessor did not consider the report of Dr Habib, but that would appear to be because the first defendant chose not to rely upon it. In those circumstances, the failure to address it or assess the weight to be given to it is readily explained. The issue that Dr Habib's report went to, at least in part, of the relevance of the pre-existing degenerative condition was, however, considered by the assessor.
17. The plaintiff's complaint as to the medical evidence is that the assessor did not deal with, or adequately deal with, the issue of the pre-existing degenerative condition, or with specific submissions made by the plaintiff to the assessor on that topic.
18. The assessor's reasons contain an account of why he concluded as he did, albeit a brief account given the significance of the evidence, sufficient to expose the path of reasoning followed.
19. The issue between the plaintiff and the first defendant was the extent to which his pre-existing injuries (from the 2002 crash, and work-related injury) had continued to cause disability, and the extent, if any, of aggravation to those injuries caused by the 2012 crash. The insurer's position, supported by the evidence of Drs Casikar and Harvey-Sutton, was that none of the reported symptoms of the first defendant were referable to the index crash, instead being attributable to earlier incidents.
20. It is clear that the assessor fully understood the point of contention, and considered the plaintiff's submissions in this regard, but was simply not persuaded by them or by the medical evidence upon which they were based. Whilst others might have reached a conclusion different to that of the assessor, I cannot conclude that the assessor did not deal with the issue at all, or did so inadequately. He dealt with it, in the (relatively) brief fashion recognised by the statute, and reached a conclusion adverse to the plaintiff.
21. Ultimately, there was some adjustment to the assessed damages, because of the degenerative condition suffered by the first defendant. At [248] - [249] of the reasons, the assessor concluded: "248. At the same time account needs to be taken of his pre-existing cervical spondylosis and prior low back and left shoulder injuries which would have had the potential to impact on his earning capacity in any event, particularly in light of an intended working lifetime to 70 years of age. 249. I consider that an adjustment to the usual discount for vicissitudes is warranted."

The Issue of Damages

1. The plaintiff contends that, when assessing the damages to be awarded to the first defendant, the assessor failed to deal with its submissions as to: 1. the question of on-going chiropractic treatment ([41] - [42] of the submissions of 7 March 2015); and 2. the first defendant's need for domestic assistance ([36] of the submissions of 1 May 2015).
2. The plaintiff's submissions to the assessor raised a number of features relevant to an assessment of loss. It was submitted that there was no medical evidence supportive of a conclusion that on-going chiropractic treatment was indicated, with some medical evidence (such as that of Dr Harvey-Sutton) suggesting it could be contra-indicated.
3. It was additionally submitted that the claim for future domestic assistance was untenable on the evidence.
4. The assessor dealt with the issue of damages from [163] under a specific sub-heading "Damages". That section followed the assessor's conclusion at [162] that: "162. I am satisfied that the injury to Mr Ozdemir's cervical spine suffered in the motor vehicle accident of 02/03/12 has left him with permanent and disabling symptoms such as to impact adversely on his employment capacity and many of the activities of daily living."
5. The issue of chiropractic treatment was dealt with at [166] to [175]. Its brevity permits it to be extracted in full: "166. Chiropractic treatment carried out at the JB Healthcare and Therapy Network between 29/06/12 and 26/01/14 at a total cost of $9,427.94 is disputed. 167. I note that the medical evidence submitted on behalf of Mr Ozdemir is replete with references to severe, unmanageable and disabling pain. 168. Physiotherapy was providing limited benefit. 169. He could be offered no guarantee of success with proposed surgical intervention and indeed faced a 30% chance of failure (Dr van Gelder). 170. It is apparent that his regular attendances for chiropractic treatment over that 18 month or so period was of some assistance in dealing with what has been quite unremitting and disabling pain. 171. During the course of his oral testimony at assessment conference Mr Ozdemir informed me that Dr Khan referred him for the chiropractic treatment in June 2012 and that the treatment provided between 29/06/12 and 26/01/14 (as per the outstanding account) was specifically to his neck. 172. He informed me that the treatment provided him with relief with the result that he would "feel better" for some days. 173. I note at the same time that Mr Ozdemir had to be particularly careful with his medication in view of the fact that he only had one kidney. 174. I am therefore satisfied that the chiropractic treatment over the period claimed was reasonable and necessary in the circumstances of his injury. 175. I therefore propose to allow the disputed amount claimed."
6. As is apparent from the extract, the assessor was cognisant of the dispute as to the efficacy and desirability of chiropractic treatment. He referred to the severe pain the first defendant said he suffered, and noted the limited benefit of physiotherapy, surgery, and medication (given the first defendant has only a single kidney). The assessor noted the referral of the first defendant for such treatment by his doctor, and referred to the fact that Mr Ozdemir, a witness whose testimony he accepted, reported some relief from his symptoms following chiropractic treatment.
7. Whilst the assessor did not refer to the observations of Dr Harvey-Sutton, given his earlier consideration and dismissal of her opinion, arguably it was unnecessary to specifically address that portion of her evidence. There was similarly no specific reference to Dr Sheehan's view that chiropractic treatment was not supported, or to the absence of a report from Dr Bui.
8. In the interests of transparency it would ordinarily be preferable for such matters to have been specifically noted, but the failure to do so in circumstances where the dispute as to that aspect of the matter was discussed, and the issue itself was addressed, does not amount to error in my view.
9. Domestic assistance was dealt with in a section of the reasons headed "Past care and assistance," from [259].
10. The assessor noted that he accepted that the injuries to the first defendant sustained in the 2012 crash had impacted adversely on his daily life.
11. He referred to the first defendant's evidence that he had previously helped his wife around the house, albeit in a context where his wife undertook most domestic duties inside the house. The first defendant testified that he had formerly undertaken the care of lawns, gardens and garden fountains, but was unable to do that work following the crash. The assessor accepted that evidence.
12. The assessor similarly referred to evidence from the first defendant's wife to the effect that she was burdened with an additional two hours of domestic duties each day following the 2012 crash. Although the assessor accepted her evidence generally, he did not accept that such evidence was sufficiently detailed to permit an amount of additional labour to be properly quantified and, accordingly, declined to award any damages for past assistance.
13. The first defendant claimed in excess of $220,000 for future domestic assistance, but the assessor was not satisfied that such a sum was properly claimed. He specifically noted the relevance of the first defendant's degenerative condition and concluded that damages in the sum of $50,000 was an appropriate figure to recognise the first defendant's diminished capacity for domestic chores and his consequential need for some assistance.
14. In considering the issue, the assessor referred to and quoted from the plaintiff's submissions on the subject, and it is apparent that he had regard to them, although without accepting them.
15. It is important to bear in mind the statutory requirement set out at s 94(5) of the Act which requires the assessor to attach a brief statement of reasons for the assessment. What is required is further exposed by clause 18.4 of the Claims Assessment Guidelines ("the Guidelines") issued pursuant to s 69 of the Act by the State Insurance Regulatory Authority, 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."
16. Considering a similar obligation upon a medical assessment panel operating under the Victorian Accident Compensation Act 1985 the High Court said, in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480, at [65]: "The standard required of the written statement of reasons which s 68(2) of the Act obliges a Medical Panel to give for its opinion is that the statement must explain the actual process of reasoning by which the Medical Panel in fact formed its opinion and must do so in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law."
17. There is no obligation on an assessor to address in the statement of reasons every piece of evidence adduced or every argument advanced by the parties to the claim. Referring to Dranichnikov v Minister for Immigration and Multicultural Affairs [2003] HCA 26; 197 ALR 389; 77 ALJR 1088, and Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22; (2001) 206 CLR 57; 179 ALR 238, the Court of Appeal said, in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443, at [22]: "The second point is that neither Dranichnikov nor Miah went so far as to imply an obligation to consider every piece of evidence presented. Further, to refer to a report, but not to a particular passage in the report, may indicate an implicit preference for some other material which (in the absence of no evidence ground) must be accepted as existing to support a particular conclusion. Such a course cannot constitute a failure to take into account a relevant consideration nor a failure to respond to a substantial argument: Minister for Immigration and Citizenship v SZJSS (2010) 243 CLR 164; 273 ALR 122; 199 ALD 466; [2010] HCA 48 at [35]."
18. Here, as set out above, the assessor understood the principle contentions and areas of dispute between the parties to the claim, and addressed them. He set out the conclusions he reached, and his reasons for the conclusions. Although not every argument advanced by the insurer has been addressed, and not every aspect of the evidence was referred to, in a statement of "brief reasons" that expectation is unreasonable.
19. Pursuant to s 94 of the Act the assessor noted the concession as to liability, and assessed the amount of damages for that liability. He had regard to the information conveniently available to him, including his own observations of the first defendant in evidence, and he provided a statement of his reasons.
20. The statutory obligation was fulfilled.
21. I do not regard the "first error" as established.

The Second Error

1. The second error advanced by the plaintiff is an asserted failure to set out proper and lawful reasons as required by s 94(5) of the Act. Although the plaintiff also relies upon what is provided by clause 18.4 of the Guidelines (extracted above at [80]), the status of the Guidelines is somewhat unclear: Ali v AAI Limited [2016] NSWCA 110 per Leeming JA at [74]ff. They can at least be regarded as informing the exercise of the statutory function.
2. The failure to give reasons is asserted with respect to the credit of the first defendant, the rejection of the medical evidence of Drs Casikar and Harvey-Sutton, the adjustment for vicissitudes, and the assessment of the first defendant's residual earning capacity at $250 per week. All but the last complaint have been deal with when considering the "first error" contended for.
3. As to the assessment of the residual earning capacity, the assessor concluded at [254] of the reasons that the first defendant had some capacity to earn an income, in an amount of $250 net per week. This was the assessor's conclusion to his discussion of the evidence relating to earning capacity commencing at [215] under a sub-heading "Future loss of earnings (including loss of superannuation contributions)".
4. From [215] - [254] the assessor considered the evidence of the first defendant as to his work history and intentions to work until retirement, and the availability to him of employment but for his incapacity. He also referred to the medical evidence as to work capacity, including that from the experts for the plaintiff.
5. The assessor referred specifically to the contentions of the plaintiff at [231]: "231. The further written submissions on 07/03/15 adopted the same calculation again suggesting that it was effectively "allowed on a beneficial basis" and referred me to a range of matters which I ought take into account including the history of prior injuries; the concession by Mr Ozdemir that he has a residual earning capacity; that overtime was not a right but subject to availability; that his efforts in looking for work in recent times arguably amounted to a failure to mitigate; that had been on the verge of "going into an existing business venture with a family member (being a Kebab shop)"; the nature of his work was such that he would not have worked to age 70 as a forklift driver; and the underlying degenerative state of his neck would likely have caused an incapacity to work as a forklift driver in any event."
6. He concluded that the first defendant's residual earning capacity was "theoretical" (at [245]) and he was substantially incapacitated (at [246]). He referred at [247] and [248] to those features that had some impact on the assessment, being the "vicissitudes" requiring adjustment to the assessment.
7. The assessor also made specific note of the statutory obligation imposed upon him by s 126 of the Act, which provides: "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."
8. The assessor concluded (at [253]) that: "253. In light of Mr Ozdemir's history of repeatedly getting himself back to work following injury and his own view that he believes he is capable of some light duty job, I am persuaded to assess a residual earning capacity despite the difficulties he will now need to overcome having been thrown on the open labour market in his injured state."
9. Having considered the reasons, I am not persuaded that the assessor is guilty of any relevant failure in stating his reasons. When taken as a whole, the reasons are adequate to disclose the actual path of reasoning employed, and they sufficiently expose the consideration given to the relevant issues, including those issues in contention, each of which was addressed.
10. The statutory scheme under which the assessment of the first defendant's claim was conducted is one which is designed to encourage the early and efficient resolution of claims. Section 94(5) of the Act does not require any lengthy exposition of the reasons behind an assessment of an individual claim.

Conclusion

1. I do not conclude that the assessor failed to take into account a relevant consideration, in a context where a "relevant consideration" is drawn from the Act and not from the facts of the case: Rodger v De Gelder [2015] NSWCA 211; (2015) 71 MVR 514, at [85]. Nor can I conclude that the assessor has failed to respond to a substantial argument, since he identified the principle issues taken by the plaintiff with the first defendant's claim, and addressed them, albeit without specifically noting every piece of evidence referred to, or every argument advanced, in support of those issues.
2. The assessor permitted the plaintiff to adduce a considerable volume of material relevant to the earlier injuries after the first assessment conference, and then received and had regard to multiple sets of submissions from it. There can be no denial of procedural fairness in such circumstances.
3. I am not persuaded that the errors complained of have been established. The relief sought by the plaintiff cannot be granted.

Admissibility of Disputed Evidence

1. At the hearing of the matter the first defendant objected to the following evidence sought to be tendered in the plaintiff's case: 1. Dr Van Gelder's report dated 27 September 2013; 2. Dr Herald's report dated 15 April 2013; 3. Dr Dowla's report dated 28 January 2010; 4. Statement of Claimant dated 20 February 2014; 5. Dr Sheehan's report dated 10 October 2015; 6. Dr Harvey Sutton's report dated 20 February 2014; 7. MAS Assessment Certificate - Dr Machart dated 11 June 2014; 8. Dr Casikar's report dated 18 October 2012; 9. Dr Dowla's report dated 21 May 2013; 10. Dr Habib's report dated 15 September 2005; 11. Report of MAS Assessor Prior dated 8 June 2005; 12. Report of MAS Assessor Marsh dated 14 June 2005.
2. The documents were admitted provisionally with final admissibility to be determined during the course of this judgment.
3. Part of the plaintiff's case is that the assessor failed to properly consider aspects of the evidence of Drs Herald, Sheehan, Casikar and Harvey-Sutton, I have admitted those documents although, having regard to the nature of the errors asserted to have been made by the plaintiff, they are of limited relevance.
4. Dr Habib's report was ultimately not relied upon by the first defendant before the assessor and I therefore consider it irrelevant. The earlier MAS assessment reports are also of no present relevance. The tender of those documents is rejected.
5. Objection was also taken by the first defendant to a number of paragraphs of the affidavit of Ms Tancred of 24 March 2016, being paragraphs 13, 15, 16, 17, 18, 20, 21, and 22.
6. The disputed evidence relates to correspondence between the parties and others and is largely relevant to chronology. Since it does not add anything to determination of the asserted errors, the tender of those paragraphs is rejected.

orders 1. The summons is dismissed. 2. Costs on an ordinary basis in favour of the first defendant, subject to any submission either party seeks to make to the Court. 3. Any submission with regard to costs is to be filed with the Court and served upon the opposing party, by close of business on 17 June 2016. 4. Any submission in reply to be filed and served by 24 June 2016. 5. Any further application with respect to costs to be determined on the papers.

Amendments 10 June 2016 - [82] & [83]: Spelling correction 27 June 2016 - Inclusion of the names of junior counsel 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: 27 June 2016