IAG Limited trading as NRMA Insurance v Tran

Supreme Court of NSW|2015-03-03|Before: Hall J, Ms J

Solicitors: Sparke Helmore, Newcastle (Plaintiff) Than & Associates (First Defendant) Crown Solicitor's Office (Second and Third Defendants) File Number(s): 2014/256123

Judgment

The plaintiff, IAG Limited trading as NRMA Insurance, commenced proceedings by way of summons filed on 1 September 2014. The relief sought by the plaintiff relates to an assessment by a Claims Assessor dated 4 July 2014 made under the provisions of s 94 of the Motor Accidents Compensation Act 1999 ("MAC Act"). The assessment of the claim in favour of the first defendant, Mr Tran, (the claimant in the Assessment proceedings) was in an amount of $52,672.12.
The proceedings brought in this Court seek to challenge a component of the award for future loss of earning capacity in the amount of $42,500. The plaintiff contends that the award of damages for future economic loss in that amount was not made according to law, that is, it was not an assessment properly made under s 94 of the MAC Act.

The Grounds of Judicial Review

The summons pleads a number of judicial review grounds asserting error, as set out in subparagraphs (a)-(d) of paragraph 5.
The plaintiff asserted, in particular, that there were two legal errors as follows: 1. That the Claims Assessor made a finding which underpinned the monetary award which was not supported by the medical evidence given at the assessment hearing. Alternatively, the Claims Assessor denied the plaintiff procedural fairness by making that finding without indicating that such a finding might be made. 2. That the Claims Assessor wrongly applied the decision of the New South Wales Court of Appeal in Sretenovic v Reed [2009] NSWCA 280 in dealing with the issue of future loss of earning capacity.
During the hearing on 3 March 2015 leave was granted to the plaintiff to file in court a Notice of Motion dated 27 February 2015. By way of the Notice of Motion the plaintiff sought leave to file an Amended Summons dated 27 February 2015. The Amended Summons included an additional ground of judicial review, that being the ground of unreasonableness. Mr Sexton on behalf of the first defendant opposed the application to amend the summons because of its lateness, the generality of the assertions contained within it and because of the futility of the unreasonableness ground. I rejected the application for reasons given during the hearing.

Evidence

The plaintiff tendered a folder of documents which included the material that was before the Claims Assessor. This was marked Exhibit A.
Mr Robinson also read the affidavit of Daniel Lindsay Stoddart, solicitor, sworn 28 August 2014 and the affidavit of Ms Jane Faulks, and tendered handwritten (and a printed version) of notes made by Ms Faulks of the proceedings before the Claims Assessor. The notes became Exhibit B in the present proceedings.

Submissions

The parties relied upon the following written submissions in relation to the substantive issues raised in the plaintiff's claim: 1. Plaintiff's Summary Submissions filed 30 October 2014. 2. First Defendant's Summary Submissions filed 19 November 2014. 3. Plaintiff's Reply Submissions dated 27 February 2015.
Both parties supplemented the above submissions with oral submissions at the hearing on 3 March 2015.

Plaintiff's Submissions

The proceedings invoked the Court's judicial review or supervisory jurisdiction pursuant to s 69 of the Supreme Court Act 1970.
The plaintiff's Summary Submissions conveniently summarised the relevant provisions of the MAC Act and the "Guiding Principles" that apply in judicial review proceedings at [14]‑[26].
The plaintiff addressed the "No Evidence" ground relied upon in the following terms in their Summary Submissions: 32. At paragraph [25] the Claims Assessor purported to set out his reasons for awarding future economic loss, stating: 'It is then possible that he will not suffer any actual loss of earnings in the future. However, he may not succeeding (sic) in obtain (sic) these qualifications, or, having obtained them, he may be unable to find employment as an interpreter, or employment sufficiently regular to earn more than that from his present employment. If that is the case, then he will certainly sustain an actual loss of earnings in the future, because in my view the ageing process when compounded with his injuries will mean that the would be most unlikely to be able to work to normal retirement age as a barman/cellar hand.' (our emphasis). 33. The award for future economic loss was underpinned by the above finding. The Assessor gave no other reasons for awarding future economic loss other than the finding that the ageing process, when compounded with the first defendant's injuries, would mean that he would be unlikely to be able to work as a barman/cellar hand until normal retirement age. 34. There was simply no evidence before the claims assessor that could permit him to make that finding. 35. The documentary evidence that was before the claims assessor is annexed to the affidavit of Mr Stoddart. There is no evidence within that material that suggests that the first defendant would be unable to work as a barman/cellar hand until normal retirement age. 36. On the contrary, the evidence before the claims assessor suggested that the first defendant would be able to continue in his current employment. 37. The first defendant relied on a report of Dr Matalani dated 23 November 2012. Dr Matalani stated in that report that the first defendant was able to continue in his current employment, and stated that his condition was unlikely to change substantially (Stoddart affidavit, page 73). 38. The plaintiff relied on a report of Dr Bosanquet dated 30 April 2013. Dr Bosanquet stated in that report that the first defendant had not lost any time from his work as a bar attendant and was unlikely to lose any in the future (Stoddart affidavit, pages 107-108). 39. The plaintiff also relies on the handwritten notes, and typed file note, of Jane Faulks, annexed to the affidavit of Ms Faulks (to be filed). Ms Faulks attended the assessment conference before the claims assessor and states that her notes are a comprehensive record of the evidence that was given orally during the hearing. Ms Faulks states that there was no evidence given during the hearing that suggests that the first defendant would become less capable of performing his work as he aged. 40. In circumstances where there was no evidence before the claims assessor that the first defendant would be less capable of performing his work as he aged by reason of his injuries, it was not open to the claims assessor to make the finding he did. … 43. The 'no evidence' ground was considered by the Court of Appeal in Origin Energy LPG Ltd v BestCare Foods Ltd [2013] NSWCA 90 at [87]-[90] and [1]-[3]. Ward JA stated in that case (at [88]-[90], with Macfarlan and Hoeben JJA agreeing): 88. ... The test is not as to whether there was any evidence at all. 89. McHugh J, in the majority in Naxakis, said: "...So ... the question is, as Willes J said in a non-negligence context, [in Ryder v Wombwell] "not whether there is literally no evidence, but whether there is none that ought reasonably to satisfy the jury that the fact sought to be proved is established", (my emphasis)... 90. Similarly, in Swain v Waverly Municipal Council [2005] HCA 4, (2005) 220 CLR 517, it was accepted that the question was not whether there was literally no evidence to support the finding of fact but whether there was more than a mere scintilla of evidence favouring such a finding. Kirby J (in dissent) emphasized (at [560]) that: "The "no evidence" ground, as it is currently named, bears little relationship to the concept which it is intended to signify. More properly, it should be called the "no reasonable evidence" ground. That is how I mean the expression to be understood." 44. In the present case the issue had been relegated to medical experts. The drawing of an) inference of the making of the impugned finding was not supported by probative evidence and it was an error of law - Rodriguez v Telstra Corp Ltd (2002) 66 ALD 579 at [25] (Kiefel J); see also Stateships v Lawson (2009) 107 ALD 42 (Gilmour J). 45. It is submitted that in making a finding that the first defendant would become less able to work as he aged, when there was no evidence to that effect, the claims assessor fell into error of law. I will refer to the relevant medical evidence in the discussion below.
Findings of fact, it was emphasised, must be supported by logically probative evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321 at 367 per Deane J; Minister for Immigration and Ethnic Affairs v Pochi (1980) 4 ALD 139; 44 FLR 41 at 64-68 per Deane J; Minister for Immigration v Eshetu (1999) 197 CLR 611 at [147] per Gummow J.
It was further argued that the Claims Assessor had failed to accord procedural fairness to the plaintiff in failing to indicate to the parties that the disputed finding in paragraph [25] of the Claims Assessor's Reasons (extracted at [15] above) might be made. The plaintiff addressed the "Procedural Fairness" ground in the following terms: "Denial of Procedural Fairness 46. In making the abovementioned finding, without first indicating to the parties that the finding might be made and giving the parties an opportunity to make submissions and/or to adduce evidence relevant to that finding, the claims assessor failed to afford procedural fairness to the plaintiff. This is a jurisdictional error. 47. If the tribunal acted upon its own medical opinion it had not disclosed that to the parties it should have given them the opportunity to address it. In Rodriguez v Telstra Corp Ltd (2002) 66 ALD 579 (Kiefel J) the Federal Court said (at [24]): 'In any event if a view is formed by a tribunal which goes beyond the opinions expressed by the experts in evidence, fairness requires that it be disclosed and the parties permitted an opportunity to address it.' … 55. Neither party had claimed or submitted to the claims assessor that the first defendant's capacity for work would decline with age. 56. There was no evidence that the first defendant's capacity for work would decline with age by reason of his injuries. 57. In the circumstances, the plaintiff could not have anticipated that the claims assessor would make the abovementioned finding. 58. It was a finding out of the blue. 59. The claims assessor denied procedural fairness to the plaintiff in making the impugned finding without giving the plaintiff an opportunity to be heard on it. This constitutes a jurisdictional error."
Finally, it was argued for the plaintiff that the Claims Assessor fell into error in incorrectly applying the authority of Sretenovic v Reed, supra. In this respect the plaintiff submitted: "68. In the present case, the claims assessor appears to have misunderstood the findings of the Court of Appeal in Sretenovic. The claims assessor has used that case to support an award for future economic loss in circumstances where the only basis for an award for future economic loss is the finding made by the claims assessor that the plaintiffs condition would worsen in the future, when in fact a finding of that nature was specifically struck down by the Court in Sretenovic. 69. Accordingly, the claims assessor fell into error in purporting to rely on Sretenovic to support his findings."

First Defendant's Submissions

The first defendant's Summary Submissions included the following submissions: "4. As to the first misconception, the plaintiff's complaint fails to account for the fact that at all times the claim brought by the claimant was for a 'buffer' (see claimant's answers to particulars at page 52 of the affidavit of Mr Stoddart; claimant's submissions as to damages at pages 27-28 of the affidavit of Mr Stoddart). As Mason P observed in Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 at [2]: '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.' The plaintiff's complaint, insofar as it contends for a requirement that the Assessor find that it was unlikely that the claimant would be unable to work until retirement age, overstates the evidential requirements of a claim for a 'buffer'; all that the Assessor was required to find was that there was a real (ie more than fanciful) risk that otherwise secure employment would come to an end at some future time. That is, that there was a chance that the claimant would suffer a diminution in earning capacity. That type of chance can be assessed even if it is not more than a fifty percent chance (see Malec v JC Hutton Pty Ltd (1990) 169 CLR 638; see also AAI Ltd v Josipovic [2013] NSWSC 1524 at [28]ff)."
It was further submitted: "6. Secondly, assuming that the plaintiff can rely on the evidence before the Assessor and not only the reasons, there was, contrary to the plaintiff's submissions, evidence justifying the award of damages for future loss of earnings. That claim was based on a statement of the claimant dated December 2013 (the statement) and various medical reports (the medical reports) tendered in the claimant's case. The statement relevantly provided: 6.1 At the time of the accident he was employed by the Cabravale Diggers Club (the Club), performing duties of both a barman and cellarman; the duties of a barman were moderately heavy and the duties of a cellarman were very heavy. At the time of the accident, the claimant intended to continue working for the club until becoming eligible for the Age Pension at age 67 (see [5] of the statement at pages 20-21 of the affidavit of Mr Stoddart). 6.2 Since the accident, although continuing in his pre-injury employment, as a result of the injuries the claimant had taken several days off work, and while working had avoided performing heavier tasks; for the time off work the claimant had been paid Sick Pay by the Club (see [11] and [15] of the statement at pages 22 and 23 of the affidavit of Mr Stoddart). 6.3 In early 2013 the claimant commenced a part-time Bachelor of Arts degree, with the hope of becoming an interpreter. In the event that the claimant failed to qualify as an interpreter, he would have continued working at the Club. If the plaintiff did continue working at the Club it was his intention to continue working while his body held out, however he doubted that this would be until retirement age at 67 (see [16] of the statement at pages 23 and 24 of the affidavit of Mr Stoddart). The claimant gave oral evidence at the Assessment Conference and was cross-examined by the plaintiff. His evidence summarised in the paragraphs 6.1 - 6.3 was not challenged by the plaintiff at that time. 7. The medical reports relevantly included: 7.1 The report of Dr Luong, the treating general practitioner, dated 25 March 2013 (commencing page 61 of the affidavit of Mr Stoddart) noting: 7.1.1 Substantial ongoing physical restrictions (see page 63 of the affidavit of Mr Stoddart). 7.1.2 A guarded prognosis in respect of the back injury (see page 64 of the affidavit of Mr Stoddart). 7.1.3 A prognosis for deterioration in his physical problems (see pages 65 and 66 of the affidavit of Mr Stoddart). 7.2 The report of Dr Matalani, an occupational physical qualified by the claimant (commencing page 70 of the affidavit of Mr Stoddart) noting: 7.2.1 Moderate ongoing physical restrictions (see page 71 of the affidavit of Mr Stoddart). 7.2.2 A guarded long term prognosis (see page 73 of the affidavit of Mr Stoddart). 8. There was accordingly sufficient evidence to find, as the Assessor did find, that the claimant was suffering an ongoing loss of capacity as a result of the accident, albeit that, as at the date of the Assessment, it had not sounded in an actual loss of earnings (see [21] of the Assessor's decision). The Assessor thus found, as he was entitled to find, that there was a chance of a future loss of incapacity, which was capable of assessment on a Malec v Hutton basis (see [22] of the decision)."
As to the claimed denial of procedural fairness, it was observed in the Summary Submissions for Mr Tran: "10. … annexed to the Application were submissions as to damages which claimed a buffer for future loss of earning capacity (see [6] of the submissions at pages 27 and 28 of the affidavit of Mr Stoddart). The plaintiff filed a Reply (see generally annexure 'B' of the affidavit of Mr Stoddart). Annexed to that Reply were submissions as to damages which disputed the claim for future loss of earning capacity on the basis of the opinion of Dr Matalani that the claimant was fit for his current work. At the Assessment Conference, the plaintiff refined its position to argue (see [21] of the Assessor's decision at page 196 of the affidavit of Mr Stoddart) that: (a) as there had been no loss in the past, it followed that there would be no change in the future; and (b) the Assessor could not be satisfied that anything would change in the future. 11. Not only was the plaintiff aware of the evidential basis for the claim for future loss of earning capacity, it specifically addressed on it. It follows that there was no denial of procedural fairness." (Court Book at p32)
In his oral submissions Mr Sexton emphasised that it is important to understand the precise nature of the statutory obligation under s 94 of the MAC Act when applying the relevant rules and principles of judicial review.
He submitted that it was important to appreciate in this case two matters. First, what the assessor was required to do was to make an assessment of something which itself is an assessment, that is the amount of damages that a court would be likely to award. This is not something that even a court could deal with precisely. Accordingly, the assessment was, in a sense, a further step removed from the exercise of assessing future economic loss - the Claims Assessor assessing what the assessment would be. Second, s 126 of the MAC Act says nothing about the means of proof of the matters which are relevant to an assessment of future economic loss.
Mr Sexton submitted that this was a matter about which there was a fundamental misconception underpinning the submissions for the plaintiff. On the evidence, Mr Tran was disabled. This had reduced his earning capacity although it had not reduced his actual income.
In addition, it was submitted that the following matters were not addressed in the submissions for the plaintiff. First, in looking at a common law assessment of damages one is in reality looking at what juries may do by way of assessment and seen in that way the question becomes whether the evidence would be sufficient to go to the jury as to future economic loss. It was submitted that a juror's knowledge comes not only from the evidence itself but also from the experience of life.
In the latter respect it was submitted that it was common knowledge that if a person sustains a back or neck injury which is already disabling them from enjoying a full employment capacity then that is likely to get worse as one gets older. But this requires, it was submitted, even less than judicial knowledge. It was knowledge simply based on the experience of life. In that respect Mr Sexton referred to JD Heydon, Cross on Evidence, (6th Australian ed), under the heading Notorious facts judicially noticed without inquiry. The relevant passage is as follows: "[3020] Courts may and do take into account innumerable considerations relevant to fact finding without evidence and without taking judicial notice. General knowledge may be used to form opinions on matters of credibility, probability, intention and knowledge …"
The first defendant took issue with the submissions for the plaintiff wherein it was stated at [44] that the issue of future economic loss had been "relegated to the medical experts". Mr Sexton submitted that this was a surprising proposition because there was no evidence of any actual relegation of that issue to the medical experts and furthermore it misunderstood the common law methodology of assessing economic loss. In this respect he referred to the function of a jury, or a judge, or a statutorily appointed assessor, as the case may be, who draws on medical evidence, as well as evidence as to the type of employment that the particular plaintiff may be suited for and on life experience: "… to make an assessment about the future possibilities, which in our submission is what the assessor was doing … contrary to my learned friend's submissions, it is not a question of merely looking at the medical evidence nor is the future economic loss assessment ever a matter which is entirely and can be entirely relegated to doctors." (T 19:34-40).
Mr Sexton referred to Mr Tran's statement that in fact he was not "100% fit for work" to indicate that though his condition was not productive of financial loss there was nonetheless an impairment of his earning capacity: T 19:49-50. The statement referred to various aspects of work which presented problems for Mr Tran and it was submitted "there is uncertainty about the potential future circumstances": T 20:1-5.
Mr Sexton then referred to the medical evidence including Dr Matalani's report in which, inter alia, the doctor stated, "This condition is likely to not change substantially." It was submitted: "… what that means is it is not known whether he will get better, but it is unlikely that he will change substantially one way or the other. In other words, these disabilities are likely to be long-term ..." (T 21:20-26)
The diminution to compete on the open labour market was, it was submitted, an impairment that is compensable and that was an important fact in this case.
It was emphasised that the reference in Dr Matalani's report to the effect that "[Mr Tran] is able to continue in his current employment" was a statement that had to be analysed. It was submitted that the phrase "current employment" was a reference by Dr Matalani to the first defendant's actual current employer and did not refer to an occupation as a barman or cellarman for other employers. It meant that if Mr Tran had to change employers "… he would need to obtain work within the above restrictions. That is a classic statement of reduced capacity to compete on the open labour market …": T 21:35-40.
It was submitted that Mr Tran, with his impairment and disabilities, would need to find an equally "beneficent" employer to accommodate the ongoing conditions in his cervical and lumbar spine. The submission was: "His actual injuries, as demonstrated by his evidence and the medical evidence, being that but for the very beneficent employer, he would be most unlikely to be working as a barman/cellarhand now. All that the assessor has done is put forward the … completely uncontroversial proposition, that if you have a bad back and a bad neck, and you are ageing, it is likely to be harder, not easier, to do physical work." (T 23:35-45)

Statement of Mr Tran

The disputed finding of the Claims Assessor at [25] of his Reasons and the issue of whether there was "no evidence" to make that finding are to be considered in light of all relevant evidence. This included the statement of Mr Tran dated 20 December 2013 and the medical evidence which was before the Claims Assessor.
According to the statement Mr Tran was born in January 1980 in Vietnam. He and his family arrived in Australia in 1990. Although he completed high school he stated that he did not get a very good result in his HSC.
After leaving school he undertook a variety of unskilled casual jobs, mainly in the hospitality industry as a waiter or kitchen hand.
In 2000 he commenced work as a bartender and cellarman at the Cabravale Diggers Club. At the time of the accident on 14 March 2012 he was working full-time earning $750 net per week. He said at [5] of his statement: "… the duties of a bartender are moderately heavy, and involve long periods of standing, periods of walking (when clearing tables), a lot of bending and lifting and a moderate amount of heavy lifting. The duties of a cellarman are heavier than those of a bartender and involve carrying boxes of alcohol, moving and stacking kegs of beer. Most of the time I worked as a bartender. At the time of the accident, I intended to work until at least I became eligible for the Age Pension."
In his statement, Mr Tran gave an account of the motor vehicle accident and events following it. He said he had pain in his neck and back as a result. Both police and ambulance attended the crash scene. The ambulance took him to St George Hospital.
At the hospital he had scans of both his neck and back. He was then allowed to go home.
The next day because of pain in his neck and back he said he did not go to work and was paid sick leave and had time off. He then returned performing his normal duties. He said at [11] that despite returning to them he avoided performing the heavier activities at work.
He said he continued to experience pain in his neck and back.
He stated at [13] that he found that painkillers, acupuncture and physiotherapy provided relief from his neck and back symptoms.
As to the position after the accident, the plaintiff's statement at [14]-[15] recorded the following: "Since the accident I have continued to experience neck pain and stiffness. This makes it difficult to perform work above shoulder height requiring me to look up. It also hurts if I have my neck in a fixed position for a long time such as when I work on a computer or read a book. Since the accident I have continued to experience ongoing low back pain and stiffness. This pain is made worse at work when I have to stand for long periods as well as walk, bend and lift. The back pain limits how far I can walk. My neck and back pain are worse in cold weather. Although seeing Mr Marando did help, I still have some low level emotional problems. For example I still feel slightly uneasy when travelling in cars. Also, since the accident, I have noticed memory and concentration difficulties. Due to my problems I have continued to take occasional days off work. In the last 18 months, I estimate I have had between 5 and 10 days off due to my injuries and disabilities. On these occasions I have received sick pay."
Mr Tran said that in early 2013 he commenced a part-time Bachelor of Arts Degree at the University of Western Sydney as a mature aged student. He said he commenced the course, in part, due to the problems he was experiencing at work as a result of his injuries.
He said at [16] that over the twelve months prior to making the statement: "… I have found that the neck and back pain does make study difficulty, in particular sitting, reading and computer work … It remains to be seen whether my injuries will prevent me from obtaining a degree, as to date I have sat only for one exam, in which I obtained a pass …"
Mr Tran went on to state that he hoped to find work as an interpreter or translator. However, should he be unable to obtain his degree he believed he would remain at the Cabravale Diggers Club for "… as long as my body holds out": Statement of Mr Tran at [16].
He said at [17] that he continued to see Dr Luong who provides him with counselling and prescriptions for painkillers which he said he still takes.
He said at [18] that since the accident, as result of his injuries and disabilities: "… my ability to perform heavier aspects of domestic work - such as mowing the lawn or moving furniture while mopping and sweeping the floors - has been severely limited."

The Report of Dr B H Luong

Dr Luong's report was dated 25 March 2013. It was relied upon before the Claims Assessor.
The report contains a history of Mr Tran's injuries. Dr Luong stated at p 1 of his report that, "… neck injury, lower back injury and adjustment stress disorder with anxiety" were injuries sustained in the accident.
He recorded that on the day after the accident Mr Tran had noted pain in the neck with associated stiffness. He had had severe neck pain for three days.
Dr Luong noted that Mr Tran said that he worked as a bartender and cellarman and that he had experienced pain over the neck and down the arms on lifting. Mr Tran noted weakness in the left arm subsequent to the accident and also numbness across the left supraclavicular region and down the left arm into the dorsal aspect of the left lower arm. He stated that the numbness would occur every day, lasting about ten minutes: Report of Dr Luong at p 2.
Dr Luong also recorded a history of pain over the lumbar spine across the top of the left and right buttock and also numbness extending from the lateral aspect of the left and right hip. The episodes of numbness would last up to half an hour and could come on after sitting for fifteen minutes or standing for half an hour or walking for one hour: Report of Dr Luong at p 2.
Under the heading "nature and extent and duration of injuries and disabilities" on p 3 of his report, Dr Luong set out a list of the injuries and disabilities which he said were consequential upon Mr Tran's motor vehicle accident. They included: No twisting, bending or lifting in excess of 5kg. Difficulties in bending, twisting or lifting things. … Difficulty lifting above shoulder height and climbing stairs … He has difficulty with the heavy task in and around the home now. He is quite limited now …":
Dr Luong reported on radiological findings including, in particular: Neck injury with disc bulge at C2/3, C/34, C4/5 and C5/6, C6/7 levels of cervical spine with a bilateral C7 radiculopathy. Lower back injury with broad based disc bulge at L3/4, L4/5, L5/S1 levels of lumbar spine with a left L5/S1 radiculopathy.
As to "prognosis" Dr Luong wrote on p 4 of his report: "His neck injury has settled over 12 months. His lower back injury has not yet stabilised. His pain symptoms are exacerbated with cold weather conditions and daily physical exertion. He has ongoing pain and limitation which will require future management. He remains symptomatic of an adjustment disorder with anxiety Prognosis for his lower back is guarded for a long-term recovery."
Dr Luong concluded on pp 5-6: "Due to restrictions: chronic pain, absence of energy and motivation causing further deterioration of his physical (neck and lower back injuries) and psychological condition (poor sleep, lost [sic] of energy, social withdrawal and mild to moderate depression) Mr Tran has difficulties in maintaining a comfortable and self-managed life."

The Report of Dr Matalani

The medical case for Mr Tran before the Claims Assessor also included the report of Dr Elias Matalani, a Consultant Occupational Physician, and WorkCover Trained Impairment Assessor dated 23 November 2012 relating to an assessment carried out on that date.
Dr Matalani set out a full history of presenting symptoms and addressed a number of issues.
He noted that an MRI of the lumbosacral spine and nerve conduction studies had been performed. The MRI of the spine performed on 6 June 2012 demonstrated minimal left subarticular zone narrowing at L5/S1.
Under the heading "Current Symptoms" Dr Matalani noted complaints of pain in the neck and pain down to the left side of the neck and left shoulder region. He also noted complaints of lower back pain which sometimes radiated down to the legs and was worse on the left side.
It is to be noted that the history of symptoms taken by Dr Matalani is consistent with the history set out in Dr Luong's report.
Dr Matalani noted that the plaintiff lives with his parents in a three-bedroom villa and that he was able to perform most of his activities at home but takes a rest break when needed. It was noted that at the time of the report Mr Tran attended physiotherapy once a week.
In relation to the CT scan of the cervical spine dated 10 April 2012, Dr Matalani noted that it reported multi-level spondylitic changes with minor broad-based disc bulges at three levels of the cervical spine. There was a mild to moderate disc bulge at C5/6.
The MRI he noted, demonstrated minimal spondylosis and minimal broad-based disc protrusions at the lower levels of the lumbar spine.
Under the headings "Diagnosis and Opinion", and "Prognosis and Stabilisation", Dr Matalani's report stated on pp 3-4: "Diagnosis and Opinion: Mr Tran suffered soft tissue injuries and chronic musculoligamentous strain of the neck and back. There is imaging indication of mild disc lesions but there is no evidence of true radiculopathy. He is likely to be suffering from mild nerve root irritation in the left leg. His injuries are consistent with the stated cause. The motor vehicle accident on 14 March 201 has been a substantial contributing factor to the development of his current disabilities. Prognosis and Stabilisation: His long-term prognosis is guarded. His condition is unlikely to change substantially with or without further medical treatment. His injuries have stabilised and reached maximal medical improvement."
Under the heading "Capacity for Work" on p 4 of his report Dr Matalani observed that as a result of his injuries: "… Mr Tran is likely to find it difficult with work requiring the following activities: Repetitive bending and twisting of the spine. Prolonged uninterrupted sitting Prolonged walking and prolonged standing Heavy manual handling activities"
Relevantly, Dr Matalani also observed: "In his current occupation there is some heavy lifting involved but he indicated that if the weight is too much he is able to obtain assistance when necessary. He also indicated that he does not lift more than 15kg so as not to aggravate his symptoms. However, he also stated that there was prolonged standing required and towards the end of the day his symptoms increase. He is able to continue his current employment but should he wish to change work he would need to obtain work within the above restrictions."
It is to be noted on the medical evidence: 1. There is a consistency in the reported histories and reported symptoms as related by Mr Tran to medical examiners. 2. There is medical evidence of underlying spinal changes in the cervical and lumbar regions which, in Dr Bosanquet's opinion (according to his report dated 30 April 2013 at p 5, as to which, see below) have been aggravated by the effects of the injuries sustained in the subject motor vehicle accident. 3. Ongoing symptoms and level of impairment have been assessed as resulting in restrictions on Mr Tran's physical capacity. 4. Mr Tran has continued to work, albeit with some restrictions adopted by him as protective and ameliorative measures.
The plaintiff's medical evidence accordingly provided support for a finding of ongoing physical impairment.

The Plaintiff's Medical Case

The plaintiff insurer, NRMA, relied upon the report of Dr John S Bosanquet, Orthopaedic Surgeon, dated 30 April 2013. Dr Bosanquet examined Mr Tran on 24 April 2013.
The history obtained of the injury and symptoms is set out in Dr Bosanquet's report which was included in Exhibit A. That history is, as noted earlier, consistent with the histories obtained by Dr Luong and by Dr Matalani.
Dr Bosanquet set out the radiological investigations and his opinion by way of answers to specific questions that were posed for his consideration.
Dr Bosanquet stated that in the accident Mr Tran had aggravated underlying minor degenerative changes in his cervical and lumbar spines. He had been able to work and continues with acupuncture: Report of Dr Bosanquet at p 5.
On the subject of his restrictions and treatment needs, Dr Bosanquet wrote at p 5: "As Mr Tran was asymptomatic before the motor vehicle accident, his current restrictions and treatment needs relate solely to the motor vehicle accident." (emphasis added)
On the question of treatment and the effectiveness of treatment, Dr Bosanquet wrote at p 6: "It is my opinion that the physiotherapy treatments have been effective in restoring Mr Tran's functional ability. They have allowed him to continue at work without needing to have any time off."
Under the heading "Work Capacity" at p 8, Dr Bosanquet's report contained the following questions and answers: "13. Is the injured person fit to perform pre-injury duties as a Bar Attendant? It is my understanding that Mr Tran has continued to work as a bar attendant without any lost time and should be able to continue to do so. 14. In your opinion, should the injured person have restrictions to their duties or hours? Please specify. As Mr Tran has been working since the accident on full duties and hours, there is no need for any restrictions."
On the question of the likelihood of Mr Tran losing income as a result of the injuries, Dr Bosanquet wrote at p 9: "As stated, Mr Tran has not lost any time from his work as a bar attendant since the motor vehicle accident and is unlikely to lose any in the future." (Exhibit A at p 108)
On the issue of "Permanent Impairment", Dr Bosanquet wrote at p 9: "As a result of the motor vehicle accident, Mr Tran does not have any permanent impairment."
This statement, however, is to be read in context. Dr Bosanquet accepted that as at the date of his examination (24 April 2013), Mr Tran had ongoing restrictions and treatment needs: Report of Dr Bosanquet at p 5.
In the course of his submissions, Mr Sexton observed that the history recorded by Dr Bosanquet, and upon which he acted, was that Mr Tran had not needed any time off work and continued to undertake his pre-injury work. To the extent that Dr Bosanquet had an incorrect history as to Mr Tran's time off work (for which he was paid sick leave) and Mr Tran's account in his statement that he had restrictions but that he managed to work within them, such matters were plainly relevant to an assessment of Mr Tran's condition. Dr Bosanquet's opinion as to his work capacity was made in the absence of an accurate or complete post-injury work history which addressed the full circumstances in which he had been working.
That said, Dr Bosanquet plainly accepted Mr Tran's symptoms as valid and reasonable. In particular, he accepted that he had an ongoing condition as a result of aggravation of the underlying degenerative changes at both levels of the spine. He accepted, as noted above, that Mr Tran does have restrictions as a result of the injuries sustained in the accident, observing at p 5 in answer to Question 1 of the specific questions put to him that, "his current restrictions and treatment needs" were related solely to the motor vehicle accident, confirming that they were not attributable to any previous condition.

The Assessor's Reasons

The Claims Assessor provided an assessment of damages and Reasons for Decision pursuant to s 94(5) of the MAC Act.
Those Reasons included a finding that Mr Tran did sustain injuries to the neck and back in the motor vehicle accident and that he had time off work and was paid sick leave for the lost time but that he did not seek reimbursement from the plaintiff insurer: Reasons for Decision at [18]-[19].
The Claims Assessor said at [22] that he was persuaded that Mr Tran has incurred, and will incur, impairment to his future loss of earning capacity because of the injuries he sustained in the accident. He then recorded: "24. In the immediate future, it does appear that the Claimant will not sustain any economic loss, as he should be able to continue in his present employment, taking the odd day off as sick leave, until he obtains his degree and is able to seek employment as an interpreter. 25. It is then possible that he will not suffer any actual loss of earnings in the future. However, he may not succeed in obtaining these qualifications, or, having obtained them, he may be unable to find employment as an interpreter, or employment sufficiently regular to earn more than that from his present employment. If that is the case, then he will certainly sustain an actual loss of earnings in the future, because in my view the ageing process when compounded with his injuries will mean that he would be most unlikely to be able to work to normal retirement age as a barman/cellar hand. 26. In the light of my findings above, it is appropriate that the Claimant be awarded a modest sum as a buffer. I agree with counsel for the Claimant that his written submissions urging figure of $75,000 is excessive. I am not persuaded by the Insurer's submissions that this should somehow be measured against the fact that hundred dollars a week loss of earnings over five years amounts to $20,000. The considerations involved in awarding a buffer for future economic loss should not be confused with the calculation of actual loss, and I agree, as counsel for the Claimant submitted, this is not an area of damages where one can 'mix and match' with calculations of straightforward economic loss of an specific dollar figure per week."
The Claims Assessor allowed an amount of $50,000 for future economic loss inclusive of superannuation. The Claims Assessor deducted 15% for contingencies, reducing the future loss of earning capacity to the sum of $42,500 inclusive of the loss of superannuation: Reasons for Decision at [30].

Relevant Principles

In determining the grounds of judicial review, including in particular, the asserted errors, I begin with a consideration of the principles concerning judicial fact-finding in a case involving expert evidence.
In Strinic v Singh [2009] NSWCA 15; 74 NSWLR 419, Beazley JA (as her Honour then was) (Ipp and Basten JJA agreeing) discussed the relevant caselaw that established the following principles and propositions: 1. The fundamental obligation to make findings of fact on proved evidence (not being matters of common knowledge or judicial knowledge) has been emphasised by the courts in a variety of different circumstances. It is an error of law for a judge to make a finding of fact where there is no evidence to support it, unless the matter is one of which the judge is entitled to take judicial notice: Strinic v Singh at [60] per Beazley JA referring to Saunders v Adderley [1999] 1 WLR 884 at 889. 2. The experience of a particular judge in a court of general jurisdiction in medical cases does not displace the requirement to base findings on the evidence. Underlying that error is a fundamental breach of procedural fairness. A party is not afforded procedural fairness where a trial judge makes findings of fact based upon the judge's own purported knowledge or understanding of matters that do not form part of the evidence. Procedural fairness, however, takes its colour and hue from the particular circumstances at hand: Strinic v Singh at [65] per Beazley JA.
Reference was made by both parties in the present proceedings to the decision in Sretenovic v Reed, supra, a case involving a child who had been bitten by a domestic dog. In that case, McColl JA (Beazley JA agreeing), observed at [55] that the primary judge had gone beyond the medical evidence in finding, in addition to the diagnosis the subject of the evidence, that the respondent child had suffered from "major depression" from which there was little prospect of him recovering.
In Sretenovic v Reed it was held that the primary judge, although he stated that he accepted the evidence given by Professor Quadrio, did not in fact reflect that evidence in his decision. In contrast to the moderately hopeful picture that Professor Quadrio foresaw, the primary judge found that the respondent suffered from major depression and the prospects of him being successfully treated were poor or bleak and that his depression had worsened. He also found that it was unlikely and improbable that his post-traumatic stress disorder, adjustment disorder, depression and proneness would recede or diminish.
However, it was found that there was no evidence from which the primary judge could have drawn the conclusion that the prospects of success of psychological treatment were poor. Further, in finding that the respondent would live a psychologically impaired life, the trial judge took no account of Professor Quadrio's views on the prospects of treatment. It was held at [73] that his Honour's conclusion that the respondent's then current condition supported a diagnosis of major depression of which there was little prospect of diminution appeared to have been the basis of his Honour's findings that he would remain prone to significant depression throughout life. On appeal, McColl JA concluded at [75]: "In my view the errors I have identified in the primary judge's reasons were of such substance that the conclusion reached by his Honour concerning the s 16 most extreme case issue and future economic loss were manifestly erroneous …"
The factual and evidentiary issues arising in the present case are very different to those in Sretenovic.
In the present case the nature of the claim for future impairment of earning capacity was for an assessment of "a buffer", not an award based on an assessed weekly loss of future earnings.
The award of damages for future impairment of earning capacity in some cases requires an award by way of a buffer. In relation to the relevant principle concerning compensation for loss of earning capacity, McHugh J in Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1 at 16 observed: "In Australia, a plaintiff is compensated for loss of earning capacity, not loss of earnings. In practice, there is usually little difference in a result irrespective of whether the damages are assessed by reference to loss of earning capacity or by reference to loss of earnings. This is because 'an injured plaintiff recovers not merely because his earning capacity has been diminished but because the diminution of his earning capacity is or may be productive of financial loss': Graham v Baker (1961) 106 CLR at 347. Nevertheless, there is a difference between the two approaches, and the loss of earning capacity principle more accurately compensates a plaintiff for the effect of an accident on the plaintiff's ability to earn income. Earning capacity is an intangible asset. Its value depends on what it is capable of producing. Earnings are evidence of the value of earning capacity but they are not synonymous with its value. When loss of earnings rather than loss of capacity to earn is the criterion, the natural tendency is to compare the plaintiff's pre-accident and post-accident earnings. This sometimes means that no attention is paid to that part of the plaintiff's capacity to earn that was not exploited before the accident. Further, there is a tendency to assume that if pre-accident and post-accident incomes are comparable, no loss has occurred."
In Penrith City Council v Parks [2004] NSWCA 201, Giles JA at [5] observed: "I consider that it is still open to assess damages by way of a so-called 'buffer'. The occasion for a buffer is when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. There is still a comparison between the economic benefits, although the difference cannot be determined otherwise than by the broad approach of a buffer. Section 13(1) [of the Civil Liability Act 2002] can be fulfilled, and the assumptions as to exercising earning capacity before injury can be stated. Having determined damages for future economic loss by way of a buffer, because of the broad approach there is no question of percentage adjustment, and so in the application of s 13(2) the percentage adjustment is nil."
In Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 Mason P at [2] observed: "This is the highest 'cushion' or 'buffer' award that I have encountered. I would not wish to encourage litigants and trial judges to go down this path in preference to the more difficult, yet exposed, path of reasoning towards an award in the more conventional manner. From my experience, 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. The present case is not of that nature, although the facts are quite unusual. They render computation according to the standard method particularly problematical and, from the appellant's point of view, particularly difficult to challenge on appeal."

Assessment of the Medical Evidence in the Present Case

The medical evidence called in Mr Tran's case before the Claims Assessor was given in report form. Neither doctor was cross-examined or challenged in respect of their analyses and opinions. In summary, the medical evidence, as noted above, comprised: 1. The evidence of the treating general practitioner, Dr B H Luong who treated the plaintiff in the twelve month period between the date of the accident and the date of the report (25 March 2013). 2. Specialist medical assessment being the report of Dr Matalani, Consultant Occupational Physician.
Both doctors attributed ongoing disabilities and restrictions in Mr Tran to the subject motor vehicle accident of 14 March 2012.
In particular, Dr Matalani as noted above said that Mr Tran had no pre-existing disabilities before the subject accident. He noted at p 2 of his report that approximately five years previously Mr Tran had had a fall at work and suffered neck and back pain and stiffness. He was treated conservatively with physiotherapy and returned to light duties followed by normal duties. Mr Tran told Dr Matalani that within one year his neck and back symptoms resolved completely.
The histories and analyses of Drs Luong and Matalani, were consistent with one another and established that Mr Tran had ongoing disabilities including: 1. Disabilities/restrictions on repetitive bending and twisting of the spine; 2. Disabilities/restrictions on prolonged sitting and standing; 3. Disabilities/restrictions on heavy manual lifting activities.
Dr Luong at p 3 of his report particularised the nature and extent of all the disabilities that resulted in the limitations and restrictions detailed in his report.
Dr Luong stated at p 4 of his report that the prognosis for Mr Tran's lower back was guarded in terms of long-term recovery.
Dr Luong's opinion was supported by Dr Matalani. He too stated, at p 4 of his report, that Mr Tran's long-term prognosis "is guarded". Dr Matalani's assessment, in his capacity as an Occupational Physician, was that Mr Tran's condition was unlikely to change substantially "with or without further medical treatment": at p 4. He added that Mr Tran's injuries "… have stabilised and reached maximal medical improvement".
Dr Matalani's opinion as to the future is consistent with the opinion expressed by Dr Luong in his report at p 6, namely: "… Mr Tran has difficulties in maintaining a comfortable and self-managed life."
In terms of capacity for work, Dr Matalani's opinion was directed to identifying, as a matter of probability, any sequelae of the injuries sustained that could in the future limit or interfere with his performance of certain work. As earlier noted, he stated at p 4 of his report that: "… as a result of his injuries Mr Tran is likely to find it difficult with work requiring the following activities: Repetitive bending and twisting of the spine. Prolonged uninterrupted sitting. Prolonged walking and prolonged standing. Heavy manual handling activities."
In the event that Mr Tran did not complete his tertiary education and obtain work as an interpreter, but remained performing manual work, on the basis of Dr Matalani's assessment and opinion of his capacity for work it was open to the Claims Assessor to proceed on that basis and find that he would remain restricted in the open labour market by reason of the limitations or restrictions which Dr Matalani identified. When so understood, Dr Matalani's evidence supports a conclusion that Mr Tran had, and was likely in the future to have, an impairment of his earning capacity.
The evidence was that, although Mr Tran had continued working, including performing some heavy lifting work, he was able to obtain assistance with heavier duties when necessary: Report of Dr Matalani at p 4. In addition, he gave an account of not lifting more than 15kg "… so as not to aggravate his symptoms": Report of Dr Matalani at p 4. He noted that prolonged standing resulted in increase of symptoms at the end of the day. Mr Tran was not cross-examined to suggest his account in these respects was erroneous.
Dr Matalani concluded the issue of "Capacity for Work" with the statement: "… he is able to continue his current employment but should he wish to change work he would need to obtain work within the above restrictions."
Accordingly, Dr Matalani's opinion established that, even leaving aside his "current employment", the future scope or range of work would be limited by reason of the restrictions resulting from the injuries sustained in the subject accident.

Conclusions

The claim made by Mr Tran before the Claims Assessor was one for damages for personal injury, including a claim as particularised in respect of both past and future losses including, in particular, loss of earning capacity.
It is clear that the claim was brought upon the basis that Mr Tran had sustained injuries to the cervical and lumbar regions of his spine and that those injuries had produced ongoing disability which in turn had given rise to limitations and restrictions on his earning capacity. The plaintiff insurer was plainly on notice of the nature of the claim in those respects. The insurer sought from Dr Bosanquet expert medical opinion on a range of issues which were the subject of some twenty-one specific questions, each of which was addressed in Dr Bosanquet's report dated 30 April 2013. These included questions on Mr Tran's ongoing condition, and present and future disabilities and restrictions.
Question 5 posed for Dr Bosanquet's opinion focussed upon the question as to whether or not treatment had been effective in restoring Mr Tran's "functional abilities". Questions 13 and 14 specifically addressed issues as to work capacity which related not only to past but also the future claim for loss of earning capacity.
The Claims Assessor was required to determine whether, on the medical evidence, Mr Tran had ongoing limitations and restrictions that could adversely affect or impact upon his earning capacity in the future. The medical evidence in Mr Tran's case, of which the plaintiff had knowledge, as discussed above, plainly established that he had an ongoing spinal condition resulting in ongoing pain, disability and restrictions. These, the evidence established, carried the potential, indeed the likelihood, of them curtailing his earning capacity on the open labour market in terms of occupations involving physical demands at least the equivalent of those involved in his present occupation with the Cabravale Diggers Club. On the evidence that position was unlikely to change with or without further medical treatment: Dr Matalani's report at p 4. Furthermore, his injuries according to Dr Matalani at p 4 of his report had stabilised and reached their "maximal medical improvement".
The Claims Assessor's finding to the effect that Mr Tran was a witness of truth was favourable to him. The medical history given by Mr Tran to the various medical examiners was clearly accepted by them as being consistent and reasonable. No criticism of Mr Tran's reliability or credibility was raised in the medical reports, with Dr Bosanquet accepting that he had "current restrictions".
In his statement dated 20 December 2013, Mr Tran identified the heavy aspects of his work as a bartender and cellarman at the Club at which he has worked for many years.
The notes of the proceedings before the Claims Assessor indicate that Mr Tran was not challenged upon the statements made by him as to the range of his work duties or as to the particular difficulties he said he had continued to experience whilst working. In addition, Mr Tran was uncontradicted in his statement that due to his ongoing spinal problems he had continued to take occasional days off work which he estimated in the previous 18 months to his statement as being between five and ten days due to his disabilities for which he has received sick pay: Statement of Mr Tran at [15].
Whether or not Mr Tran currently has the support of a benevolent employer or whether he has been able by some means to make adjustments and is able to obtain assistance from time to time (or both of those matters), the medical evidence provided strong support for a finding that his current condition, problems and restrictions would be likely to continue indefinitely. A finding to that effect was well open to the Claims Assessor. The fact that the Assessor took into account the additional fact that with increasing age Mr Tran would be unlikely to continue to work to normal retirement age as a barman/cellarman was an aspect related to his "current restrictions" and, in any event, in my assessment, was one that was also supported by the evidence.
The fact that the Claims Assessor, in relying upon the evidence as to Mr Tran's existing medical condition, also made reference to the "ageing process" at [25] of his Reasons, does not amount to an expression of a medical opinion. It is merely a recognition of human experience, namely the reality that a painful condition that is likely to continue throughout a person's working life is likely to become increasingly more difficult to handle as the injured person moves into an older age bracket. That is not, in my opinion, a matter upon which expert evidence on the ageing process is required. As observed in the extract from Cross on Evidence to which I have earlier referred, not all facts need be proved by evidence. General knowledge, based on ordinary human experience (in this case as to the probabilities that with increasing age a person becomes less resilient and loses strength), is simply that. It relates simply to matters of probability. It is a matter of common knowledge not confined to the life experience of only a judge (or a Claims Assessor's experience). It is the experience or reality of ordinary humanity.
Accordingly, the composite statement made by the Claims Assessor at [25] of his Reasons which is impugned was no more than an opinion that was supported by the evidence that Mr Tran's injuries and disabilities in an occupation involving heavy lifting and bending, and working and standing for prolonged periods, were likely to be less tolerable as older age ensues. The restrictions on the plaintiff's physical capacity were well-established at the date of assessment. They had in fact stabilised as at the date of the assessment. The finding of an ongoing physical impairment as at the date of assessment (even putting to one side the issue of the later effects of ageing), well-supported a finding of a present and continuing diminution of Mr Tran's earning capacity: Medlin v State Government Insurance Commission, supra, at p 16. Such a finding was sufficient to justify the award of a "buffer" for the established risk Mr Tran faced - the risk that his otherwise secure employment prospects may end in consequence of the tort-related injury in the future: Leichhardt Municipal Council v Montgomery, supra, at [2].
In those circumstances it was open to the Claims Assessor to have regard to the evidence that established an impairment of Mr Tran's earning capacity and, in particular, Dr Matalani's opinion referred to at [104] above. The additional finding made by the Claims Assessor that Mr Tran's restrictions and disabilities would be compounded by the ageing process, was strictly unnecessary as the established impairment and restrictions impacting upon him was sufficient in itself to justify the award of damages in the nature of a "buffer".
I have concluded, accordingly, that as the medical evidence in Mr Tran's case put the plaintiff insurer plainly on notice of the nature of the claim as to the future diminution of earning capacity, and that the claim was by way of a "buffer", there was no procedural unfairness in the way in which the Claims Assessor approached the assessment.
In my opinion, no error of law, jurisdictional or otherwise has been established by the plaintiff.

Orders

Accordingly, the summons should be dismissed.
In those circumstances, ordinarily the costs would follow the event. In the circumstance that any other order is sought by one or other of the parties then I will hear submissions in that respect. I note that the Notice of Motion to amend the summons was heard at the outset of the hearing and occupied a short amount of time. Unless the defendant wishes to argue to the contrary no separate order as to costs of the Notice of Motion will be made.

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: 20 March 2015

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Judgment (17 paragraphs)

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Cases Cited (12)