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[2014] NSWSC 726
Supreme Court of NSW
2014-06-10
Original judgment source is linked above.
Judgment 1HER HONOUR: By summons filed 1 October 2013, QBE Insurance (Australia) Ltd seeks an order in the nature of certiorari quashing the certificate (including reasons) issued by the second defendant on 2 August 2013, pursuant to s 94 of the Motor Accidents Compensation Act 1999 (NSW) ("the Act"); an order (in the nature of mandamus) remitting the matter to the third defendant for allocation to a different claims assessor, to be determined according to law; and if necessary, an order in the nature of prohibition or, alternatively, an injunction, preventing the defendants from acting upon or taking any further step in reliance on the said certificate. 2The plaintiff is QBE Insurance (Australia) Ltd ("QBE"). The first defendant is Oksana Volokhova ("Mrs Volokhova"). The second defendant is Josephine Snell in her capacity as a claims assessor appointed by the Motor Accidents Authority of New South Wales ("the CARS Assessor"). The third defendant is the Motor Accidents Authority of New South Wales. The second and third defendants have filed submitting appearances. 3QBE relied on the affidavit of Michael Sofoulis affirmed 31 October 2013. Mrs Volokhova relied on the affidavit of her solicitor Leon Monaco affirmed 19 December 2013. 4On 18 November 2009, Mrs Volokhova was walking across a pedestrian crossing with a green walk sign in Guildford, when a motor vehicle collided with her and she sustained injuries. QBE was the compulsory third party insurer for the driver at fault. Liability was not in issue. 5On 2 August 2013, the CARS Assessor issued a certificate awarding Mrs Volokhova the sum of $985,737.99, which included the amount of $500,000 for future loss of earnings ("future economic loss"). 6QBE's central complaint is that the amount of $500,000 awarded to Mrs Volokhova, by way of a "buffer" for future economic loss, is excessive; and that the CARS Assessor's reasons are flawed and contains error of law on the face of the record. 7Mrs Volokhova submitted that had she not suffered the disabilities caused by the accident, she would have completed a Graduate Diploma in Legal Practice and by 2015, would have been admitted as a solicitor. She claimed $20,000 for her inability to obtain part time work, had she chosen to do so, from the time of the accident to the date of the assessment conference. The CARS Assessor did not make any allowance for past economic loss.
Future economic loss 8The parties agreed that Mrs Volokhova will suffer future economic loss and that the approach adopted by the CARS Assessor by awarding a buffer amount for future economic loss was correct. 9At the conference assessment, Mrs Volokhova claimed $1,001,348.41 for future economic loss. QBE submitted that she should receive $100,000 by way of buffer for future economic loss. 10While the CARS Assessor's reasoning appears under the heading "How should Mrs Volokhova's future economic loss be measured", it follows on from some of the findings made in earlier sections of the decision. 11The approach I should adopt is that set out in Minister For Immigration and Ethnic Affairs v Wu Shan Laing [1996] HCA 6; (1996) 185 CLR 259 at 272 (Brennan CJ, Toohey, McHugh and Gummow JJ) and 291 (Kirby J) where the High Court stated: "It was said that a court should not be 'concerned with looseness in the language ... nor with unhappy phrasing' of the reasons of an administrative decision-maker. The Court continued: 'The reasons for the decision under review are not to be construed minutely and finely with an eye keenly attuned to the perception of error.' These propositions are well settled. They recognise the reality that the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed ... [The court] must beware of turning a review of the reasons of the decision maker upon proper principles into a reconsideration of the merits of the decision. This has been made clear many times in this Court. ... The reasons under challenge must be read as a whole. They must be considered fairly. It is erroneous to adopt a narrow approach, combing through the words of the decision-maker with a fine appellate tooth-comb, against the prospect that a verbal slip will be found warranting the inference of an error of law." [Citations omitted] 12Senior counsel for Mrs Volokhova also referred to Allianz Australia Insurance Limited v Motor Accidents Authority of NSW [2006] NSWSC 1096; (2006) 47 MVR 46 at [36], citing the New South Wales Court of Criminal Appeal in R v Sorlie (1925) 25 SR (NSW) 532 at 539. 13Before I reproduce the CARS Assessor's full reasons in relation to future economic loss, it is necessary to briefly refer to her findings in relation to Mrs Volokhova's injuries and work history. 14Mrs Volokhova was born and educated in the Ukraine. She is "very articulate and intelligent" (at [33]) with a good command of English. She was in good health before the car accident. Although she was born with infant cerebral paralysis and as a result she walks with a limp, she did not need any specialist care, nor has it affected her way of living. Before the accident Mrs Volokhova used to enjoy going on walks with her two children and her husband and she had a healthy social life. At the time of the assessment she was aged 33 and her two children were aged 9 and 12. Her husband is a mechanical engineer. 15At the assessment conference, QBE conceded that Mrs Volokhova sustained soft tissue injuries to both her shoulders, musculoligamentous strains to her cervical and lumbar spine and psychological injury as a result of the accident. While the CARS Assessor determined that Mrs Volokhova's physical injuries were not significantly disabling (at [32]), she considered that Mrs Volokhova's injuries were significant but that there was further potential for recovery of her physiological symptoms over time (also at [32]). Mrs Volokhova's psychological injuries were diagnosed as chronic anxiety disorder, agoraphobia, panic attacks and PTSD and had been evident from the date of the accident for some 3.5 years after the accident (at [32]-[33]).
Past working history and qualifications 16So far as Mrs Volokhova's working history is concerned, in 2000 she was awarded a Bachelor of Law after studying at University in Odessa. From July 2001 to May 2003, she was employed in Odessa with a legal firm "Legal Consulting" as a legal assistant. From June 2003 to May 2006 she worked in her own legal practice. In 2006, she came to Australia. Mrs Volokhova had learned English both at school and University. 17While the CARS Assessor (at [6]) referred to the reference provided by Ms Vladimirovna, a partner of the legal practice, it is worth taking note of some of its contents. This reference described Mrs Volokhova as a highly qualified and focused worker who not only possessed extraordinary professional qualities, but also personal qualities such as honesty, decency and reliability. Ms Vladimirovna commented that clients always commended Mrs Volokhova's high level of competence, efficiency and individualised approach to each case, as well as her accuracy and attentiveness in her work. Ms Vladimirovna considered Mrs Volokhova to be a highly qualified, pro-active, responsible and promising professional. 18From this reference, I have summarised Mrs Volokhova's main areas of work as a solicitor as:
Legal Profession Admission Board Course (LPAB) 20In relation to Mrs Volokhova's attempt to undertake the LPAB course, the CARS Assessor recorded at [51] to [55]: "[51] She was not sure when she first enquired about the Legal Profession Admission Board (LPAB) course, whether this was before or after the accident on 16 November 2009. The earliest correspondence available to me about this course is dated 30 April 2010 to confirm enrolment in only one subject, Legal Institutions. That letter notified the examination for the subject would take place on 7 September 2010. The letter dated 5 November 2010 confirms she failed that subject attaining a mark of 47. Her written statement ... says she 'had been doing the course for about 1 year before having to discontinue due to my injuries.' She attributed her failure in Term 2 to pain in her neck and shoulders making it difficult to concentrate and focus on studying. She then states she 'therefore discontinued studying I attempted to go back to studying but was unable to continue' due to such pains. As I understood her evidence at the assessment conference she failed this subject twice and therefore was excluded from the course. However this is not entirely clear from her statements nor the documents from LPAB. The only other letter from them [the LPAB] before me is dated 21 April 2011. It refers to Term 1 2011 examinations being held in March 2011. Notice was given to her about a breach of Rule 64 or Rule 66 but the notice then seems to specify her breach was of Rule 64 'for failing to sit for examination in at least two subjects in any two successive sessions- from Semester 2 2010 to Semester 1 2011.' So it seems she may have only failed once. In either eventuality the letter refers to rule 67, which gives the Board power to relax this rule. It may well be if Mrs Volokhova recovers in the future she could apply to recommence her studies based upon special circumstances that she was ill due to the injuries she sustained in the car accident. [52] Mrs Volokhova explained that she chose the LPAB course because she thought it would give her time to study while her children were at school. She does not refer to enquiring about other Law degrees. [53] She says she felt she would have no trouble passing this course given her success in her Law degree in the Ukraine and the fact she had been able to complete the TAFE course. In her statement bearing the date 13 June 2013 (but signed at the Assessment Conference) she says she thought the course would be 'easy' as she had already obtained a Law Degree in the Ukraine and had done well in that degree. She says in the LPAB course she had passed two assignments and was eligible to sit the final exam but she became extremely anxious and her mind began to race and she felt pain in her neck and shoulder in the exam. She does note 30% of the other students were not eligible to sit that exam and of those who did 23% failed. [54] I have mentioned she impressed me at the Assessment Conference as intelligent and she was articulate with a good command of English. She may well have been able to complete a Law degree but logically that outcome is not a certainty. I do however accept that the injuries she sustained in the car accident would have been at their most acute physically in 2010 and, with her developing psychological symptoms, I accept she would have had difficulty concentrating and focusing and it was reasonable she could not continue to study. [55] In her statement bearing the date 13 June 2013 she says because she never thought she would fail she did not consider an alternative career path. I find there is no basis to find had she not undertaken the LPAB course she would have been working. In paragraph 24 of her statement she says her intention 'was to study for a couple of semesters before trying to obtain some employment in the legal profession.' I cannot accept this was her intention before the accident because as I have noted at the Assessment Conference she said before the accident she was not sure when she would start studying. She seemed to place emphasis on the importance she placed on her role as a mother. I note her children are now only aged 9 and 12. I am not satisfied that she has discharged her onus of proof that she would have incurred wage loss to date had the accident not intervened." 21The CARS Assessor accepted that while Mrs Volokhova may well have been able to complete a law degree, that outcome was not a certainty. She also accepted that the injuries Mrs Volokhova sustained would have been at their most physically acute in 2010 and Mrs Volokhova would have had difficulty concentrating and focusing due to her developing psychological symptoms, and it was reasonable she would have been unable to continue to study. 22QBE submitted that the CARS Assessor erred on three main grounds. They are firstly, the damages awarded for future loss of earnings were manifestly excessive and that the CARS Assessor failed to take into account relevant factors; secondly, the CARS Assessor failed to give adequate reasons for the award for future loss of earnings; and finally, the CARS Assessor failed to comply with s 126 of the Act.
Ground 1: Damages awarded for future loss of earnings were manifestly excessive and failure to take into account relevant matters 23Both parties referred to Allianz Australia Insurance Limited v Cervantes [2012] NSWCA 244; (2012) 61 MVR 443 as being instructive. But before I refer to Cervantes in detail, I should briefly refer to an earlier case of Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453 concerning the award of a "buffer". 24In Pollard Basten JA (with whom McColl and Macfarlan JJA agreed) stated at [84]: "[84] As to the future economic loss, it is appropriate to award damages by way of a buffer, including in a case such as this where damages are to be determined pursuant to the Civil Liability Act, when the impact of the injury upon the economic benefit from exercising earning capacity after injury is difficult to determine. In such a case, the Court still undertakes a comparison between the economic benefits the plaintiff derived from exercising earning capacity before injury and the economic benefit derived from exercising earning capacity after injury, although the difference cannot be determined otherwise than by the broad approach of a buffer: Penrith City Council v Parks [2004] NSWCA 201 (at [3] - [5]) per Giles JA; applied K'mart Australia Ltd v McCann [2004] NSWCA 283 (at [62]) per Pearlman AJA (Handley and Ipp JJA agreeing); see also Hornsby Shire Council v King [2005] NSWCA 67 (at [23]) per Ipp JA (Mason P and Brownie AJA agreeing); Leichhardt Municipal Council v Montgomery [2005] NSWCA 432 (at [33]) per Hodgson JA (McColl JA agreeing). In the latter case Mason P (at [2]) opined that 'a buffer or cushion award is usually reserved to the situation where there is a smallish risk that otherwise secure employment prospects may come to an end, in consequence of the tort-related injury, at some distant time in the future', but, with respect, the accepted wisdom appears to be that a buffer can be deployed in circumstances such as the present."
Consideration of Cervantes 25The brief facts in Cervantes are that on 24 June 2006, Dr Cervantes was injured in a motor vehicle accident. In the assessment under the Act, the CARS Assessor issued a certificate awarding Dr Cervantes $400,000 for future economic loss awarded by way of buffer. On appeal, the insurer, Allianz claimed that the amount was manifestly unreasonable. In 2009, Dr Cervantes qualified as a Nephrologist. On 11 January 2011, when the assessment took place, Dr Cervantes was 46 years of age. After the accident, Dr Cervantes was able to work in the public health system, but was no longer able to work in private practice. Dr Cervantes could have earned a much larger amount had she been able to work in both private practice and the public system. It was held that the buffer of $400,000 awarded by the CARS Assessor was not excessive in the circumstances of the case. Hence, the appeal was dismissed. 26In Cervantes at [12], [16], [26], [33] - [40] and [43] Basten JA (with whom McColl and Macfarlan JJA agreed) stated: "[12] On the assumption (discussed below) that failure to refer to particular evidence can constitute a failure to take a 'relevant consideration' into account, that submission may be accepted. Indeed, it was necessary for the appellant to go further in order to establish such a ground. It needed to rely upon the reasons of the assessor to demonstrate what the assessor had or had not taken into account. That it was entitled to do, in order to establish jurisdictional error, whether or not the reasons formed part of the 'record'. However, the material relevant to such a ground could, in the absence of a concession, include any record of submissions made to the decision-maker by the applicant for judicial review. That extra material may be necessary because, unless the party seeking judicial review can establish that the material was in fact relied upon for a particular purpose, there can be no legitimate complaint that the decision-maker failed to take it into account. It follows that the submissions, or at least the relevant parts thereof, before the decision-maker could be relevant and admissible as evidence before the reviewing court. ... [16] Secondly, the obligation is, as stated in Peko-Wallsend, to take a consideration 'into account'. How it is to be taken into account and what weight it is to be accorded in all the circumstances are matters within the authority of the decision-maker. Thus, assuming for present purposes that the assessor was bound to take into account the particular statement set out above, he could do so by dismissing it, by giving it little weight, or by giving it decisive weight. ... [26] Finally, the appellant relied upon a supposed lack of adequacy of the reasons provided by the assessor for his final determination. The relevant principles in this regard were addressed in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; 60 MVR 194 at [47]-[64] by the Court as constituted in the present matter and need not be repeated. The analysis of the relevant passage in the evidence reveals no need for any specific reference in the reasons. ... [33] The calculation of economic loss, whether in the past or for the future, involves a comparison between the actual circumstances of the claimant, as a result of the accident, and the circumstances which would probably have continued or come to pass but for the accident. On the assumption that the accident has resulted in a loss of earning capacity, the Court must also consider whether such a loss might have occurred independently of the accident. [34] That, in broad terms, is the exercise which must be undertaken in each case: Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99; 172 IR 453 at [84] (McColl JA, Mason P and Beazley JA agreeing). At least parts of that exercise are now identified in s 126 of the Compensation Act, as explained in Nominal Defendant v Livaja [2011] NSWCA 121 at [39]-[40]. [35] The conventional approach to such an exercise is to assess the earning capacity of the claimant in monetary terms prior to the accident (usually on the basis of net weekly or annual earnings) and, where there is evidence of unemployment or employment at a reduced income thereafter, to assess the quantum of the difference up to the date of hearing (past economic loss) and to project the calculation into the future (future economic loss). The latter exercise will, again conventionally, be discounted by 15% on account of vicissitudes. [36] Such calculations produce precise figures, often resulting in awards expressed in dollars and cents. However, such precision is fallacious. Varying degrees of uncertainty will attend the hypothetical aspects of the calculation, rendering any degree of precision misleading. [37] Additionally, with respect to future economic loss, the exercise requires a discounting of the calculation in order to achieve a present monetary value for the assessed loss which, it is assumed, will accrue steadily over the remaining working life of the claimant. [38] Under the general law, it has long been accepted that, at least in some cases, the assessment will involve such a degree of speculation as to render a calculation by the conventional techniques inappropriate. In those cases, a lump sum is awarded by way of 'buffer', the court being satisfied on the probabilities that a loss will be suffered or, indeed, has been suffered. [39] One of the contingencies which may not be readily assessable, thus supporting the lump sum approach, may be the question of vicissitudes. The greater the difficulty in identifying the claimant's most likely future circumstances but for the accident, the greater the difficulty in assessing the uncertainty as to whether or not those circumstances would have arisen in any event, and if so when and for how long they might subsist. Awarding a lump sum will usually incorporate the element of vicissitudes into the global assessment. [40] Under s 126 of the Compensation Act, the court is required to be satisfied that any assumptions about future earning capacity 'or other events' accord with the claimant's most likely future circumstances but for the injury. Any award is to be discounted by the 'percentage possibility that the events concerned might have occurred but for the injury'. On one view, s 126 could be read as inconsistent with the award of a buffer for future economic loss. Such an approach would force a court, satisfied on the probabilities that there has been such a loss, to make an arithmetical calculation suggesting a degree of precision which was not warranted by the circumstances. As explained in Allianz v Kerr at [30], that approach has been rejected in a consistent line of authority in this Court, which was not challenged in the present case. ... [43] The actual monetary value of the award may in some circumstances be indicative of error. Whether that is so will depend upon the circumstances of the particular case. As the respondent noted, without contradiction, the award in the present case could have been reached by calculating a loss of earning capacity of $740 net per week. If that were in fact the full extent of the claimant's earning capacity (as it might be for some claimants), error might well be demonstrated; an immediate and total loss of the earning capacity of the claimant should be stated and the amount would very likely be calculable in the conventional manner. That, however, was not this case. The claimant was in fact, at the date of the assessment, earning approximately $2,500 net per week. The indicative calculation undertaken by the respondent indicated a loss of earning capacity of approximately 23% or perhaps a little higher once vicissitudes were factored in." 27QBE submitted that the present case is quite different to Cervantes, because Dr Cervantes had completed her specialist qualifications as a Nephrologist. Had Dr Cervantes not been injured, she would have commenced private practice in that speciality and worked as a staff Nephrologist in a public hospital. The evidence before the CARS Assessor was that Dr Cervantes would have earned an extra $2,000 per week in the public hospital system but at the time of assessment she was earning $2,500 net a week. In contrast, QBE submitted that Mrs Volokhova was not working before the accident, failed the first hurdle in her legal studies when she began the LPAB course after the accident, and has not had remunerative employment since the accident. QBE also contended that there is no yardstick to compare Mrs Volokhova's future earnings because there is some uncertainty as to whether she would ever be qualified for employment in the legal profession in Australia. 28Senior counsel for QBE referred to Cervantes at [43] where Basten JA recorded the approach Dr Cervantes was to equate that the lump sum awarded for her future economic loss of $400,000 to the sum of $740 net per week. Adopting this approach for Mrs Volokhova, the lump sum of $500,000 for future economic loss equates to $750 net per week. QBE says that $750 net per week is excessive in circumstances where Mrs Volokhova is yet to begin legal studies in this country, has to pass all of the subjects and get a job and also has a residual earning capacity. This, senior counsel says is a different picture altogether from Dr Cervantes (T 26.15-20). 29There is no doubt that the factual situation between Dr Cervantes and Mrs Volokhova is different. As the Court of Appeal in Cervantes (at [43]) and the CARS Assessor pointed out, each case depends on its circumstances. One point of difference is that at the time of the assessment Mrs Volokhova was 33 years of age, whereas Dr Cervantes was 46. 30The CARS Assessor had an obligation to take a relevant consideration into account (Cervantes at [16]). While failure to refer to particular evidence can constitute a failure to take a relevant consideration into account, it is necessary for QBE to go further to establish such a ground. It needs to rely upon the reasons of the CARS Assessor to demonstrate what the Assessor had or had not taken into account. Submissions made by the parties to the CARS Assessor can also be considered. Unless QBE can establish that the material was in fact relied upon for a particular purpose, there can be no legitimate complaint that the CARS Assessor failed to take it into account: see Cervantes (at [12]). 31On the topic of future economic loss, QBE's submissions to the CARS Assessor are as follows [Ex A p 435]: "The claimant claims just over $1,000,000.00 based on a net loss of $1,200.00 net per week over 34 years which assumes that the claimant will never engage in any form of remunerative employment. This net figure is based on the projected earnings of a solicitor which assumes the claimant would have completed her degree at the Legal Practitioners Admission Board and then secured a position at a law firm. The insurer notes there is a consistently high failure rate, see enclosed results, for students who attend the LPAB and submits that employment as a solicitor required more than mere enrolment in a course, before employment as a solicitor is guaranteed. The claimant's claim for damages for future economic loss assume the claimant will never engage in any form of work and is unemployable. From a physical perspective the insurer submits the claimant is fit to work and relies on Dr Dalton in that regard. Even Dr Allnutt, qualified for the claimant concedes in his report of 24 October 2011 that while the claimant may not be able to work as a solicitor she 'could probably have worked less than 20 hours a week in a different position requiring less skill and was different.' The insurer submits that precise calculation based on the weekly figure is artificial in the circumstances of this matter and a general cushion might provide a more accurate assessment; Kmart Australia Limited v McCann [2004] NSWCA 283. A buffer may be more appropriate in light of the differing views on the claimant's capacity for work. If a buffer were awarded the insurer submits that the amount of $100,000.00 is adequate. This figure would also take account of any claim for superannuation benefits." 32Mrs Volokhova's submissions to the CARS Assessor were as follows [Ex A p 471-472]: "The claimant obtained a Bachelor of Law from Odessa National Academy of Law in 2000. She reports in her statement of 13 June 2013 that she was a conscientious student who enjoyed learning. The claimants extract translation of education certificate illustrates that she graduated from her degree with distinction. The references from Svetlana Shagovets and Ella Katyeva establish that the claimant had a broad legal experience and was well regarded in the legal areas in which she worked. The Claimant in her statement of 13 June 2013 notes at paragraph 22 that: 'Prior to commencing the Legal Profession Admission Board course I examined the subjects and the curriculum there generally and formed an opinion that I would have no difficulty completing the course having regard to my study of law in the Ukraine and my work as a lawyer in that country.' The documents from the Legal Profession Admission Board establish that in term two the claimant failed the exam, which occurred on 7 September 2010. The claimant's inability to pass the exam in September 2010 is to be contrasted with her ability in relation to the Diploma of Financial Services which she undertook in 2007 wherein the claimant had no difficulty in passing those subjects. The claimant submits that, but for the subject accident she would have successfully completed the LPAB course. Both her academic results and the favourable accounts of her post-graduation legal career point to the fact that she had the intellectual ability and the application to succeed in her studies. It is also of note that the claimant's ability to complete the Diploma of Financial Services reflects the fact that she had excellent command of the English language at the time when she undertook the course. The claimant submits therefore that the assessor would find on the balance of probabilities that she had sufficient ability and the application to complete the LPAB course and become a legal practitioner. Dr Allnut in his report of 24 October 2011 at page 7, paragraph 8 notes: 'Post traumatic stress disorder with anxiety and depression can impact on a person's capacity for adequate concentration, energy levels, motivation, interest and underlying drive to pursue any form of study; She notes that in particular she had difficulty with concentration and can only read for up to 10 minutes before she loses focus; Given her experience of post-traumatic stress disorder and depressive symptoms I believe it was reasonable in light of her disabilities for her to have discontinued studying.' Ms Carol Lausch in her report dated 14 July 2011 at paragraph 7 47 notes: 'Ongoing physical impairment and psychological sequelae arising from the injury have precluded Mrs Volokhova from resuming her studies to obtain the necessary qualifications to pursue a legal career in Australia'." 33The CARS Assessor's reasons in relation to the assessment of future economic loss are set out at [58] - [63]. They are: "[58] Mrs Volokhova's submissions assume completion of the LPAB course and the practical legal skills course by 2015 would have occurred but for the accident ... [H]er original submissions [list] a list of disabilities, which she says, would preclude her working at all. Wage loss is allowed to age of 70 but deferred for two years to commence in 2015. An average annual gross salary of $107,000 has been used based on the Hudson Legal Salary Insights 2012 document; this is the figure of the average of a four to five year experienced solicitor. It is stated by using this figure of a net of $1500 per week, rather than increasing the same for the more experienced positions, allowance has been made for 'residual earning capacity after 4 years as a solicitor'. I do not understand this logic. The Hudson charts show much lower starting salaries in year one in all areas they list such as boutique, mid tier, top tier and government. They don't consider the fees in suburban firms. So by following Mrs Volokhova's submissions, choosing 4-5 year experience from the start would give an over estimate in years 1 up to 4. There is no guarantee that the experience gained overseas would assist her employment prospects. [59] There are many uncertain factors including when Mrs Volokhova would have finished the LPAB course uninjured, which in turn depends on the number of subjects undertaken each semester and her success rate. If she completed that course, it is also not certain when she would have obtained employment as a solicitor. If she did secure such employment is not clear what type of firm this would have been in. It is also not certain how she will respond to future treatment. There is a possibility that she may recover sufficiently to recommence studies, or alternatively undertake some form of work involving lesser skill as referred to by Dr Allnutt or alternatively she may not recover at all, although I consider the later to be the less likely outcome. It is not yet four years post accident, she has not had 'optimal treatment', there are some encouraging signs such as being able to obtain a driver's licence; albeit with the restrictions to which I have referred previously. As I have said Mrs Volokhova presented to me as an intelligent, articulate person. She is young and has much to offer. She does not have severe physical injuries. However Assessor Jones and Dr Allnutt have diagnosed a significant psychological injury. [60] S126 of the Act requires a consideration of the assumptions of a claimant's most likely future circumstances but for injury and for me to state the percentage 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. However there have been many cases where the Court of Appeal has found the use of a 'buffer' does satisfy the requirements of s126: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 (Kerr). In Kerr at [35] it was stated: 'However, as explained by Giles JA in Penrith City Council at [5], adopting 'the broad approach of a buffer' means that there is no question of a percentage adjustment, so that for the purposes of s 126(2), the adjustment is nil.' [61] The same Court of Appeal bench in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244 (Cervantes) affirmed the principles it stated in Kerr. In Cervantes the injured claimant was a physician with speciality in renal disease and the Court found a challenge to the buffer of $400,000, was not erroneous. Obviously each case turns upon its own particular facts. [62] In Mrs Volokhova's case I accept that her most likely circumstances prior to the accident would have been that she would have intended to undertake at some future time after the accident the necessary study to enable her to practice as a solicitor. However because of the uncertainties that I have referred to above I find the appropriate method to assess her loss is by way of a buffer. I consider the insurer's suggested buffer is too low. The amount sought by Mrs Volokhova was $1,001,348.41 and did not involve the use of a buffer but makes assumptions, which I consider are really just as speculative. It is apparent from the calculation they have used only the 'usual' 15% reduction for vicissitudes. As the Court of Appeal noted in Cervantes at [41]: 'As already noted, if a precise calculation were to be mandated it could no doubt be undertaken. In each case the result will be precise, being a monetary figure; in one case there will be a false impression as to accuracy, whereas in the other inaccuracy will, with justification, be conceded.' [63] I note Macfarlan JA in Kerr at [69] referred to, at times, an Assessor having to make 'an intuitive assessment of the claimant's possible future loss.' I find myself in this situation and I am satisfied the appropriate buffer in this case is $500,000 including loss of superannuation." [CARS Assessor's emphasis] 34Senior counsel for QBE submitted that the CARS Assessor was only certain that Mrs Volokhova's Ukrainian law degree was not recognised in New South Wales, but she was uncertain what the comparative difficulty between the Ukrainian law degree and the LPAB course was. 35According to QBE, the CARS Assessor had not at all, or adequately, taken into account uncertainties facing Mrs Volokhova at the time of the accident. QBE contended the following are uncertainties: how long Mrs Volokhova would take to complete the LPAB course; whether she would have passed the course; the comparative difficulty of the New South Wales course compared to the course that Mrs Volokhova studied in Ukraine; if Mrs Volokhova had of been able to become qualified to practice law in New South Wales, whether she would have been able to gain employment as a solicitor, or whether she would have found employment in some other area; and how long it would take for Mrs Volokhova to obtain employment. 36QBE also contended that the following circumstances were relevant to the award of a buffer: (i) The fact of Mrs Volokhova's legal qualifications in the Ukraine; (ii) The fact that those qualifications are not recognised in New South Wales; (iii) Mrs Volokhova's admission before the CARS Assessor that her focus after coming to Australia was on her role as a mother of young children; (iv) The fact that Mrs Volokhova had not commenced legal studies in New South Wales, or engaged in remunerative employment, up to the time of the accident; (v) The fact that Mrs Volokhova did not enrol in the LPAB course until early 2010, after the accident; (vi) The fact that Mrs Volokhova failed the first examination she attempted, in Legal Institutions (making due allowance for the effects of her physical and psychological injuries); (vii) The fact that Mrs Volokhova had to successfully complete 20 subjects in order to obtain her legal qualifications in New South Wales; (viii) The uncertainty as to whether Mrs Volokhova would have obtained legal qualifications in New South Wales, had the accident not occurred; (ix) The uncertainty whether Mrs Volokhova would ever have obtained employment in the legal profession, had the accident not occurred; (x) If Mrs Volokhova would have obtained legal qualifications and employment but for the accident, when those events would have occurred; (xi) If Mrs Volokhova would have obtained legal qualifications and employment, her earnings in that employment; (xii) Whether Mrs Volokhova will, in the future, recommence her legal studies; (xiii) If she does recommence her legal studies at some time in the future, whether Mrs Volokhova will successfully complete those studies and obtain employment in the legal profession; (xiv) The extent to which Mrs Volokhova is likely to recover from her psychological injuries in the future. 37QBE claimed that the CARS Assessor failed to take into account adequately or, in some instances, all these relevant considerations as to the assessment of damages for future loss of earnings and that this resulted in the amount awarded being outside the range of sound discretionary judgment, and was manifestly excessive. 38Senior counsel for Mrs Volokhova submitted that in referring to these 14 factors, QBE is seeking to argue, in part, a new case with the benefit of hindsight that the CARS Assessor should have "adequately" taken those factors into account. He contended that those submissions are merits submissions and it is not appropriate to raise such merit submissions in judicial review proceedings. Further, senior counsel for Mrs Volokhova submitted that QBE's overall case is seeking a detailed examination and analysis of the CARS Assessor's reasoning, which he says is not permissible: see Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24, Attorney-General (NSW) v Quin (1990) 170 CLR 1, and Minister For Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259. 39According to Mrs Volokhova, the assertion that the sum of $500,000 awarded for future loss of earnings is manifestly excessive, does not amount to an error of law on the face of the record. She submitted that in judicial review proceedings, a vitiating legal error or jurisdictional error must be found. Mrs Volokhova does not accept that the amount was excessive and drew to this Court's attention to the fact that at the conference she sought $1,001,348.41 for the award of future economic loss, based upon the Hudson Legal Salary Insights 2012. 40These circumstances outlined earlier by QBE do not refer to those considerations that are favourable to Mrs Volokhova which had been taken into account by the CARS Assessor. These included that Mrs Volokhova is young and has much to offer. She presented at the assessment as intelligent and very articulate. Prior to the accident, Mrs Volokhova had obtained a law degree and worked as a practising solicitor for about three years in a varied legal practice in the Ukraine. Her employer thought highly of her capabilities. Shortly after she arrived in Australia, she undertook and completed a Diploma of Financial Services (Banking), having studied 12 subjects, 4 with distinction. After the accident Mrs Volokhova had been able to obtain her drivers licence [59]. I should add that there was no suggestion that the future economic loss would have occurred independently of the accident. The CARS Assessor determined that it was most likely Mrs Volokhova would have intended to take, at some future time after the accident, the necessary study to enable her to practice as a solicitor [62]. 41The buffer approach was adopted by the CARS Assessor for the assessment of future economic loss because it was the most appropriate one where there are a number of uncertain factors. The CARS Assessor was of the view that Mrs Volokhova's most likely circumstances prior to the accident would have been that she would have intended to undertake at some future time after the accident the necessary study to enable her to practice as a solicitor. [Emphasis added]. At [59], the CARS Assessor took into account a number of uncertain circumstances. They include most of the circumstances referred to by QBE in [36] of this judgment. The submissions made by the parties to the CARS Assessor do not refer to the other circumstances that QBE claims were relevant to the assessment of future economic loss. After the accident occurred, it is not known if Mrs Volokhova would recommence her legal studies. QBE says that the CARS Assessor should have considered that if Mrs Volokhova were to recommence her legal studies at some time in the future, firstly, whether she would have successfully completed those subjects; secondly, whether she would have obtained employment in the legal profession; and finally, the extent to which she would recover from her psychological injuries in the future. While there is some speculation involved in assessing the appropriate amount of a buffer, the CARS Assessor was not obliged to take into account matters that involved conjectures based upon the identified uncertainties. 42In my view, the CARS Assessor did not fail to take into account the relevant considerations. Counsel for Mrs Volokhova had sought the sum of $1,001,348.41, based on a net loss of $1,500 per week for future economic loss until she reached the age of 70 on the basis that she would never engage in remunerative employment. Due to the number of uncertainties, the CARS Assessor was unable to be specific as to what work Mrs Volokhova could undertake after the accident. The CARS Assessor also took into account that before the accident Mrs Volokhova intended to undertake study to qualify as a solicitor, but the CARS Assessor did not find as a certainty that Mrs Volokhova would qualify as a solicitor. The CARS Assessor outlined the relevant considerations that she took into account and determined that the buffer for future economic loss should be reduced. 43As discussed earlier in this judgment, the circumstances of Dr Cervantes and Mrs Volokhova differ. Each case depends on its facts. The similarities are that they are both female, injured in motor vehicle accidents and were awarded a substantial amount by way of buffer for future economic loss. 44After the CARS Assessor took into account the relevant considerations, both favourable and unfavourable, to Mrs Volokhova she reduced the amount claimed by Mrs Volokhova for future economic loss to $500,000. In these circumstances the award for this sum for future economic loss is not excessive. This ground of judicial review fails.
Ground 2: Failure to comply with s 126 of the Act 45QBE submitted that the CARS Assessor did not comply with s 126 of the Act, in that she did not state the assumptions regarding Mrs Volokhova's earning capacity. QBE conceded that s 126 does not preclude an award of damages as a lump sum or buffer: see Penrith City Council v Parks [2004] NSWCA 201 at [58] and that the CARS Assessor was not required to adjust the damages for the percentage possibility that the events concerned might have occurred but for the injury, the relevant percentage was nil: see Penrith City Council v Parks per Giles JA at [5]. 46QBE submitted that the circumstances in the present case required the CARS Assessor to explain her assumptions relating to Mrs Volokhova's probable future economic circumstances in much more detail. According to QBE the CARS Assessor should have made explicit her assumptions regarding when it was likely that Mrs Volokhova would have commenced her legal studies if the accident had not occurred; how long it would have taken for her to successfully complete her studies; when she was likely to find employment as a solicitor; the nature of the employment Mrs Volokhova would find; and the potential salary range available to her had she obtained such employment. QBE submitted that these were required to properly understand why the CARS Assessor awarded the amount that she did to Mrs Volokhova. 47Senior counsel for Mrs Volokhova submitted that it would be too onerous, even for a judicial officer, to be required as a matter of law to address each of these factors and to provide reasons for each. Senior counsel further submitted that it is not an exercise required when one is making a determination based on a buffer and referred to Allianz Australia Insurance Ltd v Sprod [2012] NSWCA 281; (2012) 81 NSWLR 626. 48Senior counsel for Mrs Volokhova submitted that the CARS Assessor provided reasons for her decision and applied the correct statutory test in accordance with s 126 of the Act. 49Section 126 of the Act sets out how future economic loss is to be assessed. It relevantly reads: "126 Future economic loss-claimant's prospects and adjustments (cf s 70A MAA) (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 ..." 50In Allianz Australia Insurance Ltd v Sprod at [30], [37] and [42] Barrett JA stated: "[30] In a true 'buffer' case, the obligations imposed by s 126 upon the assessor may be discharged by much more generalised statements: see [Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302] at [69] per Macfarlan JA. But there will still be, of necessity, some assumptions. Assumptions as to life expectancy and likely remainder of working life are examples, even if circumstances mean that the assumptions are necessarily somewhat impressionistic. But if that is the quality of the relevant assumption, it is still possible for it to be stated, if only in very general terms, for example, that remaining working life has been assumed to be a minimum of five years and a maximum of 20 years. That, while it would do little to elucidate any basis of calculation, would serve to accentuate one aspect of the uncertainty that formed the very basis for resort to the evaluative approach of 'buffer'. ... [37] ...Once the assessor embarked on a process of calculation, the duties imposed by s 126 were enlivened (they would also have been enlivened, but required potentially very much less by way of explanation of assumptions, had the circumstances exhibited such uncertainties and imponderables as to justify the broad evaluative 'buffer' approach). ... [42] ... [I]t is important to emphasise that nothing I have said is intended to suggest that assessors must prepare elaborate statements of reasons and explanations of assumptions. They must, of course, work on the basis of facts but an important element of the statutory scheme is the deployment of the expertise and experience of assessors as specialists. They are not meant to act as if they were judges. Their task is only to assess the amount that 'a court would be likely to award' as damages. The function is no more than to estimate and to predict likelihood. There is a clear place for informed intuition and speculation. The purpose of s 126, a provision directed at judges and applied in a derivative way to assessors, is to produce a reasonable degree of transparency as to assumptions and the reasons for them so that those interested in the assessment may have an insight into the way in which the task of assessment was performed. The section recognises that assumptions are necessary and appropriate. It does not seek to define aspects that may or may not properly be made the subject of assumptions about future earning capacity. Its aim is merely to ensure that an insight can be obtained into the content of the assumptions and the reasons for their adoption." 51Senior counsel for Mrs Volokhova submitted that the CARS Assessor discharged her duties under s 126. Senior counsel contended that the CARS Assessor acknowledged at [59] that "there are many uncertain factors"; that overall the CARS Assessor was impressed with Mrs Volokhova's presentation and was satisfied that "she is young and has much to offer"; she gave due consideration to all the uncertainties unique to Mrs Volokhova's position, including but not limited to, the fact that "there is no guarantee that the experience gained overseas would assist her employment prospects"; whether or not she would have finished the LPAB course if uninjured; if she completed the course whether she would be able to secure employment as a solicitor; and if she practiced as a solicitor, the nature of the firm. Mrs Volokhova submitted that the CARS Assessor had turned her mind to these issues, exercised her discretion as to the weight to place on these uncertainties, and made a calculation. 52Mrs Volokhova also submitted that in the reasons given under s 94(4) of the Act, the CARS Assessor considered the evidence that was before her, provided sufficient and lawful reasons for deciding the sum of the buffer and openly acknowledged that it was open to her to make an "intuitive assessment" of the head of damage. Finally, Mrs Volokhova submitted that the CARS Assessor correctly cited Macfarlan JA in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302 at [69]. 53Under s 126 of the Act, the Court is required to be satisfied that any assumptions about future earning capacity "or other events" accord with the claimant's most likely future circumstances but for the injury. As Basten JA stated in Cervantes at [40] on one view, s 126 could be read as inconsistent with the award of a buffer for future economic loss. Such an approach would force a court, satisfied on the probabilities that there has been such a loss, to make an arithmetical calculation suggesting a degree of precision which was not warranted by the circumstances. 54The CARS Assessor made a finding that Mrs Volokhova would have had a future earning capacity prior to the accident but did not accept it was a certainty that she would have worked as an employed solicitor as she had claimed. After the accident, the CARS Assessor made a finding there was some possibility that Mrs Volokhova may recover sufficiently to recommence studies or alternatively, undertake some form of work involving a lesser skill. The assessment of future economic loss was made on that basis. In my view, the CARS Assessor has complied with s 126(1) and (3). Section 126(2) does not have application here. The CARS Assessor applied the correct test in accordance with s 126 of the Act. 55This ground of judicial review fails.
Ground 3: Failure to give adequate reasons for the award for future loss of earnings 56QBE contended that the CARS Assessor's reasons failed to address adequately, or in some instances at all, the many uncertainties regarding Mrs Volokhova's career path. It submitted that the reasons do not explore that Mrs Volokhova may have proceeded through the LPAB course slowly having regard to her preference to care for her young children. 57Senior counsel for Mrs Volokhova referred to the decision in Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; 88 ALJR 52 at [55] where the High Court set out the minimum standard for written reasons in the context of a Victorian Medical Panel determination made under s 68(2) of the Accident Compensation Act 1985 (Vic) where it was held: "The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law." 58Senior counsel for Mrs Volokhova submitted that even if this Court came to the conclusion that the CARS Assessor erred in law for failure to provide adequate reasons, it does not follow, as a matter of statutory construction, that such error meant the decision is invalid and should be set aside. However, senior counsel conceded that there are some cases in this State that support the notion that a failure to provide adequate reasons is sufficient to found an error of law. However, it was contended that there are cases that do not support the proposition and referred to VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297; (2003) 58 NSWLR 631 at [94]-[116] per Beazley JA (with Spigelman CJ agreeing at [2]); Kennedy v Australian Fisheries Management Authority [2009] FCA 1485; (2009) 182 FCR 411 at [55] to [75] (Tracey J), where the Federal Court reviewed the Federal and High Court authorities on the question discussing in particular, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Palme [2003] HCA 56; (2003) 216 CLR 212. 59Senior counsel submitted that a judicial review applicant needs to demonstrate that the provision of reasons was a "condition precedent" to the making of the decision (Palme at [55]). Mrs Volokhova contended that in this case, it cannot be said that the provision of adequate reasons was a condition precedent to the determination by the CARS Assessor. Senior counsel further asserted that it was open to QBE to seek to compel the CARS Assessor to provide further reasons for her decision, which was not sought in the summons and that it could have been sought following Palme (McHugh J at [57]), Gleeson CJ, Gummow and Heydon JJ at [41]). 60A CARS Assessor is to act with as little formality as the circumstances of the matter permit, without regard to technicalities and legal forms (New South Wales, Motor Accidents Authority, CARS Guidelines (1 October 2008) ("Guidelines") cl 16.3) and is to take into account the objects of the Act and Guidelines at all times (Guidelines cl 16.4). These objects stress the minimisation of formality and technicality and the desirability of early resolution (s 5 of the Act, Guidelines cl 14.1-14.2). A CARS Assessor must give sufficient reasons to enable the parties to understand the basis on which damages under a particular head were awarded. However, QBE submitted that sufficient reasons were not given and that the CARS Assessor made no attempt to justify the extraordinarily high award of damages, nor provide any guidance, instruction or information at all as to how or why a figure of that magnitude was selected.
The statutory provisions and Guidelines 61The relevant provisions for giving reasons are set out in s 94(4) and (5) of the Act and Clause 18.4 of the Guidelines. Section 94(4) and (5) relevantly reads: "94 Assessment of claims ... (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. ..." 62Clause 18.4 of the Guidelines reads: "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." 63QBE referred to Insurance Australia Limited trading as NRMA Insurance v Helou [2008] NSWCA 240; (2008) 51 MVR 414 where Campbell JA (with whom Allsop P and Bell JA agreed) stated at [61]-[62]: "[61] The obligations of an assessor to give reasons is qualified by the requirement, in section 94(5) MAC Act, that it be a 'brief statement', and by the requirements of clause 16.3 of the Claims Assessment Guidelines. When the MAC Act and the Guidelines makes this express provision concerning the nature of obligations of an assessor to give reasons, they differ from the Workplace Injury Management and Workers Compensation Act 1998 provisions concerning medical assessments that were considered by this Court in Campbelltown City Council v Vegan, where the extent of the obligation to give reasons needed to be derived as a matter of implication from the statute. [62] When, for the reasons I have already given, the assessor has performed the task required of him to 'assess the damages', and when his reasons identify the various heads of damage that he has awarded, and how he has arrived at the numbers attributed to each of those heads of damage, his statutory obligation to give reasons has been performed." [Emphasis original] 64Mrs Volokhova submitted that having regard to the "intuitive assessment" the CARS Assessor had to determine (Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302 at [69]) and the "inherent imprecision" in assessing the value of future economic loss (Kerr at [58]), the CARS Assessor's reasons when read as a whole and read fairly do set out sufficient reasons for her determination. 65The CARS Assessor made findings in relation to Mrs Volokhova's qualifications and working history prior to the accident and her medical and psychological conditions. The CARS Assessor considered how these factors impacted on Mrs Volokhova's ability to pass the LPAB course and her future earning capacity. As there were a number of uncertain factors, the CARS Assessor was not in a position to make specific findings as to how much per week Mrs Volokhova would have earned both prior to and after the accident. The CARS Assessor referred to the relevant law, Kerr and Cervantes. It is my view that the CARS Assessor complied with her obligations pursuant to s 94 of the Act and Clause 18.4 of the Guidelines. 66The result is that all of the plaintiff's ground of fail. The summons filed 1 October 2013 is dismissed. 67Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendant's costs as agreed or assessed.
The Court orders that: (1) The summons filed 1 October 2013 is dismissed. (2) The plaintiff is to pay the first defendant's costs as agreed or assessed.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 June 2014
QBE Insurance (Australia) Ltd
Volokhova
(2006) 47 MVR 46
(2012) 61 MVR 443
(2012) 83 NSWLR 302
(2012) 81 NSWLR 626
(1990) 170 CLR 1
(2008) 51 MVR 414
(2009) 182 FCR 411
(1986) 162 CLR 24
(1996) 185 CLR 259
(2003) 216 CLR 212
(2003) 58 NSWLR 631
[1996] HCA 6