The assessor's reasons
6The assessor found the claimant to be a credible, reliable witness who gave her account without embellishment (p3 [7]). She suffered severe orthopaedic injuries involving multiple fractures to both her left and right legs, a left shoulder injury, soft tissue injuries to her elbows, face, chest and legs, a sternal injury and "consequential psychiatric illnesses, diagnosed as a post-traumatic stress disorder and a depressive disorder".
7The assessor described the course of the treatment and rehabilitation of the claimant as "a lengthy, harrowing experience". She underwent multiple operations during initial treatment as an inpatient for 55 days. She had a further 3 months of inpatient treatment at the Victorian Rehabilitation Centre. More surgery was later undertaken for the removal of the plates and screws by which the fractures of her right and left feet had been fixed. She received extensive psychiatric treatment.
8The assessor rejected a claim that the claimant incurred a traumatic brain injury in the car accident resulting in cognitive deficit, but he accepted that the long-term prognosis of the psychiatric disabilities is guarded. The psychiatric illness was "significant" and (along with the physical injuries) compromised her leisure activities.
9The assessor accepted that the claimant's physical injuries were also significant and that the injuries to her left and right feet were severe. They continued to be symptomatic and disabling "which as a matter of likelihood will permanently cause her pain, restriction of movement and mobility that will impact upon most aspects of her life"(p4 [14]). Her previous leisure activities of golf and strenuous bushwalking are now beyond her. The assessor accepted the claimant had difficulty sleeping and the level of pain was such as to require opiate based treatment. The right foot injury is developing post-traumatic arthritic change, which will deteriorate inexorably, and the resulting increasing pain levels will necessitate surgery to fuse the joints in her foot.
10When dealing with the issue of he claimant's life expectancy, the assessor recorded that she had been born on 26th December 1936, was 72 years of age at the date of accident and 77 at the date of his assessment. In accordance with the median life expectancy tables conventionally used in personal injuries assessments, a woman of her age had a "statistical life expectancy of a further 13.3 years" (p5 [17]). However, there was a dispute between the medical experts about whether reduction in this should be made in the plaintiff's case because of her lengthy history of cigarette smoking and her cardiac disease resulting in a "double by-pass operation". These considerations led Dr Slezak, for the insurer, to estimate that the claimant was unlikely to survive beyond 7 to 9 years.
11As against Dr Slezak's opinion, Dr Burdon, a specialist respiratory physician who had arranged for lung function tests to be carried out, expressed a more favourable view. The lung function tests showed normal spirometry diffusing capacity. He was of the view there was no significant lung disease, surprising as this result was given her history of cigarette smoking. In his opinion, the claimant's life expectancy had not been reduced. The assessor preferred the view of Dr Burdon. He rejected Dr Slezak's opinion because he did not refer to Dr Burdon's report and the respiratory function test results. Moreover, Dr Slezak expressed himself as follows:
On the (limited) medical evidence as available to me, I would assess [the claimant's] life expectancy to be a further 7 - 9 years.
At p6 [20] of his reasons, the assessor said:
I am of the view, shared by Dr Slezak, that his opinion is of limited utility. He did not have available to him the lung function evidence and opinion of Dr Burdon, which I note was provided well before Dr Slezak's examination. In such circumstances I prefer the opinion of Dr Burdon. It should be borne in mind that the average life expectancy is just that, an average. There are unders and overs. (original emphasis) (minor typographical error corrected).
12The insurer says that this finding is erroneous constituting error of law on the face of the record because the assessor misstated the effect of Dr Slezak's opinion. Alternatively, this was jurisdictional error.
13In assessing damages for non-economic loss the assessor rejected the reliance by the insurer on Reece v Reece (1994) 19 MVR 103, and by reference to Varga v Galea [2011] NSWCA 76 at 73 said: "age is but one factor in the total equation" (p12 [28]) (there is some duplication of paragraph numbering in the assessors reasons). Age was relevant because it informs the estimate of the "period during which the person shall endure the pain, suffering and loss of amenities of life". The assessor referred to "the intensity of the claimant's extreme level of suffering" during the initial period, her circumstances during the five years since the accident, and the consideration that he had assessed her life expectancy to be a further 13 years.
14He said at pp12-3[29] - [30]:
The assessment of damages for non-economic loss entitlement is one which should be governed by reference to the values of today. It should be noted that the Act came into operation in October 2009 [should be 1999], and the maximum amount at that point of time allowed for non-economic loss damages was $260,000.00. It is now some $477,000.00, an increase of 83%. It is clear that the Act provides a mechanism whereby the maximum amount allowable for non-economic loss damages is increased every year to accommodate for the changing values of the dollar, CPI, wage rates, all of the extraneous indicia which testify to the diminishing purchasing power of the dollar. It is in my view a commonly disregarded intrinsic principle that the assessment of common law awards of general damage must be made in the "money of today", that is at the time of the award of damages. In Lee Transport Company v Watson (1940) 64 CLR 1 at 14, Dixon J stated that-
".....the figures to which former times courts grew accustomed, ought not govern out notions of what should be awarded in the terms of money of today with its reduced purchasing power."
I have had regard to the submissions by both parties, noting that as against the insurer's submission, the claimant proposed a figure of $260,000.00. I have had regard to the claimant's age, the intensity of her pain and suffering, the likelihood of future surgery and what she has lost by reference to her very active lifestyle that she had before this accident. I am of the view that an appropriate figure for non-economic loss damages is $240,000.00
15In making this assessment, the insurer said that the assessor erred in principle in failing to apply Reece v Reece; took into account an irrelevant consideration, being that the cap provided for in s 134 of the Act had increased by 83 per cent since the commencement of the Act in October 1999; by providing inadequate reasons for his assessment; and making an assessment which was "manifestly unreasonable" in the administrative law sense.
16The claimant argued that the assessor did not fall into error; if he did the errors were purely factual and within jurisdiction; Reece did not apply to the assessment of non-economic loss under the Act, rather common law principles applied; the assessor gave adequate reasons to support his assessment of non-economic loss; the assessment was not disproportionate to the claimant's injuries and disabilities as he found them to be; the passage at p12 [29] of his reasons did no more than correctly direct himself that the assessment of damage was to be made in today's money, and to this extent, the changing value of money over the previous years was relevant especially when supported by the assessor's reference to Watson.