JUDGMENT
1 HIS HONOUR: As at 6 May 2001, the first defendant was unemployed. Some months earlier he had been employed as a machine operator. Prior to 6 May 2001, he had been looking for work. At the time, there existed quiescent degenerative changes in his cervical region.
2 On 6 May 2001, he was involved in a motor vehicle accident in respect of which the plaintiff had liability. He suffered, inter alia, substantial aggravation of those changes and an annular tear and disc protrusion in the lumbar spine.
3 On 15 July 2002, the first defendant commenced working as an apprentice motor mechanic. He was attending a course at TAFE and had planned perhaps to open his own business.
4 On 25 June 2003, whilst working as an apprentice he suffered a crush injury to his left non-dominant hand. Thereafter, he did not return to his employment and has not worked since.
5 He made a claim pursuant to Chapter 4 of the Motor Accidents Compensation Act (1999) (the Act). The claim came to be assessed by a CARS Assessor (Helen K. Wall). Liability was not in dispute. There was an assessment conference on 18 November 2005. Reasons for decision were given. The Assessor made an assessment of damages in the sum of $241,601.00 (including the sum of $53,338.16 for past economic loss and the sum of $141,525.00 for future economic loss). On 6 December 2005, she issued a certificate to that effect.
6 The plaintiff has brought proceedings in this Court. The claim that is now made is as set forth in the amended summons filed in Court on 16 October 2006 (which was the date of the hearing of the proceedings). In substance, the plaintiff seeks the setting aside of the assessment and the certificate. The plaintiff and the first defendant are the participating parties. The other defendants have filed a submitting appearance.
7 The plaintiff claims that there has been error of law that appears on the face of the record and seeks judicial review pursuant to s69 of the Supreme Court Act 1970.
8 The error is said to arise in respect of the assessment of both past economic loss and future economic loss.
9 In assessing past economic loss, the Assessor made an assessment in respect of three periods. She came to be satisfied that the claimant was totally incapacitated because of the injuries arising from his motor vehicle accident for the period from 13 May 2001 to 14 July 2002. She allowed $553.24 net per week (this being an agreed rate for the earnings of a machine operator) and allowed a total sum of $33,747.64. For the period 15 July 2002 to 25 June 2003, she accepted that the claimant was working within his limitations (he was still on restricted duties) and could not lift heavy objects or do too much bending. She allowed $113.24 net per week (this being the difference between $553.24 net per week and the $440.00 net per week he was receiving as an apprentice) and allowed the total sum of $5548.76. For the period from 26 June 2003 to the date of the assessment, she assessed loss also in the sum of $113.24 and allowed a total in the sum of $14,041.76.
10 In her reasons for her decision, the following appears in relation to the assessment of future economic loss [at pp 7-8]:-
"The claimant intended to become a motor mechanic and commenced the course which would lead to that qualification and appeared to have been coping with the duties of practical work of mechanics as well as attending the TAFE course, albeit with restrictions on lifting and bending prior to his hand injury in June 2003.
As indicated above his wage loss which I am satisfied reflected his true earning capacity prior to the hand injury was $113.24 per week.
In consideration of the requirements of section 126 of the Motor Accident Compensation Act, 1999 I note the following issues in relation to future economic loss of the claimant.
i. But for the injury sustained in the motor vehicle accident, the claimant would have continued his training at TAFE as an apprentice mechanic and qualified as a apprentice and maybe eventually open his own business. However, this plan has been affected by the injury to his left non-dominant hand in June 2003. This injury has rendered him totally incapacitated as opposed to partially incapacitated before that injury. I therefore must make a deduction and allow for the fact that the hand injury has caused a fairly significant diminution in his earning capacity. However doing the best I can on all of the medical reports before me in relation to the motor vehicle accident claim, I am satisfied that the injuries arising from the motor vehicle accident claim were permanent in nature and therefore would have given a substantial diminution in earning to this claimant for many years to come. It is impossible to be mathematically precise in the number of years he would suffer that incapacity. I further take into account that but for the motor vehicle accident, the claimant would have gone on to finish his course at TAFE and become a mechanic and maybe eventually open his own business. There was no evidence before me to suggest otherwise but I have to take into consideration that the left hand injury played a major part in the prevention of that course of events and, doing the best I can on the figures, one would assess that the hand injury has had at least 50-60% of an impact on prevention of that course.
ii. The pre-hand injury economic loss was $113.24 per week and on the basis that the claimant more likely than not would have gone on to finish his course and become an apprentice and possible open his own business, I allow the sum of $300.00 for 15 years on the 5% tables with a 15% deduction as a reasonable amount to compensate the claimant for future economic loss arising from the motor vehicle accident ($300.00 x 555.0 - 15%), $141,525.00 ."
11 The plaintiff complains that no past economic loss should have been awarded after June 2003. He also complains that no account was taken for the fact that the first defendant was unemployed as at the date of the motor vehicle accident.
12 The outline of submissions made on behalf of the plaintiff sets out the complaints as to the assessment as to future economic loss as follows:-
"36. The claims assessor/second defendant has, with respect, confused the injury sustained in the motor vehicle accident with the injury sustained to the first defendant/claimant's left hand in June 2003.
37. This is made clear in the paragraph numbered (i) on page 7 of the reasons, where the claims assessor/second defendant says twice that, but for the motor vehicle accident, the claimant would have gone on to finish the course at TAFE and become a mechanic and maybe eventually open his own business.
38. The true position was that, but for the injury to the first defendant/claimant's left hand, the claimant would have continued his training at TAFE and qualified as an apprentice and maybe eventually opened his own business.
39. Alternatively, no reason is given for switching from the pre-hand injury economic loss of $113.24 per week to $300 per week."
13 In essence, the plaintiff contends that the Assessor misapplied or misunderstood statutory criteria (in particular, what are said to be causation requirements to be found in sections 94, 124, 126 and 130 of the Act). Examples are "because of the injury" and "as a consequence of a motor accident".
14 The Act introduced a new regime for the providing of compensation for injuries sustained in motor accidents. The objects are set forth in section 5. At this stage, it is convenient to look at certain of the provisions contained therein.
15 Chapter 4 of the Act (sections 66-121) is headed "Motor accident claims". Part 4.4 thereof is headed "Claims assessment and resolution". It contains definitions and an application provision (which section 89 specifies as being to "any claim"). I digress to observe that "claim" is defined in section 3 as a claim for damages in respect of the matters prescribed therein. Division 2 thereof is headed "Assessment of claims". The Division places responsibility on the Principal Claims Assessor for making arrangements as to the Claims Assessor who is to assess any particular claim.
16 Section 94 is in the following terms:-
"(1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of:
(a) the issue of liability for the claim (unless the insurer has accepted liability), and
(b) the amount of damages for that liability.