Zurich Australia Insurance Ltd v Roumanos

Supreme Court of NSW|2013-12-20|Before: Garling J

Judgment 1On 21 August 2009, Mr Michael Roumanos ("the claimant") was injured in a motor vehicle accident which occurred at about 11.40am on Mona Vale Road, Ingleside, NSW. He was driving a truck at the time, when a motor vehicle, the owner and driver of which was insured by Zurich Australia Insurance Ltd ("the insurer"), failed to stop and give right of way to the claimant's truck and a collision occurred. 2The insurer admits that it is liable for the accident, and for the injuries sustained by the claimant. 3The claimant lodged a claim pursuant to the Motor Accidents Compensation Act 1999 ("MAC Act") for damages. 4That claim was assessed in accordance with the process determined under the MAC Act by an assessor, Mr Alex Bolton ("the assessor"), who issued, on 16 May 2013, a Certificate in accordance with s 94(4) of the MAC Act setting out his findings on the assessment, together with his reasons for his decision. 5By a Summons filed on 28 June 2013, the insurer as plaintiff claims that the decision of the assessor ought be set aside, and an order ought be made remitting the claimant's application back to the Motor Accidents Authority of NSW for a fresh assessment. 6The claimant is named as the first defendant to the Summons, and is the only active party in the proceedings, other than the insurer. The assessor was named as the second defendant, and the Motor Accidents Authority of NSW was named as the third defendant to the Summons. Both of these parties have filed a submitting appearance. They took no active part in the proceedings.

Summons 7The Summons seeks four orders, each relying on the Court's supervisory jurisdiction contained in s 69 of the Supreme Court Act 1970. 8That section is in the following form: "69 Proceedings in lieu of writs (1) Where formerly: (a) the Court had jurisdiction to grant any relief or remedy or do any other thing by way of writ, whether of prohibition, mandamus, certiorari or of any other description, or (b) in any proceedings in the Court for any relief or remedy any writ might have issued out of the Court for the purpose of the commencement or conduct of the proceedings, or otherwise in relation to the proceedings, whether the writ might have issued pursuant to any rule or order of the Court or of course, then, after the commencement of this Act: (c) the Court shall continue to have jurisdiction to grant that relief or remedy or to do that thing; but (d) shall not issue any such writ, and (e) shall grant that relief or remedy or do that thing by way of judgment or order under this Act and the rules, and (f) proceedings for that relief or remedy or for the doing of that thing shall be in accordance with this Act and the rules. (2) ... (3) It is declared that the jurisdiction of the Court to grant any relief or remedy in the nature of a writ of certiorari includes jurisdiction to quash the ultimate determination of a court or tribunal in any proceedings if that determination has been made on the basis of an error of law that appears on the face of the record of the proceedings. (4) For the purposes of subsection (3), the face of the record includes the reasons expressed by the court or tribunal for its ultimate determination." 9The nature of the exercise of the Court's supervisory jurisdiction, in claims such as these, was recently described in these terms by Basten JA (McColl and Macfarlan JJA agreeing) in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244, at [9]: "9. The exercise of the Court's supervisory jurisdiction pursuant to s 69 of the Supreme Court Act has been consistently treated as constrained by the principles governing relief available pursuant to the old prerogative writs, although those have been abolished and replaced by orders of a similar kind. As a result, it is commonplace to state that a quashing order (in the nature of certiorari) must be grounded upon jurisdictional error or error of law on the face of the record. However, these two categories speak in different tongues. Jurisdictional error is a category of error: it is not limited to errors of law in the ordinary sense of that term, but includes factual errors where the objective existence of the fact, as determined by the reviewing court, is a pre-condition to the exercise of power by the authority on which the power is conferred. In the conventional language, a quashing order may be made where a jurisdictional fact has not been established or an error of law, properly described as jurisdictional, has occurred. Thus it is not any error of law, but only those errors which are "jurisdictional" which provide a basis for relief. By contrast, the second category includes all errors of law, but only if they may be discerned from the record." I will apply this approach to the issues in these proceedings. 10The orders sought in the Summons are: "1. An order in the nature of certiorari or, alternatively, a declaration setting aside or declaring invalid the assessment and/or the certificate of the claims assessor Alex Bolton, the second defendant, made on 16 May 2013 purportedly pursuant to section 94 of the Motor Accidents Compensation Act 1999 (NSW) ... . 2. An order in the nature of prohibition or, alternatively, an injunction preventing the defendants or any of their officers, servant or agents from acting on or taking any further step in reliance on the assessment decision. 3. An order in the nature of mandamus remitting the claimant's assessment application to the third defendant or the Principal Claims Assessor of the third defendant for reallocation of the matter to a different claims assessor for determination of the matter according to law. 4. If necessary, an interim order or stay in the nature of prohibition or an interlocutory injunction preventing the defendants or any of them or their officers, servants or agents from acting on or taking any further step in reliance on the assessment decision until the final determination o[f] these proceedings or until further order." 11At the hearing, the insurer did not seek any relief in respect of order 4. The proceedings were conducted on the basis that the insurer was seeking final relief. Accordingly, order 4 can be put to one side. 12In the Summons, the insurer contended that within the s 94 Certificate, and the Statement of Reasons, "... there are a number of jurisdictional errors and/or errors of law on the face of the record as are described below ...". 13The Summons then described the errors in this way: "(a) The First Error - He erred in his reasons for decision as the correct legal approach to past and future economic loss at [12] and between [38] and [54] in that he stated and/or applied the wrong legal test. He applied a test of what would be a 'reasonable calculation' for damages, when he should have applied a test of what was a correct determination, having regard to Chapter 5 (award of damages (ss 122 to 146) of the Act and the common law and the applicable MAA's Claims Assessment Guidelines effective 1 October 2008 ... ; (b) The Second Error - He erred in his reasons (at [35]) in that after determining that the first defendant/claimant had not established incapacity for work arising from the motor vehicle accident, the quotations from the High Court of Australia in Husher v Husher (1999) 197 CLR 138 at 147 [18] and 148 [23] were applicable to the present case. The[y] were not applicable. That case was distinguishable and it should not have been applied. The claims assessor thereby led himself into error in assessing past and future economic loss here. (c) The Third Error - He erred in his reasons for decision at [38] to [54] when assessing past and future economic loss in that the claims assessor first found (at [33], [35] and [46]) that the first defendant had no incapacity to work as a result of his injuries that occurred in the motor vehicle accident. He also found (at [33] and [37]) that when, after the accident, the first defendant decided to undertake 'lighter work'', he made a personal decision and it was not due to any injuries he suffered in the motor vehicle accident. Given these findings, the quantum of damages to be determined for these heads of damages should have been nil or close to it. However, the claims assessor went on to award $108,735.84 for past economic loss and $17,097.30 for future loss of earnings. These findings are unexplained and they do not comply with the requirements of section 126 of the Act or with the claims assessor's statutory duty to provide reasons for his decision. Accordingly, this determination is bad in law because: (i) the claims assessor failed to consider and apply section 126 of the Act as he was required to do; (ii) the claims assessor failed to state or set out his relevant assumptions for his purported determination on economic loss; (iii) in particular, the claims assessor failed to explain why (at [49]) the claimant 'must be compensated for his loss' when there was no stated or identified basis for it; (iv) the plaintiff does not understand the economic loss determination and the assessor failed to provide reasons or adequate or lawful reasons for these conclusions as he was required to do by section 94(5) of the Act and clause 18.4 of the MAA's Guidelines; and/or (v) the claims assessor was required to act fairly towards the parties and accord equity to them pursuant to clause 16.3 to 16.7 of the Guidelines and he failed to do so in the present case." 14In support of the Summons, the insurer tendered the relevant Certificate and Reasons for Decision, and relied upon its submissions. No other evidence was tendered.

Certificate Under Section 94 15Omitting the formal parts, the Certificate issued by the second defendant on 16 May 2013, was in the following form: "The findings of this assessment are as follows: (i) On the issue of liability for the claim, the Zurich Australia Insurers Limited's insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury, loss and damage as a result of that breach of duty. (ii) The amount of damages assessed in respect of this claim is $126,470.69. (iii) The claimant's economic loss is reduced by, and the insurer is to have credit for the sum of $604 in accordance with s 130 of the Motor Accidents Compensation Act 1999. (iv) The amount of the claimant's costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with Motor Accidents Compensation Regulation 2005 is $18,731.71 inclusive of GST. (v) Details of the assessment and reasons for this decision are attached to this certificate." 16The assessor provided eight pages of reasons for his decision. 17A brief explanation of the conclusions of the assessor, and the real areas of dispute, will be of assistance. 18As is apparent from the assessor's Certificate, there was no issue in the assessment that the insurer was liable to the claimant to compensate him by way of damages for the injuries and disabilities sustained in the accident. 19The assessment proceeded to consider only a limited number of claims. The claimant was not entitled to non-economic loss and no issue about this head of damage arose. First, the claim included out-of-pocket expenses both past and future. Such assessment as was made with respect to this item is not the subject, in these proceedings, of any dispute or complaint. Secondly, the assessor considered past and future economic loss. His consideration of these heads of damage gives rise to these proceedings, and claims of error in respect of part of his decision relating to these heads of damage. Third, the assessor was asked to give consideration to any loss of superannuation. His assessment determined that there was no such loss. This is not the subject of any challenge. 20As a consequence of his findings, the assessor considered and determined the question of legal costs. No submissions were made, separately, with respect to this head of claim. 21What is now in issue is the assessor's determination of amounts for past and future economic loss. But, it is not the whole of that determination which is in issue. Before the assessor the claimant's claim for economic loss was divided into three periods. The first two periods dealt with past economic loss and the third dealt with future economic loss. 22The first was a period of a little over 21 weeks immediately following the accident, up to 18 January 2010. The assessor found that throughout this period, the claimant was totally incapacitated for work, and awarded him the sum of $27,394.14. 23Although this first period was the subject of contest before the assessor, and encompassed by the relief sought in the Summons and in oral submissions before this Court, the insurer made it plain that there was no error involved in the assessor's determination, of both complete incapacity of the claimant for work during this period, and of the appropriateness of the sum of damages assessed as being appropriate for the claimant's lost earning capacity during this period. 24Senior counsel for the insurer expressly conceded that notwithstanding the terms of the Summons, and the written submissions, this part of the award for economic loss was correct, and not the subject of any challenge. It necessarily follows that there was evidence before the assessor sufficient to justify this finding. 25The second period considered by the assessor, was the period between 19 August 2010 and the date upon which the assessment was concluded, namely, 16 May 2013. In respect of that period, the assessor determined that a sum of $81,341.70 was an appropriate figure to be awarded to represent the claimant's past economic loss. 26The insurer challenges this assessment, and submits that the assessment is erroneous, and reflects an error of law. 27The third period deals with a claim for future economic loss from 16 May 2013 to 31 December 2013. This assessment represented a period up to the claimant's 67th birthday, by which time the assessor had determined that there would be no on-going economic loss. The sum assessed was $17,097.30. The insurer challenges this assessment and submits that it was reached as a consequence of an error of law. 28Accordingly, although in the Summons, the insurer challenges the entirety of the s 94 Certificate, and seeks to have it set aside, the integers of that assessment which are challenged and said to be erroneous are limited to the two that have just been identified. 29It will be necessary in due course to consider the consequences of such a limited challenge in the event that the insurer establishes error. 30It is now convenient to consider the obligations of an assessor, and then return to the findings of fact which are contained within the assessor's Reasons for Decision in order to enable an understanding, and a consideration, of the insurer's challenge in these proceedings.

Obligation of an Assessor 31The task of a claims assessor is, as required by s 94(1)(b) of the MAC Act, to make an assessment of an amount for damages being an amount "... that a court would be likely to award". The assessor must attach a brief statement to the certificate issued which sets out his or her reasons for the assessment: s 94(5) MAC Act. 32The reasons of an assessor are not, and should not be, the same as those of a Judge. As Barrett JA (with whom Campbell JA and Sackville AJA agreed) said in Allianz v Australia Insurance Ltd v Sprod [2012] NSWCA 281 at [42]: "42. Second, it 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."

Relevant Findings of Fact 33In the course of his reasons, the assessor made the following relevant findings of fact: (a)At the time of the accident, the claimant was a self-employed delivery driver operating primarily with his son, in a partnership at will, which delivered whitegoods. The claimant's two-thirds share of the income of this partnership was split for tax purposes with his wife. (b)At the time of the accident, the claimant was 62.8 years of age, and was 66 years of age at the time of assessment. The claimant would have worked to age 70 but, from age 67 to 70, he would not have undertaken the very heavy and hard work involved in delivering whitegoods. (c)The claimant's truck in which he carried out his deliveries, and which he was driving at the time of the subject motor vehicle accident, was "written off" in the accident for which the claimant received an insurance payout. (d)In the operation of the partnership, the claimant participated with his son, who undertook work as an off-sider. In the accident the claimant's son was also injured, and was off work, and unable to work for a couple of months. (e)The partnership in which the claimant and his son worked ceased trading sharply after the accident, because of their combined injuries and inability to work. It was open to the claimant to have re-started the business when he was fit so to do. The claimant did not restart the business, but entered into another form of work. (f)Because the claimant was physically unable to work for the period of 21 weeks, the contracts which his delivery business held to deliver whitegoods were not able to be fulfilled by him, and the companies with whom those contracts were made would have made alternative delivery arrangements. (g)The claimant's decision to seek alternative employment was not made as a consequence of any incapacity for work, including any ongoing leg discomfort, but because he was faced with the fact that he had lost his business and did not restart it. (h)By 12 January 2010, the claimant was assessed by Dr Malouf as being fit for work and the claimant did in fact commence work the following week. (i)There was no ongoing incapacity for work after 18 January 2010. The claimant's injuries were not serious enough to prevent him from returning to work (after 18 January 2010) and he was physically able to recommence in business as a delivery truck driver if he wanted to. (j)The fact that he did not return to the business in which he was engaged, but rather to alternative work, was the consequence of a conscious decision on the claimant's part given his age, and was not as a result of the claimant's son not wanting to return to the business or as a result of not having any customers to commence a new business. (k)The plaintiff would have ceased working as a heavy-duty delivery driver, delivering whitegoods at the age of 67. At and after that time, he would have been earning approximately what he earned after the accident, and at the time of the assessment. In other words, no economic loss would be sustained after that time.

The Method of Assessment 34When the assessor came to calculate the sums which he assessed as representing the claimant's lost earning capacity, he approached the task for both the second and third periods, being the periods in dispute, by first assessing the net weekly sum which reflected two thirds of the partnership income, namely, $1,280.10 net per week. The assessor reached this figure by combining the sums paid by the partnership to each of the claimant and his wife. The assessor held that such income as was paid to the wife properly represented the claimant's earning capacity. The assessor then determined the sum which the plaintiff was in fact earning on a net weekly basis after resuming employment in January 2010, and, awarded for the second period, the difference between those two figures, having regard to the number of weeks which had elapsed between when the claimant returned to work, and the date of the assessment. 35The assessor applied the same approach with respect to the third period of future economic loss between the date of assessment of 16 May 2013, and the time at which the claimant would turn 67, a period of 33 weeks for the balance of the 2013 year.

First Error 36The plaintiff identifies, in the Summons, the first error. It submits that the assessor stated, or applied, the wrong legal test in the assessment of economic loss. The plaintiff submits that the assessor applied a test of what would be a "reasonable calculation" for damages, when he should have applied a test of what was a correct determination, having regard to: (a)Chapter 5 of the MAC Act; (b)the common law; and (c)the applicable Claims Assessment Guidelines. The submission went on to say this: "37. There is no room in Chapter 5 of the MAC Act, or the substantive law for 'reasonableness' as the touchstone or criteria in the award of past or future economic loss. Future economic loss is governed entirely by s 126 of the Act." 37The insurer submitted that the decision in Sprod was authority which supported its submission that s 126 "governed entirely" claims for future economic loss. No particular passage in that judgment was cited, referred to or relied upon. The judgment in Sprod is not an authority which supports this submission. No other authority was cited in support of the submission. 38It is correct that s 126 of the MAC Act provides particular requirements before an award is to be made for future economic loss, but the terms of s 126 do not constitute a code for the awarding of damages for future economic loss: see Amoud v Al Batet [2009] NSWCA 333 at [22]-[28]. On the contrary, the section provides a negative criterion in subsection (1), that is, an award of damages for future economic loss cannot be made unless the Court is satisfied of certain matters. It also includes a requirement for positive findings and a requirement for various assumptions to be stated. In light of the terms of s 126, and the authorities referred to, I am unable to accept as correct, the proposition that future economic loss is "governed entirely" by s 126 of the MAC Act. 39It is correct as the insured submits, that no reference is made to any requirement of reasonableness in an award for future economic loss in s 126, or in Chapter 5 of the MAC Act. But it is also correct to observe that there is no suggestion that any award which is to be made, can be an unreasonable one. It must be an award which reflects the amount of damages a court would be likely to award. 40The common law has always regarded reasonableness as being a central tenet of any award of damages. In Arthur Robinson (Grafton) Pty Ltd v Carter [1968] HCA 9; (1968) 122 CLR 649, Barwick CJ said at 656: "It is profitable, in my opinion, in approaching the question whether a verdict of a jury for personal injuries is unreasonably disproportionate to call to mind what the verdict should represent. It ought be a fair and reasonable compensation for the injuries received. A fair compensation is, of course, less than the removal of the disabilities which the injuries to be compensated entail. It is compensation to the particular claimant, bearing in mind what he was, what he now is, and how he is likely to meet his disabilities." 41There can be no doubt that in considering any individual head of damages which is to be awarded to an injured plaintiff, the central touchstone is one of reasonableness. See: Dang v Chea [2013] NSWCA 80 at [38]-[41], and the cases there referred to. I am well satisfied that the common law requires, and the absence of any specific statutory provision excluding reasonableness supports a conclusion, that the touchstone for any award of damage for economic loss in accordance with Chapter 5 of the MAC Act, which includes s 126, is reasonableness. It is a central and relevant consideration. 42I reject the submission that the assessor fell into error by regarding reasonableness as a relevant consideration. 43Although this was not clear, it seemed at one point that the insurer was submitting that the use of the word "calculation" was also an error, because what was involved was not a calculation, but rather a determination in accordance with the provisions of the MAC Act. 44This approach by the insurer does not, in this case, pay attention to the obligations imposed on the assessor to give reasons which are not akin to those of a judge. The close analysis of this phrase by the insurer is not merited, and I am satisfied that there was no error in this respect.

Second Error 45The second error claimed by the insurer is that in light of the assessor's conclusion that after 18 January 2010 the claimant had no incapacity for work, he fell into "legal error" in assessing economic loss for the second and third periods. 46In support of this submission, the insurer submitted that the extracts contained in the assessment from the decision of the High Court of Australia in Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 at 147 and 149, although quoted, had no application to, nor any relevance to, the task upon which the assessor was engaged. 47The assessor found, and the insurer accepted correctly so, that the claimant sustained injuries in the motor vehicle accident and, was thereby physically incapacitated for work for the period up to and including 18 January 2010. 48The assessor also found, as a consequence of matters raised with the claimant by counsel who appeared for the insurer during the course of the cross-examination during assessment, that the claimant's delivery truck had been written off in the collision, and that the claimant had received an insurance payout with respect to the destruction of his delivery truck. 49As well, the assessor found that as a consequence of the claimant's injuries, and those of his son, the business upon which the claimant was engaged, could not continue. The business ceased to operate whilst the claimant was incapacitated. The assessor reasoned that this was not surprising given that the customers of the delivery business would have needed to arrange alternative carriers for the delivery of their goods, in the absence of the claimant being able to fulfil his contractual obligations. 50Accordingly, the assessor concluded that, although the physical incapacity of the claimant did not continue past 18 January 2010, his earning loss continued to be adversely affected because he lost the benefit of the business in which he was engaged. There was no error by the assessor in making these factual findings. Equally, there was no doubt that the claimant earned less after he returned to work than he did when operating his own business. 51Against these factual findings, the insurer submits a reference, in the reasons of the assessor at paragraph 35, to the decision of Husher at [147] and [148], was erroneous, because that authority was distinguishable and should not have been applied. 52The insurer's written submissions centre upon the proposition that the assessor had made a series of findings that the claimant had not established any incapacity for work arising from the motor vehicle accident. The insurer points to a number of findings to this effect in paragraphs 33, 35 and 46 of the assessor's reasons. 53However, contrary to those written submissions, the assessor, at paragraph 30 of his reasons, did make findings that the claimant was entirely incapacitated for work for the initial period of 21 weeks immediately following the accident. In oral submissions to the Court, the insurer accepted that such a finding was correct. In light of that correct finding, it is to misread the assessor's reasons as making findings that the claimant had failed to establish any incapacity for work, at any time, after the accident. Rather, the paragraphs referred to by the insurer, must be read as referring to, as they clearly do, the period after the expiration of the initial 21 week period, namely after 18 January 2010. 54Read in that way, and in light of the assessor's reference earlier in his reasons (by a few paragraphs) to the decision of the High Court of Australia in Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1, the references to the decision of the High Court of Australia in Husher are apt. They bespeak no error, let alone an error on the face of the record sufficient to warrant intervention by judicial review.

Third Error 55In its written submissions, the insurer encapsulated the assessor's error, in this way: "67. In the present case there was no attempt by the claims assessor to explain how the claimant, who firmly was held to be not suffering from any incapacity (from at some point in the past, or in the future) could be entitled to an award of damages for past and future economic loss. 68. The claims assessor did not apply s 126, and if he attempted to, it was wrong in law. 69. As to the requirement to provide reasons, the claims assessor failed badly here." 56Ultimately, the insurer submitted that it was an error of law for the assessor to make the determination which he did, because it was a decision "... that was not open to him to make". 57This claimed error deals with the awards of economic loss for the second and third periods which are described at [25] and [27] above. Each may be considered separately. The second period was for past economic loss, and the third, a period of 33 weeks, was for future economic loss, and therefore a period to which s 126 of the MAC Act applied.

Past Economic Loss 58The only provisions of the MAC Act which apply to such an award are s 125 and s 130. Neither of these sections were applied to this claim. 59Accordingly, any award of damages for past economic loss is to be considered and determined in accordance with common law principles. 60In Medlin, the High Court of Australia considered a case in which a university professor, who was injured in a motor vehicle accident, having resumed his university duties, later took an early retirement some years before he was obliged to retire. The accepted evidence was that the consequences of the motor vehicle accident meant that he did not feel able to discharge his teaching and research duties at a sufficiently high level to satisfy himself. His employer had expressed no dissatisfaction with his services, and it was not in issue that the plaintiff although suffering damaging injuries was not incapacitated from doing his job. 61The plurality, Deane, Dawson, Toohey and Gaudron JJ, held that the effects of the plaintiff's injuries were a causative influence in the premature termination of his employment, and hence that premature termination was the cause of a diminution of his earning capacity. McHugh J held that because the act of retirement was not unreasonable, and the reasons for it were the result of the plaintiff's injuries, his loss was causally related to the defendant's negligence. 62For the purposes of this analysis, it is appropriate to accept as correct the mathematical determination of the assessor that there was a differential between what the claimant would have earned in conducting his own business, and the sum which he in fact earned in the employment he took after returning to work. 63McHugh JA said at [16]: "In Australia, the plaintiff is compensated for loss of earning capacity, not loss of earnings. In practice, there is usually little difference in result irrespective of whether the damages are assessed by reference to a 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 340 at 347." His Honour went on to record that the principle of assessing the loss of earning capacity more accurately compensates a plaintiff for the effect of an accident upon their ability to earn income. In terms discussed in Medlin, the proper question for the assessor to ask was whether "... as a result of the accident, the plaintiff had been rendered less capable of earning income". 64At [21] of Medlin, McHugh J, in discussing the particular facts in that case, having concluded that the plaintiff's retirement was causally related to the defendant's negligence, said: "However, the ultimate question is whether as a matter of common sense, the financial loss that the plaintiff has suffered was caused by the plaintiff's act in resigning his office rather than by the defendant's negligence. If the plaintiff acted unreasonably in retiring early, then the law will disregard the defendant's negligence as a cause of the plaintiff's financial loss. That negligence and its effects will be treated as background conditions of the plaintiff's loss and as a matter of common sense, not material causes of the plaintiff's loss. A further question, and one that can conveniently be considered at this point, is whether having regard to the loss of earning capacity, the plaintiff failed to mitigate his financial loss by not continuing in employment which would have continued to give him the earnings which he was receiving before the accident." 65His Honour said that the relevance of the act of early retirement in terms of restricting a claim for damages, would only arise if that conduct was found to be unreasonable in all of the circumstances. His Honour noted that the defendant bore the onus of demonstrating that fact. 66His Honour went on to conclude, at [23]: "No doubt it is true that the plaintiff's act of early retirement created a financial loss where none had been present or was likely to arise. But if the defendant's negligence caused the conditions which produced the loss, that negligence is a material cause of the financial loss unless the plaintiff's act of retirement is to be treated as 'breaking the causal chain' or was a breach of his duty to mitigate his loss. Because the act of retirement was not unreasonable, and the reasons for it were the result of his injuries, the plaintiff's loss was causally related to the defendant's negligence. When the matter is looked at as one of mitigation of damage, the plaintiff's act of early retirement was not unreasonable and did not result in a failure to mitigate his damage." 67Here, without complaint of error, the assessor found that the claimant's business ceased to operate as a consequence of the injuries he received in the accident which was caused by negligence. Having regard to the nature of the business, and the fact that the customers of the business, unsurprisingly, went elsewhere when the claimant was physically incapacitated, it was well open to the assessor to conclude that the demise of the business was causally related to the injuries which the claimant sustained as a result of the admitted negligence of the driver for whom the insurer is liable. That other causes, such as the injuries to the claimant's son, may have had a role to play is beside the point. The assessor was satisfied that the business ceased to operate as a consequence of the plaintiff's injuries sustained in the accident, and his incapacity for work during the first period of 21 weeks. This finding was not only open to the assessor, but on the evidence to which he referred in his reasons, and his findings, it was a correct one. 68There was no finding of fact, nor is it suggested that there ought to have been, that the failure of the claimant to restart the business was unreasonable. There was no finding that the claimant had failed to mitigate his loss. On the contrary, it seems that the plaintiff simply elected to take other employment. This other employment, which was less remunerative than was the plaintiff's earning capacity when exercised through the partnership, meant that the plaintiff sustained an ongoing economic loss which related to his injuries and to his incapacity during the first 21 weeks, and the collapse of his business. 69There was no error of the kind submitted by the insurer in this respect. The assessor found that the plaintiff had an incapacity for work which was productive of financial loss, and assessed it accordingly. There is no error of law in the finding of economic loss for the second period.

Future Economic Loss 70The second component of the third error included an attack on the assessment of damages for future economic loss. It was submitted that the assessor did not adequately adhere to the terms of s 126 of the MAC Act. 71Although the insurer's written submissions seem to attack the award of economic loss in respect of all three periods by reference to s 126 of the MAC Act, clearly that section relates only to awards made for future economic loss. That is to say, that component of the award for economic loss suffered after the date of assessment, and not economic loss suffered up to the date of assessment. 72Section 126 is in the following terms: "126 Future economic loss-claimant's prospects and adjustments (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted." 73The terms of that section were considered by the Court of Appeal in Sprod. In that decision, the Court considered the obligation of an assessor in their reasons to deal with s 126. The passage in the judgment of Barrett JA set out at [32] above deals with an assessor's obligations with respect to s 126 of the MAC Act. 74It is clear that in his decision, the assessor was not concerned when considering an award of future economic loss for a period of 33 weeks to award the claimant a buffer, but rather that he was making an award which accorded with the provisions of s 126. That the assessor had this provision in mind is demonstrated in paragraph 44 of his assessment where he says: "Section 126 of the Act says that I cannot make an award of damages for future economic loss unless the claimant first satisfies me 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." 75This is a paraphrase of s 126(1) of the MAC Act. Section 126(2) says that the Court is required to express by reference to a percentage possibility, any adjustment which is required to be made against the possibility that the events concerned might have occurred but for the injury. This is a reference to the concept, at common law, of the application of a discount for vicissitudes. 76Section 126(3) requires the Court to set out the assumptions on which an award was based including the relevant percentage by which the damages were adjusted. 77Here the damages were not adjusted by any relevant percentage. No separate or specific complaint is made about that. In light of the fact, that the assessor was engaged upon a task of assessing a future economic loss which was limited to a 33 week period, it was within his proper discretion to formulate an award which did not make any deduction for the vicissitudes of life: i.e. the percentage possibility that the events concerned might have occurred but for the injury as required by s 126(2) of the MAC Act. 78The question then becomes whether, within the reasons, the assessor has set out the assumptions about future earning capacity or other events on which the award is to be based have been proved as according with the claimant's most likely future circumstances. 79In paragraph 45 of the reasons, the assessor sets out that he is satisfied that the claimant would have worked to age 70, had he not been injured, and further, that he would only have worked doing the business in which he was engaged at the time of the motor vehicle accident, namely whitegoods delivery, to age 67. This assumption is to be found on a number of occasions where the assessor has held that the claimant would not have continued to work as a whitegoods delivery person to age 70 given his age and the hard work involved. And further, that: "48. At some stage after the accident, it is my finding that the claimant would have ceased working as a whitegoods delivery person, his level of income would have decreased to the level now being received by him or thereabouts." 80In other words whilst working as a whitegoods delivery person, the claimant would have earned that which his business was earning at the time of the accident. When he ceased to do that heavy work, he would have earned that which he was earning at the time of the assessment. The issue then was when that would have occurred. The assessor's finding that it would have occurred by 31 December 2013, carries with it an expression of the most likely future course for the claimant but for the accident. 81In paragraph 49 the assessor said: "The claimant on my finding must be compensated for his loss from 18 January 2010 to about 31 December 2013. This would take the claimant to age 67. I assess that given the very heavy nature of the delivery work, that the claimant would have ceased trading by this time and then taken whatever other, less strenuous, work that he could obtain to age 70." 82It is correct to say that these findings are not expressed in the precise terms of assumptions about which the assessor has been satisfied. Nevertheless, they adequately set out the basis of the claimant's likely future course and adequately set out the basis necessary for an award under s 126 of the MAC Act. 83The insurer submitted that the assessor had entirely failed to "... engage with and perform the tasks prescribed by s 126 [of the MAC Act]": see Sprod at [37]. 84It is relevant to identify what was said in Sprod about the requirements of s 126 of the MAC Act. At [26]-[27] Barrett JA said: "26. The underlying principle is that the plaintiff should have a sum by way of damages for the difference between earning capacity as it would have been in the absence of the injury and the earning capacity as it is following the injury. Both elements involve uncertainty and conjecture and, therefore, require that assumptions be made, albeit assumptions shaped by the available evidence. The assumptions cover, among other things, remaining expectancy of working life, the impact of the injury on that expectation, the extent to which the ability to function will be curtailed and the earnings that work according to the reduced ability will produce, together with assumptions regarding discounted present value and investment returns and as to vicissitudes or adverse contingencies. Because of s 126(1), an assessor has a duty to form an opinion that the assumptions to be applied in relation to such matters going to future earning capacity 'accord with the claimant's most likely future circumstances but for the injury'. 27 The duty under s 126(1) to be satisfied that the adopted assumptions accord with the most likely future circumstances but for the injury is supplemented by the s 126(3) duty to articulate the assumption on which the award is based. This, as has been said in this Court more than once, is to ensure transparency and, at the same time, to inject an element of rigor or method that may be overlooked or simply abandoned if the statutory system did not insist on the identification and articulation of the assumptions employed." 85As his Honour went on to say, assumptions may be "somewhat impressionistic", there was only a need to state an assumption in very general terms and that matters upon which an assessor relies may not call for "particular elaboration or explanation", but rather "a brief statement of what might seem to be reasonably obvious may well suffice": see Sprod at [33]. 86I am not satisfied that the insurer's submission that the assessor failed to engaged with and perform the tasks prescribed by s 126 ought be accepted. 87The task of this Court in considering that question is not to expect of an assessor that his or her reasons will be lengthy, detailed and articulately reasoned as those delivered by a judge might be. Rather, the task of this Court is to see that reasons which accord with s 94 of the MAC Act, namely that there is to be attached to the certificate "... a brief statement ... setting out the assessor's reasons for the assessment", and that accord with Guideline 18.4 that 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 led the assessor to the conclusions made; and 18.4.4 In the case of an assessment certificate pursuant to s 94, the assessor must specify an amount of damages and the manner of determining that amount." 88It seems clear to me that the assessor in this case has specified an amount of damages, and the manner of determining that amount as required by Guideline 18.4.4. I have earlier concluded that within the assessment of the material questions of fact upon which findings have been made, was adequately set out. 89However, the insurer submits that it is not possible to detect from the reasoning process the path that the assessor has followed in order to arrive at the conclusions which he has done. 90In writing, the insurer submitted that the assessor's awards for both past and future economic loss were "unexplained" and that they did not "comply with the requirements of s 126 of the Act or with the claims assessor's statutory duty to provide reasons for his decision". 91As well, the insurer submitted: "The plaintiff does not understand the economic loss determination and the assessor failed to provide reasons or adequate or lawful reasons for these conclusions as it is required to do ..." 92To the extent that the insurer's submissions rely upon the subjective understanding of a party to the proceedings, that is irrelevant, and as well, is something which is not capable of being stated in submissions, but if it was relevant, would need to be proved by evidence. Subjective understanding is not the relevant test for determining whether reasons are adequate or sufficient to comply with a lawful obligation. 93The substance of the oral submissions of the insurer was that there was a "chasm" between the earlier findings of the assessor relating to the lack of any physical incapacity in the claimant after 18 January 2010, and ongoing economic loss arising as a consequence of that incapacity. The insurer orally submitted that the reasons did not reveal the approach which the assessor took. 94In my assessment the assessor's reasons, given the nature of the scheme under the MAC Act, and the fact that assessors are experienced practitioners in this area of the law, demonstrate that the assessor has made appropriate findings of fact, has reached conclusions which are correct in law, and has expressed those reasons briefly and without undue elaboration. 95Simply put, the sequence which follows from the assessor's reasons is this: (a)the claimant was injured in the motor vehicle accident for which the insurer admitted its liability; (b)those injuries gave rise to a total incapacity for work for a period of 21 weeks approximately, until 18 January 2010; (c)this incapacity for work was a cause of the collapse of the business in which the claimant was then involved by which he was remunerated at the sum of $1,280.10 per week net; (d)the business was not reinstated once the claimant was capable of returning to work. There was no finding that this failure to reinstate the business was unreasonable; (e)the claimant returned to work in a similar area of endeavour, but one which realised a significantly lower level of remuneration when compared with his being in business on his own account. The fact that the plaintiff accepted such work as an employee was not found to be unreasonable in all of the circumstances; (f)the plaintiff intended to work, and would have worked, and will still work, to age 70; (g)he would have worked to about age 67 (the end of 2013) in the work in which he was engaged at the time of the accident in his own business, and continued to receive income at about the level he was earning at the time of the accident, and then would have ceased undertaking that work because of the heavy nature of it, and would have continued to work, in an employment of the kind in which he is presently engaged, earning about what he present earns; (h)because by the time of the assessment only a little over six months remained of his working life, had he continued uninjured in the business in which he was engaged, no deduction for vicissitudes of life as required by s 126(2) of the MAC Act was made; (i)because the plaintiff's earning capacity was initially exploited in a business which terminated as a consequence of his injuries, and was now exploited as an employee, although his injuries and incapacity had ceased, nevertheless his injuries continued to be productive of economic loss. 96The award for economic loss in those circumstances was conventional, accorded with the authorities and was no more than the damages permitted by the MAC Act. 97The insurer has not established any error of the kind relied upon. I am not satisfied that the certificate of the assessor should be set aside.

Orders 98The following orders should be made: (1)Summons dismissed. (2)Plaintiff to pay the defendants' costs.

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: 24 January 2014

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Parties

Legislation Cited (1)

Cases Cited (12)

Cited By (1)