Supreme Court New South Wales Medium Neutral Citation: NRMA Insurance Limited v Buckley [2016] NSWSC 475 Hearing dates: 8 May 2015 Date of orders: 26 April 2016 Decision date: 26 April 2016 Jurisdiction: Common Law Before: Rothman J Decision: (1) Summons dismissed; (2) The plaintiff shall pay the first defendant's costs of and incidental to the proceedings, as agreed or assessed; (3) If either party seeks a different or special order as to costs, such should be the subject of an application made to my Associate, which application should include all relevant documents upon which the application relies, except those documents that are already in evidence and shall, but for those documents, not exceed three pages in length. Such application shall be made within one week of the issue of these reasons for judgment and be subject to a reply within one week of service of any such application. Catchwords: ADMINISTRATIVE LAW – Motor Accidents Compensation Act 1999 – assessment of future economic loss – finding of early retirement compensated by buffer – issue of early retirement opened up in a way that insurer must have been aware of issue – no denial of procedural fairness – reasoning sufficient to expose the thinking of Claims Assessor – evidence existed on which finding could be based – no jurisdictional error or error of law. Legislation Cited: Motor Accidents Compensation Act 1999 Supreme Court Act 1970 Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302 Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280 Easwaralingam v Director of Public Prosecutions (Vic) [2010] VSCA 353; (2010) 208 A Crim R 122 FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754 Husher v Husher [1999] HCA 47; (1999) 197 CLR 138 Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 NRMA Insurance Limited v Ainsworth [2011] NSWSC 344 Re Building Workers' Industrial Union of Australia; Ex parte Gallagher [1988] HCA 4; (1988) 76 ALR 353; (1988) 62 ALJR 81 Re Coldham; Ex parte Municipal Officers Association of Australia (also cited as Re Architects of Australia Association; Ex parte Municipal Officers Association) [1989] HCA 13; (1989) 63 ALJR 298 State of New South Wales v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 State of NSW (NSW Police) v Nominal Defendant [2009] NSWCA 225; (2009) 53 MVR 243 SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 United Voice v Restaurant and Catering Association of Victoria [2014] FCAFC 121; (2014) 226 FCR 255 Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816 Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 252 CLR 480 Category: Principal judgment Parties: NRMA Insurance Limited (Plaintiff) Jason Paul Buckley (First Defendant) Elyse White, in her capacity as Claims Assessor of the Motor Accidents Authority of New South Wales (Second Defendant) Motor Accidents Authority of New South Wales (Third Defendant) Representation: Counsel: M A Robinson SC/A Poljak (Plaintiff) B Dooley SC/G Hickey (First Defendant) Submitting Appearance (Second Defendant/Third Defendant) Solicitors: Sparke Helmore Lawyers (Plaintiff) Slater & Gordon Lawyers (First Defendant) Crown Solicitor's Office (Second Defendant/Third Defendant) File Number(s): 2014/351281 Judgment 1. HIS HONOUR: On 1 February 2011, the plaintiff, Jason Paul Buckley (also referred to as the claimant) was injured in a motor vehicle accident as a result of which he made a claim under the Motor Accidents Compensation Act 1999 ("the Act") to cover the damages caused by that accident. Such a claim was assessed by the Motor Accidents Authority ("the Authority") which administers the Compulsory Third Party Insurance and Compensation Scheme under the Act, having been referred to and assessed by a Claims Assessor ("the Claims Assessor"). The Claims Assessor calculated damage at $1,292,777.61 ("the damages") and awarded costs of $82,858.72 ("the costs"). The insurer, NRMA Insurance Limited, seeks judicial review of the assessment in this Court. 2. The summons claims orders in the nature of certiorari or a declaration setting aside or declaring invalid the decision of the assessor ("the Assessment"), orders in the nature of prohibition or an injunction preventing the defendant's from taking any further step in reliance on the decision; orders in the nature of mandamus requiring the Authority to assess the matter according to law. 3. That which purports to be the grounds of judicial review refers to the decision said to be pursuant to s 94 of the Act, the number of pages and then, somewhat boldly, expresses the view that: "There are a number of jurisdictional errors and/or errors of law on the face of the record as are described below that occurred in the making of the decision. Alternatively, the claims assessor constructively failed to exercise her statutory power in making the decision." 1. The summons, under a heading "grounds", then, somewhat discursively, sets out alleged errors: 1. "The First Error" (sic): the failure to express reasons for the assessment of future economic loss; 2. "The Second Error" (sic): the failure of the assessor to comply with the provisions of s 126 of the Act. This is a reference to the failure to calculate precisely when it was that the claimant below would retire in order to calculate the compensation payable for him on account of that early retirement; 3. "The Third Error" (sic): the finding that the claimant below will retire early in the absence of medical or expert evidence on the issue; 4. "The Fourth Error" (sic): denial of procedural fairness by making the finding as to the need to retire early without indicating to the parties that such a finding might be made; 5. "The Fifth Error" (sic): future loss of earning capacity was not calculated in accordance with the judgment of the Court of Appeal in Sretenovic v Reed [2009] NSWCA 280. 1. The alleged errors before the Court are errors in the process said to be involved in the decision making or the expression of reasons of the decision maker. That is not intended to understate their importance or to deny that there may be jurisdictional error or error of law, but as a consequence, the facts involved in the motor vehicle accident are essentially irrelevant. More relevant is the certificate of the second defendant, Elyse White, the Claims Assessor, and the reasons for her decision. Decisions and Reasons 1. As earlier stated, the Claims Assessor assessed damages at $1,292,777.61 and ordered that the respondent below pay costs in the amount of $82,858.72 and issued a certificate to that effect on 16 September 2014. At the time of issuing the aforesaid certificate the Claims Assessor published her Reasons for Decision (hereinafter "Reasons" or "Decision"). 2. The provisions of s 94(5) of the Act require the Claims Assessor "to attach a brief statement to the certificate, setting out the Assessor's reasons for the assessment". Those Reasons consist of 13 pages, including two pages of a costs calculations schedule and a page of the summary of the amounts of the costs and disbursements. Included in the summary of damages is an amount of $484,976 for future economic loss and an amount of non-economic loss of $240,000. 3. At [60]-[62] of the Reasons, the Claims Assessor deals with non-economic loss, refers to the whole person impairment being greater than 10% due to physical injuries and further injuries associated with "significant psychological and psychiatric injuries" that are dealt with in reports. 4. The Claims Assessor refers to the submissions of the parties in relation to the amount for non-economic loss, the continuing pain and limitation of movement, the continuing cramps and aches, the reliance on medication to supress the feeling of spiders crawling inside his leg, constant right ankle pain, instability of his right leg, the throbbing of the claimant's right ankle, leg and foot, the pain associated with walking and the limp, his fear of falling, the scarring to the ankle and pain with repetitive and over activity using his arms particularly above the shoulder. The Claims Assessor also refers to the claimant's inability to sit or stand for extended periods, his loss of memory and his inability to process new information. The claimant also suffers loss of confidence, has suffered a personality change, is regularly anxious, depressed, irritable and frustrated, and has difficulty sleeping. The Claims Assessor noted that the claimant's employment opportunities and ability to play sport and participate in recreational activities has been severely impacted. 5. The Claims Assessor then says: "[62] Mr Buckley has lost enjoyment of his life. He suffers from severe pain. He is only 44 years old. He had a promising and active future before this accident. Having regard to his loss as set out above, I assess non-economic loss in the sum of $240,000.00." 1. In relation to the amount for future commercially paid care, the Reasons commences with the following statement by the Claims Assessor: "[46] There is no evidence to suggest that Mr Buckley's need for future assistance will decrease. The Insurer accepts that Mr Buckley has a need for future commercially paid care and submits that a buffer of $85,000.00 is reasonable for life, which is based on 2 hours a week. I do not accept that 2 hours a week will cover Mr Buckley's need for these reasons." 1. The Claims Assessor noted the opinion of Dr Buckley that the expectation should not be that the need for care required for the claimant should be provided by family members and to qualifications relating to five hours commercially paid care opined by Ms Cogger. Dr Endrey-Walder refers to the need for such care to continue in the long term and the functionality of the claimant further decreasing in years to come. The Claims Assessor then calculates five hours per week for the rest of his life at the average rate of the three amounts provided, rounded up. The amount awarded under this head of damage was $209,996. There is no challenge to this aspect of the Assessment. 2. The reference in the foregoing to the expectation that paid commercial care was appropriate and could not be provided by the claimant's family is a reference to the discussion in the Reasons commencing at [37]. Reference is made to the past domestic assistance, to the cap prescribed by s 141B of the Act, to the reference to Ms Cogger's and the doctors' reports and awards a total past gratuitous care of $47,775 under that head of damage. 3. Future superannuation is also awarded at the future rate of 12.5% over 23 years (with the calculation of which I will deal later) and awards $60,622 under that head of damage. 4. It is generally unnecessary to deal with whether the discussion by the Claims Assessor, which is more detailed than "a brief statement" of reason as to the injuries, current and likely future symptoms, is sufficient to allow the calculation of general damages. It is, however, necessary, because of the matters raised in the grounds for review, to deal with the issues of economic loss, with particular reference to future economic loss. 5. In [16] of the Reasons, the Claims Assessor refers to the judgment of the High Court in Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 and Husher v Husher [1999] HCA 47; (1999) 197 CLR 138, and expressed the view that the High Court had confirmed that the fundamental questions to be determined are whether the claimant has suffered a loss or diminution in his earning capacity and whether that loss or diminution will result in economic loss. 6. In [17] of the Reasons, the Claims Assessor expressly has regard to the provisions of s 126 of the Act and in the following paragraphs refers to the concession by the Insurer that the claimant had suffered an impairment to his earning capacity productive of economic loss and the suggestion by the Insurer that the past loss and future loss should be for $150,000 each, as a buffer, including superannuation and Fox v Wood. The Claims Assessor does not agree that future economic loss "can be assessed by way of a buffer" being, in my view, a reference to the ability so to do in the matter then before her. 7. The Claims Assessor refers to the claimant's schedule of damages proposing $890,000 for future economic loss plus superannuation. The Claims Assessor then refers to the history that the claimant had before the injury, the rate of pay with a total net weekly earning of $1,256 and accepted that the appropriate rate at the time of the accident was $1,256 net per week. 8. The Claims Assessor then refers to two separate periods of employment and the earnings in each and the subsidy received over and above that amount from the Insurer. 9. As earlier stated, past economic loss ultimately was agreed in the sum of $150,000 including the Workers' Compensation repayments, past superannuation and Fox v Wood. 10. In relation to future economic loss, the Claims Assessor refers to the submissions of the Insurer and the proposition that future economic loss be compensated by a buffer of $150,000. The Claims Assessor disagrees that it is appropriate to compensate future economic loss at that figure or in that manner. 11. At [28] of the Reasons, the Claims Assessor refers to the difficulty that the claimant has in continuing with his current employment, the costly mistakes that are made as a result of memory loss occasioned by the accident and the serious consequences associated with those mistakes, the fear of the claimant of these consequences and his employment being under constant stress with no job security. The Claims Assessor refers to previous employment which was terminated by mutual agreement "before harm was done to any of the horses" with whom the claimant was working. 12. The claimant expressed the view, which the Claims Assessor accepted at least to some degree, that the claimant does not believe he should be working but is forced to continue to work in order to pay his mortgage. The Claims Assessor takes the view that the medical evidence supports the claimant's belief in that regard. 13. The Claims Assessor refers to a somewhat qualified certificate for return to work issued by the claimant's treating orthopaedic surgeon, the qualification relating to his symptoms permitting. Necessarily, the treating orthopaedic surgeon was referring to the physical injuries rather than memory loss and psychiatric maters which the Claims Assessor discusses at [32] – [34]. 14. It is appropriate, in the circumstances of the matters raised in the grounds to recite those paragraphs: "[32] From a psychiatric perspective, it would seem that the bulk of medical opinion supports Mr Buckley's contention that he should not be working in responsible positions given his memory impairment and fatigue. An assessment by clinical psychologist, Dr Banks, demonstrates his loss of memory and difficulties processing new information. Dr Banks states that his employment demands in the future should be suitably modified to take into account his neuropathic pain that may adversely affect his ability to concentrate and engage in physical demands, especially for safety management. Psychologist, Mr Dragutinovich, diagnosed chronic Post Traumatic Stress Disorder with poor prognosis. Dr McClure agreed with this diagnosis and opined that Mr Buckley is unlikely to regain his full cognitive capacity and will only remain fit to work as a farm manager on smaller operations. [33] The overwhelming evidence supports Mr Buckley's claim that he will not be able to continue to work in his current role for both physical and psychiatric reasons. The question is what his most likely future circumstance is. He is an extremely motivated man. He needs to engage in some type of work. His goal is to own and operate his own farm with his sons, as he has the experience and reputation within the industry and his boys, youth and the trust of their father. I accept that Mr Buckley has a limited capacity to supervise and engage in some physical activities that allow him to take frequent breaks. [34] Having regard to restrictions placed on Mr Buckley by the doctors who provided opinions in this claim, and after considering Mr Buckley's evidence, the most likely future circumstance is that he will continue to work at the rate of 50% of his pre-accident capacity and that he will be forced to take early retirement due to the development of arthritic changes as suggested by Drs Endrey-Walder and Harvey-Sutton, and that this assessment can only be made by way of a buffer." 1. As a consequence of the foregoing and a proper analysis of the Reasons, the Claims Assessor indicated her findings and the basis for her findings of both physical and psychological issues. The Claims Assessor then summarised her findings on future economic loss at [35], which is in the following terms: "[35] In light of recent changes to the age of retirement, I am satisfied that Mr Buckley would have worked to age 67 years. The calculation for future economic loss is as follows: 35.1 50% of pre accident earnings $1,256.00 = $628.00. 35.2 Years to age 67 is 23 years. 35.3 The multiplier 23 years is 721.2 x $628.00 – 15% vicissitudes = $384,976.00. 35.4 Buffer for early retirement - $100,000.00. 35.4 (sic) Total future economic loss - $484,976.00." 1. As the gravamen of the challenge to the Reasons and the Assessment is the manner in which future economic loss has been calculated and the reasons expressed for those conclusions, it is unnecessary to recite the other aspects of the reasoning as expressed by the Claims Assessor. Approach to Orders Sought 1. As has been stated on a number of occasions, but often ignored by parties, there is a difference between merits review and judicial review. Judicial review is, pursuant to the terms of s 69 of the Supreme Court Act 1970, effected by orders in the nature of certiorari (often called quashing orders) or declarations to that effect. It may also be effected by orders in the nature of mandamus, or an order requiring the performance of a duty, or orders in the nature of prohibition, enjoining a decision maker or those under a duty to act upon the decision made from relying upon the decision because of its invalidity. 2. It is timely to reiterate the comment by Tate JA in Easwaralingam v Director of Public Prosecutions (Vic) [2010] VSCA 353; (2010) 208 A Crim R 122 at [25], cited with approval by Basten JA in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13; (2012) 83 NSWLR 302, in which Tate JA said: "[25] … [A]n application for certiorari is not the same as a general appeal for error of law, most importantly, because it falls to be determined on the basis of different material. An application for certiorari does not invite a scouring of all the evidence before the inferior court to determine whether the proper inferences were drawn from it or whether an item of evidence was overlooked." 1. The same is at least as true of a tribunal that is not a court. Moreover, the reasons of an administrative decision maker are not to be construed "minutely and finely with an eye keenly attuned to the perception of error": Collector of Customs v Pressure Tankers Pty Ltd and Pozzolanic Enterprises Pty Ltd [1993] FCA 322; (1993) 43 FCR 280. 2. In Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 271-272 the High Court referred to a process that has otherwise been referred to as a "beneficial construction" which, notwithstanding its terms, does not permit reasons to be inferred that have not been stated or are not necessarily implied by what has been stated (SZCBT v Minister for Immigration and Multicultural Affairs [2007] FCA 9 at [26]; FTZK v Minister for Immigration and Border Protection [2014] HCA 26; (2014) 88 ALJR 754). 3. Further, the reasons required by s 94 of the Act are to be "a brief statement" of the reasoning process and that imposes an obligation only to set out "the actual path of reasoning" by which the assessor arrived at the assessment: Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43 at [48]; (2013) 252 CLR 480 and the reasons expressed by the decision maker are to be understood as recording the steps that the decision maker took in arriving at the result: Waterways Authority v Fitzgibbon [2005] HCA 57; (2005) 221 ALR 402; (2005) 79 ALJR 1816 at [130] per Hayne J. 4. I refer to the discussion on the jurisdiction to issue orders in the nature of certiorari in NRMA Insurance Limited v Ainsworth [2011] NSWSC 344, at [16] and following, and in particular the distinction to be drawn between merits review and a judicial review. I further reiterate the forgoing passage from the judgment of Tate JA to the effect that the error must be found "on the face of the record", which, for the purposes of s 69 of the Supreme Court Act includes the reasons for decision. The provisions of s 69 of the Supreme Court Act do not extend the common law meaning of "error of law" to that which is derived from the transcript of proceedings. 5. The foregoing does not suggest that the transcript of proceedings cannot, in certain circumstances, be relevant. For example, the evidence and transcript of evidence may disclose that there was no evidence to allow a finding that was made in a decision. Another example would be that the transcript of proceedings may form the evidentiary basis for a denial or procedural fairness, which is jurisdictional error. 6. However, too many times parties come before the Court arguing essentially that the Court would have come to a different conclusion on the evidence before the tribunal or arguing an absence of proper reasons, because that party (or its legal advisers) would have come to a different conclusion on the basis of the evidence and they do not agree with the conclusion to which the decision maker has arrived. 7. As has been made clear a number of times, the decision maker is required only to disclose the path of reasoning (see above) and to state, where more than one conclusion is open, a preference for one conclusion rather than another: Campbelltown City Council v Vegan [2006] NSWCA 284; (2006) 67 NSWLR 372 at [121]-[122] per Basten JA. 8. Moreover, the error of law, if it be error of law upon which the plaintiff relies, is and must be an error of law "on the face of the record", namely, in the reasons for decision: Allianz Australia Insurance Ltd v Kerr, supra, at [16]-[18]. The Assessment of Future Economic Loss: Issues and Consideration 1. As can be seen from the recitation of the five alleged errors, each of them deals with the calculation of future economic loss and, in particular, the finding that the first defendant will need to retire early. It is necessary to look at the principles in order to understand that which the Claims Assessor has done. 2. The awarding of damages for "future economic loss" is a misnomer. A court, and, in this case, the Claims Assessor, does not calculate the income that will be earned for the remainder of the first defendant's working life and then capitalise those payments. The head of damage is more accurately described (and has been so described in some of the grounds of alleged error) as the loss of future earning capacity or the loss of earning capacity. 3. Unlike the calculation of past losses, this head of damage assesses the value of the diminution of the claimant's earning capacity resulting from the injury. This head of damage is, to use an analogy from other areas of law, an assessment of capital loss not the calculation of income lost. 4. It is the diminution in the capacity to earn which is compensated, not the earnings lost: see Allianz Australia Insurance Ltd v Kerr, supra, at [24]; State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536 at [71] per Heydon JA; State of NSW (NSW Police) v Nominal Defendant [2009] NSWCA 225; (2009) 53 MVR 243 at [86] per Beazley JA (as her Honour then was), Allsop P (as his Honour then was) and Macfarlan JA agreeing. 5. In the words of Basten JA in Allianz Australia Insurance Ltd v Kerr, supra: "Income earned prior to the accident may well be the best evidential basis to assess the earning capacity of the claimant, but for the injury, subject to adjustment for the passage of time since that income was last earned. Income earned between the accident and the trial may be (but often is not) a good indicator of current capacity. The latter may be capable of extrapolation into the future, but it will usually be necessary to consider whether, and to what extent, both pre-accident capacity and post-accident capacity might have been and might be expected to vary in the future." (at [24], per Basten JA) 1. It is appropriate to recite the comments of McHugh J in Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1 at 16, in which his Honour said: "In Australia, a 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 loss of earning capacity or by reference to loss of earnings. That 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'." (Reference omitted.) 1. The factual situation before the High Court in Medlin, supra, was whether damages were quantifiable as a result of the plaintiff's retirement and whether that retirement was causally related to the defendant's negligence. In dealing with that factual circumstance, McHugh J 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 be conveniently 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." (Medlin, supra, at 21) 1. The plaintiff in these proceedings relies on the provisions of s 126 of the Act, but the provision adds little to the discussion and argument. Section 126 of the Act reflects the common law position, denying to the claimant the benefit of a windfall "profit" and requiring the deduction from any calculation for vicissitudes. Here the Claims Assessor reduced the calculated damages for loss of future earning capacity by 15% to take account of vicissitudes and thereby complied with s 126(2) of the Act. 2. The provisions of s 126 of the Act require a Claims Assessor to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted. It is unnecessary to discuss whether the terms of s 126(3) of the Act have an effect on the provisions of s 94(5) of the Act. It may be that those matters prescribed by s 126(3) of the Act are particulars of that which is required, in relation to future economic loss, as the "Assessor's Reasons". As earlier stated, it is unnecessary to discuss this aspect. 3. The considerations that are necessarily included in quantifying future economic loss involve an assessment of the circumstances and earning capacity that would have subsisted were it not for the accident and its effect (the first criterion); the level of earnings as a consequence of the first criterion; the degree to which full-time work would have resulted (if not otherwise included in the first criterion); and the length of time during which the plaintiff would have worked, if not injured, and will work as a consequence of the injury. The foregoing is not intended to be a complete list of criteria. 4. The plaintiff in these proceedings submitted to the Claims Assessor that there was future economic loss and that the Claims Assessor should quantify that loss at $150,000 by way of buffer. The Claims Assessor discussed and considered the evidence of both physical injury and of psychiatric/brain injury and came to a conclusion that the earning capacity of the claimant (the first defendant in these proceedings) was significantly diminished. The Claims Assessor determined past economic loss and determined the level of wages that should be utilised for the calculation of future economic loss. 5. The evidence before the Claims Assessor (and before the Court), to the extent that it is relevant, was that the first defendant (claimant below) suffered significant difficulties associated with his loss of memory and psychiatric/brain injuries. His earning capacity was diminished less by virtue of the environment in which he worked and was likely to work in the future, which included work with his sons. 6. It is a necessary (by which I mean essential) aspect of the calculation of the loss of future earning capacity to determine the age at which the claimant would have retired but for the injury and the age at which the claimant will retire as a consequence of the injury. 7. In the words of the High Court (Brennan and Dawson JJ) in Malec v JC Hutton Pty Ltd [1990] HCA 20; (1990) 169 CLR 638 at 640: "… [W]e think it undesirable for damages to be assessed on the footing of an evaluation expressed as a percentage. Damages need not be assessed by first determining an award on the footing that the hypothetical situation would have occurred and then discounting the award by a selected percentage. Damages founded on hypothetical evaluations defy precise calculation." 1. In Malec v Hutton, supra, the plurality (Deane, Gaudron and McHugh JJ) referred to the adjustment of an award of damages to reflect a degree of probability that an event, in the future, would occur or might have occurred and as Heydon JA remarked in Moss, supra, such an exercise is an "estimation of possibilities, not proof of probabilities". 2. The task of the Claims Assessor was to evaluate losses on the basis of principle. This the Claims Assessor did. First, the Claims Assessor estimated that but for the injuries the claimant below (the first defendant) would have worked to age 67. Apart from the amended age of the pension, the Claims Assessor could have, on the basis of the evidence before her, assessed the ordinary retirement age at 70 or 72. There was ample evidence before the Claims Assessor of the deteriorating nature of the physical injuries and the likely deterioration in the mental situation. In those circumstances a finding that there would be early retirement was open on the evidence before the Claims Assessor. 3. I make it clear that the plaintiff, in these proceedings, does not suggest that there was no evidence upon which a finding as to early retirement could have been made. Rather the claimant suggests that the use of a buffer for that purpose was inconsistent with s 126 and failed to set out the reasons for that assessment. 4. There is a significant difference between an assessment that the first defendant will retire early as a consequence of the injury and a finding as to probability that the first defendant will need to retire early. The latter requires a finding on the balance of probabilities; the former requires an assessment of the hypothetical based upon the degree to which there is an estimation of the possibility of early retirement. 5. Lastly, the plaintiff alleges that it was denied procedural fairness. It is difficult to understand how this point is arguable. The plaintiff alleged and conceded a diminution in future earning capacity. It suggested compensation of that diminution by the awarding of a buffer. Such a diminution assumes at some point an examination of the working life that remains within the capacity of the first defendant or claimant below. In those circumstances, the Claims Assessor was required to estimate, pursuant to the provisions of s 126(1) of the Act, what the claimant's "most likely future circumstances but for the injury" would have been and how they have altered. 6. Procedural fairness requires only that the party should reasonably have apprehended that the point had been opened up or was or might become a live issue: Re Building Workers' Industrial Union of Australia; Ex parte Gallagher [1988] HCA 4; (1988) 76 ALR 353; (1988) 62 ALJR 81; Re Coldham; Ex parte Municipal Officers Association of Australia (also cited as Re Architects of Australia Association; Ex parte Municipal Officers Association) [1989] HCA 13; (1989) 63 ALJR 298 at [19] per Gaudron J (Dawson J agreeing); United Voice v Restaurant and Catering Association of Victoria [2014] FCAFC 121; (2014) 226 FCR 255. An insurer, faced with the evidence before the Claims Assessor and bearing in mind the task upon which the Claims Assessor was embarking, should reasonably have apprehended that the Claims Assessor was required to assess the working life into the future of the claimant (the first defendant in these proceedings). Indeed, no insurer, acting reasonably, could have apprehended otherwise. 7. For the foregoing reasons, there is no denial of procedural fairness by the Claims Assessor in determining that there was a real possibility that, on account of the medical evidence, the first defendant's working life would be cut short and to compensate that possibility by the awarding of a buffer of the amount concerned. Further, there is no breach of principle associated with the assessment of damage in the manner assessed. 8. Lastly, in this area of evaluation and given that the Claims Assessor stated her assumptions as to the working life and the basis upon which the assessment was made, I conclude there is no absence of reasons that would give rise to orders of the kind sought. 9. The plaintiff also submitted that the awarding of a buffer for a shorter working life together with the reduction in earning capacity was a double counting of the compensation. There is no basis for this submission. 10. Assuming, as the Claims Assessor held, that the first defendant would otherwise have worked to age 67, then the loss of earning capacity would be measured against the time remaining to age 67. 11. If one were to compensate for a shorter working life as well, that would be done by assessing the loss of earnings at the reduced rate for the period during which no work would be performed. Thus, to utilise the calculation at [35] of the Reasons, recited above, but to add in precise amounts for retirement, 50% of the pre-accident earnings of $1,256 is $628 over 23 years, less 15% for vicissitudes amounts to $384,976. If the first defendant were to retire at 65, instead of 67 years of age, he would lose two years' earnings at $628 per week or $65,312. The buffer, which is necessarily imprecise and takes account of possibilities, is the equivalent of approximately 3 years' work at the current value of earnings. This is an assessment the assumptions for which have been disclosed and which was open to the Claims Assessor. 12. For the foregoing reasons, none of the grounds of review have been made out and the summons must be dismissed. 13. The Court makes the following orders: 1. Summons dismissed; 2. The plaintiff shall pay the first defendant's costs of and incidental to the proceedings, as agreed or assessed; 3. If either party seeks a different or special order as to costs, such should be the subject of an application made to my Associate, which application should include all relevant documents upon which the application relies, except those documents that are already in evidence and shall, but for those documents, not exceed three pages in length. Such application shall be made within one week of the issue of these reasons for judgment and be subject to a reply within one week of service of any such application. ********** 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: 26 April 2016