Supreme Court New South Wales Medium Neutral Citation: IAG Limited v Sleiman [2017] NSWSC 1346 Hearing dates: 11 August 2017 Date of orders: 05 October 2017 Decision date: 05 October 2017 Jurisdiction: Common Law Before: Fagan J Decision: Set aside the decision of the second defendant made 5 January 2017. Remit the matter to the third defendant for re-assessment of future economic loss. No order as to costs. Catchwords: TRAFFIC LAW AND TRANSPORT – Motor Accidents Compensation Act 1999 (NSW) – judicial review of s 94 certificate – challenge to assessment of future economic loss – adequacy of reasons – whether decision unreasonable – set aside future economic loss component of s 94 certificate – remit for reassessment by another assessor. Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) Supreme Court Act 1970 (NSW) Cases Cited: Campbelltown City Council v Vegen (2006) NSWLR 372; [2006] NSWCA 284 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 Category: Principal judgment Parties: IAG Limited T/AS NRMA Insurance (plaintiff) Ahmad Sleiman (first defendant) Shana Radnan in her capacity as Claims Assessor of the State Insurance Regulatory Authority of New South Wales (second defendant) State Insurance Regulatory Authority of New South Wales (third defendant) Representation: Counsel: Mr Mark Robinson SC/Ms Jnana Gumbert (plaintiff) Submitting appearances filed for all three defendants Solicitors: Sparke Helmore Lawyers (plaintiff) Drexler & Partners Litigation and Compensation Lawyers (first defendant) Crown Solicitor's Office (second and third defendants) File Number(s): 2017/077160 Judgment 1. The plaintiff is a compulsory third party liability insurer under the Motor Accidents Compensation Act 1999 (NSW) ("the Act"). It seeks judicial review of an administrative decision made under that Act on 5 January 2017 by the second defendant, an assessor of the State Insurance Regulatory Authority ("the Authority"). The decision is comprised in a certificate issued under s 94 of the Act, assessing damages for injuries sustained by the first defendant in a motor vehicle accident on 31 January 2014. The sum assessed is $929,516.01. 2. The second and third defendants filed submitting appearances. The first defendant filed a response to the summons but did not participate in the hearing. The plaintiff's arguments in support of orders quashing the assessment have therefore been received by the Court without opposing arguments from any contradictor. The assessment 1. The plaintiff admitted liability for the accident by letter of 9 July 2014. Accordingly the referral to the Authority under s 90 of the Act was for assessment of the amount of damages only. Under s 93 of the Act the Principal Claims Assessor appointed the second defendant to assess the claim. The material provided to the second defendant (hereafter "the assessor") included medical assessment certificates issued pursuant to s 61 of the Act. One of these certificates dealt with physical injuries and attributed 4% Whole Person Impairment to soft tissue injuries to the first defendant's right shoulder and to his right knee. Another certificate attributed 22% Whole Person Impairment to psychiatric consequences, namely chronic Post Traumatic Stress Disorder and chronic Major Depressive Disorder with panic phenomena. 2. The assessor held an assessment conference in accordance with s 104 of the Act on 1 November 2016. Subsection (5) of s 94 required that she attach to her certificate of assessment of the first defendant's damages "a brief statement … setting out the assessor's reasons for the assessment". The certificate issued on 5 January 2017 was accompanied by twelve pages of reasons in which the damages claim was considered in its various components, concluding with the following summation of assessed amounts: Non-economic loss 200,000.00 Economic loss: Past treatment 26,139.03 Future treatment 40,000.00 Past Economic Loss 50,000.00 Future Economic Loss 497,503.98 Past care 22,969.00 Future commercial care 92,904.00 $929,516.01 Grounds 1. The plaintiff's grounds for seeking an order that the assessor's certificate be quashed are concerned with the component allowed for future economic loss. The plaintiff relies upon s 126 of the Act (which governs assessment by a court of damages for future economic loss) and s 122(3) (which provides that Ch 5, including s 126, applies to assessments by assessors in the same way as it applies to assessments by a court). Section 126 is as follows: 126 Future economic loss—claimant's prospects and adjustments (cf s 70A MAA) (1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant's most likely future circumstances but for the injury. (2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury. (3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted. 1. The plaintiff's grounds occupy two pages of the summons but may be summarised, without detraction from their substance, as follows: 1. (Numbered 5(a)(i) in the summons). The assessor failed to make and record findings on matters which were necessary for correct application of s 126(1). 2. (Numbered 5(a)(ii) in the summons). The assessor applied a wrong legal test by considering the first defendant's "potential earning capacity" rather than "the claimant's most likely future circumstances but for the injury", as required by s 126(1). 3. (Numbered 5(b) in the summons). The assessor failed to provide adequate reasons, in particular with respect to how she arrived at her finding that the first defendant's "potential" earning capacity was $1,000 per week or how she derived the figure to which effect was given in the certificate, namely, $600 per week. 4. (Numbered 5(c) in the summons). The decision so far as it includes $497,503.98 for future economic loss is unreasonable in the sense that no reasonable assessor acting with a correct appreciation of the task could have arrived at this figure and the decision, in this respect, lacks evident and intelligible justification. 1. An order quashing the assessor's decision, as sought by the plaintiff, may be made under s 69 of the Supreme Court Act 1970 (NSW) if there is shown error of law on the face of the record (see subs (3) of s 69) or jurisdictional error. The record includes the decision-maker's reasons: s 69(4). There would be an error of law on the face of the record if the assessor's reasons disclose that she applied a legal test contrary to s 126, as alleged in ground (2). Failure to provide adequate reasons, as alleged in grounds (1) and (3), would also be an error of law on the face of the record: Campbelltown City Council v Vegen (2006) 67 NSWLR 372; [2006] NSWCA 284 at [130]. Unreasonableness is alleged in ground (4), in the sense explained in Minister for Immigration and Citizenship v Li (2013) 249 CLR 332; [2013] HCA 18 at [76]: Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification. If this should be established with respect to the assessor's decision it would constitute jurisdictional error. The assessor's reasons 1. Against this factual and legal background the assessor's reasons are to be evaluated. Relevantly for present purposes the reasons include the following findings and analysis (with references to paragraphs of the assessor's reasons shown thus: "[21]"). 2. The assessor accepted as accurate the first defendant's income tax returns filed in respect of the five financial years up to and including the year in which the accident occurred. They showed the following (see [21]): Financial year ended 30 June: $ per week 2010 1094 2011 848 2012 448 2013 49 2014 13 1. As the accident occurred in January 2014 and the first defendant did not work thereafter, the last of these tax returns may be taken as indicating $26 per week during the six months to 31 December 2013. Other evidence in respect of the two years preceding the accident, coupled with the tax returns, caused the assessor to find that in that period the first defendant "had hardly worked … and had taken two small casual positions". He had been unemployed at the date of the accident: [10] and [21]. 2. The first defendant's initial claim form was completed on 19 May 2014 with the assistance of a solicitor. Question 37 as to whether the first defendant had lost income because of the accident was ticked "No". Question 48 as to whether firm arrangements had been made before the accident for the first defendant to start a new job was ticked "Yes" but the request on the claim form for details was left blank: [16] and [17]. 3. The assessor found that "only over time has the [first defendant's] history evolved" into an assertion that he had been offered full-time employment prior to the accident: [16]. She recorded the following conflicting accounts of this as given by the first defendant at various times. He told a doctor on 26 June 2015 that he had worked for Leighton Contractors in construction for 6 years up to the date of the accident and that prior to that he had worked as a lexographic printer for 5 years. He said to this doctor that he had "applied for" a job with "the Sydney Frame Team" as a carpenter shortly before the accident and was to have had a medical examination on 6 February 2014. 4. Inconsistently with this he told another doctor on 1 September 2015 that his work with Leighton Contractors had ended in 2012 (which is more in conformity with his tax returns) and that he had then taken a redundancy. The first defendant said he had been "offered a full-time carpentry job" shortly prior to the accident and had attended a medical "in about mid-February" but had failed that due to his injuries. In a statement prepared for the purposes of the assessment the first defendant said the job he had been offered in about January 2014 was "a set run in a heavy rigid truck … working full time 8 hours [per] day, 5 days per week at about $33.00 per hour with the promise of regular overtime": [18g]. 5. The assessor recorded that a letter from the putative prospective employer was produced, dated 11 February 2014, but the assessor found that letter short on detail and she was left with "concerns as to the arrangement": [14]. The assessor found as follows: [19] I find it difficult to reconcile that if the job was as certain as is now claimed the details would [not] have been available at the time of the initial claim form was completed. The proximity to the event was much closer. [20] The lack of particularisation by the prospective Employer also suggests that the arrangements claimed were very loose in nature and possible [sic] only formed for the purposes of this claim. 1. The first defendant claimed loss of income at the rate of $1,538 per week. The assessor concluded: [22] There was no evidence of income capacity of $1,538.00 net weekly prior to the accident and I am sceptical about the alleged position about to be commenced subject to a physical examination being undertaken due to the discrepancies in the history provided. 1. The assessor's analysis of these facts, with respect to past and future economic loss, appears at [60] – [86]. Her principal findings with respect to past economic loss were as follows: [60] A claim has been made that the Claimant has suffered a loss in the sum of $1,538.00 from the date of accident to the date of Assessment. [61] A claim of $192,250.00 has been made for the weekly loss of income and a further claim of $21,148.00 for loss of superannuation for the same period. [62] The Insurer submitted that I should not accept such losses as the Claimant did not establish he was earning such weekly sum and the evidence of taxation returns for the preceding years did not establish the Claimant had an exhibited capacity as claimed. [63] I am not satisfied that the Claimant was going to earn [the] amount claimed and for the reasons already stated do not find there is credible evidence of the job as a carpenter being the likely scenario. [64] The Insurer submitted a buffer was at most the more appropriate option as defined loss could not be established and having regard to the fact that he had not worked apart for two occasions in the preceding 2 years that a sum of $50,000.00 at most should be allocated to this head of damage. [65] I accept the submission of the insurer as the more appropriate estimate of loss based upon the evidence before me. Mr Sleiman was not working at the time of the accident and may have commenced employment as a carpenter, but it was not certain that he would have satisfied the role and he may not have completed the probation period. There was no regular income at the time of the accident and I take this into account when assessing loss. I assess past economic loss by way of buffer in the sum of $50,000.00 inclusive of superannuation entitlement. 1. The assessor commenced her consideration of future economic loss by quoting subs (1) of s 126 of the Act at [66]. There followed these reasons, extracted so far as relevant: [67] The most likely circumstances but for the injuries sustained in this accident, is [sic] that the Claimant would have continued to work in various positions utilising his various skill sets in the printing and constructions [sic] industries and had periods off work in between jobs from time to time. [68] Whilst his evidence was that he intended to obtain full time work as a carpenter and then become qualified as a builder and work on projects himself as this earned better money, there is insufficient evidence before me for me to accept this as a likely proposition. [69] I accept that the injuries and continued pain he suffers has had a significant effect on his ability to perform pre-injury work related tasks. He has physical restrictions due to neck, back, shoulder and knee pain and cognitive problems as well as anxiety and depression. His psychological overlay also impacts on employability. [70] Critical to the assessment of future economic loss is a consideration of whether the Claimant has any residual earning capacity. [71] The Insurer argues he has significant residuary capacity and relies upon the vocational capacity assessment of Dr Hall and the opinion that the Claimant is exaggerating his problems to increase his damages. [72] At most the Insurer conceded a buffer in the sum of $100,000.00 would be appropriate to cover future economic losses. [73] I do not agree with the Insurer's estimate of loss, having regard to the fact that the Claimant has a further working life of 33 years and the ongoing restrictions are likely to have a greater impact on his employability than the Insurer would like me to believe. [74] Nor do I accept the suggested quantification of loss as submitted by the Claimant. [75] The sum of $ 1,156,699.00 submitted represents a loss of $1,538.00 net weekly for the remainder of the Claimant's working life. The loss of superannuation of $161,938.00 is based upon the primary losses claimed. There has not been substantiation of such ability to earn in his past and whilst there was a very short attempt to work in 2015, it is unlikely he would have generated such income. The Claimant submitted he had a capacity to generate $33.00 hourly and this might have been possible in some jobs but such jobs in construction are intermittent as evidenced by his past earning capacity. [76] A Claimant has a duty to mitigate losses and the Claimant indicated that he would undertake pain management if provided as well as psychological therapy of paid for. Having allowed for the anticipated future treatment, it may is [sic] likely that there is room for improvement. From a physical perspective, he is able to undertake lighter duties and if he can manage his perception of pain, he could undertake some employment. This is a residual earning capacity which I consider exists but to date has not been exhibited. [77] The Claimant is literate, has computer skills, has indicated an interest in online courses and most likely will attempt some employment even if on a part-time basis when this matter reaches finality. [78] I do not consider that the Claimant is totally incapacitated. I accept there Mr Sleiman has a restriction on his ability to lift no greater than 10-15k. This would impact on his ability to work in heavy industry. His knee problems make climbing a problem and standing for long periods difficult. His back problems impact on bending carrying and repetitive movements and this is required for the construction industry. His right shoulder problems make overhead work difficult. [79] He would be able to perform lighter duties, if his psychological symptoms were reduced. I take this into account when determining future losses. [80] It has been suggested that the Claimant could retrain in his printing roles to undertake graphic work and there may be other lighter processing roles as suggested by Dr Hall. [81] I am also mindful of the Claimant's past work history which indicated sporadic but lengthy periods of unemployment. Between 1/7/2013 and 31/1/2014 his total earnings were $235.00 and $471.00 from two casual positions. It is likely that there would be similar periods of unemployment into future even had the accident not occurred. [82] It is unlikely that the Claimant will return to full-time employment. This is due to the impact of ongoing disabilities and [I] find the Claimant will continue to suffer economic loss into the future. The degree of such loss will be addressed in calculation of damages below. [83] I accept that the Claimant's earning capacity has been effected and as such it will be productive of loss. [84] I do not think the Claimant will return to full time work. I estimating [sic] future losses are likely to be in the vicinity of $600.00 net per week. This represents a loss of 3 days a week at an estimated rate of $200.00 per day. This is an estimate based upon a reduction in capacity of the hours he is able to work and likely reduced pay for part-time roles. It was suggested that he is capable of performing 6 hours a day five days a week, but having regard to the psychological problems it is more likely he could only work a day or two at most a week or part time for a few hours each day. This was supported by MAS Assessor Prior. I accept it is likely that in the current marketplace he has a potential earning capacity of $1,000.00 net per week, similar to the role undertaken previously with Leightons. [85] I therefore calculate future economic loss to age 67 as follows:- a. $600 x 33 years 5% (855.7 multiplier) x 85% = $ 436,407.00 b. Superannuation at the rate of 14% on the above sum $61,096.98 [86] I assess future economic loss in the sum of $497,503.98. Ground (3): failure to give adequate reasons 1. The steps by which the assessor arrived at her ultimate figure for future economic loss may be re-ordered as follows: 1. "[T]he most likely circumstances but for the injuries sustained in this accident" are that the first defendant would have worked in printing and construction with "periods off work in between jobs from time to time": [67], [81]. 2. The first defendant has "in the current marketplace" a "potential earning capacity of $1,000 net per week, similar to the role undertaken previously with Leightons": [84]. 3. Notwithstanding his disability as a result of the accident, the first defendant would "most likely … attempt some employment even if on a part-time basis" ([77]) and, despite physical restrictions ([78]), would be able to perform light duties ([79]). 4. It is "unlikely" first defendant would return to full time employment ([82], [84]). It is "more likely he could only work a day or two at most a week or part time for a few hours each day": [84]. 5. Hence, the loss of capacity to work is represented by three days loss of work per week. At the rate of $1,000 net per week or $200 per day, for full time employment in the manner considered "the most likely circumstances but for the injuries sustained", that loss is calculated in money terms at $600 per week. 1. With the exception of an absence of explanation of how the assessor arrived at her conclusion in item (b), that the first defendant would have earned $1,000 net per week but for the accident, the above summarised steps of reasoning were sufficient to discharge the assessor's obligation to give reasons. 2. As to item (b), it has been observed at [10] that the figure for weekly earnings in the financial year ended 30 June 2014 implied that in the six months immediately preceding the accident the first defendant must have earned on average $26 per week. Taking that together with the weekly earnings for the preceding four years, to 30 June 2013, the first defendant's average weekly earnings over four and a half years to the date of the accident had been $545, on evidence which the assessor expressly accepted. This is the weighted average of the figures in [9] and [10]. Factored into this average is a high point of slightly over $1,000 per week for the earliest year (apparently when he was employed by Leighton Contractors), significantly lower and declining weekly earnings for the next two years, then very low weekly income in the next year and a half, during which the assessor found the first defendant was for the most part unemployed. 3. The assessor's reasons say nothing as to how she arrived at a figure for future average weekly earnings, but for the accident, which would be nearly double his average for the four and a half years leading up to the date of injury. On the face of the reasons the conclusion is irreconcilable with the findings stated at [67] that the first defendant "would have continued" to work in construction and printing with "periods off work in between jobs from time to time". The finding that his employment "would have continued" as in the past could only support an inference of future average weekly earnings of $545, unless some other finding or calculation or justification should be introduced to support the higher figure for the future. 4. The assessor's reasons do not identify any such additional finding, calculation or justification. No path of reasoning from the pre-accident average of $545 per week to a post assessment forecast of $1,000 appears anywhere in the reasons. Ground (3) must be upheld and the certificate of assessment must therefore be set aside. Grounds (1) and (2): failure to apply s 126(1) correctly 1. I do not consider that the assessor failed to make or record findings as necessary for the application of s 126(1). The first of her findings relevant to the award for future economic loss is that summarised at [18](a) above. Namely, that the first defendant would have continued to work in the construction and printing industries. In making this finding the assessor expressly applied the requirement of s 126(1) that the basis of assessing future economic loss should be "the claimant's most likely future circumstances but for the injury". At [67] the assessor explicitly stated that she found continuance in the construction and printing industries constituted "the most likely circumstances but for the injuries". The statutory test has been conformed to, precisely. 2. The assessor's second relevant finding is that, absent the accident, the first defendant's employment would have been interrupted from time to time between jobs, as had been the case in the past. At [81] this was said to be "likely". In the context of the whole of the reasons, read fairly, there is no difference between this and a finding, as required by s 126(1), that the circumstances relied upon for the economic loss calculation should be those found to be "most likely", but for the accident. In any event, the finding that there would have been intermittent interruptions to the first defendant's employment, even without the accident, is favourable to the plaintiff. 3. The assessor's third finding for the purposes of assessing future economic loss is that the "most likely" pattern of future employment would have generated average weekly earnings of $1,000 net. This figure was expressed (at [84]) as the first defendant's "potential earning capacity". The plaintiff submits that in that phrase the assessor applied an erroneous test different from the statutory test of "most likely circumstances". But earlier in the same paragraph the assessor said she estimated the first defendant's loss as "likely to be" approximately $600 per week calculated at $200 per day for 3 days. That is, she found it "likely" that he would lose three days of work per week due to his injury and that it was "likely" that the work, if he could have performed it, would have generated $200 per day. 4. The reference to "potential earning capacity of $1000 net per week" later in the same paragraph is merely repetitive of the assessor's conclusion that it was "likely" that but for the accident he would have earned $200 per day for five days per week. There is no difference between the finding that $200 per day is the "likely" rate of pay the first defendant could have commanded and a finding, as required by s 126(1), that this rate is one of the "most likely circumstances" of his employment, if he had not been injured. 5. I conclude that all of the "assumptions" for the future economic loss calculation have been stated by the assessor and that all are the subject of findings that they constitute the "most likely" scenario had the accident not occurred. The assessor did not err in the application of s 126(1) in this respect. Ground (4): future economic loss quantification unreasonable 1. Substantially for the reasons given at [20] – [22], the assessor's attribution to the first defendant of a likely future rate of earnings, but for the accident, of $1,000 per week is strikingly and demonstrably unreasonable. It is inconsistent, internally, with the evidence recorded by the assessor and which she states she has relied upon. Notably, the four and a half years past earnings disclosed in the first defendant's tax returns. It is inconsistent with the assessor's stated assumption and reasoning that the first defendant's pattern of employment would have continued as before. 2. On a reading of the whole of the reasons it is evident that the unexplained leap to a future earning capacity of nearly double the first defendant's demonstrated capacity over the years for which figures were available would deliver to him not compensation for lost capacity but a very considerable windfall. The resulting calculated figure of $497,503.98 for future economic loss in the assessment lacks "evident and intelligible justification" and the certificate must, on this additional ground, be set aside. Orders 1. Because I have upheld Grounds (3) and (4) the second defendant's certificate of assessment must be set aside. The plaintiff submits that the certificate is an indivisible whole and must be set aside in its entirety, rather than being set aside only as to the future economic loss component. An equivalent submission was made to Hidden J in Allianz Insurance Ltd v Ward (2010) 79 NSWLR 657 and upheld (at [69] – [73]). In the absence of any argument to the contrary before me I will take the same approach as Hidden J. The assessment must be remitted to the third defendant for reassessment but, as a practical matter in view of the plaintiff not having contested any part of the assessor's reasons except that relating to future economic loss, it would be expected that the re-assessment would be concerned with that component only. I have concluded that the reassessment should be assigned to an assessor other than the second defendant. If the matter were to be considered again by the second defendant on being remitted from this Court there would be a justifiable apprehension on the plaintiff's part that she may have prejudged the matter and that she would revisit the assessment of future economic loss with a tendency to justify the quantum at which she previously arrived. 2. The plaintiff does not seek its costs of the proceedings in this Court. 3. Accordingly, the orders of the Court are: 1. The decision of the second defendant made 5 January 2017 pursuant to s 94(4) of the Motor Accidents Compensation Act 1999 (NSW) comprised in a certificate of assessment of damages is set aside. 2. The assessment of the first defendant's damages is remitted to the third defendant for re-allocation pursuant to s 93 of the Motor Accidents Compensation Act 1999 (NSW) to an assessor other than the second defendant, the reassessment to be conducted having regard to these reasons. ********** 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: 05 October 2017