IAG Limited t/as NRMA Insurance v Damien Mares

1. [1]

   On 1 June 2016 the plaintiff, IAG Limited t/as NRMA Insurance commenced these proceedings by way of Summons in which a number of orders were sought in relation to an assessment and certificate of a claims assessor, Alan Cowley, the second defendant (the Claims Assessor) made on 26 February 2016, purportedly pursuant to s 94(6) of the Motor Accidents Compensation Act 1999 (the Act).

2. [2]

   The first defendant, Mr Mares, (the claimant) was injured in a motor vehicle accident in NSW on 14 April 2013. He lodged a claim for compensation with the compulsory third party insurer of the vehicle, the plaintiff. The plaintiff admitted that its insured was at fault for the accident. The matter proceeded on the question of the assessment of damages only.

3. [3]

   The plaintiff and the claimant were parties to a non-curial personal injury damages assessment process that was undertaken by the Claims Assessor. An award in the sum of $97,297.62 plus some assessed costs was made in favour of the claimant in respect of personal injury damages.

4. [4]

   The Summons was supported by the affidavit of Michael Joseph Gillis, solicitor, sworn 20 July 2016. Annexed to the affidavit were copies of the relevant documentation pertaining to the Claims Assessment and Resolution Service proceedings.

5. [5]

   The plaintiff subsequently sought and obtained leave to rely upon an Amended Summons dated 14 June 2016 and a Further Amended Summons dated 3 November 2016.

6. [6]

   In the proceedings the plaintiff invoked the Supreme Court’s judicial review jurisdiction under s 69 of the Supreme Court Act 1970.

7. [7]

   The plaintiff contends that a number of jurisdictional errors and/or errors of law on the face of the record were made in the course of the Claims Assessor making his decision, in particular, in relation to the award of damages for future economic loss.

8. [8]

   Paragraph 6 of the Amended Summons asserts three errors using the following terms:

The Claims Assessor’s Reasons for the Decision

1. [9]

   The Claims Assessor’s Certificate issued in accordance with s 94(4) of the Act was attached to the Claims Assessor’s Reasons for Decision (the Reasons). A copy of them is to be found in the Court Book (CB) at pp 330-334.

2. [10]

   The Reasons were structured into five parts. In the first part, Introduction, the Claims Assessor noted that the claimant was 28 years of age at the date of the accident and was 31 years of age at the date of the Reasons.

3. [11]

   The Reasons recorded that the accident in which the claimant was injured occurred when the insured’s vehicle cut across in front of the claimant’s car as he was driving at about 60km per hour. He braked so heavily that it caused fractures to his right foot. He also suffered a whiplash type injury to the neck.

4. [12]

   It was noted that the insurer admitted liability and the claimant conceded that there was no claim for non-economic loss.

5. [13]

   In respect of past economic loss the Claims Assessor noted that this was agreed at six weeks at $773 being $4,638 plus superannuation of $598.85.

6. [14]

   It was also noted in that the claimant sought future economic loss for which the insurer made no concessions.

7. [15]

   In the second part of the Reasons entitled “What is the nature and extent of the Claimant’s injuries?”, the Claims Assessor noted that the claimant fractured the second, third and fourth metatarsal necks of his right foot and that he was taken to Westmead Hospital and was treated and referred to his general practitioner, who in turn referred him to an orthopaedic surgeon. He remained in a CAM boot for six weeks and was discharged under the care of the surgeon to his GP.

8. [16]

   The Claims Assessor noted at [15]:

9. [17]

   The Claims Assessor noted that the claimant conceded to the Insurer that his foot had continued to gradually improve, as he had been reassured by his treating doctor: at [16].

10. [18]

    The Claims Assessor also noted that he continued to suffer from neck pain arising out of the subject accident but again the claimant conceded that he was gradually improving in that respect.

11. [19]

    It was noted that he continued to take some over-the-counter analgesics from time to time and had taken himself to a physiotherapist to obtain some relief.

12. [20]

    There were two reports tendered at the assessment. One report was from Dr Habib, who was qualified on behalf of the claimant, and the other report of a Dr Maxwell qualified on behalf of the Insurer. The Claims Assessor noted that Dr Maxwell agreed the injuries as claimed had been caused by the subject accident although Dr Maxwell disagreed that the fractures to the foot would give rise to degenerative atrophy.

13. [21]

    The Claims Assessor further noted at [20]:

14. [22]

    The Claims Assessor then made an observation which is of significance to the issue arising in respect of the award for future economic loss. He stated at [22]:

15. [23]

    The third part of the Reasons dealt with future treatment expenses, a matter that does not rise for consideration in the present case.

16. [24]

    The fourth part of the Reasons was entitled “Future Economic Loss”. The submissions for the claimant relied upon before the Claims Assessor, stated:

17. [25]

    The Claimant made a statement dated August 2015 which was before the Claims Assessor. In paragraph [52] of his statement, he stated:

18. [26]

    The Claims Assessor noted that the claimant submitted that this was a major part of his claim.

19. [27]

    By reason of the issues that fall for decision in these proceedings it is desirable that I reproduce all of the matters recorded in the Reasons in relation to the future economic loss claim at [27] to [47]:

20. [28]

    The Claims Assessor set out his assessment of the claim in his certificate dated 26 February 2016 as follows:

SUBMISSIONS

1. [29]

   I had the benefit of detailed written submissions on behalf of both parties. The plaintiff insurer relied upon the following:

   1. (1)

      Plaintiff’s summary submission prepared by Mr Mark Robinson SC, dated 24 October 2016.

   2. (2)

      Plaintiff’s reply submissions prepared by Mr Mark Robinson SC, dated 2 November 2016.

2. [30]

   The first defendant’s written submissions prepared by Mr E Romaniuk SC and Mr D Hanna of counsel were entitled First Respondent’s Written Submissions and dated 2 November 2016.

Plaintiff’s Submissions

1. [31]

   The plaintiff’s written submissions helpfully set out an overview of the relevant statutory compensation scheme under the Act. It was noted at [18] that claims assessors are empowered by and have regard to “guidelines” made under the Act establishing procedures for assessing claims and styled “Claims Assessment Guidelines” (the Guidelines).

2. [32]

   In respect of an assessment conference involving the determination of monetary damages, Chapter 16 of the Guidelines is the most relevant. In particular clauses 16.1 to 16.12 set out the Claims Assessor’s role and powers. The plaintiff’s submissions set out what are referred to as Guiding Principles in respect of what constitutes errors of law on the face of the record and/or jurisdictional errors.

3. [33]

   It was submitted for the plaintiff that a claims assessor is bound to make an award of damages in accordance with s 94(1)(b) of the Act which provides:

4. [34]

   Accordingly, it was submitted the claims assessor must make an award that accords with the general law and Chapter 5 of the Act (ss 122 to 146). It was then submitted:

5. [35]

   It was submitted for the plaintiff that notwithstanding that the Claims Assessor awarded damages in the nature of a “buffer”, when performing his statutory task, he was still required to comply with s 126 of the Act by setting out his found assumptions on which the award was purportedly based.

6. [36]

   The provisions of s 126 of the Act, it was noted, are in the following terms:

7. [37]

   It was observed that it was well settled that claims assessors are required to comply with s 126 when performing their statutory function. In that regard reference was made to the observations of Basten JA in Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 (with whom McColl and Macfarlan JJA agreed at [31].

8. [38]

   The plaintiff contended that the Claims Assessor had failed to comply with s 126 when making his decision. He did not, it was argued, make any findings as to the claimant’s most likely future circumstances but for the accident.

9. [39]

   It was further submitted on behalf of the plaintiff:

10. [40]

    It was submitted at [79] that the Claims Assessor failed to set out “lawful reasons” to explain his award for future economic loss, at least in the following respects:

11. [41]

    It was contended that these are most basic matters that need to be explained and, in effect without that, there is no transparency.

12. [42]

    It was noted that in the absence of a proper “path of reasoning” being set out it is not possible to know why the Claims Assessor did what he did.

13. [43]

    The failure to give reasons, it was contended, amounts to a denial of procedural fairness and the Reasons should be set aside on this basis.

14. [44]

    This relied upon the ground of legal unreasonableness. The alleged third error was not developed or specifically the subject of further oral submissions.

15. [45]

    In the written submissions, the plaintiff contended that in making the findings that gave rise to the first and second errors, the Claims Assessor made a decision that plainly lacked an evident and intelligent justification. It was also contended that there were inconsistencies in the Claims Assessor’s reasoning.

16. [46]

    It was concluded that the decision under review is vitiated by jurisdictional error and/or error of law on the face of the record and that it should be set aside and the matter remitted for hearing by a different claims assessor.

First Defendant’s Submissions

1. [47]

   It was noted in the submissions for the first defendant, the claimant, that the plaintiff’s allegations of administrative error in respect of the award for future economic loss are inter-related and cover the same subject matter. It was noted that the plaintiff submitted that the error concerned the following matters:

   1. (1)

      The Claims Assessor had applied the wrong legal test upon a finding that there was a diminution of the claimant’s earning capacity. It was argued that he failed to find that the injury was productive of a financial loss before making the award.

   2. (2)

      The Claims Assessor did not set out assumptions, or sufficient assumptions, or alternatively, the Claims Assessor failed to set out proper or lawful reasons for that award.

   3. (3)

      The award for future economic loss was “legally unreasonable in that it was irrational and illogical and lacked any intelligible justification”.

2. [48]

   In respect of the first error, it was contended for the First Defendant that in relation to the correct approach to assessing future economic loss, his earnings, current at the time of assessment, did not speak to future losses. Accordingly it was argued the plaintiff’s reliance on the then current earnings of the First Defendant was legally and factually misplaced as it misses the legal and factual purpose of an award in the nature of a buffer in respect of future economic loss where, at the time of the award, there was no demonstrable loss. It was submitted that this is commonplace as, for example, in the case of children or injured persons in the early stages of their employment. It was noted that at the time of the accident the plaintiff had only just commenced his career as a qualified mechanic.

3. [49]

   In respect of the second error, it was noted that the plaintiff had identified three matters that it says needed to be explained but were not. First, that the injuries were likely to be productive of loss. Second, the period of time when the loss would be suffered. Third, whether it reflected what is referred to as an “all the time” inability to do mechanic work.

4. [50]

   These three matters, it was argued in fact established the legal and factual justification for a buffer or an estimated approach. It was submitted that they are sufficiently apparent from the Reasons. Reference in this respect was made to paragraphs [15], [20], [21], [22], [32], [33], [45] and [47] of the Reasons.

5. [51]

   The buffer or estimate approach was said to reflect an “evaluative” assessment of those type of matters where the evidence does not permit more precise findings. Further, the sum fixed on by the Claims Assessor was said to itself be an evaluative judgment that reflects the above three matters as well as other matters, including age.

6. [52]

   It was argued that where an evaluative assessment and an evaluative judgment are involved, the decision maker’s obligation to state assumptions and reasons has to reflect that process in a “practical manner”. In this respect it was submitted that s 126 is not a statutory device that precludes legally or factually the evaluative nature of an award by a buffer or estimate approach. The “reasons obligation” is to provide “brief” reasons. In assessing whether that obligation has been met it was appropriate to have regard to the whole of the reasons: at [6.8].

7. [53]

   In respect of the third error contended by the plaintiff, it was noted that this error relied upon the failure to state reasons complaint and the complaint about “no evidence” as to the difference in the then current earnings.

8. [54]

   As to specific aspects of the contentions made by the plaintiff as to error, it was submitted on behalf of the claimant that as to the contention that the wrong legal test was applied by the Claims Assessor, the reasons at [47] identified the basis for the buffer or cushion approach because the extent by which the claimant’s earning capacity has been impaired is “incapable of precise calculation”: at [13].

9. [55]

   It was further submitted that the conclusion reached in this case that the assessment of the impairment of the claimant’s earning capacity was incapable of precise calculation lays the correct legal foundation for an award by way of buffer, estimate or cushion. Authorities of the Court of Appeal cited in this respect were recorded in [14] of the written submissions. Accordingly it was argued

10. [56]

    It was also noted that a buffer or estimate approach is awarded as “compensation for the chance that the claimant may be disadvantaged in the future because of the injury”: Penrith City Council v Parks [2004] NSWCA 201 at [58].

11. [57]

    It was contended that there was no legal merit to the plaintiff’s contention that the Claims Assessor “did not find that it was productive of a financial loss” because in fact that was done through the buffer, estimate or cushion methodology: at [15].

12. [58]

    It was also that the plaintiff’s factual position at the hearing before the Claims Assessor that as the claimant was earning more money at the time of the assessment conference hearing than he had been at the time of the accident, that meant that there could be no award for future economic loss. However, it was submitted that the complaint that is now made in the present proceedings as to error was being put forward on a different basis: at [17].

13. [59]

    It was submitted that the submission made before the Claims Assessor factually, and legally, failed to recognise that at the time of the accident the claimant was in his first month of a mechanical apprenticeship and was removed from his career for which he had trained for at an early stage.

14. [60]

    It was contended that “the static comparison” of the claimant’s pre-accident and post-accident earnings were particularly inappropriate on the question of his future impairment of earning capacity. In any event, it was of no significance on the question of future economic loss (loss of earning capacity) by merely comparing earnings at the time of the accident to earnings at the time of the assessment conference hearing: at [18].

15. [61]

    It was submitted:

16. [62]

    As to the provisions of s 126(3) of the Act (relevant to the second alleged error) it was submitted that it is not necessary for a Claims Assessor to provide a separate and specific set of reasons which deal with the assumptions for the purposes of that section. Rather, what is in issue is whether the reasons, taken as a whole, show that the purposes of an award by way of cushion, buffer or estimate, have been addressed. It was further submitted that where an award is by way of a buffer or cushion, some of the matters referred to in s 126(3) of the Act are appropriately addressed at a general, if not implicit, level: Allianz Australia Insurance Ltd v Kerr, supra, at [21]-[36] per Basten JA.

17. [63]

    It was submitted that in a sense, an award made on the basis that the impairment of earning capacity is incapable of precise calculation means that the assumptions for the purpose of s 126(3) of the Act in such a case have the same level of imprecision.

18. [64]

    In relation to the error asserting a failure to provide reasons it was noted that, the matters relied upon in support of the claimant’s case in relation to the other asserted errors, are also applicable to this ground.

19. [65]

    Finally, as to the question of whether the reasons were legally unreasonable, it was submitted that when the Claims Assessor’s reasons are properly understood as a whole, the award of future economic loss does not fall within the administrative law concept of being legally unreasonable. To the contrary, it was submitted, the award reflected an assessment of the impact of the impairment upon the claimant’s earning capacity but that the assessment of that was incapable of precise calculation.

CONSIDERATION

1. [66]

   Before coming to the provisions of the Act, given the nature of the issues raised in these proceedings concerning the award of damages for future economic loss, I note that it has been accepted that the fact that a claimant/plaintiff’s income has not declined does not mean that the injured person has not suffered loss. Such an injured person is entitled to recover damages for a diminished earning capacity: Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5.

2. [67]

   In the consideration of the plaintiff’s submissions it is as well to commence with the provisions of the Act, in particular with the relevant provisions of Part 5.2, headed “Damages for Economic Loss”. In that Part, s 126 prescribes the basis upon which an assessment of the value of loss of an incapacity is to be made. That section is extracted at [36] above.

3. [68]

   A series of Court of Appeal decisions have clarified the provisions of s 126 and their application. In particular, it is now clear that s 126 does not prevent the award of a cushion or buffer for future economic loss: MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone (2004) 41 MVR 235; [2004] NSWCA 145; Penrith City Council v Park, supra; and Nominal Defendant v Lane [2004] NSWCA 405.

4. [69]

   The relevant common law principles have been encapsulated within the following formulation which was approved by the Court of Appeal in Kallouf v Middis [2008] NSWCA 61:

   1. (1)

      Assess the “most likely” of the possible future economic circumstances facing the claimant but for the accident (including type of employment, duration of employment and remuneration);

   2. (2)

      Assess the claimant’s economic prospects as a consequence of the accident;

   3. (3)

      Compensate the claimant for the difference between (1) and (2), including, where appropriate, through the use of a buffer;

   4. (4)

      Adjust (3) by an appropriate percentage (including, where appropriate, by 0%) for vicissitudes, to reflect the possibility that the claimant may not have achieved (1) even had the accident not occurred;

   5. (5)

      Include a statement of the assumptions made as the claimant’s most likely future circumstances and the appropriate percentage adjustment (as to the above formulation see Leslie & Britts, Motor Vehicle Law New South Wales, at [MAC.126.40].

5. [70]

   In Nominal Defendant v Livaja [2011] NSWCA 121 the Court of Appeal (Basten and Campbell JJA and Rothman J) discussed the structured approach required in the assessment of future economic loss. In that case, their Honours stated:

6. [71]

   In addition, the Court in Livaja noted at [41]:

7. [72]

   The Court in that case observed that each of these factors is liable to variation, depending upon the circumstances of the case. Examples given included the likelihood of improved earning capacity for a skilled or professional person who was at the beginning of a career when the accident occurred, may be high. The possibility of unemployment for periods may be low in some occupations and higher in others. The Court noted that it was common under the general law to allow a reduction in the order of 15% (depending on the circumstances) for “vicissitudes” to allow for the possibility that some event other than the injury would have adversely affected earning capacity. Assuming that length and continuity of employment are treated as “events concern” for the purposes of 126(2), that provision may be seen as allowing for variation for such vicissitudes: at [42].

8. [73]

   Accordingly, in the present case, in order to apply the structured approach under s 126, the Claims Assessor was required to consider the likely future employment prospects of the claimant had he remained uninjured, the “but for” test. The Claims Assessor then was required to have regard to the evidence including medical evidence relating to the claimant’s injuries and subsequent history and to assess, in light of all the relevant evidence, the residual earning capacity.

9. [74]

   In Allianz Australia Insurance Ltd v Cervantes (2012) 61 MVR 443; [2012] NSWCA 244, the Court of Appeal considered, inter alia, an award of a buffer for economic loss: see, in particular, Basten JA at [33]-[48]. In that case, his Honour considered the provisions of s 126 in relation to an award of a buffer, McColl and Macfarlan JA agreeing.

10. [75]

    In Cervantes, the claimant sought compensation under the Act and was awarded $75,000 for past economic loss and $400,000 for future economic loss. Each amount was awarded as a lump sum or “buffer”.

11. [76]

    During the course of his consideration, Basten JA observed:

12. [77]

    In Allianz Australia Insurance Ltd v Kerr, supra, McColl JA considered an award of damages including in particular damages for future economic loss. The principal complaint concerning what was an award by way of a cushion or buffer in the sum of $200,000 was the fact of the buffer for a substantial sum having been made and also if a buffer was to be awarded, then the reasons for the quantification should be expressed.

13. [78]

    McColl JA observed that the circumstances in which damages by way of a buffer are appropriate, were summarised in Pollard v Baulderstone Hornibrook Engineering Pty Ltd (2008) 172 IR 453; [2008] NSWCA 99. In that case it was stated at [84]:

14. [79]

    In Kerr, McColl JA further observed at [7] that the award of a buffer for future economic loss in circumstances “where earning capacity has unquestionably been reduced but its extent is difficult to assess”, reflects the proposition that the want of precise evidence “does not necessarily result in non-recovery of damages”: State of New South Wales v Moss (2000) 54 NSWLR 536; [2000] NSWCA 133 at [87] per Heydon JA.

15. [80]

    McColl JA further observed that it must also be taken into account, when considering the appellant’s complaint in that case as to the adequacy of the claims assessor’s reasons for quantifying the buffer, that the task of assessing damages for loss of earning capacity is “necessarily impressionistic”: Brear v James Hardie & Co Pty Ltd (2000) 50 NSWLR 388; [2000] NSWCA 352 at [49].

16. [81]

    McColl JA also observed in Kerr that the authorities recognise that, whether in the s 126 context or when applying common law principles of assessment of damages as to future hypothetical scenarios, there is a point at which, even with the application of the requisite degree of intellectual rigour which s 126 was presumably intended to promote, an element of impression must be involved. Her Honour observed that the Claims Assessor properly arrived at this point once he had made the minimum factual assumptions necessary for the s 126 exercise and that no legal error had been identified in the award of the buffer.

17. [82]

    In Kerr, Basten JA observed:

18. [83]

    The argument that had been advanced in the written submissions for the appellant in Kerr to the effect that there was no evidence that the provisions of s 126 had been complied with, was without substance. Basten JA observed that most of the factors had been discussed by the assessor relevantly with respect to future economic loss.

19. [84]

    It was noted in that case that the assessor had set out the claimant’s background noting that she had psychiatric disabilities suffered from a young age, her training, her work experience, and the injuries suffered in the accident. After reviewing various medical reports, the assessor expressed the opinion that despite her pre-existing vulnerability, her condition had been noticeably exacerbated by the subject accident. Further, it was noted that whilst the respondent was still in employment, it was not in a job that she had found satisfying and there was a real possibility of losing it. Accordingly, the assessor was satisfied that, but for the accident, the respondent would have continued work with some time off to change jobs and some time off work otherwise. He stated that she had satisfied s 126 of the Act and was entitled to an amount for future economic loss.

20. [85]

    Basten JA concluded at [35] that the only factor which was not stated, in conformity with s 126(3) in that case was “the percentage possibility” that the events concerned might have occurred but for the injury: s 126(2). However, it was noted that as explained by Giles JA in Penrith City Council v Parkes, supra, adopting “the broad approach of a buffer” meant that there is no question of a percentage adjustment. Further, the failure to state that fact did not constitute a material error.

21. [86]

    The observations and findings made in relation to the nature and extent of the claimant’s injuries at [12]-[26] of the Reasons (relevantly summarised at [15] to [23] above) it is clear, must be read, and were intended to be read, together along with the observations and findings made in respect of the discussion of future economic loss at [27] to [47] of the Reasons (extracted at [27] above).

22. [87]

    The question is whether the reasoning process can be discerned, reading the reasons as a whole and applying a beneficial construction: Zahed v IAG Limited t/as NRMA Insurance (2016) 75 MVR 1; [2016] NSWCA 55, per Leeming JA at [6]. As there also observed, a gap in reasons may be filled as a matter of necessary inference on a fair reading of the reasons.

23. [88]

    When read together, the following were accepted by the Claims Assessor:

    1. (1)

       The claimant was a person who was motivated and qualified in the occupation of a motor mechanic and his future employment, it is to be assumed, would have been in a career in his chosen occupation (mechanics).

    2. (2)

       In consequence of the fractures to his right foot, the claimant had continued to suffer from a physical impairment which restricted his sporting activities, as well as his occupational activities as a motor mechanic.

    3. (3)

       That the impairment had resulted in disabilities and limitations that prevented him from doing the full range of work as a motor mechanic. Accordingly, for that reason, he sought and obtained employment in an alternative field of work, namely, as a service advisor with Mercedes Benz at Parramatta and, in due course, with Mazda Penrith.

    4. (4)

       By reason of the claimant’s disabilities and impairment, he had permanent restrictions on his future earning capacity, in particular in the field of motor mechanics. Such impaired earning capacity would remain for the balance of his normal working life.

    5. (5)

       The impairment of his earning capacity as a result of the subject accident was incapable of precise calculation. Accordingly, on that basis the assessment of the loss of earning capacity was appropriately to be considered on the basis of a buffer in the amount of $80,000.

24. [89]

    On the basis of the above findings, it is at least implicit that the Claims Assessor proceeded upon the premise that, on the probabilities, the claimant would have exercised his earning capacity as a mechanic, but for the accident. However, the impairment of that capacity by the accident-caused injuries, on the probabilities, would occasion economic loss that was not capable of precise calculation.

25. [90]

    As has been observed, the calculation of economic loss, whether in the past or for the future, involves a comparison between the actual circumstances of the claimant, as a result of the accident, and the circumstances which would probably have continued or come to pass but for the accident. On the assumption that the accident resulted in a loss of earning capacity, in proceedings such as the present, consideration must also be given to the question as to whether such loss might have occurred independently of the accident: Allianz Australia Insurance Ltd v Cervantes, supra, at [33].

Conclusion

1. [91]

   The Claims Assessor was obliged only to provide brief reasons for his decision. When his reasons are analysed and details as to the relevant findings are identified, the path of reasoning of the Claims Assessor becomes evident. The claimant at the time of the accident was qualified in the field of mechanics, and he had no impairment or disabilities prior to the accident. On the evidence including that of the Claimant, who was accepted as a credible witness, the injuries suffered in the accident produced permanent physical impairment with consequent restrictions on his ability to undertake the full range of work of a motor mechanic. On that basis, the likely employment future facing the claimant prior to the accident, but for the accident/injuries, he being a fit young man in good health and qualified for his occupation, was established by the Claims Assessor’s findings. That formed a critical basis for the assessment of future economic loss.

2. [92]

   The findings as to permanent impairment of earning capacity required the Claims Assessor to consider whether or not an assessment of future economic loss could be made on a quantified basis. It is evident from the conclusions and findings of the Claims Assessor that that was an impossible task.

3. [93]

   The claimant, a young man at the time of assessment, had a long working life expectancy. Post-accident he was left with a significant and permanent impairment which would limit his earning capacity on the open labour market.

4. [94]

   The claimant’s impairment carried with it the real possibility of future loss of earnings. As to precisely what form that would take, periodic time off work, or loss resulting from an inability to compete on the open employment market due to his impairment was, of course, impossible to forecast.

5. [95]

   Notwithstanding the inability to undertake any forecasting on such matters with precision, the established physical and economic impairment and consequent partial incapacity lent itself to an award of a buffer, the precise amount of which was a matter of evaluation rather than precise calculation.

6. [96]

   When the Reasons are so read, the path of reasoning followed and applied by the Claims Assessor, in my opinion, is clearly evident. Furthermore, having regard to the favourable findings as to the claimant’s credibility, the award of damages for future economic loss by way of a buffer of $80,000 for a person of his age and qualifications, was, in my opinion, an unexceptionable award.

7. [97]

   In relation to the claimed errors relied upon in the Amended Summons, I have concluded:

   1. (1)

      That Mr Mares, as claimant, established, to the Claims Assessor’s satisfaction, the assumptions as to his future earning capacity on which the award was to be based. The award accorded with his most likely future circumstances but for the injury, namely, that having qualified in the field of mechanics, he would have, but for the accident, pursued a career as a qualified mechanic.

   2. (2)

      In making the award for future economic loss, the Claims Assessor stated and proceeded upon the basis (“the assumptions”) that whilst the claimant would permanently remain incapacitated for the full work of a mechanic, he would be able to pursue other forms of employment, and that the impairment/partial incapacity was not susceptible to precise quantification. Accordingly, the appropriate approach was to evaluate his loss in terms of a ‘buffer’ or ‘cushion’: Pollard v Baulderstone Hornibrook Engineering Pty Ltd, supra, at [84] per McColl JA, and Allianz Australia Insurance Ltd v Kerr, supra at [7] per McColl JA.

   3. (3)

      Given the required basis for assessing future economic loss, the Claims Assessor did not, in my opinion, fail to set out “proper or lawful reasons for his decision,” pursuant to s 94(5) of the Act, as claimed in the Amended Summons.

   4. (4)

      There is no basis for the asserted third error that, in making the assessment of future economic loss, the Claims Assessor’s decision was legally unreasonable in that it was irrational and illogical and lacked any intelligent justification. The Claims Assessor’s Reasons represented a conventional approach to the assessment of a case such as the present. The Reasons took into account the evidence, the claimant’s accepted credibility, his age, his qualifications at the time of the accident as a mechanic, and the medical and other evidence that established a permanent impairment of his earning capacity.

8. [98]

   Accordingly, as the asserted errors relied upon by the plaintiff insurer have not been established, and for the reasons set out above, the proceedings should be dismissed.

Orders

1. [99]

   I make the following orders:

   1. (1)

      The proceedings by way of Summons commenced on 1 June 2016 are dismissed.

   2. (2)

      In accordance with the provisions of s 98 of the Civil Procedure Act 2005 and under UCPR r 42.1, costs should follow the event. Accordingly, I make an order that the plaintiff pay the First Defendant’s costs of the proceedings subject to any submission on costs made upon delivery of this judgment or upon the proceedings being re-listed for that purpose at 9.45am Wednesday 14 December 2016.