Insurance Australia Ltd t/as NRMA Insurance v Yu

[2019] NSWSC 400

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Insurance Australia Ltd t/as NRMA Insurance v Yu [2019] NSWSC 400
Hearing dates:	17 May 2018
Decision date:	12 April 2019
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	1. Dismiss the summons; 2. Plaintiff to pay the defendant’s costs
Catchwords:	ADMINISTRATIVE LAW – judicial review – assessment of damages under Motor Accidents Compensation Act 1999 (NSW) – adequacy of reasons – whether finding of loss of earning capacity unsupported by medical evidence – whether assessor failed to engage with insurer’s argument
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 94(4), 94(5), 126 Supreme Court Act 1970 (NSW), s 69
Cases Cited:	Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 Dranichnikov v Minister for Immigration [2003] HCA 26; 77 ALJR 1088 Kallouf v Middis [2008] NSWCA 61 Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 Zahed v IAG Ltd trading as NRMA Insurance [2016] NSWCA 55; 75 MVR 1
Category:	Principal judgment
Parties:	Insurance Australia Ltd t/as NRMA Insurance (plaintiff) Yuchen Yu (first defendant) State Insurance Regulatory Authority (second defendant) Terence Stern (in his capacity as a Claims Assessor appointed by SIRA) (third defendant)
Representation:	Counsel: KP Rewell SC (plaintiff) M Neil QC, J de Greenlaw (defendants)   Solicitors: Hall & Wilcox Lawyers (plaintiff) Harrow Legal (first defendant) Crown Solicitor’s Office (second and third defendants)
File Number(s):	2017/328959

Judgment

1. HER HONOUR: Yuchen Yu was hit by a car in December 2013 when she was walking across a pedestrian crossing at Granville. The collision threw her into the air and she landed some distance from the point of impact. Ms Yu brought a claim for damages which was governed by the Motor Accidents Compensation Act 1999 (NSW). The insurer of the car at fault, NRMA Insurance, admitted liability but disputed the injuries and disabilities alleged and the amount of damages claimed. The claim was assessed and a certificate issued in accordance with s 94(4) of the Act assessing damages in the sum of $133,482.02.

2. The components of that award were as follows:

   Past loss of earnings	$34,970.50
   Future loss of earnings	$50,000.00
   Past treatment (incl. s 83 payments)	$10,753.52
   Future treatment	$12,000.00
   Past gratuitous care	$25,758.00
Total damages assessed	$133,482.02

3. The amount of $50,000 for future loss of earnings was awarded by way of a “buffer”.

4. NRMA Insurance seeks to have the assessor’s decision quashed, invoking this Court’s supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW).

5. The summons specifies three grounds for review of the decision as follows:

1. the reasons for decision are inadequate;

2. there was no evidence to support the award for future loss of earnings;

3. the reasons do not engage with the plaintiff’s case.

6. Grounds 2 and 3 assert jurisdictional error and require the Court to consider the evidence and submissions that were before the assessor. The parties put that material before the Court in affidavit form and there was no objection to that evidence.

7. By contrast, a ground asserting inadequate reasons (as in ground 1) should ordinarily be understood to assert error on the face of the record. That would include the reasons stated by the assessor (s 69(4) of the Supreme Court Act) but it is not clear that the Court, in considering such a ground, should ordinarily have regard to any other material: Allianz Australia Insurance Ltd v Kerr (2012) 83 NSWLR 302; [2012] NSWCA 13 at [14]-[18] and [61] (Basten JA; McColl and Macfarlan JJA agreeing at [1] and [66]). However, at the hearing of the present application, Mr Rewell SC, who appears for NRMA Insurance, stated that the three grounds were “different ways of saying the same thing”. The essence of the complaint is that there was no medical evidence to support the awards for past and future loss of earnings and that the assessor failed to engage with NRMA Insurance’s argument on that issue.

8. That characterisation of the grounds was borne out by the arguments presented in the written submissions and developed in oral argument. The burden of the argument in support of ground 1 was that there was an absence of evidence to support particular findings; it was not argued as an error of law that could be discerned on the face of the record.

9. Accordingly, in order to determine the application as presented, it is necessary to consider the medical evidence before the assessor in some detail.

Evidence before the assessor

10. At the time of the accident in December 2013, Ms Yu had just completed her first year of a Bachelor of Nursing at Sydney University. She was also working part-time as a receptionist at a medical centre. She claimed that she had been unable to work for four weeks following the accident and there was ample evidence to support that part of the claim. From early 2014, she said that, following the accident, she had been able to maintain her studies but had had to reduce her hours as a medical receptionist. That was confirmed by a letter from the medical centre which stated that she had been working three sessions per week before the accident but that, following the accident, she had to reduce her hours to one or two sessions per week. Her claim for past economic loss included a claim for the loss of $120 per week throughout the period from early 2014 until late 2015.

11. Ms Yu completed her nursing degree at the end of 2015. Towards the end of that year she stopped working at the medical centre altogether while she completed clinical placements as part of her degree. She did not claim for lost wages as a receptionist from that time.

12. In early 2016, Ms Yu commenced working as a registered nurse, first at Westmead in radiology and then on a general ward at Blacktown Hospital. Her evidence concerning that work is addressed below.

13. The assessment conference was held on 21 June 2017. NRMA Insurance submitted that the medical evidence put before the assessor in support of the claim was sparse and out of date by that time. For the purpose of addressing that submission, I have considered that evidence roughly in chronological order.

14. Ms Yu’s medical evidence included a report from an orthopaedic surgeon, Dr Bodel. His report was dated 9 October 2014, less than a year after the accident and before Ms Yu had completed her studies. Confusingly, the report was requested on the incorrect assumption (corrected by the doctor in his answers) that being a medical receptionist was Ms Yu’s full-time occupation. The report included the following questions and answers:

“8.   Please also advise whether you are of the view that Ms Yu will be able to return to full-time employment as a receptionist:

This lady is a full time student. She has not indicated to me that she is a ‘full time receptionist’. She states that she did not work during the summer recess from university. I note however in the accident claim [form] some mention that she has work as a part-time receptionist, 10 to 15 hours per week, at the Quality Health Medical Centre in Lidcombe. I asked about work outside the university and studies but she did not volunteer that history. She is certainly involved in a full time university course and that is her main focus at the moment.

9.   If the answer to the above question is in the negative, please advise whether you consider that Ms Yu will be able to return to work as a [sic] on a part-time basis in the future.

This lady is back at her studies and coping with her full time role. She is not working outside her study program.

10.   If the answer to the above question is in the negative, please advise whether Ms Yu will be fit for any form of paid employment in any occupations which require prolonged standing and repetitious movements.

This lady needs to complete her university studies and then she will work in nursing.”

15. Ms Yu also relied on a report from Dr Akkerman, psychiatrist, dated 18 September 2014. The report is brief and the copy in evidence is barely legible. As with Dr Bodel, the report from Dr Akkerman appears to have been requested by Ms Yu’s lawyer on the incorrect assumption that Ms Yu was a medical receptionist. On the topic of “work history”, Dr Akkerman said that Ms Yu “used to work up to five days per week. She now works one day per week. She struggles with this.” In response to a question whether she was fit to return to work from a psychiatric point of view, he repeated that she struggled with working part time in her old job. So far as the report is legible, Dr Akkerman appears to have made no reference to her studies. It may be noted that Ms Yu has at times throughout the claim process used an interpreter and that may explain some of the anomalies in the evidence.

16. NRMA Insurance relied on a psychiatric report from Dr Potter dated 25 November 2014. Dr Potter obtained a history from Ms Yu and recorded (correctly) that she was then in her second year of a nursing degree. He thought she demonstrated some features suggestive of post-traumatic stress disorder and some reduced capacity as a result of the accident but did not think she displayed the features required for a formal psychiatric diagnosis. He said that she was “struggling” and had “a reduced capacity with pain and emotional distress”. He said that her “major concern” was the pain and the restrictions it imposed.

17. As to “work capacity”, Dr Potter said:

“She has returned to her studies with which she is having continued success but has decreased her work as a medical receptionist said to be due to the pain.

She requires no restriction from a psychological perspective.

From a psychiatric perspective, there is no indication from this assessment that her future ability in work as a nurse would be impaired.”

18. Ms Yu relied on a report from her general practitioner, Dr Elvin Cheng, dated 23 February 2015 (some 14 months after the accident and at the outset of her third and final year of her nursing degree). Dr Cheng said that, as a result of the accident, Ms Yu suffered from strained muscle injury on the neck and upper back; strained muscle injury on the lumbar spine; painful wounds and soft tissue injury on the right knee, ankle and left elbow and soft tissue injury on the right hand and left elbow. Dr Cheng also recorded that Ms Yu had developed psychological symptoms. Under the heading “Fitness for work and study”, Dr Cheng said “her part-time work as medical receptionist [sic] has reduced from three sessions per week to one session per week and her study on nursing [sic] has been compromised due to ongoing pain.” He said her prognosis was fair and that her recovery from the injuries had been slow. He said “since her future occupation as a nurse is quite physical, she may experience some limitations in her career”.

19. Also in evidence was a certificate provided by Dr Samuel Cheng dated 4 February 2016. NRMA’s submissions assumed that the author of that certificate was the same person as the author of the certificate dated 23 February 2015 but I note that both the first name and the provider number are different. Ms Yu obtained that certificate for the purpose of a job application after she graduated. When she applied for a position in a hospital, she had to complete an application form which asked whether she had previously suffered any injury. She responded by disclosing the motor vehicle accident the subject of these proceedings. As a result, she was asked to obtain a medical certificate. She provided the certificate from Dr Samuel Cheng. He said that Ms Yu had been treated adequately and that “her only remaining symptoms are intermittent dull discomfort in her neck and back”. He expressed the view that her symptoms were stable and would continue to improve slowly and that she was “fit to work in the position as a registered nurse”.

20. Ms Yu also relied on a report dated 27 February 2016 from an occupational therapist, Ms Memon. As noted by Mr Rewell on behalf of NRMA Insurance, she was not qualified to express a medical opinion and did not purport to do so. However, for completeness, it may be noted that her report included reference to Ms Yu’s concerns, following her completion of her nursing degree, of going into the workforce due to “her limitations”. Ms Memon said, “Ms Yu has reduced her hours of work since after the accident due to her pain, and when offered to work for five days she did not feel comfortable because of her injuries from the accident.”

21. The material relied upon by NRMA Insurance included a report of Dr Pierides, a specialist in occupational medicine, dated 6 April 2016. Unfortunately, the question directed to Dr Pierides as to work capacity also included an incorrect assumption, asking whether there had been any changes to her ability to perform her “pre-injury duties as a nurse”. Ms Yu had not worked as a nurse before the accident; she was still studying at that time. In response to that misleading question, Dr Pierides said he did not think there was any reduction in work capacity, saying:

“As noted above, her ability to study didn’t change and she passed her exams and is now working as a registered nurse. There hasn’t been any change in her abilities to perform her pre-injury duties as a registered nurse. There was no evidence of any injuries on her investigations or examination that would prevent her from undertaking her pre-injury duties without restriction.”

22. In answer to a further question, Dr Pierides confirmed his opinion that Ms Yu was “fit to perform her pre-injury duties as a registered nurse”.

23. Finally, the assessor had before him the independent assessment of the Medical Assessment Service prepared by a psychiatrist, Dr Parmegiani, who gave a certificate as to whole person impairment. NRMA Insurance relied on Dr Parmegiani’s application of the guidelines for determining permanent impairment where he said, under the heading “Adaptation”:

“Ms Yu continued to attend university, and had just completed the first semester of her studies in her third year. She attended university three days a week and studied from home two days a week. She had last worked as a receptionist two months earlier but stated that at the present time she preferred not to work in order to concentrate on her studies. I don’t believe that her psychological symptoms interfered with her ability to work.”

24. Mr Neil QC, who appears with Mr de Greenlaw for Ms Yu, noted, however, that that aspect of Dr Parmegiani’s assessment was confined to her psychological symptoms and that Dr Parmegiani had accepted that Ms Yu had symptoms consistent with an adjustment disorder with mixed anxiety and depressed mood due to the chronic pain she suffered as a result of the accident. Dr Parmegiani concluded, having regard to Ms Yu’s experience of pain, that the accident could be regarded as a substantial causal factor for Ms Yu’s psychological condition.

Ground 1: Inadequate reasons

25. As already noted, the burden of ground 1 as argued was that there was no evidence to support the two awards of economic loss (past and future) and that the assessor failed to grapple with that difficulty. Although the ground as framed has the guise of a “no evidence” ground, it is nonetheless appropriate to begin by recalling the content of the assessor’s obligation to give reasons.

26. Section 94(5) of the Motor Accidents Compensation Act provides:

The claims assessor is to attach a brief statement to the certificate, setting out the assessor’s reasons for the assessment.

27. The content of that obligation is expanded upon in clause 18.4 of the Claims Assessment Guidelines as follows:

“A certificate under section 94 or 96 is to have attached to it a statement of the reasons for the assessment. The statement of reasons is to set out as briefly as the circumstances of the assessment permit:

18.4.1 the findings on material questions of fact;

18.4.2 the assessor’s understanding of the applicable law if relevant;

18.4.3   the reasoning processes that led the assessor to the conclusions made; and

18.4.4 in the case of an assessment certificate pursuant to section 94, the Assessor must specify an amount of damages and the manner of determining that amount.”

28. It is well established that the obligation imposed by s 94(5) is a lesser one than that imposed on courts: Kerr at [53]. As explained by Leeming JA in Zahed v IAG Ltdtrading as NRMA Insurance [2016] NSWCA 55; 75 MVR 1 at [4] (Meagher JA agreeing at [1]), that is because the obligation imposed by the section is to be construed in accordance with the object of the guidelines “to provide a timely, fair and cost effective system for the assessment of claims” and “to assess claims and disputes fairly and according to the substantial merits of the application with as little formality and technicality as is practicable and minimising the cost to the parties”. Justice Leeming noted that there may be a tension between the obligation to explain and the obligation to be concise. His Honour recognised in that context that the reasons “need not be long” and that there will be many cases in which “a single sentence would suffice”, provided the reasoning process is exposed: at [7]-[9].

29. In the case of the award for future economic loss it was necessary for the reasons to include a statement of the assumptions relied upon for the purposes of s 126 of the Motor Accidents Compensation Act: Kerr at [53]. No issue is taken concerning that requirement in the present case. The assessor identified his assumptions at [121] of the decision.

30. While NRMA’s submissions specifically addressed the assessor’s findings as to past and future loss of earnings, it was made plain that it was not to be taken for that reason to accept his assessment of damages under other heads. The rationale for the confined attack was that one jurisdictional error is enough.

Past loss of earnings

31. The claim for past loss of earnings included loss of wages as a receptionist at the medical centre, sick leave during Ms Yu’s first year of nursing and loss of overtime from the time when Ms Yu commenced general nursing at Blacktown Hospital.

32. NRMA Insurance submitted that there were two major difficulties with those claims. Both concerned the claim for lost overtime (the amount of which was just under $15,000 for a period of roughly ten months). First, it was submitted that the high water mark for Ms Yu was Dr Bodel’s report and that his opinion did not support any incapacity for full nursing duties, including overtime. Secondly, it was submitted that there was no evidence as to the availability of overtime at Blacktown Hospital, or that Ms Yu refused overtime, “other than her own oral evidence”.

33. Ms Yu gave evidence that she commenced working as a nurse in the radiology department at Westmead in February 2016. She found some aspects of the job challenging but also found that the duties were relatively light compared with general nursing in a ward. She made no claim for overtime for that period.

34. In August 2016, Ms Yu moved to a general ward at Blacktown. She acknowledged that modern nursing does not involve particularly heavy work and that if it does, assistance is provided. She added:

“Having said that, I have had to have a number of days off work due to an increase of pain in my neck and/or back from the previous day’s activities.”

35. Ms Yu said that in 2016 she used the totality of her sick days. The assessor allowed her claim to recover the value of that leave.

36. The claim in respect of lost overtime was addressed at par 36 of her statement, as follows:

“Although there is plenty of additional work available at both Westmead and Blacktown hospitals, generally I do not work overtime, unless the job at hand requires it. I did some overtime when at Westmead however, have avoided taking any since I moved to Blacktown. Overtime is at 1½ times for the first 2 hours and then at double the pay rate. By the end of a normal shift I am tired with a few aches and pains aggravated by work depending on the work required that shift. As a result, I avoid putting up my hand for overtime because of my pain and I earn less each week than I would be able to if I were physically healthy. Most nurses work between 4-8 hours (some considerably more) of overtime a week at double the hourly rate.”

37. It appears Ms Yu also addressed those matters at the assessment conference. The assessor accepted her account of her symptoms and found that she was “clearly not only not a malingerer but a person who is hard working and positive”. He said, “at least subjectively she should be accepted on her account of the nature and intensity of her symptoms” bearing in mind that each person experiences pain in a different way.

38. The assessor addressed the overtime claims at [96] and [97] of the reasons, noting the claimant’s evidence and the claim for the median overtime allowance of six hours per week. At [105] of the reasons the assessor noted the insurer’s submission that Ms Yu had not established the evidentiary basis for loss of overtime because (a) she had not established the availability of overtime, (b) there was no medical evidence to establish that she had been unfit to do overtime and (c) the “truth of the matter” was that it did not suit her to do overtime, not that she could not do it.

39. Following a reference to the principles stated in the decision of the High Court in Medlin v State Government Insurance Commission (1995) 182 CLR 1; [1995] HCA 5 concerning the need to establish that earning capacity has in fact been diminished and that the diminution is or may be productive of financial loss, the assessor said at [107]-[108]:

“As a result of the accident the Claimant suffered an impairment which resulted in a past loss of income. This arose as a result of the impact of the accident on her in terms of pain and the psychological sequelae. While Dr Pierides considers that all the Claimant’s symptoms resolved, I have accepted the Claimant as a truthful historian and that her accounts of her pain are true and real. It matters not whether or not the symptoms are objectively verifiable. For her, they are real. Everybody feels pain in a different way and in circumstances where a person has clearly not been a malingerer but a steadfast and resolute person who has done her best to deal with the challenges of life as well as with the challenges resulting from this accident. There is no reason why her account of her symptoms should not be accepted. She says that she was unable to cope with work as well as her studies and that because of the pain, and I accept this account as truthful. She says that she was unable to do overtime in the past while she was working as a general nurse by reason of the demands of the general nursing position in the context of her symptoms of pain and again I accept that as truthful. She has the relevant impairment and the loss of income was caused by that impairment.

I accept that the evidence establishes that the Claimant has in fact lost income as she submits as being the case. With respect to overtime, the Claimant has dealt with this in paragraph 36 of her statement. She is present and she can observe whether or not there is overtime available and she says that there was plenty of additional work available at Blacktown Hospital and says she has avoided it since she moved to Blacktown. She says why she cannot do overtime and sets out the amount of overtime most nurses were doing. She sets out the penalty rates for overtime.”

40. NRMA Insurance submitted that those reasons are insufficient. Specifically, it was submitted that the assessor had not attempted to explain the “lack of support” by Dr Bodel for the claim for past loss of earnings and that he had ignored the absence of any supportive medical evidence for the claim after the date of that report. It was submitted that the conclusion reached by the assessor was supported only by Ms Yu’s own lay evidence and was unsupported by the medical evidence.

41. In oral submissions, Mr Rewell summarised the medical evidence as follows: Dr Parmegiani said “I don’t believe that her psychological symptoms interfered with her ability to work” (Tcpt, 17 May 2018, p 10(1)); Dr Samuel Cheng said she is “fit to work in the position as a registered nurse” and expressed no qualifications to that opinion (Tcpt, 17 May 2018, p 4(38)); Dr Bodel was invited to express his opinions on matters relevant to economic loss and made no statement supporting such a claim (Tcpt, 17 May 2018, p 7(43)); Dr Pierides found that there was “nothing … to prevent her from undertaking her pre-injury duties without restriction” (Tcpt, 17 May 2018, p 8(15)); Ms Memon expressed no opinion as to her ability to work as a nurse (Tcpt, 17 May 2018, p 5(16)); Dr Akkerman provided no assistance on the question of being fit for work (Tcpt, 17 May 2018, p 8(28)) and Dr Potter’s report did not comment on her ability to work as a nurse (Tcpt, 17 May 2018, p 8(40)).

42. Mr Rewell submitted that, in those circumstances, the assessor was under an obligation to give his reasons for accepting Ms Yu’s lay evidence to the exclusion of this medical evidence and for ignoring or rejecting all of the medical evidence on that topic.

43. I do not accept those submissions. As submitted by Mr Neil QC, the reasoning could hardly be clearer. The assessor set out all of the relevant medical opinions, particularly including the comments concerning Ms Yu’s experience of pain. There was a common thread in the evidence on that issue; it was generally accepted that Ms Yu had experienced chronic pain as a result of the accident and that, as a result, she had some reduced capacity. The assessor accepted Ms Yu’s evidence concerning her experience of pain, which was consistent with medical evidence on that point.

44. At [107] of his reasons the assessor found that Ms Yu suffered an impairment which resulted in a past loss of income. He found that she suffers ongoing pain with psychological sequelae. He expressly considered Dr Pierides’ opinion that her symptoms are resolved but rejected that as a basis for dismissing Ms Yu’s own account of her symptoms, instead finding “it matters not whether or not the symptoms are objectively verifiable. For her they are real.”

45. At [108] the assessor accepted Ms Yu’s evidence that overtime work was available to her and that she lost income because she was unable to do overtime because of her pain. He explained why he made that finding; Ms Yu was “present and she can observe whether or not there is overtime available”; he accepted her as “a truthful historian” and for those reasons found the lay evidence on that point to be sufficient evidence. There is no principle of law that precludes such an approach. In my respectful opinion, the reasons were not merely adequate but were logical and clear.

Future loss of earnings

46. NRMA Insurance further submitted that the assessor did not provide adequate reasons for awarding Ms Yu a buffer for future loss of earnings in the amount of $50,000.

47. Ms Yu made a claim for loss of overtime for the next five years in the amount of $66,116.00 as well as a buffer claim to cover the uncertain impediment to her future career progression caused by her injuries.

48. The assessor did not accept the claim for loss of overtime for the next five years. He said at [117]-[118]:

“While there has to date been overtime available the Claim for future overtime rests on nothing more than the proposition that overtime has been available in the past. The Claimant has not produced any evidence, expert or otherwise, as to the likelihood of overtime continuing. As a matter of common sense the availability and the income it generates of overtime depends on many issues:

i)   whether or not penalty rates will continue to be paid;

ii)   public funding;

iii)   the future workload at Blacktown Hospital.

In the absence of evidence as to current policy and likely future policy it is merely speculation as to whether or not overtime will continue to be available and in those circumstances the Claimant has not discharged the onus of proof.”

49. The assessor then considered whether to award Ms Yu a buffer based on the impediment the injuries from the accident might cause her during her future employment. He noted Ms Yu’s concessions that she is provided assistance with heavy work and lifting, that this allows her to work a full shift each day and that even if she had a choice she would not choose to work at night and earn the shift allowances available at those times.

50. He set out his reasons for awarding a buffer in the amount of $50,000 at [129]-[133] as follows:

“I have already said that I accept the Claimant on her account of her current symptoms and her level of pain and I accept that there is a continuing impairment which is likely to trouble the Claimant in the short to medium term.

The Claimant has provided information at the Assessment Conference of her slow but steady improvement and it would appear that her psychological condition is also improving.

The Claimant is not a malingerer and is doing her very best to cope with her employment but on the balance of probabilities there will be some continuing periods of loss of income as a result of the accident.

There will be a loss, which I assess at $50,000. In doing so I have in mind the authorities which permit me to assess a buffer for future economic loss in circumstances where there is likely to be a loss but the amount cannot be determined with precision.

The factors which affect the issue of precision are:

i) The effect on the condition of treatment. The Claimant has not had much treatment and she has certainly had no treatment for chronic pain. I have allowed in the assessment of future out-of-pocket expenses for chronic pain treatment.

ii) The continued resolution of psychological symptoms which interact with the pain condition. In this respect I refer to what Dr Potter has said.

iii) The fact that the Claimant is very well motivated and in this confined context perhaps against interest.

51. It is well recognised that a buffer may be awarded when the precise impact of an injury on earning capacity is difficult to determine. As explained by McColl JA in Kerr at [6] (by reference to authority), the want of precise evidence does not result in non-recovery of damages.

52. The assessor in the present case referred to s 126 and set out the relevant principles relating to the award of a cushion or buffer: at [119]-[120]. He specified the assumptions he made about future earning capacity, as required by s 126: at [121]. He then summarised the relevant parts of Ms Yu’s evidence and noted his previous acceptance that she suffers a continuing impairment due to her pain and that she is not a malingerer. He found at [132] that there was likely to be loss of future income but that this loss could not be determined with precision. At [133], he specified the indeterminate factors that precluded a more precise award. He made the factual findings necessary to support the conclusion that an award of a buffer was appropriate. In particular, he found that, even though Ms Yu was “fit to work”, she suffered from ongoing pain and that this would likely cause some indeterminate impediment to her work in the future.

53. The burden of the NRMA’s complaint was that the assessor did not grapple with the parts of the medical reports stating Ms Yu was fit to work and instead focused on her account of her pain. In his reasoning the assessor gave clear reasons for accepting that evidence.

54. It is appropriate in this context to note the remarks of Basten JA in Allianz Australia Insurance Ltd v Cervantes [2012] NSWCA 244; 61 MVR 443 at [24]:

“The submissions further asserted that the claims assessor failed to have ‘proper, realistic and genuine consideration’ to the expert report. These words do not advance the matter any further. As the High Court noted in SZJSS at [30], referring expressly to the phrase ‘proper, genuine and realistic consideration’:

‘That which had to be properly considered was “the merits of the case”. Taken out of context and without understanding their original provenance, these epithets are apt to encourage a slide into impermissible merit review’.”

55. As with the award for past economic loss, with respect, the reasons for this aspect of the decision could hardly have been clearer. This Court cannot embark upon a review of the merits of the decision. Ground 1 must be rejected.

56. Ground 2: lack of evidence for loss of future earning capacity

57. The remaining grounds can be addressed briefly. NRMA Insurance submitted that there was “no medical evidence at all” (emphasis in original) to support the awards of damages for loss of earnings. It was submitted that to award damages in that circumstance was an error of law relying on the decision of the Court of Appeal in Kallouf v Middis [2008] NSWCA 61.

58. The submission explicitly extended to the proposition that it was not open to the assessor to make a finding of reduced capacity to earn on the strength of the “uncorroborated” evidence of Ms Yu.

59. I do not accept that there was no medical evidence to corroborate Ms Yu’s evidence on this issue. There was Dr Cheng’s prognosis in 2015 that “she may experience some limitations in her career”. Dr Samuel Cheng’s letter of 2016 said that her symptoms will continue to slowly improve and she is “fit to work in the position as a Registered Nurse” but, as submitted by Mr Neil QC, it does not follow that she would have no reduced capacity to work. NRMA’s submissions on this issue tended to conflate those concepts. Dr Bodel’s report, which focused on Ms Yu’s studies as opposed to her ability to work, did not exclude any claim for future partial economic loss as a nurse.

60. Mr Neil also noted Dr Potter’s opinion that “although reduced in capacity, she is able to continue to cope with life, work and study” and “she is struggling and does have a reduced capacity with pain and emotional distress.” Further, Dr Parmegiani described Ms Yu as a “fair and reliable historian” who “did not try to exaggerate or embellish her symptoms” and diagnosed her with “persistent symptoms of chronic pain”.

61. I do not think the decision in Kallouf v Middis assists the NRMA on this ground. That was an appeal, not a judicial review case. The trial judge had found that the appellant was totally incapacitated to continue to work. The Court of Appeal disagreed with that finding because the medical evidence accepted some capacity for “light work”: at [81]. The decision is not authority for the proposition that expert evidence is essential to substantiate a finding of some incapacity. The Court of Appeal held that the trial judge had taken both the medical and lay evidence before him too far, and it was on this mischaracterisation of the evidence that the finding of complete incapacity was in error. The Court of Appeal concluded that the evidence before the trial judge was sufficient to support a claim of some incapacity and adjusted the amount awarded to the appellant appropriately.

62. In accepting the evidence of Ms Yu in the present case, the assessor was not preferring lay evidence to expert evidence or ignoring the expert evidence. The NRMA’s focus on Dr Samuel Cheng’s certificate that Ms Yu was “fit to work” assumed a false dichotomy; it does not follow that she had no reduced capacity to earn in the future. Ms Yu could be fit to work as a nurse but still be likely to earn less than her fellow nurses because she suffered from intermittent pain and resulting fatigue. The experts accepted that there was a medical basis for pain and the decision-maker accepted that the evidence about pain was honest. The combination of those two pieces of evidence allowed a finding that Ms Yu’s future earning capacity might be reduced because of her experience of pain. The assessor’s acceptance of Ms Yu’s evidence did not indicate that he had ignored the certification of fitness to work.

63. Ground 2 must be rejected.

1. Ground 3: the reasons do not engage with the plaintiff’s case

64. Ground 3 invoked the decision of the High Court in Dranichnikov v Minister for Immigration and Multicultural Affairs; [2003] HCA 26; 77 ALJR 1088. It was submitted that the assessor did not engage with NRMA’s case and that there was accordingly a failure to accord natural justice or procedural fairness. Mr Rewell submitted that the assessor seemed to have ignored the opinions expressed in the medical reports and that this evidence, if properly engaged with, would not have allowed the awards for past and future loss to be made.

65. The decision in Dranichnikov concerned a complaint that the Migration Tribunal had mischaracterised the facts of the claim put to it. Mr Dranichnikov had claimed to be a member of a particular social group of “entrepreneurs”. The decision-maker overlooked the fact that the case had been put in that way and rejected the application on the basis that there was no evidence to suggest “that there is general persecution of businessmen in Russia.”

66. The decision-maker accordingly failed to consider facts put to it by Mr Dranichnikov which went directly to the question of whether he met the statutory definition he was required to meet in order to establish status as a refugee. Justices Gummow and Callinan held at [24] that “to fail to respond to a substantial, clearly articulated argument relying upon established facts was at least to fail to accord Mr Dranichnikov natural justice”.

67. Mr Rewell submitted that the assessor in the present case failed to engage with the clearly articulated argument that the claim for economic loss was totally unsupported by medical evidence.

68. The manner in which the assessor addressed the evidence is considered at length above in the discussion of ground 1. The decision in Dranichnikov does not allow judicial review based on the level of engagement by the decision-maker with particular pieces of evidence. As Kirby J explained at [88]:

“it is not every mistake in understanding the facts, in applying the law or in reasoning to a conclusion that will amount to a constructive failure to exercise jurisdiction. But where, as here, the mistake is essentially definitional, and amounts to a basic misunderstanding of the case brought by an applicant, the resulting flaw is so serious as to undermine the lawfulness of the decision in question in a fundamental way.”

69. I am not persuaded that there was a failure to engage with the NRMA’s case. Ground 3 must be rejected.

70. For those reasons, I make the following orders:

1. Dismiss the summons;

2. Plaintiff to pay the defendant’s costs.

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Amendments

08 May 2019 - citation corrections

Decision last updated: 08 May 2019