QBE Insurance (Australia) Limited v Gerald Polorotov

[2017] NSWSC 1266

Supreme Court

New South Wales

Medium Neutral Citation:	QBE Insurance (Australia) Limited v Gerald Polorotov [2017] NSWSC 1266
Hearing dates:	1 September 2017
Date of orders:	29 September 2017
Decision date:	29 September 2017
Jurisdiction:	Common Law
Before:	Harrison AsJ
Decision:	The Court orders that:  (1) The claim for judicial review fails. (2) The summons filed 1 June 2017 is dismissed. (3) The plaintiff is to pay the first defendant’s costs on an ordinary basis.
Catchwords:	ADMINISTRATIVE LAW - judicial review - Motor Accidents Compensation Act 1999 – challenge to the assessment of a State Insurance Regulatory Authority Claims Assessor for damages – whether the Claims Assessor erred in law in finding there was no exercisable residual earning capacity - whether the Claims Assessor failed to explain the actual path of reasoning by which he reached his conclusion – whether the Claims Assessor failed to engage with the insurer’s argument – whether there was a denial of procedural fairness
Legislation Cited:	Accident Compensation Act 1985 (Vic) MAA Claims Assessment Guidelines MAA Permanent Impairment Guidelines, 1 October 2007 Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266 Insurance Australia Limited Ltd trading as NRMA Insurance v Hutton-Potts (2010) 57 MVR 194 Kallouf v Middis [2008] NSWCA 61 McGinn v Ashfield Council [2012] NSWCA 238 Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 Pham v NRMA (2014) 66 MVR 152 Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 Zahed v IAG Limited t/as NRMA Insurance and Others (2016) NSWCA 55; 75 MVR 1
Category:	Principal judgment
Parties:	QBE Insurance (Australia) Limited (Plaintiff) Gerald Polorotov (First Defendant) State Insurance Regulatory Authority (SIRA) (Second Defendant) (Submitting Appearance) Thomas Goudkamp (in his capacity as a claims assessor appointed by SIRA) (Third Defendant) (Submitting Appearance)
Representation:	Counsel: K Rewell SC M A Robinson SC with G Foster (First Defendant)   Solicitors: McInnes Wilson Lawyers (Plaintiff) Valenti & Valenti Solicitors (First Defendant)
File Number(s):	2017/165193
Publication restriction:	Nil

Judgment

1. HER HONOUR: This is a judicial review from a decision of a claims assessor’s assessment of damages for past and future economic loss.

2. The plaintiff insurer challenges the legal validity of an assessment made and a certificate issued by a claims assessor, Thomas Goudkamp, the third defendant (the Claims Assessor), that was made on 30 March 2017 pursuant to s 94(4) of the Motor Accidents Compensation Act 1999 (NSW) (the Act) (the decision under review). The amount of damages specified in the certificate of assessment is $665,530.16 plus assessed costs in the sum of $60,530.06.

3. The plaintiff is QBE Insurance (Australia) Limited (the insurer). The first defendant is Gerald Polorotov (Mr Polorotov). The second defendant is the State Insurance Regulatory Authority (SIRA), a statutory corporation that administers the compulsory third party insurance and compensation scheme under the Act. The third defendant is SIRA’s Claims Assessor (who made the decision under review). The second and third defendants have filed submitting appearances. Hence, Mr Polorotov (the claimant below) is the only active contradictor.

Background

4. Mr Polorotov was, at the time of the motor vehicle accident on 25 October 2013, a self employed builder/carpenter/plasterer. On the afternoon of 25 October 2013, he was driving his work vehicle along the Pacific Highway at Artarmon when it was rammed from behind by the insured’s motor vehicle. The force of the impact propelled Mr Polorotov’s vehicle into the rear of the vehicle in front. As a result of the collision Mr Polorotov suffered serious injuries to his left shoulder, left wrist and neck. Liability has been admitted.

5. A claim was made to SIRA for an assessment of a dispute and causation and damages pursuant to Part 4.4 of the Act (claims assessment and resolution).

6. On 30 March 2017 the Claims Assessor, Mr Goudkamp (the Claims Assessor), assessed Mr Polorotov’s economic loss at $655,530.16. This is comprised of:

Non-Economic Loss	$Nil
Economic Losses
• Past loss of earnings (incl superannuation and Fox v Wood)	$191,400.00
• Future loss of earnings (incl superannuation)	$415,234.00
• Past treatment (incl s 83 payments)	$28,896.16
• Future treatment	$10,000.00
• Past gratuitous care	$Nil
• Future commercial care	$10,000.00
Total of economic losses and non-economic loss	$655,530.16
TOTAL DAMAGES ASSESSED	$655,530.16

7. It is the amounts awarded for both past and future loss of earning capacity (the largest components of the assessment of damages) that are the subject of this judicial review.

Claims assessment guidelines

8. The scheme of the Act is described in Insurance Australia Limited Ltd trading as NRMA Insurance v Hutton-Potts (2010) 57 MVR 194 at [13] to [29] (Schmidt J) where relevant provisions applicable to claims assessors and these proceedings are set out.

9. Claims assessors are empowered by and have regard to “Claims Assessment Guidelines” made under the Act establishing procedures for assessing claims and which were made effective on 1 October 2008. These Guidelines are generally binding. As far as an assessment conference is concerned (a final oral hearing at which evidence is adduced), Chapter 16 of the Guidelines is most significant, especially Clause 16.1 to 16.12 which set out the assessor’s role and powers. While the assessor is bound by common law to comply with the rules of natural justice or procedural fairness (e.g: Allianz Australia Insurance Limited v Crazzi (2006) 68 NSWLR 266 at [177] (Johnson J)) the guidelines here set out further and more onerous obligations. For example: clause 16.4 provides that the claims assessor “is to take into account the objects of the Act and the object of CARS at all times”. CARS is the Claims Assessment and Resolution Service, which is a “unit” operating within the MAA pursuant to Section 98 and it consists of claims assessors. Chapter 1 of the guidelines contains the objects of CARS which relevantly provides:

“1.14 The objects of CARS in dealing with claims and disputes in connection with claims referred are:

1.14.1 To provide a timely, fair and cost effective system for the assessment of claims under the Motor Accidents Compensation Act 1999 that is accessible, transparent, independent and professional;

1.14.2 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;

1.14.3 To ensure the quality and consistency of CARS decision making;”

10. In addition, chapter 16 relevantly provides:

“16.2.3 The Assessor is to take such measures as are reasonably practicable to…ensure that the parties have an opportunity to have their submissions considered.

16.5 The Assessor is to ensure that relevant material is available so as to enable all of the relevant facts in issue to be determined.

16.6 The Assessor may admit into evidence the contents of any document that has previously been provided by one party to the other party, despite non-compliance with any time limit or other requirement specified in the Act or the Guidelines in relation to that document or service of exchange of it after taking into account any submissions of the parties.”

Past and future economic loss

11. Damages for past and future economic loss are governed by ss 125 and 126 of the Act which relevantly read:

“125 Damages for past or future economic loss – maximum for loss of earnings etc

(1) This section applies to an award of damages:

(a) for past or future economic loss due to loss of earnings or the deprivation or impairment of earning capacity, or

…

126 Future economic loss-claimant’s prospects and adjustments

(1) A court cannot make an award of damages for future economic loss unless the claimant first satisfies the court that the assumptions about future earning capacity or other events on which the award is to be based accord with the claimant’s most likely future circumstances but for the injury.

(2) When a court determines the amount of any such award of damages it is required to adjust the amount of damages for future economic loss that would have been sustained on those assumptions by reference to the percentage possibility that the events concerned might have occurred but for the injury.

(3) If the court makes an award for future economic loss, it is required to state the assumptions on which the award was based and the relevant percentage by which damages were adjusted.”

12. The Claims Assessor accepted that Mr Polorotov was physically fit for building work prior to the accident, both in his building business and his personal property development project [89] and that Mr Polorotov was formally qualified to undertake building alterations and additions but he did not hold a formal builder’s licence. Mr Polorotov estimated that 80% of his work was physical. He generated the income for the building business by working on the tools while his wife’s involvement was restricted to some administrative tasks. His work included carpentry, plastering, concreting, and tiling. The work typically involved lifting, carrying, sawing, hammering, nailing and other physically arduous work. He worked on houses, apartments and factories. The Claims Assessor made a finding that had Mr Polorotov not been injured in the accident, the most likely future circumstances are that he would have continued to work in and operate his building business until his retirement at age 67. (J [57]).

13. The Claims Assessor also accepted that Mr Polorotov continued to suffer from significant pain in his left shoulder and left wrist and mild pain in his neck and this pain resulted in him suffering from sleep deprivation and fatigue. The Claims Assessor is of the view that Mr Polorotov is restricted by his injuries, in all activities requiring lifting, holding or gripping objects, reaching outwards, lifting above his shoulder height, bending, carrying and twisting. (J [41]).

14. Mr Polorotov claimed past and future economic loss on three bases. They are firstly, that his injuries to his left wrist and left shoulder prevent him working as a self employed builder, carpenter and plasterer; secondly, these injuries forced him to close his building business; and finally, he claims for the loss of profits which he believes he would have made had he completed the subdivision and restoration work on his home. Mr Polorotov’s position is that he was forced to sell the properties prematurely for less than their market value. The Claims Assessor rejected Mr Polorotov’s second and third claims that left a claim for loss of earning capacity on the basis of him working as a self employed builder, carpenter and plasterer.

15. In December 2014, Mr Polorotov and his family moved to Bilambil Heights near Tweed Heads in far north New South Wales in order to take advantage of the lower cost of living in that region compared with Sydney. The Claims Assessor dismissed this assertion from Mr Polorotov that he was forced to move from West Pennant Hills in Sydney to Bilambil Heights near Tweed Heads due to the financial consequences of the accident.

16. At some stage Mr Polorotov enrolled in a 17 week reskilling course in Building and Construction Management but was unable to complete the course because of his pain and his physical restrictions. (J [43]). He has not sought work since moving to Bilambil Heights because he considers that he would be an unreliable employee because of his pain, his physical restrictions and his fatigue. However, Mr Polorotov concedes that he could undertake supervisory type work provided it does not involve physical tasks which could aggravate his pain. (J [44]).

The Claims Assessor’s reasons dated 30 March 2017

17. In relation to past and future economic loss the Claims Assessor in his reasons dated 30 March 2017 relevantly stated:

“v)   (What loss of income has the claimant suffered because of his injuries?)

104.   I am satisfied that the claimant was a very experienced and skilful builder/builder and carpenter prior to the accident and that had he not been injured he would have continued to work in his building business and continued to earn an average of $1,100.00 net per week.

105.   I am also satisfied that the preponderance of the medical evidence establishes that the claimant has been unfit for work since the accident, because of the nature of the work in which the claimant was engaged. I find that the claimant has suffered a loss of $1,100.00 net per week since the accident to date, because of his injuries.

…

107.   Accordingly, I award the claimant the sum of $1,100.00 net per week from 26 October 2013 to date, a period of 174 weeks. This equates to $191,400.00.

…

109.   I am satisfied that the claimant has had no retained residual earning capacity since the accident in view of the seriousness of the claimant’s injuries. There is very little evidence before me that there was other employment in which the claimant could realistically engage.

vi)   (What loss of income is the claimant likely to suffer in the future because of his injuries?)

…

112.   I am unconvinced by the insurer’s submission that the claimant has retained any exercisable residual earning capacity. There is a paucity of evidence before me that there was any other employment in which the claimant can realistically engage, other than work of a purely supervisory nature.

113.   I award the claimant $1,100.00 net per week until age 67, namely a further 11 years. The 5% multiplier for 11 years is 444.1. Therefore I allow 444.1 x $1,100.00 net per week, which equates to $488,510.00. I discount this sum by 15% for the vicissitudes of life, which results in a total of $415,234.00.”

Post accident medical history

18. It is necessary to briefly refer to the medical and vocational evidence post accident that has been summarised by the Claims Assessor because it is relevant to the “no evidence” ground of judicial review at [58] to [86]. I have further summarised the evidence focussing upon Mr Polorotov’s physical injuries and disabilities and what employment, if any, the experts say that he is capable of undertaking post accident.

19. On 4 February 2014, Dr Huy Vo, Mr Polorotov’s treating general practitioner opined that Mr Polorotov had been working at full capacity prior to the accident, however since the accident he was not capable of performing any of his pre-accident duties. On 15 September 2015, Dr Vo certified Mr Polorotov as being suitable for light duties with no overhead lifting and no lifting of items above 5 kilograms in weight. ([61]).

20. On 2 July 2014, Dr Kalman Piper, the plaintiff’s treating shoulder specialist, injected cortisone into Mr Polorotov’s shoulders which provided some temporary pain relief, and operated on Mr Polorotov’s left shoulder by way of an arthroscopic acromioplasty. [62]. On 14 October 2014, Dr Piper noted that Mr Polorotov’s left shoulder was slowly improving and that Mr Polorotov’s main ongoing problem was with his left wrist. [63].

21. On 15 September 2014, Dr M Dowla, a consultant in neurology and clinical neurophysiology and Mr Polorotov’s treating specialist, opined that Mr Polorotov, had persisting pain radiating into his left wrist and into the left side of his neck. He indicated that Mr Polorotov had a combination of left shoulder rotator cuff tendonitis as well as frozen shoulder and left lunate synovitis. [64] & [66].

22. Dr Simon Chan, Mr Poloropov’s treating orthopaedic hand and wrist surgeon, in his report to Dr Piper dated 2 December 2014 noted that Mr Polorotov had a stiff and painful left wrist, with pain becoming worse with activity. Dr Chan noted that Mr Polorotov had intermittent swelling on the ulnar side of his left wrist, with intermittent tingling. [67].

23. Dr Chan diagnosed Mr Polorotov as having suffered left cubital tunnel syndrome and that there were features of mid carpeal instability. In his follow up report dated 9 December 2014, Dr Chan reported that an ultrasound revealed no abnormality but that the study confirmed ulnar nerve dislocation during elbow flexion. The MRI scan of Mr Polorotov’s left wrist revealed type 2 lunate with condral wear at the base of the capitate and hamate. Dr Chan referred Mr Polorotov to Gold Coast Hand Therapy at Tweed Heads for a night elbow splint and ulnar nerve gliding exercise. Finally, Dr Chan recommended that Mr Polorotov use a wrist widget and also undergo ultrasound guided steroid injection into his mid carpal joint. [68].

24. On 14 April 2015, Dr Conrad, an orthopaedic surgeon in his medico legal report, expressed that Mr Polorotov would be unable to return to work as a full-on hands-on builder due to the weakness in his left hand and restriction of movement of his left wrist and left shoulder. Dr Conrad added that Mr Polorotov might be able to do supervisory work as a builder starting at 15 hours per week, or administrative work or office based work. [74].

25. The Claims Assessor rejected the opinions of Dr Cummine due to its inconsistency with the weight of contrary medical and lay evidence. [88]. The insurer makes no complaint about this finding.

Assessor McKee

26. Assessor McKee, in his whole person impairment assessment dated 23 January 2016 noted that Mr Polorotov had shoulder pain dating back to February 2010, that about 10 to 15 minutes after the accident he began to experience pain with his neck, shoulders and wrists and that he consulted Dr Huy Vo, his long standing general practitioner, on the evening of the accident. [83].

27. Assessor McKee noted the results of various radiological studies which indicated damage to Mr Polorotov’s left shoulder and left wrist. Assessor McKee concluded that Mr Polorotov’s pre accident shoulder problems were of no consequence and were a fairly usual symptom in a busy self employed builder. Assessor McKee opined that the relatively high speed rear end motor vehicle collision almost certainly caused Mr Polorotov’s bilateral shoulder pain. Assessor McKee concluded that the accident caused the following injuries:

(i)   An injury to Mr Polorotov’s left shoulder resulting in a subacromial bursitis, labral tear, rotator cuff tendonitis and a soft tissue injury.

(ii) Ligamentous and triangular fibro-cartilage damage and a soft tissue injury to his left wrist. [85].

28. Assessor McKee assessed Mr Polorotov’s whole person impairment at 4%, all attributed to his injury to his left arm. [86].

29. In addition to the medical opinion there were two workplace assessment type reports, one by Mr Donald Smith, the other by Mr Defina. Mr Smith conducted a number of workplace assessments on Mr Polorotov. On 26 March 2015, Mr Smith noted that Mr Polorotov was still having some difficulty with overhead lifting due to the lack of range of movement in his left shoulder. In a further assessment on 29 June 2015 Mr Smith noted that he was still limited in this regard. According to Mr Smith, Mr Polorotov aggravated his left shoulder in March 2015 and this was preventing him from making a successful return to work [71]. In his final report dated 16 November 2015, Mr Smith indicated that Mr Polorotov would be capable of driving to building sites and would be able to undertake office duties such as quoting. However he maintained that Mr Polorotov would be unable to perform tasks involving an electric saw, nail gun, hammer, hand saw or drill and could not carry out tasks such as surveying or lifting and manoeuvring building materials at a work site. Neither could he carry ladders, planks, concrete slabs, work from planks, plaster or fix paster board sheets [72]. Mr Smith opined that Mr Polorotov’s injuries prevent him from doing physical building work but says he would be capable of driving to building sites and would be able to undertake office duties such as quoting.

28. Mr Defina, in his vocational assessment report dated 1 February 2016, opined that Mr Polorotov was capable of obtaining either his full building licence or completing further education in a Bachelor’s degree. [80]. He considered the most suitable vocation for Mr Polorotov would be as a supervisory self employed builder or alternatively, a sales assistant, sales representative, parking inspector, bar attendant or real estate agent. [81].

29. Dr Duckworth, a shoulder specialist, examined Mr Polorotov’s left shoulder and noted that the pain was diffuse and non-specific. He diagnosed Mr Polorotov as suffering from chronic pain that will cause him to always have difficulty with the overhead use of his left arm, heavy lifting and repetitive use of his arms out to the side. Dr Duckworth also opined that Mr Polorotov would have difficulty returning to any work that required such physical movements. He also recommended against further surgery in favour of a chronic pain management and rehabilitation strengthening programme [78]. In his subsequent report dated 29 March 2016 and after reading Mr Defina’s report, Dr Duckworth stated that Mr Polorotov was fit to work as a sales assistant, sales representative, parking inspector or a real estate agent [79]. Of the six jobs recommended by Mr Defina, Dr Duckworth only accepted four as being suitable employment for Mr Polorotov. Dr Duckworth rejected Mr Defina’s opinion that Mr Polorotov was fit to work as a supervisory self builder and bar attendant.

Grounds of Judicial Review

32. The main grounds of judicial review can be summarised as follows:

1. the Claims Assessor erred in law in finding that Mr Polorotov has no exercisable residual earning capacity (no evidence);

2. the Claims Assessor erred because his reasons fail to explain the actual path of reasoning by which he reached his conclusion that Mr Polorotov has no residual earning capacity for work and are inadequate (failure to explain path of reasoning); and

3. the Claims Assessor failed to engage with the insurer’s clearly articulated argument that Mr Polorotov did have a residual earning capacity, that his potential earnings in the exercise of that capacity in the past and in the future had to be taken into account in assessing damages, and that there was a lack of procedural fairness (failure to engage in argument and procedural fairness). Overall, I will refer to grounds 2 and 3 as whether the Claims Assessor’s reasons are adequate.

33. These three grounds of judicial review are interrelated. So before I refer to the grounds of judicial review, I will set out the obligations of a Claims Assessor to give reasons.

34. Pham v NRMA (2014) 66 MVR 152 (Pham) involved a Claims Assessor’s determination on economic loss. At [14] Macfarlan JA (with whom Leeming JA and Tobias AJA agreed) stated:

“14 The evidence before the Assessor was limited but, in accordance with well-established authority, she had to do the best she could to estimate Mr Pham’s loss (see for example Commonwealth v Amann Aviation Pty Ltd [1991] HCA 54; 174 CLR 64 at 83; State of New South Wales v Moss [2000] NSWCA 133; 54 NSWLR 536 at [71] - [72]).”

35. Also in Pham, Leeming JA at [29] stated:

“29 The approach to be adopted is stated in [Allianz Insurance Ltd v] Kerr at [53]. The obligation upon the assessor to give reasons is less than that imposed on courts. In particular, irrespective of whether it is said that the reasons disclose error of law or jurisdictional error, "the limitations of the obligation to give reasons must be kept firmly in mind by a judicial officer accustomed to a higher obligation”.”

36. I accept that this Court “should not read the reasons of the decision maker with an eye finely tuned for error”: McGinn v Ashfield Council [2012] NSWCA 238 per McColl JA at [17] (Sackville AJA and Gzell J agreeing) and Walsh v Parramatta City Council [2007] NSWLEC 255; (2007) 161 LGERA 118 (at [67]) per Preston CJ, citing Minister for Immigration and Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 291.

37. Further, in Zahed v IAG Limited (t/as NRMA Insurance) and Others [2016] NSWCA 55; 75 MVR 1 Leeming JA stated at paragraph [3] and [4]:

“3. Subsection 94(5) of the Motor Accidents Compensation Act 1999 (NSW) required the Assessor to “attach a brief statement to the certificate, setting out the assessor’s reasons for the assessment”. Further, cl 18.4.3 of the Claims Assessment Guidelines imposed an obligation that the statement of reasons set out, “as briefly as the circumstances of the assessment permit ... the reasoning processes that lead the Assessor to the conclusions made”. It was common ground that s 106(1) of the Act made the Claims Assessment Guidelines binding upon the Assessor. For completeness, it may be noted that neither party suggested that the obligations imposed by the Act and the Guidelines were inconsistent.

4. … It is to be borne in mind that the objects of the Guidelines are “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” (cl 1.14), and the obligation to set out the reasoning process is to be construed accordingly. The obligation thereby imposed is less than that imposed on courts.”

Ground 1 – no evidence

38. Senior counsel for the insurer accepted that Mr Polorotov was a very experienced and skilful builder and carpenter prior to the accident and that had he not been injured, he would have continued to work in his building business and continued to earn an average of $1,100 net per week. The insurer also accepted that his injuries to the left shoulder and left wrist hindered Mr Polorotov’s earning capacity with respect to working as a builder and plasterer.

39. However, the insurer’s point of contention is that there was no evidence before the Claims Assessor that Mr Polorotov has been or will be entirely incapacitated for any form of employment as a result of his injuries and that all the medical evidence before the Claims Assessor indicated that Mr Polorotov had a residual earning capacity.

Kallouf

40. Both parties referred to Kallouf v Middis [2008] NSWCA 61 (Kallouf) in which the Court of Appeal set aside the decision of a District Court judge on the basis that there was no evidence to support a finding that a claimant was and would remain unemployable until the age of 65 because of his injuries. In short, the insurer contended that these facts were an analogous set of circumstances to the present case.

41. It should be borne in mind Kallouf is an appeal from a decision of a judicial officer, not a Claims Assessor. In accordance with what was said in Pham, it must be borne in mind that the obligation upon the Claims Assessor to give reasons is less than the obligation imposed on courts.

42. In Kallouf, the Court of Appeal stated at [40], [52]-[53], [55]-[56], [69], [72], [74]-[75], [80] and [81]:

“40 In reaching his conclusions the primary judge rejected the opinions of the appellant’s medical experts Dr Blue and Dr Martin which were to the effect that the respondent was fully fit for work in his pre-injury occupation as a sander. The appellant does not seek to dispute his Honour’s conclusion in this respect.

…

52 InArthur Robinson(at 657) Barwick CJ observed that lost earning capacity “ought to be the subject of evidence and not of mere suggestion on the part of the judge or advocate”, a remark interpreted by Malcolm CJ (Murray and Wheeler JJ agreeing) inMorgan v Costello[2004] WASCA 260 (at [99]) as supporting the proposition that “the defendant who contends the plaintiff has a residual earning capacity has the evidentiary burden of adducing evidence of what work the plaintiff is capable of performing and what jobs are open to a person with such capacity.”

53 The relative responsibility of the parties for adducing evidence going to the issue of residual earning capacity was discussed inLinsell v Robson[1976] 1 NSWLR 249 (at 254 – 255) by Glass JA who stated:

“...The real defendant, who is known to have a virtual monopoly of the third party insurance business in this State, must have resources from which evidence can be produced to show what sort of employment is within the residual capacity of an injured litigant, and what sum it is likely to produce. It has, in my view, an evidentiary burden requiring it to adduce material of this kind. If it elects to call no evidence and prefers to rely on argument, it runs the risk that the plaintiff’s meagre materials will be held sufficient to support a conclusion, which in this case the trial judge clearly reached, viz that the plaintiff retained only a severely restricted earning capacity, the exercise of which was unlikely to produce a large income.”

…

55 In the final analysis, however, at common law the onus rests on the plaintiff to prove he is incapable of undertaking employment which medical evidence demonstrated he was capable of undertaking: Adams v Ascot Iron Foundry Pty Ltd (1968) 72 SR (NSW) 120 (at 132-133) per Sugarman JA: see also McCracken v Melbourne Storm Rugby League Football Club Limited [2007] NSWCA 353 (at [64 ff] per Ipp JA (Beazley and Basten JJA agreeing)).

56 This position is not, in our view, displaced by s 126 of the Act, albeit that s 126(1) imposes a requirement on the plaintiff to satisfy 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”. It is, of course, incumbent on the plaintiff in the first place to demonstrate lost earning capacity.

…

69 As to future loss of earning capacity the critical question was whether the respondent would return to remunerative employment during his working life. The appellant (that is the insurer) did not challenge the proposition that the respondent would have remained in remunerative employment had he not been injured and, accordingly that the respondent discharged his burden under s 126 of the Act.

…

72 Accordingly, the appellant’s challenge to the respondent’s claim for past and future economic loss is to be evaluated by an assessment of the following matters:

(a) The nature and extent of the medical and other evidence that supported the respondent’s claim that he was very significantly incapacitated for work;

(b) the extent to which, having regard to the respondent’s lack of vocational training and the fact that he had only previously undertaken heavy grades of manual work, the prospect that he had a residual capacity for work was realistic;

(c) the absence of any post injury rehabilitation or vocational training to equip him for lighter classes of work;

(d) the availability of suitable employment in the Hervey Bay area; and

(e) the possible level of earnings from performing (on either a full time or part time basis) lighter grades of work.

…

74 In our view, the evidence disclosed that the respondent was hard-working. It is likely he would have remained in employment for the duration of his working life. As a result of the accident he is, as the appellant now concedes, unable to exploit his earning capacity to the full.

75 However we disagree, with respect, with the primary judge’s conclusion that the respondent is effectively unemployable.

…

80 In our view, in determining the respondent’s lost earning capacity it is necessary to take into account his lack of qualifications, the nature of his pre-injury employment, the opinions of Dr Ellis, the fact that at the date of trial he had been out of work for approximately seven years and that his condition had become chronic and static. It is also necessary, too, to take into account the apparently limited employment prospects available to a person with diminished capacity: Wade v Allsopp (1976) 10 ALR 353 (at 361) per Stephen J (Gibbs, Jacobs and Murphy JJ agreeing). This can be seen as reflected in his lack of success in securing employment to date.

81 In our view the respondent will be able to undertake such work in the future, although we accept that any residual capacity the respondent does have is limited. It would, at best, involve part-time employment in the field of clerical/stores work or similar work with special provision made for standing and sitting and periodic resting.”

Submissions

43. Senior counsel for the insurer submitted that the applicant’s case in Kallouf was far less adequate than the insurer’s in the present circumstances. He drew attention to the failure in that case of the applicant to adequately address in cross examination the question of residual capacity, the respondent’s attempts to locate work or any physical ability to undertake light work: Kallouf at [78] and [81].

44. The insurer maintained that the evidence adduced on behalf of Mr Polorotov positively demonstrated that he did have an earning capacity and that in this case, the insurer did not fail to discharge the evidentiary onus to produce evidence of a residual earning capacity, as that evidence was produced by Dr Duckworth and Mr Defina.

45. Firstly, Mr Polorotov referred to Clauses 1.3 and 1.40 of the MAA Permanent Impairment Guidelines (the Guidelines) which are relevantly reproduced below:

“1.3 The convention used in these MAA Guidelines is that if the text is in bold, it is a directive as to how the assessment should be performed.

…

1.40 Some Tables require the pain associated with a particular neurological impairment to be assessed. Because of the difficulties of objective measurement, assessors should make no separate allowance for permanent impairment due to pain, and Chapter 15 of the AMA 4 Guides should not be used. However, each chapter of the AMA 4 Guides includes an allowance for associated pain in the impairment percentages.”

46. Mr Polorotov submitted that in light of rule 1.40 of the Guidelines, paragraph 87 of the Claims Assessor’s decision must be read in conjunction with the paragraphs [109]-[112] of his decision. I might add here that while the Claims Assessor did not find Mr Polorotov to be a particularly impressive witness, he did not detect that Mr Polorotov embellished the extent of his injuries and disabilities and the level of his pain. [48].

47. Secondly, senior counsel for Mr Polorotov submitted that the Claims Assessor did not base his assessment upon the medical evidence alone. Rather, he made his judgment based on the whole of the evidence before him including the lack of evidence relating to whether there was actual employment available that Mr Polorotov could realistically engage in, other than purely supervisory work.

48. According to Mr Polorotov the evidentiary burden was on the insurer to establish the above elements set out in Kallouf (at [72]) and it has failed to do so. (T.35.12-18). On the contrary, Mr Polorotov’s lack of vocational training appeared throughout the Claims Assessor’s decision for (s 72(b)), the absence of any post-injury or rehabilitation or vocational training was obliquely touched on for (s 72 (c)), and the Claims Assessor explicitly stated twice that there was no evidence regarding the realistic availability of suitable employment in the Bilambil Heights area for (s 72 (d)). (T.35.25-45). According to Mr Polorotov, it follows that the insurer did not establish all the matters set out in [72] of Kallouf.

Conclusion - no evidence ground (1)

49. I accept Mr Polorotov conceded (and the Claims Assessor recorded) that he could undertake supervisory type work provided it did not involve physical tasks which could aggravate his pain. However, at some stage Mr Polorotov enrolled in a 17 week reskilling course in Building and Construction Management but was unable to complete the course because of his pain and physical restrictions. Mr Polorotov says that he has not sought work since moving to Bilambil Heights because he considers that he would be an unreliable employee because of his pain, his physical restrictions and his fatigue.

50. The Claims Assessor was satisfied from the medical evidence (as summarised earlier) that Mr Polorotov had suffered significant injuries to his left shoulder and left wrist, as well as a relatively minor whiplash injury to his cervical spine. The Claims Assessor accepted that Mr Polorotov did not embellish the extent of his injuries and disabilities and the level of his pain. He was also satisfied that the injuries to Mr Polorotov’s left shoulder and left wrist resulted in chronic pain, that this pain restricted his ability to engage in physical activities with his left arm and that this pain and its restrictions would likely be permanent. [87]. In reaching this conclusion the Claims Assessor said that he accepted the treating specialists’ opinions of Dr Piper, Dr Chan and Dr Dowla, as well as the findings of Assessor McKee and Dr Duckworth. The Claims Assessor does not mention the opinions of the workplace assessments of Mr Smith and Mr Defina. However, Dr Duckworth considered and expressed an opinion in relation to Mr Defina’s recommendations.

51. Aside from Dr Cummine, it is fair to say that all of the medical and vocational experts who expressed an opinion on Mr Polorotov’s past and future earning capacity agreed that Mr Polorotov was not capable of performing physical building work. However, I accept that of the doctors and medical and vocational experts who expressed an opinion of Mr Polorotov’s earning capacity, none of them said that he had nil residual earning capacity.

52. Dr Duckworth diagnosed that Mr Polorotov was suffering from chronic pain that will cause him to always have difficulty with the overhead use of his left arm, heavy lifting and repetitive use of his arms out to the side. Dr Duckworth also opined that Mr Polorotov would have difficulty returning to any work that required such physical movements but opined that he was fit for work as a sales assistant, sales representative, parking inspector or real estate agent.

53. Senior counsel for the insurer relied upon the vocational report of Mr Defina and the medico legal report of Dr Duckworth as evidence that Mr Polorotov could realistically engage in other work in Bilambil Heights. Mr Defina and Dr Duckworth both opined that Mr Polorotov could engage in some form of employment. Mr Defina considered the claimant to be fit for six vocations, namely supervisory self employed builder, sales assistant, sales representative, parking inspector, bar attendant or real estate agent. ([81]). Dr Duckworth accepted that Mr Polorotov was capable of working four of these occupations, namely sales assistant, sales representative, parking inspector, or real estate agent. Importantly, Dr Duckworth did not accept that Mr Polorotov had residual earning capacity as a supervisory self employed builder or a bar attendant. While it falls outside Dr Duckworth’s area of expertise to be aware of the availability of these jobs in the Bilambil Heights area, Mr Defina did not address this topic. The insurer’s evidence did not go further and provide any evidence in support of its contention that any of these jobs were available in the Bilambil Heights area. It was obliged to do so in accordance with Kallouf at [72 (d)].

54. When considering Mr Polorotov’s future working capacity the Claims Assessor specifically chose to use the word “realistically” on two occasions for emphasis. The word “realistically” appears at [109] where the Claims Assessor says that he is satisfied that Mr Polorotov has had no retained residual earning capacity since the accident in view of the seriousness of his injuries and there is very little evidence that there was other employment in which Mr Polorotov could realistically engage. (My emphasis added). At [112] the Claims Assessor says that he was unconvinced by the insurer’s submission that Mr Polorotov had retained any exercisable residual earning capacity on the basis that there was a paucity of evidence before him that there was any other employment in which Mr Polorotov could realistically engage, other than work of a purely supervisory nature. I should add that Dr Duckworth did not accept that Mr Polorotov was capable of carrying out building work of a supervisory nature. (My emphasis added).

49. By using the word “realistically” in those two paragraphs, the Claims Assessor is making it clear that in terms of the type of work Dr Duckworth suggested, namely that of sales assistant, sales representative, parking inspector or real estate agent, there was no evidence to establish on the balance of probabilities that any or some these types of work were available in Bilambil Heights.

50. This ground of judicial review fails.

Grounds 2 and 3 – Whether the Claim Assessor’s reasons are adequate

57. In ground 2 the insurer sought judicial review on the basis that a Claims Assessor’s reasons must explain the clear path of reasoning by which he or she arrived at their conclusion. The insurer asserted that the Claims Assessor erred as he did not have regard for the whole of the medical evidence available and instead suggested that there was a “paucity of evidence” that Mr Polorotov had any exercisable residual earning capacity. [112]. The insurer submitted that the Claims Assessor failed to establish a clear path of reasoning in regards to Mr Polorotov having no residual earning capacity and, as such, his reasons are submitted to be inadequate.

58. In respect of judicial review ground 3, the insurer asserted that due to the Claims Assessor’s failure to engage with the insurer’s argument, namely that Mr Polorotov does have a residual earning capacity and that this should have been taken into account in assessing his damages, there has been a jurisdictional error. The same error is also said to amount to a denial of procedural fairness.

59. The insurer’s counsel submitted that the whole of the medical evidence supported the existence of Mr Polorotov’s fitness to work and his residual earning capacity. In particular, it was contended that Mr Defina and Dr Duckworth provided such evidence in considerable detail and that the Claims Assessor failed to provide reasons for rejecting their opinions. As I said earlier, Dr Duckworth did not agree that Mr Polorotov was fit for employment as a self employed builder or bar attendant but only as a sales assistant, sales representative, parking inspector or real estate agent.

60. The High Court in Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480 (Wingfoot) was commenting on s 68(2) of the Accident Compensation Act 1985 (Vic) but it is applies also to s 94(5) of the Motor Accidents Compensation Act 1999 (NSW). The High Court stated:

“55. The statement of reasons must explain the actual path of reasoning by which the Medical Panel in fact arrived at the opinion the Medical Panel in fact formed on the medical question referred to it. The statement of reasons must explain that actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law. If a statement of reasons meeting that standard discloses an error of law in the way the Medical Panel formed its opinion, the legal effect of the opinion can be removed by an order in the nature of certiorari for that error of law on the face of the record of the opinion. If a statement of reasons fails to meet that standard, that failure is itself an error of law on the face of the record of the opinion, on the basis of which an order in the nature of certiorari can be made removing the legal effect of the opinion.

56. The Court of Appeal considered that a higher standard was required of a written statement of reasons given by a Medical Panel under s 68(2) of the Act. On the premise that Brown held that the opinion of a Medical Panel must be adopted and applied for the purposes of determining all questions or matters arising under or for the purposes of the Act, the Court of Appeal analogised the function of a Medical Panel forming its opinion on a medical question to the function of a judge deciding the same medical question. Accordingly, it then equated the standard of reasons required of a Medical Panel with the standard of reasons that would be required of a judge giving reasons for a final judgment after a trial of an action in a court. The application of that judicial standard in circumstances where an affected party had provided to the Medical Panel opinions of other medical practitioners and had sought in submissions to rely on those opinions, and where the opinion formed by the Medical Panel itself did not accord with those opinions, meant that “it was incumbent on the [P]anel to provide a comprehensible explanation for rejecting those expert medical opinions or, if it be the case, for preferring one or more other expert medical opinions over them”. Rejection of the premise and the analogy, for reasons already stated, entails rejection of the conclusion that the higher standard is required. A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else. A Medical Panel explaining in a statement of reasons the path of reasoning by which it arrived at the opinion it formed is under no obligation to explain why it did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.” (emphasis added)

61. As to judicial review grounds 2 and 3, senior counsel for Mr Polorotov submitted that pursuant to Pham (at [16]), the Claims Assessor provided a brief statement of reasons and that was all he was required to do and therefore the Claims Assessor clearly took into account the “substantial case” of the plaintiff. Additionally, included within the Claims Assessor’s reasons, he stated that there was insufficient evidence regarding any other employment Mr Polorotov could realistically engage in. This, in my view demonstrates the Claims Assessors path of reasoning.

Conclusion – sufficient reasons

62. As Wingfoot makes clear, the Claims Assessor’s statement of reasons must explain the actual path of reasoning in sufficient detail to enable the Court to see whether the opinion does or does not involve any error of law. Further, he or she must explain in a statement of reasons the path of reasoning by which he or she arrived at the opinion formed. He or she is under no obligation to explain why he or she did not reach an opinion it did not form, even if that different opinion is shown by material before it to have been formed by someone else.

63. In my view the insurer’s argument misconstrues the nature of the medical evidence provided by Mr Defina and Dr Duckworth. Their evidence only concerned Mr Polorotov’s fitness to work in certain jobs and did not deal with the availability of such work for Mr Polorotov, the latter being a consideration for residual earning capacity. It was therefore open for the Claims Assessor to accept the opinions of Mr Defina and Dr Duckworth regarding suitable employment roles on one hand, while finding there was no residual earning capacity due to the unlikely availability of such roles in Mr Polorotov’s locality namely Bilambil Heights. The Claims Assessor was not required to reject Mr Defina or Dr Duckworth’s reports in order to provide the necessary reasoning as suggested by the insurer.

64. In my view the Claims Assessor did engage with the insurer’s clearly articulated argument but he did not agree with it, nor was he obliged to do so. It is my view that the Claims Assessor has made his assessment showing the actual path of his reasoning for his finding that Mr Polorotov had no residual earning capacity. The Claims Assessor’s reasons complied with the requirement imposed by s 94(5) of The Act that a Claims Assessor provide a “brief statement” setting out his reasons for the assessment (see also clause 18.4 of the MAA Claims Assessment Guidelines).

65. In these circumstances, there has been procedural fairness. The decision of the Claims Assessor is not affected by legal and/or jurisdictional error. The result is that all of the grounds of judicial review fail. The summons filed 1 June 2017 is dismissed.

66. Costs are discretionary. Costs usually follow the event. The plaintiff is to pay the first defendant’s costs on an ordinary basis.

The Court orders that:

(1)   The claim for judicial review fails.

(2)   The summons filed 1 June 2017 is dismissed.

(3)   The plaintiff is to pay the first defendant’s costs on an ordinary basis.

**********

Decision last updated: 29 September 2017