The need for evidence; proving the future

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Last updated: 23 Jun, 2021
Originally Published by Peter Hunt and Laurette Rizk on Thursday, June 25, 2020 10:26:34 AM

Can a Claims Assessor treat disputed projections of hypothetical income as "facts" in the absence of supporting evidence? Is a Claims Assessor obliged to provide adequate reasoning for their decisions? The Supreme Court recently explored these issues in Gordian Runoff Limited v Ozurumba [2020] NSWSC 774.

 

Author: Laurette Rizk
Judgment date: 19 June 2020
Citation: Gordian Runoff Limited v Ozurumba [2020] NSWSC 774
Jurisdiction: Supreme Court of New South Wales

Principles

  • A Claims Assessor must ensure that lawful, evidence-based justification is the foundation of an award of damages.

  • It is incumbent on a Claims Assessor to treat disputed projections of hypothetical income with caution by assessing the legitimacy and likelihood of those hypotheticals.

  • A Claims Assessor has a legal duty to provide adequate reasoning for their findings.

  • The assumptions which form the basis of an award for future economic loss must be articulated by a Claims Assessor pursuant to Section 126 of the Motor Accidents Compensation Act 1999 (NSW).

 

Background


The Insurer sought judicial review of a Claims Assessor's decision with respect to an assessment of damages for past and future economic loss. The Insurer sought orders setting aside the decision of the Claims Assessor and remittance to the State Insurance Regulatory Authority to re-assess the Claimant's past and future loss of earnings.

The Claimant was involved in a rear-end collision on 5 July 2015. He allegedly sustained soft tissue injuries as a result. At the time of the accident, the Claimant was 41 years old and employed by Canterbury Hospital as a grade 1 clinical nurse specialist ("CNS-1"). His remuneration comprised of a base salary plus penalty and overtime rates applicable to night and weekend shifts.

The Claimant returned to work the day after the accident and was able to carry out his pre-injury duties with no restrictions. In October 2016, Canterbury Hospital assigned the Claimant to a hybrid role, performing sedentary duties as a diabetes educator and continuing on as a CNS-1 for part of the week. In September 2017, the Claimant was promoted to grade 2 ("CNS-2") which was a Diabetes Educator role, attracting a higher base salary with an alleged loss of income from night and weekend work.

The Claimant asserted that, but for the accident:

  • He would not have been offered the hybrid role in the first instance.

  • He would not have physical restrictions that were allegedly the motivation behind his promotion as a Diabetes Educator.

  • He would continue in his CNS-1 role having penalty and overtime rates available to him which were uncommon as a CNS-2, despite a higher base salary.


The Claimant had provided a series of comparative schedules purporting "actual past earnings and "Potential (past) Earnings" but for the accident in comparison to his actual earnings.

The Claims Assessor accepted the Claimant's schedule of "Potential Earnings" on the basis that, but for the accident, he would have accepted a role as CNS-2 and would have been rostered to weekend and night shifts calculated on a higher base salary. The Claims Assessor also accepted that the Claimant would not have been offered the hybrid role or the promotion to CNS-2 if it were not for the accident. In the same way, the Claims Assessor adopted the theoretical weekly rate proposed by the Claimant. The Claims Assessor awarded $186,712 in respect of past economic loss.

The Claims Assessor recognised that a "shortfall” in the Claimant's income would ultimately follow and awarded $200,000 buffer for future economic loss. The buffer award was consistent with a "theoretical calculation" made by the Insurer's forensic accountant. The assessment by the forensic accountant was based on whether the Claimant was found to have a diminution in future earning capacity.

The Insurer's grounds for review concerned the overwhelming lack of evidence for the Claims Assessor's findings and the failure of the Claims Assessor to provide adequate reasoning.

Specifically, the Insurer took issue with the following findings of the Claims Assessor (at [15]):

  1. That but for the accident, in FY16 and FY17 the Claimant's earnings would have been at the weekly rates calculated by him in "Potential Earnings" schedules, and;

  2. That, but for the accident, upon the Claimant accepting a promotion to CNS-2 he would have been rostered to night and weekend shifts and overtime so that his earnings would have been increased by the application of penalty and overtime rates calculated on the higher base salary of a CNS-2.


The Insurer also argued that the Claims Assessor erred by not providing reasons in adopting the Insurer's experts theoretical calculation for future economic loss.

Decision

Ultimately, Fagan J found that:

  1. There was no evidence to "substantiate the integers in the calculations" of the Claimant's "Potential Earnings" because they were constructed on the assumption that the Claimant could work a full shift 365 days a year.
    *In fact, the evidence available to the Claims Assessor (the award conditions relevant to the Claimant's role) left the assumption untenable.

  2. There was no evidence to support the Claimant's calculations for "Potential Earnings" as a CNS-2 nor was there evidence to substantiate that "shift work would have been available at that classification" to support the assertion that the Claimant could receive penalty rates in that role. The Claims Assessor failed to give reasons as to why he unquestionably accepted the Claimant's calculations.

  3. It was an error of law for the Claims Assessor to operate on the "unsupported premise" that the Claimant would have received a promotion to CNS-2 and worked night shifts and weekends when there was no evidence to that effect.

  4. Even if there had been adequate reasoning, his Honour concluded that "no sensible reasons could have been given for those conclusions".

  5. The Claims Assessor had a legal duty to acknowledge the Insurer's evidence and provide an explanation as to why it was not preferred to that of the Claimant. This duty was not discharged.

  6. A buffer award for future economic loss was contradictory in circumstances where the Claims Assessor adopted a theoretical figure for weekly loss, assumed a working life expectancy and applied a discount for vicissitudes.

  7. The Claims Assessor contravened Section 126 of the Act by not providing his assumptions for the award of future economic loss.



At [44] of the judgment, His Honour stated:
'The assessor's reasons manifestly fail to disclose a coherent, intelligible justification for his award. The reasons place a veneer over the complex absence of lawful, evidence-based justification for this significant award of $382,712'

Final result

The Supreme Court set aside the Claims Assessor's decision with respect to past and future loss of earnings.

The matter was remitted to the State Insurance Regulatory Authority for reassessment of the economic loss portion of the claim by another Claims Assessor.

Why this case is important

This case affirms that a Claims Assessor must use the available evidence as a basis for their decisions.

The corollary is that a Claims Assessor will be deterred from making a substantial award for damages in the absence of supporting evidence to warrant acceptance of hypothetical projections made by a party.

This case also serves as a reminder to Claims Assessors of their obligations to provide adequate reasoning for their findings and subsequent assessment of damages.