When calculating compensation settlements, the expected age of retirement is 67 years of age. Anything beyond 67 years must be submitted for review, explaining why you believe you (as an injured claimant) should be expected to work past 67 years under your expected life path before the incident.
CASE BACKGROUND – Allianz Limited v Habib & ORS (2015) NSW SC1719
A scenario was recently resolved in the Supreme Court where Allianz, the CTP Insurer, overturned a previous decision to award compensation to an injured claimant based on a retirement age of 70. It was found that there was no substance or justified reason for the claimant to receive compensation past the expected age of 67, and thus the decision was overturned. Read below for more details.
There was a recent decision in the Supreme Court of NSW where His Honour Mr Justice Beech-Jones set aside the decision of a Claims Assessor because of a failure by the Claims Assessor to state (and to the extent necessary explain) the claimant’s age of retirement.
The proceedings were for personal injuries arising out of a motor vehicle accident which occurred on 30 January 2013. At that time, the plaintiff sustained an injury to his lower back in the accident. The CTP insurer, Allianz accepted liability for the claim. The Claims Assessor issued a certificate and reasons for decision on 14 May 2015 and awarded damages in favour of the claimant in the sum of $221,586.00 plus schedule legal costs.
In the reasons, the Assessor awarded the claimant an amount of $160,000.00 for future economic loss and the sum of $36,500.00 for future commercial care.
The CTP insurer sought a judicial review of the assessment on a number of grounds and in particular sought to set the decision aside because the calculation of future economic loss was projected to an age of retirement of 70 years.
There was a document headed, ‘Claimant’s Calculations’ which set out the schedule of damages claimed by the claimant.
This document had been served upon the CTP insurer.
However, in the Assessor’s reasons, there was no reference made to this document.
Allianz in their submissions stated that they had never agreed to the assumption the claimant would continue working until the age of 70.
In most cases, the parties now agree the anticipated working life of a claimant is until the age If a Judge or Claims Assessor is to award compensation for loss of earnings beyond the age of 67, then it is incumbent upon that Judge or Assessor to provide adequate reasons as to why he or she has awarded damages for that further short period of working life.
The decision is worth reading as all the other grounds of review which were submitted by Allianz were rejected by His Honour.
Accordingly, it is important when seeking to have damages for economic loss beyond the age of 67 years to set out in detail for submission to the Judge or the Claims Assessor the reasons why you wish to submit the claimant had intended to work beyond the age of 67 years.
But for the accident, you should submit the claimant was in good health, had a secure employment or worked in a profession where working beyond the age of 67 years is more the norm than the exception and if possible, provide corroborating evidence from either fellow workers or members of that particular profession.
David R. Ford, Special Counsel