Hodgson v Crane

[2002] NSWCA 276

Reported Decision: (2002) 55 NSWLR 199

New South Wales

Court of Appeal

CITATION:	Hodgson v Crane [2002] NSWCA 276
FILE NUMBER(S):	CA 40003/02
HEARING DATE(S):	5 August 2002
JUDGMENT DATE:	22 August 2002
PARTIES :	Sally Rowena Hodgson (First Appellant) Commonwealth of Australia (Second Appellant) Matthew Broderick Crane (Respondent)
JUDGMENT OF:	Sheller JA at 1; Heydon JA at 2; Davies AJA at 46

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 228/00
LOWER COURT JUDICIAL OFFICER :	O'Reilly DCJ

COUNSEL:	Mr C R R Hoeben SC/Mr D J Brogan (Appellants) Mr B M J Toomey QC/Mr A J Black (Respondent)
SOLICITORS:	Australian Government Solicitor (Appellants) Walsh & Blair (Respondent)
CATCHWORDS:	Motor accidents - Motor Accidents Compensation Act 1999 ss 131, 131, 133, 134 - - Statutes - construction - reading in of words - conditions for - whether necessary - D
LEGISLATION CITED:	Motor Accidents Act 1988 Motor Accidents Compensation Act 1999
CASES CITED:	Brennan v R (1936) 55 CLR 253 Geaghan v D'Aubert [2002] NSWCA 260 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85
DECISION:	The appeal is dismissed; the appellants are to pay the respondent's costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40003/02
DC 228/00

SHELLER JA
HEYDON JA
DAVIES AJA

22 August 2002

HODGSON v CRANE

Motor accidents – Motor Accidents Compensation Act 1999 ss 131, 131, 133, 134 –
Statutes – construction – reading in of words – conditions for – whether necessary

The plaintiff sustained injuries when a motor vehicle owned by the second defendant and driven by the first defendant reversed into his motor cycle. Under the Motor Accidents Compensation Act 1999 (NSW) the primary judge entered a verdict and assessed damages at $557,254 with costs. The defendant appealed as to quantum of damages for non-economic loss on the ground that the primary judge had incorrectly construed the Act.

Held (Heydon JA, Sheller JA and Davies AJA agreeing), dismissing the appeal:

1. On the true construction of ss 131-134, once the threshold of 10% permanent impairment is passed, the court is to assess damages for non-economic loss without any statutory restraint, save that no more than $284,000 may be awarded, provided the court has regard to information published by the Motor Accidents Authority as required by s 135: [39].

2. It was not possible to construe the language of ss 131-134 as importing any idea of proportionality where there are no express words conveying it, where the express words which conveyed it in the 1988 Act had been removed, and where the most relevant object of the 1999 Act appeared to indicate a purpose of preserving principles of full compensation, without reference to proportionality, once the s 131 threshold had been satisfied. The novelty of the “new scheme” which the Act created lay in the abandonment of the former threshold, the introduction of the much stricter s 131 threshold, and the abandonment of proportionality: [34].

3. Given the lack of express language indicating that the degree of impairment above 10% was to be taken into account, and how, it was not possible to construe ss 131-134 as compelling attention to that as a decisive factor in every case. It was certainly possible that cases would arise where the degree of physical impairment would be important: [35].

4. It was not established to be necessary to read words into the Act in order to for it defeat the mischief which it was designed to overcome. The purpose of limiting recovery for “relatively minor” injuries was met by s 131; the purpose of “preserving principles of full compensation for those with severe injuries” was better met by abstaining from a proportionality approach than by reading it in. Further, it was not possible to state with certainty what words parliament would have used to overcome the putative omissions if its attention had been drawn to them: [37].

Jones v Wrotham Park Estates [1980] AC 74; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85, considered.

O R D E R S

1. The appeal is dismissed.

2. The appellants are to pay the respondent’s costs.

CA 40003/02
DC 228/00

SHELLER JA
HEYDON JA
DAVIES AJA

22 August 2002

HODGSON v CRANE

Judgment

1 SHELLER JA: I agree with Heydon JA.

2 HEYDON JA: This is an appeal against orders made by O’Reilly DCJ, QC, on 5 December 2001 after a trial on 3 December 2001. He gave judgment for the plaintiff in the sum of $557,254 with costs for injuries sustained by the plaintiff when a motor vehicle owned by the second defendant and driven by the first defendant reversed into his motor cycle.

3 The court was informed that this was the first case to be tried, and the first case to be the subject of an appeal, in which ss 131-134 of the Motor Accidents Compensation Act 1999 had to be considered.

4 Section 131 provides:

“No damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.”

5 Section 132 provides:

“(1) If there is a dispute about whether the degree of permanent impairment of an injured person is sufficient for an award of damages for non-economic loss, the court may not award any such damages unless the degree of permanent impairment has been assessed by a medical assessor under Part 3.4 (Medical assessment).
Note. The assessment of the medical assessor under Part 3.4 is conclusive in proceedings before the court---see section 61.
(2) The court may, at any stage in proceedings for an award of damages for non-economic loss, refer the matter for assessment of the degree of permanent impairment under Part 3.4.
(3) A medical assessor may decline to make an assessment under Part 3.4 of the degree of permanent impairment of an injured person until the assessor is satisfied that the injury has stabilised. Court proceedings with respect to any such matter may be adjourned until the assessment is made.
(4) Nothing in this section prevents:
(a) the degree of impairment being re-assessed under Part 3.4, or
(b) a claim from being settled at any time.”

6 Section 133 provides:

“(1) The assessment of the degree of permanent impairment of an injured person as a result of the injury caused by a motor accident is to be expressed as a percentage in accordance with this Part.
(2) The assessment of the degree of permanent impairment is to be made in accordance with:
(a) MAA Medical Guidelines issued for that purpose, or
(b) if there are no such guidelines in force---the American Medical Association's Guides to the Evaluation of Permanent Impairment, Fourth Edition.
(3) In assessing the degree of permanent impairment under subsection (2) (b), regard must not be had to any psychiatric or psychological injury, impairment or symptoms, unless the assessment of the degree of permanent impairment is made solely with respect to the result of a psychiatric or psychological injury.
Note. See Part 3.1 for MAA Medical Guidelines.”

7 Section 134 provides:

“(1) The maximum amount that a court may award for non-economic loss is $284,000.
(2) If that amount is adjusted by the operation of section 146 (Indexation of amounts relating to award of damages), the applicable maximum amount is the amount as at the date the award is made.”

8 The court was informed that no MAA Medical Guidelines have been issued.

9 At the trial the parties agreed that the degree of permanent impairment of the plaintiff as a result of the injuries caused in the accident was greater than 10%.

10 The trial judge held that his task was simply to assess damages for non-economic loss in the same way that they would have been assessed at common law before the Motor Accidents Act 1988 was enacted. He contrasted s 134(1) of the 1999 Act with s 79(2) of the Motor Accidents Act 1988, which applied to accidents occurring before midnight on 26 September 1995. Section 79(2) provided:

“The amount of damages to be awarded for non-economic loss shall be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.”

He said:

“This is a very curious result, because I doubt that the legislature would have intended to simply leave the assessment free of any proportionality attachment to the maximum potential sum which may be awarded, but that is what seems to have happened.
The only rational conclusion that I can come to is that I must assess the ‘general damages’ in accordance with the common law. The defendant’s counsel submits in general terms that the assessment must be based on some rational proportionate part of the maximum award. I note as a matter of interest that the figure that I arrived at on a common law basis is almost exactly sixty per cent of the maximum, which I would have thought from previous experience under the Motor Accidents Act litigation is probably the sort of proportion I would have come to if directed to by the current legislation.
Counsel for the defendant directed my attention to the whole body impairment estimates for the various doctors. I understand her to be suggesting that I should approach it on the basis of some such proportionality in relation to the maximum amount, but I do not, with respect, follow that submission.”

11 The trial judge proceeded to assess the non-economic loss figure as $170,000.

12 The defendants made three challenges to the figure – two based on the trial judge’s construction of the Motor Accidents Compensation Act 1999, and one based on the proposition that the figure of $170,000 was on any approach too high.

The construction of the legislation

13 The defendants contended that the degree of permanent impairment of the plaintiff was not relevant only to the 10% threshold established by s 131, but also had a role to play in the assessment of the quantum of non-economic loss. The defendants also contended that even though s 79 and s 79A of the Motor Accidents Act 1988, which required the court to determine damages for non-economic loss by reference to a proportion of a most extreme case, had no explicit counterparts in the 1999 Act, the fact that s 134(1) imposed a cap of $284,000 implied that the court was obliged to follow a proportionate approach.

14 Before considering the arguments advanced, it is convenient first to set out the provisions in the 1999 Act which were relied on by the parties (apart from ss 131-134, set out above).

15 The preamble to the Act provides that it is an Act “to establish a new scheme of compulsory third-party insurance and payment of compensation relating to the death of or injury to persons as a consequence of motor accidents … .”

16 In Section 3 “non-economic loss” is defined as meaning:

“(a) pain and suffering, and
(b) loss of amenities of life, and
(c) loss of expectation of life, and
(d) disfigurement.”

17 Section 5 provides:

“(1) The objects of this Act are as follows:
(a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from injuries sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities,
(b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims,
(c) to promote competition in the setting of premiums for third-party policies, and to provide the Authority with a prudential role to ensure against market failure,
(d) to keep premiums affordable, recognising that third-party bodily insurance is compulsory for all owners of motor vehicles registered in New South Wales,
(e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities,
(f) to ensure that insurers charge premiums that fully fund their anticipated liability,
(g) to deter fraud in connection with compulsory third-party insurance.
(2) It must be acknowledged in the application and administration of this Act:
(a) that participants in the scheme under this Act have shared and integrated roles with the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds so as to keep premiums affordable, and
(b) that the law (both the enacted law and the common law) relating to the assessment of damages in claims made under this Act should be interpreted and applied in a way that acknowledges the clear legislative intention to restrict the level of non-economic loss compensation in cases of minor injuries, and
(c) that:
(i) the premium pool from which each insurer pays claims consists at any given time of a finite amount of money, and
(ii) insurers are obliged under this Act to charge premiums that will fully fund their anticipated liability, and
(iii) the preparation of fully funded premiums requires a large measure of stability and predictability regarding the likely future number and cost of claims arising under policies sold once the premium is in place, and
(iv) the stability and predictability referred to in subparagraph (iii) require consistent and stable application of the law, and
(d) that insurers, as receivers of public money that is compulsorily levied, should account for their profit margins, and their records should be available to the Authority to ensure that accountability.”

18 Section 6 provides:

“(1) In the interpretation of a provision of this Act or the regulations, a construction that would promote the objects of this Act or the provision is to be preferred to a construction that would not promote those objects.
(2) In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned.”

19 Part 3.4 is headed “Medical assessment”. Section 58 provides:

“(1) This Part applies to a disagreement between a claimant and an insurer about any of the following matters:
(a) whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances,
(b) whether any such treatment relates to the injury caused by the motor accident,
(c) whether an injury has stabilised,
(d) the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident,
(e) the degree of impairment of the earning capacity of the injured person as a result of the injury caused by the motor accident.
(2) This Part also applies to any issue arising about such a matter in proceedings before a court or in connection with the assessment of a claim by a claims assessor.”

20 Section 60(1) provides:

“A medical dispute may be referred for assessment under this Part by either party to the dispute or by a court or claims assessor.”

21 Section 61 provides:

“(1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment.

(2) Any such certificate as to:

(a) whether the degree of permanent impairment of the injured person is greater than 10%, or
(b) whether any treatment already provided to the injured person was reasonable and necessary in the circumstances, or
(c) whether an injury has stabilised,
is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.
(3) Any such certificate as to any other matter is evidence (but not conclusive evidence) as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned.
(4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party.
(5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings.
(6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part.
(7) Except as provided by subsection (6), a court may not substitute its own determination as to any matter referred to in subsection (2) (a), (b) or (c).
(8) This section:
(a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and
(b) does not require a court to refer a matter again for assessment under this Part if the matter is not a matter referred to in subsection (2) (a), (b) or (c).
(9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence.”

22 Section 63 provides:

“(1) A party to a medical dispute may apply to the proper officer of the Authority to refer a medical assessment under this Part by a single medical assessor to a review panel of medical assessors for review.
(2) An application for the referral of a medical assessment to a review panel may only be made on the grounds that the assessment was incorrect in a material respect.
(3) The proper officer of the Authority is to arrange for any such application to be referred to a panel of at least 3 medical assessors, but only if the proper officer is satisfied that there is reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
(4) The review panel may confirm the certificate of assessment of the single medical assessor, or revoke that certificate and issue a new certificate as to the matters concerned.
(5) Section 61 applies to any such new certificate.”

23 The parties correctly said that neither the Explanatory Memorandum nor the Second Reading Speech offered any assistance in the task of construing the legislation.

24 It was also common ground between the parties, whose respective senior counsel appearing before this Court are of very great experience in the field, that the 10% permanent impairment threshold established by s 131 was extremely difficult to satisfy. They said that leaving aside special classes to whom s 131 does not apply, such as children, quadriplegics and paraplegics, only about ten persons per annum had passed through the s 131 threshold. Yet a generation ago there were tens of thousands of motor accident cases commenced each year without any threshold.

25 In the absence of MAA Medical Guidelines, the American Medical Association’s Guides to the Evaluation of Permanent Impairment, Fourth Edition, apply. They turn on “whole of body” tests. Those tests are applied by medical assessors under s 61. The certificate of the assessors is conclusive on certain matters, including whether the degree of permanent impairment exceeds 10%. A certificate can only be rejected by the court where there is procedural unfairness and the court considers that admission of the certificate would cause a substantial injustice. There is an evident legislative intention to depart from the thresholds adopted under the 1988 Act defined by reference to particular percentages of a most extreme case. Those thresholds inevitably turned on matters of impression, judgment and degree, and permitted courts in practice to be more generous than the legislature had perhaps desired. There is also an evident legislative intention, in relying on a purely physical basis of the American Medical Association’s Guides, to ignore the dramatic effect on some plaintiffs of relatively minor injuries. A barrister or accountant or businessman who lost a finger might have experienced a very low percentage of permanent impairment on a whole of body basis, and indeed might recover very low damages at common law; but a great violinist or a skilled craftsman in the same position might have lost a great deal. Parliament has chosen to leave that consideration out of account in providing for the s 131 threshold. Similarly, a young adult who lost part of the function of its right leg has the same percentage of whole of body impairment as a very old man with the same injury: the former’s loss will be experienced for much longer than the latter’s and is likely to be much greater, but s 131 ignores the difference.

26 The defendants contended that the assessment by medical assessors of permanent impairment was not limited to whether the degree of permanent impairment exceeded 10%, but operated more generally. Part 3.4 was, it was submitted, a crucial part of the legislation, taking away the court’s power in large measure to decide on the degree of permanent impairment. The defendants pointed out that s 132(2) provided that the court’s power to refer the matter for assessment of the degree of permanent impairment was not limited to the initial stage of the proceedings, when questions of the 10% gateway might be expected to arise, but was a power which could be exercised at any stage. The defendants submitted that it was “difficult to see why once a gateway had been accessed a Court would send it off unless this permanent impairment concept had another job to do in relation to the overall assessment.” On this submission, the matters caught by the expression “any other matter” in s 61(3) included issues as to what the degree of permanent impairment was above 10%. The defendants also pointed to s 133(1): it did not provide that the assessment of the degree of permanent impairment was either 10% or less, or over 10%, it provided that the degree, whatever it was, was to be expressed as a percentage. If so, that precise percentage, if it were above 10%, must have some role to play in assessing damages.

27 The defendants then contended that that group of arguments pointed towards proportionality as being a proper approach, and submitted that that approach was also supported by the s 134 cap. They frankly admitted, however, that they could point to no other argument for that view, nor to any useful canon of statutory construction.

28 The defendants’ arguments are invalid.

29 It is a legitimate aid to statutory construction to read an Act as a whole in order to ascertain the statutory scheme in its totality. Where succeeding Acts having both similarities with and differences from each other deal with a single subject, it must equally be legitimate to ascertain and compare the succeeding statutory schemes. In this way the function of particular provisions within each scheme is illuminated. The introduction of particular provisions can be seen to have particular significance in the light of what has been retained and what has been removed. See generally Geaghan v D’Aubert [2002] NSWCA 260 at [22]-[24].

30 In effect the defendants’ arguments attempted to give the 1999 legislation the same construction as that borne by the 1988 legislation. This approach was condemned by Dixon and Evatt JJ in Brennan v R (1936) 55 CLR 253 at 263:

“[statutory] language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the [Criminal Code (WA)], and then to see if the Code will bear an interpretation which will leave the law unaltered.”

31 In its final form, s 79 of the Motor Accidents Act 1988, which applied to the determination of non-economic loss in relation to motor accidents occurring before midnight on 26 September 1995, relevantly provided:

“(1A) The object of this section is to limit the amount of damages for non-economic loss in cases of claims relating to relatively minor injuries, in order to achieve the object of the Act of more fully compensating those with more severe injuries at a cost the community can afford to meet.
(1B) No damages shall be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person's ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than 6 months by the injury suffered in the accident.
(2) The amount of damages to be awarded for non-economic loss shall be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded.
(3) The maximum amount which may be awarded for non-economic loss is $180,000, but the maximum amount shall be awarded only in a most extreme case.
(4) If the amount of non-economic loss is assessed to be $15,000 or less, no damages for non-economic loss shall be awarded.
(5) If the amount of damages to be awarded for non-economic loss in accordance with this section is more than $15,000 but less than $55,000, the following deductions shall be made from that amount:
(a) if the amount of damages is less than $40,000 the amount to be deducted is $15,000,
(b) if the amount of damages is not less than $40,000 the amount to be deducted is $15,000, or $15,000 reduced by $1,000 for every $1,000 by which the amount of damages exceeds $40,000.”

32 Section 79A, which applied to the determination of non-economic loss in relation to motor accidents occurring after midnight on 26 September 1995 until the Motor Accidents Compensation Act 1999 came into force on 5 October 1999, stated the same object as s 79(2), and further provided:

“(3) No damages are to be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person's ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than 12 months by the injury suffered in the accident.
(4) No damages may be awarded for non-economic loss unless the severity of the non-economic loss of the injured person is at least 15 per cent of a most extreme case.
(5) The maximum amount that may be awarded for non-economic loss is $235,000, but the maximum amount is to be awarded only in a most extreme case.
(6) If the severity of the non-economic loss is assessed to be equal to or greater than 15 per cent of a most extreme case, the damages for non-economic loss are to be determined according to the following Table … .”

The structure of the Table was in effect that as the percentage reflecting the proportion of a most extreme case moved from 15 to 33, the percentage of the maximum amount recoverable moved from 1 to 33. Thereafter the percentages moved in step.

33 It was common ground that nothing in terms corresponding to s 79 or s 79A appeared in the 1999 Act. Yet in other respects the legislation had many similarities. The provisions of s 2A(2)(a)-(c) of the 1988 Act are identical with s 5(2) of the 1999 Act. Section 2B of the 1988 Act is identical with s 6 of the 1999 Act. Section 71 of the 1988 Act (establishing a 5% discount rate for future economic loss) is to the same effect as s 127 of the 1999 Act. Section 72 of the 1988 Act, limiting compensation for the value of attendant care services, is similar to s 128 of the 1999 Act. Section 72A of the 1988 Act (respite care) is the same as s 129 of the 1999 Act. Section 78 of the 1988 Act, providing for the reduction of awards for economic loss in the light of other amounts paid or payable, is similar to s 130 of the 1999 Act. Section 37(4) and s 39 of the 1988 Act, relating to mitigation of damages, correspond with s 136 of the 1999 Act. Section 73 of the 1988 Act (limiting interest) corresponds with s 137 of the 1999 Act. Sections 74 and 75 of the 1988 Act, relating to contributory negligence, correspond with ss 138 and 139 of the 1999 Act. Section 76 of the 1988 Act (voluntary assumption of risk) corresponds with s 140 of the 1999 Act. Section 77 of the 1988 Act (damages for psychological or psychiatric injury) corresponds with s 141 of the 1999 Act. Section 81A of the 1988 Act (exemplary and punitive damages) corresponds with s 144 of the 1999 Act. Section 82 of the 1988 Act (apportionment) corresponds with s 145 of the 1999 Act.

34 Against this background, it is not possible to construe the language of ss 131-134 as importing any idea of proportionality where there are no express words conveying it, where the express words which conveyed it in the 1988 Act have, unlike those of many other important provisions, been removed, and where the most relevant object of the 1999 Act, stated in s 5(1)(e), appears to indicate a purpose of preserving principles of full compensation, without reference to proportionality, once the s 131 threshold has been satisfied. In short, the novelty in the “new scheme” which, according to the preamble, the Act creates, lies in the abandonment of the former threshold, the introduction of the much stricter s 131 threshold, and the abandonment of proportionality.

35 Further, given the lack of express language indicating that the degree of permanent impairment above 10% is to be taken into account, and how, it is not possible to construe ss 131-134 as compelling attention to that as a decisive factor in every case. It is certainly possible that a degree of permanent impairment significantly above 10% might be important in pushing damages for non-economic loss up, and it is possible that in a particular case the court might wish to avail itself of its power to refer the matter for assessment under s 132(2) with a view to the precise percentage above 10% being assessed pursuant to s 133(1). The assessment would be conclusive on the question where the degree of permanent impairment was greater than 10%, but not on the question of how much greater. But the existence of that power to be used in some instances does not establish that the precise percentage of permanent impairment is crucial in every case. Section 132(3) may also have another role: to permit the court to have the question whether the s 131 threshold has been passed examined even though the parties agreed that it had, for the court is not bound by an agreement of that kind. Further, though s 60 provides that either party, or the court, or a claims assessor can refer a medical dispute for assessment under Part 3.4 at any time, the parties may have chosen not to do so in the hope that the dispute can be resolved as medical reports are served before trial or as medical evidence is analysed at trial. If this hope turns out to be ill-founded, then a s 132(2) order can be made at that stage.

36 The defendants must fail in their arguments of statutory construction unless appropriate words can be read into the Act. According to McHugh J in Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 113:

“on rare occasions a court may be justified in treating a provision as containing additional words if those additional words will give effect to the legislative purpose. In Jones v Wrotham Park Estates [[1980] AC 74 at 105] Lord Diplock said that three conditions must be met before a court can read words into legislation. First, the court must know the mischief with which the statute was dealing. Second, the court must be satisfied that by inadvertence Parliament had overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. Third, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect.”

37 It is clear that one of the mischiefs with which the Motor Accidents Compensation Act 1999 was dealing was that stated in s 5(1)(e). However, it cannot be said that by overlooking the issue of providing explicitly for the issue of whether and how to take into account permanent impairment above 10% or the issue of whether recoveries should be proportioned so that the worst cases receive $284,000 and the less bad cases correspondingly less, parliament has overlooked an eventuality which must be dealt with if the purpose of the legislation is to be achieved. The purpose of limiting recovery for “relatively minor” injuries is met by s 131; the purpose of “preserving principles of full compensation for those with severe injuries” is better met by abstaining from a proportionality approach than by reading it in. Further, it is not possible to state with certainty what words parliament would have used to overcome the putative omissions if its attention had been drawn to them.

38 The defendants pointed out that the construction favoured by the trial judge created an anomaly in that a very badly injured person could recover only $284,000, while a much less badly injured person whose damages were assessed at $283,000 would enjoy almost equal recovery in relation to much less injury. That is in a sense an anomaly, but not one which can be persuasive in construing ss 131-134 in a way which their language will not permit. It is not a relevant anomaly within the statutory scheme.

39 Accordingly, the approach to statutory construction of the trial judge was correct. On the true construction of ss 131-134, once the s 131 threshold of 10% permanent impairment is passed, the court is to assess damages for non-economic loss without any statutory restraint, save that no more than $284,000 may be awarded, provided the court has regard to information published by the Motor Accidents Authority as required by s 135.

Quantum of damage for non-economic loss

40 The defendants contended that the award of $170,000 damages for non-economic loss was too high. They conceded that in favour of the award were the plaintiff’s age (23); the significant injuries he suffered to his left leg, his right leg, his right wrist and two of the digits on his left hand; and some neck and back pain. The defendants contended that the specific error in the trial judge’s approach was to double-count the plaintiff’s difficulties in gaining employment: he calculated the plaintiff’s economic loss on a working life of 42 years, but also took into account in relation to non-economic loss that his future working life would be 42 years. The defendants also submitted that the extent of the pain suffered by the plaintiff had declined.

41 In my opinion there is no sufficient reason to change the figure arrived at by the trial judge.

42 First, the defendants’ summary of the plaintiff’s injuries rather downplay their severity. In addition to the plaintiff’s orthopaedic injuries, which were likely to improve only slightly with the passing of time, he was suffering from unresolved depression.

43 Secondly, his interests and ambitions had centred on motor cycle riding and cabinet making. The accident had caused each of these fields to become effectively closed to him. The plaintiff had lost any opportunity to continue his success in motor cycle racing, and the accident had prevented him from enjoying even the pursuit of non-competitive motor cycle riding. Before the accident the plaintiff had creative skills and interests: he enjoyed designing and building furniture as part of his family’s business. He could not build furniture any more, since his injuries caused him to be unable to stand for long periods or use the tools appropriately. It was not economically feasible to operate only as a designer who could not make furniture corresponding to his designs.

44 Thirdly, there was no double-counting. The trial judge was entitled to take into account the plaintiff’s 42 year working life both in calculating economic loss and in relation to non-economic loss. The disappointment likely to be experienced at not pursuing a career of choice justified compensation under the heading of non-economic loss over and above that related to lost wages.

Orders

45 The following orders are proposed:

1. The appeal is dismissed.

2. The appellants are to pay the respondent’s costs.

46 DAVIES AJA: I agree with the reasons for judgment of Heydon JA and with the orders which his Honour proposes. However, I would add an observation of my own.

47 In the course of his reasons for judgment, the learned trial Judge said:

“I doubt that the legislature would have intended to simply leave the assessment free of any proportionality attachment to the maximum potential sum which may be awarded, but that is what seems to have happened.
The only rational conclusion that I can come to is that I must assess the ‘general damages’ in accordance with the common law.”

48 In my opinion, by providing in s 134(1) of the Motor AccidentsCompensation Act 1999 that the maximum amount that a court may award for non-economic loss is $284,000, the Legislature has expressed its intention that the range of damages for non-economic loss will be from $1 to $284,000. A judge assessing general damages should have regard to the Legislature’s intention and should assess a figure for non-economic loss which is appropriate having regard to the range which is available.

49 Subsequently in his reasons, the trial Judge expressed the view that the figure for non-economic loss which he had determined, $170,000, was appropriate having regard to that range. I agree with Heydon JA that no error in his Honour’s assessment has been demonstrated.

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