Licciardo v Hudson (No 1)

[2009] NSWDC 289

CITATION:	Licciardo v Hudson (No 1) [2009] NSWDC 289
HEARING DATE(S):	4, 5 August and 30 October 2009
JUDGMENT DATE:	6 November 2009
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	Interim findings and orders: 1. Pursuant to ss 60(1) and 62(1)(b) of the Motor Accidents Compensation Act 1999 I remit the identified damages issue of the causal connection between the plaintiff’s injuries, his resort to increased use of alcohol for pain relief, his chronic alcoholism and the probable resultant brain damage to the Motor Accidents Authority of NSW for presentation to the MAS Assessor for further consideration and assessment before resuming and concluding the further hearing of these proceedings to enable that issue to be dealt with prior to delivery of a final judgment; 2. I appoint a directions hearing to be listed before me at 10.00am on 5 February 2010 for the purpose of receiving evidence as to the result of any further assessment by the MAS Assessor duly appointed by the Motor Accidents Authority; 3. Liberty to apply on 7 days notice if further orders are required; 4. I reserve the question of costs necessitated by the remittal.
CATCHWORDS:	TORTS – personal injury sustained in a motor vehicle collision - PRACTICE AND PROCEDURE – interim findings remitted to MAS Assessor for assessment pursuant to ss 60(1) and 62(1)(b) of the Motor Accidents Compensation Act 1999 - DAMAGES – issue raised by plaintiff in final submissions at trial – issue not previously considered by MAS Assessor – remittal of issue to MAS Assessor for further assessment pursuant to s 60 prior to resumption of trial and entry of final orders
LEGISLATION CITED:	Motor Accidents Compensation Act 1999
CASES CITED:	Ragen v The Nominal Defendant, Johnstone DCJ, 21 March 2007
PARTIES:	Shane Licciardo (Plaintiff) Tamara Hudson (First defendant) Bruce Hudson (Second defendant)
FILE NUMBER(S):	2327 of 2007
COUNSEL:	Mr A Lidden SC with Mr M Daley (Plaintiff) Mr S Torrington (Defendants)
SOLICITORS:	Bryden’s Law Office (Plaintiff) Curwoods Lawyers (Defendants)

JUDGMENT

Interim issue

1. On 30 October 2009, in the course of final submissions at the conclusion of a 3 day trial of the plaintiff’s claim for damages arising from a motor vehicle collision that occurred on 9 June 2003, the plaintiff raised a damages issue that had not been the subject of consideration by a MAS Assessor pursuant to Part 3.4 of Chapter 3 of the Motor Accidents Compensation Act 1999 concerning medical assessment of the plaintiff’s claim.

2. The issue raised was whether a causal connection existed between the injuries sustained by the plaintiff in the collision and the plaintiff’s subsequent resort to increased alcohol use for pain relief, the subsequent evolution of chronic alcoholism and probable resultant brain damage in the plaintiff.

3. Having heard the evidence of Dr Julian Parmegiani concerning the probable connection between these matters, after final addresses from counsel, I indicated that I had reached the interim conclusion that such a connection had been established. The issue is of some significance to the parties because it has a bearing on whether, as a consequence, the plaintiff is entitled to an award of damages for non-economic loss. The present status of the proceedings is that since the current MAS assessment certificate indicates an assessment of less than 10 per cent whole person impairment, the plaintiff is not entitled to damages for non-economic loss. In his final submissions on behalf of the plaintiff, Mr Lidden SC has requested a reconsideration of the earlier MAS assessment to enable the plaintiff to make a claim for non-economic loss.

4. The issue arises in the context of the defendant’s submissions that the plaintiff’s overall entitlement to damages should be assessed within a constrained five figure sum. In contrast, the plaintiff submits the damages should be assessed in a sum of the order of seven figures. The matter is therefore of some considerable importance to the parties.

Interim findings

5. I make the following interim findings:

(a) the plaintiff had a pre-injury vulnerability to develop chronic alcoholism;

(b) the injuries the plaintiff received in the collision on 9 June 2003 caused him to consume alcohol to excess in an endeavour to achieve relief from the pain caused by his injuries;

(c) these events have caused the plaintiff to further consume alcohol chronically and to excess, such that he has more probably than not acquired permanent brain damage due to alcohol abuse.

6. I base my interim findings on the oral evidence given by Dr Parmegiani at the trial.

Applicable legislation

7. The Motor Accidents Compensation Act 1999 provides the relevant legislative framework for the re-consideration of a medical issue which may be referred to the Motor Accidents Authority. The referral may be made by a court : ss 60(1) and 62(1)(b) of the Act.

Consideration

8. The question is whether the issue of the plaintiff’s whole person impairment should be referred to the MAS Assessor for further assessment. There is undoubted power to remit the question raised for a MAS assessment : ss 60(1) and 62(1)(b) of the Act. This question has previously been considered in this court and has been ultimately determined to be a matter for the exercise of discretion : Ragen v The Nominal Defendant (No 1), Johnstone DCJ 21 March 2007. I agree with that approach.

9. The issue of the assessment of the degree of whole person impairment of the plaintiff due to the effects of his injuries is of equal importance to the parties. Both parties have an interest in ensuring that the plaintiff’s rights to compensation are fairly determined. In my view the issue of the causal connection between the plaintiff’s injuries, his chronic alcoholism and his probable brain damage should be properly and fully considered in the assessment of the plaintiff’s entitlement to damages in this case. I therefore consider that remittal of the issue to the Motor Accidents Authority is the appropriate course to be adopted in this case.

Interim orders

10. I make the following orders:-

(a) Pursuant to ss 60(1) and 62(1)(b) of the Motor Accidents Compensation Act 1999 I remit the identified damages issue of the causal connection between the plaintiff’s injuries, his resort to increase use of alcohol for pain relief, his chronic alcoholism and the probable resultant brain damage to the Motor Accidents Authority of NSW for presentation to the MAS Assessor for further consideration and assessment before resuming and concluding the further hearing of these proceedings to enable that issue to be dealt with prior to delivery of a final judgment;

(b) I appoint a directions hearing to be listed before me at 10.00am on 5 February 2010 for the purpose of receiving evidence as to the result of any further assessment by the MAS Assessor duly appointed by the Motor Accidents Authority;

(c) Liberty to apply on 7 days notice if further orders are required;

(d) I reserve the question of costs necessitated by the remittal.