Ragen v The Nominal Defendant (No 1)

Reported Decision: 4 DCLR(NSW) 212

District Court

CITATION:	Ragen v The Nominal Defendant (No 1) [2007] NSWDC 84
HEARING DATE(S):	27 February 2007
JUDGMENT DATE:	16 March 2007
EX TEMPORE JUDGMENT DATE:	27 February 2007
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Application refused
CATCHWORDS:	TORT (MOTOR ACCIDENT) - Threshold for damages for non-economic loss - Application to have trial judge assess degree of permanent impairment where MAS certificate set aside
LEGISLATION CITED:	Motor Accidents Compensation Act 1999; s 34(1), s 128(3), s 131 Civil Procedure Act 2005: s 56 and s 58(2)(b)(v)
PARTIES:	David Harry Ragen (Plaintiff) The Nominal Defendant (Defendant)
FILE NUMBER(S):	2746/03
COUNSEL:	Mr Lidden SC with Mr Khandhar for the plaintiff Mr Elkaim SC for the defendant
SOLICITORS:	Brydens Law Office (Plaintiff) Holman Webb (Defendant)

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JUDGMENT

1. Mr Ragen was injured in a motor vehicle accident on 2 March 2000. He claims damages from the Nominal Defendant. Liability is denied and the proceedings have come to trial.

2. A preliminary issue has arisen at the outset that affects the probable course of the trial. For reasons which I will come to, I consider it appropriate that I determine this preliminary issue now so that the parties will know what issues remain in dispute and what evidence may be required to be called: s 56 Civil Procedure Act 2005. I have had occasion to comment on these sorts of considerations before: Mafra v Egan(No 1) (2006) NSWDC 22 at [6] to [8] and at [15].

3. There is no agreement or certification that Mr Ragen suffers from a permanent impairment greater than 10% as a result of his accident: s 131 of the Act. Absent a determination on that issue, no damages may be awarded for non-economic loss.

4. Mr Ragen’s counsel asks me to make the assessment and substitute a determination of the Court as to the degree of permanent impairment: s 61(6) of the Motor Accidents Compensation Act 1999.

5. There was a certificate, which assessed Mr Ragen’s permanent impairment at 7%. But Judge Sorby of this Court rejected that certificate on 15 September 2005, on the grounds of a denial of procedural fairness: s 61(4) of the Motor Accidents Compensation Act 1999.

6. Judge Sorby was then asked to do exactly what I am asked to do today, namely to make the assessment himself under s 61(6). He declined to do so. Instead he referred the assessment back to MAS again for assessment: s 61(5)of the Act.

7. For reasons that are unclear, no fresh certificate issued, although I was informed from the bar table that Mr Ragen was in fact examined by a medical assessor for that purpose.

8. In normal circumstances I would be inclined to do what Judge Sorby did and refer the matter back to MAS under s 61(5).

9. However, there are some particular features of this case which I need to take into account, namely the degree of injustice…