Ragen v The Nominal Defendant (No 1)

[2007] NSWDC 84

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 that would be suffered by the parties as a consequence: s 58(2)(b)(vi) and (vii) of the Civil Procedure Act (2005).

10. Mr Lidden SC, for Mr Ragen, has informed me that his instructions are to the effect that Mr Ragen does not wish to go back to MAS for re-assessment, due to a combination of his ongoing psychiatric condition and his concern that he will not be given an impartial assessment. Accordingly, he will proceed with this hearing irrespective of the outcome of my decision.

11. In those circumstances I considered that if it was at all possible and appropriate, I should proceed under s 61(6) and make the relevant determination myself.

12. To make that determination myself requires me to assess the degree of permanent impairment of Mr Ragen in accordance with s 133 of the Motor Accidents Compensation Act 1999: s 61(6).

13. S 133(2) of that Act requires the assessment to be undertaken in accordance with the MAA Medical Guidelines issued for that purpose. Mr Lidden submits that I can do this without acting as a MAS assessor. Rather, I can do it by reference to expert medical opinion called in these proceedings.

14. Mr Elkaim SC, for the defendant, opposed this course of action, on two bases.

15. The first basis is that I am precluded from doing so as a matter of law because, Judge Sorby having set aside the original certificate under s 61(4) and referring the matter again for assessment under s 61(5), it is not now open for me to proceed under s 61(6).

16. My tentative reaction to this argument was that it lacked merit. Having considered the matter over the adjournment I have come to the view that this argument is correct. What Judge Sorby did was adjourn the proceedings until a further certificate was given and admitted in evidence in the proceedings: s 61(5). That has not occurred and it is not now open to the Court to proceed under s 61(6).

17. In any event I have also come to the view that this Court should not in this case proceed under s 61(6).

18. Firstly I think it is inappropriate that I should do so having regard to the decision of Judge Sorby declining to do so, there being no change of circumstance.

19. I do not know why the new certificate did not issue, but it does seem to me that it was for the plaintiff to take the appropriate steps to ensure that a certificate did issue. In this regard I consider relevant the provisions of s 58(2)(b)(v) of the Civil Procedure Act (2005).

20. It is also inappropriate in my view for the Court to make the assessment having regard to considerations of causation that flow from such a decision: Pham v Shui (2006) NSWCA 373 at [93] and [96], given the conclusiveness of such a determination not just to the threshold issue, but also as to the medical aetiology.

21. More importantly, however, the view I have come to is that I am simply unable to make the relevant assessment in this case having regard to the MAA Medical Guidelines.

22. In this case those guidelines require the assessment of spinal impairment to be made at the time the person is examined: para 4.3 of chapter 4 of the Medical Guidelines. I leave to one side whether that would require such an examination to occur in court.

23. Simply put, Mr Lidden submits the assessment is to be undertaken having regard to expert medical evidence. It does not require me to physically examine or carry out other tests of a medical nature, required by the guidelines.

24. In my view, what s 133 requires is a medical assessment, not a legal assessment: Campbelltown City Council v Vegan (2004) NSWSC 1129 at [67]. The adjudication of a medical issue requires the expert to bring to bear their own medical expertise: Spurling v Development Underwriting (1973) VR 1, drawing upon accumulated knowledge and experience: R v Milkboard (1944) VLR 187 at 197.

25. I do not therefore consider that the relevant determination can be made by having regard to expert medical opinion, it does in fact require the Court to stand in the notional shoes of a MAS assessor.

26. I do not have the expertise required for that purpose.

27. For all these reasons I decline to substitute the Court’s determination as to the plaintiff’s degree of permanent impairment under s 61(5).

28. I dismiss the motion.

Note: On 2 March 2007 I ordered the plaintiff to pay the defendant’s costs of the motion on the ordinary basis.