Ragen v The Nominal Defendant (No 2)

[2007] NSWDC 85

Reported Decision: 4 DCLR (NSW) 227

District Court

CITATION:	Ragen v The Nominal Defendant (No 2) [2007] NSWDC 85 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	2 March 2007
JUDGMENT DATE:	21 March 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 at conclusion of trial for referral back to MAS for re-assessment of degree of permanent impairment - STATUTORY INTERPRETATION - Construction of Motor Accidents Compensation Act 1999
LEGISLATION CITED:	Motor Accidents Compensation Act 1999: s 58, 60, s 61, s 62, s 131 and s 132 Civil Procedure Act 2005: s 56
CASES CITED:	Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355 at [134] Mafra v Egan (No 1) [2006] NSWDC 22 Muljeskovic v Zrieka (Unreported, NSWDC 15.12.06, Judicial Registrar McDonald in 1799/05) Oshlack v Richmond River Council (1998) 193 CLR 72 at [22] Schenck Australia Pty Ltd v Australian Coal Technology Pty Ltd [2006] NSWCA 211 at [43] Towell v Schuetrumpe [2006] NSWDC 159
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)

JUDGMENT

Introduction

1. Mr Ragen was injured in a motor accident when he was driving along the M4 Motorway on 2 March 2000. He says the accident was caused by the fault of the driver of a motor vehicle the identity of which could not be established, after due enquiry and search, and brought this action for the recovery of damages against the Nominal Defendant: s 34(1) of the Motor Accidents Compensation Act 1999 (the MAC Act 1999). The Nominal Defendant denied liability.

2. Mr Ragen alleged that as a result of the accident he sustained significant orthopaedic injuries and a severe secondary psychological condition.

3. His claim came to trial without Mr Ragen having established that the degree of permanent impairment he suffered as a result of the injuries caused by the motor accident was greater than 10%: s 131 of the MAC Act 1999.

4. In respect of psychiatric impairment a medical assessor, Dr J Parmegiani, had made an assessment under s 132(1) of the MAC Act 1999. He issued a Permanent Impairment Certificate on 9 November 2004 certifying the permanent impairment at less than 10%, namely 5%.

5. In respect of orthopaedic impairment a medical assessor, Dr S Perla had made an assessment under s 132(1) of the MAC Act 1999. He issued a Permanent Impairment Certificate on 11 October 2004 certifying the permanent impairment at less than 10%, namely 7%. On 15 September 2005 Judge Sorby set Dr Perla’s Certificate aside, under s 61(4) of the MAC Act 1999. Judge Sorby was asked, under s 61(6), to substitute a determination of the court as to the degree of permanent impairment, but he declined to do so.

6. Instead, Judge Sorby referred the matter again for assessment under Part 3.4 of the MAC Act 1999, under s 61(5). For reasons that are unclear, no fresh certificate issued, and the matter came to trial without any Permanent Impairment Certificate in respect of Mr Ragen’s orthopaedic impairment.

7. On the first morning of the trial, another application was made under s 61(6), on behalf of Mr Ragen for me, as the trial judge, to substitute a determination of the court as to the degree of permanent orthopaedic impairment. I also declined to do so: (see my separate extempore Reasons for Judgment on that application).

8. No consequential application was made under s 61(5) for referral of that matter again for assessment under Part 3.4 of the MAC Act 1999. Indeed, Mr Lidden SC informed me that his instructions were to the effect that Mr Ragen did not wish to go back to MAS for re-assessment, due to a combination of his ongoing psychiatric condition and his concern that he would not be given an impartial assessment.

9. Thus, the trial proceeded on the basis that Mr Ragen was not entitled to recover damages for non-economic loss because he had not established that the degree of permanent impairment he suffered as a result of the injuries caused by the motor accident was greater than 10%: s 131 of the MAC Act 1999.

10. The trial was heard over 4 days from 27 February to 2 March 2007. At the conclusion of the trial, following addresses, an application was made on behalf of Mr Ragen, under s 60(1) of the MAC Act 1999, for the court to refer the assessment of permanent impairment for psychiatric impairment back for re-assessment by a medical assessor. For reasons I will come to, I believe the application is more properly grounded under s 62(1)(b) of the MAC Act 1999.

11. The statutory scheme relating to medical assessment is set out in Part 3.4 of the MAC Act 1999.

Can the application succeed as a matter of law?

12. Section 60(1) of the MAC Act 1999 permits a court to refer a medical dispute for assessment. It was submitted for Mr Ragen that a medical dispute exists, which the court may refer for assessment. A ‘medical dispute’ is defined by s 57 as “a disagreement or issue to which this Part applies.” Because self-evidently the defendant does not agree that Mr Ragen’s psychiatric condition results in a permanent impairment greater than 10%, there is an extant disagreement about that matter capable of referral: s 58(1). Alternatively, an issue about that matter is extant and capable of referral: s 58(2).

13. In my view, however, there is no extant disagreement or issue that is capable of referral. A medical dispute means a disagreement or issue to which Part 3.4 applies. That definition contemplates a disagreement or dispute about a ‘matter’, which must be one of the matters set out in s 58(1). The ‘matter’ about which there was a disagreement or as to which any issue arose, was the degree of his permanent impairment as a result of the injury caused by the motor accident. Any disagreement or issue in respect of that matter was determined by the assessment of Dr Parmegiani, as certified in his Permanent Impairment Certificate.

14. The application is not, therefore, grounded by s 60(1) of the MAC Act 1999. It was submitted for Mr Ragen that the application might also be underpinned by s 132(2). I disagree, for the same reasons.

15. In my view, therefore, once a Permanent Impairment Certificate has issued, there is no longer a medical dispute, and s 60(1) does not apply. Thereafter, the only avenues open to a dissatisfied claimant lie in subsections 61(4) or 61(8). If a dissatisfied claimant can satisfy the court of a denial of procedural fairness, and that admission of the certificate would cause substantial injustice, the court may reject the certificate, either in whole or in part: s 61(4). In that event the court is to adjourn and refer the matter again for assessment by MAS: s 61(5). Alternatively, the court may substitute its own determination: s 61(6). In the absence of any procedural unfairness, the only other avenue available to a dissatisfied claimant is under s 62(1)(b), as foreshadowed under s 61(8).

16. In my view, there is a clear and unfettered power under s 62(1)(b), which gives the court a discretion to refer a matter for assessment again, at any time. The change of terminology in s 61(8) and s 62(1)(b), from a ‘medical dispute’ to a ‘matter’, is significant. Further, it is clearly contemplated by s 61(2)(b) that a fresh certificate will issue.

17. The difference in wording between s 62(1)(a) and s 62(1)(b) is significant. A party may only refer a matter back for assessment where there is a deterioration or additional relevant information. There are no such restrictions on the court under s 62(1)(b) of the MAC Act 1999.

18. I am not precluded, as a matter of law, from now referring the question of the degree of Mr Ragen’s permanent psychiatric impairment to MAS again, for assessment.

Should the application succeed?

19. The Nominal Defendant submits that the application should not be granted in any event, on a number of bases:

(a) First, it says that there was no evidence from a doctor that places the psychiatric assessment of Mr Ragen in excess of 10%. No attempt was made at the trial to elicit any evidence in this regard from Dr Robertson as to the incorrectness of his own assessment of 5% permanent impairment, set out in his report of 15 August 2006.

(b) Secondly, Mr Ragen is estopped by representation, he having represented to the court that the trial would proceed without the matter of the degree of permanent impairment going back to MAS for assessment.

(c) Thirdly, the lateness of the application requires that the application be rejected, particularly having regard to the abandonment of the attack on Dr Parmegiani’s certificate before Judge Sorby in 2005.

(d) Fourthly, there would be significant prejudice to the Nominal Defendant arising from the case having been run on the understanding that no damages might be awarded for non-economic loss.

(e) Fifthly, there was no evidence that emerged at the trial that was either not before Dr Parmegiani in any event, or not previously available and appropriately discovered or elicited from witnesses and relied upon by Mr Ragen.

20. Submissions were also made in respect of some passages in Muljeskovic v Zrieka (Unreported, NSWDC 15.12.06, Judicial Registrar McDonald in 1799/05), Towell v Schuetrumpe [2006] NSWDC 159, Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355 at [134] and Schenck Australia Pty Ltd v Australian Coal Technology Pty Ltd [2006] NSWCA 211.

21. I deal first with the question of the lateness of the application. Parliament has imposed a statutory threshold for the recovery of damages for non-economic loss in motor accident cases. It has put in place an administrative process for the determination of that threshold which is external to and independent of the court. Where the court is of the view that a plaintiff should not be shut out from the recovery of damages because circumstances have emerged which render it appropriate that the assessment of the medical adjudicator be revisited, it is inevitable that the opportunity to do so will be at the conclusion of the trial. The lateness is a necessary concomitant of the scheme.

22. As was pointed out by the Judicial Registrar in Muljeskovic v Zrieka, this is undesirable and results in a challenge to case management, inhibiting the court from fulfilling the overriding purpose set out in s 56 of the Civil Procedure Act 2005. But as I pointed out in Mafra v Egan (No 1) [2006] NSWDC 22 at [23], anomalies will occur when parliament seeks to superimpose legislative limitations over pre-existing rights: at [32]. As the Court of Appeal said in Schenck Australia Pty Ltd v Australian Coal Technology Pty Ltd, nothing justifies placing considerations of case management or court efficiency, important as they are, above the need for justice to the parties: [2006] NSWCA 211 at [43].

23. It follows that any procedural prejudice to the Nominal Defendant that the application might be thought to occasion has to be weighed against the substantive injustice to the plaintiff of losing any entitlement he might otherwise have to damages for non-economic loss. In any event, I am not satisfied that there is any procedural prejudice which is incapable of being overcome.

24. Similarly, the submission that there is as an estoppel by representation cannot be sustained in that it was not until the conclusion of the evidence that the plaintiff knew that there might be a basis for the application, and any representation would in any event be limited to the orthopaedic impairment.

25. So far as the abandonment of the attack on Dr Parmegiani’s certificate before Judge Sorby in 2005 is concerned, that attack went to an allegation of procedural unfairness under s 61(4). This application proceeds on a different basis.

26. The discretion to refer a matter under s 62(1)(b) of the MAC Act 1999 for assessment again, like any power conferred on a court, must be exercised judicially: Oshlack v Richmond River Council (1998) 193 CLR 72 at [22]. There must be an appropriate basis for its exercise.

27. It was submitted on behalf of Mr Ragen that psychiatric evidence emerged that was simply unknown before trial, such as multiple suicide attempts, night panic attacks, night sweats, accelerated breathing, pacing around at night, barricading himself in his room, and lying in the foetal position on his bed. Thus, Dr Parmegiani did not have the full facts before him when he made his assessment.

28. It is not clear what was before Dr Parmegiani, and no evidence has been led about that. In his reasons accompanying his certificate he simply states he saw and reviewed various documents and ‘supporting material’.

29. Dr Parmegiani did, however, obtain a history from Mr Ragen, which included panic attacks in bed, episodes of drug overdose, drug taking and drug dependence, and mood swings. He also saw reports from Dr A Robertson (5.8.03), Dr Snowdon (2.8.00) and Dr Maguire (14.9.04). These reports document episodes of suicidal ideation, crying, panic attacks, nightmares, episodes of tremulousness, reclusive behaviour, night sweats, and the like.

30. It was submitted that Mr Ragen was an under-stater of his problems, and an imperfect historian. He was certainly an imperfect historian. Rather than an under-stater, I found him to be an exaggerator of his problems. I enlarge on some of these matters in my judgment in the substantive proceedings. He told Dr Snowdon, for example, that he had had no psychological issues before his accident on 2 March 2000. This was simply untrue.

31. Most of the matters it was submitted were unknown before trial, were in fact before Dr Parmegiani. I am not satisfied that any genuine ‘new’ matters emerged at the trial, and to the extent that the gravity or ambit of previously known matters may have emerged with greater clarity or particularity, this is not to the point. Such matters largely arose from the evidence of Mr Ragen’s two sons. Leaving aside for present purposes any questions relating to their credit, there was an abundance of material available to the legal advisers to put them on notice of the problems Mr Ragen was experiencing. It is irrelevant that some of the matters that emerged at trial did not emerge in conference. There was no evidence, for example, that the sons were interviewed and proofs of evidence taken that were silent on these matters. Similarly, no evidence was proffered as to whether Dr Jackson’s notes were inspected before Dr Parmegiani’s examination.

32. I am not satisfied, therefore that any material emerged at trial that was unknown, or not readily obtainable, relating to Mr Ragen’s psychiatric condition.

33. For all these reasons, I am not satisfied that an appropriate basis has been made out for the exercise of my discretion in favour of Mr Ragen to now refer the question of the degree of his permanent psychiatric impairment to MAS again. The application to do so should be refused.

Summary

34. I am not precluded, as a matter of law, from now referring the question of the degree of Mr Ragen’s permanent psychiatric impairment to MAS again, for assessment.

35. However, I am not satisfied that an appropriate basis for the exercise of my discretion to do so has been established.

36. Costs should follow the event.

37. For these reasons I dismiss the application.

38. The plaintiff is to pay the defendant’s costs of the application, as agreed or assessed on the ordinary basis.

14/11/2007 - Correction of typographical error in catchwords and a section number. - Paragraph(s) 26