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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2007] NSWDC 85
Decision Date: 21 March 2007

CaseChat Overview and Summary

The applicant, Ragen, sought an order for referral back to the Motor Accident Scheme (MAS) for reassessment of the degree of permanent impairment and associated damages for non-economic loss following a motor accident. The respondent, The Nominal Defendant, opposed the application. The dispute was heard in the District Court of New South Wales. The central issue before the court was whether the applicant was entitled to a referral to the MAS for reassessment of the degree of permanent impairment and, consequently, the damages for non-economic loss.

The court was tasked with interpreting the Motor Accidents Compensation Act 1999 to determine if the applicant's application for reassessment was valid. The applicant argued that there had been a material change in the circumstances since the original assessment, warranting a referral back to the MAS. The respondent contended that there had been no such change and that the applicant's application was an attempt to circumvent the statutory framework. The court needed to balance the statutory provisions against the applicant's circumstances to decide if a referral was warranted.

In delivering its judgment, the court considered the statutory provisions and the circumstances of the case. It concluded that there had not been a material change in the circumstances since the original assessment, and therefore, the applicant was not entitled to a referral back to the MAS for reassessment of the degree of permanent impairment. The court found that the applicant's application was an attempt to circumvent the statutory framework and was not in line with the intent of the legislation. Consequently, the application for referral was refused.

Orders

Orders of the court

Application refused

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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)