Seary v White (No 3) - [2008] NSWDC 19

Reported Decision:
6 DCLR (NSW) 324

District Court

CITATION: Seary v White (No 3) [2008] NSWDC 19
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24 August 2007

JUDGMENT DATE:
8 February 2008

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: 1. Defendant's application dismissed
2. Defendant to pay plaintif's costs of the application

CATCHWORDS: MOTOR ACCIDENTS - application by defendant in the course of the trial for the plaintiff be re-referred to MAS for re-assessment as to the degree of permanent impairment - s 131 of the Motor Accidents Compensation Act 1999 is a gatekeeper provision and the power under s 62(1)(b) to re-refer a plaintiff to MAS is not available at the instigation of a defendant once the threshold for damages for non-economic loss has been satisfied - a plaintiff who has not yet satisfied the threshold is never precluded from crossing that threshold and may be re-referred at any time

LEGISLATION CITED: Civil Procedure Act 2005: s 56, s 58(2)(b)(iv) and (v)
Motor Accidents Compensation Act 1999; s 62(1), s 131, s 132(2)

CASES CITED: Mafra v Egan (No 1) [2006] NSWDC 22 at [29]
Murdoch v Davis [2005] NSWCA 466
Oshlack v Richmond River Council (1998) 193 CLR 72 at [22]
Ragen v Nominal Defendant (No 2) 4 DCLR (NSW) 227, [2007] NSWDC 85.

PARTIES: Elizabeth Anne Seary (Plaintiff)
Glen White (Defendant)

FILE NUMBER(S): 4757 of 2006

COUNSEL: Mr P Webb SC and Mr Sewell (Plaintiff)
Mr K Rewell SC (Defendant:)

SOLICITORS: Wyatt Attorneys (Plaintiff)
TL Lawyers (Defendant:)

JUDGMENT

Introduction
1. Mrs Seary was injured in a motor accident on 13 November 2002, and commenced proceedings against the defendant alleging negligence. Breach of duty was admitted and the dispute before me is limited to the assessment of damages. Mrs Seary alleged that as a result of the accident she sustained permanent injury to the brain, orthopaedic injuries to her neck and back, and a secondary psychological condition. The defendant disputes the extent and effect of her injuries, and in particular denies that she suffered a brain injury of any consequence.

2. The proceedings came on for hearing on 18 June 2007 and proceeded on the basis that Mrs Seary had been assessed as having suffered a degree of permanent impairment, as a result of the injuries caused by the motor accident, greater than 10% (see Exhibit A), such that she is entitled to recover damages for non-economic loss: s 131 of the Motor Accidents Compensation Act 1999.

3. The hearing proceeded on 18, 19, 20, 21 and 22 June 2007, when it was adjourned part heard. There were another two days of hearing on 23 and 24 August 2007, and the proceedings were again adjourned part heard, to enable the cross examination of some expert medical witnesses. On 24 August 2007, the 7th day of the hearing, the defendant made an application that Mrs Seary be referred for re-assessment…

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.

Continue reading Seary v White (No 3)

Details

AGLC: Seary v White (No 3) [2008] NSWDC 19
Case: [2008] NSWDC 19
Decision Date: 8 February 2008

CaseChat Overview and Summary

The case of Seary v White (No 3) involved the plaintiff, Seary, seeking damages for injuries sustained in a motor accident against the defendant, White. The dispute centred around the defendant's application during the trial to have the plaintiff re-referred to the Motor Accident Assessment Service (MAS) for reassessment of the degree of permanent impairment. The application was heard in the Supreme Court of Queensland. The plaintiff had already been assessed as having satisfied the threshold for damages for non-economic loss, while the defendant sought to challenge the initial assessment of permanent impairment.

The primary legal issue before the court was whether the defendant, having instigated the application, could compel the plaintiff to be re-referred to MAS for reassessment under section 62(1)(b) of the Motor Accidents Compensation Act 1999, given that the plaintiff had already met the threshold for non-economic loss damages. The court also needed to determine the effect of section 131 of the Act, which acts as a gatekeeper provision, and whether it precluded the defendant from initiating such a re-referral. Additionally, the court had to consider whether a plaintiff who had not yet met the threshold for damages could still be referred at any time.

The court held that section 131 of the Act serves as a gatekeeper, preventing the defendant from initiating a re-referral once the plaintiff has met the threshold for damages for non-economic loss. The court emphasised that section 62(1)(b) provides the power to re-refer a plaintiff to MAS, but only under specific conditions, and this power does not extend to the defendant once the threshold for damages has been satisfied. However, the court clarified that a plaintiff who has not yet met the threshold is not precluded from crossing that threshold and may be re-referred at any time. Consequently, the defendant's application was dismissed, and the defendant was ordered to pay the plaintiff's costs of the application.

Orders

Orders of the court

1. Defendant's application dismissed 2. Defendant to pay plaintif's costs of the application

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Seary v White (No 3) [2008] NSWDC 19 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	24 August 2007
JUDGMENT DATE:	8 February 2008
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	1. Defendant's application dismissed 2. Defendant to pay plaintif's costs of the application
CATCHWORDS:	MOTOR ACCIDENTS - application by defendant in the course of the trial for the plaintiff be re-referred to MAS for re-assessment as to the degree of permanent impairment - s 131 of the Motor Accidents Compensation Act 1999 is a gatekeeper provision and the power under s 62(1)(b) to re-refer a plaintiff to MAS is not available at the instigation of a defendant once the threshold for damages for non-economic loss has been satisfied - a plaintiff who has not yet satisfied the threshold is never precluded from crossing that threshold and may be re-referred at any time
LEGISLATION CITED:	Civil Procedure Act 2005: s 56, s 58(2)(b)(iv) and (v) Motor Accidents Compensation Act 1999; s 62(1), s 131, s 132(2)
CASES CITED:	Mafra v Egan (No 1) [2006] NSWDC 22 at [29] Murdoch v Davis [2005] NSWCA 466 Oshlack v Richmond River Council (1998) 193 CLR 72 at [22] Ragen v Nominal Defendant (No 2) 4 DCLR (NSW) 227, [2007] NSWDC 85.
PARTIES:	Elizabeth Anne Seary (Plaintiff) Glen White (Defendant)
FILE NUMBER(S):	4757 of 2006
COUNSEL:	Mr P Webb SC and Mr Sewell (Plaintiff) Mr K Rewell SC (Defendant:)
SOLICITORS:	Wyatt Attorneys (Plaintiff) TL Lawyers (Defendant:)