Connors v Nominal Defendant (No 3) [2020] NSWDC 437

District Court New South Wales

Medium Neutral Citation: Connors v Nominal Defendant (No 3) [2020] NSWDC 437 Hearing dates: 4 June 2020, 9-12 June 2020, 15-16 June 2020. Date of orders: 12 June Decision date: 12 June 2020 Jurisdiction: Civil Before: Neilson DCJ Decision: Adjournment Application refused Legislation Cited: Motor Accidents Compensation Act 1999 Category: Procedural and other rulings Parties: Summer Rain Connors – Plaintiff Nominal Defendant - Defendant Representation: Counsel: J. Turnbull SC & J. de Greenlaw - Plaintiff M. Williams SC – Defendant Solicitors: S. Adams (Adams & Co Lawyers) – Plaintiff L. Patrick (Vardanega Roberts) – Defendant File Number(s): 2018/00159755 Publication restriction: Nil.

Judgment 1. HIS HONOUR: This is the third occasion on which the defendant moves the Court to return this matter to the Medical Assessment Service, under the Motor Accidents Compensation Act 1999 for a further determination of the plaintiff's whole person impairment. 2. An application for the determination of that impairment was made by the plaintiff on 3 July 2018. On 10 December 2018, Dr Mark Scurrah, an assessor appointed by the Medical Assessment Service, assessed that the plaintiff's whole person impairment was greater than 10% on account of four diagnoses: a chronic posttraumatic stress disorder, a chronic depressive disorder with anxiety symptoms, cannabis dependence and a panic disorder with agoraphobia. 3. On 24 January 2019, the defendant made an application for a review of the determination of Dr Scurrah on the grounds that the assessment was incorrect. That application was opposed by the plaintiff. That application was refused by the Proper Officer of the Medical Assessment Service. That decision was made on 2 April 2019. That decision is shown in exhibit 2 2, an exhibit that was before me when the first application by the defendant was refused. 4. On 15 May 2019, some six weeks later, the defendant made an arrangement for the plaintiff to be examined by Dr Graham Vickery, a psychiatrist, to test, if that be the correct word, the determination of Dr Scurrah. It was arranged that the plaintiff would be examined by Dr Vickery on 15 July 2019, at 2pm. The plaintiff did not attend that examination. I actually do not know why; however, it is to be noted that, at the time, the plaintiff would have been pregnant. 5. When the plaintiff failed to attend that examination, there was further delay on the part of the defendant. On 11 March 2020, the defendant wrote to Dr Chris Rikard-Bell, another psychiatrist, making arrangements for him to examine the plaintiff by Skype on 23 April 2020. By this time, the COVID 19 emergency was afoot. That examination took place, and on 21 May 2020, Dr Rikard-Bell generated a report. He disagreed with the assessment that had been made by Dr Scurrah. He thought that the whole person impairment of the plaintiff was 7% and that one of those 7% related to a pre-existing impairment, such that the impairment arising from the motor vehicle accident, now in question, was only 6%. 6. The defendant, armed with Dr Rikard-Bell's report, again delayed and did not make a further application to the Medical Assessment Service until the afternoon of 3 June 2020, when the adjournment application, which the defendant sought, was listed for hearing before me on Thursday 4 June 2020, because the matter was listed for hearing in the sittings of this Court, commencing here at Lismore on 9 June 2020. In other words, the defendant had time, immediately after 21 May 2020, to make the application to the MAS, but failed to do so until the very eve of the adjournment application that the defendant made to have the current hearing vacated. 7. The application to vacate the hearing date was refused by me on 4 June for reasons which I gave at that time. The same application was made yesterday afternoon, and I gave very short, in fact, curt reasons, why that was rejected yesterday afternoon. However, this morning, after the close of the evidence, the defendant, again, raises and makes the same application. 8. I should point out that, in addition to the assessments of Dr Scurrah and Dr Rikard-Bell, there was also an assessment made of the plaintiff by another psychiatrist, Dr Ben Teoh, a consultant psychiatrist and physician in addiction medicine. Dr Teoh examined the plaintiff via telehealth on 7 April 2020. His assessment was that the plaintiff had a 24% whole person impairment, but there was a pre-existing impairment of 2%, such that the final assessment, the whole person impairment, resulting from the motor vehicle accident now in question, was 22%. I should point out that the certificate issued by Dr Scurrah merely requires me to find that the plaintiff has crossed the threshold, such that she is entitled to claim damages for non-economic loss. I am not required to accept the assessment of Dr Scurrah, as to the extent of that impairment 9. That there are at competing medical opinions is hardly surprising in litigation involving personal injury, whether it be under the Motor Accidents Compensation Act 1999 or the like legislation, whether it be a work injury damages claim or whether it be a claim for personal injury arising out of what used to be called occupiers' liability. The mere fact that there are competing assessments is a reason why, no doubt, Parliament has prescribed that an assessment made by an independent assessor, appointed by the Medical Assessment Service, should be required before the plaintiff is entitled to damages for noneconomic loss. That was obtained, but subsequent opinions are different; but that does not change the ultimate reality that the plaintiff has an assessment which entitles her to claim damages for noneconomic loss; and although minds may differ about the propriety of that assessment, the mere fact that the defendant is unhappy with it is not adequate grounds for sending this matter back to the MAS, especially when the result might only be a further adjournment for no practical reason other than the delaying the determination of these proceedings. 10. The further application to have the matter referred back to the Medical Assessment Service is refused.