Ragen v The Nominal Defendant (No 2) [2007] NSWDC 85

Reported Decision : 4 DCLR (NSW) 227

New South Wales 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

Humphreys v Mulco Tool & Engineering Pty Ltd [2006] NSWCA 355 at [134] Mafra v Egan (No 1) [2006] NSWDC 22 CASES CITED: 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.