Ragen v The Nominal Defendant (No 3) [2007] NSWDC 86

New South Wales District Court

CITATION: Ragen v The Nominal Defendant (No 3) [2007] NSWDC 86

HEARING DATE(S): 27-28 February and 1-2 March 2007

JUDGMENT DATE: 21 March 2007

JURISDICTION: Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ at 1

DECISION: Judgment for the plaintiff

CATCHWORDS: TORT (MOTOR ACCIDENT) - Due enquiry and search - Negligence of unidentified driver - No contributory negligence - Case turns on facts, with no matters of principle decided - DAMAGES - Psychiatric condition overlaying physical disabilities - Causation in respect of psychiatric condition - Additional discount for vicissitudes over normal 15%

LEGISLATION CITED: Motor Accidents Compensation Act 1999: s 34(1), s 124, s 126(2), s 128(3), s 131,

CASES CITED: Nominal Defendant v Lane [2004] NSWCA 405

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 at about 6.10am 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. 2. Mr Ragen alleged that the accident occurred when the unidentified vehicle struck the rear of the car he was driving in lane 3, pushing his car partially into the adjacent lane 2, where he was struck again by a third car travelling in that lane, which in turn forced his car into a fourth car, travelling in front of him in lane 3. 3. The Nominal Defendant denies liability. It says that Mr Ragen's version of the accident cannot be accepted and he did not prove the accident happened in the way he alleged. Alternatively, it says that the accident arose solely out of Mr Ragen's negligence and no cause of action arises. Or, it alleges, Mr Ragen was guilty of contributory negligence. 4. The Nominal Defendant also denied that Mr Ragen carried out due enquiry and search to establish the identity of the owner of the unidentified vehicle. 5. The issues for determination as to liability are: · Did Mr Ragen carry out due enquiry and search? · Was Mr Ragen injured as a result of negligence on the part of the driver of the unidentified motor vehicle? · Was Mr Ragen guilty of any negligence causing or contributing to the accident? 6. Mr Ragen says that as a result of the accident he sustained significant physical injuries and a severe secondary psychological condition. As a result he incurred medical, hospital and other out-of-pocket expenses and will require considerable future medical treatment and medication. He is and has been significantly incapacitated for any form of gainful employment and has lost wages and superannuation he would otherwise have earned; and will lose earnings and superannuation in the future until he turns 65. Finally, he alleges that he has required considerable domestic assistance in the past and will require such assistance for the balance of his life. 7. It was the Nominal Defendant's case that any injuries received by Mr Ragen were minor and temporary, and that in effect he has a 'closed-period' entitlement to damages, ending in about January 2001. His physical injuries had by then resolved and that any psychiatric problems occasioned by the accident had by then abated. Any ongoing psychiatric problems are not causally related to the motor accident on 2 March 2000. Any past care required does not satisfy the requisite threshold: s 128(3) of the Motor Accidents Compensation Act 1999. No future domestic care required is attributable to the accident on 2 March 2000, but even if it were, the need does not does not satisfy the requisite threshold: s 128(3). Recoverable past out-of-pocket expenses are, therefore, limited and no future need has been established. Mr Ragen's past wage loss should be confined to the 'closed-period' and he has not established that he has, by reason of his injuries, sustained any loss of future earning capacity. 8. Mr Ragen is not entitled to recover damages for non-economic loss because he did not establish 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 Motor Accidents Compensation Act 1999. 9. The issues for determination as to damages are: · The extent of the past out-of-pocket-expenses incurred. · The extent of any need for future out-of-pocket-expenses. · The extent of the net earnings lost in the past. · The extent of any loss of future earning capacity. · The extent of any future loss of occupational superannuation. · The amount of the Fox v Wood component. · The extent of any need for domestic assistance in the past, and · The extent of any need for domestic assistance in the future.