Reported Decision : 6 DCLR (NSW) 324 New South Wales 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) Mafra v Egan (No 1) [2006] NSWDC 22 at [29] CASES CITED: 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 as to the degree of permanent impairment suffered by her. Can the application succeed as a matter of law? 4. I have already had occasion to consider the question of the court's power to refer a plaintiff again for assessment of the degree of permanent impairment in the context of the threshold provision in s 131 of the Motor Accidents Compensation Act 1999: see Ragen v Nominal Defendant (No 2) 4 DCLR (NSW) 227, [2007] NSWDC 85. In that decision I concluded that the court has a clear and unfettered discretionary power, under s 62(1)(b) of the Motor Accidents Compensation Act 1999, to refer a matter for assessment, again, at any time. 5. That matter involved an application by a plaintiff. In this application, however, I am required to consider the power in the context of an application by a defendant. In my view, the power is limited to a plaintiff who has not yet satisfied the threshold, and is not available at the instigation of a defendant. In that regard, s 131 of the Motor Accidents Compensation Act 1999 is a gatekeeper provision, and once a plaintiff has satisfied the threshold that plaintiff has an entitlement, except perhaps in exceptional circumstances such as fraud, to an award for non-economic loss, whatever occurs at trial. In other words, the threshold, once crossed, remains crossed. A plaintiff, however, is never precluded from crossing that threshold, and for the reasons I gave in Mafra v Egan (No 1) [2006] NSWDC 22 at [29], may do so at any time, even at the end of a trial, before the verdict is entered. 6. However, against the possibility that others might disagree with that view, I would in any event dismiss the defendant's application on discretionary grounds, to which I shall come. 7. The only further comment I need to make relates to the defendant's submission that, in addition to s 62(1)(b), the power of referral is also derived under s 132(2) of the Motor Accidents Compensation Act 1999. Reference was made to a statement made by the Court of Appeal in Murdoch v Davis [2005] NSWCA 466. That decision was not brought to my attention when I was deciding Ragen (No 2). As counsel for Mrs Seary points out, the reference to s 132(2) by Acting Justice Brownie at [20] is obiter dicta. For the reasons I stated in Ragen (No 2), I consider the power under s 132(2) is not available once a Permanent Impairment Certificate has issued. In my view, therefore, the present application could only be made under s 62(b). Is the defendant estopped from making the application? 8. It was submitted on behalf of Mrs Seary that the defendant is estopped from now raising the issue. It is contended that the estoppel arises by reason of concessions and statements made during the trial (see paragraphs 6 and 22 of the written submissions) and that what occurred and was said amounted to the making of a formal admission (see paragraph 7 of the written submissions). 9. I am not persuaded that anything said, or done, by the defendant amounted to an admission, nor that it gives rise to any estoppel. In my view, the fate of the application falls to be determined on discretionary grounds only. Should the defendant's application succeed? 10. The defendant submitted that the interests of justice require that Mrs Seary be referred for re-assessment under the MAS system. In the summary of his written submissions, counsel put his argument in this nutshell: "Having regard to the surveillance film, which came into existence well after the medical assessment, the Court could only be confident that the Plaintiff is, in truth, entitled to damages for non-economic loss, if the Plaintiff obtains a fresh certificate from a medical assessor who has had the opportunity to view the surveillance film, and to (re)examine the Plaintiff in the light of the surveillance film, and who, notwithstanding the surveillance film, assess the Plaintiff as having greater than 10% whole person impairment" (paragraph 68). 11. The defendant's application rests on the argument that the MAS assessor who made the original assessment of permanent impairment, did not have available to her the full facts relevant to the assessment, and the surveillance film tendered at the trial (Exhibit 1) is "new" evidence, the significance of which only became apparent in the light of the expert medical given at the trial. 12. In my view, the defendant's argument is flawed. The surveillance film may not have been in existence at the time of the MAS assessment, but it was certainly in existence long before the trial. It was open to the defendant at any time before the trial to refer the matter for assessment again, under s 62(1)(a), or to apply to the court for an order for referral for assessment again, under s 62(1)(b). He did neither, but opted to go to trial, keeping the existence of the surveillance film secret. 13. In my view, that the defendant made that decision, presumably for reasons of tactical forensic advantage, would be sufficient reason of itself for me to decline to exercise my discretion in its favour: Oshlack v Richmond River Council (1998) 193 CLR 72 at [22]. In this regard I agree with the submissions of counsel for Mrs Seary as to the delay in making the application (paragraph 8), the costs that would be wasted (paragraph 9), and the forensic disadvantage wreaked on the plaintiff (paragraph 12), which cannot be cured by a costs order (paragraph 14). 14. There are, however, additional factors. 15. Firstly, I have regard to the purpose and objectives of the scheme brought into existence by the Motor Accidents Compensation Act 1999, in particular the object of encouraging early resolution of motor accident claims. A defendant who opts to introduce evidence at trial that has been available to it for some time before the trial should not be allowed to have its cake and eat it as well. If it opts, for tactical reasons, to introduce the evidence at trial, when other avenues were available to that defendant prior to trial, it should be bound by that election: see s 56(3) and s 58(2)(b)(iv) and (v) of the Civil Procedure Act 2005. 16. Second, to grant the application would lead to further, unacceptable cost and delay, contrary to the overriding purpose set out in s 56 of the Civil Procedure Act 2005. 17. I do not wish to make any observation about the surveillance film itself, as I have formed no final views about the issues to be determined in this case. What I will say is this: in my view an application such as that made by the defendant should only be made, if at all, at the conclusion of all the evidence. 18. It may be, for example, that I may ultimately make findings of fact that are relevant to the exercise of the discretion whether or not to refer the plaintiff for assessment again by MAS. It is inimical to expect a trial judge to do so before all the evidence has been presented. Disposition 19. For these reasons I dismiss the defendant's application 20. I order the defendant to pay the plaintiff's costs of the application. 07/03/2008 - Correction to catchwords - Paragraph(s) Catchwords DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.