Local Court of New South Wales CITATION: NSW (Dept. of Education & Training) v Nominal Defendant [2006] NSWLC 20 JURISDICTION: Civil PARTIES: State of New South Wales (Department of Education and Training) The Nominal Defendant FILE NUMBER: 6554/04 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 06/09/2006 MAGISTRATE: Magsitrate B A Lulham CATCHWORDS: Worker's Compensation - Recovery Action - Worker injured by unidentified tortfeasor - Whether plaintiff required to prove due injury and search for unidentified vehicle when bringing recovery action against Nominal Defendant - Whether due search and inquiry satisfied if inquiry likely to be fruitless - Whether unidentified vehicle liable - Whether contributory negligence on part of injured worker - Quantum of damages - Treatment of payments statute barred LEGISLATION CITED: Workers Compensation Act 1987 Ss.151S(1)(d), 151Z (1)(d) Motor Accidents Act 1988 S. 79 Grant v Royal Rehabilitation Centre (1999) 47 NSWLR 263 Dennis Crowther t/as Top Gun Cycles v Nominal Defendant (Local Court 9 December 2005 (matter No. 111621 of 2005) Penrith Rugby League Club Ltd v Nominal Defendant (8 November 2005 (matter No. 10966 of 2003) CASES CITED: Harrison v Nominal Defendant ((1975) 50 ALJR 680 Malcolm v Urban Transport Authority of NSW (1994) 20 MVR 87 Steel v Nominal Defendant (1963) 80 Weekly Notes NSW 1301 Lawrence v The Nominal Defendant (1984) 7 MVR 388 Turks Legal - Solicitor REPRESENTATION: M J Walsh - Counsel T L Lawyers - Solicitor Mr A Capelin - Counsel ORDERS: I would propose to make the following orders:; There will be a judgment for the plaintiff in the sum of $20,913.00.; The amount of the indemnity pursuant to s151Z(1)(d) of the Workers Compensation Act will be $20,042.16.; The defendant is to pay interest on the judgment in accordance with the Rules. The amount of the interest is to be calculated by the parties and advised to the Registry within seven days.; The defendant is to pay the plaintiff's costs and disbursments as agreed. In default of the agreemment within 28 days the costs are to be assessed under the Legal Profession Act. Reasons for Decision 1 The plaintiff's action in this matter was brought pursuant to s151Z(1)(d) of the Workers Compensation Act 1987. It sought to recover a sum paid in workers compensation to an employee of the plaintiff Bruce Anthony Robinson, who was injured in an accident which occurred on 24 July 1995. The accident occurred whilst Mr Robinson was on a journey between his place of employment and his home, so as to entitle him to payments under the Workers Compensation Act. 2 The plaintiff's case was that Mr Robinson was injured as a result of the negligent driving of a motor vehicle which the plaintiff alleged cut in in front of Mr Robinson's car on the freeway near Wyong in the State of New South Wales, causing Mr Robinson's vehicle to swerve off the road onto a median strip. It was alleged that whilst on the median strip the vehicle bounced around causing Mr Robinson to injure his head and neck. In consequence of the injuries he received Mr Robinson was paid workers compensation totalling $46,071.74. 3 S151Z(1)(d) provides for statutory indemnification of employers liable to pay workers compensation in respect of injuries received by their employees as a result of the negligence or some other tortious misconduct of a third party to the extent that damages would be payable to the injured worker, if that injured worker chose to sue the tort feasor. The four elements of the action under s151S(1)(d) are; (i) That the plaintiff must establish that the worker suffered a work related injury for which workers compensation was paid. (ii) The plaintiff must prove the amount of compensation paid to the worker. (iii) The plaintiff must prove the liability of a third party to pay damages to the worker in respect of the injury. (iv) The plaintiff must prove the quantum of damages. 4 In this matter it was not in dispute that (1) Mr Robinson was employed by the plaintiff and (2) he received a compensable injury and (3) the plaintiff had paid either to or on behalf of Mr Robinson under the Workers Compensation Act payments totalling $46,071.74. It was also not disputed that due to the operation of the Limitation Act, the sum of $25,158.74 was statute barred. The plaintiff's Statement of Claim was filed on 23 June 2004. The plaintiff's claim was therefore for the sum of $20,913.00. THE ISSUES FOR DETERMINATION 5 The plaintiff's claim raised a number of contentious issues. They were as follows; i. Were the damages payable for the injury to Mr Robinson caused by the fault of the owner or driver of an unidentified vehicle? ii. Has the plaintiff proved that the identity of the vehicle said to have caused the accident ' cannot after due search and inquiry be established '? iii. The calculation of the plaintiff's entitlement under s151Z of the Act adopting the approach as explained in Grant v Royal Rehabilitation Centre [1999] 47 NSWLR 263 at 8 involving the court being required to assess the quantum of the common law damages calculated pursuant to the Motor Accidents Act 1988, which Mr Robinson would have recovered had he sued the driver of the unidentified vehicle for negligence. THE LIABILITY QUESTION 6 The plaintiff alleged that the accident was caused by the negligent driving of the driver of the unidentified vehicle. The defendant denied the driver of the unidentified vehicle was guilty of negligence and further alleged that Mr Robinson was guilty of contributory negligence because (1) he failed to keep a proper lookout and (2) failed to steer and control his motor vehicle so as to avoid the accident and (3) failed to keep as near as practicable to the left hand side of the road whilst driving on a freeway. MR ROBINSON'S EVIDENCE 7 In his statement dated 12 May and tendered as Exh 1 Mr Robinson described the accident in the following manner; '7. On 24 July 1995 I was driving from work at school to my home in the afternoon, along the F3 freeway near Wyong in my motor vehicle a Toyota Camry sedan registration number RAI-528. 8. I was travelling at the same speed as other traffic on the road at approximately 110 km per hour. 9. I was travelling in the right hand lane heading north. 10. As I was driving in the right hand lane, a white Holden Commodore pulled in front of my car from the left land adjacent to my lane in the following circumstances. The driver overtook my car on the inside, at a much greater speed than my vehicle, and then suddenly pulled across in front of me. That car appeared to be a standard sedan and I did not notice the number plate. 11. I was alarmed and I thought our cars were going to collide at high speed. 12. I took evasive action to avoid my car colliding with the white Commodore by steering my car to the right and onto the unsealed area which formed a broad median strip. The surface of the median strip and some grass cover but also some fill, leaves, rocks and corrugations. My car bounced furiously as I tried to bring it under control. 13. In the course of my car pumping around on the rough surface the right side of my head hit against the upper part of the door or the door pillar or roof of my car more than once. 14. I managed to stop my car safely. I was feeling very shaken up. My head hurt and to a lesser extent my neck. 15. I saw no other cars passing by, and I could not see the white Commodore. 16. Shortly afterwards traffic passed me by but no one stopped to assist me. 8 In cross examination Mr Robinson said he was travelling in the right hand lane of the freeway the speed limit of about 110 km. He said he was not aware of other traffic around him but there may have been other cars before and after him. He said he first saw the other car, a white Commodore, when it was overtaking him and coming from his left. He said that car was going faster than the speed limit and "a lot faster than me". The vehicle was going "fast enough to pass me quite rapidly". The vehicle cut in "on my front fender" and "I swerved instantly in response otherwise it would have struck me". He said as it cut in he was looking at the driver's door. He said he swerved to the right onto the grassy median strip which consisted of small bushes. He was bounced around inside the car and struck his head. He agreed that he had swerved and driven off the sealed road. Asked why he had taken that action, he said "I don't know, it was a panic reaction. I wanted to get off the road to avoid the collision.". He said there was about two metres of bitumen to the right of the lane in which he was travelling. 9 That was the total of the evidence in relation to the liability for the accident. THE DEFENDANT'S SUBMISSIONS 10 Mr Capelin for the Nominal Defendant submitted that a reasonable driver in the position in which Mr Robinson found himself, would have applied his brakes and sounded his horn. He said there was no evidence that Mr Robinson had done either, and he submitted that the accident was caused by the negligence of Mr Robinson in swerving his vehicle suddenly to the right and causing the vehicle to drive off the road. Mr Capelin submitted that if I did not find Mr Robinson to be the cause of the accident, then I would find him guilty of contributory negligence. THE PLAINTIFF'S SUBMISSIONS 11 Mr Walsh submitted that I would accept the evidence of Mr Robinson and that I would be satisfied that the accident was caused by the driver of the unidentified vehicle. He submitted that I would find that Mr Robinson did not lose control of his vehicle but by a proper and correct decision, decided to drive off the road to avoid any collision. FINDING RE NEGLIGENCE 12 I was impressed with Mr Robinson's evidence. I found him a truthful, honest witness. I am satisfied that the accident occurred as he alleged, and I am satisfied that the accident was caused by the negligence of the driver of the unidentified vehicle. I am satisfied that such driver was driving at an excessive speed well in excess of the speed limit. I am satisfied that such driver failed to keep a proper lookout and cut into Mr Robinson's lane when clearly it was unsafe to do so. I am satisfied that Mr Robinson did not have time to brake or to sound his horn, and I am satisfied that his action in deciding to swerve his car to the right onto the median strip was an appropriate reaction in the circumstances. Nothing adverse to him flowed from his statement that it was a "panic reaction". I am not satisfied that Mr Robinson at that stage lost control of his vehicle. Indeed he was able to bring it to a stop notwithstanding that he was tossed around inside the vehicle. 13 I am satisfied that the accident was caused by the negligence of the driver of the unidentified vehicle. I am not satisfied that Mr Robinson was guilty of any contributory negligence. It was not negligent for Mr Robinson to be driving at the speed he indicated in the right hand lane. DUE SEARCH AND INQUIRY 14 The plaintiff brought his case relying on s34 of the Motor Accidents Compensation Act 1999 which provides as follows; 34. Claim against Nominal Defendant where vehicle not identified 1. An action for the recovery of damages in respect of the death or of injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle on a road in New South Wales may, if the identity of the vehicle cannot after due inquiry and search be established, be brought against the Nominal Defendant. 2. The inquiry or search may be proved orally or by affidavit of the person who made the inquiry or search. 3. In respect of any such action, the Nominal Defendant is liable as if it were the owner or driver of the motor vehicle. 15 It was not argued before me that the requirement to prove due inquiry and search did not apply to a plaintiff in a recovery action under s151Z of the Workers Compensation Act 1987. Magistrate H.C.B. Dillon found that the plaintiff in such cases was required to prove due inquiry and search in two matters Dennis Crowther t/as Top Gun Cycles v Nominal Defendant Local Court 9th December 2005 (Matter No. 111621 of 2005), and Penrith Rugby League Club Ltd v Nominal Defendant 8th November 2005 (Matter No. 10966 of 2003). I agree with the decision of Magistrate Dillon and I am satisfied that the plaintiff in this case was required to satisfy the obligation of due inquiry and search. THE EVIDENCE IN RELATION TO DUE INQUIRY AND SEARCH 16 In his statement Mr Robinson stated he brought his vehicle to a stop and that after a while he got out and inspected his vehicle and could not see any damage. He therefore decided not to report the matter to the police but drove to Morisset to see his general practitioner Dr Evans. He told Dr Evans that his car had been forced off the road by an unidentified vehicle. He said he was very unwell immediately after the accident, experiencing headaches, giddiness and nausea. He said he saw Dr Evans again two days after the accident. He returned to his school duties on a part time basis in October. In the Employee Compensation Claim Form which he completed on 14 August, he described the incident as follows; 'He received blow to head when forced off the road by a car' and indicated that 'no witnesses have come forward". In the additional claim form required for injuries suffered on a journey, Mr Robinson provided the same information but indicated that the other driver was at fault as it failed to give way when overtaking. He stated that the matter had not been reported to the police as he did not notice any car damage at the time. 17 The Affidavit of Stephen Rogic, Solicitor, dated 12 May 2006 was tendered. Attached to his Affidavit was a request to the New South Wales Police for a copy of the Police Report in relation to Mr Robinson's accident. The application form set out the time and details of the accident. The New South Wales Police replied on 10 February 2006 indicating there was no police report corresponding to the information provided. 18 In cross examination Mr Robinson admitted that his allegation as to how the accident happened amounted to a claim that the other driver had committed a serious breach of the traffic laws in that such driver whilst driving at a high speed, had forced him off the road. When asked why he did not report it to the police he said that he went straight to the doctor, he was not feeling well and he did not think to report it to the police. When asked why he didn't report it within the next couple of days, he said he was feeling very unwell and was off work. He said he was not advised by anyone to report the incident to the police and that it just didn't occur to him. He said he was not exactly aware of other cars around him at the time of the incident and said "there may have been other cars before or after me". He said when he served onto the grassy median strip there were small bushes and loose soil. DEFENDANT'S SUBMISSION 19 Mr Capelin for the defendant conceded that the decision of the High Court in Harrison v The Nominal Defendant [1975] 50 ALJR 680 and the Court of Appeal's decision in Malcolm v Urban Transit Authority of NSW [1994] 20 MVR87 are authority for the proposition that the plaintiff was not required to carry out searches and inquiries when in reality such searches and inquiries would be futile. He submitted however that this was not one of such cases. In this case Mr Robinson did not even report the incident to the police. Mr Capelin submitted that the accident occurred on perhaps the busiest freeway in New South Wales. There was other traffic on the road. This incident would have been of some note. When Mr Robinson's car left the road and entered the median strip, it was a reasonable inference that dust, stones and debris would have been created and clearly other drivers would have noticed it. Mr Capelin submitted that a prompt advertisement in a paper circulating in the Gosford or Newcastle area may well have prompted a driver who saw Mr Robinson's vehicle leave the road to come forward. He said it was possible that another driver may have reported the incident to police. Proper inquiries made at the time may have revealed such action by such drivers. Mr Capelin submitted that ignorance on Mr Robinson's part was not a reasonable excuse. Mr Capelin referred me to the decisions of Steel v Nominal Defendant [1963] 80 Weekly Notes NSW 1301 referred to in the judgment of Magistrate Dillon in Penrith Rugby League Club Ltd v Nominal Defendant at para 67, and Lawrence v The Nominal Defendant [1984] 7 MVR 388 referred to by Magistrate Dillon at para 68 of his judgment. I set out those paragraphs of his judgment; 'In Steel v Nominal Defendant , it was demonstrated that a report to the police although an important factor in determining whether thee has been "due inquiry and search" is not, of itself, sufficient. The "due inquiry and search" may be satisfied as a result of investigations undertaken by persons other than the worker or, in this instance, the plaintiff." In Lawrence v Nominal Defendant , an action failed as a result of a two month delay in publishing newspaper advertisements and the lack of any doorknock in the neighbourhood. It was stated that to be reasonable inquiry and search, it had to be prompt. It was stated that it was not uncommon for injured persons to be under the mistaken belief that unless they can identify the vehicle at fault they have no right to compensation. However, ignorance may be no excuse for the failure to undertake due inquiry and search. PLAINTIFF'S SUBMISSIONS 20 Mr Walsh submitted that this case came clearly within the principles enunciated in Malcolm and Harrison and submitted that based on such cases, there was no realistic possibility that any reasonably practical inquiry and search if undertaken would have identified the vehicle at fault and that therefore the requirement as to due inquiry and search was satisfied. 21 In Harrison the facts as found by the court, were that the plaintiff, a young woman, was a passenger in a taxi cab travelling out of Sydney. Whilst the taxi cab was stationary in South Dowling Street in heavy traffic a following car ran into the stationary taxi cab causing serious injury to the plaintiff. The principal injury was caused to her neck. The impact put the taxi cab out of service so that the driver had need to call for a substitute car. However before doing so he spoke to the driver of the car which had run into the taxi cab. He did not note that car's registration. He obtained only a vague impression of the colour of the car and apparently no certain impression of it make or model. The plaintiff understandably, particularly bearing in mind the neck of her injury, did not have the means of identifying the vehicle. When the driver was using his two-way radio to obtain another car and endeavouring to call the police, the other vehicle without warning was driven from the scene and was not seen by the taxi driver again. The Trial Judge had found in favour of the plaintiff. His decision was overturned by the Court of Appeal, but its decision was overturned by the High Court. Barwick CJ had this to say; "If in the circumstances of the case it is evident that the identity of the vehicle could not be established by due inquiry and search, the stipulation in my opinion may be held to be established, although no inquiry or search destined to be futile has been made. The section does not, in my opinion, require that in every case, irrespective of its circumstance, some inquiry and search should be made. Whether or not the identity of the vehicle might have been established after inquiry and search appropriate to the circumstances of the case has been made, is a question of fact." 22 That decision was followed by the Court of Appeal in Malcolm v Urban Transit Authority of New South Wales 20 MVR 87. In that case the plaintiff was injured when the bus in which she was travelling stopped suddenly. The bus driver was called and gave evidence that a vehicle had cut in front of the bus without giving any indication and then stopped suddenly. Mr Wade said that he had applied his brakes immediately. He noticed that some passengers had tumbled to the floor. The other car drove off apparently oblivious to the mayhem which, on Mr Wade's evidence, it had caused. At the trial it was conceded that no search or inquiry had been undertaken by or on behalf of the plaintiff who argued that there was nothing that the plaintiff could have done which was likely to establish the identity of the vehicle. In the Court of Appeal Mahoney JA went carefully through the facts and came to the view that there were matters which were real possibilities apt to be explored if due inquiry and search was made to discover its identity. He found that if they were not explored, then it was proper to hold that 'due' inquiry and search had not been made. 23 However Priestley JA and Meagher JA disagreed. Priestley JA finding; 'The circumstances of the sudden braking of the crowded bus was such that it was unlikely in the nature of things that any person on the bus saw and remembered the number of the 'white car'. It seems to me to be quite safe to say in view of the evidence of the bus driver and upon the probabilities that the driver did not see and remember the white car's number. Had he done so I find it difficult to think that Counsel for the Nominal Defendant would not have known the fact and would not have brought the plaintiff's case to an abrupt end by bringing it out in evidence.' 24 Mr Capelin relied on the reference by Magistrate Dillon in Penrith Rugby League Club Ltd v The Nominal Defendant to Steel v The Nominal Defendant and Lawrence v The Nominal Defendant. I have considered those cases. The decision in Lawrence of the Court of Appeal consists only of short facts and the headnote. The court found that for the inquiry and search to be reasonable, it must be prompt. It appears to me that the facts in that matter were such that it was open for the court to find that a prompt search by doorknocking and advertisements in the paper may have been successful and therefore should have been carried out promptly. 25 I have read carefully Steel's case in which the headnote does indicate that a report to the police of a traffic accident involving an unidentified vehicle, although an important factor in determining whether there has been due 'inquiry and search', is not of itself sufficient. I note that case was decided before Harrison's case. Quite frankly I doubt if the case would be decided in the same way after Harrison's case. It was decided on its particular facts. 26 What is clear from all the cases is that what will amount to due inquiry and search will depend on the particular circumstances of each case. 27 Here the Nominal Defendant argued that there were several avenues of inquiry and search available to the plaintiff. Clearly Mr Capelin relied on the failure of Mr Robinson to report the incident to the police. He relied on the fact that it occurred on a busy freeway in medium density of traffic, and that the incident was of some note with the Mr Robinson's vehicle leaving the bitumen surface and causing, it can clearly be inferred, dust and rubble to rise as it came to a sudden halt in the median strip. He submitted that a prompt advertisement in a newspaper in Gosford or Newcastle may well have resulted in a person who had seen the accident coming forward and that some such person may have been able to identify the vehicle. He said there was no evidence of any prompt action in the nature of due inquiry and search and said that ignorance on the part of Mr Robinson of the requirement to make due inquiry and search was no excuse. 28 Whilst I acknowledge that the steps indicated by Mr Capelin could have been taken, I am satisfied that there was in reality no possibility of any such inquiry establishing the identity of the other vehicle (hereinafter referred to as 'the white Commodore'. The evidence indicated that such vehicle overtook Mr Robinson at a high speed – well in excess of 110 kilometres per hour. The width of the median strip in that area would make it impossible for any vehicle travelling in the opposite direction to be able to identify the registration number of the white Commodore. The driver of any vehicle travelling behind Mr Robinson's vehicle who may have seen the incident would have had to increase speed significantly and to follow the white Commodore for some distance at a high speed to obtain the registration number. I am satisfied that it was extremely unlikely that any driver did so. If a driver did so, then I believe the driver would have come back to the scene of the accident to check on the wellbeing of Mr Robinson. In fact no vehicle stopped at the scene and I am satisfied that there is a strong inference that no other person saw the actual incident involving the white car cutting in front of Mr Robinson's car. That incident would have taken place within a very short period of time and within a very short distance. Anyone travelling some distance behind Mr Robinson's car may well have seen his car leave the road, but upon seeing his car come to a stop may well not have been aware of the involvement of any other vehicle. Certainly none of the cars stopped. In my view, whilst there may be a possibility that the steps suggested by Mr Capelin may have brought forward a person who saw the incident, there is no real possibility that any such person would be able to identify the identity of the Commodore. In many ways I think the plaintiff's case in this matter was stronger than that of the plaintiff in Malcolm's case. I am satisfied that the plaintiff has established the requirement of due inquiry and search in this matter. ASSESSMENT OF DAMAGES 29 When assessing the plaintiff's entitlement under s151Z I am required firstly to determine the quantum of the common law damages pursuant to the Motor Accidents Act 1988 which Mr Robinson would have recovered had he sued the Nominal Defendant for negligence. Such calculation is frequently referred to as yhe calculation of the injured worker's (in this case Mr Robinson) "notional damages".' MR ROBINSON'S EVIDENCE RE DAMAGES 30 Mr Robinson was born on 30 January 1966. He is now aged 40 years. He is a primary school teach by occupation and presently is the Assistant Principal of the Kariong Public School. At the time of the accident he was employed as a permanent teacher earning approximately $35,000 per annum. He said that at the time of the accident he enjoyed sound health and did not have any neck problems, headaches or other symptoms such as dizziness, nausea or unwellness. He sought medical treatment from Dr Evans immediately after the accident. He experienced headaches, giddiness and nausea. He was certified unfit to work and was away from work from 25 July 1995 to 15 September 1995, a period of about seven and a half weeks. He was on restricted duties for a further six weeks. He said he suffered continual pain in the side of his neck and over his head and in 1995 he had mild pins and needles sensations in both arms and hands. He said those disabilities continued through to 1998 and continued today with varying intensities. He said he received treatment from Dr Spear and Dr Ghabrial. He saw Dr Ghabrial on two occasions in 1998. He said he continues to feel a sense of creaking and grinding in his neck. He said he has experienced it every day since 1999, he continues to take medication including Neurophen, anti inflammatory Panadine Forte and estimates that he would spend $200 per year on pain relief. Exh 4 indicates that Mr Robinson underwent considerable medical treatment and also extensive physiotherapy treatment in 1995, 1996, 1997, 1998 and 1999. 31 Mr Robinson said he has continued to suffer neck problems and pain. He said that prior to the accident he was a competent and regular squash player. He said he was forced to give that up as a result of his neck problems. He said he is not now as active as he used to be. He now avoids going to the beach for surfing and restricts his actions to prevent any damage or exacerbation of the injury to his neck. He said he restrains himself when playing with the children as he is fearful of exacerbating his neck problems. He said he continues to see Dr Spear for his neck problems. He said that over the past four to five years if his headaches and neck problems were such as to cause him to have a day off work, that he would take such day off on sick leave. 32 In cross examination Mr Robinson agreed that he had not seen a doctor for several years in relation to neck pain but said he had seen a doctor regarding migraine headaches. He said he could not recall any prior incidence involving his neck, but agreed that there was in his medical history, a reference to a fall in 1989 whilst he was at university. He said that he had no recollection of that incident and could not recall complaining of headaches and neck aches, but did not dispute that it happened. MEDICAL EVIDENCE 33 The plaintiff relied on the following medical reports; 1. Dr E.P. O'Sullivan dated 14.9.1995 2. Dr E.P. O'Sullivan dated 17.6.1996 3. Dr E.P. O'Sullivan dated 19.2.1998 4. Dr Nick Trost dated 19.8.1998 5. Professor Y.A.E. Ghabrial dated 28.1.1998 6. Professor Y.A.E. Ghabrial dated 19.3.1998 7. Dr Robert Heard dated 13.1.1998 8. Dr Meriene Spear dated 17/10.1997 9. Dr David Bornstein dated 16.12.1996 10. Subpoenaed documents of Morisset Medical Centre 11. Subpoenaed documents of Corranbong Medical Centre 34 The defendant relied on the following medical report; Dr Ross Mellick dated 7.3.2005 35 Mr Robinson was examined by Dr E.P. O'Sullivan, medical officer employed by GIO Australia. Following an examination on 14 September 1995 Dr O'Sullivan indicated that Mr Robinson should be fit to return to work in October 1995 and predicted a full recovery. Following an examination on 27 June 1996 Dr O'Sullivan was still confident that the prognosis was good with no evidence of permanent damage, notwithstanding the complaints of pain which Mr Robinson was still making. He was further examined on 19 February 1998 by Dr O'Sullivan. He noted that Mr Robinson had been referred to Professor Ghabrial for an MRI investigation. He said that Mr Robinson should continue with physiotherapy treatment twice a week. 36 Professor Ghabrial examined Mr Robinson on 24 July and requested an MRI scan. In his report dated 19 March 1998 he concluded; 'Mr Robinson sustained an injury to his neck in a motor vehicle accident on 24 July 1995. Since then he continued with pain in his neck and hands. He was advised to avoid activities involving excessive neck movements and heavy lifting. I believe it is highly likely that he will continue with his present disabilities and surgery may be considered for the C6/7 level in the future. The permanent impairment of the neck is assessed at 25%. The permanent loss of the efficient use of the left upper limb at or above the elbow, taking into consideration any loss below the elbow, is assessed at 10%. The permanent loss of the efficient use of the right upper limb at or above the elbow, taking into consideration any loss below the elbow, is assessed at 10%. From the evidence given to me by Mr Robinson I believe that his clinical features, residual disabilities and permanent impairment are the result of his injuries to his neck on the 24th July 1995 in a motor vehicle accident.' 37 Mr Robinson was seen by Dr Robert Heard, Consulting Neurologist. In his report dated 13 January 1998 he said that he had seen Mr Robinson on 13 September 1995 and again on 3 May 1996. He said that he made a diagnosis of probable mild post concussion syndrome and he assessed the permanent impairment of function of the neck at between 10% to 15%. 38 Mr Robinson was seen by Dr David Bornstein on 16 December 1996. Dr Bornstein expressed the following opinion; ' This gentleman has suffered a significant soft tissue injury to the neck. Has ongoing symptoms which doubtless are related to the facet joints in his cervical spine. Under the circumstances there has been improvement to the point that he currently has reached but it is likely that he will be left with residual discomfort of a type that he currently has indefinitely. I am not qualified to comment on the psychiatric aspects of this case and make no attempt to do so. To answer your questions: (a) History as above. (b) As above. (c) Facet joint dysfunction following on side to side whiplash. (d) I consider him fit for his normal work as a primary teacher. (e) I consider that he will be left with residual discomfort in the neck on a permanent basis. 39 Dr Bornstein further certified on 16 December that there was impairment of function of the neck on the basis on the complaints amounting to between 10% and 15% compared to the most extreme cases of impairment. 40 The defendant relied on the report of Dr Ross Mellick dated 7 March 2005. Dr Mellick did not examine Mr Robinson, but prepared his report by commenting on the reports and findings of the general practitioner Dr Evans, Dr Heard, Professor Ghabrial and Dr O'Sullivan. Dr Mellick disagreed with Professor Ghabrial's findings and conclusions partly on the basis that he believed Professor Ghabrial did not examine Mr Robinson. I am satisfied on Mr Robinson's evidence that Professor Ghabrial did in fact carry out an examination on each of the occasions Mr Robinson saw him. I have taken Dr Mellick's report and observations into account. I prefer the opinions of the doctors who were able to physically examine Mr Robinson. CONCLUSION RE MEDICAL EVIDENCE 41 I was impressed with the evidence of Mr Robinson. I found him honest and truthful. I do not believe that he exaggerated any of his present disabilities and problems. He gave his evidence in a very matter of fact manner. 42 I am satisfied that he suffered the complaints and disabilities as he indicated to the various medical specialists and general practitioners who treated him. I am satisfied that in giving the history and problems which he was suffering, that Mr Robinson was honest with the medical practitioners. I am satisfied that he continues to have the continuing problems with his neck and headaches. I accept that he has to a large extent, learned to live with such problems and has been required to modify his lifestyle and activities due to the injuries and disabilities suffered in the accident. I am satisfied that his life has been significantly impaired for a continuous period due to the injuries suffered in the accident for a period of more than six months since the accident and in fact from July 1995 to date. 43 The significance of those submissions is that the Motor Accidents Act 1988 contained provisions limiting the damages to be awarded for non-economic loss. S79 provides as follows; '79 (1) This section applies only to motor accidents that occurred before midnight on 16 September 1995. (1A) The object of this section is to limit the amount of damages for non-economic loss in cases of claims relating to relatively minor injuries, in order to achieve the object of the Act of more fully compensating those with more severe injuries at a cost the community can afford to meet. (1B) No damages shall be awarded for the non-economic loss of an injured person as a consequence of a motor accident unless the injured person's ability to lead a normal life has been, or in the near future is likely to be, significantly impaired for a continuous period of not less than 6 months by the injury suffered in the accident. (2) The amount of damages to be awarded for non-economic loss shall be a proportion, determined according to the severity of the non-economic loss, of the maximum amount which may be awarded. (3) The maximum amount which may be awarded for non-economic loss is $180,000, but the maximum amount shall be awarded only in a most extreme case. (4) If the amount of non-economic loss is assessed to be $15,000 or less, no damages for non-economic loss shall be awarded.' The section then proceeds to provide for deductions to be made awards up to $40,000. 44 Mr Walsh for the plaintiff submitted that I would find that Mr Robinson would be entitled for non-economic loss to an amount equal to 20% of 'a most extreme case'. Under the tables that would equate to a figure of $42,800. 45 Mr Capelin submitted that I would find his non-economic loss to be no greater than 10% of 'a most extreme case', which would entitle Mr Robinson to an award of $6,900. 46 I have previously indicated that I was impressed with Mr Robinson. I consider that he has dealt quite stoically with the disabilities flowing from the injuries which he received. He has endeavoured to put such disabilities behind him and to get on with his life. However, the disabilities affect him daily and impact significantly on his enjoyment of life. Taking all those matters into account, I consider that the appropriate percentage loss for Mr Robinson is 18%, which would result in an award for general damages of $35,620. 47 Mr Walsh submitted that I would be satisfied on the balance of probabilities that Mr Robinson will sustain some future economic loss, and that in the circumstances I should allow a cushion of $10,000. Mr Capelin submitted that there should be no component for future economic loss. 48 I am satisfied that there should be a cushion for future economic loss. I am satisfied on the balance of probabilities that the disabilities from which Mr Robinson now suffers will come against him and cause him to have some time off in the future and I am satisfied that the sum of $10,000 is reasonable. 49 A claim was made on Mr Robinson's behalf for out of pocket expenses for medicine at $4.00 per week. I consider that claim to be reasonable based on his evidence and I propose to allow the amount claimed in the sum of $3,094.00. 50 It follows that the award of notional damages to Mr Robinson will be in the sum of $66,113.90 calculated as follows; 1. Non-economic loss 18% $35,620.00 2. Past loss of earnings payment per Workers Compensation Act $7,890.00 3. Future loss of earning capacity $10, 000.00 4. Past out of pocket expenses $9,509.90 5. Future out of pocket expenses @ $4.00 per week. $4 x 910 x 85 $3,094.00 $66,119.90 SUMMARY OF FINDINGS 51 I have assessed Mr Robinson's notional damages to be $66,119.90. 52 The plaintiff had paid on behalf of Mr Robinson a total of $46,071.74. However, of that amount the sum of $25,158.74 was statute barred. 53 On those figures the amount of the judgment to which the plaintiff will be entitled will be the sum of $20,913.00. 54 Normally that would be the end of the matter, but the parties have raised an interesting issue as to how the final figures should reflect as to who suffers the consequence that $25,158.74 of the payments made by the plaintiff is statute barred. 55 Mr Walsh submitted that the amount of the indemnity is to be determined in accordance with s151Z(1)(d) of the Act and should be calculated as follows; Amount of notional damages $66,113.90 Less amount of judgment $20,913.00 Balance: $45,200.90 56 Mr Walsh argued that the amount of the indemnity would therefore be the sum of $45,200.90. 57 Mr Capelin argued that such result would ignore the fact that $25,158.74 of the amount was statute barred. He argued, correctly, that his client would be liable for the full amount of $66,113.90. It would have to pay the judgment debt of $20,913 and would be liable for future payments up to $45,200.90. That would mean no one would suffer the loss of statute barred payments. 58 I am satisfied that as between the plaintiff and the defendant that the plaintiff has to bear the loss of the payments of $25,158.74 which are statute barred. It was after all the plaintiff which did not commence the proceedings in time. It could have. 59 I am satisfied that to properly calculate the amount of the indemnity, the whole of the payments made by the plaintiff should be deducted. That would have the following result; Amount of notional damages $66,113.90 Less payments made by plaintiff $46,071.74 Indemnity $20,042.16 60 That would mean that if in fact Mr Robinson made further claims on the plaintiff which resulted in the whole of the notional damages being paid to him, the notional damages would, in the end result be paid in the following manner; $25,158.74 By the plaintiff by way of statute barred payments $20,913.00 By the defendant pursuant to the judgment $20,042.16 By the defendant by further payments to the plaintiff pursuant to the indemnity 61 In my view that is the just and correct result. 62 The same result would be obtained by deducting from the damages of $66,113.90 the statute barred amount of $25,158.74. That would result in the amount which Mr Robinson would actually be able to recover, given that the statute barred amount is not recoverable to be as follows; Notional damages $66,113.90 Less statute barred payments $25,158.74 $40,955.16 Less amount of judgment $20,913.00 Amount of indemnity $20,042.16 ORDERS I would propose to make the following orders: 1. There will be judgment for the plaintiff in the sum of $20,913.00. 2. The amount of the indemnity pursuant to s151Z(1)(d) of the Workers Compensation Act will be $20,042.16. 3. The defendant is to pay interest on the judgment in accordance with the Rules. The amount of the interest is to be calculated by the parties and advised to the Registry within seven days. 4. The defendant is to pay the plaintiff's costs and disbursements as agreed. In default of agreement within 28 days the costs are to be assessed under the Legal Profession Act. I shall hear from the parties in relation to the proposed order as to costs and also as to arithmetical errors, if any, in the judgment. B.A. LULHAM 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.