Jovica Trazivuk v Motor Accidents Authority of NSW & Ors [2009] NSWSC 1074

New South Wales Supreme Court

CITATION : Jovica Trazivuk v Motor Accidents Authority of NSW & Ors [2009] NSWSC 1074

HEARING DATE(S) : 7 September 2009

JUDGMENT DATE : 9 October 2009

JUDGMENT OF : Patten AJ

DECISION : See paragraph 45

LEGISLATION CITED : Supreme Court Act; 1970; Motor Accidents Compensation Act 1999

CATEGORY : Principal judgment

CASES CITED : Darke v L Debal [2006] NSWCA 86; Craig v South Australia (1985) 184 CLR 163

Jovica Trazivuk - Plaintiff PARTIES : Motor Accidents Authority of NSW - First Defendant Peter Hunt in his capacity as a CARS Assessor- Second Defendant Zurich Australian Insurance Limited - Third Defendant

FILE NUMBER(S) : SC 30143 of 2008

COUNSEL : Ms B Nolan - Plaintiff Mr J Gracie - Third Defendant

SOLICITORS : NSW Compensation Lawyers - Plaintiff Rankin Nathan Lawyers - Third Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Patten AJ

9 October 2009

No: 30143 of 2008

Jovica Trazivuk v Motor Accidents Authority of NSW & Ors

JUDGMENT

1 The Plaintiff by summons seeks relief under s69 of the Supreme Court Act in respect of the decisions of an assessor, Mr Peter Hunt, (the CARS Assessor) purportedly made under the Motor Accidents Compensation Act (the Act) respectively on 15 April 2008 and 24 September 2008. The summons asserts that the decisions were "vitiated by jurisdictional error and of no effect". 2 Before me, Ms B Nolan appeared for the Plaintiff and Mr J Gracie for Zurich Australia Insurance Ltd (Zurich), the third defendant. The first and second defendants (respectively Motor Accident Authority of NSW (the Authority) and the, now former assessor, Mr Hunt) filed submitting appearances except as to costs and took no part in the hearing. 3 Ms Nolan moved on the affidavit of the Plaintiff's solicitor, Mr Vic Petrovich, sworn 19 May 2009. From the documents exhibited to that affidavit, and exhibited to the affidavit of Ms Elizabeth Medland, solicitor for Zurich, it appears that the Plaintiff was injured on 31 May 2001 when, in the course of his employment, the van he was driving was struck in the rear by another vehicle. As a result of the impact, the van toppled over a fence and overturned twice before coming to rest in an upright position. 4 On 30 July 2003, the Plaintiff applied to the Authority under section 58 (1) of the Act, a disagreement having arisen as to whether the injuries caused by the accident had stabilized and the degree of permanent impairment caused. 5 He provided details of the dispute: "Zurich has been served with a report by Dr James Bodel, orthopaedic surgeon, dated 16 May 2002 concluding Mr Trazivuk has a permanent impairment of the back 12% as a result of the motor vehicle accident. Mr Trazivuk also has a 5% overall permanent impairment of neck; and 5% overall permanent loss of efficient use of the left arm at or below the elbow as well as efficient use of left arm. Dr Bodel concludes that Mr Trazivuk 's condition is now stable and permanent. Zurich did not offer settlement and agreed that a MAS report should be obtained. The applicant seeks the assessment of whole person impairment." 6 The Authority referred the dispute to Medical Assessor, Dr Margaret Gibson, who examined the Plaintiff on 12 December 2003. She concluded that the three disabilities had stabilized and that whole person impairment caused by the accident "is not greater than 10%". Indeed, her report certified whole person impairment as zero in respect of each of the three disabilities. 7 On 13 October 2006, the Plaintiff applied for a further assessment of a medical dispute by the Medical Assessment Service pursuant to s62 of the Act, which is in the following terms: "62 Referral of matter for further medical assessment