Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287

New South Wales Court of Appeal

CITATION: Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287

HEARING DATE(S): 1 September 2010

JUDGMENT DATE: 24 November 2010

JUDGMENT OF: Giles JA at 1; Young JA at 97; Handley AJA at 98

DECISION: Leave to appeal granted. Dispense with the filing of the notice of appeal. Appeal dismissed with costs. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: DAMAGES – motor vehicle accident – medical assessment – initial assessment below non-economic loss threshold – two decisions refusing to refer again under section 62 of Motor Accidents Compensation Act – whether jurisdictional error in refusals – first refusal – claims assessor said he had no power to set aside certificate on grounds of procedural unfairness – whether assessor addressed wrong question – incorrect reading of assessor's reasons – not part of decision – no error – claimant asserted initial assessment procedurally unfair – claims assessor not satisfied further assessment would change result – whether assessor entitled to consider whether fresh assessment would result in assessment over threshold – denial of procedural fairness not determinative in deciding whether to refer again – assessor entitled to make own decision – discussion of Stead threshold – no error shown – claimant asserted initial assessor biased – whether claims assessor considered allegation of bias – bias was considered – no error – second refusal – whether error through adopting reasons for first refusal – no error – whether failure to consider risk of injustice from procedural unfairness – risk considered – no error – claims assessor found nothing since first refusal justified fresh referral – whether fresh error in saying further assessment should "only" be made where there is risk of injustice and injustice "only" arises where there is a reasonable prospect of a different outcome as to entitlement to damages for non-economic loss – by majority, if error, not material since no change since first refusal – in any event, no error because Stead test satisfied.