Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Eades v Gunestepe [2012] NSWCA 204 Hearing dates: 29 May 2012 Decision date: 04 July 2012 Before: Basten JA; at [1] Hoeben JA; at [13] Tobias AJA; at [65] Decision: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The applicant is to pay the respondent's costs. [Note: 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: LIMITATION - motor accident - leave required to commence proceedings out of time under s 109 Motor Accidents Compensation Act 1999 - nature of appeal from lower court decision - whether decision pursuant to s 109 properly described as "discretionary" - monetary threshold requirement for extension of time - need to determine predictively range of contributory negligence - meaning of words "likely to be awarded" in s 109 - which party bears the onus of establishing a range for contributory negligence - whether "real chance" of contributory negligence being assessed at 24 percent or lower - whether monetary threshold under s 109 can include non-economic loss even though an assessment of permanent impairment has not been made by a Medical Assessor. Legislation Cited: Australian Road Rules, 1999, r 57 Motor Accidents Act, 1988, s43A Motor Accidents Compensation Act 1999 (NSW) s 109, s 131- Supreme Court Act 1970 (NSW). Cases Cited: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 Costa v The Public Trustee of NSW [2008] NSWCA 223 House v The King [1936] HCA 40; 55 CLR 499 Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 Reeves v Reeves [2002] NSWCA 181; 36 MVR 488 Rita Harika v Stanley Tupaea [2003] NSWCA 332; 58 NSWLR 675 Sinclair v Darwich [2010] NSWCA 195; 77 NSWLR 166 The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421 The Queen v Carroll [2002] HCA 55; 213 CLR 635 Turkmani v Visvalingram & Ors [2009] NSWCA 211; 53 MVR 176 Warren v Coombes [1979] HCA 9; 142 CLR 531 Texts Cited: American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th ed. Category: Principal judgment Parties: Noel Samuel James Eades - Applicant Kadriye Gunestepe - Respondent Representation: Counsel: Mr RA Cavanagh SC/Mr A Bowen - Applicant Mr P Webb QC/Mr C Sandrasegra/Ms K Balendra - Respondent Solicitors: Lee & Lyons - Applicant Kheir Lawyers - Respondent File Number(s): 2010/398385 Decision under appeal Date of Decision: 2011-09-16 00:00:00 Before: Toner SC DCJ File Number(s): 2010/398385 Judgment 1BASTEN JA: I agree with the orders proposed by Hoeben JA and, subject to the following qualifications, with his reasons. 2Section 109 of the Motor Accidents Compensation Act 1999 (NSW) precludes the commencement of proceedings to which the Act applies more than three years after the date of the accident, without leave of the Court: s 109(1), the relevant parts of which are set out by Hoeben JA at [18] below. The grant of leave is subject to the requirement that the Court be satisfied as to the matters set out in s 109(3). There was no suggestion in this case that the power was discretionary. In other words, if the Court were properly satisfied as to the prescribed conditions, there should be a grant of leave. There was no discretionary power to refuse leave on some extraneous basis not referred to in the section. Thus, although the conditions as to which satisfaction was required each involved evaluative judgments, the power itself was not discretionary. In these circumstances, there is a large question as to whether the appellate jurisdiction of this Court is constrained by the principles articulated with respect to sentence appeals in criminal jurisdiction in House v The King [1936] HCA 40; 55 CLR 499 at 505. 3There are different kinds of discretionary powers. One kind maybe said to involve a binary choice, in the sense that a particular form of relief may be granted or it may not. The power being exercised in this case involved a binary choice, but, as noted, was not discretionary. An alternative form of discretionary power is of the kind involved in a sentencing order, by which the trial judge has a range of possible orders within which a choice must be made. A finding as to the proportion of contributory negligence in a civil case is analogous. 4The difference between House v The King and a civil appeal in this Court is the statutory regime pursuant to which the appeal is brought. The powers of the Court in the present case are those set out in s 75A of the Supreme Court Act 1970 (NSW). The appeal is by way of a rehearing. 5Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27; 226 CLR 256 involved a defence to civil proceedings based on the allegation that the pursuit of a civil claim long after the events in question involved an abuse of process. As Callinan J noted at [223], s 75A "makes no distinction between appeals on factual and legal grounds, it says nothing about, and in no way suggests that appeals against discretionary decisions require different treatment from other appeals". Suggesting that the application of House v The King principles beyond a criminal case and in relation to a sentence might be inappropriate, Callinan J suggested that judges "need to be careful about erecting qualifications and barriers to their powers, whether out of expediency, judicial defensiveness, fear of the collapse of floodgates limiting the flow of appeals, or otherwise, if the relevant authorising statute makes no provision for them". To that may be added the oft-cited admonition to similar effect, that it is "quite inappropriate to read provisions conferring jurisdiction or granting powers to a court by making implications or imposing limitations which are not found in the express words": The Owners of the Ship 'Shin Kobe Maru' v Empire Shipping Company Inc [1994] HCA 54; 181 CLR 404 at 421. 6However, the majority in Batistatos (Gleeson CJ, Gummow, Hayne and Crennan JJ) took a different view. Although the appeal in Batistatos was governed by s 75A of the Supreme Court Act, they adopted a passage from the judgment of Gaudron and Gummow JJ in criminal proceedings involving an alleged abuse of process. In The Queen v Carroll [2002] HCA 55; 213 CLR 635, the High Court considered whether an indictment for perjury, based on the testimony of the accused at an earlier trial for murder, in which he had asserted his innocence, should have been stayed as an abuse of process. (The accused had been acquitted of murder.) The Court upheld his appeal against his conviction for perjury. In discussing the power to stay a proceeding, Gaudron and Gummow JJ noted that the power was not properly described as "discretionary", in the sense that once an abuse of process was established there was a discretion to refuse a stay. They held, however, that "as with discretionary decisions, properly so called, appellate review of its exercise" depended on House v The King principles: at [73]. 7Ultimately, it may not be possible for an intermediate appellate court to reconcile these statements of principle: cf Costa v The Public Trustee of NSW [2008] NSWCA 223. However, it is clear that the principle in House v The King would involve an implied restraint on the powers of this Court which are conspicuously absent from the express words of s 75A. In the absence of clear statements to the contrary in the High Court, it would be inconsistent with both Shin Kobe Maru and Warren v Coombes [1979] HCA 9; 142 CLR 531 for this Court to treat every appeal against a decision underlying which was an evaluative judgment as restricted to House v The King error. 8It may be that a similar result is reached in assessing a decision of the kind required by s 109 of the Motor Accidents Compensation Act. That is not because the power was discretionary, but because the relief sought below was based on a preliminary inquiry involving a cursory assessment of available material. Such an exercise does not involve a stringent application of precise criteria. 9Subject to that qualification as to the nature of this Court's powers, I agree with Hoeben JA that the primary judge erred in specifying a precise figure in respect of contributory negligence. 10I also accept that the term "likely" in s 109(3)(b) does not mean "more likely than not", but rather, a "real chance" or "real prospect" in the language adopted in Sinclair v Darwich [2010] NSWCA 195 at [36]. This is an imprecise standard. Nevertheless, it is capable of some clarification. In this context a real chance is not anything above the 1% regarded as "speculative" in Malec v JC Hutton Pty Ltd [1990] HCA 20; 169 CLR 638 at 643. The context in which the statutory language is to be construed is important. As noted by Dawson J in Chan v Minister for Immigration and Ethnic Affairs [1989] HCA 62; 169 CLR 379 at 398, "[w]hilst alternative verbal formulations of the correct test may be useful in identifying shades of meaning, none can ever offer complete precision". The relevant shade of meaning in the present case is conveyed, as in Chan, by "the notion of a substantial, as distinct from a remote chance": at 389 (Mason CJ). 11In dealing with contributory negligence, based on exiguous material, the range of likely outcomes may be quite broad. If each driver, as in this case, looks to have had a significant level of responsibility for the accident, it may nevertheless be fair to assess the possible range as to contributory negligence as varying from 25% to 75%. In my view such an assessment would be appropriate. However, given the inevitable degree of imprecision, it is not possible to rule out the real or substantial possibility that the assessment of the plaintiff's responsibility may be 24% or slightly less. 12For these reasons, I agree with the orders proposed by Hoeben J. 13HOEBEN JA: Nature of proceedings The applicant seeks leave to appeal from a decision of Toner DCJ of 16 September 2011 granting leave to the respondent to commence proceedings out of time in accordance with s 109 of the Motor Accidents Compensation Act 1999 (MAC Act). 14The applicant seeks leave on the grounds that the trial judge erred in his application of s 109(3)(b) in that he found that the total damages of all kinds likely to be awarded to the respondent would not be less than 25 percent of the maximum amount that may be awarded for non-economic loss under s 134 as at the date of the relevant motor accident. In order to reach that conclusion, his Honour assessed contributory negligence at 10 percent. 15The respondent by Notice of Contention asserts that his Honour erred in his calculation of damages likely to be awarded to her by not taking into account her entitlement to non-economic loss even though no assessment had been made by a Medical Assessor of the extent of her permanent impairment resulting from the accident. Sections 131 and 132 MAC Act require an assessment of whole person permanent impairment of 10 percent before non-economic loss can be claimed. Factual background 16The respondent sustained injuries in a motor vehicle accident on 2 September 2007. The applicant admitted breach of duty of care but alleged contributory negligence. 17The respondent commenced proceedings in the District Court against the applicant but was out of time by one day. The applicant filed a motion seeking to strike out her proceedings. The respondent filed her own motion seeking leave to proceed, pursuant to s 109 of the Act. 18Section 109 relevantly provides: "109(1) A claimant is not entitled to commence proceedings in respect of a claim more than 3 years after: (a) the date of the motor accident to which the claim relates ... except with the leave of the court in which the proceedings are to be taken. ... (3) The leave of the court must not be granted unless: (a) the claimant provides a full and satisfactory explanation to the court for the delay, and (b) the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss under section 134 as at the date of the relevant motor accident." 19At the hearing before his Honour, the parties agreed that the respondent's motion should be heard first. In that motion the applicant disputed that the explanation of the respondent was full and satisfactory but his Honour accepted that it was. There is no challenge to that finding. It was also necessary for his Honour to consider the question of damages. 20The parties agreed that in accordance with the decision in this Court in Reeves v Reeves [2002] NSWCA 181; 36 MVR 488, it was necessary for his Honour to decide whether contributory negligence might apply to the respondent's claim. If it did the parties submitted that his Honour should make an assessment of contributory negligence and take that into account when assessing damages for the purpose of s 109(3)(b). 21There was only limited evidence of a documentary kind before his Honour as to how the accident occurred. There was no oral evidence or cross-examination. 22There was a COPS report in which the applicant's vehicle was referred to as "veh 1" and the respondent's vehicle as "veh 2". It stated: "At about 12.10pm on 2.9.07, veh 1 was travelling north on Joseph Street, Lidcombe, stationary in the right turn only lane waiting to turn right. The intersection is equipped with a green right turn arrow for north bound traffic, or a right turn can be completed during a normal green light for north bound traffic, which is what driver 1 was attempting to do. Veh 2 was travelling south on Joseph Street in the number 2 of 3 lane. As the traffic light for traffic on Joseph Street changed to amber, the car directly in front of veh 2 slowed to a stop. Veh 2 changed lanes to the number 1 of 3 lane and continued toward the intersection of Georges Ave. Driver 1 believed that all south bound vehicles were stopping for the amber light and began to turn right into Georges Ave. Driver 2 saw that veh 1 was turning into her path and began to brake heavily, resulting in a skid. Veh 2 has then entered the intersection and collided with the nearside front passenger door of veh 1. The collision was witnessed by three police officers who were standing about 30 metres east of the intersection on the south side of Georges Ave." 23The notebook entry of one of the investigating police officers contained a statement from the respondent as follows: "I was going south on Joseph Street. The lights were yellow but I didn't want to stop because I thought someone might hit me in back. The other car turned in front of me and I hit him." 24Another police notebook entry contained the following statement from the applicant: "I was travelling north along Joseph Street at Lidcombe in lane 1 at 30 km an hour. Lane 1 is actually a right hand turn lane at the intersection where there are traffic lights. I had my right indicator activated as I wanted to make a right hand turn into Georges Avenue. The traffic travelling south had proceeded to stop as the lights had changed to orange. There are three lanes heading in this direction; lane 2 is the middle lane and the first car in this lane had come to a stop. The car in the lane closest to the kerb had also stopped. There was no car in the third lane and as it was clear for me to make my turn I did so. As I was completing my turn a black Mitsubishi Lancer in the middle lane travelling behind the car which had stopped as the lights went orange has pulled into the lane that had been clear and has tried to beat the lights but has collided with the front nearside of my vehicle." 25In her claim form dated 9 December 2008, the respondent described the accident as follows: "I was travelling south along Joseph Street in middle lane in my vehicle registered number AZ I3 6W at intersection with Georges Avenue when vehicle registered number 18 8H DS turning right from Joseph Street into Georges Avenue on red light arrow collided into my vehicle causing a heavy collision." 26The following medical evidence was before his Honour. There were three reports from Dr Harvey, orthopaedic surgeon. Dr Harvey's conclusion was that "there was no basis for making an assessment of whole person impairment" in respect of the respondent. There was a report from Professor Mathew Kiernan, consultant neurologist, who concluded "from a neurological perspective there is no evidence of permanent impairment". There were two reports from Dr McKechnie, the respondent's treating neurosurgeon, which set out her disabilities, in particular that she had suffered a protrusion of the L5/S1 disc which might require an operation in the future. He thought that the respondent had "suffered permanent impairment" but gave no assessment of the extent of that permanent impairment. There was no cross-examination of the doctors. 27Before his Honour, the parties submitted that in relation to s 109(3)(b) his Honour should make an assessment of damages to which the respondent was entitled and then, if he found contributory negligence, deduct that percentage from the damages in order to determine whether the requirements of s 109(3)(b) had been met. The parties put to his Honour competing assessments of damages and contributory negligence. 28His Honour dealt with the question of contributory negligence as follows: "44 The second limb of the legislation that the plaintiff must satisfy is that set out in s 109(3)(b) set out above. 45 In determining whether the amount that is likely to be awarded to the plaintiff I must have in mind that the defendant alleged that the plaintiff's potential award may be reduced for her contributory negligence and then I must assess what, if any, reduction is likely to be made to the amount to be awarded to her under all heads of damage. 46 The evidence is that the plaintiff was entitled to drive through the intersection and the defendant was not entitled to turn across her. True enough, other vehicles had stopped at the intersection, the lights were amber and the plaintiff proceeded through it. It seems to me that assessing the likelihood of a reduction for contributory negligence on that basis, I would reduce the likely damages under all heads by 10 percent." 29In relation to damages generally, his Honour assessed the respondent's likely entitlement to be $120,000. After the 10 percent deduction for contributory negligence, the damages were $108,000. 25 percent of the maximum amount for non-economic loss under s 134 of the Act was $91,500. It was on that basis that his Honour found that the respondent had satisfied s 109(3)(b). When assessing damages, his Honour declined to take non-economic loss into account because there had been no assessment of whole person permanent impairment by a medical assessor. Court of Appeal proceedings 30When the matter came on for hearing in this Court, senior counsel for the respondent advised the Court that he had not become aware until the previous day that the appeal was to be heard at the same time as the application for leave to appeal. Consequently, although he had formally raised in submissions a challenge to the decision in Reeves, a letter had not been sent to the Registrar in accordance with paragraph 38 of the Practice Note, nor had written submissions been provided with respect to that issue. 31The Court decided to hear the matter as an Application for Leave to Appeal and the appeal but to reserve the question of the challenge to Reeves. It would depend upon the outcome of the other issues as to whether it was necessary to consider the challenge to Reeves. The Court noted that Reeves was a unanimous decision of three judges of the court which had stood for 10 years. If Reeves were to be challenged, a five judge bench would be necessary. 32The matter proceeded on that basis. Submissions 33The applicant submitted that he was seeking leave to appeal only in relation to his Honour's finding as to contributory negligence. The applicant submitted that if contributory negligence were greater than 24 percent, leave to commence proceedings should not have been granted as on the assessment of damages by his Honour, the respondent would not satisfy s 109(3)(b) of the Act, i.e. the damages would be less than $91,500. 34The applicant submitted that this Court should intervene to re-assess contributory negligence for two reasons: (i) His Honour had failed to take into account all of the evidence, in particular the COPS report and the applicant's statement; and (ii) His Honour erred in saying that the respondent was "entitled to drive through the intersection" in that r 57 of the Australian Road Rules 1999 required a driver in the respondent's position to stop on an amber light if there was time and space to do so. In the course of argument, the applicant adopted the proposition raised by the Court that his Honour had applied the wrong test when making his assessment under s 109(3)(b). The applicant submitted that his Honour should have applied the test set out by this Court in Sinclair v Darwich [2010] NSWCA 195; 77 NSWLR 166. 35The applicant submitted that a proper assessment of the evidence would have revealed that the respondent could have brought her vehicle to a halt just as the vehicles in the kerbside lane and number 2 lane had done. Instead she moved into the lane closest to the median strip and attempted to proceed through the intersection. He submitted that in going around the vehicle in number 2 lane which had stopped at the amber light in front of her, the respondent had failed to take care to a substantial degree and accordingly, her contributory negligence should be assessed at greater than 24 percent. The applicant submitted that the respondent's culpability and contribution to the accident was just as great as his. 36The respondent submitted that because there was no cross-examination of witnesses and no testing of evidence, his Honour when applying s 109(3)(b) was required to engage in a "predictive exercise" which of necessity would be expressed in general terms and which would lack precision. She submitted that the word "likely" as used in the section should be interpreted as meaning "a real and not remote chance or possibility regardless of whether it is less or more than 50 percent". She relied upon the decision in Rita Harika v Stanley Tupaea [2003] NSWCA 332; 58 NSWLR 675 to support that proposition. She submitted that the real question was not whether his Honour was correct or not in his assessment of contributory negligence at 10 percent, but rather whether there was a "real and not remote chance or possibility" that her contributory negligence would be assessed at 24 percent or less. 37In relation to the facts before his Honour, the respondent submitted that the evidence was in many respects contradictory and inconsistent so that without cross-examination there was no mechanism available to either the judge or this Court for determining a preference. 38The respondent submitted that there was a clear conflict between her evidence that the applicant drove against a red light and that she entered the intersection in lane 2 and the evidence of the applicant in his statement. She submitted that while the COPS report supported parts of what the applicant said, there was no evidence of where the information in the COPS report came from. Was it based on conclusions drawn by the investigating police officers, or was it based on the evidence of someone else, perhaps another driver or one of the three police officers to which reference was made? She submitted that this meant the force and effect of the information in the COPS report was simply unknown. 39The respondent submitted that the applicant should not be allowed to rely upon r 57 of the Australian Road Rules since this was not argued before his Honour. She submitted that in any event r 57 went no further than to require a driver to stop in certain circumstances. There was no evidence that those circumstances applied to this accident. 40In relation to the Notice of Contention, the respondent submitted that there was no proper basis for his Honour refusing to make an assessment of non-economic loss, notwithstanding that there had not been an assessment of permanent impairment by a Medical Assessor. The respondent submitted that such an assessment had been made by the court in Harika. In making that last submission, the respondent accepted that Harika was dealing with the provisions of the Motor Accidents Act 1988 (MAA) and not the MAC Act. There was no requirement for a finding of permanent impairment by a Medical Assessor as a condition of making a claim for non-economic loss under the MAA. Consideration 41It was accepted by the parties in this Court that what was being challenged was the exercise of a broad discretion by his Honour. Apart from the discretionary nature of an assessment of contributory negligence generally (Turkmani v Visvalingram & Ors [2009] NSWCA 211; 53 MVR 176) s 109(3)(b) itself involved a discretionary exercise in carrying out the predictive process therein set out. Accordingly, the parties approached the application on a House v The King [1936] HCA 40; 55 CLR 499 basis. 42Some support for such an approach is provided in Harika, although it should be kept in mind that s 43A(7) MAA, which was there being considered, used the word "satisfied" which does not appear in s 109(3)(b). There Mason P (with whom Tobias JA and Foster AJA agreed) said: "9 Differing views have been expressed as regards the standard of appellate review concerning a finding that the primary judge was "satisfied" in accordance with s43A(7) on the full and satisfactory explanation issue (Buller at 434 [39], 442 [96], Russo at [27]). The question whether this is truly a discretionary decision in the sense discussed in House v The King (1936) 55 CLR 499 can be resolved when and if it becomes critical. Assuming that the appellant must satisfy the House v The King criteria, she has done so in the present case." 43While there is some doubt as to whether that is the correct approach in order to challenge an application of s 109(3)(b), I am prepared to follow it since that was the way in which the parties formulated their submissions. On the assumption that the applicant must satisfy the House criteria, I am satisfied that he has done so. I have reached that conclusion not by reference to r 57 of the Australian Road Rules, but because in reaching his conclusion his Honour applied the wrong test with respect to s 109(3)(b). 44Rule 57 and its application were not argued before his Honour and it is not open to the applicant to rely upon that issue to challenge in this Court his Honour's exercise of discretion. In any event, given the paucity of evidence as to precisely how the accident occurred, the application of r 57 is not clear. 45His Honour was not given the assistance to which he was entitled by counsel appearing before him as to the operation of s 109(3)(b). Nevertheless, his Honour was still obliged to apply the section correctly, but did not do so. What his Honour was required to decide was whether there was a "real and not remote chance or possibility" that the respondent's contributory negligence would be assessed at 24 percent or less. He was not required to make a specific assessment of contributory negligence. The task which his Honour had to undertake was that described in Sinclair v Darwich. 46As his Honour did not apply the correct test, it is necessary for this Court to re-exercise his Honour's discretion and carry out the evaluative process which is required by the section. 47As was submitted by the respondent, a useful start point for the application of s 109(3)(b) is Harika. There Mason P said: "25 An application under s 43A(7) must proceed on evidence (Aiello at [13]). But it is not the trial of the claim and it is relevant that the parties fought this particular application without cross-examining any of the witnesses. When parties join issue on the basis of tendering medical reports that take a range of positions, the court should be very slow to resolve the matter adversely to the claimant on the basis of medical reports that are debatably favourable to the insurer on the threshold issue but are contradicted by the claimant's medical evidence. 26 What is required by the words "likely to be awarded"? 27 The word "likely" must be construed in context. It does not always require proof or persuasion to a probability greater than 50% (Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 at 346-7, Jungarrayi v Olney (1992) 34 FLR 496). The present case involves an interlocutory application in which summary dismissal of a presumptively valid claim is sought. The court is involved in a predictive exercise. In analogous contexts, judges have favoured the broader sense of "a real and not a remote chance or possibility, regardless of whether it is less or more than 50 percent" that Deane J adopted in Tillmanns (see Secretary, Department of Employment, Education, Training and Youth Affairs v Barrett (1998) 82 FCR 524, Dwyer v Movements International Movers (WA) Pty Ltd [2000] WASCA 75, Smith v Western Australia (2001) 108 FCR 442). That is the approach to be adopted here." 48While the analysis of Mason P related to a different section, i.e. s 43A(7) MAA, that section used the same formula of words "likely to be awarded" as is used in s 109(3)(b). The section which Mason P was applying performed a similar, but not identical, function to that of s 109(3)(b). 49Section 43A(7) was in the following terms: "43A(7) A court must dismiss proceedings commenced in respect of the late claim if the court is satisfied that the claimant does not have a full and satisfactory explanation for the delay in making the claim and, alternatively, or in addition in the case of a late claim that is made more than 12 months after the relevant date for the claim under s 43, that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are less than 10 percent of the maximum amount that may be awarded for non-economic loss under s 79 or 79A as at the date of the relevant motor accident." 50In Sinclair v Darwich, Young JA (with whom Handley AJA and Sackville AJA agreed) reached a similar conclusion as to the meaning of the words "likely to be awarded" in s 109(3)(b). There his Honour said: "34 What the Court needs to do is to assess the likely result of damages after taking contributory negligence into account. Strangely enough the exact scope of the word "likely" in s 109(3)(b) of the MAC Act has not yet received authoritative determination. It was debated in this Court but not decided in Baker v Salagiannis [2009] NSWCA 385. 35 The popular view once was that it meant "more probable than not". Not even Mr Fitzsimmons adopted that in argument in this case though he put forward the synonym "probable". With respect, I disagree, because "probable" means "more likely than not". Mr Fitzsimmons said that such a construction would accord with the purpose of the whole statute, but, again, with respect, I would not agree. 36 It seems to me that the simple meaning of the word "likely" in the context of this Act is that there is a "real chance" or a "real prospect" or that such may well be the situation. Even though decided in a different area, cases such as Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 27 ALR 367, particularly the judgments of Bowen CJ at 375 and Deane J at 380-382 give some support to this. 37 The structure of the Act such as the MAC Act is to assume that the plaintiff will succeed however the Court has to assess whether there is a real chance of the verdict exceeding the barrier after considering the reduction for contributory negligence. Now if at the trial the statements of the bystanders is accepted there is a very great likelihood that the respondent was at least as culpable as the driver, probably more so, and it may be that a verdict of fifty per cent contributory negligence may be found, however that is not the question. The question is whether there is a real chance of the contributory negligence being assessed at forty per cent or less and it seems to me that that answer must be that there is a very real chance of that happening." 51A question which has not been decided in relation to s 109(3)(b) is which party bears the onus. That question is complicated by the general law requirement that contributory negligence is to be raised and proven by a defendant. No help is given on this question by Harika because as s 43A(7) MAA makes clear, the onus there is clearly borne by the defendant. 52I have concluded that in respect of s 109(3)(b) a plaintiff (in this case the respondent) carries the onus of establishing the matters therein set out. Section 109(3) is in the form of a prohibition rather than a grant. The leave of the court is not to be granted unless the two paragraphs are satisfied. Accordingly, in this case since a basis for a finding of contributory negligence exists, the respondent must establish that there is a real and not a remote chance or possibility of contributory negligence being assessed at 24 percent or less. 53I have concluded that there is a real chance of that happening and that the respondent has discharged the onus which she bears. 54On the respondent's evidence that would clearly be so. However, even on the matters raised by the applicant in his statement, while there might be a likelihood that a finding of contributory negligence of greater than 24 percent would be made against the respondent, there remains a real chance of contributory negligence being assessed at less than that amount. 55Leaving aside the speculative and inadmissible comment that the respondent was trying to beat the lights, the applicant's statement leaves many questions unanswered. It is not known where his car was at the time the lights changed to amber, e.g. was it still in the right turn lane or was he actually in the intersection? Were there other vehicles not referred to in his statement in the vicinity? Most particularly, was there a vehicle behind the respondent's vehicle which might have run into her unless she took some avoiding action? At what point in time, by reference to the movement of other vehicles, did the applicant commence to drive across the intersection in front of oncoming traffic? 56The COPS report is of only limited value since the origin of its content is unknown. It is not known whether the COPS report represents the conclusions of the investigating police officers drawn from their observations and from the statements which were taken. If it is based on other evidence, or evidence from other persons, the source, nature and reliability of that evidence is simply not known. 57In view of the uncertainties inherent in the available evidence as to liability, the potential range for a finding of contributory negligence against the respondent must be wide. If every inference adverse to the respondent capable of being drawn from the applicant's statement and from the COPS report were in due course established, the finding of contributory negligence could be as high as 50 percent. If, however, not all of those inferences were established and if only part of the respondent's statement were accepted, the finding of contributory negligence could be as low as the 10 percent assessed by his Honour. On the present state of the evidence, the respondent has established a real chance of contributory negligence being assessed at 24 percent or lower. 58There remains the issue raised in the respondent's Notice of Contention. 59I can see no reason in principle why a court in applying s 109(3)(b) cannot make its own predictive assessment of "likely" damages for non-economic loss even though an assessment of permanent impairment of more than 10 percent has not been made by a Medical Assessor in accordance with ss 131 and 132 MAC Act. This is particularly so when s 109(3)(b) will normally be invoked at an early stage in proceedings before any assessment of permanent impairment has taken place. 60For the Court to make such a predictive assessment in respect of non-economic loss there must be evidence available to enable that process to take place. Section 131 MAC Act provides "no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10 percent". Section 133 provides that the assessment of the degree of permanent impairment has to be made in accordance with the Motor Accident Authority Medical Guidelines or if there are no such guidelines, the American Medical Association's Guides to the Evaluation of Permanent Impairment, 4th ed. There are limitations to the extent to which psychiatric consequences of physical injuries can be taken into account. 61Unfortunately, the medical evidence in this case would not have allowed his Honour or this Court to make such a predictive assessment. The evidence of Dr Harvey and of Professor Kiernan was that the percentage of whole person permanent impairment of the respondent was nil. Dr McKechnie made a diagnosis of her disabilities, but made no assessment in percentage terms of her whole person permanent impairment. All that he did was to say that she had suffered "permanent impairment". 62Accordingly, although I am satisfied that it would be open for a court carrying out the predictive exercise required by s 109(3)(b) to take into account non-economic loss, even though a medical assessor had not made an assessment of whole person permanent impairment, there was insufficient evidence available in this case for that to be done. Conclusion 63It follows from the above analysis that even if leave to appeal were granted to the applicant, the appeal would not succeed. Accordingly, there is no need for this Court to consider the correctness of Reeves v Reeves. 64The orders which I propose are: (1) Leave to appeal is granted. (2) The appeal is dismissed. (3) The applicant is to pay the respondent's costs. 65TOBIAS AJA: I agree with Hoeben JA. ********** 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. Decision last updated: 04 July 2012