Grewal v Khan [2013] NSWDC 61

District Court New South Wales

Medium Neutral Citation: Grewal v Khan [2013] NSWDC 61 Hearing dates: 19,20 March 2013 Decision date: 03 May 2013 Before: Judge Williams Decision: Verdict for Plaintiff Catchwords: MVA assessment - no matter of principle. Cases Cited: Ackling v QBE Insurance (Australia) Ltd 2009 NSWSC 881 MAA of NSW v Mills 2010 NSWCA 82. Kallouf v Middis 2008 NSWCA 61 Category: Principal judgment Parties: P: Inderdeep Grewal D: Solomon Khan Representation: P: Mr Lidden SC with Mr Khandhar D: Mr Catsanos Brydens Law Office for plaintiff Moray & Agnew for defendant File Number(s): 2011/381072 Publication restriction: Nil

Judgment 1The adversarial system is ill equipped to determine medical, economic loss and dependent care issues in personal injury cases. It is astounding over the years how convoluted and impenetrable have become the means by which judges are expected to decide such matters. Regardless of the attempts to codify the problems in legislation such as the Motor Accidents Compensation Act (MACA), the Civil Liability Act (CLA) and the Work Injury Damages Act (WIDA), a lay person reading appellate decisions on these issues, could be forgiven for thinking he or she had arrived in a foreign country in their attempt to understand the Byzantine depths of legal logic and English grammar that has accompanied the attempted rationalisation of the law in regard to such claims in ordinary litigation. 2Lawyers, undeterred by the legislation or case law, have thought up more and more devious ways of extracting money from insurers, especially in regard to dependant care services and economic loss, that has spawned its own industry of vested interests in the medical profession, including psychiatry and psychology, the rehabilitation professions and the many other professions, some of them criminal, that ride on the coat tails of human injury and misery. Economic loss and dependent care amounts often grossly outstrip the entitlement, if any, to "non-economic loss", which used to be called "pain and suffering", an expression most lay people understood. 3In the present case, the plaintiff's injuries do not entitle him to damages for pain and suffering because they do not meet the statutory threshold. Notwithstanding that, there is a claim for economic loss in the order of $580,000 and for dependent care services in the order of $350,000 plus past and future medical expenses of $200,000. The defendant's assessment of the value of this claim at its highest is $315,000 so that the plaintiff's figure was inevitably going to be a bridge too far. 4When any court is asked to give a judgement in regard to such large sums of money the expectation is that a concerted effort would be made to establish the plaintiff's entitlement or disentitlement to it and that the arguments, in favour of or against, presented in a logical, clear and understandable manner and not on hastily scribbled pieces of A4 which tends to suggest that the first real attention paid to such a serious issue was dependent on how the case panned out before the particular trial judge. This case took a day and a half including addresses. Of course there is no transcript. 5The presentation of the case involved the calling of Mr Grewal and his wife (Ms Cheema) and the tender of medical reports and other documentation, including a number of MAS assessments. Mr Lidden SC for the plaintiff submitted that I should not pay much attention to the MAS assessments because they are not expressed as being given subject to the court's expert code of conduct and the maker of the report is not subject to cross examination, and that goes to the value to be placed on such reports. I have previously expressed a view as to the use a court can make of MAS assessments having regard to a number of Supreme Court decisions. Whilst concerned with a different issue in each case, s61 has been considered and obiter dicta expressions as to the scope of the certificate have been made in Ackling v QBE Insurance (Australia) Ltd 2009 NSWSC 881 and also in MAA of NSW v Mills 2010 NSWCA 82. 6In the present case it is not necessary to decide the issue because whatever their status, the MAS assessments were tendered by consent. Further, like all the other medical reports tendered by consent, the makers were not required for cross-examination by either party. As to the MAS reports not being expressed to have been made in accordance with the court's expert code of conduct, they have probably been made under the more onerous regime of the MACA and in a more independent environment than the parties own medical reports. 7It has always been the law in both tort and contract, that a plaintiff has a responsibility to mitigate damages and cannot therefore expect to be compensated for damages where it reasonable to expect the plaintiff to have made some effort to help himself or herself. In the present case, although the plaintiff has not met the threshold of 10% WPI, the case run on his behalf is that he is essentially unemployable and unable to do any work around the family home that he was previously able to do.