BUTLER v KORKIDAS [2008] NSWSC 1259 | Case summary

1 HIS HONOUR: This is an application for leave under s 109 of the Motor Accidents Compensation Act 1999. It has come before me as application's judge on assurances made by the parties, quite mistakenly, that it was a short matter. It has for all practical purposes taken a day and it will take somewhat longer by the time I deliver this judgement. I do not propose to enquire how it was that the error came about, but I take this opportunity to remind legal representatives to be scrupulous about predictions of time so that the Court may properly administer its workload. 2 I should say that I have been very much assisted by the candid approach of both counsel to the issues in this case, an approach which has enabled me to come to a clear view about how the application should be determined. To avoid further delay, even though it is passed the usual sitting time, I intend to give an ex tempore judgment. In the nature of things this judgment may not do justice to the helpful and thorough submissions which have been made on both sides by experienced counsel. 3 The claimant was injured in a motor vehicle accident on 15 August 2001, when his motorbike collided with a motor vehicle. There is no doubt that he suffered serious injury, the effects of which I am satisfied sufficiently for present purposes remained with him, and which are likely to cause him significant future impairment. There has been debate, not surprisingly, between the medical experts about precisely the extent of that impairment, but it must be remembered that such assessments as are required under the processes adopted by the Act are artificial in character and significantly unreal in terms of reflecting the actual impact of the injuries on the life of an ordinary person. For example, even a relatively low level chronic pain is a serious impairment not only of a person's enjoyment of life but their ability to wholeheartedly undertake employment which involves demands that may be, on occasions, quite substantial. 4 The injuries described by the claimant's doctors, and to some extent accepted by the defendant's experts, will make it as a practical matter very difficult for him to undertake a level of commitment to his present clerical work that could see him move eventually into middle management, an opportunity which, were he whole-bodied, I think he would have a reasonable chance of undertaking, although no doubt he will need some further training. He was, it appears, hopeful of joining the Australian Army and aspiring to a Commission. There is no suggestion in the evidence, though it is slight, that this was beyond his intellectual or physical capacity. Now, of course, it is beyond his physical capacity. I mention this to show that he aspired to more than low-level employment and there is nothing that suggests this aspiration was unreasonable. 5 Section 108 of the Act prohibits the commencement of court proceedings in respect of a claim such as the present one unless a certificate in respect of the claim has first been issued, whether to grant an exception or make an assessment. Proceedings in respect of a claim are by s 109 prohibited after three years has expired from the date of the motor accident unless leave is given by the Court in which proceedings are to be taken. Time does not run for this purpose until two months after one of the certificates has issued providing, of course, that the application had been made before the expiration of the three-year period. 6 The parties at the relevant time proceeded upon the basis that it was necessary to obtain an exemption certificate because the claimant's condition had not stabilised. It is not presently necessary to explain why this is so. Further, it appears that the solicitor in the employ of the claimant's solicitors who had carriage of the matter at the relevant time thought for some reason that process could not be undertaken until his condition had stabilised and, accordingly, did not make the application until after the three year period expired. The solicitor did not understand that it was essential to make an application either for an exemption or for an assessment before that period of three years had expired so that, whatever the outcome, a claimant might, if it were appropriate, commence proceedings without the leave of the Court if it were done within two months of the certificate being given. This misunderstanding, though unfortunate (and, I might say, arising from a less than satisfactory understanding of ss 108 and 109 of the Act) has had the consequence that the claimant now needs to seek the leave of the Court to commence the contemplated proceedings. 7 It is unnecessary for me to set out the detail of the evidence on this point. It is enough to say that I am quite satisfied that the error, with the consequent delay, was not of the claimant's doing. I accept his evidence that he understood that his lawyers were aware of the relevant limitations and were acting in a way which avoided the expiration of any relevant time limit. Regrettably, he was mistaken. 8 Section 109(3) prohibits leave being granted unless, firstly, the claimant provides "full and satisfactory explanation for the delay." This term is explained in s 66, which focuses on the failure of the claimant to act reasonably. It follows from the language of this section that the fundamental question is not directed to the conduct of the solicitor but to the conduct of the putative claimant (see Smith v Grant [2006] NSWCA 4). In this case, as I have said, I think the claimant acted as any reasonable person in his position would have. Accordingly, the first obstacle is overcome. 9 The second obstacle is somewhat more difficult to determine. This requirement is that the total amount of damages of all amounts likely to be awarded to the claimant if the claim succeeds be not less than 25% of the maximum amount that can be awarded for non-economic loss under s 134 as at the date of the relevant motor accident. The parties have agreed that the relevant sum is $67,750. 10 The latest medical report of Dr Milder, a specialist neurologist, of January 2006 gives as his opinion and prognosis the following: "OPINION I feel Mr Butler continues to suffer lumbar soft tissue and ligamentous injuries. "Irritability" of the fifth lumbar and/or the first sacral nerve roots on the right hand side is suggested. He continues to suffer thoracic soft tissue and ligamentous injuries. An intercostal neuralgia is suggested. He continues to suffer cervical soft tissue and ligamentous injuries. "Irritability" of the fifth and/or sixth cervical nerve roots on the right hand is suggested. He continues to suffer migrainous headache, that is post-traumatic. OUTLOOK The outlook remains uncertain. A reduction in lumbar, thoracic and cervical pain may take place with the use of appropriate analgesic and anti-inflammatory medication and physiotherapy. Nevertheless longstanding tendencies to lumbar, thoracic and cervical pain may remain. A predisposition towards the accelerated development of lumbar, thoracic and cervical spondylosis has resulted. Headache may diminish with appropriate prophylactic and analgesic medication. Nevertheless a longstanding tendency to headache may remain." 11 Dr Mahoney, an orthopaedic surgeon qualified by the claimant for the purposes of the litigation, has given the following opinion: "Mr Butler gave a history of sustaining a head injury. He has developed symptoms referable to a cervical strain with nerve root irritation affecting the upper limbs, I would consider the occipital headaches are referred from the neck and portion of the frontal headaches being referred from the neck and the remaining portion of headaches being associated with the head injury. He has sustained a fracture of the left distal radius. He has symptoms referable to a right medical epicondylitis in association with a generalised strain of the right elbow, a right De Quervain's tendovaginitis in associated with a generalised strain of the right wrist as well as a low lumbar back strain with nerve root irritation affecting the right lower limb as well as chondromalacia of the patellae, the right more so than the left and chondral injury to the trochlear of the right knee and a strain of the medial collateral ligament of the left knee. He also has symptoms referable to a generalised strain of both ankles and feet. He gave a history of sustaining multiple abrasions and bruising to his arms and legs. It is reasonable that his Activities of Daily Living has been lessened. It is also reasonable that he does have persisting symptoms and I would advise him to restrict his future activities not involving significant bending or lifting, excessive use of the upper limbs or significant walking climbing or squatting." 12 Professor Nade, an orthopaedic surgeon qualified by the defendants, noted the claimant's complaints and in relation to symptoms said he was unavailable to determine any significant underlying cause for them. He raised the speculative possibility that he might have what is euphemistically referred to as "an adjustment disorder". I would infer that Professor Nade did not think that the claimant suffered any continuing incapacity at all so far as work was concerned and, under this heading in his report of 7 October 2008, simply noted what the claimant told him about his work history. In his report of 13 November 2008 Professor Nade was very sceptical that there was any permanent impairment but reluctantly gave a "most beneficial assessment in respect of the lumbar spine of 5%". This appears to be in marked contrast to the opinion of the claimant's medical experts. 13 The assessment made by the Medical Assessment Service (MAS) did not cover the lumbar spine for reasons which are troubling so far as the conduct of the claimant's matter at that time by his solicitor is concerned. The consequence is that the present whole person impairment as certified is 4% deals only with the claimant's knees. It is likely that a re-consideration of this issue that deals fairly with the extent of the claimant's lumbar problems would exceed 10%. If this be right, then in any common law action the claimant's pain and suffering would have to come into account in any assessment of damages. 14 The claimant's economic loss, on the face of it, appears slight because he is presently earning and I think is likely to earn somewhat more than, as it happened, he was earning at the time of his accident. However, he was then a young man of 21, he had aspirations, and he was capable of hard work. I think it likely had he been the whole-bodied and of good health he would earn significantly more over his lifetime than would be assessed on the assumption that his income would remain much the same as he was receiving in 2001 or on the assumption that his earning capacity was substantially unimpaired. 15 The evidence upon this point is exiguous. I have relied upon my brief assessment of the claimant in the witness box and on the fact that he appeared from his work history since the accident to be hard-working. There is no suggestion of malingering in respect of work because of his injuries. As I have said, it is likely that a Court would accept continuing chronic pain of greater or lesser intensity is likely to adversely affect the level of work which, if he is to move forward in respect of any worthwhile activity, he would be able and required to undertake. 16 Part of the difficulty with accepting (although at all events I am not bound by it) the report of the assessor of the claimant's future economic loss is that it appears that no submissions were made to the assessor on the claimant's behalf; a baffling fact, but one which necessarily leads to doubts about the outcome of the process in the sense of assessing both sides of the claim. My own view, which is necessarily fairly rough and ready and based upon my own experience of cases of this kind, is that it is indeed likely that the claimant's economic loss will exceed the relevant sum. 17 The claimant's claim includes future medical care of various kinds on behalf of the defendant. The evidence relied upon by the defendant suggests no or very little allowance needs to be made under this head. However, Dr Barold, who specialises in occupational medicine, assesses the claimant's future needs as substantial over the long term. It is not necessary for me to do the mathematics for present purposes. Dr Mahoney considers that further treatment of the claimant is necessary, involving arthroscopies on each knee with chondroplasty, MRIs on the spine, physiotherapy massage and consultations amounting in all to almost $22,000. 18 Taking a practical and realistic approach to the question of damages likely to be awarded, on the assumption that liability is found, I am satisfied that the sum of $67,750 will be substantially exceeded. 19 Section 109(3) is in the form of prohibition rather than a grant. That is to say, leave of the Court is not to be granted unless the two paragraphs are satisfied. The question of whether leave should be granted is another question. Essentially, it is agreed that it should be granted if it is fair and just to do so. It has been fairly conceded by Mr Smith, counsel for the defendant, that he cannot point to any relevant prejudice of either a general or a specific character that might suggest that a trial would be other than fair. 20 In the result I am persuaded that leave should be granted to the claimant to undertake the envisaged proceedings. It is agreed that the appropriate order for costs is that the claimant must pay the defendant's costs of this application. 21 The defendant filed a notice of motion seeking to strike out the statement of claim which, it was agreed, would be heard together with the claimant's notice of motion. It is agreed that the appropriate order is to dismiss that notice of motion with no order as to costs.

BUTLER v KORKIDAS

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