Penney v Morris

District Court of NSW|2018-05-16

NOTICE OF MOTION

HIS HONOUR: The plaintiff was injured in a motor vehicle collision at the intersection of Borella Road and Young Street, Albury on 27 August 2010. Proceedings were commenced in this Court on the plaintiff's behalf on 4 April 2018, seven years and seven months after that collision occurred. The Motor Accidents Compensation Act 1999 ("MACA") s 109 provides this: 109 Time limitations on commencement of court proceedings (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, or (b) if the claim is made in respect of the death of a person - the date of death, except with the leave of the court in which the proceedings are to be taken. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued. (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. (4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.
The plaintiff now seeks, nunc pro tunc, the leave of the Court to commence these proceedings on 4 April 2018 by way of a notice of motion filed on 17 April 2018. The relief sought is strenuously opposed. The defendant accepts that the plaintiff has provided a full explanation for his delay, but tenders for my determination these issues: 1. whether the explanation be "satisfactory"; 2. whether the plaintiff's damages are likely to equal or be greater than the relevant statutory threshold, namely $131,750; and 3. implicit in tendering that issue is a challenge to the plaintiff's assertion that he is legally incapacitated because of his mental state, a challenge to the need for the appointment of his tutor, who is his wife.

Abbreviated Facts

On 27 August 2010, the plaintiff was driving from north to south along Young Street, Albury. He stopped at a red traffic control light. When that light turned green he proceeded through the intersection. The defendant, who was travelling in the opposite direction along Young Street attempted to turn right into Borella Road and collided with the plaintiff's vehicle. The plaintiff had been travelling at about 20 kilometres per hour prior to the collision. There is no issue that the defendant was "at fault". Liability has been admitted. There is no allegation of contributory negligence.
At the scene of the collision the plaintiff told his wife that he felt "dizzy". The plaintiff was interviewed at the scene of the accident by Senior Constable John Young. The senior constable recorded in his police notebook that the plaintiff complained about being "dizzy". The collision caused the airbags in the plaintiff's vehicle to be inflated. There is no evidence that the plaintiff struck his head on the steering wheel, the dashboard or the windscreen or any other part of his own motor vehicle. The plaintiff may well have been struck by the airbag.
An ambulance arrived within seven minutes of the notification to the ambulance service of the collisions occurring. The plaintiff was fully conscious on initial assessment by the ambulance officer. His Glasgow Coma scale reading was 15/15. The plaintiff remained fully conscious during the transfer to the Albury Base Hospital. The ambulance records indicate a complaint of spinal pain involving the cervical and thoracic spines. Abrasions were also noted to the plaintiff's left wrist.
Clinical notes at the Albury Base Hospital indicate that the plaintiff was complaining of a neck and back pain and tingling in the fingers of both hands but that paraesthesia resolved whilst the plaintiff was in the emergency department. On examination at the Albury Base Hospital it was noted that there was tenderness in the thoracic spine but not in the cervical spine. X-rays of the cervical spine, the thoracic spine, the chest and the left forearm were ordered. Other than displaying a congenital fusion of the C2/C3 disc space, no abnormality is described on any of those X-rays. There is no record of any complaint about a head injury or symptoms which could be related to a head injury other than those attributable to a complaint of pain in the cervical spine. There is no record of any complaint about the low back, that is the lumbar spine, or of any symptoms of that area of the plaintiff's body. There is no record of any contemporaneous complaint of either anterograde or retrograde amnesia.
On 30 August 2010, the plaintiff went to his general practice, the Gardens Medical Group, at Level 3, 470 Wodonga Place, Albury. He saw a nurse at that time. Four days later, on 3 September 2010, he saw Dr Adrian Kay who made what have been referred to as "minimal notes". He noted the X-rays taken at the hospital and referred the plaintiff to "Flex Out", a physiotherapy practice. The records of that physiotherapy practice have not been put before me, however they are summarised in a report/certificate of Dr Michael Long, bearing date 16 September 2013, following upon Dr Long's assessment of the plaintiff on 10 September 2013. According to Dr Long, the initial assessment by "Flex Out" physiotherapy was on 3 September 2010. An anatomical diagram indicated that the plaintiff's pain and tenderness was mainly involving the lower neck and the posterior upper chest and shoulders including the mid-thoracic spine just above the level of the apex of the scapulae. There is no indication that there was any lumbar spinal pain or any complaint in that area of the body. According to Dr Long, on 14 September, the notes of the physiotherapy practice record this: "Been sore - tried work 2/7 - unable to concentrate. NB. Short period loss of consciousness? Concussion…"
I do not know whether the suspension points given in Dr Long's report represent his inability to read the notes further or merely that Dr Long thought that the rest of the entry was not relevant.
On 7 October 2010, Dr Kay executed the medical certificate, attached to the plaintiff's claim form for motor accidents compensation. For the purpose of issuing that certificate, Dr Kay examined the plaintiff on that day. His diagnosis was "muscular strain neck and thoracic spine". His clinical findings were "tenderness neck and thoracic spine". He certified that the plaintiff had been unfit to work from 29 August until 20 September 2010 and that he was fit to resume his normal work on 21 September 2010, a period of at least two weeks prior to his examination on 7 October 2010.
According to Dr Long's report, the plaintiff again went to see "Flex Out" physiotherapy on 17 December 2010 and that practice noted "getting depressed since motor vehicle accident". I do know that the plaintiff on the same day, 17 December 2010 saw Dr Kay. The records of the Gardens Medical Group have not been put before me. One can find what occurred at Dr Kay's surgery on 17 December 2010 in the reports of Dr Harvey, Dr Brooder and Dr O'Neill. According to Dr O'Neill's report/certificate of 29 March 2017, the following occurred: "At consultation on 17 December 2010, Dr Kay noted Mr Penney was 'getting depressed since motor vehicle accident. Classical depression with mood swings, poor sleep, tears, mulling things over in the mind, inability to get motivated. Suicidal thoughts.' Mr Penney was referred for a mental health assessment and counselling was arranged. Mr Penney took Lexapro 10 milligrams daily for a short period before deciding not to continue with it."
According to the history obtained by Dr Harvey the plaintiff was referred to a psychologist, Mr Richard Brown on that occasion and the plaintiff saw Mr Brown three times.
I have referred to the certificate of Dr Kay, attached to the plaintiff's motor accidents claim form. The insurer of the defendant, the Transport Accident Commission of the State of Victoria acknowledged receipt of the plaintiff's claim form on 29 November 2010. The plaintiff's tutor, his wife, Mrs Karen Frances Penney in her affidavit sworn on 8 May 2018, says this: "5. I completed the claim form on behalf of Wayne and it was submitted to the Transport Accident Commission by me on 7 October 2010. On page 13, the following appears: '26. How do the injuries affect you now? Unable to perform normal work duties due to headaches, unable to focus or concentrate on tasks, muscular back pain and limited movement neck and arms.' At the time of completing the claim form we had not received any legal advice and it was not until we consulted with Mr Day [of Messrs Denniston & Day] in around March 2012 that we were provided with legal advice…. 7. We received a letter from the Transport Accident Commission dated 12 September 2011 requesting particulars. These particulars were provided to the Transport Accident Commission…"
The first particular requested by the TAC was the nature and extent of all injuries together with details of any present and/or continuing disabilities. The answer provided was this: "I suffered a suspected broken neck at the time of the accident. I sustained a sharp blow to the head; my forearms and wrists were badly bruised and grazed. I am still suffering from back and neck pains, the tips of my fingers are less sensitive and feel numb. I continue to suffer from depression and stress and I struggle to focus on problem solving."
12 The plaintiff's wife's affidavit contains this matter: "8. During the period from lodgement of the claim form with the Transport Accident Commission until we consulted with Mr Day we were hopeful that Wayne's injuries would resolve and he would be okay and there would be no need to bring a claim. That was the reason we did not contact a lawyer in the time before March 2012."
It appears from the plaintiff's wife's affidavit that the plaintiff himself made an "internet enquiry" on 31 August 2010. The details of that enquiry were this: "My wife and I were stopped at traffic lights and when the lights changed to green we proceeded forward in a southerly direction. A vehicle travelling north and turning east collided with our vehicle. Police and ambulance officers attended the scene, witness accounts were taken. Both vehicles were towed to a holding yard. The offending driver is claiming she is was in the wrong and is refusing to pay any costs or damages. She is not insured. What do we do?"
The reference to being "not insured" appears to be a reference to insurance for third party property damage. There is no suggestion that the defendant was not insured for compulsory third party insurance. This internet enquiry obtained a response from Ms Kristel Hacker of CMC Lawyers Pty Ltd practicing from 31 Market Street, Sydney. The second paragraph of the response from Ms Hacker is this: "Our firm was referred your recent accident internet enquiry as our firm specialises in motor accident claims. We are of the view that you have an excellent claim for injury damages against the driver of the at fault car. We can assist you in relation to both property damage and injury claims at no outlay to you."
The next paragraph gives advice about the property damage claim and thereafter the communication relates to a claim for personal injury damages. CMC Lawyers advised the plaintiff that they operated on a "no win, no fee" basis. They pointed out that the plaintiff was assured of not losing his case as he was not "at fault." The communication from Ms Hacker advised the plaintiff how to retain her firm to act for him. It is clear from the plaintiff's wife's affidavit that no response was made to CMC Lawyers because the plaintiff and his wife hoped that the plaintiff would recover from his injuries.
The plaintiff eventually consulted Mr Phillip Day of Messrs Denniston & Day of Wagga Wagga on 19 March 2012, about 18 months after the motor vehicle accident. Mr Day arranged for the plaintiff to be examined by a Dr Michael Gliksman, an occupational physician. Dr Gliksman examined the plaintiff on 5 July 2012. According to Dr Gliksman's report of 5 July 2012, the plaintiff's presenting problems were these: "Mr Penney complained initially only of cognitive difficulties and significant anxiety. The cognitive difficulties include difficulty 'focusing' and difficulty with memory. Mr Penney subsequently complained of physical symptoms including a gradual loss of dexterity in both hands which on further questioning corresponds to a gradual loss of touch sensation mainly in fingers served by the median nerve. The left upper limb is the more affected. Mr Penney also complains of intermittently present cervical, thoracic and lumbar pain, without radiation of those symptoms. No other symptoms are associated with this pain."
This is the first mention of any lumbar problem. At the top of page 3 of his report, Dr Gliksman says this: "Mr Penney states that initially he experienced widespread aching. However, gradually, symptoms became confined to the cervical spine and later to the thoracic and lumbar spine, as well as both hands. He also noted the gradual development of significant depressive symptoms. As indicated above, he trialled antidepressant medications but ceased taking those medications even though when asked he advised me that he still experiences significant depressive symptoms."
That latter history obviously refers to the prescription of Lexapro by Dr Kay on 17 December 2010, and the plaintiff's only taking that medication for a short period.
On physical examination, Dr Gliksman found a bilateral reduction in grip strength of the hands. He also noted paralumbar muscular spasm on lumbar extension, and asymmetry of lateral flexion to the order of three centimetres. Lateral flexion is bending towards the side. A difference of three centimetres is not particularly great. Dr Gliksman found that straight leg raising was 70 degrees on the left but 80 degrees on the right. Nevertheless, the stretch tests were negative bilaterally. He also found mild reduction in the strength of the right ankle deep tendon reflex. However, the plantar reflexes were bilaterally flexar. A reduction of straight leg raising on the left 70 degrees might indicate some problem on that side of the body, but the mild reduction in the strength of the right ankle deep tendon reflex might indicate a problem on the other side of the body. Dr Gliksman diagnosed bilateral carpal tunnel syndrome which he thought had developed as a result of the motor vehicle accident now in question. No one else is of that view. How a motor vehicle accident could cause bilateral carpal tunnel syndrome is completely unexplained and is quite inexplicable. Of more significance, Dr Gliksman diagnosed sciatica which is a term used to describe pain in the legs caused by nerve root irritation in the lumbar spine, which Dr Gliksman described as "affecting the thoracolumbar spine" which is, if taken literally, bizarre. However, I understand Dr Gliksman to be saying that the sciatica was caused by a problem in the lower part of the spine. According to Dr Gliksman that amounted to a 15% whole person impairment (WPI).
There is no suggestion made by Dr Gliksman that the plaintiff was incapable of giving him an adequate history or that the plaintiff was unable to manage his own affairs in any way.
Armed with Dr Gliksman's report, the plaintiff's solicitors served it on the TAC and sought a concession that the plaintiff's WPI exceeded 10%. The significance of that, of course, is that if the defendant conceded that the plaintiff's WPI exceeded 10% the plaintiff would be entitled to damages for non economic loss. That prompted the TAC through its solicitors, Messrs Holman and Webb to qualify Dr Frank Harvey, a well-known orthopaedic surgeon. Dr Harvey examined the plaintiff on 26 September 2012. Under heading "present complaints" Dr Harvey recorded this: "He says that his condition has improved but he still complains of pain in the neck and back. He says he gets pain in the neck which radiates down between the shoulder blades but not into the upper limbs. The pain is brought on by head movement, prolonged driving and working with the arms extended out in front of him. He also complains of pain over the front of both elbows. He says that this is brought on when he uses a power drill and also when he's using hand tools. He says he gets occasional pins and needles in the palm and in the front of all digits of both hands, which troubles him more during the day than the night. He says that the palms of the hand feel painful and cold, especially in the winter weather. He says he gets numbness in the tips of all digits of both hands. He makes no complaints in relation to the forearms. He says that since late 2011, or early 2012 he has been experiencing some low back pain. He says that there has been no further injury. He says that his pain is brought on by prolonged standing and bending. He says that he normally doesn't do any heavy lifting which is all done mechanically. The pain is not made worse by coughing. Sometimes it keeps him awake. He makes no complaint of paraesthesia in the lower limb. He says he tends to get pain in various areas now when 'I overcompensate'. When asked about the meaning of this, he says that when he tries to avoid using one area because of pain he tends to get pain elsewhere in his body. He says that some of his problems about getting back to his full pre accident work have been in relation to concentration and he says that he can no longer work out how to go about a job as readily as before. He says he has put on about 10kg of weight since the accident. He complains of depression but says that this has improved."
Dr Harvey also records the plaintiff's past. I am going to record what Dr Harvey records in that regard because it appears to me to be quite inconsistent with a more recent allegation of the plaintiff that his memory has been affected by this motor vehicle accident. The past history is this: "He says he has had some low and upper back stiffness over the years when he has overdone it. He says that he has never had an X-ray of his back nor seen a doctor and had no active treatment. He says he hasn't had any previous injuries or disability affecting the neck or the right upper limb. In [about] 1990 he suffered a fracture of the left scaphoid and was treated in a plaster and made a complete recovery. This followed a motorbike accident but he had no claim in relation to this. In 1987, while employed by Australia Post, he was riding [a] motorcycle during the course of his work and was involved in a collision with a car. He suffered a fracture of the left ankle and had an open reduction and internal fixation. The metallic implants were later removed. He was off work for six or seven months and he says that he has had some residual stiffness in the ankle since but it isn't troubling significantly. He did receive an out of court settlement in relation to this. He has had no other Worker's Compensation, road traffic accidents or personal injury claims. He has had no problems with depression or anxiety. He had a left inguinal hernia repair in about 2000 but this was not the subject of any claim. He has had no other operations or illnesses."
On the material before me there could be no other source for that past medical history than the plaintiff himself. In my mind it establishes the plaintiff's memory was good when examined by Dr Harvey on 26 September 2012.
For the sake of brevity, I shall not quote Dr Harvey's findings on examination of the cervical and thoracic spines and the upper limbs or of the lumbar spine. The diagnoses provided by Dr Harvey were of a soft tissue injury to the neck and the upper back and some abrasions to the forearms. Dr Harvey was of the view that the plaintiff's low back problem was unrelated to the motor vehicle accident of 27 August 2010 because symptoms in the low back only came on "approximately 12 months after the accident". He based that opinion on what the plaintiff himself admitted to the doctor. Furthermore, that opinion of Dr Harvey is supported by the medical evidence I have cited thus far where the first reference to low back pain is in the report of Dr Gliksman who examined the plaintiff on 5 July 2012, well over a year after the motor vehicle accident. Dr Harvey, in essence believed the plaintiff had recovered from the effects of the motor vehicle accident and thought that there was no whole person impairment.
One can understand, therefore, that the defendant through her insurer would not accept that the plaintiff was entitled to a concession that he had suffered WPI of more than 10%.
On 29 September 2012, three days later, the plaintiff was involved in a motorcycle accident. No other vehicle was involved. This event is not recorded in the plaintiff's agreed chronology which is exhibit C-C. A good guide to what may have happened at the time is contained in other medical records, in particular in the report/certificate of Dr John O'Neill of 29 March 2017. That says this: "There was a motor bike accident on 29 September 2012. The ambulance report states 'patient sitting on roadway with bystanders present who found rider in that position, stating he was drowsy. Patient complained of neck, back and chest pain. Patient stated he does not know how/why he came off motorbike. Patient states he looked at watch just before going around corner where he was found. Patient states after getting up he urinated then was woken by bystanders'. At the time it was felt he was 'orientated to date but amnestic to event and drowsy'. The GCS [Glasgow Coma Scale] was 14/15 on three occasions at the scene and this was because he was felt to be 'confused'. At Albury Hospital Mr Penney was able to tell a doctor that he accelerated as he came out of the corner and lost control. He came off the bike and onto the road then into a ditch. He walked back to the bike and sat on the side of the road. It was noted that he had been wearing a helmet. There was no indication of a head injury. A CT brain scan was normal."
Assuming that Dr O'Neill has correctly quoted the records of the New South Wales Ambulance Service and the Albury Hospital, then the following should be noted: firstly, the plaintiff conceded at the hospital that he had lost control of the motorbike: there was no suggestion at that time that the plaintiff somehow lost consciousness or in some way lost control of his senses such that he could not adequately control his motorcycle; secondly, there was greater evidence of a head injury on this occasion than there was in the accident of 27 August 2010: at least on this occasion the plaintiff's GCS was affected, and the ambulance officers found evidence which led them to believe the plaintiff was "confused".
After this motorcycle accident, the plaintiff went back to see Dr Kay. Dr Kay's attendances upon the plaintiff are recorded in Dr Long's report/assessment of 10 September 2013. According to that report, the plaintiff saw Dr Kay on 3 October 2012 and his notes record this: "Motorcycle accident on 29/09/12 grazes right hand, elbow and left hand. Complaining of right chest pain consistent with right costal cartilages 3-5 anteriorly…"
Plaintiff saw Dr Kay again on 7 October 2012 and Dr Kay then noted that the plaintiff's cervical spine and thoracic spine had improved. The plaintiff went back to see Dr Kay on 19 October 2012. The notes say this, according to Dr Long: "Still pain lumbosacral spine and intermittent bilateral sciatica mainly right-sided. Also getting paraesthesia tips of his fingers since the accident…"
Dr Long, in his report, indicates that that was the first time there was a complaint of lumbar spinal pain to Dr Kay.
On 22 October 2012, there was performed an MRI scan of the plaintiff's lumbosacral spine. I infer that that was ordered by Dr Kay. According to a report of Dr Ron Brooder of 29 January 2014, the MRI scan of the plaintiff's lumbosacral spine reported that: "…at the L4-5 level there was a central disc protrusion which compressed the thecal sac. It was in contact with the right descending L5 nerve root and compressed and displaced the left descending L5 nerve root. There were facet joint degenerative changes but no global canal or focal bony lateral recess stenosis. At the L5-S1 level there was minor loss of disc height and loss of disc signal intensity. There was a shallow central disc protrusion with a small associated high signal intensity annular tear. The disc protrusion was just in contact with the descending S1 nerve roots bilaterally. There were facet joint degenerative changes but no global canal or focal bony lateral recess stenosis. The conclusion was disc protrusion at L4-5 compressing the thecal sac, in contact with the descending right L5 and displacing the descending left L5 nerve roots. Small disc protrusion at L5-S1 in contact with the descending S1 nerve roots bilaterally."
Dr Kay referred the plaintiff to Dr Ron Brooder who is a consultant neurologist practicing at Albury. It is clear to me that Dr Brooder wrote a report to Dr Kay which has not been put into evidence but has been extensively quoted by Dr O'Neill in his report/certificate of 29 March 2017. In that report Dr O'Neill says this: "Dr Kay arranged a consultation with Dr Ron Brooder (neurologist) on 25 October 2012. Dr Brooder obtained the history that since the motor vehicle accident of 2010, Mr Penney had been prone to 'an intermittent impairment in his concentration without any definite alteration to his conscious state. His wife had noticed that when driving and due to a loss of concentration, he would tend to veer from the roadway. Several weeks ago, and for no apparent reason, he had fallen from his motorcycle and sustained a further period of impaired consciousness. As a result of his impaired concentration he was also having memory difficulties.' Dr Brooder felt 'Mr Penney's episodes are somewhat unusual and appeared to be related to impaired concentration. I did question the possibility of an underlying post-traumatic stress disorder'. Dr Brooder arranged an MRI/MRA brain scan on 2 November 2012, which was normal. Mr Brooder arranged an EEG on 25 October 2012 which reported some background slowing and intermittent 'transient episodes of increased low to moderate voltage semi-rhythmic theta slow wave activity through the left central temporal and anterior regions'. There was no epileptiform activity. On 15 November 2012, Dr Brooder suggested it might be worth Mr Penney undergoing neuropsychological evaluation."
On 3 January 2013, Mr Day requested clinical notes from Dr Brooder and further clinical notes from Dr Kay's practice. Armed with those records on 19 February 2013, Mr Day asked Dr Gliksman to comment on the new material. Dr Gliksman provided a supplementary opinion on 5 March 2013. In essence, Dr Gliksman confined his opinion to the MRI scan of the lumbosacral spine performed on 22 October 2012, albeit he erroneously appears to refer to it as being dated 25 October 2012. That confirmed Dr Gliksman in his view that because of lumbar radiculopathy or sciatica, the plaintiff had a WPI of 15%. He also recommended "strongly" that the neuropsychological studies referred to by Dr Brooder be performed.
That led Mr Day to make an application for an assessment of the plaintiff's permanent impairment to the MAS. That led to the Motor Accidents Authority's appointing Dr Michael Long as the medical assessor. Dr Long examined the plaintiff on 10 September 2013 and provided a report or, as it is referred to, a certificate on 16 October 2013. It is clear that provided to Dr Long were not only the reports of Dr Gliksman and Dr Harvey but also other earlier medical records which have not been put before me. I mean no criticism by that comment. The parties sought to minimise the material that I had to digest for the purpose of ruling on this application. But sometimes that can lead to mischief in that I have to rely on secondary versions of what are often contemporaneous medical reports.
As with Dr Harvey, the plaintiff gave Dr Long a history of his past health. The details the plaintiff gave are very similar to those given to Dr Harvey but the dates are different. According to Dr Harvey there was a fracture of the left scaphoid in about 1990, but the plaintiff told Dr Long that it happened in 1985. The left ankle fracture according to Dr Harvey occurred in 1987 but according to the history given to Dr Long that occurred in 1984. Both doctors have a history of the plaintiff's sustaining an inguinal hernia in 2000, but according to Dr Harvey it was a left inguinal hernia but according to Dr Long's history it was a right inguinal hernia.
The purpose of the MAS assessment made by Dr Long was essentially because of the allegation that the plaintiff had a WPI of 15% because of the condition of his low back. Dr Long agreed with the opinion of Dr Harvey that the complaint of low back problems was a late complaint which indicated to Dr Long as it had to Dr Harvey that the plaintiff's low back complaints were unrelated to the motor vehicle accident now in question. In particular Dr Long appears to have been moved not by the contemporaneous histories recorded by Dr Harvey, but by the fact that the plaintiff's first recorded complaint of a low back problem to his general practitioner, Dr Kay was not until 3 October 2012, after the motorcycle accident of 29 September 2012. However, that ignores the fact of earlier complaints of low back problems, both to Dr Gliksman and Dr Harvey.
Dr Long accepted that the plaintiff sustained soft tissue injuries to his cervical and thoracic spine and that he sustained some abrasions to his arms but those abrasions had long since resolved. Dr Long believed the plaintiff had suffered from "probable depression/anxiety" and that that was not related to the injury in question, namely motor vehicle accident of 27 August 2010. Dr Long did not accept that the low back condition diagnosed as a protrusion at L4/5 contacting both descending S1 nerve roots was causally related to the motor vehicle accident of 27 August 2010. Dr Long believed that the plaintiff's symptoms in his neck and thoracic spine were considered to be permanent and unlikely to change substantially and by more than 3% in the succeeding 12 months with or without medical intervention. In Dr Long's assessment there was no WPI. However, he appears to have accepted that there may have been ongoing symptoms in the cervical and thoracic spine causally related to the motor vehicle accident of 27 August 2010.
The assessment of Dr Long was published in his certificate/report of 16 September 2013. On the following day, the plaintiff saw Mr Peter Rawlings, a clinical neuropsychologist practicing at St Vincent's Clinic in Darlinghurst. The appointment had been made by the plaintiff's solicitor, Mr Day. The appointment must have been made well prior to 17 September and I assume that it followed upon Dr Gliksman's recommendation of 5 March 2013, which appears in itself to have been based upon what Dr Brooder suggested to Dr Kay on 15 November 2012. Mr Rawlings stated this under the heading, "Clinical presentation": "Mr Penney sat awkwardly in his chair and constantly shifted posture in a manner suggesting that he was in considerable discomfort. However, he appeared in reasonably good humour and was fully cooperative with the assessment process. Speech was normal in form and flow and he was able to provide a reasonable history."
The first sentence of that quotation indicates to me that the plaintiff was in considerable physical discomfort. The following two sentences appear to me to suggest that the plaintiff was able to give an adequate history and do not suggest the plaintiff was mentally incompetent.
I ought to have adverted to the fact that heretofore no medical practitioner who had seen the plaintiff had any doubt as to the plaintiff's ability to give an adequate history or an adequate explanation of his own symptoms. No medical practitioner up until this time and, as I shall seek to point out, after this time was in any doubt as to the plaintiff's mental competence to manage his own affairs or to give adequate histories or to respond meaningfully to a doctor's questions, or for example, directions at an examination.
As neuropsychologists are wont to do, he applied a number of standard testing procedures. Mr Rawlings' summary and conclusions are these: "The neuropsychological assessment identified a global memory impairment of moderate degree and a marked slowing in his rate of thinking or information processing. Basic intellectual functions and higher level executive skills were reasonably well maintained and screening for simulated memory impairment was clearly negative. The question then arises as to the cause of the memory and information processing speed deficits. The head injury sustained in the accident would be rated on the basis of coma/PTA duration as minor and subsequent CT and MRI scans have failed to produce any evidence of post head injury damage to the brain. He has complained of what would appear to be brief absences and an abnormality was evident in his EEG but the opinion of Dr Brooder the absences were unlikely to be epileptic in origin. The pattern of cognitive deficit seen on testing could be consistent with alcohol related brain damage. Mr Penney's local doctor expressed some concern about his alcohol consumption in 2002 when Mr Penney was being investigated for hypertension. Since then, Mr Penney has moderated his alcohol intake and there were no further references to issues related to alcohol consumption in the GP records which run to January 2012. It seemed highly unlikely that his cognitive deficits were alcohol related. He was reporting high levels of depression, anxiety and stress but the cognitive deficits were too specific to be attributable to mood disorder. Mr Penney impressed as a reliable witness and he maintained that the problems with memory and concentration were only apparent to him after the subject accident. In the absence of any other likely cause, the head injuries sustained in the accident probably does emerge as the more likely cause of his cognitive deficits. Having said this, it had to be conceded that it would be unusual to see such significant cognitive impairment arising from a head injury of the severity of that sustained by Mr Penney. I would suggest you provide Dr Brooder with a copy of my report and ask his opinion on these issues. I would also suggest that Mr Penney undergo a review neuropsychological assessment in 12 months' time with a view to excluding any progressive neurological illness."
Mr Rawlings went on to diagnose a WPI of 20%.
There was a follow up consultation by Mr Rawlings on 25 November 2014 when Mr Rawlings made in essence the same assessment. His summary and conclusions after the second examination are these, leaving aside his reiteration of his WPI assessment: "There have been some minor variations in performance across testing but the changes were small and not of any clinical significance. There was certainly no evidence of any progression in his cognitive deficits over time. The head injury sustained in the subject accident was of a low order of severity and this being the case, seemed an unlikely cause for the cognitive deficits. However, the current results exclude a progressive neurological disorder unrelated to the head injury and I was unable to identify any other casual cause for these cognitive deficits, aside possibly for his alcohol consumption. However, the stability of his cognitive deficits over time favour brain injury over alcohol as the cause. Certainly, Mr Penney insists that the problems with memory and concentration only became evident to him after the accident."
Mr Rawlings was subsequently asked by the plaintiff's solicitor to clarify his opinion on causation. The need for such clarification does not appear to me to have been necessary. Based merely on what I have quoted thus far there were a number of possible causes for the deficit identified by Mr Rawlings. They are firstly alcohol related brain damage, secondly, a progressive form of dementia and thirdly, secondary to a psychiatric illness, or fourthly due to some organic brain damage. Mr Rawlings was persuaded that the alcohol related brain damage could be excluded. The results of his first and second testing revealing little change indicated to Mr Rawlings that there was no progressive dementing process taking place. Mr Rawlings excluded in his first report the deficit being secondary to some psychiatric illness because "the cognitive deficits were too specific to be attributable to mood disorder". That left only the possibility of organic brain damage, and, based only on history, not on any other objective fact, Mr Rawlings identified the motor vehicle accident of 27 August 2010 as the likely cause of the brain damage.
However, it appears to me to be mere speculation at most that the plaintiff sustained a brain injury on 27 August 2010, and Mr Rawlings has proceeded on the well-known fallacy that post hoc ergo propter hoc. Mr Rawlings' opinion is not supported by many other practitioners. For example, both Dr Brooder, a neurologist, and Dr Sutton, a neurologist qualified by the defendant, appear to accept that the deficit identified by Mr Rawlings could be secondary to a psychiatric problem. However, a psychiatrist qualified by the plaintiff, Dr Julian Parmegiani who diagnoses an adjustment disorder with mixed anxiety and depressed mood does not accept that the plaintiff has any organic brain damage.
In his recommendation for future treatment, Dr Parmegiani said this: "Mr Penney would benefit from up to 18 sessions of specialist psychiatric treatment, and antidepressant medication. A reduction of his anxiety would lead to improvement of cognitive function. Mr Penney will need to be persuaded that he has not suffered permanent brain damage as a result of a motor vehicle accident of 27 August 2010."
Dr Parmegiani then went on to point out the cost of the treatment that he had recommended.
When pressed for "elucidation" of his opinion as to causation of the plaintiff's cognitive deficit, Mr Rawlings said this: "Mr Penney has complained of a deterioration in his memory and powers of concentration since this accident and a neuropsychological assessment conducted in this practice in September 2013, certainly confirmed the presence of a significant, global memory impairment and a slowed rate of information processing. However, the head injury itself seemed relatively mild when assessed in terms of the conventional severity criteria. Coma/PTA duration was a matter of 10-15 minutes and CT and MRI scanning has failed to identify any post-traumatic changes in the brain. This led to a consideration of other possible causes for the cognitive deficits. Mr Penney had been cautioned about his alcohol intake in 2002 when being investigated for hypertension but he maintained that he had moderated his alcohol consumption since then, confining his drinking to the weekends. Moreover, there was no further reference to any issues with alcohol in his GP records after 2002. He was reporting high levels of depression and stress at the time of the 2013 assessment but the cognitive deficits were considered too specific to be explained by mood disorder. Extensive screening for deliberate under-performance on memory testing was clearly negative. Another possible cause for the cognitive deficits that was considered was a progressive dementia unrelated to the accident. To escape this possibility, a review assessment was arranged in December 2014. Fifteen months separated the two assessments and if Mr Penney had some form of dementia, it was reasonable to expect that there should be a decline in his test performance on re-testing. In fact, there was no evidence of any further decline in his memory or in other cognitive processes. His alcohol consumption had increased in the period between assessments (2-6 cans per day) but this did not appear to have any effect on his test performance. Depression and anxiety levels were still elevated but improved since the initial assessment. Again, screening for 'faking bad' on testing was clearly negative. On the basis of all this evidence, I was led to conclude that it was more probable than not that it was the head injury sustained in the subject accident that was the cause of the deficits in memory and speed information processing, apparent on neuropsychological testing."
That reinforces what ought to have been apparent from the earlier reports. I shall merely observe that the second testing was on 25 November 2014 and not in December 2014 as the report of 29 June 2015 suggests.
Mr Rawlings' first report bears date 23 September 2013. It is unlikely that it was received by the plaintiff's solicitor on that day. On 25 September, Mr Day sent a letter to Dr Gliksman enclosing the report/certificate of Dr Long and asking Dr Gliksman to advise if he could perceive any error in the certificate. The plaintiff's solicitor served Mr Rawlings' report of 23 September 2013 on the defendant's solicitor on 2 October 2013 indicating to me that it is likely that Mr Rawlings' first report was not received by Mr Day until October 2013. Again, Mr Rawlings' report was served upon Messrs Holman Webb on 13 November 2013 some six weeks later seeking a concession of 10% WPI at least. That led to the defendant's qualifying Dr Ian Sutton, a consultant neurologist at the St Vincent's Clinic.
Dr Sutton saw the plaintiff on 15 January 2014 and generated a report bearing that date. Amongst other things Dr Sutton questioned the plaintiff about the motor vehicle accident now in question. The plaintiff told Dr Sutton that he did not think that he lost consciousness in the motor vehicle accident and he could recall the airbags being deployed. The plaintiff told Dr Sutton that he alighted from his vehicle but felt unsteady. According to Dr Sutton, the plaintiff had a "reasonable recollection of events at the scene of the motor vehicle accident." In addition to the history of the plaintiff's taking Lexapro for a short period after 17 December 2010, Dr Sutton noted that the plaintiff was commenced on Zoloft by Dr Kay on 19 November 2012 but that was stopped in the following month because of drowsiness, and the plaintiff was then put back onto Lexapro. In January 2013, the depression, according to Dr Sutton's report, had improved and the plaintiff's concentration was better and Lexapro was stopped and the plaintiff was put on Pristiq.
Dr Sutton carried out a detailed neurological examination which he thought was "unremarkable" except for a reduced sensation to pinprick affecting the second and third digits of the right hand. The significance of that the doctor does not comment upon nor is it evident to me. It does not appear to represent either the distribution of the median or the ulnar nerve in the hand. Dr Sutton believed that the MRI scan of the brain and the cervical spine of 2 November 2012 were within normal limits. He thought that the single area of T2 hyperintensity in the deep white matter of the left frontal lobe was not abnormal. The relevant part of Dr Sutton's opinion is this: "Mr Penney reports cognitive deficits since the motor vehicle accident. However, there is no significant alteration in consciousness associated with the accident, there is no history of significant post-traumatic amnesia and there are no abnormalities on cerebral imaging. Therefore, I do not think that the described cognitive deficits can be causally linked to the mild head trauma which would have been sustained in the motor vehicle accident. Although Mr Rawlings suggests that the identified cognitive deficits are too specific to be attributed to the mood disorder, I think it is most likely that Mr Penney has a depressive pseudo-dementia, as the cause of the described cognitive symptoms. I do not think there is any evidence for cerebral trauma that could have caused the reported symptoms of cognitive impairment or mood disorder."
Later in the report he points out that in his view the MRI imaging of the brain was within normal limits and the EEG finding was "non-specific". In essence, Dr Sutton believed the plaintiff was suffering from a "mood disorder" which might be causing the incapacity for work alleged by the plaintiff.
On 24 January 2014, shortly after Dr Sutton made his report, the plaintiff obtained a report from Dr Ron Brooder. Dr Brooder's first medico-legal report bears the date 29 January 2014. In that report Dr Brooder said this: 'As a result of the motor vehicle accident that had occurred on 27 August 2010, Mr Penney may have sustained a minor closed head injury. He also sustained an aggravation to the degenerative changes involving his lumbosacral spine and his cervical spine. Subsequently, Mr Penney developed a post-traumatic stress disorder associated with anxiety and depression. The secondary psychological changes have been associated with impaired concentration and memory disturbance. The neuropsychological assessment of Mr P Rawlings, dated 23 September 2013…identified a global memory impairment of a moderate degree and a marked slowing in his rate of thinking or information processing. Mr Penney reported high levels of depression, anxiety and stress and it was considered that the cognitive deficits were too specific to be attributable to the mood disorder. I would consider that Mr Penney's progress would depend upon effective treatment of the secondary psychological changes. At the time of his most recent review on 15 November 2012, he was not undergoing any specific treatment in the management of his secondary psychological changes. It was not known if since that time he had undergone any further treatment to address the secondary psychological changes."
The inference I draw from reading Dr Brooder's report is that he believed, despite the opinion of Dr Rawlings to the contrary, that the plaintiff's cognitive problems were secondary to a psychiatric condition which he diagnosed as post-traumatic stress disorder (PTSD).
It should be noted that by this time the three year limitation period prescribed by s 109 of MACA had expired. The three year limitation period expired on 27 August 2013. On 21 November 2013, Messrs Holman Webb wrote to Messrs Denniston & Day disputing the plaintiff's allegation that he sustained a head injury in the motor vehicle accident now in question. The letter ends, "We assume that you will lodge a MAS." That appears to me to be a form of reminder or goad for the plaintiff's lawyers to do something to advance the plaintiff's motor accident claim.
On 18 August 2014, Messrs Holman Webb again wrote to the plaintiff's solicitors. In that letter Holman Webb said this: "We refer to previous correspondence and note that we have not heard from you in relation to this claim for several months. We understood that the claimant was going to lodge an AMAS application. We note the accident occurred four years ago. Could you please advise the current status of the claim."
The defendant's solicitors again wrote to Denniston & Day on 10 November 2014. The opening line of that letter refers to a telephone conversation between Mr Wholohan of Messrs Holman Webb and Mr Day of Messrs Denniston & Day. The letter then continues thus: "We advise that it may be intended to lodge an application for medical assessment in respect of the claimant's alleged head injury. Could you please advise if it is intended to do so and when the application will be lodged?"
It ought to be apparent that in the meantime the plaintiff was awaiting a second examination by Mr Rawlings approximately a year after his first examination and we do know that the second examination took place on 25 November 2014.
On 7 December 2014, the plaintiff's solicitors served a copy of Dr Rawlings' second report upon Messrs Holman Webb. However, nothing then occurred, according to the chronology provided to me by the plaintiff, until 18 June 2015 when the plaintiff's solicitor wrote to Mr Rawlings asking him to confirm his opinion that it was more probable than not that the cause of the plaintiff's WPI of 20% was the accident of 27 August 2010. In my view it was completely unnecessary to obtain that report because it is apparent from the earlier two reports that that was Mr Rawlings' opinion. On 19 June 2015, the plaintiff's solicitor wrote to Holman Webb asking them to concede that the the plaintiff's WPI exceeded 10% based upon the opinion of Mr Rawlings expressed in his report of 5 December 2014. As one could easily have imagined that concession was not made. The defendant's confirmation that it would not make the concession was conveyed to the plaintiff's solicitor by Holman Webb on 22 June 2015; that is three days after the letter seeking the concession. The letter of 22 June 2015, says this, "We assume that you will lodge an AMAS application," again, a prompt to action. At the end of the letter Holman Webb pointed out the plaintiff had not yet provided particulars pursuant to s 85A of MACA.
In the meantime, the plaintiff's solicitor was writing letters to Dr Brooder requesting further reports. In a report dated 28 July 2015, Dr Brooder said this: "At the time of reassessment of Mr Penney on 29 May 2015, it was considered possible that the sensory disturbance involving his hands was related to mild brachial plexus contusion which had occurred at the time of the initial motor vehicle accident on 27 August 2010. It is certainly possible that at the time of the motor vehicle on 27 August 2010, Mr Penney may have also sustained a minor closed head injury. Subsequently, he developed a post-traumatic stress disorder associated with an anxiety and depression. The secondary psychological changes had been associated with the impaired concentration and memory disturbance. Mr Penny had undergone neuropsychological assessment and I would refer to the neuropsychological reports of Mr P Rawlings, dated 23 September 2013, 5 December 2014 and 29 June 2015 for the details. Neuropsychological assessments had identified a significant global memory impairment and a slowed rate of information processing. It was considered less likely that the abnormalities identified were alcohol-related and were considered to be too specific to be explained by a mood disorder. It was concluded that it was more probable than not that the head injury sustained in the subject accident was the cause of the deficits in memory and speed of information processing. Although Mr Penney had been able to return to further employment as a maintenance fitter, apparently he is limited to working on only a part-time basis for approximately 30 hours each week. I would consider that whilst his current symptoms persist, that he has only a limited capacity for employment and he is restricted to only part-time employment. Should any additional details concerning Mr Penney's neurological condition be required or should any further clarification of the details of my medical reports become necessary then this could be provided at your further written request."
The plaintiff's chronology, exhibit C-C, quotes Dr Brooder's report, quotes the comments of Dr Brooder selectively, suggesting that Dr Brooder's report was such that Dr Brooder was of the opinion that it was more probable than not that the head injury sustained in the accident of 27 August 2010 was the cause of the deficits identified by Mr Rawlings. However, it is clear that Dr Brooder was merely recording the opinion of Dr Rawlings. Dr Brooder's own opinion appears in the second paragraph of what I quoted, that the secondary psychological changes had been associated with the impaired concentration and memory disturbance. In other words that they were caused by a psychological or psychiatric condition rather than by organic brain injury.
On 29 July 2015, that report of Dr Brooder was served upon Messrs Holman Webb. The next thing that appears to have occurred was an incident at Falls Creek. The plaintiff was involved in a motor vehicle accident in which his car was, to use the vernacular, "rear ended". There appears then to have been a contre-temps between the plaintiff and the driver of the other vehicle, in which the plaintiff was assaulted. However, there is no suggestion the plaintiff was injured in that incident.
In October 2015, I am told, albeit that it was referred to medical reports as being in August 2015, the plaintiff sustained a myocardial infarction. One can accept that the events of 23 August 2015 and the myocardial infarction may have set back the progress of the plaintiff's claim.
On 18 December 2015, the plaintiff lodged an application to MAS for a permanent impairment dispute. On 5 January 2016, MAS rejected the application for medical assessment as "the incorrect form has been used". One would think that the immediate reaction to that would be to complete the correct form and submit it. However, that was not done. The further application for permanent impairment dispute was not lodged until 3 August 2016, seven months later. This delay is completely unexplained.
In the meantime, the plaintiff's solicitor arranged for the plaintiff to be examined by Dr Julian Parmegiani, a consultant psychiatrist. I have already referred to his opinion. Dr Parmegiani's report was not initially put before me by the plaintiff, but only after certain submissions were made by Mr Rewell SC on behalf of the defendant did the plaintiff's lawyers believe it prudent to put Dr Parmegiani's report before me. As I pointed out earlier, Dr Parmegiani diagnosed an adjustment disorder with mixed anxiety and depressed mood. He did not accept the plaintiff had suffered PTSD or an episode of major depression. Dr Parmegiani thought that the plaintiff's anxiety had undermined his concentration and the plaintiff required treatment in particular to disabuse the plaintiff of the perception that he'd suffered from permanent organic brain damage which essentially was the opinion of Mr Rawlings. It appears that Dr Parmegiani's report had never been served upon the defendant's solicitor for at least the reason that Dr Parmegiani only diagnosed 7% WPI.
On 8 June 2016, Dr Brooder provided a report diagnosing 19% WPI allowing 6% WPI for the plaintiff's "head injury", 5% WPI for the "brachial plexus injury", 5% WPI for the low back injury and 5% WPI for a neck injury. By the combination of those assessments led to a WPI of 19%. However, the assessments of 5% WPI for the low back injury and 5% for the neck injury were inconsistent with the report/certificate of Dr Long of 10 September 2013. The assessment of 6% WPI for the head injury was quite inconsistent with Mr Rawlings' opinion of 20% WPI and the diagnosis of a 5% WPI for a brachial plexus injury begged the question because there was no suggestionf at any time prior to Dr Brooder's assessment of the 29 May 2015, the subject of his report on 28 July 2015, that the plaintiff had suffered any injury to his brachial plexus. Nor can one easily postulate how such an injury could occur in a "whiplash" type of accident.
On 9 June 2016, the plaintiff's solicitors wrote to the defendant's solicitors enclosing Dr Brooder's assessment of 8 June 2016. On the same day the plaintiff also provided to Messrs Holman Webb particulars pursuant to s 85A of MACA.
On 3 August 2016, the plaintiff filed an application with MAS for the permanent impairment dispute. For the purposes of that application the defendant qualified Dr Andrew McClure, a psychiatrist. Dr McClure produced a report bearing date 21 September 2016. Under the heading "Diagnosis", Dr McClure said this: "Retrospectively, Mr Penney may have developed depression (possibly an adjustment disorder with depressed mood) following the subject accident, however he has apparently given different accounts to Drs Gliksman and Harvey. The records of his general practitioner do not refer to any symptoms of depression until 17 February 2016 when the antidepressant Venlafaxine was commenced. Accordingly, it is likely that symptoms of depression commencing after the subject accident had subsequently resolved (perhaps at the time the claimant returned to work, which improved his self-esteem). By his account, however, his cognitive difficulties have persisted, with little improvement or progression over the intervening period."
In essence, Dr McClure was of the view that the plaintiff had recovered from any psychiatric problem that he had. It is noteworthy that the postulated diagnosis of Dr McClure matches the diagnosis of Dr Parmegiani.
On 13 October 2016, the MAA requested particulars relating to the head injury. Eventually the MAA confirmed that the plaintiff would be examined by Dr John O'Neill, a neurologist, on 29 March 2017. Dr O'Neill certified no WPI because of the alleged head injury. In his report/certificate Dr O'Neill said this: "On review of the Certificate of 10 September 2013 by Assessor Long, I note Mr Penney was then able to give a clear account of the accident and immediate subsequent events. Similarly, he was able to give a reasonable account of the accident and immediate subsequent events of the time of the consultation with Dr McClure on 21 September 2016. It is my view that there is no evidence whatsoever of a head injury taking place in the motor vehicle accident on 27 August 2010 and certainly not one which would be expected to give rise to any permanent impairment of cognitive function (Permanent Impairment Guidelines, Point 5.9, p 31). Despite the development of vague complaints relating to 'inability to focus' in the time after the accident, Mr Penney has managed to get on with the day to day life including stable work as a fitter and turner over the past 14 months. Whilst I cannot explain the neurophysiological findings of Mr Peter Rawlings, I do not believe they can be explained by a purported mild head injury (questionably due to deployment of airbags) in the accident of 27 August 2010. I am of the view that the symptoms most likely have a psychological basis and formal psychiatric assessment might be reasonable."
He believed that the plaintiff's cognitive impairments were unrelated to the motor vehicle accident now in question and therefore that the WPI referable to that was nil.
The plaintiff's chronology, exhibit C-C, refers not only to the assessments of Dr O'Neill but also to an assessment of Assessor Ellen Wood on 7 April 2017. I do not know what Assessor Ellen Wood did. Any assessment that she made has not been put before me. I do not even know whether she is a medical assessor or some other form of assessor.
In any event on 9 May 2017, the plaintiff asked the MAA to review the certificate of Dr O'Neill. That application was dismissed by MAA in a letter to the plaintiff's solicitor dated 28 June 2017.
On 11 October 2017, the defendant's solicitor invited the plaintiff to attend a settlement conference. That eventually took place on 21 November 2017 but was unsuccessful.
On 5 January 2018 the plaintiff made an application for exemption and also an application for a general assessment by CARS. On 11 January 2018, the plaintiff's solicitors were advised by a letter of that date that the principal claims assessor, Ms Belinda Cassidy had been appointed to determine the claim. Eventually Ms Cassidy issued a certificate of exemption pursuant to s 92(1)(b) of MACA. That certificate bears date 2 March 2018. The certificate issued by Ms Cassidy contains this matter: "(3) The Claimant's submissions as to injuries and disabilities mention 'a head injury' and 'interference with cognitive impairment'. In addition, there are allegations of 'significant changes in short term memory', 'memory loss' and 'severe abnormality with judgement and problem solving' and 'confusion'. (4) These matters raise with me an issue as to the claimant's capacity to receive and understand advice in relation to his claim and any instructions in accordance with that advice. I therefore raise with the parties whether the claim should be exempt on the basis of an apparent lack of legal capacity. It is certainly not a matter for me to determine whether the claimant is or is not a person lacking a legal capacity. That is a matter for the guardianship division of NCAT or the Court to consider. (5) The question for me to determine is whether, in light of the claimant's submissions and evidence there is a concern about the legal capacity of the claimant and therefore whether this forum (which has no protective jurisdiction) is the appropriate forum for this claim to be assessed. Mr Day for the claimant now says that, if proceedings are commenced, he'll be seeking to have a tutor appointed."
That appears to be the reason why the certificate of exemption was issued. That certificate of exemption allowed the plaintiff to commence proceedings in this Court which the plaintiff did by the filing of the statement of claim on 4 April 2018.

Consideration

At the root of the dispute between the parties is the proper approach to making a claim under MACA. There are a number of matters which need to be considered. The first is the objects of the Act. They are set out in s 5(1) of MACA. Three of those objects are these: "(a) to encourage early and appropriate treatment and rehabilitation to achieve optimum recovery from any injury sustained in motor accidents, and to provide appropriately for the future needs of those with ongoing disabilities, (b) to provide compensation for compensable injuries sustained in motor accidents, and to encourage the early resolution of compensation claims, … (e) to keep premiums affordable, in particular, by limiting the amount of compensation payable for non-economic loss in cases of relatively minor injuries, while preserving principles of full compensation for those with severe injuries involving ongoing impairment and disabilities…"
Provisions relating to the assessment of claims should also be considered: associate to set out ss 90-94 of the Act. 90 Reference of claim A claim may be referred to the Authority by the claimant or the insurer, or both, for assessment under this Part. 91 Time limits for referring claims (1) A claim may not be referred for assessment under this Part unless a period of 28 days has elapsed after each party to the claim has made an offer of settlement as required by section 89C. (2) However a claim may be referred for assessment under this Part at any time if: (a) Division 1A (Document exchange and settlement conference before claims assessment) does not apply to the claim (as provided by section 89E), or (b) a provision of Division 1A allows the claim to be referred for assessment under this Part without the parties having participated in a settlement conference or without each party having made the offer of settlement required by section 89C, or (c) the claim is referred for assessment by way of referring the claim for a certificate of exemption from assessment under this Part, or (d) a medical assessor has (under section 132 (3)) declined to make an assessment of the degree of permanent impairment of the injured person. 92 Claims exempt from assessment (1) A claim is exempt from assessment under this Part if: (a) the claim is of a kind that is exempt under Motor Accidents Claims Assessment Guidelines or the regulations, or (b) a claims assessor has made a preliminary assessment of the claim and has determined (with the approval of the Principal Claims Assessor) that it is not suitable for assessment under this Part. (2) If a claim is exempt from assessment under this Part, the Principal Claims Assessor must, as soon as practicable, issue the insurer and claimant with a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned). 93 Arrangements for assessment The Principal Claims Assessor is responsible for making arrangements as to the claims assessor who is to assess any particular claim or class of claims that are not exempt from assessment. 94 Assessment of claims (1) The claims assessor is, in respect of a claim referred to the assessor for assessment, to make an assessment of: (a) the issue of liability for the claim (unless the insurer has accepted liability), and (b) the amount of damages for that liability (being the amount of damages that a court would be likely to award). (2) Such an assessment is to be made having regard to such information as is conveniently available to the claims assessor, even if one or more of the parties to the assessment does not co-operate or ceases to co-operate. (3) The assessment is to specify an amount of damages. (4) The claims assessor must, as soon as practicable, after an assessment issue the insurer and claimant with a certificate as to the assessment. (5) The claims assessor is to attach a brief statement to the certificate, setting out the assessor's reasons for the assessment. (6) If the Principal Claims Assessor is satisfied that a certificate as to an assessment or a statement attached to the certificate contains an obvious error, the Principal Claims Assessor may issue, or approve of the claims assessor issuing, a replacement certificate or statement to correct the error. 94A Claims assessor may assess costs (1) In making an assessment and specifying damages under section 94 in respect of a claim, a claims assessor may include in the assessment an assessment of the claimant's costs (including costs for legal services and fees for medico-legal services) in the matter. (2) An assessment of those costs may also be made (whether or not an assessment has been made under subsection (1)) if a court does not determine a matter after the issue of a certificate under section 94 but remits the matter for further assessment under this Part. (3) In making an assessment under this section, a claims assessor: (a) may have regard to the amount of any written offer of settlement made by either party to the matter, and (b) must give effect to any requirement of a court under section 151 (3), and (c) must give effect to any requirement of the regulations under Chapter 6 as to costs that may be included in an assessment or award of damages or fixing maximum fees and costs, (d) must have regard to the principles and matters referred to in section 200 of the Legal Profession Uniform Law (NSW). (4) A claimant or an insurer (or an Australian legal practitioner acting for a claimant or an insurer in respect of the relevant claim) has the same right of appeal against an assessment made under this section as the claimant, insurer or legal practitioner would have under section 89 of the Legal Profession Uniform Law Application Act 2014 if the assessment were a decision of a costs assessor under Part 7 of that Act in respect of a bill of costs.
Part 4.5 of the Act relates to court proceedings on claims. Sections 108 and 109 are these: associate to insert ss 108 and 109. 108 Claims assessment or exemption pre-condition for commencement of court proceedings (1) A claimant is not entitled to commence court proceedings against another person in respect of a claim unless: (a) the Principal Claims Assessor has issued a certificate in respect of the claim under section 92 (Claims exempt from assessment), or (b) a claims assessor has issued a certificate in respect of the claim under section 94 (Assessment of claims). (2) The provisions of this section are in addition to those of section 109. Accordingly, both sections are capable of applying to a claim. 109 Time limitations on commencement of court proceedings (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, or (b) if the claim is made in respect of the death of a person - the date of death, except with the leave of the court in which the proceedings are to be taken. (2) Time does not run for the purposes of this section from the time that a claim has been referred to the Authority for assessment and until 2 months after a certificate as to the assessment or exemption from assessment is issued. (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. (4) Subsection (3) (b) does not apply to a claimant who is legally incapacitated because of the claimant's age or mental capacity. (5) The Limitation Act 1969 does not apply to or in respect of proceedings in respect of a claim.
The Act must be read as a whole. The Act cannot be read without bearing in mind that a claimant is not entitled to commence court proceedings in respect of a claim more than three years after the claim arises. If it sought to do so the leave of the Court must be obtained. One cannot go through the claims procedures without bearing in mind the provisions of s 109. One cannot approach the Act as if one can go through the claims procedure at a leisurely pace taking it over a period of eight years and then finding oneself having to approach the Court to seek leave. The objects of the Act are to encourage early settlement, if there is to be a settlement, or the early dealing with claims if claims are to be paid.
The submissions of the plaintiff laid great weight on the provisions of ss 61 and 62 of the Act. Those provisions are these: associate to insert ss 61 and 62 of MACA. 61 Status of medical assessments (1) The medical assessor or assessors to whom a medical dispute is referred is or are to give a certificate as to the matters referred for assessment. (2) Any such certificate as to a medical assessment matter is conclusive evidence as to the matters certified in any court proceedings or in any assessment by a claims assessor in respect of the claim concerned. (3) (Repealed) (4) In any court proceedings, the court may (despite anything to the contrary in this section) reject a certificate as to all or any of the matters certified in it, on the grounds of denial of procedural fairness to a party to the proceedings in connection with the issue of the certificate, but only if the court is satisfied that admission of the certificate as to the matter or matters concerned would cause substantial injustice to that party. (5) If a certificate as to any matter is rejected under subsection (4), the court is to refer that matter again for assessment under this Part and adjourn the proceedings until a further certificate is given and admitted in evidence in the proceedings. (6) However, if a certificate as to whether or not the degree of permanent impairment of the injured person is greater than 10% is rejected under subsection (4), the court may, if it considers it appropriate, substitute a determination of the court as to the degree of permanent impairment of the injured person (assessed by the court in accordance with section 133) instead of referring that matter again for assessment under this Part. (7) Except as provided by subsection (6), a court may not substitute its own determination as to any medical assessment matter. (8) This section: (a) does not prevent a court from referring a matter again for assessment under this Part (as provided for by section 62), and (b) does not require a court to refer a matter again for assessment under this Part if the matter is not a medical assessment matter. (9) A certificate is to set out the reasons for any finding by the medical assessor or assessors as to any matter certified in the certificate in respect of which the certificate is conclusive evidence. (10) The following procedure is to apply if the assessment of more than one medical assessor is required to assess whether the degree of permanent impairment of the injured person is greater than 10% (not being an assessment of the degree of permanent impairment resulting from psychiatric or psychological injury): (a) each medical assessor is to give a certificate as to the degree of permanent impairment of the injured person resulting from the particular injury or injuries with which the medical assessor's assessment is concerned, (b) based on the matters certified in each such certificate a medical assessor nominated by the Authority for the purpose is to make an assessment of the total degree of permanent impairment resulting from all the injuries with which those certificates are concerned and is to give a certificate (a combined certificate) as to that total degree of permanent impairment, (c) the combined certificate is conclusive evidence as to whether the degree of permanent impairment of the injured person is greater than 10% and this section applies to the combined certificate accordingly. (11) If a medical assessor is satisfied that a certificate under this section contains an obvious error, the medical assessor may issue a replacement certificate to correct the error. 62 Referral of matter for further medical assessment (1) A matter referred for assessment under this Part may be referred again on one or more further occasions in accordance with this Part: (a) by any party to the medical dispute, but only on the grounds of the deterioration of the injury or additional relevant information about the injury, or (b) by a court or claims assessor. (1A) A matter may not be referred again for assessment by a party to the medical dispute on the grounds of deterioration of the injury or additional relevant information about the injury unless the deterioration or additional information is such as to be capable of having a material effect on the outcome of the previous assessment. (1B) Referral of a matter under this section is to be by referral to the member of staff of the Authority who is designated by the Authority for the purpose (in this Part referred to as the proper officer of the Authority). (2) A certificate as to a matter referred again for assessment prevails over any previous certificate as to the matter to the extent of any inconsistency.
Mr Foord, who appeared for the plaintiff, pointed out that what the plaintiff ought to seek to do if his current application is successful is essentially to try to persuade the Court to either make its own assessment of WPI or alternatively to refer back to an assessor armed with findings of fact that the Court might make.
Although it is not necessary for me to determine on this application, I should point out that left to my own devices as a tribunal of fact with some 40 years' experience in medico-legal work, I would make the same findings as have been made by the two medical assessors involved in this case, Dr Long and Dr O'Neill. However, I leave that to one side.
Time does not run for the purposes of s 109 of MACA while a claim is being dealt with by CARS and for two months after a certificate of exemption is issued. In the current case, an application for general assessment/assessment was first lodged with CARS by the plaintiff's solicitor on 5 January 2018. By that time at least seven years had elapsed since the occurrence of the motor vehicle accident and more than four years had elapsed since the three year time limit had expired.
The plaintiff is required to provide the Court with a full and satisfactory explanation for the delay. Russo v Aiello [2003] HCA 53; (2003) 215 CLR 643, the Motor Accidents Act 1988 which contained a number of provisions similar to those contained in the current Act. Gleeson CJ explained the term "full and satisfactory explanation" at [4]: "A full explanation is said to be a full account of the conduct, including the actions, knowledge and belief of the claimant, from the date of the accident until the date of providing the explanation. The word 'full' takes its meaning from the context. It refers to the conduct bearing upon the delay and the state of mind of the Claimant… an explanation is not a 'satisfactory' explanation unless a reasonable person in the position of the claimant would have been justified in experiencing the same delay."
In Walker v Howard [2009] NSWCA 408: (2009) 78 NSWLR 161: (2009) 55 MVR 9, the Court of Appeal (Allsop P, Spigelman CJ and Campbell, Macfarlan and Young JJA agreeing) made statements to the following effect and these statements are based on the headnote contained at [2009] NSWCA 408: "1. The explanation of the conduct required is an account of the acts and omissions of the claimant and all other relevant persons, including those acting on his behalf [53], [109], [131]; 2. The meaning of the word 'full' is to be understood in the context of the purpose of the Act to enable the Court to evaluate the reasons for the delay, and therefore all relevant information to that end is required [57]; 3. The information provided must be necessary and sufficient to establish that the explanation is 'satisfactory' [95]; 4. The test is an objective test of whether a reasonable person in the claimant's position would have been justified in experiencing the delay [64] [108], [134]; 5. The position of the claimant where the claimant has a legal or physical disability includes that disability [64], [97], [107]; 6. Other persons acting on behalf of the claimant are not the 'objectified reasonable person'; nevertheless, they and their actions may form part of the circumstances of the claimant to be taken into account when considering whether the delay was justified [100], [150]."
In Lyu v Jeon [2012] NSWCA 446, Meagher JA( with whom Macfarlan JA and Davies J agreed) said this: "[24]… First, as Gleeson CJ observed in Russo v Aiello (at [5], [7]), what will constitute justifiable delay on the part of a reasonable person in making a claim is to be considered in light of the legislative purposes of the MAC Act. See also, [74] per Gummow and Hayne JJ. Those purposes including encouraging the early investigation, assessment and resolution of the claims so as to advance the interests of claimants in having prompt treatment and rehabilitation and in having the prompt payment of lost earnings; and so as to advance the interests of insurers in more accurately predicting claims frequency and formulating premiums. The Act seeks to achieve these objects by the imposition on both claimants and insurers of time limits and obligations to act expeditiously: see also Walker v Howard per Allsop at [90]. [25] Secondly, as Gleeson CJ also observed in Russo v Aiello at [7]: '…what the Act requires is justification for delay; not demonstrating that delay caused no harm…the focus of the statutory concept, the satisfactory explanation is upon justifying delay rather than excusing it. It is one thing to say that conduct is justified by reference to the way in which a reasonable person in the position of the claimant could have been expected to behave. It is another thing to say that delay ought to be excused because it caused no identifiable harm to an insurer. It is the former not the latter question that is raised for consideration.'"
Mr Rewell SC provided me with written submissions. They include this matter: "83. The chronology states that the plaintiff first made contact with Mr Day's firm on 19 March 2012. Again, this was well within the three year period after the accident during which the plaintiff could have commenced proceedings without the Court's leave. 84. It appears from the chronology that the preparation of the matter proceeded as if the three year time limit imposed by s 109 did not exist. Indeed, it appears that the matter would have proceeded even more slowly, had it not been for the urging of the defendant's solicitor in an effort to move the matter forward. 85. It is simply no explanation for the delay that the report of Mr Rawlings was not obtained until 23 September 2013. But even if the lateness of that report (which the plaintiff's solicitor could have obtained much earlier) provided some explanation for the delay, it was another 4.5 years before the court proceedings were commenced (and more than four years before any application was made to CARS). 86. The fact that some activity was taking place in relation to the plaintiff's claim during 2013, 2014, 2015, 2016 and 2017 (mostly at the urging of the defendant's solicitor), is no explanation at all for the delay in commencing court proceedings. Neither the objects of the MACA, nor s 109(1), permit such a leisurely preparation of the claimant's case; the claimant is not entitled simply to commence court proceedings at his own convenience. 87. Mr Day provides no real explanation at all for the delay in commencing court proceedings. Mr Day must have known (and must have advised the plaintiff) of the three year time limit prescribed by s 109(1). 88. While Mr Day refers to the MAS assessments that have taken place in this matter, they do not provide a basis for delaying the commencement of court proceedings. 89. In the first paragraph of his first affidavit, Mr Day asserts that TAC has been kept informed of medical developments in this matter. But that can go only to the question of lack of prejudice; it does not assist the plaintiff in providing a 'full and satisfactory' explanation for the delay. 90. Mr Day's affidavits are completely inadequate if they were intended to set out the plaintiff's explanation for the delay."
Further, the defendant's written submissions then discuss the affidavit of the plaintiff's wife/tutor sworn on 8 May 2018 which is exhibit AA. Those submissions contain this matter: "95. Neither Mr Day nor Ms Penney provide any information as to the advice given by Mr Day at the initial consultation in March 2012, nor at any time thereafter. It must surely be inferred that Mr Day, who was and is an Accredited Specialist in Personal Injury, gave all the appropriate advice to the plaintiff and his wife including advice as to the three year time limit for commencing court proceedings under s 109(1). 96. The only explanation for delay provided by Ms Penney is: '[8] During the period from lodgement of the claim form with [TAC] until we consulted with Mr Day, we were hopeful that Wayne's injuries would resolve and he would be okay, and there would be no need to bring a claim. That was the reason we did not contact a lawyer in the time before March 2012. [9] After engaging Mr Day to act for us we followed his advice, we attended upon him in conferences and attended various medical appointments as they were arranged by either the insurer or Mr Day.' 97. Absent any statement by the plaintiff, Mrs Penney or Mr Day as to the advice given by Mr Day and the date(s) on which such advice was given this explanation is clearly not 'satisfactory'."
The only complication that arises as far as I am concerned is that the lack of the evidence as to the advice which may have been given to the plaintiff from time to time by the plaintiff's lawyers really goes as to whether the explanation given is "full". However, in so far as the explanation is not "full" it is not "satisfactory".
I have already pointed out the obvious and significant delay between the rejection by MAS of an application for an assessment of permanent impairment because of the use of an incorrect form, which was not remedied immediately after 5 January 2016 when the plaintiff's solicitor was advised of that defect, but the fresh form was only lodged on 3 August 2016, seven months later. There was no adequate explanation at all for the delay, no acceptable explanation for the delay other than the alleged need to obtain a further report from Dr Brooder.
What comes clearly from the facts that I have recited is that the plaintiff's lawyers were concerned at all material times to obtain a WPI of more than 10%. In that regard they were unsuccessful so far as a low back was concerned and were then unsuccessful as to the "head injury". But damages for non-economic loss are not the only damages that are recoverable under MACA. The plaintiff is entitled to his economic loss provided he can substantiate that he has a physical or mental impairment referable to the motor vehicle accident in question which is rendering him unfit to earn his pre-injury earnings. I understand that it is the plaintiff's allegation that he has been at all material times at least partially incapacitated for work and initially according to the certificate given by Dr Kay on 7 October 2010 was unfit for any form of work between the motor vehicle accident and 20 September 2010, a period of roughly one month. The plaintiff is also entitled to recover his out of pocket expenses from the tortfeasor the defendant in a claim for motor accident damages.
However, I accede to the proposition that the pace at which the plaintiff's solicitor sought to prepare a case was extremely slow and casual. I accede to the submission that the plaintiff's solicitors approach to the case was as if the three year limitation period did not exist. The plaintiff could at any time have submitted an application to CARS for a general assessment, notwithstanding the fact the plaintiff did not at that time have evidence to cross the statutory threshold to entitle him to recover damages for non-economic loss. Cases are frequently run before this Court where there is no claim for damages for non-economic loss.
It was open to the plaintiff, if he submitted a claim for general assessment to CARS prior to the expiration of the three year period but were eventually dissatisfied with the decision of the CARS Assessor, to make an application to this Court under s 94 rather than under s 92.
The plaintiff could have sought to delay the assessment by CARS on the basis that he still needed to obtain further evidence and perhaps he could have adjourned the CARS assessment in order to pursue a further application to MAS for an assessment of WPI when further evidence was obtained. However, that simply was not done.
If immediately after 5 January 2016 the plaintiff had filed a further application to MAS for impairment that may have been completed within six months, that is by July 2016 and the plaintiff could then have made an application to CARS either for a certificate under s 92 or eventually for a certificate under s 94. That would have at least shaved at least two years off the delay that has actually occurred in this case.
I am not persuaded on the balance of probabilities that the plaintiff has provided me with a satisfactory explanation for the delay that has been incurred.

Was a tutor required?

I shall seek shortly to deal with the other issues. The plaintiff because of a decision reached by Mr Day, probably prompted by the observations of Ms Cassidy, commenced these proceedings by appointing his wife as his tutor and by her commencing the proceedings. The defendant as I indicated at the commencement of these reasons does not accept the plaintiff needs a tutor.
Under s 3s(1) of the Civil Procedure Act 2005, a person under a legal incapacity is defined thus: "person under legal incapacity means any person who is under a legal incapacity in relation to the conduct of legal proceedings (other than an incapacity arising under s 4 of the Felons (Civil Proceedings) Act 1981 and, in particular, includes: (a) a child under the age of 18 years, and (b) an involuntary patient, a forensic patient or a correctional patient within the meaning of the Mental Health Act 2007 and, (c) a person under guardianship within the meaning of the Guardianship Act 1987 and, (d) a protected person within the meaning of the NSW Trustee and Guardian Act 2009 and, (e) an incommunicative person, being a person who has such a physical or mental disability that he or she is unable to receive communications, or express his or her will, with respect to his or her property or affairs."
There is no suggestion that the plaintiff falls within any of the enumerated five categories in that definition. However, that definition is inclusive as the first part of the definition describes a "person under legal incapacity" as a person who is under a legal incapacity in relation to the conduct of legal proceedings.
The matter is governed by UCPR Part 7 Division 4. Under UCPR 7.13, a definition is provided for the purposes of the rules. It describes as a "person under legal incapacity" to include a person who 'is incapable of managing his or her affairs. It is clear from State of New South Wales v Harlum [2007] NSWCA 120 that to be incapable of managing his or her affairs a person must be wholly incapable or incompetent to manage his or her affairs. There is no suggestion that the current plaintiff is wholly incapable of managing his or her affairs. One is generally referred to the learning under s 11(3) and s 50 of the Limitation Act 1969 but those provisions refer to a person who is incapable or is "substantially impeded in the management of his or her affairs in relation to the cause of action…by reason of disease or impairment or physical or mental condition." That is not a definition contained either in the Civil Procedure Act or in the UCPR. One would be forced back to look at the common law to ascertain what exactly makes a person legally incapacitated in relation to the conduct of legal proceedings.
After the appointment of the tutor, Mr Day sought advice from the plaintiff's general practitioner as to whether there ought to be a tutor appointed. Mr Day wrote to the practice manager of the Gardens Medical Centre on 28 February 2018 prior to the commencement of proceedings and enclosed copies of each of the reports of Dr Rawlings and a copy of the report of Dr Parmegiani. The letter continues thus: "A person under a legal incapacity is defined in s 3 of the Civil Procedure Act (2005), a copy of which we enclose. We are concerned Mr Penney may not have the capacity to properly give instructions. He has good days and bad days and for more abundant caution we believe a tutor should be appointed. Can you please advise whether you believe he has sufficient capacity to understand the nature of legal proceedings and give proper instructions having regard to the [reports] of Dr Rawlings and Dr [Parmegiani]."
A reply was only penned by Dr Kay on 2 May 2018, after the proceedings had been commenced. The report says this: "Wayne sustained a head injury on 27/08/2010. Since then he has had poor memory and cognition and has had to leave complicated issues to his wife to sort out. With regard to your letter 28/02/18 I agree that Wayne needs a tutor during legal proceedings and his wife, Karen will be the best person to do this."
I point out that having poor memory and poor thinking does not necessarily mean a person is under a legal disability. Many people have poor memories and many people think slowly or think erratically but that does not mean that they are legally incompetent.
What also has to be borne in mind is that the plaintiff had visited and been interviewed by Dr Gliksman, Dr Brooder, Mr Rawlings and Dr Parmegiani, by Dr Frank Harvey, Dr Ian Sutton, Dr McClure, Dr Michael Long and Dr John O'Neill and none of those expressed any view about the plaintiff's being mentally incompetent, nor any view questioning his ability to give them advice about his history or his current condition or details about the treatment that had been provided to him.
If he could give histories to the medical practitioners, he can give instructions to his lawyers. Difficult questions often arise in litigation and that is why lawyers exist as a professional class to deal with the intricacies of the law and decision making and is part of their role to explain to their clients what is happening, why and to give advice as to the best way forward. Bearing in mind what is before, I am not persuaded on the balance of probabilities that the plaintiff has need for a tutor.

Monetary threshold

Accordingly, the plaintiff not only must satisfy the Court of the matter provided by s 109(3)(a) but also of the matter required by s 109(3)(b) that the total damages of all claims likely to be awarded to the claimant if the claim succeeds is not less than $131,750.
The plaintiff has not put before me what are the out of pocket expenses to date. In so far as they may have been paid by the insurer that could have easily been proved by asking the insurer to provide a list of payments made to or on behalf of the plaintiff.
The certificate of Dr Kay to which I have referred clearly indicates that the plaintiff was totally incapacitated for one month. On evidence contained in exhibit A-A, annexure KFP8 it would appear that at most that would prove a loss of $8,000 as in 2010 the plaintiff's net weekly income was $1,944.29. Four times that sum is just under $8,000.
However, the plaintiff's earnings after 2010 fluctuate. For the year 2011, the net average weekly earnings were $1,367.27. In 2012, they were $1,380. In 2013 they were only $321.13. In 2014 they were $445. In 2015 they were $929.12. In 2016 they were $694. In 2017 they were $1,173.84. Indeed, according to this document, the plaintiff's highest earnings were in the year 2010, the year in which the accident occurred when they were $1,944.29. In 2009, the average weekly earnings were $1,924.08 per week. But in years prior to that they were much less. For example, in 2006 they were $528.10 per week. In 2007, $516.27 per week and in 2008, $930.25 per week.
Furthermore, the plaintiff's post-accident work regime is not at all clear from the evidence before me. In fact, it was not even canvassed in submissions nor was any submission made to me on how the plaintiff's earning capacity has been impaired. One can rule out the low back problem as being related to the work injury. One can rule out the plaintiff's alleged cognitive impairment because both of those have been determined by the medical Assessors to be not related to work injury. Then one is merely left with an allegation of perhaps some ongoing cervical or thoracic spinal problem, perhaps the aggravation of pre-existing degenerative disc disease or degenerative changes in those parts of the spine as a cause of the ongoing incapacity for work, but it appears more likely that the plaintiff's ongoing incapacity for work is affected by his low back problem and in essence the tenor of the plaintiff's complaint is that it's really caused by his cognitive impairment or his perception of his cognitive impairment.
There is then a dispute between Dr Parmegiani and Dr McClure as to whether there is any ongoing incapacity due to the psychiatric condition. Dr McClure says there is none. Dr Parmegiani said this: "Mr Penney did not resume his pre-injury duties because of concentration problems. His anxiety undermined his concentration. Mr Penney was able to work in this intellectually-demanding activity for up to 40 hours per week when work was available…Mr Penney's condition could improve with reassurance and specialist psychiatric treatment. A reduction of his anxiety would lead to an improvement of his concentration, occupational performance and self esteem."
Trying to ascertain what the plaintiff's economic loss might be is a matter for speculation, bearing in mind the non-compensable conditions from which he suffers. Were I trying the matter it would appear to me that the appropriate thing to do would be make some global allowance, a cushion or a buffer for economic loss after the first month.
In my view a buffer of say $50,000 might be appropriate, but it is hard to see how the plaintiff's damages, even assuming that the plaintiff were able to prove his out of pocket expenses, how they together with the $8,000 I have already mentioned and a buffer of $50,000 could exceed $100,000. I am therefore not satisfied on the balance of probabilities that the plaintiff has established the threshold which he is required to establish under s 109(3)(b). For those reasons the motion is dismissed.
[Discussion as to other orders]
The notice of motion filed 16/04/18 is dismissed. The statement of claim filed 4 April 2018 is dismissed. I order the plaintiff to pay defendant's costs of the proceedings.

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: 26 February 2019

Trustee and Guardian Act 2009(NSW)

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Judgment (6 paragraphs)

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