Seary v White

Can the application succeed as a matter of law? 4. I have already had occasion to consider the question of the court's power to refer a plaintiff again for assessment of the degree of permanent impairment in the context of the threshold provision in s 131 of the Motor Accidents Compensation Act 1999: see Ragen v Nominal Defendant (No 2) 4 DCLR (NSW) 227, [2007] NSWDC 85. In that decision I concluded that the court has a clear and unfettered discretionary power, under s 62(1)(b) of the Motor Accidents Compensation Act 1999, to refer a matter for assessment, again, at any time.

5. That matter involved an application by a plaintiff. In this application, however, I am required to consider the power in the context of an application by a defendant. In my view, the power is limited to a plaintiff who has not yet satisfied the threshold, and is not available at the instigation of a defendant. In that regard, s 131 of the Motor Accidents Compensation Act 1999 is a gatekeeper provision, and once a plaintiff has satisfied the threshold that plaintiff has an entitlement, except perhaps in exceptional circumstances such as fraud, to an award for non-economic loss, whatever occurs at trial. In other words, the threshold, once crossed, remains crossed. A plaintiff, however, is never precluded from crossing that threshold, and for the reasons I gave in Mafra v Egan (No 1) [2006] NSWDC 22 at [29], may do so at any time, even at the end of a trial, before the verdict is entered.

6. However, against the possibility that others might disagree with that view, I would in any event dismiss the defendant's application on discretionary grounds, to which I shall come.

7. The only further comment I need to make relates to the defendant's submission that, in addition to s 62(1)(b), the power of referral is also derived under s 132(2) of the Motor Accidents Compensation Act 1999. Reference was made to a statement made by the Court of Appeal in Murdoch v Davis [2005] NSWCA 466. That decision was not brought to my attention when I was deciding Ragen (No 2). As counsel for Mrs Seary points out, the reference to s 132(2) by Acting Justice Brownie at [20] is obiter dicta. For the reasons I stated in Ragen (No 2), I consider the power under s 132(2) is not available once a Permanent Impairment Certificate has issued. In my view, therefore, the present application could only be made under s 62(b).

Is the defendant estopped from making the application? 8. It was submitted on behalf of Mrs Seary that the defendant is estopped from now raising the issue. It is contended that the estoppel arises by reason of concessions and statements made during the trial (see paragraphs 6 and 22 of the written submissions) and that what occurred and was said amounted to the making of a formal admission (see paragraph 7 of the written submissions).

9. I am not persuaded that anything said, or done, by the defendant amounted to an admission, nor that it gives rise to any estoppel. In my view, the fate of the application falls to be determined on discretionary grounds only.

Should the defendant's application succeed? 10. The defendant submitted that the interests of justice require that Mrs Seary be referred for re-assessment under the MAS system. In the summary of his written submissions, counsel put his argument in this nutshell:

"Having regard to the surveillance film, which came into existence well after the medical assessment, the Court could only be confident that the Plaintiff is, in truth, entitled to damages for non-economic loss, if the Plaintiff obtains a fresh certificate from a medical assessor who has had the opportunity to view the surveillance film, and to (re)examine the Plaintiff in the light of the surveillance film, and who, notwithstanding the surveillance film, assess the Plaintiff as having greater than 10% whole person impairment" (paragraph 68).

11. The defendant's application rests on the argument that the MAS assessor who made the original assessment of permanent impairment, did not have available to her the full facts relevant to the assessment, and the surveillance film tendered at the trial (Exhibit 1) is "new" evidence, the significance of which only became apparent in the light of the expert medical given at the trial.

12. In my view, the defendant's argument is flawed. The surveillance film may not have been in existence at the time of the MAS assessment, but it was certainly in existence long before the trial. It was open to the defendant at any time before the trial to refer the matter for assessment again, under s 62(1)(a), or to apply to the court for an order for referral for assessment again, under s 62(1)(b). He did neither, but opted to go to trial, keeping the existence of the surveillance film secret.

13. In my view, that the defendant made that decision, presumably for reasons of tactical forensic advantage, would be sufficient reason of itself for me to decline to exercise my discretion in its favour: Oshlack v Richmond River Council (1998) 193 CLR 72 at [22]. In this regard I agree with the submissions of counsel for Mrs Seary as to the delay in making the application (paragraph 8), the costs that would be wasted (paragraph 9), and the forensic disadvantage wreaked on the plaintiff (paragraph 12), which cannot be cured by a costs order (paragraph 14).

15. Firstly, I have regard to the purpose and objectives of the scheme brought into existence by the Motor Accidents Compensation Act 1999, in particular the object of encouraging early resolution of motor accident claims. A defendant who opts to introduce evidence at trial that has been available to it for some time before the trial should not be allowed to have its cake and eat it as well. If it opts, for tactical reasons, to introduce the evidence at trial, when other avenues were available to that defendant prior to trial, it should be bound by that election: see s 56(3) and s 58(2)(b)(iv) and (v) of the Civil Procedure Act 2005.

16. Second, to grant the application would lead to further, unacceptable cost and delay, contrary to the overriding purpose set out in s 56 of the Civil Procedure Act 2005.

17. I do not wish to make any observation about the surveillance film itself, as I have formed no final views about the issues to be determined in this case. What I will say is this: in my view an application such as that made by the defendant should only be made, if at all, at the conclusion of all the evidence.

18. It may be, for example, that I may ultimately make findings of fact that are relevant to the exercise of the discretion whether or not to refer the plaintiff for assessment again by MAS. It is inimical to expect a trial judge to do so before all the evidence has been presented.

Disposition 19. For these reasons I dismiss the defendant's application

20. I order the defendant to pay the plaintiff's costs of the application.

07/03/2008 - Correction to catchwords - Paragraph(s) Catchwords

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