Terry ELVEY v Phillip MCLENNAN

Section 109 MACA

1. Section 109 has two requirements. The first is that a full and satisfactory explanation be provided for the delay. The second is that the total damages of all kinds likely to be awarded to the claimant if the claim succeeds are not less than 25% to the maximum amount that may be awarded for non-economic loss as at the date of the relevant motor accident. That figure as at the date of the accident was $521,000 so that 25% of that figure would be $130,250.
2. In submissions, the parties focused on the second of these two matters. That is, has the plaintiff shown on the material now before the court that the amount of damages of all kinds that "it is likely" that he will be awarded damages exceeding $130,250. The defendant also made submissions concerning the definition of a "satisfactory explanation" set out in s66 of the MACA, so it is necessary to consider the explanation of the delay also.

The evidence

1. The plaintiff relied on three affidavits. The first was filed on 29 January 2021. Also filed that day was the summons together with the statement of claim. The allegation is that on 4 July 2017 the defendant drove a 20 tonne excavator deliberately towards the plaintiff and manipulated the excavator boom and bucket above the head of the plaintiff so as to cause him to fear for his life and then drove the vehicle onto his left boot, trapping his foot under the track of the excavator, though note [20.3] below.
2. The statement of claim now filed seeks to claim an amount of $284,000 plus some costs. There is no particularisation in the statement of claim of that amount nor is there any statement of particulars as might ordinarily be expected setting out the particulars of the claim, pursuant to UCPR Part 15 or otherwise. I note the figure of $284,000 appears at s134 of MACA as the maximum amount that may be awarded for non-economic loss, subject to indexation.
3. The second affidavit relied on by the plaintiff in this application was filed on 1 February 2021. It is a photocopy of the affidavit just described but annexes to it a bundle of documents. Those documents include the following: 1. An unsigned copy of what appears to be the text of 26 September 2017; 2. A document setting out various alleged health and safety breaches by the defendant; 3. A statement of the plaintiff given to the police setting out the history of the development of the new prison. Par 15 of the statement states "the driver proceeded to run over my left foot. I curled my toes up luckily and the track just ran across the side of my ugly boot". The plaintiff also describes the excavator bucket being swung about over his head. 4. A statement of a witness, supportive of the plaintiff. 5. Correspondence from CARS acknowledging receipt of an application for exemption on 8 October 2020. This includes the certificate of exemption itself in which it is stated that the certificate must be issued because the insurer has denied liability on the basis of denying fault on the part of its insured. 6. A notice to admit facts filed on 14 September 2020. 7. The correspondence between solicitors referred to above which shows that the plaintiff's solicitors replied on 2 August 2019 to a request made in July 2019. It is a concern that it would appear on the evidence that the complaint having been made in September 2017 the defendant took no action to contact the plaintiff for almost 2 years. The rejoinder to that of course is there is no evidence of the plaintiff doing anything to chase up the claim that he had made.
4. Given their obvious relevance to the present application I will set out separately the matters going to damages. These are: 1. A report of North Coast radiology and dated 25 September 2017 concerning the plaintiff's "CT lumbosacral spine". This report notes low back pain. Under the heading "findings" it is stated, "there is no vertebral compression fracture, destructive lesion or spondylolisthesis. No spondylosis. There is no SI joint abnormality". It goes on to state there is no disc bulge or spinal canal or neuroforamen stenosis at the L1-2, L2-3 and L3-4 levels. There is a large central disc protrusion impinging on the thecal sac at L4-5 and a mild central disc bulge at L5-S1. 2. A report authored by Dr Garg, psychiatrist. It sets out the history of the plaintiff of the incident. It sets out the plaintiffs statement of the incident changing his life and that he now suffers panic attacks. It refers to a further incident on 21 August 2017 when he was arrested. It records a substance use history which includes minimal alcohol and approximately three cones of marijuana 6-7 times a day. The plaintiff reported having "two blown discs" in his back but makes no connection on this record of it to 4 July 2017, though I infer based on the other evidence there is such a connection. The conclusion stated by Dr Garg is that the plaintiff has developed clinical features fulfilling the diagnostic criteria for PTSD in relation to the incident. The conclusion is also stated to be of clinical features of severe depression. The doctor offers that the plaintiff appeared to have some overvalued ideas almost amounting to delusions in relation to some politicians and other figures. These symptoms have affected his psychosocial functioning and he has been barred from his voluntary job, his GPs clinic and the bank possibly due to his psychiatric symptoms. A suggestion was made of some developmental history but the doctor required clarification. 3. The report sets out an answer to questions in a schedule. Included there is a statement that the PTSD symptoms are caused by the incident involving the excavator on 4 July 2017 but the depressive symptoms are caused by a variety of stressors. The prognosis is stated to be that "his psychiatric condition will be determined by a favourable or unfavourable resolution of Mr Elvey's legal and financial problems". 4. A second medical assessment was carried out by an orthopaedic specialist Dr Kinny. The history given of this injury was that the plaintiff sought to avoid the moving bucket of the excavator, momentarily stumbled and felt a twinge in his lower back as his foot was caught. He denies any prior back symptoms. Two days later he lifted a small dog kennel which he said was very light (and which other evidence suggests is 49 kg) and felt something give in his low back and suffered severe pain. Within two days the plaintiff had widespread pain in his low back referring down either leg. The opinion is expressed that as a consequence of the 4 July 2017 incident "Mr Elvey likely suffered an annular tear of his L4/5 disc" and then two days later suffered a disc protrusion during a flexion event. The opinion is also expressed that the symptoms have at last settled and that during the last five weeks he is starting to resume normal functioning. It states he is unlikely to require any further treatment for his lumbar disc pathology. The report is dated 17 June 2019. There has been a period of two years since the incident for the injury to settle, and now a further 21 months has passed with no evidence of that position changing. In the schedule of questions being answered attached to the report it notes there was minimal treatment over the two years since the injury occurred. That document also states that the plaintiff is currently unable to sit for very prolonged periods of two hours or longer, to stand continuously for more than an hour or work in a stooped posture without developing lumbar discomfort and should be careful when lifting items heavier than 15 kg. It goes on to state that Dr Kinny does not believe the plaintiff requires any significant medical treatment from here on. The prognosis is stated as being actually quite good. The prognosis refers to an incident occurring only five weeks ago when the plaintiff felt something crack within his back and has since that time no longer experienced sharp stabbing pain as he did previously 5. Lastly in the medical evidence were two medical certificates from a Dr Cram showing that there were attendances after the date of the incident by the plaintiff upon Dr Cram.
5. The third affidavit relied upon by the plaintiff was dated 19 March 2021 though it also bears the date of 17 March 2021. Regrettably, that affidavit is largely irrelevant, including paragraph 18 which states "Actus Rea, Mens rea, Motive Operandi, Golden Thread, the common laws of the Bondi tram, when will these be discussed? The 5W's. Intention of the act performed by the defendant needs to be addressed". The plaintiff goes on to state that he has been abused by a system "full of maladministration". The affidavit then refers to documents referred to above.
6. The defendant's material consisted of two affidavits of Charles Williams dated 16 and 19 March 2021. The second of the affidavits annexed a volume of subpoenaed material not referred to in argument and some of which was also annexed to the first affidavit. The essence of the first affidavit was to provide a copy of the motor accident personal injury claim form dated 18 July 2019, copies of the clinical notes of the Coffs Central medical centre concerning the plaintiff and to evidence that to the knowledge of Mr Williams there has been no UCPR rule 15.12 particulars filed or served, and that the plaintiff's alleged injuries have not been assessed at greater than 10% of the whole person impairment in accordance with sections 131 and 132 of the MACA. Also by way of submission the affidavit notes the plaintiff seeks exemplary and punitive damages and then notes section 144 of the MACA prohibiting such damages.

Satisfactory explanation

1. The documentary material of the plaintiff supports the factual chronology set out at the beginning of these reasons. What is lacking is any "full and satisfactory" explanation by the plaintiff as to why nothing occurred between September 2017 and June 2019 (when the plaintiff was assessed by Dr Kinny), and why there was no contact with the defendant between September 2017 and July 2019. Nor is there any evidence concerning the further period of inactivity from July 2019 till the filing of the statement of claim on 30 April 2020. Nor is there any evidence explaining why no application was made for an exemption certificate before October 2020, nor for that matter, why an exemption certificate was applied for, and not an application for an assessment under s61.
2. Section 66 of the act defines a satisfactory explanation as follows: In this Chapter, a reference to a full and satisfactory explanation by a claimant for non-compliance with a duty or for delay is a reference to 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 explanation is not a satisfactory explanation unless a reasonable person in the position of the claimant would have failed to have complied with the duty or would have been justified in experiencing the same delay. (underlining added)
3. Notably, the explanation required is for the period from the date of the incident, not from the last date possible for compliance, ie 4 July 2020. The approximate two year delay from 2017 to 2019 is simply not explained. The correspondence shows that there was legal representation available to the plaintiff though it is not clear when that representation first became available or was engaged, nor when it ended, though it may well have been about the time of the rendering of the disbursement bill.
4. The plaintiff was somewhat hamstrung in that he could not commence the proceedings without the exemption certificate and the exemption certificate was not provided until after the expiration of the three years. It would be artificial to suggest that was the explanation for the delay because the question clearly arises as to why the exemption certificate was not sought. In fact as raised below, the absence of an assessment certificate poses some difficulties in relation to the second matter to be considered. For present purposes however based on the background I have set out above there is simply no explanation as to why either an assessment certificate or exemption certificate was not sought before October 2020, a date 6 months after the expiration of 3 years from the incident, or as to why the matter was never advanced generally further than it was prior to 4 July 2020. I have considered the possibility that it could be the injuries themselves, including the plaintiff's attitude to the incident, that have caused the delay. Yet the evidence does not support that view. The plaintiff's affidavit evidence does not set out facts that would support this view, in fact, the plaintiff's affidavit of 19 March 2021 asserts he has followed "the timetable", a reference to the timetable following the filing of a statement of claim, which suggests an ability on his part to do things in a timely manner, which clearly has not occurred in this case, and for which there is no real explanation. Bearing in mind the terms of the definition in section 66 it simply cannot be said on the present material that a reasonable person in the position of the plaintiff would have been justified in experiencing the same delay.

Likely damages

1. In assessing the damages it is likely the plaintiff would receive for the purposes of section 109 I note the scheme of the MACA, which is to impose a threshold that must be passed before any damages can be awarded. Once that threshold is passed, the matter is then assessed in accordance with general common law principles, subject only to the legislative cap of s134; see Hodgson v Crane (2002) 55 NSWLR 199.
2. The assessment of "likely damages" when determining a matter under section 109 was recently considered by the Court of Appeal in Rahman v Al-Maharmeh [2021] NSWCA 31. At [47] Brereton JA described the section 109 consideration concerning likely damages as follows: Section 109(3)(b) requires the Court to assume that the claim succeeds on liability, and to predict whether the total damages of all kinds likely to be awarded will exceed the threshold. This is a predictive exercise, based on a preliminary enquiry involving a cursory assessment of the available material,[15] in which the question is whether there is "a real and not a remote chance or possibility, regardless of whether it is less or more than 50 per cent", that the total damages will exceed the relevant threshold.
3. By the statement of claim filed on 21 January 2021 under the heading "relief claimed" is set out 4 paragraphs to the following effect: 1. Damages for personal injuries suffered physically to the plaintiff's lower back and neck, medico report costing $2200 available. 2. Damages the psychological pain and suffering caused by the incident medico report costing $2200 available. 3. Compensation for injury to feelings which are said to be mental suffering disgrace and humiliation caused by the event and 20 odd court cases caused by the event. 4. Exemplary damages for the actions of the defendant acting in an insulting disgraceful way punitive damages to discourage the defendant and others from doing similar conduct.
4. In other words there is no claim for economic loss, something that was confirmed by the plaintiff orally at the hearing although that was odd because he had earlier referred to missing out on the opportunity to earn $120 per hour as a stop/go operator at night. Even if the claim did extend to that style of economic loss there is nothing in the evidence of the plaintiff setting out any evidence that would allow even the most cursory analysis or assessment of the likely damages that may be awarded for it.
5. It was noted above that the claim was for $284,000 plus some costs. Those costs claimed amount to $4453.30, being in effect the disbursements for the two medical reports. Save for that, the Claim is therefore for the non-economic loss set out above. The terms of section 144 makes good the submission for the defendant that exemplary damages and punitive damages are not available. This leaves the first three paragraphs identified above.
6. It would be unfair to the plaintiff to not note that he presented in court as a troubled man. In terms of evidence the material that is to the point in this regard are the two medical reports outlined above and the CT report. There is subpoenaed material from his general practitioner but there were no submissions founded upon that. I take that material into account in terms that there has been continuing attendances upon his general practitioner, some clearly relating to his back and mental health issues. Further, there appears to be no entries concerning back injury prior to the incident, supporting the view of Dr Kinny. There are entries as early as 2009 concerning mental health issues. The medical notes give the plaintiff's date of birth as 30 November 1960.
7. The plaintiff has provided scant if any evidence as to the impact of the injuries upon him. The plaintiff has stated numerous conclusions in the broadest terms including that his life has been ruined, however he puts forward no evidence of what he can no longer do that he once could, or examples of why the injuries require compensation to any level of detail at all. This renders the fundamental aim of compensation so as to put the plaintiff as nearly in the position he would be in if the injuries had not occurred very difficult.
8. The MACA has specific provisions dealing with claims for non-economic loss. Prime amongst them is section 131 which provides that no damages may be awarded for non-economic loss unless the degree of permanent impairment of the injured person as a result of the injury caused by the motor accident is greater than 10%.
9. Section 132 provides that where there is a dispute about the degree of permanent impairment and whether it is sufficient for an award of damages for non-economic loss, that is whether it is more than 10%, the court may not award such damages unless the degree of permanent impairment has been assessed by a medical assessor under part 3.4 of the MACA. I query why the plaintiff sought an exemption certificate when the only claim he sought to make was for non-economic loss, and he requires such a certificate to be awarded the damages he seeks.
10. By section 132(2) the court may at any stage in proceedings for an award for non-economic loss refer the matter to assessment of the degree of permanent impairment under part 3.4. Query whether the plaintiff having elected to proceed by way of an exemption certificate has deprived himself of that opportunity. I tend to the view that he has not given that subsection 2 talks about what the court may do.
11. Section 132(3) provides that a medical assessor may decline to make the assessment under part 3.4 until the assessor is satisfied that the impairment caused by the injury has become permanent. An argument made by the defendant is that neither the psychiatric nor the physical injuries complained of could be said to be permanent based on the current evidence.
12. Section 133 provides that the assessment of the degree of permanent impairment is to be expressed as a percentage and is to be made in accordance with the Motor Accidents Medical Guidelines and where there are no such guidelines then in accordance with the American Medical Association's guides to the evaluation of permanent impairment, fourth edition. Subsection 3 provides in effect that regard cannot be had to psychiatric or psychological injury impairment or symptoms unless the assessment of the degree of impairment is made solely with respect to the result of a psychiatric or psychological injury. In other words the 10% threshold cannot be achieved by an accumulation of assessments of impairments physical and psychological and psychiatric. The 10% threshold needs to be met solely by one or the other of those impairments to satisfy s131.
13. Section 61 provides for the giving of a certificate by a medical assessor. The certificate is conclusive evidence of the matters certified therein in respect of the particular claim concerned. Subsection 4 then provides that a court may reject the certificate and subsection 5 provides that in those circumstances the court is to refer the matter again for assessment. Subsection 7 provides that a court may not substitute its own determination as to any medical assessment matter except as provided by subsection 6. Subsection 6 makes provisions for the circumstance where a certificate has been rejected under subsection 4. In those circumstances an assessment may be made by the court in accordance with section 133 rather than referring the matter again for assessment under part 3.4.
14. Section 88 provides that a reference to referring a claim for assessment includes a reference to referring a claim for a certificate of exemption. This allows for the prospect that subsections 61(4) and (5) can operate to allow the Court to refer this matter for assessment. In other words, the certificate that could be rejected is the certificate of exemption.
15. There are two consequences that arise from this. It means that without a certificate assessing permanent impairment of more than 10% the Court cannot award damages for non-economic loss. In that regard there is no evidence of the plaintiff suggesting that is going to happen. I do not consider this to be fatal to this application due to the second consequence. The Court can refer the matter for assessment. That however would not determine the present question under section 109. There still needs to be an assessment of whether it is likely that the plaintiff will obtain damages of at least $130,250 for him to succeed in his present application. If he does, then subject to any further submissions, the Court could refer the matter for the necessary assessment, which if obtained would permit the awarding of damages for non-economic loss at final hearing, subject of course to the findings of that hearing. Should the plaintiff fail in the s109 argument, then there is no need for any further assessment.
16. I am very conscious of the plaintiff acting for himself and with all due respect to him not really serving his interests in the most effective way. The position the matter has reached is truly odd, explained perhaps by the plaintiff's misguided desire to treat his case as not caught by the MACA, and to make his assertion of assault. Be that as it may be, my view is the position is as set out above.
17. The defendant argued in any event that the evidence referred to above shows no permanent impairment. References to the assessment being of a degree of impairment referable to permanent impairment are plain from sections 61(6), 131, 132 and 133. What is being assessed is a permanent impairment.
18. It was submitted for the defendant that there was no suggestion in the Dr Kinny report of there being permanent damage. With respect that is not the case. The report states that the injuries have settled and does give a good prognosis. It also says that there will be ongoing limitations on the length of time that the plaintiff can sit down and restrictions on how much weight he can lift. Certainly, the report does not suggest that there will be a great deal of ongoing damage or pain but there are nevertheless impacts on the plaintiff's life into the future.
19. The argument concerning psychiatric or psychological injury for the defendant was put on the basis that it would need to be discounted by other stressors that have been identified in that report. Of concern is the prognosis that the state of wellness will be determined by either a favourable or unfavourable outcome of these proceedings. The diagnosis of post-traumatic stress disorder is a significant one, though clearly with a great variety of impact on the sufferer.
20. The onus here is on the plaintiff. The evidence allows the conclusion that the plaintiff does suffer both physical and psychological consequences as a result of the incident. The plaintiff needs to establish at this stage that it is likely that the damages he will be awarded will be not less than $130,250.
21. In assessing the likely award of damages for non-economic loss (being the only head of damages claimed, outside of fees and disbursements of $4453.30, which in any event would likely not form part of the consideration), I take into account the following: 1. The general compensatory principle of putting the plaintiff in the position he would be in if the injuries had not occurred; 2. The pathological evidence of the CT report, including the impinging of the thecal sac; 3. The report of Dr Kinny, including establishing an annular tear of the L4/L5 disc, and also showing the back injury symptoms have settled, and so far as the evidence reveals, have been settled for now 21 months, and that further treatment is unlikely, and there had been limited treatment in the period from the incident occurring until June 2019, some 2 years; 4. There is some difficulty for the plaintiff in sitting and standing for long periods; 5. The absence of any direct evidence of substance of the plaintiff as to just how he has been impacted by these injuries; 6. It can fairly be said of the physical injuries that the damages would largely be for past pain and suffering and loss of amenity, and with little basis for any substantial damages into the future; 7. There are identified psychiatric injuries, including PTSD which is attributed to the incident; 8. There are clinical features of severe depression, though the GP notes show there was depression experienced before the incident. The notes also show a variety of stressors causing depression; 9. The prognosis of Dr Garg is that it is dependent on the outcome of the legal and financial problems. So if the plaintiff was to gain a favourable outcome he would be in better health than if he fails in his claim. For present (s109) purposes, liability is assumed, which without wishing to seem perverse, means the damages will be less, with little basis for any meaningful award of damages in respect of future pain and suffering and loss of amenity. 10. As with the physical injuries, there is no meaningful evidence of the plaintiff of just how he is affected by the psychiatric ailments he attributes to the incident.
22. The task of assessing the plaintiff's non-economic loss is difficult, and not capable of being a stepped out calculation of any detail. I do consider the injuries ongoing, and clearly beyond the trivial. Doing the best that can be done on the available evidence I would seek to assess the non-economic damages in respect of the physical injuries and the psychiatric injuries discreetly so as to then arrive at the necessary once and for all overall figure. I assess the plaintiff's damages for psychiatric injury at $50,000, both past and future, and for the physical injuries in the same amount, on the same basis. The finding as to the likely award of damages is therefore no more than $100,000. Even if the $4453.30 figure was included, this still falls short of the necessary $130,250.

Conclusions and orders

1. It follows that the plaintiff has failed to make out either of the two requirements of s109(3) of the MACA for the reasons detailed above.
2. Consequently the leave of the Court to commence proceedings more than 3 years after the incident must not be granted.
3. The plaintiff's summons is dismissed, and to the extent that the recently filed statement of claim may be valid, it is dismissed.
4. It has not been necessary to consider the defendant's motion dated 17 February 2021 and as these proceedings are now at an end, that motion is dismissed. 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: 06 April 2021