District Court
New South Wales
Medium Neutral Citation: Adilzada v The Nominal Defendant [2016] NSWDC 24 Hearing dates: 10 March 2016 Date of orders: 15 March 2016 Decision date: 15 March 2016 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: See paragraph 45
Catchwords: Use of powers under the Motor Accident Compensation Act 1999 to compel attendance of an injured person on a medical practitioner for the purpose of the Motor Accidents (Lifetime Care and Support) Act 2006 Legislation Cited: Motor Accident Compensation Act 1999
Motor Accidents (Lifetime Care and Support) Act 2006
Uniform Civil Procedure Rules 2005Cases Cited: Daly v Thiering [2013] HCA 45
Thiering v Daly [2011] NSWSC 1345Category: Procedural and other rulings Parties: Said Mojahid Adilzada (Plaintiff)
The Nominal Defendant (Defendant)Representation: Counsel:
Solicitors:
D Campbell SC (Plaintiff)
K Rewell SC (Defendant)
Premier Compensation Lawyers (Plaintiff)
Curwoods Lawyers (Defendant)
File Number(s): 2011/00238752
Judgment
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The plaintiff was born in 1984. On 18 October 2007 he was the driver of a motor car involved in a motor vehicle accident in Griffith in New South Wales. His injuries included a brain injury.
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The plaintiff made a claim for compensation under the Motor Accident Compensation Act 1999 (the “MACA”). The claim was lodged on 21 April 2010. It was exempted from the CARS process on 18 February 2011.
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The plaintiff commenced court proceedings seeking damages under the MACA on 25 July 2011.
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The allegedly negligent driver was not able to be identified. Hence the Nominal Defendant has been sued. It denies liability for the accident. The relevant insurer is Allianz.
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The applicable legislation for current purposes, besides the MACA, is the Motor Accidents (Lifetime Care and Support) Act 2006 (the “LCS”).
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In December 2012 Allianz applied to the Lifetime Care and Support Authority of New South Wales (the “Authority”) for the plaintiff to be accepted as a participant in the scheme established by the LCS (the “LCS scheme”). In very brief compass the scheme provides for the care needs of seriously injured motor accident victims. Acceptance into the scheme automatically precludes the injured person from recovering certain heads of damage, such as attendant care (Section 141A of the MACA).
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In making its application Allianz relied on a certificate from a rehabilitation physician, Professor Cameron, in which he certified that the plaintiff satisfied the criteria for entrance into the scheme. In aid of his opinion Professor Cameron had carried out a Functional Independence Measure (an “FIM”), on 18 December 2012, which determines one of the admission criteria under the LCS Guidelines (in particular Clause 2.2).
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The plaintiff was accepted into the LCS scheme as an interim participant on 9 January 2013 (LCS, Section 9).
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Interim participation cannot extend beyond two years. Accordingly when the two year period was drawing to a close the Authority wrote to the plaintiff telling him that further assessments were necessary if he were to become a permanent participant in the LCS scheme. The plaintiff refused any further…
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- Case
- [2016] NSWDC 24
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the Motor Accident Compensation Act permitted the compulsion of an injured person to attend a medical practitioner for the purposes of the Motor Accidents (Lifetime Care and Support) Act. Specifically, the court had to interpret and reconcile the provisions of both Acts, particularly sections 34 and 36 of the Motor Accident Compensation Act and section 30 of the Motor Accidents (Lifetime Care and Support) Act. The central issue was whether the use of power under the Motor Accident Compensation Act to compel attendance at a medical practitioner was limited to the purposes of that Act or whether it could be extended to the purposes of the Motor Accidents (Lifetime Care and Support) Act.
The court found that the Motor Accident Compensation Act did permit the compulsion of an injured person to attend a medical practitioner for the purposes of the Motor Accidents (Lifetime Care and Support) Act. The court concluded that sections 34 and 36 of the Motor Accident Compensation Act should be interpreted in a way that was consistent with the overarching objective of the Motor Accidents (Lifetime Care and Support) Act. The court held that the use of power under the Motor Accident Compensation Act to compel attendance at a medical practitioner was not limited to the purposes of that Act but could be extended to the purposes of the Motor Accidents (Lifetime Care and Support) Act. Consequently, the plaintiff's application for a declaration and an order compelling attendance was granted.
The court made a declaration that sections 34 and 36 of the Motor Accident Compensation Act should be read in a manner consistent with section 30 of the Motor Accidents (Lifetime Care and Support) Act. Additionally, the court ordered the defendant to attend a medical practitioner for assessment in relation to the plaintiff’s claim for lifetime care and support. The court also ordered the defendant to pay the plaintiff’s costs of the application.
Orders
Orders of the court
See paragraph 45
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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