Adilzada v The Nominal Defendant

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 2005
Cases Cited:	Daly v Thiering [2013] HCA 45 Thiering v Daly [2011] NSWSC 1345
Category:	Procedural and other rulings
Parties:	Said Mojahid Adilzada (Plaintiff) The Nominal Defendant (Defendant)
Representation:	Counsel: D Campbell SC (Plaintiff) K Rewell SC (Defendant)   Solicitors: Premier Compensation Lawyers (Plaintiff) Curwoods Lawyers (Defendant)
File Number(s):	2011/00238752

Judgment

1. 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.

2. 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.

3. The plaintiff commenced court proceedings seeking damages under the MACA on 25 July 2011.

4. 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.

5. The applicable legislation for current purposes, besides the MACA, is the Motor Accidents (Lifetime Care and Support) Act 2006 (the “LCS”).

6. 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).

7. 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).

8. The plaintiff was accepted into the LCS scheme as an interim participant on 9 January 2013 (LCS, Section 9).

9. 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…