Azzopardi v Mahajan - [2023] NSWDC 406

District Court

New South Wales

Medium Neutral Citation: Azzopardi v Mahajan [2023] NSWDC 406
Hearing dates: 21 September 2023
Date of orders: 4 October 2023
Decision date: 04 October 2023
Jurisdiction: Civil
Before: Strathdee DCJ
Decision:
(1) Pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s left sacral alar fracture caused by the motor accident on 20 December 2016 be referred to the Personal Injury Commission of New South Wales for further medical assessment of the issue as to the degree of permanent impairment flowing from the said left sacral alar fracture.
(2) Costs of the motion be costs in the cause.

Catchwords:
MOTOR ACCIDENTS COMPENSATION – action for damages – non-economic loss – medical assessment of permanent impairment caused by motor accident – dispute as to degree of permanent impairment of injured person – application for referral to Personal Injury Commission of New South Wales for further medical assessment – whether medical assessor erred in assessment of permanent impairment – application for exercise of discretion under s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW)

Legislation Cited:
Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)

Cases Cited:
Davis v Kent [2017] NSWCA 122
Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443
Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287
Wood v Insurance Australia Group Limited t/as NRMA Insurance [2022] NSWSC 1290

Texts Cited:
American Medical Association Guides (Fourth Edition)

Category: Procedural rulings
Parties: Jane Rita Azzopardi (Plaintiff)
Rahul Mahajan (Defendant)
Representation:
Counsel:
Mr A Canceri (for the Plaintiff)
Mr A Bowen (for the Defendant)
Solicitors:
Galluzzo Lawyers (for the Plaintiff)
Barry Nilsson (for the Defendant)

File Number(s): 2023/181122
Publication restriction: Nil

JUDGMENT

By Notice of Motion filed 20 June 2023, Jane Rita Azzopardi (‘the plaintiff’) moves the Court for the following orders:

Pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s left sacral alar fracture caused by the motor accident on 20 December 2016 be referred to the Personal Injury Commission of New South Wales for further medical assessment of the issue as to the degree of whole person impairment flowing from the said left sacral alar fracture.

That the costs of the motion be costs in the cause.

Further or other orders as the Court deems fit.

The plaintiff tendered the following:

Affidavit of Rosalie Galluzzo sworn 20 June 2023 (exhibit A on the motion).

Affidavit of Rosalie Galluzzo sworn 21 September 2023 (exhibit B on the motion).

Series of emails that generated Dr Buckley’s reports (exhibit D on the motion).

The defendant read the Affidavit of Melinda Drew sworn 19 July 2023 (exhibit C on the motion).

Background

On 20 December 2016, the plaintiff was involved in a very serious motor vehicle accident in Edmondson Park, New South Wales. A vehicle driven by Rahul Mahajan (‘the defendant’) collided with the side of the plaintiff’s car causing the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Azzopardi v Mahajan

Details

AGLC: Azzopardi v Mahajan [2023] NSWDC 406
Case: [2023] NSWDC 406
Decision Date: 04 October 2023

CaseChat Overview and Summary

The plaintiff, Mr. Azzopardi, initiated proceedings against the defendant, Dr. Mahajan, seeking damages for non-economic loss incurred from a motor accident that occurred on 20 December 2016. The dispute centred on the degree of permanent impairment resulting from a left sacral alar fracture sustained during the accident. The matter was before the Supreme Court of New South Wales.

The court was tasked with determining whether the medical assessment of the plaintiff's permanent impairment was accurate and whether the medical assessor had erred in their evaluation. Specifically, the court had to consider whether the degree of permanent impairment attributed to the left sacral alar fracture was correct, and if not, whether the matter should be referred to the Personal Injury Commission of New South Wales for further medical assessment under section 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW).

In examining the evidence and submissions, the court found that there were reasonable grounds to believe that the medical assessor may have erred in assessing the degree of permanent impairment. The court concluded that it was appropriate to exercise its discretion to refer the issue to the Personal Injury Commission for further medical assessment. The court considered that a fresh assessment by an independent medical expert would provide clarity on the degree of permanent impairment and ensure a fair evaluation of the plaintiff's non-economic loss.

Accordingly, the court ordered that the plaintiff's left sacral alar fracture caused by the motor accident be referred to the Personal Injury Commission of New South Wales for further medical assessment of the issue as to the degree of permanent impairment. The court also ordered that the costs of the motion be costs in the cause.

Orders

Orders of the court

(1) Pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s left sacral alar fracture caused by the motor accident on 20 December 2016 be referred to the Personal Injury Commission of New South Wales for further medical assessment of the issue as to the degree of permanent impairment flowing from the said left sacral alar fracture.

(2) Costs of the motion be costs in the cause.

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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Medium Neutral Citation:	Azzopardi v Mahajan [2023] NSWDC 406
Hearing dates:	21 September 2023
Date of orders:	4 October 2023
Decision date:	04 October 2023
Jurisdiction:	Civil
Before:	Strathdee DCJ
Decision:	(1) Pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s left sacral alar fracture caused by the motor accident on 20 December 2016 be referred to the Personal Injury Commission of New South Wales for further medical assessment of the issue as to the degree of permanent impairment flowing from the said left sacral alar fracture. (2) Costs of the motion be costs in the cause.
Catchwords:	MOTOR ACCIDENTS COMPENSATION – action for damages – non-economic loss – medical assessment of permanent impairment caused by motor accident – dispute as to degree of permanent impairment of injured person – application for referral to Personal Injury Commission of New South Wales for further medical assessment – whether medical assessor erred in assessment of permanent impairment – application for exercise of discretion under s 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW)
Legislation Cited:	Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Davis v Kent [2017] NSWCA 122 Singh v Motor Accidents Authority of New South Wales (No 2) [2010] NSWSC 1443 Trazivuk v Motor Accidents Authority of New South Wales & Ors [2010] NSWCA 287 Wood v Insurance Australia Group Limited t/as NRMA Insurance [2022] NSWSC 1290
Texts Cited:	American Medical Association Guides (Fourth Edition)
Category:	Procedural rulings
Parties:	Jane Rita Azzopardi (Plaintiff) Rahul Mahajan (Defendant)
Representation:	Counsel: Mr A Canceri (for the Plaintiff) Mr A Bowen (for the Defendant) Solicitors: Galluzzo Lawyers (for the Plaintiff) Barry Nilsson (for the Defendant)
File Number(s):	2023/181122
Publication restriction:	Nil