Davis v Kent - [2017] NSWCA 122

Court of Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Davis v Kent [2017] NSWCA 122
Hearing dates: 4 May 2017
Date of orders: 04 May 2017
Decision date: 31 May 2017
Before: Beazley ACJ;
Meagher JA;
Leeming JA
Decision:
Reasons for judgment.

Orders made 4 May 2017 as follows:
(1)   Grant leave to appeal;
(2)   Appeal allowed;
(3)   Set aside orders 2 and 3 made on 11 October 2016;
(4) Direct the respondent forthwith to advise the Proper Officer of the Motor Accidents Authority in the Unit of the Medical Assessment Service that the referral under s 62(1)(b) for further medical assessment has been set aside;
(5)   The Court notes that the insurer of the respondent will withdraw the application for further medical assessment in any event;
(6)   Remit the matter to the District Court for the fixing of a hearing date for determination of the applicant’s claim made in the statement of claim;
(7)   The respondent to pay all costs in this Court, being both for the summons for leave to appeal and the appeal;
(8)   The respondent to pay the costs of the application for referral, being the costs reserved by the primary judge.
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 for further medical assessment – delay in making application – delay caused by reassessment process – whether primary judge erred in exercising discretion to make order for referral under Motor Accidents Compensation Act 1999 (NSW), s 62(1)(b) – discretion miscarried given significant delay if referral for reassessment
Legislation Cited: Civil Procedure Act 2005 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Category: Principal judgment
Parties: Lyle Michael Joseph Davis (Appellant)
Neil Kent (Respondent)
Representation:
Counsel:
DH Murr SC; M Fraser (Appellant)
D Ronzani (Respondent)
Solicitors:
Castagnet Lawyers (Appellant)
Curwoods (Respondent)

File Number(s): 2016/333325
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

11 October 2016

Before:

Dicker SC DCJ

File Number(s):

2015/145767

Headnote

[This headnote is not to be read as part of the judgment]

The appellant was seriously injured in a motor vehicle accident on 26 May 2012, sustaining head, skeletal and other injuries. In September 2013, the appellant underwent medical assessment by the Motor Accidents Medical Assessment Service (MAS) pursuant to Pt 3.4 of the Motor Accidents Compensation Act 1999 (NSW) (the Act).

The appellant was assessed as having an 11 per cent permanent impairment in relation to the head injury he suffered. This figure was significant as s 131 of the Act provided that a person must have a permanent whole body impairment of greater than 10 per cent in order to be entitled to damages for non-economic loss.

The appellant commenced Common Law proceedings in the District Court in May…

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 Davis v Kent

Details

AGLC: Davis v Kent [2017] NSWCA 122
Case: [2017] NSWCA 122
Decision Date: 31 May 2017

CaseChat Overview and Summary

In *Davis v Kent*, the applicant, an injured person, appealed to the Court of Appeal of New South Wales against an order made by a primary judge. The dispute concerned the degree of permanent impairment resulting from a motor accident, with the applicant seeking a further medical assessment under section 62(1)(b) of the *Motor Accidents Compensation Act 1999* (NSW). The respondent, the insurer, had applied for this referral.

The central legal issue before the Court of Appeal was whether the primary judge erred in exercising their discretion to order a further medical assessment, given the significant delay that had already occurred in the proceedings. The court was required to consider if the delay, which was partly attributed to a reassessment process, justified the primary judge's decision to grant the referral.

The Court of Appeal found that the primary judge had miscarried their discretion in ordering the further medical assessment. Their Honours reasoned that the substantial delay in the proceedings, even considering the reassessment process, weighed heavily against granting the referral. The court allowed the appeal, set aside the primary judge's orders for referral, and directed that the referral be withdrawn. The court also noted that the insurer intended to withdraw the application regardless of the appeal outcome. The matter was remitted to the District Court for the determination of the applicant's claim, and the respondent was ordered to pay all costs associated with the appeal and the application for referral.

Orders

Orders of the court

Reasons for judgment.

Orders made 4 May 2017 as follows:

(1) Grant leave to appeal;

(2) Appeal allowed;

(3) Set aside orders 2 and 3 made on 11 October 2016;

(4) Direct the respondent forthwith to advise the Proper Officer of the Motor Accidents Authority in the Unit of the Medical Assessment Service that the referral under s 62(1)(b) for further medical assessment has been set aside;

(5) The Court notes that the insurer of the respondent will withdraw the application for further medical assessment in any event;

(6) Remit the matter to the District Court for the fixing of a hearing date for determination of the applicant’s claim made in the statement of claim;

(7) The respondent to pay all costs in this Court, being both for the summons for leave to appeal and the appeal;

(8) The respondent to pay the costs of the application for referral, being the costs reserved by the primary judge.

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:	Davis v Kent [2017] NSWCA 122
Hearing dates:	4 May 2017
Date of orders:	04 May 2017
Decision date:	31 May 2017
Before:	Beazley ACJ; Meagher JA; Leeming JA
Decision:	Reasons for judgment. Orders made 4 May 2017 as follows: (1) Grant leave to appeal; (2) Appeal allowed; (3) Set aside orders 2 and 3 made on 11 October 2016; (4) Direct the respondent forthwith to advise the Proper Officer of the Motor Accidents Authority in the Unit of the Medical Assessment Service that the referral under s 62(1)(b) for further medical assessment has been set aside; (5) The Court notes that the insurer of the respondent will withdraw the application for further medical assessment in any event; (6) Remit the matter to the District Court for the fixing of a hearing date for determination of the applicant’s claim made in the statement of claim; (7) The respondent to pay all costs in this Court, being both for the summons for leave to appeal and the appeal; (8) The respondent to pay the costs of the application for referral, being the costs reserved by the primary judge.
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 for further medical assessment – delay in making application – delay caused by reassessment process – whether primary judge erred in exercising discretion to make order for referral under Motor Accidents Compensation Act 1999 (NSW), s 62(1)(b) – discretion miscarried given significant delay if referral for reassessment
Legislation Cited:	Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW)
Cases Cited:	Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27
Category:	Principal judgment
Parties:	Lyle Michael Joseph Davis (Appellant) Neil Kent (Respondent)
Representation:	Counsel: DH Murr SC; M Fraser (Appellant) D Ronzani (Respondent) Solicitors: Castagnet Lawyers (Appellant) Curwoods (Respondent)
File Number(s):	2016/333325
Decision under appeal	Court or tribunal: District Court Date of Decision: 11 October 2016 Before: Dicker SC DCJ File Number(s): 2015/145767