Davis v Kent - [2016] NSWDC 238

District Court

New South Wales

Medium Neutral Citation: Davis v Kent [2016] NSWDC 238
Hearing dates: 10 October 2016
Date of orders: 11 October 2016
Decision date: 11 October 2016
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Under Part 18(2) of the Uniform Civil Procedure Rules, the Court dispenses with the requirement that the defendant file and serve a Notice of Motion in relation to the application made;
(2) Pursuant to Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s injuries arising from the motor vehicle accident on 26 May 2012 be referred for further medical assessment under Part 3.4 of the Motor Accidents Compensation Act 1999;
(3) The costs of the defendant’s application for referral are reserved;
(4) The defendant pay the plaintiff’s costs thrown away by the vacation of the hearing date as agreed or assessed;
(5) The hearing listed for four days commencing 10 October 2016 is vacated;
(6) The exhibits on the application are to be returned to the parties.

Catchwords: Torts – negligence - motor vehicle accident – application to refer the plaintiff for further medical assessment under the Motor Accidents Compensation Act 1999 (NSW) – exercise of discretion
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Uniform Civil Procedure Rules
Cases Cited: Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182
Chami v Motor Accidents Authority (NSW) (2009) 55 MVR 1; [2009] NSWSC 1358
Trazivuk v Motor Accidents Authority (NSW) [2009] NSWSC 1074
Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287
Category: Procedural and other rulings
Parties: Lyle Joseph Michael Davis (Plaintiff)
Neil Kent (Defendant)
Representation:
Counsel:
M Fraser (Plaintiff)
D Ronzani (Defendant)
Solicitors:
Castagnet Lawyers (Plaintiff)
Curwoods Legal (Defendant)

File Number(s): 2015/00145767

Judgment

This matter was listed for final hearing before me for four days commencing 10 October 2016.
At the commencement of the hearing, Mr Ronzani, counsel for the defendant, made an application under Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) for an order that the matter be referred by the Court for further assessment under Part 3.4 of MACA.
The assessment in question is a medical assessment in relation to the plaintiff by the Motor Accidents Medical Assessment Service.
Having regard to the importance of the application to the continuation of the hearing it was necessary for me to consider the application urgently and to make a decision promptly.
The basis of the application by the defendant was that recent neuropsychological assessment reports had been obtained by both parties dealing with the question whether the plaintiff had a permanent whole of person impairment in relation to a head injury received in a motor vehicle accident in which he was involved as a pedestrian on 26 May 2012. One of those reports, being a report which the defendant obtained, expressed the opinion that the plaintiff’s whole of person impairment concerning the head injury was 0%.
The application was opposed by the plaintiff who submitted that the final hearing…

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.

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Details

Case: [2016] NSWDC 238
Decision Date: 11 October 2016

CaseChat Overview and Summary

In the matter of Davis v Kent, the plaintiff, Ms Davis, sought damages for injuries she sustained in a motor vehicle accident on 26 May 2012. The defendant, Mr Kent, applied under Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW) for an order referring the plaintiff for further medical assessment. The application came before the Supreme Court of New South Wales.

The legal issues before the court were whether the application was appropriate and whether the exercise of the court's discretion warranted a referral under the Act. The plaintiff opposed the application on the basis that the referral was not necessary as she had already undergone extensive medical assessment and treatment.

In its determination, the court considered the statutory provisions and the circumstances of the case. It noted the plaintiff had undergone a comprehensive assessment by medical experts and had received treatment. However, the court found that the evidence presented justified a referral for further assessment to ensure the accuracy and completeness of the plaintiff's medical records. The court held that the exercise of its discretion under the Act warranted a referral, and thus granted the defendant's application. The court also addressed the procedural aspects of the application, including the costs and the vacating of the hearing date.

Consequently, the court ordered the plaintiff’s injuries be referred for further medical assessment. It dispensed with the requirement for the defendant to file a Notice of Motion and reserved the costs of the application. The defendant was directed to pay the plaintiff's costs resulting from the vacation of the hearing date. The exhibits on the application were to be returned to the parties, and the hearing was vacated.

Orders

Orders of the court

(1) Under Part 18(2) of the Uniform Civil Procedure Rules, the Court dispenses with the requirement that the defendant file and serve a Notice of Motion in relation to the application made;

(2) Pursuant to Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s injuries arising from the motor vehicle accident on 26 May 2012 be referred for further medical assessment under Part 3.4 of the Motor Accidents Compensation Act 1999;

(3) The costs of the defendant’s application for referral are reserved;

(4) The defendant pay the plaintiff’s costs thrown away by the vacation of the hearing date as agreed or assessed;

(5) The hearing listed for four days commencing 10 October 2016 is vacated;

(6) The exhibits on the application are to be returned to the parties.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Davis v Kent [2016] NSWDC 238
Hearing dates:	10 October 2016
Date of orders:	11 October 2016
Decision date:	11 October 2016
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Under Part 18(2) of the Uniform Civil Procedure Rules, the Court dispenses with the requirement that the defendant file and serve a Notice of Motion in relation to the application made; (2) Pursuant to Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff’s injuries arising from the motor vehicle accident on 26 May 2012 be referred for further medical assessment under Part 3.4 of the Motor Accidents Compensation Act 1999; (3) The costs of the defendant’s application for referral are reserved; (4) The defendant pay the plaintiff’s costs thrown away by the vacation of the hearing date as agreed or assessed; (5) The hearing listed for four days commencing 10 October 2016 is vacated; (6) The exhibits on the application are to be returned to the parties.
Catchwords:	Torts – negligence - motor vehicle accident – application to refer the plaintiff for further medical assessment under the Motor Accidents Compensation Act 1999 (NSW) – exercise of discretion
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) Uniform Civil Procedure Rules
Cases Cited:	Alavanja v NRMA Insurance Ltd [2010] NSWSC 1182 Chami v Motor Accidents Authority (NSW) (2009) 55 MVR 1; [2009] NSWSC 1358 Trazivuk v Motor Accidents Authority (NSW) [2009] NSWSC 1074 Trazivuk v Motor Accidents Authority of New South Wales [2010] NSWCA 287
Category:	Procedural and other rulings
Parties:	Lyle Joseph Michael Davis (Plaintiff) Neil Kent (Defendant)
Representation:	Counsel: M Fraser (Plaintiff) D Ronzani (Defendant) Solicitors: Castagnet Lawyers (Plaintiff) Curwoods Legal (Defendant)
File Number(s):	2015/00145767