De Gelder v Rodger

Case [2012] NSWDC 191

District Court


New South Wales

Medium Neutral Citation: De Gelder v Rodger [2012] NSWDC 191
Hearing dates:21, 22, 23, 24, 25, 28 May, 20 June, 13, 14,15,16 & 17 August 2012
Decision date: 15 October 2012
Jurisdiction:Civil
Before: Levy SC DCJ
Decision:

See paragraph [290] for orders.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: TORTS - motor vehicle accident - referral of claim to Medical Assessment Service for further assessment pursuant to s 62(1)(b) of the Motor Accidents Compensation Act 1999
Legislation Cited: Civil Procedure Act 2005, s 5D, s 5E, s 56
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 62(1)(b)
Uniform Civil Procedure Rules 2005, r 31.23, Sch 7
Cases Cited: Dasreef Pty Ltd v Hawchar [2011] HCA 21
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
De Gelder v Motor Accidents Authority of NSW [2009] NSWSC 1173
Mahony v J Krushich (Demolitions) Pty Ltd [1985] HCA37
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
March v (E & MH) Stramare Pty Limited [1991] HCA 12;(1991) 171 CLR 506
Mason v Demasi [2009] NSWCA 227
Mt Isa Mines Ltd v Pusey [1970] HCA 60; (1970) 125 CLR 383
Rodger v De Gelder & Anor [2011] NSWCA 97
Rodger v De Gelder & Anor (No 2); [2011] NSWCA 235
Rodger v De Gelder [2012] NSWCA 167
Strong v Woolworths Ltd [2012] HCA 5
Trazivuk v Motor Accidents Authority of NSW & Ors [2010] NSWCA 287
Watts v Rake [1960] HCA 58; (1960) 108 CLR 158
Category:Procedural and other rulings
Parties: Adam Roy De Gelder (Plaintiff)
James Norman Barr Rodger (Defendant)
Representation: Mr P Semmler QC with Mr A Canceri (Plaintiff)
Mr W Fitzsimmons (Defendant)
CMC Lawyers (Plaintiff)
Curwoods Lawyers (Defendant)
File Number(s):2010/229350
Publication restriction:None

Judgment

Table of Contents

Nature of case - Interim findings

[1] - [2]

Need for interim findings

[3] - [5]

Causation issue underpinning referral to MAS

[6] - [8]

Delay in finalising the proceedings - the MAC Act scheme

[9] - [11]

Justification for referral back for further MAS assessment

[12] - [15]

Matters for consideration in interim findings

[16] - [21]

Credit

[22] - [24]

Facts underpinning the causation issue

[25] - [52]

  Plaintiff's factual account

[26] - [33]

  Defendant's factual account

34] - [41]

  Interim findings concerning the events of the collision

[42] - [52]

Injuries as initially appreciated by plaintiff

[53] - [55]

Prior injuries

[56]

Pre-existing osteoporosis of plaintiff's thoracic spine

[57]

No treatment during first three months after accident

[58]

Episode of low back pain on 30 November 2005

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AGLC
De Gelder v Rodger [2012] NSWDC 191
Case
[2012] NSWDC 191
Decision Date

CaseChat Overview and Summary

In the case of De Gelder v Rodger, the plaintiff, De Gelder, sought damages for injuries sustained in a motor vehicle accident. The defendant, Rodger, was responsible for the accident. The dispute was referred to the Medical Assessment Service for further assessment under section 62(1)(b) of the Motor Accidents Compensation Act 1999. The case was heard in the District Court of New South Wales.

The primary legal issues that the court had to resolve were whether the referral to the Medical Assessment Service was appropriate and whether the assessments conducted were sufficient to determine the extent of the plaintiff's injuries and damages. The court needed to consider the statutory framework governing referrals to the Medical Assessment Service and the adequacy of the medical reports and assessments provided.

The court examined the statutory provisions and the evidence presented. It concluded that the referral to the Medical Assessment Service was appropriate as the plaintiff's injuries were complex and required further medical assessment. However, the court found that the assessments conducted were inadequate because they did not sufficiently address the plaintiff's ongoing symptoms and the impact of the injuries on her life. The court noted that the reports lacked detailed analysis and failed to consider all relevant factors.

The court ordered that the case be referred back to the Medical Assessment Service for further assessment, specifically to address the plaintiff's ongoing symptoms and the impact of the injuries on her life. The orders also included provisions for the parties to provide additional evidence and for the re-assessment to be conducted by a medical expert with appropriate expertise in the relevant field.

Orders

Orders of the court

See paragraph [290] for orders.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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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