Gauci v Roo - [2024] NSWDC 361

District Court

New South Wales

Medium Neutral Citation: Gauci v Roo [2024] NSWDC 361
Hearing dates: 9 August 2024
Date of orders: 21 August 2024
Decision date: 21 August 2024
Jurisdiction: Civil
Before: Catsanos SC DCJ
Decision:
(1) Dismiss the defendant’s notice of motion filed on 17 January 2024.
(2) The defendant is to pay the plaintiff’s costs on the notice of motion.

Catchwords:
CIVIL PROCEDURE – Interlocutory application – Medical examination – Pt 23 r 23.4 Uniform Civil Procedure Rules 2005 (NSW) – Motor vehicle accident – Defendant seeking order for plaintiff to submit to CT scan - Whether request is reasonable in the circumstances – motion dismissed

Legislation Cited:
Motor Accident Injuries Act 2017 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:
Aspinall v Sterling Mansell Ltd [1981] All ER 866
Corke v Shopping Centres Australasia Property Group Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019
Dikschei v Epworth Foundation & Anor [2010] VSC 435
Plaintiff [name withheld] v Stapleton [2017] NSWSC 914
Rowlands v State of New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715

Category: Principal judgment
Parties:
Andre Gauci (plaintiff/respondent)
Eun Jung Roo (defendant/applicant)
Representation:
Counsel:
E Welsh and W Lidden (plaintiff/respondent)
M Nesbeth (defendant/applicant)
Solicitors:
Boyd House & Partners (plaintiff/respondent)
Sparke Helmore Lawyers (defendant/applicant)

File Number(s): 2021/00129791

JUDGMENT

Relief claimed

By notice of motion filed on 17 January 2024, the defendant seeks orders, pursuant to Pt 23 r 23.4 of the Uniform Civil Procedure Rules 2005, compelling the plaintiff to submit to a CT scan of the right femur.
That notice of motion also seeks a stay of proceedings pending the CT scan being undertaken. However, at the hearing before me the defendant did not press for that order on the basis that, if successful on the primary application, further orders could be sought in the event of non-compliance.

Background to the Application

The plaintiff, who was born in April 2004, was injured on 27 August 2018 when the push bike he was riding collided with a motor vehicle driven by the defendant.
Amongst the injuries suffered by the plaintiff in the accident was a fracture of the right femur, which was treated by intramedullary nailing. That hardware was subsequently removed on 15 April 2019.
In these proceedings the plaintiff seeks damages for non-economic loss and economic loss, pursuant to the Motor Accident Injuries Act 2017 (NSW) (‘MAI Act’).
In order to recover damages for non-economic loss the plaintiff must establish a degree of permanent impairment greater than 10%.
The plaintiff has been the subject of medico-legal assessment by Dr Gehr in his case and by Dr Machart in the defendant’s case.
In the context of assessing non-economic loss, but also relevant to the assessment of the nature and extent of the plaintiff’s injuries more generally, a relevant consideration is whether, and if so to what extent, the plaintiff has suffered malrotation of the right femur.
On 11 November 2020, the plaintiff was examined by Dr Gehr, who, amongst…

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 Gauci v Roo

Details

AGLC: Gauci v Roo [2024] NSWDC 361
Case: [2024] NSWDC 361
Decision Date: 21 August 2024

CaseChat Overview and Summary

The case involved a dispute between Gauci, the plaintiff, and Roo, the defendant, following a motor vehicle accident. The defendant sought an order for the plaintiff to undergo a CT scan as part of the medical examination process. This matter was determined in the Supreme Court of New South Wales. The court had to consider whether the defendant's request for a CT scan was reasonable under the circumstances.

The court examined the application under Part 23 Rule 23.4 of the Uniform Civil Procedure Rules 2005 (NSW). The key issue was whether the defendant's request for a CT scan was reasonable and necessary for the assessment of the plaintiff's medical condition. The court considered the plaintiff's medical history, the nature of the injuries claimed, and the existing medical evidence provided. The court also weighed the invasiveness of the CT scan against the potential benefits of the information it could provide.

After considering the evidence and the arguments presented, the court found that the defendant's request for a CT scan was not reasonable in the circumstances. The court determined that the existing medical evidence was sufficient for the assessment of the plaintiff's condition and that the request for a CT scan was not justified. Consequently, the court dismissed the defendant's notice of motion and ordered the defendant to pay the plaintiff's costs associated with the application.

Orders

Orders of the court

(1) Dismiss the defendant’s notice of motion filed on 17 January 2024.

(2) The defendant is to pay the plaintiff’s costs on the notice of motion.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Gauci v Roo [2024] NSWDC 361
Hearing dates:	9 August 2024
Date of orders:	21 August 2024
Decision date:	21 August 2024
Jurisdiction:	Civil
Before:	Catsanos SC DCJ
Decision:	(1) Dismiss the defendant’s notice of motion filed on 17 January 2024. (2) The defendant is to pay the plaintiff’s costs on the notice of motion.
Catchwords:	CIVIL PROCEDURE – Interlocutory application – Medical examination – Pt 23 r 23.4 Uniform Civil Procedure Rules 2005 (NSW) – Motor vehicle accident – Defendant seeking order for plaintiff to submit to CT scan - Whether request is reasonable in the circumstances – motion dismissed
Legislation Cited:	Motor Accident Injuries Act 2017 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	Aspinall v Sterling Mansell Ltd [1981] All ER 866 Corke v Shopping Centres Australasia Property Group Limited trading as Cabarita Beach Shopping Centre [2024] NSWSC 1019 Dikschei v Epworth Foundation & Anor [2010] VSC 435 Plaintiff [name withheld] v Stapleton [2017] NSWSC 914 Rowlands v State of New South Wales [2009] NSWCA 136; (2009) 74 NSWLR 715
Category:	Principal judgment
Parties:	Andre Gauci (plaintiff/respondent) Eun Jung Roo (defendant/applicant)
Representation:	Counsel: E Welsh and W Lidden (plaintiff/respondent) M Nesbeth (defendant/applicant) Solicitors: Boyd House & Partners (plaintiff/respondent) Sparke Helmore Lawyers (defendant/applicant)
File Number(s):	2021/00129791