Nominal Defendant v Adilzada

Case [2016] NSWCA 266

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Nominal Defendant v Adilzada [2016] NSWCA 266
Hearing dates:25 August 2016
Decision date: 22 September 2016
Before: McColl JA at [1];
Meagher JA at [2];
Gleeson JA at [41]
Decision:

1. The parties to lodge written submissions (not to exceed three pages) with Meagher JA’s Associate, the applicant within seven days of the date of this direction, and the respondent within seven days thereafter, those submissions to address the question in [37] and the costs order proposed in [38]. The Court will then determine on the papers the final orders to be made.

Catchwords: TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) – where respondent driver injured in motor vehicle accident, sustaining serious brain injury – where proceedings against Nominal Defendant claiming damages, including for economic loss for treatment and care services – where respondent entitled, if eligible, to participate in Lifetime Care and Support Scheme – whether Nominal Defendant may request respondent under s 86 of the Motor Accidents Compensation Act 1999 (NSW) to undergo medical examination for purpose of determining eligibility to participate in Lifetime Care and Support Scheme
Legislation Cited: District Court Act 1973 (NSW), s 127(2)(a)
Motor Accidents Compensation Act 1999 (NSW), ss 3, 5, 6, 43A, 78, 80, 85, 86, 107, 130A, 141A
Motor Accidents and Lifetime Care and Support Schemes Legislation Amendment Act 2012 (NSW)
Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), ss 3, 5, 5A, 6, 7, 8, 9, 10, 11A, 11B, 11C, 48, 49, 54, 58
Uniform Civil Procedure Rules 2005 (NSW), r 23.4
Workplace Injury Management and Workers Compensation Act 1998 (NSW), s 119
Cases Cited: Coco v The Queen (1974) 179 CLR 427
Daly v Thiering (2013) 249 CLR 381; [2013] HCA 45 Fernando v Commissioner of Police (1995) 36 NSWLR 567
Kurnell Passenger & Transport Service Pty Ltd v Randwick City Council (2009) 230 FLR 336; [2009] NSWCA 59
Insurance Australian Limited t/a NRMA Insurance v Milton [2016] NSWCA 156
Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
The Queen v Toohey; Ex parte Northern Land Council (1981) 151 CLR 170
Thiering v Daly (2011) 83 NSWLR 498; [2011] NSWSC 1345
Category:Principal judgment
Parties: Nominal Defendant (Applicant)
Said Mojahid Adilzada (Respondent)
Representation:

Counsel:
KP Rewell SC (Applicant)
DR Campbell SC with JJ Ryan (Respondent)

  Solicitors:
Curwoods Lawyers (Applicant)
Premier Compensation Lawyers (Respondent)
File Number(s):2016/107912
Publication restriction:Nil
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Date of Decision:
15 March 2016
Before:
Elkaim DCJ
File Number(s):
2011/238752

HEADNOTE

[This headnote should not be read as part of the judgement]

On 18 October 2007, the respondent driver was injured in a motor accident, sustaining a serious brain injury. He commenced proceedings in the District Court against the Nominal Defendant for damages relating to those injuries,…

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AGLC
Nominal Defendant v Adilzada [2016] NSWCA 266
Case
[2016] NSWCA 266
Decision Date

CaseChat Overview and Summary

The case of *Nominal Defendant v Adilzada* concerned a respondent driver who sustained a serious brain injury in a motor vehicle accident. The respondent initiated proceedings against the Nominal Defendant seeking damages, including economic loss for treatment and care services. A key aspect of the dispute was whether the respondent, who was potentially eligible for the Lifetime Care and Support Scheme, could be compelled by the Nominal Defendant to undergo a medical examination pursuant to section 86 of the *Motor Accidents Compensation Act 1999* (NSW) for the purpose of determining that eligibility. The matter was heard in the Court of Appeal of New South Wales.

The central legal issue before the Court of Appeal was the interpretation and application of section 86 of the *Motor Accidents Compensation Act 1999* (NSW). Specifically, the court was required to determine whether the Nominal Defendant, in the context of a claim for damages including economic loss for treatment and care, had the power to request the injured respondent to undergo a medical examination for the purpose of assessing their eligibility for the Lifetime Care and Support Scheme. This involved considering the scope of the Nominal Defendant's rights and obligations under the Act in relation to such examinations.

The Court of Appeal directed the parties to lodge written submissions addressing the question of the Nominal Defendant's power to request the medical examination and the proposed costs order. The court indicated that it would determine the final orders on the papers after reviewing these submissions. The reasoning and legal principles applied by the court in reaching its final determination were to be informed by the submissions addressing the specific question of statutory interpretation raised by section 86 of the Act.

Orders

Orders of the court

1. The parties to lodge written submissions (not to exceed three pages) with Meagher JA’s Associate, the applicant within seven days of the date of this direction, and the respondent within seven days thereafter, those submissions to address the question in [37] and the costs order proposed in [38]. The Court will then determine on the papers the final orders to be made.

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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