Martin-Lowe v Sellens [2016] NSWDC 229

Martin-Lowe v Sellens [2016] NSWDC 229

The proceedings should not be dismissed because the young plaintiff may have a good cause of action for mental harm and should not have that claim stymied by his tutor's protective refusal to allow an independent medical assessment, particularly where the tutor was herself mentally affected by the death. The matter should remain on foot until the plaintiff is more mature or alternative steps, including consideration of a different tutor, can be pursued.

Jurisdiction
Australia
Judgment Date
15 August 2016
Procedural Posture
Civil Proceedings for Mental Harm Arising From a Motor Vehicle Accident; Liability Admitted and Quantum Only / Defendant's Notice of Motion Filed 12 July 2016 Seeking Dismissal for Lack of Progress
Outcome
Notice of motion filed 12 July 2016 dismissed.
Legal Topics
['application to Dismiss Proceedings for Lack of Progress' 'want of Dispatch' 'assessment of Damages Only' 'mental Harm Following Death in Motor Vehicle Accident' 'minor Plaintiff and Tutor' 'motor Accidents Medical Assessment Service Assessment']
['civil Procedure' 'motor Accidents' 'personal Injury'] ['application to Dismiss Proceedings for Lack of Progress' 'want of Dispatch' 'assessment of Damages Only' 'mental Harm Following Death in Motor Vehicle Accident' 'minor Plaintiff and Tutor' 'motor Accidents Medical Assessment Service Assessment']

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Procedural Posture

Civil Proceedings for Mental Harm Arising From a Motor Vehicle Accident; Liability Admitted and Quantum Only / Defendant's Notice of Motion Filed 12 July 2016 Seeking Dismissal for Lack of Progress

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed for lack of progress pursuant to s 61(3)(a) of the Civil Procedure Act 2005.' 'Whether the proceedings should alternatively be dismissed pursuant to UCPR 12.7.' "Whether the plaintiff's failure to obtain a MAS medical assessment justified dismissal where the plaintiff was a seven-year-old and his tutor did not want him examined by an independent medical specialist."]

Ratio Decidendi

The proceedings should not be dismissed because the young plaintiff may have a good cause of action for mental harm and should not have that claim stymied by his tutor's protective refusal to allow an independent medical assessment, particularly where the tutor was herself mentally affected by the death. The matter should remain on foot until the plaintiff is more mature or alternative steps, including consideration of a different tutor, can be pursued.

Court Disposition

Notice of motion filed 12 July 2016 dismissed.

Orders

  • ['Notice of motion filed 12 July 2016 is dismissed.' 'Matter placed in not ready list.' 'The matter is not to be further mentioned before the Registrar or a Judge in less than one year.' 'Each party to pay his or her own costs of the motion.']