Rodger v De Gelder [2012] NSWCA 167

Rodger v De Gelder [2012] NSWCA 167

Leave was refused because the proposed grounds of appeal had no reasonable prospect of success. The applicant did not demonstrate error in the trial judge's evaluation that the further medical reports were not evidence which may have materially affected the claims assessment; the reports were essentially confirmations or restatements of existing opinions based on information already before the assessor or otherwise in issue. In any event, s 111 was not engaged because the Claims Assessor's damages assessment under s 94 proceeded on the basis that he was bound by Dr Best's certificate, which did not include the fractured thoracic vertebrae, and the applicant's argument was directed to the...

Jurisdiction
Australia
Judgment Date
23 May 2012
Procedural Posture
Application for Leave to Appeal and Notice of Motion for Stay in Motor Vehicle Accident Damages Proceedings / Court of Appeal Application for Leave to Appeal From District Court Refusal to Adjourn Proceedings Under S 111 of the Motor Accidents Compensation Act 1999; Notice of Motion Filed 23 May 2012
Outcome
Leave to appeal refused; notice of motion filed 23 May 2012 dismissed.
Legal Topics
['further Medical Evidence' 'significant New Evidence Under S 111' 'claims Assessment' 'further Medical Assessment' 'adjournment of Proceedings' 'leave to Appeal' 'stay Application' 'causation of Thoracic Spine Fractures']
['motor Vehicle Accidents Compensation' 'civil Procedure' 'personal Injury Damages' 'workers Compensation'] ['further Medical Evidence' 'significant New Evidence Under S 111' 'claims Assessment' 'further Medical Assessment' 'adjournment of Proceedings' 'leave to Appeal' 'stay Application' 'causation of Thoracic Spine Fractures']

Case Brief

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Procedural Posture

Application for Leave to Appeal and Notice of Motion for Stay in Motor Vehicle Accident Damages Proceedings / Court of Appeal Application for Leave to Appeal From District Court Refusal to Adjourn Proceedings Under S 111 of the Motor Accidents Compensation Act 1999; Notice of Motion Filed 23 May 2012

Legal Issues

  1. 1 ['Whether the further medical reports constituted significant evidence that may have materially affected the assessment made by the Claims Assessor within s 111(3) of the Motor Accidents Compensation Act 1999.' 'Whether s 111 was engaged so as to require the District Court to adjourn the proceedings and remit the matter for further assessment.' "Whether the proposed grounds of appeal from Levy DCJ's refusal to adjourn had reasonable prospects of success."]

Ratio Decidendi

Leave was refused because the proposed grounds of appeal had no reasonable prospect of success. The applicant did not demonstrate error in the trial judge's evaluation that the further medical reports were not evidence which may have materially affected the claims assessment; the reports were essentially confirmations or restatements of existing opinions based on information already before the assessor or otherwise in issue. In any event, s 111 was not engaged because the Claims Assessor's damages assessment under s 94 proceeded on the basis that he was bound by Dr Best's certificate, which did not include the fractured thoracic vertebrae, and the applicant's argument was directed to the...

Court Disposition

Leave to appeal refused; notice of motion filed 23 May 2012 dismissed.

Orders

  • ['Leave to appeal is refused;' "The applicant for leave is to pay the respondent's costs of the summons for leave to appeal and Triple M Mechanical Services' costs of the summons for leave to appeal;" 'Dismiss the notice of motion filed 23 May 2012;' "The applicant on the notice of motion is to pay the respondent's...