Hawchar bht Manal El Haj Dib v Diab (No 3); Dib v Diab (No 3) [2018] NSWDC 282

Hawchar bht Manal El Haj Dib v Diab (No 3); Dib v Diab (No 3) [2018] NSWDC 282

Because the insurer had denied liability, payments made for the plaintiffs' medical expenses were not payments made under s 83 of the Motor Accidents Compensation Act 1999 (NSW), so the defendant could not rely on s 83(5) as a defence. Medicare amounts were not payable to the Commonwealth where the judgments would be small amounts and the entire compensation for the injuries, and the plaintiffs suffered no loss for Medicare amounts they did not have to repay. Although the plaintiffs were technically successful by obtaining modest damages, they were overwhelmingly unsuccessful on significant damages issues that occupied most of the proceedings, so the appropriate costs outcome was that...

Jurisdiction
Australia
Judgment Date
04 October 2018
Procedural Posture
Civil Tort Negligence Claim Arising From Motor Vehicle Accident / Post Hearing Determination of Remaining Damages and Costs Issues After Reasons for Decision
Outcome
The defendant was not entitled to rely on s 83(5) of the Motor Accidents Compensation Act 1999 (NSW) for the insurer's medical expense payments; Medicare amounts were not to be included where no repayment loss was established; each party should pay their own costs; parties were directed to bring in agreed Short...
Legal Topics
['negligence' 'motor Vehicle Accident' 'medical Expenses' 'motor Accidents Compensation Act 1999 (nsw) S 83' 'medicare Compensation Recovery' 'health and Other Services (compensation) Act 1995 (cth) S 38' 'costs Discretion' 'statutory Construction']
['torts' 'motor Accidents Compensation' 'civil Procedure' 'costs'] ['negligence' 'motor Vehicle Accident' 'medical Expenses' 'motor Accidents Compensation Act 1999 (nsw) S 83' 'medicare Compensation Recovery' 'health and Other Services (compensation) Act 1995 (cth) S 38' 'costs Discretion' 'statutory Construction']

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Procedural Posture

Civil Tort Negligence Claim Arising From Motor Vehicle Accident / Post Hearing Determination of Remaining Damages and Costs Issues After Reasons for Decision

Legal Issues

  1. 1 ['Whether the defendant could rely on payments made by the compulsory third party insurer for medical expenses as a defence under s 83(5) of the Motor Accidents Compensation Act 1999 (NSW) where liability had been denied.' 'Whether amounts paid by Medicare for medical services should be included in the judgment amounts awarded to the plaintiffs.' 'What costs orders should be made where each plaintiff obtained only modest damages and was unsuccessful on significant damages issues.']

Ratio Decidendi

Because the insurer had denied liability, payments made for the plaintiffs' medical expenses were not payments made under s 83 of the Motor Accidents Compensation Act 1999 (NSW), so the defendant could not rely on s 83(5) as a defence. Medicare amounts were not payable to the Commonwealth where the judgments would be small amounts and the entire compensation for the injuries, and the plaintiffs suffered no loss for Medicare amounts they did not have to repay. Although the plaintiffs were technically successful by obtaining modest damages, they were overwhelmingly unsuccessful on significant damages issues that occupied most of the proceedings, so the appropriate costs outcome was that...

Court Disposition

The defendant was not entitled to rely on s 83(5) of the Motor Accidents Compensation Act 1999 (NSW) for the insurer's medical expense payments; Medicare amounts were not to be included where no repayment loss was established; each party should pay their own costs; parties were directed to bring in agreed Short...

Orders

  • ['In the proceedings relating to Mrs El-Haj Dib, the parties are to bring in agreed Short Minutes of Order consistent with the reasons for decision of Dicker SC DCJ within seven days.' "In the proceedings relating to Mrs El-Haj Dib, liberty to apply on two business days' notice." 'In the proceedings relating to Mrs...