Davis v Kent [2016] NSWDC 238

Davis v Kent [2016] NSWDC 238

The Court exercised the discretion under Section 62(1)(b) to refer the plaintiff's injuries for further medical assessment because Dr O'Neill's 2013 assessment of 11% impairment was just above the statutory threshold and was made without material he identified as important, including neuropsychological assessment and further records; that material and divergent neuropsychological opinions were now available; non-economic loss was the plaintiff's major damages head; and the expected delay of about three months did not outweigh the interests of justice. The defendant's delay did not require refusal, but justified an order that the defendant pay the plaintiff's costs thrown away by the...

Jurisdiction
Australia
Judgment Date
11 October 2016
Procedural Posture
Civil Tort Negligence Claim Arising From Motor Vehicle Accident / Defendant's Oral Application at Commencement of Final Hearing for Referral for Further Medical Assessment Under Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (nsw)
Outcome
Defendant's application granted; plaintiff's injuries referred for further medical assessment; final hearing vacated; costs of referral application reserved; defendant ordered to pay plaintiff's costs thrown away by vacation of the hearing date.
Legal Topics
['negligence' 'motor Vehicle Accident' 'medical Assessment Certificate' 'permanent Impairment Threshold' 'non Economic Loss Damages' 'discretion to Refer for Further Medical Assessment' 'costs Thrown Away']
['torts' 'civil Procedure' 'motor Accidents Compensation'] ['negligence' 'motor Vehicle Accident' 'medical Assessment Certificate' 'permanent Impairment Threshold' 'non Economic Loss Damages' 'discretion to Refer for Further Medical Assessment' 'costs Thrown Away']

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Procedural Posture

Civil Tort Negligence Claim Arising From Motor Vehicle Accident / Defendant's Oral Application at Commencement of Final Hearing for Referral for Further Medical Assessment Under Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (nsw)

Legal Issues

  1. 1 ['Whether the Court should dispense with the requirement for the defendant to file and serve a Notice of Motion for the oral application.' "Whether the plaintiff's injuries should be referred for further medical assessment under Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW)." 'Whether the discretion under Section 62(1)(b) is separate from and broader than the grounds in Section 62(1)(a).' 'What costs orders should be made after vacating the hearing date.']

Ratio Decidendi

The Court exercised the discretion under Section 62(1)(b) to refer the plaintiff's injuries for further medical assessment because Dr O'Neill's 2013 assessment of 11% impairment was just above the statutory threshold and was made without material he identified as important, including neuropsychological assessment and further records; that material and divergent neuropsychological opinions were now available; non-economic loss was the plaintiff's major damages head; and the expected delay of about three months did not outweigh the interests of justice. The defendant's delay did not require refusal, but justified an order that the defendant pay the plaintiff's costs thrown away by the...

Court Disposition

Defendant's application granted; plaintiff's injuries referred for further medical assessment; final hearing vacated; costs of referral application reserved; defendant ordered to pay plaintiff's costs thrown away by vacation of the hearing date.

Orders

  • ['Under Part 18(2) of the Uniform Civil Procedure Rules, the Court dispenses with the requirement that the defendant file and serve a Notice of Motion in relation to the application made.' "Pursuant to Section 62(1)(b) of the Motor Accidents Compensation Act 1999 (NSW), the plaintiff's injuries arising from the...