Waneisian v Durston [2024] NSWSC 1365

Waneisian v Durston [2024] NSWSC 1365

The Court permitted the defendants to obtain further medical and vocational evidence, and to file a cross-claim against the employer, finding that justice required these steps despite the lateness, but refused to require the plaintiff to submit to psychometric testing as it would cause undue delay and prejudice. The hearing was vacated and relisted, with directions for the conduct of the case, and costs orders were made accordingly.

Parties
Plaintiff: Ohanis Waneisian; First Defendant: Jeanette Durston; Second Defendant: Matthew Durston
Jurisdiction
Australia
Judgment Date
18 September 2024
Procedural Posture
Civil / Procedural Ruling on Interlocutory Application
Outcome
Defendants' motion allowed in part; hearing vacated and relisted; further examinations by some experts permitted; application for psychometric testing refused; defendants permitted to file cross-claim against employer; costs orders as specified.
Legal Topics
Expert Evidence, Amendment of Pleadings, Workers Compensation, Damages, Joinder of Parties
Civil Procedure Expert Evidence Amendment of Pleadings Workers Compensation Damages Joinder of Parties

Case Brief

Summary, issues, holding and outcome

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Parties

Ohanis Waneisian

Plaintiff

Jeanette Durston

First Defendant

Matthew Durston

Second Defendant

Procedural Posture

Civil / Procedural Ruling on Interlocutory Application

Legal Issues

  1. 1 Whether the plaintiff ought to be required to submit to further examinations by the defendants' experts
  2. 2 Utility of psychometric testing in assessing credibility and injury
  3. 3 Whether the defendants should be granted leave to amend their defence to plead s 151Z of the Workers Compensation Act 1987 (NSW)

Ratio Decidendi

The Court permitted the defendants to obtain further medical and vocational evidence, and to file a cross-claim against the employer, finding that justice required these steps despite the lateness, but refused to require the plaintiff to submit to psychometric testing as it would cause undue delay and prejudice. The hearing was vacated and relisted, with directions for the conduct of the case, and costs orders were made accordingly.

Court Disposition

Defendants' motion allowed in part; hearing vacated and relisted; further examinations by some experts permitted; application for psychometric testing refused; defendants permitted to file cross-claim against employer; costs orders as specified.

Orders

  • The defendants file any cross-claim against the employer within 14 days
  • The defendants arrange earliest possible consultations with Dr Dan and Dr Miniter