PERSONAL INJURY UPDATE

RECENT COMPENSATION CASE

There was a recent decision in the Supreme Court of NSW involving an application by the Nominal Motor Accident CompensationDefendant to set aside the decision of a District Court Judge, His Honour Judge Elkaim regarding his decision dated 15 March 2016. The case was Nominal Defendant v Adilzada (2016) NSWCA 266.

BACKGROUND

The plaintiff,  Mr Adilzada was seriously injured in a motor vehicle accident on 8 October 2007 in which he sustained a brain injury.  He commenced the claim in the District Court at Sydney against the Nominal Defendant for compensation relating to those injuries including a claim for loss of past and future wages, past and future medical treatment and past and future domestic care.

Since he had sustained a brain injury he was entitled, if eligible, to become a participant in the Lifetime Care & Support Scheme.  Initially, you are admitted as a temporary participant in this scheme and over time you are assessed as to whether or not you are eligible.  If it is decided you are to become a participant then this scheme does affect your entitlement to damages for past and future medical expenses and past and future domestic care services.

An approximate estimate of how much your claim for damages on a lump sum basis will be reduced if you are a participant in the scheme is between 50%-60% of your total claim.

To be eligible to participate in the scheme one of the following severe injuries must have occurred as a result of a motor vehicle accident:

  1. Brain injury;
  2. Spinal cord injury;
  3. Multiple amputations or specific unilateral amputations;
  4. Burns;
  5. Permanent blindness.

The application form to become a participant in the scheme can be completed by any of the following:

  1. The injured person;
  2. A parent of injured person, or family member, or guardian;
  3. The CTP Insurer.

The plaintiff refused to attend a medical assessment which had been requested by the Nominal Defendant to determine his eligibility for the scheme.

There is a section in the Motor Accidents Compensation Act 1999 NSW, Section 86(1) which states as follows:

Section 86(1)

Medical and other examination of a claimant (or plaintiff):

  1. A claimant must comply with any request by the person against whom the claim is made or the persons or insurer.
  1. To undergo a medical examination by one or more medical practitioners nominated by that person or insurer or;
  1. To undergo a rehabilitation assessment, an assessment to determine functional and vocational capacity or an assessment to determine attendant care needs, by an assessor nominated by that person or insurer or;
  1. To undergo an assessment in accordance with the Motor Accidents Medical Guidelines. Not being, in any such case, an examination or assessment that is unreasonable, unnecessarily repetitious or dangerous.

His Honour Judge Elkaim found that this section had no application to the Lifetime Care & Support Act.

The Court of Appeal allowed the appeal and stated as follows:

The insurer or person against whom a motor accident claim is made may under Section 85(1) of the Motor Accidents Compensation Act 1999 NSW request the claimant to undergo a medical examination or assessment for the purpose of determining that person’s eligibility for participation in the Lifetime Care & Support Scheme. If the claimant fails without reasonable excuse to comply with such a request, Court proceedings cannot be commenced or continued in respect of the claim where the failure continues”.

At Beilby Poulden Costello, we are able to fully assist our clients in regard to any involvement with the Lifetime Care & Support Scheme and ensure that any application made for participation in this scheme is properly documented and all relevant information is sent to the case officers at Lifetime Care & Support.

David R Ford

5 October 2016