Davis v Kent [2017] NSWCA 122

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Davis v Kent [2017] NSWCA 122 Hearing dates: 4 May 2017 Date of orders: 04 May 2017 Decision date: 31 May 2017 Before: Beazley ACJ; Meagher JA; Leeming JA Decision: Reasons for judgment.

Orders made 4 May 2017 as follows:

(1) Grant leave to appeal; (2) Appeal allowed; (3) Set aside orders 2 and 3 made on 11 October 2016; (4) Direct the respondent forthwith to advise the Proper Officer of the Motor Accidents Authority in the Unit of the Medical Assessment Service that the referral under s 62(1)(b) for further medical assessment has been set aside; (5) The Court notes that the insurer of the respondent will withdraw the application for further medical assessment in any event; (6) Remit the matter to the District Court for the fixing of a hearing date for determination of the applicant's claim made in the statement of claim; (7) The respondent to pay all costs in this Court, being both for the summons for leave to appeal and the appeal; (8) The respondent to pay the costs of the application for referral, being the costs reserved by the primary judge. Catchwords: MOTOR ACCIDENTS COMPENSATION – action for damages – non-economic loss – medical assessment of permanent impairment caused by motor accident – dispute as to degree of permanent impairment of injured person – application for referral for further medical assessment – delay in making application – delay caused by reassessment process – whether primary judge erred in exercising discretion to make order for referral under Motor Accidents Compensation Act 1999 (NSW), s 62(1)(b) – discretion miscarried given significant delay if referral for reassessment Legislation Cited: Civil Procedure Act 2005 (NSW) Motor Accidents Compensation Act 1999 (NSW) Cases Cited: Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175; [2009] HCA 27 Category: Principal judgment Parties: Lyle Michael Joseph Davis (Appellant) Neil Kent (Respondent) Representation: Counsel: DH Murr SC; M Fraser (Appellant) D Ronzani (Respondent)