Double compensation: Interlocutory application

Jener Daluz v John McMahon [2016] NSWSC 202 saw an application for summary dismissal of medical negligence proceedings relating to treatment of injuries said to have been sustained by the plaintiff in a motor vehicle accident. A compensation claim in relation to the motor vehicle accident had been settled with entry of a consent judgment.

At [13] the court noted that res judicata or issue estoppel can arise from a consent judgment, although in a particular case it may be difficult to identify what issues were determined by that judgment. An abuse of process argument was also raised.

The applications were unsuccessful, with the court noting at [31]:

In the present case there is not a settlement agreement in the MVA proceedings from which the intention of the parties about the entitlement of the plaintiff to pursue the present defendants could be divined. However, for the reasons I have given, it cannot be said that the consent judgment should be regarded as recoupment of the whole of the plaintiff’s loss or damage arising from the left leg condition. Accordingly, it would not be unconscientious of the plaintiff to pursue the present proceedings. Whether there has been recovery in respect of the left leg condition, either wholly or in part, in the MVA proceedings would be an issue at the trial.

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