Nominal Defendant v Adilzada [2016] NSWCA 266 is of interest as the Nominal Defendant had requested that the respondent undertake a Functional Independence Measure (FIM) assessment to determine his eligibility for the Lifetime Care and Support Scheme.

The respondent did not do so. The Nominal defendant filed a Notice of Motion for a determination of whether such a request was within, and engaged the application of, s 86 of the MAC Act. The primary judge found that s 86(1) had no application to the LCS Act. Accordingly he answered the question raised by the Nominal Defendant in the negative.

The Court granted leave to appeal because the question raised is of general application and importance. Although relevant to a statutory scheme, the court’s approach may have some relevance in other disputes over medical assessments in the context of personal injury claims.

The issue in the proposed appeal was:

Whether on proper construction of s 86 of the MAC, the purposes for which the insurer may make a request that a claimant undergo a medical examination include to assess that person’s eligibility for lifetime participation in the Lifetime Care and Support Scheme.

The Court held (per Meagher JA, McColl and Gleeson JJA agreeing), granting leave to appeal and allowing the appeal:

The insurer or a person against whom a motor accident claim is made may under s 86(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 and 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: [36].

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