ADILZADA V THE NOMINAL DEFENDANT [2016] NSWDC 24, 15 MARCH 2016, ELKHAIM SC DCJ.

Are MACA and LTCS legislation interwoven to allow an insurer to utilise Section 86 of MACA to assess LTCS eligibility and base an LTCS application? The answer is no.

The Nominal Defendant does not appear to have submitted that a medical examination pursuant to Section 86 that concludes that a claimant is eligible for participation in LTCS is an issue of a mitigation of damages.

A defendant insurer (or the Nominal Defendant) should not be liable for loss or damages that a plaintiff can avoid by entry to LTCS. Judge Elkaim notes that Section 86 permits examinations relevant to damages (see para 41) and mitigation is relevant to that assessment.

There is no specific authority that to says that Section 136 MACA limits ordinary principles of mitigation. There is also no equitable reason why ordinary mitigation principles would be limited.

As this was an interlocutory decision, it may well be that the substantive hearing covers further aspects of the matter and this decision may need to be treated with a degree of caution at this point.

Please read the case here