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Medical: Neurocogntive assessment.


Chatfield v Australian Capital Territory [2022] ACTSC 357 (on JADE).

This interlocutory matter concerned a dispute between the parties as to when further neurocognitive assessment of a 9 year old plaintiff should take place.

The Court held at [7] – [8]:

Based on my review of the expert reports, I am satisfied that there is a cogent basis for apprehending that the plaintiff has some neurocognitive impairment the assessment of which is best left until she reaches adolescence.  It is recognised that the task of awarding damages to make good to the plaintiff the loss suffered is never exact.  The Court is obliged to do the best it can on the evidence available at the time that determination falls to be made and must, to an extent, engage in a task of “prophesying”: Todorovic v Waller (1981) 150 CLR 402; [1981] HCA 72 at [7] (Gibbs CJ and Wilson J). In accordance with the dictates of s 5A of the Court Procedures Act 2004 (ACT), the efficient determination of matters brought before the Court will not ordinarily be held ransom to endless changes and developments in a plaintiff’s medical condition.

However, as noted in Todorovic v Waller at [6], another fundamental principle in the assessment of damages is that damages must be recovered “once and forever”. It follows that there will be cases in which the dictates of justice militate in favour of deferring the assessment of damages until a plaintiff’s injuries have settled. It is well recognised that, in the case of an injured child, the prospective assessment of damages is often more uncertain, warranting greater delay than would ordinarily be countenanced in the case of an adult plaintiff. The Court must be astute in such a case not to permit considerations of case management to swallow the interests of justice, particularly in the face of cogent multidisciplinary expert evidence warning against a premature determination. I am satisfied that this is a case in which it is appropriate to accede to the opinion of the plaintiff’s experts and to postpone further neurocognitive assessment until the plaintiff attains adolescence in 2026.

[BillMaddensWordpress #2074]


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