David Derfel

The plaintiff, a welder, was injured on the defendant Yaya Foods Corporation's premises due to a faulty excavator operated by an independent contractor.

Yaya Foods brought a motion for summary judgment, arguing it was not liable as an occupier under the Occupiers' Liability Act for the independent contractor's equipment failure.

The court granted the motion, finding that the OLA does not impose a duty on an occupier to inspect the tools used by an independent contractor for safety.

Consequently, Yaya Foods was not found liable for the equipment's lack of maintenance, and the action against them was dismissed.

The Applicant was injured in a motorcycle accident and sought a determination that she sustained a catastrophic impairment under the Statutory Accident Benefits Schedule.

The Tribunal assessed her mental and behavioural impairments under criterion 8, applying the AMA Guides.

The Tribunal preferred the evidence of the Applicant's psychiatrist over the respondent's psychologist, finding the latter's report inconsistent with his testimony and test results.

The Tribunal concluded the Applicant suffered a marked impairment in three spheres of function (Activities of Daily Living, Social Functioning, and Adaptation) due to Somatic Symptom Disorder, Major Depressive Disorder, and Posttraumatic Stress Disorder.

The Tribunal declared the Applicant catastrophically impaired.

The plaintiff sought orders extending the time for service of her statement of claim and to set the action for trial in a solicitor's negligence claim against the defendant law firm.

The court dismissed the motion, finding the delay of over six and a half years in serving the claim to be extreme and inadequately explained.

The court also found significant actual prejudice to the defendant due to the passage of time, including likely loss of evidence and faded witness memories, and that allowing the action to proceed would bring the administration of justice into disrepute.

The plaintiff was involved in a motor vehicle accident and suffered a spinal fracture.

Liability was admitted by the defendant.

The court had to determine whether the plaintiff met the statutory threshold for permanent and serious impairment under the Insurance Act, and assess damages.

The court found significant credibility issues with the plaintiff's evidence, noting he had concealed pre-existing conditions and post-accident activities from his assessors.

Despite these credibility issues, the court accepted expert evidence that the plaintiff suffered a permanent serious impairment consisting of chronic left torso/rib pain and an adjustment disorder.

The court awarded $1,067,647 in total damages, applying substantial percentage reductions to the claimed amounts for loss of earning capacity and future care costs due to the unreliability of the plaintiff's self-reported limitations.

The moving party sought to set aside or vary an ex parte order that required her to file an application for a certificate of appointment of estate trustee or be deemed to have renounced.

The court found that the responding party failed to make full and fair disclosure of material facts on the ex parte motion, specifically omitting that the moving party's counsel had responded and sought production of the drafting lawyer's file.

The ex parte order was set aside under Rule 39.01(6).

However, the court declined to grant the moving party's requested variation to compel production of the file, finding it overly broad for a motion to vary.

Costs of $2,000 were awarded to the moving party.

The applicant sought statutory accident benefits following a motor vehicle accident.

The respondent denied a treatment plan for physiotherapy on the basis that the applicant's injuries fell within the Minor Injury Guideline (MIG).

The applicant argued she should be removed from the MIG due to a pre-existing condition of scoliosis and chronic pain.

The Tribunal found that the applicant failed to establish that her pre-existing condition was documented prior to the accident or would prevent maximal recovery within the MIG limit.

The Tribunal also found insufficient evidence of chronic pain.

The application was dismissed.

The insurer appealed an arbitration decision awarding the claimant ongoing income replacement benefits, housekeeping benefits, assessment expenses, and a special award under the SABS-1996.

The Director's Delegate dismissed the appeal on the merits, finding no error in the arbitrator's preference for the claimant's medical and lay evidence over the insurer's experts.

The arbitrator's finding that the insurer unreasonably terminated benefits based on an incomplete functional abilities evaluation, justifying a special award, was also upheld.

The appeal was allowed in part only to revoke an inadvertent order regarding arbitration expenses.

The applicant, a self-employed hairstylist, was injured in a motor vehicle accident and sought statutory accident benefits.

The insurer terminated his income replacement and housekeeping benefits.

The arbitrator found that the insurer's termination of the income replacement benefit was fatally flawed because it relied on a functional abilities evaluation that had not actually been conducted at the time of termination.

The applicant was awarded pre-104 week income replacement benefits, as his chronic pain substantially disabled him from performing the essential tasks of his employment, though he did not meet the post-104 week test of complete inability to engage in any suitable employment.

The arbitrator also awarded housekeeping and home maintenance benefits, the cost of an in-home assessment, and a special award of $2,000 against the insurer for unreasonably relying on the flawed termination notice.

The appellant appealed an arbitrator's decision dismissing her claim for a treatment plan following a motor vehicle accident.

She argued the arbitrator should have given no weight to a Designated Assessment Centre (DAC) report because the assessors were not qualified as experts at the hearing.

The Director's Delegate dismissed the appeal, finding that the appellant failed to challenge the introduction of the DAC report or the assessors' qualifications during the hearing.

The Delegate held that it was too late to raise the issue of expert qualifications for the first time in final written submissions.

The insurer requested four medical and vocational examinations to assess the applicant's entitlement to post-104 week income replacement benefits.

The arbitrator found that the request for a functional abilities evaluation was reasonable, as it would provide relevant evidence about the applicant's physical ability to work.

However, the requests for an orthopaedic examination, a psycho-vocational assessment, and a 2-day situational assessment were dismissed.

The arbitrator held that the psycho-vocational and situational assessments constituted unreasonable invasions of privacy, particularly because the applicant had not put her psychological ability to work in issue, and the situational assessment raised potential civil liberties concerns.

The applicant was injured in a motor vehicle accident and claimed statutory accident benefits, including housekeeping and home maintenance benefits.

The insurer requested an in-home assessment under section 42 of the Statutory Accident Benefits Schedule, which the applicant refused to attend, arguing it was duplicative of her own assessment.

The arbitrator held that the applicant was properly notified of the examination and her failure to attend meant no benefits were payable for the period of non-compliance.

However, the arbitrator also found that the applicant's claim was not statute-barred, as the insurer's notice of refusal was not clear and unequivocal, meaning the two-year limitation period had not commenced.