Judgment date: 3 May 2011
Nguyen v Motor Accidents Authority of New South Wales and Anor NSWSC 351
Supreme Court of New South Wales1
- Referred pain to shoulders arising from a neck injury is an injury that can be assessed at MAS even if no direct injury was sustained to the shoulders.
- This decision debunks the theory that the shoulder injury should only be assessed by MAS if there has been a direct injury to it.
The plaintiff commenced proceedings in the Supreme Court of New South Wales, claiming declaratory relief from a Certificate of Determination of Assessment issued by Dr Nigel Menogue and a decision of the Proper Officer at MAS alleging that both decisions be vitiated by error of law.
The plaintiff sustained an injury to her cervical spine in a motor vehicle accident on 26 March 2007. The plaintiff was assessed by Dr Nigel Menogue at the request of MAS on 23 April 2010. Dr Menogue concluded that the plaintiff had sustained a soft tissue injury to her cervical spine which gave rise to a whole person permanent impairment of no greater than 10%.
Dr Menogue diagnosed the plaintiff with soft tissue injury to her cervical spine which had resulted in a spread of discomfort to her left shoulder. There was no contemporaneous medical evidence suggesting a direct injury to either her right or left shoulder as a result of the motor vehicle accident. The only reference to the plaintiff complaining of left shoulder pain was in records from Wollongong Hospital for the period of 26 March 2007 to 18 July 2007, which recorded the plaintiff complaining of neck pain passing to her left shoulder.
Dr Menogue concluded that there was no direct injury to either shoulder due to the motor vehicle accident.
He assessed the cervicothoracic spine at 5%.
The plaintiff lodged an Application for a Review alleging that Dr Menogue failed to provide in his assessment a percentage of permanent impairment for the loss of range of motion of the plaintiff's left and right shoulders. The plaintiff submitted that had Dr Menogue assessed the plaintiff's left and right shoulders the plaintiff would have been assessed at 11% whole person impairment, thus giving her an entitlement to non economic loss damages.
The plaintiff's Application for Review was dismissed by the Proper Officer who was satisfied that Dr Menogue had correctly applied the relevant legislation and methodologies for the assessment of the plaintiff's injuries.
Supreme Court Judgment
In arriving at his decision, Justice Hall looked at the provisions of the Motor Accidents(the Act), the Permanent Impairment Guidelines and common law Compensation Act principles relating to causation.
Justice Hall noted that s 131 of the Act prescribes that what is assessable is a "permanent impairment" where such impairment is "a result of" the injury.
His Honour concluded that it was trite to say that an injury to one part of a person's body could affect or lead to impairment in both the part directly injured and a related part. However, common law causation principles support a conclusion that impairment in one or both of the plaintiff's upper limbs as a consequence of her injury to the cervical spine would be compensable as a direct consequence of a spinal injury.
His Honour did not agree with the insurer's argument that the provisions of the Act operate to alter or limit common law principles so as to disentitle an injured person to have a consequential impairment taken into account when assessing permanent impairment.
At paragraph 98 of his judgment, his Honour stated the following:
"There is, in my opinion, no warrant for reading the words "the degree of impairment of the injured person" as an impairment of and only of the particular part of a person's body injured in an accident. The reference to "permanent impairment" is expressed as related to the injured person ("of the injured person") as a result of the injury caused by the motor accident. The impairment in s 131 and related provisions is not restricted".
Justice Hall concluded that the medical assessment undertaken by Dr Menogue and the decision of the Proper Officer on the plaintiff's Review Application, were erroneous in that both parties proceeded on the basis that there needed to be a causal connection between the motor vehicle accident and a "primary and isolated" injury to the right and or left shoulder.
His Honour concluded that such an approach to statutory construction does not accord with the terms of the relevant statutory provisions or with common law principles concerned with proximate causation.
The Supreme Court decision of Nguyen v Motor Accidents Authority of New South Wales NSWSC 351 is an extremely important one going forward in relation to MAS and Anor Assessments and disputes.
The decision is good authority that if a plaintiff has not sustained a direct injury to a body part but is experiencing referred pain to that body part as a result of an injury sustained in the motor vehicle accident, that referred pain is assessable at MAS.
The typical examples are referred pain from the neck to the shoulders and/or from the back to the legs. Traditionally, in those examples, only impairment to the neck and/or the back would be assessable.
Following Nguyen, the impairment caused by the referred pain to the shoulders and/or the legs is now assessable.
The decision is not of assistance to insurers as it will ultimately result in an increase in the number of claimant's who have an entitlement to non economic loss damages.
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