Australia: Legal Directions: Vocational assessor owed duty of care to avoid further injury
Basha v Vocational Capacity Centre Pty Limited [2009] NSWCA 409

The NSW Court of Appeal has held that medical experts owe a duty of care to take reasonable steps to avoid causing further injury in the course of examinations carried out at the request of an insurer. In this case, the respondents were held to have breached their duty of care under the Civil Liability Act 2002 (NSW) in circumstances where a reasonable person in the examiner's position would have taken precautions to avoid a risk of harm: section 5B.

Background

The appellant suffered a work related injury in the course of her employment in March 2001. As a result of that injury, a right shoulder rotator cuff repair was performed in August 2003 and a decompression procedure was required for the left shoulder in August 2004. The treating surgeon examined the appellant after the left shoulder surgery and found a "virtually full range of pain free shoulder movement" but she needed to "minimize manual handling tasks".

At the request of the workers compensation insurer, the appellant attended a vocational assessment in early September 2004 and was required to perform a number of activities that she alleged caused an aggravation of the previous right shoulder injury and a need for further surgery.

First instance

The second respondent contended that regard had been given to the recommendations of the treating surgeon and activities were requested in light of her demonstrated capacities that were not considered to be unsafe.

An expert physiotherapist qualified by the respondents did not consider that the conduct of the assessment was negligent as the testing was required to assess the appellant's ability to function to perform daily tasks. To have excluded certain aspects of the testing would have only served to limit its purpose as an assessment tool.

The appellant relied upon expert physiotherapy evidence that the vocational assessment was ill-advised and likely to harm the post operative shoulder or cause the appellant to favour the right arm thus aggravating the original injury. Testing was unsuitable and unnecessary as the appellant was required to favour the right arm in a manner that was extremely unadvisable for a post operative shoulder. The medical experts qualified by the appellant agreed that vocational assessment so soon after the left shoulder surgery was inappropriate as aggravation of the recent surgery was almost certain.

His Honour Judge Garling agreed that a proper vocational assessment required the appellant to perform the full range of tests. He found the respondents did owe a duty of care and that it was foreseeable a further injury could occur in circumstances where the appellant was required to crawl and put strain on the right shoulder due to the recent surgery to the left shoulder. He found the respondents were negligent in carrying out the vocational assessment so soon after the left shoulder surgery and awarded damages in the sum of $64,525.

Appeal

The appellant appealed in relation to the quantum of damages and the respondents cross appealed on the issue of liability.

The NSW Court of Appeal allowed the appeal in relation to damages and awarded the sum of $116,883. The cross appeal was dismissed.

Comment

This case serves to highlight the risks involved in premature referral of an injured person for expert assessment in circumstances where surgery has recently been performed. However, in this instance, negligence was sheeted home to the examiner as opposed to the insurer that arranged the examination.

Nonetheless, for practical reasons insurers should bear in mind that an appropriate amount of time should be allowed post operatively before a functional assessment is carried out not only from the point of view of avoiding any risk of further injury and subsequent claim for damages, but also for the purpose of carrying out a meaningful assessment. Care should also be taken to deny liability for any further injury caused by an expert examination, even when the examiner was acting under instructions from the insurer.

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