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.
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.
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
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
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.
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
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
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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Contractors and principals should ensure they have appropriate insurance coverage instead of relying on indemnity clauses.
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