Judgment date: 15 September 2011
Devic v NRMA Insurance Limited  NSWSC 1099
Supreme Court of New South Wales1
- When assessing a shoulder impairment pursuant to cl 2.5 of the Permanent Impairment Guidelines, an Assessor is not required to record in his or her reasons every enquiry made in relation to an uninjured shoulder for the purposes of a "baseline". The reasons are not a report of the examination itself.
- The Supreme Court will not exercise its discretion under s 69 of the Supreme Court Act 1970 unless the correction of an error by an Assessor will have a material effect on the outcome of the assessment.
The plaintiff was injured in a motor vehicle accident that occurred on 15 October 2009. The plaintiff alleged injuries to the neck, back and right shoulder and sought damages for non-economic loss. A dispute in relation to whole person impairment (WPI) was referred to the Medical Assessment Service.
In the first instance, Assessor Tai-Tak Wan assessed the plaintiff with a not greater than 10% WPI for injuries to the lumbar spine (5%), cervical spine (0%) and right shoulder (5%). The plaintiff, therefore, was assessed to have no entitlement to damages for non-economic loss.
The plaintiff sought a Review of Assessor Tai-Tak Wan's Certificate. A Review Panel was convened and a further Certificate issued.
The Review Panel assessed the plaintiff with a 9% WPI for injuries to the lumbar spine (5%), cervical spine (0%) and right shoulder (4%). In doing so, the Review Panel applied cl 2.5 of the Permanent Impairment Guidelines, which states:
The Review Panel specifically found that:
- The left shoulder (uninjured shoulder) – had an upper extremity impairment of 3% (the baseline impairment).
- The right shoulder (injured shoulder) – had an upper extremity impairment of 9%.
Therefore, in accordance with Clause 2.5, the Review Panel assessed the plaintiff as having sustained a 6% upper extremity impairment in the right shoulder, which equated to a 4% WPI.
When combined with the assessment of the cervical and lumbar spine, the plaintiff remained with no entitlement to damages for non-economic loss.
Supreme Court Proceedings
The plaintiff brought proceedings in the Supreme Court seeking orders that the Review Panel's Certificate be quashed.
The central submission was that the Review Panel erred in assessing the plaintiff's right shoulder, due to a failure to 'thoroughly investigate', and enquire, in relation to the baseline impairment in the plaintiff's left shoulder.
The plaintiff submitted that the Review Panel was only empowered under the Guidelines to proceed the way in which it did if:
- the contralateral uninjured joint had less than average mobility; and
- there was a reasonable expectation that the injured joint would have had similar findings to the uninjured joint before the accident.
The plaintiff contended that the Panel ought to have made proper enquiries as to whether the uninjured joint genuinely had less than average mobility. Further, the plaintiff submitted that the Panel ought to reach a state of "reasonable satisfaction" that the uninjured joint was not injured in (or subsequently impaired by reason of) the accident.
The plaintiff submitted that the enquiries ought to have included "a thorough investigation of all matters with which the assessment was concerned". The plaintiff contended that this investigation included specific questioning, not only focusing on the plaintiff's injured right shoulder, but also questions focusing on the plaintiff's uninjured shoulder (and the range of motion) prior to the accident.
Justice McCallum rejected the plaintiff's submissions.
Her Honour said that there was no reason to suspect that the Review Panel did not ask the types of questions suggested by the plaintiff. Moreover, however, her Honour said there was no requirement for the Review Panel to record "every enquiry made along the path to" their findings.
Justice McCallum commented that the plaintiff essentially asked the court to second-guess the performance of the medical examination. In relation to this, Justice McCallum said:
Justice McCallum was not persuaded that the Review Panel failed to obtain accurate measurements of the range of motion of the plaintiff's left shoulder joint. Moreover, her Honour was satisfied that the Review Panel had discharged their obligations, noting they took a history of the tenderness in the plaintiff's right shoulder, obtained measurements of both shoulders, and specifically took a history from the plaintiff that she did not sustain an injury to the left shoulder as a result of the accident.
Importantly, Justice McCallum explained that she would not have exercised her discretion to quash the Review Panel's Certificate, even if the central error had been established.
Her Honour noted that if there had been no baseline deduction in relation to the left shoulder, the plaintiff would still have been assessed with, at most, a 5% WPI to the right shoulder and a total 10% WPI. The plaintiff would still have been precluded from claiming damages for non-economic loss.
The decision emphasises that an Assessor (and/or a Review Panel) is not required to provide an exhaustive enquiry in relation to an uninjured shoulder when assessing a shoulder injury pursuant to cl 2.5. Further, a Certificate is not required to record each and every question and finding made during the assessment of the claimant.
Furthermore, the decision is important as it establishes that even if an error can be identified, the Supreme Court will not quash a Certificate if the effect of the error will not change the claimant's entitlement to non-economic loss damages one way or the other.
1 McCallum J
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