Motor accidents, permanent impairment as a result of the injury
Nguyen v Motor Accidents Authority & Anor  NSWSC 351. Hall J.
42. The submission for the plaintiff was that the terms of s 58(1)(d) of the [MAC] Act do not operate to prevent the assessment of permanent impairment of a body part if that part was not itself injured directly in the subject accident. Support for this submission was said to lie in both the terms of s 58(1)(d) and case law concerned with the causation of injury: Department of Public Works v Morrow (1986) 5 NSWLR 166; Owsten Nominees (No 2) Pty Limited v Gardner  NSWCA 345; Roads & Traffic Authority v Malcolm (1996) 13 NSWCCR 272. In Morrow (supra) at 168 McHugh JA noted that an award for lump sum compensation can be made for the loss of efficient use of a limb where the original injury was to the cervical or lumbar spine.
81. Whilst the submissions for the plaintiff and the defendant focused upon the terms of s 58(1)(d), the operative provisions are in fact those to be found in Part 5.3, Damages for non-economic loss , in Chapter 5 of the Act. [His Honour details ss 131 before the following paragraph]
83. I note that these provisions are, of course, in identical terms to those to be found in s 58(1)(d) of the Act. [His Honour then details ss 132 & 133].
91. A bodily injury may or may not cause or give rise to impairment. The term "impairment" is not defined in the Act. The expression "permanent impairment" , as earlier noted and extracted above, is defined in the American Medical Association's Guides to the Evaluation of Permanent Impairment (4 th ed).
92. It is trite to say, and in accordance with ordinary human experience, that injury to one part of a person's body can affect or lead to impairment in both the part directly injured and in a related or connected part.
94. Application of common law causation principles would, in my opinion, support the conclusion that impairment in one or both of the plaintiff's upper limbs consequent upon injury to the cervical spine would be compensable as the natural and direct consequence of spinal injury.
95. The question, however, in the present case is whether the provisions of the Act operate to alter, constrain or limit common law principles so as to disentitle an injured person to have what might be described as consequential impairment taken into account in the assessment of "permanent impairment" .
96. Zurich argued that the plaintiff's case depends upon giving the words "as a result of" a broad construction. I disagree.
97. The impairment threshold provisions for awards for non-economic loss in s131, s 133(1) and s 58(1)(d) are directed to "the degree of permanent impairment of the injured person as a result of the injury ..." and whether that degree is greater than 10%.
98. 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, as argued by Zurich.
99. Injury to one part of the body, such as the back, it is well-known as part of human experience, may result in impairment not only to the injured back itself but to other parts constitutionally associated or linked to the back such as the upper or lower limbs. The explanation, of course, is well understood and lies in the fact that trauma to the back may interfere with or cause interference to or impingement of the nerve roots associated with the spinal column (eg, pain (sciatica) or loss of function in the limbs).
100. Under the provisions of the Act to which I have referred, the "result" of injury to the back in such cases cannot be taken as imposing a limit to impairment arising only from the injury to the back itself.
101. Similarly, in a case where an injury is sustained by a person in a motor vehicle accident to the side of the face that later causes an interference to the nerves to the eye resulting in blindness in that eye, would, in my opinion, be readily seen as the result of the injury to the face.
102. Sections 131 and 132 of the Act are expressed in straight-forward language involving the juxtaposition of ordinary English words "impairment" , "as a result of" and "injury" . Unless the context otherwise requires, there is no basis for notionally engrafting onto such terms refinements or qualifications or conditions that are not expressed in the statute.
125. The opinion of Dr Menogue assumes that there is a statutory requirement that in order for there to be a causal relationship between the accident and impairment in this case there must be a "primary and related injury" to the shoulders themselves, as well as, separately to the cervical spine from the motor accident.
126. That, with respect, involves an approach to statutory construction by the medical assessor which does not accord with the terms of the relevant statutory provisions nor with common law principles concerned with the concept of proximate causation.
127. In those circumstances, I have concluded that the Certificate of the medical assessor was vitiated by an error of law, as was the decision of the proper officer made on 19 July 2010.
Motor Accidents Authority note >>
As outlined in the attached case note, this judgment as handed down by the Supreme Court amends the longstanding approach taken in medical assessments in relation to permanent impairment of the shoulders arising from an injury to the neck caused by a motor accident. The Court has interpreted how the Act and Impairment Guidelines should be applied and all Medical Assessors need to be aware of that interpretation when conducting assessments.