Kumarasiri v GIO General Limited

Judgment Introduction 1The plaintiff seeks declaratory relief against the Motor Accidents Authority of New South Wales and a Review Panel constituted under s 63 of the Motor Accidents Compensation Act 1999 (NSW) in respect of determinations as to whether he suffered injuries to his shoulders in a motor vehicle accident. As it happened, the plaintiff was injured in two motor vehicle accidents, one on 5 May 2010 and the other on 20 January 2011. Generally speaking, the plaintiff claimed that in the first accident his neck, back, right knee and left shoulder were injured, whilst in the second accident, both shoulders, both knees and both wrists were injured as well as further injuries suffered to his neck and back. The crucial question in this case concerns findings by the Review Panel about the shoulder injury allegedly caused in the second accident. 2In respect of the first accident, the plaintiff was certified as having suffered impairment in respect of injuries to the cervical spine, lumbar spine and right lower extremities but the Assessor concluded that his claimed injuries to his right and left shoulders were not caused by the accident. So far as the second accident was concerned, the Assessor concluded that the shoulder injuries were caused by it and certified him as having suffered impairment in respect of injuries to both shoulders, both wrists and both knees. The first defendant then applied for a review and the plaintiff came to be assessed by the Review Panel. The Panel decided that the plaintiff should be re-examined and sought further reports. It concluded that causation had not been established for the shoulder injuries, indeed, that there were no shoulder injuries demonstrated on its re-examination. Issues 3The report of the Panel sets out its deliberations, in particular as to causation of the listed injuries, stating, in this respect - "The Panel concluded that causation was established for the injuries to the neck (cervical spine), thoracic spine, lumbar spine, chest and right knee. It concluded that causation was not established for the listed injuries to the shoulders, left knee, both wrists and both ankles. The reason for concluding that causation was not established for the listed injuries to the shoulders, left knee, both wrists and both ankles is that there is no information contemporaneous with the subject motor vehicle crash on 20 January 2011 to show that injuries to these body regions had occurred." [Emphasis added]. The plaintiff's case is that the italicised passage is fundamentally flawed in that, to the contrary, there was information which, fairly considered, was indeed contemporaneous with the accident of 20 January 2011. (So far as causation was established for the other injuries, they were all soft tissue injuries giving rise to a nil percentage of whole person impairment and are not presently relevant.) 4The plaintiff submits that the finding that causation was not established for the reason given was not open to the Panel, given the material that had been submitted to it as part of the review and this is a question of law (relying, inter alia, on Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43; (2013) 88 ALJR 52 at [63]). For its part, the GIO submits that the Panel's conclusion as stated in the italicised passage, correctly understood, did not demonstrate any error, if it did the error was merely one of fact and, lastly, there was a substantive finding that, pursuant to its own examination of the plaintiff there was no evidence of shoulder injury, thus no assessment was called for. Evidence of shoulder injuries 5The Review Panel noted that, following the earlier accident of 5 May 2010 the Assessor noted, on clinical examination, that the plaintiff's shoulders were stiff, more marked on the left with limited abduction, forward flexion, extension, adduction, internal rotation and external rotation, tenderness of the left trapezial muscle and mild weakness of the shoulder girdle, limitations in movement of the right shoulder, tenderness of the right trapezius and mild weakness of the right shoulder girdle. The Assessor concluded that the motor vehicle accident had aggravated his shoulders, with the left shoulder strain injury being a whiplash associated disorder with left trapezius muscle pain. He concluded, however, that neither of the injuries to the left or right shoulder was caused by the accident. 6The plaintiff's general practitioner, Dr Michael Tay, obtained an ultrasound of the plaintiff's left shoulder on 31 August 2010 which showed supraspinatus tendinosis, no evident rotator cuff tendon tear but there was bicipital tenosynovitis and mild subacromial bursitis. On 3 December 2010 a further report showed much the same conditions. On 12 January 2011 the plaintiff made a statement dealing with the consequences of his accident of 5 May 2010, claiming that he sustained injuries to his neck, back and left shoulder, all of which "have been the major ongoing injuries affecting my capacity to work". Complaints of pain affecting the plaintiff's shoulders referred to in Dr Tay's clinical notes were made on 31 July, 31 August, 3 and 24 September and 22 October 2010 as to the left shoulder, as to the right shoulder on 11 and 20 November and 9 December 2010, and, in respect of both shoulders, on 11 January 2011 (only nine days before the second accident). On the date of the second accident the ambulance report contains a note, "neck/shoulder pain post MVA". On the following day, 21 January 2011, Dr Tay noted, on examination, that the plaintiff had suffered "another" accident the previous day and reported pain in his neck, lumbar spine and knees. On examination there were limitations to the plaintiff's shoulders and he was tender at the deltoid points. The complaints of pain continued over the ensuing weeks and months. What did the Panel decide? 7It seems to me important, in understanding the Panel's reasons, to appreciate that, amongst the material available to it, were details of the complaints and ultrasound findings to which I have already referred. The Panel noted the plaintiff's two motor vehicle accidents and the shoulder injuries about which he had complained since the earlier accident and repeated after the second accident. Had the Panel drawn conclusions on the basis of a lack of complaint, the plaintiff would have been in a strong position. However, there is no reason to think that the Panel drew conclusions from any such mistaken understanding. The language used is not that there were no complaints but, rather, there was "no information contemporaneous with... [the second accident] to show that injuries to... [the shoulders] had occurred". It is manifest that a complaint of pain is not a demonstration of, although of course it might suggest, injury. To my mind the Panel plainly intended, by its reference to "information" to mean clinical or other similar evidence of injury. On the face of it, this does appear to overlook Dr Tay's finding of limitations in movement and tenderness at the deltoid points on the following day. However, there is nothing which suggests that this was due to the second accident as distinct from having been continuing symptoms from before it. It seems to me that it is this distinction to which the Panel was directing its search for contemporaneous information, that is, as to whether the injuries had occurred by virtue of the second accident. So considered, the passage to which the plaintiff objects, so far from not being open, is accurate. 8Furthermore, it is appropriate to consider the particular parts of the report in light of the whole, in particular the following passage that described the Panel's own examination of the plaintiff, which demonstrated "no evidence of shoulder injury". Moreover, the Panel reported that it had "considered all the documentation, the history given by Mr Kumarasiri and the clinical examination [made by it] ...", which is inconsistent with any suggestion that his complaints or Dr Tay's examination of 21 January had been overlooked. The Panel made its determination taking all this material into account. Conclusion 9I have been referred by the plaintiff to a number of authorities dealing with findings of fact and the occasions on which such findings, when not open to be made, constitute errors of law. It is not necessary for me to consider those authorities since I am not satisfied that the Panel's statements of fact were mistaken, let alone not open to it. This conclusion also disposes of the contention that the Panel, in relying on a conclusion which was plainly mistaken and which the plaintiff could not have predicted, was in breach of the rules of procedural fairness. It follows that the summons must be dismissed with costs.