AAI Ltd t/a GIO as agent for the Nominal Defendant v McGiffen [2016] NSWCA 229
How the accident happened
Mr McGiffen was injured in a motorcycle accident on 2 September 2008. He was partly wheelchair bound and partly on crutches upon leaving hospital 5 days later. On 11 December 2009, he was hospitalised with acute back pain. He made a claim under the Motor Accident Compensation Act in 2010. He sought to claim damages for non-economic loss. Insurer refused to concede there was over 10% whole person impairment. He submitted an application to SIRA. The initial assessor in 2011 stated the injury had not stabilised. In 2013, he made a third application for assessment of impairment and Assessor Crane found that there was ‘no evidence of injury to the thoracic or lumbar spine with the first mention of any problem with the back not being until approximately nine months after the subject motor vehicle accident'[23]. Therefore Assessor Crane did not see need to determine whole person impairment. There was evidence from the date of the accident on the Trauma Admission Secondary Survey that there was tenderness over the lumbar-thoracic spine. Mr McGiffen appealed the decision to the review panel, who upheld the original decision of Assessor Crane and utilised largely similar reasons for their decision.
What had to be established
- Section 58(1)(d) provides that causation is a consideration of whether the injury was a contributing cause of the injury. Causation is not confined to the immediate effects of the accident [38 referring to the primary judge at [58]-[59]].
- Medical assessment is a critical component of proceedings for the compensation of persons injured in motor vehicle accidents and is conclusive evidence of the degree of impairment of a person as a result of the injury caused by the motor accident [56]
- The Review Panel, in not considering the substance of Mr McGriffen’s claim, that being the lumbar-thoracic injury occurring as a result of the accident, was a failure to satisfy a statutory obligation to exercise jurisdiction. [52]
- Their decision on causation only partially addressed the requirements of s 58(1)(d) and not fully undertaking it, therefore a jurisdictional error
- A statutory obligation to address the substance of an applicant’s case when conducting such an assessment will be readily implied and a failure to satisfy that obligation may constitute a constructive failure to exercise jurisdiction [52]
How this decision impacts us
The decision indicates that we should ensure that our letters of instruction to Doctors encompass all potential injuries arising from an accident so we can obtain a Doctor’s opinion on their relevance in order to establish evidence for them arising from accidents.
We should carefully read decisions of Review Panels to ensure they have considered all arguments purported, as their failure to do so could result in a jurisdictional error. In making our arguments to them we should ensure we clearly indicate our evidence that supports our claim.
Remember that causation in respect of injuries occurring from accidents is not confined to immediate effects of the accident, as in this case treatment of initial injuries meant delayed onset of other injuries arising from the incident (Assessor Crane commented at [60(2)]).
How we can help
If you have had an accident on the road, whether on a motorbike; car or as a pedestrian contact Turner Freeman today on 13 43 63. Our road accident claims specialists can service clients for all types of accidents and injuries, all around New South Wales.
