Case Note from Common Law Committee

02/06/2011

The Common Law Committee wishes to draw to the attention of members the recent decision of Justice Hall in_ Nguyen v The Motor Accidents Authority of NSW_ [2011] NSWSC 351.� The judgment affects assessments by the Medical Assessment Service (MAS). The long standing MAS practice has been to only assess impairment where there is frank injury.� In particular, MAS would not assess restricted range of motion in the shoulder where it was found that this was derivative from a neck injury, rather than caused by traumatic shoulder injury.

In Nguyen v the MAA, Justice Hall held that:

Application of common law causation principles would support…the conclusion that impairment in one or both of the [claimant’s] upper limbs consequent upon injury to the cervical spine would be compensable as the natural and direct consequence of spinal injury. [94]

Justice Hall went on to find that the medical assessment of permanent impairment required:

An assessment of the injury to the cervical spine and its direct effects on related areas including, in particular, the [claimant’s] right shoulder. [119]

The MAS assessor had failed to assess any WPI for the loss of shoulder movement on the basis that there was no frank or direct injury to the shoulder.� The Proper Officer had refused a review.� These decisions were quashed and the matter was referred back to MAS to be determined according to law.

The Common Law Committee wishes members to be aware of the decision as it represents a significant challenge to existing MAS methodology and approach.

**2 June 2011 **

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