Butler SC, DCJ
The respondent was injured in 2010 in a boating accident where he suffered a crush fracture to the L1 vertebrae. Importantly, the respondent had undergone a total hip replacement and also suffered from left knee arthritis due to a prior skiing injury.
The respondent resisted an application by the applicant that he undergo an unrestricted medical examination. The respondent claimed that pursuant to s 25(3) of the Personal Injuries and Proceedings Act 2002 (PIPA) he was not obliged to undergo an unrestricted medical examination as it was unreasonable or unnecessarily repetitious. That section reads:
(2) The claimant must comply with a request by the respondent to undergo, at the respondent’s expense either or both of the following –
- a medical examination by a doctor to be selected by the claimant from a panel of at least three doctors with appropriate qualifications and experience in the relevant field nominated by the respondent in the request;
(3) However, a claimant is not obliged to undergo an examination or assessment under this section if it is unreasonable or unnecessarily repetitious.
The respondent did, however, concede to an examination limited to his hip and knee.
The issue in the application was whether an order for the examination should confine the specialist by limiting the nature and extent of any examination and assessment. Specifically, the respondent sought to limit the examination to his hip and knees in order to prevent the specialist expressing an opinion on the whole person impairment arising from a combination of the hip, knee and spine conditions. Further, the time when the hip and knee complaints were brought to the applicant’s attention were in dispute.
Finding for the applicant, Butler SC DCJ stated:
 Under s 61 of the Civil Liability Act 2003 the Court in awarding general damages is required to assess an injury scale value (ISV) under the rules provided by regulation. Matters a court must and may have regard to in assessing an ISV are stated in ss 8-10 of the Civil Liability Regulation 2014. The effects of a pre-existing condition of the person is one matter the Court may have regard to. Whole person impairment is an important consideration in assessing an ISV. A court must give greater weight to a medical assessment of a whole person impairment percentage based on criteria under AMA 5 than to other medical assessments. (citations omitted)
And further, as to whether a pre-existing injury can affect a reduction of whole person impairment, His Honour said:
 Whether reduction of whole person impairment by reference to a pre-existing condition, as proposed by Dr Steadman, is a legally correct approach in the circumstances of this case may depend on the trial judge’s assessment of the evidence at trial. The existence of a pre-existing condition and its relevance to the harm caused by the defendant is essentially a question of fact for the trial judge: Wilson v Peisley (1975) 50 ALJR 207. A pre-existing condition is also potentially relevant where, as here, the plaintiff is seeking damages for future economic loss and loss of earning capacity.
The respondent was ordered to submit to an unrestricted independent medical examination to be paid for by the applicant.
David Cormack – Brisbane Barrister & Mediator