QBE Insurance (Australia) Ltd v Kumar

QBE Insurance (Australia) Ltd has appealed against the original assessment of impairment sustained by Mr Kumar, who was involved in a motor accident on 24 August 2015. Mr Kumar sustained soft tissue injuries to his cervical and lumbar spines, as well as his left shoulder. The primary concern is whether Mr Kumar suffered a distinct injury to his shoulders and/or if he has referred pain limiting movement, which would need to be assessed under the Nguyen principle. The case has been heard and determined by the court.

The court was tasked with examining the variability in the findings regarding Mr Kumar's shoulder injuries. Both medical assessors identified impairment in the lumbar spine, but they disagreed on the presence of impairment in the cervical spine. The measurements taken for shoulder movement showed significant inconsistency, which rendered them unreliable. The court had to determine the restriction in shoulder movement by analogy and whether any pre-existing impairment should be deducted. The insurer bears the burden of proving such deductions.

In its reasoning, the court referenced Vines v Djordjevitch and Matthew Hall Pty Ltd v Smart to support its conclusion. The court found that Mr Kumar's shoulder injuries could not be reliably measured and, therefore, assessed his whole person impairment at 9%. The original assessment was revoked, and the court ordered that the new assessment be applied. This decision highlights the importance of reliable and consistent medical assessments in determining the extent of impairment following a motor accident.