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Case summary: Kemp v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 260 (29 April 2024) – the importance which can be placed on contemporaneous records

Published on July 26, 2024 by Emily KatheklakisEmily Katheklakis

The Motor Accidents Injuries Act 2017 (NSW) (MAIA) provides that an individual injured in a motor vehicle accident can seek compensation for both non-economic (pain and suffering) and economic loss. Section 4.11 of the MAIA stipulates that to be entitled to damages for non-economic loss (pain and suffering), an individual injured must demonstrate a whole person impairment (WPI) exceeding 10%. The case of Kemp v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPICMP 260 highlights that Medical Assessors may place greater emphasis on contemporaneous records over expert opinions that may rely on inaccurate history.

Background

The claimant was involved in a motor vehicle accident on 1 January 2018, when she was 13 years of age.

As a result of the accident she alleged physical injuries including loss of vision and hearing for 30 minutes, injury to her right hip and the development of a psychological injury two months after the accident. She alleged her school performance deteriorated after the accident and she could not work more than 20 hours per week at KFC due to tiredness.

The matter proceeded to the Personal Injury Commission (PIC) for determination regarding a dispute between the parties as to the extent of her whole person impairment. At the time of assessment, the claimant was 18 years of age. She had recently completed year 12 schooling.

She was examined in the presence of her father by the original Medical Assessor, who diagnosed the claimant with Post Traumatic Stress Disorder caused by the accident. The original Medical Assessor assessed whole person impairment at 7%.

The Claimant lodged a review application. The President’s Delegate was satisfied there was reasonable cause to suspect the assessment was incorrect in a material respect and the matter was therefore referred to the Review Panel.

The Review Panel

The Review Panel made findings that:

i. The claimant relied on her expert psychiatrist report, but the expert was qualified with a limited number of clinical records, the medical certificate which accompanied the claim form and a physiotherapist’s report.

ii. The claimant’s expert was not provided with her school records, employment records, a full copy of her psychologist’s records or pre-accident Headspace records.

iii. The claimant’s history as provided to her qualified expert was incorrect. The claimant’s school records demonstrated mainly C and D’s before the accident and, after the accident, there was no real change. This was contrary to the claimant’s reported history that her performance had “dropped massively”. In addition, there were inconsistencies with the period the claimant indicated she worked at KFC, her employment records confirming work for eight months rather than four weeks as reported.

The Review Panel gave the claimant’s expert report little weight because the expert was not provided all the relevant evidence for the purpose of the assessment and there were various inconsistencies which contradicted the documented evidence.

Regarding the claimant’s inconsistent history, the Review Panel determined it was the clinical judgment of the Medical Assessors that psychological symptoms from a traumatic event such as a motor vehicle accident can and do vary over time and this could explain disparity in the claimant’s report of her own mental state.

The Review Panel further took the view that the documented school records are likely to be more accurate than the claimant’s recollection and accordingly gave them more weight.

Based on the evidence and the examination, the Review Panel arrived at the same conclusion as the original Medical Assessor. The Review Panel confirmed the original Medical Assessor’s Certificate.

The decision demonstrates where a claimant provides an inconsistent history, their evidence will be carefully compared to the contemporaneous evidence. Medical Assessors may give more weight to the contemporaneous documents than an expert opinion which is based on an incorrect history. In this instance more weight was given to school records, employment records and clinical records. It is important for claimants to be aware that histories provided will be strenuously vetted against contemporaneous documents providing evidence in support of their claim.

Please note that this article does not constitute legal advice. If you are seeking professional advice on any legal matters, you can contact Carroll & O’Dea Lawyers on 1800 059 278 or via our Contact Page and one of our lawyers will be able to assist you.