Causation Test: Hey dude, the movement you need is on your shoulder

In Brief

• The onus is on the Claimant to establish, on the balance of probabilities, both that the accident could cause the injury in question (medical test) and that the accident did cause the injury (non-medical test)
• A supraspinatus tear is unlikely unless (a) the muscle tendon complex was passively stretched or contracted forcibly against resistance, or (b) there was direct force to the lateral aspect of the shoulder..

Facts

The Personal Injury Commission (PIC) published its decision in Isaac v AAI Limited t/as AAMI [2024] NSWPICMP 364 on 21 June 2024.

The Claimant was injured in a motor accident on 14 February 2021. On that day, she was a passenger in a vehicle driven by her husband. Her husband entered a roundabout without giving way to a vehicle approaching from their left, which was already in the roundabout. A collision occurred between the front of the other vehicle and the passenger side of the vehicle in which the Claimant was travelling.

The airbags in the vehicle did not deploy. The Claimant could not remember hitting anything inside the vehicle. The Claimant’s husband drove home. Emergency services did not attend the accident scene.

The Claimant was 79 years old on the day of her accident.

The Claimant underwent an ultrasound on 4 August 2022, some 18 months post-accident, which revealed a partial tear of the supraspinatus tendon. The Claimant alleged that the tear was caused by the motor accident and represented a non-threshold injury, which would entitle her to ongoing statutory benefits and common law damages.

The Review Panel’s Reasons

The Review Panel concluded that the motor accident did not cause the tear in the Claimant’s supraspinatus for the following reasons:

• A tear of the supraspinatus muscle and tendon could only occur in two situations: (a) where the muscle tendon complex was passively stretched or contracted forcibly against resistance, or (b) where there was direct force to the lateral aspect of the shoulder.
• In either situation, there would be immediate pain, possible swelling and immediate loss of function in the shoulder.
• It is unlikely that the impact in question caused the Claimant’s supraspinatus tear given that:

• • The Claimant was restrained in a seatbelt.
  • She experienced a forward impact without the airbags being deployed.
  • The Claimant could not recall any movement of the arm relative to the body.
  • The Claimant did not experience any direct impact to the lateral shoulder.
  • There was no record of early complaint of shoulder pain in the GP records or physiotherapy records.
  • The tear of tear found on the August 2022 ultrasound is a degenerative phenomenon which is extremely common in people within the Claimant’s age group, irrespective of symptoms.

For these reasons, the Review Panel certified that the motor accident only caused the Claimant threshold injuries.

Key Learnings

Whilst the Review Panel did not cite Briggs v IAG Limited [2022] NSWSC 372 (Briggs) in its reasons, it properly applied the causation principles articulated in that decision. In Briggs, the Supreme Court held that the onus was on the Claimant to establish, on the balance of probabilities, both that the accident could cause the injury in question (medical test) and that the accident did cause the injury (non-medical test).

In this dispute, the Claimant fell at the first hurdle because she was not able to establish that the forces involved in the accident could cause the supraspinatus tear that she claimed was caused by the accident.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Principal, Peter Hunt, today.

Additional McCabes Resources

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner