The Queensland and South Australian Injury Scale Value (ISV) Schemes: a comparison

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1 24/03/2 The Queensland and South Australian Injury Scale Value (ISV) Schemes: a comparison Simon R Grant LLB LLM (QUT) Slide No.2 of 478 1

2 24/03/2 In the beginning Common Law Motor Accident Insurance Act 1994 (Qld) Common Law process of providing details of prior cases to courts to assist in assessing the general damages for the injury or injuries (Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118) Widely variable results, not simply dependant upon plaintiff Then we had the Insurance Crisis Personal Injuries Proceedings Act 2002 (Qld) Review of the Law of Negligence: Final Report 2002 (the Ipp Report) Civil Liability Act 2003 (Qld) Draft announced in December 2002 Bill introduced March 2003 Act commenced April 2003, acting retrospectively 2

3 24/03/2 Implementation of the ISV in Queensland Civil Liability Act 2003 (Qld) 61 Assessment by court of injury scale (1) If general damages are to be awarded by a court in relation to an injury arising after 1 December 2002, the court must assess an injury scale value as follows (a) the injured person s total general damages must be assigned a numerical value (injury scale value) on a scale running from 0 to 100; Section 61(1) continued (b) the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind; (c) in assessing the injury scale value, the court must (i) assess the injury scale value under any rules provided under a regulation; and (ii) have regard to the injury scale values given to similar injuries in previous proceedings (Planet Fisheries Pty Ltd v La Rosa (1968) 119 CLR 118). 3

4 24/03/2 The Honourable James (Jim) Thomas QC Does this look familiar? 0: Foreword written by The Rt. Hon. Dame Janet Smith DBE 1: Injuries Resulting in Death 2: Injuries Involving Paralysis 3: Head Injuries 4: Psychiatric and Psychological Damage 5: Injuries Affecting the Senses 6: Injuries to Internal Organs 7: Orthopaedic Injuries 8: Chronic Pain 9: Facial Injuries 10: Scarring to Other Parts of the Body 11: Damage to Hair 12: Dermatitis 13: Minor Injuries 4

5 24/03/2 Publication of the Judicial Studies Board of the UK As referred to in the Ipp Report What is the ISV Scale? Section 61(1)(b) Qld CLA - the scale reflects 100 equal gradations of general damages, from a case in which an injury is not severe enough to justify any award of general damages to a case in which an injury is of the gravest conceivable kind Note: A comparative statement was expressly removed by the South Australian Legislative Council, agreed to by the House of Assembly on 16 May

6 24/03/2 Philosophy A broken arm will always be a broken arm. That is, parity should be obtainable between decisions relating to the same type of injury. Like should be considered against like. Consistency between evidence should lead to predictable outcomes, leading to earlier settlements. Parity between different types of injury should also exist. Darth Vader should get the same ISV for losing his hand as Luke Skywalker would get for losing his. 6

7 24/03/2 Ballesteros v Chidlow & Anor [2005] QSC 280 Decision at first instance of White J (appealed in relation to future economic loss general damages untouched). Involved a claim by Miss Ballesteros for injuries suffered in a motor vehicle accident on 18 February Involved eight separately identified injuries, including a cervical spine injury and a lumbar spine injury. The Original and Best Case Example of ISV Assessment Why do I think this? Because the judgment sets out the complete process of assessing an ISV how to identify a dominant injury, setting out each injury and making a nominal assessment; identifying which of two injuries to prefer as the dominant injury; considering whether the ISV range for the dominant injury adequately reflects the combined impact of all the injuries; and considering the impact of other case law (at that time being one case only). 7

8 24/03/2 Ballesteros v Chidlow (continued) makes it clear that the monetary compensation is different to that awardable at common law. There can be no doubt that this is substantially less than the plaintiff would have obtained had her claim for damages been calculated at common law. But it is not appropriate to seek to go behind the detailed regime which now replaces the assessment of damages at common law. Comparison of ISV Values Qld cf SA ISV $ Value ISV $ Value ISV $ Value ISV $ Value 1 1, , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,300 ISV $ Value ISV $ Value ISV $ Value ISV $ Value , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , , ,000 8

9 24/03/2 The level of compensation is different to the ISV The ultimate issue is what is reasonable compensation for those injured through the fault of others: and as to that, how many angels may stand on the head of a pin? per Chief Justice Paul de Jersey AC in his presentation on 23 May 2003 at the Insurance Council of Australia State Conference, Brisbane Queensland BUT WHAT ABOUT THE COMPARISON!!! 9

10 24/03/2 Comparative Comments between Qld & SA Process of Assessing ISV Omissions Most Prevalent Injuries Assessment of Whole Person Impairment PIRS v GEPIC Wide Ranges of ISV Cross-overs and Gaps in ISV Ranges Process of ISV Assessment Appears generally the same. Reg 9(3) provides the Court may have regard to certain factors, including the ISV s of all injuries & treatment refused (including the background as to why refused). Dominant injury defined in s76(5) of the Act. Principles for assessment of ISV for multiple injuries appear the same under Reg s 11 &

11 24/03/2 Process of ISV Assessment (cont.) SA Reg 7 provides the ISV assessed must be a whole number, same as s10 of Sch 3 of the Qld Reg. (a number having a fraction of half or more being rounded up to the nearest whole number) Does this suggest a process? Omissions Asthma Injuries Dermatitis Hair Injuries left in? 11

12 24/03/2 Most prevalent injuries claimed for in QLD MVA s (by reference to ISV scale item number) Queensland 87: moderate cervical spine fracture, disc prolapse or nerve root comp n 88: moderate cervical spine soft tissue South Australia 82: moderate cervical spine fracture, disc prolapse or nerve root comp n 83: moderate cervical spine soft tissue 89: minor cervical spine 84: minor cervical spine 92: moderate thoracic or lumbar spine fracture, disc prolapse, nerve comp 93: moderate thoracic or lumbar spine soft tissue 87: moderate thoracic or lumbar spine fracture, disc prolapse, nerve comp 88: moderate thoracic or lumbar spine soft tissue 94: minor thoracic or lumbar spine 89: minor thoracic or lumbar spine Most prevalent injuries (cont.) The SA item descriptions are different to the Qld item descriptions. The SA provisions specifically require clinical findings at the time of any medical examination consistent with radiological objective evidence, where present. The concept of objective signs is not defined, but item 87 (moderate thoracic or lumbar spine injury) may be referred to as providing an inclusive list of such signs sensory loss, loss of muscle strength, impaired reflexes and unilateral atrophy. 12

13 24/03/2 Assessment of Whole Person Impairment Under both regimes, WPI is not the only consideration. AMA5 assessments favoured over others. Section 11 of the Qld Regulation Notes 1 It is not a function of a doctor to identify (a) the item in schedule 4 to which an injury belongs; or (b) the appropriate ISV for an injury. Assessment of Whole Person Impairment (cont.) SA Reg 4(2) & 5 medical assessment must not be undertaken until injury has stabilised. Qld Reg relies upon AMA5 principles no WPI assessable until injury has reached maximum medical improvement. There is some conflict with the concept of stabilised and injuries such as items 40 to 43 relating to lung injuries, where the level of ISV reflects the disease is worsening 13

14 24/03/2 PIRS v GEPIC PIRS Psychiatric Impairment Rating Scale adopted from the NSW motor accidents scheme accreditation of assessors on PIRS training accredited assessors must have psychiatry or psychology qualifications GEPIC The Guide to the Evaluation of Psychiatric Impairment for Clinicians adopted from the Victorian workers compensation system The differences in rating levels are not immediately apparent. Are we there yet? 14

15 24/03/2 Wide Ranges of ISV 8 minor brain injury ISV 6 to Impotence and sterility ISV 5 to Loss of part or all of the penis ISV 5 to loss of both testicles ISV 5 to injury to female genitalia or reproductive organs or both ISV 3 to 25 Injuries that fall within any of these items would appear to greatly enhance the chances of assessment of an ISV greater than 10 for incidents involving multiple minor injuries. Wide ranges of ISV (cont) Item 154 Minor scarring to a part of the body other than the face ISV 0 to 7 This item also lends itself to multiple injury claims, with arguments to be made in minor matters for assessment of an ISV in excess of 10 on an uplift basis. 15

16 24/03/2 Cross-overs and Gaps in ISV Ranges 32 Moderate ear injury (ISV 11 to 25) & 33.1 Minor ear injury moderate tinnitus and hearing loss (ISV 6 to 11) 41.2 Serious lung injury if no progressive worsening of lung function (ISV 11 to 24) & 42 Moderate lung injury (ISV 6 to 11) What is the impact of these cross-overs? What happens where the Court assesses the ISV for the dominant injury on the cross over point? Cross-overs and Gaps in ISV Ranges (cont.) Item 80 Extreme cervical spine injury has an example where an ISV at or near the bottom of the range for a WPI of about 35%. Item 81 Serious cervical spine injury has an example where an ISV at or near the top of the range for a WPI of about 28%. What happens in the no man s land in between? 16

17 24/03/2 What has the result been? The Honourable Paul de Jersey AC, Chief Justice of Queensland presentation at the ALA Qld Conference on 17 February 2006 reported suggestions of the Law Council of Australia that the laws are preventing over 40% of claimants pursuing their common law rights Is this + ve or ve? civil lodgements dropped 13% from to from to % much of that would be referable to these legislative changes Is this + ve or ve? Are we comfortable? 17

18 24/03/2 Are there any questions? I am happy to take them. Please note I will break them down into three categories: A. Those I wish you had called me about last week so I could prepare a response. B. Those deserving of a long answer, but to which I will give a short answer and suggest you see me at either morning tea or drinks this evening. C. Those I wish you hadn t asked me. Thankyou Simon R Grant Barrister Level 19 Inns of Court 107 North Quay, Brisbane 18

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