Smith v National Injury Insurance Agency, Queensland

This matter concerned the proper approach to the statutory definition of a “serious personal injury” in Schedule 1 of the National Injury Insurance Scheme (Queensland) Act 2016 in respect of a brachial plexus injury, which had to result in “an impairment equivalent to shoulder disarticulation amputation” in order to come within the statutory definition. The Court held that the relevant comparison was not with the “bare physical effect” of the injuries, but with a comparison of the resulting “impairment” and “whether the loss of functional use of the arm” was equivalent.

Henry J

18 September 2020

The applicant was injured in a serious motorcycle accident. He suffered a catastrophic brachial plexus injury, leaving him with a right arm that is painful and lacks function. [1]. He applied to participate in the National Injury Insurance Scheme, Queensland, but his application was rejected on the basis that his injury was not a “serious personal injury” within the meaning of Sch 1 of the National Injury Insurance Scheme (Queensland) Act 2016 (“the Act”). An internal review affirmed this decision and the applicant sought judicial review of the internal review decision. [2]–[3].

Schedule 1 required the applicant’s brachial plexus injury to have resulted in “an impairment equivalent to shoulder disarticulation amputation” in order to constitute a “serious personal injury”. [1], [16]. On the evidence available for the internal review, the applicant’s arm was “useless and painful” and lacked any functional capacity. The internal review officer did not consider that this was equivalent “to having no arm” as the applicant “retained modest capacity for movement in the hand and wrist”. [20]–[24]. The internal review officer undertook “a comparison of a shoulder disarticulation amputation with the bare effect of the brachial plexus injury, not of the impairment resulting from it”. The determinative consideration for the internal review officer was that the applicant retained some movement or feeling in his arm. This would have been totally absent if he had suffered a shoulder disarticulation amputation. [25]–[29].

In Henry J’s view, this approach misconstrued the relevant statutory definition. [31]. His Honour considered that the definition required more than consideration of the “bare physical effect of the injury” but required “consideration of the significance of that effect for the working or functioning of the arm”. [34]. Accordingly, the definition did not require “a comparison of the injuries”. Rather, it required “a comparison of the impairment resulting from a brachial plexus injury with a shoulder disarticulation amputation”. (emphasis in original). [36].

It followed that the “obvious potential form of equivalence” under the required comparison was “the loss of functional use of the arm itself”. [37]–[41]. If equivalence of physical effect was required, it was difficult to see how the definition could ever be met. “[T]he only apparent form of impairment” the two injuries could share was “the deprivation of functional use of the arm itself”. [45].

Justice Henry held that the internal review officer had erred in considering the bare physical effect of the injury rather than considering its impact upon function, and in requiring equivalence of bare physical effect rather than equivalence of impairment. This was a misconstruction of the statutory definition and amounted to both an error of law and a consequential failure to take into account a relevant consideration. [42].

In the circumstances, Henry J did not consider it appropriate to make a direction or a declaration that the respondent accept the applicant into the Scheme, as there were other matters relevant to that decision which were not litigated. [53]–[56].

In the result, the internal review decision was quashed and the matter remitted to the respondent, with the parties to be heard as to costs. [58].

S Walpole