Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 120

Welcome to the 120th edition of Sparke Helmore’s MAD Weekly!

The Personal Injury Commission (Commission) commenced on 1 March 2021 and, with it, the publication of the majority of decisions issued by the Commission.

To help you navigate the recent decisions of the Motor Accidents Division (MAD) of the Commission, we are publishing weekly the relevant headnotes of select published decisions with a link to the decisions on the Australasian Legal Information Institute (AustLII) website. Please see the latest edition below.

All references to legislation are to the Motor Accident Injuries Act 2017 (NSW) (the MAI Act) unless otherwise noted.

Commentary and analysis of trends will be provided on more substantive decisions by our CTP team  and will be separately published when necessary.

Supreme Court of NSW

Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245 (4 October 2024)

Griffiths AJA

Whether injury to skin considered a non-threshold injury for the purposes of s 1.6 of the MAI Act – judicial review failed.

The first defendant (who is now deceased, for reasons unrelated to the motor accident, but whose claim is being pursued by her Estate) was injured in a motor accident on 8 December 2017.

A dispute arose as to whether the first defendant sustained a non-threshold injury in the motor accident. In terms of the injuries sustained by the first defendant, the lacerations to the left wrist and right wrist were relevant to the proceedings.

The main issue for consideration was whether the lacerations to the left wrist and right wrist were non-threshold injuries for the purposes of s 1.6 of the MAI Act. In other words, is an injury to the skin considered a non-threshold injury.

On 5 October 2022, Assessor Home certified that the claimant’s injuries caused by the motor accident were all threshold injuries for the purposes of s 1.6 of the MAI Act. Of relevance, Assessor Home was not satisfied that the first defendant sustained lacerations to her left wrist, which were causally attributable to the motor accident.

Assessor Home’s assessment was referred to the Review Panel under s 7.26 of the MAI Act in relation to the assessment of the left wrist lacerations.

The Review Panel revoked the Certificate of Assessor Home and certified that the claimant sustained non-threshold injuries in the form of lacerations to the left wrist and right wrist as a result of the subject accident. Notably, the Review Panel’s review was conducted on the papers and without a medical examination as the first defendant was then deceased. In its reasoning, the Review Panel concluded that no organ, including skin, is “a tissue” for the purposes of the definition contained in s 1.6(2) of the MAI Act. Further, the Review Panel affirmed that the skin is the largest organ in the body that “connects, supports or surrounds other structures” by separating the body’s internal and external environments and held that it was not “a connective tissue, per se”.

The insurer (the plaintiff) subsequently lodged judicial review proceedings.  

Griffiths AJA agreed with the Review Panel’s determination that injury to the skin ought to be considered a non-threshold injury for the purposes of the MAI Act, especially relying upon the following:

1. The Parliament notably omitted “skin” from the long list of examples of things that are tissue “that connects, supports or surrounds other structures or organs of the body” in the definition of “soft tissue injury” in s 1.6(2) of the MAI Act.
2. Based on “skin” being not only a tissue but also an organ, it would appear illogical that an injury to an organ could fall within the ambit of an injury to “tissue that connects, supports or surrounds itself”.

Held: An injury to skin was considered a non-threshold injury for the purposes of s 1.6 of the MAI Act. The judicial review failed. The decision of the Review Panel was affirmed.

View decision

Supreme Court of NSW

Puga v Allianz Australia Insurance Ltd [2024] NSWSC 1235 (2 October 2024)

Harrison AsJ

Whole person impairment (WPI) – causation of right shoulder and right knee injury – subsequent workplace injury – judicial review failed.

On 16 April 2019, the plaintiff was involved in a motor accident at a pedestrian crossing when he was struck by a motor vehicle. He sustained seven injuries following the motor accident.

A dispute arose as to his assessment of WPI. The plaintiff was unsuccessful in the Commission, including upon review, as it was held that his injuries did not exceed the 10% WPI threshold.

In terms of the injuries suffered by the plaintiff, the only two which were relevant in the present proceedings were the injury to the right shoulder, and the injury to the right knee.

The main issue for consideration was whether the injuries to his right knee and right shoulder were caused by the motor accident.

In the WPI dispute, the Commission determined that the injuries amounted to 10% WPI. The plaintiff lodged a review application; however, the President’s Delegate refused the application on the basis that he was not satisfied that there was reasonable cause to suspect the medical assessment was incorrect in a material respect.

The plaintiff subsequently lodged judicial review proceedings. The first defendant was the insurer and the second defendant was the President of the Commission. The third defendant was Assessor Home in his capacity as a Medical Assessor of the Commission.

The plaintiff’s grounds of review were as follows:

1. The third defendant erred in law in relation to his findings that the plaintiff’s right shoulder condition likely developed after the motor accident, during the course of his employment performing car radio installations.
2. The third defendant did not afford the plaintiff procedural fairness prior to the findings the plaintiff’s right shoulder condition developed after the motor accident, during the course of his employment performing car radio installations.
3. The third defendant erred in finding that the plaintiff recollected first noticing right shoulder pain whilst installing car radios in early 2020.
4. The third defendant provided inadequate reasons in respect of his assessment of WPI of the right knee injury.
5. The decision of the President’s Delegate that he was not satisfied that there was reasonable cause to suspect that the third defendant’s medical assessment was incorrect in a material respect was so unreasonable that no reasonable decision maker could have made that decision.

The first three grounds of review dealt with the injury to the plaintiff’s right shoulder. Review ground 5 dealt with the plaintiff’s right knee injury. Review ground 6 dealt with the decision of the President’s delegate. The fourth ground of review was not pressed at the hearing.

Harrison AsJ dismissed the first ground of review, noting the following:

1. The Assessor considered all the documents provided in the plaintiff’s application and reply.
2. There was no medical imaging of the plaintiff’s right shoulder placed before the Assessor to consider.
3. The plaintiff did not deny notifying the Assessor that his symptoms pertaining to the right shoulder developed in mid-2020, nor did he deny telling him that this coincided with his return to his car installation employment.
4. There was sufficient evidence before the Assessor to make the finding that the plaintiff’s right shoulder was not caused by the accident.

The second ground of review was dismissed by the Court and it was held that the plaintiff was not denied procedural fairness, with reference to the following:

1. The medical reports obtained by the parties had put the cause of the plaintiff’s shoulder injury in issue, and therefore he was on notice that it was going to be argued by the insurer that the injury to his right shoulder was not caused by the accident.
2. The plaintiff had the opportunity to prepare his initial statement to expressly state that his injury did not arise from the work assembling car radios and his reasoning why this alternative was erroneous. He did not do so.
3. There was considerable evidence before the Assessor that the shoulder injury was not caused by the motor accident.

The Court dismissed the third ground of review.

The fifth ground of review was dismissed and it was concluded that the Assessor’s reasoning pertaining to the right knee was not inadequate, based on the following:

1. The sections of the SIRA Guidelines that the Assessor referred spanned only fewer than three pages.
2. There was no difficulty in following the Assessor’s reasoning when cross-referencing the pages with the Assessor’s decision itself, which alluded to the plaintiff’s range of motion.
3. Whilst the Assessor could have been more precise in his reasoning, there was no requirement to be so precise. Harrison AsJ quoted the language of Basten AJ in Rahman v Insurance Australia Ltd t/a NRMA Insurance [2022] NSWSC 1079 at [49]  that the Assessor “did not have to provide textbook references to justify” his decision. The only requirement was for the Assessor’s reasoning to be logically deduced.

The sixth ground of review was dismissed, with Harrison AsJ determining that the President’s delegate’s reasons “were not so unreasonable that no reasonable decision maker could have made that decision.”

Held: The judicial review failed. The decision of Medical Assessor Home was affirmed. The decision of the President’s Delegate of the Commission was affirmed.

View decision

Medical Review Panel

Behn v AAI Limited t/as GIO [2024] NSWPICMP 637 (11 September 2024)

Review Panel: Member John Harris, Medical Assessor Christopher Oates and Medical Assessor Shane Moloney

Assessment of WPI – car door opened on motorcyclist impacting left shoulder – repeated clinical opinions diagnosed brachial plexus injury despite scan findings indicating the contrary – claimant determined to have sustained brachial plexus and left shoulder injuries in the motor accident and assessed above 10% WPI – Certificate revoked.

On 28 March 2022, the claimant was injured in a motor accident as a motorcyclist. The insured driver opened a car door which collided with the claimant’s left shoulder as he was riding. A dispute arose between the parties surrounding the degree of WPI and entitlement to non-economic loss damages.

The claimant was assessed by Medical Assessor Kenna who determined the claimant sustained a left lower branch brachial plexus injury and limitation of the left shoulder due to the “Nguyen effect”. Medical Assessor Kenna held that the claimant’s injuries gave rise to 10% WPI, consisting of 7% WPI to the lower trunk of the brachial plexus and 3% WPI to the left shoulder. Notably, Assessor Kenna did not assess the claimant’s cervical spine symptoms as he considered that it would “result in double dipping”.

The claimant was successful in having Assessor Kenna’s assessment referred to a panel for review. In his submissions the claimant made the following arguments:

1. With respect to the cervical spine, the issue of double dipping was not identified in the Motor Accident Guidelines (the Guidelines) and cl 6.45 contemplated multiple injuries being assessed and their respective impairments combined.
2. The Medical Assessor failed to disclose his reasoning in concluding that the cervical spine injury should be excluded from the determination.
3. The reasons of Assessor Kenna are insufficient in assessing the brachial plexus impairment by failing to explain why the claimant was placed in grade 3.
4. The Assessor having identified a cervical spine injury, failed to correctly apply the principles in Nguyen v Motor Accidents Authority of NSW in assessing if there was any reduced range of motion in the left shoulder.
5. The inconsistency between the claimant’s reported well-defined numbness on the medial aspect of the left forearm involving the fourth and fifth fingers and the determination that two-point discrimination sensation was normal should have been put to the claimant pursuant to
6. cl 6.41 of the Guidelines.
7. The measurements contained in Assessor Kenna’s Certificate relating to muscle wasting and reduced shoulder range of motion were not taken by any device.

The panel decided to re-examine the claimant. The re-examination was conducted by Medical Assessor Oates on behalf of the Review Panel.

As to diagnosis, the Review Panel determined that there was a contusive soft tissue injury to the anterior aspect of the left shoulder from direct trauma, and associated traction injury to the lower trunk of the brachial plexus arising from a direct blow to the upper pectoral left infraclavicular area due to contact between that part of the body and open door of a car, whilst the claimant was moving at a moderate speed alongside the door.

The Review Panel held that the claimant had been repeatedly assessed clinically as suffering from a brachial plexus injury and considered the nature of the injury to be consistent with the mechanism of the motor accident involving his left arm being struck by the car door at speed. These findings were again found by Medical Assessor Oates upon examination. Despite the scans not revealing a brachial plexus injury, the Panel noted that brachial plexopathy is often made clinically even in the absence of supportive investigations.

In terms of the left shoulder, the Review Panel accepted that the clinical features revealed loss of movement in the left shoulder as a result of the soft tissue trauma sustained in the motor accident. The Review Panel relied upon the accepted clinical history of direct trauma to the anterior left shoulder, the ultrasound which revealed subacromial bursitis, absence of prior symptoms and repeatedly observed left shoulder loss of movement since the motor accident.

With respect to the cervical spine, the clinical findings of Medical Assessor Oates did not reveal any assessable impairment of that body part and as such, the issue of causation did not need to be addressed.

Ultimately, the Review Panel assessed permanent impairment at the time of the examination at 11% WPI, comprising of 7% WPI to the brachial plexus lower trunk and 4% WPI to the left shoulder.

Held: Medical assessment Certificate revoked; claimant sustained brachial plexus and left shoulder injuries, and assessed at greater than 10% WPI.

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