Australia, June 2 -- New South Wales Land and Environment Court issued text of the following judgement on May 2:

1. KIRK JA: The sole issue in this appeal is whether an injury to the skin (which is not also an injury to nerves) is a "soft tissue injury" as defined in s 1.6 of the Motor Accident Injuries Act 2017 (NSW) (the Act). The issue has been considered by a number of review panels of the Personal Injury Commission in recent times, reaching different answers, and with even those panels reaching the same conclusion adopting different reasoning to each other: Al-Khafaji v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPICMP 519 at [98]; Nazari v AAI Limited t/as GIO (No 2) [2023] NSWPICMP 62 at [70]-[79]; Eftikhari v AAI Limited t/as AAMI [2023] NSWPICMP 93 at [116]-[127]; Dhupar v AAI Limited t/as GIO [2023] NSWPICMP 99 at [77]-[129].

2. The review panel in this matter concluded that the answer was "no", because skin did not fall within the description of "soft tissue": Abawi v Allianz Australia Insurance Limited [2024] NSWPICMP 158 (RP) at [43]-[65]. The issue then came before the primary judge, Griffiths AJA, by way of judicial review. His Honour reached the same conclusion albeit for somewhat different reasons to those given by the panel under review: Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245 (J). As his Honour observed, the issue is far from straightforward.

3. In my view the answer is "yes"; an injury to skin which is not an injury to nerves is, of itself, a soft tissue injury in the sense defined in the Act. It should be noted that the arguments of both sides had evolved from what was put below.

4. The particular case in which the question arises requires leave to appeal because of the limited value of what is at stake. It is clear that the case raises an issue of principle and of general public importance. The applicant, an insurer (Allianz), accepted that that characterisation is of little practical consequence to the first respondent (the estate). It therefore offered as a condition of leave to appeal to pay the costs of the estate and not to seek to vary the costs order made below. That was an appropriate position for it to adopt. Leave to appeal should be granted on the basis accepted by the applicant. The appeal should be upheld.

5. In what follows I first set out the context in which the issue arises, then address the text of the provision, before considering arguments as to its context and purpose, and finally turning to two consequential factual issues.

Background

6. Ms Summer Abawi was injured in a motor vehicle accident in this State on 8 December 2017. The injuries she claimed to have suffered as a result were whiplash, aggravation of prior neck and lower back injuries, injuries to her shoulders, and superficial lacerations of the skin on both of her wrists. An ambulance report after the accident stated that there was a 3 cm superficial laceration to each wrist, with the left wrist marked by abrasion and swelling.

7. Ms Abawi passed away in 2021 for reasons unrelated to the accident. Her claim was pursued by her estate.

8. Allianz was the compulsory third party insurer of the vehicle at fault. It did not accept that she had suffered all of the claimed injuries in the accident and in any event asserted that they were all "minor injuries" for the purposes of s 1.6 of the Act (the previous label for "threshold injuries").

9. The significance of such a characterisation is that if the claimant's only injuries fall into that category then they are disentitled, first, from receiving statutory benefits for loss of earnings and for treatment and care expenses incurred after 52 weeks (see ss 3.11 and 3.28 of the Act) and, second, from obtaining damages (see ss 4.1 and 4.4 of the Act). The notion thus serves as a limitation on the ability to claim statutory benefits and damages. Despite the change in label, it remains apparent that the purpose of the notion is to filter out liability for certain minor injuries.

10. The dispute as to cause and characterisation of the injuries was a "medical dispute" under the Act: see s 7.1, s 7.17, and Sch 2, cl 2(e). It was referred to the Personal Injury Commission for determination. On 5 October 2022 Medical Assessor Dr Alan Home determined (on the papers) that each of Ms Abawi's injuries was a minor injury for the purpose of the Act as it then stood. The estate sought a review of that determination.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1967acc8afe67f8555d3bac6)

Disclaimer: Curated by HT Syndication.