Australia, June 3 -- New South Wales Land and Environment Court issued text of the following judgement on May 5:

1. PAYNE JA: I agree with Adamson JA.

2. ADAMSON JA: The appellant, Allianz Australia Insurance Limited trading as Allianz (Allianz), challenges the dismissal by Griffiths AJA (the primary judge) in the Common Law Division of the Supreme Court (the Court below) of its claim for relief under s 69 of the Supreme Court Act 1970 (NSW) in respect of the decision of the second respondent (the Review Panel), a review panel constituted under s 7.26 of the Motor Accident Injuries Act 2017 (NSW) (the Act). The decision of the Review Panel was, relevantly, that Zoran Susak (the claimant) suffered non-threshold injuries to his lumbar spine as a result of a motor accident on 12 June 2020 (the accident), for which Allianz, as the relevant compulsory third party insurer, is liable.

3. Unless otherwise indicated, all references to legislation in these reasons are references to the Act.

4. In order to obtain relief under s 69 of the Supreme Court Act, Allianz needed to establish either jurisdictional error or error of law on the face of the record. The record for these purposes includes the reasons of the Review Panel: s 69(4). Relief cannot be granted merely for errors of fact.

5. The two active parties in these proceedings are the claimant and Allianz. The Review Panel and the third respondent, the President of the Personal Injury Commission of New South Wales (the President of PIC, or the President), have filed submitting appearances.

The statutory framework

The Act

6. Part 7 of the Act, entitled "Dispute Resolution", deals with the resolution of claims made by those injured in motor accidents. A dispute whether a claimant's injuries are "threshold injuries" or "non-threshold injuries" is a "medical assessment matter" for the purposes of Part 7. The importance of the distinction is that a claimant who has suffered only threshold injuries is not entitled to weekly payments or treatment expenses after 52 weeks (ss 3.11 and 3.28) and is not entitled to damages at all (s 4.4).

7. Section 1.6 relevantly provides:

1.6 Meaning of "threshold injury"

(1) For the purposes of this Act, a threshold injury is, subject to this section, one or more of the following-

(a) a soft tissue injury,

...

(2) A soft tissue injury is (subject to this section) an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage.

...

(4) The regulations may-

(a) exclude a specified injury from being a threshold injury for the purposes of this Act, or

(b) include a specified injury as a threshold injury for the purposes of this Act.

(5) The Motor Accident Guidelines may make provision for or with respect to the assessment of whether an injury is a threshold injury for the purposes of this Act.

...

The term "threshold injury" replaced the previous term, "minor injury", following an amendment to the Act passed in 2022 which took effect on 1 April 2023. As many of the documents relevant to this matter were created prior to 1 April 2023, the expression "minor injury" appears in them. As the definition was not otherwise changed, I will use the term "threshold injury" in these reasons.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1968ec65f6e6523d846da072)

Disclaimer: Curated by HT Syndication.