Peter Hunt
Principal
CTP Insurance, Insurance
Abawi Strikes – Skin Abrasion Certified as Non-Threshold
20 January, 2025
In Brief
- A Claimant is not entitled to ongoing statutory benefits or common law damages if the only injuries they sustain in a motor accident are threshold injuries.
- Section 1.6 of the Motor Accident Injuries Act 2017(MAIA) provides that a “soft tissue injury” is a “threshold injury“.
- Pursuant to the definition of “soft tissue” in s 1.6(2), an injury to the skin is not a “threshold injury“.
Facts
The Personal Injury Commission (PIC) published its decision in Sam v QBE Insurance (Australia) Limited [2025] NSWPICMP 1 on 6 January 2025.
The Claimant was involved in a motor accident on 9 December 2019 when the Insured vehicle crossed onto the wrong side of the road and collided with his vehicle.
The Claimant alleged a number of injuries, including to his head, neck, back, right arm, both elbows, right wrist, both ankles, right foot and pelvis.
A PIC Medical Assessor, however, found that the only injuries the Claimant sustained in the motor accident were threshold injuries.
The Claimant sought a review of the medical assessment.
The Definition of “Soft Tissue”
Section 1.6(1)(a) of MAIA provides that a soft tissue injury is a threshold injury.
Section 1.6(2) of MAIA defines “soft tissue” as “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“.
The Review Panel’s Decision
Claimed Injuries
The Review Panel found that there was no evidence of rupturing, tearing or nerve injury affecting the Claimant’s elbows, right wrist, pelvis, ankle or right foot.
With respect to the Claimant’s neck, the Review Panel was not satisfied that the motor accident caused or aggravated any cervical spine disc pathology which could constitute anything other than a soft tissue injury.
With respect to the Claimant’s back, the Review Panel found it unlikely that the development of radicular symptoms in the L3 distribution was causally related to the motor accident. Similarly, the Review Panel was not satisfied that the need for the Claimant’s subsequent lumbar spine was caused by the motor accident.
Skin Injury
The Review Panel, however, appears to have identified an injury which was not specifically claimed by the Claimant, namely a “superficial abrasion to the right forearm“.
The Claimant’s skin abrasion did not involve any injury to the nerves and would have resolved within two weeks.
Without mentioning the Court of Appeal’s decision in Mandoukos – which states that the “medical dispute” is defined by the parties – the Review Panel noted that the Insurer was on notice of the skin injury affecting the Claimant’s right forearm because the Claimant alleged a right arm injury.
The Review Panel proceeded to apply the Supreme Court’s decision in Abawi and concluded that the superficial abrasion to the Claimant’s right forearm constituted a non-threshold injury, entitling the Claimant to ongoing statutory benefits and common law damages (provided other statutory requirements were satisfied).
The Review Panel added that, absent the decision in Abawi, the Panel would have applied the prior Review Panel decision in Dhupar v AAI Limited and found that the Claimant’s skin abrasion was a threshold injury because it did not involve any injury to the nerves, tendons, ligaments or cartilage.
Being bound by the Supreme Court’s decision in Abawi, however, the Review Panel certified a non-threshold injury.
Why This Case is Important
The Review Panel’s decision in Sam demonstrates why the Supreme Court’s decision in Abawi potentially results in problematic outcomes.
Consider two Claimants with identical soft tissue injuries to various parts of their body, but only one of those Claimants also sustained a superficial abrasion to their forearm. The Claimant with the superficial abrasion is entitled to ongoing statutory benefits and is entitled to take a crack at establishing an entitlement to common law damages (including non-economic loss), but the Claimant who did not sustained a superficial abrasion is shut out from both ongoing statutory benefits and common law damages.
Whether a Claimant is entitled to ongoing statutory benefits and common law damages should not turn on whether they sustained a superficial skin abrasion, which heals within weeks and is unlikely to give rise, by itself, to any time off work or need for treatment.
We note that the Supreme Court’s decision in Abawi is under appeal. Whether the Court of Appeal comes to a different conclusion to the primary judge is yet to be seen. It should be stressed, however, that the Court of Appeal’s capacity to “fix” the problem is limited, given that all the Court of Appeal can do is interpret the existing definition of “threshold injury”.
The Minister can, however, bring clarity to what skin injuries are threshold and which skin injuries are not by exercising the regulation power in s 1.6(5) of MAIA.
That power has already been used to exclude “radiculopathy” from the definition of a threshold physical injury (cl 4(1) of MAIR) and to include “acute stress disorders” and “adjustment disorders” in the definition of threshold psychiatric injuries cl 4(2) of MAIA).
Noting that some skin injuries are truly minor and some are quite serious, the regulation power could be used to define what skin injuries are threshold and what skin injuries are non-threshold, perhaps by reference to which class of nerves (if any) are injured or perhaps by reference to TEMSKI.
If you would like to discuss this case note, please don’t hesitate to get in touch with CTP Insurance Principal, Peter Hunt, today.
