Helen Huang
Special Counsel
CTP Insurance, Insurance
Does damage to a previously inserted plate and screw constitute a non-threshold injury?
10 February, 2025
In Brief
- A Claimant is only entitled to ongoing statutory benefits and common law damages if they suffer a non-threshold injury.
- The definition of “injury” in s 1.4 of the Motor Accident Injuries Act 2017 (MAIA) includes injury to “artificial members…and other aids“.
- Damage to plates and screws already affixed to a bone prior to a motor accident may constitute a non-threshold injury because the damage to the hardware is an “injury” pursuant to the definition in s 1.4 but not an injury to “soft tissue” as defined by s 1.6(2).
Facts
The Personal Injury Commission (PIC) published its decision in Tasseli v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 49 on 7 February 2025.
The Claimant underwent previous surgery to his right hand, requiring the insertion of a metal plate and screw, in 2021.
The Claimant was subsequently involved in a motor accident on 22 January 2023.
The Claimant alleged a number of injuries to his cervical spine, thoracic spine, lumbar spine, left shoulder, chest, abdomen, right hand and right knee.
A PIC Medical Assessor found all the physical injuries the Claimant sustained in the motor accident had completely resolved, other than the injuries to the lumbar spine and right hand.
The PIC Medical Assessor, however, determined all these injuries were threshold injuries for the purposes of the Act.
The Claimant sought a review of the medical assessment.
Relevant Definitions
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 1.4 of MAIA defines “injury” as follows (emphasis added):
“Injury means personal or bodily injury and includes:
(a) Pre-natal injury, and
(b) Psychological or psychiatric injury, and
(c) Damage to artificial members, eyes or teeth, crutches or other aids or spectacle glasses.”
Section 1.6(1)(a) of MAIA says that a “soft tissue” 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
The Review Panel noted that the parties had agreed that the only dispute between them was whether the Claimant’s right hand injury was a threshold injury or not.
The Review Panel found that the injury to the Claimant’s right hand was a non-threshold injury for two reasons:
- The accident caused or made a material contribution to the loosening of the hardware already attached to the Claimant’s 5th metacarpal bone. The loosening of the hardware caused an injury to bone which is a hard tissue. The bone injury was, therefore, a non-threshold injury.
- The hardware attached to the Claimant’s 5th metacarpal bone constituted an “artificial aid” because it was surgically constructed to overcome the effects of the earlier injury to the 5th metacarpal. Pursuant to the definition in s 1.4 of MAIA, an injury to an artificial aid is an “injury“. The injury to the artificial aid, however, was not a threshold injury because it was not a “soft tissue” injury as defined by s 1.6(2) of MAIA.
Given these findings, the Review Panel found that it did not need to decide the Claimant’s third argument that the surgery required to repair the damaged hardware attached to the Claimant’s 5th metacarpal bone involved tearing of the Claimant’s skin and nerves which falls within the exceptions listed in the definition of “soft tissue” injury in s 1.6(2) of MAIA.
As a result, the Review Panel determined the right hand injury was an above-threshold injury for the purposes of the Act.
Why This Case is Important
The Review Panel decision in Tasseli provides an illustration of how iterations of a legislative scheme – conducted over many decades – might lead to unintended consequences.
The definition of “bodily injury” in the Motor Vehicles (Third Party Insurance) Act 1942 (the 1942 Act) included damage to “crutches, artificial members, eyes or teeth, or other artificial aids or spectacle glasses“. Those words were incorporated into the definition of “injury” in the Motor Accidents Act 1988 (the 1988 Act). The 1988 Act definition was copied and pasted into the Motor Accidents Compensation Act 1999 (the 1999 Act) and that definition was carried over into MAIA in 2017.
Ever since NSW has had a third-party insurance scheme, the legislation has recognised that “injury” can extend from injury to the body to injury to artificial members and other aides.
The gateway concept of “threshold injury“, however, was only introduced into the CTP scheme, for the first time, when MAIA was enacted in 2017.
Whether Parliament contemplated how the definition of “injury” and the definition of “threshold injury” might interact is unclear.
As the Review Panel concluded in this case, however, any “injury” which is not a “threshold injury“ must be a non-threshold injury, entitling the Claimant to ongoing statutory benefits and common law damages.
Recent decisions, including Mandoukos (consequential surgery) and Abawi (skin injuries), demonstrate that the “threshold injury” definition requires reform, either via legislative amendment or via the regulation power in s 1.6(4).
We respectfully suggest that that reform should include a review of what classes of damage to artificial members and other aids should be threshold injuries and what classes should be non-threshold injuries.
If you have a query relating to any of the information in this case note please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.
