Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245
Supreme Court of New South Wales, Griffiths AJA
Key Points
- Since the introduction of the Motor Accident Injuries Act 2017 and, more specifically, section 1.6 of the Act which defines threshold injuries, there has been considerable contention about whether an injury to the skin is a non-threshold injury.
- Debates were largely focused on whether the skin, as a structure, satisfies the legal definitions of a soft-tissue injury as imposed by section 1.6. While the skin itself is medically considered an organ, it was often disputed that the skin represented connective tissue as it connected, supported, and surrounded other structures.
- The Supreme Court has now determined that an injury to the skin is a non-threshold injury.
Background
Since its introduction, the Motor Accident Injuries Act 2017 has yielded various anomalous outcomes due to the non-exhaustive list of injuries falling within the parameters of soft-tissue injuries, thus threshold injuries, as defined.
Section 1.6(2) of the Act states that:
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.
In Abawi v Allianz Australia Insurance Limited [2024] NSWPICMP 158 (15 March 2024) a Review Panel determined that lacerations to the Claimant’s wrists were non-threshold injuries.
Judicial Review was sought in the NSW Supreme Court in which the central issue was one of statutory construction, and ultimately whether the Claimant’s skin lacerations were threshold injuries.
Consideration
In his reasons, Justice Griffith addressed several reasons relating to section 1.6(2) and how the Review Panel constructed its determination:
- Exclusion of ‘skin’ within the definition of “soft tissue injury”
Justice Griffith noted that the Parliament stipulated a long list of examples of what constitutes a soft-tissue injury and that skin is omitted from that list.
- Agreement by the parties regarding the classification of the skin
The parties agreed with the Review Panel that the skin is both a tissue and an organ.
- Lack of intention of Parliament to define skin as a “minor injury”
Justice Griffith reasoned that if the Parliament intended to include skin within the expressions of “minor injury” and “soft tissue injury”, this could have been done by adding the word “skin” to the list in section 1.6(2).
- Non-exhaustive nature of the list provided in section 1.6(2)
The list provided in section 1.6(2) was considered by Justice Griffith to be clearly non-exhaustive as indicated by the words “such as” within the clause.
While it was nevertheless accepted to be anomalous by Justice Griffith as to why the Parliament did not add “skin” to the list of examples if it was intended to be included as a “soft-tissue injury”, it was considered to be plausible that there may be a concern to not exclude esoteric tissues which “connects, supports or surrounds other structures or organs of the body”, as stipulated by section 1.6(2).
Determination
The Court agreed with the Review Panel’s finding that an injury to the skin is not a “soft tissue injury” for the purposes of the Act.
It is important to note that while Justice Griffith concurred with the Panel’s medical findings, he disagreed with their interpretation of the text in section 1.6(2). Specifically, he disagreed with their understanding of the word “other” in the section, to distinguish “organs” from “other structures”. Justice Griffith clarified that the word “other” is not meant to be separate but is intended to apply to both organs and other structures.
Final Result
The Court dismissed the insurer’s application for judicial review, with costs, as they had failed to demonstrate either an error of law on the face of the record or any jurisdictional error.
Why this decision is important
The Supreme Court’s decision brings much-needed clarity to the classification of skin injuries for the purpose of entitlement to both statutory benefits and common law damages. However, it is not anticipated that this will represent the end to anomalous decisions regarding injuries that fall between the Act’s non-exhaustive definition of what constitutes soft-tissue injuries.
It is anticipated that the decision will prompt legislative amendment or at least greater use of the Motor Accident Injuries Regulations 2017 to provide further clarification to section 1.6(2).
This article was written by Associate Roni Aloe, with review by Principal Andrew Gorman. For further information or advice on any related matters, please contact Andrew.
Disclaimer: This information is current as of October 2024. This article does not constitute legal advice and does not give rise to any solicitor/client relationship between Meridian Lawyers and the reader. Professional legal advice should be sought before acting or relying upon the content of this article.
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