Review Panel: Member Belinda Cassidy, Dr Margaret Gibson and Dr Brian Williams

Important Takeaways:

• Only one injury needs to fall outside the definition of “minor injury” to entitle the Claimant to ongoing statutory benefits and common law damages.
• The Review Panel dismissed an Application to assess other injuries on the basis it was no longer relevant.

Facts

The Claimant in Talevska v AAI Limited t/as AAMI [2022] NSWPICMP 82 was injured in a rear end collision on 1 November 2018.  She subsequently made a claim for statutory benefits. A dispute arose as to whether her injuries were “minor” for the purposes of the Motor Accident Injuries Act 2017 (‘the MAI Act’).

The dispute was allocated to Medical Assessor Dr Alan Home to assess the Claimant’s musculoskeletal injuries, and Medical Assessor Dr Robert Payten to assess the Claimant’s head injury and dizziness.

Assessor Payten determined that the Claimant’s head injury and dizziness were “minor” injuries. The Claimant was dissatisfied with Assessor Payten’s determination and lodged an Application for Review under Section 7.26 of the MAI Act.

In the meantime, Assessor Home determined the Claimant’s right shoulder was not a minor injury.

The Insurer subsequently issued a revised notice accepting liability for the Claimant’s claim on the basis that the Claimant sustained a non-minor injury. Despite the Insurer’s admission, the Claimant pressed the Application for Review arguing that it would be relevant to the damages assessment.

The Review Panel Decision

The Panel noted in their directions to the parties that:

“…the legislation operates to enable a Claimant with at least one non-minor injury to obtain statutory benefits in relation to all of the injuries sustained in the accident, minor or non-minor”.

At paragraph 29 the Panel also observed:

“For a claimant who sustains multiple injuries, if all of them fall within the definition of ‘minor injury’ as set out in section 1.6 then the claimant is not entitled to ongoing benefits and cannot recover damages.

However, for the claimant who sustains multiple injuries in an accident, only one of those injuries needs to overcome the statutory definition.

Once that definition is overcome, then benefits continue to be paid and damages are recoverable in respect of all injuries, be they minor or non-minor.”

The Panel went on to describe a non-minor injury finding as the key that unlocks the door to a claim for continuing statutory benefits under Part 3 of the MAI Act, and the gateway that allows the recovery of damages under Part 4.

As the Panel were only tasked with deciding whether the Claimant’s head injury with dizziness was or was not a “minor” injury, the Panel considered that their finding would not be relevant to the assessment or quantification of the Claimant’s damages claim and dismissed the Application.  

If you have a query relating to any of the information in this case note, or would like to speak with someone in Holman Webb’s Insurance Group in relation to a matter of your own, please don’t hesitate to get in touch with Partner Stephanie Davis today.