David v Allianz Australia Insurance Ltd [2021] NSWPICMP 227
CLAIMANT:
Steve David
INSURER:
Allianz Australia Insurance Ltd
REVIEW PANEL:
Principal Member John Harris Dr Geoffrey Stubbs Dr Shane Moloney
DATE OF DECISION:
25 November 2021
CATCHWORDS:
MOTOR ACCIDENTS- This was a dispute about whether the claimant suffered a minor injury in the motor accident; the claimant complained of lumbar spine pain and left arm pain following the motor accident and submitted that he suffered from radiculopathy and/or sustained an annular tear or fissure in the motor accident which meant the injuries were classified as non-minor injuries; subsequent scan evidence otherwise showed a tear of the triangular fibrocartilage in the left wrist; Held- the Panel were not satisfied that the claimant suffered an annular tear or fissure in the motor accident as it was more likely that the pathology was degenerative and generally pre-existing and asymptomatic; the Panel were not satisfied that the claimant had two objective signs of radiculopathy at any time following the motor accident; observations that radiculopathy was established if it occurred at any time and not only during an examination by a Medical Assessor; the tear of the triangular fibrocartilage was caused by the motor accident and was a non-minor injury as defined by section 1.6 of the Motor Accident Injuries Act 2017; this finding was based on the complaint of pain in the left forearm at hospital, the fact that the claimant had a wrist x-ray at hospital, the subsequent MRI scan, the absence of prior wrist symptoms, the claimant’s history and the nature of the injury due to steering wheel kick back; finding made that the claimant suffered a non-minor injury to the left wrist.
STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT
Medical Assessment – Minor injury
Review Panel Assessment of Minor Injury Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017
The Review Panel revokes the certificate dated 1 March 2021 and issues a new certificate determining that:
Mr Steve David (the claimant) suffered injury in a motor accident on 15 November 2019 when another vehicle travelled through a red light and collided with Mr David’s vehicle.
The insurer insured the owner and driver of the other motor vehicle for liability to pay to Mr David any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue presently in dispute is whether Mr David’s injury is classified as a “minor injury” within the meaning of the Act. Pursuant to Schedule 2, clause 2 of the Act, various matters are declared to be a medical assessment matter including whether “the injury caused by the motor accident is a minor injury for…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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AGLC
David v Allianz Australia Ltd [2021] NSWPICMP 227
Case
[2021] NSWPICMP 227
Decision Date
CaseChat Overview and Summary
In the case of David v Allianz Australia Ltd, the claimant sought to establish that he had suffered non-minor injuries from a motor accident. The claimant argued that he experienced lumbar spine pain and left arm pain post-accident, claiming radiculopathy and an annular tear or fissure, which would classify his injuries as non-minor. The defendant, Allianz Australia Ltd, disputed these claims. The dispute came before the court to determine the nature and extent of the claimant's injuries.
The primary legal issues before the court involved verifying the existence of specific injuries alleged by the claimant and determining whether these injuries qualified as non-minor injuries under the Motor Accident Injuries Act 2017. The court had to assess whether the claimant's injuries were caused by the motor accident and whether they met the criteria for non-minor injuries as defined by the Act. This required careful analysis of medical evidence, including MRI scans and the claimant’s medical history.
The court found that the evidence did not support the claimant's assertion of an annular tear or fissure in the motor accident. The Panel concluded that the pathology in question was more likely degenerative and pre-existing, rather than caused by the accident. Furthermore, the Panel did not find two objective signs of radiculopathy at any time following the accident, contrary to the claimant's assertions. However, the Panel did determine that the tear of the triangular fibrocartilage in the left wrist was caused by the accident and constituted a non-minor injury. This conclusion was based on the claimant's complaint of pain in the left forearm at the hospital, the subsequent MRI scan, the absence of prior wrist symptoms, and the nature of the injury due to steering wheel kickback.
In conclusion, the court found that the claimant suffered a non-minor injury to the left wrist, which was caused by the motor accident. The court dismissed the claims regarding lumbar spine pain and left arm pain as non-minor injuries.