Hammoud v Allianz Australia Insurance Limited

DETERMINATION OF REVIEW PANEL
CITATION:	Hammoud v Allianz Australia Insurance Limited [2025] NSWPICMP 420
CLAIMANT:	Ahmed Hammoud
INSURER:	Allianz Insurance Australia Limited
REVIEW PANEL
MEMBER:	Alexander Bolton
MEDICAL ASSESSOR:	Shane Moloney
MEDICAL ASSESSOR:	Drew Dixon
DATE OF DECISION:	13 June 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); threshold injury dispute; causation considerations of whether a right shoulder injury tear of the supraspinatus tendon was as a result of the accident or a degenerative condition; light impact collision; insurer relied on expert biomechanical report; weight of medical evidence was to the effect that the impact forces were not of such a degree that the claimant could have suffered a shoulder tear as a result of the collision; Held – Review Panel satisfied that all injuries suffered by the claimant were threshold injuries; Medical Assessor found that none of the claimant’s injuries arose from the accident but the Review Panel concluded the claimant did suffer soft tissue injuries but that these were threshold injuries; MAC revoked; new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. The Panel revokes the certificate of Medical Assessor Assem dated 3 April 2024. 2. The Panel finds that the claimant has suffered the following injuries: (a) cervical spine -soft tissue injury; (b) right and left legs - referred pain from the lumbar spine - no separate injury diagnosed; (c) lumbar spine -soft tissue injury, and (d) right and left shoulders -soft tissue injury, and that these are threshold injuries. 3. The Panel is not satisfied that the claimant suffered a right shoulder injury causing a tear in the middle third of his supraspinatus tendon as a result of a motor vehicle accident on 3 May 2021 and that this was a non-threshold injury pursuant to the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

This is an application by the claimant for review of a certificate and reasons of Medical Assessor Assem (the Medical Assessor) dated 3 April 2024.
This is a dispute between the claimant and the insurer about whether the injury caused by the motor accident is a threshold injury under Schedule 2, s 2(e) of the Motor Accident Injuries Act 2017 (the Act).
The following injuries were referred by the Personal Injury Commission (Commission) for further assessment:
(a)    cervical spine -soft tissue injury;
(b)    leg - referred pain from the lumbar spine - no separate injury diagnosed;
(c)    lumbar spine -soft tissue injury, and
(d)    shoulder - soft tissue injury.
The claimant has confirmed that both the left and right shoulder and left and right leg are to be reviewed by the Panel.
The following injuries referred to the Medical Assessor for assessment were assessed and determined to be not caused by the motor accident:
(a)    cervical spine -soft tissue injury;
(b)    leg - referred pain from the lumbar spine - no separate injury diagnosed;
(c)    lumbar spine - soft tissue injury, and
(d)    shoulder - soft tissue injury.
Because of his determination, the Medical Assessor said that a decision whether these injuries were a threshold injury or not was not required.
The claimant has undergone several medical assessments.
Medical Assessor Home provided a certificate of 21 November 2022. He found the claimant had suffered a non-threshold injury. No review was sought of that determination.
Medical Assessor Rapaport assessed the claimant’s whole person impairment (WPI) as 0% and provided a certificate about this on 4 March 2024.
The claimant subsequently lodged an application for common law damages dated
13 January 2023. The Panel has been informed that when conducting investigations into the claimant’s injuries for the purpose of his common law claim, the insurer obtained the following further evidence:
(a)    personal injury claim file from the prior motor accident in 2014 from Suncorp Insurance, including treating medical evidence, a medico-legal report of Dr Ellis from 2015, a supplementary report of Dr Ellis from 2015, and a MAS Certificate of Assessor Truskett from 2017;
(b)    MRI right shoulder report dated 29 June 2023;
(c)    joint medico-legal report of Dr Bentivoglio dated 13 July 2023, and
(d)    additional physiotherapy records from Physio Interactive.
The Panel has been informed by the insurer that this additional evidence, in its assessment, supported that the subject accident did not cause or materially aggravate the claimant’s right shoulder supraspinatus tear or other pathology.
On that basis, the insurer applied for a further threshold injury assessment in the belief that Medical Assessor Home did not have all relevant information before him, and if he had, then Medical Assessor Home would have come to a different conclusion. The insurer also submitted a biomechanical report of Michael Griffiths to the Commission as additional evidence which had not been put before Medical Assessor Home.
The President’s delegate accepted that the material constituted additional relevant information capable of having a material effect on the outcome of the previous assessment.
The matter was referred for further assessment to the Medical Assessor who determined that the right shoulder tear was not caused by the subject accident.
This outcome has been replicated in the related WPI dispute in the certificate of Medical Assessor Rapaport dated 4 March 2024 who determined that the right shoulder tear was not caused by the subject accident. The claimant applied to have the certificate of Medical Assessor Rapaport referred to a Review Panel, which considered the same medical issues as in this dispute, but the application was denied by the President’s delegate.
The Review Panel must now conduct a review of the certificate of Medical Assessor Assem because it is binding on the threshold injury question, and the claimant alleges error in the Medical Assessor’s certificate.
Medical Assessor Home did not have the report of Mr Griffiths before him for the purpose of his certificate dated 21 November 2021. The report was subsequently considered by the parties’ joint medico-legal expert, Dr Bentivoglio, and was then submitted to the Commission by the insurer for that reason.

Bundles of documents

The parties have each presented their respective bundles of documents upon which they rely. The Panel have read all the documentation. If a particular document is not referred to by the Panel, this does not mean that the Panel or a Panel Member has not read it, in much the same manner as parties not referring to or not specifically relying on a document in their own bundle and submissions.
The fact that evidence is not referred to in these reasons does not mean it has been overlooked and nor is it required that each piece of evidence be mentioned – see WAEE v Minister for Immigration and Citizenship (2003) 75 ALO 630 at [46].The Panel is not required to “analyse every piece of information from every opinion contained in a document with which he [it] was provided” – see Farr v Insurance Australia Limited t/as NRMA Insurance Ltd [2014] NSWSC 1435 at [46]. The Panel has come to its own conclusion and has taken its own history.

Amendment to legislation

The Motor Accident Injuries Amendment Act 2022 (MAI Amendment Act) was assented on 28 November 2023 with various amendments commencing on 1 April 2023. From
1 April 2023 the MAI Amendment Act provides that a “minor injury” is known as a “threshold injury” and “minor injuries” are known as “threshold injuries”.
The definition of what constitutes a minor injury has not been amended and continues to apply to a threshold injury.
For motor accidents occurring on or after 1 April 2023, the entitlement to statutory benefits for a threshold injury have increased from 26 weeks to 52 weeks.
Accordingly, an injury which does not fall within the definition of a threshold injury (“a non-threshold injury”) means that a claimant has an entitlement to claim damages and, subject to other exclusions, receive statutory entitlements beyond either the 26-week or 52-week limitation period.

LEGISLATIVE BACKGROUND

Jurisdiction

The claimant’s claim is governed by the provisions of the Act. This legislation provides a scheme for the compulsory third-party insurance of all motor vehicles registered in New South Wales and a scheme of statutory benefits (under Part 3) and compensation by way of lump sum damages (under Part 4) for persons injured in motor accidents in New South Wales.
While almost all injured persons are entitled to some statutory benefits in accordance with Part 3 of the Act, there are some disentitling provisions and limits to the amount and extent of benefits available. One of which is that, under ss 3.11(1) and 3.28(1) of the Act, statutory benefits cease 52 weeks after the motor accident if the only injuries sustained by the injured person are “threshold” injuries.
It should also be noted that in a common law damages claim, no damages are recoverable if the claimant’s injuries are threshold injuries.
Pursuant to Schedule 2, cl 2 of the Act, various matters are declared to be a medical assessment matters, including (e) “whether the injury caused by the motor accident is a threshold injury for the purposes of the Act”.

Threshold injury

A threshold injury is defined in s 1.6 of the Act as a “soft tissue injury” and a “threshold psychological or psychiatric injury”. Section 1.6(2) of the Act defines a soft tissue injury to mean:
“[A]n 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 summary, if a person injured in a car accident has soft tissue injuries only then, unless one of those soft tissue injuries falls within the excluding clause of s 1.6(4) the injured person’s statutory benefits cease in accordance with ss 3.11 and 3.28. If a person injured in a car accident has an injury to a structure (such as a bone) or an injury to an organ, that injury will be a non-threshold injury.
Section 1.6(4) provides that regulations may be made to exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) further defines threshold injury to include “an injury to the spinal nerve root that manifests in neurological signs (other than radiculopathy)” and an acute stress disorder and an adjustment disorder (in terms of psychiatric or psychological injuries).
Section 1.6(5) says that the Motor Accident Guidelines (the Guidelines) may provide for the assessment of whether or not an injury is a threshold injury. Relevantly to the matters in issue in the claimant’s claim, cls 5.7 to 5.9 of the Guidelines are headed “soft tissue assessment – injury to a spinal nerve root” and cl 5.7 provides:
“In assessing whether an injury to the neck or spine is a soft tissue injury, an assessment of whether or not radiculopathy is present is essential.”
Clause 5.8 defines radiculopathy and adopts the method of assessment provided for in the whole person impairment chapter of Part 6 of the Guidelines. Clause 5.9 then provides:
“Where the neurological symptoms associated with the injured person’s injury of the neck or spine do not meet the assessment criteria for radiculopathy, the injury will be assessed as a threshold injury.”
Clauses 5.10 to 5.12 are not relevant to the matter before the Panel as they deal with psychological or psychiatric injuries.

Method of assessment

Part 5 of the Guidelines contain the procedure for assessing whether an injury resulting from the motor accident is a “threshold injury” for the purposes of the MAI Act. In respect of the medical assessment of whether an injury is a threshold injury or not, the Guidelines relevantly provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.5   Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”

Does the claimant have radiculopathy?

Radiculopathy is a medical term used by treating doctors, medico-legal examiners and Medical Assessors alike. Radiculopathy is used within the Guidelines in both the assessment of whole person impairment (to distinguish between categories II and III) and in threshold injury assessments.
In Chapter 5 of the Guidelines, the heading “Soft issue assessment – injury to a spinal nerve root” appears above the definition of radiculopathy in cl 5.8 as follows:
“Radiculopathy means the impairment caused by dysfunction of a spinal nerve root or nerve roots when two or more of the following clinical signs are found on examination ...
(a) loss or asymmetry of reflexes (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(b) positive sciatic nerve root tension signs (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(c) muscle atrophy and/or decreased limb circumference (see the definitions of clinical findings in Table 6.8 in these Guidelines)
(d) muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e) reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.”
For the claimant’s injury to fall outside the definition of threshold injury in s 1.6, he would need to have two of the above signs. Pain is not one of the five signs of radiculopathy which might indicate an injury to a spinal nerve root.

The accident

The accident occurred on 3 May 2021. The claimant was stopped at a set of traffic lights on Cross Street in Hurstville at the intersection of Cross Street and Park Road. The insured car failed to stop and hit the back of the claimant’s car.
The accident was subsequently reported to the police, who did not attend the scene. The police report describes the accident as minor.

Claimant’s submissions

The claimant seeks the review for the following reasons:
(a)    jurisdictional error consisting of a failure to take into account all relevant material;
(b)    error of law on the face of the record consisting of:
(c)    an erroneous finding of "no evidence";
(d)    a misdirection or asking of the wrong question, and
(e)    a failure to provide adequate reasons.
The claimant says the Medical Assessor failed to provide an adequate path of reasoning linking the causation of the injury to the subject accident in accordance with the test of causation.
The claimant submits that the Medical Assessor has fallen into error when determining whether:
(a) the small tear in middle third of supraspinatus tendon, tendinosis with low grade subacromial bursitis is non-threshold and related to the injury.
The claimant submits that the Medical Assessor erred in the certificate and placed low probative value on significant medical material to consider that the injuries are unrelated to the subject accident. The claimant says that the overall certificate is inconsistent with the medical evidence.
The claimant submits that the Medical Assessor’s certificate has failed to follow a path of reasoning and adequately explain the following:
(a)    If the Medical Assessor formed his decision on the basis of Dr Awada’s clinical notes, why was the inconsistency of the clinical notes not asked about to the claimant.
(b)    Why did the Medical Assessor fail to attribute a nexus between the shoulder injury and the subject accident.
(c)    Why was the theoretic report of Mr Griffiths considered with high probative value over the report of Dr Conrad who medically examined the claimant.
(d)    Why was the egg-shell principle not considered when considering the likelihood of the injury caused by the motor accident.
(e)    Why was the circumstantial evidence of the claimant working only part-time not considered in the assessment of likelihood of the injury caused by the subject accident.
(f)    Why did the Medical Assessor fail to consider that the claimant was asymptomatic in the right shoulder as a cause of the subject accident.
(g)    Why is the Medical Assessor unclear about the onset of the symptoms and the motor accident in the reasoning of the Medical Assessor.
(h)    The inconsistency within the certificate of ‘delay’ in symptoms and seeking
(i)medical treatment is not definite of the likelihood of the causation of the motor, and
(ii)accident.
(i)    Why the Medical Assessor relied upon the report of Dr Bentivoglio and who relied upon the report of Mr Griffiths. This is a mechanical analysis rather than a clinical judgement.
The claimant submits that the Medical Assessor failed to establish causation in the right shoulder and to properly consider causation in accordance with the common law test.
The claimant submits that in the making of the determination, the Medical Assessor failed to link causation with the subject accident due to a lack of contemporaneous medical evidence. The claimant says that within the scope of the common law test, a harm could be either direct or indirect. The claimant submits that the application of causation was not properly applied to the facts of the case.
The claimant submits that the Guidelines are relevant to the assessment.
The claimant refers to cl 1.7 of the Guidelines which states:
“There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible.
Considering the question ‘Would this injury (or impairment) have occurred if not for the accident?’ may be useful in some cases, although this is not a definitive test and
may be inapplicable in circumstances where there are multiple contributing causes.”
The claimant submits that the Medical Assessor’s reasons that there is a lack of contemporaneous notes taken by the claimant’s general practitioner (GP). The first entry from the GP, Dr Awada is on 26 May 2021, a period of about three weeks after the accident. The claimant refers to the Medical Assessor taking into account the lack of contemporaneous evidence to prove the existence of the fact which the claimant submits is the wrong test of causation.
The claimant submits that the Medical Assessor has made a jurisdictional error by asking himself the wrong question on issue of causation to the right shoulder, namely, was there contemporaneous evidence of the injury?
The claimant says that the reasons of the Medical Assessor plainly reveal that he treated the absence of contemporaneous evidence as being decisive on the issue of causation. The claimant submits that the absence of contemporaneous evidence is a matter that is relevant to the issue of causation, but it is wrong in law to treat it as decisive.

The claimant noted that the Medical Assessor asked why there was a delay in seeking treatment until 17 May 2021 and the claimant replied that he requested an appointment immediately and waited until the scheduled appointment with Dr Awada, his GP. The claimant submits that it is common law to not place high probative value on the clinical notes in the determination of causation and the lack of contemporaneous notes should not be held as decisive as to the question of whether a nexus exists between the issue of causation. The claimant submits that the Medical Assessor has formed this decision without allowing the claimant an opportunity to respond. The claimant submits that while the Medical Assessor asked about why the claimant did not consult with his GP until 17 May 2021 which is the first instance, the Medical Assessor failed to qualify why the claimant did not consult about the symptoms suffered in the subject accident. The claimant submits that he could have reasonably provided an explanation to the inconsistency within the clinical notes observed by the Medical Assessor.
Given the presence of the right shoulder symptoms that occurred after the accident, it is the claimant’s submission that he sought treatment immediately.
The claimant says that he did not experience symptoms of the right shoulder prior to the accident. This, the claimant submits, alludes to the fact that there is a nexus between the accident and the harm.
The claimant referred to a matter of Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 where Walton J set aside the decision of a Medical Review Panel. In considering the question of causation in relation to an amputated toe, Walton J stated that by focusing on whether there was a contemporaneous record of complaint in the clinical notes the actual question the Review Panel was required to consider was overlooked, in that case, did the motor vehicle accident materially contribute to the right second toe amputation.
The claimant submits that the pivotal issue here is whether the subject accident caused or materially contributed to the injury. The claimant submits that the Medical Assessor relied heavily upon the lack of recorded complaints to determine no relationship between the accident and the injury to the right shoulder. Following on from this, the claimant submits that this is a jurisdictional error.
The claimant says that the Medical Assessor has asked the wrong questions and disregarded germane subjective reporting in the making of his decision. Further, the claimant submits that in doing so, this results in the decision maker exceeding the authority or powers given by the relevant statute. The claimant says that in other words, if an error of those types is made, the decision-maker did not have authority to make the decision that was made; he did not have jurisdiction to make it. The claimant submits that nothing in the Act suggests that the Tribunal is given authority to authoritatively determine questions of law or to make a decision otherwise than in accordance with the law.
The claimant submits that the test of common law was relied upon by the absence of contemporaneous notes.
The claimant submits that he had no pre-existing condition to the right shoulder. Although he acknowledges a data entry by the GP on 2 November 2016 that records bilateral shoulder pain. The claimant says that this was made over four years prior to the subject accident and no radiological investigations were sought for the right shoulder.
Further regarding causation, the claimant submits that the report of Mr Griffiths cannot be relied upon because he does not have the qualifications or training expertise of a trained SIRA accelerated specialists. Dr Conrad writes that ‘My comment is that Dr Bentivoglio draws some very unsubstantiated conclusions from this statement somehow trying to justify that some similar underlying degenerative changes were present in the right shoulder and that these were responsible for his right shoulder symptoms after the 2021 accident rather than the trauma of the motor accident. This implication totally lacks credibility for the reasons that the radiology on the left shoulder in 2014 was an MRI scan and the radiology on the right shoulder in 2021 was an ultrasound. It totally lacks credibility to try and draw any valid conclusions from different radiological investigations as in this case’. The claimant submits that Dr Bentivoglio uses the report of Mr Griffiths to justify his answer which is an error. The insurer submits that both of these reports ought to be considered with low probative value for the dispute of causation before the Panel.
The claimant submits that Dr Bentivoglio argues in support of the opinion of Mr Griffiths which the claimant says is without regard to the clinical notes and as such the medical report is unreliable and lacks credibility to form an expert opinion. The claimant says that the Medical Assessor ought to reduce the probative value of these reports and focus on his own judgment by understanding the full clinical history of the lack of immediate treatment despite the claimant stating that he sought immediate treatment.
The claimant submits that the Medical Assessor’s approach is a wrong test of the common law and statute test of causation.
The claimant submits that the Medical Assessor significantly disregarded the circumstantial germane evidence of the claimant and heavily relied upon the view of Mr Griffiths to determine that the likelihood of injury is improbable. The claimant says that this is a jurisdictional error and an error on a material ground.
The claimant has relied on the following clinical records within his bundle, some of which are handwritten and not easily decipherable. The Panel noted that there were a few specific submissions with respect to these clinical notes and requested the claimant to clarify what was being relied upon or to provide a typed transcript of these notes with submissions specifically addressing those parts of the clinical notes relied upon by the claimant. The claimant responded as follows;
(a)    Pages 281-299; the clinical notes relate to pre-accident complaints made to his GP Dr Camille Awada together with post-accident complaints and are relevant to assessing the claim, particularly in respect to causation and the contentions raised by the insurer of pre-existing right shoulder symptomology.
(b)    Pages 334-337; the clinical records relate to complaints made directly after the subject incident and the claimant’s complaints and injuries reported as a result of the accident.
(c)    Pages 477 - 480; These notes relate to the claimant’s ﬁrst physiotherapy consultation after the subject accident and assessment of pain/restriction etc. They are notes from Physio Interactive Arncliffe and are said to assist in so far as determining the issue of causation, severity of symptomology, and complaints of symptomology post-accident.

Insurer’s submissions

The insurer submits that the Medical Assessor has properly considered the available evidence, properly assessed causation, provided adequate reasons, and made no error.
The insurer referred to the WPI assessment conducted by Medical Assessor Rapaport dated 4 March 2024 which it submitted found that the subject accident did not cause a right shoulder tear and that none of the referred injuries caused permanent impairment. While the insurer acknowledges that decision is distinct from the present matter, it submits that it constitutes another clinical evaluation which supports that the medical assessment conducted by the Medical Assessor was an appropriate and correct exercise of clinical judgment in review of relevant evidence under the Act and Guidelines.
Addressing the issues raised by the claimant, the insurer submits;
(a)    The Medical Assessor did in fact ask the claimant about the delay in consulting with his GP. The insurer says this ground is moot.
(b)    The Medical Assessor has extensively explained why he found that the right shoulder supraspinatus tear was not caused by the subject accident, including:
(i)explaining the evidence of the accident indicating that it was very low impact;
(ii)obtaining a history of treatment (on page 4); analysis all relevant evidence; and
(iii)providing a detailed analysis of the history, evidence, and examination to plainly conclude that the radiology findings suggest degenerative changes rather than acute findings and that the history of the accident and treatment was inconsistent with structural derangement.
(c)    The insurer submits that the Medical Assessor has explained the deficiencies in the evidence of Dr Conrad, and has plainly explained the relevance of the evidence of Mr Griffiths. The insurer submits that while the claimant may disagree with the weight given to the evidence of Dr Conrad, the Medical Assessor has properly considered that report and was entitled to exercise his judgment, which does not constitute an error.
(d)    The insurer referred to the claimant raising the ‘eggshell skull’ principle which the insurer submits does not apply. The insurer says that principle applies where the susceptibility of a person to a foreseeable injury cannot be used as a defence by the person who caused the injury. The insurer submits that in the subject claim, the Medical Assessor has clearly explained why the subject accident did not to cause the supraspinatus tear at all.
(e)    The insurer submits that the Medical Assessor has explained his assessment of the joint report of Dr Bentivoglio and the expert report of Mr Griffiths. The insurer says that the Medical Assessor was entitled to rely upon both expert reports which are relevant to the facts in issue, and has explained why and how he has relied on these reports. The insurer submits that it was open for the Medical Assessor to consider that evidence because it is relevant to the issue in question. The insurer says that it would have been erroneous for the Medical Assessor to disregard such evidence. In any event, the insurer says that the Medical Assessor has not solely relied on the mechanical analysis of the accident but has considered the entirety of the evidence to come to a medical judgment.
The insurer has provided three photographs of the claimant’s car, red in colour, taken after the accident and one photograph of the insured car, white in colour, taken after the accident. These follow.
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]
[IMAGE UNABLE TO RENDER]

Claimant’s statement

The claimant provided a statement on 14 October 2021 in which he said, about the earlier accident;
“On 23 July 2014, I was involved in a motor vehicle accident. I was travelling along Homer Street in Earlwood when a motor vehicle parked along the road reversed into me causing the collision. The accident was a medium impact. There was no warning that he was reversing out of the driveway. I had my hand on the steering wheel and as a result of the impact I felt immediate pain in my arm and shoulder. I also sustained an injury to my neck, back and knee.”
This statement is only with respect to the earlier accident in 2014.

Medical evidence

The Panel has reviewed the following radiological evidence provided by the claimant to Medical Assessor Truskett;
(a)    Ultrasound left shoulder, on 10 September 2014, reported by Dr Lim;
(b)    X-ray left shoulder and left knee, reported by Dr Bass;
(c)    CT cervical spine, performed on 26 November 2014, reported by Dr Lim;
(d)    MRI cervical spine, performed on 28 July 2015, reported by Dr Williams;
(e)    MRI left shoulder, performed on 26 February 2015, reported by Dr Chu;
(f)    MR Arthrogram left shoulder, on 16 June 2015, reported by Dr Chu, and
(g)    MRI cervical spine, performed on 28 July 2015, reported by Dr Williams.
Other and more recent investigations report as follows;
(a)    Ultrasound left shoulder (10 September 2014): Partial thickness bursal surface tear of the supraspinatus tendon;
(b)    CT cervical spine (26 November 2014): C5/6-disc bulge;
(c)    X-ray cervical spine (1 June 2021): Mild spondylosis at C5/6 and C6/7, mild C5/6 facet joint arthrosis, rudimentary bilateral cervical ribs;
(d)    Ultrasound right shoulder (1 June 2021): Supraspinatus tendon thickened and hypoechoic indicating tendinosis, partial thickness insertional bursal surface mid- supraspinatus tendon tear, tear is 6mm longitudinal and 7mm transverse, 40% tendon thickness involved, mild subacromial bursitis, abduction limited to 70 degrees with bursal bunching and pain;
(e)    X-ray lumbar spine (1 June 2021): Mild spondylosis at C5/6 and C6/7 characterized by endplate osteophytosis, intervertebral discs well preserved;
(f)    MRI cervical spine (9 December 2021): Mild spondylotic changes at C3/4 and C4/5, small central disc protrusion at C5/6 abutting the cord, mild foraminal narrowing, minor posterior annulus bulge at C6/7, and
(g)    MRI right shoulder (29 June 2023): Small tear in middle third of supraspinatus tendon, tendinosis with low grade subacromial bursitis, undisplaced degenerative tear of the posterosuperior glenoid labrum with paralabral cysts.
Medical Assessor Rapaport commented in his certificate on the following ultrasound and X- ray of the claimant’s cervical and lumbar spine dated 1 June 2021 which was performed approximately one month post accident and an MRI of the right shoulder taken on
29 June 2023;
“There is a partial thickness insertional supraspinatus tendon tear with supraspinatus tendinopathy and mild subacromial bursitis. There is minor cervical spondylosis. There is mild lumbar spondylosis.
MRI right shoulder dated 29 June 2023. Comment:
There is a small tear in the middle third of the supraspinatus tendon against a background of tendinosis with low grade subacromial bursitis. There is an undisplaced degenerative tear of the posterosuperior glenoid labrum associated with several paralabral cysts.”
Referrals by the claimant’s GP Dr Awada to Physio Interactive on 9 June 2021 and again on 23 August 2021 lists the diagnoses for which referral was made as musculoligamentous strain of the cervical and lumbar spine without reference to an injury to the right shoulder.
Notes from Dr Awada on 2 November 2016 reference bilateral shoulder pain suggestive of pathology in the right shoulder more than four years prior to the subject accident. The notes of Dr Awada show that there was an initial consultation on 17 May 2021 for palpitations and episodic chest pain without any reference to the subject motor vehicle accident until
26 May 2021, more than three weeks after the motor vehicle accident. At that time, he was documented to have neck, right shoulder, lower back and left leg pain. On 28 May 2021, an initial certificate was prepared for working three hours per day, five days per week.
Clinical notes of Dr Awada in 2014 report on left shoulder pain and neck pain following a motor vehicle accident with an additional injury to the left knee. Left shoulder complaints are repeatedly documented throughout late 2015, indicating ongoing issues from a previous accident on 23 July 2014.
A record on 2 November 2016 mentioned bilateral shoulder pain suggesting pathology in the right shoulder. This is more than four years prior to the subject accident.
On 17 May 2021, approximately two weeks after the subject motor vehicle accident, he presented with palpitations and chest pain.
There is a report by Dr Ellis 9 August 2015 in relation to the 2014 motor vehicle accident. A total body WPI of 33% was found, attributed to injuries to the cervical spine (15%), left shoulder (13%), lumbar spine (5%), and left knee (4%). No injury to the right shoulder was documented in this assessment.
An assessment of WPI in 2017 by Medical Assessor Truskett reported on injuries related to the 2014 motor vehicle accident with WPI of 12%, without reference to the right shoulder.
There is a biomechanical report by Mr Griffiths dated 24 December 2021. The report provides a detailed analysis of the forces involved in the subject accident and concludes that the low-speed collision was not capable of causing a right rotator cuff tear or any significant injury to the claimant. Mr Griffiths reasons that the impact was such that it could have caused some elastic yielding of the vehicle's bumper structures, dissipating energy to an extent detectable by human senses but insufficient for causing significant vehicle movement or occupant displacement relative to the vehicle's interior. He suggests that the lack of significant car body movement implies there was no substantial motion of the vehicle occupant relative to their seat, thus placing the accident below the threshold for even short-term neck pain, let alone the capacity to target specific structures like the supraspinatus or biceps tendon with injury-inducing forces.
The claimant has submitted that Mr Griffiths does not have the qualifications or training expertise of a trained SIRA accredited specialist. This is an incorrect submission. Mr Griffiths is not a medical practitioner and does not require SIRA accreditation. He has a biomechanical engineer.
There was an assessment by Medical Assessor Home dated15 November 2022. After examining the claimant, it was determined that the right shoulder supraspinatus tear was not a threshold injury.
Report of Dr Bentivoglio dated 13 July 2023 who gave the opinion that the claimant's injuries, particularly the right supraspinatus tear, were pre-existing and not caused by the 2021 accident. He based this conclusion on the low impact of the collision, as evidenced by the minimal vehicle damage and biomechanical analysis indicating insufficient force transmission to cause such injuries.
A supplementary report by Dr Conrad of 15 August 2023, supports the causation of the claimant's injuries by the motor vehicle accident on 3 May 2021. He refutes the assertion that pre-existing conditions are solely responsible for the claimant's current symptoms, emphasising that there were no claims or evidence of the right shoulder injury prior to the 2021 accident.
An assessment by Medical Assessor Rapaport of 29 February 2024 concluded that the injuries sustained in the accident resulted in a 0% permanent impairment and did not exceed 10%, with soft tissue injuries to the right shoulder, cervical and lumbar spine, including the aggravation of pre-existing conditions.
In 2017, assessments of WPI by Dr Davis, occupational health practitioner, and Medical Assessor Truskett for injuries relating to the prior motor accident 11% and 12% respectively.
A report of Dr Bentivoglio dated 13 July 2023 indicated his view that the right supraspinatus tear diagnosed on right shoulder ultrasound on 1 June 2021 was “attritional” and was “a common feature in people aged 60 years and above and are generally not symptomatic”.
Medical Assessor Rapaport concluded that the claimant suffered a soft tissue whiplash injury to the cervical spine consequential upon a very low velocity rear end impact onto his vehicle that resulted in minor physical damage to both cars involved in the collision. An X-ray of the cervical spine some weeks later confirmed no fractures, dislocations or structural abnormalities of the cervical spine and revealed some degenerative cervical spondylosis.
The claimant had been found to have suffered a disc bulge at C5/6 associated with a prior motor vehicle accident in July 2014 that contributed to an overall assessment of impairment that exceeded 10% WPI to which impairment of the cervical spine had contributed. No additional impairment to the cervical spine was occasioned by the motor accident that occurred on 3 May 2021 based on his examination of the cervical spine.
The claimant was said by Medical Assessor Rapaport to have suffered a soft tissue musculoligamentous injury to the lumbar spine on 3 May 2021 which was an aggravation of a prior lumbar spine injury incurred during a motor accident in July 2014. The X-ray of the lumbar spine taken shortly following the subject motor accident failed to reveal evidence of fracture, loss of vertebral height or structural changes including wedging of the lumbar vertebral bodies. His examination failed to confirm radiculopathy as defined under the Act. Mild degenerative lumbar spondylosis was seen on X-rays taken post injury and these changes were causing the claimant’s back pain.

Medical Assessor Rapaport said that the left shoulder aggravation of an injury in a prior motor accident that occurred in July 2014 was to a left rotator cuff mechanism with proven and confirmed tendinosis and with a prior partial thickness tear in the left supraspinatus tendon with associated subacromial bursitis. This left shoulder injury was determined to have been caused by the July 2014 motor accident and contributed significantly to the determination of WPI that exceeded 10% WPI overall, for the earlier motor accident.
Medical Assessor Rapaport said that no additional structural damage was found to have occurred in the left shoulder because of the low impact rear collision on 3 May 2021. His examination of the left shoulder on 27 February 2024, was said to confirm a remarkably good range of motion such that the claimant preferentially uses the non-dominant left upper limb when reaching for objects above his head height. The left shoulder soft tissue injury incurred on 3 May 2021 has recovered to the most recent pre-accident state.
Medical Assessor Rapaport said that the right shoulder injury was a soft tissue contusion injury possibly caused by the impact of the seat belt tightening over the top of the right shoulder. There were indications as early as November 2016 that there was pathology in the right shoulder as noted by Dr Awada, and the changes demonstrated on right shoulder ultrasound performed 1 June 2021 were said to be remarkably similar to those demonstrated in the left shoulder some years earlier. The changes in both shoulders are consistent with degenerative changes in the tendinous portions of the rotator cuff that are commonly seen with wear and tear and ageing.
Medical Assessor Rapaport said that the energy force generated by a very low impact collision as described, is simply insufficient to produce an acute tear in the right supraspinatus tendon. He said that there was no plausible mechanism by which the partial tear in the right supraspinatus tendon occurred in the motor accident on 3 May 2021.
If an acute tear in the right supraspinatus tendon had been caused as a result of the impact of collision, there would be an expectation of immediate severe pain in the right shoulder, rather than gradual onset pain, and inconsistent with Mr Hammoud being able to drive himself home from the scene of the accident, later visiting his wife in hospital, and days later, driving himself to his GP.
A sudden acute traumatic tear of the right supraspinatus tendon had it occurred at the time of the subject motor accident might have seen a specialist shoulder surgical consultation much sooner than December 2023 when he consulted with Dr Popov, some 30 months following the motor accident.
Medical Assessor Rapaport concluded that the following injuries were caused by the motor accident:
(a)    soft tissue contusion injury to the right shoulder;
(b)    soft tissue injury to the cervical spine causing aggravation of a pre-existing C5/6- disc lesion;
(c)    soft tissue injury to the lumbar spine with aggravation of pre-existing lumbar
spondylosis, and
(d)    soft tissue contusion injury to the right shoulder.
He also concluded that the following injuries were not caused by the motor accident:
(a)    soft tissue contusion injury to the right shoulder;
(b)    soft tissue injury to the cervical spine causing aggravation of a pre-existing C5/6- disc lesion;
(c)    soft tissue injury to the lumbar spine with aggravation of pre-existing lumbar
spondylosis, and
(d)    soft tissue contusion injury to the right shoulder.
The following injuries caused by the motor accident were said to have resolved:
(a) soft tissue whiplash injury to the cervical spine, and
(b) soft tissue injury to the left shoulder.
Medical Assessor Rapaport said that none of the injuries assessed had caused permanent impairment that is causally related to the subject motor accident of 3 May 2021. Injuries to the cervical spine and left shoulder were soft tissue injuries that aggravated previously assessed prior permanent injuries associated with an earlier motor accident in 2014. Those soft tissue injuries have now recovered as to be expected from an appreciation of the natural history of soft tissue injuries. All the residual symptoms of which Mr Hammoud complains, are caused by pre-existing pathology that is unrelated to the subject motor accident.
The lumbar spine injury was a soft tissue injury that aggravated an underlying condition of lumbar spondylosis that was also causally related to the prior motor accident in 2014. The soft tissue injury to the lumbar spine has now recovered however, the lumbar spondylosis is symptomatic.
Medical Assessor Rapaport said that the right shoulder rotator cuff tear was not causally related to the subject accident because no plausible mechanism exists that would account for the injury given the circumstances of the motor accident on 3 May 2021. The pathology present in the right shoulder is considered to be degenerative in nature and unrelated to the subject motor accident.
The Medical Assessor provided a certificate of 3 April 2024.
The Medical Assessor noted a report of Dr Jones dated 13 August 2015, which described a focal high-grade partial thickness tear of the rotator cuff in the right shoulder. The Medical Assessor concluded that this may represent a typographical error, given that the contemporaneous clinical evidence predominantly pertains to the left shoulder. The claimant informed the Medical Assessor and was insistent about this, that the injury was confined to the left shoulder.
By way of conclusion and diagnosis, the Medical Assessor reported;
“…the low-speed collision in question, which resulted in minimal damage to the vehicle, is highly unlikely to have caused physical injuries leading to pathology that would result in permanent impairment. I concur with Mr Michael Griffiths' biomechanical analysis, which highlights the collision's low-impact nature. His findings indicate that the forces experienced by Mr Hammoud and his passengers did not surpass those encountered in daily activities, such as eating or drinking. This significantly challenges the probability of the accident causing the extensive symptoms claimed.
Additionally, the fact that Mr Hammoud's daughter, who was also in the vehicle at the time of the accident, sustained no physical injuries corroborates the assertion of minimal impact force.
Furthermore, radiological findings, particularly concerning the cervical and lumbar spine, suggest pre-existing degenerative changes rather than acute traumatic injuries. These degenerative changes, commonly asymptomatic and widespread among individuals in manual labour or advanced age, are attributed to gradual wear and tear. Research indicates that a significant proportion of individuals over 60 exhibit asymptomatic rotator cuff tears, pointing to age-related degeneration as the likely cause of Mr Hammoud's findings, rather than the accident.
The delay in seeking medical attention for more than three weeks post-incident, along with Mr Hammoud's ability to continue driving and working shortly thereafter, contradicts the expectations of acute trauma from a significant motor vehicle accident. This delay, coupled with the absence of immediate, severe symptoms, is inconsistent with the type of trauma that would lead to structural derangement and permanent impairment.
Conclusion:
From a medical perspective, it is highly improbable that Mr Hammoud sustained any physical injuries from the subject accident. The pathology identified on radiological imaging is unrelated to the accident. Based on the comprehensive evidence and analyses presented, I conclude that none of
the injuries claimed are causally related to the motor vehicle accident on

3 May 2021.”
The Medical Assessor concluded that the injuries referred to him for assessment were not caused by the accident and consequently that a decision whether these injuries were a threshold injury was not required.

Mechanical engineering report

There is a report of Michael Griffiths, expert Bio-Medical and Mechanical Engineer, relied upon by the insurer. He found “…complete lack of any visual damage including evidence of light superficial contact such as scratches or minor abrasions” and concluding that in this low speed collision, “there was no mechanism which could apply a load to the arm relative to the shoulder that would be any greater than that experienced in routine daily activities such as eating or drinking.” He found that it “is not possible for a simple rear impact to a motor vehicle which applied a forward force to the shoulder and adjacent anatomical structures by the seat back, to target the supraspinatus or biceps tendon”.
The claimant was examined on 23 April 2025 by Medical Assessor Moloney. His report follows:
Mr Hammoud attended the medical suites at PIC on 23 April 2025. He was unaccompanied.
Pre-accident history
Mr Hammoud stated that he had been in good health prior to the accident and was working full-time as a taxi driver. He lives with his wife and one child still at home. He migrated from Lebanon to Australia in 1987.
There was a previous motor vehicle accident in 2014 when a car reversed into him causing his steering wheel to rotate and injured his left shoulder and arm. There was also an injury to the lower back and cervical spine and left knee at that time. He states that he had 3 cortisone injections into the left shoulder which was beneficial.
Mr Hammoud states that he recovered from this accident.
History of motor vehicle accident
Mr Hammoud was driving his taxi on 3 May 2021. He was stationary at a set of lights and was rear-ended by another car. He was wearing a seatbelt at the time and airbags were not deployed. The police or ambulance did not attend the scene of the accident and after exchanging details with the other driver he was able to drive home. He states that the impact of the accident was much bigger than portrayed in the photos. He considers that the speed of impact was much greater than the 5 km an hour estimated (he estimates the collision was at 50 km/h) and says that his taxi was lifted up with the other car going beneath his. He told me that the mechanic said that there had been damaged to the exhaust pipe.
History of symptoms and treatment following the motor accident.
Mr Hammoud consulted his GP 2 weeks after the accident for chest pain and palpitations. Mr Hammoud states that since the accident he gets short of breath on exertion which increases with walking and he consulted a cardiologist and respiratory physician for this. The consultation 3 weeks after the accident recorded that Mr Hammoud had neck, low back pain, and right shoulder pain due to the accident. He states that the treating GP Dr Awada organise a cortisone injection into the right shoulder and referred him for physiotherapy.
Eventually he was referred to an orthopaedic specialist, Dr Popov who repeated the cortisone injection in December 2023 which is over 2 years after the accident. He apparently was also referred to a neurosurgeon for assessment of his cervical spine.
Mr Hammoud states that there had been no further injuries sustained since the motor vehicle accident.
Current symptoms
Mr Hammoud has central low back pain which increases with sitting or bending. He gets pain in the right shoulder with abduction above shoulder height or lifting more than 4 kg. This pain wakes him at night. He gets intermittent pain in the neck with dizziness occurring on extension. There is no referral of pain to the upper limbs and the legs are asymptomatic.
He walks for 15 minutes on a regular basis and drives his taxi. Current work is 3 to 4 hours 5 times per week. He does no house hold duties or gardening.
Current treatment
Present medication is Nurofen +2 at night, tramadol one at night, Panadol when needed and Voltaren One-A-Day as well as Voltaren gel.
He consults his GP when necessary and until recently was consulting a psychologist. He continues to have physiotherapy treatment to his right shoulder once per month which are self-funded.
Clinical examination
Mr Hammoud walked into the rooms with a normal gait and sat comfortably during the interview. He states that he is right-handed. Height was measured at 166 cm and weight 84.7 kg.
Cervical spine
On testing range of movement, flexion/extension was 50% of expected range and side bending and rotation were 60% of expected range bilaterally with no asymmetry. On palpation there was tenderness over the right trapezius muscle but no guarding or spasm noted in the cervical musculature.
On neurological examination of the upper limbs, reflexes were of low amplitude but equal with normal power. He stated that when testing the reflexes, it caused a shooting pain up his arms. No muscle wasting was apparent with the circumference of the upper arms 29 cm bilaterally (10 cm above the olecranon process) and in the upper forearms 27 cm bilaterally (5 cm below the olecranon process). On testing for sensation, there was a global decrease to light touch in the right arm and in particular his 4^th and 5^th fingers.
Lumbar spine
Mr Hammoud walked with a normal gait but had difficulty standing on his heels and toes. On testing range of movement flexion/extension was 50% of expected range and side bending was 60% of expected range bilaterally with no asymmetry. Straight leg raise when lying was 70° bilaterally limited by discomfort in the hip region with negative sciatic nerve root tension signs. On palpation there was tenderness over the lower right paravertebral muscles and right sacroiliac joint but no guarding or spasm was noted in the lumbar musculature.
On neurological examination of the lower limbs, reflexes were equal with normal power and there was a global decrease in sensation over the entire right leg. No muscle wasting was apparent with the circumference of the lower thighs 43 cm bilaterally (10 cm above the superior patella pole) and at the maximum circumference of the calves 35 cm bilaterally. There was a normal range of movement of his hips and knees.
Shoulders
On palpation there was tenderness over the right acromioclavicular joint but no muscle wasting was apparent over the shoulders. Active movements were measured using a goniometer and repeated. The left shoulder were slightly restricted in range of movement but pain free. No crepitus was detected on passive movement of the shoulders.

Shoulder Movements	Active ROM Measured RIGHT	Active ROM Measured LEFT
Flexion	90° = 6% UEI	150° = 2% UEI
Extension	30° = 1% UEI	40°= 0% UEI
Adduction	20°= 1% UEI	40°= 0% UEI
Abduction	70°/90° = 4% UEI	150° = 1% UEI
Internal Rotation	40° = 3% UEI	50° = 2% UEI
External Rotation	60° = 0% UEI	60° = 0% UEI

Discussion
Cervical spine – soft tissue injury
The panel considers that there has been a soft tissue injury sustained in the subject accident to the cervical spine.
At the time of the examination by the Panel, there was no dysmetria on testing range of movement, no guarding on palpation and no signs of radiculopathy or non-verifiable radicular complaints that conformed to a dermatomal pattern in the upper limbs.
Lumbar spine – soft tissue injury
There may have been a soft tissue injury to his lumbar spine in the subject accident which would have recovered within the 6 months. At the time of the examination by the Panel, there was no dysmetria on testing range of movement, no guarding on palpation and no signs of radiculopathy or non-verifiable radicular complaints conformed to a dermatomal pattern in the lower limbs.
There has been no injury to the legs sustained in the subject accident. Mr Hammoud has global decrease in sensation in the right leg which is not related to any dermatomal distribution and is not a specific injury to the leg.
Regarding radiculopathy, none of the following clinical signs were found on examination ...
(a)            loss or asymmetry of reflexes
(b)            positive sciatic nerve root tension signs
(c)            muscle atrophy and/or decreased limb circumference
(d)            muscle weakness that is anatomically localised to an appropriate spinal nerve root distribution
(e)            reproducible sensory loss that is anatomically localised to an appropriate spinal nerve root distribution.
Shoulders
The treating GP recorded right shoulder pain 3 weeks after the accident and then ordered an ultrasound and a subsequent cortisone injection to the right shoulder. The Panel accepts that Mr Hammoud sustained a soft tissue injury to his shoulder in the subject accident. The treating physiotherapist recorded right shoulder pain on 18 June 2021 which is 6 weeks after the accident. At that time there was tenderness over the right acromioclavicular joint and abduction limited to 80°. The left shoulder has been asymptomatic since the accident with no treatment required or limitation of movement.
Due to the minor impact as observed by the photos of the cars in the collision and the biomechanical report by Mr Griffiths, the Panel has determined that a rotator cuff tear would not be caused by the accident. Furthermore, if an immediate rotator cuff tear had occurred it would have been painful at that time which it wasn’t. Dr Conrad has a different opinion with which the Panel does not agree. Medical assessors Assem and Rapaport came to the same conclusion as the Panel as did Dr Bentivoglio.

The Panel adopts the report of Medical Assessor Moloney.

Causation and reasons

The Guidelines identify the test for causation in cls 6.6 and 6.7.[1]
[1] Causation is defined in the Glossary at page 316 of the American Medical Association Guides 4th edition (AMA 4 Guides). It is in the same terms as Clause 6.6 of the Guidelines.
Clause 6.6 provides:
“Causation means that a physical, chemical or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
(a) The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
(b) The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.”
Clause 6.7 provides:
“6.7 There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the motor accident. The motor accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”

The authorities

In Ackling v QBE Insurance (Aust) Ltd,[2] Johnson J indicated that the task of a review panel in assessing whether an injury was caused by the relevant accident is "a practical one". His Honour also observed that a review panel will derive practical assistance from the Guidelines when undertaking the task of assessing causation.[3]
[2] [2009] 75 NSWLR 482; [2009] NSWSC 881.
[3] At [87]. Justice Johnson was then referring to the predecessors to clauses 6.5-6.7 of the Motor Accident Guidelines, being clauses 1.7-1.9 of the Permanent Impairment Guidelines.
Here, the Panel must determine, amongst other things, whether the claimant as a result of the accident, has suffered a right shoulder tear.
The claimant attended his GP two weeks after the accident for the first time. He made no reference to any injuries he might have suffered as a result of the accident. It was not until the claimant saw his GP again, that he made a complaint about his right shoulder on
26 May 2021.
Section 5D of the Civil Liability Act 2002 (CLA) also needs to be considered when assessing causation.

116.Section 5D of the CLA provides:
"General principles
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm ('factual causation), and
(b) that it is appropriate for the scope of the negligent person's liability to extend to the harm so caused ('scope of liability')."

There are two elements to address when assessing causation under s 5D(1):
"factual causation",[4] and
"scope of liability".[5]
[4] See s 5D(1)(a) of the CLA - this is the statutory restatement of the “but for” test (see Adeels Palace Pty Ltd v Moubarak [2009] 239 CLR 420; [2009] HCA 48 at [45]) i.e. but for the negligent act or omission, would the harm have occurred?
[5] See s 5D(1)(b) of the CLA. See Adeels Palace at 42; Wallace v Kam [2013] 250 CLR 375; [2013] HCA 19 at [12].
Assessing "factual causation" and "scope of liability" involves making value judgments.[6]
[6] There is a conflict between s 5D and the Guidelines. Section 5D requires the use of the “but for” test and the Guidelines state that while the “but for” test may be useful in some cases, it “is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes”.
In the accident involving the claimant, he was driving his car when a rear end collision occurred from the insured car behind him. The claimant says the force of impact would have been approximately 50 kmph. Mr Griffiths, in his biomechanical report, attributed the impact at approximately 5 kmph. However, photographs of the car in which the claimant was travelling indicate only slight damage to the car which was able to be driven after the accident. On the observations of the Panel, the damage was minor and not indicative of a significant impact.
Campbell J in Owen v Motor Accidents Authority (NSW),[7] adopted Justice Johnson's approach with a caution touching upon the CLA:
"Given that the task of the Medical Review Panel in determining the causation question is not solely a medical determination within the expertise of the assessor's constituting the Panel, the position has, with respect, been aptly put by Johnson J in Ackling at p 500 [87] that the Assessors will derive practical assistance from this part of the Permanent Impairment Guidelines. But it is well to emphasise that the question to be assessed is one of legal causation involving mixed questions of fact and law arising principally from the law of negligence as modified by Civil Liability Act 2002, s 5D. (See s 3B(2)) of the Civil Liability Act (the CLA)."[8]
[7] [2012] 61 MVR 245; [2012] NSWSC 650.
[8] At [27].
In Kinchela v Insurance Australia Group Ltd t/as NRMA Insurance [2021] NSWSC 804 Justice Walton set aside the decision of a Medical Review Panel. The issues determined in Kinchela involved applying the definition of “minor injury” (now referred to as threshold injury) and involved a question of causation in respect of an amputated toe.
The correct principles to apply relating to causation, which were discussed in Kinchela, follow:
“[38] The second defendant’s task was not to answer the question of whether there was any contemporaneous evidence, or corroborative evidence, to support an injury to the right 2nd toe, but whether the accident contributed to the right 2nd toe infection, avulsion of the nail and ultimate right 2nd toe amputation. By focussing only on whether there was a contemporaneous record of complaint in the clinical notes or the ambulance notes, the actual question it was required to consider was overlooked – did the motor vehicle accident materially contribute to the right 2nd toe amputation
[39] The second defendant fell, therefore, into the type of error identified in Owen v Motor Accidents Authority of NSW(2012) 61 MVR 245; [2012] NSWSC 650 at [51]- [52]; Bugat v Fox(2014) 67 MVR 150; [2014] NSWSC 888 (‘Bugat’); AAI Ltd t/as GIO v McGiffen(2016) 77 MVR 348; [2016] NSWCA 229 (‘McGiffen’). The error identified is in treating the absence of a contemporaneous complaint or report of injury as determinative of the issue of causation. Associate Justice Harrison cited the decision in Bugat with approval in Briggs. Her Honour said at [64]-[65]:
[64] In Bugat, RS Hulme AJ held that the lack of contemporaneous evidence cannot be determinative of causation. His Honour stated at [31]-[32]:
‘[31] One of the pivotal questions for the panel was whether the injuries of which the plaintiff complained had been caused (or materially contributed to) by the motor accident she alleged. To that question the presence or absence of contemporaneous evidence of injury was relevant but not determinative in circumstances where there was other evidence, in particular the plaintiff’s claim form made but 15 days later, the remarks of Dr Hor in his report of 13 July 2011, and the plaintiff’s statements which the certificate discloses were made to the panel to the effect that at the time of the accident she suffered ‘pain in her neck going out to both shoulders’.
[32] While I accept that, as an administrative decision-maker, the panel’s reasons should not be subjected to ‘minute and detailed textual criticism in the hope of finding something on which to base an argument’ [Allianz Australia Insurance Ltd v Motor Accidents Authority (NSW) (2006) 47 MVR 46, [2006] NSWSC 1096 at [36]] in expressing themselves the way they have, the panel have clearly shown that they have regarded what they perceived as the absence of contemporaneous evidence as determinative on the issue of causation. In doing so they erred, the error being one apparent on the face of the record.’
[65] In McGiffen, the Court of Appeal held at [64] – [65]:
‘[64] The question that the review panel was required to address was not simply whether there was any contemporaneous evidence of complaint about an injury to the lumbar thoracic spine. It included whether Mr McGiffen’s lumbar thoracic spinal injury was causally related to the ‘gait derangement’, itself caused by the accident. That is, was the accident a contributing cause of a lumbar thoracic spinal injury by reason of the gait derangement caused by the accident.
[65] In deciding causation solely on the basis of the existence or otherwise of contemporaneous evidence of complaint of injury to the thoracic spine the review panel only partially addressed the question posed by s 58(1)(d)(of the Motor Accidents Compensation Act). For that reason, the decision recorded in the panel’s certificate must be treated as a purported and not real exercise of its statutory function under s 58(1)(d), leaving that function unexercised, and the Authority and the panel liable to the relief granted by the primary judge for jurisdictional error.’
[40] The second defendant failed to apply the correct test of causation as set out in the relevant Guidelines informed by s 5D of the Civil Liability Act 2002 (NSW) and the common law. As result, the second defendant failed to apply the appropriate legal test in order to discharge its jurisdictional function.”
Photographs of the car in which the claimant was travelling, possibly taken a short time after the accident, show limited body damage to the front panel of the insured car and limited damage to the rear of the claimant’s car. From this, the Panel discerns from general experience, that the impact was not one involving high speed and to the contrary, was a low impact collision. This is consistent with the conclusion of Mr Griffiths
The Panel must, amongst other things, consider whether, with the claimant’s right shoulder complaints, the disability is causally related when there was little or no complaint about this area of disability for three weeks post-accident. The Panel considers that the claimant may have suffered a minor disability as a result of the accident to his right shoulder. However, the Panel does not consider that the accident has had a more than negligible effect on his right shoulder due to the nature of the slight impact and relying on the biomechanical report of
Mr Griffiths.
The Panel is mindful that a lack of reported complaint of right shoulder disability should not preclude a conclusion that this condition arose from the accident.
Scientifically, there is a possibility that the accident could have caused a right shoulder injury. The Panel must consider, did the accident contribute to the claimant suffering a right shoulder tear when no immediate complaint of extreme pain was made by him until three weeks after the accident?
While the lack of contemporaneous complaint or record is not determinative, the reality is that there is essentially no evidence of immediate complaint of extreme pain following the accident, before the Panel, and which would be expected.
The Panel must also ask itself in considering whether the accident contributed to the claimant’s physical injuries as referred to it by the Commission, whether the claimant’s right shoulder condition arises because of contribution by the accident, and whether the accident materially contributed to that condition and need for treatment
On the balance of probabilities, can it be said that the claimant suffered a right shoulder injury causing a tear in the middle third of his supraspinatus tendon apparently five months post-accident, which was caused by the accident? The Panel is not satisfied that this is the case because and as was reported by Medical Assessor Moloney in his examination report, due to the minor impact as observed by the photos of the cars in the collision and the biomechanical report by
Mr Griffiths, the Panel has determined that a rotator cuff tear would not have been caused by the accident. Furthermore, if an immediate rotator cuff tear had occurred it would have been painful at that time and which it was not. Dr Conrad has a different opinion with which the Panel does not agree. Medical Assessors Assem and Rapaport came to the same conclusion as the Panel as did Dr Bentivoglio and Medical Assessor Home. The opinion of Dr Conrad is against the weight of evidence.
Would the impairment have occurred, if not for the accident? The Panel is not satisfied that the accident and impact has had a more than negligible effect on the right shoulder condition suffered by the claimant.

CONCLUSION

This is a dispute between the claimant and the insurer about: whether the injury caused by the accident is a threshold injury under Schedule 2, s 2(e) of the Act.
The Panel is not satisfied that the accident and impact has had a more than negligible effect on the right shoulder condition suffered by the claimant. That condition has not been caused by the accident. Medical Assessor Rapaport found that:
“the right shoulder injury was a soft tissue contusion injury possibly caused by the impact of the seat belt tightening over the top of the right shoulder. There were indications as early as November 2016 that there was pathology in the right shoulder as noted by Dr Awada, and the changes demonstrated on right shoulder ultrasound performed 1 June 2021 are remarkably similar to those demonstrated in the left shoulder some years earlier. The changes in both shoulders are consistent with degenerative changes in the tendinous portions of the rotator cuff that are commonly seen with wear and tear and ageing.”
The Panel concurs with this finding of Medical Assessor Rapaport.
Dr Conrad criticizes Dr Bentivoglio's reliance on biomechanical analysis to refute the possibility of injury, arguing that such an approach is not recognised under the Motor Accidents Act [sic] and the Guidelines, which he says prioritise clinical evidence over mechanical analyses. However, Dr Conrad does not address the notable absence of visible damage to the involved vehicles. Moreover, he fails to describe a specific mechanism of injury for the cervical spine, lumbar spine, or right shoulder that could be directly linked to the pathology observed on radiological imaging, thereby establishing a basis for permanent impairment.
The Panel finds that the claimant has suffered the following injuries;
(a)    cervical spine -soft tissue injury;
(b)    right and left legs - referred pain from the lumbar spine - no separate injury diagnosed;
(c)    lumbar spine -soft tissue injury, and
(d)    right and left shoulders - soft tissue injury,
and that these are threshold injuries.

DETERMINATION

The Panel revokes the certificate of Medical Assessor Assem dated 3 April 2024.
The Panel is not satisfied that the claimant suffered a right shoulder injury causing a tear in the middle third of his supraspinatus tendon as a result of a motor vehicle accident on
3 May 2021 and that this was a non-threshold injury pursuant to the Act.
The Panel finds that the claimant has suffered the following injuries;
(a)    cervical spine -soft tissue injury;
(b)    right and left legs - referred pain from the lumbar spine - no separate injury diagnosed;
(c)    lumbar spine -soft tissue injury, and
(d)    right and left shoulders - soft tissue injury,
and that these are threshold injuries.

[2025] NSWPICMP 420

13 June 2025