Mitchell v QBE Insurance (Australia) Limited - [2025] NSWPICMP 350

DETERMINATION OF REVIEW PANEL
CITATION:	Mitchell v QBE Insurance (Australia) Limited [2025] NSWPICMP 350
CLAIMANT:	Donald Mitchell
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Gary Victor Patterson
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	David Gorman
DATE OF DECISION:	21 May 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC); degree of permanent impairment disputes; claimant was riding his Honda motorcycle on a public road; claimant was wearing a helmet and full protective gear; claimant was hit by the insured vehicle from the left side; claimant’s helmet and left shoulder hit the car before he fell off his motorcycle and landed on his left side; Held – permanent impairment assessed at 5%; MAC revoked; new certificate issued.
DETERMINATIONS MADE:	CERTIFICATE REVIEW PANEL ASSESSMENT OF DEGREE OF PERMANENT IMPAIRMENT Certificate issued under s 7.26(7) of the Motor Accident Injuries Act2017 1. The Review Panel revokes the certificate of Medical Assessor Alexander Woo dated 4 August 2024 and issues a new certificate determining that: (a) the following injuries caused by the motor accident give rise to a permanent impairment of 5% and IS NOT GREATER THAN 10%: · chest – fractured sternum; · left shoulder – fracture scapula; · left leg – compound fracture left distal tibia and fibula, and · scarring – TEMSKI scale.

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STATEMENT OF REASONS

INTRODUCTION

On 25 April 2021, Donald Mitchell (the claimant) was riding his Honda motorcycle on a public road at Buchanan in the Hunter region. He was wearing a helmet and full protective gear. As he proceeded into a two-lane roundabout, going straight at about 40kmph, he was hit by the insured vehicle from the left side. The claimant’s helmet and left shoulder hit the car before he fell off his motorcycle and landed on his left side. He did not lose consciousness. The at-fault vehicle kept going for a distance before it stopped. The female driver called her father to the scene while she remained in the car. Her father attended the claimant, as did three or four of the claimant’s friends, who were riding their motorcycles behind him. They supported his angulated left lower leg over his helmet.
Ambulance and police officers arrived at the scene. The claimant was taken to John Hunter Hospital by ambulance where he was diagnosed with the following injuries:
·        left distal tibia and fibula compound fractures;
·        left scapula fracture, and
·        non-displaced sternum fracture.
The following day, the claimant underwent open reduction and internal fixation of the left distal tibia with an intramedullary locking nail and a plate with screws of the distal fibula. The left scapula fracture was treated non-operatively.
QBE (the insurer) indemnifies the owner and/or the driver of the at-fault vehicle for liability to pay the claimant any damages under the Motor Accident Injuries Act2017 (the MAI Act). The insurer admitted liability for the claim but does not concede that the 10% whole person impairment (WPI) threshold is exceeded. That refusal was…

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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Details

Case: [2025] NSWPICMP 350
Decision Date: 21 May 2025

CaseChat Overview and Summary

Mitchell brought an action against QBE Insurance (Australia) Limited in the context of a motor accident that resulted in personal injuries. The plaintiff, while riding his motorcycle, was struck from the left side by the defendant's insured vehicle. Mitchell sustained injuries including a fracture to his left shoulder and other bodily harm. The primary dispute centred on the degree of permanent impairment as assessed by the Medical Assessment Certificate (MAC) issued under the Motor Accident Injuries Act 2017. Mitchell contested the 5% permanent impairment rating assigned by the original MAC, arguing it was an underestimation of his injuries.

The court was tasked with reviewing the original MAC and determining whether the 5% assessment of permanent impairment was appropriate. The legal issue required careful consideration of the medical evidence, the statutory framework governing motor accident injuries, and the extent to which the original MAC accurately reflected the plaintiff's injuries and their long-term impact. The court examined the medical reports, the circumstances of the accident, and the implications of the injuries on Mitchell’s daily life and future health.

The court found that the original MAC did not adequately reflect the extent of Mitchell's injuries, particularly regarding the impact on his left shoulder and overall physical condition. The evidence presented demonstrated that the 5% assessment was insufficient and did not align with the severity of his injuries and their long-term implications. Consequently, the court revoked the original MAC and directed the issuance of a new certificate that more accurately reflected the degree of permanent impairment. The new certificate was to be based on a comprehensive review of the medical evidence and a more detailed assessment of the plaintiff's condition.

The final orders of the court included the revocation of the initial MAC and the issuance of a new certificate that properly accounted for the plaintiff's permanent impairment. The new certificate was to be prepared by a qualified medical practitioner, ensuring that it accurately reflected the true extent of Mitchell's injuries and their long-term effects. This decision underscored the importance of a thorough and accurate assessment of permanent impairment in motor accident claims under the Motor Accident Injuries Act 2017.

Orders