Muradi v QBE Insurance (Australia) Ltd - [2022] NSWPICMP 59

DETERMINATION OF REVIEW PANEL
CITATION:	Muradi v QBE Insurance (Australia) Ltd [2022] NSWPICMP 59
CLAIMANT:	Mohammad Reza Muradi
INSURER:	QBE Insurance (Australia) Ltd
REVIEW Panel:	Principal Member John Harris Dr Ian Cameron Dr Trudy Rebbeck
DATE OF DECISION:	24 March 2022
CATCHWORDS:	MOTOR ACCIDENTS- This was a dispute about whether the claimant suffered a minor injury in the motor accident; the claimant was thrown off a motor bike and sustained injury to the neck; subsequent scan evidence showed annular tears at two levels of the cervical spine; Held- the Panel were not satisfied that the claimant suffered an annular tear in the motor accident; reference made to articles provided to the parties which suggested that annular tears are common in the population and generally asymptomatic and not necessarily associated with neck pain; other musculoskeletal structures are capable of causing pain and there was no diagnostic test that the annular tears were the cause of the neck pain; the Panel were not satisfied that the claimant suffered annular tears in the motor accident; Panel determined that it was unnecessary to determine whether an annular tear was a non-minor injury within the meaning of the Motor Accidents Injuries Act 2017 and the Motor Accident Injuries Regulation 2017; finding made that the claimant suffered a minor injury; original assessment confirmed.
DETERMINATIONS MADE:	The Review Panel confirms the certificate dated 26 April 2021.

REASONS

BACKGROUND

Mr Mohammed Reza Muradi (the claimant) suffered injury in a motor accident on 20 March 2020 when he was thrown off his motor bike after being rear-ended by the insured vehicle.
The insurer insured the owner and driver of the other motor vehicle for liability to pay to Mr Muradi any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The present issue is whether Mr Muradi’s injury is classified as a “minor injury” within the meaning of the MAI Act. Pursuant to Schedule 2, clause 2 of the MAI 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 the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the Mai Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Berry who issued a Medical Assessment Certificate dated 26 April 2021. Medical Assessor Berry concluded that Mr Muradi sustained a minor injury for the purposes of the MAI Act.
Whether a person has only suffered minor injuries as a result of a motor vehicle accident affects the entitlement to ongoing statutory benefits and an entitlement to bring an action for damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the…

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: [2022] NSWPICMP 59
Decision Date: 24 March 2022

CaseChat Overview and Summary

The dispute in Muradi v QBE Insurance (Australia) Ltd was centred around whether the claimant had sustained a minor injury during a motor accident. The claimant had been thrown off a motor bike and subsequently experienced neck pain. Medical scans revealed annular tears at two levels of the cervical spine, which were used as evidence of the injury's severity. The matter was brought before the court to determine the nature and extent of the injuries sustained by the claimant.

The court was tasked with deciding whether the claimant had indeed suffered annular tears as a result of the motor accident and, if so, whether these tears constituted a minor injury under the Motor Accidents Injuries Act 2017 and the Motor Accident Injuries Regulation 2017. The claimant argued that the injuries were significant and not minor, while the defendant insurance company maintained that the injuries were minor and did not warrant the level of compensation claimed.

In delivering its judgment, the court found that the evidence did not conclusively support the claimant's assertion that the annular tears were caused by the motor accident. The court noted that annular tears are a common finding in the general population and are often asymptomatic, meaning they may not necessarily be associated with neck pain. Furthermore, the court emphasised that other musculoskeletal structures could also be the source of the claimant's pain, and there was no diagnostic test that definitively linked the annular tears to the claimant's neck pain. Consequently, the court determined that it was not necessary to decide whether an annular tear would be classified as a non-minor injury under the applicable legislation. Instead, the court concluded that the claimant had suffered a minor injury, affirming the original assessment.

As a result of the court's findings, the original assessment confirming that the claimant had suffered a minor injury was upheld. The court's decision effectively resolved the dispute in favour of the defendant insurance company, with the claimant's claim for compensation being limited to the amount appropriate for a minor injury under the Motor Accidents Injuries Act 2017 and the Motor Accident Injuries Regulation 2017.

Orders