QBE Insurance (Australia) Limited v Simonds - [2023] NSWPICMP 550

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Simonds [2023] NSWPICMP 550
CLAIMANT:	Cassandra Simonds
INSURER:	QBE Insurance Australia Ltd
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Mohammed Assem
MEDICAL ASSESSOR:	Geoffrey Stubbs
DATE OF DECISION:	2 November 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; whether physical injury to the lumbar spine was a threshold injury; motor vehicle accident on 19 July 2019, when four wheel drive in which claimant was a passenger fell from a bridge, landing on its roof; previous history of back injury; claimant did not establish that the accident caused other than threshold injury to the lumbar spine; Held – Medical Assessor’s determination of non-threshold injury set aside.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Replacement certificate issued under s 7.23 of the Motor Accident Injuries Act 2017 The Review Panel: 1. Revokes the Certificate of Medical Assessor Murray Hyde-Page dated 11 April 2023. 2. Certifies that the claimant’s injury to the lumbar spine is a threshold injury according to the Act.

STATEMENT OF REASONS

INTRODUCTION

Background

Ms Simonds (the claimant) was born in May 1992.
On 19 July 2019, the claimant was the front seat passenger, wearing a seatbelt in a Land Cruiser, when the driver lost control, the vehicle slid off a 3m bridge, landed on its nose, and then flipped onto its roof.
The claimant alleged that she had sustained injuries to her neck, back and shoulders. There was no direct blow to her head, but she gave a history that she did have transient loss of consciousness and loss of memory as to the details of the accident.
The claimant was taken by ambulance to Port Macquarie Base Hospital, where, after X-rays and observation, she was allowed home the next morning.
Diagnostic investigations indicated a lumbo-sacral disc protrusion with an annular tear.
Subsequently, the claimant was reviewed by a spinal surgeon and came to a L5/S1 micro discectomy on 29 January 2021.
On 23 December 2019, the claimant’s general practitioner (GP) referred her to Dr Raj Reddy, neurosurgeon, for opinion and management of complaints of ongoing cervical radiculopathy pains.
On 28 January 2020, the claimant’s GP referred her to Dr Michael Prowse, rheumatologist, for nerve conduction studies on the left arm/cervical spine.
On 17 September 2020, Dr Prowse opined that the claimant had an L5 radiculopathy and findings on CT scanning.
The claimant was referred to the Department of Neurosurgery at John Hunter Hospital (JHH), to which she was admitted on 4 November 2020.
The primary diagnosis, based on diagnostic investigations, was a posterior L5/S1 disc protrusion:
“…admitted… under the care of the neurosurgery team (Dr Edgar) for the investigation and management of back and leg pain. An MRI lumbar spine demonstrated the posterior L5/S1 disc protrusion without nerve root compression. She was managed non-operatively.”

On 1 December 2020, Dr Amanda Paterson, neurosurgical registrar, reported to the GP that, on examination, the claimant had a mildly weak right ankle plantar reflex, limited by a lot of pain.…

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: [2023] NSWPICMP 550
Decision Date: 2 November 2023

CaseChat Overview and Summary

In the matter of QBE Insurance (Australia) Limited versus Simonds, the case before the court involved the interpretation of the Motor Accident Injuries Act 2017, specifically concerning whether the physical injury to the lumbar spine sustained by the claimant was a threshold injury. The claimant, a passenger in a four-wheel drive vehicle, was involved in an accident on 19 July 2019 when the vehicle fell from a bridge and landed on its roof. The claimant had a previous history of back injury. The central issue for the court was whether the accident resulted in more than a threshold injury to the lumbar spine.

The court was required to determine whether the claimant had successfully demonstrated that the accident caused an injury that exceeded the threshold criteria set out in the Motor Accident Injuries Act 2017. This required a careful analysis of the medical evidence and the applicable statutory provisions. The court had to assess the nature and extent of the injury, considering the claimant's history of back issues, and whether the accident was a significant contributing factor.

The court found that the claimant had not established that the accident caused an injury beyond the threshold. The medical evidence did not conclusively show that the accident had resulted in an injury more severe than what would be considered a threshold injury. The court set aside the Medical Assessor’s determination of a non-threshold injury, holding that the claimant had not met the required standard of proof. The claimant's previous history of back injury was considered in the assessment, and it was concluded that the current injury did not exceed the threshold criteria.

The court's decision was final, with no further appeal possible on the matter of whether the injury was a threshold injury. The court's ruling aligned with the statutory requirements and the evidence presented, affirming that the claimant's lumbar spine injury did not exceed the threshold as defined by the Motor Accident Injuries Act 2017.

Orders