The Court of Appeal has clarified the meaning of ‘soft tissue injury’ in s1.6(2) of the Motor Accident Injuries Act 2017 (the MAI Act) with the result that a skin injury is a threshold injury, unless there is also an injury to the nerves.

Background

Ms Abawi was injured in a motor vehicle accident in 2017, suffering various injuries including superficial lacerations to her wrists. Ms Abawi died in 2021 from unrelated causes and her estate pursued a claim against CTP insurer Allianz. Allianz contended that Ms Abawi's injuries were ‘minor injuries’ (‘threshold injuries’ as they are now known). No damages are available for threshold injuries.

Section 1.6(a) of the MAI Act provides that a threshold injury is ‘soft tissue injury.’

Section 1.6(2) defines a soft tissue injury to be:

‘an 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.’ (emphasis added).

Ms Abawi’s skin laceration was initially certified by PIC Medical Assessor Home as being a threshold injury, being an injury to the skin and there being no evidence of any injury to the nerves.

On review, the Review Panel concluded that the lacerations of the skin were not threshold injuries because the skin is an organ, and therefore not within the meaning of a soft tissue injury.

Allianz sought judicial review in the Supreme Court of NSW where Justice Griffiths came to the same conclusion because examples of what is a soft tissue injury in s1.6(2) do not include skin, and skin is both a tissue and an organ.

Court of appeal decision

The court accepted that skin has a number of functions and said that the definition of ‘soft tissue’ should be understood to mean tissue that has the significant characteristic of performing those functions identified in section 1.6(2) – i.e. of connecting, supporting or surrounding – with respect to ‘other structures or organs.’

Therefore, in this context, an organ (including skin) is capable of being ‘soft tissue’ if it has those characteristics, his Honour Kirk JA, Adamson JA and Stern JA agreeing, saying that [at 71]:

‘… the definition in s1.6(2) should be understood as identifying soft tissue as tissue a significant and characteristic feature of which is connecting, supporting or surrounding other structures or organs in a physical sense, such as to warrant that tissue being characterised as having that function. That is not likely to include most organs. Whether or not it includes skin is a matter to which I now turn.’ (emphasis added)

It is a factual issue as to whether the function of the tissue (in this case, skin) has a significant and characteristic function to connect, support or surround other structures or organs.

The court accepted that skin has this function and is therefore characterised as soft tissue within the meaning of s1.6(2). It is possible that other organs could also serve that function, though this did not need to be determined.

Conclusion

The Court of Appeal’s decision provides a clearer interpretation of the term ‘soft tissue injury’ and importantly confirms that injuries to the skin are threshold injuries, unless there is involvement of the nerves.

There is still scope for some significant skin injuries to fall outside the meaning of soft tissue, as noted by Kirk JA at [66], when those injuries involve injury to the nerves.