In this podcast, BPC Lawyers Partner and Accredited Personal Injury Law Specialist Scott Hall-Johnston differentiates minor and non-minor injuries and how this assessment is crucial to the extent of compensation you may receive.
Dan Toombs: Crucial to the extent of compensation that you may receive for an injury in New South Wales is the assessment of your injury or injuries. In this context, it’s all about whether the relevant injury is deemed minor or not minor and everything going forward hinges on this very important determination. To learn more about how all this plays out in a practical sense, I’m with award-winning compensation lawyer Scott Hall-Johnston from Beilby Poulden Costello. Scott, what’s the objective behind all this?
Scott Hall-Johnston: Good morning, Dan. The government introduced legislation in 2017 and they sought to distinguish between small or minor injuries and injuries that were going to cause lots of damage and loss. And so they sought to implement a distinction between minor injuries and non-minor injuries.
DT: So in essence, what is a minor injury as opposed to a non-minor?
SHJ: A minor injury is is designed to be an injury to a soft tissue. And what the government might have been thinking about is, say, for example, a whiplash injury. And we know that usually, not always, but usually a whiplash injury will resolve within a short period of time. So where you’ve got, you know, an impact to a muscle, that that is probably what the government meant to be as being a minor injury.
DT: Now, how does this play out in the context of what may well be a minor injury that might be sort of caused by a traumatic event as opposed to something that becomes more problematic through age?
SHJ: It’s a really good point, Dan, because where you’ve got soft tissue is quite often you can include damage to a disc in the spine. And a disc in the spine is a soft tissue. So the legislation intended that all soft tissue injuries be regarded as minor, but then excluded any tear or lesion to any meniscus or tendon or ligament. So where you’ve got a tear of a disc, that’s a non minor injury and that can be a really significant injury. And so, for example, quite often people will be advised that they may need surgery where they’ve got a bad rupture to one of their discs. What the legislation tried to do in the early medical assessors did was they said, look, if you’ve got a damage to a disc in your spine, it’s only a minor injury. And of course, we know from experience that when you hit a disc in your neck or your back, that’s not going to lead to minor problems and can quite often lead to protracted pain and disability.
DT: Scott, the practical implications of this for an injured person are fairly significant, aren’t they? So, you know, if the injury is deemed to be, you know, minor, the compensation that rolls out of that is very, very different to a non-minor, isn’t it?
SHJ: It is a very different proposition. The minor injury and non-minor injury test is a gateway provision. And what that means is that if you’re assessed as being a minor injury, any entitlement you’ve got to compensation stops after 26 weeks completely, whereas you’re protected. If you’re injury is non minor, you’ll have your medical expenses paid for as long as you need them. You’ll have any care requirements met for as long as you need them, and you’ll be entitled to claims the loss of wages, particularly if you weren’t at fault in the accident.
DT: This was a very important consideration in your recent successful mayoral nature. Can we talk about that particular case?
SHJ: Yeah, we certainly can. Thanks. Mr. Briggs suffered an annular tear, which is a type of a rupture of one of his teeth. And the medical panel and there have been two medical panels now convened, were concerned about whether that tear might have been caused by the accident that is traumatic or whether it might have been degenerative. And that is like an age type change. And as we age, all of the discs in our back where out and you could probably think a good analogy might be like a bean bag when you first buy buy it from the store, it’s fairly fluffy. It bounces back and and it does those things that are disposed to do act as a shock absorber in your back. But with the process of time, the disc stops working as well. It can it can extrude. It can leak in different ways and it doesn’t bounce back as well. And quite often you can find annular tears are caused just by age changes. And so what the appeal panel was concerned with in Mr. Briggs case was whether the changes in his back were traumatic caused by the accident, or whether they were just age related. What the appeal panel did in that case was they said on the most recent scientific evidence, there’s no way to formally and accurately say whether a change like an annular tear was caused by the trauma or was just age related. And therefore, Mr. Briggs hasn’t proved to us that that tear was caused by the car accident. The Supreme Court is very critical of that approach. And it said where the scientific consensus is that a change may have been traumatic or it may have been degenerative, then the the appeal panel of the medical assessor is required to work out which one is more likely to be the cause. And if part of the cause was the car accident, then the injury is not minor.
DT: Scott, this case emphasises, you know, numerous points. But one of which is very obvious is the fact that we are seeking good legal representation and advice in relation to compensation matters generally is just so fundamentally important because, you know, this this particular case of breaching may well have been lost on a less experienced lawyer, wouldn’t it?
SHJ: Dan, the important thing, I believe about these things is there’s a crossover between the legal knowledge and the medical legal knowledge. And what you need is an experienced lawyer that’s got some grasp of the medical issues. We as lawyers aren’t doctors and we don’t pretend to offer medical opinions. But we’ve got some idea given experience with the types of issues, the medical issues that can be involved. And that becomes very important when you’re trying to work out what somebody’s rights might be.
DT: The outcome for Mr. Briggs would have been significantly different if if the Court of Appeal held the view that it was in fact a minor injury as opposed to non minor, would note.
SHJ: Mr. Briggs would have had no more rights if the Supreme Court had said that his injury was minor and the review panel had got it right. As it is, the Supreme Court said that this type of injury may well be traumatic, which is very helpful, because we now know that if we can show that a disc was damaged in a car accident, that is a non-minor injury. And secondly, the Supreme Court also directed the medical assessors that they’ve got to look at proper causation properly. They’ve got to consider whether you’ve got when you’ve got this sort of an injury, whether the car accident can have had a hand to play. And that’s really important because the government is trying to weed out smaller claims. And if the medical assessors are trying to do the government’s bidding, it’s so easy for them or it would have been so easy for them before just to say we don’t know what caused the problem. We’re throwing our hands up in the air and therefore the injury’s minor.
DT: Now we should mention time limits in relation to motor vehicle accidents in New South Wales because they are so important. What are they?
SHJ: Oh, Dan, there are time limits everywhere with the Motor Injuries Act. The insurer makes a liability decision at six months about whether an injury is minor or not. And there are 28 days to seek an internal review of that decision. There’s no science in the internal review. All you’ve got to do us is for the insurer to reconsider its decision. Now, once that’s done, then you’re entitled to go to the Personal Injury Commission and have an independent medical assessor determine the issue. If the insurer decides that the injury is minor and there’s no specific time limit in that, but to protect your rights, it needs to be done quickly. And in particular, a claim for damages has got to be filed within three years. So it’s important that the minor injury decision be put to bed relatively quickly. The other factor, of course, is that if the injuries are regarded as minor, the insurer will close its file and make no more payments. And so there’s no entitlements until that decision is revisited and sorted out properly.
DT: It goes without saying that legal advice at the very earliest opportunity is just common sense.
SHJ: It is important. And because the sooner we can get out of these things, the more work we can do and the better the chances that we can set it right.
DT: Scott. Thanks for joining me.
SHJ: Thanks for your time.