The Personal Injury Commission (PIC) has ruled in Tasseli v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 49 that damage to pre-existing surgical hardware constitutes a non-threshold injury, entitling the Claimant to ongoing statutory benefits and common law damages.
Background of the Case
The Claimant had previously undergone surgery on his right hand in 2021, requiring the insertion of a metal plate and screws. On 22 January 2023, he was involved in a motor accident and alleged multiple injuries, including to his spine, shoulder, chest, abdomen, right hand, and knee.
A PIC Medical Assessor determined that while some of these injuries persisted, they were all threshold injuries under the Motor Accident Injuries Act 2017 (MAIA). The Claimant sought a review of the medical assessment, arguing that his right hand injury should be classified as a non-threshold injury.
Key Legal Considerations
Under MAIA, a Claimant is only entitled to ongoing statutory benefits and common law damages if they suffer a non-threshold injury. The Act defines an “injury” under s 1.4 to include damage to “artificial members…and other aids.” Meanwhile, a threshold injury is defined under s 1.6(1)(a) as a soft tissue injury, with soft tissue injuries explicitly excluding damage to bones or artificial aids.
The Review Panel’s Decision
The Review Panel concluded that the Claimant’s right hand injury was a non-threshold injury for two key reasons:
- Bone Injury Due to Hardware Loosening: The accident materially contributed to the loosening of the metal plate and screws in the Claimant’s 5th metacarpal bone. The resultant bone injury was deemed a non-threshold injury as it involved hard tissue rather than soft tissue.
- Damage to an Artificial Aid: The panel determined that the metal plate and screws constituted an “artificial aid” under s 1.4 of MAIA. Since the damage to the hardware was not a soft tissue injury as per s 1.6(2), it was classified as a non-threshold injury.
Given these findings, the Review Panel did not need to address the Claimant’s alternative argument that the surgery to repair the damaged hardware involved injuries to skin and nerves, which might have further qualified the injury as non-threshold under s 1.6(2).
Implications of the Decision
This ruling highlights a potential gap in the legislation regarding threshold injuries. The definition of “injury” in NSW’s motor accident laws has historically included damage to artificial members and aids, dating back to the Motor Vehicles (Third Party Insurance) Act 1942. However, the threshold injury concept was only introduced with MAIA in 2017, creating complexities in how these definitions interact.
Conclusion
The Tasseli decision reinforces that damage to pre-existing surgical hardware can qualify as a non-threshold injury, thereby entitling claimants to broader compensation rights.
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