Decision
Fahim v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 355
Sixty-Second-Or-Less Read
A Claimant suffers a right tibia contusion in a motor accident. The Insurer denies liability for ongoing statutory benefits on the grounds that the Claimant’s only injuries are threshold injuries.
Is a bone contusion a threshold injury?
In Fahim v IAG, the Medical Review Panel concluded that any injury to bone – whether a fracture or a contusion – was an injury to hard tissue which fell outside the definition of “soft tissue injury” in section 1.6(2) of MAIA.
Principles
✅ Pursuant to the definition in section 1.6 of the Motor Accident Injuries Act 2017 (MAIA) a soft tissue injury is a threshold injury.
✅ Any injury to bone – whether a fracture or a contusion – is an injury to hard tissue which falls outside the definition of soft tissue in section 1.6(2) of MAIA.
Facts
The Claimant was injured on 16 May 2024 when a car hit either her or her shopping trolley as she walked in a shopping centre car park.
Amongst other injuries, the Claimant sustained a contusion to her right tibia.
A dispute arose, between the parties, whether the right tibia contusion constituted a threshold injury or not.
If the Claimant’s only injuries were threshold injuries, she would not be entitled to either ongoing statutory benefits or common law damages.
Relevant Definitions
Section 1.6(1) of MAIA provides that a “soft tissue injury” is a threshold injury.
Section 1.6(2) of MAIA 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”.
The Review Panel Decision
The Review Panel found that the contusion to the Claimant’s right tibia was a non-threshold injury for the following reasons:
🟪 A bone contusion represents bruising to the bone.
🟪 A bone contusion results in microfractures and the build-up of blood and fluid within the bone.
🟪 Whilst not a serious as a fracture, a bone contusion is an injury to the bone.
🟪 Medically, bones (like teeth) are not soft tissue because they are hard tissue.
🟪 In Abawi, the Court of Appeal concluded that, pursuant to the definition in 1.6(2), soft tissue has the significant and characteristic function of connecting, supporting or surrounding organs of the body or other structures. Bones do not have this function. Bones are one of the structures that are themselves connected, supported or surrounded by soft tissue.
🟪 It follows that any injury to bone – whether a fracture or a contusion – is a non-threshold injury.
My Perspective
The decision in Fahim confirms that any injury to hard tissue, like bone or teeth, falls outside the definition of “soft tissue injury” in s 1.6(2) of MAIA and is, therefore, a non-threshold injury. The nature of the injury is unimportant. All that matters is that the injury is to hard tissue.
Whilst not specifically addressed in the Review Panel’s reasoning, it is worth noting that the Court of Appeal made the following obiter comments in Abawi at [42]:
“His Honour further reasoned that “the common trait or theme of the parenthesised examples (ie, muscles, tendons, ligaments etc) is that each is a connective tissue which has a unique and important role to play in orthopaedic injuries” (J [58], see also [60]). Allianz submitted that one thing that the definition of soft tissue certainly does not involve is bones and the skeletal system. The estate did not seek to defend this aspect of his Honour’s reasons.”
It is noteworthy that both parties in Abawi accepted that “soft tissue certainly does not involve…bones and the skeletal system” and that the primary judge was wrong to (indirectly) find otherwise. Furthermore, the Court of Appeal proceeded on the assumption that the parties were correct in their understanding that bones are not soft tissue, either medically or pursuant to the definition in s 1.6(2) of MAIA.
PJH