AAI Limited t/as AAMI v Jaber - [2023] NSWPIC 673

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as AAMI v Jaber [2023] NSWPIC 673
CLAIMANT:	Fareed Jaber
INSURER:	AAI Limited t/as AAMI
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	11 December 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999; assessment of damages; claimant in receipt of disability pension at the date of accident; working two days a week; pre-existing physical and psychological conditions; wife in receipt of carer’s pension; damages for out of pocket expenses and future commercial care claimed; no claim for non-economic loss, economic loss, or past care; Medical Assessors found that the claimant suffered physical and psychological injury as a result of the accident, and assessed permanent impairment (that was not greater than 10%); Miller v Galderisi, Berkeley Challenge Pty Ltd v Howarth, Gordon v Truong; Truong v Gordon, and White v Benjamin considered and applied; Held – the claimant suffered physical and psychological injury as a result of the accident with associated disability; allowances made for past and future out of pocket expenses and future commercial care.
DETERMINATIONS MADE:	CERTIFICATE 1. Under sub-sections 94(3) and 94(4) of the Motor Accidents Compensation Act 1999, I specify the amount of damages for this claim as $63,194.75. 2. The insurer is to pay the claimant’s costs in the amount of $14,619.00 inclusive of GST and disbursements in the amount of $7,112.72 inclusive of GST. 3. Attached to this certificate are reasons for my assessment.

STATEMENT OF REASONS

BACKGROUND

Fareed Hameed Jaber (claimant) was injured in a motor accident at Kogarah on

25 May 2016 (accident). He subsequently made a claim for damages under the Motor Accidents Compensation Act 1999 (MAC Act) on AAI Limited t/as AAMI (insurer). The insurer wholly admitted liability for the damages claim on 10 October 2016. The insurer referred the claim to the Personal Injury Commission (Commission) for assessment under Div 2 Part 4.4 of the MAC Act.
A preliminary conference was conducted on 14 August 2023. It was confirmed that the claimant did not seek awards for non-economic loss, economic loss (either past or future), or past care. The only heads of damages for which awards were sought are past and future treatment and future commercial care. Directions were made and the proceedings listed for assessment hearing on 26 October 2023.

ASSESSMENT

The claim proceeded to assessment on 26 October 2023. The claimant gave evidence with the assistance of an Arabic interpreter. His wife was available to give evidence but was not required. The matter was adjourned part-heard so that oral submissions could be completed.
The parties made their oral submissions on 22 November 2023. The submissions are addressed later in these reasons.

EVIDENCE

The documentary evidence relied on by the parties is contained in a joint bundle. The joint bundle includes, but is not limited to, records from treating practitioners, particulars, medico-legal reports, photographs of the claimant’s vehicle, a police report, radiological reports and Centrelink records. I have read and considered all the material in the…

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] NSWPIC 673
Decision Date: 11 December 2023

CaseChat Overview and Summary

In the case of AAI Limited trading as AAMI v Jaber, the claimant sought damages for out of pocket expenses and future commercial care following a motor accident. The claimant was receiving a disability pension at the time of the accident and was working two days a week. The claimant had pre-existing physical and psychological conditions and his wife was receiving a carer’s pension. The claimant did not claim damages for non-economic loss, economic loss, or past care. The Medical Assessors found that the claimant suffered physical and psychological injury as a result of the accident and assessed the permanent impairment as not greater than 10%.

The primary legal issue before the court was whether the claimant was entitled to damages for out of pocket expenses and future commercial care. The court considered relevant case law, including Miller v Galderisi, Berkeley Challenge Pty Ltd v Howarth, Gordon v Truong, Truong v Gordon, and White v Benjamin, to determine the appropriate approach to assessing damages in cases where the claimant has pre-existing conditions. The court had to determine whether the claimant’s pre-existing conditions were relevant to the assessment of damages and, if so, how they should be taken into account.

The court found that the claimant suffered physical and psychological injury as a result of the accident with associated disability. The court considered the pre-existing conditions and found that they were relevant to the assessment of damages. The court determined that the claimant was entitled to allowances for past and future out of pocket expenses and future commercial care. The court considered the claimant’s pre-existing conditions and the impact of the accident on those conditions in making its decision.

The court made orders for the claimant to be paid damages for past and future out of pocket expenses and future commercial care. The court found that the claimant’s pre-existing conditions were relevant to the assessment of damages and that allowances should be made for those conditions. The court’s decision provides guidance on the approach to assessing damages in cases where the claimant has pre-existing conditions.

Orders