AAI Limited t/as GIO v Amos - [2022] NSWPICMP 467

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Amos [2022] NSWPICMP 467
CLAIMANT:	Jesse Owen Amos
INSURER:	AAI Limited trading as GIO
REVIEW Panel
MEMBER:	Susan McTegg
MEDICAL ASSESSOR:	John O’Neill
MEDICAL ASSESSOR:	Ian Wechsler
DATE OF DECISION:	15 November 2022
CATCHWORDS:	MOTOR ACCIDENTS – The claimant sustained facial injuries in a motor vehicle accident on 26 July 2018; prior to the accident the claimant had reported dizziness and been prescribed Serc; on about 24 August 2018 the claimant went outside to feed the cat and fell; claimant remembers feeling dizzy; question of whether claimant sustained post-traumatic paroxysmal positional vertigo as a result of the motor vehicle accident leading to fall; as a result of fall the claimant sustained a fractured right orbit and injury to the right infraorbital nerve; Held – fall on or about 24 August 2018 was either accidental or related to the pre-accident non-specific dizziness; fall not caused or contributed to by the accident on 26 July 2018; the fractured right orbit was not caused by the accident and does not give rise to a permanent impairment under the Motor Accident Injuries Act2017.
DETERMINATIONS MADE:	*MOTOR ACCIDENT INJURIES ACT 2017* WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 The Review Panel revokes the Combined Certificate of Medical Assessor Nichols dated 15 February 2022 and issues a new certificate determined that the following injuries were caused by the motor accident and give rise to a whole person impairment (WPI) which, in total, is not greater than 10%: · injury to the cervical spine; · injury to the lumbar spine; · injury to the left shoulder; · injury to the right shoulder; · injury to the abdomen; · body area: nose & air passage - fractured nasal bones with deviated nasal septum; · teeth – broken teeth, and · gum – lacerations. The Review Panel revokes the Certificate of Medical Assessor Michael Steiner dated 31 March 2021 and issues a new certificate determining that the following injuries were not caused by the motor accident and do not give rise to a whole person impairment (WPI) which is greater than 10%: eyes – fractured right orbit.

REASONS

This is to certify that permanent impairment was assessed by a Medical Review Panel comprising Member Susan McTegg, Medical Assessor John O’Neill and Medical Assessor Ian Wechsler and by Medical Assessor Joseph Scoppa, Medical Assessor Nichols and a Medical Review Panel comprising Member Susan McTegg, Medical Assessor Geoffrey (Paul) Curtin and Medical Assessor Drew Dixon.

Details of the assessments and full reasons are given in the following certificates:
Certificate of the Medical Review Panel dated 8 November 2022

The following injury was not caused by the accident and the permanent impairment is 0%:

· eyes – fractured right orbit.

Certificate of the Medical Review Panel dated 11 October 2022

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: [2022] NSWPICMP 467
Decision Date: 15 November 2022

CaseChat Overview and Summary

AAI Limited, trading as GIO, was involved in a legal dispute with an individual referred to as Amos. Amos sustained facial injuries in a motor vehicle accident on 26 July 2018. Prior to this incident, Amos reported experiencing dizziness and had been prescribed Serc. Approximately two weeks later, on about 24 August 2018, Amos went outside to feed the cat and fell, resulting in a fractured right orbit and injury to the right infraorbital nerve. The central issue was whether Amos's fall and subsequent injuries were caused or contributed to by the earlier motor vehicle accident on 26 July 2018, or if they were due to pre-existing conditions or other factors.

The court was tasked with determining the cause of Amos's fall and injuries, and whether the motor vehicle accident on 26 July 2018 was a contributing factor. Specifically, the court needed to establish whether Amos's fall and injuries were a result of post-traumatic paroxysmal positional vertigo stemming from the accident, or if they were related to his pre-existing dizziness and unrelated to the accident. The court also had to decide if the fractured right orbit resulted from the accident and whether it led to a permanent impairment under the Motor Accident Injuries Act 2017.

The court concluded that the fall on or about 24 August 2018 was either accidental or related to the pre-accident non-specific dizziness. It found that the fall was not caused or contributed to by the accident on 26 July 2018. Furthermore, the court determined that the fractured right orbit was not caused by the accident and did not result in a permanent impairment under the Motor Accident Injuries Act 2017. Consequently, the court ruled in favour of AAI Limited, trading as GIO.

Orders