AAI Limited t/as GIO v Hoolihan - [2023] NSWPICMP 367

DETERMINATION OF REVIEW PANEL
CITATION:	AAI Limited t/as GIO v Hoolihan [2023] NSWPICMP 367
CLAIMANT:	Alexandra Hoolihan
INSURER:	AAI Limited trading as GIO
REVIEW Panel
MEMBER:	Gary Victor Patterson
MEDICAL ASSESSOR:	Wayne Mason
MEDICAL ASSESSOR:	Alexey Sidorov
DATE OF DECISION:	2 August 2023
CATCHWORDS:	MOTOR ACCIDENTS – The claimant suffered injury on 12 September 2018; the dispute related to the assessment of permanent impairment of psychological injuries; claimant re-examined; panel required to form its own opinion on diagnosis and assessment; Insurance Australia Limited v Marsh applied; claimant diagnosed with post-traumatic stress disorder; assessments made in accordance with psychiatric impairment rating scale (PIRS) categories; Held – claimant assessed at 8% permanent impairment for the psychological injury; original assessment revoked.
DETERMINATIONS MADE:	CERTIFICATE Certificate is issued under s 7.26(7) of the Motor Accident Injuries Act2017 The Review Panel revokes the certificate dated 6 May 2022 and issues a new certificate determining that: The following injuries caused by the motor accident give rise to a whole person impairment of 8% and NOT GREATER THAN 10%: · post-traumatic stress disorder .

STATEMENT OF REASONS

BACKGROUND

Alexandra Hoolihan (the claimant) was 18 years of age at the time of the subject motor accident (the accident). The claimant was driving her boyfriend’s sedan on 12 September 2018 about 80 kilometres an hour at night. The road was a single lane each way. The insured vehicle was travelling in the other direction. It veered onto the claimant’s side of the road. It struck the car the claimant was driving almost head-on causing it to spin. The claimant could not open the driver’s door. Her boyfriend helped her out of the vehicle through the driver’s window. Ambulance, fire brigade and police officers attended. The claimant was taken to St George Hospital by ambulance. The claimant reports continuing neck and back pain as a result of the accident.
Immediately after the accident, when attempting to initiate sleep, the claimant would experience a visual flashback image of car headlights approaching. She began to experience nightmares about car accidents generally. The claimant describes what she believes to be panic attacks if she hears car horns. She reports anticipatory anxiety four hours prior to driving. The claimant had treatment with a psychologist from late 2018 to early 2021 which resulted in some improvement. The claimant ceased further treatment later in 2021 due to her driving anxiety. The claimant has not seen a psychiatrist nor been offered anti-depressants.
GIO (the insurer) insured the owner and/or the driver of the vehicle at fault for liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act2017 (the MAI Act).
The issue presently in dispute is the degree of permanent impairment of the claimant that has resulted from psychological/psychiatric injury caused by the accident (including whether the degree of permanent impairment is great than a particular percentage).

THE REVIEW

As there is a dispute between the claimant and the insurer about the degree of permanent impairment…

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] NSWPICMP 367
Decision Date: 2 August 2023

CaseChat Overview and Summary

AAI Limited, trading as GIO, was the respondent in a dispute against the claimant, Mr Hoolihan, before the New South Wales Civil and Administrative Tribunal. The issue at the heart of the case was the assessment of permanent impairment resulting from psychological injuries sustained by Mr Hoolihan in a motor accident on 12 September 2018. The claimant was re-examined, and the panel was required to form its own opinion on the diagnosis and assessment of his condition. This decision drew on the principles set forth in Insurance Australia Limited v Marsh.

The primary legal issue was the methodology and criteria for assessing permanent impairment in cases of psychological injury. The tribunal needed to determine whether the assessment of Mr Hoolihan's psychological impairment, specifically diagnosed as post-traumatic stress disorder, was conducted correctly in accordance with the psychiatric impairment rating scale (PIRS) categories. The tribunal's role was to ensure that the assessment was made in a manner consistent with established legal precedents and guidelines.

In its reasoning, the tribunal applied the principles from Insurance Australia Limited v Marsh, emphasising that the panel must make its own assessment of the claimant's condition. The tribunal found that the original assessment of Mr Hoolihan's psychological impairment was flawed and did not adequately consider all relevant factors. The tribunal conducted its own assessment and determined that Mr Hoolihan's permanent impairment due to his psychological injuries should be rated at 8%, revoking the original assessment.

The tribunal's final orders included the revocation of the original assessment of Mr Hoolihan's psychological impairment and the substitution of an assessment rating his permanent impairment at 8%. This decision underscores the importance of independent, thorough assessments in cases involving psychological injuries and the need for tribunals to apply legal principles consistently.

Orders