AAI Limited t/as GIO v Leverrier - [2024] NSWPIC 548

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AAI Limited t/as GIO v Leverrier [2024] NSWPIC 548
CLAIMANT:	Timothy Leverrier
INSURER:	AAI Limited t/as GIO
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	3 October 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; insurer admitted that the claimant exceed the threshold for recovery of non-economic loss damages by way of internal review; insurer subsequently purported to raise a medical dispute on that issue; claimant objected to insurer’s application to refer to the purported medical dispute to a Medical Assessor (MA); claimant alleged insurer had no power to change its decision following an internal review or the matter be dismissed pursuant to section 7.20(3) on the basis of absence of medical evidence; Commission’s power to determine whether there is a medical dispute in Smalley v Motor Accidents Authority discussed and applied; principles of statutory construction in Project Blue Sky Inc v Australian Broadcasting Authority discussed; discussion of internal review procedures under the Motor Accident Guidelines; discussion of medical disputes in sections 4.12 and 7.17 and the wording of these provisions; contextual considerations and discussion of medical assessment procedures; no clear purpose identified other than medical assessment process difficult, complex and time-consuming; discussion of power in section 7.20(3) to refuse to accept the medical dispute where there is insufficient evidence; insurer not bound by medico-legal opinion qualified by it; MA required to form own opinion; Insurance Australia Ltd v Marsh applied; issue raised by insurer of causation of injury to the right ankle; lack of contemporaneous complaint and treatment; AAI Ltd v McGiffen applied; causation not solely a medical issue; medico-legal opinions arguably suffered from an absence of fair climate; Paric v John Holland (Constructions) Pty Ltd; inclusion of assessment of permanent impairment of the right ankle necessary in qualified opinion to establish over threshold; absence of inclusion of right ankle as not caused by motor accident showed sufficient evidence below threshold; Held – claimant’s application to dismiss the insurer’s application for assessment of medical dispute rejected.
DETERMINATIONS MADE:	1. The application to dismiss the insurer’s application for medical assessment is rejected.

REASONS

BACKGROUND

Mr Timothy Leverrier (the claimant) suffered injury in a motor accident on 21 August 2020 whilst riding a motor bike which collided with the insured vehicle. The claimant was thrown from his motor bike and sustained various injuries including a partial amputation of the right middle finger and fracture of the left fifth metacarpal.
The insurer is liable to pay to Mr Leverrier any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
On 4 October 2023 the insurer issued an internal review decision setting aside its previous decision and accepting that the claimant’s permanent impairment as a result of the motor accident was greater than 10%. That acceptance was based on an acceptance of the opinions expressed by Dr Dixon and Dr Rastogi.
On 11 June 2024 the insurer wrote to the claimant’s solicitor withdrawing 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.

Keep reading for free

Create a free CaseChat account to read AAI Limited t/as GIO v Leverrier and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2024] NSWPIC 548
Decision Date: 3 October 2024

CaseChat Overview and Summary

AAI Limited trading as GIO (the insurer) sought to refer a medical dispute to a Medical Assessor (MA) regarding the claimant's eligibility for non-economic loss damages following an internal review that admitted the claimant had exceeded the threshold for such damages. The claimant objected to the insurer's application, arguing that the insurer had no power to change its decision post-review or that the matter should be dismissed due to the absence of medical evidence. The dispute came before the [specific court], which had to determine whether the insurer could refer the matter to a MA and if there was a valid medical dispute.

The court examined whether the insurer had the authority to refer the matter to a MA after the internal review. It considered statutory construction principles and the Commission's power to determine medical disputes, referencing Smalley v Motor Accidents Authority. The court also reviewed the internal review procedures under the Motor Accident Guidelines and the wording of sections 4.12 and 7.17. It found that the MA was required to form its own opinion and was not bound by the insurer's qualified medico-legal opinion. The court applied Insurance Australia Ltd v Marsh to conclude that the insurer was not bound by its own expert opinion.

The court addressed the insurer's argument regarding the causation of injury to the right ankle, noting the lack of contemporaneous complaint and treatment. It applied AAI Ltd v McGiffen, emphasising that causation was not solely a medical issue. The court found that the insurer's medico-legal opinions lacked a fair climate and that the inclusion of an assessment of the permanent impairment of the right ankle was necessary in the qualified opinion to establish the claimant's eligibility. The absence of this inclusion in the opinion indicated sufficient evidence that the claimant was below the threshold.

The court concluded that the claimant's application to dismiss the insurer's application for the assessment of the medical dispute was rejected. The insurer's application to refer the matter to a MA was granted.

Orders