Aleksic v AAI Limited t/as GIO - [2023] NSWPICMP 466

DETERMINATION OF REVIEW PANEL
CITATION:	Aleksic v AAI Limited t/as GIO [2023] NSWPICMP 466
CLAIMANT:	Katica Aleksic
INSURER:	AAI Ltd t/as GIO
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Alexy Sidorov
DATE OF DECISION:	21 September 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; injury on 1 February 2020 from sideswipe collision; dispute related to whether psychological injury was a threshold injury; claimant involved in a further motor accident on 24 February 2020; claimant had pre-existing major depressive disorder in remission; claimant re-examined; effects of each motor accident must be considered separately; sufficient if motor accident aggravated, accelerated or exacerbated the pre-existing psychological condition; AAI Ltd v Hoblos and Todev v AAI Ltd applied; contemporaneous clinical records showed increase in psychological symptoms following motor accident; clinical expertise of Medical Assessors from Panel examining claimant supported finding that motor accident aggravated pre-existing psychological condition; nature of motor accident capable of causing or aggravating psychological condition; Held – original assessment revoked; claimant assessed as suffered from non-threshold psychological injury.
DETERMINATIONS MADE:	Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act *2017* The Review Panel revokes the certificate dated 10 May 2022 and certifies that the psychological injury caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.

REASONS

BACKGROUND

Ms Katica Aleksic (the claimant) suffered injury in a motor accident on 1 February 2020 when the insured vehicle collided with the passenger side of the claimant’s vehicle (the motor accident).
The claimant also suffered injury in a subsequent motor vehicle accident on
[1] Claimant’s bundle, p 2.
24 February 2020 when a kangaroo collided with her vehicle (the subsequent motor accident).[1]
AAI Ltd (GIO) insured the owner and driver of the other motor vehicle for liability to pay
Ms Aleksic any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
QBE Insurance (Australia) Ltd (QBE) is the insurer liable for the subsequent motor accident.
The issues presently in dispute are whether Ms Aleksic’s psychological injury is classified as a “threshold injury” within the meaning of the MAI Act caused by the motor accident. There is also a medical dispute concerning whether the subsequent motor accident caused a threshold injury.
The Panel is issuing separate reasons for the motor accident and the subsequent motor accident. However, the Panel has adopted and repeated the summary of evidence, submissions and some findings in the reasons for the subsequent motor accident.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[2]…

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 466
Decision Date: 21 September 2023

CaseChat Overview and Summary

The case of Aleksic v AAI Limited t/as GIO involves a dispute regarding the eligibility of compensation for psychological injuries sustained in a motor accident. The claimant was involved in a sideswipe collision on 1 February 2020, which was the subject of a claim for psychological injury under the Motor Accident Injuries Act 2017. The claimant had a history of major depressive disorder in remission prior to the accident and was involved in another motor accident on 24 February 2020. The court had to determine whether the psychological injury sustained in the first accident was a threshold injury under the Act.

The central legal issue before the court was whether the initial motor accident caused or significantly aggravated the claimant's pre-existing psychological condition. The court was required to consider the effects of each motor accident separately and determine if the first accident was the primary cause of the psychological injury, or if it merely aggravated a pre-existing condition. The court had to apply the principles established in AAI Ltd v Hoblos and Todev v AAI Ltd, which emphasised that it is sufficient if the motor accident aggravated, accelerated, or exacerbated the pre-existing condition. The court also needed to assess the contemporaneous clinical records and the clinical expertise of the Medical Assessors from the Panel to establish the causal link between the accident and the psychological injury.

In reaching its decision, the court found that the motor accident on 1 February 2020 had caused a sufficient increase in the claimant's psychological symptoms, as evidenced by the contemporaneous clinical records and the clinical expertise of the Medical Assessors. The court concluded that the nature of the motor accident was such that it could cause or aggravate a psychological condition. Applying the relevant legal principles, the court revoked the original assessment and determined that the claimant had suffered from a non-threshold psychological injury as a result of the accident. The court found in favour of the claimant, assessing them as having suffered from a compensable psychological injury arising from the first motor accident.

Orders