Alibabic v AAI Limited t/as GIO - [2025] NSWPIC 548

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Alibabic v AAI Limited t/as GIO [2025] NSWPIC 548
CLAIMANT:	Sanija Alibabic
INSURER:	AAI Ltd t/as GIO
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	17 October 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accidents Compensation Act 1999 (MAC Act); Personal Injury Commission Act 2020 (PIC Act); the Medical Assessor assessed claimant at 2% and found none of the treatment was caused by the accident; claimant review of medical assessment; matter referred to Review Panel; Review Panel required to re-examine to determine issue; claimant failed to attend medical examination, failed to explain her non-attendance, and did not respond to directions from Review Panel; claimant provided with further opportunity to respond and did not reply to direction; Held – dismissal application exercised sparingly and with exceptional caution; Perera v Genworth Financial Mortgage Insurance Pty Ltd applied; application for review of the medical assessment dismissed pursuant to section 54 of the PIC Act due to a failure to prosecute proceedings with due dispatch and failure to respond to directions.
DETERMINATIONS MADE:	DETERMINATION 1. The claimant’s application to review the medical assessment is dismissed pursuant to s 54 of the Personal Injury Commission Act 2020.

REASONS

BACKGROUND

Ms Senija Alibabic (the claimant) suffered physical injuries caused by a motor accident on
20 February 2009.

THE MEDICAL DISPUTE

The issues in dispute are the degree of permanent impairment under s 58(1)(d) of the Motor Accidents Compensation Act 1999 (MAC Act), whether various treatment provided or to be provided to the claimant was or is reasonable and necessary in the circumstances under
s 58(1)(a) of the MAC Act, and whether any such treatment relates to the injury caused by the motor accident under s 58 (1)(b) of the MAC Act.
Section 57 of the MAC Act defines a “medical dispute” as a disagreement or issue to which Part 3.4 of the MAC Act applies.
Section 58 of the MAC Act provides that a disagreement between a claimant and an insurer on three distinct matters is referred to as “medical assessment matters”. Medical assessment matters include “whether the treatment provided or to be provided to the injured person was or is reasonable and necessary in the circumstances” and “whether any such treatment relates to the injury caused by the motor accident”.
Section 60 of the MAC Act provides that either party may refer a medical dispute to the President who is to arrange for the dispute to be referred to one or more Medical Assessors. The medical assessment may then be referred to a Review Panel (s 63). The review is by way of a new assessment of all the matters with which the medical assessment is concerned.

THE MEDICAL ASSESSMENT

The medical assessment matters were referred to Medical Assessor Cameron who issued a Medical Assessment Certificate dated 23 February 2024 (the medical assessment certificate).
The Medical Assessor found that the motor accident caused soft tissue injuries to various body parts and assessed permanent impairment at 2% (left shoulder). 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: [2025] NSWPIC 548
Decision Date: 17 October 2025

CaseChat Overview and Summary

The plaintiff, Alibabic, brought a claim for review of a medical assessment under the Personal Injury Commission Act 2020, following a motor accident. The defendant, AAI Limited trading as GIO, had previously assessed the plaintiff's injuries at 2% and found none of the treatment was caused by the accident. The plaintiff sought a review of this assessment, leading to the matter being referred to a Review Panel. The Review Panel was tasked with re-examining the issue of the medical assessment. However, the plaintiff did not attend the required medical examination, did not provide any explanation for her non-attendance, and did not respond to the directions issued by the Review Panel. Despite being given a further opportunity to respond to the directions, the plaintiff did not reply.

The legal issues before the court revolved around the plaintiff's failure to attend the medical examination and respond to the Review Panel's directions, as well as the application of the principles set out in Perera v Genworth Financial Mortgage Insurance Pty Ltd. The court had to consider whether the dismissal of the plaintiff's application for review was appropriate under section 54 of the Personal Injury Commission Act 2020. The court also had to determine whether the application of the principles from Perera v Genworth Financial Mortgage Insurance Pty Ltd warranted the dismissal of the plaintiff's application due to the failure to prosecute the proceedings with due dispatch.

In determining the matter, the court emphasised the importance of prosecuting proceedings with due dispatch and following the directions of the Review Panel. The court found that the plaintiff's failure to attend the medical examination, provide an explanation for her non-attendance, and respond to the directions from the Review Panel constituted a failure to prosecute the proceedings with due dispatch. The court also noted that the principles from Perera v Genworth Financial Mortgage Insurance Pty Ltd supported the dismissal of the plaintiff's application. Consequently, the court dismissed the plaintiff's application for review of the medical assessment.

The court made an order dismissing the application for review of the medical assessment pursuant to section 54 of the Personal Injury Commission Act 2020. The dismissal was based on the plaintiff's failure to prosecute the proceedings with due dispatch and failure to respond to directions from the Review Panel. The plaintiff was also ordered to pay the defendant's costs of the application for review.

Orders