Boom v AAI Limited t/as GIO - [2023] NSWPICMP 29

DETERMINATION OF REVIEW PANEL
CITATION:	Boom v AAI Limited t/as GIO [2023] NSWPICMP 29
CLAIMANT:	Craig Boom
INSURER:	AAI Limited t/as GIO
REVIEW Panel
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Doron Samuell
MEDICAL ASSESSOR:	Wayne Mason
DATE OF DECISION:	31 January 2023
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accidents Compensation Act 1999; claimant was a passenger and trainee driver in a bus which stopped suddenly; injuries reported; shoulders and psychological injury; Held – original Medical Assessment Certificate affirmed; claimant did not sustain any psychological injury as a result of or caused by the motor accident; Review Panel found no exacerbation of his pre-existing disorder due to the bus accident; no whole person permanent impairment psychological injury attributable to the bus accident; claimant had a past history of chronic psychological conditions prior to the bus accident; after the bus accident the claimant completed a technical and further education (TAFE) course, commenced work and had no record of psychological difficulty for some months following the accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Issued under Part 3.4 of theMotor Accidents Compensation Act 1999 The Review Panel: 1. Affirms the certificate of Medical Assessor Christopher Rikard-Bell dated 22 October 2021. 2. Finds that the claimant did not sustain any psychological injury as a result of or caused by the motor accident on 21 November 2017.

STATEMENT OF REASONS

INTRODUCTION

On 21 November 2017 Mr Craig Boom (the claimant) was standing up and traveling in a bus being taught to drive the bus. He was working in training position for the State Transit Authority (STA). Mr Boom said the bus stopped suddenly and without warning. The sudden stop resulted in his right shoulder hitting a pole in the bus which caused him to strain his left shoulder. Mr Boom reported injuries to his left and right shoulders and also psychological injuries.
The owner and driver of the bus was insured by AAI Ltd t/as GIO (the insurer) who had liability to pay to the claimant any damages and/or statutory compensation entitlements under the Motor Accidents Compensation Act 1999 (the MAC Act).
There is a dispute about whether the degree of permanent impairment sustained by the claimant as a result of psychological injury caused by an accident is greater than 10%. This constitutes a medical dispute within the meaning of the MAC Act.[1] The degree of permanent impairment is referred to in sub-section 58(1)(d) of the MAC Act.
[1] Sections 57 and 58 of the MAC Act.
The current dispute is about a determination made by Medical Assessor Christopher Rikard-Bell assessment dated 22 October 2021. The certificate states that the date of assessment was 28 October 2021. In its written submissions the solicitors for the claimant note that the certificate and reasons were not provided to the parties until 8 November 2021[2].
[2] Claimant bundle AD 5, submissions p 2
Medical Assessor Rikard-Bell certificate concluded that there is no diagnosable psychiatric injury attributable to the motor vehicle accident.[3]
[3] Claimant bundle AD 5, pp 9-21.
A delegate of…

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 29
Decision Date: 31 January 2023

CaseChat Overview and Summary

The matter of Boom v AAI Limited t/as GIO was adjudicated in an Australian court where the plaintiff, Boom, contested the defendant's decision to deny certain compensation claims following a motor accident. Boom, a passenger and trainee driver, was involved in a bus incident where the vehicle stopped abruptly, resulting in injuries that he reported. He sought compensation for shoulder injuries and alleged psychological trauma stemming from the accident. The defendant, AAI Limited trading as GIO, contested these claims, particularly regarding the psychological injury.

The court was tasked with determining whether Boom's reported psychological injuries were caused by or exacerbated due to the motor accident, as well as whether these injuries qualified for compensation under the Motor Accidents Compensation Act 1999. The court had to scrutinise the evidence and the findings of the Medical Assessment Certificate and the Review Panel, which had previously found no exacerbation of Boom's pre-existing psychological conditions attributable to the bus accident. The court also needed to consider Boom's post-accident activities, such as completing a TAFE course and starting work, which suggested no immediate psychological difficulties.

In its reasoning, the court upheld the findings of the Review Panel, noting that Boom had a history of chronic psychological conditions prior to the accident. The court concluded that there was no evidence to support the claim that the bus accident caused or exacerbated his psychological condition. The panel's findings were corroborated by Boom's post-accident behaviour, which indicated no significant psychological impairment. Consequently, the court determined that Boom did not sustain any psychological injury due to the accident, and thus, his claim for psychological injury compensation was dismissed.

The final orders of the court affirmed the original decision of the Review Panel, denying Boom's claims for compensation regarding the psychological injuries sustained in the motor accident. The court's decision was based on the lack of evidence linking the accident to any exacerbation of his pre-existing conditions and his subsequent activities that did not reflect ongoing psychological difficulties.

Orders