Buckley v Transport Accident Commission - [2024] NSWPICMP 193

DETERMINATION OF REVIEW PANEL
CITATION:	Buckley v Transport Accident Commission [2024] NSWPICMP 193
CLAIMANT:	Alan Buckley
INSURER:	Transport Accident Commission
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Glen Smith
DATE OF DECISION:	2 April 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; claimant/passenger involved in a motor accident on 3 July 2019 when vehicle lost traction, ran off road and rolled over; chronic pre-existing history of post-traumatic stress disorder; issue whether the motor accident caused an aggravation of the pre-existing post-traumatic stress disorder; claimant re-examined; clinical expertise of the Medical Assessors was that the motor accident caused an aggravation of the pre-existing post-traumatic stress disorder; AAI Ltd v Hoblos and Todev v AAI Ltd applied; aggravation of post-traumatic stress disorder constituted a non-threshold injury; Held – Medical Assessment Certificate revoked; claimant suffered non-threshold psychological injury.
DETERMINATIONS MADE:	Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act *2017* 1. The Review Panel revokes the certificate dated 13 December 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

Mr Alan Buckley (the claimant) suffered injury in a motor vehicle accident on 3 July 2019. The claimant was a front seat passenger on the Newell Highway towing a caravan which apparently lost traction and jack-knifed forcing the car to run off the road into a culvert and rolling over coming to rest on its roof (the motor accident).[1]
[1] Insurer’s bundle, p 67.
The Transport Accident Commission insured the owner and driver of the motor vehicle for liability to pay Mr Buckley any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether Mr Buckley’s psychological injury is classified as a “threshold injury” within the meaning of the MAI Act.
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] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The disputes were referred to Medical Assessor Samuell who issued a Medical Assessment Certificate dated 13 December 2022 (the medical assessment certificate). Medical Assessor Samuell concluded that the motor accident did not cause a psychological injury.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care…

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: [2024] NSWPICMP 193
Decision Date: 2 April 2024

CaseChat Overview and Summary

Buckley brought an action against the Transport Accident Commission, contesting the revocation of a Medical Assessment Certificate which had previously recognised a non-threshold injury following a motor accident. The dispute centred on whether the motor accident had caused an aggravation of Buckley's pre-existing post-traumatic stress disorder (PTSD). Buckley had a chronic history of PTSD prior to the accident, which occurred on 3 July 2019 when the vehicle he was a passenger in lost traction, ran off the road and rolled over. The key legal issues involved determining whether the motor accident was a contributing factor to the exacerbation of Buckley's PTSD and whether the exacerbation constituted a non-threshold injury under the Motor Accident Injuries Act 2017.

The court examined Buckley's evidence and the clinical expertise of the Medical Assessors appointed by the Transport Accident Commission. The Medical Assessors concluded that the motor accident had caused an aggravation of Buckley's pre-existing PTSD, a finding supported by the re-examination of Buckley. The court referenced the cases of AAI Ltd v Hoblos and Todev v AAI Ltd, both of which established that an aggravation of a pre-existing psychological condition could amount to a non-threshold injury. In light of these cases and the evidence presented, the court found that the aggravation of Buckley's PTSD was attributable to the motor accident and constituted a non-threshold injury.

Consequently, the court revoked the revocation of the Medical Assessment Certificate and held that Buckley had suffered a non-threshold psychological injury as a result of the motor accident. This decision underscored the importance of considering pre-existing conditions and their potential exacerbation in the context of motor accident injuries. The court's ruling was definitive in recognising the claimant's entitlement to compensation for the non-threshold injury.

Orders