CAC v AAI Limited t/as GIO - [2024] NSWPIC 574

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	CAC v AAI Limited t/as GIO [2024] NSWPIC 574
CLAIMANT:	CAC
INSURER:	AAI Limited trading as GIO
MEMBER:	Susan McTegg
DATE OF DECISION:	16 October 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claim for damages; 36-year-old claimant was a driver in a motor vehicle involved in a forceful rear end collision on 5 November 2020; injuries to cervical spine, lumbar spine, bilateral knee injuries; bilateral shoulder injuries; post-traumatic stress disorder; major depressive disorder; agreed whole person impairment greater than 10%; claimant returned to work following accident until she commenced maternity leave in January 2022; she did not return to work thereafter; question as to why not return to work; extent of capacity for work; causation of injury to knees and both shoulders; extent of pre-existing injuries; Held – claimant honest witness; condition deteriorated whilst on maternity leave; incapacity for work due to psychological injury; since August 2022 claimant totally unfit for work; accident caused change in most likely future circumstances; had accident not occurred claimant would have returned to work part time until youngest child commenced school; damages assessed on basis total incapacity until retiring age; discount for vicissitudes increased to 20% to take into account claimant may have developed serious psychological illness independently of accident given her pre-existing generalised anxiety disorder and the remote possibility of a return to work; past economic loss assessed at $64,112.50; future economic loss assessed at $812,450.40; non-economic loss assessed at $450,000; total damages assessed at $1,326,562.90; costs assessed in favour of claimant.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(1) of the Motor Accident Injuries Act 2017 1. On the issue of liability for the claim, the insurer’s insured owed a duty of care to the claimant, breached that duty of care and the claimant sustained injury loss and damage as a result of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act2017, I specify the amount of damages for this claim as $1,326,562.90. . 3. The amount of the claimant’s costs, taking into account the amount of damages assessed in respect of this claim is $97,442.16 inclusive of GST. 4. Attached to this certificate are reasons for my assessment.

REASONS FOR DECISION

INTRODUCTION

On 5 November 2020 [CAC] (the claimant) was driving home from work when the insured vehicle collided heavily with the rear of her vehicle (the accident). Both vehicles sustained extensive damage. The claimant’s vehicle was written off.
The claimant alleges she sustained the following injuries:
(a)    injury to the neck;
(b)    injury to both shoulders;
(c)    injury to the lumbar spine;
(d)    injury to both knees, and
(e)    post-traumatic stress disorder.
I am asked to assess damages pursuant to the provisions of the Motor Accident Injuries Act 2017 (the MAI Act) in respect of the injury sustained by the claimant.
AAI Limited trading as GIO (the insurer) is the relevant insurer with liability to pay any damages to 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: [2024] NSWPIC 574
Decision Date: 16 October 2024

CaseChat Overview and Summary

In the case of CAC v AAI Limited t/as GIO, the plaintiff, a 36-year-old woman, sought damages for injuries sustained in a rear-end collision on 5 November 2020. The defendant, AAI Limited trading as GIO, was the insurer responsible for the damages. The plaintiff experienced injuries to her cervical and lumbar spine, bilateral knee injuries, bilateral shoulder injuries, post-traumatic stress disorder, and major depressive disorder. The primary dispute involved the extent of the plaintiff's capacity for work post-accident, the causation of her knee and shoulder injuries, and the degree of pre-existing injuries.

The court was required to determine the credibility of the plaintiff's testimony regarding her post-accident condition, the extent of her incapacity for work due to psychological injury, and the impact of the accident on her future work capacity. Additionally, the court had to assess the causation of the knee and shoulder injuries, the extent of any pre-existing conditions, and the appropriate discount for vicissitudes considering the plaintiff's pre-existing generalised anxiety disorder.

The court found the plaintiff to be an honest witness and concluded that her condition deteriorated during her maternity leave. The claimant was deemed totally unfit for work due to her psychological injuries since August 2022. The court held that the accident had caused a significant change in her most likely future circumstances, and had the accident not occurred, she would have returned to work part-time until her youngest child commenced school. Damages were assessed based on total incapacity until retirement age, with a 20% discount for vicissitudes to account for the possibility of the plaintiff developing a serious psychological illness independently of the accident. Past economic loss was assessed at $64,112.50, future economic loss at $812,450.40, and non-economic loss at $450,000. The total damages were assessed at $1,326,562.90, with costs awarded in favour of the claimant.

The court's final orders included the assessment of damages totalling $1,326,562.90, and the awarding of costs to the plaintiff. The court also directed the defendant to pay the assessed damages and costs to the plaintiff.

Orders