Forrester v AAI Limited t/as GIO - [2025] NSWPICMP 84

DETERMINATION OF REVIEW PANEL
CITATION:	Forrester v AAI Limited t/as GIO [2025] NSWPICMP 84
CLAIMANT:	George Forrester
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Jeremy Lum
MEDICAL ASSESSOR:	Mohammed Assem
MEDICAL ASSESSOR:	Les Barnsley
DATE OF DECISION:	12 February 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury; whether alleged injuries to the cervical spine, lumbar spine, and bilateral shoulders are caused by the motor accident and are threshold or non-threshold injuries; Held – lumbar spine injury not caused although mechanism of accident “could” have caused a lumbar spine injury; claimant denied any change to his pre-existing back symptoms following the motor accident; cervical spine and bilaterial shoulders causally related and are threshold injuries; David v Allianz Australia Insurance Ltd applied; Medical Assessment Certificate revoked; injury to the lumbar spine was not caused by the motor accident.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Certificate issued under Division 7.5 of the Motor Accident Injuries Act 2017. The Review Panel: 1. Revokes the certificate issued by Medical Assessor Home dated 18 June 2024. 2. Determines that the following injuries caused by the motor accident: (a) cervical spine: aggravation of underlying degenerative change; non-verifiable radicular complaints in the upper extremities; (b) right shoulder: referred pain from the neck, and (c) left shoulder: referred pain from the neck are threshold injuries for the purposes of the Motor Accident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

George Forrester (the claimant) was involved in a motor accident on 1 June 2023. He was driving a car in the outside lane of a two laned roundabout when a car in the inside lane cut across his path and hit his car.
The claimant says he injured his cervical spine, lumbar spine, both shoulders and suffered psychiatric disorders in the accident.
He made a claim for statutory benefits with GIO, the third-party insurer of the vehicle that he says caused the accident.
A medical dispute arose about whether the claimant’s injuries were threshold or non-threshold injuries and the matter was referred to the Personal Injury Commission (Commission) for medical assessment.
On 18 June 2024, Medical Assessor Alan Home found the claimant’s physical injuries to be caused by the motor accident and that they were threshold injuries.
The claimant lodged an application with the Commission seeking review of the Medical Assessor’s decision. This was allowed by the President’s Delegate and this Review Panel was convened to conduct the review.[1]
[1] Section 7.26(5) of the Motor Accident Injuries Act 2017 (MAI Act).

THE REVIEW

The review of the medical assessment is not limited to a review of only that aspect of the assessment that is alleged to be incorrect and is to be by way of a new assessment of all the matters with which the medical assessment is concerned.[2]
[2] Section 7.26(6) of the MAI Act.
The Panel may confirm the certificate of assessment or revoke that certificate and issue a new certificate as to the matters concerned.[3]
[3] Section 7.26(7) of 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] NSWPICMP 84
Decision Date: 12 February 2025

CaseChat Overview and Summary

The case of Forrester v AAI Limited t/as GIO involved a dispute regarding the causal link between a motor accident and specific injuries claimed by the plaintiff, Forrester. The matter was heard in the Supreme Court of New South Wales. The plaintiff argued that injuries to his cervical spine, lumbar spine, and bilateral shoulders were caused by the accident and were of a nature to qualify as threshold injuries under the Motor Accident Injuries Act 2017. The defendant, AAI Limited trading as GIO, disputed the causation and severity of these injuries.

The court was required to determine whether the injuries claimed by the plaintiff were indeed caused by the motor accident and whether they qualified as threshold injuries. This involved examining the medical evidence, the plaintiff's history of back issues, and the nature of the accident. The primary legal issue was whether the injuries to the lumbar spine, cervical spine, and bilateral shoulders were causally related to the accident and met the threshold criteria set out in the legislation.

The court found that while the mechanism of the accident could have caused a lumbar spine injury, the plaintiff denied any change to his pre-existing back symptoms following the accident. Therefore, the court concluded that the lumbar spine injury was not caused by the accident. However, the injuries to the cervical spine and bilateral shoulders were found to be causally related to the accident and qualified as threshold injuries. The court applied the principles from David v Allianz Australia Insurance Ltd in its reasoning, and consequently, the Medical Assessment Certificate was revoked with respect to the lumbar spine injury. The final orders of the court were that the injury to the lumbar spine was not caused by the motor accident, while the injuries to the cervical spine and bilateral shoulders were deemed to be causally related and were threshold injuries.

Orders