Hana v AAI Ltd t/as AAMI - [2022] NSWPICMR 15

CERTIFICATE OF DETERMINATION OF MERIT REVIEWER
CITATION:	Hana v AAI Ltd t/as AAMI [2022] NSWPICMR 15
CLAIMANT:	Jacklin Hana
INSURER:	AAI Ltd t/as AAMI
MERIT REVIEWER:	Ray Plibersek
DATE OF DECISION:	28 February 2022
CATCHWORDS:	MOTOR ACCIDENTS- Merit review; legal costs for minor injury dispute; physical and psychological injury; claim for maximum regulated legal costs; sections 8.3 and 8.10 Motor Accident Injuries Act 2017 (MAI Act); Held- claimant not awarded maximum regulated legal costs; entitlement to recover legal costs under section 8.10 of the MAI Act not dependent on whether or not the claimant was successful at medical assessment; no exceptional circumstances exist to justify additional legal costs.
DETERMINATIONS MADE:	The Insurer is to pay the Claimant’s reasonable and necessary legal costs assessed in accordance with the Motor Accident Injuries Act 2017 (the MAI Act) and the Motor Accident Injuries Regulation 2017 (the Regulations) in the amount of $1,400 plus GST totalling $1,540 in respect of the application for medical assessment (minor injury- physical and psychological injury).

Issued under section 7.13(4) of the Motor Accident Injuries Act2017

BACKGROUND

There is a dispute between Jacklin Hana (the Claimant) and AAI Ltd t/as AAMI (the Insurer) about the payment of her legal costs for a medical assessment about her treatment and care.
The Claimant was injured in a motor vehicle accident on 19 January 2019. She told Medical Assessor Dr Home (A 5) that she was the driving a car that was stationary in a line of traffic on Kurrajong Rd, Preston. Her vehicle was struck from behind by a car and pushed into the car in front. The airbags of her car did not deploy and she was able to get out of the car without assistance.
After the accident the Claimant was able to get out of her car and collect her daughter from day care and go home, (A 5). She then went to Liverpool Hospital. At the hospital the Claimant reported injuries included: neck, lower back pain and headache. She was discharged the next day after treatment for her pain.
On 29 July 2019 the Insurer advised the Claimant that it considered that her injuries were ‘minor injuries’.
On 29 November 2019 the Insurer advised the Claimant of the outcome of the Insurer’s internal review as follows (A 4):
“Outcome of internal review
1.      The decision of the GIO Claims Team has been affirmed.
2. Your injuries fall under the definition of a ‘minor injury’ as per the Motor Accident Injuries Act 2017 (NSW).
3.      Your entitlement to weekly benefits and treatment expenses will cease at 26 weeks.
4.      You will not be entitled to make a claim for damages.
5. You may be entitled to further treatment under Section 3.28(3) of the Motor Accident Injuries Act (NSW) 2017.”
The Claimant was medically assessed by Assessor Dr Alan Home on 27 March 2021 in regard to her physical injuries, (A 5). Dr Home assessed the Claimant and concluded that her injured cervical…

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: [2022] NSWPICMR 15
Decision Date: 28 February 2022

CaseChat Overview and Summary

The case of Hana v AAI Ltd t/as AAMI involved a dispute concerning legal costs for a minor injury claim. The plaintiff sought to recover maximum regulated legal costs for both physical and psychological injuries. The matter was before the court for a merit review, and the defendant contested the plaintiff's entitlement to the maximum legal costs as prescribed under the Motor Accident Injuries Act 2017.

The primary legal issue was whether the plaintiff was entitled to recover maximum regulated legal costs under section 8.3 of the MAI Act, despite not being successful at a medical assessment, and if there were exceptional circumstances justifying additional costs under section 8.10 of the Act. The court had to consider whether the plaintiff's entitlement to recover legal costs was contingent upon the outcome of the medical assessment, and whether any exceptional circumstances existed that would warrant an award of additional costs beyond the regulated maximum.

The court found that the plaintiff was not entitled to the maximum regulated legal costs as provided under section 8.3 of the MAI Act. It held that the plaintiff's entitlement to recover legal costs under section 8.10 of the Act was not dependent on the outcome of the medical assessment. Additionally, the court determined that there were no exceptional circumstances present that would justify awarding additional legal costs beyond the regulated maximum. Consequently, the plaintiff's claim for maximum regulated legal costs was denied.

The court ordered that the plaintiff's recovery of legal costs be limited to the regulated maximum as prescribed under the MAI Act, without any additional costs for exceptional circumstances.

Orders