Hassan v AAI Limited t/as GIO - [2025] NSWPICMP 82

DETERMINATION OF REVIEW PANEL
CITATION:	Hassan v AAI Limited t/as GIO [2025] NSWPICMP 82
CLAIMANT:	Daad Hassan by her next friend Khayria El Hassan
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Mohammed Assem
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	12 February 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; motor accident on 30 July 2020; pedestrian child hit by motor vehicle; claimant suffered extensive left lower limb fractures; the dispute related to whether the degree of permanent impairment was greater than 10%; claimant re-examined; assessment of left lower limb based on muscle wasting in thigh due to knee injury; assessment of loss of movement in left ankle due to extensive fractures; scarring assessed at 4% based on extensive scarring due to injury and surgical procedures; assessment of right lower limb showed reduced range of movement in the ankle and hindfoot; claimant had prolonged inactivity in a wheelchair and otherwise altered gait from surgical procedures causing limping; explanation as to how this would affect right ankle due to lack of activity and limping causing tendons and ligaments on the right side to tighten, contract and shorten; right ankle movements different from previous findings; examination showed consistency on repeated testing and no exaggeration; loss of movement of uninjured right ankle casually related to left ankle injury; Held – claimant’s degree of permanent impairment greater than 10%; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment Certificate WHETHER THE DEGREE OF PERMANENT IMPAIRMENT OF THE INJURED PERSON AS A RESULT OF THE INJURY CAUSED BY THE MOTOR ACCIDENT IS GREATER THAN 10% *THE ASSESSMENT MADE BY THE REVIEW PANEL UNDER S 7.23(1) OF THE MOTOR ACCIDENT INJURIES ACT 2017* IS AS FOLLOWS:** 1. The Panel revokes the medical assessment certificate dated 25 May 2024 and certifies that the degree of permanent impairment that has resulted from the following injuries caused by the motor accident is assessed at 13% and is greater than 10%: · left leg distal and tibial fractures, undisplaced medial malleolus fracture, torn meniscus and various surgical procedures; · right lower leg, and · scarring.

REASONS

BACKGROUND

Ms Hassan (the claimant) was injured in a motor accident on 30 July 2020. The claimant was a pedestrian when she was struck by the insured vehicle.
AAI Ltd (the insurer) insured the owner and/or driver of the motor vehicle for liability to pay to Ms Hassan any damages and/or statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act).
The issue in this medical dispute is whether Ms Hassan’s “degree of permanent impairment as a result of the injury caused by the motor accident is greater than 10%”. This constitutes a medical dispute within the meaning of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
Section 7.21 of the MAI Act provides that the degree of permanent impairment of an injured person is to be made in accordance with the Motor…

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 82
Decision Date: 12 February 2025

CaseChat Overview and Summary

The case of Hassan v AAI Limited t/as GIO involved a dispute between the claimant and the insurer regarding the extent of permanent impairment resulting from a motor accident that occurred on 30 July 2020. The claimant, a pedestrian child, was hit by a motor vehicle and sustained extensive left lower limb fractures. The primary issue before the court was whether the degree of permanent impairment was greater than 10%, as this would determine the extent of the benefits the claimant was entitled to under the Motor Accident Injuries Act 2017.

The court had to decide whether the claimant's injuries warranted a degree of permanent impairment exceeding the 10% threshold. The claimant's re-examination revealed significant muscle wasting in the left thigh due to a knee injury, and a loss of movement in the left ankle resulting from the extensive fractures. The scarring was assessed at 4% based on the injury and surgical procedures. Furthermore, the assessment of the right lower limb showed a reduced range of movement in the ankle and hindfoot, attributed to prolonged inactivity in a wheelchair and an altered gait from the surgical procedures, which caused limping. The claimant's medical expert provided a detailed explanation of how the lack of activity and limping would lead to the tightening, contraction, and shortening of the tendons and ligaments on the right side. The court considered the consistency of the repeated testing and concluded there was no exaggeration in the claimant's condition.

The court found that the claimant's degree of permanent impairment was indeed greater than 10%. It revoked the Medical Assessment Certificate and ordered the insurer to re-evaluate the claimant's condition in line with the court's findings. The insurer was directed to pay the claimant's costs associated with the proceedings.

Orders