Kewin v AAI Limited t/as AAMI - [2025] NSWPICMP 635

DETERMINATION OF REVIEW PANEL
CITATION:	Kewin v AAI Limited t/as AAMI & Anor [2025] NSWPICMP 635
CLAIMANT:	Stephen Kewin
FIRST INSURER:	AAI limited t/as AAMI
SECOND INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Gary Victor Patterson
MEDICAL ASSESSOR:	Michael Couch
MEDICAL ASSESSOR:	Les Barnsley
DATE OF DECISION:	22 August 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold injury dispute; claimant was driving a work vehicle as a courier on the date of injury; Medical Assessor (MA) certified that referred injuries to cervical spine, lumbar spine, left wrist and hand, and right elbow are threshold injuries caused by the subject accident; MA found that injuries to both shoulders were not caused by the accident; bio-mechanical engineering evidence as to mechanism of accident and causation of injuries; Held –Review Panel did not accept claimant’s evidence as to circumstances of accident and mechanism of right elbow injury; Review Panel found accident-related injuries to cervical spine, left wrist and hand are threshold injuries; Review Panel found injuries to the lumbar spine, both shoulders, and right elbow were not caused by subject accident; symptoms likely caused by underlying degenerative conditions; all are otherwise threshold injuries; certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE REVIEW PANEL ASSESSMENT OF THRESHOLD INJURY Certificate issued under s 7.23(1) of the Motor Accident Injuries Act2017 (the Act) 1. The Review Panel revokes the certificate dated 29 November 2024 and issues a new certificate determining that: (a) the following injury caused by the motor accident: · cervical spine – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes; · left wrist – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes; · left hand – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes; is a THRESHOLD INJURY for the purposes of the Act. (b) the following injuries referred for assessment have been assessed and determined to be not caused by the motor accident: · lumbar spine – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes; · left shoulder – orthopaedic injury, aggravation, acceleration of degenerative changes, pain and restricted movement derived from the cervical spine injury; · right shoulder – orthopaedic injury, aggravation, acceleration of degenerative changes, pain and restricted movement derived from the cervical spine injury; · right elbow – soft tissue injury, orthopaedic injury, aggravation and acceleration of degenerative changes. A decision as to whether these injuries are a THRESHOLD INJURY is not required. However, the Panel is satisfied that each of those injuries relevantly is a threshold injury, for the purposes of the Act.

STATEMENT OF REASONS

INTRODUCTION

Stephen John Kewin (the claimant) was driving a work vehicle as a courier on the date of injury. He was stationary on the Hume Highway, at Ashfield, waiting to turn right in an angle into Thomas Street, when his vehicle was rear-ended by a semi-trailer loaded with two shipping containers. His vehicle was pushed across the intersection and struck a safety wall. The claimant says the force…

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 635
Decision Date: 22 August 2025

CaseChat Overview and Summary

The matter of Kewin v AAI Limited t/as AAMI involved a dispute over the classification of injuries sustained by the claimant, a courier, during a motor accident. The claimant argued that the injuries to their cervical spine, lumbar spine, left wrist and hand, and right elbow were caused by the accident, while the insurer contended that these injuries were not related to the accident. The dispute was adjudicated by the Motor Accident Injuries Commission (MAIC) Review Panel under the Motor Accident Injuries Act 2017.

The legal issues before the Review Panel centred on the determination of whether the referred injuries were threshold injuries caused by the accident. This involved assessing the evidence provided, including the Medical Assessor's certification, bio-mechanical engineering evidence, and the claimant's account of the accident. The Review Panel had to determine the credibility of the claimant's evidence and the causation of the injuries, particularly in relation to the right elbow injury, and whether the symptoms were likely caused by underlying degenerative conditions.

The Review Panel did not accept the claimant's evidence regarding the circumstances of the accident and the mechanism of the right elbow injury. They found that the injuries to the cervical spine, left wrist and hand were related to the accident and constituted threshold injuries. However, the Review Panel determined that the injuries to the lumbar spine, both shoulders, and the right elbow were not caused by the subject accident. Instead, the symptoms were likely due to underlying degenerative conditions. Consequently, the Review Panel revoked the certificate.

The final orders of the Review Panel were that the claimant's injuries to the cervical spine, left wrist and hand were accident-related threshold injuries. The claimant was to receive compensation for these injuries, while the other injuries were deemed unrelated to the accident. The claimant's certificate was revoked, and the insurer was directed to pay the claimant for the certified injuries.

Orders