Khoder v AAI Limited t/as GIO - [2024] NSWPICMP 177

DETERMINATION OF REVIEW PANEL
CITATION:	Khoder v AAI Limited t/as GIO [2024] NSWPICMP 177
CLAIMANT:	Hannah Khoder
INSURER:	AAI Ltd t/as GIO
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Tom Newlyn
MEDICAL ASSESSOR:	Samson Roberts
DATE OF DECISION:	22 March 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute; claimant involved in a motor accident on 19 December 2020 as a rear seat passenger; Claimant re-examined; clinical expertise of the Medical Assessors was that the claimant suffered from an adjustment disorder; the claimant never met DSM-5-TR diagnostic criteria for the diagnosis of enuresis at any time; Held – Medical Assessment Certificate revoked; claimant suffered threshold psychological injury.
DETERMINATIONS MADE:	Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Replacement Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the certificate dated 29 September 2022 and certifies that the psychological injury caused by the motor accident is a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.

REASONS

BACKGROUND

Ms Hannah Khoder (the claimant) was involved in three motor accidents over a short period. The accidents occurred on 19 December 2020 (twice) and on 3 January 2021.
The present proceedings relate to the second accident that occurred on 19 December 2020 (the motor accident). In the motor accident the insured vehicle tried to turn right and impacted into the passenger’s door of the claimant’s vehicle.[1] That accident occurred around 4pm whist the earlier accident that day occurred around 2pm.[2]
[1] Claimant’s bundle, p 53.
[2] Claimant’s bundle, p 52, p 58.
The claimant was also involved in a subsequent motor vehicle accident on 3 January 2021 when the insured vehicle T-boned the claimant’s vehicle at speed (the subsequent motor accident).
AAI Ltd (GIO) insured the owner and driver of the other motor vehicle for liability to pay
Ms Khoder any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issues presently in dispute are whether Ms Khoder’s injury is classified as a “threshold injury” within the meaning of the MAI Act caused by the motor accident.
Pursuant to Schedule 2, cl 2 of the MAI Act, various matters are declared to be medical assessment matters including whether “the injury caused by the motor accident is a threshold injury for the purposes of the Act”.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[3] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[3] Section 7.20 of the MAI Act.
The disputes were referred to Medical Assessor Rickard-Bell who issued a Medical Assessment Certificate dated 29 September 2022 in respect of the motor accident (the medical assessment). Medical Assessor Rickard-Bell concluded that the motor accident caused a minor psychological injury.
Whether a person has only suffered…

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] NSWPICMP 177
Decision Date: 22 March 2024

CaseChat Overview and Summary

The case of Khoder v AAI Limited t/as GIO involved a claimant who was a rear seat passenger in a motor accident on 19 December 2020. The dispute centered around whether the claimant suffered a compensable threshold psychological injury under the Motor Accident Injuries Act 2017. The matter was heard in a relevant Australian court, which had to determine the nature and severity of the claimant's injuries following the accident. The defendant, AAI Limited trading as GIO, contested the severity of the psychological injuries claimed by the plaintiff.

The court was required to address several key legal issues. The primary issue was whether the claimant's psychological condition met the statutory definition of a threshold injury under the Act. This involved assessing the medical evidence provided by the claimant and the defendant, particularly the clinical opinions regarding the claimant's adjustment disorder and the diagnosis of enuresis. The court also had to consider whether the claimant's condition was a direct result of the motor accident and whether it met the criteria for a compensable injury under the Act.

In its reasoning, the court examined the medical evidence and the clinical expertise of the Medical Assessors. The court found that the claimant's condition was indeed an adjustment disorder, but not enuresis. The court also determined that the claimant's psychological injury was a direct consequence of the motor accident and met the criteria for a compensable threshold injury. Consequently, the court revoked the Medical Assessment Certificate and found that the claimant had suffered a threshold psychological injury. The court's decision was based on a careful analysis of the medical evidence and the statutory requirements of the Motor Accident Injuries Act 2017.

The final orders of the court included the revocation of the Medical Assessment Certificate and the recognition of the claimant's psychological injury as a compensable threshold injury under the Act. The court's decision provided clarity on the claimant's entitlement to compensation for the injuries sustained in the motor accident.

Orders