Lukic v AAI Limited t/as AAMI - [2024] NSWPIC 502

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lukic v AAI Limited t/as AAMI [2024] NSWPIC 502
CLAIMANT:	Radomir Lukic
INSURER:	AAI Limited t/as AAMI
MEMBER:	Anthony Scarcella
DATE OF DECISION:	11 September 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; assessment of a claim for damages; liability not disputed; physical and psychiatric/psychological injuries; no entitlement to non-economic loss; claim for past and future economic loss; claimant’s credit and reliability in issue; consideration of desktop surveillance reports and accompanying video surveillance; consideration and application of section 4.7; Medlin v State Government Insurance Commission, Husher v Husher, and Penrith City Council v Parks considered and applied; Held – claimant is entitled to damages for past and future economic loss to statutory retirement age; damages assessed accordingly; insurer to pay the claimant’s legal costs and disbursements as agreed or assessed.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The amount of damages for the claim is $278,831. 2. The insurer is to pay the claimant’s legal costs and disbursements in accordance with Part 8 of the Motor Accident Injuries Act 2017 and the Motor Accidents Injuries Regulation 2017 as agreed or assessed. A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

BACKGROUND

This dispute relates to an application for an assessment of a claim for damages (the Application) under s 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 7 October 2020 (the motor accident).
The claimant, Mr Radomir Lukic, is a 64-year-old man, who alleges he suffered physical and psychological injuries as a result of the motor accident.
On 6 November 2020, Mr Lukic made an application for personal injury benefits in respect of the motor accident. The relevant compulsory third-party insurer is AAI Limited t/as AAMI (the insurer).
Mr Lukic made an application for damages under common law. In a liability notice dated 15 September 2022, the insurer admitted liability, including an admission of breach of duty of care and that Mr Lukic had suffered some injury, loss or damage as a result of the driver of the vehicle at fault.
On 2 May 2023, Mr Lukic lodged the Application with the Motor Accidents Division of the Personal Injury Commission (Commission).
At a teleconference on 3 June 2024, the matter was set down for an in-person assessment conference on 8 July 2024. Mr John Turnbull SC appeared for Mr Lukic, instructed by Mr Martin Bell, solicitor. Mr Branislav Andric, Serbian interpreter, was present over MS Teams to assist Mr Lukic. Mr John Guihot of counsel appeared for the insurer, instructed by Ms Helene Tretheway, solicitor.
The parties agreed that the following issues were required to be determined by me:
(a)    Mr Lukic’s credibility and his reliability as an historian;
(b)    the nature and extent of Mr Lukic’s injuries and incapacity;
(c)    the quantum of…

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] NSWPIC 502
Decision Date: 11 September 2024

CaseChat Overview and Summary

The case of Lukic v AAI Limited t/as AAMI involved a claim for damages under the Motor Accident Injuries Act 2017. The claimant, Lukic, sought compensation for both physical and psychiatric injuries sustained in a motor accident. Liability was not contested, and the primary issue was the assessment of damages, particularly regarding the entitlement to non-economic loss, past economic loss, and future economic loss. Additionally, there was a challenge to the claimant's credit and reliability, which influenced the quantum of the damages awarded.

The court had to determine whether Lukic was entitled to non-economic loss compensation and, if not, the appropriate assessment of past and future economic loss. The court considered the claimant’s credit and reliability by examining desktop surveillance reports and video evidence. The application of section 4.7 of the Act, along with relevant case law such as Medlin v State Government Insurance Commission, Husher v Husher, and Penrith City Council v Parks, guided the court's assessment of the claimant's credibility and the resulting damages.

The court concluded that Lukic was not entitled to non-economic loss due to the issues with credibility. However, Lukic was awarded damages for past economic loss and future economic loss up to the statutory retirement age. The court found the claimant's credit and reliability sufficiently impaired to warrant a reduction in the damages. The insurer was ordered to pay the claimant's legal costs and disbursements as agreed or assessed. This outcome balanced the claimant's injuries and the need to consider the credibility issues in the award of damages.

Orders