Nasari v AAI Limited t/as GIO - [2024] NSWPICMP 342

DETERMINATION OF REVIEW PANEL
CITATION:	Nasari v AAI Limited t/as GIO [2024] NSWPICMP 342
CLAIMANT:	Mostafa Nasari
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Gerald Chew
MEDICAL ASSESSOR:	Glen Smith
DATE OF DECISION:	27 May 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; threshold dispute for motor accident in September 2020; sideswipe collision; pre accident psychiatric symptoms; pre-accident clinical records; Panel reconstituted by substitution of Member; claimant previously examined by Medical Assessors (MA) before reconstitution; Panel determined that review could proceed without further examination; no objection by parties; probability of mistake in clinical records confirmed by GP; claimant functioning well prior to motor accident; deterioration in condition after motor accident; MA examination; finding that claimant suffered major depressive episode and specific phobia (driving); Held – assessment revoked; non-threshold psychiatric injury caused by motor accident.
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 27 May 2022 and certifies that the psychological injury caused by the motor accident is not a THRESHOLD INJURY for the purposes of the Motor Accident Injuries Act 2017.

REASONS

BACKGROUND

Mr Mostafa Nasari (the claimant) suffered injury in a motor vehicle accident on
[1] Insurer’s bundle, p 82.
7 September 2020. The claimant was in his vehicle stationary at a roundabout when the insured driver collided with the right-hand side of the claimant’s vehicle (the motor accident).[1]
GIO General Ltd insured the owner and driver of the other motor vehicle for liability to pay Mr Nasari any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act) for the motor accident.
The issue presently in dispute is whether Mr Nasari’s psychological injury is classified as a “threshold injury” within the meaning of the MAI Act.
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[2] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[2] Section 7.20 of the MAI Act.
The dispute was referred to Medical Assessor Hong who issued a Medical Assessment Certificate dated 27 May 2022 (the medical assessment certificate).[3]
[3] Insurer’s bundle, p 5.
Whether a person has only suffered threshold injuries as a result of a motor vehicle accident affects the entitlement to both statutory benefits and damages.
Statutory benefits by way of loss of earnings and treatment and care expenses cease after 26 weeks if “the person’s only injuries resulting from the motor accident were threshold injuries”.[4] An injured person otherwise cannot recover damages under the MAI…

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 342
Decision Date: 27 May 2024

CaseChat Overview and Summary

The decision in Nasari v AAI Limited t/as GIO addresses a dispute regarding the determination of a motor accident injury under the Motor Accident Injuries Act 2017. The matter involved a sideswipe collision that occurred in September 2020, which led to a claim for psychiatric injuries by the claimant. The case was examined by the Civil and Administrative Tribunal of New South Wales, where the claimant had previously been assessed by Medical Assessors prior to the reconstitution of the Panel. The Panel was tasked with determining whether the claimant’s psychiatric conditions met the threshold for compensation under the Act.

The primary legal issue before the Panel was whether the claimant’s psychiatric conditions, diagnosed as persistent depressive disorder with a current major depressive episode and specific phobia (driving), constituted a threshold injury as defined by the Motor Accident Injuries Act 2017. The Panel had to consider the evidence of pre-existing psychiatric symptoms, the claimant’s functioning before the accident, the impact of the accident on the claimant’s mental health, and the probability of mistake in the clinical records as confirmed by the claimant’s general practitioner. The Panel also had to determine whether further medical examinations were necessary after the Panel was reconstituted.

In reaching its decision, the Panel noted that the claimant had been functioning well prior to the motor accident and had experienced a deterioration in their condition following the accident. The Panel reviewed the claimant’s medical records and the findings of the Medical Assessors, who concluded that the claimant had suffered a major depressive episode and specific phobia as a result of the accident. Despite the claimant’s pre-existing symptoms, the Panel found that the motor accident had a significant impact on the claimant’s mental health, leading to the conclusion that the psychiatric conditions were a non-threshold injury caused by the accident. Consequently, the Panel revoked the previous medical assessment certificate and issued a new certificate reflecting the updated findings.

The final orders of the Panel revoked the previous medical assessment certificate and issued a new certificate recognising the claimant’s non-threshold psychiatric injury caused by the motor accident. The claimant was thus entitled to compensation for the psychiatric conditions resulting from the accident, as determined by the Panel.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

The recognised psychiatric diagnoses of persistent depressive disorder, with current major depressive episode and specific phobia (driving) are not threshold injuries pursuant to the provisions of the MAI Act.CONCLUSION For these reasons, the Panel concludes that the medical assessment certificate issued by Medical Assessor Hong is revoked. The new certificate is attached at the commencement of these Reasons.

Ratio Decidendi

Legal Principle Established

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