Pope v AAI Limited t/as GIO - [2024] NSWPICMP 614

DETERMINATION OF REVIEW PANEL
CITATION:	Pope v AAI Limited t/as GIO [2024] NSWPICMP 614
CLAIMANT:	Karl Pope
INSURER:	AAI Ltd t/as GIO
REVIEW PANEL
MEMBER:	Ray Plibersek
MEDICAL ASSESSOR:	Rhys Gray
MEDICAL ASSESSOR:	Michael Couch
DATE OF DECISION:	30 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; claimant was a front seat passenger in a car hit from behind by another car; claimant had pre-existing degenerative spinal disease and previous surgery L5/S1 decompression surgery; causation; injuries to claimant’s spine at the L5/S1 level are pre-existing injuries not caused by the motor accident; effect of second subsequent motor accident considered; Held – the subject accident did not cause or materially contribute or cause a material aggravation to the claimant’s pre-existing nerve root compression at the L5/S1 level; Medical Assessment Certificate revoked.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel revokes the certificate of Medical Assessor Philip Truskett dated 17 November 2022 regarding treatment and care and issues a replacement certificate determining that: 1. The following treatment and care of a: · right L5/S1 decompression surgery, does not relate to the injury caused by the motor accident. 2. The following treatment and care of a: · right L5/S1 decompression surgery, is reasonable and necessary in the circumstances.

STATEMENT OF REASONS

INTRODUCTION

On 17 April 2021, Mr Karl Pope (the claimant) was a front seat passenger in a Ford Ranger year model 2015, driving on Richmond Road, Berkshire Park. His car stopped suddenly and was hit from behind by another car which failed to stop. His car was pushed into and hit the car in front.
After the accident Mr Pope did not go to hospital. NSW Police and Ambulance did not attend the accident scene.
The claimant was involved in a workplace accident in 2007. He has also reported being involved in two motor vehicle accidents. The first occurred on 17 April 2021 which is the subject of this review. The second motor accident occurred in June 2024.
AAI Ltd trading as GIO Insurance (the insurer) is the relevant insurer with liability to pay any damages to Mr Pope under the Motor Accident Injuries Act 2017 (MAI Act).
By letter dated 23 July 2021 the insurer wrote to the claimant and advised that it had determined that he had sustained minor injuries and that the insurer denied liability to make statutory benefits payments beyond the first 26 weeks. The insurer also advised that it was not obliged to continue paying for the claimant’s treatment and care expenses from
16 October 2021.
By letter dated 21 October 2021 the insurer wrote to the claimant and advised that the proposed L5/S1 decompression surgery is not considered to be reasonable and necessary treatment and care.
In an email dated 21 October 2021 the claimant’s solicitors sought an internal review of this decision. The insurer determined its internal review decision on 4 November 2021. [1] The outcome of the internal review was that the decision to decline the L5/S1 decompression surgery was…

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 614
Decision Date: 30 August 2024

CaseChat Overview and Summary

In the case of Pope v AAI Limited t/as GIO, the plaintiff was a front seat passenger in a car that was struck from behind by another vehicle. The plaintiff had a history of degenerative spinal disease and had previously undergone L5/S1 decompression surgery. The primary dispute centred on whether the injuries sustained in the accident were a result of the collision or were pre-existing conditions that had been aggravated by the accident. The matter was heard in the District Court of New South Wales.

The legal issues that the court had to determine included whether the motor accident caused or materially contributed to the plaintiff's existing spinal condition, and if it caused a material aggravation of the pre-existing nerve root compression at the L5/S1 level. The court needed to consider the extent to which the accident contributed to the plaintiff's condition, given the pre-existing degenerative disease and prior surgery.

The court found that the accident did not cause or materially contribute to the plaintiff’s pre-existing nerve root compression at the L5/S1 level. The injuries were considered to be a result of the pre-existing degenerative spinal disease rather than the motor accident. The court revoked the Medical Assessment Certificate, which had previously been issued in relation to the plaintiff's injuries. This decision underscores the importance of establishing causation in motor accident claims, particularly where pre-existing conditions are involved.

The court ordered that the Medical Assessment Certificate issued in relation to the plaintiff's injuries be revoked. This decision has significant implications for the plaintiff's ability to claim ongoing medical treatment and compensation related to the motor accident.

Orders