QBE Insurance (Australia) Limited v Chebat - [2024] NSWPICMP 611

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Chebat [2024] NSWPICMP 611
CLAIMANT:	Christine Chebat
INSURER:	QBE Insurance (Australia) Ltd
REVIEW PANEL
PRINCIPAL MEMBER:	John Harris
MEDICAL ASSESSOR:	Michael Hong
MEDICAL ASSESSOR:	Christopher Canaris
DATE OF DECISION:	29 August 2024
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; psychological injury; threshold dispute; pre-existing psychological symptom denied by claimant; discussion of aggravation of psychological condition constitutes injury; AAI Limited t/as GIO v Hoblos and Todev v AAI Limited t/as GIO (Todev) applied; five-day delay in recorded compliant insignificant in context of psychological conditions; records establish material aggravation of an underling generalised anxiety disorder; application of principles in Lynch v AAI Limited t/as AAMI and David v Allianz Australia Ltd; discussion of contrary decision in Merhi v Insurance Australia Limited t/as NRMA Insurance (Merhi); articulation of reasons why the Review Panel declines to follow Merhi as reasoning inconsistent with common meaning of injury and observations of Court of Appeal in Mandoukos v Allianz Australia Insurance Limited and Supreme Court decision of Todev; Held – claimant suffered an aggravation of a psychological condition which is not a threshold injury.
DETERMINATIONS MADE:	Medical Assessment – Permanent Impairment Certificate Medical Assessment – Threshold injury Review Panel Assessment of Threshold Injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 1. The Review Panel revokes the Medical Assessment Certificate dated 25 May 2023 and certifies that the motor accident caused a non-threshold psychological injury as follows: · aggravation of pre-existing generalized anxiety disorder.

REASONS

BACKGROUND

On 28 February 2022 Ms Christine Chebat (the claimant) suffered injury in a motor vehicle accident. The claimant was working as a traffic controller holding a road closed sign when the insured vehicle collided with the claimant and/or the sign held by the claimant. The exact circumstances of the accident are discussed later in these reasons.
QBE Insurance Australia Ltd insured the owner and driver of the other motor vehicle for liability to pay Ms Chebat 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 Ms Chebat sustained a psychological injury caused by the motor accident which 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[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The medical dispute was referred to Medical Assessor Fukui who issued a Medical Assessment Certificates dated 23 May 2023 (the medical…

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 611
Decision Date: 29 August 2024

CaseChat Overview and Summary

In the matter of QBE Insurance (Australia) Limited v Chebat, the Federal Circuit and Family Court of Australia was tasked with determining whether the claimant, Chebat, had suffered an injury that met the threshold requirements under the Motor Accident Injuries Act 2017. The dispute centred on whether the aggravation of a pre-existing psychological condition constituted an injury that could be compensated under the Act. The central issue before the court was whether the claimant's discussion about her psychological condition with her general practitioner, which led to the recording of her symptoms, qualified as an injury under the Act, particularly in light of the requirement to establish a threshold injury.

The court addressed the legal issue by examining the statutory definition of 'injury' and the relevant case law. It considered the decision in AAI Limited t/as GIO v Hoblos and Todev v AAI Limited t/as GIO, which established that an aggravation of a psychological condition can constitute an injury. The court further examined the principles outlined in Lynch v AAI Limited t/as AAMI and David v Allianz Australia Ltd, which provided guidance on the significance of the timing and nature of the aggravation of a psychological condition. The court also discussed the contrasting decision in Merhi v Insurance Australia Limited t/as NRMA Insurance, where the Review Panel had declined to find a threshold injury in similar circumstances. Ultimately, the court found that the reasoning in Merhi was inconsistent with the common meaning of 'injury' and the observations of the Court of Appeal in Mandoukos v Allianz Australia Insurance Limited and the Supreme Court decision in Todev.

In its reasoning, the court held that the five-day delay in recording the claimant's symptoms was insignificant in the context of psychological conditions. The records established a material aggravation of the claimant's underlying generalised anxiety disorder, fulfilling the criteria for a compensable injury under the Motor Accident Injuries Act 2017. The court articulated its reasons for declining to follow the Merhi decision, citing inconsistencies with the statutory definition of 'injury' and established legal principles. The court concluded that the claimant had indeed suffered an aggravation of a psychological condition that met the threshold for compensation under the Act, albeit not as a threshold injury.

The court's final orders confirmed that the claimant's aggravation of a psychological condition was compensable under the Motor Accident Injuries Act 2017, notwithstanding that it did not qualify as a threshold injury. The decision underscored the importance of the statutory definition of 'injury' and the necessity of considering the specific circumstances and established legal principles in determining the compensability of psychological injuries.

Orders