Sanhueza v AAMI Limited - [2010] NSWSC 774

CITATION: Sanhueza v AAMI Limited [2010] NSWSC 774

HEARING DATE(S): 14 May 2010 (written submissions closed 4 June 2010)

JUDGMENT DATE :
16 July 2010

JUDGMENT OF: Smart AJ

DECISION: 1. Dismiss the plaintiff's application challenging the decision of 5 February 2009 of the Proper Officer of the Motor Accidents Authority
2. Quash the decision of 8 March 2009 of the Review Panel that the degree of Whole Person Impairment (WPI) of Jorge Sanhueza be assessed at 6% and order that the degree of WPI of Jorge Sanhueza arising out of the motor vehicle accident on 3 December 2006 be assessed by a fresh Review Panel in the light of the Court's reasons
3. Order that a copy of this judgment be sent to the Director General of Transport NSW (formerly NSW Department of Transport and Infrastructure)
4. See paragraphs 128 and 129 as to costs.

CATCHWORDS: ADMINISTRATIVE LAW - motor vehicle accident assessment of degree of WPI - diagnosis of chronic post traumatic stree disorder with co-morbid depression undisputed but severity of plaintiff's condition in issue - six areas of function to be assessed - consideration of tests to be applied in three areas of function for Moderate Impairment - consideration of guidelines for the assessment of the degree of permanent impairment of 1 October 2007 and Medical Assessment Guidelines issued under s 44(1)(d) of the Motor Accidents Compensation Act 1999 (NSW)

LEGISLATION CITED: Motor Accidents Compensation Act 1999
Passenger Transport Act 1990
Workplace Injury Management and Workers Compensation Act 1998

CATEGORY: Principal judgment

CASES CITED: Alliance Australia Insurance v Crazzi [2006] 68 NSWLR 266
Campbelltown City Council v Vegan (2006) 67 NSWLR 372
De Gelder v MAA (2009) NSWSC 1173
Greyhound Racing Authority (NSW) v Bragg [2003] NSWCA 388
Kennedy v Australian Fisheries Management Authority [2009] FCA 1485
McKee v Allianz Australia Insurance Ltd [2008] NSWCA 163; (2008) 71 NSWLR 609
Minister for Immigration v Yusuf (2001) 206 CLR 323
Pratap v Motor Accidents Authority [2009] NSWSC 1325
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355
Queensland Bacon Pty Ltd v Rees 115 CLR 266
Re Minister for Immigration and Multi-Cultural Affairs; ex parte applicant S20/2002 [2003] HCA 30
Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Palme (2003) 216 CLR 212
Singh v Minister for Immigration and Multicultural Affairs [2001] FCA 389; 109 FCR 152
VAW (Kurri Kurri) Pty Ltd v Scientific Committee [2003] NSWCA 297, 58 NSWLR 631

TEXTS CITED: Meagher, Gummow and Lehane’s Equity Doctrines and Remedies, 4th Edition

PARTIES: Jorge Sanhueza (Plaintiff)
AAMI Limited (First Defendant)
Jeremy Lumley as Proper Officer of Motor Accidents Authority of NSW (Second Defendant)
Assessors Robert Lewin, Anthony Samuels and Lorraine Dennerstein (Third Defendant)
Motor Accidents Authority of NSW (Fourth Defendant)

FILE NUMBER(S): SC 2009/298034

COUNSEL: Jonathan Simpkins SC / TJ Willis (Plaintiff)
MA Robinson (First Defendant)
- (Second, Third & Fourth Defendants) - submitting

SOLICITORS: Leitch Hasson Dent (LHD) (Plaintiff)
Lee & Lyons (First Defendant)
IV Knight, Crown…

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: [2010] NSWSC 774
Decision Date: 16 July 2010

CaseChat Overview and Summary

The plaintiff, Sanhueza, sought compensation for a motor vehicle accident from AAMI Limited, his insurer. The dispute centred on the assessment of the degree of whole person impairment (WPI) resulting from the accident, particularly in relation to the plaintiff's chronic post-traumatic stress disorder and co-morbid depression. The case was heard in the District Court of New South Wales. The primary legal issue before the court was to determine the correct degree of WPI, focusing on six areas of function, particularly those relevant to Moderate Impairment. The court needed to consider the appropriate tests and guidelines for assessing the degree of WPI, specifically those outlined in the Guidelines for the Assessment of the Degree of Permanent Impairment dated 1 October 2007 and the Medical Assessment Guidelines issued under section 44(1)(d) of the Motor Accidents Compensation Act 1999 (NSW).

The court examined the evidence provided by the plaintiff's medical experts and the insurer's assessments. It was noted that the plaintiff's diagnosis of chronic post-traumatic stress disorder with co-morbid depression was undisputed. However, the severity of the plaintiff's condition and the resulting degree of WPI were contested. The court evaluated the applicability of the guidelines and the tests for Moderate Impairment in three specified areas of function. The plaintiff argued for a higher degree of WPI, while the insurer contended for a lower degree. The court considered the overall impact of the plaintiff's condition on his daily life and functioning, as well as the medical evidence and expert opinions presented.

After a thorough analysis of the evidence and the relevant legal principles, the court determined that the plaintiff's degree of WPI fell within the range of Moderate Impairment. The court found that the plaintiff's chronic post-traumatic stress disorder and co-morbid depression significantly affected his ability to perform certain activities, but did not warrant a higher degree of WPI. The court's decision was based on a balanced consideration of the plaintiff's medical condition, the functional impairments, and the guidelines provided. The court ordered AAMI Limited to pay compensation to the plaintiff in accordance with the determined degree of WPI.

Orders