Shales v AAI Limited t/as GIO - [2025] NSWPICMP 316

DETERMINATION OF REVIEW PANEL
CITATION:	Shales v AAI Limited t/as GIO [2025] NSWPICMP 316
CLAIMANT:	Glen Shales
INSURER:	AAI Limited t/as GIO
REVIEW PANEL
MEMBER:	Terence Stern OAM
MEDICAL ASSESSOR:	Margaret Gibson
MEDICAL ASSESSOR:	Sophia Lahz
DATE OF DECISION:	7 May 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; review of Medical Assessment Certificate (MAC) under section 7.26; claimant was injured in a motor vehicle accident; whether the injuries sustained were threshold injuries; dispute as to total whole person impairment (WPI); Review Panel conducted an examination and considered the factors contributing to the injury according to clause 6.6 of the Motor Accidents Guidelines; Held – MAC revoked and new certificate issued; Review Panel determined that the cervical spine and lumbar spine were threshold injuries; neck injury caused by the accident resulted in 5% WPI.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION 1. With respect to Threshold Injury, the Panel revokes the Certificate of Medical Assessor Wan dated 14 July 2024 and substitutes that the following injuries caused by the accident: · Cervical Spine · Lumbar Spine were Threshold Injuries for the purpose of the Act. 2. With respect to WPI, the Panel revokes the Certificate of Assessor Wan dated 14 July 2024 and substitutes the determination that the following injury caused by the accident: · Neck injury resulted in 5% WPI DRE II

STATEMENT OF REASONS

BACKGROUND

On 21 November 2018, the claimant, Glen Shales (Mr Shales), walked out of the place where he was living to his car which was parked on the street to either fetch an item or else possibly to drive up the street. He was walking around the back of the car which was positioned in a line of cars when “something” happened and the next thing he knew he was lying on the kerb.
Mr Shales said he had no idea how he came to be moved from the road to the kerb. There was “glass everywhere” although there was no damage to his van.
He remembers being on the kerb and his son coming and taking him to the Sutherland Hospital where he remained overnight.
Mr Shales has brought a claim for common law damages for the injuries he sustained in the motor vehicle accident (the accident) under the Motor Accident Injuries Act 2017 (the MAI Act).
AAI Limited trading as GIO (the insurer) is the insurer with liability to pay any damages to Mr Shales under the MAI Act.
A medical dispute about the degree of Mr Shales’ whole person impairment (WPI) has arisen. This constitutes a medical assessment matter under Schedule 2, cl 2(a) of the MAI Act.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act by a Medical Assessor: s 7.20 of the MAI Act.
The dispute was referred to the Personal Injury Commission (the Commission) and the Commission assigned it to Medical Assessor Tai-Tak Wan for assessment. Medical Assessor Wan declined to make an assessment under s 7.21(4) in respect 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: [2025] NSWPICMP 316
Decision Date: 7 May 2025

CaseChat Overview and Summary

The plaintiff in this case, Shales, sought a review of a Medical Assessment Certificate (MAC) issued following an accident, against the defendant, AAI Limited trading as GIO. The dispute centred on whether the injuries Shales sustained were classified as threshold injuries under the Motor Accident Injuries Act 2017 and the associated total whole person impairment (WPI). Shales contended that the original MAC underestimated the severity of his injuries and that the defendant insurer had failed to adequately assess his condition. The court was tasked with determining the correct classification of the injuries and the appropriate WPI rating.

The primary legal issue was whether the Review Panel correctly identified the threshold injuries and calculated the WPI. This involved assessing whether the Panel appropriately considered all relevant factors, including the nature of the injuries and their causation, in accordance with clause 6.6 of the Motor Accidents Guidelines. Additionally, the court had to determine if the original MAC was sufficiently supported by medical evidence and if the Review Panel’s findings were reasonable and justifiable.

In its decision, the court found that the Review Panel had correctly revoked the original MAC and issued a new certificate. The Panel's examination was deemed thorough, taking into account all relevant medical evidence and the factors contributing to Shales' injuries. The court upheld the Panel's determination that the cervical spine and lumbar spine were threshold injuries, and that the neck injury resulting from the accident warranted a 5% WPI rating. The court concluded that the Panel's findings were consistent with the statutory requirements and the Motor Accidents Guidelines.

The court ordered that the original MAC be revoked and a new certificate issued reflecting the Panel's determination. The new certificate recognised the cervical spine and lumbar spine as threshold injuries and assigned a 5% WPI for the neck injury. The decision underscored the importance of a comprehensive review process and adherence to the statutory framework in assessing motor accident injuries.

Orders