Sutovic v AAI Limited t/as GIO - [2022] NSWPIC 276

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Sutovic v AAI Limited t/as GIO [2022] NSWPIC 276
CLAIMANT:	Svetislav Sutovic
INSURER:	AAI Limited t/as GIO
MEMBER:	Terence Stern
DATE OF DECISION:	14 April 2022
CATCHWORDS:	MOTOR ACCIDENTS- Allegation of soft tissue injuries to the spine; Medical Assessment Service Report (MAS) determinations of a treatment dispute and of a Whole Person Impairment dispute; competing reports of occupational therapists; consideration of case law on balance of probabilities; Claimant considered a credible witness; finding on the balance of probabilities that the Claimant continues to suffer chronic pain; diagnosis of Major Depressive Episode on a background of chronic pain; buffer of $15,000 for future treatment including chronic pain management; consideration of case law on future economic loss; Medlin v State Government Insurance Commission; IAG Ltd t/as NRMA Insurance v Damian Mares; Dal v Chol; Allianz Australia Insurance Ltd v Kerr; section 126 Motor Accidents Compensation Act 1999 assumptions; authorities on buffer for future economic loss; Penrith City Council v Parks; Allianz Australia Insurance Limited v Kerr; past gratuitous care; no award made; future commercial domestic assessments; consideration of Insurance Australia Ltd t/as NRMA Insurance v Scott; finding that NRMA Insurance v Scott extends to commercial domestic care; no provision made for future commercial domestic assistance; total of damages assessed; $235,603.65.
DETERMINATIONS MADE:	1. On the issue of liability for the claim, the GIO’s insured owed a duty of care to the Claimant, breached that duty of care and the Claimant sustained injury loss and damage as a result of that breach of duty. 2. Under sub-sections 7.36 (3) and 7.36 (4) of the Motor Accident Injuries Act 2017 (the Act), I specify the amount of damages for this claim as $235,603.65. 3. The amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Act is $ 43,684.24 inclusive of GST.

Reasons for Decision

Issued under section 94(5) of the Motor Accidents Compensation Act 1999

INTRODUCTION

The Claimant was born in June 1965 in Montenegro, migrated to Australia in 1996, was educated here to Year 12, went to University but did not complete an Engineering Course, sang in Yugoslavian restaurants for 2-3 years and then got a job in the Building Industry as a gyprock fixer.
According to his Statement, at the time of the accident and for some years before, he was self-employed doing contract work as a gyprock fixer for Choice Ceilings and working an average of 50-55 hours a week and every Saturday and Sunday.
Prior to the accident the Claimant says he was in good health. Although he had a motor vehicle accident in 2009 in which he sustained injuries to his lower back, he did not take any time off work. He says that the low back injury cleared up after about 6 months.

THE ACCIDENT

On 19 May 2017, the Claimant’s vehicle was stationary at a red light when it 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: [2022] NSWPIC 276
Decision Date: 14 April 2022

CaseChat Overview and Summary

In the case of Sutovic v AAI Limited t/as GIO, the claimant sought compensation for injuries sustained in a motor accident. The primary disputes involved the claimant's alleged chronic pain and the extent of whole person impairment. The matter was heard in the District Court of New South Wales. The claimant argued that they suffered from chronic pain and required ongoing treatment, while the insurer disputed the severity of the injuries and the need for future care.

The legal issues before the court included whether the claimant's chronic pain and whole person impairment were established on the balance of probabilities, the adequacy of the claimant's evidence to support these claims, and the appropriate quantum of damages for future economic loss and treatment. The court had to consider the claimant's credibility, the medical evidence provided, and the statutory provisions under the Motor Accidents Compensation Act 1999.

The court found that the claimant was a credible witness and that the balance of probabilities favoured a finding that the claimant continues to suffer chronic pain. It was also determined that the claimant had a Major Depressive Episode on a background of chronic pain. The court assessed a buffer of $15,000 for future treatment, including chronic pain management, based on the authorities cited. While considering future economic loss, the court followed the reasoning in Medlin v State Government Insurance Commission and IAG Ltd t/as NRMA Insurance v Damian Mares. The court did not award compensation for past gratuitous care, and following the decision in Insurance Australia Ltd t/as NRMA Insurance v Scott, it found that no provision should be made for future commercial domestic assistance.

The total damages assessed by the court were $235,603.65, reflecting the findings on liability, chronic pain, whole person impairment, and future treatment needs. The court's decision provided clarity on the extent of the claimant's injuries, the appropriate compensation for future care, and the treatment of economic loss in this context.

Orders