Todev v AAI Limited t/as GIO - [2023] NSWSC 836

Supreme Court

New South Wales

Medium Neutral Citation: Todev v AAI Limited t/as GIO [2023] NSWSC 836
Hearing dates: 10 July 2023
Date of orders: 17 July 2023
Decision date: 17 July 2023
Jurisdiction: Common Law
Before: Schmidt AJ
Decision:
1. I declare that:
a. the 10 March 2022 determination of Ms Todev’s application for review of her medical assessment is void and of no effect; and
b. Ms Todev’s 18 November 2021 medical assessment is void and of no effect.
2. I order that:
a. both the review determination and the medical assessment be set aside; and
b. the matter be remitted to the President of the Personal Injury Commission to be determined by a different medical assessor according to law.
3. The insurer must pay Ms Todev’s costs, as agreed or assessed.

Catchwords:
ADMINISTRATIVE LAW — judicial review — Motor Accidents Compensation Act 1999 (NSW) — decisions of medical assessor and delegate of President of Personal Injury Commission on review application — conflicting reports of psychiatric experts — whether medical assessor applied correct test for causation, gave adequate reasons and disclosed path of reasoning and complied with applicable guidelines — whether delegate engaged with plaintiff’s arguments and complied with s 63 — errors established — medical assessment and review determination set aside

Legislation Cited:
Motor Accidents Compensation Act1999 (NSW), ss 58, 60, 61, 63, 94
Motor Accident Permanent Impairment Guidelines 2018, cl 1.215
Supreme Court Act1970 (NSW), s 69
Uniform Civil Procedure Rules 2005 (NSW), r 42.1

Cases Cited:
Insurance Australia Ltd v Marsh [2022] NSWCA 31
Meeuwissen v Boden (2010) 78 NSWLR 143; [2010] NSWCA 253
Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259; [1996] HCA 6
Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 78 ALJR 992; [2004] HCA 32
Zahed v IAG Limited t/as NRMA Insurance [2016] NSWCA 55

Category: Principal judgment
Parties: Kristy Lee Todev (Plaintiff)
AAI Limited (First Defendant)
The President, Personal Injury Commission, (Second Defendant)
Doron Samuell in his capacity as a Medical Assessor appointed under s 7.20 of the Motor Accidents Injuries Act 2017 (Third Defendant)
Representation:
Counsel:
Mr E Romaniuk SC (Plaintiff)
Mr J Turnbull SC (First Defendant)
Submitting Appearances (Second and Third Defendants)
Solicitors:
Ayoub Lawyers (Plaintiff)
Moray & Agnew (First Defendant)
Crown Solicitor’s Office (Second and Third Defendants)

File Number(s): 2022/167811
Decision under appeal

Court or tribunal:

Personal Injury Commission

Before:

Dr Samuell & Ms Brittliff

File Number(s):

APP-10353811 & R-M10476653/21

JUDGMENT

Ms Todev was involved in a motor vehicle accident in October 2016 when she reversed out of a parking space and was struck by another vehicle, causing her vehicle to hit another. She claims that as a result, she suffered physical and psychological injuries, as well as the loss of her employment as a nurse in 2019, following a medical assessment.
Ms Todev pursued a claim for both physical and psychological injury under the Motor Accidents Compensation Act1999 (NSW), but the…

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: [2023] NSWSC 836
Decision Date: 17 July 2023

CaseChat Overview and Summary

The case of Todev v AAI Limited t/as GIO involved a plaintiff, Todev, seeking judicial review of decisions made by a medical assessor and a delegate of the President of the Personal Injury Commission under the Motor Accidents Compensation Act 1999 (NSW). The core dispute revolved around the assessment of psychiatric injury and causation, with conflicting reports from psychiatric experts contributing to the complexity of the case. The plaintiff contended that the medical assessor did not correctly apply the test for causation, failed to provide adequate reasons, and did not disclose the path of reasoning and applicable guidelines. Additionally, Todev argued that the delegate did not adequately engage with the plaintiff's arguments and did not comply with the requirements of section 63 of the Act.

The court was tasked with determining whether the medical assessor had correctly applied the causation test and provided sufficient reasons, as well as whether the delegate had engaged with the plaintiff's arguments and complied with statutory requirements. The court examined the medical assessor's decision to ascertain if the correct test for causation was applied and whether the reasons provided were adequate. The court also considered whether the delegate had properly engaged with the plaintiff's arguments and adhered to the statutory obligations, particularly those outlined in section 63 of the Motor Accidents Compensation Act.

In its reasoning, the court found that both the medical assessor and the delegate had made errors in their respective decisions. The medical assessor was found to have not applied the correct test for causation and had failed to adequately explain the path of reasoning and applicable guidelines. Furthermore, the delegate was found to have not sufficiently engaged with the plaintiff's arguments and did not comply with the statutory requirements. Based on these findings, the court set aside the medical assessment and the review determination.

The court's final orders included setting aside the medical assessment and the review determination, thereby granting Todev the relief sought in the judicial review application. The court directed that the matter be remitted for reconsideration in light of the findings and observations made by the court.

Orders