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Venizelou v AAI Ltd

Venizelou v AAI Ltd

Case [2021] NSWPICMP 215 11 November 2021

Motor Accident Compensation

Aggravation of Injury

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DETERMINATION OF REVIEW PANEL
CITATION:	Venizelou v AAI Ltd [2021] NSWPICMP 215
CLAIMANT:	Lia Venizelou
INSURER:	AAI Ltd
REVIEW PANEL:	Principal Member John Harris Dr Drew Dixon Dr Geoffrey Stubbs
DATE OF DECISION:	11 November 2021
CATCHWORDS:	MOTOR ACCIDENTS- The claimant suffered injury in 2020 to the left knee when she fell as a passenger on a bus; the claimant had a pre-existing arthritic knee and a total knee replacement was recommended in 2017; that treatment did not proceed and prior to the motor accident the claimant was independent, exercising and in full time employment; following the motor accident, the claimant developed recurrent locking and a significant increase in symptoms; Held – the motor accident aggravated and accelerated degenerative changes and caused further tearing of a degenerate lateral meniscus; this was a non-minor injury as defined in section 1.6 of the Motor Accident Injuries Act 2017 (MAI Act); the motor accident need only be a material contribution to the need for treatment; AAI Ltd v Phillips applied; Secretary, Department of Education v Johnson referred to; the Panel accepted that the motor accident significantly increased the symptoms and brought forward the need for surgery which was undertaken in mid-2021; discussion about the meaning of reasonable and necessary in the circumstances; the medical evidence unanimously concluded that the surgery was appropriate and required; original medical assessment revoked.

STATEMENT OF REASONS FOR DECISION OF THE REVIEW PANEL IN RELATION TO A MEDICAL ASSESSMENT

Medical Assessment – Minor Injury and Treatment and Care

Review Panel Assessment of Minor Injury
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate dated 29 March 2021 and issues a new certificate determining that:

The following injuries:

·        right shoulder injury soft tissue injury;
·        right thigh soft tissue injury;
·        right ankle soft tissue injury, and
·        left wrist soft tissue injury.

are MINOR INJURIES for the purposes of the Motor Accident Injuries Act 2017.

The left knee injury is a NON-MINOR INJURY for the purposes of the Motor Accident Injuries Act 2017.

Review Panel Assessment of Treatment and Care and
Replacement Certificate issued under section 7.23(1) of the Motor Accident Injuries Act 2017

The Review Panel revokes the certificate dated 29 March 2021 and issues a new certificate determining that:

The following treatment and care:

· radiological investigation regarding a total knee replacement, and
· surgery – left total knee replacement.

IS REASONABLE AND NECESSARY in the circumstances.

The following treatment and care:

· radiological investigation regarding a total knee replacement, and
· surgery – left total knee replacement.

RELATES TO THE INJURY CAUSED BY THE MOTOR ACCIDENT.

REASONS

Background

Ms Lia Venizelou suffered injury in a motor accident on 4 February 2020 whilst she was a passenger on a bus that broke suddenly.

The insurer insured the owner and driver of the bus for liability to pay Ms Venizelou any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).

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.

Continue reading Venizelou v AAI Ltd

Details

AGLC: Venizelou v AAI Ltd [2021] NSWPICMP 215
Case: [2021] NSWPICMP 215
Decision Date: 11 November 2021

CaseChat Overview and Summary

Venizelou v AAI Ltd involved a dispute regarding the impact of a motor accident on the claimant's pre-existing knee condition. The claimant had fallen as a passenger on a bus in 2020 and subsequently experienced increased symptoms and recurrent locking in her left knee. The court was tasked with determining whether the motor accident had aggravated her pre-existing arthritic condition and accelerated the need for knee surgery, which was ultimately performed in mid-2021.

The key legal issues before the court were whether the motor accident constituted a non-minor injury under section 1.6 of the Motor Accident Injuries Act 2017 (MAI Act) and if the accident materially contributed to the need for surgery. The court considered whether the accident had aggravated the pre-existing condition and whether the surgery was reasonable and necessary in the circumstances. The claimant argued that the accident significantly worsened her condition and brought forward the need for surgery, while the defendant contested the extent of the injury.

The court found that the motor accident had indeed aggravated and accelerated the degenerative changes in the claimant's knee, leading to further tearing of a degenerate lateral meniscus. The panel accepted that the accident significantly increased the claimant's symptoms and brought forward the need for surgery, which was deemed appropriate and required by unanimous medical evidence. The court applied principles from AAI Ltd v Phillips and referenced Secretary, Department of Education v Johnson in reaching its decision. The original medical assessment was revoked in light of the new evidence and findings.

The court concluded that the motor accident was a non-minor injury as it materially contributed to the need for treatment. The claimant's surgery was deemed reasonable and necessary, and the decision recognised the significant impact of the accident on the claimant's pre-existing condition. The court ordered the defendant to cover the costs associated with the surgery and any related treatment, acknowledging the substantial worsening of the claimant's condition as a result of the motor accident.

Orders