Yoo v AAI Limited t/as GIO - [2022] NSWPIC 671

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Yoo v AAI Limited t/as GIO [2022] NSWPIC 671
Claimant:	Minjung Yoo
insurer:	AAI Limited t/as GIO
Member:	Brett Williams
DATE OF DECISION:	6 December 2022
CATCHWORDS:	MOTOR ACCIDENTS - Damages assessment under Motor Accident Injuries Act 2017; claimant suffered physical and psychological injury as a result of accident; insurer agreed that she was entitled to damages for non-economic loss; claim for past and future economic loss; claimant was on student visa at time of accident; South Korean national; argued that most likely future circumstances were that she would have remained in Australia; Held – awards made for non-economic loss and economic loss; claimant had an ongoing loss of capacity that was productive of financial loss; loss of capacity due to physical and psychological injuries; most likely future circumstances were that she would return to South Korea; damages of $1,079,293 assessed.
determinations made:	CERTIFICATE OF DETERMINATION 1. Under s 7.36(3) and s 7.36(4) of the Motor Accident Injuries Act 2017, I specify the amount of damages for this claim as $1,079,293. 2. 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 Motor Accident Injuries Act 2017 is $82,146.94 inclusive of GST.

STATEMENT OF REASONS

BACKGROUND

Ms Minjung Yoo (the claimant) suffered physical and psychological injury in a motor accident on 3 October 2018 (the accident). She subsequently made a claim for damages on AAI Limited t/as GIO (the insurer), the insurer of the at fault driver. Liability for the claim was wholly admitted by the insurer on 12 November 2020.
The claimant referred her claim to the Personal Injury Commission (the Commission) for assessment on 5 October 2021. Her entitlement to damages is governed by the Motor Accident Injuries Act 2017 (MAI Act). The parties agree that the claimant is entitled to damages for non-economic loss. Damages are also claimed for past and future economic loss.
On 21 November 2022 draft reasons were sent to the parties, in response to a request for draft reasons made in the claimant’s submissions dated 11 November 2022. In the draft reasons I directed the parties to lodge a joint memorandum on or before 30 November 2022. The parties were asked to address a number of matters in the joint memorandum, including whether an award for loss of superannuation should be made, interest and costs. The joint memorandum was received on 5 December 2022.

Assessment conference on 7 April 2022

The proceedings were listed for assessment on 7 April 2022. The claimant was represented by Mr Mooney SC, instructed by Mr Masselos. The insurer was represented by Mr Nesbeth, instructed by Mr Wholohan. The issues in dispute were narrowed, agreement being reached between the parties with respect to a range of matters.
For the reasons set out in the assessment conference report, the assessment was adjourned and relisted on 29 September 2022.

Assessment conference on 29 September 2022

The assessment proceeded on…

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 671
Decision Date: 6 December 2022

CaseChat Overview and Summary

In the case of Yoo v AAI Limited t/as GIO, the claimant sought damages for injuries sustained in a motor accident, including both physical and psychological harm. The dispute centred around the assessment of damages under the Motor Accident Injuries Act 2017, with particular attention to the nature and extent of economic losses both past and future. The court was tasked with determining whether the claimant, a South Korean national on a student visa at the time of the accident, was entitled to compensation for future economic loss and whether it was likely that she would remain in Australia post-accident. The insurer conceded that the claimant was entitled to damages for non-economic loss but contested the future economic loss claim.

The court needed to decide if the claimant's injuries would result in an ongoing loss of capacity that would produce financial loss, and if so, whether it was likely she would remain in Australia or return to South Korea. This decision was pivotal as it would determine the extent of her future economic loss claim. The court also had to assess the impact of the claimant's student visa status and her probable future circumstances on her eligibility for ongoing economic compensation.

The court found that the claimant had indeed suffered an ongoing loss of capacity due to her injuries, which was productive of financial loss. The court recognised that while the claimant had been living in Australia at the time of the accident, the most likely future scenario was that she would return to South Korea. Given this, the court assessed the claimant's future economic loss based on the assumption that she would leave Australia. The court awarded the claimant $1,079,293 in damages, encompassing both non-economic and economic losses, reflecting the claimant's injuries and the most probable future circumstances. The court's decision thus balanced the claimant's current and future needs against the likelihood of her remaining in Australia.

Orders