On 22 December 2023, the Personal Injury Commission (PIC) published its decision in Zhao v AAI Limited t/as GIO  NSWPICMR 62.
The Claimant’s husband was injured in a motor accident on 19 October 2021. The Claimant subsequently made an application for statutory benefits based on a claim that she suffered PTSD, depression and anxiety as a result of her husband’s accident.
The Claimant’s husband’s vehicle was stationary at the time of the impact. Dashcam footage and other evidence suggested a minor impact. Neither police nor ambulance were called to the scene. The Claimant’s husband only experienced neck and lower back pain. He saw a doctor but did not receive any treatment.
The Claimant first learned of her husband’s accident when he telephoned her at 11am. She subsequently saw him, five hours later, when she attended the hospital at 4pm. The five hour delay was not explained by any evidence.
The Insurer denied liability on the grounds that it was not foreseeable that a person of normal fortitude would suffer a recognised psychiatric illness in the circumstances. That decision was affirmed on Internal Review. The Claimant sought Merit Review of the decision.
The Merit Reviewer affirmed the Insurer’s decision to deny the Claimant statutory benefits for the following reasons:
A claimant who suffers mental harm (aka nervous shock) may claim both damages and statutory benefits, provided they meet the requirements in Part 3 of the CLA.
In statutory benefit claims, applying both MAIA and the CLA, the issues typically are:
Given the decision in Zhao v AAI Limited t/as GIO  NSWPICMR 62, the parties must also consider whether a person of normal fortitude would have suffered a psychiatric injury in the circumstances.
More information about how s 3.39 of MAIA imports the Mental Harm provisions in Part 3 of the CLA into the statutory benefits scheme in Part 3 of MAIA, can be found in .
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Principal Peter Hunt
In Allianz Australia Insurance Ltd v Salucci  NSWSC 1953, the matter before the Supreme Court was the Insurer's application for judicial review of the Review Panel's determination of 24% whole person impairment in respect of the Claimant's physical injuries.
In Insurance Australia trading as NRMA Insurance v Liu  NSWSC 1604, the matter before the Supreme Court was the insurer's application for judicial review of the President's Delegate's decision to refer a medical assessment to a review panel.