Threshold Injury Disputes Involving Multiple Accidents: Aleksic v AAI Limited t/as GIO [2023] NSWPICMP 466

In Brief

• In threshold injury disputes involving multiple accidents, the effects of each accident must be considered separately.
• The effects of a particular motor accident are evaluated by determining whether that motor accident caused, or materially contributed, to the injury by way of aggravation, acceleration or exacerbation.

Facts

Pursuant to s 1.6(1)(b) of the Motor Accident Injuries Act 2017 and cl 4(2) of the Motor Accident Injuries Regulation 2017, an above-threshold psychiatric injury is any recognised psychiatric injury other than an Acute Stress Disorder or an Adjustment Disorder.

In the 21 September 2023 decision of Aleksic v AAI Limited t/as GIO [2023] NSWPICMP 466, the Personal Injury Commission was required to assess whether the subject accident caused a threshold psychiatric injury in circumstances where:

• The Claimant suffered from a pre-existing major depressive episode, which was in remission.
• The Claimant was involved in the subject accident on 1 February 2020 when a vehicle collided into the passenger side of her vehicle, where her 10-year-old grandson was sitting.
• The Claimant was involved in a subsequent accident on 24 February 2020 when a kangaroo collided her vehicle.

 At first instance, a Medical Assessor diagnosed a Persistent Depressive Disorder (PDD) which pre-dated the accident. The Medical Assessor found that the subject accident aggravated the PDD but did not cause it. He therefore certified that the subject accident only caused a threshold psychiatric injury.

The Claimant successfully applied for the dispute to be referred to the Medical Review Panel.

Review Panel Decision

The medical members of the Review Panel found that:

• The Claimant suffered from a pre-existing major depressive disorder (MDD) that developed following the death of her husband caused by a heart attack at work.
• The Claimant’s MDD was in partial remission at the time of the subject accident.
• The subject accident caused the Claimant’s depressive symptoms to worsen.
• The subsequent accident further exacerbated the Claimant’s symptoms, resulting in a full relapse of her MDD.

The Review Panel concluded that the subject accident caused an above-threshold psychiatric injury because:

• The subject accident aggravated a pre-existing MDD.
• Under DSM-5, an MDD is a recognised psychiatric illness, which does not fall within the statutory definition of a threshold psychiatric injury.
• The subject accident, therefore, made a material contribution to the Claimant’s above-threshold psychiatric illness.

Key Learnings

The decision in Aleksic v AAI Limited t/as GIO [2023] NSWPICMP 466 acts as a reminder that in threshold injury disputes, a motor accident does not need to be the sole cause – or even the predominant cause – of the relevant medical condition.

To demonstrate an above-threshold injury, the Claimant need only demonstrate that the accident aggravated, accelerated or exacerbated an above-threshold injury.

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 today.