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 Act 1999 (NSW), ss 58, 60, 61, 63, 94 Motor Accident Permanent Impairment Guidelines 2018, cl 1.215 Supreme Court Act 1970 (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)