Sparke Helmore MAD (Motor Accidents Division) - Issue 141
09 September 2025
Welcome to the 141st edition of Sparke Helmore’s MAD Publication!
The Personal Injury Commission (Commission) commenced on 1 March 2021 and, with it, the publication of the majority of decisions issued by the Commission.
To help you navigate the recent decisions of the Motor Accidents Division (MAD) of the Commission, we are publishing relevant headnotes of select published decisions with a link to the decisions on the Australasian Legal Information Institute (AustLII) website. Please see the new edition below.
All references to legislation are to the Motor Accident Injuries Act 2017 (NSW) (the MAI Act) unless otherwise noted.
Commentary and analysis of trends will be provided on more substantive decisions by our CTP team and will be separately published when necessary.
Allianz Australia Insurance Limited v Bell [2025] NSWCA 187
Payne JA, Ball JA and Price AJA
Administrative law – judicial review of a medical review panel assessment Certificate – argument of procedural fairness – application of cl 6.41 – single causative event - whether primary judge erred in finding review panel responded to substantial clearly articulated argument.
Mr Bell made a claim for damages following a series of events in 2018 when a man attempted to steal his motorcycle. The thief was unable to start the motorcycle, so started wheeling it away. Mr Bell gave chase, the thief let go of the motorcycle, and the motorcycle fell on Mr Bell, causing injuries. The thief escaped as a pillion passenger on another motorcycle.
A dispute arose as to the degree of permanent impairment caused by Mr Bell’s psychiatric injuries. It was referred to the Commission and allocated to Assessor Jones. Assessor Jones found that Mr Bell has suffered post-traumatic stress disorder (PTSD), but that it was caused by a fear of retribution from who he perceived to be members of an outlaw motorcycle gang (OMCG) involved in the theft. He concluded that the motorcycle falling on Mr Bell could not be the cause of his PTSD. On that basis, he declined to assess permanent impairment as the injuries referred to him were not caused by the motor accident.
Mr Bell lodged an application for review of the assessment, which was referred to a Review Panel. The Review Panel asked Mr Bell about his fear of retribution from OMCG members and recorded that ‘Mr Bell became angry at the suggestion and said that was an invention of “you people”, referring to medical assessors. He said he never indicated any concerns about motorcycle gangs.’ The Review Panel diagnosed PTSD and major depressive disorder, finding variously that the injuries were caused by ‘a traumatic incident’, ‘the subject motor accident’, and ‘the motor accident’, without clarifying the event or events they found to constitute the motor accident.
Allianz filed a summons for judicial review. Most relevantly, they alleged that the Review Panel failed to afford them procedural fairness in not notifying them that Mr Bell now denied any fear from OMCG members and inviting them to respond. The summons was dismissed. Allianz appealed to the Court of Appeal.
The appeal was dismissed by majority, Price AJA (with Payne JA agreeing) found that the issue of fear of retribution was a ‘critical issue’, but the procedural fairness owed by the Review Panel extended only to putting the issue to the claimant and providing him with an opportunity to respond. Ball JA dissented on one ground, being the Review Panel’s failure to identify the event or events that they found constituted the accident and would have allowed the appeal.
Held: The appeal was dismissed.
Supreme Court
Mahroei v QBE Insurance (Australia) Limited [2025] NSWSC 976 (28 August 2025)
Harrison AsJ
Administrative law — application for judicial review of medical assessment certificate and review panel certificate – grounds for review included breach of procedural fairness, insufficiency of reasons and jurisdictional error.
This was an application for judicial review of a decision of a review panel.
Relevant events to this judicial review decision were that:
- On 17 September 2017 the plaintiff was involved in a prior motor vehicle accident (the 2017 accident) for which he alleged he had suffered both psychological and physical injuries.
- On 8 June 2019 the plaintiff was injured in a motor vehicle accident (the 2019 subject accident). The plaintiff made claims for personal injury under the MAI Act.
- On 24 December 2019, the insurer admitted liability and accepted the plaintiff’s claim beyond the 26-week limit on the grounds that the plaintiff sustained more than a threshold psychological injury.
- The insurer denied funding for further psychological treatment and affirmed that decision on 1 July 2020.
- On 28 July 2020, the plaintiff lodged an application with the Commission disputing this treatment decision. The dispute was allocated to Medical Assessor Paisley.
- On 20 April 2021, Medical Assessor Paisley determined that psychology was reasonable and necessary for the plaintiff’s PTSD caused by the 2019 accident. She determined that the 2019 accident significantly exacerbated pre-existing PTSD onset by the 2017 accident. This opinion was shared by the plaintiffs IME Dr Allen.
- In the damages claim, the insurer denied that the plaintiff sustained more than a threshold injury. On 26 July 2022, the plaintiff applied for medical assessment in the Commission seeking a determination that his psychiatric injuries were non-threshold.
On 23 January 2023, Medical Assessor Sidorov determined that the plaintiff’s PTSD had been caused by the 2017 accident and that there was no evidence that the 2019 accident caused any aggravation of his PTSD. This determination disentitled the plaintiff to common law damages under s 4.4.
The plaintiff was successful in having this Certificate referred to a review panel, and on 24 May 2024 the Review Panel affirmed the medical Certificate.
The plaintiff filed a summons in the Supreme Court on 21 August 2024 seeking orders for the review panel Certificate and the original medical assessment to be rendered void and set aside. The plaintiff relied upon five grounds of judicial and the Court dealt with these as follows.
The plaintiff argued that the dispute between the parties was if, and to what extent, pre-existing PTSD had been exacerbated by the subject accident, not that what psychiatric condition was caused by the 2017 accident.
The plaintiff said that by determining that the 2017 accident caused an adjustment disorder without granting the parties the opportunity to make submissions on that issue, the Review Panel failed to afford the parties procedural fairness. It was also argued that this did not form part of the Review Panel's statutory function.
The Court said on these two grounds that ’the Review Panel took into consideration the prior accident and medical records that were available to it. It concluded by its own the medical state examination and formed its own opinion. After conducting a thorough exploration of PTSD symptoms, the plaintiff did not report sufficient symptoms to fulfill the DSM-5-TR condition. The Review Panel’s task was to assess whether plaintiff’s injury, PTSD was caused by the 8 June 2019 motor accident. It is not obliged to make a binary decision”, and that “there was no obligation for the Review Panel expressly to notify the parties that they intended to make a finding that plaintiff’s diagnosis was an adjustment disorder.' Grounds 1 and 2 failed on judicial review.
The plaintiff also argued that the Review Panel dismissed his account of the accident, and in doing so, erred by using this as a basis to determine that a diagnosis of PTSD could not arise, but this was an error because the Review Panel ought to have been considering whether the circumstances could, and factually did, aggravate, accelerate or exacerbate the Plaintiff's pre-existing PTSD. It was also argued that the Panel erred ’in approaching that diagnosis on a basis that treated the Plaintiff's other life circumstances as if causally divisible in a manner contrary to the orthodox operation of the law of causation applicable to the Plaintiff's claim.'
Satisfied that the Review Panel gave sufficient reasons to explain the opinion that the plaintiff did not suffer PTSD from the 2017 accident because the reported symptoms did not meet the DSM-5-TR criterion so as to enable a judicial review, the Court said that “there [was] no jurisdictional error of the kind identified in Wingfoot”. Judicial review grounds 3 and 5 failed.
Finally, the Court said that the reason that the Review Panel did not accept the plaintiff’s account of the motor accident was that it was unreliable and not supported ‘by logically probative evidence’. It rejected the plaintiff’s proposition that this was determinative, and that this led to an error in diagnosis. Further, the Panel said that this was a merits review, not a ground for judicial review. The judicial review ground failed.
Held: The plaintiff’s application for judicial review failed and the summons was dismissed.
Medical Review Panel
Allianz Australia Insurance Limited v Sourenian [2025] NSWPICMP 618; (18 August 2025)
Member Alexander Bolton, Medical Assessors John Baer and Steven Yeates
Medical review of threshold injury decision – where claimant does not meet diagnostic criterion for a recognised psychological injury that is more than a threshold injury – several contributing psychological stressors.
On 18 May 2023, the claimant was driving a vehicle that was reversed into by the insured’s truck. The claimant made a claim for statutory benefits, and the insurer denied liability beyond 52 weeks on the basis that the claimant had sustained threshold injuries. That decision was affirmed on internal review, and the claimant applied for medical assessment in the Commission.
On 10 April 2024, Medical Assessor Sidorov diagnosed a PTSD as a result of the motor accident, which is not a threshold injury. The insurer applied to have the medical assessment referred to review panel on the basis that there was a reasonable suspicion of material error. The insurer argued inter alia that:
- Assessor Sidorov fell into material error by not setting out how he reached his diagnosis and/or by failing to address criteria F, G and H set out by the DSM-5-TR.
- Assessor Sidorov accepted that the claimant had significant functional impairment which was inconsistent with medical records and that the assessor failed to put that inconsistency to the claimant.
The Panel conducted a re-examination of the claimant.
On 18 August 2025, the Panel overturned Assessor Sidorov’s determination and found that the claimant had symptoms of an adjustment disorder with anxious mood (a threshold injury) as a result of ’several contributing factors’ including an unrelated chronic health condition.
It was relevant that the Panel considered that the symptoms were ’out of proportion to the severity or intensity of the stressors and have caused only modest functional impairment’ as to why the claimant did not meet DSM-5-TR criterion for PTSD or another recognised psychological injury that was a non-threshold injury.
Held: The Certificate was revoked and a new Certificate was issued that the injury was a threshold injury.
Miscellaneous Claims Assessment
CMB v QBE Insurance (Australia) Limited [2025] NSWPIC 420; (19 August 2025)
Member Susan McTegg
Whether claimant wholly or mostly at fault for ss 3.11 and 3.28 – single vehicle motor accident - claimant’s version of events not borne out by CCTV footage – where witness evidence not accepted - claimant failed to take reasonable care in not controlling speed and direction of his vehicle – not wholly at fault but mostly at fault.
The claimant was the driver of a motor vehicle involved in an accident on 23 August 2022 and made a claim for statutory benefits under the MAI Act. The circumstances of the accident were in dispute, including that the claimant rejected the insurer’s position that this was a single vehicle accident.
On 26 July 2024 the insurer declined liability for payment of statutory benefits after 26 weeks on the basis that the claimant was wholly at fault for the accident. It was also alleged the claimant had sustained a threshold injury. The fault decision was affirmed on internal review, and on 22 May 2025, the claimant applied to the Commission disputing whether for the purposes of ss 3.11 and 3.28, the motor accident was caused wholly or mostly by the fault of the claimant.
It was agreed that the matter could be determined on the papers, and on 20 August 2025, the Member determined that the accident was caused mostly by the fault of the claimant where his contributory negligence or departure from the standard of care he was required to exercise in driving at an excessive speed and in failing to control the direction of his vehicle was greater than 61%.
Interestingly, an individual was appointed representative for the claimant on 30 January 2025 as the claimant was determined to be of legal incapacity. The claimant then submitted that he was an unreliable historian and that his inconsistent accounts of the motor accident could not be relied upon.
The Member accepted the insurer’s argument that the claimant’s histories prior to 3 May 2024 should not be ignored as there was no suggestion of legal incapacity in clinical records, as the claimant represented himself in workers compensation proceedings and attended a medical examination with Medical Assessor Oates when those histories were given. It was considerable that in the claimant’s history there was a second vehicle involved in the accident, which was inconsistent with CCTV footage.
The Member also discounted witness evidence that the claimant relied upon on the basis that the individuals name was not disclosed, there was no sign statement and nothing in Police documentation that correlated her involvement as a witness. Additional witness evidence light upon the claimant was rejected on the basis that it was not contemporaneous and was inconsistent with the CCTV footage and 000 recording.
The Member needed to resolve the factual dispute as to whether it was a single vehicle accident as the insurer alleged, or whether, as the claimant alleged, an unidentified vehicle was involved. As the claimant’s accounts changed throughout the course of the claim, the latter required a member to determine if an unidentified vehicle:
- veered onto the claimant’s side of the road and caused him to swerve and collide with a pole,
- exited a driveway, collided with the claimant’s vehicle or caused the claimant’s vehicle to swerve and collide with the telegraph pole.
The Member did not accept the claimant’s evidence to be reliable. She was persuaded by the insurer’s evidence, which included CCTV footage and an accident reconstruction report of Ms Gaffney.
The insurer alleged that the claimant’s speed was excessive and relied on Ms Gaffney’s report to substantiate that allegation. She said the vehicular damage and CCTV footage supported a finding that the claimant was travelling 80kph in a 60kph zone. The member accepted that position.
The Member noted that an assessment of fault for the purposes of ss 3.11 and 3.28 for single vehicle accidents require an assessment of what is just and equitable in the circumstances of the case.
A finding of 100% contributory negligence (or for these purposes, wholly at fault) applied in the ’worst possible case’ and the Member determined that there were ameliorating circumstances against that finding. She noted that there was no indication of intoxication, and that the claimant gave evidence to Police that he recalled his right leg going numb before the accident.
There was a pre-accident medical history of this, however, and the claimant was on notice of the forthcoming fitness to drive assessment relating to his musculoskeletal chronic pain and ’may have been aware of the risk associated with driving when he suffered with numbness and weakness of the right leg’, the Member said.
Whilst not wholly at fault, the Member determined that the claimant’s contributory negligence was more than 61%, meaning that he was mostly at fault for the accident.
Held: The claimant was determined to be mostly at fault for the purposes of ss 3.11 and 3.28.
Settlement Approval
Allianz Australia Insurance Limited v Jiang [2025] NSWPIC 388; (7 August 2025)
Member Shanan Radnan
Settlement approval under s 6.23(2) where claimant not legally represented – claims for non-economic loss damages and travel and accommodation under s 4.5(b).
The claimant was a pedestrian struck by a motor vehicle on 29 October 2021.
The claimant sustained significant injuries including fractures of the patella, tibial plateau, right shoulder, pelvic pubic rami, injuries to the knees, thoracic and lumbar spine, cognitive and psychological injuries. She made claims for statutory benefits and common law damages.
The insurer admitted liability in full for common law damages on 24 August 2024 and conceded entitlement to non-economic loss damages thereafter.
The parties agreed to a settlement of $225,000 for non-economic loss damages only.
At the time of the settlement, the claimant was 85 years old, was on an aged pension and there was no claim for economic loss damages.
The claimant was not legally represented.
The settlement had to be approved by the Commission per s 6.23(2)(b).
At the preliminary conference, the Member noted that there was no provision for travel and accommodation costs despite the evidence that the claimant had to relocate to Melbourne to be closer to her son as a result of the injuries.
Under s 4.5(b) of the MAI Act, a claimant can recover damages for ’costs relating to accommodation or travel (not being the cost of treatment and care) of a kind prescribed by the regulations’.
The Motor Accident Injuries Regulation 2017 cl 9 states that ’the kind of accommodation or travel for which damages may be awarded (subject to Division 4.2 of the Act) is any accommodation or travel for which the claimant has incurred, or is likely to incur, a cost as a result of the injury caused by the motor accident.’
The claimant then produced an impact statement and claimed costs of relocation to Melbourne.
The parties agreed to an increased settlement of $226,300 to include $1,300 for travel and accommodation costs likely to be incurred as a result of the injury caused by the motor accident.
Additional costs were claimed for the claimant’s son and daughter-in-law’s accommodation costs whilst assisting the claimant, but the insurer argued that that was not compensable. The insurer relied upon Ali v AAI Limited trading as NRMA Insurance [2022] NSW PICMR 56, and the Member agreed that those losses were appropriately referred to the statutory benefits claim as part of care claim by the insurer.
In approving the increased settlement of $226,300, the Member noted that the agreed component for non-economic loss damages of $225,000 exceeded the claimants first offer ($148,490). She agreed that it was ’just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant and the age of the claimant now and advanced age of 85 years’ in accordance with cl 7.37 of the Guidelines.
The Member correlated the allowance of $1,300 for travel and accommodation with the invoices that showed this amount was ’incurred due to the necessity to relocate … for airfares vehicle rental and moving costs.’
Held: The settlement was approved.
CIC Allianz Insurance Limited v Kader [2025] NSWPIC 412; (15 August 2025)
Member Shana Radnan
Settlement approval of s 6.23(2) where claimant not legally represented – claims for economic loss only.
On 5 June 2019, the claimant passenger fell and sustained injuries when the insured bus suddenly broke heavily to avoid a collision with a vehicle which was illegally parked.
A claim for common law damages was made, and the insurer admitted liability for that claim on 23 November 2021. There was no allegation of contributory negligence.
The claimant was assessed in the Commission has having permanent impairment not greater than 10%, and so there was no entitlement to non-economic loss damages.
The parties agreed to a settlement of $90,000 being $6,500 for past economic loss and $83,500 for future economic loss. At the time of the settlement, the claimant was 51 years old. She had returned to her pre-injury employment after the accident and then changed employment. As the claimant was self-represented the settlement needed to be approved by the Commission under s 6.23(2)(b).
At the preliminary conference, the Member directed further evidence be obtained based on concerns of the assessment of economic loss. The insurer was directed to issue a request for further and better particulars in both English and Macedonian to assist the claimant provide the proper responses after she made a new allegation that she was terminated due to her inability to perform pre-injury duties.
The parties reached further agreement of an increased settlement sum of $115,200 representing $25,200 for past economic loss and buffer of $90,000 for future economic loss. In approving the amended settlement, the Member commented that:
Medical Assessor Home determined that physical injuries sustained in the motor accident had resolved.
’The claimant had ongoing left knee pain associated with osteoarthrosis symptomatic from 2014 and unrelated to the subject accident. She took leave after the motor accident for treatment related to this condition.
Past economic loss was calculated for initial absences plus allowances from 2020 to 2025 “less 30% for an unrelated shoulder condition…using the leave records and clinical records to ascertain the relationship to time off with accident-related injuries.’
Future economic loss took into account the unrelated comorbidities that may have led to early retirement anyway, but also accident-related occasional pain flares, which would likely impact on her earning capacity from time to time to retirement.
Held: The settlement was approved.
