ACT Supreme Court determines pre-conditions to pursuit of a motor accident claim

On 16 February 2026, the ACT Supreme Court handed down its decision in Stewart v Kirk & Insurance Australia Limited trading as NRMA Insurance [2026] ACTSC 33.

The Plaintiff was involved on a motor vehicle accident on 2 July 2020. Following the accident, the Plaintiff made a claim for ’defined benefits’ under the Motor Accident Injuries Act 2019 (ACT) (the Act).

To assess her entitlement to ’quality of life benefits’—one of the categories of defined benefits available under the Act—NRMA referred the Plaintiff to MLCOA, the independent medical examiner provider (IME provider) for whole person impairment (WPI) assessments. The resulting WPI assessments by the ‘independent medical examiners’ were as follows:

• Dr Seevnarain assessed physical WPI at 0%.
• Dr Spear assessed psychological WPI at 5%.

NRMA made a quality of life benefits offer to the Plaintiff based on these assessments, under s 167 of the Act.

Note: Under the Act, common law claims are referred to as motor accident claims, and the Act imposes a threshold on these claims—an injured person must be assessed to have a WPI of at least 10% as a result of the accident before they can pursue a motor accident claim.

The Plaintiff subsequently arranged WPI assessments by ‘private medical examiners’, the results of which were as follows:

• Dr Ridhalgh assessed physical WPI at 14%.
• Dr Takyar assessed psychological WPI at 15%.

Dr Ridhalgh happened to also be an ‘independent medical examiner’ for the purpose of the Act.

The Plaintiff provided the private medical examiner reports to NRMA, and NRMA elected under s 159(2) of the Act to provide those reports to the IME provider for review by Dr Seevnarain and Dr Spear, so they could affirm or increase their original assessments under s 159(4) of the Act. Both doctors affirmed their original WPI assessments.

NRMA then made a ’final offer’ for quality of life benefits in accordance with ss 160(3)(b) and s 162(1)(b) of the Act, which, following a discontinued application in the ACT Civil and Administrative Tribunal (ACAT), the Plaintiff rejected.

The dispute arose when the Plaintiff served a notice of motor accident claim on 17 April 2023 and called a compulsory conference under s 258 of the Act to allow her to commence court proceedings. NRMA did not agree to attend a compulsory conference, as it disputed that the Plaintiff had met the threshold requirements to bring a motor accident claim under s 239 of the Act.

Issues for determination

The Plaintiff brought an application before the ACT Supreme Court seeking a determination that she was entitled to pursue a motor accident claim as she had been assessed to have sustained WPI of at least 10% by Dr Ridhalgh. The Plaintiff argued that while Dr Ridhalgh had assessed her in his capacity as a ‘private medical examiner’, he was also an ‘independent medical examiner’ for the purposes of the Act, and so his assessment of 14% WPI entitled her to bring a motor accident claim.

The Plaintiff contended that the words ’has been assessed as having WPI of at least 10%’ for the purpose of s 239(1)(a) of the Act are broad enough to capture assessments conducted by any person who is an independent medical examiner.

The insurer argued that this provision referred only to the final assessment of an independent medical examiner appointed by the IME provider, following the exhaustive statutory process.

Determination and reasoning

Her Honour McCallum CJ dismissed the Plaintiff’s application, resolving the dispute by the application of ‘orthodox principles of statutory construction’: context and purpose.

The Court determined that the fact that that Dr Ridhalgh was an independent medical examiner did not elevate his assessment to the place of an independent medical examiner appointed by the IME provider to conduct an initial WPI assessment.

In reaching this conclusion, her Honour identified that the Act deliberately embeds a detailed statutory regime into motor accident / common law claims, including through the imposition of minimum WPI thresholds.

Her Honour identified that the Plaintiff’s application for quality of life benefits was governed closely by Div 2.6.2 of the Act, with Div 2.6.3 providing the machinery provisions for the determination of quality of life benefits. Her Honour identified s 137(4) of the Act as important because it distinguishes between the first WPI assessment as arranged through referral to the IME provider, and the second or subsequent WPI assessment arranged by the injured person. This provision provides:

(4) To remove any doubt, if a person makes a quality of life benefits application –

(a) the relevant insurer must refer the injured person to an authorised IME provider for a first WPI assessment in accordance with this division; and

(b) the injured person may arrange for a private medical examiner to carry out a second or subsequent WPI assessment only in accordance with s 158 (Second WPI report)

[emphasis added]

Her Honour identified that this is followed by ss 154 to 157, which specify the relevant paths the insurer is to take according to percentage WPI assessment, with each stage contemplating the making of an offer. The language of the relevant provisions confirms that both seeking a second WPI assessment and providing a second WPI report to an insurer is optional. The insurer may provide the second WPI report to the independent medical examiner under s 159(2) of the Act, and the independent medical examiner may affirm or increase their original WPI assessment under s 159(4).

There is no obligation on the independent examiner to accept the second WPI assessment or increase their own assessment to at least 10%.

Following this reasoning, the initial WPI assessment is binding on both parties, subject to the injured person’s right to dispute the assessment through a second WPI report. If a second WPI assessment is obtained, it is not binding on either party, but if the injured person chooses to provide it to the insurer and the insurer chooses to provide it to the original independent medical examiner and this results in the independent medical examiner increasing the assessed WPI, the increased assessment becomes binding.

Her Honour identified that an insurer can only be bound by a revised upwards assessment under s 159 of the Act, not an increased WPI finding from a private medical examiner. The result of the alternative interpretation put forward by the Plaintiff would be that the WPI assessment of the private medical examiner would bind the insurer only for the purpose of determining whether the statutory pre-condition for an award of damages is met. This is inconsistent with the statutory scheme created by the Act, which contemplates that the final WPI assessment will be from the independent medical examiner appointed by the IME provider.

Her Honour further accepted NRMA’s submission that there is no independent right of an injured person to obtain a second WPI assessment outside of the provisions relating to WPI assessments, which necessitate an initial assessment arranged by an IME provider. Divisions 2.6.2 and 2.6.3 confer authority to determine WPI on the independent medical examiner, and the injured person’s remedy in respect of the WPI determination is administrative review by ACAT.

Implications for CTP claims under the Act

This decision is significant in confirming who is entitled to pursue a motor accident claim, and how they become entitled to pursue a motor accident claim.

McCallum CJ emphasised the importance of following what her Honour described as the ‘rigorous statutory process’ under this ‘highly regulated regime’ before an injured person can be entitled to make a motor accident claim.

The ACT Supreme Court has confirmed that appointing a private medical examiner who is also an independent medical examiner does not elevate that expert’s findings to that of an independent medical examiner, whose assessment is subject to the rigorous steps for conducting a WPI assessment identified by the Act.

The role of the independent medical examiner appointed by the IME provider for the purpose of conducting a WPI assessment cannot be displaced by a private medical examiner who conducts a second or subsequent WPI assessment regardless of whether they are separately qualified as an independent medical examiner.

Since the Plaintiff made her claim, the words of s 239 of the Act have been amended in terms that more clearly reflect NRMA’s interpretation during the proceeding of the language of the section as formerly drafted—the section now specifies that to be entitled to make a motor accident claim, an assessment has to have been conducted by an independent medical examiner under Division 2.6.3, and the WPI assessment needs to be at least 10%. Her Honour acknowledged that this amendment did not greatly assist in determining what the section meant before—it might have been intended to effect a deliberate change, but equally it might have been intended to make clear what was intended all along. The amendment combined with this decision though, should offer clarity for future claims.