Sparke Helmore's MAD (Motor Accidents Division) - Issue 137
17 June 2025
Welcome to the 137th edition of Sparke Helmore’s MAD Weekly!
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 weekly the relevant headnotes of select published decisions with a link to the decisions on the Australasian Legal Information Institute (AustLII) website. Please see this week’s 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.
Medical Review
Insurance Australia Limited t/as NRMA Insurance v Le [2025] NSWPICMP 202 (26 March 2025)
Member Anthony Scarcella and Medical Assessors Doron Samuell and Gerald Chew
Medical assessment panel review – threshold injury as defined by s 1.6 – generalised anxiety disorder not a threshold injury – where claimant is inconsistent, relevant history of pre-accident substance use.
On 7 October 2018, the claimant was injured in a motor accident as a passenger in the at-fault vehicle which rear-ended and side swiped another vehicle. The claim for statutory benefits was denied by the CTP insurer on the basis that the claimant sustained threshold injuries.
The claimant applied for assessment in the Commission seeking a determination that a psychological injury or injuries to his head, face, neck, back, arms, hands legs and ankles were sustained in the motor accident which were not threshold injuries.
On 12 December 2022, Assessor Atsumi Fukui determined that the claimant suffered a generalised anxiety disorder caused by the motor accident and was a non-minor (now non-threshold) injury for the purposes of the Act (the Medical Assessment).
The insurer sought a review of the Medical Assessment in accordance with s 7.26 and on 8 March 2023, the President’s Delegate determined that there was reasonable cause to suspect that the Medical Assessment was incorrect in a material respect and referred the matter to a Review Panel.
The insurer argued that whilst there was contemporaneous reports of various psychological symptoms—including anxiety, flashbacks, nightmares, memory loss and concentration issues—the claimant’s treatment providers did not diagnose him with any recognised psychiatric illness and that the claimant therefore did not have a recognised psychiatric illness.
Further, the insurer argued that if the claimant did develop a psychiatric condition after the motor accident, it was likely to be due to subsequent stressors not considered by Assessor Fukui, particularly when the claimant’s evidence was that he did not recall anything in the two months following the motor accident.
The Panel re-examined the claimant and noted various inconsistencies, including that the claimant was working on a full-time basis in a technical role with no negative feedback and that appeared to be inconsistent with his self-report of poor concentration. He rejected that there was a contradiction. The Panel observed him to be “bright and reactive” and noted that the pattern of symptoms, emotions or behaviour postdating the motor accident was not plausible or suggestive of a psychiatric disorder.
In all, the Panel determined that the claimant’s level of function was “inconsistent with a mental health condition attributable to the motor accident” and overturned Assessor Fukui’s determination on that basis.
The insurer also challenged a non-threshold determination of Medical Assessor Ian Cameron dated 28 August 2022 in separate review proceedings, and the Review Panel affirmed that decision on 24 August 2023.
Held—The Certificate was revoked. The claimant did not suffer any recognised psychiatric disorder caused by the motor accident on 7 October 2018.
Allianz Australia Insurance Limited v Chahine [2025] NSWPICMP 214 (27 March 2025)
Member John Harris and Medical Assessors Matthew Jones and Himanshi Singh
Review of permanent impairment assessment wherein it was determined that the psychological impairment was greater than 10% - agreement that the motor accident caused a major depressive disorder - where condition had remitted and resolved by re-examination.
The claimant was injured in a rear-end motor accident on 17 July 2019. The relevant CTP insurer admitted liability for statutory benefits and damages following the motor accident.
A dispute arose between the parties regarding the claimant’s degree of permanent impairment as relevant to the entitlement and award of non-economic loss damages. On 9 October 2023, Medical Assessor Nagesh determined that the accident caused a major depressive disorder and assessed the degree of permanent impairment at 15%.The insurer applied for review of Assessor Nagesh’s permanent impairment Certificate and the President’s Delegate referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
The insurer argued that Assessor Nagesh had taken an inaccurate history, which led to error or a suspicion of error in the application of PIRS. The insurer relied on a pre-accident diagnosis of Major Depressive Disorder and submitted that the history that the claimant had the ability to concentrate limited to five minutes was inconsistent with other histories. It was submitted that this history was inconsistent with working 15 hours per week and raising three boys and that the assessment of class 3 impairment for concentration was not accurate. The claimant opposed the insurer’s application.
During the re-examination by the Panel, the Panel observed that the claimant did not currently satisfy diagnostic criteria for any recognised psychiatric illness and there was no permanent psychiatric impairment because she had recovered from the psychological effects of the motor accident.
In making this determination, the Panel acknowledged the expert evidence that diagnosed the claimant with a recognised psychiatric condition after the accident but stated that ’it is not unusual that a person can recover from the effects of a motor vehicle accident. The accident, whilst significant at the time, was not of such severity that the effects of the psychological condition may continue over an extended period. The accident occurred in July 2019, and it is six years since the rear end collision. The other medical reports are somewhat dated and do not represent the present situation.’
Held—The Certificate of Medical Assessor Nagesh on the degree of permanent impairment was revoked and new Certificate issued based on the Review Panel’s assessment that the claimant did not suffer from a psychological condition and an assessment of the degree of permanent impairment was not required.
Bojovic v Allianz Australia Insurance Limited [2025] NSWPICMP 223 (31 March 2025)
Member Susan McTegg, Medical Assessors Margaret Gibson and Adeline Hodgkinson
Review of permanent impairment medical assessment certificate: dispute related to WPI assessment of a mild traumatic brain injury (TBI) - cervical, thoracic and lumbar spine, right knee, and left shoulder injuries – no WPI can attach to higher intellectual functions – no impairment in activities of daily living caused by TBI – soft tissue injuries fully recovered and do not give rise to assessable WPI.
The claimant sustained soft tissue injuries to his cervical spine, thoracic spine, lumbar spine, right knee and left shoulder, a mild traumatic brain injury and a skull fracture as a pedestrian injured in a motor accident on 6 April 2021.
The relevant CTP insurer admitted liability for statutory benefits and damages following the accident.
A dispute arose between the parties regarding the claimant’s degree of permanent impairment as relevant to the entitlement and award of non-economic loss damages. On 27 March 2024, Medical Assessor Sidorov determined that the claimant sustained a 7% WPI in respect of a major depression disorder. That Certificate was not subject to these review proceedings.
On 1 May 2024, Medical Assessor Sophia Lahz determined that the accident caused a TBI which she assessed at 6% WPI due to cognitive deficits in memory, concentration and attention. She further determined that the claimant sustained soft tissue injuries to the lumbar spine, cervical spine, thoracic spine, right knee and left shoulder in the motor accident, which did not attract assessable impairment.
The claimant applied for review of Assessor Lahz’s permanent impairment Certificate and the President’s Delegate referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.
The Panel re-examined the claimant and conducted neuropsychological testing. The Panel noted that whilst the claimant’s post-accident function had declined relative to his previous function and high intellectual abilities (including ”completing his PhD, finalising tax returns and work efficiency’), they noted, 'There is no permanent impairment of his activities of daily living or social and interpersonal functioning as this refers only to basic functions. He is independent in personal care, he drives and can use public transport independently, he can cook an evening meal and can exercise independently.’
The Panel commented:
'For his work and studies there is a small but significant impact arising from the injury. There is no evidence that this affects his activities of daily living as defined in the Guidelines or at page 317 of the AMA 4 Guides. Additionally, impairment is assessed independently of disability or handicap. The claimant’s limitations and additional support required may affect productivity, and rate of progression through his studies. These functions are specific to his circumstances but do not represent activities of daily living.'
The Panel said that despite the evidence of reduced higher cognitive function capacity, the deficits were not of a sufficient severity to attract impairment based on the Clinical Dementia Rating (CDR) scale set out in table 6.9 on page 115 of the Guidelines. The TBI therefore did not attract assessable impairment.
The Panel otherwise confirmed that the injuries to the spine, right knee and left shoulder had resolved and gave rise to no assessable impairment.
Held—The Certificate was revoked and a new Certificate issued - injures caused by accident assessed at 0% WPI.
Merit Review
Raza v Youi Pty Limited [2025] NSWPICMR 11 (26 March 2025)
Merit Reviewer: Jeremy Lum
Dispute regarding insurer’s assessment of the claimant’s pre-accident weekly earnings (PAWE) – claimant earner was a student and argued for material change in circumstances – decision affirmed: PAWE to be calculated under Sch 1, cl 4(1) averaging earnings over 12-month period immediately before the day of the accident.
The claimant sustained a radial fracture and a psychological injury in a motor accident on 5 June 2024. The insurer accepted liability for statutory benefits and began paying weekly income benefits to compensate for the claimant’s loss of earning capacity from his pre-injury casual role in a hamburger restaurant. PAWE was assessed at $159.90 calculated on payslips provided in the 52-week period (5 June 2023 – 4 June 2024) immediately before the motor accident.
The claimant argued that additional factors regarding his employment circumstances should be considered in order to assess PAWE. He argued that when he entered the workforce in 2023 at 17 years of age, he was provided one shift per week or none at all, however his shifts gradually increased and that by the time that the motor accident occurred, he was regularly working 20 hours per week. He relied on three payslips in the two months preceding the accident and argued that PAWE should 'be calculated at $400.00 gross weekly, in accordance with the minimum fixed shifts of 20 hours per week that he was receiving at the time of the accident.'
The insurer affirmed the original PAWE assessment of $159.90 on internal review and the claimant applied to the Commission for the dispute to be resolved under Sch 2(1)(a).
Of relevance, the claimant initially advised that he would obtain correspondence from his employer attesting to an agreement of a minimum of 20 hours per week. The claimant’s solicitor later advised the Commission that this evidence was not likely to be obtained, and that the matter should proceed on the papers.
The parties agreed that the claimant was an earner and that Sch 1, cl 4(1) applied in calculating PAWE. The claimant did not produce evidence to suggest that another calculation method applied, and thus applying Allianz Insurance Australia Limited v Shahmiri [2022] NSWSC 481, the claimant’s PAWE was calculated by taking his earnings over the whole of the 12-month period immediately before the day of the accident and dividing it by 52.
Held—The insurer’s assessment of PAWE was affirmed.
Claims Assessment
Martignago v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 121 (1 April 2025)
Member: Susan McTegg
Application for claims assessment – for determination of liability for common law damages: breach of duty of care by unidentified driver and no finding of contributory negligence – claim against Nominal Defendant – assessment of damages under s 7.36.
The claimant alleged that on 4 August 2021 he was injured in a motor accident when he took evasive action and lost control of his vehicle due to an unidentified vehicle veering into his lane. As a result of the motor accident, the claimant sustained a burst L3 fracture and left ulna/radius fracture.
The claimant made a claim for statutory benefits and common law damage against the Nominal Defendant because it was alleged that the vehicle at fault was unidentified. On 15 July 2024, the Nominal Defendant denied liability for the claim relying on s 6.20(1) on the basis that there was insufficient evidence to determine that an unidentified vehicle caused or contributed to the accident.
The claimant applied to the Commission for claims assessment seeking a determination on liability and an assessment of damages. On the issue of liability, the claimant argued before Member McTegg that his evidence was consistent throughout the claim and to Police following the motor accident and that primary liability could be established by accepting the evidence of the claimant.
The insurer relied on an expert report of Michael Griffiths who attested that the claimant’s truck veered off the road and travelled unbraked for the length of the trailer and submitted that it was more likely that the claimant fell asleep. The insurer argued that the claimant was wholly at fault for failing to maintain control of the vehicle, that the claimant did not mention to Police at the scene that there was an unidentified vehicle or a need to take evasive action and that ’even if there was another vehicle passing, there is no suggestion of fault on the part of that vehicle.’ In the alternative that the Member was satisfied of the presence of an unidentified vehicle and that the driver of that vehicle breached the duty of care, the insurer argued for a minimal finding of 50% contributory negligence.
The Member placed weight on early documented histories provided by the claimant of an unidentified vehicle including to medical practitioners on the day of the motor accident ’independently of the other [which] represent contemporaneous accounts of the accident.’ Applying Mason v Demasi, which said that clinical notes need to be considered in light of other evidence because they ’are usually taken in furtherance of a purpose different to that for which they are used in proceedings’, the Member corroborated this evidence with property damage records and the claimant’s account to Police. The Member in all considered the claimant to be consistent and reliable and was satisfied of the presence of an unidentified vehicle.
The Member was further satisfied that the claimant had taken evasive action to avoid the oncoming vehicle. The Member rejected the insurer’s biomechanical evidence and preferred the claimant’s evidence, which determined that the path of the claimant’s truck veering off the pavement and across the roadside grass appeared to be due to active steering of the driving not due to inattentive drift off the side of the road. She consequently determined that the claimant’s evasive action that led to the loss of control was due to the breach of duty of care by the driver of the unidentified vehicle.
The Member rejected that the claimant was contributorily negligent because he ‘had no alternative other than to leave the road, having regard to the size of his vehicle and the narrow width of the road.’
Consequently, the Member determined that the Nominal Defendant was liable for damages in full.
The Member went on to assess damages in the sum of $1,011,729 plus costs of $88,216.88.
Held—The Nominal Defendant was liable because the insured breached the duty of care owed to the claimant and the claimant sustained an injury loss and damage as a result. The damages were assessed at $1,011,729 plus costs.
