Sparke Helmore's MAD (Motor Accidents Division) - Issue 139
05 August 2025
Welcome to the 139th 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 headnotes of select published decisions with a link to the decisions on the Australasian Legal Information Institute (AustLII) website. Please see the most recent 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.
Merit Review
Zandy v Allianz Australia Insurance Limited [2025] NSWPICMR 14 (15 April 2025)
Member: Hugh Macken
Refusal of statutory benefits on grounds that workers compensation claim is to be made under s 3.35; insufficient evidence and onus of proof relating to employment at the time of the motor accident.
On 9 March 2024, the claimant was injured in a motor accident. He lodged a claim for statutory benefits against the CTP insurer. During a conversation on 16 April 2024 according to the insurer, the claimant was asked if he was working as a driving instructor at the time of the accident and he advised he was. On 24 April 2024, the insurer denied the claim for statutory benefits under s 3.35 on the grounds that the claimant was entitled to lodge a workers compensation claim.
This decision was affirmed on internal review on 2 July 2024. The claimant applied to the Commission for resolution of the dispute and it was allocated to Member Macken to determine.
The Member made a preliminary comment that the onus was on the insurer to establish that there were reasonable grounds to consider that workers compensation is or may be payable in respect to the injury. He noted that the insurer’s reliance on the telephone call was not substantiated by a file note, transcript or recording of the conversation. Member Macken considered that the insurer had incorrectly required the claimant to disprove his rights to a workers compensation claim by providing “a call history log and the name of the person he spoke to in an effort to verify his claim”.
The Member rejected the insurers interpretation that the claimant was working as a driving instructor at the moment of the subject accident, instead reading the particulars that the claimant was employed as a student learner driver when the motor accident occurred. The Member accepted the claimant’s evidence that he enquired with icare regarding a workers compensation claim, was advised that he had no entitlement and therefore did not do so. The Member stated that this “cannot be reasonably inferred to be a concession by the claimant that he has an entitlement to make a claim and will do so!”
The Member determined that the insurer did not have reasonable grounds to determine that a workers compensation policy was in effect and insured the claimant in the circumstances of this motor accident.
Held: The decision was overturned as the s 3.35 defence failed. The claimant was not entitled to workers compensation and was entitled to statutory benefits under the CTP scheme.
Charity v QBE Insurance (Australia) Limited [2025] NSWPICMR 15 (8 May 2025)
Merit Reviewer: Katherine Ruschen
Cost of treatment and care of attendant care services provided by mother – where loss of income of provider of gratuitous services are claimed as statutory benefits and injured person is a minor.
The claimant is a minor who sustained serious injuries in a motor accident on 20 September 2024. She is now dependent on parental care for her daily needs, and her mother resigned from her employment to care for the claimant. A request was made for statutory benefits to be paid in respect of the claimant’s mother’s wage loss under s 3.24 of the Act, that is, as “treatment and care” as defined by s 1.4.
On 29 January 2025 the insurer determined no statutory benefits were payable in respect of the claimant’s mother’s wage loss. This decision was affirmed on internal review dated 12 February 2025.
Before the Commission, the claimant acknowledged that statutory benefits for gratuitous services were excluded under the Act but argued that where an injured person is a minor or under legal incapacity, special circumstances should apply. The claimant argued for an expansive reading of the Act, including section 3.26 which provides statutory benefits for the loss of capacity to provide gratuitous domestic services by an injured person, so as to mitigate the financial hardship on families where a minor is catastrophically injured and requires care outside the realm of a normal parenting arrangement.
The insurer argued that SIRA requires attendant care services to be provided by trained support workers and attendant care providers and that because the claimant’s mother did not meet that definition, she is not providing “attendant care services”. The insurer relied on Ali v AAI Limited t/as NRMA Insurance [2022] NSWPICMR 56 which determined that expenses recoverable under s 3.24(1) must be incurred by the claimant, not a parent or dependent and argued that loss of wages is not the claimant’s expense, nor is it a cost of treatment and care.
The Merit Reviewer ultimately agreed with the insurer’s position that the wage loss “is an indirect, or consequential loss to the mother (not the claimant), which is not provisioned for in s 3.24”, nor was it treatment and care for the purpose of s 1.4, nor is it an expense recoverable under section 3.26. She accepted that the mother was providing attendant care services, but rejected that statutory benefits were payable for loss of wages suffered in connection with the provision of those services. The Merit Reviewer did comment that the wage loss may be compensable “in some way in a claim for damages, for example, damages for gratuitous domestic assistance”.
Held: the reviewable decision is affirmed.
Medical Review
Insurance Australia Limited t/as NRMA Insurance v Cooper [2025] NSWPICMP 257 (14 April 2025)
Member Jeremy Lum and Medical Assessors Wayne Mason and Christopher Rikard-Bell
Review panel determination regarding threshold injury – psychological injury – complex pre-accident history and aggravation of pre-existing condition – motor accident does not meet DSM-5-TR criterion A for PTSD.
The claimant was injured in a motor accident on 5 August 2020. Her vehicle was struck whilst she was driving through a roundabout. The claimant made a claim against the CTP insurer of the at-fault vehicle.
A medical dispute arose as to whether the claimant’s psychological injury was a threshold injury. The dispute was initially allocated to Medical Assessor Samson Roberts who determined on 18 September 2023 that the motor accident caused the claimant to suffer from PTSD, which is not a threshold injury. The insurer applied for review of this decision and satisfied the President’s Delegate that there was a reasonable suspicion of error in the Certificate. A review panel was convened to determine the dispute.
The insurer argued that Medical Assessor Roberts gave insufficient reasons as to how the claimant satisfied DSM-5 criterion for PTSD. The claimant did not lodge a reply to the insurer’s application.
The Panel determined that the claimant be re-examined by Medical Assessors Mason and Rikard-Bell on 17 March 2025. During that re-examination, the claimant disclosed a pre-accident history of social anxiety, which at times precluded her from attending social events. The claimant worked as a teacher before the motor accident.
The claimant advised that after the motor accident, she developed immediate onset of anxiety associated with driving, nightmares, avoidance behaviours and flashbacks. She stopped work in December 2020 due to this anxiety. This was corroborated by contemporaneous treating records.
Ultimately, the Panel compared the pre-accident function to the post-accident presentation. They agreed that the subject motor accident did not meet DSM-5-TR Criterion A for PTSD and revoked Assessor Roberts’ determination. They diagnosed an aggravation of pre-existing social anxiety disorder, concluding that 'the motor accident was capable of causing an aggravation of this nature given the apparent forceful nature of the impact and the claimant’s increased fear, anxiety and inability to function socially, such as no longer attending trivia nights or engaging with her mother’s work clients'.
The Panel further acknowledged that PTSD was the “sole injury” referred for assessment but considered that the 'diagnosis of social anxiety disorder to be within the scope of the medical dispute referral' and as the treating psychologist had 'made an alternative diagnosis of generalised anxiety disorder which is reasonably consistent with the Panel’s diagnosis'.
Aggravation of pre-existing social anxiety disorder is, by definition, a non-threshold injury.
Held: The motor accident caused an aggravation of the claimant’s social anxiety disorder, which was not a threshold injury; Medical Assessor Roberts’ Certificate was revoked and a new Certificate was issued.
Allianz Australia Insurance Limited v Webb [2025] NSWPICMP 258 (14 April 2025)
Member Jeremy Lum, Medical Assessors Christopher Canaris and Matthew Jones
Review panel determination regarding threshold injury – psychological injury – carjacking and interplay between elements of motor accident and criminal assault: definition of a “motor accident”.
On 23 December 2018, the claimant parked at a car wash, exited his vehicle and left the ignition on. His partner and young child remained in the vehicle. As he was washing the vehicle, a man attempted to hijack the vehicle, the claimant intervened and whilst the car was in motion, the claimant removed the man from the vehicle. He alleged that he was scratched during the altercation, sustained needle stick injuries from a syringe that the assailant had and that he sustained psychological injuries (PTSD) as a result.
A medical dispute arose as to whether the claimant’s psychological injury was a threshold injury. The dispute was initially allocated to Medical Assessor Abhishek Nagesh who determined on 12 December 2023 that the motor accident caused the claimant to suffer from PTSD, which is not a threshold injury. The insurer applied for review of this decision and satisfied the President’s Delegate that there was a reasonable suspicion of error in the Certificate. A review panel was convened to determine the dispute.
In the liability notice, the insurer declined that the needlestick injuries were caused by the motor accident. It was determined that the needlestick injuries occurred 'prior to the movement of the vehicle. Therefore, this is a result of criminal conduct and not during the use or operation of a motor vehicle'. There was no reference to the carjacking incident not being a “motor accident” as defined under s 1.4 in the submissions to the Commission, either to Assessor Nagesh or the Panel.
The Panel treated the motor accident as a single causative event referencing the evidence that the car cabin slightly moved during the altercation. It otherwise stated that it was not its role to define the scope of the motor accident – what it covered and what it did not, particularly when neither party made submissions that the carjacking incident did not constitute a motor accident.
On the issue of the injury itself, the insurer relied on a report of Dr Newlyn who diagnosed adjustment disorder as a result of the accident and alcohol use disorder, which was not causally related to the accident. The insurer argued that the claimant was inconsistent in his presentation to Assessor Nagesh. The claimant disputed these submissions, arguing that the Medical Assessor was not required to address every opinion put before them as determined in Wehbe v Insurance Australia Ltd t/as NRMA Insurance.
The Panel re-examined the claimant. During that re-examination, the Panel observed 'the presence of a problematic pattern of alcohol use leading to clinically significant impairment and distress manifest in alcohol being taken in larger amounts or over a longer period than intended'. The Panel said the claimant met diagnostic criterion for alcohol use disorder and that this was “very much a consequence” of the PTSD caused by the motor accident.
Aggravation of pre-existing social anxiety disorder is, by definition, a non-threshold injury.
Held: The Certificate was confirmed: the motor accident caused aggravation of a pre-existing social anxiety disorder and alcohol use disorder, which are not threshold injuries.
Miscellaneous Claims Dispute
Ellis v AAI Limited t/as GIO [2025] NSWPIC 162 (22 April 2025)
Member Susan McTegg
Home renovations to bathroom, kitchen and soundproofing and definition of “treatment and care” for the purposes of s 1.4 of the MAI Act.
The claimant was injured in a motor accident on 29 September 2023. She alleges that the insured vehicle was travelling in the lane adjacent to her and collided with the rear of her vehicle, pushing it into a kerb. Emergency services did not attend the scene.
The claimant made a claim against the CTP insurer for statutory benefits and common law damages.
On 13 February 2025 the claimant requested the insurer fund renovations to her home in the total sum of $150,217, including renovation of existing bathtub and installation of walk-in shower, sound proofing and kitchen modifications to increase accessibility for cooking. She said that the need for renovations arose post-accident due to diagnosis of PTSD, mobility issues and misophonia. The insurer denied the request on 18 February 2025 and affirmed that decision on internal review dated 4 March 2025.
The insurer argued that the renovations were not 'treatment and care' as defined by s 1.4, and specifically were not 'attendant care services' as within that definition because such renovations did not 'aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.'
The claimant filed an application in the Commission under Sch 2, cl 3(n) as “any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified”. The dispute was allocated to Member McTegg to determine.
Member McTegg determined that the renovation services were not 'attendant care services' under s 1.4(f) because 'renovations proposed to the claimant’s bathroom and kitchen involve a total refurbishment of each room including the cost of fixtures and fittings. The cost is significant, as is the disruption noting Ms Ellis proposes to move out of her apartment whilst the work is undertaken' and as such, were not everyday tasks.
The Member did determine that the renovations were “home modification” as under s 1.4(j). The Member distinguished these circumstances from Warner v Insurance Australia Limited trading as NRMA Insurance because, based on the claimant’s contention, the services were to alleviate or address physical limitations caused by the injury.
The insurer also denied entitlement on the basis of s 3.24, that is that the cost was not reasonable and that the request did not relate to an injury sustained in the motor accident. On this issue, Member McTegg determined that this was a medical assessment matter that needed to be referred to a Medical Assessor in the Commission.
Held: The renovations designed to alleviate or address limitations allegedly caused by the accident constitute “home modifications” within the definition of “treatment and care”. It was determined that other aspects of the care request dispute were medical assessment matters not appropriately determined as a miscellaneous assessment matter.
Chan v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 159 (17 April 2025)
Member: Hugh Macken
Where application for personal injury benefits lodged more than 28 days post-accident – weekly payments not payable before date of lodgement in such circumstances: no discretion allowed.
The claimant was injured in a motor accident on 26 March 2024. Her motorcycle slipped on an oil spill as she was entering her place of work. She injured her right leg and was unable to work for five weeks after the motor accident.
The claimant lodged the claim for statutory benefits against the CTP insurer on 7 August 2024, being 19 weeks after the motor accident. In the interim, the claimant investigated bringing a claim against the manager of the airport pursuant to the public liability obligations. This claim was denied and she subsequently made a claim against her employer pursuant to the Workers Compensation Act 1987. This claim was also denied on the basis that the injury did not arise in the course of her employment.
The CTP insurer accepted liability for statutory benefits and did not take issue with the claim being lodged three months after the motor accident; the insurer exercised its discretion in s 6.13(1), which permitted it to accept the claim after a full and satisfactory explanation was provided. However, it also determined that the claim for statutory benefits had not been made within 28 days after the date of the motor vehicle accident and accordingly, per s 6.13(2), the claimant was only entitled to loss of income payments from the date of lodgement. No discretionary clause was attached to s 6.13(2).
The claimant disputed this decision and applied to the Commission for resolution. She did not provide submissions addressing s 6.13(2) and could not direct attention to any regulation or other power that would permit an order for payments of loss of wages in such circumstances. The Member determined that there were no provisions that allowed for discretion to be exercised for this issue.
Held: The reviewable decision was confirmed – statutory loss of income benefits was not payable until the date of lodgement of the claim.
Scattergood v Allianz Australia Insurance Limited [2025] NSWPIC 176 (30 April 2025)
Member: David Ford
Whether claimant wholly or mostly at fault for ss 3.11 and 3.28 – claimant passenger on a bus that moved forward causing claimant to fall – whether claimant contributed by failing to hold handrails or seats.
The claimant was injured in a motor accident on 5 June 2024. CCTV footage demonstrated that the claimant boarded the bus and before the claimant reached an empty seat, the bus moved, he lost his footing and fell.
Initially, a dispute arose between the parties that the claimant’s injuries did not result from a motor accident. Member Ford in separate proceedings determined that the injuries arose from the driving of the motor vehicle therefore resolving the dispute in the claimant’s favour.
The insurer then denied liability for statutory benefits on the basis that the claimant was 'wholly at fault', arguing that the CCTV footage 'concludes that the bus did not accelerate/depart in an unusual or reckless manner, and it is apparent that all the other passengers do not move due to the movement of the bus supporting that the bus departed in an ordinary fashion.' The internal review Certificate determined that a reasonable person would have sat in the first available empty seat, held onto rails whilst walking in the aisle and 'used the walking stick properly' to walk onto the bus, and that departure from those reasonable standards resulted in claimant becoming injured as a result of the motor accident.
The Member rejected the insurer’s position. The Member said that the bus driver was negligent by not allowing the claimant sufficient time to sit down in his preferred seat, failed to observe that the claimant used a walking stick and should have allowed him a short period to take his seat safely. The Member also determined that the claimant was guilty of contributory negligence, but not more than 61%, on account of his failure to take the empty seat immediately behind the bus driver and his failure to hold onto seat rails as he walked down the aisle.
Held: The reviewable decision was overturned – the motor accident was not caused wholly or mostly by the fault of the injured person.
