Sparke Helmore's MAD (Motor Accidents Division) - Issue 140

Welcome to the 140th 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.

Medical Review Panel

Allianz Australia Insurance Limited v Moore [2025] NSWPICMP 557 (30 July 2025)

Member John Harris, Medical Assessors John Baker and Christopher Rikard-Bell

Medical Review - assessment of whole person impairment (WPI) for psychiatric impairment – application of clauses 6.218, 6.213 and 6.214 of the Motor Accident Guidelines; relevance of pain on psychological impairment assessment; pre-existing psychological injury history and apportionment.

The claimant was injured in a motor accident on 5 October 2020. She was  a passenger in the not at fault vehicle. She lodged a common law damages claim and a dispute arose between the parties as to whether permanent impairment exceeded 10% WPI. 

The claimant was examined by Medical Assessor Canaris in the Commission. On 3 July 2024 Assessor Canaris determined that the claimant sustained an aggravation to a pre-existing psychological condition as a result of the motor accident. Her pre-existing impairment was assessed at 0% WPI, and her post accident psychological impairment was assessed at 15% WPI.

The insurer filed an application for review on the grounds that there was a reasonable suspicion of material error. The insurer argued that the Assessor only estimated the pre-accident impairment based on the claimant’s reporting.  It was also argued that this was not a proper application of clause 6.218 of the guidelines and that the assessment did not comply with clauses 6.213 and 6.214 of the Guidelines, which provide that the assessment of the impairment under the PIRS scales must be attributable to a psychiatric diagnosis and not to physical injury.

The panel re-examined the claimant on 23 July 2025. The panel ultimately came to a different diagnosis and a lower assessment of permanent impairment than the original medical assessor and the claimant’s expert, citing the time since these prior assessments and noting recent improvement.

The panel said that the motor accident had resulted in PTSD, which was different from the pre-accident Major Depression.

The Panel assessed pre-existing impairment at 2% WPI and assessed the current impairment at 9% WPI, finding only mild deficits in self-care and social functioning compared to the original assessment and resulting in 7% WPI being attributed to the motor accident. 

Held: The Certificate was revoked and a new Certificate was issued - WPI did not exceed 10%. 

View decision

Coban v Insurance Australia Ltd t/as NRMA Insurance [2025] NSWPICMP 525 (18 July 2025)

Member Belinda Cassidy, Medical Assessors Christopher Canaris and Ankur Gupta

Medical Review - assessment of WPI for psychiatric impairment – application of clauses 6.215 and 6.221 of the Motor Accident Guidelines; relevance of pain on psychological impairment assessment; pre-existing psychological injury history and apportionment.

The claimant injured her neck and back and developed a psychological injury as a result of a motor accident on 14 September 2020. She lodged a common law damages claim with respect to injuries in the accident and a dispute arose between the parties as to whether impairment exceeded 10% WPI. 

The claimant was examined by Medical Assessor Sidorov who issued a Certificate dated 17 May 2024 which assessed 12% WPI for PTSD and Major Depressive Disorder caused by the motor accident. The insurer applied for review on the grounds that there was reasonable suspicion of material error in the Certificate. The insurer particularised the Medical Assessor erred in his assessment of PIRS by failing to consider the claimants capacity to concentrate during the assessment and her history of non-employment that preceded the accident, failed to give sufficient reasoning and failed to apply cl 6.217 of the guidelines correctly. 

Following a re-examination of the claimant on 24 June 2025, the Panel revoked the Assessor’s Certificate and determined:

1. Inconsistencies ’could not be put to the claimant due to her teariness and increasing anxiety levels and our fear of the re-examination going “off the rails” with the claimant at home and alone’. 
2. The accident was not significant enough to comprise a Criterion A event as per the DSM-5-TR, which would warrant a diagnosis of post-traumatic stress disorder, even though the accident occurred in the Sydney Harbour Tunnel and the claimant’s dog was unrestrained and thrown forward and that these circumstances would have been distressing for the claimant, noting that:
   1. The motor accident occurred at 30 kmph and airbags did not deploy.
   2. The claimant was not seriously injured in that there were no broken bones or lacerations.
3. The diagnosis of ’chronic depressive illness is more applicable to Ms Coban’s symptoms particularly in the light of their connection to her chronic pain’. The panel acknowledged later that the primary stressor was the accident and the pain associated with physical injuries.
4. Clause 6.215 required the Panel to ensure that impairment due to psychological or psychiatric symptoms was not due to the symptoms of pain. With this in mind, the Panel determined that the claimant had class 2 impairments in self-care, travel, social functioning and cognition due to psychological injury, and moderate impairment in social and recreational activities.
5. With respect to adaptability, the Panel acknowledged ’the considerable contribution of pain to her impairment in this category which has to be excluded from consideration under the PIRS’ and said that the claimant was capable of managing family matters and finances. Applying clause 6.221, the Panel determined that there was mild impairment in this category.
6. While there was evidence of a pre-existing anxiety condition, there was no evidence provided to suggest any pre-existing impairment.

With an aggregate score of 14 and a median class value of 2, the Panel assessed 7% WPI for the psychological injury causally related to the motor accident.

Held: The Certificate was revoked and new Certificate issued - WPI does not exceed 10%. 

View decision

Allianz Australia Insurance Limited v Ibrahim [2025] NSWPICMP 539 (24 July 2025)

Member Jeremy Lum, Medical Assessors Margaret Gibson and Christopher Oates

Medical Review - WPI assessment – where thoracic compression fracture not related to motor accident but incidental finding: fracture likely to be constitutional condition of osteoporosis – sternum fracture resolved and does not give rise to assessable impairment.

The claimant alleged sustaining fractures in his sternum and thoracic spine, injuries to his neck, lower back and both shoulders a result of a motor accident on 20 August 2022. He made a claim for common law damages and a dispute arose between the parties as to whether impairment exceeded 10% WPI. 

On 24 October 2024, Medical Assessor James Bodel assessed 14% WPI for injuries related to the motor accident, consisting of 5% WPI for the cervical spine (DRE II), 5% WPI for the thoracic spine (DRE II), 2% WPI for the left shoulder, 2% WPI for the right shoulder and 0% WPI for the lumbar spine.

The Assessor could not assess the T7 wedge compression fracture as CT films were not available.

The insurer lodged a review application with the Commission and argued that there was a reasonable suspicion of material error because the Medical Assessor had erred in his findings on causation. The insurer argued that the Medical Assessor had failed to consider documentary evidence, which demonstrated degenerative pathology in the claimant’s thoracic spine and lumbar spine, pre-existing osteoporosis (a constitutional condition which causes vertebral wedging) and was absent of contemporaneous complaints in the face of contradictory objective evidence. The President’s Delegate allowed the application for review and referred the assessment to a panel.

The Panel re-examined the claimant on 1 April 2025. Several inconsistencies were brought to the claimant’s attention, including that the predominate contemporaneous complaints were to the chest.  The claimant advised that he complained of pain to the neck and low back, but that this must not have been recorded by the treating professional.  

In their Certificate dated 24 July 2025, the Panel determined that:

1. In circumstances where the claimant could not recall a particular incident, the Panel had no option but to rely on the documented medical evidence. If the neck, back or shoulders had been injured in the accident, the Medical Assessors would have expected there to be symptoms and complaints recorded within hours of the accident or in the file in the period post-accident. Absent of same, causation was not made out.
2. Whilst the CT scan taken post-accident revealed a wedge compression fracture of T7, a ’wedge compression appearance is more likely than not the result of the constitutional condition of osteoporosis, which was diagnosed by DEXA bone mineral densitometry scan after the T7 deformity was found on CT scan. The accident was not a cause of this T7 wedge compression fracture'.
3. The sternal fracture had resolved and did not attract impairment.

Held: The Certificate was revoked and a new was Certificate issued – thoracic spine injury was not related to motor accident, WPI did not exceed 10%. 

View decision

Miscellaneous Claims Assessment

CON v AAI Ltd t/as GIO [2025] NSWPIC 327 (16 July 2025)

Member David Ford

Merit review dispute - entitlement to statutory benefits under division 3.3, section 3.1; delay in lodging statutory benefits claim: claimant’s explanations found inconsistent and implausible.

The claimant alleged sustaining injuries in an incident on 28 April 2024. It was alleged that the claimant’s front wheel washed out on the Cahill Expressway due to a 10-centimetre gutter while entering the off ramp. It was alleged that he sustained a left collarbone fracture and rib fractures as a result of the motor accident.

On 14 March 2025, the insurer determined that the claimant was not entitled to statutory benefits pursuant to s 3.1 because the injury had not resulted from a motor accident. This was on the basis of several inconsistencies regarding the claimant’s version of events compared against other parties and that the injury sustained by the claimant did not arise from a motor accident. The insurer relied on:

1. Evidence that the claimant rode his motorcycle home after the motor accident, and that an ambulance was not called to the scene.
2. A signed statement from the claimant’s wife which said that after returning home, an ambulance was called around 8.45pm and the claimant told her to say that the ’injury was caused by falling down the stairs’. This was contained in the ambulance report.
3. At the hospital, the claimant advised practitioners that he had injured himself falling down the stairs.
4. The claimant did not report the accident to Police until 11 July 2025.
5. On 18 June 2024, the claimant’s GP reported that the injury was caused 'while pulling into emergency lane on Cahill Expressway hit curb/ gutter with unexpected raised edge roughly 10cm then fall onto left side'. A note on 6 May 2024 said that the claimant sustained multiple rib fractures from a serious ’MVA’.

At a preliminary conference on 12 May 2025, the Member determined that the matter should be listed for a miscellaneous claims assessment hearing.

Member Ford noted that the claimant bore the onus of proving his injuries resulted from a motor accident. The claimant relied on expert evidence from Dr Shin which said that the ’inconsistencies reported by Dean initially describing a fall down stairs to ambulance dispatches and attending paramedics are fully explainable by a combination of acute concussion, sustained from head trauma, significant pain and pre-existing psychological issue of depressive disorder, an anxiety with panic attacks (cf evidence from Dr Richa Rastogi, psychiatrist). These factors commonly impair cognition, memory judgement and communication significantly, affecting Dean's ability to direct his mind to precisely recall the exact timing and details of the incident and as such the inconsistent reporting of his incident is entirely plausible from a clinical perspective.'

The Member determined that the claimant’s injury did not result from a motor vehicle accident, noting:

Section 1.9 required the injury to result from the use or operation of the vehicle, and only, if the injury is a result of and is caused during one of the four circumstances listed at s 1.4 (a) to (d).

There was a delay in the claimant notifying the insurer of the motor accident, which restricted the insurer’s ability to investigate why the accident occurred, are there any witnesses to the accident and is there any CCTV footage available.

In separate unreported proceedings before Member Medland, it was determined that a request for the claimant to provide the name of his mobile service provider was reasonable. Subsequently in this merit review dispute, the records from Telstra were produced and lodged on the portal. Those records did not assist in determining the claimant’s location at the time of the motor accident.

The expert evidence that the claimant relied upon was flawed. There was no reference to the doctors reading the ambulance report or hospital documentation. The Member said that this documentation did not support the claimant’s allegation that he was affected by pain medication immediately after the accident or that this explained his incoherence.

The claimant’s various explanations in support of his allegation he was injured in a motor vehicle accident were ’inconsistent and implausible’ in the face of contradictory evidence.

Held: The claimant’s injury did not result from a motor vehicle accident in this state; not entitled to statutory benefits.

View decision

Supreme Court

Insurance Australia Ltd trading as NRMA Insurance as agent for the Nominal Defendant v Toole [2025] NSWSC 777 (18 July 2025)

Adamson JA 

Administrative Law — judicial review - jurisdictional error and error on the face of the record – where medical assessor assessed injury not referred for assessment: issue of scope of assessment – denial of procedural fairness.

On 2 December 2024, Medical Assessor Sophia Lahz issued a determination that the claimant suffered 5% WPI to his lumbar spine as a result of a fracture to L2, notwithstanding that an L2 fracture did not fall within the ambit of the medical dispute referred to the medical assessor by the claimant. The insurer applied for review, arguing that the medical assessor erred in law by failing to assess the actual medical dispute which had been referred to her. The President’s Delegate on 17 February 2025 refused the insurers application for review on the grounds that there was not a reasonable suspicion of error. 

The insurer filed proceedings in the Supreme Court seeking to have the medical assessor’s decision and the President’s refusal to refer the matter to a review panel set aside. All the defendant’s filed submitting appearances.

Before the Supreme Court, the insurer argued: 

1. It was reasonable and appropriate for the insurer to be delayed in filing the judicial review application of the medical assessor’s decision (more than three months had passed since date of the decision), because the error may have been corrected by the review panel.  
2. The decision was unlawful since the medical assessor exceeded the scope of the referral.
3. Parties were denied procedural fairness as they were not notified of the assessor’s intention to assess an injury, which fell outside the referral
4. The delegate’s decision fell away because the medical assessor’s decision was invalid.

Adamson JA agreed that the insurer’s delay was reasonable, and extended time for the filing of the summons to 18 March 2025. 

Adamson JA also agreed that the medical assessor erred in law by failing to assess the actual medical dispute, which had been referred to her, and that this was an error of law on the face of the record and a jurisdictional error, warranting an order setting aside the Certificate. 

It was determined that the insurer had been denied procedural fairness when the medical assessor assessed an injury on the scope of the referral, without giving the parties the opportunity to make submissions and adduce further evidence. This was held to be a jurisdictional error. 

Finally, because the medical assessor’s decision was set aside, the delegate’s decision, which was founded on it, was also set aside. 

Held: Medical Assessment Certificate of Determination and President’s Delegates Decision set aside; application for medical assessment remitted to the Commission for determination. 

View decision