Sparke Helmore's MAD (Motor Accidents Division) - Issue 142
02 October 2025
Welcome to the 142nd 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.
Supreme Court
Georges v Musico [2025] NSWSC 1085
Griffiths AJA
Administrative Law — review of medical assessment by review panel — judicial review of review panel decision — where medical assessment certificate revoked and replaced by review panel — whether review panel erred in applying psychiatric permanent impairment rating scale in Motor Accident Permanent Impairment Guidelines.
The assessment of the plaintiff’s psychiatric whole person impairment (WPI) was referred to the Commission for assessment. Medical Assessor Christopher Canaris issued a Certificate dated 28 July 2023 and determined that the plaintiff’s WPI was 20%.
The insurer sought a review of the Certificate. The Review Panel, consisting of medical assessors John Baker, Michael Hong and Member Brett Williams issued a Certificate dated 31 January 2025. The Review Panel revoked the Certificate of medical assessor Canaris and determined that plaintiff’s WPI was 5%.
The plaintiff initially attempted to file an application to correct an obvious error, which was rejected. Instead of identifying true errors, the plaintiff’s submissions primarily attacked the merits of the decision. A summons seeking judicial review was filed shortly after on similar grounds. The plaintiff’s grounds in support of his summons were threefold, namely that:
- there was a misapplication of the PIRS by the Review Panel
- there was no path of reasoning, and
- the Review Panel did not deal with a clearly articulated argument made by the plaintiff.
The plaintiff ultimately abandoned the third ground.
The plaintiff’s submissions focussed on the first two grounds, which intertwined significantly. The crux of the plaintiff’s argument was that the Review Panel misconstrued the exemplar descriptions and misconstrued how the rating task was to be done. The plaintiff relied heavily on Abdal v Insurance Australia Limited t/as NRMA Insurance [2025] NSWSC 478 (Abdal) to support his argument.
The effect of Abdal confined the medical assessor’s discretion when determining the ‘characteristics of conduct or ability’ in assessing the relevant PIRS category. It also extended the obligation of medical assessors to explain their decision to choose between one PIRS category and another.
Wright J found in Abdal that a medical assessor was required to apply the PIRS exemplar descriptors without discretion. For example, placing reliance on a claimant’s presentation and concentration during an assessment to form a conclusion that there were no overt cognitive deficits, was considered to be taking into account an irrelevant consideration. Abdal restricts a medical assessor’s ability to use their discretion and clinical judgment to distinguish between PIRS categories. It proposed a strict adherence to the PIRS exemplar descriptions, limiting the consideration of any evidence that falls outside those exemplar descriptions.
His Honour distinguished this case from Abdal on the facts, but more importantly at 59, his Honour stated that, ‘I would go a step further and state, with respect, that for the following reasons, Abdal is plainly wrong.’ His Honour also stated, with respect, that Wright J’s approach in Abdal ’involved an incorrect level of judicial review scrutiny to a decision which necessarily involved the application of high levels of medical expertise’ and that the outcome would have likely been different if Wright J was taken to more appropriate authorities.
Griffiths AJA referred to Basten AJ in Lancaster v Foxtel Management Pty Ltd [2022] NSWSC 929 and to Garling J in Espana v Architectural Projects Pty Ltd [2023] NSWSC 1504 to provide a caution that judicial review should not descend into an impermissible merits review. The courts should not impose on a medical assessor’s use of clinical judgment, which is what his Honour found to occur in Abdal.
Griffiths AJA found that the plaintiff’s argument was, in its essence, an attack on the merits of the decisions.
This decision does not diminish the reasons obligation of a medical assessor. A medical assessor will still be required to form their own opinion on an evaluation of the evidence and to explain their path of reasoning.
Held: The plaintiff’s application for judicial review failed and the summons was dismissed.
Miscellaneous Claims Assessment
Liebert v Allianz Australia Insurance Limited [2025] NSWPIC 458; (5 September 2025)
Member Belinda Cassidy
Claim declined pursuant to Section 1.9 – injury did not occur in a motor accident – CCTV footage of inside bus reviewed – Member held injury was not caused by or as a result of the driving of the bus.
Mr Liebert alleged that he was injured on a privately owned and operated bus on 3 April 2025. On 9 May 2025 Mr Liebert lodged a claim with Allianz, the third-party insurer of the bus.
On 12 June 2025, Allianz denied liability for statutory benefits beyond 52 weeks on the basis that the alleged left shoulder injury did not result from a ’motor accident’ as defined by s 1.4 of the MAI Act. Section 1.4 defines a motor accident to be:
‘An incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused during:
- The driving of the vehicle, or
- A collision, or action taken to avoid a collision, with the vehicle, or
- The vehicle’s running out of control, or
- A dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.’
Allianz upheld the liability decision on internal review. The claimant applied to the Commission to have the dispute resolved. This was a miscellaneous claims assessment as it was a dispute as to ’whether for the purposes of s 3.1 (Statutory benefits payable in respect of ... injury resulting from motor accident) the ... injury to a person has resulted from a motor accident in this State’ (schedule 2(3)(b)). It was also considered to fall within the ambit of schedule 2(3)(n): 'any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule'.
Member Cassidy was allocated.
Allianz argued, relying on the CCTV footage from the bus interior, that the driving of the bus had not caused the twisting of the shoulder or injury to the shoulder. The insurer relied on Allianz Australia Insurance Limited v GSF Australia Proprietary Limited, arguing that there must be both a temporal and causal connection for an injury to come within the definition of a motor accident, and submitted that the proximate cause of Mr Liebert’s injury had nothing to do with the driving of the vehicle. The insurer said that the claimant sustained this injury when he offered to help another passenger and reached for her bag on her seat.
The insurer argued that because the incident was not a motor accident as defined by s 1.4, then by virtue of s 1.9, the Act in its entirety did not apply. A question of jurisdiction was raised regarding the Commission’s power to determine a dispute about whether the MAI Act applied.
The Member said that ’determining whether Allianz has any liability for Mr Liebert’s statutory benefits claim would, in my view, clearly fall within the (n) dispute’ at least, if not in schedule 2(3)(b).
The claimant argued that ’the braking of the bus caused my left shoulder to be hyperextended causing significant pain'. Unrepresented, the claimant argued that, ’whether the accident is or is not considered a road accident under the Motor Accident Injuries Act 2017 NSW, is in essence not relevant to me, the issue is that I sustained an injury while being transported on a government run bus.’ He disputed the insurer’s position that the driving of the bus was not a factor and referred to media discussions about harsh braking and conversations he had had with another bus driver about how buses are driven.
On the issue of injury, Counsel for the insurer conceded the claimant had sustained some form of injury but denied that it occurred as a result of the alleged ’accident,’ noting the claimant had a ’longstanding supraspinatus tear’.
Parties agreed to have the matter resolved on the papers following the preliminary conference.
The Member made a finding of fact that the claimant’s left arm was hyperextended when he was assisting the woman, and that he ’hurt his left shoulder’ in doing so because he was ’holding and rubbing his shoulder in the CCTV footage’. The Member was not satisfied that there was violent or harsh braking by the insured driver, based on footage that showed other passengers not swaying ’front to back which would be expected if there was sudden braking movement’, not holding on and as ’scenery outside the windows moves past smoothly, with no sign of sudden movement’.
Consequently, the Member determined that whilst the claimant ’was involved in an incident or accident while riding the bus and while the bus was being used to transport passengers to and from their destination’, she was not satisfied that ’the way in which the bus was being driven was the cause of Mr Liebert’s injury’. She was also not satisfied that any of the circumstances in s 1.4 applied to fit the definition of a motor accident. The Member referred to Hamilton v CIC Allianz Insurance Limited [2023] NSWPIC 580 wherein the Commission found the proximate cause of the claimant’s injury to be the presence of liquid on the floor, and not the driving of the bus. She distinguished the case from Bizannes [2023] NSWPIC 135 on the basis that the Commission there was satisfied that the proximate cause of the claimant’s injury was due to a dangerous situation caused by the driving of that vehicle.
Held: The decision was affirmed – the incident did not satisfy s 1.4, and claimant was not entitled to statutory benefits under Part 3. In accordance with s 1.9, the MAI Act did not apply.
Medical Review Panel
Hasoon v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 684; (8 September 2025)
Member Susan McTegg, Medical Assessors John Baker and Christopher Canaris
Medical review of WPI – where claimant had several pre-existing psychological conditions – reduction of pre-existing impairment in line with Guidelines
On 23 July 2022, the claimant was the driver of the not-at-fault vehicle involved in a rear-end collision. The claimant made a claim for common law damages and as part of that claim, sought damages for non-economic loss on the basis that he contended that his degree of permanent impairment as a result of the injury caused by the accident was greater than 10%.
Parties disputed that permanent impairment for motor accident-related injuries exceeded 10% WPI.
The claimant applied for medical assessment in the Commission seeking a determination that his injuries gave rise to greater than 10% WPI. On 9 May 2024, Medical Assessor Sidorov determined that the motor accident caused an exacerbation of a major depressive disorder which gave rise to a 3% WPI.
Assessor Sidorov noted that the claimant’s current impairment was 22% WPI, but that 19% WPI should be attributed to pre-existing major depressive disorder. There was no adjustment for treatment effects for either pre-or post-accident impairment.
The claimant applied to have the medical assessment referred to a review panel on the grounds that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect.
The claimant submitted that Medical Assessor Sidorov did not provide adequate reasons for coming to a different finding to his expert evidence of Dr Nagesh dated 13 February 2023. The claimant referenced Justice Hamill’s observations in Sadsad v NRMA Insurance Ltd & Ors [2014] NSWSC 1216 that if ’more than one conclusion is open, it will be necessary for the decision maker to give some explanation of its preference for one conclusion over another. He said that ’where there was medical controversy about the level of WPI it was incumbent on the assessor to provide reasons with respect to the opinion of Dr Nagesh’.
The President’s delegate accepted 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. After re-examination of the claimant, the panel revoked the medical assessment Certificate of Assessor Sidorov as it came to different reasons. Ultimately, the Review Panel agreed that the claimant had a symptomatic pre-existing psychological condition, noting reference to an adjustment disorder with anxiety in medical records as of July 2022 and the observed behaviour of the claimant during re-examination including a difficulty discussing significant prior experiences (being shot in Iraq and having rocket shrapnel damage his car in Syria). The Panel said that the claimant’s denial of pre-accident symptomatic functional impairment was inconsistent with the available evidence.
The Panel said that the claimant was not forthcoming with information about his pre-accident history.
The Review Panel determined that prior to the motor accident, the claimant had an adjustment disorder with anxiety and PTSD in full remission. They assessed pre-existing permanent impairment of these psychological conditions at 15% WPI. The Panel conducted an assessment of current impairment caused by accident-related Major Depressive Disorder with anxious distress and opioid use disorder at 22% WPI. The difference between pre- and current impairment was 7% WPI related to the accident.
As an aside it should be noted that the Panel also diagnosed somatic symptom disorder related to the motor accident, which alone does not attract impairment, There was however assessable impairment for the other psychological conditions caused by the motor accident.
Consequently, the Panel assessed a 7% WPI caused by the subject accident.
Held: The Certificate was revoked, and a new Certificate was issued with 7% WPI.
Settlement Approval
Allianz Australia Insurance Limited v Narayan [2025] NSWPIC 464; (8 September 2025)
Member Maurice Castagnet
Settlement approval under s 6.23(2)(b) where claimant not legally represented – claims for past and future economic loss – no claim for non-economic loss.
On 19 December 2023, the claimant was a cyclist struck by the insured vehicle. The insurer admitted liability for common law damages but made an allegation against the claimant for contributory negligence in the order of 30%.
The claimant was not legally represented. The parties agreed that there was no entitlement to non-economic loss damages based on a report of Associate Professor Craig Waller who assessed 0% WPI and resolved the matter for economic loss damages in the sum of $161,283.50.
On 15 May 2025, the insurer lodged an application with the Commission to have the settlement approved by a Member of the Commission as required by s 6.23(2).
Following the initial teleconference before Member Castagnet the insurer made a revised offer, which did not include a reduction for contributory negligence. The claimant accepted the revised settlement offer of $295,187.17. This settlement sum was for $228,782.17 for past economic loss damages and a buffer of $65,405 for future economic loss.
The Member noted that he was satisfied that if a Medical Assessor of the Commission assessed permanent impairment, it was highly unlikely that the claimant’s degree of permanent impairment would exceed the 10% threshold for an entitlement of an award of non-economic loss damages.
In relation to future economic loss, the Member referred to s 4.7 and the principles of a ‘buffer’ allowance in Penrith City Council v Parks [2004] NSWCA 201. The Member accepted that the assessment of future economic loss was consistent with the assumptions of the claimant’s most likely future circumstances in that "but for the accident, the claimant said that he would be continuing in his employment with Fire Rescue, performing his normal duties as a firefighter, and that he was planning to retire after 40 years’ service in about two years’ time.” The Member accepted that the claimant may retire earlier if he does not fully regain his confidence to perform all his duties as a firefighter.
The Member was satisfied that the settlement was within the range that a member of the Commission would allow if the matter were to be assessed by the Commission in a damages assessment.
Held: The settlement was approved with deductions made pursuant to s 3.40(1)(b).
