Sparke Helmore's MAD (Motor Accidents Division) - Issue 143
16 October 2025
Welcome to the 143rd 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.
Merit Review
Mazry v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMR 28 (24 September 2025)
Merit Reviewer: Jeremy Lum
Whether claimant entitled to weekly payments of statutory benefits – assessment of the claimant’s pre-accident weekly earnings (PAWE) – claimant sole director of a company – director fees not income from personal exertion: application of Patton v Allianz Australia Insurance Ltd (No 1).
The claimant allegedly sustained injuries to his neck, right shoulder, back, right knee, right ankle, and psychological injury in a motor accident on 22 August 2024. The insurer accepted liability for statutory benefits. The insurer accepted that the claimant was an earner.
Whilst the insurer gathered information regarding PAWE, the insurer paid weekly payments at the interim rate of $572.88 per week from 11 September 2024. On 27 November 2024, the insurer assessed PAWE as nil. The claimant provided business activity statements for September and October 2023 showing total salary and wages of $3,000 paid per period, however, did not provide the insurer with individual tax returns for the financial years ending 30 June 2023 and 2024, payslips or personal bank statements confirming receipt of 'wages. The insurer relied on Patton v Allianz Australia Insurance Ltd (No 1) [2022] NSWPICMR 45 and said that even where a claimant is the sole director and owner of a company through which they exercise their earning capacity, the claimant’s ‘earnings’ are amounts received as remuneration by the claimant from the company rather than the profits. That exercise resulted in an assessment of PAWE as nil. That decision was affirmed on internal review and the claimant applied to the Commission.
Before the Commission, the claimant argued that he was paid a director’s fee of $188,650. He provided a profit and loss statement confirming the company’s total gross profit of $1,639,039.76 for the financial year ending 30 June 2024 and a statement dated 21 March 2025, which he stated he was paid a wage from the business profits into three separate bank accounts. He stated that he had not lodged personal tax returns for financial years 2023 and 2024.
The Merit Reviewer reviewed all bank statements provided for the company accounts and the claimant’s personal joint accounts and noted the following:
- There is no company constitution or document outlining the process for remuneration.
- Deposits from company into personal accounts described transactions as “Internet Deposit”.
- The claimant did not evidence personal tax documents to show director fees were paid to him.
- There were director fees or wages paid in the 2024 company tax return.
- Deposits paid into the claimant’s account held jointly with his wife were irregular and were not described as director fees.
The Merit Reviewer rejected a profit and loss ledger amended after the accident to show payment of director fees. He said that it was ’unconceivable that an amount of this magnitude ($188,650) could be simply left out of the original ledger (Profit and Loss Statement) due to ‘accounting errors’.
The Merit Reviewer was not satisfied that the claimant received monies to satisfy the definition of ’earnings received by the claimant as an earner’ for the purposes of inclusion in a PAWE assessment. He said that the amounts were not paid ’as renumeration from the company as director fees.
Held – The decision was affirmed that the PAWE was nil.
Miscellaneous Claims Assessment
Freitas v QBE Insurance (Australia) Limited [2025] NSWPIC 475; (11 September 2025)
Member: Belinda Cassidy
Whether claimant wholly or mostly at fault; AAI Limited t/as GIO v Evic followed as to the approach to be taken in a dispute about wholly or mostly at fault – multi-vehicle motor accident, weighing of culpability and assessment of contributory negligence.
On 5 February 2025, QBE denied liability for statutory benefits beyond 52 weeks on the basis that the claimant was ’wholly or mostly at fault’. The insurer said that the claimant failed to ride in a safe manner, in accordance with the prevailing conditions and he failed to maintain adequate control over his motor bike. This was upheld on internal review and the claimant applied to the Commission for resolution of the dispute.
The claimant argued that the roadway was wet and that his motorcycle slipped from under him. The insurer disputed that there was substantiating evidence of faulty taillights and said that the police report did not reflect the allegations of a wet roadway. It was argued that the sole contributing factor causing the vehicle to lose balance and slip was the way in which the claimant was riding his vehicle.
Relevantly, the claimant in further submissions said that he did not hit the van hard that was in front him, and the van was not damaged. He said he was about to stop when he hit the van. He alleged that when the front wheel hit the van, the wheel turned in his direction and he fell sideways and the motorcycle fell with him on to his foot.
The insurer argued that Evic may not apply because it is not a single vehicle accident. However, if the Member makes factual findings to the claimant’s allegation that there was a collision with the van, then the claimant was wholly or mostly at fault for failing to ride to the prevailing conditions and failing to maintain a safe distance.
Member Cassidy made factual findings that:
- The vehicle in front had defective brake lights. This finding was made in absence of evidence to the contrary.
- On seeing the brakes of the van come on, the claimant applied his brakes carefully so as not to lose control, but his rear wheel lost control. His motor bike did not have ABS brakes. These findings were made on the basis of the claimant’s oral evidence and his written statement.
- The claimant’s rear wheel lost control due to the state of the wet road – this finding was made on the basis of the claimant’s evidence and her ’own experience and understanding that oil, grease, particles of rubber from tyres and dirt can accumulate on the road over time by the ordinary movement of traffic. When combined with rain, this makes roads slippery.’
- The claimant fought to gain control of his bike, making braking in time difficult, which led to his collision with the back of the van. The collision with the back of the van caused the motorcycle to fall to the left and on top of the claimant’s foot - there was no dispute about this.
The Member then approached the dispute as a multi-vehicle accident and referenced the comments of Michelmore J in Evic and determined the following:
- She rejected that Evic may only apply to single vehicle accidents. Justice Mitchelmore was interpreting the provisions of ss 3.11 and 3.28 and the meaning of the phrase ’wholly or mostly at fault’. While she was considering those provisions in a single vehicle accident case, she said at various points throughout her decision that the meaning of that phrase accommodates all kinds of accidents regardless of the number of motor vehicles involved in the accident. See for example paragraphs [55], [57], [61] and [62].
- Justice Mitchelmore determined how contributory negligence is to be assessed in a single vehicle accident at [62] – [69] and also how contributory negligence should be assessed under the MAI Act in accidents involving more than one road user at [61].
- The proper approach is to assess whether there is contributory negligence on the part of the claimant determined by application of the test of the reasonable person in the position of the claimant, and then to assess by comparing the relative culpability with other drivers whose fault or negligence contributed to the accident.
The Member determined that the claimant contributed for the following reasons:
- he knew the road was wet and it had started to rain again, and
- he knew he was riding a motorcycle without ABS brakes and that this meant he had to take extra care when stopping and braking so as not to lose control.
The Member determined that the other driver (the driver in front of the van) contributed as he departed from the standard of care required. A reasonable driver would not drive a vehicle with defective brake lights.
The Member was not satisfied that there was anything the van driver did or did not do that contributed to the cause of this accident.
The Member determined that the two drivers that contributed to the cause of this accident were equally culpable. She assessed the degree of the claimant’s contributory negligence at 50%.
Held - Contributory negligence was assessed at 50% and the claimant was not wholly or mostly at fault.
Al Semary v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 521; (30 September 2025)
Member: Bridie Nolan
Whether claimant wholly or mostly at fault; AAI Limited t/as GIO v Evic followed as to the approach to be taken in a dispute about wholly or mostly at fault – single vehicle motor accident, assessment of contributory negligence against standard of reasonable person.
On 2 February 2025, the claimant was the driver of a motor vehicle that was involved in a single vehicle accident. The vehicle left the roadway, entered a storm water drain, and collided with a tree.
On 1 July 2025, the insurer denied liability for statutory benefits beyond 52 weeks on the basis that the claimant was wholly at fault. The decision was affirmed on internal review.
The claimant lodged a miscellaneous claims assessment dispute under Schedule 2, cll 3(d) and (e), as to whether, for the purposes of ss 3.11 and 3.28, the motor accident was caused wholly or mostly by the fault of the injured person. Member Bridie Nolan was allocated.
The claimant put on evidence that she had been travelling at about 60 kmph in an 80 kmph zone, was not speeding, was not distracted, and swerved to avoid two rabbits. She said she was wearing a seatbelt. The insurer relied on police evidence, which concluded that the claimant was at fault because she swerved for an animal, causing her vehicle to leave the carriageway.
Police did not issue an infringement notice or charge the claimant because the matter was regarded as a minor collision. There was no skid mark evidence of braking.
Consistent with other fault disputes involving single vehicle accidents determined by the Commission recently, Member Nolan referred to Evic, where Mitchelmore J held that ss 3.11 and 3.28 are directed at the degree to which an injured person’s failure to take reasonable care contributed to the motor accident.
Member Nolan said that Evic required the insurer to bear ’the onus of proving that the claimant failed to take reasonable care for her own safety in a way that materially contributed to the accident, and that the extent of that departure was such that she should be regarded as “mostly at fault”. That requires more than an error of judgment; it requires a substantial departure from the standard of the reasonable driver.’
Ultimately, the Member determined that the claimant’s conduct did not amount to contributory negligence to the degree that she was wholly or mostly at fault. She said that, ’Even if one could characterise her swerve as an error of judgement, it was an error in the agony of the moment.’ Factors such as that she was travelling below the speed limit, that the road surface was uneven with gravel and potholes, and that she was not impaired, fatigued, or distracted were considered in this assessment.
Held – The claimant was not wholly or mostly at fault.
Prasad v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 515; (29 September 2025)
Member: Bridie Nolan
Reinstatement of damages claim – s 6.26(1) direction to provide particulars – deemed withdrawal of claim following failure to comply with direction – reinstatement of claim - claimant provided full account of her conduct and reliance on solicitors to manage procedural obligations.
The claimant was catastrophically injured in a motor accident on 23 April 2022.
On 13 February 2024, the insurer admitted liability for common law damages.
On 5 December 2024, the insurer issued a s 6.26 direction to provide all relevant particulars of the claim. As the claimant did not comply within three months of the notice being issued, on 15 April 2025 the insurer advised the claimant’s solicitor that by force of s 6.26(3), the claim was deemed to have been withdrawn.
The claimant’s solicitor provided particulars on 23 May 2025. In these proceedings before Member Bridie Nolan, the insurer sought summary dismissal of the claim. The claimant sought a determination that the claim had not been withdrawn, or in the alternative, sought reinstatement under s 6.26(4) on the grounds that she had provided full and satisfactory explanation for the preceding failure to comply with the notice.
The insurer argued that the late provision of particulars cannot retrospectively cure the statutory default, and that solicitor default cannot prevent the operation of the statute in any event. It argued that a finding to the contrary would reduce the effect of ss 6.26(3) to nil, for it would always be open to a claimant to say that their lawyers were at fault.
The claimant’s solicitor argued that her reliance on solicitors to advance her claim in circumstances where she was catastrophically injured and had little experience of litigation was reasonable, and that their default should not be imputed to her.
The Member was satisfied that the claimant’s explanation was ’full’ as it provided a full account of her conduct from the accident until the date of explanation and set out that she relied on her solicitor to advance her claim. The Member said that the account did not need detail of the solicitor’s internal decision-making or reasons for inaction. As to the test of satisfactoriness, the Member said that the test was not to determine whether there could have been more diligence shown, but whether a reasonable person in the claimant’s position would have acted differently. The Member said that the claimant’s reliance on her legal representatives was not unreasonable and constituted a satisfactory explanation.
The Member ultimately determined that the claim was withdrawn on expiration of the s 6.26 notice, but that the claimant provided a full and a satisfactory explanation within the meaning of s 6.26(6) so as to reinstate the claim.
Held - The claim was deemed withdrawn and reinstatement was granted.
