Sparke Helmore's MAD (Motor Accidents Division) - Issue 144

Welcome to the 144th 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 Assessment Panel Review

Irani v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 832 (29 October 2025)

Member Brett Williams, Medical Assessors Melissa Barrett and Steven Yeates

Where scope of dispute clarified; entitlement to statutory benefits under s 3.24 for dog walking and washing costs; whether pet care is ’treatment and care’; whether pet is a therapy animal; psychological injury. 

The claimant was injured in a motor accident on 5 April 2022. The insurer accepted liability for statutory benefits as a result of that motor accident.

A dispute arose between the parties when the insurer declined that the claimant was entitled to statutory benefits under s 3.24 for the cost of dog walking and washing. That decision was affirmed on internal review. The internal reviewer found that the ’subject request and associated decision does not fall within the Schedule of the Act that is internally reviewable.’

The claimant applied to the Commission to have this medical assessment dispute resolved. His application said that the dispute was ’whether the provision of services for dog washing and dog walking are reasonable and necessary form of treatment for the Claimant's mental health.’

On 7 December 2024, Medical Assessor Hong determined that the dogs were not therapy dogs and that the provision of disputed treatment and care was not reasonable and necessary for his psychological injury. The claimant’s application for review was accepted by the President’s Delegate and referred to the Review Panel. 

Of note, there had been two previous decisions in the Commission relating to the claimant’s dogs: Irani v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPICMR 63 (Irani (No1)) and Irani v Insurance Australia Limited t/as NRMA Insurance  [2024] NSWPIC 455 (Irani (No 2)). In Irani No 2, the Member certified that the provision of a therapy dog was ’rehabilitation’ and ’treatment and care’ as defined in s 1.4. 

In the subject dispute, there were a number of issues that the parties raised in submissions and the Panel needed to address. The insurer argued against the scope of the dispute, stating that the disputed decision was the insurers denial to fund dog walking and dog washing services. The insurer said that ’dog washing and dog walking services cannot be categorised as personal assistance, nursing or home maintenance’ and did not meet the definition of attendant care services: treatment and care’ in s 1.4. The panel said that this dispute was not subject to internal review or referred as a dispute by the claimant otherwise, and that therefore s 7.19 was not engaged. If disputed, the Panel said that this aspect could not be referred to the Commission for determination.

The Panel distinguished this from what they understood the dispute to be. They said that the ’disputes which have in fact arisen between the claimant and the insurer are about whether the claimed expenses for dog washing and dog walking are “treatment and care” as defined in s 1.4 and whether those expenses are reasonable and necessary in the circumstances and relate to the injury resulting from the motor accident.’ On that, the Panel said: 

1. The claimant met DSM5 criterion for PTSD as a result of motor accident. 
2. Adopting the findings of Geaghan v D'Aubert (2002) 36 MVR 542 (Geaghan), Makaroff v Nepean Blue Mountains Local Health District  [2019] NSWSC 715 and Woods v Collins [2019] SASCFC 146, pet care did not fit the definition of ’domestic services and walking nor washing the claimant’s was not ’treatment and care’ as otherwise defined for the purposes of s 3.24. 
3. There was otherwise insufficient evidence that the psychological injury prevented the claimant from doing pet care. 

As such, the Panel determined that the claimed dog walking and washing expenses did not relate to the psychological injury resulting from the accident. 

The Panel further commented that if they were incorrect in understanding the scope of the dispute and the dispute was actually about whether the dogs themselves were ’treatment and care’, the Panel determined that there was insufficient evidence to establish that the dogs resulted in any improvement in the claimant’s psychological state in a manner consistent with them being treatment, served a therapeutic function or assisted the claimant in attending to his activities of daily living. 

Whilst the Review Panel certificate and the medical assessment certificate met the same conclusion, the Panel said that the latter was not clearly worded and failed to address the dispute between the parties. 

Held: The Certificate was revoked. A new certificate was issued that the claimed dog washing and walking expenses were not ’treatment and care’ and did not relate to the psychological injury caused by the accident. 

View decision

Sarofim v Allianz Australia Insurance Limited [2025] NSWPICMP 434; (29 October 2025)

Member Gary Patterson, Medical Assessor Malcolm Capon and Ian Wechsler

Review of medical assessment certificate for permanent impairment – relevant pre-accident conditions and causation of injury in dispute – Review Panel not satisfied that the claimant’s posterior vitreous detachments were caused by the accident.

The claimant was injured in a motor accident on 6 November 2019. The claimant’s vehicle was stationary when the insured vehicle rear-ended that vehicle at speed.

After the accident, the claimant was diagnosed with a right vitreous detachment, with no retinal complications. The claimant suffered various physical injuries which are the subject of separate assessment and review. Relevantly, the morning of the motor accident the claimant was reviewed at Specsavers, and she did not report symptoms, but later reported symptoms to be the result of an injury caused by the motor accident.

The insurer accepted liability statutory benefits and common law damages. A dispute arose between the parties surrounding the claimant’s degree of permanent impairment. Medical Assessor Kerrie Meades on 5 August 2024 certified that the claimant suffered signs of bilateral vitreous detachments with no retinal complications which were not likely to be related to the accident. Consequently, there was no need to assess permanent impairment for the injury to the eyes.

The claimant sought a review of Medical Assessor Meades’ Certificate, stating that the medical assessment was incorrect in a material respect and that Meades failed to provide adequate reasons for her finding that the posterior vitreous detachment in both eyes was unlikely to be caused by the accident.

The President’s delegate states there is a reasonable cause to suspect Meades’ assessment was incorrect in a material respect. The Specsavers’ notes of the morning before the incident do not reveal symptoms like the symptoms described by the claimant post-accident, such as sensitivity to light with double vision and blurred vision. It was found Medical Assessor Meades failed to provide adequate reasoning to justify his decisions. Consequently, the claimant’s review application was accepted and referred to the review panel.

The claimant applied to have the medical assessment certificate referred to a Review Panel on the basis that there was a reasonable suspicion of material error. The claimant said that Medical Assessor Meades failed to give adequate reasons on causation and failed to disclose her path of reasoning. The application for review was accepted and referred to the Panel for determination.

Following a re-examination of the claimant, the panel determined that:

1. Neither her lens capsular opacites nor her macular epiretinal membranes are caused by her accident. The lens capsular opacites are an inherent consequence of cataract surgery.
2. Vitreous detachment occurs in 27% of persons aged 60-69, rising to 40% of those who have cataract surgery. The claimant is now 64 years old. Hence, her vitreous detachments are from both age and cataract surgery and not from the accident.
3. The claimant noted the increased floaters about three months after her accident. This extended duration between accident and onset makes it much more likely that the problems were not aggravated or caused by the incident.
4. Vitreous detachment after blunt ocular trauma is usually focal, yet the claimant has generalised posterior vitreous detachments.

The Panel determined overall that the claimant’s symptoms of floaters, posterior vitreous detachment, reduced vision, and diplopia are not secondary to her accident. This confirmed Assessor Meades’ medical assessment certificate, and no assessment of permanent impairment was required.

Held: The medical assessment Certificate was confirmed.

View decision

Merit Review Panel

Wade v QBE Insurance (Australia) Limited [2025] NSWPICMRP 1; (27 October 2025)

Members Susan McTegg, Alexander Bolton and Bianca Montgomery-Hribar

Pre-Accident Weekly Earnings (PAWE) calculated under Sch 1, clause 4(1) – where claimant self-employed – tax return amended post-accident to reflect cash payments without business expenses deductions - s 177(1) of the Income Tax Assessment Act 1936 designed to facilitate recovery of tax and the ’conclusive evidence’ provision does not apply in other proceedings – amended tax return not conclusive evidence of earnings – PAWE assessed using bank statements only.

The claimant was injured in a motor accident on 21 February 2024. At the time of the motor accident, the claimant was a self-employed painter. The insurer accepted liability for statutory benefits up to 52 weeks and that the claimant was an earner for the purposes of the MAI Act.

On 5 April 2024, the insurer assessed PAWE at $162.58 relying on a report of Procare. The claimant applied for internal review and argued that PAWE should reflect 2023 Individual Taxation Return amended post-accident. The insurer varied the decision to $163.20 to reflect cash payments but rejected the claimant’s reliance amended tax return.

The claimant applied to the Commission for review of the PAWE assessment. The insurer submitted the amended FY23 ITR was unreliable as the claimant had failed to declare business expenses and as the monies could not be reconciled by invoices or bank statements. The claimant argued that “earnings from his business was for the supply of his labour with no significant investment or capital and therefore he had no business expenses as per the tax return. He alleges Procare induced him to disclose information to which confidentiality and legal privilege was attached and that the use of this material by Procare constitutes a denial of procedural fairness which renders the Procare reports inadmissible.”

Merit Reviewer Medland set aside the insurers decision and assessed PAWE at $334.01 because she used a smaller period of earnings, considered cash payments. She rejected the amended tax return as ’conclusive evidence’ as:

1. it did not cover the relevant period for the purposes of Schedule 1
2. other documentation such as bank statements/taxation returns could not reconcile the amended tax return
3. the amended tax return was lodged after the claim and the initial PAWE assessment
4. it ’defied common sense that the claimant’s business would not have incurred any business-related expenses for the 2023 financial year.’

The claimant applied for panel review of Merit Reviewer Medland’s decision and argued that tax data issued by the Australian Taxation Office is conclusive evidence of income and that:

’Section 177(1) of the ITA Act specifically operates by compelling a court, in the exercise of its jurisdiction to treat a notice of assessment on its production as conclusive evidence that the assessment has been duly made and thereby foreclosing the issue.’

The Panel allocated revoked the decision of Merit Reviewer Medland and determined PAWE at $1,003.18 as the claimant provided a further list of cash payments received and business expenses. On the other grounds for review, the panel said that:

1. Section 177(1) of the ITA Act is designed to facilitate the recovery of tax and the ’conclusive evidence’ provision does not apply in other proceedings not associated with the recovery of tax including the assessment of the claimant’s PAWE under the MAI Act.
2. Procare’s report was admissible evidence – whilst the conduct of Procare was ’less than ideal’, the Panel concurred with Merit Reviewer Medland that the conclusions contained in the report were based on the source documentation furnished by the claimant.
3. The Panel is not bound by the Procedural Directions but are guided by it.

Held: The decision was revoked and the PAWE was assessed at $1,003.18.

View decision  

Merit Review

Allianz Australia Insurance Limited v Abercrombie [2025] NSWPICMR 32; (24 October 2025)

Merit Reviewer Katherine Ruschen

Section 6.24 duty of claimant to cooperate with insurer; whether a request for further information and documents in connection with a claim for reimbursement of costs of care is reasonable; whether the claimant has a reasonable excuse for failing to comply; variabilities in the evidence.

On 18 May 2024, the claimant was injured in a motor accident. He made a claim for statutory benefits.

As part of that claim the claimant submitted reimbursement requests for care provided to him by a carer and on 16 April 2025 the insurer requested that the claimant sign authorities to release medical information and a signed statement from the claimant regarding inconsistencies that the insurer considered arose. The insurer requested that a response be provided by 14 May 2025.

The insurer chased for a response on 22 May 2025, 10 June 2025 and 16 June 2025.

On 4 July 2025, absent a response, the insurer put the claimant on notice that it would file a merit review application in the Commission. The insurer subsequently lodged an application under s 6.24, arguing that the claimant had failed to comply with reasonable requests for further information and documents. Merit Reviewer Ruschen was allocated.

The Merit Reviewer ultimately determined that the claimant had failed to comply with the duty under s 6.3(2) to ’act honestly, not to mislead and to disclose all relevant information in a timely manner'. She said that:

1. The claimant is under mandatory obligation to ’co-operate fully’ with the other party.
2. The claimant had ample time to comply with the insurer’s request and did not take any steps to request an extension of time from the insurer.
3. The claimant has caused unacceptable heavy delay without adequate explanation.
4. The lack of urgency for the matter is not sufficient explanation for the claimant’s breach.

The Merit Reviewer refused the claimant’s application for costs of the dispute, stating that the costs would not have been incurred if the claimant had responded to the insurers request for information in a timely manner, because the insurer would not have to make the merit review application.

Held:  The insurer’s request was reasonable and the claimant did not have a reasonable excuse under s 6.24.

View decision

Miscellaneous Claims Assessment

Cheng v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 566; (21 October 2025)

Member Brett Williams

Whether claimant wholly or mostly at fault under ss 3.11 and 3.28 – multi-vehicle accident – claimant collided with stationary vehicle broken down on highway – Podrebersek v Australian Iron & Steel Pty Ltd (Podrebersek), Axiak v Ingram, Allianz Australia Insurance Limited v Shuk, and AAI Limited t/as GIO v Evic discussed and applied.

The claimant was injured in a motor on the Hume Motorway on 1 October 2023. He was driving at 110lkm/h in lane one of two and the vehicle travelling in front of him suddenly changed lanes into lane two to avoid a stationary vehicle in lane one. The claimant collided with the rear of the stationary vehicle.

The insurer denied liability beyond 52 weeks for the claim for statutory benefits on finding that the accident was caused wholly by the claimant’s fault for purposes of ss 3.11 and 3.28.  The insurer relied on the Police report, which listed the claimant as responsible. the report also stated that claimant failed to keep a proper lookout, failed to maintain a safe distance between his vehicle and the vehicle in front, and should have been put on notice by the vehicle suddenly changing lanes in front that there was a change of circumstances on the roadway.

The claimant applied to the Commission and argued that he was not wholly or mostly at fault. He argued that he was driving within the speed limit and that the accident was caused by the fault of the driver of the stationary vehicle. Member Williams was allocated.

Parties discussed the application of authorities for an assessment of contributory negligence in multi-vehicle accidents. The insurer noted that two vehicles ahead of the claimant swerved around the vehicles involved in the earlier accident and argues the claimant should have been able to do so as well had he been exercising reasonable care. Discussing Evic, the insurer argued that because there were two vehicles involved in the accident, determining whether the accident was caused wholly by the claimant’s fault should not be undertaken by reference to the extent to which the claimant departed from the standard of care required of a reasonable person in his position, but rather by reference to the relative culpability of the drivers involved in the accident.

The Member determined that the accident was not wholly or mostly the claimant’s fault. The Member was not satisfied that a reasonable person in the position of the claimant would have been aware of the stationary vehicle and that the vehicle travelling in front of the claimant likely obstructed his vision. The Member noted the absence of expert evidence on perception reaction times.

On the basis of the Member’s finding that the claimant was not at fault, the Member determined that it was not necessary to determine the fault of the stationary vehicle.

Held: The decision was revoked. The claimant was not wholly or mostly at fault.

View decision

Liton v Allianz Australia Insurance Limited [2025] NSWPIC 547; (15 October 2025)

Member: Bianca Montgomery-Hribar

Full and satisfactory explanation for delay in making claim for statutory benefits under s 6.13 – claim made after three months from date of motor accident – explanation accepted.

On 11 July 2024 the claimant was a rear seat passenger in the at-fault vehicle involved in a nine-vehicle chain collision. More than three months later on 18 November 2024, the claimant lodged a claim for statutory benefits.

The insurer denied liability for the statutory benefits claim on the basis of section 6.13 – that the claim had been lodged more than three months post-accident and that the claimant had failed to provide a full and satisfactory explanation for delay.

The claimant provided an explanation which was rejected by the insurer on the basis that it was not full or satisfactory. He said that he arrived in Australia on 26 May 2023, had limited English skills and had no knowledge of motor accident injury law, procedure or time limits. He argued that he acted swiftly once aware of his rights to lodge a claim and that the explanation should be accepted as full and satisfactory for the purposes of s 6.13.

The insurer upheld the decision on internal review, and the miscellaneous claims dispute under Sch 2 cl 3(h) came before Member Bianca Montgomery-Hribar. Ultimately the Member determined that the claimant likely was advised of his legal entitlements to make a claim, but that he was not advised of time limitations. The delay whilst the claimant obtained details regarding the vehicles involved was accepted as reasonable, and the Member said that the claim was lodged promptly on receipt of same.

Held: The decision was overturned.  The explanation for delay was accepted as full and satisfactory.

View decision