Sparke Helmore's MAD (Motor Accidents Division) - Issue 145
18 December 2025
Welcome to the 145th 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
Davoudi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMR 36; (3 December 2025)
Member: Katherine Ruschen
Claim for statutory benefits; dispute about calculation of pre-accident weekly earnings (PAWE); clause 4(1); cash earnings; burden of proof; evidentiary burden.
The claimant was involved in a motor accident on 22 November 2024. He made a claim for statutory benefits relating to the motor accident, and a dispute arose between the parties about the amount of weekly payments of statutory benefits payable under Division 3.3.
On 25 March 2025 the insurer assessed PAWE at nil based on an average income loss of $15.70 per week. This decision was affirmed on internal review dated 8 May 2025. The claimant applied for merit review in the Commission. The dispute was allocated to Member Ruschen.
Ultimately, the parties agreed that:
- At the time of the accident, the claimant was employed as a water proofer for Spanos and as a sole trader in waterproofing and selling scrap metal.
- The dispute was limited to the amount of cash wages, if any, received by the claimant from Spanos. That is, the claimant accepted the insurer’s calculations of the sole trader earnings.
- The claimant was employed by Spanos with a regular hourly rate of $40 and an overtime rate of $45 and that the claimant received gross earnings totalling $101,447 between 30 June 2023 and 1 July 2024.
The claimant argued that the insurer failed to take into account his 2024 tax return, including the income paid in cash because there were no corresponding bank deposits. The insurer relied on a PKF report and argued that:
- Total figures for each timesheet could not be reconciled with amounts written on copies of envelopes provided by the claimant in which the claimant says the cash payments were made, as the envelopes did not list any dates.
- The figures could not be reconciled with other records such as banking records or payslips.
The Member highlighted that the claimant had the burden to establish on the balance of probabilities that he received cash wages in the amount contended in the pre-accident period. She said that the claimant had provided documentary evidence, including text messages concerning the collection of cash envelopes, settlement agreement between Spanos and the claimant and the 2024 tax return which showed that the claimant incurred a significant tax debt as a result of Spanos’ failure to deduct PAYG income tax. She highlighted the absence of evidence produced by the insurer to rebut the claimant’s position.
Consequently, the Member accepted the claimant’s position. She assessed PAWE at $988.62 as follows:
- Earnings as a sole trader (waterproofing and scrap metal per PKF report and claimant’s submissions): $36,805
- Spanos cash earnings of $52,225
- Less business expenses per PKF report and claimant’s submissions of $37,622
= ($51,408 / 52 weeks = $988.62)
Held – The decision was set aside. PAWE was assess at $988.62.
Miscellaneous Claims Assessment
Sayour v Allianz Australia Insurance Limited [2025] NSWPIC 644; (2 December 2025)
Member: David Ford
Dispute that injury sustained by the claimant was not a result of a motor accident; alleged psychological injuries; whether incident constitute a series of incidents with injury arising gradually; determined the claim does fall within the scope of the MAI Act and the claimant is entitled to statutory payments.
On 25 February 2025, the claimant was a passenger in an Uber vehicle driven by the insured driver who was intoxicated and, allegedly, driving the motor vehicle in a dangerous and frightening manner. The journey came to an end when the Uber driver was subject to a random breath test by police and returned a test result of 0.086.
The claimant alleged that he sustained a psychological injury as a result of the driving of the vehicle. A dispute arose between the parties as on internal review the insurer determined that the injuries did not result from a motor accident and therefore that liability post 52 weeks for statutory benefits was not payable.
The claimant lodged a miscellaneous claims dispute under Schedule 2.3 (b) seeking a determination ’whether for the purposes of section 3.1 (statutory benefits payable in respect of death or injury resulting from motor accident) the death of or injury to a person has resulted from a motor accident in this State’.
The claimant in submissions construed the insurers argument to be that this was not a single event and that the progressive injury exclusion in s 1.9(2) applied, so as to break the chain of causation. The claimant argued that this was one ’short road trip where the intoxication of the driver and the reckless driving behaviour, caused psychiatric injury as the claimant was in fear for his life. This one trip does not constitute a series of incidents with injury arising gradually’. The claimant said that the insurer had accepted breach of duty of care and injury, which the insurer disputed.
Further via submissions, the insurer argued there was no incident that occurred during the Uber trip and that the alleged motor accident does not meet the definition of a ‘motor accident’ for the purposes of s 1.4.
Member Ford set out the definition for a motor accident under the ss 1.4 and 1.9. He accepted the claimant’s submission that ’the trip was a constant journey and was a short road trip only, and … this one trip did not constitute a series of incidents with injury arising gradually'. He otherwise indicated that whether the claimant sustained an injury (a medical dispute) should be referred to the Medical Service for determination.
Held – The decision set aside – the incident as alleged satisfies the definition of a motor accident.
BUP v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 513; (26 September 2025)
Member: Bridie Nolan
Dispute regarding late claim explanation – damages claim lodged after three years of the accident – whether the explanation was ’full and satisfactory’ as per ss 6.14(3) and 6.2 – Member considered the claimant’s reliance on their solicitor’s assurances – explanation accepted.
On 1 August 2019, the claimant was injured in a motor accident. The claimant was advised by the insurer as part of the statutory benefits claim that a damages claim must be lodged within three years of the accident, otherwise a full and satisfactory explanation for the delay would be required.
The damages claim was lodged on 29 October 2024, more than three years after the accident. The insurer subsequently declined liability for damages on 1 November 2024 on the basis that the claim was not procedurally compliant. The insurer said that the claimant needed to provide a full and satisfactory explanation for the delay pursuant to s 6.14(3). This decision was affirmed on 24 March 2025, at which time no explanation for delay had been provided.
The claimant applied to the Commission for determination of this miscellaneous claims assessment dispute.
The claimant had legal representation throughout the life of the statutory benefits claim but became self-represented on lodgement of the Commission application. He gave evidence before Member Nolan that he queried the damages claim with his solicitor before the three-year anniversary and was told it would be taken care of.
The insurer considered the claimant’s bundle of evidence in the Commission dispute and the evidence provided at the preliminary teleconference. On 7 August 2025, the insurer accepted liability for damages, thereby accepting the explanation of delay, and parties sought for the matter to be dismissed (as there was no longer a dispute).
Member Nolan advised that the insurer’s admission of liability did not cure the statutory requirement to have a full and satisfactory explanation determined by the Commission pursuant to s 6.14(5). She directed the previous solicitor to produce a statement detailing their knowledge of the statutory deadline, their diary system, and the circumstances of the delay. This direction was not complied with.
On 22 September 2025, the claimant gave oral evidence explaining what had occurred since the insurer’s three-year deadline warning to the current proceedings. He referred to the numerous correspondence sent to his former solicitor requesting updates and being advised multiple times that the claim was lodged.
Member Nolan said that this explanation was full for the purposes of s 6.14(3) as it detailed the claimant’s conduct, knowledge and belief, and it was ‘satisfactory’ due to a reasonable person in the claimant’s position acting as the claimant did.
Held - The explanation for the delay was accepted as full and satisfactory.
Judicial Review
Stephen John Kewin v AAI Limited t/as GIO Insurance [2025] NSWSC 1425 (1 December 2025)
Mitchelmore J
Administrative law - if existence of a medical dispute a jurisdictional fact for the Court to determine on judicial review — whether procedural rules of the Commission inconsistent with s 7.20 and whether certiorari is available in respect of a decision not to refer.
The plaintiff was allegedly injured in a motor accident in November 2018. The claim for statutory benefits was lodged over two years later in July 2021. The insurer, on 7 May 2024, determined that the plaintiff’s injuries arising from the motor accident were ’threshold injuries’ and affirmed that decision on internal review on 3 June 2024. The plaintiff applied for medical assessment in the Commission under Division 7.5 seeking a determination that he sustained more than a threshold injury around 30 July 2024. He referred eight injuries for assessment in his application form, and a dispute arose between the parties regarding the referred psychological injury.
In submissions to the Commission, the insurer said that it had omitted the psychological injury from internal review because there was no evidence to suggest that the plaintiff had been referred for any treatment pertaining to a psychological injury. This was expressly stated in the internal review decision.
On 2 September 2024 an officer of the Commission via the portal request, requested that the claimant provide evidence in respect of the psychological injury; and advised that absent of same, the psychological injury would not be referred for assessment. The plaintiff solicitor responded that there was reference to a psychological referral being required in treating evidence and that the claimant assumed this would be arranged by the insurer. They also said:
’Noting the above, it is clear that the claimant did in fact suffer a psychological impairment as a result of the accident and this injury should be referred to assessment.
The above-mentioned medicals is sufficient to evidence that there is a psychological injury, and the Act does not require evidence from a party asserting that the injury is a non-threshold injury. It not economical for medico legal reports to be purchased in circumstances where the cost may not be recovered.’
The Commission Team Leader ultimately responded that this was insufficient evidence and determined that the psychological injury would not be referred for assessment. The plaintiff filed a summons for judicial review and advanced an argument that failure to arrange for the medical dispute to be dealt with by one or more medical assessors constituted a jurisdictional error on the part of the second defendant (the President of the Commission).
The plaintiff submitted that the existence of a ’medical dispute’ for the purpose of s 7.20 is a jurisdictional fact giving the Court jurisdiction to determine an application for judicial review. The plaintiff said that the insurer’s response was sufficient to give rise to a dispute about a medical assessment matter, which the President was obliged to refer for assessment. The insurer disputed this on both grounds, stating that the existence of a medical dispute is not a jurisdictional fact, and that the Commission Rules provide the President with discretion to refer the dispute for assessment.
Mitchelmore J ultimately rejected the plaintiff’s contention that whether a medical dispute exists for the purpose of s 7.20 is a matter for the Court to determine. It was said that in Insurance Australia Ltd t/as NRMA Insurance v Scott [2016] NSWCA 138 was relevant, despite its application of the preceding MACA legislation, because the terms of s 7.20 were modelled on s 60 MACA and were not relevantly distinguishable. It was also said that s 7.20(3) was formulated by reference to the President’s opinion and it would be inconsistent to accept the plaintiff’s submission that the decision to refer or not to refer for assessment should not involve matters of evaluative judgment. This meant that the plaintiff’s ground for review failed, however in obiter, Mitchelmore J briefly considered the insurers alternative argument.
The insurer argued that the plaintiff had not complied with the Commission procedural direction 6 and the President was entitled to refuse to accept the application on that basis. Mitchelmore J agreed.
Finally, Mitchelmore J agreed with the insurers submission that the decision was not amenable to relief in the nature of certiorari under s 69 of the Supreme Court Act because the decision in dispute did not have legal effect.
Referencing Basten AJ in Insurance Australia Ltd t/as NRMA Insurance v Kyeremeh [2025] NSWSC 163, Mitchelmore J said:
’… a decision not to refer might be of a different character, because it would effectively mean that the determination of the decision maker below is final, a decision not to refer under s 7.26(5) precluding a claimant from reapplying: see s 7.26(3). By contrast, there is no equivalent provision to s 7.26(3) in relation to an application under s 7.20(1) and (2). A claimant is thus not prohibited from making another application for referral under s 7.20: see MAI Act, s 7.24(3) and cl 13 of the Motor Accidents Injuries Regulations. It was for this reason that I can see some force in the Insurer’s contention that the decision in the present case is not amenable to relief under s 69 of the Supreme Court Act, although as noted above my dismissal of the ground of review renders it unnecessary to decide the point.’
Held – The summons was dismissed.
