Sparke Helmore's MAD (Motor Accidents Division) - Issue 153
26 May 2026
Welcome to the 153rd 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.
Miscellaneous Claims Assessment
Brines v AAI Limited t/as GIO [2026] NSWPIC 226; (22 April 2026)
Member Belinda Cassidy
Wholly or mostly at fault dispute – inconsistent accounts regarding whether the cause of the motor accident was debris on the road or an unidentified vehicle - assessment on the papers; doctrine of res ipsa loquitor considered: Insurance Australia Limited t/as NRMA v Richards, Blacktown City Council v Hocking, Watson v Foxman and Ors, Nominal Defendant v Corbin, AAI Limited t/as GIO v Evic, Axiak v Ingram, Davis v Swift and Serrao (by his tutor Serrao) v Cornelius (No 2) considered and applied.
On 19 June 2024, the claimant sustained serious injuries in a motor accident on Putty Road at Colo. He was riding his motorcycle; lost control nearing a bend and was ejected from the bike.
The claimant made a claim for statutory benefits, and a dispute arose between the parties as to whether the claimant was wholly or mostly at fault for the purposes of ss 3.11 and 3.28. Initially, the insurer had accepted liability for statutory benefits after 52 weeks, relying on a version in the claim form that the claimant lost control of his motorcycle because of something on the road surface.
The claimant then filed a statement in which he said that an unidentified white car came around the corner on the wrong side of the road and the claimant swerved to avoid it.
Due to the second allegation of fault on the part of an unidentified vehicle, the claim was allocated to the Nominal Defendant. Allianz was allocated and on 7 March 2025; Allianz declined the transfer on the basis that the earlier version of the accident was that the claimant had lost control on debris or water on the road. Allianz did not accept the involvement of an unidentified vehicle.
The original insurer then denied liability for statutory benefits after 52 weeks on the basis that the claimant was mostly at fault, assessing contributory negligence at 80%.
The insurer relied on res ipsa loquitor applies as in Piening v Wanless where Justice Windeyer’s held that, ’if a motor car runs off the road, that fact, standing alone and unexplained, provides some evidence that the driver was negligent.’ The insurer said that ‘in the absence of probative evidence of the cause of the motor accident’ the insurer has inferred that the cause of the claimant’s accident was his failure to exercise reasonable care and skill and that he:
- failed to ride to the prevailing conditions of the roadway
- failed to traverse a bend on the Putty Road
- failed to maintain control of his motorcycle, and
- failed to avoid a collision.
The Member overturned the insurer’s decision and found that the claimant was not mostly at fault.
The Member did not consider that res ipsa loquitor applied because it was determined that there were causes to the motor accident that could be identified. It was determined that it was not a no-fault accident, because the claimant bore some responsibility. As this was a single vehicle accident, the Member applied the comments of Justice Mitchelmore at [68] in Evic; the Member assessed contributory negligence having regard to how far the claimant departed from the requisite standard of care.
The Member assessed contributory negligence at 20%, considering that:
- The claimant lost control of the motorcycle and failed to traverse the bend. Medical doctors reported that the claimant braked to avoid debris on the road before losing control. The insurer did not introduce evidence to counter that there was anything the claimant could or should have done to maintain control of his motorcycle.
- There was no expert evidence as to the ’prevailing conditions’ or state of the roadway. Photographs and video showed emergency responders sweeping the road post collision, and the Member accepted this as evidence that police observed something on the road.
- ’A reasonable person in the position of the claimant, riding a motorcycle with new tyres which he was aware might not have had been worn in, having ridden up the Putty Road earlier in the day and on it many times before that, would have been on notice of the likelihood of material being on the road. That reasonable person would have been riding under the speed limit in order to keep an eye out for things on the road and ensure he had the opportunity to avoid material on the road.’
- The claimant’s conduct was otherwise reasonable. He was wearing safety gear and was well rested. His departure from the standard of care by failing to ride below the speed limit and instead riding at the speed limit was not significant.
Separately, on the issue of costs, the Member rejected the application for exceptional costs. The claimants costs were assessed in the sum of $4,062 plus GST, representing two disputes, being:
- whether Mr Brines was wholly or mostly at fault in respect of his weekly benefits under s 3.11 (schedule 2, cl 3(d)), and
- whether Mr Brines was wholly or mostly at fault in respect of his treatment and care benefits under s 3.28 (schedule 2, cl 3(e)).
Held: The claimant was not wholly or mostly at fault.
Medical Assessment Review
Singh v AAI Limited t/as Suncorp Insurance & Anor [2026] NSWPICMP 295 (29 April 2026)
Member John Harris, Medical Assessor Wayne Mason, Medical Assessor Christopher Canaris
Review of medical assessment certificate for permanent impairment – psychiatric impairment - claimant presented with loss of functioning which had deteriorated substantially over time to a severe level; deterioration medically plausible but unlikely – Panel not satisfied of real contradiction of presentation.
The claimant made a claim under the MAI Act for statutory benefits and common law damages due to psychological injuries sustained in a motor accident on 6 September 2023. A dispute arose between the parties regarding the claimant’s permanent impairment arising from his alleged psychological injury.
On 3 July 2025, Medical Assessor Hong concluded that the motor accident caused an adjustment disorder in remission and assessed 0% WPI. The Medical Assessor said that it was ’unusual that, given the severity of the symptoms and impairment, his treating team does not offer new or additional treatment according to the PTSD treatment guidelines, and it is that he does not want treatment relating to trauma. It is also unusual that Mr Singh reported very poor concentration, but I discussed with him, this was not evident during the assessment.’ Overall, the Medical Assessor said that the subject accident did not fulfil the DSM-5TR PTSD criterion A event description. He noted the claimant’s history of a ‘more severe MVA and development adjustment disorder previously’. He considered that the claimant’s accident-related adjustment disorder had resolved and that it was a ’self-limiting psychiatric diagnosis’ and there were no physical injuries/pain to perpetuate the psychological symptoms.
The claimant applied for a review under s 7.26, arguing that the treating evidence supported the diagnosis of PTSD, and that the insurer did not deny the accuracy of the diagnosis but said that the claimant’s psychological injury had not stabilised. The claimant said that there was a reasonable suspicion of material error in Medical Assessor Hong’s Certificate because the reasoning was ’simply unsustainable’ and lacked rational explanation. The insurer refuted the application, but ultimately it was referred to the Panel. The claimant was re-examined by the Panel.
It was said that whilst the claimant’s symptoms were ’unusually severe’ some two and half years post-accident, and that whilst the limited treatment caused the Panel to have reservations about the significant functional impact, there was no evidence in the documentation on hand to contradict his assertions. The Panel said that there was no definitive contradiction in the claimant’s narrative.
The Panel ultimately diagnosed PTSD as a result of the motor accident, stating that there was sufficient evidence that accident, which involved a collision with a B-double truck travelling at some speed, satisfied criterion A.
The Panel assessed 44% whole person impairment (WPI), based on moderate deficits in self-care and personal hygiene and travel, severe deficits in social and recreational activities and concentration, persistence and pace, a mild deficit in social functioning and a total deficit in adaptation. There was no pre-existing impairment assessed as the Panel accepted that the pre-accident pain disorder diagnosis and likely adjustment disorder resolved well before the motor accident.
Held: The medical assessment Certificate was revoked, and new Certificate was issued, with WPI assessed at 44%.
Merit Review
Cameron v Allianz Australia Insurance Limited [2026] NSWPICMR 15; (29 April 2026)
Merit Reviewer Katherine Ruschen
Whether the claimant suffered a loss of earnings and whether there was entitlement to weekly payment of statutory benefits under ss 3.6 and 3.7 – where post-accident earnings exceed pre-accident weekly earnings (PAWE) – consideration of loss of opportunity in statutory benefits weekly benefit decisions.
The claimant sustained injuries in a motor accident on 18 September 2025. She made a claim for statutory benefits, and on 30 December 2025, the insurer issued a decision that:
1. Assessed PAWE at $703.25. That aspect of the reviewable decision was not disputed.
2. Determined the claimant had not suffered a loss of earnings as a result of injury resulting from the motor accident and therefore was not entitled to payment of weekly statutory benefits.
The insurer affirmed that decision on internal review, and the claimant applied to the Commission arguing that the motor accident caused a reduced capacity to carry out post-accident employment operating a short-term accommodation (Airbnb) management business.
A key issue was whether income received by the claimant from her business was income from personal exertion or passive income. The insurer argued that income generated by the claimant’s business should be considered as rent, which is excluded from the definition of ’income from personal exertion’ under the MAI Act. On this, the Merit Reviewer said that this submission could not be upheld in light of the insurers earlier assessment of PAWE, because, if the business proceeds were excluded, PAWE would be nil. The Merit Reviewer said that profit generated through management activities carried out by the claimant’s business was not the same as the underlying rental income for the properties – the claimant was not the property owner, nor did she have a direct entitlement to the rental income – the income from the business paid by the owners in return for provision of management services.
Interim directions were issued by the Merit Reviewer which required the claimant to provide post-accident earnings documentation consistent with the ongoing obligations under the MAI Act.
The claimant argued that the insurer’s reliance of the business continuing post-accident was inaccurate, because the claimant, but for the accident and resulting incapacity, would have incurred greater earnings. The insurer refuted the claimant’s submissions, and in further submissions responding to additional evidence filed by the claimant after the original application was lodged, the insurer said that there was no loss of earnings after the accident as the business had remained operational and was more profitable than compared to the pre-accident period.
The Merit Reviewer said that the claimant misconstrued ss 3.6 and 3.7 by separating whether there had been a ‘loss of earnings or loss of earning capacity’. The Merit Reviewer said that ss 3.6 and 3.7 required assessment of the post-accident earning capacity, not incapacity, whether post-accident earning capacity is greater than post-accident earnings. She said that it did not automatically arise that there is a loss of earnings even if there was incapacity.
The Merit Reviewer considered the claimant’s allegation that she had incurred additional business expenses such as a cleaner as a result of her injuries and reduced capacity. The Merit Reviewer said that ss 3.6 and 3.7 do not compensate for reduced profit or additional business expenses, unless the outcome of any reduced profit results in a loss of earnings. As the net proceeds exceeded PAWE, there was no compensable loss of earnings under ss 3.6 or 3.7. It was said that a finding to the contrary would result in overcompensation and would be contrary to the objectives of the MAI Act.
Held: The reviewable decision was affirmed – weekly statutory benefits were not payable as there had been no loss of earnings.
Medical Assessment Review
Yu v Insurance Australia Ltd (t/as NRMA Insurance) [2026] NSWPICMP 285 (22 April 2026)
Member Lum, Medical Assessor Barnsley and Medical Assessor Gibson
Whether claimant had suffered a threshold injury to her cervical spine and left clavicle within the meaning under s 1.6 – original medical assessment certificate (MAC) found contusion injuries only with no evidence of a clavicle fracture – Review Panel determination made on-the-papers — post-accident MRI showing cortical step in clavicle with the presence of bone oedema was likely to be indicative of an acute fracture.
The claimant sought review of the Certificate of Medical Assessor Home, who had assessed all of the claimant's injuries as threshold injuries. The central issues in dispute were whether the claimant had sustained a fracture of the left clavicle and whether cervical spine radiculopathy was established, either of which would give rise to a non-threshold injury.
The accident occurred on 16 February 2025. The claimant was a front seat passenger in a vehicle driven by her husband. As the vehicle turned right at a traffic light intersection, it was struck head-on by a vehicle travelling in the opposite direction at speed. The claimant reported immediate symptoms to her neck, shoulders, mid and lower back.
The Panel determined the review on the papers, having formed the view at a preliminary conference that re-examination would not add to its understanding of the issues, and that the objects of the MAI Act – including the quick, cost-effective and just resolution of real issues in dispute – were best served by proceeding on the documentary evidence.
Regarding cervical spine radiculopathy, the Panel had regard to David v Allianz Australia Ltd [2021] NSWPICMP 227 - which confirms that radiculopathy can be present at any time to establish a non-threshold injury - and saw no reason to depart from that reasoning. However, the Panel found that the complaints of neck pain, upper limb radiation and the symptoms documented by Dr Lam were non-specific and did not satisfy the clinical signs for radiculopathy under cl 5.8 of the Guidelines, which requires two or more of the prescribed signs to be present on examination. No evidence of an acute fracture was present. The Panel accordingly concluded that the cervical spine injury was a soft tissue, threshold injury.
The key issue before the Panel was the proper interpretation of the MRI scan of the left shoulder dated 5 March 2025, taken approximately three weeks after the accident. The report identified bone oedema involving the lateral aspect of the clavicular bone with a cortical step at the inferior surface and concluded that these findings were suspicious for a displaced fracture.
Medical Assessor Home had found that the MRI findings were consistent with bone contusion only – that is, a bony injury not involving macroscopic disturbance of the bone structure but eliciting a local reparative response seen as oedema. He noted that the radiologist had expressed only a suspicion of fracture, that it was not confirmed, and that the claimant received no treatment directed at a clavicle fracture at the time of the initial hospital admission or on subsequent review by Dr Pant.
The Panel disagreed. It distinguished bone contusion from fracture by reference to the cortical step finding, noting that a cortical step results from a disruption of the outer cortical component of the bone such that the normal smooth outline is disturbed – a feature not explained by contusion alone. While bone oedema is seen in both contusion and fracture, the Panel considered that the additional presence of a cortical step was indicative of a fracture, and that the overall imaging findings were most consistent with a recent, acute fracture to the clavicle. The Panel also placed weight on the opinion of the treating orthopaedic surgeon, who, having reviewed the MRI scan, described the findings as a confirmed fracture and noted significant change in the distal clavicle corresponding with the claimant's symptoms. The Panel noted that the absence of specific interventions directed at the fracture was consistent with accepted management of undisplaced or minimally displaced clavicular fractures, and did not detract from the diagnosis.
The Panel was satisfied that the mechanism of the accident – a high-speed head-on collision causing abrupt deceleration and forcing the claimant against occupant restraints – was capable of producing a bony injury to the left clavicle, and that the accident did cause the left clavicular injury. There was no clinical history of any pre-existing left shoulder complaints.
As a bone fracture falls outside the definition of a soft tissue injury under s 1.6(2) of the MAI Act, the Panel found the left clavicle fracture to be a non-threshold injury.
Held: The Certificate was revoked. The left clavicle fracture was caused by the motor accident and was not a threshold injury. The injuries to the cervical spine, thoracic spine, lumbar spine and right shoulder were threshold injuries.
Settlement Approval
Lam v AAI Limited t/as GIO [2026] NSWPIC 227 (22 April 2026)
Member O'Riain
Settlement approval under s 6.23(2)(b) – whether settlement was fair, just and reasonable pursuant to cl 7.37 – where claimant sought legal advice but declined assistance and was unrepresented – where claimant is uneducated and required interpreter and family support
The insurer sought approval of a proposed settlement of $237,000 (all inclusive) under s 6.23(2)(b) of the MAI Act. The claimant was unrepresented, having sought legal advice but declined to instruct them to act. Approval by the Commission was therefore required before payment could proceed.
The accident occurred on 2 February 2024. The claimant was the unaccompanied, seatbelted driver of a Toyota HiAce van at the end of a delivery run when the insured vehicle came from his left and struck his van, causing significant front-end damage. The van was a total write-off. The claimant was airlifted by helicopter to St George Hospital, where imaging confirmed a closed non-displaced fracture of the sternum with a small retrosternal haematoma – a non-threshold injury for the purposes of the MAI Act. The insurer admitted breach of duty of care and did not allege contributory negligence.
A complicating feature of the matter was that the driver of the other vehicle died in the accident, which the Member accepted as a contributing cause of the claimant's psychological injuries. The claimant subsequently developed PTSD, with symptoms including insomnia, driving anxiety, hypervigilance, panic attacks, palpitations, cold sweats and sobbing. His return to work as a delivery driver – a role that re-exposed him to the conditions that triggered his symptoms – exacerbated his psychological condition, and antidepressants were prescribed. The claimant's workers compensation insurer accepted liability for treatment expenses and loss of earnings, and those entitlements were to be resolved on approval of the proposed settlement.
By the time of the hearing, the claimant had made a substantial recovery from both his physical and psychological injuries.
The proposed settlement of $237,000 comprised past weekly benefits of $107,000 (inclusive of income tax paid) and $130,000 for future economic loss, with the claimant to receive $110,263.45 clear after deduction of workers compensation statutory benefits. The future economic loss component was calculated on the basis of the claimant not working two days per week until retirement age – a contingency reflecting the possibility that his accident-related conditions could periodically flare up and impair his earning capacity, notwithstanding his current full-time capacity.
The primary question before the Member was whether the settlement was just, fair and reasonable under cl 7.37 of the Motor Accident Guidelines, and whether the claimant had sufficient understanding of the nature and effect of the settlement and the finality of his damages entitlement upon approval.
The Member was satisfied on both counts. The claimant attended the preliminary conference with his nephew who acted as his authorised representative, and with the assistance of a Cantonese interpreter. The Member noted that the claimant was a Cambodian man of Chinese ethnicity with limited formal education, having attended only a few years of primary school. Despite this, the Member was satisfied by the claimant's demeanour, the quality of his contributions during the conference, and the family support available to him that he had sufficient agency to competently resolve the dispute.
In finding the settlement just, fair and reasonable, Member O‘Riain drew a deliberate distinction between each criterion.
- The settlement was just because the claimant understood its nature and effect and wished to accept it.
- It was fair because, notwithstanding his lack of legal representation, the claimant had been given a genuine opportunity to obtain it – having in fact sought and received legal advice before electing to proceed unrepresented – and had the benefit of competent personal support throughout.
- It was reasonable because the medical evidence supported the existence of ongoing accident-related conditions that, while currently not impacting his capacity, could occasionally flare up and adversely affect his future earning capacity – a contingency adequately reflected in the future economic loss component of the settlement.
The claimant confirmed his understanding that approval would finalise his entitlement to damages, that no allowance for time away from work for treatment was included in the offer, and that deterioration of his condition could not be the subject of further compensation once settlement was approved.
Held: The proposed settlement of $237,000 all-inclusive was approved under s 6.23(2)(b).
