Sparke Helmore's MAD (Motor Accidents Division) - Issue 154
02 July 2026
Welcome to the 154th 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.
District Court
Hoptman v The Entrance Red Bus Services Pty Ltd [2026] NSWDC 165 (28 May 2026)
Russell SC DCJ
CIVIL PROCEDURE – non-compliance with pre-filing conditions for commencement of Court proceedings – whether bus doors closing on a person when boarding is a ‘motor accident’ and within general restrictions of s 1.9 – whether engaging the mechanism to close the bus doors while stationary at a bus stop is part of the driving of the motor vehicle – whether injury suffered is a result of the driving of the motor vehicle.
The plaintiff filed a Statement of Claim in the District Court alleging that he was injured on 12 October 2022 whilst boarding a bus. It was understood that he was boarding the bus when the bus door closed on him. The second defendant was the operator of the bus involved. The plaintiff pled under the Civil Liability Act 2002 and MAI Act. As to the pleadings under MAI Act, the plaintiff did not have the claim exempt under s 6.31 of MAI Act and in these judicial proceedings, the second defendant sought proceedings to be dismissed in a Notice of Motion on 23 February 2026, or in the alternative, striking out the Amended Statement of Claim.
The issue in the Notice of Motion was whether the injury was caused by the driving of the bus so as to be included as within MAI Act s 1.9. The second defendant argued that it was, that MAI Act applied, and that accordingly, the proceedings should be struck out as the pre-filing conditions had not been complied with. The plaintiff argued, ’There was no aspect or feature of the driving of the bus which resulted in the injury to the plaintiff. The injury to the plaintiff simply occurred as a result of the driver pressing a button which had the effect of closing the bus door on the plaintiff. The closing of the bus door was not a feature of the driving of the bus, in the same way that the operation of the loading mechanism of a forklift is not a feature of the driving of the forklift (per Whitehead and Toll).’
The Court rejected the plaintiff’s position and considered it ’illogical and capricious’. His Honour applied alternate scenarios with that reasoning, suggesting that, ’As the bus was coming to a stop, the MAI Act would apply. When the bus was completely stopped, the common law and the CLA would apply. As soon as the bus started moving, the MAI Act would again apply. Such an approach would defeat the blanket protection afforded to the travelling public by the MAI Act. A bus operator would necessarily have compulsory third party insurance but would not necessarily have insurance to cover passengers injured when the bus was completely stationary.’
His Honour reiterated the purpose of a public bus. He said that it is an essential part of driving a public transport bus that the doors be opened and closed while the bus is stationary, and further, that they be opened and closed safely, and that accordingly, any injury that occurs to a passenger of the bus, while travelling as a passenger and if ’the driver was negligent in any way, is an injury which is a result of the driving of the bus’. The proceedings against the second defendant were dismissed.
Held: It was confirmed the incident was a motor accident and that the pre-filing conditions were not complied with. Proceedings against the second defendant were dismissed.
Medical Review
Insurance Australia Limited t/as NRMA Insurance v CIC [2026] NSWPICMP 375 (27 May 2026)
Member Terence O’Riain, Medical Assessors Christopher Canaris and Surabhi Verma
Review of medical assessment of psychiatric permanent impairment (WPI); pre-existing psychological conditions based on trauma, asylum seeker and depression; inconsistent and uncorroborated history rejected - Whisprun Pty Ltd v Dixon considered; post-accident moving and financial activity inconsistent with claimant’s account; absence of post-accident treatment.
The claimant pedestrian was injured in a motor accident on 22 April 2019. He made a claim for statutory benefits and damages. A dispute arose between the parties as to whether the claimant sustained more than a threshold injury under the MAI Act, and if so, whether the injury caused by the motor accident exceeded 10% WPI (12% WPI). The claimant applied to the Commission for medical assessment.
On 9 April 2024 Medical Assessor Baker certified that the claimant suffered an exacerbation of a major depressive disorder (a non-threshold injury) resulting in greater than 10% WPI. The insurer satisfied the President’s Delegate that there was reasonable suspicion of material error in Assessor Baker’s assessment. They relied on neuropsychologist Dr Stewart’s report dated 24 March 2022 and the various inconsistencies therein compared to the Assessor Baker’s report.
The insurer argued that the finding of Medical Assessor Baker – that the accident caused a more than negligible contribution to exacerbating the claimant’s major depressive disorder of recurrent type - was inconsistent with documented evidence. The insurer relied on bank statements which were inconsistent with Medical Assessor’s comments that:
- the claimant lived in Tasmania - the records did not evidence any Tasmanian bank transactions between 9 May 2023 to 14 August 2024, and
- the claimant may possibly have been socially active, working, watching TV, owning a pet, travelling, reading, exercising, attending to self-care and potentially with a work capacity since the accident.
The claimant argued that his psychological condition was complex and varied. He said that he was not dishonest and explained each transaction, for example he said that he does not own a pet but looked after his friends’ or relatives’ pets in Melbourne occasionally, explaining vet and pet store expenses.
The insurer also relied on a statement from the claimant’s pastor which said that he ’became very active in Liberty Baptist Church shortly after the accident’. The claimant denied his involvement.
The Panel examined the claimant on 12 November 2025. At that time, the claimant’s physical injury had been determined as non-threshold, and so the Panel limited their review to the permanent impairment from psychological conditions arose from the accident, if any. During the taking of history, the claimant was at times not cooperative and questioned the relevance of questions. The claimant denied pre accident mental health conditions and the medical assessors put to him the clinical notes wherein he received counselling from his GP before the incident. The claimant said that he did not remember.
The medical assessors queried the occasional cash deposits in the bank records and asked if the claimant had worked since the accident. The claimant said that these were monies received by friends overseas for financial support. The Panel found him to be inconsistent overall. It was said that ’the level of impairment in daily activities, including social functioning, travel, attention, and concentration, was markedly inconsistent with the documentation and observed mental status examination’.
The Panel said that:
- The claimant would not provide a candid account of his symptoms and history which could allow the Panel to properly examine any change in his pre-accident symptoms with his post-accident condition.
- The extent to which any pre-existing psychiatric condition could have been aggravated by the accident or a fresh psychiatric condition caused by the accident is unclear.
- The burden and standard of proof was on the claimant, and the claimant failed to satisfy the Panel that he was still impaired from an accident-related psychological condition.
The Panel was not satisfied, on the balance of probabilities, that the accident caused a psychological condition or an aggravation of a pre-existing psychiatric condition. There was no need to undertake an assessment of permanent impairment.
Held: The original Medical Assessment Certificate was revoked and a new Medical Assessment Certificate issued.
Claims Assessment
Ford-Gunatilake v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 301; (27 May 2026)
Member David Ford
Claims assessment dispute about quantum to be paid to the claimant under s 7.36 (3) and 7.36 (4) where contributory negligence is alleged – claimant pedestrian struck by insured vehicle when entering driver’s door of her vehicle – failure to keep a proper lookout – assessment of damages
The claimant was injured in a motor accident on 14 March 2023. it was agreed that the claimant placed her children’s school bags in the rear of the vehicle and then walked from the boot to the driver’s door. As she moved toward the driver's side of the vehicle, she was struck by the insured motor vehicle. She made a claim for common law damages and the parties agreed upon damages in the sum of $472,000 plus regulated costs and Fox v Wood in the sum of $3,907.
Whilst there was an agreement on quantum, the parties requested that the Member determine the issue of liability. The insurer admitted breach of duty of care but alleged contributory negligence of 80%, relying on expert liability reports of Dr Robert Anderson, and the insured drivers dashcam footage, and argued that:
- the claimant had failed to keep a proper lookout
- the claimant had failed to appropriately survey her surroundings, and
- the claimant had failed to heed the presence of dangers of approaching vehicle.
The claimant argued for an assessment of 25% for contributory negligence and relied on a report from Dr Shane Richardson, forensic engineer. They argued that the insured driver failed to brake, steer and drive at a reasonable speed to permit them to avoid the claimant, and drove unreasonably dangerously close to the parked vehicles.
The Member found that the insured driver had the opportunity to see the claimant with sufficient time to take evasive action, if they had been keeping a proper lookout. The Member also determined that the claimant was ’not keeping a proper lookout and had she done so, and looked behind her, before stepping out further onto the roadway to approach her driver’s door, she would have seen the insured vehicle approaching from behind her’. The Member referred to evidence given by the claimant at the assessment conference that it was her ’regular practise to enter her vehicle on the roadway without taking the precaution of looking behind her, for oncoming traffic, as she considered it safe to enter my vehicle without being hit’. The Member was satisfied that the insurer had established contributory negligence and assessed the claimant’s contributory negligence at 60%.
Held: The contributory negligence was assessed at 60%.
Court of Appeal
Kewin v AAI Ltd (t/as GIO Insurance) [2026] NSWCA 86 (20 May 2026)
Leeming JA, Kirk JA, Griffiths AJA
Whether Commission is entitled to refuse to progress claim – Non-threshold psychiatric injury claimed with bare allegation supplied to Commission – Commission sought further particulars of alleged injury – claimant denied necessity for further evidence – Commission refused to progress claim to assessment stage – claimant unsuccessfully sought judicial review and appealed.
The appellant was involved in a motor accident in 2018. It was accepted that all physical injuries were threshold injuries. He lodged an application for medical assessment of a claimed psychological or psychiatric injury in July 2024, but supplied no confirmed diagnosis of any recognised psychiatric illness. The supporting material consisted of a GP referral noting ‘recurring dreams about car accidents’, a medico-legal report from an orthopaedic surgeon recording a ’significant psychological disturbance’ without further particularisation, and certificates of fitness noting that the claimant was ’awaiting to see psychologist’.
The Commission wrote to the claimant requesting evidence of the psychological injury by 12 September 2024, advising that the matter would not be allocated for assessment in its absence. The claimant’s solicitor responded that the existing material was sufficient and that the MAI Act did not require a party asserting non-threshold injury to provide supporting evidence and noted that it was not ’economical for medico legal reports to be purchased in circumstances where the cost may not be recovered’. The Commission declined to progress the matter, advising that a new application could be lodged once a confirmed diagnosis had been obtained. Judicial review proceedings were dismissed in the Supreme Court of NSW. The claimant appealed.
The appellant’s primary submission was that the existence of a medical dispute was a jurisdictional fact such that, once a dispute existed, s 7.20(2) obliged the President to arrange for referral to assessment, with any evidentiary deficiency to be remedied through the medical assessor's power to request further information under s 7.20(4). The Court of Appeal rejected that construction. The Commission had not determined there was no medical dispute, but had proceeded on the basis that the dispute was insufficiently evidenced to satisfy cl 17 of Procedural Direction PIC6, which requires an applicant for assessment of a threshold injury dispute to produce with their application evidence demonstrating the injury status as asserted by them. The Court held that s 7.20 must be read as a whole – the obligation to ’arrange’ for a dispute to be dealt with by a medical assessor does not arise until the application has first been accepted, and s 7.20(3) makes clear that acceptance is a prior step to arrangement. Rule 66(3) of the PIC Rules separately authorised the President to refuse to accept a non-complying application. The expressio unius argument – that the express refusal power in s 7.20(3) was exhaustive of the bases on which the President could decline – was rejected on the reasoning that it would be ‘“close to absurd’ if palpably deficient applications had to be referred simply because they did not concern the degree of permanent impairment.
The Court was unpersuaded by the submission that requiring evidence would produce harsh outcomes. As Leeming JA observed at [62], the regime already requires an insurer decision, an internal review, and the claimant to do all things reasonably necessary to facilitate resolution of disputes under s 6.3(2)(c): ’There is nothing unusual, let alone harsh, in insisting that a claimant who wishes to receive compensation or damages for a psychological injury first provide some evidence (as opposed to an assertion) that demonstrates that injury to the insurer.’ The Court further noted that the appellant's position was difficult to reconcile with s 6.3(2)(c), and that if a claim was too speculative to attract funding, it was hard to conclude that the costs should be borne by the scheme as a whole.
Of particular note, the Court was informed by the appellant's solicitor that this was the first occasion on which the Commission had rejected a claim on this basis, but that it had since become routine practice – a circumstance that weighed in favour of the grant of leave on grounds of general public importance. The decision confirms the lawfulness of that now-established practice.
Held: Leave to appeal was granted. The Appeal was dismissed with costs.
District Court
Sukkarieh v Queensland Property Investments Pty Ltd [2026] NSWDC 141 (14 May 2026)
Catsanos SC DCJ
Whether collision between pallet loading machines caused injury – Whether concession of permanent impairment greater than 10% for the purposes of s 4.11 gives rise to issue estoppel – Assessment of damages – Determining nature and extent of injuries caused by collision in light of competing factual and medical evidence – Appropriate reduction of future economic loss having regard to pre-existing degenerative changes.
The plaintiff was employed as a storeman and operated a motorised pallet loading machine. On 23 December 2017, while stationary, he was struck from behind by a co-worker’s machine. He alleged serious injury to his neck and left shoulder, ultimately resulting in a C6/C7 cervical fusion in November 2019 and a left rotator cuff repair in August 2020. The defendant admitted vicarious liability for the co-worker's breach of duty. The live issues were the force of the impact, causation, and quantum. In the course of proceedings the defendant's solicitors conceded in writing that the plaintiff's WPI exceeded 10% for the purposes of s 4.11. The plaintiff argued this gave rise to issue estoppel binding the defendant on causation for all heads of damage.
The Court rejected the estoppel argument, asserting that issue estoppel requires the judicial determination of an issue of fact or law, and a concession in correspondence does not satisfy that requirement. The plaintiff’s argument could rise no higher than the defendant being bound by its admission for the purposes of s 4.11 – that the degree of permanent impairment as a result of the injury caused by the accident was greater than 10% – while the measure of non-economic loss remained to be assessed. The defendant remained entitled to agitate causation in relation to the economic loss claim. The Court acknowledged the force of the plaintiff's incongruity point – that a defence denying any causal injury sits uncomfortably alongside a concession of causally related whole person impairment exceeding 10% – but held that any inconsistency was a product of the statutory scheme, consistent with the line of authority addressing the limited reach of conclusive certificates under s 7.23, which excludes the Court from the assessment of permanent impairment where the threshold question has been referred or, as here, conceded.
On the force of the impact, the Court found the collision involved ’not insignificant’ force, having regard to the mass of the machines (710-880kg), Mr Blanchard's evidence that he had increased speed immediately before seeing the plaintiff’s stationary machine, his anticipatory bracing for the impact, and his estimate that approximately 30cm of further travel separated the point of impact from where his machine would otherwise have stopped. The Court was not persuaded that the collision was the minor ’tap’ characterised by Mr Blanchard, noting that his perception was likely skewed by being braced and prepared for the impact. The plaintiff’s unchallenged evidence of employer-arranged on-site physiotherapy and modified duties in the weeks following the incident was accepted as significant corroboration of ongoing symptoms, with no evidence having been called to contradict it. The Court found injury to both the neck and left shoulder was caused by the collision, accepting the treating surgeon Dr Gray's opinion that the collision caused an acute disc herniation at C6/C7 compressing the exiting nerve root, and finding that the pre-existing degenerative rotator cuff tear was aggravated by the collision, did not resolve, and was further aggravated by the work performed in 2018.
On past economic loss, the claim for the period from December 2017 to August 2018 – advanced as a pragmatic 20% loss figure – was rejected as not evidence-based. The plaintiff was unable to identify which absences during that period were referable to the collision, pre-accident absenteeism records presented a complicating comparison, and the Court found that any problems during that period were ’generally tolerable’.
On future economic loss, a 25% vicissitudes reduction was applied, the Court accepting Dr Breit's evidence that the pre-existing degenerative rotator cuff tear would ’almost certainly have become symptomatic without a trauma over the next ten years’ and would have required repair, resulting in restrictions on work capacity irrespective of the accident. Applying Seltsam v Ghaleb and the principles in Watts v Rake and Purkess v Crittenden, the Court confirmed that where a pre-existing condition has possible ongoing harmful consequences capable of reasonable definition, the Court evaluates possibilities rather than probabilities and cannot disregard that contingency in arriving at proper compensation. Future earning capacity was assessed at a loss of $550 net per week, representing approximately 40-50% of pre-injury earnings of $1,200 net per week, over 17 remaining working years at a 5% multiplier.
Held: The judgment for the plaintiff was confirmed in the sum of $989,020 including Non-Economic Loss $300,000; Past Economic Loss $308,490; Past Loss of Superannuation $33,934; Fox v Wood $61,563; Future Economic Loss $248,655; Future Loss of Superannuation $36,378). Costs were reserved.
