Sparke Helmore's MAD (Motor Accidents Division) - Issue 155
06 July 2026
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.
Settlement Approval
AAI Limited t/as AAMI v Popko [2026] NSWPIC 336; (18 June 2026)
Member Phillip Carr
Claimant employed at the time of the accident; settlement approval for non-economic loss (NEL), past economic loss (PEL) and future economic loss (FEL); settlement complies with cl 7.37 of the Motor Accident Guidelines.
The claimant sustained multiple rib fractures, compression fractures to T12 and L2, PTSD and anxiety symptoms as a result of a motor accident on 17 July 2024. She was 62 years old at the time of the accident.
The insurer conceded entitlement to non-economic loss damages on the basis that multilevel structural compromise attracted 15% Whole Person Impairment (WPI).
The insurer admitted liability for common law damages and the parties met a settlement in the sum of $460,000 being $275,000 NEL, $50,000 PEL, and $135,000 FEL.
The claimant was not legally represented and so the insurer filed an application for approval of the settlement by a Member under ss 6.23(2)(b) of the MAI Act, cl 10 of the Commission's Procedural Direction MA3 and rule 95 of the Commission Rules 2021.
At the first teleconference, the Member indicated that the NEL component was insufficient. The Member adjourned the approval to permit the insurer to revisit the initial settlement offer. Parties met a revised settlement of $485,000 (including NEL of $300,000).
In approving the revised settlement, the Member referenced the claimants age at date of assessment (65 years old) and the evidence that the claimant had some residual earning capacity after the accident. It was noted that she had less capacity to engage in pre accident sports and hobbies. The claimant fully understood the finality of the settlement on her entitlements. The Member overall was satisfied that the revised settlement was just, fair and reasonable considering all the legislation, circumstances and materials.
Held: The settlement was approved.
AAI Limited t/as GIO v Haddad [2026] NSWPIC 327; (5 June 2026)
Member Phillip Carr
Employed claimant – economic loss damages only; no entitlement to non-economic loss damages; settlement approval and consideration of cl 7.37 of the Motor Accident Guidelines.
The claimant was injured in a motor accident on 27 March 2024. He sustained injuries to his neck, shoulders, elbow, lower back, hips, knees and ankles and a psychological injury. The insurer admitted liability for common law damages without any allegation of contributory negligence. The insurer determined that impairment did not exceed 10%, and the claimant did not challenge that decision.
The parties met a settlement in the sum of $227,476.26 being nil NEL, $56,352 PEL and $171,124.26 FEL. The claimant was not legally represented and so the insurer filed an application for approval of the settlement by a Member under ss 6.23(2)(b) of the MAI Act, cl 10 of the Commission's Procedural Direction MA3 and rule 95 of the Commission Rules 2021.
In approving the settlement, the Member questioned the claimant on his understanding of the settlement and the finality on his statutory benefit weekly wage entitlements. The claimant had returned to paid employment in an alternative role after the accident and the past economic loss assessment allowed for an initial period of incapacity and then reduced capacity plus superannuation. The future economic loss award reflected a continuing base wage loss less 15% vicissitudes plus superannuation at 14%.
The Member was satisfied that the settlement was just, fair and reasonable in the circumstances and was proportionate to the injury and its consequences.
Held: The settlement was approved in the sum of $227,476.26: nil NEL, $56,352 PEL and $171,124.26 FEL.
Miscellaneous Dispute
AAI Limited t/as GIO v Kaldas [2026] NSWPIC 334; (9 June 2026)
Member Stern OAM
Whether claimant made due inquiry and search under s 2.31; whether claimant provided a full and satisfactory explanation for the delay in making the claim under s 6.14.
The claimant was involved in a motor vehicle accident on 12 August 2019. The claimant driver swerved to avoid another vehicle driving through an intersection and, as a result, collided with a wall.
As it was alleged that the motor accident was caused by an unidentified vehicle, the claimant made a claim for damages against the Nominal Defendant. Unless due inquiry and search has been undertaken, a claimant cannot bring a claim against the Nominal Defendant under ss 2.30(2) and 2.31(1).
The claim for damages was filed beyond the three-year limit set out in s 6.14(2). In addition to the due inquiry and search dispute, the parties disputed whether the claimant’s explanation on 14 November 2024 for late lodgement of the common law claim was full and satisfactory. Member Stern was allocated to determine both issues, including whether the late claim could be made under s 6.14, on the papers.
On the late claim issue:
- The insurer rejected the claimant’s explanation provided on 14 November 2024 on 4 December 2024. The insurer said that it did not address the legal advice that the claimant had received, his understanding and beliefs regarding the denial and damages claim requirements or a period between March 2020 and February 2021. Nothing further was provided by the claimant.
- The insurer submitted that the explanation did not address all relevant periods or adequately explain the claimants actions, knowledge, and beliefs, and is therefore not ’full’ under s 6.14(3). It was also submitted that a reasonable person in the claimant’s position would not have experienced the same delay.
- The insurer submitted that it was prejudiced because its ability to investigate the alleged at-fault vehicle and accident circumstances was hampered by the delay.
- The claimant said that the delay in late lodgement against the Nominal Defendant was because the claim was initially incorrectly lodged against NRMA. The claimant said insurers have obligations to transfer misdirected claims to the correct insurer. He said that he should be excused from giving notice of the claimant to the insurer and that no such issue of late lodgement thus arises.
The Member said that the explanation was full and satisfactory because a reasonable person in the claimant’s position would have taken the same steps. Those steps included consulting a solicitor and relying on that solicitor to advance their claim. The chronology provided of events post-accident was full, and the Member accepted that the delay was as a result of the claim being served on the wrong insurer in circumstances where steps should have been taken at an early stage to identify the correct defendant.
Regarding the due inquiry and search:
- The insurer argued that the claimant had provided no evidence of any inquiry and search undertaken. The insurer said that the claimants evidence described the accident but gave no information regarding the other vehicle, attempts to identify it, or reporting the matter to police.
- The insurer argued that the claimant’s injury did not prevent contemporaneous inquiry and search because the claimant inspected his vehicle and drove it to a nearby repair shop.
- The claimant argued that the statutory obligation under s 2.30 to undertake due inquiry and search rested in practice on his solicitors and that the delay was caused by an initial misunderstanding that the claim was not against the Nominal Defendant and therefore no such search needed to be undertaken.
- The claimant further submitted that he did not conduct an inquiry and search at the time of the motor accident because the claimant was not aware of that obligation. The Member said that the ’obligation to make due inquiry is mandatory and ignorance does not excuse non-compliance.’
The Member observed that it was not the sort of situation observed in The Nominal Defendant v Ross [2014] NSWCA 212 where a search was not required because it was likely to be futile. These circumstances involved a busy intersection where immediate inquiries with owners of nearby shops may have identified the unidentified vehicle.
In all, the Member said that the claimant failed in his obligation to make due inquiry so that he is not entitled to proceed against the Nominal Defendant.
Held: The full and satisfactory explanation for the late claim provided by the claimant failed to make due inquiry and search under s 2.31. The claim against Nominal Defendant therefore could not proceed under s 2.31(2).
Miscellaneous Dispute
Smallman v AAI Limited t/as GIO [2026] NSWPIC 348; (12 June 2026)
Member Montgomery-Hribar
Whether claimant wholly or mostly at fault for the purposes of ss 3.11 and 3.28 – claimant has no recollection of accident – allegation of edge filtering contrary to the Road Rules 2014 - AAI Ltd (t/as GIO) v Evic, Podrebersek v Australian Iron & Steel Pty Ltd, and Verryt v Schoupp considered and applied — exceptional costs allowed.
On 23 May 2024, the claimant was riding his motorcycle in the parking lane running alongside the eastbound traffic lane of Harbour Drive, Coffs Harbour, having entered that line near the roundabout to avoid a vehicle tailgating him. He had no recollection of the accident itself, recalling only stopping for pedestrians at the crossing and then the sound of the collision. The insured driver was turning left across the parking lane to enter a parking bay when the claimants motorcycle struck the front left of her vehicle. The insurer denied liability for statutory benefit benefits beyond 52 weeks on the basis the claimant was holy or mostly at fault, relying on the claimant’s use of the parking lane as ’edge filtering’ in breach of rule 151A of the Road Rules 2014, and on evidence that the insured driver's vehicle had the right of way.
Applying Evic, the Member confirmed that a determination of whether the claimant was mostly at fault first required identifying any fault on the part of the insured driver before weighing the relative capability of each under Podrebersek. The Member found the insured driver checked her mirrors before turning but failed to maintain a proper lookout while completing the turn, in circumstances where she ought to have anticipated other road users – including cyclists and pedestrians – may make use of the parking lane, particularly given the proximity of a supermarket, childcare centre and skate park. The claimant was found to have breached rule 151A by edge filtering but, applying Verryt v Schoupp, a breach of the road rules was not of itself determinative of fault; it was a factor going to the degree of departure from the standard of reasonable care and the causal significance of that departure.
The Member held that a reasonable person in the claimant's position would have appreciated the high likelihood of vehicles turning across, or reversing into, the parking lane, and the further risk inherent in unlawfully edge filtering – risks the Member characterised as foreseeable and not insignificant. Conversely, a reasonable person in the insured driver’s position, while not expected to anticipate a motorcycle travelling within the parking lane, would nonetheless recognise that the area might be used by pedestrians or other road users, and was required to keep a proper lookout before and during the turn. On that comparison, the Member found the claimant’s departure from the standard of care to be significant, and his contribution to the accident greater than the insured driver’s, but not so much greater as to exceed the 61%, as to render the claimant mostly at fault for the accident and defeat liability. A finding of 60% contributory negligence was assessed as just and equitable.
The Member separately rejected the claimant’s submission, founded on Stocks v Baldwin, that a vehicle’s greater destructive capacity attracted a heightened duty of care, noting subsequent authority – including T and X company Pty Ltd V Chivas – doubting that approach and confirming the focus remains on the conduct of the part of these judged by the ordinary objective standard.
On costs, the Member found the matters evidentiary vacuum – no CCTV, no identified witnesses, both drivers unable to give a full account – combined with the unusual step of an in-person assessment conference with cross-examination of the insured driver, constituted exceptional circumstances under s 8.10(4)(b), permitting recovery of costs above the regulated cap.
Held: The claimant was not wholly or mostly at fault for the purposes of ss 3.11 and 3.28. The claimant’s costs were allowed in the amount of $5458.65 plus GST, and disbursements of $653.81 inclusive for GST.
Review of a Medical Assessment
Sheldon v AAI Limited t/as AAMI [2026] NSWPICMP 390; (29 May 2026)
Member Castagnet, Medical Assessors Assem and Maloney
Whether claimant’s lumbar spine injury constituted a threshold injury within the meaning of s 1.6 – disc protrusion at L4/5 identified on imaging – Raina v CIC Allianz Insurance Ltd, Briggs v IAG Limited t/as NRMA Insurance and Momand v Allianz Australia Insurance Limited considered and applied.
The claimant was a front seat passenger in a vehicle that was struck on the passenger side by a semi-trailer that failed to give away at the roundabout. She sustained a lumbar spine injury.
The original Medical Assessor diagnosed mechanical lower back pain with radiologically demonstrable disc abnormalities, found to be causally unrelated to the accident. There, multilevel disc bulges in the lower lumbosacral spine with varying degrees of contact with the associated nerve foots were found, but with no clinical signs of radiculopathy. The lower back pain was assessed as a threshold injury. The lumbar disc protrusion at L4/5 referred for assessment was found not to have been caused by the accident at all, rendering a determination on threshold injury unnecessary. The claimant referred the certificate to a Review Panel under s 7.26.
The claimant was 18 years of age at the time of the accident, with no history of pre-existing lower back symptoms. He developed lower back pain on the date of the accident and was taken to hospital that evening. A CT scan taken approximately two months later and an MRI scan some months after that identified structural pathology at L4/5, variously described in radiological reports as a ’bulge’ and ’protrusion’. Notably, the insurer’s own briefed GP obtained a supplementary opinion from radiologist Dr Kuan, who – having initially erred by misdating the scans – ultimately confirmed the L4/5 lesions ’may have been precipitated by the MVA with progressive deterioration’ in the months following the accident.
The Panel considered a subsequent work-related incident in September 2024 and accepted that it probably aggravated the claimant symptoms, but found this occurred after the L4/5 pathology had already been identified and was not the primary or originating cause of the lesion. On re-examination, the Panel agreed with the original Medical Assessor’s finding that radiculopathy was not established.
The Panel’s critical departure from the original Certificate concerned the proper characterisation of the imaging findings. Noting the inconsistent terminology in the radiological reports, the Panel considered the pathology was more accurately characterised as a disc protrusion rather than a mere bulge. Applying the Harrison AJ’s reasoning in Momand v Allianz Australia Insurance Limited, the Panel proceeded on the basis that a disc protrusion implies disruption of the fibrocartilaginous disc itself and, on that basis, falls outside the definition of its soft tissue injury under s 1.6(2), which expressly excludes a complete or partial rupture of cartilage from the death from that definition.
The Panel also confirmed, citing Insurance Australia Group v Keen and Insurance Australia Ltd v Marsh, that a Review Panel comprising specialist medical assessors is not required to choose between the competing opinions before it, but must form its own independent clinical opinion on the totality of the evidence.
Having regard to the claimant’s young age, the biomechanical forces involved in the collision, the absence of any pre-existing or pre-accident symptoms, the contemporaneous onset of symptoms on the day of the accident, and the proper characterisation of the imaging findings, the Panel was satisfied on the balance of probabilities that the motor accident caused the structural disc pathology at L4/5.
Held: The Certificate was revoked. The L4/5-disc protrusion was caused by the motor accident and was not a threshold injury.
