Sparke Helmore's MAD (Motor Accidents Division) - Issue 157

Welcome to the 157th 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.

Settlement Approval

Insurance Australia Limited t/as NRMA Insurance v Doyle [2026] NSWPIC 385; (29 June 2026)

Member Terence O’Riain

Unrepresented claimant – settlement approval under s 6.23(2)(b); motorcycle collision; ankle fracture; earlier retirement; offer increased after recalculation of past earnings; settlement found just, fair and reasonable under cl 7.37 of the Guidelines.

The claimant, a 64-year-old male, suffered a left ankle fracture, extensive abrasions and a shoulder injury in a motor accident on 7 September 2024. The claimant filed applications on the insurer for statutory benefits and common law damages under the Act. Liability for damages was admitted on 12 June 2025.

As part of the common law claim, the insurer obtained a report from an IME occupational physician who assessed the physical injuries resulting from the accident at 3% whole person impairment (WPI). The insurer issued a decision that the claimant was not entitled to non-economic loss damages because his impairment fell below the permanent impairment threshold in s 4.11. The claimant did not dispute the decision.

On 1 June 2026, the parties met a settlement of $275,000 for economic loss only - less statutory weekly benefits paid. As the claimant was not legally represented, the insurer applied for settlement approval by a Member of the Commission as required under s 6.23(2)(b).

During approval, it emerged that a prior year’s taxable income was understated due to additional superannuation contributions, affecting past earnings. The Member considered that the accepted offer was based on that error and directed the parties to correct the error. The parties met a revised settlement sum of $310,000, comprising $100,000 past economic loss and $210,000 future economic loss, less statutory benefits already paid. The further settlement deed was signed on 4 June 2026.

In approving the revised settlement, the Member was satisfied the unrepresented claimant understood the finality of settlement and that the amount fell within the range of likely damages likely to be assessed if the damages were assessed by a Member of the Commission. Those were matters required to be considered under s 6.23(2)(b) of the Act.

Applying cl 7.37 of the Motor Accident Guidelines, the Member determined that ’the proposed settlement is just, fair and reasonable and within the range of likely potential damages assessments for the claim were the matter to be assessed by the Commission, taking into account the nature and extent of the claim and the injuries, disabilities, impairments and losses sustained by the claimant, and taking into account any proposed reductions or deductions in the proposed settlement.’

Held: The settlement was approved.

View decision

Review of a Medical Assessment

QBE Insurance (Australia) Limited v Omeissah [2026] NSWPICMP 461; (30 June 2026)

Member Jeremy Lum; Medical Assessors Drew Dixon and David Gorman

Threshold injury – knee chondral fissure not caused by accident; right knee soft tissue/medial collateral strain and cervical soft tissue injury accepted; lumbar spine not caused; original medical assessment Certificate revoked and new Certificate issued.

The claimant was involved in a front‑on collision on 1 March 2024. She made a claim for statutory benefits alleging that she sustained more than a threshold injury to her neck and right knee as a result of the accident. A dispute arose between the parties as to whether the claimant’s injuries were threshold injuries as defined by s 1.6 of the Act, and the dispute was referred to the Commission  for medical assessment.

On 20 January 2026, Medical Assessor Farhan Shahzad examined the claimant. The claimant had a background of long-standing cervical spine pain, an anterior cervical discectomy and fusion at C5/6 and C6/7 in August 2018, ongoing symptoms, persistent lower back pain, lumbar spondylosis, bilateral L4/5 neural foraminal narrowing and possible L4 nerve root irritation, and a right knee twisting injury in February 2024. Medical Assessor Shahzad said that post-accident imaging revealed a full-thickness chondral fissure in the right knee which was structural cartilage damage and therefore a non-threshold injury as defined by the Act. The cervical and lumbar spine were considered threshold injuries.

The insurer applied for review and argued that there was reasonable suspicion of material error because the evidence was not consistent with a significant accident and submitted that the motor accident did not cause any injuries to the cervical spine, lumbar spine and right knee.

The claimant was re-examined by the Panel. The Panel accepted soft tissue injury to the cervical spine and a right knee soft tissue/medial collateral strain caused by the accident, but was not satisfied the chondral fissure was caused by the accident. It reasoned that if the fissure had been acute, ongoing symptoms would be expected; the braking force likely inflamed surrounding soft tissues without structural change, which then resolved.

The Panel accepted that the claimant’s pre‑accident twisting injury increased susceptibility to re‑injury and that the braking force could have re‑inflamed peri‑articular tissues but determined that it was more likely that the MRI‑described chondral fissure preceded the accident. The Panel said that if the chondral fissure was an acute structural lesion from the collision, then it was not likely that the right knee would have improved by the examination (as the claimant confirmed). The Panel therefore characterised the accident‑related knee pathology as a transient MCL strain and peri‑articular inflammation in the vicinity of the fissure, without structural change to the cartilage, which then resolved.

Held: The Certificate was revoked and a new Certificate was issued finding cervical and right knee soft tissue/medial collateral strain injuries were threshold injuries.  The lumbar spine and right knee chondral fissure was not caused by the accident and therefore no assessment was required as to whether this injury constituted a threshold injury.

View decision

Akalu v AAI Limited t/as GIO Insurance [2026] NSWPICMP 481

Member Nolan Medical Assessors Dixon and Moloney

Permanent impairment – insurer challenged the Medical Assessor’s deduction for pre-existing impairment and causation of left shoulder pathology; Review Panel held Motor Accident Guidelines require assessment of a ratable pre-existing symptomatic permanent impairment; not arbitrary percentage deductions.

The claimant sustained lumbar spine, shoulders and cervical spine injuries in a motor vehicle accident on 30 July 2023. The claimant made a claim for statutory benefits and common law damages, and as part of the damages claim, a dispute arose between the parties as to whether the degree of permanent impairment resulting from the physical injuries caused by the motor accident was greater than 10% WPI. That is a medical assessment matter under Schedule 2, cl 2(a) of the Act.

The claimant was assessed by Medical Assessor Miller who produced a Certificate certifying greater than 10% WPI (12% WPI) as a result of the accident on 17 August 2025. The Medical Assessor recorded the insurer’s submissions that the claimant had a history of pre-accident left shoulder and lower back symptoms affecting the left side of the body, lumbar spine and left shoulder and a subsequent provisional diagnosis of Parkinsons disease. Assessor Miller assessed the claimant’s degree of permanent impairment at 15% WPI (cervical spine 5%, lumbar spine 5%, left shoulder 5%, right shoulder 0% WPI as resolved). He made a deduction for pre-existing factors and assessed 4.5% WPI for the cervical spine, rounded to 5% WPI, 1.6% WPI for the lumbar spine, rounded to 2% WPI, and 4.5% WPI for the left shoulder, rounded to 5% WPI.

The insurer applied for review arguing that the Assessor had not correctly applied the Guidelines in assessing pre-existing impairment, had not adequately addressed the significance of the claimant’s pre-accident symptoms affecting the lumbar spine, left shoulder and left upper limb or given sufficient reasons.

The review application was accepted by the President's Delegate. The Delegate referred to cl 6.31 of the Guidelines, which required calculation and subtraction of a WPI value where there was objective evidence of a pre-existing symptomatic permanent impairment in the same region at the time of the accident.

The claimant was re-examined by a Review Panel.  The Panel accepted that the claimant had a tremor affecting the left upper and lower limbs that was not asserted to be caused by the motor accident. The tremor was relevant only because it affected the interpretation of the clinical examination, particularly movement testing and functional presentation.

The Panel rejected Assessor Miller's method of applying fractional deductions for pre-existing factors, stating that the Guidelines do not allow for general or arbitrary percentage deductions. They rejected that there was sufficient evidence to warrant a deduction for pre-existing impairment.

The Panel revoked the original medical assessment Certificate and issued a new Certificate with the following permanent impairment assessment totalling 11%:

1. Cervical spine - DRE I based on findings of cervical pain and trapezial tenderness, but no muscle guarding, no objective neurological deficit and no non-uniform loss of motion. 0% WPI.

2. Left shoulder - reduced range of motion resulting in 10% upper extremity impairment (UEI) converted to 6% WPI.

3. Lumbar spine - DRE II based on non-verifiable radicular complaints. 5% WPI.

4. Right shoulder - resolved. 0% WPI.

Held: The medical Certificate was revoked and a new Certificate issued - the claimant’s degree of permanent impairment resulting from the physical injuries caused by the motor accident was greater than 10%.

View decision

You v QBE Insurance (Australia) Limited [2026] NSWPICMP 460; (30 June 2026)

Member Bolton and Medical Assessor Barnsley and Gorman

Review of a medical assessment Certificate – threshold injury, allegation of thoracic and lumbar annular caused by the accident – absence of contemporaneous complaint; Panel does not accept radiculopathy in documentary evidence, application of David v Allianz Australia Insurance Ltd [2021]

The claimant was involved in a motor accident on 20 August 2024 as a front seat passenger. She made a claim for statutory benefits, and as part of that claim, a dispute arose between the parties about whether the injury caused by the accident is a threshold injury under Sch 2, s 2(e) of the Act.

The claimant applied for medical assessment in the Commission and on 12 November 2023, Medical Assessor Assem determined that the claimant sustained a threshold soft tissue lumbar spine injury in the accident. He determined that the thoracic injury referred for assessment was not caused by the motor accident.

The claimant applied for review. She relied on an MRI scan dated 7 February 2025, which reported an annular tear and a broad-based posterior disc bulge with central annulus tear at L5 and submitted that annular tears satisfied the definition of a non-threshold injury at s 1.6(2). She also submitted that the Medical Assessor erred by failing to properly assess whether she demonstrated clinical signs of radiculopathy in accordance with clauses 5.8 and 5.9 of the Guidelines.

The claimant submitted that ’given the Medical Assessor’s omission of mandatory clinical testing and his failure to engage with the criteria set out in the Guidelines, then the Medical Assessor’s certificate contains a reviewable error’. The review application was accepted and referred to a panel for re-determination.

The insurer referred the Panel to the decision of Noun v AAI Limited t/as AAMI [2025] NSWPICMP 268. The insurer submitted that for radiculopathy to be a non-threshold injury under the Act, the assessment must comply with cl 5.6 of the Guidelines, i.e., clinical notes or a treating report must show how the diagnosis was reached in accordance with the Guidelines. The Panel said that according to the NSW Motor Accident Guidelines, there was not radiculopathy in treating evidence nor was there any radiculopathy confirmed by previous examiners (applying David v Allianz Australia Insurance Ltd [2021]).

As to the alleged annulus tears, the Panel determined that:

1. As was said in the examination report, if the claimant’s reported thoracic pain was not severe enough to mention, then it is unlikely that it caused annular tears. The lack of contemporaneous complaint or record is not determinative but was relevant.
2. The forces involved in that accident were not severe. The claimant’s description of her body movements immediately on impact do not make sense and are not likely to have happened in that manner in a rear end impact.
3. The motor accident was not of the severity that could have could have led to the small disc protrusions and annular fissures.

’Even if it could have led to the changes, the Assessors believe on the balance of probability that the accident did not cause the changes because:

1. They are consistent with age related degeneration – this is confirmed by the reports of Dr Tej Dugal (Radiologist).
2. The lumbar spinal symptoms and radiation has been variable
3. The Bone Scan did not show any increased endplate activity consistent with acute disc injury.’

The Panel affirmed the decision that the motor accident resulted in a soft tissue lumbar spine injury, which is a threshold injury, and that the annular tears to the thoracic and lumbar spine were not caused by the accident.

Held: The Certificate was affirmed – the claimant did not sustain more than a threshold injury as a result of accident

View decision

Merit Review

Liu v QBE Insurance (Australia) Ltd [2026] NSWPICMR 31 (1 July 2026)

Merit Reviewer Ruschen

Pure mental harm claim – claimant not a ’close member of the family’ as de facto relationship not established.

The claimant sought statutory benefits for psychological injury allegedly sustained as a result of mental harm arising from injuries suffered by her fiancé in a motor accident. As the claimant did not witness the accident or the injured person being put in peril at the scene, her entitlement depended upon establishing she was a ’close member of the family’ of the injured person pursuant to s 30 of the Civil Liability Act 2002 (NSW) (CLA), as applied by s 3.39 of the MAI Act.

The claimant contended she was the injured person's de facto partner. She relied upon evidence that the parties had been in a committed and exclusive relationship since August 2024, became engaged in January 2025, maintained daily contact, travelled together, had the support of both families and intended to marry and live together in the future. The claimant accepted, however, that the parties did not permanently reside together, with the claimant living in China and the injured person residing in Australia.

The insurer submitted that while the relationship may have been genuine and serious, the evidence did not establish the parties were living together as a couple within the meaning of s 21C of the Interpretation Act 1987 (NSW). It relied upon the absence of a common residence, shared household, joint finances, property ownership, children, or evidence of a settled domestic life.

The Merit Reviewer accepted that the parties were in a genuine, committed and publicly acknowledged romantic relationship, were engaged, and intended to build a shared future. However, the statutory question was whether they were in a ’relationship as a couple living together’ at the time of the accident.

After considering the factors in s 21C(3) of the Interpretation Act, including the duration of the relationship, the nature and extent of common residence, financial arrangements, household duties and public aspects of the relationship, the Reviewer was not satisfied that requirement was met. Particular weight was placed on the fact that the relationship was primarily long-distance, the parties lived in different countries, periods spent together were intermittent and generally involved short hotel stays and travel, and there was insufficient evidence of a shared domestic household or material common residence.

While authorities such as Payne, McGrath, Sha & Cham, Jonah & White and Vaughan v Hoskovich confirmed that full-time cohabitation is not necessary to establish a de facto relationship, the Reviewer emphasised that some material element of common residence or mutual domestic living remains an indispensable requirement. On the evidence, the relationship demonstrated future plans to merge lives rather than a present shared domestic life.

Accordingly, the Reviewer found on the balance of probabilities, the claimant was not the injured person’s de facto partner at the time of the accident, and was therefore not a close member of his family for the purposes of s 30 of the CLA.

Held: The reviewable decision was affirmed. The insurer was entitled to refuse statutory benefits for the claimed mental harm.

View decision