Sparke Helmore's MAD (Motor Accidents Division) - Issue 160
01 September 2026
Welcome to the 160th 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.
Review of a Medical Assessment
LBC v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 559; (30 July 2026)
Member Terence O’Riain; Medical Assessors Paul Friend and Abishek Nagesh
Permanent impairment – psychological Whole Person Impairment (WPI) greater than 10%; PIRS assessment; pre-existing impairment deduction for drug treatment; causation of post-traumatic stress disorder; accident arose out of domestic violence – decision de-identified.
The claimant was driving her vehicle on 20 March 2020 when her then-partner, the front passenger, grabbed and applied the handbrake during a domestic violence incident. She had to turn the wheel to avoid oncoming traffic and struck a tree. The claimant sustained whiplash, fractured right ribs, a right shoulder injury and chronic pain. She also alleged that she developed post-traumatic stress disorder (PTSD).
The parties disputed the degree of permanent impairment from psychological injuries caused by the accident relevant to resolving whether the claimant was entitled to non-economic loss damages. Medical Assessor Mason issued a Certificate dated 7 April 2025 assessing 8% WPI for psychological injuries.
The claimant applied for review on the basis that the Medical Assessor had erred in the assessment, arguing that the Medical Assessor failed to apply the test of consistency and failure to assess WPI consistently with the claimant’s reporting and available evidence, failed to engage with the relevant documentation in accordance with cl 6.40 to 6.41 of the Guidelines and gave insufficient reasons regarding the application of PIRS.
The insurer argued that there was objective evidence of pre-accident impairment from existing psychiatric conditions (ADHD and bipolar disorder). The claimant argued that the accident-related stress and trauma exacerbated bipolar symptoms, including mood swings, depression, and irritability. The question for the Panel was whether the need for ongoing psychiatric care and medication adjustments post-accident indicated a worsening of her condition.
The Panel applied cl 6.7 of the Guidelines and Owen v Motor Accidents Authority of NSW, stating that a motor accident need not be the sole cause of injury so long as it is ’a contributing cause, which is more than negligible’. The Panel concluded that the motor accident on 20 March 2020 was the cause of the condition of chronic post-traumatic stress disorder.
The Panel also noted that the claimant had commenced use of methamphetamine after the accident but did not draw a causal link to the accident. The claimant did not describe the bipolar disorder being destabilised or exacerbated by the injuries sustained in the motor accident. The Panel concluded that the accident did not exacerbate that condition and she had continued to take the same treatment.
The Panel determined that the claimant had pre-existing ADHD and bipolar disorder and assessed pre-accident impairment at 0%, but only because it was managed by treatment which added a WPI of 2%. The Panel assessed current WPI at 7%, and after deducting 2% pre-existing, assessed 5% WPI for accident-related impairment.
Held: The Medical Assessment Certificate was revoked. The Review Panel certified that the claimant’s permanent impairment resulting from the injury caused by the accident was 5% WPI arising from post-traumatic stress disorder, which was not greater than 10%. Decision de-identified.
Practice points: The Panel’s approach confirms that pre-existing psychiatric conditions requiring medication may warrant a small but specific WPI deduction under PIRS, even where the claimant reports no functional impairment before the accident. The decision reinforces that the accident need only be a contributing cause that is ’more than negligible’ to satisfy Guidelines cl 6.7 causation.
Insurance Australia Limited t/as NRMA Insurance v Richards [2026] NSWPICMP 534; (12 August 2026)
Member Elizabeth Medland; Medical Assessors Christopher Canaris and Surabhi Verma
Permanent impairment – psychological WPI greater than 10%; fluctuation of psychological presentation found to be inherent in the nature of the diagnosis of PTSD – PTSD exceeds 10% WPI.
The claimant was injured in a motor accident on 21 March 2020. He lodged a claim against the at-fault CTP insurer, and a dispute arose between the parties as to whether any psychological injury caused by the accident gives rise to a WPI of greater than 10%.
Assessor Nagesh examined the claimant on 24 March 2025, and on 7 April 2025, and certified that PTSD and a major depressive disorder was caused by the motor accident and gave rise to 15% WPI. The insurer sought review under s 7.26 of the MAI Act, challenging the PIRS classifications for ’concentration, persistence and pace’ and ’adaptation’, and submitting the final WPI should be 6%. The insurer argued inconsistencies in the evidence, including reports of the claimant enjoying reading and podcasts, and improvements at various times.
The insurer said that there was a reasonable suspicion of material error, and the President’s Delegate allowed the review application. The Panel re-examined the claimant via teleconference.
The insurer relied upon Rodger v De Gelder [2015] NSWCA 211 and Charouk v Allianz Australia Insurance Limited [2021] NSWSC 1457. for the proposition that PIRS classifications must be consistent with the documentary evidence. The insurer said that Dr Mellick reported the claimant enjoying reading and enjoyed podcasts and was able to concentrate well and short-term memory had significantly improved at the time of his assessment.
In respect of ‘social and recreational activities’ the insurer refers to its original submissions where a report of Dr Bertucen is referred to which noted the claimant had ceased kickboxing due to cost factors and not due to demotivation. The insurer submitted that the reason for quitting sporting activities forms part of the ‘battleground’ between the parties and the Medical Assessor was required to deal with it; Zilic v QBE Insurance (Australia) Ltd 2025 NSWSC 11. The Panel put this to the claimant and said that ’cost had been a factor in his decision, lack of motivation had also contributed significantly, and the Medical Assessors noted his withdrawal from other activities essentially emanating from his difficulties being around people.’
The Panel stated that ’the fluctuation is consistent with a diagnosis of post-traumatic stress disorder.’ The Panel adopted Assessor Nagesh’s classification of concentration, persistence and pace, starting that ’some periods where there is better functioning, however, the evidence substantiates significant periods where the functioning is poor.’
Total WPI was assessed at 17% WPI.
Held: The Medical Assessment Certificate was revoked but only on different reasons and the Certificate was issued assessing WPI at 17%.
El-Chiekh v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 568; (3 August 2026)
Member Elizabeth Medland; Medical Assessors Michael Couch and Margaret Gibson
Threshold injury – whether C7 transverse process fracture is present and was caused by motor accident; equivocal radiological finding; standard of proof; cervical spine and left shoulder soft tissue injuries are threshold injuries.
The claimant alleged that he sustained more than a threshold injury as a result of a motor vehicle accident on 8 June 2023. A threshold injury dispute arose between the parties and on 26 June 2025, Medical Assessor Home determined that the claimant sustained soft tissue injuries to the cervical spine and left shoulder which are threshold injuries. The Medical Assessor noted that a CT scan reported ’slight cortical irregularity of the left C7 transverse process may represent a minimally displaced fracture, for clinical correlation’, but concluded that further imaging was necessary to confirm whether the irregularity actually represents a fracture.
The claimant applied for review, submitting that the Medical Assessor erred by not accepting the evidence of the C7 transverse fracture. The insurer submitted that no further imaging confirmed the fracture and the Assessor’s reasons were adequate. The claimant’s review application was accepted, and it was referred to a review panel for re-examination and determination.
The Panel identified that the question for determination was whether the irregularity reported by the radiologist of the CT of the cervical spine of 8 June 2023 was caused by the motor accident and whether it is a non-threshold injury. The Panel was satisfied that the mechanism of the motor accident was of a sufficiently velocity that could give rise to such an irregularity.
The Panel acknowledged that without follow-up imaging after the accident, it was not possible to determine with absolute certainty the presence of the bony irregularity. On the standard of proof, the Panel applied the principles from Briginshaw v Briginshaw [1938] HCA 34, NOM v DPP [2012] VSCA 198 at [124] and Drca v KAB Seating Systems Pty Ltd [2015] NSWWCCPD 10 at [105]–[106], citing the latter: ’once the feeling of actual persuasion has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with a probability in excess of 50%.’
The Panel concluded that, on the balance of probabilities, a C7 transverse fracture is present and was caused by the motor accident.
Held: The Medical Assessment Certificate was revoked. The C7 transverse process fracture was certified as not a threshold injury for the purposes of the MAI Act. The left shoulder soft tissue injury and cervical spine soft tissue injury were certified as threshold injuries.
Claims Assessment – Damages
Malufuka v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 452; (4 August 2026)
Senior Member Susan McTegg
Damages assessment – 47-year-old traffic controller injured in a motor accident at work; serious left thumb and wrist injuries; aggravation of pre-existing lumbar spondylosis; associated psychological symptoms; non-economic loss; buffer for future economic loss; claimant returned to the workforce after 10 months, working two jobs.
The claimant was injured in a motor accident on 23 March 2023 at work as a traffic controller. He suffered a serious left thumb and left wrist injury, aggravation of pre-existing lumbar spondylosis, a soft tissue injury to the left hip, and associated psychological symptoms. He returned to work after 10 months and is currently working two jobs (up to 90 hours per week) as a traffic control supervisor and security worker. The evidence demonstrated that he was unable to undertake physical tasks and had chronic pain in his left wrist, left hand, and lower back, a lifting restriction of 3 kg, loss of strength and dexterity, and difficulty with prolonged sitting, standing, or walking.
The insurer admitted liability for common law damages on 11 June 2025. The claimant filed an application for damages assessment in the Commission under s 7.36 and it was allocated to Member McTegg. The key issues were the assessment of non-economic loss, and whether a buffer was appropriate for the impairment of the claimant’s future earning capacity given his current employment exceeds his pre-injury earnings.
The insurer conceded greater than 10% WPI and entitlement to non-economic loss. Considering the physical injuries, chronic pain in his left wrist, left hand and lower back which impacted on all activities of daily living and the associated psychological symptoms, non-economic loss was assessed at $400,000.
Parties agreed to past economic loss in the sum of $135,985.87 plus superannuation at 11% for net losses and Fox v Wood of $27,197.17.
For future economic loss, the Member referenced s 4.7 and the requirement for the claimant to establish a change in his most likely future circumstances. The claimant claimed net losses for early retirement and a buffer for impairment of earning capacity generally. The Member applied Penrith City Council v Parks [2004] NSWCA 201, noting, 'The Court of Appeal concluded that it is appropriate to award a buffer when the impact of an injury upon the economic benefit from exercising earning capacity after injury is difficult to determine.’ The Member also had regard to Verryt v Schoupp [2015] NSWCA 128 and Thorn v Kelly [2021] NSWCA 319 on the difficulty of maintaining employment. On the estimation of future economic loss, the Member cited State of New South Wales v Moss [2000] NSWCA 133 at [71]: ’it is an exercise in estimation of possibilities, not proof of probabilities’. The Member was not satisfied that the claimant would maintain two full-time roles long term, finding the claimant ’stoic’ in providing financial security to his family in sensitive circumstances. She accepted that there was evidence of reduced ability to secure secondary employment in the security industry severely curtailed by his injury.
The Member assessed future economic loss by way of a buffer in the sum of $400,000 inclusive of loss of superannuation benefits accounted for an 18-year future working life, the possibility of early retirement, difficulty maintaining supervisory roles with a physical component, and the likelihood that his condition will worsen.
Held: Total damages were assessed at $978,141.49, comprising: non-economic loss $400,000; past economic loss $150,944.32; future economic loss (buffer) $400,000. The Fox v Wood component was assessed at $27,197.17. Costs and disbursements were assessed at $64,514.33 in favour of the claimant.
Miscellaneous Claims Assessment
Wallace v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 465; (11 August 2026)
Senior Member Brett Williams
Whether accident caused wholly or mostly by the fault of the claimant – motorcyclist merging from lane one to lane two – no fault on the part of the other driver – Podrebersek comparative exercise has no application where there is only one culpable party – contributory negligence assessed at 75% – costs order made under s 8.10(4)(b).
The claimant suffered significant injuries in a motor accident on City Road, Adamstown on 8 November 2024 and made a claim for statutory benefits. On 29 July 2025, the insurer denied liability on the basis the accident was caused wholly by the claimant's fault under ss 3.11 and 3.28 of the Act. Following an internal review affirming that decision, the claimant commenced proceedings in the Commission as a miscellaneous claims assessment matter under Sch 2, cl 3(d) and (e).
City Road carried three lanes in the claimant's direction of travel. The claimant was riding a motorcycle in lane one, intending to enter a service station ahead, when he came to a stop behind a small blue car which had in turn stopped behind a vehicle legally parked in lane one. After waiting some 30 seconds to a minute, the claimant attempted to merge into lane two. His motorcycle collided with the vehicle driven by the insured driver The claimant has no memory of the collision.
The claimant’s case was that he looked behind him in accordance with his long-standing usual practice as an experienced rider, saw lane two was clear, and commenced merging, with the insured driver having merged into lane two from lane three at or around that time. In the alternative, he submitted that even on the insured driver’s version, she appreciated that the vehicles in lane one were stopped and would need to merge and failed to moderate her speed in response to an obvious and foreseeable risk. The insurer submitted that the insured driver was in lane two at all material times, was keeping a proper lookout, was travelling within the speed limit with the flow of traffic and was entitled to rely on other road users obeying the Road Rules. The insurer sought a finding of 100% contributory negligence.
Although the Senior Member accepted the claimant's evidence of his usual practice of looking over his shoulder before changing lanes, that evidence could not stand against the finding that the insured driver was in lane two and was there to be seen. The Senior Member inferred that the claimant either did not look behind him or, if he did, his look was cursory. Either way, he did not keep a proper lookout. Had he done so, he would have seen the insured vehicle, and a reasonable person in his position would not have changed lanes.
As to the insured driver, the Senior Member applied Derrick v Cheung and Marien v Gardiner; Marien v HJ Heinz Company Australia Ltd, noting that a driver is not required to predict every event occurring in the vicinity of the vehicle, nor to travel at a speed within the ’limits of visibility and control’ so as to react to whatever ventures into the vehicle’s path. Reasonable care did not require the insured driver to reduce her speed so as to permit the vehicles in lane one to enter lane two, and even had she done so, the collision may still have occurred. She was exercising reasonable care and did not breach the duty she owed to the claimant.
Having found there was no other at-fault driver, the Senior Member held that there was no culpable conduct on the part of the insured driver capable of comparative examination, and that the exercise called for in Podrebersek v Australian Iron & Steel Pty Ltd could have no application, applying the observations in Axiak v Ingram. Consistent with AAI Ltd t/as GIO v Evic at [67]–[70], the assessment of whether the accident was caused wholly or mostly by the claimant's fault was undertaken by inquiring how far the claimant departed from the standard of care he was required to observe in the interests of his own safety. The claimant failed to take basic precautions for his own safety, changed lanes when it was obviously unsafe to do so, and knew or ought to have known that as a motorcyclist he faced a greater risk of harm than the driver of a car. While the departure was significant, it was ’not an example of a worst possible case’, and it was just and equitable to assess contributory negligence at 75%.
The Senior Member also permitted payment of the claimant's reasonable and necessary legal costs under s 8.10(4)(b), including counsel's fees. Success is not a prerequisite to the exercise of that discretion (AAI Ltd v Moon), and exceptional circumstances may be constituted by a combination of ordinary factors which, taken together, are seen as exceptional (Ho; San v Rumble (No 2)). Here, the claimant had suffered serious injuries, significant potential rights under the MAI Act were in the balance, critical facts were in dispute, an oral hearing with cross-examination of both drivers was required, and it was appropriate for the claimant to be represented by experienced counsel.
Held: The accident was caused mostly by the fault of the claimant for the purposes of ss 3.11 and 3.28 of the Act. A costs order was made in the claimant's favour under s 8.10(4)(b).
