Sparke Helmore's MAD (Motor Accidents Division) - Issue 161
23 September 2026
Welcome to the 161st 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.
Supreme Court of New South Wales
AAI Limited trading as AAMI v Agyei [2026] NSWSC 1087
Adamson JA
Administrative law – jurisdictional error; error on the face of the record; where Medical Assessor made a decision about an issue already determined and original decision was not referred in accordance with the statutory regime in MAI Act and consequent subsequent decisions lacked jurisdiction; whether relief ought be refused on discretionary grounds — acquiescence.
The claimant was injured in a motor accident on 14 February 2021. She made a claim for statutory benefits against the CTP insurer of the at-fault vehicle. A medical dispute arose between the claimant and the insurer as to whether the injuries, both physical and psychiatric, caused by the motor accident were threshold injuries, as defined by s 1.6 of the MAI Act. Assessor Sidorov on 18 March 2022 determined that the claimant sustained an adjustment disorder with mixed anxiety and depressed mood, which was a threshold injury under the MAI Act. The claimant did not apply for review of this medical assessment Certificate.
On 2 February 2022, the claimant applied for assessment of a treatment dispute relating to proposed psychiatric treatment with Dr Kuljic in accordance with Sch 2, cl 2(b). Assessor Fukui on 17 July 2023 issued three Certificates – two relating to treatment and of significance, one that said the claimant’s psychiatric injury (adjustment disorder with mixed anxiety and depressed mood) was a threshold injury, although this question had not been referred to her.
The claimant then applied for review of Medical Assessor Fukui’s assessment that her psychiatric injury was a threshold injury, and that review application was accepted by the President’s Delegate on 11 April 2024 under s 7.26(5A). On 30 May 2025 a Review Panel revoked Assessor Fukui’s Certificate relating to threshold injury and certified that the claimant suffered from Post-Traumatic Stress Disorder (PTSD), which is a non-threshold injury.
The insurer commenced judicial review proceedings by way of amended summons which alleged:
- The threshold injury dispute had been determined by Assessor Sidorov, whose decision was conclusive evidence of that medical assessment matter by virtue of s 7.23(2)(b) of the MAI Act and the doctrines of res judicata and issue estoppel. Without a review application or further medical assessment application, the decision of Assessor Fukui was invalid, and the purported referral by the President’s Delegate of the threshold injury medical assessment matter to a Review Panel was also legally erroneous and in excess of jurisdiction and should be set aside.
- As a consequence of those errors, the Review Panel decision was afflicted by jurisdictional error, was invalid and should be set aside also.
In short, Adamson JA agreed and set aside that part of Medical Assessor Fukui’s decision that related to the threshold injury dispute; the Delegate’s decision to refer the matter to the Review Panel; and the Review Panel decision. The following key findings arose:
- The effect of s 7.23(2)(b) is that a certificate issued under that section is conclusive evidence of the finding, and the express wording of s 7.24(2) and cl 13 of the Regulation imposed limitations on the referral of the matter for re-assessment. Unless one of those limitations apply – being review or for further medical assessment – there was no jurisdiction to proceed to assessment in respect of a matter, which had not been referred.
- ’There was no longer a “medical dispute” about whether the claimant’s psychiatric injury was a threshold injury since the matter had been determined conclusively by Medical Assessor Sidorov against whose decision no application for review had been made: see Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 at [78] and [94] (Stern JA, Leeming and Kirk JJA agreeing).’
- ’The factual dispute between the parties was, at the time of referral, limited to the treatment dispute, which confined the ambit of the referral: Insurance Australia Ltd trading as NRMA Insurance as agent for the Nominal Defendant v Toole [2025] NSWSC 777 at [40].’
As an aside, the summons was commenced out of time and the insurer needed to obtain a grant of extension of time from the Court to proceed. Adamson JA granted an extension of time because the public interest in setting aside decisions affected by error on the face of the record or jurisdictional error substantially outweighs the public interest in finality. It was also noted that it would be ’highly unsatisfactory for there to be two extant, inconsistent decisions about the same matter’.
Held: Certificate of Assessor Fukui, the President’s referral and the Review Panel decision was set aside. An extension of time was granted as the errors were material and the insurer did not acquiesce the decision. No order for remittal as Medical Assessor Sidorov’s decision remained extant and was unchallenged.
AAI Ltd t/as GIO v Mohammed [2026] NSWSC 991; (25 August 2026)
Griffiths AJ
Judicial review of Review Panel determination – ambit of the medical dispute – whether Panel made findings beyond the scope of the referral – s 7.26(6); procedural fairness – McKee, Mandoukos, Toole, Cahill and Zadehfard considered; summons dismissed.
The First Defendant was injured in a motor accident on 2 May 2022. The insurer denied liability for statutory benefits beyond 52 weeks on the basis that his injuries were threshold injuries, and the claimant applied for medical assessment. The left shoulder injury was described in the application, and in the subsequent referral, as ’supraspinatus tendinosis involving his left shoulder together with subacromial bursitis’. An ultrasound performed 11 days after the accident had reported mild changes of supraspinatus tendinosis without evidence of tear.
Medical Assessor Woo certified the left shoulder injury as a threshold injury, both on original assessment and on further assessment under s 7.24. The insurer applied for review, its application directed to the lumbar spine. In the course of the review, GP clinical records produced under Panel directions disclosed a further ultrasound of 20 December 2024 reporting a partial thickness tear of the supraspinatus. The Panel directed the insurer to make submissions on whether the tear was caused by the accident. The insurer did so, urging primacy for the 2022 imaging, but raised no objection to scope. The Panel revoked the Certificate and certified the left shoulder injury as a non-threshold injury.
The insurer sought judicial review on two grounds: that the tear fell outside the ambit of the medical dispute referred, and that it had been denied procedural fairness because it was not put on notice that the Panel proposed to find the 2022 ultrasound incorrect.
Griffiths AJ held that the ambit of a medical dispute is essentially a question of fact. While the terms of the application and referral are plainly relevant, regard may also be had to the parties’ claims, submissions and medical evidence, which may have the effect of broadening or narrowing the dispute. That analysis applies to both an original assessment and a review, and effect must be given to s 7.26(6), which provides that a review is to entail a new assessment of all the matters with which the medical assessment is concerned. The left shoulder had been referred from the outset, and the insurer’s own 2023 reply submissions had engaged with whether there was a tear, indicating it did not treat the dispute as confined to the injury description. Toole, Cahill, Scone and Zadehfard were distinguished as cases in which the matter determined fell outside the dispute as framed.
As to procedural fairness, his Honour did not accept that the Panel had made a finding that the 2022 ultrasound showed a tear. Read fairly, the Panel had said only that a negative ultrasound was not conclusive of the absence of pathology, and it had relied on evidence independent of that scan. In any event, the direction of 24 October 2025 gave the insurer sufficient notice of the issue, as its detailed responsive submissions demonstrated.
Held: The summons was dismissed, with costs.
Review of a Medical Assessment
Forden v Allianz Australia Insurance Limited [2026] NSWPICMP 657; (2 September 2026)
Member Belinda Cassidy; Medical Assessors Melissa Barrett and Ankur Gupta
Permanent impairment – psychological injury; claimant unreliable historian; cognitive screening on re-examination suggesting emerging neurocognitive issue; s 7.21(4) – Panel declined to assess impairment until satisfied it had become permanent.
The claimant was riding his motorcycle from Melbourne to Queensland on 8 May 2021 when he was confronted by a vehicle overtaking on a bend and was forced off the road. He sustained a fracture of the left C7 facet. He alleged a psychological or psychiatric injury, and a dispute arose as to whether his degree of permanent impairment exceeded 10% WPI.
Medical Assessor Doris examined the claimant in June 2025 and certified 7% WPI, diagnosing a persistent depressive disorder and finding the criteria for post-traumatic stress disorder were not met. The claimant applied for review, alleging the Medical Assessor had misapplied the PIRS criteria for self-care and personal hygiene and for concentration, persistence and pace, relying on Abdal v Insurance Australia Limited t/as NRMA Insurance [2025] NSWSC 478. The insurer submitted the allegations were a manifestation of disagreement with the findings rather than error.
The claimant was re-examined by the Medical Assessors by audio-visual link in August 2026. They identified a number of inconsistencies between the claimant's account at re-examination and the contemporaneous records and earlier reports, including as to his recollection of the accident, attendance at hospital, assistance received at the scene and his pre-accident work incident history. The Assessors concluded the claimant was an unreliable historian, not because he was deliberately seeking to mislead, but because of demonstrated cognitive difficulties. Given his presentation, reported increase in impulsive and aggressive behaviour and memory lapses, his cognition was screened using the Rowland Universal Dementia Assessment Scale (RUDAS), on which he scored 21 out of 30, a result indicative of clinically significant cognitive impairment. That was to be contrasted with a normal MoCA result recorded by a neurologist in November 2023.
The Assessors diagnosed PTSD, persistent depressive disorder of moderate severity, likely alcohol use disorder and likely neurocognitive disorder. The Panel accepted the diagnoses of PTSD and persistent depressive disorder and was satisfied the accident caused them, the PTSD being of late onset but accident-related as the physical symptoms became chronic. In the absence of investigation and a concluded diagnosis as to the claimant's cognitive functioning, the Assessors were unable to form a view as to the causation of any neurocognitive disorder, or to separate any accident-related impairment from impairment attributable to that condition.
Section 7.21(4) permits a medical assessor to decline to assess the degree of permanent impairment until satisfied the impairment has become permanent. The Assessors were not so satisfied. Although the medical and employment records to June 2024 indicated a level of stability, the claimant’s presentation at re-examination and his RUDAS score raised the possibility of a new and emerging medical issue requiring investigation. The Panel indicated the impairment would be ready for assessment once cognitive functioning had been investigated, for example by neurological testing, and a diagnosis made as to the cause of the impairment.
Held: The Certificate of Medical Assessor Doris was revoked. In accordance with s 7.21(4). The Panel declined to make an assessment of the degree of permanent impairment until it was satisfied that the impairment caused by the injury had become permanent.
Miscellaneous Claims Assessment
Eid v AAI Limited t/as AAMI [2026] NSWPIC 504; (27 August 2026)
Senior Member Brett Williams
Section 3.1 – whether right knee ACL injury resulted from the motor accident; no complaint recorded in ambulance or hospital records; injury first attributed to soccer; onus of proof – Vines v Djordjevitch and Nguyen v Cosmopolitan Homes applied.
The claimant was the front seat passenger in a stationary vehicle that was struck from behind on 20 March 2025. He was taken by ambulance to hospital, where he complained of head, neck and right flank pain. Neither the ambulance report, nor the hospital records recorded any complaint referable to the right knee, and the treating notes recorded that he was able to move all four limbs as desired. He first sought treatment for the knee 11 days later, telling his GP, in his mother’s presence, that he had twisted it playing soccer. Imaging subsequently confirmed rupture of an ACL graft placed following a 2022 motorcycle accident. The claimant later told the GP, and maintained thereafter, that the injury was sustained in the accident and that he had given the soccer history to avoid alarming his mother. The insurer denied liability under s 3.1 and the dispute was referred as a miscellaneous claims assessment.
The Senior Member found no finding could be made as to the speed of the insured vehicle, noting that both lay estimates were merely assumptions drawn from the speed limit and the absence of braking. The Senior Member was, however, satisfied the impact was forceful and not trivial. He was further satisfied the claimant did not report right knee symptoms to ambulance or hospital staff because he had none at that time, and did not accept that medication administered in hospital masked a significant ACL injury while leaving the head and neck symptoms unmasked. The oral evidence of the claimant’s mother and of the driver that symptoms were reported the day after the accident was found unreliable, neither statement having referred to it despite both being made in support of the claim. The explanation for the soccer history was not accepted, particularly given the claimant had discussed other sensitive matters in his mother’s presence at a consultation a month before the accident.
The Senior Member accepted the opinion of Prof Al Muderis that the injury arose from a pivot-shift mechanism, and that it is highly probable such an injury produces immediate, clinically detectable symptoms, while nonetheless acknowledging his evidence that variable presentation cannot be excluded and that variation increases where a grafted ACL is involved. He also accepted Dr McIntosh’s evidence that there was no mechanism for knee hyperextension, no intrusion into the footwell, and that the seatbelt and seat reduced forces acting through the right leg.
Held: The evidence did not induce an actual sense of persuasion that the claimant injured his right ACL as a result of the accident: Nguyen v Cosmopolitan Homes [2008] NSWCA 246. The claimant did not discharge his onus. The injury to the right knee did not result from the motor accident of 20 March 2025. Exceptional circumstances were found under s 8.10(4)(b) and costs were allowed to both parties.
Ovsepyan v AAI Limited t/as AAMI [2026] NSWPIC 500; (26 August 2026)
Member Gary Victor Patterson
Section 3.1 – rear-end collision followed by assault by the insured driver and a second collision; ss 1.4 and 1.9; whether injury resulted from a ’dangerous situation caused by the driving of the vehicle’; GSF and Tucker distinguished.
The claimant was stopped at a red light on 8 March 2025 when the insured vehicle struck the rear of his vehicle. He pulled over and, as he opened his driver's side door, was punched in the face multiple times by the insured driver. He was assaulted again after attempting to prevent the driver leaving the scene. The insured vehicle then struck the claimant’s vehicle a second time as the driver departed. The events were captured on CCTV. The claimant was diagnosed with a right knee medial meniscal tear. The insurer initially accepted liability for statutory benefits, then declined on the basis that the injuries did not result from a motor accident, and confirmed that decision on internal review. The dispute was determined on the papers.
The insurer relied on Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26, submitting that the proximate cause of injury was the assault, which was an event distinct from a motor accident as defined, and that neither the causal nor the temporal requirement was met. It also relied on Tucker v Allianz Australia Insurance Limited [2026] NSWPIC 70.
The Member declined to accept that Dr McIntosh, a biomechanical engineer, was qualified to express an opinion on the causation of injury, which was ultimately a matter for medical opinion, and put his evidence to one side, referring to Makita (Australia) Pty Limited v Sprowles [2001] NSWCA 305. The expert medical evidence to which the insurer referred was otherwise ’all one way’ and attributed the knee injury to the vehicle impact. The Member found the injury was caused by either one of the two collisions, both of which arose from the use or operation of a motor vehicle during the driving of the vehicle and/or a dangerous situation caused by the driving of the vehicle.
The Member further considered that the entire sequence of events, comprising both collisions and the intervening assaults, should be regarded as a single entity falling within the definition of a motor accident on the facts of the case, the assaults having flowed directly and almost contemporaneously from the first collision. GSF was distinguished as involving a more restrictive definition predating the introduction of limb (d) in ss 1.4 and 1.9, and Tucker was distinguished on the basis that the intervening fall there was unrelated to the motor accident. He also observed that s 5E of the Civil Liability Act 2002 (NSW) was not directed to establishing whether a motor accident occurred.
Held: For the purposes of ss 1.4, 1.9 and 3.1, the injuries sustained by the claimant on 8 March 2025 were caused by a motor accident in this State, in that they resulted from and were caused by the use or operation of a motor vehicle.
