Sparke Helmore's MAD (Motor Accidents Division) - Issue 164
26 October 2026
Welcome to the 164th 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.
Medical Review Panel
QBE Insurance (Australia) Limited v DEY [2026] NSWPICMP 736
Member Bianca Montgomery-Hribar, Medical Assessors John Baker and Christopher Canaris
Permanent impairment dispute for psychological injury sustained as a result of the motor accident – where original Medical Assessor assessed greater than 10% whole person impairment (WPI); Review Panel diagnosed panic disorder and social anxiety disorder, with social anxiety disorder pre-existing attracting 1% WPI; permanent impairment 6% WPI; post-traumatic stress disorder and somatic symptom disorder diagnosis not satisfied.
The claimant was involved in a motor accident on 20 June 2023 when another vehicle collided with her car while she was turning left. The claimant lodged a common law claim for damages. A dispute arose between the parties regarding permanent impairment, and the claimant referred that dispute to the Commission for assessment. Medical Assessor Suman on 28 September 2025 diagnosed the claimant with post-traumatic stress disorder (PTSD) and somatic symptom disorder and assessed 15% WPI.
The insurer applied for review pursuant to s 7.26 and that application was accepted by the President’s Delegate. Before the Review Panel, the insurer argued that the Medical Assessor’s diagnosis, opinion on causation, and apportionment of pre-existing impairment was erred.
The Panel rejected the PTSD diagnosis made by the original Medical Assessor and claimant’s expert Dr Nagesh on basis that the motor accident did not satisfy Criterion A because the circumstances were insufficient to involve actual or threatened death, serious injury, or a similar traumatic exposure as required for PTSD. The Panel placed weight on the evidence that the claimant was able to continue driving after the collision, take her children to school, and report the incident to police.
The Panel rejected the diagnosis of somatic symptom disorder also made by the claimant’s expert. The claimant initially reported no physical injury from the accident, and the evidence did not satisfy the DSM-5 criteria for that disorder, according to the Panel.
The Panel accepted that the claimant developed panic attacks, driving-related anxiety, avoidance behaviours, and fear following the accident. However, it found evidence of longstanding social anxiety predating the accident, including social withdrawal, relationship difficulties, church estrangement, and anxiety in social situations. The claimant’s pre-existing impairment was assessed at 1%.
The Panel was satisfied that the claimant had a panic disorder as a result of the motor accident which gave rise to mild and moderate deficits. The Panel assessed 7% WPI, with a 1% deduction for pre-existing impairment, to a total WPI as a result of the accident of 6% WPI.
Held — The Medical Assessor Certificate was revoked and a new certificate issued, confirming that WPI did not exceed 10%.
AAI Limited t/as AAMI v Hmayed [2026] NSWPICMP 735
Member Jeremy Lum and Medical Assessors Dominic Aouad and Rohan Krishnan
Review of threshold injury determination maxillary (upper jaw) prosthesis and its supporting dental implants; whether there was a blow to the face in the motor accident – consideration of causation.
The claimant was involved in a motor accident on 3 January 2023. He made a claim for statutory benefits against the at-fault CTP insurer. A dispute arose between the parties regarding whether the claimant sustained more than a threshold injury.
Relevantly, the claimant underwent extensive dental treatment in Lebanon involving a fixed maxillary implant-supported prosthesis approximately six months before the accident. He alleged that during the collision his face struck the steering wheel and window, causing loosening of a recently installed maxillary dental prosthesis and its supporting implants.
On 26 March 2025, Medical Assessor Adrian Vertoudakis assessed the claimant’s dental injury ’damage to maxillary implant’ to be caused by the motor accident and was a non-threshold injury. The insurer applied for review and the President’s Delegate accepted the application. Before the Review Panel, the insurer argued that there was no documented record of any facial impact or head strike in the motor accident and that the airbags did not deploy. The insurer argued that causation was not established, and that Medical Assessor Vertoudakis failed to consider the pre-accident evidence of smoking, heroin use, poor oral hygiene, poor implant prosthesis design, overloading from lack of supporting implants, loosening of screws, and trauma.
The Review Panel re-examined the claimant. Following the re-examination, the Panel determined that:
- Notwithstanding an absence of explicit commentary that the claimant’s head/face struck the steering wheel and window during the collision, with the force primarily striking the cheek and jaw joint on the right-hand side in treating documents, the Panel was satisfied that this was plausible given the damage to the vehicle and as reported by the claimant.
- The claimant’s symptoms and the clinical picture satisfy the Panel, on balance, that the implants have failed. The bone loss observed on imaging was materially contributed to by the loosening of the maxillary prosthesis.
- The diagnosed loosening of the maxillary implant-retained prosthesis was causally related to the motor accident. It was not persuaded by the insurer’s expert opinion of Dr Nichols that causation is multifactorial because there was no pre-existing radiology or documentation to suggest any loosening in the six-month period from when the maxillary prosthesis and supporting implants were placed to the date of the motor accident.
- The diagnosed jaw dysfunction was more likely than not causally related to the motor accident. The chronology of the symptoms and the mechanism of injury that was direct trauma supports this view. TMJ is a soft tissue (threshold) injury.
- The loss of the implant at site 35 was not causally related to the motor accident.
Held – The decision was revoked and a new certificate was issued confirming the same outcome – the accident caused damage to the maxillary prosthesis and its supporting implants, which is not a threshold injury.
Damages Assessment
Begum v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 567 (29 September 2026)
Member Hugh Macken
Damages assessment for nervous shock injury; contributory negligence on the part of the deceased pedestrian struck by insured vehicle – calculations of past loss of earnings as self-employed solicitor; uncertainty in respect to establishing future loss of earnings; assessment of non-economic loss; residual learning capacity.
The claimant’s father died in a motor accident on 28 July 2022. She brought a claim for nervous shock injuries arising from that motor accident against the at-fault CTP insurer. The insurer admitted negligence on the part of its insured driver but alleged contributory negligence by the deceased pedestrian. An application for damages assessment was referred to the Commission and allocated to Member Macken.
On liability, the Member noted that the deceased was crossing Parramatta Road where there were no traffic control signals and across six lanes of traffic. The deceased was walking with an aid of a walking stick when he was struck. There were traffic control signals about 200m away, but the deceased chose to cross the road at a point without any traffic control. He had crossed two lanes of traffic and was almost at the median strip when he was struck by the insured driver. The insurer alleged contributory negligence on the basis that the deceased put himself in a position of danger by seeking to cross the road at that point and failed to use the designated pedestrian crossing and to take heed of the traffic in the vicinity of where he was seeking to cross.
The Member noted the parties’ expert reports, statements and reconstructions in support of their submissions on liability but considered it a ’relatively straightforward matter’. He assessed 15% contributory negligence, placing greater weight on the insured’s culpability, stating that the insured was ’was driving his vehicle in a completely inattentive way. If he had looked at the road in front of him, he would have seen the deceased, an elderly man with a walking stick, crossing in front of him and been able to slow down and avoid a collision’.
On quantum, the insurer had conceded entitlement to non-economic loss damages and the Member assessed $450,000 for the ’very damaging effect that the persistent psychological injury has had on the claimant, the trauma and loss of professional opportunities that it has caused her, and the ongoing anxiety, stress and depression which is affecting her’.
The claimant alleged that her psychological condition prevented her from continuing to work as a solicitor and sought substantial damages for past and future economic loss. She argued that past economic loss should be allowed at the maximum statutory rate as the earnings from the practice which had been increasing year on year and consequently her pre-accident and earnings are not reflective of her economic loss. However the Member said that there was no evidence of an immediate and instant increase in her individual earnings. He noted that she had retained a practising certificate and had bought and sold investment properties since suffering her injury. He rejected a claim for total incapacitation. He said that whilst there had been economic loss, this was appropriately assessed on basis of the earnings at the time of the accident. For future economic loss, the Member ’was not convinced’ of an established entitlement to employer superannuation contributions in the calculation of her future economic loss. He accepted a loss of 80% of earning capacity to retirement, discounted for vicissitudes.
Held — Contributory negligence was assessed at 15%; damages were assessed $1,903,868.25, less credit of weekly wage benefits in sum of $298,857.78 paid to date of assessment.
District Court
Kaleiyah Nielsen-Royan by her next friend Elleigh Royan v Anthony David Ticulin [2026] NSWDC 349 (25 September 2026)
Hollo SC DCJ
Leave to commence proceedings out of time – s 6.32 – minor claimant – conduct of tutor – full and satisfactory explanation – s 6.2 – explanation not full – failure to explain conduct following limitation advice – delay in providing birth certificate – reasonable person in the position of the claimant – tutor identified with claimant – explanation not satisfactory – no discretion to grant leave – Statement of Claim dismissed.
The plaintiff, then aged nine, was injured on 14 March 2022 when she ran onto the road and collided with the defendant’s vehicle. The three-year limitation period under s 6.32 of the MAIA expired on 14 March 2025. As the Commission exemption application was not lodged until 4 November 2025, s 6.32(2) did not operate to extend time. The Statement of Claim was filed without leave on 10 March 2026. The defendant sought dismissal and the plaintiff, through her mother and tutor, sought leave to commence out of time.
The tutor had been advised of the limitation period by letter dated 19 July 2024. From late February 2025, her solicitors repeatedly requested a certified copy of the plaintiff’s birth certificate, advising that the claim could not proceed without it. It was not provided until 2 October 2025. The tutor relied on flooding in Kempsey, her circumstances as a single mother, privacy concerns and difficulty in locating the document for the delay in providing the documentation.
Hollo SC DCJ noted that ’full and satisfactory’ is a composite expression and an incomplete explanation fails without the need to consider whether it is satisfactory (Russo v Aiello [2003] HCA 53 at [58]). A full account extends to the conduct of those acting for the claimant (Walker v Howard [2009] NSWCA 408), and where a parent or tutor had legal responsibility for a minor, that person may be identified with the claimant in assessing whether the delay was justified (Walker v Howard at [97]-[99]).
His Honour found the explanation was not full. The tutor did not explain what she failed to understand about the limitation advice or why she did not seek clarification, did not address the cancelled conference with counsel, did not explain why she never asked her solicitor how to obtain a copy of the certificate, and did not explain why her privacy concerns fell away once it was located. That finding was sufficient to refuse leave.
The explanation was also not satisfactory. While her circumstances as a single mother and the flooding were relevant, she was legally represented throughout, aware of the time limit before it expired, and repeatedly told why the certificate was needed. The flooding caused disruption for about two weeks, during which she had access to her phone and email. His Honour distinguished cases where a claimant understands their legal representatives are attending to the necessary steps, fining a reasonable person in her position would not have taken from February 2025 until October 2025 to provide the document.
Held — The Statement of Claim was dismissed, with the plaintiff ordered to pay the defendant’s costs of its motion and of the proceedings.
Merit Review
Orangkhadivi v Allianz Australia Insurance Limited [2026] NSWPICMR 39 (11 September 2026)
Senior Member Susan McTegg
Merit review – statutory benefits – whether claimant an earner – pre-accident arrangement to undertake employment – Sch 1, cl 2(b) – absence of original documents – corroboration by phone records and employer correspondence – inconsistent employment histories in treating records not decisive – change of circumstances – Sch 1, cl 4(3) – pre-accident weekly earnings – reviewable decision revoked.
The claimant was injured in a motor accident on 28 February 2025. She alleged that, on 25 February 2025, she had signed an employment agreement with Izama Pty Ltd to commence as a store manager on 3 March 2025, at an annual salary of $90,000 exclusive of superannuation. She attended a training session on the morning of the accident, was unable to commence work, and her employment was terminated on 17 March 2025.
The insurer initially calculated pre-accident weekly earnings (PAWE) at $1,730.77, but rescinded that decision, and on internal review determined that the claimant had not incurred a loss of earnings. It relied on the claimant having selected ’unemployed/retired/student’ in her Application for Personal Injury Benefits, the absence of any email communication with the employer, metadata showing the offer, agreement and termination letter were created or rendered in September 2025, inconsistent employment histories in the medical records, and the employer’s refusal to provide a statement.
Senior Member McTegg found no criticism could be made of the claimant’s answers in the claim form, given she had not commenced work at the time of the accident. While the insurer’s concerns about the veracity of the offer were understandable, the evidence was otherwise largely consistent with the claimant’s account.
Phone records produced by Optus corroborated a call from the employer to the claimant on 4 February 2025, a call from the claimant to the employer following the accident, and a further call from the employer on 4 March 2025. The employer’s email of 7 October 2025, copied to the insurer’s case manager, confirmed the offer, the signed agreement and the training session. His email of 4 November 2025 to the insurer’s investigator again confirmed the agreements and its termination due to the accident, and the investigator raised no concern about the veracity of that communication. Discrepancies regarding her start date and the timing of the post-accident call were not significant.
The Member found it ’somewhat inexplicable’ that the certificates of capacity named a former employer, but declined to treat the treating records as decisive, noting the comment of Mason P in David v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35] that busy doctors (and employers) may misunderstand and/or misrecord employment histories.
The Member was satisfied on the balance of probabilities that the claimant had entered into an arrangement to commence employment at a particular time and place, and was an earner under Sch 1, cl 2(b). As she had not been earning at all before the arrangement, a change of circumstances under Sch 1, cl 4(3) was established.
Held — Based on the agreement, PAWE were determined to be $1,730.77 and the reviewable decision was revoked.
