Sparke Helmore's MAD (Motor Accidents Division) - Issue 165
09 November 2026
Welcome to the 165th 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
AAI Limited trading as GIO Insurance v Thomas [2026] NSWPIC 612
Member Carr
Settlement approval; clause 7.37 of the Motor Accident Injuries Guidelines; settlement approved by way of recovery for weekly payments of statutory benefits paid to the claimant under Division 3.3.
The claimant was injured on 28 October 2023 when, while riding his bicycle through a roundabout at Flinders, NSW. He was struck by the insured vehicle whose driver failed to keep a proper lookout. Liability was admitted by the CTP insurer.
The claimant was aged 53 at the time of the accident and worked as a mechanical maintenance coordinator with BlueScope Steel. He suffered injuries to his right shoulder, left thumb, left knee and various soft tissue injuries and abrasions. The claimant remained symptomatic despite surgery and rehabilitation, although he eventually returned to pre-injury duties before retiring from BlueScope and purchasing a caravan park business in Tasmania.
Parties initially agreed to a settlement for past-economic loss and future economic loss in the total amount of $300,000. As the claimant was unrepresented, the proposed settlement required approval by the Commission under s 6.23 of the MAI Act.
At the first settlement approval conference in 2025, it was raised that the insurer’s IME was not SIRA approved. The insurer indicated that the IME had been appointed to review the claimant as he had moved to Tasmania earlier in the year and there were no SIRA certified specialists in Tasmania. That report was used to inform the insurers settlement offer and so a further settlement approval conference was listed to allow parties to obtain further evidence and revisit the settlement.
The claimant was then assessed by Commission Medical Assessor Nigel Menogue at 12% whole person impairment (WPI), entitling him to non-economic loss damages. Parties reopened settlement negotiations. The final settlement proposed by the insurer totalled $700,000, comprising:
- Non-economic loss: $325,000
- Past economic loss: $195,000
- Future economic loss: $180,000
The insurer had previously paid statutory weekly benefits of $194,223.62 and sought repayment pursuant to s 3.40 of the MAI Act.
Member Carr approved the settlement of $700,000 pursuant to s 6.23(2)(b) because he was satisfied that the settlement was just, fair and reasonable having regard to the claimant's injuries, impairment and economic losses.
Medical Review Panel
QBE Insurance (Australia) Limited v Abdi [2026] NSWPICMP 797
Member Alexander Bolton, Medical Assessors John Baker and Michael Hong
The claimant was involved in a rear-end motor collision on 13 July 2023. He alleged significant psychiatric injury following the accident and was assessed by Medical Assessor Shen as suffering post-traumatic stress disorder (PTSD) and persistent depressive disorder, resulting in 17% WPI.
The CTP insurer applied for review. The insurer relied heavily upon surveillance material showing the claimant attending construction sites, driving, shopping, socialising and undertaking activities said to be inconsistent with the level of impairment he reported. The insurer argued that much of the impairment assessed by the Medical Assessor improperly reflected physical pain rather than psychiatric impairment, that the surveillance was inconsistent with the claimant’s presentation and reported symptoms and that the accident did not satisfy DSM-5-TR Criterion A for PTSD.
The panel re-examined the claimant. The Panel agreed with the insurer’s submission that criterion A for PTSD was not made out, because the accident was a relatively modest rear-end collision and there was no exposure to actual or threatened death or serious injury. The Panel determined that the claimant's difficulties were better explained by an adjustment disorder with anxiety and depressive symptoms arising from chronic pain, reduced function, relationship breakdown and ongoing stressors after the accident. The Panel said that the surveillance evidence significantly undermined aspects of the claimant's self-reported disability. The Panel found that many reported restrictions were inconsistent with his observed activities and functioning.
The Panel overturned the original Medical Assessors assessment of permanent impairment and assessed a total WPI of 7%, being 6% WPI plus 1% treatment effect.
Held – The Certificate and reasons of the Medical Assessor were revoked. A new Certificate was issued – permanent impairment did not exceed 10%.
Supreme Court
Cotterill v Insurance Australia Limited (t/as NRMA Insurance) [2026] NSWSC 1320
Elkaim AJ
The plaintiff made a claim for damages arising from a fatal motor accident on 3 April 2021 in which her alleged de facto partner, Luke Mathew Aiken, and their son died. The vehicle involved was uninsured, resulting in proceedings against the Nominal Defendant (as permitted by s 2.29 of the MAI Act). NRMA Insurance was allocated.
The plaintiff sought nervous shock damages and dependency damages under the Compensation to Relatives Act 1897 (NSW). The Nominal Defendant admitted liability regarding the death of the child but disputed entitlement to damages arising from Mr Aiken's death on the basis that it denied the existence of a de facto relationship between Mr Aiken and the plaintiff.
The plaintiff, unrepresented, commenced proceedings in both the District Court and Supreme Court.
Under s 44(1)(d) of the District Court Act 1973 (NSW) the District Court has jurisdiction in respect of ’any motor accident claim, irrespective of the amount claimed’.
Under s 140 of the Civil Procedure Act 2005 (NSW) a matter may be transferred from the District Court to the Supreme Court where:
‘(a) in the case of a motor accident claim or a workplace injury damages claim—
(i) that the amount to be awarded to the plaintiff, if successful, is likely to be more than $1,000,000, and
(ii) that the case involves complex legal issues or issues of general public importance, ....’
The Court also had to determine whether the separately commenced Supreme Court proceedings should be dismissed as duplicative. This was because the plaintiff had separately filed the proceedings, rather than requesting the transfer under s 140 of the Civil Procedure Act 2005 (NSW). That application was then made.
A forensic accounting report obtained by the defendant indicated that potential dependency and economic support claims could approach $939,000 before other heads of damage were added. The defendant ultimately conceded that, if successful, the plaintiff's claim would likely exceed $1 million. The Court also considered the disputed question of whether the plaintiff and the deceased had been in a de facto relationship to be a sufficiently complex factual issue justifying transfer.
Elkaim AJ was satisfied that the matter ought be transferred, and so the separately commenced Supreme Court proceedings became unnecessary and were dismissed. His Honour also ordered an interim payment of $8,165.30 to allow the plaintiff to obtain an occupational therapist report.
Akbar v Allianz Australia Insurance Ltd t/as Insurance Company [2026] NSWSC 1350
Schmidt AJ
EQUITY — self-represented plaintiff received legal advice about the settlement sought to be set aside before it was entered — unconscionable conduct not established — economic duress not established.
The plaintiff was injured in a motor accident in January 2023 while working as an Uber driver. He was struck by the opening of a door of a parked vehicle. The CTP insurer admitted liability for statutory benefits and common law damages.
The plaintiff’s common law claim settled in December 2023 on legal advice from LHD Lawyers. At the time, orthopaedic surgeon Dr Bodel assessed 8% WPI, and so the settlement did not include non-economic loss damages.
In 2025, the plaintiff commenced Supreme Court proceedings seeking to set aside the settlement. He alleged that a rehabilitation provider, Mr Devlin, threatened that the CTP insurer would cease his statutory benefits if he did not return to work, forcing him to accept the settlement. He also alleged that spinal and other injuries had not been assessed for WPI relevant to the settlement that was entered. He never disclosed Mr Devlin’s alleged threat to his solicitors, or to the CTP insurer.
AJ Schmidt rejected the plaintiff's evidence and found that the allegations were not established. The Court found:
- The contemporaneous documents did not support the alleged threats.
- The plaintiff had legal representation throughout settlement negotiations and actively instructed his solicitors regarding settlement terms.
- The plaintiff never complained to his lawyers or the CTP insurer about the alleged threats.
- The settlement documents were explained to him before he signed them.
- The plaintiff understood the consequences of settlement, including the cessation of weekly benefits.
The Court also considered it significant that the plaintiff was well educated, spoke and understood English, held a sociology degree, was studying computer science at an Australian university, and demonstrated the ability to provide detailed written instructions to his solicitors.
On the issue of agency, the Court determined that the rehabilitation provider was engaged to provide services for the plaintiff's benefit under the statutory scheme, that the insurer funded those services but did not control their delivery and that there was no evidence Allianz authorised, directed or was aware of any alleged threats. The Court said:
’Under this statutory regime, Mr Devlin provided services for Mr Akbar’s benefit, the cost of which Allianz bore. Their provision satisfying certain of Allianz’s obligations under the Act. But there is no evidence that what Mr Devlin told Mr Akbar was within the scope of any authority he was given by Allianz.’
Even if the threats occurred, the Court said that Allianz could not be responsible.
The Court also dismissed the allegations of unconscionable conduct and economic distress, stating that the plaintiff was not under a special disadvantage when he entered the settlement as he had independent legal advice, understood the settlement and the evidence did not support a finding that he was compelled to settle by unlawful pressure. The Court said:
’… it must also be borne in mind that equitable unconscionability depends on special disadvantage being established: Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49 at [38]- [39]. That is a disadvantage which seriously undermines the ability of the innocent party to make a judgment as to his or her own interests. The other party having taken advantage of the disadvantage, by victimisation, unconscionable conduct or exploitation, knowing of the special disadvantage: at [38].’
As an aside, the Court noted that the other orders the plaintiff pursued could not have been made, given how his claims are regulated by the statutory scheme and as the plaintiff had not obtained a Certificate issued by the President of the Commission for exemption.
Review of a Medical Assessment
Allianz Australia Insurance Limited v Saliu [2026] NSWPICMP 795
Member Macke, Medical Assessor Gray and Gorman
Review of a medical assessment – treatment and care dispute – proposed rotator cuff repair not related to accident – imaging showed longstanding degenerative calcification and no acute injury.
The claimant, aged 44 years old, was injured in a motor accident on 6 November 2024 when a garbage truck collided with her vehicle. She had previously undergone two right shoulder arthroscopic procedures following an earlier motor accident in 2021. The insurer declined to approve a surgical repair of the left shoulder rotator cuff recommended by Dr Haber.
Medical Assessor Gumley certified that the proposed surgery related to an injury caused by the motor accident and was reasonable and necessary in the circumstances. On the insurer’s application, the President’s Delegate found reasonable cause to suspect the assessment was incorrect in a material respect, and the matter was referred to a Review Panel for a new assessment.
The ambulance and hospital records documented left shoulder pain immediately following the accident. An MRI report on 20 December 2024 noted supraspinatus tendinosis, with subscapularis and infraspinatus intact. An ultrasound on 19 August 2025 found no significant tears of the rotator cuff but identified a large calcium deposit and linear calcification consistent with partial tearing.
On clinical examination, the claimant demonstrated pain inhibition on attempting any active left shoulder movement. Her range of movement was inconsistent on repeated testing despite being advised of the importance of consistency. Pressure over the lower left paracervical area reproduced her ’shoulder pain’, which she localised to the suprascapular area rather than the shoulder itself.
The Panel found the claimant sustained a threshold injury to the left shoulder in the accident. However, it found the bilateral soft tissue calcification was constitutional in nature, the MRI showed no acute injury, and the calcification was longstanding and consistent with a degenerative process, with a degree of fraying expected independent of any acute injury.
The Panel concluded there was no indication for arthroscopy or cuff repair as a consequence of the accident. It noted that removal of calcification and repair of the supraspinatus may be clinically indicated only if symptoms arose from the lesion, but the claimant’s pain on all left shoulder movements was not typical of an isolated supraspinatus lesion.
Held — The Panel revoked Medical Assessor Gumley’s Certificate and determined that the proposed surgery did not relate to the injury caused by the accident and, as a result, was not reasonable and necessary.
