Sparke Helmore's MAD (Motor Accidents Division) Weekly - Issue 147
05 February 2026
Welcome to the 147th 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 Deftereos [2026] NSWPIC 29; (20 January 2026)
Member: Elyse White
85-year-old claimant – physical injuries with limited recovery - depressed by restrictions and disabilities; was an active independent man before the accident; retired for many years in receipt of an aged pension; damages for non-economic loss only – settlement approved under s 6.23(2)(b).
The claimant pedestrian was injured in a motor accident on 15 February 2024. The CTP insurer admitted liability for damages in full, and the parties arrived at a settlement for non-economic loss damages only. The claimant was not legally represented, and so the settlement had to be approved under s 6.23(2)(b). The insurer lodged a settlement approval application and Member White was allocated.
Clause 7.37 of the Guidelines required the Member to be satisfied that:
(a) the proposed settlement is just, fair, and reasonable and within the range of likely potential damages assessment for the claim were the matter to be assessed by a Member, 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, and
(b) the claimant understood the nature and effect of the proposed settlement and was willing to accept the proposed settlement.
The Member considered that the claimant sustained a scaphoid fracture and a massive right shoulder rotator cuff tear as a result of the accident, which required total shoulder replacement in June 2025. She noted that the claimant had not returned to his pre-accident capacity and was having active treatment. She said that the claimant’s mobility was significantly impaired and that there were residual psychological symptoms as a result of his loss of independence. The Member was satisfied that the claimant understood his entitlement to an assessment of non-economic loss, was not entitled to economic loss and agreed the amount of $250,000 was a reasonable sum for damages.
The Member determined that the proposed settlement sum of $250,000 was within the range of likely damages if the claim was to be assessed by a Member and thus was just, fair, and reasonable.
Held: Settlement approved.
Merit Review
CMB v QBE Insurance (Australia) Limited [2026] NSWPICMR 1 (19 January 2026)
Member: Katherine Ruschen
Whether it is fair and reasonable in the circumstances for the non-associated third-party payer to be charged the amount claimed under s 8.10(1) for costs and expenses in relation to claims for statutory benefits - costs assessment under s 7.13A – s 6 Legal Profession Uniform Law (definition of legal costs) – tutor administrable costs not recoverable.
The claimant was injured in a motor accident on 23 August 2022. The claimant had a tutor appointed to act on their behalf for the statutory benefits claim as they were a person under legal incapacity.
In two separate miscellaneous claims assessment proceedings determined on 19 August 2025, the Member awarded the claimant maximum regulated costs. The claimant then sought assessment of administrative costs incurred by the claimant’s now former tutor (ML), and investigation costs allegedly incurred by a layperson named [SGG] under s 8.10(1) as ‘other, unregulated costs and expenses’. This was the subject of this Merit Review dispute before Member Ruschen.
The claimant argued in the alternative that these costs were recoverable by discretion, on the basis that the tutor was required to conduct statutory research, coordinate evidence and prepare pleadings. The claimant claimed over $250,000 in tutor fees claimed at $400 per hour and said that these costs were incurred as ’essential to safeguard rights of a legally incapacitated person and ensure procedural fairness in the face of insurer delay and evidentiary gaps’. The claimant later submitted that the tutor’s costs were for interpreter services which were recoverable on an unregulated basis under cl 20 of the Regulation.
The claimant also sought recovery of costs for the involvement of a layperson and their ’investigative efforts’ in the sum of $200,000. Of note, the claimant’s tutor, during the miscellaneous claims proceedings, was then changed to a new person and that new tutor argued that the layperson and former tutor’s costs ’should be “scrutinized by way of independent audit’.
The Member denied the recovery of any costs sought, stating that:
- Part 8 of the MAI Act prescribes the terms on which a party may recover costs. Costs under the MAI Act are limited to recovery of ’legal costs’ and ’other costs and expenses’ (that is, disbursements) subject to the various sections in Part 8.
- ’It is clear from the legislation including the definition of “legal costs” in the LPUL (adopted as the definition of “legal costs” in the MAI Act) that legal costs are only amounts that may be charged by, or that a party may become liable to pay to, a law practice for the provision of legal services.’
- ’The tutor is not a law practice providing legal services the tutor’s costs do not fall within the definition of “legal costs” for the purpose of Part 8 of the MAI Act. Accordingly, the tutor’s costs are not recoverable as legal costs under any costs order already made (nor under any future costs order that might be made in the claim.’
- For the same reasons, the laypersons costs are also not recoverable as legal costs under the MAI Act.
- The MAI Act, Regulation, PIC Act, PIC Rules and Procedural Directions do not grant discretionary power to allow a tutor’s administrative costs in litigation.
Other findings were made with respect to the claimant’s interlocutory requests for access to publicly funded data and ’subpoenas’ issued on SIRA, the insurer and their agents for various documents and disclosure ‘to determine whether the claimant’s investigative and legal costs were necessary and whether they should be recoverable or protected under s 42 of the Personal Injury Commission Act 2020 [NSW]’. These requests were denied and are not discussed further in this publication.
Held: The sought costs were not recoverable.
Medical Assessment Review Panel
Insurance Australia Limited t/as NRMA Insurance v Oh [2026] NSWPICMP 22; (16 January 2026)
Member Gary Patterson, Medical Assessors Thomas Newlyn and Neil Jeyasingam
Threshold injury dispute – claimant child injured in motor accident – original medical assessment certificate certified claimant has accident-related PTSD which is not a threshold injury – insurer argued that child under four years of age could not recall accident.
The claimant was injured as a pedestrian in a motor accident on 8 April 2019 when she was four years of age on 8 April 2019. The claimant was run over by an elderly female driver. An ambulance was called as well as a helicopter. She was transported to Westmead Children’s Hospital with blood on her face and her leg, though imaging later excluded fractures or significant physical injuries. Evidence was adduced by her mother that the tyre was very close to the claimant’s head, and it was not until the vehicle reversed that the claimant could be extracted from underneath.
The claimant underwent brief psychological treatment for panic attacks and disturbed sleep. The insurer denied liability for payment of statutory benefits beyond twenty-six weeks on the basis that the claimant sustained threshold injuries. The application for internal review of this decision was refused.
The claimant applied to the Commission for medical assessment about whether the injury was a threshold injury under Sch 2, cl 2(e) of the Act. On 29 May 2023, Assessor Rikard Bell determined that the claimant sustained PTSD as a result of the motor accident, which is not a threshold injury under the MAI Act.
The insurer sought a review of Medical Assessor Rikard-Bell’s Certificate, on the ground that the medical assessment was materially incorrect within the meaning of s 7.26. They argued that the medical assessment certificate failed to set out a diagnosis based on a clinical assessment on the balance of probabilities, failed to sufficiently address causation or apply DSM-5 criterion as appropriate. A primary argument advanced by the insurer was that ’the Assessor recorded that the claimant had little or no memory of the accident itself, the PIRS assessment showed little to no impairment, and the Assessor could only reasonably presume’ that the claimant had PTSD. The claimant disputed these contentions.
The review application was accepted by the President’s Delegate and a Review Panel was allocated. The Panel re-examined the claimant in the presence of her mother and was satisfied that the claimant has ongoing nightmares of ‘a car crash’, intrusive thoughts of the event and mood alterations. The Panel further accepted the claimant’s mother’s evidence that the claimant recalled the accident.
As the claimant was under six years old at the time of the event, the DSM-5-TR subcategory (Posttraumatic Stress Disorder Symptoms in Children Age Six and Younger) applied.
The Panel was satisfied therefore that the claimant met this DSM-5 criterion for PTSD.
Held: The Certificate was confirmed; the claimant had accident-related PTSD, which is not a threshold injury.
Miscellaneous Claims Assessment
Alhussein v QBE Insurance (Australia) Limited [2026] NSWPIC 23; (16 January 2026)
Member: David Ford
Miscellaneous claims matter under Sch 2.3(f) – whether insurer has discretion to pay benefits in circumstances where a serious driving offence was committed – where claimant driver charged with negligent driving occasioning death as a result of motor accident.
The claimant drove his motor vehicle into a causeway on 31 October 2022. Two passengers seated in the rear tray of the vehicle went into the causeway and drowned. The claimant lodged a claim for statutory benefits, which the insurer accepted liability for up to 26 weeks on 21 December 2022.
The insurer became aware of charges laid against the claimant, for driving negligently occasioning death, in respect to the subject accident on 23 December 2022 and issued a notice denying liability for statutory basis. This was on the basis that the claimant was mostly at fault and, that he was also charged with a serious offence.
The claimant was acquitted of manslaughter charges on 12 February 2025. Other negligent driving charges remained on foot, though the claimant asked the insurer to revise the decision on 23 December 2022. The insurer maintained the fault decision but otherwise accepted liability for first 26 weeks.
On 16 May 2025, the claimant pled guilty and was convicted by Judge Baly SC for two charges of driving negligently occasioning death in respect to the subject accident. The insurer became aware of those convictions and issued a notice that the claimant was in breach of s 3.37 of the MAI Act, which states:
’Statutory benefits under this part are not payable to an injured person after the person has been charged with or convicted of serious driving offence that was related to the motor accident '
A ’serious driving offence’ is denied by s 3.37(5) (as relevant):
’(a) an offence that is a major offence under the Road Transport Act 2013 or an offence under section 115 or 116(2) (a) –(e ) of that Act’
13. Section 4 of the Road Transport Act 2013 defines ’major offence’ as including:
’(e) an offence against section 117 (1) of driving a motor vehicle negligently (being driven occasioning death or grievous bodily harm.)’
The insurers decision to deny liability for statutory benefits on the basis that he had committed a serious driving offence related to the motor accident was affirmed on internal review. The claimant applied for miscellaneous claim assessment as a dispute as to whether he is wholly or mostly at fault pursuant to ss 3.11 at 3.28 of the MAI Act, but the issues were limited at the preliminary conference to whether the denial of liability pursuant to s 3.37(1) of the MAI Act was permissible.
That is to say that fault was agreed not to be determined further.
The Member rejected the claimant’s argument that the insurer was applying s 3.37 retrospectively or that the decision to reverse the liability decision was ’inconsistent with procedural fairness and objectives of the Act’. The Member said that the insurer acted quickly when becoming aware of the serious driving offence and that the insurer ’was obliged to refuse to pay the claimant statutory benefits forthwith’.
Held: The insurer was entitled to refuse payment of statutory benefits to the claimant under s 3.37(1)
Kojic v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 13; (13 January 2026)
Member: Belinda Cassidy
The motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant for purposes of s 3.28 – claimant pedestrian - AAI Limited t/as GIO v Evic followed re approach to decision-making; Derrick v Cheung cited regarding foreseeability; Mamo v Surace cited regarding standard of care; Davis v Swift referred for assessment of contributory negligence
The claimant was a pedestrian injured in a motor accident on 25 May 2024.
The claimant lodged a claim for statutory benefits on 2 July 2024, which was denied by the insurer on 13 March 2025 on the basis he was ’wholly at fault’ for the accident and his injury. The internal review conducted by the insurer affirmed that decision that the claimant was wholly or mostly at fault and thus not entitled to statutory benefits after 52 weeks.
The claimant applied to the Commission under Division 7.6 and argued that he was not mostly or wholly at fault. The insurer, reiterating the findings of the internal review decision, said that the claimant failed to cross the roadway with safety, failed to use a pedestrian crossing, did not perform safety checks and was on his phone and distracted when crossing the road. The insurer said that the insured driver braked hard but could not avoid a collision with the claimant who appeared suddenly on the roadway.
The claimant disputed these allegations and said that drivers in the median strip and middle lanes had stopped and waved him across, which ’gave the claimant a legitimate basis to believe it was safe to proceed’. Witness testimony was not formally attested to and the investigating officer did not attend the scene of the accident and based his findings on the insured driver’s self-report.
It was agreed after the production of evidence that the matter could be determined on the papers. The Member made factual findings that the claimant pedestrian crossed a major Sydney six lane road, walked across three empty lanes and was hit by the insured vehicle travelling lawfully in bus lane.
The reviewable decision was affirmed. The claimant was wholly or mostly at fault due to crossing a street in an unsafe place (less than 100m from lights) and in an unsafe manner (on mobile phone and not keeping a proper lookout). The Member preferred the insurer’s expert evidence regarding the allegations of the insured driver’s speed and determined that the insured was driving within the speed limit. She noted that the claimant did not sustain head, abdominal or thoracic injuries, which would have been expected had the insured been travelling at a higher speed as alleged by the claimant. She also noted the surrounding evidence that the insured driver was turning and therefore was more than likely slowing to complete the turn.
The Member, referring to Justice Mitchelmore in Evic, said that the proper approach for the dispute was to:
'(a) start with answering the question of whether the claimant departed from the standard of care of a reasonable person in his position. If he did then there must be a finding of contributory negligence made against him;
(b) because there are two people involved (the insured and the claimant), the next question to determine is whether the insured breached the standard of care they owed to the claimant and if so, what were their culpable acts or omissions, and
(c) having made findings of the culpability of each, it then falls to determine the relative culpability of the two protagonists. The amount of the claimant’s culpability will determine whether he is wholly or mostly at fault.'
The Member determined that the claimant departed from the standard of care and contributed to the accident. She rejected that the insured departed from the standard of care expected of a motorist driving on a six-lane major road in Sydney beside two lanes of stationary traffic.
The Member went on to assess the claimant’s contributory negligence because he was ’one of the two people involved in the accident’, however because the insured did not depart from the standard of care, she said that the claimant’s contribution was 100%.
The Member said that if instead the accident was construed as a single vehicle accident, that:
’… because of the lack of culpability on the part of the insured driver, then adopting the approach suggested by Justice Mitchelmore in Evic I should assess the degree of Mr Kojic’s departure from the standard of care as was done in the blameless accident cases under the Motor Accidents Compensation Act 1999. In one of those cases, Davis v Swift[25], Justice Hoeben (at [52]) suggested that “in the range of possible departures from that standard of care, the appellant's conduct is not an example of a worst possible case” (noting for example the claimant was not affected by alcohol or drugs) and her damages were reduced by 80%.
I have found that Mr Kojic was not under the influence of drugs or alcohol when he attempted to cross the road and there is also no evidence to suggest he was running. However, his departure from the standard of care included, as I have found, him looking at his mobile phone, which deprived him of the ability to see and appreciate the approach of the insured’s vehicle. That conduct is in my view one example of “a worst possible case” of contributory negligence which warrants a finding of 100% contributory negligence.'
The Member determined that the claimant was 100% contributorily negligent. She said that if facts were different and she was not satisfied that the claimant was distracted by his mobile phone, that this would not be the ‘worst possible case’ but ’still a significant departure from the expected standard of care and I would have assessed his contributory negligence in the order of 80%’.
Held: The decision was affirmed. The claimant was wholly at fault.
