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Welcome to 2025 and this special edition of Sparke Helmore’s MAD Weekly.

In a short ten-minute read, we have prepared the ‘top ten’ most interesting, wave-making, and precedent-changing decisions that we saw in 2024.

All references to legislation are to the Motor Accident Injuries Act 2017 (NSW) (the Act) unless otherwise noted. An in-depth summary, analysis, and a link to each individual analysis from our MAD edition and a link to the decisions on the Australasian Legal Information Institute (AustLII) website can be viewed under each separate decision.

Commentary and analysis of trends will be provided on more substantive decisions by our CTP team and will be separately published when necessary.

1. Must there be tortious conduct for there to be fault in a statutory benefits claim?

AAI Limited t/as GIO v Evic (2024) NSW 1272 (11 October 2024)

"If a tree falls in a forest and no one is around to hear it, does it make a sound?" is a philosophical thought experiment that raises questions regarding observation and perception. In Evic, the Court asked a similar question—if a claimant’s leg is injured by his motorbike in the garage whilst alighting, was the motor accident was "wholly or mostly by the fault of the motorcyclist" and, does fault require an element of tortious conduct?

View analysis

2. A laceration is not a threshold injury

Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245 (4 October 2024)

One would assume that the frequency of a skin injury in personal injury claims is quite high, however in a document titled “Review of Minor Injury Definition in the NSW CTP Scheme”, published by the State Insurance Regulatory Authority (SIRA) in 2020, it was highlighted that 19% of all reviewed claims included a skin-type injury. The effect of Abawi is almost one fifth of claims brought under the Act will overcome the gateway to extended statutory benefits and entitlements and a right to bring a claim for damages because injury to the skin ought to be considered a non-threshold injury for the purposes of the Act.

Watch this space in 2025. There are Court of Appeal proceedings on foot, which we will comment on as soon as the decision is available.

View analysis

3. Done is better than perfect – when a concession can be rescinded

AAI Limited t/as GIO v Leverrier [2024] NSWPIC 548 (3 October 2024)

The Commission upheld an insurer’s decision to rescind a concession to permanent impairment and referred the matter for medical assessment on the basis of new information, in this decision by Member John Harris. The provision or availability of further relevant information could give rise to a situation where a different decision may be made, similar to the availability of a further medical assessment application under Division 7.5. Interpreting the legislation in another manner may lead to greater unfairness due to the severe time constraints placed on the insurer if it was unable to change its decision upon receiving new relevant information.

View analysis

4. The Duty of a Delegate

Insurance Australia Limited t/as NRMA Insurance v Momand [2024] NSWSC 1529 (4 December 2024)

The claimant was injured in a rear-end collision motor accident on 11 March 2021. Assessor Nagesh issued a Medical Assessment Certificate dated 17 October 2023, which determined that the motor accident caused Post-Traumatic Stress Disorder (PTSD) and Persistent Depressive Disorder.

The insurer applied for review of the medical assessment pursuant to s 7.26(1) of the Act. It was submitted that the diagnostic criteria could not be made out for PTSD, as the claimant was not exposed to death or threatened death in a severe motor accident (criterion A in the DSM-V). That application was refused by the Delegate on 8 February 2024 as she was not satisfied that there was a reasonable cause to suspect that the medical assessment was incorrect in a material respect (the Decision).

The insurer applied for judicial review of the Decision. The Supreme Court quashed the Decision as it was established that the Decision was infected by jurisdictional error, specifically the Delegate failed to respond to a substantial argument seriously advanced by the insurer.

View decision

5. Sometimes, fault lay in the unknown

Richards v Insurance Australia Limited t/as NRMA Insurance (No 2) [2024] NSWPIC 252

The claimant was injured in a motor accident on 21 July 2020 when her vehicle crossed over onto the incorrect side of the road and collided with another vehicle. The claimant had no recollection of the accident or circumstances leading to it.

In 2023, Schmidt AJ in the Supreme Court set aside the Member Bridie Nolan’s decision that an insurer could not rely on res ipsa loquitor to support a finding that the accident was caused wholly by the fault of the claimant. Her Honour remitted it to the Commission for determination by a different Member according to law.

In 2024, that decision came before Member Brett Williams. The Member determined that negligence could be inferred where an action that caused the accident (a car running off the road), alone and unexplained, would not occur in the ordinary course of events absent of negligence.

View analysis

6. Buyer’s remorse, or victim of deception?

Allianz Australia Insurance Limited v Yu [2024] NSWSC 31 (2 February 2024)

This decision relied on statutory and case law mechanisms operating towards recovery of settlement monies obtained by an insurance claimant where that settlement was met through reliance on fraudulent misrepresentations.

A defendant could not argue that an insurer was not induced by false representations simply because the insurer held suspicions about the integrity of a claim and chose not to investigate.  Whether an insurer’s further investigations might have discovered that a claimant’s representations were false might not be relevant to a finding of tortious deceit.  The insurer’s actual reliance on the fraudulent misrepresentation was a matter of key relevance.  Causation was a matter of fact in the circumstances.  

The Court indicated that if there was not a legislative equivalent to s 118 of the Motor Accident Compensation Act 1999, there were alternative mechanisms in tort. Will we see this tested in 2025?

View analysis

7. The cost of an error – submitting party liable to an award of costs   

AAI Limited t/as AAMI v Luke Pearce [2024] NSWSC 357

A high bar needs to be overcome to convince a Court that a submitting party should pay costs. The bar is even higher when it involves a tribunal or public body or office. Exceptional circumstances must be established to justify the costs order.

This outcome bears significant scheme importance. Errors by Commission officers that require a party to file a Summons will typically manifest in delays and costs, to the disadvantage of all parties. These proceedings illustrate a scenario where the costs implications were mitigated.

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8. The many implications of committing a serious driving offence

Insurance Australia Limited (trading as NRMA) v James Hulse [2024] NSWSC 142

The Court in this decision determined that a claimant was disentitled to statutory benefits when a claimant was found guilty of a serious driving offence by s 3.37 of the Act, even if the decision made by the Local Court was not to record the conviction against the claimant under s 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999. Not only was the commission of the offence significant to the claimant’s entitlement to statutory benefit weekly wage payments, this decision had important implications in repayment of treatment expenses also, but potentially was insignificant to contributory negligence in the damages claim.

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9. The right to be heard, and the right to be questioned

Briggs v IAG Limited t/as NRMA Insurance [2024] NSWSC 3 

The fact that there have been three judicial review proceedings and even more Commission disputes arising from this one motor vehicle accident is surprisingly not the most remarkable aspect of this claim.

In 2024, the Court set the precedent in finding that where decision makers rely on introduced information, namely a journal article, to draw “an important adverse conclusion” about the plaintiff’s case, the decision maker has a duty to notify a party of that material, that intention and to afford them an opportunity to respond.

View decision

10. A fact is a fact, and sometimes that is enough

Allianz Australia Insurance Limited v Susak [2024] NSWSC 1359

Last, but certainly not least, was the decision of Griffiths AJA handed down in Q4 of 2024. His Honour rounded out 2024 by reiterating matters we often cite in review submissions – a certificate must be read and construed entirely alongside the statement of reasons, and that certificate should never be construed so minutely with attention to detail only for the purpose of identifying an error. This is also a reminder that a fact is a fact, and once a finding of fact is made, there is “no further explanation of the reasoning” required.

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