Sparke Helmore's Motor Accidents Division (MAD) - Issue 150
19 March 2026
Welcome to the 150th 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 t/as AAMI v Leseberg (EOTL) [2026] NSWPIC 116; (23 February 2026)
Member: Elyse White
Settlement approval; damages limited to non-economic loss; claimant sustained multiple fractures; claimant passed away six-months post-accident from unrelated injuries; damages claim made by his wife and executor.
The claimant deceased (the deceased) was injured in a motor accident on 6 October 2024. He was a cyclist struck by the insured vehicle, which failed to give way to him. The deceased sustained a rotator cuff tear, pelvic fracture, multiple spinal fractures, broken ribs and abrasions to his arms and legs as a result of the motor accident.
The deceased suffered from multiple pre-accident symptoms, which according to his medical records include hypertension, chronic bronchitis, insomnia, neuralgia, Stage 3 chronic kidney disease, chronic myelocytic leukaemia, coronary artery disease and GORD. Whilst he could cycle daily, his mobility was severely restricted, and he could not walk for more than 100m.
The deceased passed away due to complications of chronic lung disease and chronic kidney disease on 24 April 2025. He was 75 years old. The executor of his will brought a claim for common law damages and the insurer admitted liability and conceded non-economic loss entitlement, which were the only damages sought as part of the common law claim. The estate executor was not legally represented.
The executor and the insurer reached a settlement in the sum of $100,000. The insurer applied to have the settlement approved as required under s 6.23 of the MAI Act. Clause 7.37 of the Guidelines required Member White to be satisfied of the following:
(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 deceased and taking into account any proposed reductions or deductions in the proposed settlement, and
(b) the executor understands the nature and effect of the proposed settlement and is willing to accept the proposed settlement.
The Member was satisfied of the above considerations. She said that the sum of $100,000 for non-economic loss damages, having considered the deceased’s injuries as well as his ongoing pain and suffering after the accident, was just, fair, and reasonable and within the range of likely potential damages assessments if the claim was to proceed to assessment taking into account the nature and extent of the claim, the injuries, disabilities, impairments and losses sustained by the deceased.
Held: The settlement was approved.
Merit Review
Mohit v AAI Limited t/as AAMI [2026] NSWPICMR 5; (23 February 2026)
Merit Reviewer: Katherine Ruschen
Statutory benefits dispute about calculation of pre-accident weekly earnings (PAWE); whether earning continuously where overseas travel intervenes–where claimant student with work restrictions on student visa subclass 500–interpretation of clauses 4(2)(a); 4(4) ’earning continuously; 4(2)(b) and (4(3) ’significant change in earning circumstances’ relevance of Allianz Insurance Australia Limited v Shahmiri, and Wei v Allianz Australia Insurance Limited.
The claimant was injured in a motor vehicle accident on 3 February 2025. On 12 March 2025, the insurer calculated the claimant’s PAWE at $1,314.40 based on his 2023/2024 income tax return. The claimant disagreed and lodged a merit review application.
In the claimant’s submissions, he stated his position was distinguishable from the case of Allianz v Shahmiri as he was a ’self-employed or sole trader or student or deemed worker, whose income depends solely on active work'. The claimant submitted that the insurer should have excluded the weeks he did not earn income at all, as he was overseas during periods in 2023 and 2024 and received no earnings during these periods.
The claimant relied on the merit review case of Kipkorir v Insurance Australia Limited t/as NRMA Insurance for his PAWE to be calculated under clause 4(2)(a). The claimant submitted that he was a student at the time of the accident, and his earnings were restricted as per his student visa in July 2023. The claimant further submitted this significant change could enliven clause 4(3), as the visa restrictions were ’beyond his control’.
Further, in the alternative, the claimant submitted his PAWE should have been calculated in accordance with clause 4(2)(a1) as he was self-employed for at least 26 weeks in the first year of the two years prior to the accident. The claimant argued that PAWE should be calculated as an average of the first year of the two years preceding the accident, before his visa restrictions came into effect.
Lastly, the claimant submitted his PAWE should have been calculated under clause 4(2)(c) and or clause 5, on the basis he would have commenced working additional hours with a new employer in March 2025, and that he was a full-time student at the time of the accident, respectively.
The insurer submitted that its own PAWE decision should be set aside as further information indicated their PAWE calculation did not accurately represent the claimant’s pre-accident earnings.
The insurer submitted that the correct calculation of PAWE should be subject to clause 4(1), where it is an average of gross earnings followed by a deduction of business expenses received during the 12 months before the accident. The insurer reiterated that the matter of Shahmiri is precedence and that its findings should be applied.
The insurer also submitted that the claimant’s credit was in issue and relied on a subsequent decision in AAI Limited t/as AAMI v Mohit [2025] NSWPICMR 38, involving the same claimant’s refusal to cooperate. The insurer requested a direction for the claimant to produce further documentation between the periods 3 February 2024 to 2 February 2025, and the individual tax return and notice of assessment for the financial year ending 30 June 2023.
The Merit Reviewer referred to the matter of AAMI v Mohit and noted that she determined it on 15 December 2025, concluding the claimant failed to disclose of statutory benefits received from another insurer, and failed to provide documents reasonably required for the insurer to assess post-accident earnings.
The Merit Reviewer proceeded to issue a direction for the claimant to provide further documentation in relation to his Uber employment, unredacted bank statements, and copies of tax returns and business activity statement. The claimant failed to fully comply with these directions.
The claimant also failed to attend a preliminary teleconference requested by himself.
The Merit Reviewer determined the matter on the papers.
Ultimately, the Merit Reviewer agreed with the insurer’s submissions, concluding that travel overseas does not amount to a cessation of self-employment and referred to the cases Wei v Allianz and Shahmiri. In addition, the Merit Reviewer disagreed with the claimant’s views on Sch 1 clause 5, stating that the clause only applies when full time students do not meet the definition of earner under clause 2. Similarly, the Merit Reviewer determined the claimant’s circumstances did not meet any of the other exceptions in clause 4(2).
Therefore, the Merit Reviewer advised the calculation of the claimant’s PAWE must fall under clause 4(1), however, further documentation was required to substantiate the claimant’s claim.
Interestingly, the Merit Reviewer stated the claimant’s credit and validity of the claim was in issue, given his prior non-disclosures and misrepresentations as to his post-accident earnings. The Merit Reviewer further stated that without the requested documentation (which the claimant had failed to provide twice) there was insufficient information to determine PAWE.
Held: The reviewable decision was set aside due to insufficient information to assess PAWE – the assessment of PAWE remitted back to insurer under Sch 1, clause 4(1).
Miscellaneous Claims Assessment
Annas v Allianz Australia Insurance Limited [2026] NSWPIC 111; (19 February 2026)
Member: Alexander Bolton
Whether claimant wholly or mostly at fault under ss 3.11 and 3.38 - claimant rear ended insured driver just prior to roundabout when insured changed lanes in front of claimant abruptly – GIO v Evic and Allianz v Shuk considered and applied.
The claimant was injured in a motor vehicle accident at a roundabout in Bankstown on 11 May 2022. He was driving in the left lane of two lanes approaching a roundabout with the insured driver in the right lane one car ahead. The insurer driver ‘suddenly’ changed lanes whilst his right indicator was still showing. The insurer driver moved across in front of the claimant’s vehicle and unexpectedly stopped. The claimant collided with the rear of the insured’s vehicle.
The insurer denied liability beyond 52 weeks for the statutory benefits claim on finding that the accident was mostly the fault of the claimant, assessing contributory negligence at 75%. The insurer relied on photographs produced by the claimant, which showed the final resting position of both vehicles. The insurer stated that given the insured’s vehicle was wholly to the left of the claimant’s vehicle, then the change of lanes could not have occurred instantaneously. The insurer submitted that the insured driver was 25% negligent in his manoeuvre contrary to road rules, however, the claimant’s obligation to keep a proper lookout and respond to obvious hazards was of a more significant weight.
The claimant applied to the Commission and argued he was not mostly at fault, as the insured driver’s negligence caused him no opportunity to stop safely. The claimant raised Rule 147 of the Road Rules (2014) – 'moving from one marked lane to another marked lane by crossing a continuous line separating the lanes'.
Member Bolton was allocated and noted the relevant authorities for assessing fault and contributory negligence being Evic and Shuk. The Member considered the apportionment of culpability and relied on the photographs obtained by Brooksight Investigations and those taken by the claimant himself. The Member noted the positions of both vehicles, the point of impact, and the claimant’s admission he was travelling at 30km/hr prior to the accident.
The Member determined that the claimant was mostly at fault for the accident as the claimant ’should have had time, if he was keeping a proper lookout, to avoid impacting with the rear of the insured car… and should have been taking action in any event to slow down.’
On this basis, the Member agreed with the insurer’s assessment of culpability, noting the insured driver was partially negligent, and assessed the insured driver 25% liable for the circumstances causing the collision.
Held: The claimant was found to be mostly at fault, with contributory negligence assessed at 75%.
Medical Assessment Review Panel
Allianz Australia Insurance Limited v Alsabahi [2026] NSWPICMP 136; (24 February 2026)
Review of medical assessment certificate for threshold injury – initially diagnosed with specific phobia disorder - re-examination by review panel found adjustment disorder more appropriate.
The claimant was injured in a motor accident on 10 December 2022, when his vehicle was T-boned by the insured’s vehicle. The insurer declined liability for statutory benefits after 26 weeks, as it determined the claimant had sustained a threshold injury. The claimant lodged a dispute in the Commission and Medical Assessor Doron Samuell determined on 31 October 2024 that the claimant sustained more than a threshold injury in the accident. Specifically, Assessor Samuell determined that the claimant met the diagnostic criteria for a specific phobia, and that it was as a result of the accident.
The insurer satisfied the President’s Delegate that there was reasonable suspicion of a material error in the assessment of Assessor Samuell. The insurer successfully argued that Assessor Samuell’s diagnosis failed to comply with the requirements of the DSM-5-TR and Clause 5.11 of the Guidelines, specifically no engagement with Criterion E for specific phobia.
The Review Panel commissioned a re-examination of the claimant by two Medical Assessors. The Medical Assessors reviewed the DSM-5-TR criteria for specific phobia and did not find sufficient evidence for Assessor Samuell’s previous diagnosis. The claimant did not have a fear of driving, and he had no fear or avoidance of vehicles.
The Panel revoked Assessor Samuell’s Certificate and issued a new determination that the claimant was suffering from an adjustment disorder from the motor accident, and that this was a threshold injury.
Held: The original medical Certificate was revoked and a new Certificate was issued finding an adjustment disorder caused the accident, which was deemed a threshold injury.
