#PeteLawNotes – Library

#61 – How Far Does the Concept of “Dangerous Situation” Extend?

Decision

Ovsepyan v AAI Limited t/as AAMI [2026] NSWPIC 500

Sixty-Second-Or-Less Summary

A Claimant is stationary at a red light. The Insured vehicle collides with the rear of his vehicle. The Insured driver proceeds to leave his vehicle and physically assault the Claimant. Whilst fleeing the scene, the Insured driver collides with the Claimant’s vehicle for a second time.

Were the Claimant’s injuries sustained in a motor accident?

In Ovsepyan v AAMI, a PIC Member concluded that the two collisions and the physical assault constituted one continuous “dangerous situation” caused by the driving of the Insured vehicle. It followed that any injuries sustained during either collision, or the assault, were sustained in a “motor accident”.

Principles

✅ An injured person is entitled to statutory benefits if they are injured in a motor accident in the State of New South Wales.

✅ What constitutes a “motor accident” is defined in section 1.4 of the Motor Accidents Injuries Act 2017 (MAIA).

✅ The definition of “motor accident” extends to death or injury arising from “a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control”.

Facts

On 8 March 2025, the Claimant was driving on Bridge Road at Stanmore. He was waiting for the lights to turn green so he could make a right-hand turn.

The Insured vehicle collided with the rear of the Claimant’s vehicle. The Claimant pulled over to the kerb in order to exit his vehicle. As he opened the door, however, the Insured punched him multiple times in the face.

After a further scuffle, both parties returned to their vehicles. The Insured, however, collided with the Claimant’s vehicle a second time as he fled the scene.

The Insurer denied liability for statutory benefits on the grounds that the Claimant’s injuries were sustained during the physical assault rather than as a consequence of either collision.

The Claimant lodged a Miscellaneous Assessment Application in the Commission.

The Member’s Decision

The Member found that the Claimant’s injuries were sustained in a motor accident for the following reasons:

🟪 The entire chain of events, including the initial impact, the subsequent physical assault and the subsequent impact were a single event. Each incident would not have occurred had the preceding incident not occurred.

🟪 More specifically, the physical assault was part of the “motor accident” because it would not have occurred if the initial impact did not occur.

🟪 The Claimant suffered injury as a result of, and caused during, a dangerous situation caused by the driving of the Insured vehicle, in that the physical assaults would not have a occurred, but for the first collision, and led directly to the second collision, all of which constitutes a single event.

My Perspective

The decision in Ovsepyan illustrates how wide the concept of “dangerous situation” in the definition of “motor accident” in section 1.4 can be stretched to cover incidents which are not traditionally recognised as motor accidents.

The “dangerous situation” concept was introduced to the definition of “motor accident” in the October 2006 amendments to the Motor Accidents Compensation Act 1999. That definition was copied across to MAIA.

It follows that the “dangerous situation” concept has been part of the definition of “motor accident” for some 20 years.

In this case, the Claimant was physically assaulted during the short period in between two separate collisions between the Insured vehicle and his vehicle. Absent the concept of “dangerous situation”, it would be difficult to see how the injuries caused by the assault (as distinct from either collision) were caused either during the driving of the Insured vehicle or during a collision with the Insured vehicle.

The PIC Member concluded, however, that the initial collision caused “a dangerous situation caused by the driving of [the Insured] vehicle”.

Evidently, the dangerous situation found by the Member was that the Insured’s act of running into the rear of the Claimant’s stationary vehicle would cause the Insured driver to proceed to leave his vehicle and physically assault the Claimant.

PJH

#60 – How Does Evic Apply to Passengers Injured on a Bus?

Decision

Blasco v Allianz Australia Insurance Limited [2026] NSWPIC 482

Sixty-Second-Or-Less Summary

An elderly Claimant, with mobility issues is sitting in one of the collapsible chairs on a public bus. She thinks she may have missed her stop, shifts in her seat and falls onto the floor of the bus.

Is the Claimant wholly or mostly at fault for her accident?

In Blasco v Allianz, a PIC Member found that the Claimant departed from the standard of care required of a reasonable passenger with mobility issues by choosing an inappropriate seat and by attempting to stand whilst the bus was in motion rather than calling out to the driver or waiting for the next stop. The Member found that the driver did nothing wrong. The Member, therefore, found that the Claimant was wholly or mostly at fault.

Principles

✅ Pursuant to s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (MAIA), a claimant is not entitled to ongoing statutory benefits, beyond 52 weeks, if their contributory negligence exceeds 61%.

✅ In accidents involving more than one protagonist, the claimant’s contributory negligence is assessed by reference to the relative culpability of each protagonist.

✅ In accidents involving only one culpable party, contributory negligence is assessed by reference to how far the claimant’s conduct departed from the required standard of care.

Facts

On 9 October 2023, the Claimant was a passenger on a bus travelling in Surry Hills. She was 76 years of age and used a walking stick to mobilise.

The Claimant was seated in the first of the collapsible seats running along the driver’s side of the bus. The two collapsible seats next to her were flipped up into an upright position.

The driver of the bus checked the mirror which gave him a view down the bus before closing the doors and moving away from a bus stop. The bus accelerated from its stationary position (as it had to do to continue its journey) but the CCTV cameras indicated that the bus did not make any sudden or lurching movements.

The CCTV cameras depicted that the Claimant started moving in her seat, but that she remained seated.

The Claimant proceeded to slip off the edge of the seat

The Insurer denied liability for ongoing statutory benefits on the grounds that the Claimant was wholly or mostly at fault for her accident. That decision was affirmed on Internal Review. The Claimant lodged a Miscellaneous Assessment Application in the Commission to resolve the most-at-fault dispute.

The Member’s Decision

The Member found that the Claimant was mostly at fault for her accident.

In making this finding, the Member concluded that the Claimant departed from the standard of care required of her for the following reasons:

🟪 A reasonable person in the Claimant’s position, with knowledge of her mobility challenges, would have chosen a more suitable seat in the bus. Specifically, one of the seats that are perpendicular to the aisle and are fixed to the floor would have given the Claimant greater protection. That kind of seat also offers a structure in front of the seat which the Claimant could hold onto whilst standing or sitting.

🟪  A reasonable person in the Claimant’s position, who was not sure what stop they need to get off at, would have maintained a proper lookout for the bus stop.

🟪  A reasonable person in the Claimant’s position would have realised the bus was about to be set in motion when they saw the doors close and remained seated.

🟪  A reasonable person in the Claimant’s position, who realised they were about to miss their stop, would have called out to the driver and waited for him to open the doors or stop the bus before standing up.

🟪 A reasonable person in the Claimant’s position, who realised they had missed their stop, would not have tried to stand up without holding on to the bus for support or would have waited until the next stop.

The Member proceeded to consider whether the bus driver departed from the standard of care required of him and determined that he did not. In general terms, the Member decided that the bus driver was not required to keep a constant eye on a passenger with mobility issues and that no aspect of the driver’s control of the bus caused the Claimant to fall from her seat.

Having found that the Claimant was the only party who was culpable, the Member concluded that she was wholly or mostly at fault irrespective of which approach to assessing her contributory negligence was adopted:

🟪 If the relevant test was relative culpability, then she was 100% responsible and the bus driver was 0% responsible.

🟪 If the relevant test was the extent to which the Claimant departed from the required standard of care, then her departure would be measured at 75% given that her conduct was significant, but not in the worst case.

My Perspective

The decision in Blasco provides another application of the Supreme Court’s decision in Evic.

In Evic, the Supreme Court confirmed that the only issue in a most-at-fault dispute is the level of the claimant’s contributory negligence. The claimant does not have to prove want of care by the insured driver, but the insured driver’s want of care is relevant to the question of relative culpability. The claimant’s want of care must be compared to the insured driver’s want of care in order to assess the claimant’s contribution to the cause of the accident.

In multi-vehicle accidents, contributory negligence is assessed by reference to the relative culpability of the parties. When there is only one culpable party, contributory negligence is assessed by reference to the extent that the claimant’s conduct departed from the required standard.

This dispute was complex because there were two parties involved – the passenger and the driver – but the passenger was the only party to depart from the standard of care required of them.

The Member looked at the Claimant’s contributory negligence through both the relative culpability lens and the departure from the standard of care lens and found that the Claimant was mostly at fault on each basis.

PJH

#59 – Supreme Court Clarifies Scope of Threshold Injury Dispute

Decision

AAI Ltd t/as GIO v Mohammed [2026] NSWSC 991

Sixty-Second-Or-Less Summary

A threshold injury dispute proceeds to the Commission for assessment. The Claimant lists supraspinatus tendinosis and subacromial bursitis as injuries to be assessed. The Review Panel finds a non-threshold injury based on evidence of a partial thickness tear of the supraspinatus tendon.

Did the Review Panel stray outside the scope of the dispute when identifying an injury not raised by the Claimant in his application?

In GIO v Mohammed, the Supreme Court held that the scope of a medical dispute is a question of fact to be determined by the circumstances of each case. In this matter, the overall tenor of the medical evidence, primary submissions, primary Medical Assessor’s decision and submissions made in response to Review Panel directions made it clear that a supraspinatus tear was within the scope of the dispute.

Principles

✅ The ambit of a medical dispute is essentially a question of fact and each case will turn on its own particular facts and circumstances.

✅ Whilst the terms of an application for medical assessment are plainly relevant in identifying the ambit of the dispute, regard may also be had to the parties’ claims, submissions or medical evidence which may have the effect of broadening (or narrowing) the ambit of the dispute.

Facts

The Claimant was injured in a motor accident on 2 May 2022.

The Insurer denied liability for ongoing statutory benefits on the grounds that the only injuries sustained in the motor accident were threshold injuries.

The Claimant lodged a threshold injury dispute in the Commission. He listed a number of injuries for assessment, including:

“Left shoulder – supraspinatus tendinosis involving his left shoulder together with subacromial bursitis”

On 10 November 2025, the Medical Review Panel certified that the motor accident caused a non-threshold injury to the Claimant’s left shoulder, in the form of:

“Partial thickness tear of the supraspinatus tendon”

The Insurer sought Judicial Review in the Supreme Court on the grounds that:

1️⃣ The scope of the medical dispute referred to the Review Panel for assessment did not include a tear of the left supraspinatus tendon because the dispute was limited to the specific left shoulder injury listed in the application.

2️⃣ The Insured was denied procedural fairness because the Review Panel did not give it notice that it might find that an ultrasound report showing no evidence of a tear was incorrect.

Supreme Court Decision

The Supreme Court rejected the Insurer’s first ground for review for the following reasons:

🟪 The ambit of a medical dispute is essentially a question of fact and each case will turn on its own particular facts and circumstances.

🟪 The terms of an application for medical assessment are plainly relevant in identifying the ambit of the dispute. Regard, however, may also be had to the parties’ claims, submissions or medical evidence which may have the effect of broadening (or narrowing) the ambit of the dispute.

🟪 Whilst the Claimant did not list a supraspinatus tendon tear in his application, it was clear that the parties regarded the presence or absence of a tear to be relevant to the question of threshold injury. For example, the Insurer mentioned the absence of supraspinatus tear in its submissions. The primary Medical Assessor also specifically looked for, but did not find, a tear.

🟪 Furthermore, as a result of a direction made by the Review Panel for the production of medical records, two reports were produced which reported a partial thickness tear of the supraspinatus tendon. In response to the Review Panel’s request for submissions as to whether the tear was caused by the motor accident, the Insurer provided detailed submissions without raising any objection that the issue was outside the scope of the dispute. Whilst not determinative, this suggested that the presence, or otherwise, of a tear was within the contemplation of the parties.

The Supreme Court dismissed the Insurer’s second ground for a number of factual reasons, which disclosed no general point of principle. The Supreme Court disagreed with the Insurer’s characterisation that the Review Panel had decided that the ultrasound was wrong and the Supreme Court noted that the Insurer had, in any event, made detailed submissions about the weight to be given to various investigations including the subject ultrasound report.

The Supreme Court, therefore, dismissed the Insurer’s application for Judicial Review.

My Perspective

The decision in Mohammed suggests that the whole of the procedural history must be taken into account in order to determine the scope of a medical dispute.

Contrary to the general understanding of Mandoukos, the dispute is not necessarily limited to the injuries listed by the parties in the Application and Reply forms. The ambit of the dispute may be widened or narrowed by the subsequent conduct of the parties in lodging documents, making submissions or responding to directions made by the Commission.

Based on the reasoning in Mohammed, it appears that if the conduct of the parties, over the life of the dispute, suggests that a particular injury was within their contemplation, then a finding is likely to be made that the scope of the dispute included that injury.

PJH

#58 – How Most at Fault Disputes are Assessed When Only One Party is Culpable

Decision

Wallace v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 465

Sixty-Second-Or-Less Summary

A Claimant brings his motorcycle to a stop behind a stationary vehicle which has stopped for a legally parked car. The Claimant decides to merge to the lane to his right to go around the stationary vehicles, but collides with the rear passenger side of the Insured vehicle. The Insured was driving within the speed limit in their lane at all material times.

Is the Claimant wholly or mostly at fault?

In Wallace v IAG, a PIC Member determined that the Claimant failed to keep a proper lookout and that the Insured was not at fault in any way. The PIC Member proceeded to assess the Claimant’s departure from the required standard of care at 75% and found, therefore, that the Claimant was mostly at fault.

Principles

✅ Pursuant to s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (MAIA), a claimant is not entitled to ongoing statutory benefits, beyond 52 weeks, if their contributory negligence exceeds 61%.

✅ Where the claimant is the only party at fault – irrespective of the number of vehicles involved in the accident – contributory negligence is assessed by reference to how far the claimant’s driving departed from the required standard of care.

Facts

On 8 November 2024, the Claimant was riding a motorcycle south in lane one of City Road near Adamstown. He stopped his motorcycle behind a stationary blue vehicle. When the Claimant attempted to change lanes, however, there was a collision between his motorcycle and the Insured vehicle. The front of the Claimant’s motorcycle collided with the rear passenger side of the Insured vehicle.

The Member accepted that the Insured was driving within the speed limit and had been travelling within her lane at all material times.

The Insured denied liability for ongoing statutory benefits on the grounds that the Claimant was wholly or mostly at fault for his accident. That decision was affirmed on Internal Review and the Claimant lodged a Miscellaneous Assessment application in the Commission.

Member’s Decision

The Member found that the Claimant was mostly at fault for the following reasons:

🟪 The Claimant was at fault because he either did not look for oncoming traffic, before changing lanes or, if he did not, it was no more than a cursory glance. If he had kept a proper lookout, he would have seen the Insured vehicle in lane two.

🟪 The Insured was not at fault given that she was maintaining a proper lookout and had been driving below the speed limit in lane two at all material times. She was not required to slow down. Even if she had, the accident may still have occurred given that the Claimant collided with the rear passenger side of her vehicle.

🟪 Given that the Claimant was the only culpable party, contributory negligence is measured by the extent to which the Claimant departed from the standard of care required of him. In the circumstances of this claim, a reasonable finding is 75%.

My Perspective

The decision in Wallace confirms how contributory negligence is assessed – in the context of a most at fault dispute – when the Claimant is the only party at fault.

The Supreme Court decision in Evic has changed the approach to how contributory negligence is assessed in most at fault disputes.

In summary:

🟪 Where more than one party is culpable, an assessment must be made of what both parties did wrong and place a percentage on their relative culpability.

🟪 In single vehicle accidents, however, relative culpability does not work because only one party is culpable. In those circumstances, contributory negligence is assessed by reference to how far the driver departed from the standard of care required of them. That departure might range from a momentary lapse of concentration (low percentage departure) to gross negligence (high percentage departure).

🟪 Which test applies turns on how many drivers were culpable not how many vehicles were involved in the accident. As such, the single vehicle approach still applies – as in this case – if there are two drivers involved in an accident but only the Claimant was at fault.

PJH

#57 – London Calling: A Trip to the UK Does Not Constitute “Rehabilitation”

Decision

Woolfman v Lifetime Care and Support Authority [2025] NSWPIC 666

Sixty-Second-Or-Less Summary

A Claimant suffers serious injuries in a motor accident. She seeks to recover the cost of travel to the UK, to visit her family, as a treatment and care expense on the grounds that the trip is good for her mental health and general wellbeing.

Is the trip to the UK a form of rehabilitation?

In Woolfman v LTCS, a PIC Member concluded that the trip to the UK was not a form of rehabilitation. Whilst the trip would undoubtedly contribute to the Claimant’s wellbeing, the same could be said for most activities of life, including meeting family and friends, nutrition, sleep and exercise.

Principles

✅ A Claimant may claim the cost or rehabilitation, as defined by section 1.4 of the Motor Accident Injuries Act 2017 (MAIA), as a treatment and care expense.

✅ The fact that an activity is good for the Claimant’s mental health and general wellbeing, however, is insufficient to render the activity a form a rehabilitation.

Facts

The Claimant suffered very significant injuries in a motor accident on 16 September 2019.

After the claim for damages under common law resolved, the Claimant sought to recover the cost of travel to the United Kingdom as a treatment and care expense.

The Claimant argued that travelling to the UK was a form of rehabilitation because it was good for her mental health and her general wellbeing.

The legal question of whether the claimed overseas travel constituted a request for treatment and care was referred to a PIC Member as a Miscellaneous Assessment.

Relevant Definitions

The definition of “treatment and care” in section 1.4 of MAIA includes “rehabilitation”.

“Rehabilitation” is separately defined in section 1.4 as follows:

“Rehabilitation of an injured person, means the process of enabling or attempting to enable the person to attain and maintain—

(a)  the maximum level of independent living, and

(b)  full physical, mental, social and vocational ability, and

(c)  full inclusion and participation in all aspects of life.”

Member’s Decision

The Member found that the proposed trip to the UK did not fall within the definition of “rehabilitation” or, more broadly, the definition of “treatment and care” for the following reasons:

🟪 There is little doubt that the proposed trip to the UK to see the Claimant’s family contributed to the Claimant’s wellbeing. That alone, however, is insufficient to render the trip a form of “rehabilitation”. Many activities of life – such as meeting friends and family, nutrition, sleep and exercise – contribute to an individual’s wellbeing but do not constitute “rehabilitation”.

🟪 The Claimant frequently visited her family in the UK prior to the accident and there was evidence that the purpose of the trip was to celebrate her grandfather’s 100th birthday and to meet a new niece and nephew. It follows that the trip would likely have occurred even if the Claimant was not injured.

My Perspective

The decision in Woolfman confirms that there are limits to what falls within the definition of “rehabilitation” in s 1.4 of MAIA.

In prior PIC Decisions, the following items have been found to constitute a claim for “rehabilitation”:

🟪 Private transport to school.

🟪 An English language course.

🟪 A wheelchair modified vehicle.

Importantly, in each of the above disputes the item sought involved a process which maximised the claimant’s ability to participate in education, training, employment and/or recreation.

(Whether each item was reasonable and necessary and related to the injuries sustained in the accident was a separate issue to be determined by a Medical Assessor.)

The Woolfman decision, however, highlights that there are a vast multitude of activities which help an injured claimant with their mental health and their general wellbeing. As the Member pointed out, eating well and getting a good night’s sleep is good for a claimant’s general wellbeing, as is seeing friends and family.

(One could readily add: a night at the movies, a quiet night at home with a good book, watching your favourite sports team (provided they win), downloading a forgotten song you used to love, a good cup of coffee, a weekend away at a small luxury lodge, binge-watching a series on Netflix etc etc…)

The Member reasoned, however, that just because an activity is good for the claimant does not mean that it constitutes “rehabilitation”, specifically, or “treatment and care”, more generally.

Implicit in the Member’s reasoning is that a good or service does not constitute “rehabilitation” unless it is part of a process which helps the claimant maximise their independence in education, employment or recreation.

PJH

#56 – Overtaking Motorcyclist Most at Fault

Decision

Antoniou v Allianz Australia Insurance Limited [2026] NSWPIC 428

Sixty-Second-Or-Less Summary

The Claimant is riding his motorcycle in the lane closest to the median strip. His lane, however, is coming to an end, so he has to merge to the lane to his left. The Claimant accelerates to a speed exceeding the speed limit in order to overtake a taxi. He proceeds to change lanes before braking in the taxi’s path, causing a collision.

Is the Claimant wholly or mostly at fault?

In Antoniou v Allianz, a PIC Member found that both drivers departed from the required standard of care. The Member concluded, however, that the Claimant’s relative culpability exceeded that of the Insured and assessed the Claimant’s contributory negligence at 80%.

Principles

✅ A Claimant is not entitled to ongoing statutory benefits, beyond 52 weeks if their contribution to the cause of the accident exceeds 61%.

✅ In most-at-fault disputes, the only issue is whether the Claimant’s contributory negligence exceeds 61%.

✅ In multi-vehicle accidents, the Claimant’s contributory negligence is assessed by reference to the relative culpability of each vehicle involved in the accident.

Facts

On 24 May 2025, the Claimant was riding his motorcycle on Flinders Street near the intersection of Oxford Street in Surry Hills when he was involved in a motor accident with a taxi.

The Claimant was riding his motorcycle in the lane closest to the median strip and the Insured taxi was travelling in the lane to his left.

Importantly, the Claimant’s lane was coming to an end and it follows that he had to merge into the Insured taxi’s lane at some point in the immediate future

Dashcam footage from the Insured taxi demonstrated that it was travelling at 53 to 55 kph when the Claimant overtook the vehicle on its right, whilst still in the lane closest to the median strip.

As his lane ended, the Claimant pulled in front of the Insured taxi and braked.

The Insurer denied liability for ongoing statutory benefits on the grounds that the Claimant was wholly at fault for the accident. That decision was affirmed on Internal Review and the Claimant lodged a Miscellaneous Assessment in the Commission.

Member’s Decision

The Member found that the Claimant departed from the standard of care expected of him for the following reasons:

🟪 When faced with a lane which was ending, a reasonable person in the Claimant’s position would not accelerate in an attempt to overtake a vehicle travelling in the lane into which they wanted to merge. A reasonable person would fall back and merge behind the other vehicle.

🟪 Given that the speed limit was 50 kph and the Insured taxi was travelling at 53 to 55 kph, the Claimant had to breach the speed limit in order to overtake the Insured taxi.

🟪 There was insufficient room for the Claimant to brake safely after overtaking the Insured taxi and merging into its lane.

The Member proceeded to assess the Insured driver’s standard of driving and found a departure from the required standard for the following reasons:

🟪 The Insured should have been aware of the Claimant’s presence given that the vehicles had been travelling side by side for a period and the Claimant’s motorcycle would have been visible in the Insured taxi’s mirrors.

🟪 The Insured should have anticipated that the Claimant might increase his speed and try to overtake his vehicle.

🟪 Had the Insured noticed the Claimant riding his motorbike past his taxi, he would have had more time to react earlier than he did.

Whilst both parties were partially at fault, the Member concluded that the Claimant’s relative culpability outweighed the Insured’s relative culpability.

On that basis, the Member found that the Claimant was 80% responsible for the accident and, therefore, most at fault.

My Perspective

The decision in Antoniou represents another application of the Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272.

The Member applied the following process:

🟪 Start from the premise that the only issue is whether the Claimant’s contributory negligence exceeds 61%.

🟪 First, assess whether the Claimant’s driving behaviour departed from the required standard. (If there is no departure, that is the end of the matter.)

🟪 Second, once a finding had been made that the Claimant departed from the required standard, assess whether the Insured’s driving behaviour departed from the required standard.

🟪 Third, once a finding was made that both parties were at fault, place a percentage on each party’s relative culpability.

Based on her factual findings, the Member found that the Claimant was 80% responsible and, therefore, most at fault.

PJH

#55 – “Driving” Includes Acts Ancillary to Driving

Decision

Wall v Allianz Australia Insurance Limited [2026] NSWPIC 418

Sixty-Second-Or-Less Summary

A motorcyclist has to apply his emergency brakes because an unidentified vehicle suddenly appears in his path, causing the motorcycle to capsize. The motorcyclist injures his biceps insertion tendon when trying to lift his motorcycle from the road in order to continue his journey.

Was the Claimant’s injury sustained in a “motor accident”.

In Wall v Allianz, a PIC Member found that (a) the causal requirement was met because his motorcycle capsized as a result of the driving of the unidentified vehicle and (b) the temporal requirement was met because the act of lifting the motorcycle from the road was ancillary to continuing to drive the motorcycle.

Principles

✅ The gateway requirements in section 1.9 of the Motor Accident Injuries Act 2017 (MAIA) are not met unless the Claimant satisfies both a causal requirement and a temporal requirement.

✅ The causal requirement mandates that the claimant’s injury must be the result of the use or operation of a motor vehicle.

✅ The temporal requirement mandates that the claimant’s injury must be sustained during the use or operation of a motor vehicle.

Facts

On 17 February 2026, the Claimant was riding his motorcycle when he had to brake quickly when an unidentified vehicle appeared, without warning, from his blind spot. There was no collision between the vehicles.

The Claimant’s motorcycle stalled and fell to its side. Unsurprisingly, the Claimant also fell to the ground. At this point, however, the Claimant was uninjured.

It was only when he attempted to lift his motorcycle that the Claimant sustained a rupture of his left biceps insertion tendon.

The Insurer denied liability on the grounds that the Claimant’s injury was not sustained in a motor accident. The Insurer reasoned that once the motorcycle had been knocked over it was no longer being driven. That decision was affirmed on Internal Review.

The Claimant lodged a Miscellaneous Assessment dispute in the Commission.

Relevant Provisions

Section 1.9 of MAIA provides:

(1)  This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—

(a)  the driving of the vehicle, or

(b)  a collision, or action taken to avoid a collision, with the vehicle, or

(c)  the vehicle’s running out of control, or

(d)  a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.

(2)  This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents.

The Member’s Decision

The Member found that the Claimant’s injury was sustained in a motor accident for the following reasons:

🟪 Section 1.9 of MAIA is a gateway provision for any claim under the Act. The onus is on the Claimant to establish that their injury resulted from an incident or accident involving the use or operation of a motor vehicle that was a result of and was caused during the driving of the vehicle, or a collision (or action taken to avoid a collision) with the vehicle, or the vehicle’s running out of control or a dangerous situation caused by, in general terms, the use or operation of the vehicle.

🟪 In this claim, the Claimant had to demonstrate both a causal requirement and a temporal requirement; namely that the injury was a result of the driving of the vehicle (causal requirement) and was caused during the driving of the vehicle (temporal requirement).

🟪 The causal requirement was met because the Claimant had to take evasive action to avoid a collision with the unidentified vehicle which appeared suddenly from his blind spot. That is what caused the Claimant’s motorcycle to fall to the ground.

🟪 The temporal requirement was met because the Claimant’s injury was sustained in the course of picking up his motorcycle with the intention of continuing his journey. Given that the journey could not continue until the motorcycle was upright, the injury was sustained during the driving of the motorcycle.

My Perspective

The decision in Wall confirms that, for the purpose of section 1.9, the concept of “driving” involves more than manipulating the steering wheel and depressing either the accelerator or the brake pedals. The Member accepted that “driving” includes acts ancillary to, or in preparation of, putting the vehicle in motion.

In coming to this decision, the Member applied the Court of Appeal’s decision in QBE Insurance (Australia) Ltd v Smith by his next friend Avard & Anor [2005] NSWCA 130.

In that matter, a nine-year-old boy was asked by his father to leave the vehicle, cross a road and open a gate. The boy’s father waited in the vehicle. The motor was still running. The left-hand indicator was activated. The father’s foot remained on the brake. The boy left the vehicle, as directed by his father, and ran around the front of the vehicle in order to cross the road. He failed, however, to see a truck travelling from his right and was run down.

The Court of Appeal determined that the boy’s injuries were “a result of and caused during” the driving of the father’s vehicle because the father was still in the course of driving the vehicle when the injury occurred and both the placement of the vehicle and the father’s failure to ensure that it was safe to cross the road materially contributed to the causation of the injury.

Central to this reasoning process was the notion that the father could not drive the vehicle onto the property until the gate was opened. It followed that the acts required to open the gate fell within the concept of “driving”, particularly given that they were at the direction of the driver.

The Member also relied upon the District Court’s decision in Hoptman v The Entrance Red Bus Services Pty Ltd [2026] NSWDC 165.

In that matter, a District Court Judge applied Smith and concluded that an injury sustained whilst a bus driver closed the doors of a stationary bus was “a result of and caused during” the driving of the bus.

In short, the bus could not continue its journey until passengers completed the process of exiting and entering the bus. It follows that the disembarkation and embarkation process is part of “the driving” of the bus.

In this dispute, after reviewing the above decisions, the Member concluded that the act of lifting the motorcycle from the road was part of the driving of the motorcycle.

PJH

#54 – Supreme Court finds Consequential Surgery Constitutes “Injury”

Decision

Mandoukos v Allianz Australia Insurance Ltd [2026] NSWSC 911

Sixty-Second-Or-Less Summary

A motor accident causes a threshold injury to the Claimant’s cervical spine. The Claimant, however, subsequently undergoes cervical surgery which involves the removal of some bone.

Does the consequential surgery constitute a non-threshold injury?

In Mandoukos v Allianz, the Supreme Court concluded that bodily changes caused by consequential surgery can constitute a non-threshold injury if those changes fall outside the definition of “soft tissue injury” in s 1.6(2) of the Motor Accident Injuries Act 2017 (MAIA).

Importantly, however, the Supreme Court accepted that bodily changes caused by the consequential surgery constituted an “injury” as defined by section 1.4 of MAIA.

Principles

✅ A Claimant is not entitled to ongoing statutory benefits or common law damages if their only injuries are threshold injuries as defined by section 1.6 of the Motor Accident Injuries Act 2017 (MAIA).

✅ Bodily changes caused by consequential surgery constitute an “injury”, as defined by section 1.4 of MAIA.

✅ Bodily changes caused by consequential surgery will constitute a “non-threshold injury” if those changes fall outside the definition of “soft tissue injury” in section 1.6(2) of MAIA.

Facts

On 8 January 2019, the Claimant swerved to avoid a motor vehicle which made a turn in front of his vehicle and collided with a light post.

The accident caused a cervical strain and aggravation of pre-existing C5/6 degenerative disc disease.

The Claimant, however, subsequently underwent a C5/6 foraminotomy, which involved removing a segment of bone. There was no dispute that the surgery was related to the motor accident and was both reasonable and necessary.

The primary Medical Assessor concluded that the consequential surgery resulted in injury to bone and the partial or complete rupture of ligaments and tendons. The primary Medical Assessor proceeded to certify that the injuries sustained during the consequential surgery were not threshold injuries.

The Review Panel, however, determined that the changes to the Claimant’s body, caused by the surgery, did not constitute an “injury“, as defined in section 1.4 of MAIA. The substance of the Review Panel’s reasoning was that a change to a person’s body does not constitute an “injury” unless the person suffers some detriment. In this dispute, the surgical procedure was voluntarily undertaken and was to the Claimant’s overall benefit.

Given the Review Panel finding that the changes caused to the Claimant’s body by the surgery did not constitute an “injury”, the question of whether those changes constituted a threshold injury did not even arise.

The Claimant sought Judicial Review in the Supreme Court.

The Supreme Court’s Decision

The Supreme Court found that the Review Panel erred for the following reasons:

🟪 The Review Panel focussed, unduly, on the purpose of the surgical procedure and focussed too little on the changes to the Claimant body caused by the surgery.

🟪  The dispute required the Review Panel to consider the physical results of the surgery which included an incision to allow access to the bone which had to be removed.

🟪  The Review Panel also erred by concentrating on the difference between the Claimant’s condition before and after the surgical procedure. In assessing whether the accident caused the Claimant an injury, the Review Panel should have concentrated on the difference between the Claimant’s condition post-surgery with the Claimant’s condition before the motor accident.

🟪  The definition of “injury” in section 1.4 of MAIA is not concerned with whether the injured person has consented to surgery or whether the surgery caused further harm or damage to the injured person’s body.

🟪 The definition of “injury” in section 1.4 captures all bodily injuries caused by a motor accident, including those which result from surgery pursued for a therapeutic purpose.

🟪 The fact that the surgery had some success in alleviating the Claimant’s symptoms is irrelevant to the question of whether the surgery itself caused further bodily injury.  

My Perspective

Subject to any appeal, the Supreme Court’s decision in Mandoukos resolves the doubt created by obiter remarks made by the Supreme Court and the Court of Appeal regarding whether bodily changes wrought by consequential surgery can constitute an “injury” in the absence of detriment.

That issue was squarely before the Supreme Court, on this occasion, and the Court has confidently concluded that any bodily change caused by consequential surgery falls within the definition of “injury” in section 1.4 of MAIA. It follows that it is not necessary to find detriment. The bodily change caused by the surgery is, itself, sufficient to constitute “injury”.

Whether that injury constitutes a non-threshold injury turns on whether it falls within the definition of “soft tissue injury” in section 1.6(2) of MAIA.

Given the removal of bone from this Claimant’s spine, the injury arising from his consequential surgery was clearly a non-threshold injury.

This decision should also put to an end the speculative argument that aggravation of a pre-existing injury does not constitute an “injury” for the purpose of section 1.4 and is, therefore, not compensable under the CTP scheme.

PJH

#53 – Non-Compliance with Direction for Production Renders Claim Unsuitable for Assessment

Decision

Insurance Australia Limited t/as NRMA Insurance v Tanuja Banu [2026] NSWPIC 357

Sixty-Second-Or-Less Summary

A Claimant makes a claim for damages following a motor accident. She was employed by her husband’s cleaning business prior to her accident.

The Insurer requests copies of the Claimant’s payslips to verify her claim for economic loss. The Claimant fails to fully comply. Her husband’s company fails to respond to a Direction for Production.

Should the damages claim be exempted from the Commission?

In IAG v Banu, a Senior Member concluded that the matter was not suitable for assessment because the Claimant’s payslips had “apparent relevance” to the assessment of the claim for economic loss and the Commission, unlike the Court, had no power to compel compliance with the Direction for Production.

Principles

✅ Pursuant to section 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAIA), a claim for damages may be exempted where assessment by the Commission is not suitable.

✅ The primary issue in assessing suitability is whether the Commission can afford both parties a fair hearing.

✅ The Commission may not be able to afford a party a fair hearing in circumstances where an entity fails to respond to a Direction for Production given that the Commission, unlike a Court, cannot compel compliance.

Facts

The Claimant was injured in a motor accident on 28 November 2023 and subsequently made a claim for damages.

She was employed by her husband’s cleaning business at the time of the accident. A dispute arises regarding the level of the Claimant’s personal exertion activity within the business.

At the request of the Insurer, the Commission issued a Direction for Production which required the Claimant’s employer to produce his payslips. The Claimant’s employer failed to comply with the Direction for Production.

The Insurer applied for a discretionary exemption on the grounds that the claim was not suitable for assessment by the Commission.

The Senior Member’s Decision

The Senior Member confirmed that the issue at hand is whether the claim is suitable for assessment by the Commission. The natural and ordinary meaning of “suitable” is “such as to suit; appropriate, fitting, becoming” – IAG Limited t/a NRMA Insurance v Khaled & ors [2019] NSWSC 320.

The Senior Member also confirmed that, in assessing suitability, a primary question was whether the Commission could afford both parties a fair hearing, in a practical sense – Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519

Having set out those principles, the Senior Member decided that the claim was not suitable for assessment by the Commission for the following reasons:

🟪 Whilst liability was admitted, the Claimant sought damages exceeding $1 million.

🟪 The reliability of the Claimant’s evidence was in issue.

🟪 The Claimant had not been able to provide the insurer with all the payslips which the Insurer had requested.

🟪 The pattern of income likely to be disclosed by the Claimant’s payslips – including income splitting with her spouse – had “apparent relevance” to the assessment of the Claimant’s damages.

🟪 The Claimant’s employer had not produced documents in response to a Direction for Production.

🟪 A Court has the power to compel compliance with a Subpoena for Production, whereas the Commission cannot compel compliance with a Direction for Production.

🟪 The Insurer cannot be afforded a fair hearing without access to the Claimant’s payslips.

🟪 The claim should be determined in a jurisdiction where the Insurer can compel production of records that are “apparently relevant” to the issues in dispute.

My Perspective

The decision in Banu underscores that the list of indicia of suitability in Rule 99(3) of the Personal Injury Commission Rules 2021 are neither prescriptive nor exhaustive. As the Senior Member noted, the sub-rule begins with the words “without limiting the matters that may be considered, the Commission may consider the following…”.

The real issue is whether the circumstances mean that one party will be denied a fair trial if the dispute remains in the Commission.

The fact the Commission cannot compel compliance with a Direction for Production is one factor which might cause a Commission hearing to be unfair to the party seeking production of documents. The party must still, however, demonstrate that the documents it seeks have “apparent relevance” to the issues in dispute.

PJH

#52 – Standard of Care for Learner Drivers is Standard

Decision

Holmes v Allianz Australia Insurance Limited [2026] NSWPIC 389

Sixty-Second-Or-Less Summary

A motorcyclist is injured whilst trying to obtain their provisional licence. Whilst performing a quick stop-test, in wet and slippery conditions, the front wheel of the motorcycle locks and the motorcycle falls over.

Was the Claimant motorcyclist wholly or mostly at fault for their accident.

In Holmes v Allianz, a PIC Senior Member assessed the Claimant’s contributory negligence at 40% and, therefore, concluded that she as not wholly or mostly at fault. In coming to this finding, the Senior Member noted that the standard of care required of an inexperienced driver was no different from the standard of any other motorcyclist.

Principles

✅ In motor accidents where only one party is culpable, contributory negligence is measured by how far the driver departed from the required standard of care.

✅ The standard of care expected from an inexperienced driver is that of a reasonable driver, rather than a lower standard modified by their inexperience.

Facts

The Claimant was injured in a motor accident on 2 May 2025.

At the time of her accident, the Claimant held a motorcycle rider learner’s licence and was trying to obtain her provisional motorcycle rider’s licence. Whilst a novice on the motorcycle, the Claimant had held a driver’s licence for 45 years.

On the day of her accident, the Claimant rode her scooter with other riders for a period exceeding two hours. Most of this ride occurred in moderate to heavy rain.

After a lunch break, the Claimant told her instructor that she felt the road was dangerous and slippery. The instructor observed that the Claimant may have to ride in these conditions once she was fully licenced.

When the Claimant commenced the quick stop test, she reached a speed of 10 to 15 kph and applied her brakes. At this point the front wheel locked and she fell to her left.

The Senior Member’s Decision

The Senior Member found that the Claimant was 40% responsible for her accident and, therefore, not wholly or mostly at fault, for the following reasons:

🟪 In accidents where only one party is culpable, contributory negligence is assessed by reference to the extent the injured person’s conduct departed from the required standard of care – AAI Limited t/as GIO v Evic [2024] NSWSC 1272.

🟪 A motorist’s duty to exercise reasonable care, irrespective of experience, is always the same; namely, to conform to the legal standard of reasonable conduct in the light of the apparent risk – Imbree v McNeilly; McNeilly v Imbrue [2008] HCA 40.

🟪 The Claimant was required to complete a quick stop test in order to satisfy the motorcycle licencing requirements.

🟪 The Claimant faced a risk that she might lose control of her motorcycle if she applied the brakes with too much force on a wet and slippery road.

🟪 The Claimant was required to exercise reasonable care by applying the braking technique described in the handbook.

🟪 The Claimant failed to exercise reasonable care by applying the brakes of her motorcycle too harshly for the wet conditions.

🟪 A finding of 100% contributory negligence is reserved for the worst possible case – Davis v Swift [2014] NSWCA 458.

🟪 Given her departure from the standard of care required of a motorcycle rider in wet conditions, a just and equitable reduction is 40%.

My Perspective

The decision in Holmes represents another application of the Supreme Court’s Decision in Evic. The Senior Member faithfully followed Evic by assessing the Claimant’s contributory negligence by reference to the extent that her riding conduct departed from the required standard of care.

What makes the decision notable is the Senior Member’s finding – consistent with the High Court’s decision in Imbree – that the standard of care required of the Claimant was the same standard required of any other motorcycle rider, her inexperience notwithstanding.

PJH

#51 – Claimant Not Entitled to Both WC Payments and CTP Payments for Same Period

Decision

Jaggi v AAI Limited t/as AAMI [2026] NSWPICMR 30

Sixty-Second-Or-Less Summary

A Claimant is injured in a motor accident. He was already on workers compensation benefits as a consequence of a prior work injury.

Is the Claimant entitled to weekly payments from both the CTP Insurer and the Workers Compensation Insurer for the same period?

In Jaggi v AAMI, a Merit Reviewer determined that the Claimant had not suffered any loss of earnings, as a consequence of the injury he sustained in the motor accident given the ongoing weekly payments he continued to receive from the Workers Compensation Insurer.

The Merit Reviewer also determined that the Claimant’s bid to recover weekly payments from both Insurers offended the rule against double compensation.

Principles

✅ In addition to being “an earner” and suffering an injury, a claimant is not entitled to weekly payments unless they establish that the injury caused a loss of earnings.

✅ A claimant has not suffered any loss of earnings if they are already totally incapacitated for work as a consequence of a prior work injury.

✅ A claimant is not entitled to weekly payments from a CTP Insurer and a Workers Compensation Insurer, for the same period, because that would be contrary to the rule against double compensation.

Facts

The Claimant was injured in a motor accident on 26 April 2024.

The Claimant subsequently made a request for the back payment of weekly benefits for the period from 13 January 2025 to 25 March 2025.

Prior to his motor accident, however, the Claimant lodged a workers compensation claim for a psychiatric injury. The Claimant was certified unfit to work, as a consequence of his work injury, from 13 June 2024 to 21 March 2025.

The Insurer refused the Claimant’s request on the grounds that the Claimant received workers compensation benefits for the same period and, therefore, had not suffered a total or partial loss of earnings for that period.

The Insurer’s determination was affirmed on Internal Review and the Claimant sought Merit Review.

The Merit Reviewer’s Decision

The Merit Reviewer agreed that the Claimant was not entitled to weekly payments, from the CTP Insurer, for the relevant period, for the following reasons:

🟪 To satisfy the requirements of section 3.7 of MAIA, and to become entitled to weekly payments, a claimant must demonstrate they were “an earner”, they were injured as a result of a motor accident and they suffered a total or partial loss of earnings as a result of that injury.

🟪 In this dispute, the Claimant was “an earner” and the motor accident caused him an injury.

🟪 The Claimant, however, did not lose any earnings as a consequence of the injuries he sustained in the motor accident because he was already certified totally unfit for work by reason of his prior work injury.

🟪 Even if the Claimant satisfied the requirements of s 3.7(1) – which he does not – he would not be entitled to weekly payments from the CTP Insurer because he had already received weekly payments, for the same period, from the Workers Compensation Insurer. Compensating the Claimant for the same period would offend the rule against double compensation.

My Perspective

The decision in Jaggi confirms what should, perhaps, be obvious; namely, that a Claimant cannot receive weekly payments from both the CTP Insurer and a Workers Compensation Insurer for the same period, even if the payments relate to injuries sustained in different accidents.

(Indeed, the Merit Reviewer expressed concern that the Claimant also appeared to have received NewStart benefits for the same period.)

As the Merit Reviewer observed, the rule against double compensation was neatly defined by Chen J in McMillan Investment Holdings Pty Limited v Mangos & Ors (No 3) [2023] NSWSC 1327, at [53] as follows:

“The rule has been explained as a principle (`the principle of full satisfaction prevents double recovery’), and it reflects the fundamental idea that a party `cannot recover in the aggregate from one or more defendants an amount in excess of [their] loss.”

PJH

#50 – Review Panel Finds Aggravated Radiculopathy is a Non-Threshold Injury

Decision

AAI Limited t/as GIO v Lee [2026] NSWPICMP 422

Sixty-Second-Or-Less Summary

A Claimant suffers from intermittent radiculopathy before their motor accident. Their radiculopathy increases in intensity and frequency post-accident.

Has the motor accident caused the Claimant a non-threshold physical injury?

In GIO v Lee, the Medical Review Panel accepted that the Claimant sustained a non-threshold injury because the increased radicular signs demonstrated either a new injury compressing the spinal nerve root or additional compression of that spinal nerve root.

Principles

✅ Pursuant to clause 4(1) of the Motor Accident Injuries Regulation 2017, an injury to a spinal nerve root that manifests in radiculopathy is a non-threshold injury.

✅ Increased or new signs of radiculopathy suggests a new injury causing compression of the spinal nerve root or additional compression of an already compressed spinal nerve root.

✅ Increased or new signs of radiculopathy are sufficient to demonstrate a non-threshold injury.

Facts

The Claimant was involved in a motor accident on 9 April 2024. He proceeded to make a claim for statutory benefits. A dispute arose, however, over whether the Claimant only sustained threshold injuries.

The Claimant accepted that he suffered from intermittent right C6 radiculopathy before his motor accident. He said, however, that it always recovered with conservative treatment and he was not suffering from any radiculopathy immediately before the MVA. He alleged that his right C6 radiculopathy symptoms recurred, with greater intensity, following the motor accident and that his radiculopathy was now resistant to treatment.

The Insurer argued that the Claimant suffered from radiculopathy before and after his accident and that the accident had not caused any new injury.

The primary Medical Assessor determined that the Claimant sustained an aggravation of prior disc disease, particularly in relation to C5/6, with overt C6 radiculopathy. The primary Medical Assessor determined that this was not a threshold injury.

The Insurer successfully sought referral to the Review Panel.

The Review Panel’s Decision

The Review Panel agreed that the Claimant had sustained a non-threshold injury for the following reasons:

🟪 The evidence established that there was a clear escalating pattern of symptoms, post-accident, and a new symptom in the form of muscle atrophy.

🟪 The escalating pattern of symptoms indicated that the motor accident had caused further injury to the Claimant’s C6 nerve root.

The Insurer argued that to demonstrate a non-threshold injury, the Claimant had to demonstrate a new “distinct physical injury” and that an aggravation or recurrence of a previous injury is not enough.

The Review Panel rejected the Insurer’s argument for the following reasons:

🟪 The C6 nerve root is about 20 mm long and about 6 mm wide. A disc bulge can affect one side of the nerve root and an osteophyte can affect the other side of the nerve root.

🟪 Either a new injury or an aggravation of an existing injury could further compress a section of the nerve root which is already partially compressed or the compression could affect a slightly different section of nerve root.

🟪 Both the emergence of new signs of radiculopathy or the worsening of existing signs indicate that there has either been a new injury to a different part of the nerve root or there has been an aggravation causing additional compression of the same part of the nerve root.

🟪 A worsening of existing signs of radiculopathy is sufficient to demonstrate a non-threshold injury.

My Perspective

The decision in Lee confirms that a claimant demonstrates a non-threshold injury if a pre-existing condition has been aggravated.

In prior PIC decisions the Review Panel has accepted that:

🟪 The lengthening of a pre-existing annular tear is a non-threshold injury, to the extent of the new length of tearing. My Case Note can be found here.

🟪 Aggravation (even temporary) of a pre-existing PTSD is a non-threshold injury, to the extent of the increased symptoms. My Case Note can be found here.

This decision appears to simply apply the same thinking to the aggravation of pre-existing radiculopathy.

PJH

#49 – “Apparent Relevance” – Defining the Legal Test of Legitimate Forensic Purpose

Decision

AAI Limited t/as GIO v Williams [2026] NSWPICMP 414

Sixty-Second-Or-Less Summary

An injured Claimant is scheduled to have his psychiatric impairment assessed by the Commission. The Insurer seeks leave to issue a Direction for Production on the Claimant’s bank for production of bank and credit card records. The Claimant withholds consent.

Does production of the Claimant’s bank records have a legitimate forensic purpose?

In GIO v Williams, a PIC Principal Member concluded that there was a legitimate forensic purpose because the Claimant’s spending habits were apparently relevant to multiple categories of the Psychiatric Impairment Rating Scale.

Principles

✅ Documents may have a legitimate forensic purpose if they are “apparently relevant” to the issues in the proceedings.

✅ Bank and credit cards records have an apparent relevance to multiple categories on the Psychiatric Impairment Rating Scale.

Facts

The Claimant alleged physical and psychological injury following a motor accident on 25 May 2023. The Commission arranged a number of medical assessments to assess the permanent impairment arising from injuries caused by the accident.

The Insurer sought leave to serve a Direction for Production on the Commonwealth Bank of Australia seeking production of bank statements and credit card records. The Claimant refused to provide his consent.

The Member’s Decision

The Member referred to the decision in Secretary of the Department of Planning, Industry and Environment v Blacktown City Council [2021] NSWCA 145 and summarised the following principles:

🟪 Legitimate forensic purpose will be presumed if the documents sought are “apparently relevant” to the issues in the proceedings.

🟪 Documents may have a legitimate forensic purpose if they are capable of providing a legitimate basis for cross-examination, or go ot credit, even if they are inadmissible.

🟪 A parties’ inability to show that the documents are likely to assist its case will not necessarily mean there is no legitimate forensic purpose.

The Member found a legitimate forensic purpose in this dispute for the following reasons:

🟪 Bank and credit card records will normally show spending habits which are directly relevant to how a claimant’s psychiatric impairment might be assessed on the PIRS categories of Travel (via the purchase of petrol), Social and Recreational Activities and Social Functioning.

🟪 Bank and credit card records might also demonstrate receipt of income which is relevant to Adaptation.

For these reasons, the member proceeded to grant leave to serve the Direction for Production.

My Perspective

The decision Williams is important because it sets the legal tests which are relevant to whether a Direction for Production may be issued.

Indeed, the Principal Member stated that he was moved to produce written reasons on an interlocutory dispute for the following reasons:

“The objections to date in numerous matters have not shown a proper basis for objecting to a third-party producing a claimant’s “banking records”. There have been fruitless other objections in matters before the Commission opposing the grant of leave for directions for the production of medical records and records from investigatory bodies.

“It must be emphasised that the decision to grant leave to issue a direction is not a determination of relevance but one of apparent relevance that the documents may have to the issues in dispute.

“It should be unnecessary to deliver written reasons for the grant of leave to issue directions on third parties. However, the ongoing and often lack of meritorious submissions to date have resulted in the need to record and publish an interlocutory decision on this issue.“

PJH

#48 – Treating Specialist’s Report Found to Be a Request for Treatment Approval

Decision

Insurance Australia Limited t/as NRMA Insurance v Jennar [2026] NSWPIC 320

Sixty-Second-Or-Less Summary

A Claimant’s treating doctor provides a report in support of a three-level cervical fusion. The letter serving the report on the Insurer, however, only specifically requests approval of an MRI scan.

Does the treating report, in itself, constitute a request for surgery approval

In IAG v Jennar, a PIC Member noted that the Claimant’s Solicitors should have formally requested approval for the surgery. The Member concluded, however, that in the context of this matter, the specialist’s report, alone, constituted a request for surgery approval. The context included the fact that a PIC Medical Assessor had already found that a two-level fusion was inadequate and that a three-level fusion might be appropriate.

Principles

✅ Ideally, a Claimant should write to the Insurer to formally request approval of treatment and care.

✅ In certain circumstances, however, the context of a treating doctor’s report could constitute a request for approval even without a clearly worded covering letter.

Facts

A dispute arose between the parties regarding whether the accident caused the Claimant threshold injuries and whether a proposed three-level discectomy and fusion was reasonable and necessary. Both disputes were referred to the same Medical Assessor for assessment.

The Insurer contended, however, that the assessment regarding the discectomy and fusion was premature because the Claimant had not yet requested the Insurer’s approval for that specific procedure. It followed, in the Insurer’s submission, that the Insurer had not yet determined whether the proposed surgery was reasonable and necessary and related to the motor accident.

The Claimant’s Solicitor argued, however, that the content of the specialist’s report conveyed a clear intention to seek approval for the proposed surgery.

Whether the Claimant had sought approval of the surgical procedure was referred to a PIC Member for determination via a Miscellaneous Assessment.

The Member’s Decision

The Member determined that the letter from the Claimant’s Solicitor did not constitute a request for approval of the surgical procedure because, by its terms, the letter only sought approval of an MRI scan.

The Member determined, however, that the treating report enclosed with the Claimant’s Solicitor’s letter did constitute a request for treatment approval for the following reasons:

🟪 The insurer was aware that a PIC Medical Assessor had already found that a two-level cervical fusion was not reasonable and necessary because it would not provide adequate neural decompression and had raised whether a three-level fusion might be more appropriate.

🟪 The treating specialist’s report picked up on the PIC Medical Assessor’s reasons and supported a three-level fusion.

🟪 The nature of the report was a request that the insurer approve the proposed surgery.

🟪 Whilst not a perfect example of a request for approval, the Insurer was on notice that the treating specialist was providing information in support of a request to approve the proposed surgery.

🟪 A simple letter requesting approval of the surgery and the costings would have been appropriate, but the Claimant’s failure to do so is not a fatal flaw because the legislation does not prescribe a particular format.

My Perspective

The decision in Jennar indicates that Insurers should look at the full context to determine whether a treating specialist’s report constitutes a request for approval of treatment and care.

As the Member indicated, best practice dictates that the Claimant or their legal representatives should formally request approval of treatment and care in a covering letter.

The background circumstances and the content of the specialist’s letter, however, can constitute a request for approval of treatment and care without a specific covering letter.

In this instance, the treating specialist’s report constituted a request for surgery approval because it was part of an ongoing conversation about what surgery might help the Claimant, as distinct from a random, one-off report which lacked any background context.

PJH

#47 – Claimant’s Explanation for Delay not Full and Satisfactory

Decision

Arab v Allianz Australia Insurance Limited [2026] NSWPIC 317

Sixty-Second-Or-Less Read

A Claimant is injured in a motor accident and promptly lodges a claim for statutory benefits. The Claimant, however, waits four years before lodging a claim for damages under common law. In the meantime, the Insurer wrote to the Claimant on three separate occasions to advise her both of her potential entitlement to damages and the three-year time limit to lodge a claim form.

Does the Claimant have a full and satisfactory explanation for her delay in making her damages claim?

In Arab v Allianz, a PIC Member found that the Claimant’s explanation was neither full nor satisfactory. On the critical issue of satisfactoriness, the Member reasoned that there was no hypothetical person in the Claimant’s position who would have experienced the same delay, given the information provided by the Insurer prior to the expiration of the three-year time limit.

Principles

✅ Section 6.14(2) of the Motor Accident Injuries Act 2017 (MAIA) provides that a claim for damages must be made within three years of the motor accident.

✅ Section 6.14(3) of MAIA provides that a claim for damages may be made more than three years after the motor accident if the Claimant has a full and satisfactory explanation for delay.

✅ In general terms, an explanation is “full” if it conveys what happened and why.

✅ Again, in general terms, an explanation is “satisfactory” if a reasonable person in the claimant’s position would have been justified in experiencing the same delay.

Facts

The Claimant was injured in a motor accident on 27 October 2021. She lodged an Application for Personal Injury Benefits on 3 November 2021. It was not until October 2025, however, that she lodged a claim for damages under common law.

In the meantime, the Insurer spoke to the Claimant on 12 June 2023 and advised of her entitlement to make a damages claim. Furthermore, the Insurer wrote to the Claimant on 23 June 2023, 1 May 2024 and 12 September 2024 and clearly informed her that she had a potential entitlement to damages and that she had to complete a form within three years of the accident.

The Member’s Decision

The Member confirmed that for an explanation to be full it needs to be complete in the sense that the explanation conveys what happened and why. The explanation does not have to be perfect and it does not need to recount every moment that elapsed.

The Member found that the Claimant’s explanation was not “full” for the following reasons:

🟪 The Claimant gave no account of what transpired in the second half of 2022 or in 2023.

🟪 The Claimant did not address whether she received the Insurer’s letter dated 23 June 2023 let alone whether she understood the contents or took any steps in response to the letter.

🟪 More generally, the Claimant did not explain her failure to act after receiving the 23 June 2023 letter.

The Member confirmed that the concept of a satisfactory explanation requires an evaluative judgment as to whether the Claimant’s delay can be reasonably justified. The test does not require a Claimant to establish that all reasonable persons within the spectrum of their subjective features would have experienced the same delay. It is sufficient that some reasonable persons in the Claimant’s position would have experienced the same delay as the Claimant.

The Member found that the Claimant’s explanation was not satisfactory for the following reasons:

🟪 A reasonable person in the Claimant’s position would not have, as the Claimant alleged, delegated responsibility for the management of her claim to her husband (as the Claimant alleged).

🟪 A reasonable person in the Claimant’s position would not have been unaware of the legal requirements and timeframes, as the Claimant alleged, given that the Insurer wrote to her on three separate occasions to advise her of those legal requirements and timeframes.

🟪 The Member was not satisfied that there was a reasonable, hypothetical person, in the Claimant’s position, who would have experienced the same delay as the Claimant.

My Perspective

The decision in Arab provides a useful illustration of when an explanation for delay might be less than full and less than satisfactory. It is striking that the Claimant’s position was weak because the Insurer had advised the Claimant, in writing, what she had to do to pursue her entitlement to common law damages on three separate occasions prior to the end of the three-year time limit.

PJH

#46 – Medical Review Panel Addresses Bone (Bruising) of Contention

Decision

Fahim v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 355

Sixty-Second-Or-Less Read

A Claimant suffers a right tibia contusion in a motor accident. The Insurer denies liability for ongoing statutory benefits on the grounds that the Claimant’s only injuries are threshold injuries.

Is a bone contusion a threshold injury?

In Fahim v IAG, the Medical Review Panel concluded that any injury to bone – whether a fracture or a contusion – was an injury to hard tissue which fell outside the definition of “soft tissue injury” in section 1.6(2) of MAIA.

Principles

✅ Pursuant to the definition in section 1.6 of the Motor Accident Injuries Act 2017 (MAIA) a soft tissue injury is a threshold injury.

✅ Any injury to bone – whether a fracture or a contusion – is an injury to hard tissue which falls outside the definition of soft tissue in section 1.6(2) of MAIA.

Facts

The Claimant was injured on 16 May 2024 when a car hit either her or her shopping trolley as she walked in a shopping centre car park.

Amongst other injuries, the Claimant sustained a contusion to her right tibia.

A dispute arose, between the parties, whether the right tibia contusion constituted a threshold injury or not.

If the Claimant’s only injuries were threshold injuries, she would not be entitled to either ongoing statutory benefits or common law damages.

Relevant Definitions

Section 1.6(1) of MAIA provides that a “soft tissue injury” is a threshold injury.

Section 1.6(2) of MAIA defines a “soft tissue injury” to be ” an injury to tissue that connects, supports or surrounds other structures or organs of the body (such as muscles, tendons, ligaments, menisci, cartilage, fascia, fibrous tissues, fat, blood vessels and synovial membranes), but not an injury to nerves or a complete or partial rupture of tendons, ligaments, menisci or cartilage”.

The Review Panel Decision

The Review Panel found that the contusion to the Claimant’s right tibia was a non-threshold injury for the following reasons:

🟪 A bone contusion represents bruising to the bone.

🟪 A bone contusion results in microfractures and the build-up of blood and fluid within the bone.

🟪 Whilst not a serious as a fracture, a bone contusion is an injury to the bone.

🟪 Medically, bones (like teeth) are not soft tissue because they are hard tissue.

🟪 In Abawi, the Court of Appeal concluded that, pursuant to the definition in 1.6(2), soft tissue has the significant and characteristic function of connecting, supporting or surrounding organs of the body or other structures. Bones do not have this function. Bones are one of the structures that are themselves connected, supported or surrounded by soft tissue.

🟪 It follows that any injury to bone – whether a fracture or a contusion – is a non-threshold injury.

My Perspective

The decision in Fahim confirms that any injury to hard tissue, like bone or teeth, falls outside the definition of “soft tissue injury” in s 1.6(2) of MAIA and is, therefore, a non-threshold injury. The nature of the injury is unimportant. All that matters is that the injury is to hard tissue.

Whilst not specifically addressed in the Review Panel’s reasoning, it is worth noting that the Court of Appeal made the following obiter comments in Abawi at [42]:

“His Honour further reasoned that “the common trait or theme of the parenthesised examples (ie, muscles, tendons, ligaments etc) is that each is a connective tissue which has a unique and important role to play in orthopaedic injuries” (J [58], see also [60]). Allianz submitted that one thing that the definition of soft tissue certainly does not involve is bones and the skeletal system. The estate did not seek to defend this aspect of his Honour’s reasons.”

It is noteworthy that both parties in Abawi accepted that “soft tissue certainly does not involve…bones and the skeletal system” and that the primary judge was wrong to (indirectly) find otherwise. Furthermore, the Court of Appeal proceeded on the assumption that the parties were correct in their understanding that bones are not soft tissue, either medically or pursuant to the definition in s 1.6(2) of MAIA.

PJH

#45 – English Language Course found to be Rehabilitation

Decision

Perez v AAI Limited t/as AAMI [2026] NSWPIC 264

Sixty-Second-Or-Less Read

An injured claimant seeks to recover the cost of an English language course as a treatment and care expense. They argue that they need to improve their English language skills in order to enhance their prospects of employment, within the restrictions caused by their injuries.

Does an English language course fall within the definition of “treatment and care” in s 1.4 of MAIA?

In Perez v AAMI, a PIC Member found that an English language course is a claim for “rehabilitation” because the course helps the injured person attain and maintain their independence in all aspects of their life, including their vocational aspirations. As such, the claimed English language course was a claim for treatment and care. Whether this particular claim for an English language course was reasonable and necessary and related to an injury sustained in the accident was a matter for a Medical Assessor.

Principles

✅ A claim for an English language course falls within the definition of “rehabilitation” and “education and vocational training” and, therefore, constitutes a claim for “treatment and care” as defined by section 1.4 of the Motor Accident Injuries Act 2017 (MAIA).

Facts

The Claimant was injured in a motor accident, at Mascot, on 24 October 2023. He sought to recover the cost of an English language course from the CTP Insurer as a treatment and care expense. The Insurer declined the request on the grounds that the language course was not a form of rehabilitation or treatment because it did not aim to rehabilitate any injury sustained in the accident. Furthermore, the course was designed to give the Claimant a skill he did not possess prior to his accident.

The dispute regarding whether the English language course fell within the definition of “rehabilitation” and, therefore, within the definition of “treatment and care” was referred to a PIC Member for resolution as a Miscellaneous Assessment matter.

It was not the PIC Member’s role to decide whether the English language course was reasonable and necessary and related to an injury sustained in the motor accident..

Relevant Definitions

Section 3.24 of the MAIA states, in general terms, that an injured person is entitled to statutory benefits for treatment and care provided to the injured person, provided the treatment and care is reasonable and necessary and related to the injuries sustained in the motor accident.


Section 1.4 of MAIA provides a definition of “treatment and care“, which includes an exhaustive list of eleven types of treatment and care. One of those items is “rehabilitation“ and another is “education and vocational training”.


Section 1.4 of MAIA defines “rehabilitation” as “the process of enabling or attempting to enable the person to attain and maintain—

(a)  the maximum level of independent living, and

(b)  full physical, mental, social and vocational ability, and

(c)  full inclusion and participation in all aspects of life”

The Member’s Decision

The Member determined that the English language course fell within the statutory definition of “rehabilitation” for the following reasons:

🟪 Pursuant to the definition in s 1.4, “rehabilitation” is a “process” which aims to allow an injured person to “attain and maintain” their independence and “full inclusion and participation in all aspects of life.

🟪 The definition of “rehabilitation” does not focus on a particular injury or injuries but, instead, focuses on the impact of the injury or injuries on the particular injured person.

🟪 Where a labourer loses their capacity for labouring work as a consequence of their injuries, a course to help them acquire the skills to work in an office would, undoubtedly, be considered rehabilitation. By analogy, an English language course is rehabilitation for an injured person who does not speak English well before the accident but will need to improve their English to compete for office jobs post-accident. In both instances, the injured person is being taught a new skill to help them retrain for vocational options which are within their capacity post-accident.

The Member noted that a claim for an English language course might also fall within “education and vocational training” which is one the eleven examples provided in the definition of “treatment and care” in s 1.4.

The Member, therefore, concluded that the claim to recover the cost of the English language course was a claim for “treatment and care”, as defined by s 1.4.

My Perspective

The decision in Perez is another decision which confirms that the concept of “rehabilitation”, as defined by s 1.4 of MAIA, extends beyond services provided by a rehabilitation provider.

It is important to note, however, that the Member’s function was limited to deciding whether the claim to recover the cost of the English Language course was a claim for “rehabilitation”.

Whether the specific claim for an English language course was reasonable and necessary, in the circumstances of this particular claim, and whether it related to an injury sustained in the motor accident was a matter for a subsequent medical assessment.

PJH

#44 – Court of Appeal Finds no Error in Delegate’s Decision Refusing to Refer Threshold Injury Dispute for Assessment

Decision

Kewin v AAI Ltd t/as GIO Insurance [2026] NSWCA 86

Sixty-Second-Or-Less Read

A claimant alleges a non-threshold psychiatric illness as a consequence of a motor accident. They lodge a threshold injury dispute in the Commission but include no evidence of a recognised psychiatric illness.

Can the President’s Delegate refuse to refer the dispute to a medical assessor.

In Kewin v GIO, the Court of Appeal determined that it was open to the President’s Delegate to invoke clause 17 of PIC 6 and request evidence of a non-threshold psychiatric injury. When no such evidence was provided, it was open to the Delegate to refuse to refer the dispute for assessment.

Principles

✅ Section 7.20 of the Motor Accident Injuries Act 2017 (MAIA) sets out the procedure to refer a medical dispute for assessment.

✅ Clause 17 of the Personal Injury Commission Procedural Direction 6 (PIC 6) provides that, in threshold injury disputes, the party applying for an assessment must produce evidence in support of their position.

✅ If the claimant is the applicant in a threshold injury dispute, they must include in their application evidence that they have a non-threshold injury.

✅ If the claimant is asserting a non-threshold psychiatric injury, they must include in their application evidence of a diagnosed recognised psychiatric illness, other than an acute stress disorder or an adjustment disorder.

Facts

The Claimant alleged both physical and psychiatric injuries following a motor accident on 23 November 2018. All parties accepted that the Claimant’s physical injuries were threshold injuries. A dispute arose, however, over whether the Claimant’s psychiatric injury was threshold or non-threshold.

The issue was important because if the Claimant only sustained threshold physical and psychiatric injuries he would not be entitled to either ongoing statutory benefits or damages under common law.

In asserting a non-threshold psychiatric injury, the Claimant produced no report by either a treating doctor or a qualified expert which diagnosed a recognised psychiatric illness.

The Claimant initiated a threshold injury dispute in the Commission. The President’s Delegate, however, dismissed the application on the grounds that the Claimant had not produced any evidence that his psychiatric injuries were non-threshold.

The Claimant’s application for judicial review of that decision was dismissed. The Claimant sought leave to appeal to the Court of Appeal.

Personal Injury Commission Procedural Direction 6 (PIC 6)

Relevantly, clause of PIC 6 provides:

“For an application for assessment of whether the injury caused by the motor accident is a threshold injury (as defined in section 1.6 of the 2017 Act) for the purposes of the 2017 Act (see Schedule 2, clause 2(e)), the applicant party must produce with the application the evidence that demonstrates the injury status as asserted by them, namely that the claimant has suffered a threshold injury or has not suffered a threshold injury within the meaning of section 1.6 of the 2017 Act.”

The Court of Appeal’s Decision

The Court of Appeal dismissed the appeal on the following grounds:

🟪 Characterisation of Delegate’s Decision

The Claimant argued that the President’s Delegate improperly concluded that there was no medical dispute between the parties. This is not what the Delegate did. Rather, the Delegate accepted that there was a dispute but declined to allow the dispute to proceed to the next step in the absence of supporting evidence.

It was open to the Delegate to give the Claimant a further opportunity to provide supporting evidence, which is what the Delegate did. When the Claimant failed to provide the supporting evidence, it was open to the Delegate to determine that clause 17 of PIC 6 had not been satisfied.


🟪 The President’s Powers

The Claimant argued that s 7.20(2) obligated the President to arrange a medical assessment given the words “is to arrange”. This argument failed to distinguish between the verbs “accept” and arrange”. Before a medical assessment can be arranged, it must be accepted. In his matter, it was open to the Delegate to refuse to accept the dispute for failure to comply with clause 17 of PIC 6.

For these reasons, the Court of Appeal found no error in the decision made by the President’s Delegate. It followed that the decision to refuse to refer the threshold injury dispute for assessment was confirmed.

My Perspective

The Court of Appeal’s decision in Kewin is important because it confirms that a President’s Delegate may refuse to refer a threshold injury dispute for assessment when the applicant has failed to obtain evidence in support to their position.

In most cases, the claimant is the applicant. It follows that the claimant’s application may be dismissed, pursuant to clause 17 of PIC 6, if they failed to obtain evidence they have sustained a non-threshold injury.

PJH

#43 – Merit Reviewer Finds Damages Claim not “Pending” Because Driver Can’t Sue Himself

Decision

Thomas v QBE Insurance (Australia) Limited [2026] NSWPICMR 16

Sixty-Second-Or-Less Read

A Claimant is injured in a single vehicle motor accident. He owns the vehicle he was driving. In a most-at-fault dispute, the PIC finds that his contributory negligence should be assessed at 30%. It follows that he is not wholly or mostly at fault and he is entitled to ongoing statutory benefits. In the meantime, the Claimant lodges a damages claim.

Given his damages claim, is the Claimant entitled to weekly benefits beyond 104 weeks?

In Thomas v QBE, a Merit Reviewer found that the Insurer was entitled to terminate the Claimant’s weekly benefits at 104 weeks because his claim for damages was a legal nullity. In coming to this conclusion, the Merit Reviewer found that the Claimant’s injuries were not caused by the fault of another owner or driver and that s 5.4 precluded a no-fault claim because his own act or omission contributed to his accident. In short, he could not sue himself.

Principles

✅ Section 3.12 of the Motor Accident Injuries Act 2017 provides that a claimant’s entitlement to weekly benefits terminates at 104 weeks unless they have a pending claim for damages.

✅ A claim for damages is not “pending” if it is a legal nullity from the outset.

✅ A claim for damages arising from a single vehicle accident, where the driver owns the vehicle, is likely to be a legal nullity because the claimant cannot sue themselves.

Facts

The Claimant was injured in a single vehicle motor accident on 20 March 2024 when he failed to take a sweeping left hand bend in wet conditions. The Claimant owned the vehicle he was driving.

The Claimant made both a claim for statutory benefits and damages.

On 23 June 2024, a PIC Member determined that the Claimant was entitled to ongoing statutory benefits, beyond 52 weeks, because his contributory negligence – measured by reference to the extent to which he departed from the required standard of care – should be assessed at 30%.

In the damages claim, the Insurer denied liability on the grounds that the Claimant could not make a damages claim against his own policy.

The Insurer subsequently determined that the Claimant was only entitled to weekly benefits, pursuant to section 3.12 of MAIA, because there was no pending claim for damages.

The Claimant sought merit review of the decision to terminate his weekly benefits at 104 weeks. He argued that he was entitled to at least 156 weeks of weekly benefits because he had lodged a damages claim.

The Merit Reviewer’s Decision

The Merit Reviewer affirmed the Insurer’s decision that the Claimant was only entitled to 104 weeks of weekly benefits for the following reasons:

🟪 The legal test in the most-at-fault dispute is different from the legal test in the damages claim. The only issue in the most-at-fault decision was whether the Claimant’s contributory negligence exceeded 61%. It follows that a Claimant may be entitled to ongoing statutory benefits even if they were injured in a single vehicle accident where no other party was at fault.

🟪 Whilst the Claimant had asserted a claim for damages, that claim is only “pending”, within the meaning of s 3.12(2)(a) if the Claimant has an entitlement to damages.

🟪 Pursuant to Part 4 and Part 5, the Claimant only has a viable claim for damages if his injuries were caused by the fault of the owner or driver of a vehicle or if he was injured in a no-fault accident.

🟪 Given that the Claimant was the driver of a vehicle he owned, his injuries were not caused by the fault of another owner or driver.

🟪 Given that the Claimant’s own act or omission contributed to the cause of the accident, s 5.4 precludes a “no-fault” accident claim pursuant to Part 5.

🟪 It follows that the claim for damages is effectively a nullity because it has no prospects of success.

🟪 It further follows that there is no pending claim for damages because the claim for damages is a legal nullity from the outset.

My Perspective

The decision in Thomas confirms that a claimant cannot extend their entitlement to weekly benefits from 104 weeks to at least 156 weeks, and potentially to 260 weeks if their WPI exceeds 10%, merely by lodging a Claim for Damages under Common Law.

The claim for damages is not “pending” for the purpose of section 3.12(2)(a) of MAIA unless it has legal substance.

In general terms, a driver injured in a single vehicle accident is unlikely to have a legally viable claim for damages if they were driving a vehicle they owned. They cannot sue themselves.

Even if the driver in a single vehicle accident is driving a vehicle owned by somebody else, they will only have a viable damages claim if:

🟪 The owner’s want of care made a material contribution to the accident (for example, because the accident was caused by a mechanical fault which a reasonable owner would have identified and repaired).

🟪 The accident falls within the definition of a “no-fault” accident in s 5.1 and 5.4 does not preclude the driver because no act or omission contributed to the cause of the accident (for example, a tree falling on the vehicle, without warning, as the vehicle passes).

It follows that, in most single vehicle accidents, the claimant will not have a viable damages claim and the administrative act of lodging a damages claim form does not extend their entitlement to weekly benefits beyond 104 weeks.

PJH

#42 – Weekly Benefits Not Allowed Where Post-Accident Earnings Exceed PAWE

Decision

Cameron v Allianz Australia Insurance Limited [2026] NSWPICMR 15

Sixty-Second-or-Less Read

An injured Claimant runs a short-term accommodation business prior to being injured in a motor accident. They earn more per week, on average, than their calculated pre-accident weekly earnings. They argue, however, that they would have earned even more post-accident, if it were not for their injuries.

Can the Claimant recover weekly benefits based on their potential increased earnings post-accident?

In Cameron v Allianz, a Merit Reviewer found that the Claimant was not entitled to weekly benefits because their post-accident earnings exceeded their PAWE. The Merit Reviewer found that the statutory formula in sections 3.6 and 3.7 did not permit any potential increase in the Claimant’s post-accident earnings to be taken into account.

Principles

✅ Claims for weekly benefits must be assessed pursuant to the formula in section 3.6 and  section 3.7 of the Motor Accident Injuries Act 2017 (MAIA).

✅ Sections 3.6 and 3.7 require a comparison between the Claimant’s pre-accident weekly earnings (PAWE) and their post-accident earnings or their post-accident capacity “whichever is the greater”.

✅ The words “whichever is the greater” in sections 3.36(3) and 3.7(2) are designed to address situations where the injured person has a residual capacity but fails to exercise that capacity.

✅ The formula in sections 3.6 and 3.7 does not allow a Claimant to claim weekly benefits on the basis that they would have earned income in excess of the PAWE had they not been injured.

Facts

The Claimant was injured in a motor accident on 18 September 2025. At the time of the accident, the Claimant operated a short-term accommodation management business. She alleged that her injuries caused a reduced capacity to carry out this work, which was productive of a loss of income. She claimed weekly benefits accordingly.

The Insurer calculated the Claimant’s pre-accident weekly earnings at $703.25 gross per week. The Claimant did not dispute this assessment.

The Insurer found, however, that the Claimant was not entitled to recover any weekly benefits because her average earnings post-accident exceeded her PAWE. That decision was confirmed on Internal Review.

The Claimant sought a merit review.

The Merit Reviewer’s Decision

The Merit Reviewer agreed with the Insurer’s assessment for the following reasons:

🟪 The claim for weekly benefits must be determined pursuant to the formula prescribed by section 3.6 and section 3.7  of MAIA.

🟪 Schedule 1, clause 3 of MAIA merely sets out the types of income, if not received, which may be considered “loss of earnings” and types of income that are excluded.

🟪 Schedule 1, clause 3 is not, of itself, a mechanism for calculating whether there has been a loss of earnings.

🟪 Pursuant to schedule 1, clause 3, the proceeds received from the Claimant’s business may be taken into account when calculating whether there has been any loss of earnings under sections 3.6 and 3.7.

🟪 The Claimant’s argument that she could have earned more, but for the accident, is not relevant to the calculation of weekly benefits because sections 3.6 and 3.7 only permit a comparison between the Claimant’s PAWE and her post-accident capacity.

🟪 The Claimant’s argument that her injuries caused an increase in expenses is also irrelevant in circumstances where her post-accident earnings exceed her PAWE (irrespective of her increased expenses).

🟪 The purpose of the words “whichever is the greater” in sections 3.36(3) and 3.7(2) is to address situations where the injured person has a residual capacity but fails to exercise that capacity.

    My Perspective

    The decision in Cameron is important because it confirms two aspects relevant to the calculation of weekly benefits.

    Firstly, the formula in sections 3.6 and 3.7, unlike a claim for damages, does not allow for an argument that the Claimant might have earned income greater than their PAWE had they not been injured. Based on the structure of Part 3.3 of MAIA, PAWE is a point in time calculation based on the various calculation methods in Schedule 1, clause 4. In most claims, the calculation is based strictly on historical earnings rather than potential future earnings. The exception is where the Claimant the accident has entered into an arrangement to commence new employment (self-employment) and the accident intervenes.

    Secondly, the words “whichever is the greater” in sections 3.36(3) and 3.7(2) is designed to take into account circumstances where the Claimant’s actual post-accident earnings are different from their post-accident capacity.

    If the Claimant’s post-accident capacity exceeds their actual post-accident earnings – for example, because they work 20 hours per week when they are certified fit to work 30 hours per week – then the dollar value of their post-accident capacity is compared to their PAWE to assess their weekly benefits.

    If, however, the Claimant’s actual post-accident earnings exceed their post-accident capacity – for example, because they manage to work 30 hours per week even though they are only certified fit to work 20 hours per week – then their actual earnings are compared to their PAWE in order to calculate their weekly benefits.

    PJH

    #41 – Corner Marker Mostly at Fault on Motorcycle Club Run

    Decision

    Hernandez-Taylor v AAI Limited t/as GIO [2026] NSWPIC 208

    Sixty-Second-or-Less Read

    A motorcyclist is participating in an organised motorcycle club ride. Her role, as Corner Marker, is to park near a bend, with her indicator flashing, to guide fellow riders around the corner. After completing her role, the Claimant assumes that the Tail End Charlie will maintain his place at the rear of the pack and pulls out into his path, resulting in a collision.

    Is the Claimant wholly or mostly at fault?

    In Hernandez-Taylor v GIO, a PIC Member found that the Tail End Charlie was blameless and that the Claimant departed from the required standard by not looking over her shoulder and/or waving before pulling out onto the road. The Member found that the Claimant’s departure from the required standard of care should be measured at 80%.

    Principles

    ✅ In most-at-fault disputes, where the accident involves multiple vehicles, the Claimant’s contributory negligence is normally assessed by reference to the relative culpability of each participant.

    ✅ Where, however, the Claimant is the only culpable party, contributory negligence is measured, akin to single vehicle accidents, by reference to their departure from the required standard of care.

    ✅ A motorcyclist is required to comply with the Road Rules and cannot assume that other participants in a motorcycle club ride will comply with the club rules for the event.

    Background

    The Claimant was injured in a motorbike accident on 19 May 2024 whilst participating in a Ducati Owners Club Ride.

    The accident occurred whilst the Claimant was performing the role of Corner Marker. In that role, the Claimant was required to guide her fellow riders by sitting stationary in advance of a curve in the road with her indicator blinking. After completing her role, the Claimant pulled back onto the road and collided with a fellow rider’s motorbike.

    The Insurer denied liability for ongoing statutory benefits, beyond 52 weeks, on the grounds that the Claimant was wholly or mostly at fault for their accident.

    The Insurer’s liability determination was confirmed on internal review.

    The Claimant lodged a Miscellaneous Assessment application in the Commission to resolve the dispute.

    Findings of Fact

    The Member made the following findings of fact:

    🟪 The Claimant was fulfilling the role of “Corner Marker” during the ride.

    🟪 Two other key participants in the ride were the Ride Leader and the Tail End Charlie.

    🟪 Prior to the accident in question, the Tail End Charlie had – contrary to his role – ridden past the Claimant when she was performing her Corner Marker duties.

    🟪 At the Arcadia Road intersection, the Ride Leader pointed to where he wanted the Claimant, as Corner Marker, to be positioned on the side of the road.

    🟪 The Claimant pulled over to a position about five metres before the curve. Her right-hand indicator was on at all times to direct the riders who followed her.

    🟪 The Claimant’s position was ahead of the point indicated by the Rider Leader.

    🟪 The Tail End Charlie flashed his lights at least twice as he approached the Claimant’s stationary position on the left of the road.

    🟪 The Tail End Charlie continued riding but likely slowed down as he approached the corner.

    🟪 The Claimant looked in her mirror and saw the Tail End Charlie approaching.

    🟪 The Claimant did not wave or provide any other right-hand signal as the Tail End Charlie approached.

    🟪 The Claimant did not look before she pulled out on the road.

    🟪 The Tail End Charlie was riding at about 20 kph as he approached the corner.

    🟪 The Claimant pulled out in front of the Tail End Charlie.

    The Member’s Decision

    The Member found that the Claimant departed from the required standard of care for the following reasons:

    🟪 The Claimant was on notice that the Tail End Charlie was not on the same page as her regarding the roles of the Corner Marker and the Tail End Charlie.

    🟪 A reasonable person in the Claimant’s position would not have relied solely on her mirrors. A reasonable person would have turned to look behind her to evaluate whether it was safe to pull out onto the road.

    🟪 A reasonable person in the Claimant’s position would have waved or otherwise indicated that she was going to pull out.

    🟪 The Claimant was not entitled, as she argued, to rely on the Club Rules, which assume that the Tail End Charlie will maintain their position as the last rider in the group.

    🟪 The Claimant was required to adhere to the Road Rules.

    The Member found that the Tail End Charlie did not depart from the required standard of care for the following reasons:

    🟪 In addition to negotiating the bend in the road, the Tail End Charlie had to monitor whether vehicles coming in the opposite direction might make a right-hand turn, across his path, into a side street.

    🟪 Given that the Claimant, as Corner Marker, was required to activate her right-hand indicator to guide fellow riders, the Tail End Charlie could not take this as an indication that she was about to pull out onto the road.

    🟪 The Claimant did not give the Tail End Charlie any other signal to indicate her intention to pull out onto the road.

    🟪 By parking closer to the bend than the Ride Leader indicated, the Claimant deprived the Tail End Charlie the time and distance to take evasive action.

    Having found that the Claimant was the only culpable party, the Member concluded that contributory negligence could not be measured by reference to the relative culpability of the parties.

    Instead, the Member applied the method applicable to single vehicle accidents; namely, whether the extent to which the Claimant’s riding departed from the required standard of care.

    The Member concluded that the degree of the Claimant’s departure was at least 80%.

    My Perspective

    The decision in Hernandez-Taylor is interesting for two reasons.

    Firstly, it provides another example where a PIC Member has applied AAI Limited t/as GIO v Evic [2024] NSWSC 1272 and treated a multi-vehicle accident as a single vehicle accident because the Claimant was the only party at fault. Prior to Evic, if the Claimant was the only party at fault, a finding of 100% contributory negligence could be expected. Post-Evic, however, where the Claimant is the only party at fault, contributory negligence is measured by their departure from the required standard of care. The concept of relative culpability only applies where more than one party was at fault (as distinct from merely involved).

    Secondly, the Member concluded that the Road Rules continue to apply even if there is a private understanding between the road-users – for example, via motorcycle club rules of etiquette – about how they might use the road. In this instance, the Club Rules assumed that the Tail End Charlie would always ride at the rear of the pack. That understanding, however, did not displace the Claimant’s obligation to check that there was time and space to pull out onto the road ahead of the Tail End Charlie’s motorcycle.

    PJH

    #40 – Inconsistencies Depicted in Surveillance Constitute “Exceptional Circumstances”

    Decision

    Angileri v Allianz Australia Insurance Limited [2026] NSWPIC 139

    Sixty-Second-Or-Less Read

    A Claimant’s psychiatric impairment is assessed at 15% by a Medical Assessor. The Claimant gives a history that she struggles to lift a can of tomatoes, that she no longer socialises and that she only leaves the house to take her children to school or to buy milk and bread from the supermarket. The Insurer subsequently obtains surveillance of the Claimant leaving the house regularly, shopping for more than milk and bread and socialising with other people.

    Can the surveillance be admitted as evidence before the Medical Review Panel?

    In Angileri v Allianz, a Member concluded that the inconsistency between what the Claimant told the primary Medical Assessor and the activity depicted in the surveillance constituted “exceptional circumstances”, within the meaning of Rule 109(1)(a) of the PIC Rules. The Member, therefore, directed that the surveillance should be admitted.

    Principles

    ✅ Rule 109 of the Personal Injury Commission Rules (PIC Rules) provides that surveillance recordings may not be referred to a Medical Assessor unless “exceptional circumstances” exist.

    ✅ Exceptional circumstances may exist where the surveillance depicts activity which is inconsistent with the history the Claimant has provided to medical experts.

    Facts

    Following a motor accident, the Claimant’s psychiatric impairment was assessed at 15%.

    During the course of the assessment, the Claimant gave the Medical Assessor a history that:

    🟪 She struggled to lift a can of tomatoes.

    🟪 She no longer socialised because she could no longer tolerate people.

    🟪 She only left the house to take her children to school and to swimming lessons.

    🟪 She no longer interacted with the other parents.

    🟪 The only other time she went out was to buy milk and bread from the supermarket.

    The Insurer successfully sought a Review of the Medical Assessor’s Certificate.

    Following the original assessment, the Insurer obtained surveillance which depicted the following activity:

    🟪 The Claimant driving and refuelling her motor vehicle.

    🟪 The Claimant driving her children to school and entering the school grounds.

    🟪 The Claimant watching sporting events and socialising with other people.

    🟪 The Claimant grocery shopping for more than just milk and bread on multiple occasions, with and without her children.

    🟪 The Claimant attending a hospital emergency ward with another person.

    The Insurer sought to have the surveillance admitted as evidence before the Medical Review Panel. The Claimant opposed the Insurer’s application.

    Relevant Statutory Provisions

    Rule 109 of the PIC Rules provides that surveillance recordings may not be referred to a Medical Assessor unless:

    🟪 Exceptional circumstances exist, as determined by the Commission or the President, and

    🟪 The Commission or the President orders that the surveillance recording may be referred.

      The Principal Member’s Decision

      The Principal Member noted that, pursuant to Rule 109, the power to admit surveillance lies with the President or the Commission. It followed that a Medical Assessor was not empowered to decide whether surveillance should be admitted. This is because section 8 of the PIC Act provides (by exclusion) that Medical Assessors are not part of the Commission. Pursuant to section 32 of the PIC Act, Medical Assessors are decision-makers appointed by the Commission.

      The Principal Member concluded that the surveillance should be admitted for the following reasons:

      🟪 The purpose of rule 109 is to limit the admission of surveillance recordings in medical assessments by requiring “exceptional circumstances”.

      🟪 The term “exceptional circumstances” means that the circumstances are unusual or out of the ordinary – San v Rumble (No 2) [2007] NSWCA 259 at [67].

      🟪 The activities shown in the surveillance require an explanation because those activities are inconsistent with the histories the Claimant provided to the primary Medical Assessor.

      🟪 The inconsistencies are relevant to the assessment of travel and social and recreational activities on the psychiatric impairment rating scale.

      🟪 For these reasons “exceptional circumstances” existed.

      My Perspective

      The decision in Angileri provides a useful summary of how the Commission will assess whether the “exceptional circumstances” requirement in Rule 109 of the PIC Rules is satisfied.

      It is clear that “exceptional” is not akin to “one in a million”.All that is required is that the circumstances are “unusual” or “out of the ordinary”.

      In this instance, the fact that the surveillance depicted activity which was inconsistent with the history the Claimant gave the primary medical assessor was sufficient to render it an “exceptional circumstance”.

      PJH

      #39 – Driver Most at Fault for Aggressive Merging Manoeuvre

      Decision

      Contos v Allianz Australia Insurance Limited [2026] NSWPIC 187

      Sixty-Second-or-Less Read

      A Claimant pulls out from a side street and turns left onto a major arterial road. He accelerates and heads straight for the right lane with the intention of turning right at a nearby side street. The Insured merges from the left lane into the right lane at the same time that the Claimant leaves side street. A collision results.

      Is the Claimant wholly or mostly at fault for the accident?

      In Contos v Allianz, a PIC Member found that the Claimant’s relatively culpability vastly outweighed the Insured’s minor culpability. The Member based that conclusion on a finding that the primary cause of the accident was the Claimant’s decision to execute an aggressive manoeuvre which involved merging directly into the right lane at speed.

      Principles

      ✅ A Claimant is not entitled to ongoing statutory benefits, beyond 52 weeks if their contribution to the cause of the accident exceeds 61%.

      ✅ In most-at-fault disputes, the only issue is whether the Claimant’s contributory negligence exceeds 61%.

      ✅ In multi-vehicle accidents, the Claimant’s contributory negligence is assessed by reference to the relative culpability of each vehicle involved in the accident.

      Background

      On 4 December 2023, the Claimant was driving in Punchbowl. He came to a stop at the stem of a T-intersection before turning left onto Punchbowl Road. He immediately moved into the right lane because he intended making a right hand turn at Elliot Street. At around the same time, the Insured merged from the left lane on Punchbowl Road into the right lane and a collision resulted.

      The Insurer denied liability beyond 52 weeks on the grounds that the Claimant was wholly or mostly at fault for the accident.

      The Claimant lodged a Miscellaneous Assessment in the Personal Injury Commission to resolve the dispute.

      Findings of Fact

      The Member made the following findings of fact:

      🟪 The Insured was initially travelling in the left lane of Punchbowl Road.

      🟪 The Insured passed the Claimant’s vehicle whilst the Claimant was stationary in the side street.

      🟪 The Claimant accelerated after turning left onto Punchbowl Road and was driving faster than the Insured (although neither party was speeding).

      🟪 The Insured merged from the left lane into the right lane at the time that the Claimant started his turn onto Punchbowl Road.

      🟪 The Insured checked before merging, but the Claimant was not yet behind him in Punchbowl Road.

      🟪 The Claimant, after making his left-hand turn, manoeuvred straight into the right lane.

      🟪 The Claimant’s vehicle collided with the Insured’s vehicle before the Insured had fully completed his merge into the right lane.

      The Member’s Decision

      The Member concluded that the Claimant was wholly or mostly at fault for the following reasons:

      🟪 In a most-at-fault dispute, the Claimant does not have to prove that the Insured was at fault.

      🟪 The issue is whether the Claimant was guilty of contributory negligence because his driving departed from the requisite standard of care expected of him.

      🟪 The Claimant’s driving did depart from the required standard because he failed to anticipate that a vehicle ahead of him on Punchbowl Road might merge into the right lane, because he failed to turn into the right lane before merging into the left lane when it was safe and because he accelerated harshly as he came out of the right hand turn from the side street.

      🟪 The Insured’s driving departed from the required standard because he did not see the Claimant’s vehicle until the impact, which suggests that he was not as aware of his surroundings as he should have been.

      🟪 The Claimant was more culpable than the Insured because his aggressive manoeuvre as he pulled out onto Punchbowl Road, thus depriving him of the opportunity to see the Insured’s vehicle ahead of him, outweighed the Insured’s minor culpability.

      🟪 The Claimant was, therefore, 70% responsible for the accident and the Insured was 30% responsible.

      My Perspective

      The decision in Contos provides yet another example of how the Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272 is applied in practice.

      The Member applied the following process:

      🟪 Decide what each party did wrong.

      🟪 Compare each party’s relative culpability.

      🟪 Place a percentage on that relative culpability.

      Based on her factual findings, the Member found that the Claimant was 70% responsible and, therefore, most at fault.

      PJH

      #38 – Due Inquiry & Search Conducted Before Scent Went Cold

      Decision

      Raad v Nominal Defendant by its agent Allianz Australia Insurance Limited [2026] NSWPIC 173

      Sixty-Second-or-Less Read

      A pedestrian is run down by a vehicle exiting a driveway. The offending driver leaves the scene without exchanging details. The Claimant says that he did not record the details of the offending vehicle, at the scene, because he was in pain. He reported the accident to the police the day after the accident and canvassed the businesses in the area for CCTV eleven days post-accident. Further steps were taken 18 months after the accident.

      Has the Claimant conducted due inquiry and search into the identity of the offending vehicle?

      In Raad v Nominal Defendant, a PIC Member found that the steps taken by the Claimant immediately after the accident, which included reporting the accident to the Police, constituted due inquiry and search even if subsequent steps, undertaken 18 months later, were undertaken after the scent had grown cold.

      Principles

      ✅ Section 2.30 of the Motor Accident Injuries Act 2017 (MAIA) provides that the Nominal Defendant is not liable for death or injury caused by an unidentified vehicle unless the Claimant has conducted due inquiry and search into the identity of the offending vehicle.

      ✅ Due inquiry and search must be prompt and as thorough as the circumstances permit.

      ✅ Due inquiry and search must be conducted before the scent grows cold.

      ✅ The Claimant, however, is not required to take steps which are likely to be futile or purely ritualistic.

      ✅ Due inquiry and search may be conducted by another person or entity in the interests of the Claimant.

      Facts

      The Claimant was involved in a pedestrian accident on 6 February 2023. Whilst crossing Canterbury Road, Bankstown, a blue sedan exited a driveway and knocked him down.

      The offending vehicle was either a Ford or a Holden. The offending driver exited his vehicle and asked whether the Claimant was alright, before departing the scene. No details were exchanged before the offending driver left.

      At the time of the accident, the Claimant was taking a lunch break after attending some workplace training. The other trainees assisted him following the accident. The Claimant was subsequently diagnosed with a fractured right leg and other musculoskeletal injuries.

      The Nominal Defendant denied the claim for statutory benefits on the grounds that the Claimant failed to conduct due inquiry and search into the identity of the offending vehicle, as required by section 2.30 of MAIA.

      Due Inquiry and Search

      The Claimant took the following steps to identify the offending vehicle:

      📆 7 February 2023 – the Claimant reported the accident to Bankstown Police who conducted their own inquiries, including canvassing for CCTV footage of the accident.

      📆 17 February 2023 – the Claimant sent emails to businesses adjacent to the accident site, requesting CCTV footage.

      📆 25 September 2024 – the Claimant placed an advertisement in the Sydney Morning Herald requesting information from the public.

      📆 September 2024 – the Claimant placed flyers around the accident site requesting information about the at-fault driver.

      The Claimant also sought information from his employer regarding the identities of the other trainees who assisted him following the accident. His requests, however, were denied on privacy grounds. Once proceedings were commenced in the Personal Injury Commission, the Claimant sought to obtain that information via a Direction for Production.

      The Member’s Decision

      The Member concluded that the Claimant had conducted due inquiry and search for the following reasons:

      🟪 The Claimant had an opportunity to photograph the offending vehicle at the scene or to otherwise record its details. A reasonable person in the Claimant’s position, however, may not have had the presence of mind, at the scene, to record the details of the offending vehicle given the pain they were experiencing immediately following the accident.

      🟪 The Claimant reported the MVA to the Police the day after the accident and emailed local businesses, seeking relevant CCTV, within 11 days of the accident. These enquiries were appropriate and sufficiently prompt.

      🟪 The steps conducted in September 2024 – over 18 months post-accident – were undertaken after the scent had gone cold.

      My Perspective

      The decision in Raad provides a useful summary of the principles which must be applied in assessing whether a claimant has conducted due inquiry and search into the identity of an offending vehicle.

      Whilst the Member found that steps undertaken over 18 months post-accident were undertaken after the scent had gone cold, the Member appears to have accepted that the steps taken promptly – within the first 11 days post-accident – were sufficient to discharge the Claimant’s statutory obligation to conduct due inquiry and search. Those steps included reporting the accident to the Police the day following the accident.

      PJH

      #37 – Claimant Who Suffered an Unforeseen Medical Episode Not Wholly or Mostly at Fault

      Decision

      McManus v QBE Insurance (Australia) Limited [2026] NSWPIC 175

      Sixty-Second-or-Less Read

      A Claimant loses control of their vehicle on a gravel road whilst negotiating a bend. The Claimant argues that the accident was caused by his left arm locking-up due to left cubital tunnel syndrome.

      Is the Claimant entitled to ongoing statutory benefits.

      In McManus v QBE, a PIC Member accepted the Claimant’s explanation of his loss of control and found that he was not wholly or mostly at fault for his accident. It followed that he was entitled to ongoing statutory benefits.

      Principles

      ✅ A Claimant is entitled to ongoing statutory benefits unless they suffered a threshold injury or they were wholly or mostly at fault for their accident.

      ✅ In wholly or most at fault disputes, the onus of proof is on the Insurer.

      ✅ A Claimant is not wholly or mostly at fault if their accident was caused by an unexpected medical episode.

      Facts

      On 25 January 2025, the Claimant was driving along Williwa Creek Road at Portland when he lost control and rolled his vehicle. The Claimant attributed his loss of control to pre-existing left cubital tunnel syndrome which caused his left arm and hand to lock-up whilst he was driving.

      On Internal Review, the Insurer found that the medical evidence did not support the Claimant’s argument that his left cubital tunnel syndrome caused his loss of control. Rather, the Insurer concluded that the Claimant was wholly or mostly at fault for his accident because he failed to adjust his driving to negotiate a bend in the gravel road.

      The Member’s Decision

      The Member decided that the Claimant was not wholly or mostly at fault for the following reasons:

      🟪 In order to be entitled to statutory benefits, the Claimant did not need to show that another party was responsible or culpable for their injury.

      🟪 The Claimant is entitled to ongoing statutory benefits unless they are wholly or mostly at fault for their accident (or their only injuries are threshold injuries).

      🟪 The onus is on the Insurer to demonstrate that the Claimant was wholly or mostly at fault.

      🟪 On the evidence, the Claimant was travelling at 40 kph, before the accident, and he was driving in a cautious manner having regard to the gravel conditions and the presence of horses in the area.

      🟪 On the evidence, the accident was wholly caused by the Claimant suffered an unforeseen medical episode.

      My Perspective

      The decision in McManus turned on its own facts given that the Member accepted the Claimant’s evidence regarding his medical condition and rejected the Insurer’s argument that the accident was caused by his speed.

      Be that as it may, having made those factual findings, the Member applied the Supreme Court’s decision in Evic by concluding that the only issue was whether the Claimant was wholly or mostly at fault. There was no need to enquire into whether any other party was at fault.

      Given the finding that the accident was caused by an unexpected medical episode, no fault could be attributed to the Claimant and it followed that he was neither wholly nor mostly at fault.

      PJH