#PeteLawNotes – Library – Page 2

#22 – Supreme Court Finds that Pet Care is an Attendant Care Service

Decision

Insurance Australia Limited t/as NRMA Insurance v Chowdhury [2025] NSWSC 1392

Sixty-Second-Or-Less-Read

A Claimant fractures his ankle in a motor accident. He is no longer able to look after his three cats.

Does providing food and water to the cats, and refilling their kitty litter, constitute treatment and care?

In IAG v Chowdhury, the Supreme Court found that pet care falls comfortably within the ordinary English meaning of “attendant care service” because the pet care aims to provide assistance to an injured person with an everyday task.

Principles

✅ The words “…services that aim to provide assistance to people with everyday tasks..” in the definition of “attendant care services” in section 1.4 are the operative words.

✅ The words “…and includes (for example) personal assistance, nursing, home maintenance and domestic services” provide guidance as to what an “attendant care service” might be but other kinds of services might also be an “attendant care service”.

✅ Pet care is an “attendant care service” because it aims to provide assistance to an injured person with an everyday task.

Facts

The Claimant was involved in a motor accident on 11 November 2024. He sustained a fractured right ankle and a left wrist injury.

The Claimant subsequently sought to recover the cost of caring for his three cats as a treatment expense within the statutory benefits regime in Part 3.4 of MAIA. The care included feeding the cats, changing the litter tray and filling the cats’ water bowl.

The Insurer declined to meet the cost of the Claimant’s pet care on the grounds that that kind of care did not fall within the definition of “attendant care services” and it follows that the pet care was not “treatment and care” within the meaning of s 1.4 of MAIA

At first instance, Member Cassidy concluded that services to assist the Claimant care for his cats were “attendant care services“. The Insurer sought judicial review in the Supreme Court.

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 “attendant care services“.

Section 1.4 of MAIA defines “attendant care services” as “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services“.

The Supreme Court’s Decision

Breaking Down the Definition of “Attendant Care Services”

Justice McHugh, at [16], observed that the words “…services that aim to provide assistance to people with everyday tasks” are the operative part of the definition and disclose a purposive intent.

More specifically:

🟪 The relevant services merely aim to provide assistance with an everyday task. They may not succeed in their ambition.

🟪 The services may or may not involve performing the identified task. The services could aim to achieve the desired outcome in another way.

🟪 The descriptor “everyday” applies to the task which the claimant previously performed, rather than the service being sought.

His Honour added that “attendant care services” includes services that fall outside the concepts of “personal assistance, nursing, home maintenance and domestic services”.

In other words, a task can be an “attendant care service” even if it is not personal assistance, nursing, home maintenance or domestic services.

Responding to the Insurer’s Arguments

His Honour responded to the arguments raised by the Insurer as follows:

🟪 The Insurer argued that damages are not recoverable at common law for the value of gratuitous pet care services

The decision in Geaghan v D’Aubert [2002] NSWCA 260 was about whether the value of gratuitous pet care services could be recovered at common law. It was not about whether a plaintiff could recover the cost they incurred in replacing the pet care they previously provided. The statutory benefits regime in Part 3.4 of MAIA is about the latter, not the former.

🟪 MAIA uses similar or identical language to the Motor Accidents Act 1988 and the Motor Accidents Compensation Act 1999 which were designed to regulate gratuitous care claims only and should be understood not to extent to pet care

Neither MAA nor MACA prevented a plaintiff from recovering the actual cost of pet care they incurred as a consequence of their injuries.

🟪 The objects and secondary materials for MAIA are inconsistent with any intention to expand common law rights and express an intention to reduce scheme costs

Many aspects of MAIA expand a claimant’s rights, beyond their common law entitlement, including a right to statutory benefits for 52 weeks irrespective of fault.

Conclusion

Justice McHugh, therefore, concluded that:

🟪 “Attendant care services” should be given its ordinary English meaning.

🟪 The evident purpose of s 3.24(1) of MAIA is to secure assistance to injured persons with everyday tasks, including in and around the home.

🟪 Providing food and water to the Claimant’s cats and changing their litter were such tasks.

🟪 Services that are aimed to assist an injured person with pet care tasks fall comfortably within the ordinary meaning of “attendant care services“.

The Insurer’s application was, therefore, dismissed.

Pete’s Perspective

The Supreme Court’s Decision in Chowdhury provides some useful insights into how treatment and care disputes should be assessed.

Pet Care

Firstly, and most obviously, given this decision, a claim to recover the cost of providing care to pets will ordinarily constitute a claim for “attendant care services” which is recoverable pursuant to s 3.24(1) of MAIA.

Whether the claimed pet care costs are reasonable and necessary and related to the accident depends on the facts of each case. Any dispute can be referred to the Commission as a medical assessment matter.

For the Injured Person

Section 3.24(1) provides that an injured person may recover expenses incurred in connection with providing treatment and care “for the injured person“.

There have been PIC decisions which suggest that the words “for the injured person” in s 3.24(1) mean that the treatment and care must actually be provided to the claimant. See, for example, Warner v IAG.

In obiter remarks, however, McHugh JA interpreted “for the injured person” more broadly by finding that the treatment and care must be for the claimant’s benefit, rather than directly to the claimant’s person or exclusively for their benefit.

The distinction was important in this dispute because the attendant care services were directed to the Claimant’s pets but they were, more broadly, for the Claimant’s general benefit. He got to enjoy having his cats and he didn’t risk further injury by looking after them himself.

“Reasonableness”

Justice McHugh proceeded on the footing, agreed between the parties, that the question was whether the Claimant was reasonably able to perform the tasks without treatment or care, as opposed to whether the task itself was reasonable.

“Everyday Tasks”

In obiter remarks, his Honour observed that there were two ways of interpreting the words “…and includes (for example) personal assistance, nursing, home maintenance and domestic services” in the definition of “attendant care services“:

The words import into the natural meaning of “everyday tasks” activities which would not, ordinarily, be considered an “everyday task“. His Honour used the example of clearing the gutters of a three-storey house with the requirement to attach a harness to a point on the roof. That task would not ordinarily constitute an “everyday task“. But the concept of “home maintenance” in the definition may expand how “everyday task” is understood.

The words assist in understanding the meaning and scope of “everyday tasks” and, again, expand the ordinary meaning of that phrase. Using the same example, if clearing the gutters of a three-storey house is “home maintenance”, that would suggest a broader understanding of what constitutes an everyday task.

There have been a number of PIC decisions which proceed on the basis that the concept of “everyday tasks” operates to limit what constitutes an “attendant care service“.

My Case Notes on those decisions can be found in the links below:

Is House Painting an “Everyday Task”?

Can Preparing a House for Sale be an “Attendant Care Service”?

Are childcare services considered treatment and care or domestic services?

Walkies! When are Dog Walking Services Treatment & Care?

Can Treatment & Care be Found on the Uber App?

Who Ruled the Dogs Out? Review Panel Finds Pet Care Is Not “Treatment or Care”

Based on his Honour’s obiter remarks, however, it is possible that the words “…and includes (for example) personal assistance, nursing, home maintenance and domestic services” operate to expand the ordinary English meaning of “everyday tasks“. How that possible interpretation might be applied in practice is yet to be seen.

PJH

#21 – How Most at Fault Disputes are Assessed When the Insured is Not at Fault

Decision

Raad v QBE Insurance (Australia) Limited [2025] NSWPIC 598

Sixty-Second-Or-Less Read

A Claimant turns left onto a major thoroughfare from a side street. She fails to stop before making the turn and she fails to see the Insured driver approaching from her right in the kerbside lane.

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

In Raad v QBE, a PIC Member found that the Claimant was 80% responsible for her accident and was, therefore, mostly at fault. In coming to this conclusion, the PIC Member found that the Insured did not breach the duty of care they owed the Claimant. The PIC Member, therefore, assessed the Claimant’s contributory negligence by reference to the extent that their standard of driving behaviour departed from the required standard of care.

Principles

✅ Pursuant to s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017, a Claimant is not entitled to ongoing statutory benefits, beyond 52 weeks, if they are wholly or mostly at fault for their accident.

✅ If the Insured driver did not breach the duty of care they owed the Claimant, the Claimant’s contributory negligence is measured by reference to the extent their driving departed from the required standard of care.

Facts

On 7 March 2024, the Claimant proceeded east on Osgathorpe Road at Gladesville. At the same time, the Insured was travelling north-west on Victoria Road in the lane closest to the kerb.

The Claimant looked both to her left and her right and saw no vehicles approaching. The Claimant proceeded to roll into the intersection, at 10 to 15 kph, and made a left hand turn onto Victoria Road.

The Insured was travelling below the speed limit, at 52 to 57 kph. Whilst the Insured was travelling in a dedicated bus lane, the bus lane was only operational until 7pm and the accident occurred after 9pm. The Insured was, therefore, lawfully using the bus lane at the time of the accident.

The front driver’s side of the Claimant’s vehicle collided with the front passenger side of the Insured vehicle.

The Insurer denied liability for ongoing statutory benefits beyond 52 weeks on the grounds that the Claimant was wholly or mostly at fault. That decision was confirmed on Internal Review and the Claimant lodged a Miscellaneous Assessment dispute in the Commission.

The Member’s Decision

The Member found the Claimant most-at-fault for the following reasons:

🟪 Where two vehicles are involved in an accident, contributory negligence is normally assessed by reference to the relative culpability of the two drivers, provided both drivers are culpable.

🟪 Whilst the Claimant did not have to establish that the Insured breached their duty of care in order to establish liability for ongoing statutory benefits, a finding must be made regarding the Insured’s breach, if any, in order to compare the relative culpability of the parties.

🟪 Given that the Insured was driving below the speed limit – and was not required to slow down every time they approached a side street – the Insured did not breach the duty of care they owed the Claimant.

🟪 In the absence of any breach by the Insured, the Claimant’s contributory negligence must be assessed by reference to the extent their standard of driving departed from the required standard of care.

🟪 The Claimant’s departure from the required standard of care was significant because she entered a major thoroughfare from a side street, without coming to a complete stop and without ensuring that there were no vehicles in the kerbside lane even though the Insured’s vehicle was there to be seen.

🟪 The Claimant’s recklessness warrants a finding of 80% contributory negligence.

Pete’s Perspective

The decision in Raad 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 highlighted that relative culpability cannot be assessed without first determining whether the Insured breached the duty of care they owed to the Claimant.

If, however, the Insured did not breach any duty of care, the accident is then akin to a single vehicle accident given that only one driver was at fault. Relative culpability can not be compared when one party is not culpable.

In those circumstances, the Claimant’s contributory negligence is measured by reference to the extent their driving behaviour departed from the standard of care required of them.

PJH

#20 – Consequential Surgery is not an “Injury” in the Absence of Harm

Decision

Allianz Australia Insurance Limited v Mandoukos [2025] NSWPICMP 844

Sixty-Second-Or-Less-Read

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 Allianz v Mandoukos, the Review Panel concluded that, in general terms, consequential surgery does not constitute an “injury“, as defined by s 1.4 of the Motor Accident Injuries Act 2017 in the absence of some detriment to the Claimant. In this dispute, the surgery was not an “injury” because the Claimant consented to the procedure and it resulted in a reduction of pain and an increase in function. The surgery was to the Claimant’s benefit rather than his detriment.

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).

✅ Physiological changes caused by consequential surgery cannot constitute an “injury”, as defined by section 1.4 of MAIA, in the absence of some detriment to the Claimant.

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.

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 Insurer successfully sought referral of the threshold injury dispute to the Review Panel.

The Review Panel’s Reasons

The Review Panel accepted that the foraminotomy procedure was reasonable and necessary and caused by the injuries sustained in the motor accident.

The Review Panel, however, concluded 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, for the following reasons:

🟪 Section 1.4 of MAIA defines “injury” to mean “personal or bodily injury” before proceeding to include psychological injuries, pre-natal injuries and injuries to artificial members, aids and equipment.

🟪 The Court of Appeal made obiter comments in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 that it is doubtful that consequential surgery could constitute an “injury” in the absence of any detrimental impact on the Claimant’s symptoms or functioning.

🟪 Whilst clause 6.113 of the Motor Accident Guidelines provides that the effect of surgery is to be included in the assessment of permanent impairment, “impairment” and “injury” are not the same thing. “Impairment” is a consequence of “injury“.

🟪 The outcome might be different if the surgery is performed negligently or causes an additional injury. In this case, the surgery was performed competently and improved the Claimant’s symptoms.

The Review Panel, therefore, certified that the surgery did not constitute an “injury” as defined by s 1.4 of MAIA.

If followed that whether the surgery constituted a threshold injury or not did not arise.

Pete’s Perspective

The Scope of the Dispute

At the outset, it is critical to understand that the decision in Mandoukos is not about causation.

The Review Panel specifically accepted that the Claimant’s foraminotomy procedure was caused by the accident.

If the Claimant ultimately demonstrated a non-threshold injury, the defendant would be liable for the full consequences of the surgery in the normal way (absent grossly negligent medical treatment). Those consequences might include, depending on the evidence, an increased WPI assessment and additional economic loss.

The issue in dispute, in Mandoukos, however, related the statutory interpretation of the gateway provisions to ongoing statutory benefits and common law damages.

Namely, whether the Claimant’s surgery constituted an “injury” as defined by s 1.4 of the MAIA. This was critical to the Claimant’s entitlements because the Claimant could not demonstrate a non-threshold injury if the surgery did not even amount to an injury in the first place. And, without a non-threshold injury, the Claimant could not proceed through the statutory gateway and recover ongoing statutory benefits or any common law damages.

So, When Does a Physiological Change Constitute an “Injury”?

At paragraph 131 of its Reasons, the Review Panel helpfully set out indicia of physiological change which might constitute an “injury“:

🟪 The change was unintentional.

🟪 The change was caused by an external force outside the control of the affected person.

🟪 The change is neither planned nor deliberate.

🟪 The change would have an adverse effect on the individual.

🟪 A reasonably minded individual would not consent to the change.

In this dispute:

🟪 The Claimant’s decision to undergo the surgery was deliberate and considered.

🟪 The aim of the surgery was to provide relief to the Claimant’s cervical spine symptoms.

🟪 The surgery did, in fact, improve the Claimant’s pain and function.

What About Treatment Which Goes Wrong?

The Review Panel’s decision in Mandoukos deals with a case where the Claimant’s surgery went to plan.

The outcome is likely to be different if the surgery (or other treatment) does not go to plan and the Claimant suffers further harm, either because the existing injury is exacerbated or a new injury is caused.

There have been some recent Review Panel decisions which concluded that additional harm caused by consequential treatment can constitute a non-threshold injury.

🟪 In Gibbin v AAI Ltd t/as GIO [2025] NSWPICMP 523, the Claimant sustained a rotator cuff tear during a manipulation under anaesthetic procedure. The Review Panel found that the tear was a non-threshold injury caused by the motor accident. My Case Note on Gibbin can be found here.

🟪 In Allianz Australia Insurance Limited v Miles (No 3) [2025] NSWPICMP 565, the Claimant suffered leg weakness following a cortisone injection. The leg weakness caused a fall which caused a right rotator cuff tear. The Review Panel found that the rotator cuff tear was a non-threshold injury caused by the motor accident. My Case Note on Miles can be found here.

What distinguishes these decisions from Mandoukos is that the consequential treatment resulted in detriment to the Claimant. It followed, in each case, that the detrimental physiological change caused by the treatment constituted an “injury” as defined by s 1.4 of MAIA. In these two examples, the injuries in question – rotator cuff tears – fell outside the definition of “threshold injury” in s 1.6.

What About WPI Assessments?

The decision in Mandoukos only relates to whether consequential surgery constitutes an “injury” pursuant to the definition in s 1.4 of MAIA.

As the Review Panel correctly pointed out, when it comes to the assessment of permanent impairment, clause 6.113 of the Motor Accident Guidelines provides that the effect of surgery is to be included in the assessment.

So, this is (yet another) potential anomaly in the legislation.

Consequential surgery which goes to plan and does not cause any additional detriment to the Claimant is not an “injury” pursuant to the definition in s 1.4.

If, however, the Claimant has a non-threshold injury, the effects of surgery related to that injury does count when assessing the Claimant’s permanent impairment.

PJH

#19 – Who Ruled the Dogs Out? Review Panel Finds Pet Care Is Not “Treatment or Care”

Decision

Irani v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPICMP 832

Sixty-Second-Or-Less Read

A Claimant suffers a psychological injury as a consequence of a motor accident. He says that his two dogs assist his psychological well-being.

Can the Claimant recover the cost of walking and washing his dogs from the CTP insurer as a treatment and care expense?

In Irani v IAG, the Medical Review Panel concluded that caring for pets fell within neither the definition of “rehabilitation” nor “attendant care services“. It followed that the cost of walking and washing the dogs was not a treatment expense which could be recovered as a statutory benefit. Furthermore, the Review Panel found that the Claimant’s psychological condition did not prevent the Claimant from walking and washing his dogs himself in any event.

Principles

✅ Section 3.24 of the Motor Accident Injuries Act 2017 (MAIA) only permits a claimant to recover expenses which constitute treatment or care.

✅ Section 1.4 of MAIA defines what constitutes “treatment and care“.

✅ Section 1.4 of MAIA provides separate definitions of “attendant care services” and “rehabilitation” which are two subsets of “treatment and care“.

✅ Pet care, as a general concept, does not constitute an “attendant care service” because “domestic services” does not extend to the care of pets.

✅ Pet care, again as a general concept, does not constitute “rehabilitation” because caring for pets is not part of a process which enables a claimant to maximise their independent living or their full participation in all aspects of life.

✅ A claimant may not, therefore, recover the cost of looking after pets as a “treatment and care” expense.

Facts

The Claimant was injured in a motor accident on 5 April 2022. He subsequently claimed the cost of dog walking and washing from the Insurer. The Claimant argued that the costs of caring for his dogs was a treatment expense and, therefore, a statutory benefit payable pursuant to s 3.24 of MAIA.

A PIC Member subsequently conducted a Miscellaneous Assessment and concluded that “emotional or therapy animals fall within the definition of `rehabilitation’ and are, therefore, a form of treatment within the meaning of s 1.4 of the Act“.

Once that determination was made, a reasonable and necessary dispute proceeded to a Medical Assessor for assessment. The Medical Assessor concluded that the cost of caring for the dogs was not reasonable and necessary because the dogs in question where not therapy animals or trained therapy dogs.

The Claimant successfully sought referral to the Review Panel.

The Review Panel’s Reasons

What was the Scope of the Dispute?

The medical dispute before the Review Panel was limited to the Insurer’s liability for dog walking and dog washing services for the following reasons:

🟪 A “medical dispute” means a dispute between a claimant and an insurer about a “medical assessment matter” (Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71).

🟪 The notice of decision made by the Insurer was limited to its liability for ongoing dog walking and dog washing services.

🟪 The Claimant had only sought an internal review of the Insurer’s decision regarding those services.

Given that the dispute between the parties was limited to the Insurer’s liability for dog walking and dog washing services, the broader dispute regarding whether the presence of pets constitutes treatment (or care) was not part of the medical dispute before the Review Panel.

Did the Claimant’s psychological injury cause a need for dog walking and washing services?

Based on the medical evidence, the Review Panel concluded that:

🟪 The Claimant’s psychological injury did not prevent the Claimant from washing his dogs.

🟪 The Claimants psychological injury did not prevent the Claimant from walking his dogs, even though that meant leaving the grounds of his home, given that there was evidence that the Claimant was able to leave home for other purposes.

It followed that neither the need for dog walking nor dog washing services was related to any injuries the Claimant sustained in the accident.

Is Dog Washing or Dog Walking a Treatment Expense?

Having determined the medical dispute between the parties, the Medical Review Panel added that pet care, as a general concept, does not fall within the definition of “treatment and care” in s 1.4 of the MAIA.

The Review Panel gave the following reasons:

🟪 Neither dog washing nor dog walking are rehabilitation because they are not part of a process which enables the Claimant to attain and maintain the maximum level of independent living.

🟪 Neither dog washing nor dog walking are an attendant care service because they do not constitute personal assistance, nursing or home maintenance or domestic services.

🟪 Neither dog washing nor dog walking constitute “domestic services” – being a sub-set of “attendant care services” – given the decision in Geaghan v D’Aubert [2002] NSWCA 260, where the Court of Appeal held that domestic care does not extend to the care of domestic pets. The Review Panel recognised that the decision in Geaghan concerned a claimed for damages but observed that it provided guidance to the Panel as to the scope of the term “domestic services“.

Are the Dogs Themselves a Treatment or Care?

As noted above, the Review Panel concluded that the medical dispute between the parties was limited to dog walking and dog washing because only the request for dog washing and dog walking were the subject of the Insurer’s decision and only the request for dog washing and dog walking proceeded to internal review.

The Review Panel considered, nonetheless, whether the dogs themselves were a form of treatment or care.

The Review Panel concluded they were not, for the following reasons:

🟪 Dogs (or, presumably, other pets) are not “attendant care services” because they do not constitute services that aim to provide assistance to the Claimant with everyday tasks and are not personal assistance, nursing, home maintenance or domestic services.

🟪 Dogs (and other pets) are not “rehabilitation” because they do not enable the Claimant (or attempt to enable the Claimant) to attain and maintain the maximum level of independent living, and full physical, mental, social and vocational ability and the full inclusion and participation in all aspects of life.

🟪 Dogs (and other pets) do not fall within any of the other types of treatment and care listed in the definition.

In coming to this conclusion, the Review Panel noted that:

🟪 There was no evidence that the Claimant’s dogs played any role beyond enjoyment and companionship.

🟪 The dogs did not improve the Claimant’s psychological state in a manner consistent with their presence being treatment.

🟪 The dogs were not trained therapy dogs and did not serve any therapeutic function.

🟪 The dogs did not assist the Claimant to live independently or to participate in all aspects of life.

🟪 The role the dogs had after the accident was no different from the role the dogs had before the accident.

The Review Panel’s Certificate

For the above reasons, the Review Panel certified that:

🟪 For the purpose of s 3.24 of MAIA, the claimed dog washing and dog walking expenses are not “treatment and care“.

🟪 The claimed dog washing and dog walking expenses do not relate to the psychological injury caused by the motor accident.

Pete’s Perspective

The Review Panel in Irani determined that:

🟪 Pet care services – such as dog walking and dog washing – are not “treatment and care” primarily on the basis that “domestic services” does not include pet care.

🟪 Animals kept as ordinary pets are also, in themselves, not “treatment and care” because they fall within neither the definition of “rehabilitation” nor the definition of “attendant care services“.

Somewhat serendipitously, similar issues were argued before the Supreme Court as recently as 5 November 2025.

In Chowdhury v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 167, the claimant alleged that her injuries prevented her from providing food and water to her cats and from cleaning their litter tray.

A PIC Member found that pet care can constitute an “attendant care service” because caring for a pet is a domestic service of an everyday nature.

The PIC Member was well aware that the Court of Appeal had held in Geaghan that a claim for domestic gratuitous services, under the Motor Accidents Compensation Act 1999, did not extend to pet care. The Member stated, however, that Geaghan (and other related cases) concerned the award of lump sum damages in claims made under a previous motor accident compensation scheme and that “care must be taken in attempting to apply legal principles relevant to damages to a scheme of defined and prescribed benefits”.

The Insurer applied for judicial review of the Member’s decision in Chowdhury and the Hearing took place just last week.

It is not yet known when the Supreme Court will hand down its decision in Chowdhury. It is, however, greatly anticipated because it is likely to provide guidance not only on whether pet care can be claimed as a treatment expense but may also provide guidance on when precedent decisions made in a damages claim under a prior scheme may be applied to the statutory benefits scheme in Part 3 of MAIA.

PJH

#18 – Bird Stike – Driver Left With Nobody to Sue

Decision

Mousawi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 557

Sixty-Second-Or-Less Summary

A bird crashes into the windscreen of a vehicle. The driver swerves and crashes into some parked cars.

Can the driver recover damages from the CTP insurer of the parked vehicles?

In Mousawi v IAG, a PIC Member found no causative use or operation by the owner of the parked vehicles. The PIC Member also found that s 5.4 of the MAIA prevented the driver from recovering damages under the no-fault provisions in Part 5 where the driver’s act or omission caused the accident, even if the act or omission was involuntary, did not amount to fault and was not the sole or primary cause of the accident. In this instance, the driver’s act of swerving, post-bird strike, disqualified them from recovering no-fault damages.

Principles

✅ Pursuant to section 1.4 of the Motor Accident Injuries Act 2017, the “use or operation” or a motor vehicle includes the parking of the vehicle.

✅ The time a vehicle has been parked is relevant to whether it continues to be “in use” at the time a motor accident occurs.

✅ Even if a parked vehicle remains “in use” at the time of a motor accident, its owner is not liable unless there is some fault in the way that the vehicle was parked.

✅ Pursuant to section 5.4 of MAIA, a driver is precluded from recovering damages, pursuant to the “no-fault” provisions in Part 5 of MAIA, if the accident was caused by some act or omission by that driver.

✅ The preclusion in s 5.4 apples even if the driver’s act or omission was involuntary, does not amount to fault and was not the sole or primary cause of the accident.

Facts

On 3 May 2021, the Claimant was driving in Auburn at a speed of approximately 45 kph. Suddenly a bird hit the windscreen of his Tarago. The Claimant turned the steering wheel to the left and collided with some parked cars which were parked parallel to the kerb.

The Claimant made a claim for damages against the Nominal Defendant on the following bases:

🟪 The parked vehicles into which she crashed were unregistered and uninsured on the day of this accident.

🟪 Her injuries were caused by fault in in the parking of the unregistered vehicles.

🟪 In the alternative, the Claimant alleged that she was injured in a no-fault accident, as defined by section 5.1 of MAIA, and it follows that the owner of the parked vehicles was deemed to be at fault by section 5.2 of MAIA.

The Nominal Defendant denied liability on the grounds that the Claimant was wholly responsible for the accident.

Factual Findings

The Member made the following key factual findings:

🟪 The vehicles had been parked in the same position for at least two weeks.

🟪 The vehicles were parked within the designated parking lane, parallel to kerb, close to and the gutter and, contrary to the Claimant’s submission, without protruding into the westbound lane of the road.

The Member’s Decision

The Member found that the Nominal Defendant was not liable for the following reasons:

Was the Claimant injured in a motor accident within the meaning of s 1.4 of MAIA?

There is no doubt that the Claimant was involved in a “motor accident” within the meaning of section 1.4 of MAIA given that:

🟪 The accident involved the use or operation of a motor vehicle that caused injury to the Claimant, and

🟪 The Claimant’s injury was “a result of and caused during the vehicle’s running out of control“.

Importantly, the definition of “motor accident” in s 1.4 does not include any reference to fault and does not limit itself to accidents involving registered vehicles.

Does the Claimant satisfy the gateway provisions in s 1.9 of MAIA?

The requirements of section 1.9 of MAIA are not met because:

🟪 There was no causal or temporal connection between the Claimant’s injury and the use or operation of the parked vehicle. The vehicles were parked some two weeks prior to the accident and were no longer being “used” when the accident occurred.

🟪 There was no fault by the owner of the parked vehicles in the manner those vehicles were parked. The vehicles were legally parked. They were positioned parallel with and close to the kerb. No part of the parked vehicles obstructed the westbound lane of the road.

Was the Claimant injured in a no-fault accident within the meaning of Part 5 of MAIA?

The no-fault provisions in Part 5 of MAIA do not aid the Claimant in establishing liability for multiple reasons, including:

🟪 Section 5.1 is not satisfied because the accident was not caused by any relevant use or operation by the owner of the parked vehicles.

🟪 The presumption in 5.3 does not arise because the accident was caused by the Claimant losing control of her vehicle after she moved the steering wheel to the left following the bird-strike.

🟪 Section 5.4 precludes the Claimant, as the driver of the vehicle, recovering damages where the accident is caused by the driver’s own act or omission. The preclusion applies even if the act or omission was involuntary, did not amount to fault and was not the sole or primary cause of the accident. In this case, the Claimant’s act of moving the steering wheel to the left, following the bird strike was an act which contributed to the accident. As such, s 5.4 was engaged.

Pete’s Perspective

The decision in Mousawi provides two useful reminders.

Firstly, where a driver crashes into a parked vehicle, it is extremely difficult for the driver to blame the owner of the parked vehicle for their injuries. This is particularly so if the evidence establishes that the vehicle has been in its parked position for a lengthy period of time, in which case it may no longer be “in use” at the time of the accident. Even more so if there is no evidence that there was any want of care in the way the vehicle was parked.

Secondly, drivers who contribute to their own accident are, for the most part, unable to recover damages pursuant to the “no-fault” provisions in Part 5 of MAIA.

It is worth remembering that the blameless accident scheme was first introduced into the Motor Accidents Compensation Act 1999 in response the tragedy which befell Sophie Delezio. In December 2003, Sophie was two-and-a-half-year-old girl. She was trapped under a burning vehicle for a prolonged period after an elderly driver suffered an unexpected medical episode and crashed into her childcare centre. The intention of the blameless accident / no-fault provisions is to protect the innocent victims of motor accidents, like Sophie Delizio, rather than the driver of the vehicle which caused their injuries.

Section 5.4 of MAIA executes that intention by making it clear that a driver is precluded from recovering damages, under Part 5, if they do the slightest thing wrong even if their act or omission is involuntary, even if their act or omission does not amount to fault and even if their act or omission is not the sole or primary cause of the accident. Any causative act or omission by the driver locks them out of Part 5.

PJH

#17 – Claimant’s Duty to Co-operate with the Insurer is Mandatory

Decision

AAI Limited t/as AAMI v Elias [2025] NSWPICMR 31; (8 October 2025)

Sixty-Second-Or-Less Read

An injured Claimant claims weekly statutory benefits. The documents he relies upon are riddled with inconsistencies. There are concerns he may have received undisclosed income post-accident. The Insurer requests further information and documents from the Claimant to verify his earnings and to verify that no part of his claim is fraudulent. The Insurer’s request is made pursuant to s 6.24 of the Motor Accident Injuries Act 2017 which mandates that the Claimant must co-operate with the Insurer by providing information and documents to assist the Insurer to verify the claim and ensure that no part of the claim is fraudulent.

Can the Claimant be compelled to provide the further information?

In AAMI v Elias, a Merit Review found that the Insurer’s request for further information was reasonable and that the Claimant had no reasonable excuse for non-compliance.

Principles

✅ Section 6.24 of the Motor Accident Injuries Act 2017 (MAIA) requires the Claimant to co-operate with the Insurer by providing information to assist the Insurer to verify the claim, or parts of the claim.

✅ The obligation in s 6.24 to co-operate with the Insurer is mandatory.

Facts

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

The Claimant alleged that he employed was a full-time manager and that he earned $1,500 per week.

The Insurer detected discrepancies in the payslips provided by the Claimant and was concerned that the Claimant may have received undisclosed income post-accident.

In order to verify the Claimant’s pre-accident and post-accident earnings, and to ensure that no part of the claim was fraudulent, the Insurer requested:

🟪 Unredacted personal bank statements.

🟪 A notice of assessment for the year prior to the MVA.

🟪 The Claimant’s superannuation statement.

The Claimant refused to provide the documents requested by the Insurer.

The Insurer sought a merit review as to whether the requested documents were reasonably required and whether the Claimant had a reasonable explanation for his failure to comply with the request.

The Merit Reviewer’s Decision

The Merit Reviewer found the Insurer’s request was reasonable and that the Claimant had no reasonable explanation for non-compliance, for the following reasons:

🟪 The Insurer is under an obligation to be satisfied that the claim is valid.

🟪 Pursuant to section 6.24 of MAIA, a Claimant is under a mandatory obligation to “co-operate fully” with the Insurer to assist the Insurer to discharge its obligation.

🟪 Given that a Claimant bears the onus of establishing a valid claim for statutory benefits, a Claimant fails to comply with their obligation under s 6.24 at their own peril.

🟪 The Insurer’s request that the Claimant co-operate by providing additional information and documents was reasonable because the documents provided by the Claimant were riddled with inconsistencies and there were genuine concerns regarding the validity of his claimed pre-accident and post-accident earnings.

🟪 The Claimant’s privacy concerns did not amount to a reasonable explanation for non-compliance with the Insurer’s request.

Pete’s Perspective

The decision in Elias confirms that s 6.24 of MAIA mandates that the Claimant must fully co-operate with the Insurer by providing relevant information and documents about the claim.

The obligation in s 6.24 is frequently confused with the obligation in s 6.25. The two sections, however, serve different purposes.

Section 6.25 only applies to a claim for damages. It obligates the Claimant to provide full particulars of their claim. The obligation exists even if the Insurer does not request compliance.

Section 6.24 applies to both a claim for damages and a claim for statutory benefits. It obligates the Claimant to co-operate with the Insurer by providing information and documents to help the Insurer satisfy itself that no part of the claim is fraudulent and to allow the insurer to assess liability and make an informed offer of settlement.

Importantly, the obligation in s 6.24 goes beyond the provision of particulars and extends to information and documents.

PJH

#16 – How is Relative Culpability Assessed When One Party Disobeys the Road Rules?

Decision

Singh v QBE Insurance (Australia) Limited [2025] NSWPIC 524

Sixty-Second-Or-Less Summary

A Claimant enters a multi-lane intersection against a red traffic light. The Insured, approaching from the opposite direction, makes a right hand turn across the Claimant’s path. The Insured has the benefit of a green arrow.

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

In Singh v QBE, a PIC Member found that the Claimant’s relative culpability was 80% and the Insured’s relative culpability was 20%. The Insured was found to be partially responsible because he should have anticipated that not every road user would obey the road rules and modify his driving accordingly.

Principles

✅ Pursuant to s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017, Claimant is not entitled to ongoing statutory benefits if they are wholly or mostly at fault for their accident.

✅ In accidents involving more than one vehicle, an assessment of the Claimant’s contributory negligence calls for an assessment of the relative culpability of the parties.

✅ Where one party disobeys the road rules, the other party may still contribute to the accident because they should have anticipate that another road user may not obey the road rules.

Facts

On 1 June 2022, at approximately 6.30pm, the Claimant proceeded into a multi-lane intersection of the Northern Road and Elizabeth Drive, Luddenham. At the same time, the Insured entered the intersection from the opposite direction and attempted to make a right-hand turn across the Claimant’s path. A collision resulted.

The Insurer denied liability for ongoing statutory benefits on the grounds that the Claimant was wholly or mostly at fault because he entered the intersection against a red light. The Insurer’s liability determination was confirmed on Internal Review and the Claimant lodged a Miscellaneous Assessment matter in the Commission.

Based on the lay and expert evidence, the Member made the following factual findings:

🟪 The Claimant entered the intersection against a red light.

🟪 The Insured entered the intersection with the benefit of a green arrow.

🟪 The Claimant only became aware of the Insured’s vehicle a moment before the impact.

🟪 The Insured only became aware of the Claimant’s vehicle when he heard and felt the impact.

🟪 Both parties had their headlights illuminated.

🟪 The Claimant was travelling at 80 kph prior to the impact.

🟪 The Insured was travelling at 60 kph prior to the impact.

The Member’s Decision

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

🟪 Pursuant to the Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272, in an accident involving two vehicles, the Claimant’s contributory negligence is assessed by reference to the relative culpability of the two drivers.

🟪 In this case, the Claimant’s relative culpability significantly outweighed the Insured’s relative culpability.

🟪 The Claimant contributed to the cause of the accident by entering the intersection against the red traffic light which faced him.

🟪 A reasonable road user in the Claimant’s position, however, must anticipate that not every driver will comply with the road rules and modify their driving accordingly.

🟪 The Insured contributed to the accident by failing to detect, prior to the impact, that the Claimant had entered the intersection.

🟪 A just and equitable apportionment of responsibility would be 80% to the Claimant and 20% to the Insured.

Pete’s Perspective

The decision in Singh applied the Supreme Court’s decision in Evic that assessing contributory negligence, in accidents involving more than one vehicle, requires an assessment of each party’s relative culpability.

Once the Member made a finding that it was the Claimant – and not the Insured – who entered the intersection against a red light, it was, perhaps, inevitable that the Member would find that the Claimant was wholly or mostly at fault.

It was interesting, however, to see that the Member found that the Insured was partially at fault because he should have anticipated that a road user, such as the Claimant, might disobey the road rules and modify their driving accordingly.

PJH

#15 – Abawi Applied – Injury to Skin a Threshold injury

Decision

Insurance Australia Limited t/as NRMA Insurance v Rababi [2025] NSWPICMP 744

Sixty-Second-Or-Less Read

A Claimant is involved in a motor accident and sustains an abrasion to the back of their hand. The Claimant alleges that the hand injury aggravated a pre-existing palsy condition resulting in loss of use of the right arm.

Did the motor accident cause a non-threshold injury entitling the Claimant to ongoing statutory benefits and common law damages?

In IAG v Rababi, the Review Panel found that the motor accident only caused an abrasion to the Claimant’s right hand, with no nerve involvement. The Review Panel applied the Court of Appeal’s decision in Allianz v Abawi and concluded that the abrasion was a soft tissue injury and, therefore, a threshold injury.

Principles

✅ A Claimant is not entitled to ongoing statutory benefits or common law damages if the only injuries they sustain in a motor accident are threshold injuries.

✅ Section 1.6 of the Motor Accident Injuries Act 2017 (MAIA) provides that a “soft tissue injury” is a “threshold injury“.

✅ An injury to the skin, which does not involve the nerves, is a “soft tissue injury” and, therefore, a “threshold injury“.

Facts

The Claimant was involved in a motor accident on 10 November 2022. He was driving his vehicle when the insured vehicle drove out from a petrol station and collided with the passenger side of his vehicle. He alleged that the accident caused a fractured nose and scarring to his right hand.

A threshold injury dispute proceeded to the Commission for assessment. The primary Medical Assessor determined that the accident did not cause any fracture to the Claimant’s nose. Following the Supreme Court’s decision in Allianz Australia Insurance Limited v The Estate of the Late Summer Abawi [2024] NSWSC 1245, the Medical Assessor certified that the scarring to the Claimant’s right hand was a non-threshold injury.

The Insurer successfully sought a review.

In response, the Claimant argued that the accident had aggravated his pre-existing Erb’s Palsy to the point where he no longer had the use of his right arm.

Erb’s Palsy is a type of brachial plexus injury which causes weakness or paralysis of the arm and shoulder muscles resulting from damage to the nerves running from the neck to the arm.

The Review Panel’s Decision

The Review Panel agreed with the primary Medical Assessor’s conclusion that the Claimant did not sustain any fracture to his nose in the motor accident.

The Review Panel also concluded that the only injury the Claimant sustained to his right upper limb was a soft tissue injury, for the following reasons:

🟪 The hospital discharge referral only referred to an abrasion of the right wrist and recorded good grip strength and intact sensation bilaterally.

🟪 An x-ray taken on the day of the accident did not reveal any structural damage or fracture to the right wrist.

🟪 A subsequent certificate of capacity did not refer to any loss of sensation or function.

🟪 The Claimant’s GP notes did not reference any deterioration in the Claimant’s arm function.

🟪 The lack of sensation affecting the back of the Claimant’s hand, at the location of the abrasion, was exactly the same as the loss of sensation affecting the Claimant’s forearm.

🟪 The abrasion to the back of the Claimant’s hand was superficial in nature and did not result in any significant scarring.

🟪 The abrasion to the back of the Claimant’s hand could not have caused the systemic loss of function and sensation along the entire forearm.

It followed that the only injury the Claimant sustained in the accident was an abrasion to the Claimant’s right hand with no nerve involvement.

The Review Panel noted that, based on the case law which existed at the time of their decision, the primary Medical Assessor was correct to find that the skin abrasion was not a soft tissue injury and was, therefore, a non-threshold injury.

Since that time, however, the Court of Appeal’s decision in Allianz Australia Insurance Limited v Estate of the Late Summer Abawi [2025] NSWCA 85 had been delivered.

The Review Panel applied the Court of Appeal’s decision and found that a skin injury which does not involve the nerves is a soft tissue injury and, therefore, a threshold injury.

Pete’s Perspective

The Review Panel’s decision in Rababi is one of the first to apply the Court of Appeal’s decision in Abawi.

My full Case Note on the Abawi decision can be found here.

PJH

#14 – Single Vehicle Accidents – How Liability is Assessed Differently in Statutory Benefit and Common Law Claims

Decision

BVV v QBE Insurance (Australia) Limited [2025] NSWPIC 496; (23 September 2025)

Sixty-Second-Or-Less Read

A Claimant suffers an unexpected hypoglycaemic episode, whilst driving, and crashes into four cars. He successfully makes a claim for ongoing statutory benefits because he was not wholly or mostly at fault for his accident.

Can the Claimant recover damages under common law pursuant to the no-fault provisions in Part 5 of the Motor Accident Injuries Act 2017?

In BVV v QBE, a PIC Member found that s 5.4 precluded the Claimant – as a driver in a no-fault accident – from recovering damages.

Principles

✅ A driver who experiences an unexpected medical episode, whilst driving, might be able to recover ongoing statutory benefits, beyond 52 weeks, because they are not wholly or mostly at fault for the accident.

✅ Section 5.4 of the Motor Accident Injuries Act 2017 (MAIA), however, prevents the same driver from recovering damages under common law, pursuant to the no-fault provisions in Part 5, because they are the driver of the vehicle deemed to be at fault.

Facts

The Claimant was involved in a motor accident on 11 March 2024 on the Cumberland Highway. The accident was caused by a hypoglycaemic episode which resulted in him losing control of his vehicle and colliding with four stationary vehicles.

The Insured denied liability to pay the Claimant damages under common law and the Claimant lodged a damages dispute in the Commission.

Relevant Definitions

A “no-fault motor accident” is defined by s 5.1 of MAIA, as follows:

“no-fault motor accident means a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.”

Section 5.4 limits the ability of the driver in a no-fault accident to recover damages, as follows:

5.4 No recovery of damages for driver who caused accident

(1) There is no entitlement to recover damages because of the operation of this Part in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver.

(2) The death of or injury to a person is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if—

(a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or

(b) the act or omission was involuntary, or

(c) the act or omission was not the sole or primary cause of the death or injury.

The Member’s Decision

The Member found that the Claimant was not entitled to Damages under Common Law, for the following reasons:

🟪 In the context of a claim for damages, “fault” means the tort of negligence.

🟪 The Claimant did not owe a duty of care to himself and his injuries were, therefore, not caused by any breach of duty of care.

🟪 Given that the accident was caused by an unexpected medical episode, and no other party was at fault, the accident was a no-fault accident within the meaning of s 5.1 of MAIA.

🟪 Section 5.4 of MAIA, however, prevents the Claimant, as the driver in a no-fault accident, from recovering damages.

Pete’s Perspective

The decision in BVV provides a useful case study of how liability in single vehicle motor accidents is assessed differently in statutory benefit and common law claims.

The PIC Member found, in a prior decision, that the Claimant was entitled to ongoing statutory benefits, beyond 52 weeks, because he was injured in a motor accident in NSW and he was not wholly or mostly at fault for his accident. The outcome may have been different if the Claimant had warning that he was at risk of suffering a hypoglycaemic episode whilst driving and decided to drive anyway, but the PIC Member made a factual finding that the episode was unexpected.

In this decision, the PIC Member found that the Claimant was not entitled to recover damages under common law because (a) his injuries were not caused by the fault of another owner or driver, and (b) section 5.4 precluded him, as the driver in a no-fault accident, from recovering damages.

These decisions illustrate that, for the most part, the only chance a driver in a single vehicle motor accident has of receiving compensation is in the statutory benefits arena.

My Case Note on the prior decision in BVV can he found here.

#13 – Evic Applied – How to Assess Contributory Negligence in a Chain Collision

Decision

Freitas v QBE Insurance (Australia) Limited [2025] NSWPIC 475

Sixty-Second-Or-Less Read

Vehicle A comes to a halt on the road. Vehicle A’s brake lights are not working which creates an emergency situation for the driver of Vehicle B. That driver, however, manages to avoid a collision. The Claimant is riding his motorbike behind Vehicle B. The Claimant tries to brake but collides with Vehicle B due to a combination of the wet conditions, the absence of ABS brakes and his failure to maintain a proper distance.

Was the Claimant wholly or mostly at fault for his accident?

In Freitas v QBE, a PIC Member found that the Claimant and the driver of Vehicle A were equally responsible for the accident. The driver of Vehicle B was blameless. The Claimant’s contribution to the accident was, therefore, 50%. It followed that the Claimant was not wholly or mostly at fault.

Principles

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

✅ In multi-vehicle accidents, contributory negligence is assessed by comparing the relative culpability of all drivers involved in the accident.

Facts

The Claimant was injured in a motor accident on 2 May 2024 when his motor vehicle collided with the rear of the vehicle ahead of him.

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

Three vehicles, all travelling in the same direction, were involved in the accident, in the following order:

1️⃣ Vehicle A.

2️⃣ Vehicle B.

3️⃣ The Claimant’s Vehicle.

The PIC Member made the following findings of fact:

🟪 It had been drizzling on the morning of the accident and the road was wet.

🟪 The Claimant was riding his motorcycle at 40 kph.

🟪 Vehicle A came to a stop.

🟪 The driver of Vehicle B was faced with an emergency situation because the brake lights on Vehicle A were defective and did not illuminate.

🟪 The driver of Vehicle B braked and managed to avoid colliding with Vehicle A.

🟪 The Claimant also applied his brakes, but his rear wheel lost control due to the state of the wet road and because the motorbike did not have ABS brakes.

🟪 The Claimant’s motorbike collided with the rear of Vehicle B.

The Member’s Decision

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

🟪 The Supreme Court decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272 applies to both single vehicle and multi-vehicle accidents.

🟪 In multi-vehicle accidents, the Claimant’s contributory negligence is assessed by comparing the relative culpability of each driver involved in the accident.

🟪 The driver of Vehicle A contributed to the cause of the accident by driving a vehicle which did not have effective brake lights.

🟪 The driver of Vehicle B did not contribute to the cause of the accident. He was confronted with an emergency situation, braked immediately and successfully avoided a collision with the vehicle ahead of him.

🟪 The Claimant contributed to the cause of his accident because he knew that the road was wet and that his motorbike did not have ABS brakes. As such, a reasonable person in his position would have left extra time and distance between his vehicle and the vehicle ahead.

🟪 The Claimant and the driver of Vehicle A were equally responsible for the accident.

🟪 The Claimant’s contributory negligence was, therefore, 50%.

Pete’s Perspective

The Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272 was something of a game-changer because it clarified that, in single vehicle motor accidents, the driver’s contributory negligence is assessed by reference to how far the Claimant’s driving conduct departed from the required standard of care.

The decision in Freitas, however, confirms that the impact of Evic is not limited to single vehicle accidents.

At paragraph 63 of her reasons, the PIC Member summarises the principles enunciated in Evic as follows:

“a. an injured person’s entitlement to benefits does not require the claimant to prove fault and there is no distinction in the legislative scheme between single and multi-party accidents [55];

“b. the phrase ‘wholly or mostly’ at fault is a composite phrase (not two separate concepts);

“c. the phrase is addressed at the claimant’s contributory negligence [56] relevant to the accident (and not the injury) which “accommodates all types of motor accidents, including single vehicle accidents where the injured person is the owner driver” [57];

“d. s 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of s 5R(2)(a) of the CL Act and the test of contributory negligence is “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person” [60];

“e. where there is more than one motor vehicle involved, or the claimant is a pedestrian (and presumably a cyclist or other road user), the claimant’s contributory negligence is assessed by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk at [61];

“f. in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply citing at [68] Axiak v Ingram and at [69] Davis v Swift two blameless accident cases from the previous motor accident insurance and compensation scheme, and

“g. if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) requires an assessment of the degree of contributory negligence that is “just and equitable in the circumstances of the case” [73].“

As stated in point (e), in multi-vehicle accidents, the culpability of all parties to the accident must be apportioned in order to assess the claimant’s contributory negligence.

Whilst, in this dispute, the Member found that only the driver of Vehicle A and the Claimant contributed to the accident, it is not difficult to envisage a theoretical chain collision where three (or more) drivers all make a contribution to the cause of the accident. In that theoretical case, the contribution of each causative participant must be assessed and given a percentage contribution.

My full Case Note on Evic can be accessed here.

PJH

#12 – Injury Sustained on Bus not Sustained in a “Motor Accident”

Decision

Liebert v Allianz Australia Insurance Limited [2025] NSWPIC 458

Sixty-Second-or-Less Read

A Claimant is standing in the aisle of a bus. He helps another passenger retrieve an item from the luggage tray. He hyperextends his left arm and suffers a shoulder injury. Throughout this process, the bus is being driven in a normal fashion.

Is the Claimant entitled to statutory benefits?

In Liebert v Allianz, a PIC Member found that the Claimant was not injured in a “motor accident” because the way the bus was being driven was not a proximate cause of their injury. It followed that the Claimant was not entitled to any statutory benefits, even for the first 52 weeks.

Principles

✅ Pursuant to the definition of “motor accident” in section 1.4 of the Motor Accident Injuries Act 2017 (MAIA), an injury is not sustained in a motor accident unless the injury was “a result of and is caused (whether or not as a result of a defect in the vehicle) during” one of the four examples of “use or operation” listed in the definition.

✅ The words “caused during” connote a temporal connection between the use or operation of the vehicle and the injury.

✅ The words “a result of” connote a causal connection between the use or operation of the vehicle and the injury.

✅ To constitute a “motor accident“, pursuant to the definition in s 1.4, there must be both a temporal connection and a causal connection between the injury and the use or operation of the motor vehicle.

✅ An injury is not sustained in a “motor accident” if the motor vehicle merely provides the setting for the injury and the way the vehicle is being driven is not a proximate cause of the injury.

Facts

The Claimant suffered a left shoulder injury whilst riding a privately owned and operated bus on 3 April 2025.

The Insurer served a Liability Notice denying liability on the grounds the Claimant was not injured in a motor accident.

The PIC Member made the following factual findings:

🟪 The Claimant’s left arm was hyperextended or stretched whilst he was assisting a female passenger who left her bag on a luggage tray.

🟪 The CCTV demonstrated that the Claimant hurt his left shoulder during this process because it showed the Claimant holding and rubbing his shoulder.

🟪 The CCTV did not reveal any violent braking, harsh braking or sudden stopping.

Relevant Definitions

Section 1.4 of MAIA defines a “motor accident“, as follows:

“…an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where 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.

The Member’s Reasons

The Member concluded that the Claimant was not injured in a “motor accident“, for the following reasons:

🟪 The Claimant was involved in “…an incident or accident involving the use or operation of a motor vehicle…” as required by s 1.4 of MAIA given that he was riding a bus whilst the bus was being used to transport passengers.

🟪 The High Court held in Allianz Aust v GSF Aust [2005] HCA 26 that the words “ is a result of and is caused…during” involves two elements: (a) a temporal connection (ie: “caused during“), and (b) a causal relationship between the injury and one of the four examples of use or operation in the definition (ie: “a result of“).

🟪 In other words, there has to be a link between the injury and one of the four examples of “use or operation” in the definition of “motor accident”.

The Member found that in this dispute:

🟪 The bus was being driven normally so there was no connection between the injury and the driving of the bus.

🟪 There was no suggestion of a collision or any evidence of a near miss between the bus and another road user.

🟪 The bus was not running out of control.

🟪 The injury arose from the Claimant helpfully assisting a passenger retrieve an item she had left behind rather than by any dangerous situation caused by the driving of the bus.

It follows that the way the bus was being driven was not a proximate cause of the Claimant’s injury and the injury, therefore, was not caused by a “motor accident“, as defined by s 1.4.

Pete’s Perspective

Subject to limited exclusions, any person injured in a motor accident in NSW is entitled to statutory benefits for at least 52 weeks.

It is (perhaps) surprising, therefore, how few PIC decisions examine the scope of what constitutes a “motor accident”.

The decision in Liebert is important because it is one of the few decisions which examines how the High Court’s decision in Allianz v GSF applies to the statutory benefits regime in Part 3 of MAIA which doesn’t require a claimant to prove fault by an owner or driver.

The Member in Liebert confirmed that an injury is only sustained in a “motor accident” if the proximate cause of the injury is the driving of the vehicle, a collision (or near collision) with the vehicle, the vehicle’s running out of control or a dangerous situation created by the driving of the vehicle.

A “motor accident” is not the proximate cause of an injury if, as in this dispute, the motor vehicle merely provides the setting for the injury.

PJH

#11 – When is Due Inquiry & Search Reasonable?

Decision

Palmer v Allianz Australia Insurance Limited [2025] NSWPIC 440

Sixty-Second-Or-Less Read

A motorist is stationary in traffic when her vehicle is hit from behind. They are on a busy road, so the Claimant suggests the parties move to a nearby carpark to exchange details. The offending driver agrees but takes the opportunity to abscond.

Has the Claimant failed to conduct due inquiry and search into the identity of the offending vehicle given that she could have taken a photo of the offending vehicle’s number plate at the scene.

In Palmer v Allianz, a PIC Member found that the Claimant’s actions were reasonable and that she could not have anticipated that the offending driver would flee the scene. Furthermore, she reported the accident to the Police within hours, conducted her own search for CCTV and posted messages on Facebook for witnesses. The PIC Member, therefore, concluded that the Claimant had conducted due inquiry and search.

Principles

✅ Pursuant to s 2.30(2) of the Motor Accident Injuries Act 2017 (MAIA), a claim cannot be made against the Nominal Defendant, in respect of injury caused by an unidentified vehicle, unless the Claimant has conducted due inquiry and search into the identity of the offending vehicle.

✅ What constitutes reasonable due inquiry and search depends upon the circumstances.

✅ Due inquiry and search must be thorough and must be conducted promptly.

Facts

On 27 November 2024, the Claimant was involved in a motor accident whilst driving to work. She was stationary in traffic when another vehicle collided with the rear of her vehicle, pushing it into the vehicle ahead.

The three drivers exited their vehicles in order to examine the vehicle damage and exchange contact details. Given, however, that the accident occurred on a busy road, during the morning rush hour, the Claimant suggested that they all return to their vehicles and drive into a nearby TAFE car park. The car park was only some 30 metres further down the road.

The Claimant and the driver of the vehicle she was pushed into both drove into the car park, but the at-fault driver drove away.

The Claimant proceeded to exchange details with the innocent party. She then drove straight to Burwood Police Station to report the accident.

The Claimant made a claim against the Nominal Defendant because she could not identify the vehicle she alleged to be at fault.

The Nominal Defendant, however, denied liability on the grounds that the Claimant had failed to conduct due inquiry and search into the identify of the offending vehicle, as required by s 2.30(2) of MAIA. The Nominal Defendant alleged that the Claimant had the opportunity to record the details of the offending vehicle, at the scene, but failed to do so.

The Member’s Reasons

🟪 The Member found that the Claimant had discharged her obligation to conduct due inquiry and search for the following reasons:

🟪 The Court of Appeal’s decision in Nominal Defendant v Meakes [2012] NSWCA 66 establishes that “what is reasonable depends on the circumstances and must be prompt and thorough as the circumstances permit”.

🟪 Given the accident occurred on a single lane roadway in heavy traffic, during the morning rush hour, it was reasonable for the Claimant to suggest that the parties drive to a nearby carpark to exchange details

🟪 The Claimant had no reason to assume that the offending driver would abscond, given that he had agreed to re-convene in the nearby carpark.

🟪 There was evidence that the front number plate had fallen off in the collision and the offending driver had picked it up. If that is correct, the Claimant was not able to take a photograph of that number plate.

🟪 The Claimant report the accident to the police within hours of the accident occurring and liaised with the police, over the following weeks, in the hope that some CCTV might help to identify the offending vehicle.

🟪 Furthermore, the Claimant had scouted the area around the accident site to look for cameras and had joined a Facebook group and posted about the accident.

Pete’s Perspective

The Insurer’s reliance on Nominal Defendant v Meakes was well placed given that both the claimant in Meakes and the claimant in this dispute had an opportunity, at the scene, to record the registration number of the vehicle but did not do so.

In Meakes, the Claimant was a partner in a law firm. He was crossing a busy city intersection on a marked pedestrian crossing when he was run down by a vehicle in the kerbside lane. The driver jumped out of the vehicle and spoke to the Claimant. The Claimant, however, was in a rush to attend a meeting so he left the scene without first taking down the details of the vehicle which struck him.

Contrary to the typical hit and run accident, the Claimant got hit and he was the one to run.

The Court of Appeal accepted in Meakes that the Claimant had not conducted due inquiry and search. He knew he was injured, at the scene, but his injuries did not prevent him from opening the brief case he was carrying, retrieve a pen and a piece of paper and write down the registration number of the vehicle which was still stationary next to him. The driver, after all, was co-operating and made no attempt to abscond.

The Court of Appeal’s decision in Meakes, however, accepted that every case is different and what is reasonable depends on the prevailing circumstances of the case.

In this dispute, the PIC Member accepted that the Claimant acted reasonably by moving the conversation to the nearby carpark – in order to allow the motorists on the busy single-lane road to get on with their days – and that the offending driver’s subsequent decision to flee the scene was something she could not have anticipated.

PJH

#10 – Removalist Services are Not an “Everyday Task”

Decision

Choi v QBE Insurance (Australia) Limited [2025] NSWPIC 433

Principles

✅ A service is not “an attendant care service“, within the definition in section 1.4 of the Motor Accident Injuries Act 2017 if it is not an “everyday task” as required by that definition.

✅ A service does not constitute “treatment and care” if it is not designed to assist the Claimant in their recovery and to maximise their return to work and normal life.

Sixty-Second-Or-Less Read

An injured Claimant hires a removalist and asks the Insurer to pay the cost as “treatment and care” expense.

Are the removalist services an “attendant care service” and, therefore, “treatment and care“?

In Choi v QBE, a PIC Member found that the removalist services were not an “everyday task“, which ruled them out from being an “attendant care service“, pursuant to the definition in s 1.4 of MAIA. The Member also found that the services were not “treatment and care” because they were not designed to help the Claimant in their recovery.

Facts

The Claimant was injured in a motor accident on 8 August 2024. The accident caused a whiplash injury to his neck, together with nausea, headaches and pain in his cervical and thoracolumbar spine.

An issue subsequently arose regarding whether the cost of a removalist fell within the definition of “treatment and care” in section 1.4 of MAIA.

How the cost should be characterised was referred to a PIC Member as a Miscellaneous Assessment matter.

Relevant Definitions

Section 1.4 defines “treatment and care” to include eleven items, including “attendant care services“.

Section 1.4 also defines “attendant care services” as “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services” (emphasis added).

Member’s Decision

The Member found that engaging a removalist was not an “attendant care service” and, therefore, was not within the statutory definition of “treatment and care” for two reasons:

🟪 The removalist’s services was a one-off and was not “an everyday task” – in the sense of “usual, ordinary, mundane, routine or regular” – as required by the definition of “attendant care service” in s 1.4.

🟪 Engaging a removalist does not constitute “treatment and care” because it is not designed to facilitate the Claimant’s recovery or to maximise his return to work and other activities.

Pete’s Perspective

The decision in Choi provides another useful example of a service which is not an “everyday task” as required by the definition of “attendant care service“.

For other cases which explore what is – and what is not – an “everyday task“:

🟪 Is House Painting an “Everyday Task”?

🟪 Can Preparing a House for Sale be an “Attendant Care Service”?

🟪 Are childcare services considered treatment and care or domestic services?

🟪 The Dividing Line – When Are Renovations “Treatment & Care”?

🟪 What’s Up, Pussy Cat? Is Pet Care a Treatment Expense?

🟪 Walkies! When are Dog Walking Services Treatment & Care?

🟪 Can Treatment & Care be Found on the Uber App?

PJH

#9 – Reviewing the (Narrow) Role of the Review Panel

Decision

Allianz Australia Insurance Limited v Bell [2025] NSWCA 187

Principles

✅ The role of a Medical Assessor (whether in a primary assessment or as a member of a Review Panel) in a permanent impairment dispute is limited to the assessment of permanent impairment.

✅ A Medical Assessor is not required to determine disputes, or respond to arguments, about justiciable questions such as whether the events fall within the definition of a “motor accident” or whether some other event constitutes an intervening act which breaks the causal chain.

✅ It remains the role of a PIC Member of a Judge to determine these kinds of justiciable questions.

Sixty-Second-or-Less Read

A claimant claims psychological injury arising from an incident where he found somebody trying to steal his motorcycle. Whilst trying to prevent the theft, the would-be-thief pushes the motorcycle onto the Claimant, causing him injury. The thief flees on the back of his friend’s motorcycle. The Claimant fears that the thief and his accomplice are motorcycle gang members and fears retribution.

A permanent impairment dispute proceeds to the Medical Review Panel.

Can the Review Panel determine which of the events constitute a “motor accident” before proceeding to assess the WPI caused by the events which fall within the CTP indemnity?

In Allianz v Bell, the Court of Appeal found that the Review Panel was not a court and that its sole role in a permanent impairment dispute was to assess WPI. The Review Panel’s functions did not include assessing which aspects of the incident fell within the CTP indemnity.

It followed that the Review Panel was not required to afford the Insurer procedural fairness on questions relating to the indemnity issue, address inconsistent histories provided by the Claimant in respect of the indemnity issue or address the Insurer’s arguments relating to the indemnity issue. The Review Panel was only required to address matters relevant to its functions.

Any issue with regard to which of the events was a “motor accident”, and therefore, fell within the CTP indemnity, was a matter for a PIC Member or a Court to decide.

Facts

The Claimant was injured in dramatic circumstances.

The Claimant returned to a carpark to find a man trying to steal his Harley-Davidson motorcycle. It was broad daylight and the Claimant caught the thief red-handed.

The thief tried to start the motorcycle. The Claimant ran towards him. The thief continued in his attempts to get the motorcycle started. He failed but he did not give up. Rather than run away, the thief attempted to steal the motorcycle by wheeling it away manually.

The Claimant continued to run after the thief. When he was close enough, the thief pushed the motorcycle towards the Claimant so that it fell on him.

The footpeg of the motorcycle caused a gash in the Claimant’s leg.

The drama, however, had not yet ended.

The would-be thief’s comrade arrived on the scene. The thief jumped onto the back of his mate’s motorcycle. The rider of the getaway bike drove toward the Claimant before fleeing the scene.

The Claimant feared the thief and his friend were members of a bikie gang.

The Dispute

The Claimant alleged that the accident caused him psychological impairment. A series of disputes unfolded before a Review Panel certified that the accident caused PTSD and a Major Depressive Disorder resulting in 19% WPI.

The Insurer’s application for Judicial Review was unsuccessful in the Supreme Court.

The Insurer lodged an Appeal.

The Controversy

The cause of the Claimant’s psychological condition was controversial given:

1️⃣ The initial attempt to steal his motorcycle.

2️⃣ The physical injuries the Claimant sustained when the motorcycle was pushed onto him.

3️⃣ The Claimant’s fear that the thief and his accomplice where members of a motorcycle gang who might seek retribution.

It was uncertain which of the events caused the Claimant’s psychological injury (and to what extent) and whether items 1 and 3 constituted a “motor accident“.

Further controversy arose when the Claimant asserted before the Review Panel, for the first time, that he had harboured no concerns about motorcycle gang members.

The Issues

The following issues arose for determination:

1️⃣ The Procedural Fairness Ground – whether the Insurer was denied procedural fairness because the factual basis and the scope of the medical dispute assessed by the Review Panel was materially different to the medical dispute referred by the parties.

2️⃣ The Inconsistency Ground – whether clause 6.41 of the Motor Accident Guidelines applied to inconsistencies between the Review Panel’s clinical findings and the information obtained through medical records.

3️⃣ The Causation Ground – whether the Review Panel was required to make causation findings by reference to the events and to leave it to the Court to determine whether those events constitute a motor accident.

4️⃣ The Path of Reasoning Ground – whether the Review Panel exposed its actual path of reasoning.

5️⃣ The Articulated Argument Ground – whether the Review Panel responded to the Insurer’s substantial and clearly articulated arguments regarding the events which caused the Claimant’s psychological injury.

The Court of Appeal’s Decision

The Court of Appeal, by majority, dismissed the Insured’s appeal for the following reasons:

The Procedural Fairness Ground

Contrary to the history he had previously given, including to the original Medical Assessor, the Claimant reported to the Review Panel that he “had never indicated any concerns about motorcycle gangs“.

The Insurer argued that it was denied procedural fairness because the Panel did not draw this materially inconsistent history to the parties’ attention and invite further submissions.

The Court of Appeal rejected this ground of appeal for the following reasons:

🟪 The Review Panel’s obligation to afford procedural fairness extended to putting “the motorcycle gang issue” to the Claimant and giving him an opportunity to respond.

🟪 The Review Panel was not required, however, to put to the Claimant the various histories he had given because the Panel is not a court and its role is not to resolve the justiciable controversies between the parties.

🟪 The Review Panel, therefore, was not required to interrogate the Claimant to ascertain whether he was being dishonest or to determine which version should be accepted.

🟪 Furthermore, any failure to invite further submissions would not have resulted in any practical injustice to the Insurer because the change in the Claimant’s history was plainly obvious to the Review Panel.

The Inconsistency Ground

Clause 6.41 of the Motor Accident Guidelines (MAGs) reads as follows:

“Where there are inconsistencies between the medical assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities, the inconsistencies must be brought to the injured person’s attention; for example, inconsistency demonstrated between range of shoulder motion when undressing and range of active shoulder movement during the physical examination. The injured person must have an opportunity to confirm the history and/or respond to the inconsistent observations to ensure accuracy and procedural fairness.”

The Insurer argued that the Claimant’s inconsistent history – about whether he was concerned that the motorcycle thief belonged to a motorcycle gang – was an inconsistency to which clause 6.41 applied.

The Insurer submitted that this inconsistency was critical because it went to the heart of the question regarding whether the Claimant’s psychological injuries were caused by a motor accident or by the broader series of events, including fear of retribution from a motorcycle gang.

In the circumstances, the Insurer argued that clause 6.41 required the Review Panel to do more than merely note the existence of any inconsistency.

The Court of Appeal found that clause 6.41 did not apply to the circumstances for the following reasons:

🟪 There is nothing in the MAGs which supports an extension of the obligation in clause 6.41 to an inconsistency in the Claimant’s reported history that has no relevance to the clinical assessment.

🟪 The Claimant’s inconsistent history regarding his motorcycle gang concerns did not play any part in the clinical assessment of his PTSD or his Major Depressive Disorder.

🟪 The inconsistency in reporting was solely relevant to the issue of causation (which, for the reasons which followed, was not an issue for the Review Panel to determine).

The Causation Ground

As indicated, the cause of the Claimant’s psychological condition was controversial given the initial attempt to steal his motorcycle, the physical injuries the Claimant sustained when the motorcycle was pushed onto him and his fear that the thief and his accomplice where members of a motorcycle gang who might seek retribution.

The Insurer argued that the Review Panel was required to make findings about causation by reference to the physical events and leave it to the court or the PIC to determine whether those events constituted a “motor accident”.

In rejecting this ground, Price AJA, with whom Payne JA agreed, gave the following reasons:

🟪 The CCTV footage revealed that the series of events took place over a short period of time.

🟪 Given how quickly the events occurred, the Review Panel was entitled to find that the physical injury the Claimant sustained when his motorcycle was pushed onto him made a material contribution to his psychological injury.

🟪 The Review Panel was entitled to consider all of the events in combination and determine those events caused the Claimant’s psychological injury.

Justice Ball, however, dissented on this ground of appeal, for the following reasons:

🟪 It was reasonably arguable that there were two separate causative events: (a) the attempted theft of the motorcycle by potential motorcycle gang members, (b) the motorcycle falling on the Claimant and causing him physical injury.

🟪 The task of the Review Panel was to make findings regarding whether one or both of the events caused the Claimant’s psychological injuries.

🟪 Once those findings were made, the Review Panel could leave it to the court to determine whether one or both of the events constituted a motor accident.

The Path of Reasoning Ground

The Court of Appeal accepted that the Review Panel explained its path of reasoning in sufficient detail to enable a court to see whether their opinion did or did not involve any error of law, as required by Wingfoot Australia Partners Pty Ltd v Kocak [2013] HCA 43.

The Articulated Argument Ground

The Insurer argued that the Review Panel failed to respond to the Insurer’s substantial and clearly articulated arguments that (a) the Review Panel should have identified the specific event or events that caused the Claimant’s psychological injury and (b) whether the event or events that caused the Claimant’s psychological injury were intervening acts which broke the causal chain.

The Court of Appeal rejected this ground of appeal for the following reasons:

🟪 The Review Panel is not a court and it was not its function to adjudicate whether the events which caused the Claimant’s psychological injury constituted a motor accident.

🟪 The Review Panel’s function was limited to assessing the Claimant’s WPI, which it did.

🟪 The Insurer’s arguments therefore went to issues which the Review Panel was not required to determine.

Pete’s Perspective

What the Decision was About

The Court of Appeal, in Bell, did not determine whether the theft of the Claimant’s motorbike or whether the Claimant’s fear that bikies may seek to harm him constitutes a “motor accident“, within the meaning of section 1.9 of the Motor Accident Injuries Act 2017 (MAIA) (either alone or in combination with the physical contact between the motorcycle and the Claimant’s body).

The Court of Appeal’s decision was not about what constitutes a “motor accident‘.

Rather, the decision in Bell is about the scope of the Review Panel’s functions.

The Court of Appeal made it clear that the Review Panel is not a court and it is not the Review Panel’s role to decide justiciable issues such as whether the events fall within the definition of “motor accident“.

It follows that the Review Panel was not required to provide procedural fairness on questions related to whether the events were a “motor accident“, or raise inconsistencies which were only relevant to whether the events constituted a “motor accident” or to deal with arguments related to whether the events fell outside the concept of a “motor accident“.

Each ground of appeal fell away for the same overarching reason. It was not the Review Panel’s function to resolve the issue the Insurer placed in dispute.

Further Assessment Pursuant to Section 7.24(1)

The practical outcome of Bell is that a binding assessment remains in place that the Claimant has sustained permanent impairment above 10%.

Given, however, that it is not the Review Panel’s role to determine justiciable issues between the parties, the Insurer is still able to argue, before the PIC or the Court, whether the events constitute a “motor accident” and/or whether there has been an intervening act which severs the causal chain.

In his Honour’s dissenting Judgment, Ball JA posed this question:

“Suppose, for example, a court hearing Mr Bell’s claim accepted Allianz’s argument that there were two separate events, one only of which fell within s 1.9(1) [sic] of the MAI Act. What is it to make of the binding conclusion of the Review Panel that Mr Bell suffered a psychological injury resulting from the incident in respect of which he sues which gave rise to a permanent impairment of 19%?”

In my view, the answer to this question is that the Court (or a PIC Member) should refer the permanent impairment dispute back to the PIC for further assessment, pursuant to section 7.24(1) of MAIA, and direct the PIC Medical Assessor to re-assess the Claimant’s WPI based on the findings made by the Court (or the PIC Member) about the scope of the motor accident.

PJH

#8 – When is a Finding of 100% Contributory Negligence Justified in a Single Vehicle Accident?

Decision

CMB v QBE Insurance (Australia) Limited [2025] NSWPIC 420

Principles

✅ In single vehicle accidents, a driver’s contributory negligence is measured by the extent they departed from the standard of care required of them to protect their own safety.

✅ A driver will only be found to be 100% responsible for the accident, and therefore wholly at fault, where their departure from the required standard of care is in the worst possible category.

Sixty-Second-or-Less Read

A Claimant is driving at approximately 80kph in a 60 zone. They lose control of their vehicle and collide with a telegraph pole. A PIC Member rejects their explanation that they had to swerve to avoid another vehicle.

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

In CMB v QBE, a PIC Member found that the Claimant was not wholly at fault because their want of care did not fall into the worst possible case. The PIC Member did, however, find the Claimant’s departure from the required standard of care did warrant a finding of contributory negligence exceeding 61%. The Claimant was, therefore, mostly at fault and not entitled to ongoing statutory benefits.

Facts

The Claimant was injured in a motor accident on 23 August 2022. QBE denied liability for ongoing statutory benefits, beyond 52 weeks, because they determined that the Claimant was wholly at fault for his accident.

There was no dispute that the Claimant’s vehicle left the roadway and collided with a telegraph pole. The Insurer alleged that the accident was wholly caused by the Claimant’s want of care. The Claimant ultimately alleged that he lost control because a vehicle heading in the other direction came onto the wrong side of the road and he had to swerve to avoid a head-on collision. The matter was complicated, however, by the fact that the Claimant also alleged that he may have swerved to avoid a vehicle exiting from a driveway.

Determining what actually happened was complicated by the fact that the Claimant, at some point post-accident, was found to lack legal capacity. The Commission, however, had access to various witness accounts together with some CCTV of the accident.

The PIC Member ultimately made the following findings of fact.

🟪 Contrary to the Claimant’s claim, an oncoming vehicle did not veer into his path, causing him to swerve and loss control.

🟪 Also contrary to the Claimant’s claim, a vehicle did not exit from a driveway, causing him to swerve.

🟪 The Claimant was driving at approximately 80kph in a 60 zone.

The Member’s Decision

Having determined that the accident was a single vehicle accident, the PIC Member found that the Claimant was mostly at fault, for the following reasons:

🟪 Pursuant to the Supreme Court decision of AAI Limited t/as GIO v Evic [2024] NSWSC 1272:

🟪 The qualifiers “wholly or mostly” inform each other and are intended to address the same mischief, namely, contributory negligence.

🟪 Where there are two or more vehicles involved in the accident, an assessment of contributory negligence requires the decision maker to assess the relative culpability of each party.

🟪 In a single vehicle accident, however, where there is only one party involved, contributory negligence is assessed by looking at the extent to which the driver’s behaviour departed from the reasonable standard of care required of them to protect their own safety.

🟪 An injured person may be “wholly at fault”, consistent with the enacted law that permits a finding of 100% contributory negligence.

🟪 In Manley v Alexander [2005] HCA 79, the High Court stated that “…the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events…”.

🟪 A finding of 100% contributory negligence can be found where the departure from the standard of care is found to constitute “a worse possible case”.

🟪 Given the absence of alcohol or drugs, the circumstances in this dispute do not involve the worst possible case.

Ultimately, the PIC Member was not able to assign a percentage figure on the Claimant’s contributory negligence. Whilst not prepared to find 100% contributory negligence, the PIC Member ultimately certified that the Claimant’s contributory negligence exceeded 61% and that the Claimant was, therefore, mostly at fault.

Pete’s Perspective

The decision in CMB illustrates, once again, that a driver in a single vehicle motor accident is not wholly or mostly at fault merely because they were the only person involved in the accident.

As established by the Supreme Court in Evic, in single vehicle accidents, contributory negligence is assessed by measuring the extent to which the Claimant’s driving behaviour departed from the standard of care required of them to protect their own safety.

As we have seen in other PIC Decisions post-Evic, that departure might range from a momentary lapse of attention to gross negligence. The task for the Insurer, at first instance, and the PIC Member is to place a percentage on that departure.

The decision in CMB reminds us that a finding of 100% contributory negligence – or that the Claimant was wholly at fault – is reserved for a worst possible scenario. The PIC Member assumed a worst case might involve alcohol or drugs.

A finding of between 61% and 100% contributory negligence – or that the Claimant was mostly at fault – is still available if the Claimant’s departure from the required standard of care is significant but not in the worst case.

Whether the Claimant is found to be wholly at fault or mostly at fault, the outcome is still the same. They are not entitled to ongoing statutory benefits beyond 52 weeks.

Our Case Note on Evic can be found here.

To explore other claims where PIC Members have applied Evic:

🟪 Evic Applied – Assessing Contributory Negligence in Single Vehicle Accidents

🟪 Evic Rides Again – Driver in Single Vehicle Accident Not Mostly at Fault

🟪 Slippery When Wet – When an Unsafe Speed Means You’re Livin’ on a Prayer

🟪 Bicyclist Found Wholly at Fault

PJH

#7 – Bicyclist Found Wholly at Fault

Decision

Mitchell v Allianz Australia Insurance Limited [2025] NSWPIC 378

Principles

✅ In most-at-fault disputes, the Insured carries the onus of proof.

✅ The sole issue is whether the Claimant’s contributory negligence exceeds 61%.

✅ Where two parties are involved, a comparison is required of each party’s relative culpability.

Sixty-Second-Or-Less Read

The Insured driver is travelling at approximately 40 to 45 kph on a busy suburban road towards a pedestrian island. He sees the Claimant on his bicycle seconds before the impact. The PIC Member accepts that the Claimant was trying to use the pedestrian island to cross the road.

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

In Mitchell v Allianz, a PIC Member found that the Claimant was wholly responsible for his accident because he created an emergency situation in which the Insured could not have avoided the collision even with the exercise of reasonable care.

Facts

On 18 September 2024, the Claimant – an 80-year-old male – was riding his bicycle in Five Dock. He attempted to use a marked bicycle crossing in order to cross Lyons Road West when he was run down by the Insured vehicle. He sustained serious injuries including a fractured pelvis, a shattered right ankle and a broken femur which necessitated a hip replacement.

A photograph depicted where the Insured vehicle came to a halt. The photograph confirmed that the Insured vehicle was within the westbound lane of Lyons Road West with its passenger-side tyre on the line which marked the southern boundary of the carriageway.

The Insurer served a Liability Notice denying liability for ongoing statutory benefits beyond 52 weeks on the grounds that the Claimant was wholly or mostly at fault for the accident. That decision was affirmed on Internal Review.

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

PIC Member’s Decision

The PIC Member concluded that the Insurer had discharged its onus of proof that the Claimant was wholly or mostly at fault for the following reasons:

🟪 The Insured driver was entitled to assume that the Claimant would see his vehicle and not begin to cross the carriageway until the Insured had passed.

🟪 Whether the Claimant emerged onto the carriageway at high speed (as the Insured alleged) or if he was inching forward (as the Claimant alleged), the Claimant created an emergency situation by emerging onto the road into the path of the Insured vehicle.

🟪 The Insured could not have avoided a collision with the Insured even with the exercise of reasonable care.

Pete’s Perspective

In coming to their conclusion, the PIC Member applied the Supreme Court decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272. The PIC Member summarised the principles emerging from Evic, at [14], as follows:

“On 11 October 2024 in the decision of AAI Limited t/as GIO v Evic,^[2] Justice Mitchelmore considered sections 3.11 and 3.28 and applied them to a single vehicle accident. In the course of her reasons, Justice Mitchelmore said the following:

◾ an injured person’s entitlement to benefits, including benefits after the first 52 weeks, does not require the claimant to prove fault (55);

◾ the phrase “wholly or mostly” at fault is a composite phrase (not two separate concepts of wholly at fault and mostly at fault) and is directed at the claimant’s contributory negligence (56) relevant to the accident (not the injury) (57);

◾ section 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of s 5R(2)(a) of the Civil Liability Act 2002 (CL Act). The test of contributory negligence in that section is “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person” (60);

◾ where there is more than one motor vehicle involved, or some other road user, the claimant’s contributory negligence is assessed by considering the apportionment culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk at (61);

◾ in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply and the question to be pose is whether the claimant acted as a reasonable person in their position would have acted, citing to blameless accident cases at (68) and (69); and

◾ if contributory negligence is found on the part of the claimant, then section 3.38(3)(c) requires an assessment of the degree of contributory negligence that is “just an equitable in the circumstances of the case” (73).”

It is unclear, however, whether the PIC Member applied the fourth bullet (on the basis that there were two parties involved) or whether they applied the last two bullet points (on the basis that the Insured vehicle was the only vehicle involved and any fault by the Claimant was non-tortious because his bicycle was not capable of causing injury to the Insured). If the former, the assessment of contributory negligence was based on the relative culpability of the parties. If the latter, contributory negligence was assessed by reference to the extent the Claimant departed from the required standard of care.

Either way, the PIC Member concluded that a “just and equitable” reduction for the Claimant’s want of care was 100% given the finding that the Claimant was wholly at fault.

Our Case Note on Evic can be found here.

To explore other claims where PIC Members have applied Evic:

🟪 Evic Applied – Assessing Contributory Negligence in Single Vehicle Accidents

🟪 Evic Rides Again – Driver in Single Vehicle Accident Not Mostly at Fault

🟪 Slippery When Wet – When an Unsafe Speed Means You’re Livin’ on a Prayer

PJH

#6 – Can Injury Sustained During Consequential Treatment be a “Non-Threshold” Injury?

Decision

Allianz Australia Insurance Limited v Miles (No 3) [2025] NSWPICMP 565

Principles

✅ At Common Law, injury sustained during the application of reasonable and necessary treatment may have been caused by the motor accident unless the treatment is grossly negligent.

✅ A right shoulder injury sustained as a consequence of a fall caused by leg weakness following a cortisone injection was, therefore, caused by the accident.

✅ The Court of Appeal has previously doubted, however, whether injury sustained during consequential treatment is an “injury” for the purpose of section 1.4 of the Motor Accident Injuries Act 2017 (MAIA) – see Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71.

Sixty-Second-Or-Less Read

A Claimant sustains a soft tissue injury to her lumbar spine in a motor accident. She subsequently gets a cortisone injection which causes left leg weakness and she sustains a fall. The fall causes a right rotator cuff tear.

Does the Claimant’s right rotator cuff tear satisfy the threshold injury test and entitle her to ongoing statutory benefits and common law damages?

In Allianz v Miles, the Medical Review Panel determined that there was a causal chain linking the rotator cuff tear to the accident. The Panel also concluded that the rotator cuff tear was an “injury” for the purpose of s 1.4 of the Motor Accident Injuries Act. The accident, therefore, caused a non-threshold injury to the right shoulder.

Facts

On 30 April 2022, the Claimant approached a roundabout with the intention of turning left. Before she could do so, however, the Insured vehicle collided with her vehicle from behind.

The Claimant asserted that she sustained various non-threshold physical and psychiatric injuries which would entitle her to ongoing statutory benefits and common law damages.

Given that the various injuries were raised at different times, there were multiple applications for assessment and further assessment.

This dispute, however, related to whether the accident caused a non-threshold injury to her right shoulder. The original PIC Medical Assessor certified that the motor accident caused a non-threshold injury to the Claimant’s right shoulder in the form of a right rotator cuff tear.

The Insurer submitted that the right rotator cuff tear was caused by a subsequent fall on 18 October 2022, some six months post-accident, and that the motor accident made no causative contribution to the fall.

The Insurer successfully sought referral to the Medical Review Panel.

The Review Panel’s Decision

Was the Right Rotator Cuff Tear Caused by the Accident?

The Review Panel accepted the following chain of causation between the motor accident and the Claimant’s non-threshold, right shoulder injury:

✅ The motor accident caused a threshold injury to the Claimant’s lumbar spine.

✅ The lumbar spine injury necessitated a cortisone injection.

✅ The cortisone injection caused the Claimant’s left leg to give way.

✅ The Claimant’s fall caused a non-threshold injury to the right shoulder in the form of a high-grade partial thickness supraspinatus rotator cuff tear.

The Review Panel therefore concluded that the motor accident could have medically caused the rotator cuff tear and did, in fact, cause that tear.

In coming to this conclusion, the Review Panel applied the High Court’s decision in Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522, which remains the leading authority for the proposition that the original tortfeasor remains liable for any additional injury caused during treatment for an accident-related injury unless the treatment can be characterised as grossly negligent.

Was the Right Rotator Cuff Tear an “Injury”?

Having found that causation was established, the Review Panel proceeded to consider whether the right rotator cuff tear was an “injury” within the meaning of section 1.4 of MAIA.

The Review Panel had regard to doubts expressed by the Court of Appeal, albeit in obiter remarks, regarding whether injury sustained via consequential surgery fell within the definition of “injury” in s 1.4.

The Review Panel concluded, however, that the Claimant’s right shoulder injury fell within the section 1.4 definition of “injury” given the causal connection between the lumbar spine injury, the cortisone injection, the left leg weakness and the fall, together with fact that the fall caused the Claimant harm.

Conclusion

Given its conclusion that the right shoulder injury was an “injury” for the purpose of section 1.4, it followed that it was a non-threshold injury caused by the motor accident.

Pete’s Perspective

The question of whether the Claimant can satisfy the threshold injury test – and become entitled to ongoing statutory benefits and common law damages – by relying, solely, on an injury sustained during consequential treatment remains unresolved.

The Court of Appeal in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 expressed doubts on this question, at [99], as follows:

“In any event, even on the assumption that the removal of bone during the foraminotomy procedure could be a personal or bodily injury as defined in the Act (a question which, as set out at [54] above, it is unnecessary and inappropriate for this Court to determine) my provisional view is that that would be a “different” injury from the injury to Mr Mandoukos’ cervical spine sustained at the time of the motor accident. The foraminotomy procedure occurred some 18 months after the motor accident. It involved a mechanism, consensual surgical removal of bone, entirely separate from the impact of the motor accident. That is so even though it was performed by reason of Mr Mandoukos’ symptoms resulting from the motor accident. It is also of a different character from an assault or impact upon the body consequent upon the forces of the motor accident. Ultimately, however, if Mr Mandoukos seeks referral of a medical dispute as to whether the foraminotomy procedure has the consequence that the cervical spine injury he sustained in the motor accident is a minor injury, that question can be assessed by a medical assessor.”

The Review Panel in Miles sidestepped Mandoukos by stressing that the Claimant’s lumbar spine injury caused the need for cortisone treatment, which caused the left leg weakness, which caused the fall, which caused the right shoulder injury. A similar approach was recently adopted in Gibbin v AAI Ltd t/as GIO [2025] NSWPICMP 523, albeit without reference to Mandoukos.

The difficulty is that the same reasoning process could have been applied to Mr Mandoukos’ foraminotomy procedure. His accident caused a neck injury, which caused the need for a foraminotomy, which caused the removal of bone.

Yet the Court of Appeal still expressed doubts over whether the removal of bone was an “injury” pursuant to section 1.4 of MAIA.

The distinction appears to be that the foraminotomy procedure which Mr Mandoukos underwent did not cause him any additional detriment or harm. It was designed to improve his physical condition. It followed that the removal of bone was not an “injury“.

By contrast, the cortisone injection, in this claim, caused a fall which resulted in additional harm to the Claimant, by way of a rotator cuff tear.

Ultimately, however, there will still be confusion over whether injury sustained during consequential treatment can produce a non-threshold injury until a higher court is called upon to determine the issue.

My full case note on Mandoukos can be found here.

My full case note on Gibbin can be found here.

#5 – What Factors Are Relevant to Whether Treatment is Reasonable & Necessary?

PIC Decision

Allianz Australia Insurance Limited v Mataraci [2025] NSWPICMP 536

Principles

✅ Treatment relates to the injuries sustained in the accident if the accident made a material contribution, at least, to the need for treatment.

✅ Relevant, but not determinative, factors relevant to whether treatment is reasonable and necessary include whether the treatment is appropriate, whether the treatment is likely to be effective, the availability of alternative treatment, the cost-effectiveness of the treatment and whether the treatment is supported by medical experts.

Sixty-Second-Or-Less Summary

An injured Claimant says she requires a posterior L5/S1 decompression and fusion surgery as a consequence of a motor accident.

What factors does the Review Panel take into account when considering whether the proposed surgery is reasonable and necessary and related to the injuries sustained in the accident?

In Allianz v Mataraci, the Review Panel reviewed the evidence and concluded that the motor accident made a material contribution to the need for surgery in the sense that, on the balance of probabilities, the surgery would not have been required but for the accident. The Review Panel, also, found that the surgery was a reasonable response to the Claimant’s lumbar spine condition given that conservative measures had failed to resolve the Claimant’s pain.

Facts

The Claimant was injured in a motor accident on 12 February 2022 when the Insured failed to stop at a stop sign.

The Claimant subsequently requested that the Insurer approve a posterior L5/S1 decompression and fusion surgery. A Medical Assessor determined that the surgery was related to the motor accident and was reasonable and necessary.

The Insurer successfully obtained a review of the original Medical Assessor’s decision.

The Review Panel’s Decision

The Review Panel determined that the proposed surgery was related to the injuries sustained in the motor accident for the following reasons:

🟪 The accident did not need to be the sole cause of the need for the Claimant’s surgery. To establish causation, the Review Panel need only be satisfied that the accident made a material contribution to the need for the proposed surgery: AAI Limited t/as AAMI v Phillips [2018] NSWSC 1710.

🟪 After reviewing all the medical evidence, the Review Panel accepted that the motor accident made a material contribution, at least, to the need for surgery.

🟪 The Claimant’s independent condition of multiple sclerosis would not have led to the need for surgery.

🟪 But for the motor accident, and on the balance of probabilities, the surgery would not have been required.

The Review Panel also agreed that the proposed surgery was reasonable and necessary. for the following reasons: The Panel noted that the test under s 3.24(2) of the Motor Accident Injuries Act 2017, that the treatment be “reasonable and necessary“, is stricter than the “reasonably necessary” test used in the workers compensation arena, because the word “necessary” is not qualified. Treatment is either necessary or it is not.

Factors relevant to – but not determinative of – whether treatment is reasonable and necessary include:

🟪 Whether the treatment is appropriate.

🟪 Whether alternative treatment is available.

🟪 Whether the treatment is cost-effective.

🟪 Whether the treatment is actually, or potentially, effective.

🟪 Whether medical experts support the proposed treatment.

In this case the proposed surgery was reasonable and necessary because:

🟪 The surgery was clinically indicated in circumstances where non-operative treatment had not resulted in ongoing resolution of the Claimant’s lower back pain, right buttock pain and L5 radiculopathy.

🟪 Decompressing a symptomatic lumbar nerve root is appropriate given that the Claimant had already tried alternative treatment to decompress the nerve via peri-neural steroid injections and chiropractic treatment.

🟪 The likely cost of the surgery was unlikely to exceed the cost of extensive conservative care.

🟪 The decompressive surgery was likely to be effective.

Pete’s Perspective

The Review Panel’s decision in Mataraci provides a useful example of a decision maker working through the factors relevant to whether proposed treatment is reasonable and necessary and related to the injuries sustained in the accident.

PJH

#4 – Review Panel finds Rotator Cuff Tear Sustained During Treatment is a Non-Threshold Injury

Decision

Gibbin v AAI Ltd t/as GIO [2025] NSWPICMP 523

Principles

✅ At Common Law, injury sustained during the application of reasonable and necessary treatment may have been caused by the motor accident unless the application of the treatment is grossly negligent.

✅ A rotator cuff tear sustained during treatment for a frozen shoulder was, therefore, found to be a non-threshold injury.

✅ The Court of Appeal has previously doubted, however, whether consequential surgery constitutes an “injury” – see Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71.

Sixty-Second-Or-Less Summary

A Claimant suffers a frozen left shoulder as a consequence of a motor accident. She subsequently undergoes manipulation of her shoulder under anaesthetic which, on the balance of probabilities, causes a right rotator cuff tear.

Has the Claimant sustained a non-threshold injury?

In Gibbin v GIO, the Medical Review Panel noted that the original accident caused any injury sustained during reasonable and necessary treatment unless the treatment was grossly negligent because a mishap during treatment is a foreseeable consequence of the original accident. The Panel, therefore, concluded that the motor accident caused the rotator cuff tear which is, of course, a non-threshold injury.

Query, however, whether the Review Panel overlooked the Court of Appeal’s decision in Mandoukos v Allianz.

Facts

The Claimant was injured in a motor accident on 21 March 2019 when the vehicle she was driving was struck from behind at 80 kph.

The Insured denied liability for ongoing statutory benefits (and, effectively, for common law damages) on the grounds that the only injuries sustained by the Claimant were threshold injuries.

The threshold injury dispute proceeded to the Commission for assessment. A Medical Assessor subsequently found that the accident caused soft tissue injuries to the cervical spine and left shoulder, which were both threshold injuries.

The Medical Assessor noted a left rotator cuff tear, revealed by an MRI in November 2020, but concluded that the tear was age-related and not caused by the motor accident.

The Claimant successfully applied for referral to the Review Panel.

The Review Panel’s Decision

The Review Panel determined that the motor accident caused a non-threshold injury to the Claimant’s left shoulder for the following reasons:

🟪 Whilst there was no history of any direct impact to the Claimant’s left shoulder, she was holding the steering wheel when the rear-end impact occurred.

🟪 The forces involved in the accident were capable, from a medical perspective, of causing a left shoulder injury.

🟪 The Claimant made complaints of left shoulder pain to her GP seven days post-accident.

🟪 The Claimant subsequently developed a frozen left shoulder.

🟪 On the balance of probabilities, the accident caused an injury to the Claimant’s left shoulder which developed into a frozen shoulder.

🟪 The Claimant underwent manipulation of her left shoulder under anaesthetic on 15 November 2019.

🟪 A subsequent MRI scan on 26 November 2020 revealed a full thickness left rotator cuff tear.

🟪 The manipulation under anaesthetic procedure was a reasonable and necessary treatment measure to address the Claimant’s frozen left shoulder.

🟪 A torn rotator cuff is a known risk associated with manipulation under anaesthetic.

🟪 The High Court held in Mahony v J Kruschich (Demolitions) Pty Ltd [1985] HCA 37; (1985) 156 CLR 522 that the original tortfeasor remains liable for injury caused by any subsequent treatment unless the conduct of the subsequent treatment provider can be categorised as grossly negligent.

🟪 It followed that the accident caused a frozen left shoulder, necessitating manipulation under anaesthetic, which caused a rotator cuff tear which is a non-threshold injury.

Pete’s Perspective

The Review Panel in Gibbin applied the common law principle that an adverse treatment outcome, even if the result of negligence, is a foreseeable consequence of the original tortfeasor’s negligence in causing the original accident. Only gross negligence breaks the causal chain between the original accident and the adverse treatment outcome.

The Review Panel, therefore, concluded that the motor accident caused the left rotator cuff tear which resulted from the manipulation under anaesthetic designed to alleviate the Claimant’s frozen shoulder. There was no suggestion that the rotator cuff tear was the result of gross negligence. It was a foreseeable risk of the manipulation under anaesthetic.

The Review Panel appears to have overlooked, however, the doubts expressed by the Court of Appeal in Mandoukos v Allianz, at [99], re whether consequential surgery can transform a threshold injury into a non-threshold injury. My full McCabes Lawyers Case Note on Mandoukos can be found here.

PJH

#3 – Review Panel Wrong-Footed by Wingfoot

Decision

Insurance Australia Ltd trading as NRMA Insurance v Cahill [2025] NSWSC 828

Principles

✅ A decision-maker fails to provide a proper path of reasoning if it states a conclusion without explaining how they came to that conclusion by reference to the evidence before them.

✅ A decision-maker denies a party procedural fairness if it decides a dispute on a basis not put by the parties without giving the parties a chance to be heard.

Sixty-Second-Or-Less Summary

A Review Panel finds a lumbar cartilage tear and concludes that the motor accident caused a non-threshold injury.

The Insurer seeks Judicial Review in the Supreme Court.

Is the Review Panel’s decision afflicted by administrative error?

In IAG v Cahill, the Supreme Court found that the Review Panel failed to explain how it came to a random conclusion which was not addressed by either party and that the Review Panel denied the Insurer procedural fairness by not giving it a chance to address the random conclusion it proposed reaching.

Facts

The Claimant was injured in a motor accident on 9 July 2020.

The Insurer subsequently determined that the Claimant was not entitled to ongoing statutory benefits (or common law damages) because the injury to this lumbar spine was a threshold injury.

The threshold injury dispute proceeded to a PIC Medical Assessment. The original Medical Assessor determined that the accident did not cause any injury to the Claimant’s lumbar spine and that any lumbar complaints were caused by pre-existing multiple sclerosis.

The Claimant successfully sought a referral to the Review Panel. The Review Panel disagreed with the original Medical Assessor and found that the accident caused a non-threshold injury to the lumbar spine based on a tear of the lumbar disc cartilage.

The Insurer sought Judicial Review in the Supreme Court.

The Supreme Court’s Decision

Justice Adamson allowed the Insurer’s application for two reasons:

🟪 Failure to Give Reasons – the Review Panel failed to include any information in its reasons to explain its finding that the accident caused a lumbar disc cartilage. As such, the Panel failed to meet the standard required by Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 because the Panel failed to set out the actual path of reasoning which led to its conclusion.

🟪 Denial of Procedural Fairness – the Review Panel found a lumbar cartilage tear in circumstances where neither party presented any evidence or submissions with regard to the presence of a lumbar cartilage tear and neither party could have contemplated that the Review Panel would resolve the dispute on the grounds of a lumbar cartilage tear. The Panel denied the Insurer procedural fairness because it failed to alert the Insurer to its thinking and give the Insurer an opportunity to be heard on the cartilage tear issue.

Pete’s Perspective

The Supreme Court’s decision in Cahill confirms the high onus on a PIC Medical Assessor or a PIC Review Panel to give proper reasons for their decision. In this dispute, the Review Panel fell short of the required standard by making an apparently random decision without either explaining their thinking of giving the parties a chance to be heard on the random conclusion it reached.

PJH

#2 – Can Treatment & Care be Found on the Uber App?

PIC Decision

Phothisenh v AAI Limited t/as AAMI [2025] NSWPIC 338

Principles

✅ A claim for the cost of transporting an injured child to school, via private transport, could be a claim for “treatment and care” because it is a claim for “transport modification” and/or a claim for “rehabilitation” and/or a claim for “attendant care services“.

✅ A claim for the cost of transporting an injured child to school, via private transport, is not a claim for “education and vocational training” because that term is limited to education and vocational training required as a consequence of an injury, not to the compulsory education of a child.

Sixty-Second-Or-Less-Summary

An infant Claimant claims she requires private transport to get to and from school.

Is the cost of the private transport recoverable as a statutory benefit for treatment and care?

In Phothisenh v AAMI, a PIC Member found that the cost of private transport could constitute “transport modification“, “rehabilitation” or an “attendant care service“, all of which are included in the exhaustive list of items which constitute “treatment and care” found in s 1.4 of MAIA.

As such, the claim for private transport was a claim for treatment and care. Whether the transport was reasonable and necessary and related to the injuries sustained in the accident, however, was a Medical Assessment Matter to be determined by a Medical Assessor.

Facts

The Claimant was only five and a half years old when she was involved in a motor accident on 18 July 2023. On that day, she was crossing the road with her mother. She was riding a scooter and she was crossing under the protection of a pedestrian crossing. One motorist stopped to allow the Claimant and her mother to cross the road. The Insured, however, failed to stop and collided with the Claimant.

The Claimant sustained facial injuries together with fractures of both her left and right femurs. She was restricted to a wheelchair for some period post-MVA.

A dispute subsequently arose between the Claimant and the Insurer regarding the Claimant’s need for private transport to and from school.

The dispute was initially allocated to a Member, as a Miscellaneous Assessment Matter, to determine whether the claim for private transport constituted a claim for treatment and care within the meaning of section 1.4 of the Motor Accident Injuries Act 2017 (MAIA).

Relevant Definitions

The definition of “treatment and care” in section 1.4 of MAIA includes, amongst other items, “education and vocational training“, “rehabilitation“, “home and transport modification” and “attendant care services“.

The term “rehabilitation” is separately defined in s 1.4 as follows:

“…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 term “attendant care services” also has its own definition s 1.4 as follows:

“..services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services.”

The Member’s Decision

The Member addressed the multiple arguments advanced by the parties as follows:

Is Education Treatment?

The term “education and vocational training” in the definition of “treatment” in s 1.4 of MAIA does not include the compulsory education of children. The term is directed to additional education and vocational training required as a consequence of an injury. For example, a hypothetical Claimant with a head injury might require specialised education and training as a consequence of that injury. It follows that transport to and from school is not transport for the purpose of obtaining “treatment“.

Is Travel to School Rehabilitation?

If a hypothetical Claimant needed assistance to access the school grounds and enter the classroom, that assistance would be part of the Claimant’s rehabilitation because it would be part of a process which helps the Claimant attain and maintain full inclusion in their school life. The same applies, in this claim, to getting the Claimant to school in the morning and home again in the afternoon. Whether the process of the Claimant’s rehabilitation has ended is a Medical Assessment Matter to be determined by a Medical Assessor.

Is Uber Travel a Form of Transport Modification?

Travelling to school via Uber rather than public transport is a form of “transport modification” as that term is used in the definition of “treatment and care” in section 1.4 of MAIA. “Transport modification” refers to a change or an alteration in the way the Claimant was transported before the accident. In this case, the Claimant used public transport before her accident. Following the accident, she claims she needed to modify that arrangement and use private vehicles.

Is Taking a Child to School an Attendant Care Service?

Taking a child to school is an “everyday task” in the sense that it is routine or commonplace. Furthermore, given that the Claimant could not go to and from school by herself, given her age, accompanying her to school is a form of “personal assistance“. Whilst the Claimant’s mother would have assisted her to get to and from school, irrespective of her injury, the change in transport from public transport to a private vehicle is a form of treatment and care provided to the Claimant because of her injury.

As such, the Member found that the claim for private travel was a claim for treatment and care within the meaning of sections 1.4 and 3.24 of MAIA because it was a claim for transport modification and/or a claim for attendant care services and/or a claim for rehabilitation.

Whether the private transport was reasonable and necessary and related to the injuries the Claimant sustained in her accident was a Medical Assessment Matter. Any subsequent dispute about the cost would be a Merit Review Matter.

Pete’s Perspective

The decision in Phothisenh is instructive because it demonstrates the overlap that exists between the twelve items listed in the definition of “treatment and care” in s 1.4 of MAIA. In this claim, the Member found that the private transport sought by the Claimant fell within three separate items in the definition.

It is important to understand, however, that the Member’s role was limited to deciding whether the claim for private transport was a claim for “treatment and care” within the definition. It was not the Member’s role to decide whether the claim for private transport was reasonable and necessary, in the circumstances, and whether the claim related to the injuries the Claimant sustained in the accident. Those issues were to be decided in a subsequent medical assessment conducted by a Medical Assessor.

PJH

#1 – Mostly at Fault? Can’t Get No (Reasonable) Satisfaction

PIC Decision

PXAYL v Insurance Australia Ltd t/as NRMA Insurance [2025] NSWPIC 324

Principles

✅ In most-at-fault disputes, the onus is on the Insurer to demonstrate what happened and that the accident was caused, wholly or mostly, by the Claimant’s fault.

✅ Whilst the required standard is “reasonable satisfaction”, that crossbar is high given that the Claimant’s entitlement to ongoing statutory benefits will end if the Insurer satisfies the Commission that the Claimant was wholly or mostly at fault.

Sixty-Second-Or-Less Summary

The Claimant is driving along a major arterial road. She starts to merge into the kerbside lane to her left because she wants to make a left hand turn in the near future. At around the same time, the Insured enters the arterial road from a cross-street and enters the kerbside lane. The two vehicles collide. The Insurer determines that the Claimant was wholly or mostly at fault for her accident because she failed to maintain a proper lookout whilst changing lanes. The Claimant challenged that decision.

Was the Claimant wholly or mostly at fault?

The PIC Member found that the Claimant was not wholly or mostly at fault because the Insurer failed to demonstrate, to the Member’s reasonable satisfaction, that the Insured was already established in the kerbside lane before the Claimant started merging into that lane.

Facts

On 26 June 2024, at approximately 8.15am, the Claimant was driving in the middle of three lanes along The Northern Road, Glenmore Park. Her intention was to merge into the lane on her left because she wanted to make a left hand turn into Jamison Road.

In the meantime, the Insured had entered The Northern Road from Garswood Road and entered the lane to the Claimant’s left.

The Claimant started to merge into the lane to her left and the front left wheel of the Claimant’s vehicle collided with the front right bumper and wheelarch of the Insured vehicle.

The Insurer served a Liability Notice denying liability for ongoing statutory benefits on the grounds that the accident was wholly or mostly caused by the Claimant’s fault.

The Insurer alleged that the Claimant failed to maintain a proper lookout when merging to her left.

The Claimant argued that the Insured was at fault because they failed to notice the Claimant merging into the kerbside lane when they entered The Northern Road from Garswood Road.

Following an unsuccessful Internal Review, the Claimant lodged a Miscellaneous Assessment in the Personal Injury Commission.

The Member’s Decision

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

🟪 The onus is on the Insurer to prove that the accident was caused wholly or mostly by the Claimant’s fault.

🟪 Whilst the standard is one of “reasonable satisfaction”, careful regard must be had to the nature, strength and limitations of the available evidence given that the consequences are serious. The Claimant will be disentitled from ongoing benefits.

🟪 Clause 149(2) of the Road Rules 2014 provides that a driver moving from one line of traffic to another must give way to any vehicle already travelling in the destination lane. The rule only applies, however, if the Insured was, in fact, already occupying the destination lane when the Claimant began to merge.

🟪 The geometry of the road and the damage profile to each vehicle was consistent with both vehicles entering the kerbside lane at roughly the same time.

🟪 The evidence failed to establish that the Claimant’s version was implausible.

🟪 In those circumstances, the Insurer failed to discharge its burden of demonstrating that the Claimant was wholly or mostly at fault.

Pete’s Perspective

The decision in PXAYL illustrates the challenges facing Insurers when the circumstances of an accident are ambiguous.

Putting it bluntly, the Insurer fails to discharge its onus of proving that the Claimant was wholly or mostly at fault if it fails to demonstrate, through cogent evidence, how the accident occurred.

PJH