#PeteLawNotes – Library – Page 3

#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