CTP – Page 2 – Peter Hunt

Inconsistencies Depicted in Surveillance Constitute “Exceptional Circumstances”

Decision

Angileri v Allianz Australia Insurance Limited [2026] NSWPIC 139

Sixty-Second-Or-Less Read

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

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

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

Principles

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

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

Facts

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

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

🟪 She struggled to lift a can of tomatoes.

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

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

🟪 She no longer interacted with the other parents.

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

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

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

🟪 The Claimant driving and refuelling her motor vehicle.

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

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

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

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

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

Relevant Statutory Provisions

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

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

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

The Principal Member’s Decision

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

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

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

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

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

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

🟪 For these reasons “exceptional circumstances” existed.

My Perspective

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

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

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

PJH

The purpose of this case note is educational and should not be relied upon as legal or financial advice. My commentary is only current as at the time of publication. Readers affected by the issues raised in this case note should seek bespoke legal advice, noting that I act for CTP Insurers and I do not accept direct instructions from those injured in motor accidents.

Driver Most at Fault for Aggressive Merging Manoeuvre

Decision

Contos v Allianz Australia Insurance Limited [2026] NSWPIC 187

Sixty-Second-or-Less Read

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

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

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

Principles

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

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

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

Background

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

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

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

Findings of Fact

The Member made the following findings of fact:

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

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

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

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

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

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

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

The Member’s Decision

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

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

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

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

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

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

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

My Perspective

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

The Member applied the following process:

🟪 Decide what each party did wrong.

🟪 Compare each party’s relative culpability.

🟪 Place a percentage on that relative culpability.

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

PJH

Due Inquiry & Search Conducted Before Scent Went Cold

Decision

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

Sixty-Second-or-Less Read

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

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

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

Principles

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

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

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

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

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

Facts

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

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

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

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

Due Inquiry and Search

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

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

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

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

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

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

The Member’s Decision

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

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

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

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

My Perspective

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

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

PJH

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

Decision

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

Sixty-Second-or-Less Read

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

Is the Claimant entitled to ongoing statutory benefits.

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

Principles

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

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

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

Facts

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

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

The Member’s Decision

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

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

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

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

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

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

My Perspective

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

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

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

PJH

Pointless Physiotherapy Found Not Reasonable and Necessary

Decision

AAI Limited t/as AAMI v Zawit [2026] NSWPICMP 186

Sixty-Second-or-Less Read

A Claimant sustains a back injury in a motor accident. His treating doctor immediately refers him for physiotherapy. After two years, the Claimant’s treating physio discharges him from their care and recommends a pain program, which the Insurer approves.

Is a request for further physiotherapy reasonable and necessary?

In AAMI v Zawit, the Medical Review Panel concluded further physio was not reasonable and necessary given that the prior physio had not resulted in any sustained benefit to the Claimant and further physio was unlikely to assist in their recovery.

Principles

✅ Pursuant to section 3.24(2) of the Motor Accident Injuries Act 2017, a Claimant is not entitled to statutory benefits for treatment and care where the treatment and care is not reasonable and necessary and/or not related to the injuries sustained in the motor accident.

✅ Treatment, such as physiotherapy, may not be reasonable and necessary where prior treatment of the same kind has not resulted in any sustained benefit to the Claimant.

✅ Treatment is not reasonable and necessary where it does not help in the Claimant’s recovery.

Facts

The Claimant was injured in a motor accident on 14 February 2022. He sustained injuries to his left shoulder, back and neck.

On 18 July 2024, the Claimant’s treating physiotherapist sought approval for physiotherapy treatment. On 30 July 2024, the Insurer declined the request for further physiotherapy on the grounds that the treatment was not reasonable and necessary. That determination was confirmed on Internal Review. The primary Medical Assessor, however, endorsed the request for further physio. The Insurer successfully sought referral to the Review Panel.

The Review Panel’s Decision

The Review Panel accepted that any need for physiotherapy was related to the accident because the Claimant made an early report of lumbar symptoms to his treating doctor, in February 2022, and was referred for physiotherapy at that time.

The Review Panel, however, determined that the Claimant’s physiotherapy was not reasonable and necessary for the following reasons:

🟪 The Claimant received regular physiotherapy in 2022 and 2023.

🟪 In November 2023, the Claimant’s treating physiotherapist reported that any further physiotherapy was unlikely to improve the Claimant’s chronic back pain.

🟪 In January 2024, the Claimant’s treating physiotherapist discharged the Claimant from his care and recommended full transition to exercise physiology.

🟪 In July 2024, the Insurer indicated that it was willing to approve an alternative pain program.

🟪 The claim for further physiotherapy was not reasonable and necessary in circumstances where previous physiotherapy had not resulted in any sustained improvement in the Claimant’s lumbar spine symptoms and further physiotherapy would not improve the Claimant’s recovery.

My Perspective

The decision in Zawit provides a useful illustration of how a Medical Review Panel assesses whether ongoing passive treatment measures, like physiotherapy, constitute reasonable and necessary treatment years after the accident.

Each claim, of course, turns on its own facts.

The Review Panel concluded, in this dispute, however, that further physiotherapy was not reasonable and necessary given that previous physiotherapy had not helped the Claimant. Doubtless, the Review Panel also gave weight to the fact that the Insurer had moved on from physiotherapy and approved an exercise physiologist in the context of a pain program.

PJH

Assessing Relative Culpability in Multi-Vehicle Accidents

Decision

Solomon v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 150.

Sixty-Second-Or-Less Read

A goanna strays onto a country road. Driver C swerves onto the wrong side of the road to avoid injuring the monitor lizard. Driver B brings his vehicle to a halt to avoid colliding with vehicle C. The Claimant rides his motorcycle into the rear of Vehicle B.

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

In Solomon v IAG, a PIC Member weighed up the culpability of each of the three vehicles involved in the accident and concluded that the Claimant’s contribution was 60%. The Member therefore concluded 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 (MAIA), 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 riding his motorcycle on Fosterton Road, in Fosterton, on 7 December 2023 when he was involved in a motor accident.

The Claimant was riding behind a Toyota Hilux towing a trailer (Vehicle B). An unidentified vehicle (Vehicle C) was travelling in the opposite direction.

The driver of Vehicle C swerved onto the wrong side of the road to avoid a goanna before continuing on their journey, without stopping.

The driver of Vehicle B stopped in order to avoid a collision with Vehicle C. The Claimant rode his motorcycle into the rear of Vehicle B.

The Member found, on the evidence, that:

🟪 Vehicle C would have collided with Vehicle B if the driver of Vehicle B had not slowed his vehicle and come to a halt.

🟪 The driver of Vehicle B had time to come to a complete stop, put his vehicle in park, activate his hazard lights and open the door of his vehicle before the Claimant’s motorcycle collided with the rear of his vehicle.

🟪 The Claimant was travelling between 30 and 40 metres behind Vehicle B at approximately 40 kph.

The Member’s Decision

The Member confirmed that they had to consider the relative culpability of all the drivers involved in the accident in order to assess the Claimant’s contribution to the accident.

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

🟪 The Claimant contributed to the accident by failing to maintain a safe distance, failing to keep a proper lookout and by failing to take evasive action.

🟪 The driver of Vehicle C contributed to the accident by failing to apply the brakes of their vehicle and remaining in their lane, rather than swerving into oncoming traffic, when they saw the goanna on the road ahead of them.

🟪 The driver of Vehicle B contributed to the accident by failing to move their vehicle off the road before stopping, rather than stopping in the Claimant’s path.

🟪 Weighing up the comparison of culpability, the Claimant’s departure from the required standard of care warrants a finding of 60% contributory negligence.

My Perspective

The decision in Solomon provides an example of how the Claimant’s contribution to an accident is assessed in multi-vehicle accidents.

The Member applied the decision of AAI Limited t/as GIO v Evic [2024] NSWSC 1272 and looked at each parties contribution to the cause of the accident. The Member proceeded to find the Claimant 60% responsible without attaching a percentage to the contribution made by Vehicle B and Vehicle C.

Compare that approach to the approach taken in Freitas v QBE Insurance (Australia) Limited [2025] NSWPIC 475 which involved a three-vehicle chain collision. In that matter, a different Member looked at each driver’s want of care and attached a percentage contribution to each party.

My full Case Note in Freitas can be accessed here.

PJH

Threshold Injury Found Not to Apply to Public Transport Accidents

Decision

Russell v Allianz Australia Insurance Limited [2026] NSWPIC 129

Sixty-Second-Or-Less Read

A Claimant is injured whilst riding a bus. The bus route in question was part of the public bus network. The bus, however, was privately owned and was deployed by Transport for NSW pursuant to a contract.

Are the Claimant’s damages regulated by Chapter 5 of Motor Accidents Compensation Act 1999 (MACA) or by Part 4 of the Motor Accident Injuries Act 2017 (MAIA)?

In Russell v Allianz, a PIC Member found that an accident is a “public transport accident” within the meaning of s 121(3) of the Transport Administration Act 1988 (TAA) even where the bus is privately owned. The key question was whether the bus was being used for public transport. It followed that the Claimant’s damages were regulated by Chapter 5 of MACA, pursuant to s 121(1) of the TAA. The whole of Part 4 of MAIA was displaced, including s 4.4 which normally precludes damages were the only injuries are threshold injuries.

Principles

✅ Part 4 of the Motor Accident Injuries Act 2017 (MAIA) and Chapter 5 of the Motor Accidents Compensation Act 1999 (MACA) provide for alternative regimes for the assessment of damages.

✅ Section 121(1) of the Transport Administration Act 1988 (the TAA) effectively provides that Chapter 5 of MACA governs a claim for damages arising from a “public transport accident” and displaces the damages regime in Part 4 of MAIA.

✅ Section 121(3) of the TAA includes a definition of “public transport accident” which contemplates transport services available for use by members of the public, as part of an ordinary passenger transport system, even where a privately owned vehicle is deployed pursuant to a contractual arrangement with Transport for NSW.

✅ Section 4.4 of MAIA, which precludes damages for a claimant who has only sustained threshold injuries, is found in Part 4 of MAIA and, therefore, has no application in a claim for damages arising from a “public transport accident”.

Facts

On 19 August 2019, the Claimant was riding on a public bus from Campbelltown to Liverpool.

The owner and operator of the bus provided bus services pursuant to a contractual arrangement with Transport for NSW as part of the State’s metropolitan bus network.

An issue arose between the parties as to whether the Claimant’s claim for damages was governed by Part 4 of the MAIA or Chapter 5 of MACA. The question turned on the operation of section 121 of the TAA.

The outcome of this dispute was critical because it was agreed, between the parties, that the Claimant only sustained threshold injuries, as defined by s 1.6 of MAIA.

Putting it bluntly, if the damages claim was governed by Part 4 of MAIA, the Claimant was not entitled to damages by virtue of section 4.4. That prohibition might not apply, however, if the damages claim was governed by Chapter 5 of MACA.

The Member’s Decision

The Member found that the damages claim was governed by Chapter 5 of MACA for the following reasons:

🟪 As a matter of statutory construction, s 121(3) of the TAA denotes transport services available for use by members of the public, forming part of an ordinary passenger transport system, as distinct from transport used privately or for a restricted or specialised purpose.

🟪 The key factor is whether the transport is part of a public system, not whether the vehicles in question are privately owned.

🟪 In this claim, the bus may have been privately owned, but it was deployed, pursuant to a contractual arrangement, as part of a network of public transport.

🟪 The claimant was, therefore, injured in a “public transport accident” within the meaning of s 121(3) of the TAA.

🟪 By operation of s 121(1) of the TAA, the Claimant’s damages are governed by Chapter 5 of MACA.

🟪 Section 4.4 of MAIA is confined to the damages regime established by Part 4 of MAIA.

🟪 Section 4.4, therefore, does not bar an award of damages governed by Chapter 5 of MACA.

My Perspective

McTye v Chang

The Court of Appeal decided in McTye v Chang [2025] NSWCA 3 that an accident involving a public bus constituted a “public transport accident” within the meaning of section 121(3) of the TAA. Putting that another way, the Court of Appeal decided that an accident involving a bus was not absorbed by the prevailing motor accidents legislative scheme merely because the accident involved a motor vehicle.

The practical consequence of the McTye decision was that a claim for damages arising from the use or operation of a public bus was – in accord with section 121(1) of the TAA – governed by Chapter 5 of MACA even where the accident occurred after the commencement of MAIA.

The Court of Appeal, however, was not called upon to determine whether an accident on a public bus network was still a “public transport accident” where the bus in question was provided by a private company for use by Transport for NSW pursuant to a contractual arrangement.

The decision in Russell is important because it purports to fill that gap. The Member decided the key question was whether the bus route was part of a public bus network rather than whether the bus was State-owned or privately owned.

Precedent Value

It is important to note, however, that this is a decision of a single Member and holds no greater precedent value than the decision of any other Member. It will be interesting to see whether a Court is called upon to resolve this discrete question.

Availability of Statutory Benefits

It is equally important to note that this decision only impacts the assessment of damages in public transport accident claims.

Pursuant to the Court of Appeal’s decision in McTye – as expanded by this decision – damages are assessed pursuant to Chapter 5 of MACA where a claimant is injured by a bus on a public bus network (irrespective of who owns the bus).

If the bus accident occurred after 1 December 2017, however, the hypothetical claimant may still recover statutory benefits pursuant to Part 3 of MAIA because they have been injured in a motor accident in NSW (thereby satisfying section 3.1 of MAIA).

How Part 3 of MAIA interplays with Chapter 5 of MACA remains a matter for conjecture.

PJH

Extension to Annular Tear Found to be Non-Threshold

Decision

Jung v Allianz Australia Insurance Limited [2026] NSWPICMP 128

Sixty-Second-Or-Less Read

A Claimant is involved in a rear end collision. The Claimant suffered from pre-existing annular tears in her cervical spine. An MRI scan, post-accident, demonstrated marrow oedema and a punctate area of high signal at C6/7.

Did the accident cause the Claimant a non-threshold physical injury?

In Jung v Allianz, the Medical Review Panel found that the post-accident MRI findings demonstrated an extension to the Claimant’s pre-existing annular tears. Given that this involved partial rupture of cartilage, the Review Panel accepted that the injury fell outside the definition of “soft tissue injury” in s 1.6(2) of MAIA and was, therefore, a non-threshold injury.

Principles

✅ A claimant is not entitled to ongoing statutory benefits and/or common law damages if their motor accident only causes them threshold injuries.

✅ Section 1.6(1) of the Motor Accident Injuries Act 2017 (MAIA) says that a threshold physical injury is a “soft tissue injury”.

✅ Section 1.6(2) of MAIA defines what is and what is not a “soft tissue injury” and says, inter alia, that a complete or partial rupture of cartilage is not a “soft tissue injury”.

✅ An accident-related extension to an annular tear constitutes a non-threshold injury because it involves a partial rupture of cartilage.

Facts

On 10 December 2022, the Claimant was riding in the back seat of a vehicle which was stationary at traffic lights when the vehicle was rear-ended by the insured. The impact allegedly caused injuries to the length of the Claimant’s spine, chest and right shoulder.

The Insured denied liability for ongoing statutory benefits on the grounds that the only injuries sustained by the Claimant were threshold injuries. A primary PIC Assessor found that none of the injuries alleged by the Claimant were caused by the accident. The Claimant successfully sought referral to a Review Panel.

The Review Panel Decision

The Review Panel found a non-threshold injury to the Claimant’s cervical spine for the following reasons:

🟪 An MRI scan in June 2019 – some 3.5 years prior to the MVA – revealed pre-existing annular tears at C4/5 and C6/7.

🟪 The Claimant experienced neck pain on the night of the MVA.

🟪 Hospital records prepared four days post-accident verify neck complaints.

🟪 The rear-end collision was capable of causing the alleged injury to the Claimant’s cervical spine.

🟪 An MRI scan in March 2023 showed marrow oedema and a punctate area of high signal at C6/7, which indicated an acute injury.

🟪 The MVA made a more than negligible contribution to the extension of the Claimant’s pre-existing annual tears.

🟪 The MVA, therefore, caused a partial rupture of cartilage which falls outside the definition of “soft tissue injury” in section 1.6(2) of MAIA.

My Perspective

The decision in Jung confirms that a claimant can demonstrate a non-threshold injury if they can satisfy a Medical Assessor that an MVA caused an extension in their pre-existing annular tear. The extension represents an additional rupture to cartilage, caused by the accident, which falls within the list of exceptions in the definition of “soft tissue” injury in section 1.6(2) of MAIA.

PJH

Sharpen Your Pencil – Care Required in Defining the Scope of Medical Disputes

Decision

Fitzsimmons v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMP 37

Sixty-Second-Or-Less Read

A Claimant successfully applies for a review of a primary WPI assessment. The Claimant’s facial scarring was assessed by a different primary medical assessor. The review application includes “facial disfigurement” in the list of injuries to be assessed.

Is any impairment caused by the Claimant’s facial scarring before the Review Panel?

In Fitzsimmons v IAG, the Medical Review Panel concluded that it was not required to assessed the Claimant’s scarring impairment. Its reasoning included the fact that the Claimant clarified in correspondence to the Commission that the term “facial disfigurement” was intended to refer to the facial nerve damage assessed by the primary medical assessor. Furthermore, facial nerve injury and facial scarring required different assessment methods.

In Brief

✅ A medical dispute is defined by all the correspondence between the parties and the Commission, including forms, submissions and other correspondence with the Commission during the life of the dispute.

Facts

The Claimant was injured in a motor accident on 18 January 2013 when he was a child. A dispute subsequently developed between the parties as to whether the Claimant’s accident-related injuries gave rise to an impairment exceeding 10%.

At first instance, the Claimant’s WPI was assessed at 9% by two primary Medical Assessors. The Claimant successfully sought a review of the first Medical Assessor’s assessment.

The Review Panel noted that the Claimant’s submissions listed a number injuries, including “mild facial disfigurement”. An issue arose as to whether the inclusion of “mild facial disfigurement” meant that “facial scarring” was an injury which the Review Panel had to assess.

The Review Panel’s Decision

The Review Panel concluded that “facial scarring” was not an injury which the Review Panel was required to assess for the following reasons:

🟪 The Court of Appeal held in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71, that a medical dispute is “a question of fact depending on the ambit of the dispute between the parties at the relevant time having regard to the competing claims made”.

🟪 The further evidence relied upon by the Claimant did not include any assessment of scarring and the expert the Claimant relied upon with respect to his facial disfigurement said that scarring was outside their expertise.

🟪 The Claimant’s scarring was previously assessed by a different primary Medical Assessor and the Claimant had not sought a further or review assessment of that injury.

🟪 Subsequent correspondence between the Claimant’s Solicitor and the Commission made it clear that the scope of the dispute was limited to a left facial nerve injury and did not extend to facial scarring.

🟪 The assessment of permanent impairment caused by facial nerve injury and facial scarring involves the application of different Tables in the relevant permanent impairment guidelines.

My Perspective

The decision in Fitzsimmons provides a useful reminder that in the post-Mandoukos world the parties must be vigilant in their correspondence with the Commission because that correspondence defines the scope of the dispute between the parties. A slip might result in the dispute being inadvertently restricted or expanded.

The Review Panel in Fitzsimmons made it clear, at [68], that the Commission will look beyond the application and reply forms lodged by the parties in order to ascertain the scope of the dispute. Subsequent submissions – or even a post made on the PIC Portal – has the capacity to help define the scope of the dispute.

PJH

Claimant Convicted of Negligent Driving Causing Death Denied Statutory Benefits

Decision

Alhussein v QBE Insurance (Australia) Limited [2026] NSWPIC 23

Sixty-Second-Or-Less Read

A Claimant drives his Ute into a causeway. Two passengers in the rear tray are swept away and tragically drown. The Claimant subsequently pleads guilty to two counts of negligent driving causing death.

Can the Claimant recover statutory benefits for the first 26 weeks even where he pleads guilty to serious driving offences well outside the 26-week period?

In Alhussein v QBE, a PIC Member concluded that s 3.37 of the Motor Accident Injuries Act 2017 prohibited the Claimant from recovering statutory benefits from the day he was charged with the serious driving offences, irrespective of when he was subsequently convicted.

Principles

✅ Section 3.37 of the Motor Accident Injuries Act 2017 prohibits the recovery of statutory benefits after the Claimant is charged with a serious driving offence (as defined by section 3.37(5))

✅ Subject to other statutory requirements, the Claimant’s entitlement to statutory benefits is only reinstated if the Claimant is subsequently acquitted of the serious driving charges or the proceedings against them are discontinued.

Facts

On 31 October 2022, the Claimant made a decision to drive his utility vehicle into a causeway. There were two passengers riding in the rear tray of his vehicle. Tragically, they were both drowned when the Claimant’s vehicle was swept into the water.

The Claimant subsequently pleaded guilty to two charges of negligent driving causing death.

In response to his own claim for statutory benefits, the Insurer issued a series of Liability Notices:

🟪 On 21 December 2022, the Insurer accepted liability for the first 26 weeks.

🟪 On 23 December 2022, having become aware of the police charges against the Claimant, the Insurer amended its Liability Notice to deny liability on the grounds that he had been charged with a serious driving offence.

🟪 On 25 June 2025, upon being informed by the Claimant that he had been acquitted of manslaughter and other charges, the insurer issued a further Liability Notice accepting liability for the first 26 weeks, but denying liability thereafter because the Claimant was wholly or mostly at fault.

🟪 On 17 July 2025, having become aware that the Claimant pleaded guilty to two charges of negligent driving causing death, the Insurer issued a further Liability Notice denying liability for statutory benefits on the grounds that the Claimant had been convicted of a serious driving offence

The Claimant lodged a Miscellaneous Assessment in the Commission challenging the Insurer’s July 2025 Liability Notice. The Claimant argue that his guilty plea occurred well after the first 26 weeks had passed and that the Insurer could not use the convictions to retrospectively extinguish his rights to statutory benefits for the first 26 weeks.

The Member’s Decision

The Member concluded that the Insurer was entitled to deny the Claimant statutory benefits, pursuant to s 3.37, of MAIA because the Claimant was convicted of a serious driving offence that was related to the motor accident.

Essentially, the Member reasoned that the series of Liability Notices issued by the Insurer did not change the fact that s 3.37 prohibited the recovery of statutory benefits when the Claimant was charged with serious driving offences and he was subsequently convicted for those offences.

The Member decided, however, that the Claimant was entitled to statutory benefits for the period between his late claim and the date he was charged with a serious driving offence.

My Perspective

The decision in Alhussein is interesting because the Member appears to have interpreted the word “after” in s s 3.37(1) to mean that a Claimant who commits a serious driving offence may only be denied statutory benefits for the period after they have been charged with the offence, rather than from the date of the accident.

It the Claimant is subsequently convicted, then the prohibition stands. If, however, the Claimant is acquitted of all serious driving charges, then their entitlement is reinstated, subject to whether they suffered a threshold injury and/or were wholly or mostly at fault for the accident.

PJH

Look Up From Your Phone! Pedestrian’s Contributory Negligence Measured at 100%.

Decision

Kojic v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 13

Sixty-Second-Or-Less Read

A pedestrian wants to cross a busy arterial road with six lanes. There is a pedestrian crossing 85 metres away, but he does not use it. After crossing three southbound lanes and two northbound lanes, the pedestrian enters the kerbside lane with his eyes focussed on his mobile phone. Had he looked, he would have seen the Insured vehicle travelling towards him.

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

In Kojic v IAG, a PIC Member concluded that the Insured’s driving did not depart from the required standard. In a salutary lesson to anybody addicted to their mobile phone, however, the PIC Member proceeded to find that the Claimant’s contributory negligence was in the worst possible case because, instead of maintaining a proper lookout for approaching vehicles, the pedestrian focussed, instead, upon his mobile device. The Member, therefore, measured contributory negligence at 100%.

Principals

✅ In multiparty accidents, where the Claimant is the only party at fault, the concept of relative culpability does not apply. Instead, contributory negligence is measured by the extent to which the Claimant departed from the required standard of care.

✅ A finding of 100% contributory negligence is reserved for “the worst possible” cases.

✅ A pedestrian crossing a busy six-lane arterial road, whilst looking at their mobile phone, falls into the worst possible case.

Facts

On 25 May 2024, the Claimant was run down whilst trying to cross Victoria Road, at Drummoyne, near the intersection with Osgathorpe Road.

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

The Member made the following findings of fact:

🟪 The Insured was heading north on Victoria Road at the time of the accident.

🟪 The Insured was travelling at approximately 50kph because she intended to turn left into a side street which lay 10 to 15 metres away and was slowing her vehicle in order to make the turn.

🟪 A traffic-light controlled intersection lay approximately 85 metres further to the north of the accident site.

🟪 The Claimant walked across the three south-bound lanes of Victoria Road, without incident, and stood for a period on the median strip.

🟪 There were stationary vehicles backed-up in lanes 2 and 3 northbound on Victoria Road.

🟪 After being waved through by an unknown driver, the Claimant walked between the stationary vehicles towards the western kerb of Victoria Road.

🟪 The Insured vehicle collided with the Claimant as the Claimant left lane 2 and entered lane 1.

🟪 The Claimant was looking at the mobile phone in his hand as he entered lane 1.

🟪 Whilst the Claimant looked both ways when he first started to cross Victoria Road and, again, when he stepped from the median strip, he did not look both ways when he left lane 1 and entered lane 2.

🟪 The Claimant emerged, without warning, from behind stationary vehicles into the path of the Claimant’s vehicle.

The Member’s Decision

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

The Claimant’s Conduct

The Member determined that the Claimant departed from the standard of care expected of him because a reasonable person in his position would have:

🟪 Used the pedestrian crossing which lay 85 metres away rather than cross a six-lane highway.

🟪 Exercised additional care because it was foreseeable that there might be vehicles in lane 1 wishing to turn left into the cross-street close to where he chose to cross.

🟪 Taken the act of being waved through as permission to only traverse the lane that vehicle occupied rather than all three northbound lanes.

🟪 Entered lane 1 without being distracted by their mobile phone.

🟪 Looked to their left before entering lane 1 and observed the approach of two vehicles.

The Insured’s Conduct

The Member determined that the Insured did not depart from the standard of care expected of her because she was driving at a reasonable speed and maintaining a proper lookout.

Degree of Contributory Negligence

The Member assessed contributory negligence at 100% on the following bases:

🟪 Whilst there were two parties involved in the accident, only one of them was culpable. It followed that relative culpability was not the correct way of assessing contributory negligence.

🟪 Given that the Claimant was the only party at fault, his contributory negligence must be assessed by the extent to which his conduct departed from the standard expected from a reasonable pedestrian.

🟪 A finding of 100% is reserved for the “worst possible” case of contributory negligence.

🟪 In this case, the Claimant’s conduct falls into the “worst possible” category because he entered lane 1 of a busy arterial road without looking left and whilst looking at his mobile phone.

My Perspective

The decision in Kojic provides another instructive example of how most-at-fault disputes are resolved post the Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272.

If the pedestrian is the only party at fault – and the driver was not at fault in any way – it is tempting to conclude that the pedestrian must, automatically, be wholly at fault. In that scenario they are, after all, the only party to the accident found to be at fault.

The Member in Kojic, however, has interpreted the Supreme Court’s decision in Evic to mean that the concept of relative culpability has no relevance when the Claimant is the only party at fault. Relative culpability cannot be compared when only one party is culpable.

When a pedestrian is the only party at fault, the pedestrian’s contributory negligence is measured by reference to the extent their conduct departed from the standard of care required of them.

In a salutary lesson to everybody addicted to their mobile devices in this modern world, the Member concluded that the Claimant’s focus on his mobile phone, rather than on the vehicles approaching him from his left, placed his want of care in the worst possible class. The Member, therefore, assessed contributory negligence at 100%.

It is important to understand, however, that the finding of 100% contributory negligence stemmed from the finding that the pedestrian’s want of care was in the worst class rather than from the fact that they were the only party at fault.

To see an example of a most-at-fault dispute where the only party at fault had their contributory negligence assessed at 80%, see my Case Note in Raad v QBE Insurance (Australia) Limited [2025] NSWPIC 598

PJH

Frivolous & Vexatious Medical Assessment Dismissed

Decision

Contarino v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 636

Sixty-Second-Or-Less Read

A Claimant suffers a threshold injury to their right shoulder. They subsequently seek the cost of a total right shoulder replacement with the express intention of arguing that the surgery renders the right shoulder injury non-threshold. The Insurer denies liability for the surgery because more than 52 weeks have passed since the accident and the Claimant’s only injuries are threshold injuries.

Can the Claimant’s application for a medical assessment of the treatment dispute proceed?

In Contarino v IAG, a PIC Member dismissed the Claimant’s medical assessment application, pursuant to s 54 of the PIC Act, on the grounds that it was frivolous and vexatious because the outcome did not affect the Claimant’s entitlements. The Insurer could not be liable for the treatment given the Claimant’s threshold injuries. The PIC Member also observed that the dispute could not be pursued for an ulterior purpose.

Principals

✅ Section 54 of the Personal Injury Commission Act 2020 provides that PIC proceedings – including medical assessments – may be dismissed if they are frivolous and vexatious and otherwise misconceived.

✅ Proceedings which have no potential to impact the Claimant’s entitlements are frivolous and vexatious should be dismissed.

✅ Proceedings, which cannot affect the Claimant’s entitlements, cannot be maintained for an ulterior purpose.

Facts

The Claimant was injured on 8 February 2024 when he was rear-ended whilst stationary at a set of lights.

A Medical Assessor subsequently certified that the only injuries the Claimant sustained in the accident were threshold injuries; namely soft tissue injuries to the spine and the right shoulder. The injury to the right shoulder exacerbated pain associated with a pre-existing rotator cuff repair but did not cause any new tear.

The Claimant subsequently sought approval of a right shoulder replacement procedure. The Insurer declined liability on the grounds that, pursuant to section 3.28(1)(b) of MAIA, the Claimant was not entitled to treatment and care beyond 52 weeks, from the date of the motor accident, given the uncontested finding that the only injuries were threshold injuries.

The Claimant subsequently lodged a medical dispute in the Commission.

The Insurer sought to have the medical dispute dismissed on the grounds that it could not be liable for the cost of the surgery even if a finding were made that it was reasonable and necessary and related to the motor accident.

There was no secret that the Claimant intended to use the advent of surgery to support an argument that the surgery transformed the threshold injury to her right shoulder into a non-threshold injury. That intention was openly stated in her submissions.

The Member’s Decision

The PIC Member agreed that the Claimant’s application should be summarily dismissed.

The Member stated, at the outset, that:

“This is another example of a party seeking a medical assessment where the determination will not impact on the rights and an attempt to use the determination for another purpose”.

Having made that observation, the Member provided the following reasons:

🟪 Section 54 of the Personal Injury Commission Act 2020 applies to medical assessments.

🟪 Section 54 specifically states that proceedings may be dismissed if they are “frivolous or vexatious or otherwise misconceived or lacking in substance“.

🟪 A strike out application should be exercised sparingly and in circumstances were the Claimant’s case is taken at its highest – see Insurance Australia Limited t/as NRMA Insurance v Fayed [2023] NSWPICMP 413

🟪 Pursuant to s 3.28(1)(b), the Insurer is not liable to pay for the proposed treatment in any circumstances.

🟪 The Claimant’s request for a medical assessment is frivolous and vexatious, or otherwise misconceived, in circumstances where the Insurer cannot be liable, irrespective of the outcome.

🟪 The ongoing maintenance of the proceedings, where there is no entitlement to relief, wastes costly and scarce resources where the Medical Assessor could be otherwise deployed to determine a dispute which affects a Claimant’s entitlements.

🟪 Even if allowed to proceed, the Medical Assessors findings on causation are not binding in any subsequent threshold injury dispute.

The PIC Member, therefore, dismissed the Claimant’s application for medical assessment.

My Perspective

The decision in Contarino makes it clear that the PIC will not waste its precious resources on disputes which do not affect the Claimant’s entitlements.

Furthermore, to put it bluntly, a treatment dispute relating to a threshold injury cannot be pursued with the ulterior motive of setting up an argument that the treatment renders the threshold injury non-threshold.

The Claimant’s gambit, in this case, was misguided in any event. If the shoulder replacement went to plan, the changes to the Claimant’s body resulting from the surgery would not constitute an “injury”, in the absence of detriment, pursuant to the definition in s 1.4 of MAIA. Without an “injury”, the question of threshold versus non-threshold injury does not arise. For more information see Allianz Australia Insurance Limited v Mandoukos [2025] NSWPICMP 844.

PJH

Slippery When Wet – Another Driver’s Speed Means They’re Mostly-at-Fault

Decision

Salazar Renteria v AAI Limited t/as GIO [2025] NSWPIC 623

Sixty-Second-Or-Less Summary

A Claimant rides her motorcycle on a wet road. She’s riding at 60 kph in a 50 zone. She slows to 25 kph to make a ninety-degree turn at the bottom of a hill. The Claimant loses control on the wet road and suffers injury.

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

In Renteria v GIO, a PIC Member found that the Claimant was 70% responsible for her accident because her speed was too high for the wet conditions and the sharp turn. The Claimant was, therefore, wholly or mostly at fault for her accident.

Principles

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

✅ In single vehicle motor accidents, assessing the Claimant’s contributory negligence requires an evaluative judgment of the extent to which they departed from the required standard of care.

Facts

On 14 August 2024, the Claimant was riding her motorcycle in Hurstville. She lost control of her motorcycle, on the wet road, whilst turning left from King Georges Road onto Hurstville Road. She argued that the accident was solely caused by the wet conditions rather than any want of care on her part.

The Insurer determined that the Claimant was not entitled to ongoing statutory benefits, beyond 52 weeks, because she was wholly or mostly at fault for her accident.

The Insurer’s determination was confirmed on internal review and the Claimant lodged a miscellaneous assessment in the Commission to resolve the most-at-fault dispute between the parties.

The Member’s Decision

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

🟪 The Claimant’s Speed – the Claimant was riding at 60 kph in a 50 zone in wet conditions. She slowed to 25 kph in order to make the left hand turn into Hurstville Road. An inference can be drawn that a wet road can be slippery and that the presence of water on the road requires a driver or a motorcycle rider to pay additional attention to how they control their vehicle and to reduce their speed. The Claimant’s speed was too high given the wet road, the downhill slope and the sharp ninety-degree corner. By commencing the turn at 25 kph, the Claimant failed to exercise reasonable care.

🟪 The Claimant’s Control – after losing balance, the Claimant failed to appropriately apply the brakes of her motorcycle and, instead, steered to the right, causing the motorcycle to fall to the right-hand side.

🟪 The Claimant’s Contributory Negligence – the Claimant’s contributory negligence should be assessed by reference to the degree she departed from the required standard of care. On that basis, the Claimant’s contributory negligence was 70%

My Perspective

The decision in Renteria illustrates, once again, how contributory negligence is assessed where the Claimant is the only party involved in the accident.

As established by the Supreme Court in Evic, in single vehicle accidents, the concept of relative culpability does not apply because there is no relative culpability to compare. Instead, 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.

My 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

🟪 Evic Applied – How to Assess Contributory Negligence in a Chain Collision?

🟪 How is Relative Culpability Assessed When One Party Disobeys the Road Rules?

🟪 How Most at Fault Disputes are Assessed When the Insured is Not at Fault?

Interestingly, in assessing the Claimant’s contributory negligence at 70%, the Member’s decision mirrored that of a prior most-at-fault dispute involving a driver losing control in wet conditions: Mellor-Langham v QBE Insurance (Australia) Limited [2025] NSWPIC 194.

PJH

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

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

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

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

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.

PJH

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