Tag: Motor Accidents

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

Decision

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

Sixty-Second-Or-Less Summary

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

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

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

Principles

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

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

Facts

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

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

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

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

The Member’s Decision

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

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

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

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

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

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

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

My Perspective

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

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

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

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

PJH

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

Decision

Liebert v Allianz Australia Insurance Limited [2025] NSWPIC 458

Sixty-Second-or-Less Read

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

Is the Claimant entitled to statutory benefits?

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

Principles

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

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

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

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

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

Facts

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

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

The PIC Member made the following factual findings:

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

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

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

Relevant Definitions

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

“…an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—

(a)  the driving of the vehicle, or

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

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

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

The Member’s Reasons

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

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

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

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

The Member found that in this dispute:

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

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

🟪 The bus was not running out of control.

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

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

Pete’s Perspective

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

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

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

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

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

PJH