Statutory Benefits – Peter Hunt

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

Decision

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

Sixty-Second-Or-Less Read

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

Is a bone contusion a threshold injury?

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

Principles

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

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

Facts

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

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

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

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

Relevant Definitions

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

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

The Review Panel Decision

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

🟪 A bone contusion represents bruising to the bone.

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

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

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

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

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

My Perspective

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

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

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

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

PJH

#45 – English Language Course found to be Rehabilitation

Decision

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

Sixty-Second-Or-Less Read

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

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

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

Principles

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

Facts

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

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

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

Relevant Definitions

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

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

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

(a) the maximum level of independent living, and

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

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

The Member’s Decision

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

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

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

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

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

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

My Perspective

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

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

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

PJH

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

Decision

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

Sixty-Second-Or-Less Read

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

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

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

Principles

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

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

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

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

Facts

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

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

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

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

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

Personal Injury Commission Procedural Direction 6 (PIC 6)

Relevantly, clause of PIC 6 provides:

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

The Court of Appeal’s Decision

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

🟪 Characterisation of Delegate’s Decision

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

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

🟪 The President’s Powers

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

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

My Perspective

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

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

PJH

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

Decision

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

Sixty-Second-Or-Less Read

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

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

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

Principles

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

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

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

Facts

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

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

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

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

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

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

The Merit Reviewer’s Decision

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

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

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

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

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

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

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

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

My Perspective

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

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

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

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

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

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

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

PJH

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

Decision

Cameron v Allianz Australia Insurance Limited [2026] NSWPICMR 15

Sixty-Second-or-Less Read

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

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

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

Principles

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

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

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

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

Facts

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

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

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

The Claimant sought a merit review.

The Merit Reviewer’s Decision

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

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

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

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

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

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

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

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

My Perspective

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

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

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

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

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

PJH

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

Decision

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

Sixty-Second-or-Less Read

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

Is the Claimant wholly or mostly at fault?

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

Principles

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

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

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

Background

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

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

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

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

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

Findings of Fact

The Member made the following findings of fact:

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

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

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

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

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

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

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

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

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

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

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

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

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

The Member’s Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

My Perspective

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

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

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

PJH

#39 – Driver Most at Fault for Aggressive Merging Manoeuvre

Decision

Contos v Allianz Australia Insurance Limited [2026] NSWPIC 187

Sixty-Second-or-Less Read

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

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

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

Principles

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

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

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

Background

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

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

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

Findings of Fact

The Member made the following findings of fact:

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

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

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

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

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

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

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

The Member’s Decision

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

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

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

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

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

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

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

My Perspective

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

The Member applied the following process:

🟪 Decide what each party did wrong.

🟪 Compare each party’s relative culpability.

🟪 Place a percentage on that relative culpability.

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

PJH

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

Decision

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

Sixty-Second-or-Less Read

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

Is the Claimant entitled to ongoing statutory benefits.

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

Principles

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

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

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

Facts

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

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

The Member’s Decision

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

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

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

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

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

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

My Perspective

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

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

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

PJH

#36 – 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

#35 – 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

#33 – 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

#32 – Claimant Fails to Discharge Onus of Proof that they were An Earner

Decision

Cisera v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPICMR 4

Sixty-Second-or-Less Read

A Claimant alleges that he was “an earner” prior to his accident because he provided consulting services to his father’s business in the eight weeks before his accident occurred. The Insurer argues, however, that the Claimant was incapacitated for work before his accident and that the documentary evidence he relied upon was created post-accident to give the false impression that he was self-employed.

Was the Claimant an earner before his accident?

In Cisera v IAG, a Merit Reviewer agreed with the Insurer that the Claimant failed to discharge the onus of establishing, on the balance of probabilities, that he was self-employed in the eight-week period before his accident. There were, simply, too many inconsistencies.

Principles

✅ A claimant is not entitled to weekly benefits, pursuant to Part 3.3 of the Motor Accidents Injuries Act 2017 (MAIA) unless they are “an earner”.

✅ Sch 1, cl 2(a)(i) of MAIA sets out the statutory definition of what constitutes “an earner”.

✅ The onus of proof is on the Claimant to establish that they are “an earner”.

Facts

The Insurer denied the Claimant’s application for weekly benefits on the grounds that he was not an “earner” within the meaning of Sch 1, cl 2(a)(i) of MAIA.

The Claimant alleged that he was self-employed as a building consultant and that he was engaged to work in his father’s business for the eight-week period before his motor accident. He relied upon two invoices, this tax records for the relevant period, an affidavit sworn by his father and an eleven-page scope of works document.

The Insurer argued that:

The Claimant had been totally unfit for work for more than six years prior to the accident.

🟪 At the time he was allegedly self-employed, the Claimant was awaiting further spinal implant surgery.

🟪 The Claimant did not inform any of this doctors that he had returned to work.

🟪 The Claimant’s contractor licence was inactive at the time he provided the alleged services.

🟪 The invoices relied upon by the Claimant were prepared post-accident and lacked detail.

🟪 The income the Claimant chose to declare to the ATO, post-accident, was part of a longstanding pattern of income support payments he received from his family.

Following an Internal Review Certificate which affirmed the original decision, the Claimant lodged an Application for Merit Review.

The Merit Reviewer’s Decision

The Merit Reviewer affirmed the Insurer’s decision that the Claimant was not an earner, for the following reasons:

🟪 The onus is on the Claimant to demonstrate that he meets the definition of “earner” in Sch 1, cl 2(a)(i) of MAIA.

🟪 The inconsistencies in the evidence relied upon by the Claimant were such that his claims were not truthful, reliable or cogent and should be rejected out of hand.

🟪 The evidence, therefore, failed to establish, on the balance of probabilities, that the Claimant was self-employed in the eight-week period before the accident.

🟪 Indeed, the evidence established, on the balance of probabilities, that income was mispresented and that documents came into existence, post-accident, with the intention of giving credence to a misrepresentation that the Claimant was self-employed before the accident.

Furthermore, the Merit Reviewer rejected the Claimant’s argument that a “promissory estoppel” arose because a Claims Manager had alleged acceptedly, during a telephone conversation, that the Claimant was self-employed. Given that the Insurer had formally asserted, in numerous documents, that the Claimant was not an earner, a reasonable person in the Claimant’s position would have understood that this was the Insurer’s correct position.

Why This Case is Important

The decision in Cisera provides a useful case study of how a Merit Reviewer will evaluate the evidence presented by the parties in order to assess whether a claimant has discharged the onus on them to establish that they are an earner.

In this particular case, the Insurer highlighted the inconsistencies in the evidence presented by the Claimant and successfully argued that they had failed to discharge the onus.

PJH

#31 – Serious Driving Offences – Claimant Injured During Psychotic Episode Entitled to Statutory Benefits

Decision

Flanagan v Allianz Australia Insurance Limited [2026] NSWPIC 79

Sixty-Second-Or-Less Read

A Claimant is injured in a motor accident during a manic psychotic episode. He is charged with various serious driving offences. The Court, however, enters a special verdict stating that, whilst the acts were proven, the Claimant was not criminally responsible for them due to a mental health impairment.

Does section 3.37 of MAIA preclude the Claimant from recovering statutory benefits?

In Flanagan v Allianz, a PIC Member noted that section 3.37 precludes statutory benefits from the time a claimant is charged with a serious driving offence but that their entitlement to statutory benefits is restored if they are acquitted of those offences. The Member concluded that the special verdict in this claim fell within the broad concept of an acquittal because the Court concluded that the Claimant was not criminally responsible for the driving which caused his injuries.

Principles

✅ Section 30 of the Mental Health and Cognitive Impairment Forensic Provision Act 2020 (MHCI Act) provides a special verdict must be entered if “act proven but not criminally responsible” where a jury is satisfied that a mental health impairment or cognitive impairment defence has been established on the evidence.

✅ Section 10(1)(a) of the Crimes (Sentencing Procedure) Act 1999 (CSP Act) gives the Court power to dismiss charges, even where the offence is proven, when it is inexpedient to punish the offender.

✅ Section 3.37 of the Motor Accident Injuries Act 2017 (MAIA) precludes the recovery of statutory benefits from the time a claimant is charged with a serious driving offence unless they are subsequently acquitted or the criminal proceedings are discontinued.

✅ For the purposes of section 3.37(2) of MAIA a special verdict under section 30 of the MHCI Act comes within the broad concept of an “acquittal” because the Court has found that the Claimant is not criminally responsible for the conduct which caused their injuries.

Facts

The Claimant was injured in a motor accident on 5 February 2022.

He was subsequently charged with multiple driving offences which fell within the definition of a “serious driving offence” for the purpose of section 3.37(5) of MAIA. Those offences included a police-pursuit charge and two counts of causing bodily harm by misconduct in charge of a motor vehicle.

The Insurer denied liability to pay the Claimant statutory benefits on the grounds that he had been charged with serious driving offences and s 3.37, therefore, disentitled him from those benefits.

The Court accepted, however, that the Claimant was suffering a manic psychotic episode, associated with his bipolar affective disorder, at the time the serious driving offences were committed.

The Court, therefore, disposed of the criminal proceedings as follows:

🟪 Indictable offences – the Court entered special verdicts of “act proven but not criminally responsible” pursuant to section 30 of the MHCI Act.

🟪 Summary offences – the Court found the offence proved but dismissed the charges without conviction pursuant to section 10(1)(a) of the CSP Act.

It followed that all the criminal proceedings brought against the Claimant were brought to an end and no convictions were recorded.

The Insurer, following the conclusion of the criminal proceedings maintained that section 3.37 of MAIA precluded statutory benefits because the Claimant had been charged with serious driving offences (as contemplated by sub-section (1)) and the criminal proceedings had not ended with either an acquittal or a discontinuance (as required by sub-section (2)).

Supreme Court Precedent

The Insurer relied upon the Supreme Court’s decision in Insurance Australia Limited (t/as NRMA) v James Hulse [2024] NSWSC 142.

In that matter, Harrison AsJ concluded that:

🟪 Pursuant to section 3.37(1) of MAIA, a claimant may be disentitled to statutory benefits, for all time, when they are charged, at one point in time, for a serious driving offence and the disentitlement is not terminated pursuant to s 3.37(2).

🟪 Dismissal of the charge pursuant to s 10(1)(a) of the CSP Act does not terminate the disentitlement because there is neither an acquittal nor a discontinuance.

Our full McCabes Case Note on Hulse, can be accessed here.

The Member’s Decision

Distinguishing Hulse

The Member concluded that section 3.37 of MAIA did not apply to preclude the recovery of statutory benefits, in the circumstances of this claim.

At the outset, the Member distinguished the Supreme Court’s decision in Hulse on the following basis:

🟪 Hulse stands for the proposition that a dismissal under section 10(1)(a) of the CSP Act, following a finding of guilt, does not remove the operation of section 3.37(1), because the terms of section 3.37(2) are not specifically satisfied.

🟪 In Hulse, the Supreme Court was not called upon, and did not resolve, the distinct question, arising in these proceedings, where criminal responsibility has been negatived as a matter of fact and/or law.

In other words, the claimant in Hulse was found criminally responsible for their conduct, but the Court exercised its discretion, during the sentencing phase, to be lenient and not record a conviction.

By contrast, in this claim, the matter did not even get to sentencing because the Court found that the Claimant was not criminally responsible for his actions given his manic psychotic episode.

Construing s 3.37

Having distinguished Hulse, the Member made the following points in construing section 3.37 of MAIA:

🟪 Read as a whole, section 3.37 imposes a temporary suspension of statutory benefits from the time a claimant is charged with serious driving offences pending the outcome of those criminal proceedings. The entitlement to statutory benefits is restored if the claimant is acquitted of the offences charged or if the criminal proceedings are discontinued.

🟪 The concept of “acquittal” in section 3.37(2) is capable of extending beyond the formal verdict of `not guilty’ to a broader construction which looks at the substance and legal effect of criminal disposition.

🟪 The outcome in this case was akin to an acquittal because the criminal proceedings were finally determined without any criminal responsibility being attributed to the Claimant due to his manic psychotic episode.

🟪 The purpose of section 3.37 is to preclude claimants from recovering statutory benefits where their injuries are sustained in the course of culpable criminal conduct.

🟪 Section 3.37 is not directed at precluding statutory benefits where the criminal law has declared that the claimant is not criminally culpable by reason of mental disability.

My Perspective

The decision in Flanagan is important because it clarifies – and, arguably, expands upon – the circumstances under which a claimant, charged with a “serious driving offence”, will have their entitlement to statutory benefits restored.

The key to the decision is the Member’s conclusion that “acquittal” is equivalent to “not criminally responsible”.

It follows that, based on this decision, statutory benefits can be reinstated, pursuant to s 3.37(2) of MAIA, whenever a court finds that the claimant was not criminally responsible for the driving conduct which caused their injuries, irrespective of the legal label attached to the conclusion of the criminal proceedings brought against them.

Importantly, the decision in Flanagan should not apply to a Claimant who has received the benefit of s 10(1)(a) of the CSP Act. In those circumstances, in our view, the Claimant has been found criminally responsible for their conduct, but the Court has exercised leniency by deciding, during the sentencing phase, not to record a conviction.

That distinction is real.

As we understand it, an accused who successfully argues for a “section 10” can still be subjected to a criminal release order or an intervention program. In other words, there may still be criminal consequences despite the Court exercising its discretion not to record a conviction.

By contrast, an accused who successfully argues for a special verdict pursuant to s 30 of the MHCI Act can not be subjected to any criminal sanctions. They have effectively been found not guilty.

PJH

#30 – Spinal Nerve Root Injury? Show Me the (Radicular) Signs!

Decision

Morrison v QBE Insurance (Australia) Limited [2026] NSWPICMP 79

Sixty-Second-Or-Less Summary

A Claimant suffers a neck injury in a motor accident. The evidence demonstrates an injury at C3 causing one sign of radiculopathy.

Has the Claimant sustained a non-threshold injury?

In Morrison v QBE, the Medical Review Panel highlighted that clause 5.8 of the Motor Accident Guidelines requires an injured person to demonstrate two signs of radiculopathy. Given that the Claimant only demonstrated one sign of radiculopathy, the requirements of clause 4(1) of the Regulations was not satisfied. It followed that the Claimant’s injury was a “soft tissue injury” and, therefore, a “threshold injury”.

Principles

✅ Clause 4(1) of the Motor Accident Injuries Regulation 2017 (MAIR) provides that a spinal nerve root injury, manifesting in neurological signs, is still a soft tissue injury unless those neurological signs constitute radiculopathy.

✅ Clause 5.8 of the Motor Accident Guidelines (MAGs) provides that an injured person must demonstrate at least two of the five recognised signs of radiculopathy.

✅ If an injured person demonstrates only one sign of radiculopathy, clause 5.8 of the MAGs is not satisfied, and their injury will be deemed a threshold injury.

Facts

The Claimant was injured in a motor accident on 23 August 2023.

The Insurer denied liability for ongoing statutory benefits and common law damages on the grounds that the only injury the Claimant sustained was a threshold injury, within the meaning of [s%201.6(2)]s 1.6(2) of MAIA.

The primary Medical Assessor concluded that the Claimant’s cervical spine injury was a threshold injury for the following reasons:

🟪 There was no evidence of radiculopathy and no evidence of any disc rupture.

🟪 Any injury at C3 was not capable of causing radiculopathy because there is no myotome, reflect or stretch test referable to that level.

🟪 The accident only caused an aggravation of right C3/4 and left C2/3 facet joints.

The Claimant successfully sought referral to the Medical Review Panel.

The Review Panel’s Decision

The Review Panel agreed that the Claimant’s cervical spine injury was a threshold injury, for the following reasons:

🟪 The evidence established that the nature of the accident could have caused a cervical spine injury and that the accident did, in fact, cause a left-sided C3 nerve root injury.

🟪 The evidence did not establish a C2/3 disc bulge or protrusion or a facet joint capsule injury. It follows that the accident did not cause a “complete or partial rupture of tendons, ligaments, menisci or cartilage” which would have taken the injury outside the statutory definition of “soft-tissue injury” in s 1.6.

🟪 Whilst the C3 nerve root injury is “an injury to nerves“, clause 4(1) of MAIR provides that a spinal nerve root injury, manifesting in neurological signs, is still a soft tissue injury unless those neurological signs constitute radiculopathy. Furthermore, clause 5.8 of the MAGs requires that an injured person demonstrate at least two of the five recognised signs of radiculopathy.

🟪 It is rare for an injury to C3 to cause radiculopathy.

🟪 In this case, the Claimant only demonstrated one sign of cervical radiculopathy. He did not demonstrate two signs as required by clause 5.8 of the MAGs.

My Perspective

The decision in Morrison provides a useful illustration of how the provisions relating to physical threshold injuries must be read together. In broad terms:

🟪 Section 1.6(2) of MAIA provides a broad definition of what constitutes a “soft tissue injury“, with both examples and exceptions.

🟪 Clause 4(1) of MAIR clarifies when an injury to a spinal nerve root falls inside or outside the definition of “soft tissue injury” by reference to the presence of “radiculopathy“.

🟪 Clause 5.8 of the MAGs further clarifies what symptoms and signs constitute “radiculopathy” and confirms that two signs are required.

The decision in Morrison also confirms that an injury to a spinal nerve root remains a soft tissue injury if there is only one sign of radiculopathy stemming from that injury.

PJH

#29 – 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

#28 – 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

#27 – 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

#26 – Defining the Scope of a Threshold Psychiatric Dispute

Decision

Allianz Australia Insurance Limited v Meilak [2025] NSWPICMP 980

Sixty-Second-Or-Less Read

A Claimant alleges he sustained PTSD as a consequence of a motor accident. On a threshold injury dispute, the primary Medical Assessor agrees. The Review Panel, however, diagnoses a Persistent Depressive Illness.

Is the Review Panel permitted to find a diagnosis not listed by the parties?

In Allianz v Meilak, a Review Panel found that the Court of Appeal’s decision in Mandoukos did not prevent it from selecting its own psychiatric diagnosis, even if that diagnosis fell outside the list of diagnoses advanced by the parties to the dispute.

Principles

✅ The ambit of a threshold psychological injury dispute is whether the Claimant suffered a psychological injury as a result of the accident and, if so, whether that injury was a threshold injury.

✅ It is the role of the Medical Assessor / Review Panel to decide whether the accident caused a recognised psychiatric illness by reference to DSM-V.

✅ The Medical Assessor / Review Panel is not restricted to the list of psychiatric diagnoses provided by the parties.

Facts

The Claimant was injured in a motor accident on 2 June 2023. His vehicle was stationary when the Insured ran into the rear of his vehicle. The Claimant alleged injuries to his neck and lower back, together with a psychiatric injury.

The Insurer denied liability on the grounds that the only injuries the Claimant sustained in the accident were threshold injuries. The primary Medical Assessor diagnosed PTSD, which is a non-threshold injury, entitling the Claimant to ongoing statutory benefits and common law damages.

The Insurer sought a review of the Medical Assessor’s psychiatric diagnosis.

The Review Panel Decision

The Review Panel concluded that:

🟪 The accident did not cause the Claimant PTSD because the minor nature of the impact was not a “traumatic event” resulting in “actual or threatened injury” as required by Criterion A of the DSM-V diagnostic criteria for a PTSD diagnosis.

🟪 The accident most likely caused the Claimant an initial Adjustment Disorder and his symptoms progressed to meet the criteria of Persistent Depressive Disorder.

The Review Panel made the following observations regarding the scope of the dispute before it:

🟪 The Court of Appeal found in Mandoukos v Allianz Australia Insurance Limited [2024] NSWCA 71 that “…the medical dispute ‘about a medical assessment matter’ will, in each case, be a question of fact depending upon the ambit of the dispute between the parties at the relevant time having regard to the competing claims made.”

🟪 In this claim, the dispute referred for assessment was whether the accident caused the Claimant PTSD.

🟪 It is the Review Panel’s experience, however that “psychiatric diagnoses may not remain static throughout the lifecycle of the claim and may change depending on various factors including treatment received, the claimant’s fortitude/ vulnerabilities or the general progression of the initial illness”.

🟪 The Review Panel may, therefore, diagnose a condition that is the same as, or different to, the diagnoses made by the primary Medical Assessor and/or the treating experts and/or the medico-legal experts.

🟪 For the same reason, the Review Panel may make a diagnosis which is the same as, or different from, the injuries listed in the PIC application and reply forms.

On this basis, the Review Panel revoked the primary Medical Assessor’s Certificate before proceeding to issue a new Certificate which confirmed the Claimant sustained a non-threshold psychiatric injury in the accident, albeit with a different psychiatric diagnosis.

My Perspective

The decision in Meilak is interesting because the Review Panel sidestepped what the Court of Appeal said in Mandoukos about the scope of a medical dispute and resolved the threshold injury dispute by selecting a psychiatric diagnosis which differed from that advanced by the Claimant (not to mention the diagnosis found by the primary Medical Assessor).

The Review Panel justified its departure from Mandoukos by noting that psychiatric diagnoses may change over time with treatment and as a consequence of the general progression of the condition. That justification is problematic, however, because the Claimant advanced PTSD as his non-threshold psychiatric injury and the Review Panel concluded that he never suffered from that specific psychiatric condition because the nature of the accident did not satisfy Criterion A. This was not a case where the Claimant initially suffered from PTSD but the Claimant’s psychiatric illness progressed to a different psychiatric condition over time.

The Review Panel in this case took a similar approach to the Review Panel in IAG v Kavakci.

Compare, however, the decision of a differently constituted Review Panel in Elammar v AAMI. In that dispute, the Review Panel diagnosed an Opioid Abuse Disorder but declined to certify a non-threshold psychiatric disorder because the Claimant did not list an Opioid Abuse Disorder in the list of conditions he wanted assessed.

PJH

#25 – 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

#24 – 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

#23 – Redundancy Payments and Early Termination Payments Should Not Be Included in PAWE

Decision

CPP v Youi Pty Limited [2025] NSWPICMR 27

Sixty-Second-Or-Less-Read

A Claimant receives a redundancy payment and an early termination payment when their pre-accident role was made redundant. Can those payments be included when calculating the Claimant’s pre-accident weekly earnings?

In CPP v Youi Pty Ltd, a Merit Reviewer determined that Payments made to compensate a former employee because their role no longer exists are not income gained in return for labour or services and are, therefore, not earnings. It followed that neither the redundancy payment nor the early termination payment could be included in the Claimant’s pre-accident weekly earnings.

Principles

✅ The term “earnings” in clause 4(1) of Schedule 1 to the Motor Accident Injuries Act 2017 (MAIA) should be given its ordinary English meaning of “income gained in return for labour or services provided” by the claimant.

✅ Payments made to compensate a former employee because their role no longer exists – such as redundancy payments and/or early termination payments – are not income gained in return for labour or services.

✅ Furthermore, a redundancy payment and an early termination payment are not payments received “as an earner” because they are made when the Claimant’s employment has been terminated.

Facts

Following a motor accident, the Claimant sought to recover weekly benefits pursuant to Part 3.3 of MAIA.

The Claimant and the Insurer, however, were not able to agree on the Claimant’s Pre-Accident Weekly Earnings (PAWE).

The Claimant argued that both a redundancy payment and an employee termination payment should be included in the calculation of his PAWE. The Insurer disagreed and argued that these payments were not “earnings”.

The dispute proceeded to the Personal Injury Commission for Merit Review.

Relevant Definition

Clause 4(1) of Schedule 1 to MAIA provides that:

“Pre-accident weekly earnings, in relation to an earner who is injured as a result of a motor accident, means the weekly average of the gross earnings received by the earner as an earner during the 12 months immediately before the day on which the motor accident occurred, unless subclause (2) applies…“

The Merit Reviewer’s Decision

The Merit Reviewer agreed that the redundancy payment and the early termination payment should not be included in the calculation of the Claimant’s PAWE, for the following reasons:

🟪 According to clause 4(2) of Schedule 1 to MAIA, the disputed payments may only be included in the Claimant’s PAWE if they are (a) “earnings” and (b) received by the Claimant as “an earner”.

🟪 Whilst the term “earnings” are not defined by MAIA, the ordinary English meaning of “earnings” is “income gained in return for labour or services provided by an earner”.

🟪 An early termination payment does not constitute “earnings” because it is not a payment made in return for labour or services which the Claimant provided. Rather, the early termination payment was made in lieu of providing notice of his termination.

🟪 Similarly, a redundancy payment is designed to compensate an employee for the inconvenience and hardship that might arise from their role no longer being required.

🟪 Furthermore, given that both the redundancy payment and the early termination payment were made when the Claimant’s employment was terminated, they were not payments made to the Claimant “as an earner” as required by the definition of PAWE in clause 4(1) of Schedule 1.

For these reasons, the Merit Reviewer excluded the redundancy payment and the early termination payment when calculating the Claimant’s PAWE.

Pete’s Perspective

The decision in CPP is helpful because it further clarifies what is included and what is not included in the concept of “earnings”.

The decision makes it clear that “earnings” is limited to income received by the Claimant in return for their labour or their services. It does not include other types of payments designed to compensate them for their role being made redundant or because they have not been provided with notice.

The Merit Reviewer acknowledged that some one-off payments may still constitute “earnings” if the payment is in return for labour or services. For example, a one-off bonus would constitute “earnings” because the bonus is paid to reward performance.

PJH

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

Decision

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

Sixty-Second-Or-Less-Read

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

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

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

Principles

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

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

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

Facts

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

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

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

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

Relevant Definitions

Section 1.4 of MAIA provides a definition of “treatment and care“, which includes an exhaustive list of eleven types of treatment and care. One of those items is “attendant care services“.

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

The Supreme Court’s Decision

Breaking Down the Definition of “Attendant Care Services”

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

More specifically:

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

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

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

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

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

Responding to the Insurer’s Arguments

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

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

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

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

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

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

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

Conclusion

Justice McHugh, therefore, concluded that:

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

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

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

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

The Insurer’s application was, therefore, dismissed.

Pete’s Perspective

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

Pet Care

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

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

For the Injured Person

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

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

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

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

“Reasonableness”

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

“Everyday Tasks”

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

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

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

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

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

Is House Painting an “Everyday Task”?

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

Are childcare services considered treatment and care or domestic services?

Walkies! When are Dog Walking Services Treatment & Care?

Can Treatment & Care be Found on the Uber App?

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

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

PJH

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

Decision

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

Sixty-Second-Or-Less Read

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

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

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

Principles

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

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

Facts

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

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

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

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

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

The Member’s Decision

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

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

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

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

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

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

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

Pete’s Perspective

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

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

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

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

PJH

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

Decision

Allianz Australia Insurance Limited v Mandoukos [2025] NSWPICMP 844

Sixty-Second-Or-Less-Read

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

Does the consequential surgery constitute a non-threshold injury?

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

Principles

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

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

Facts

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

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

The Claimant, however, subsequently underwent a C5/6 foraminotomy, which involved removing a segment of bone.

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

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

The Review Panel’s Reasons

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

The Review Panel, however, concluded that the changes to the Claimant’s body, caused by the surgery, did not constitute an “injury“, as defined in section 1.4 of MAIA, for the following reasons:

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

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

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

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

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

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

Pete’s Perspective

The Scope of the Dispute

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

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

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

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

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

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

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

🟪 The change was unintentional.

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

🟪 The change is neither planned nor deliberate.

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

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

In this dispute:

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

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

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

What About Treatment Which Goes Wrong?

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

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

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

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

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

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

What About WPI Assessments?

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

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

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

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

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

PJH

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

Decision

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

Sixty-Second-Or-Less Read

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

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

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

Principles

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

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

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

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

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

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

Facts

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

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

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

The Claimant successfully sought referral to the Review Panel.

The Review Panel’s Reasons

What was the Scope of the Dispute?

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

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

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

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

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

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

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

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

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

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

Is Dog Washing or Dog Walking a Treatment Expense?

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

The Review Panel gave the following reasons:

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

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

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

Are the Dogs Themselves a Treatment or Care?

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

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

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

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

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

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

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

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

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

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

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

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

The Review Panel’s Certificate

For the above reasons, the Review Panel certified that:

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

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

Pete’s Perspective

The Review Panel in Irani determined that:

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

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

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

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

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

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

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

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

PJH