The Court of Appeal has taken the opportunity to consider the procedural rules contained in Procedural Direction PIC6 and what has to be satisfied before referring a medical dispute for assessment under s7.20 of the Motor Accident Injuries Act 2017 (‘MAI Act’). 

The key takeaway is that the party applying for medical assessment of a threshold injury dispute must produce evidence demonstrating the injury status (i.e. a threshold or non-threshold injury).

Background to the dispute 

The claimant was involved in a motor vehicle accident in 2018 and in 2024 the insurer determined that the claimant’s injuries were threshold injuries as defined by s1.6 of the MAI Act. Damages are not available unless a claimant suffers non-threshold (more serious) injuries.

The claimant lodged an application for assessment of a threshold injury dispute in the Personal Injury Commission (‘Commission’), seeking referral for assessment of physical injuries as well as a psychiatric injury, referred to in the application as ‘depression, shock, anxiety.’

The insurer objected to the referral of a psychiatric injury for assessment because there was no evidence in support of such an injury, relying on Procedural Direction PIC6. Clause 17 of PIC6 provides that:

‘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 Commission agreed with the insurer, and refused to refer the dispute for assessment.

The claimant sought judicial review of that refusal, submitting that cll 16 and 17 of PIC 6 were inconsistent with s7.20 of the MAI Act. The claimant was unsuccessful in his review application[1],  Mitchelmore J stating [at 39] that:

‘The purpose of rules made under s 20 of the PIC Act, and procedural directions made under s 21 of the PIC Act, is to facilitate the exercise by the Commission of the statutory functions conferred upon it. Those functions include, as I have found, determining whether there is a medical dispute for the purposes of s 7.20 of the MAI Act. I do not discern any inconsistency between the content of the rules and procedural direction on which the Insurer relied, which are directed at ensuring the provision of adequate material to assist consideration of an application for referral, and s 7.20 of the MAI Act. In the present case, the absence of the evidence requested in accordance with the procedural rules was consistent with the absence of a medical dispute in relation to the claimed psychological injury and supportive of the decision made in that regard.’

Judgment

On 20 May 2025, the Court of Appeal dismissed the claimant’s appeal. 

Leeming JA, with whom Kirk JA and Griffiths AJA, clarified that the decision of the Commission in declining to refer the claimant’s application for assessment of a psychiatric injury was not characterised as a decision about whether there was a medical dispute to be referred pursuant to s7.20 of the MAI Act, but rather a decision about whether the application was supported by evidence.

His Honour found that s7.20 of the MAI Act does not oblige the Commission to refer a dispute for assessment by a medical assessor where the application does not comply with the procedural requirements within clause 17 of PIC6.  Importantly, his Honour said [at 52]:

‘It was open to the President’s delegate to form the opinion that no evidence demonstrating that he had not suffered a threshold injury had been supplied. It was thereafter open to advise the appellant of that fact, and grant a further opportunity to him to do so. When that did not occur, it was open to form the view that cl 17 of the Procedural Direction had not been satisfied. Clause 17 was a procedural requirement applicable to the appellant’s application within the meaning of r66(2)(c), binding on the delegate and the claimant, and r66(3) authorised the President to refuse to accept a non-complying application.’ (emphasis added)

Essentially, and as the exchange aptly quoted by his Honour [at 39] well highlights, the claimant’s submission that it was sufficient for him to simply assert that he had an injury – without providing any evidence – to secure a referral to a medical assessor in the Commission was squarely rejected. 

Implications

The significance of this decision is that it is not sufficient for a claimant to merely state an injury without evidence to support it. The procedural requirement to include evidence when submitting an application for assessment of a threshold injury dispute is binding on the parties, and an application may be refused if not complied with. 

Further information / assistance regarding the issues raised in this article is available from the authors, Partners, Erin Woodward & Helene Tretheway, or your usual contact at Moray & Agnew.

[1] Stephen John Kewin v AAI Limited t/as GIO Insurance [2025] NSWSC 1425