Kewin v AAI Ltd t/as GIO Insurance [2026] NSWCA 86
Key takeaways
- A psychiatric threshold injury dispute application to the Personal Injury Commission must be accompanied by sufficient medical evidence of a recognised illness, in accordance with DSM-5.
- Sufficient evidence must be provided by a qualified treating health practitioner or a practitioner authorised by the Motor Accident Guidelines, not a mere assertion.
Background
The claimant was injured in a motor vehicle accident in 2018, in which GIO denied liability for the common law claim on the basis that he sustained only ‘threshold injuries’ for the purposes of the Motor Accident Injuries Act 2017 (NSW) (the Act). A claimant is subject to limits on payments of weekly compensation if the injuries are found to be threshold only.
The claimant relied on three pieces of supporting evidence:
- records from a GP stating that a referral to a psychologist was needed due to recurring dreams about car accidents
- a medico-legal report from an expert orthopaedic surgeon, who noted that the claimant had suffered ‘a significant psychological disturbance’, and
- several certificates of fitness for work, which certified the claimant as unfit for work and that he was waiting to see a psychologist.
In response to the insurer’s liability denial, the claimant lodged an application with the Personal Injury Commission (PIC) alleging that he sustained symptoms of depression, shock and anxiety as a result of the motor vehicle accident (the MVA). The Commission refused to refer the alleged psychiatric injury on the basis that there was no confirmed psychiatric diagnosis or sufficient supporting medical evidence. In their decision, the President’s delegate advised that the claimant could lodge a new application once he had obtained sufficient and compliant evidence, including a confirmed diagnosis of a psychological injury.
The claimant sought judicial review, which was heard before Mitchelmore J in the Common Law Division of the Supreme Court of New South Wales. The Court dismissed the summons on the basis that it was a matter for the Commission to decide if there was a medical dispute. An appeal was then lodged on the basis that the Procedural Direction issued by the PIC was inconsistent with s 7.20 of the Act, which concerns the conduct of assessment of medical disputes by the PIC.
Issues
The insurer argued that, while the claimant was entitled to bring a claim for non-threshold psychological injuries, there was no evidence from any qualified professional assessing or diagnosing such an injury.
The claimant argued that the Act does not require additional evidence from a party asserting that the injury is a non-threshold injury, and that it is not economically viable for medico-legal reports to be purchased in circumstances where the cost may not be recovered. He further asserted that:
- the three pieces of supporting evidence were sufficient to prove that the claimant suffered from psychological injury as a result of the accident, and
- while s 7.20(3) of the Act allows the Commission to refuse a referral on insufficient evidence grounds, this was specifically only for permanent impairment disputes. The claimant submitted that as this was a threshold dispute, no such power exists.
Decision
The Court of Appeal, comprising Leeming JA, Kirk JJA and Griffiths AJA, dismissed the appeal with an order to pay the insurer’s costs on the basis that the claimant failed to provide sufficient evidence to demonstrate the asserted injury status.
Leeming JA referred to PIC Procedural Direction 6 (PIC6). Clause 17 requires an applicant to file, with the application, evidence demonstrating the asserted injury status – namely whether the claimant has sustained a threshold or non-threshold injury within the meaning of s 1.6 of the Act. Clause 18 further provides that a party ‘must lodge evidence in support qualified by a treating health practitioner or a practitioner authorised by the Motor Accident Guidelines to give evidence in the proceedings’.
In this case, the claimant did not comply with those requirements. Instead, he relied on medical notes that did not contain any formal psychiatric diagnosis. The claimant was bound to establish that he had sustained a recognised psychiatric illness diagnosed by a suitably qualified professional, noting that conditions such as ‘acute adjustment disorder’ or ‘adjustment disorder’ are classified as threshold injuries under the Act.
The Court further held that the delegate’s decision was supported by s 7.20 of the Act, contrary to the appellant’s submission. Section 7.20 does not obligate the President’s delegate to refer the matter for assessment where it did not satisfy clause 18 of the PIC6.
The Court held that the claimant’s submission that s 7.20(3) applies only to permanent impairment disputes and not to threshold injury disputes, was an expressio unius argument, and would be close to absurd if taken as an exhaustive statement of the circumstances in which the President could refuse to accept a referral. Section 7.20(3) contemplates that at least some medical disputes may be refused by the President.
In essence, the claimant cannot simply assert that he sustained an injury. Without sufficient evidence and a confirmed diagnosis, there is no proper basis for referral to a medical assessor.
Why the decision is important
This decision highlights that a party applying for medical assessment (whether in a threshold injury dispute, a WPI dispute or otherwise) bears the onus of providing sufficient evidence to establish a diagnosis. Such evidence must be provided by a qualified treating health practitioner or a practitioner authorised by the Motor Accident Guidelines.
This article was written by Solicitor Alma Garibovic Cehic and Principal Lawyer Andrew Gorman. For further information or advice on any related matters, please contact Andrew.
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