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

In Brief

• 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 decision in Kewin v AAI Ltd t/as GIO Insurance [2026] NSWCA 86 (20 May 2026) was delivered on 20 May 2026.

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 Power

• 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.

Why This Case is Important

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.