Inconsistencies Depicted in Surveillance Constitute “Exceptional Circumstances”

In Brief

• Rule 109 of the Personal Injury Commission Rules (PIC Rules) provides that surveillance recordings may not be referred to a Medical Assessor unless “exceptional circumstances” exist.
• Exceptional circumstances may exist where the surveillance depicts activity which is inconsistent with the history the Claimant has provided to medical experts.

Facts

The decision in Angileri v Allianz Australia Insurance Limited [2026] NSWPIC 139  was delivered on 27 February 2026 and published on 24 April 2026.

Following a motor accident, the Claimant’s psychiatric impairment was assessed at 15%.

During the course of the assessment, the Claimant gave the Medical Assessor a history that:

• She struggled to lift a can of tomatoes.
• She no longer socialised because she could no longer tolerate people.
• She only left the house to take her children to school and to swimming lessons.
• She no longer interacted with the other parents.
• The only other time she went out was to buy milk and bread from the supermarket.

The Insurer successfully sought a Review of the Medical Assessor’s Certificate.

Following the original assessment, the Insurer obtained surveillance which depicted the following activity:

• The Claimant driving and refuelling her motor vehicle.
• The Claimant driving her children to school and entering the school grounds.
• The Claimant watching sporting events and socialising with other people.
• The Claimant grocery shopping for more than just milk and bread on multiple occasions, with and without her children.
• The Claimant attending a hospital emergency ward with another person.

The Insurer sought to have the surveillance admitted as evidence before the Medical Review Panel. The Claimant opposed the Insurer’s application.

Relevant Statutory Provisions

 Rule 109 of the PIC Rules provides that surveillance recordings may not be referred to a Medical Assessor unless:

1. Exceptional circumstances exist, as determined by the Commission or the President, and
2. The Commission or the President orders that the surveillance recording may be referred. 

The Principal Member’s Decision

The Principal Member noted that, pursuant to Rule 109, the power to admit surveillance lies with the President or the Commission. It followed that a Medical Assessor was not empowered to decide whether surveillance should be admitted. This is because section 8 of the PIC Act provides (by exclusion) that Medical Assessors are not part of the Commission. Pursuant to section 32 of the PIC Act, Medical Assessors are decision-makers appointed by the Commission.

The Principal Member concluded that the surveillance should be admitted for the following reasons:

• The purpose of rule 109 is to limit the admission of surveillance recordings in medical assessments by requiring “exceptional circumstances”.
• The term “exceptional circumstances” means that the circumstances are unusual or out of the ordinary – San v Rumble (No 2) [2007] NSWCA 259 at [67].
• The activities shown in the surveillance require an explanation because those activities are inconsistent with the histories the Claimant provided to the primary Medical Assessor.
• The inconsistencies are relevant to the assessment of travel and social and recreational activities on the psychiatric impairment rating scale.
• For these reasons “exceptional circumstances” existed.

Why This Case is Important

The decision in Angileri provides a useful summary of how the Commission will assess whether the “exceptional circumstances” requirement in Rule 109 of the PIC Rules is satisfied.

It is clear that “exceptional” is not akin to “one in a million”. All that is required is that the circumstances are “unusual” or “out of the ordinary”.

In this instance, the fact that the surveillance depicted activity which was inconsistent with the history the Claimant gave the primary medical assessor was sufficient to render it an “exceptional circumstance”