QBE Insurance (Australia) Limited v Kong

DETERMINATION OF REVIEW PANEL
CITATION:	QBE Insurance (Australia) Limited v Kong [2025] NSWPICMP 751
CLAIMANT:	George Kong
INSURER:	QBE (Insurance) Australia Limited
REVIEW PANEL
MEMBER:	Terence O’Riain
MEDICAL ASSESSOR:	Paul Friend
MEDICAL ASSESSOR:	Alan Doris
DATE OF DECISION:	30 September 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act 2017; assessment of threshold psychological injury under section 1.6(3); claimant suffered injury in a motor vehicle accident on 7 November 2019; psychological conditions existing since 2017 accident; Medical Assessor found the 2019 accident aggravated psychological injury; insurer sought review; Held – claimant had recovered from 2017 accident psychological condition; sustained phobia of driving from 2019 accident; certificate revoked; not a threshold injury.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION Review Panel assessment of threshold injury Certificate issued under s 7.23(1) of the Motor Accident Injuries Act 2017 (the MAI Act) 1. The Review Panel revokes Medical Assessor Chew’s certificate dated 1 February 2024. 2. The accident caused the following injury: • specific phobia, situational, – being in a car, which is NOT a THRESHOLD INJURY for the purposes of the MAI Act.

STATEMENT OF REASONS

BACKGROUND

The claimant was injured in motor accident on 7 November 2019.
A dispute arose about the claimant's entitlements to continuing statutory benefits and damages, because the insurer decided that the claimant's psychiatric injuries arising from the accident were threshold injuries as defined in s 1.6 of the Motor Accidents Injuries Act 2017 (the MAI Act).
On 28 November 2022, the insurer issued a post-26-week liability decision wherein it was determined that the available evidence confirmed that the claimant sustained only threshold injuries in the subject accident. On 8 December 2022, the insurer’s internal review upheld that decision.
After the claimant referred that decision to the Personal Injury Commission (Commission) on 1 February 2024 psychiatrist Medical Assessor Chew assessed the claimant and issued a certificate on the same date. The Medical Assessor found the accident exacerbated an existing post-traumatic stress disorder and was not a threshold injury for the purposes of the MAI Act.
The insurer applied under s 7.26 of the MAI Act to refer this assessment to a review panel on the grounds that the medical assessment was incorrect in a material respect. The claimant provided reasons why it opposed that application.
The Presidential delegate accepted the claimant's application.
The Commission’s President constituted this Review Panel (the Panel) to review the above medical assessment (the Review).
This Panel met on 17 April 2025.
The Panel noted there were references in the bundles to dashcam footage from the insured driver’s vehicle, which the Panel would view to see as it was relevant to resolving this dispute.
The Panel considered re-examination was required and Medical Assessors Friend and Doris conducted this examination on behalf of the Panel via MS Teams on 3 July 2025.

Statutory provisions

Dispute resolution

Division 7.5 of the MAI Act provides for medical assessments by the Commission including provisions relevant to an original medical assessment such as Medical Assessor Chew’s, medical assessments, and the review of medical assessments by this Panel.
Applications for review of a medical assessment are made to the President of the Commission on grounds that the assessment “was incorrect in a material respect” (s 7.26(1)). If the President, or his delegate is satisfied “there is a reasonable cause to suspect that the medical assessment was incorrect in a material respect” then the President arranges to the application to be referred to the Panel consisting of a member of the Commission and two Medical Assessors (s 7.26(2) and (2B)).
The review is not an appeal looking for error and is not confined to the issues raised in the application (or the reply) but is “a new assessment of all the matters with which the medical assessment is concerned” (s 7.26.6).
Part 5 of the Personal Injury Commission Act 2020 (the 2020 Act) enables the Commission to make rules about the practice and procedure before the Commission including proceedings before a panel that will review a decision of a Merit Reviewer or a Medical Assessor.[1]
[1] Section 41(2) of the 2020 Act.
Rules 127 to 130 of the Personal Injury Commission Rules 2021 (PIC Rules) are made under Part 5 of the 2020 Act. The Panel determines how it conducts and determines the proceedings and may determine the proceedings solely based on the written application.
Rule 128 of the rules permits the Panel to determine its own proceedings and the Panel is not bound by the rules of evidence and may inquire into relevant matters as it thinks fit.

Threshold Injury

The term “threshold injury’ is defined in s 1.6 of the MAI Act and includes a “threshold psychological or psychiatric injury.” A threshold psychological or psychiatric injury is a psychological or psychiatric injury that is not a recognised psychiatric illness: s 1.6(3).
Section 1.6 provides the regulations may exclude or include a specified injury from being a soft tissue injury or a threshold psychological or psychiatric injury. Part 1, cl 4 of the Motor Accident Injuries Regulation 2017 (the Regulation) further define threshold psychological or psychiatric injury to include acute stress disorder and adjustment disorder.
Part 5 of the Motor Accidents Guidelines (the Guidelines) are made pursuant to s 10.2 of the MAI Act. The Guidelines contain the procedure for assessing whether an injury caused by a motor accident is a threshold injury for the purposes of the MAI Act. Version 10 of the Guidelines commenced on 22 September 2025 and applies to motor accidents occurring on or after 1 December 2017. In respect of assessing whether an injury is a threshold injury, the Guidelines provide:
“5.3 The assessment will determine whether the injury related to the claim is a soft tissue injury or a threshold psychological or psychiatric injury caused by the motor accident.
5.4    Diagnostic imaging is not considered necessary to assess threshold injury.
5.5    A diagnosis for the purpose of a threshold injury decision must be based on a clinical assessment by a medical practitioner or other suitably qualified person independent from the insurer.
5.6    The assessment of whether an injury caused by the accident is a threshold injury for the purposes of the Act should be based on the evidence available and include all relevant findings derived from:
(a) a comprehensive accurate history, including pre-accident history and pre-existing conditions
(b) a review of all relevant records available at the assessment
(c) a comprehensive description of the injured person’s current symptoms
(d) a careful and thorough physical and/or psychological examination
(e) diagnostic tests available at the assessment. Imaging findings that are used to support the assessment should correspond with symptoms and findings on examination.”
Clauses 5.10, 5.11 and 5.12 of the Guidelines refer to the assessment of threshold psychological or psychiatric injury. These clauses provide:
“Threshold psychological or psychiatric injury assessment
5.10 In assessing whether an injury is a threshold psychological or psychiatric injury, an assessment of whether a psychiatric illness is present is essential.
5.11 The assessment of whether a psychiatric illness is present must be made using the Diagnostic & Statistical Manual of Mental Disorders (DSM-5), Fifth Edition, 2013, published by the American Psychiatric Association.
5.12 Where the symptoms associated with the injured person’s psychological or psychiatric injury do not meet the assessment criteria for a recognised psychiatric illness, with the exception of acute stress disorder and adjustment disorder, the injury will be considered a threshold injury.”

Causation

The Guidelines state as follows with respect to causation of injury in respect to assessing permanent impairment:
“Causation of injury
6.5    An assessment of the degree of permanent impairment is a medical assessment matter under clause 2(a) of Schedule 2 of the Act. The assessment must determine the degree of permanent impairment of the injured person as a result of the injury caused by the accident. A determination as to whether the injured person's impairment is related to the accident in question is therefore implied in all such assessments. Medical assessors must be aware of the relevant provisions of the AMA4 Guides, as well as the common law principles that would be applied by a court (or the Personal Injury Commission) in considering such issues.
6.6    Causation is defined in the Glossary at page 316 of the AMA4 Guides as follows:
'Causation means that a physical, chemical, or biologic factor contributed to the occurrence of a medical condition. To decide that a factor alleged to have caused or contributed to the occurrence or worsening of a medical condition has, in fact, done so, it is necessary to verify both of the following:
1. The alleged factor could have caused or contributed to worsening of the impairment, which is a medical determination.
2. The alleged factor did cause or contribute to worsening of the impairment, which is a non-medical determination.'
This, therefore, involves a medical decision and a non-medical informed judgement.
6.7    There is no simple common test of causation that is applicable to all cases, but the accepted approach involves determining whether the injury (and the associated impairment) was caused or materially contributed to by the accident. The accident does not have to be a sole cause as long as it is a contributing cause, which is more than negligible. Considering the question 'Would this injury (or impairment) have occurred if not for the accident?' may be useful in some cases, although this is not a definitive test and may be inapplicable in circumstances where there are multiple contributing causes.”
Despite the Guidelines referring specifically to permanent impairment in respect of causation, the principles are applicable to assessing causation in respect of the threshold injury question.
The Panel must consider whether the accident caused or contributed to the diagnosed condition: Briggs v IAG Limited t/a NRMA Insurance [2022] NSWSC 372 at [75]. The accident does not have to be the sole cause as long as it is a contributing cause, which is more than negligible: Owen v Motor Accidents Authority of NSW [2012] NSWSC 650 at [50]. Further, the provisions of the Civil Liability Act 2002 apply, in particular s 5D and s 5E.

Assessment under Review

Medical Assessor Gerald Chew’s certificate dated 1 February 2024 stated that caused the subject accident exacerbation of post-traumatic stress disorder, which was not a threshold injury for the purposes of the MAI Act.
The Medical Assessor noted Mr Kong was currently working eight hours each day six to seven days each week doing office work in a real estate agency and before the accident worked as a sales agent.
There was a 2017 motor accident. He had similar physical injuries which resolved within 100 days. He had anxiety and nightmares about that accident which lasted less than six months.
The 2019 accident occurred when he was hit by a concrete truck and had pain in his neck and back but was able to catch the train home.
He had ongoing pain in his lower back and he has developed nightmares of the accident and dying in accidents. He is more withdrawn. He has given up his hobbies such as the Ferrari Maserati car club. He was treated by psychologist for six months.
His mood is stable and the nightmares are resolved. He has no current symptoms. It states that the post-traumatic stress disorder that was first caused by the 2017 accident resolved but the 2019 accident exacerbated post-traumatic stress disorder, which is now in remission.

Submissions

Claimant’s submissions

The initial submissions referred to the claimant’s treating psychologist Flora Truong who saw the claimant approximately six months following the motor accident as being supportive of the claimant not having a threshold injury.
The claimant submits in respect of the insurer’s review application that the records provide contemporaneous evidence which shows the claimant sustained a non-threshold psychiatric injury as a result of the accident.

Insurer’s submissions

The insurer submits that the available evidence supports a finding that the claimant sustained only threshold psychological injuries in the 2019 accident. The claimant has not provided any additional evidence to challenge the diagnoses provided by Medical Assessor Shen’s diagnosis.
The claimant’s pre-accident medical history attributable to a motor vehicle collision on
19 May 2017 is relevant because he lodged a CTP claim against NRMA Insurance, where he suffered psychological symptoms.
The Panel must consider the similar nature of the claimant’s complaints as between the 2017 accident and 2019 accident, because the 2017 collision was more significant.
In 2019 ambulance personnel did not attend the accident and the claimant did not attend a hospital, which belies any significant injuries or at least injuries requiring immediate medical attention.
The claimant misrepresented the nature of the 2019 accident to his treatment providers. The insurer referred to a physiotherapist making a note in 2022 that it was a serious collision.
The insurer submits that caution ought to be exercised by the Medical Assessors with respect to the claimant’s self-reporting unless there is objective support.
The claimant does not suffer from a non-threshold psychological diagnosis because of the 2019 accident. Any current symptoms are attributable to the claimant’s pre-existing
post-traumatic stress disorder following the 2017 accident. His general practitioner (GP)
Dr Lam diagnosed the claimant with “Acute Stress Reaction/PTSD.” on 7 June 2017. There were other attendances, and the claimant was referred to a psychologist in March 2018 to treat this condition.
Following the 2019 accident, the claimant attended upon Dr Lam with symptoms of “anxious++” on 13 November 2019. On the same date, Dr Lam referred the claimant to Healthy Minds Psychology for “?PTSD.” The insurer notes that this referral was made just six days after the 2019 accident, which is an insufficient period of time to permit a diagnosis of “PTSD”, pursuant to the DSM-5. Further, Dr Lam’s notes did not record relevant symptoms.
Healthy Minds Psychology records confirm that the claimant attended on 9 January 2020 with complaints of ‘shock’. In an Allied Health Recovery Request dated same, the claimant’s psychologist noted “nil psychological history reported,” which is inconsistent with the above records. The claimant’s psychologist’s opinion was premised on an inaccurate history.
The treatment history after that suggests the claimant underwent an improvement in his psychological state, to the extent that he was more focused on his physical injuries than psychological symptoms.
On 26 August 2021, the claimant reported that he had “improved significantly” and had “returned to PID as a real estate agent” and did not mention ongoing psychological symptoms.
The insurer relies on Medical Assessor Shen’s Treatment – Psychological certificate of Medical Assessor Yu Tang Shen dated 14 October 2022. He noted then that the claimant was working full-time and he denied a pre-accident psychological history of relevance, which is inconsistent with the clinical records.
Medical Assessor Shen noted inconsistencies including describing the 2019 accident, denying his pre-accident medical history and assertion that he had struck his head.
Following mental state examination, Medical Assessor Shen wrote:
“His presentation appears consistent with Post-Traumatic Stress Disorder, with misattribution of symptoms to the subject accident, whereas it was likely caused by the initial MVA in 2017 according to his GP’s clinical notes, as his symptoms
pre-dated the accident, and the accident in 2017 appear more significant and sufficient to have caused the PTSD syndrome from those notes, whereas the video demonstrates evidence of low-impact collision with the subject accident, which would not have caused him to develop the PTSD syndrome. There is an associated pain component as well. Thus, his treatment for PTSD is not related to the subject accident.”
Dr Shen’s opinion is persuasive in circumstances where his determination is consistent with the medical evidence and the nature of the 2019 collision as opposed to the 2017 collision.
The insurer’s review application submitted that Medical Assessor Chew stated as follows with respect to inconsistency “there was no inconsistency today between his account, presentation and documentation provided.”
Medical Assessor Chew stated on page 3 of his certificate “there was no inconsistency today between his account, presentation and documentation provided”.
The insurer submits that this comment supports a finding that the Medical Assessor did not properly engage with the pre-accident clinical records, following cl 5.61 of the Guidelines.
Medical Assessor Chew did not comment on the parties’ documents, except to write “I note documentation of PTSD symptoms reported after the 2017 MVA and 2019 MVA”.
While the Medical Assessor states on page 2 that he had “seen and considered the DVD/video/surveillance images”, there is no further discussion as to the content of that footage.
The insurer submits that this is significant in circumstances where the severity of the accident goes directly to the issue of whether Criterion A of a post-traumatic stress disorder diagnosis is satisfied.
Medical Assessor Chew only records the claimant’s description of the 2019 accident as “he described being hit by a concrete truck” and did not discuss what use the Medical Assessor made of the dash-cam footage, or how it informed his opinion.
Medical Assessor Chew did not engage with Medical Assessor Shen’s opinion of the dash-cam footage or consider the nature of the 2017 accident and the 2019 accident.
Medical Assessor Shen concluded that the post-traumatic stress disorder was related to the 2017 collision because it was a notably more severe incident (i.e. the claimant’s family was travelling in a vehicle which crossed onto the other side of the road and into oncoming traffic) when compared to the 2019 accident (low speed sideswipe).
Medical Assessor Chew diagnosed the claimant with as a result of the 2019 accident. The insurer submits that the Medical Assessor did not set out how he diagnosed “exacerbation of PTSD” and/or by failing to address the actual criteria set out by the DSM-5.
The Medical Assessor merely records features of nightmares and “more withdrawal” and does not address whether the 2019 accident satisfied Criterion A for that diagnosis.
If Medical Assessor Chew accepted that the claimant was suffering from a recognised psychiatric illness at the time of the accident, then it must be established, on the balance of probabilities, that the accident aggravated the pre-existing psychiatric condition and that the aggravation was sufficient to meet the diagnostic criteria of a recognised psychiatric disorder pursuant to the DSM-5.
The claimant must establish that he suffered a recognised psychiatric illness pursuant to the DSM-5 as a result of the specific event for which the claim is brought (i.e. the 2019 accident). The insurer submits that this requirement is necessary regardless of whether there is a

pre-existing psychiatric illness at the time of the motor accident.

Summary of relevant documentation

Medical Assessor Dr Yu Tang Shen’s certificate dated 14 October 2022 regarding the motor accident on 7 November 2019 found the claimant’s post-traumatic stress disorder did not relate to the 2019 accident and that the treatment sought being psychiatric treatment sessions and gym visits were not reasonable and necessary in the circumstances.

The insurer submitted are that there was a pre-existing claim from motor accident in May 2017 for physical injury and post-traumatic stress disorder. He consulted psychologist Joyce Chui after that accident with similar symptoms of post-traumatic stress disorder and the insurer funded eight sessions of psychological treatment.
The Medical Assessor noted that after the 2019 accident the claimant developed ongoing nightmares but not in the past month. He previously had nightmares of being hit from behind. He is more emotionally agitated because of poor sleep. He has a fear of large trucks and is fearful that will happen again. He has lost interest in sports and sexual intimacy. He is more irritable and vigilant when he drives. He has poor concentration difficulty through sleep and difficulties falling asleep due to pain in his lower back.
He worked as a real estate agent having previously been a broker prior to the accident. He changed to licensing so he could stay in the office and no longer had to drive as much.
Flora Truong’s Allied health recovery request dated 9 January 2020 states the diagnosis is a provisional diagnosis of post-traumatic stress disorder.
The list symptoms include:
·        avoidance of driving due to fear;
·        avoiding changing lanes;
·        fear when sees a cement truck;
·        he has dreams every fortnight or so which wake him;
·        he has initial and middle insomnia waking once or twice a night and flashbacks;
·        he has intense distress when reminded the motor accident;
·        he avoids the site of the accident;
·        he has reduced memory;
·        he avoids talking about the accident;
·        he feels like he daydreaming during the day;
·        he is irritable and depressed in his mood and is fearful of riding as a passenger in the front seat;
·        he has difficulties concentrating;
·        he has overly negative thoughts about and assumptions about himself and the world feels that driving is dangerous;
·        he was previously and organiser and member of the Ferrari and Maserati club in Australia was interested in driving for leisure but has now stopped attending and engaging in these activities because of his fear of driving, and
·        he is hypervigilant.
Flora Truong’s Allied health recovery request dated 12 June 2020 also states the diagnosis is post-traumatic stress disorder.
It lists the same symptoms as listed in the Allied Health Recovery request dated

9 January 2020.
The Certificate capacity/Certificate of fitness dated 13 November 2019
regarding the

7 November 2019 accident states the diagnoses are cervical spine ?radiculopathy, bilateral shoulder injuries, lumbar spine ?discogenic injuries and post-traumatic stress disorder.
The subsequent Certificates of capacity/Certificates of fitness up to and including
15 May 2023 list the same diagnoses.
GP Dr Angela Lam’s report dated 17 August 2017 regarding the previous motor accident on 19 May 2017 lists the psychiatric symptoms as "dazed" effect on initial consultation, poor focus and concentration, poor retention of new information.
It states he is having GP mental health counselling, trying to improve his mood, function, and sleep, to reduce anxiety, prevent onset of pain fears and avoidance behaviours and to reduce the progression towards chronic post-traumatic stress disorder/major depression.
Dr Angela Lam’s report dated 8 August 2017 is a referral to Joyce Chiu.
The referral states he was driving a vehicle carrying his wife and family coming back from the Central Coast. The vehicle in front suddenly lost control and started swerving into multiple lanes of high-speed traffic impacting surrounding vehicles precipitating the loss of control of other vehicles which collided with each other. He sustained a vertebral disc injury, soft tissue injuries and significant pain. He has poor sleep and increased irritability. He has poor focus and concentration and reduced memory.
The letter referred to frequent nightmares of the event in which he dreams that his family sustained severe physical trauma sometimes death. He wakes up in a cold sweat. He has hypervigilance when driving particularly in heavy traffic on high-speed roads. He is not currently prescribed pharmacotherapy for his mental health symptoms.
Alliance Medical Health Care Centre clinical notes from 7 June 2017 to 24 December 2019 contain the following
The entry dated 7 June 2017 states he works as a real estate agent/developer. He was driving home on the Sydney to Newcastle freeway in the far-right lane. A vehicle in front travelling in the right-hand lane suddenly lost control veered in the middle lane spun and then veered into the left lane,
“The vehicle in front braked and he simultaneously braked but he impacted the vehicle in front.
Other vehicles in the middle and left lane swerved into the right lane to avoid impacting the at fault vehicle. The airbags did not deploy. He hit his head on the steering wheel and then the windscreen. He felt dizzy, blank and shocked. His 5 children were in the middle and rear rows of passenger seats.
He has increasing neck, shoulder and low back knee pain. He has difficulty sleeping, loss of concentration and feels stupid slow and thick. He is irritable.”
The entry dated 11 June 2017 states his main complaint is feeling thick and slow. He has poor concentration and focus. He has no nightmares but is ruminating over the event.
The entry dated 16 July 2017 states he continues to feel frustrated and irritable particularly when he has memory lapses.
The entry dated 8 August 2017 states his mental health symptoms appear to predominate. He is very irritable, has poor sleep and his wife says he is losing his temper. He has nightmares and dreams about major motor accidents with life-threatening injury/death of other family members and recurrently wakes in a cold sweat. He has difficulty returning to sleep afterwards. He is hypervigilant when driving feels very nervous in heavy traffic and does not want to follow the vehicle in front to closely. It is worse or is more severe on motor wise.
The entry dated 13 November 2019 states he sustained some injuries in 2017 after a high-speed motor accident. The injuries seems to have resolved as he no longer needed therapy.
On 7 November 2019 he was driving his own vehicle turning left from the left of two turning lanes. A cement truck on the right swerved into his lane impacting the right rear panel of his vehicle. These events were witnessed by police officer in a police vehicle which was following his vehicle. He felt a hard jolt. His symptoms are severe neck pain, bilateral shoulder pain, bilateral knee pain, low back pain, shock, and fear. He spoke in a jerking manner and has reduced concentration.
The entry dated 9 December 2019 regarding the motor accident 7 November 2019 states he has shock and fear. This is the last clinical entry.
Psychologist Flora Truong’s clinical notes address the claimant’s psychological treatment since the accident
The entry dated 22 May 2020 states that the treatment will include in vivo exposure, psychoeducation on trauma and eye movement desensitisation replace reprocessing. There will also be establishment of a calm place, relaxation, and cognitive restructuring.
The entry dated 9 January 2020 states he was driving and shocked and wanted to vomit. The police officer who is following him stayed with him for 30 minutes until he felt better and his friends came to assist him. He injured his neck and suffered a whiplash injury. He drives a lot as a real estate agent driving 1,000km at night. He helps a Chinese company acquire land or farms.
Brooksight Investigations’ report regarding the motor accident on 7 November 2019 contains a statement from the other driver and includes various photographs.
The photograph of the black Mercedes registration DHZ33D shows damage to the right rear Panel around the stoplight and over the right rear wheel arch. There is no intrusion into the cabin. A second photograph of the same vehicle appears to show a panel from the right rear wheel arch is fallen off.
The insured driver of the other vehicle, Allamdeep Singh Sandhu’s statement dated 13 January 2020 was made to Brookside investigations. It states his vehicle is fitted with cameras at the back on both sides on the front and video footage taken from the camera the left-hand side has been provided to the investigator.
It states that he wanted to turn left from traffic lights from the lane closest to the centre of the road. His turn indicator was on.
He started to make the turn. He checked his left-hand side mirror and saw the rear driver side corner of the black Mercedes hitting the left drive axle which is the second wheel from the rear of the truck.
He put on his emergency indicators and hazard lights and pulled over into the left and stopped as did the other vehicle.
The insured driver said the shook hands with the claimant and they both said they were totally fine.
A Police vehicle also pulled over to do traffic control. The police officer told them to exchange details.
The insured driver did not observe George Kong showing any signs of being injured. An ambulance did not attend. The insured driver’s truck needs two lanes to turn left.
George Kong’s statement dated 10 February 2020 with a Cantonese interpreter states he was in the left lane from which he could only turn left.
He made the turn into Burke Street from Lachlan Street. He was stopped in Bourke Street 3 to 4m from Lachlan Street and heard a loud boom from a heavy collision. He was pushing on the brake at the time otherwise his vehicle would collide with the vehicles in front. His head went forward and hit the wind screen. He felt dizzy and like he wanted to vomit.
The police officer who stopped did not breathalyse either him or the truck driver.
The claimant also states that his vehicle was towed and a friend drove him home to Killara.
He subsequently had severe pain in the lower back. He had pain in the neck.
Dr Lam suggested consult a psychologist because he had nightmares.
He can now drive and sometimes if it turns his head to check the side he suffers from pain.
He limits his driving to no more than one hour each day as he suffers from low back pain.
He needs to get out of the vehicle and drive and stretch if he drives long distances and takes a break every 45 minutes.
His vehicle has been repaired.
Medical Assessor Clive Kenna’s certificate dated 2 November 2023 states the claimant’s musculoskeletal injuries caused by the motor accident were threshold injuries.
Dr Angela Lam’s clinical notes from 24 December 2019-20 8 November 2022 contain the following.
The entry dated 10 January 2020 states he works in real estate and sustained some injuries in 2017 after a high-speed motor accident but these resolved. It then repeats the previous entries regarding the motor accident in 2019. It states he started psychotherapy and has been diagnosed with post-traumatic stress disorder. He has intense frequent flashbacks and avoids driving, feels flat and his memory and concentration are impaired. He appears to be vague. He is consulting Flora Truong.
The entry dated 26 March 2020 refers to all the events of the accident and physical symptoms. He has returned to some light part-time work. Driving is his greatest barrier. He needs to attend home inspections for clients but needs to avoid lifting or pulling.
He can do work in the urban area but outer suburban and regional work is very difficult. He drives very slowly and does not change lanes unless necessary and has to stop and rest every 30 minutes due to severe neck and shoulder plain. He works almost a full day Tuesday and Thursday and a short day on Saturday. He is having physiotherapy and psychotherapy which is currently by telehealth.
Subsequent entries are very similar in their content. They describe ongoing neck pain, shoulder pain, bilateral knee pain and low back pain as well as shock and fear.
The entry dated 26 August 2021 list the same physical symptoms and states he is still consulting Flora Truong every three weeks. He is having ongoing therapy from his son Jack who is an acupuncturist and chiropractor. He has returned to working as a real estate agent but still has neck pain headache and low back pain intermittently which affects work capacity. He had particularly severe bout of headache the previous work week which improved with treatment.
The entry dated 28 November 2022 repeats the same physical symptoms of severe neck pain, bilateral shoulder pain, bilateral knee pain, low back pain shock and fear occurring initially. He currently has ongoing pain. He is busy at work so the neck pain and low back pain have flared up. The insurer declined Ongoing physiotherapy treatment. He is able to tolerate working as a real estate agent but does not describe his actual work hours or duties.

REVIEW PANEL FINDINGS

Re-examination

Medical Assessor Alan Doris and Medical Assessor Paul Friend re-examined George Kong by video link on 3 July 2025. Mr Kong was located at his solicitor’s office in Parramatta.
An accredited Cantonese interpreter was present throughout the examination.

Current general circumstances

Mr Kong lives in Killara with his wife and their five children who are aged between 32 and 20 years. Mr Kong works full-time as a licensed real estate agent.

Psychosocial history

Mr Kong was born and brought up in Canton. He grew up with his parents and younger brother. He describes a very positive upbringing. His parents were both professors of Traditional Chinese Medicine and it was hoped that Mr Kong may follow them into this field. His parents are now in their 90s and live in Hong Kong. His brother lives in Canton. Mr Kong describes being a leader among his peers at school and having no significant health problems during his childhood and adolescence.
After completing school Mr Kong studied Traditional Chinese Medicine and graduated after

five years. In 1990 he relocated to Sydney and studied business subjects at University of Technology, Sydney. Mr Kong commenced work as a real estate agent on 7 March 1992 and has continued to work in real estate to the present day. He married his children’s mother the same year.
Mr Kong describes being involved in several roles in the Chinese community before the subject accident, as well as being an active member of the Ferrari and Maserati Car Club. He would socialise with friends and business associates.

Previous general medical history

Mr Kong said that he was previously involved in a motor accident in May 2017. He did not have any significant physical health problems, other than musculoskeletal problems arising from motor accidents in 2017 and 2019.
Mr Kong has no significant general medical history. He denied chronic health problems requiring ongoing medication.

Past psychiatric history

Mr Kong denied consulting with a health professional about a mental health problem before the 2017 accident.

Substance use history

Mr Kong smokes between 20 and 40 cigarettes per week.
He drinks one bottle of wine per week. He describes an increase in his use of alcohol during the COVID-19 pandemic when isolated at home and said this amounted to two or three beers each day. He was able to reduce his use of alcohol when the restrictions lifted. He has never had symptoms suggestive of an alcohol use disorder.
Mr Kong denied use of illicit substances.

Previous motor accidents

Mr Kong was involved in an earlier accident on 19 May 2017.
On that day he was driving his Toyota Landcruiser on the M1 north of Sydney having celebrated his daughter’s birthday on the Central Coast. There was heavy rain and a car ahead lost control and swerved across lanes. Cars in front of Mr Kong took evasive action to avoid colliding and came into his lane requiring him to brake suddenly. He was unable to slow adequately and hit the car in front. Air bags did not deploy and the damage to

Mr Kong’s vehicle was not severe due to having bull bars fitted. There were no immediate injuries to Mr Kong or his family members, he was able to drive home, and he did not attend hospital.
He developed pain in his shoulders, neck, and back after this accident. He had difficulty sleeping and reduced concentration. He consulted with his GP, Dr Lam, on 7 June 2017 and was given medication to relax muscles and reduce pain. His GP arranged diagnostic imaging.
Dr Lam referred Mr Kong to psychologist Joyce Chiu on 8 August 2017, and he recalled meeting with her on several occasions over a few months.
Mr Kong recalled experiencing nightmares relating to this earlier accident for approximately two months.
He was able to continue driving though he would drive more carefully and more slowly and was worried about having a further accident.
He did not recall having any other re-experiencing phenomena after this accident such as intrusive memories, mental images or feelings relating to this earlier accident.
Mr Kong said that the psychological symptoms he was experiencing from the accident resolved completely over several months.
His physical symptoms also resolved over time.

History of the subject accident

The accident, which is the subject of this dispute occurred in Sydney on 7 November 2019.
Mr Kong described turning a corner at a junction when unexpectedly there was an impact at the rear of his car. He was able to pull over to the side of the road and got out of his vehicle to speak with the driver of the cement truck which had run into the rear driver’s side of his car.
He recalls feeling dizzy and “trying to figure out what just happened.” A policeman who was nearby stopped to assist and remained with Mr Kong until he was feeling better and the dizziness resolved.
A tow truck came to remove Mr Kong’s car which was subsequently repaired.
Mr Kong then walked to a railway station where he headed home to be picked up at the station close to his home.

History of symptoms and treatment following the accident

Mr Kong consulted with Dr Lam on 13 November 2019. He was suffering from pain in his neck, shoulders, and knees. He was given a prescription for analgesic medication due to musculoskeletal pain, and referred for diagnostic imaging, physiotherapy, and psychology.
Mr Kong recalls his sleep was disturbed by pain. He also was thinking excessively about the 2019 accident which made it difficult to fall asleep.
He was having nightmares relating to the accident. He stopped work and spent time at home resting and doing exercises to assist his recovery.
Mr Kong recalled experiencing a dream in which a fortune teller told him that he could have another motor accident and that this would be fatal. This frightened him as he was worried that he would not be able to support his children or aging parents if he died.
Mr Kong said that he did not drive for approximately one year after the 2019 accident due to a combination of his physical pain, the psychological symptoms due to the 2019 accident, and the restrictions imposed during the COVID-19 pandemic. He returned to work after one year.
Mr Kong said that he remained worried about the fortune teller’s warning and so gave up his membership of the Ferrari and Maserati Club.

Subsequent injuries or conditions since the accident

There have been no subsequent injuries or conditions since the 2019 accident.

Current symptoms

Mr Kong said that he continues to drive as little as possible. He said that he will drive locally such as to pick up his daughter from the station but will not usually drive more than 35km. He has not driven out of his local area since the 2019 accident. He said that he cannot drive for more than one hour. He is fearful when driving.
Mr Kong has previously been a car enthusiast and would participate in luxury car events. He no longer does this and describes a loss of a feeling of being “connected within one skin” with a car when driving which he had before the motor accident.
Mr Kong said that his sleep was “sometimes good, sometimes bad.” He rarely has nightmares. There are no other re-experiencing phenomena relating to the 2019 accident. His social life has continued reduced compared to before the 2019 accident and he attributed this to his reduced driving. He also has a reduced desire to socialise. He described being “lazy” with a reduced motivation and energy.

Mr Kong described his mood in terms of being excessively cold and requiring increasing his temperature rather than before the accident when he usually had an excess of heat.
He enjoys activities including watching movies and time with his family. He practises Tai Chi and meditation which assist him to relax and sleep.
Mr Kong said that he had some “shadows in my mind” which appeared to be worries about his future.

Current and proposed treatment

Mr Kong had monthly psychological treatment with psychologist Flora Truong for approximately six months following the 2019 accident. He found this helped him to relax and reduced worries with respect to driving. He is no longer having any psychological treatment.
Mr Kong uses some Traditional Chinese Medicine herbal products and supplements, though no other medication. He has used acupuncture and cupping for physical and psychological symptoms.

Mental state examination

Mr Kong was smartly presented and showed good self-care.
Mr Kong stated that he had a good knowledge of English but sometimes did not understand English words and phrases.
He managed the interview without difficulty. He sometimes answered questions without waiting for the interpreter. He sometimes answered in English after the interpreter had translated the question. He sometimes replied through the interpreter.
His speech was normal. His affect was bright and appropriately reactive to the material under discussion and showed a good range.
His mood was objectively euthymic with no evidence of a depressive syndrome.
Mr Kong described his mood in terms of heat and cold, with an excess of cold now. Mr Kong was positive and future focussed.
His thought form was normal. There were no abnormal beliefs or perceptions.
Mr Kong was fully alert and orientated.
He attended well through an interview which lasted almost 90 minutes. He appeared to have normal cognitive function.

Current functioning

Mr Kong lives with his wife and family and has good relations with them.
He attends to his self-care needs and participates in family life.
He maintains contact with his family in China.
He is working full-time as an estate agent.
He drives his car in his local area for periods of up to one hour.

Consistency of presentation

Noting the insurer’s submissions on inconsistency, the Panel noted there are some differences in detail between Mr Kong’s account and information in documents which may be attributable to the length of time since the 2019 accident. These are not to the extent that the opinions formed are significantly affected.

Diagnosis and reasons

Mr Kong has developed a specific phobia, situational, – being in a car.
For a period of more than six months, Mr Kong has had a marked fear when driving in a car. He did not drive for a prolonged period following the motor accident, and from previously being an avid driving enthusiast, he now avoids driving as much as possible.
He has a disproportionate fear of a fatal accident when driving. Mr Kong has an enduring concern that the warning of a fortune teller in a dream following the motor accident may be a premonition that he will have a fatal accident and not be able to support his family.
Mr Kong is restricted in his occupational and social life due to the phobic avoidance of driving long distances or for prolonged periods. Copied below are the DSM-5 TR diagnostic criteria for reference.
Specific phobia diagnostic criteria are:
A: Marked fear or anxiety about a specific object or situation (e.g., flying, heights, animals, receiving an injection, seeing blood).
Note: In children, the fear or anxiety may be expressed by crying, tantrums, freezing, or clinging.
B: The phobic object or situation almost always provokes immediate fear or anxiety.
C: The phobic object or situation is actively avoided or endured with intense fear or anxiety.
D: The fear or anxiety is out of proportion to the actual danger posed by the specific object or situation and to the sociocultural context.
E: The fear, anxiety, or avoidance is persistent, typically lasting for 6 months or more.
F: The fear, anxiety, or avoidance causes clinically significant distress or impairment in social, occupational, or other important areas of functioning.
G: The disturbance is not better explained by the symptoms of another mental disorder, including fear, anxiety, and avoidance of situations associated with panic-like symptoms or other incapacitating symptoms (as in agoraphobia); objects or situations related to obsessions (as in obsessive-compulsive disorder); reminders of traumatic events (as in post-traumatic stress disorder); separation from home or attachment figures (as in separation anxiety disorder); or social situations (as in social anxiety disorder).
The Medical Assessors considered the insurer’s submissions regarding the dash cam footage. Accordingly, post-traumatic stress disorder was discounted on the basis that the motor accident of 7 November 2019 was not severe, and Mr Kong was not exposed to actual or threatened death or serious injury.
There were some trauma-related symptoms in the months following that accident, though not sufficient to meet DSM-5-TR diagnostic criteria for post-traumatic stress disorder, and there are few trauma-related symptoms evident now.

Panel’s deliberations

Causation and reasons

Mr Kong was involved in an accident which gave rise to both physical and psychological symptoms.
The Panel met on 23 July 2025 and adopted the re-examination report as evidence in this case.
This was a dispute about whether the claimant suffered a non-threshold psychological injury in the motor accident; the claimant was re-examined by both Medical Assessors on the Panel who found that the diagnosis meets DSM-5-TR diagnostic criteria for specific phobia, situational, – being in a car.
The Panel considered that this condition was active and not in remission. If it were in remission the Panel would consider whether the accident had caused the claimant to have ever suffered from a psychological injury that would fall outside the definition of a threshold injury, which would satisfy DSM-5 criteria.
While there is some evidence that Mr Kong experienced post-traumatic stress disorder since the 2017 accident that condition had resolved. The Panel therefore concluded his symptoms of specific phobia were caused both directly and indirectly by this accident.
The Panel noted that its findings have provided a diagnosis which the parties have not addressed in submissions. The Panel considered that as the relevant legislation requires the Panel to make a fresh assessment – which was made only with the material that had already been before Medical Assessor Chew – that the parties already had adequate opportunities to address the possible psychological sequelae of the 2019 accident.
He developed typical symptoms of phobic avoidance immediately following the motor accident and these have persisted. He has a persistent and disproportionate fear for his safety when in a car. His symptoms have caused distress and impairment in social and occupational function.
Mr Kong developed post-traumatic stress disorder following a motor accident on

19 May 2017. The symptoms described by Mr Kong retrospectively, and in the contemporaneous health records, are consistent with this. These symptoms improved over the following months, and the disorder had resolved by the time of the motor accident on

7 November 2019.
There is no other history of mental disorder, and no history of subsequent injuries or conditions.
Mr Kong has developed a specific phobia, situational, being in a car, arising from the injuries sustained in the motor accident of 7 November 2019.

Threshold injury

Specific phobia, situational – being in a car is not a threshold injury for the purposes of the MAI Act.

Conclusion

The Panel’s findings in relation to the question of threshold injury are different findings to those stated in Medical Assessor Chew’s certificate dated 1 February 2024.
Medical Assessor Chew’s certificate is revoked.

[2025] NSWPICMP 751

30 September 2025