Soper v QBE Insurance (Australia) Limited - [2025] NSWPICMP 427

DETERMINATION OF REVIEW PANEL
CITATION:	Soper v QBE Insurance (Australia) Limited [2025] NSWPICMP 427
CLAIMANT:	Nadine Soper
INSURER:	QBE Insurance (Australia) Limited
REVIEW PANEL
MEMBER:	Elizabeth Medland
MEDICAL ASSESSOR:	Drew Dixon
MEDICAL ASSESSOR:	Shane Moloney
DATE OF DECISION:	18 June 2025
CATCHWORDS:	MOTOR ACCIDENTS – Motor Accident Injuries Act2017; review of Medical Assessment Certificate (MAC); treatment dispute pursuant to section 3.24(2); claimant was injured when insured vehicle struck and ran her over; claim of injury to the left hip; diagnosed with bilateral avascular necrosis; claimant underwent total left hip replacement; Medical Assessor certified the operation as not related to the injury caused by the accident and not reasonable and necessary; Held – evidence does not establish on the balance of probabilities that the claimant suffered a left hip injury as a result of the accident; development of avascular necrosis from traumatic origin would require a direct injury to the hip and the evidence does not establish that to be the case; MAC confirmed.
DETERMINATIONS MADE:	CERTIFICATE OF DETERMINATION The Review Panel: (a) Confirms the medical certificate of Medical Assessor Kenna dated 9 September 2024.

STATEMENT OF REASONS

BACKGROUND

Ms Nadine Marie Soper (the claimant) is a 47-year-old woman who suffered injury on
4 September 2020 in a motor vehicle accident.
A claim was lodged upon QBE Insurance (Australia) Limited (the insurer) who is the compulsory third party insurer of the vehicle involved in the motor accident. The insurer has a liability to pay statutory benefits and/or damages under the Motor Accident Injuries Act2017 (MAI Act).
The subject issue in dispute is whether certain treatment is causally related to the motor accident and reasonable and necessary is in dispute between the parties. This is a medical dispute for the purposes of the MAI Act.[1]
[1] See Division 7.5 and Schedule 2, cl 2 of the MAI Act.
This is a review of a medical assessment pursuant to s 7.26 of the MAI Act. The medical assessment the subject of this review was conducted by Medical Assessor Clive Kenna dated 9 September 2024. The Medical Assessor certified that treatment and care including a total left hip replacement does not relate to the injury caused by the motor accident and is not reasonable and necessary in the circumstances.

THE REVIEW

The application for referral of a medical assessment to a Review Panel (the Panel) was made by the claimant within 28 days after the parties were issued with the original certificate for the medical assessment for which the review is sought.[2]
[2] Section 7.26(10) of the MAI Act.
In a determination dated 24 October 2024, the President’s delegate referred the medical assessment to the Panel as they were satisfied that there was reasonable cause to suspect that the medical assessment was incorrect in a material respect having regard to the particulars set out in the application.[3]
[3] Section 7.26(5) of the MAI Act.
Pursuant to s 7.26(5A) of the MAI Act and Schedule 1, cl 14F(2) of the Personal Injury…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPICMP 427
Decision Date: 18 June 2025

CaseChat Overview and Summary

In the case of Soper v QBE Insurance (Australia) Limited, the claimant sought a review of a Medical Assessment Certificate (MAC) under the Motor Accident Injuries Act 2017. The claimant alleged she was injured when the insured vehicle struck and ran her over, resulting in a left hip injury. Subsequently, she was diagnosed with bilateral avascular necrosis and underwent a total left hip replacement. The Medical Assessor determined the operation was not related to the injury from the accident and was not reasonable and necessary.

The central legal issue was whether the claimant's left hip injury was a result of the accident, and if the subsequent hip replacement was reasonably necessary. The court needed to determine if the evidence supported the conclusion that the injury and subsequent treatment were related to the accident. Specifically, the court had to assess whether the claimant's condition, bilateral avascular necrosis, was a direct result of the trauma from the accident.

The court held that the evidence did not establish on the balance of probabilities that the claimant suffered a left hip injury as a result of the accident. The claimant's condition, bilateral avascular necrosis, was not linked to a direct injury to the hip caused by the accident. Consequently, the Medical Assessor's certification that the hip replacement was not related to the accident and not reasonable and necessary was upheld. The court found that the claimant's diagnosis did not meet the criteria for a traumatic origin of avascular necrosis in the left hip, thereby confirming the MAC.

Orders