Torbay v AAI Limited t/as AAMI - [2025] NSWPIC 541

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Torbay v AAI Limited t/as AAMI [2025] NSWPIC 541
CLAIMANT:	Mirna Torbay
INSURER:	AAI Ltd t/as AAMI
PRINCIPAL MEMBER:	John Harris
DATE OF DECISION:	10 October 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant suffered injury; the medical dispute related to whether the claimant sustained a non-threshold injury; a Medical Assessor (MA) found that the claimant suffered a non-threshold psychological injury; that medical assessment was not the subject of review and accepted by the insurer; another MA found that the physical injuries were threshold injuries; claimant sought to review that assessment; dismissal application exercised sparingly and with exceptional caution; Insurance Australia Ltd v Fayed applied; present review application restricted to threshold dispute which was no longer in issue; any response by the Review Panel on this dispute is not conclusive on the medical assessment matter pertaining to other disputes; Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis, and Pham v Shui applied; Held – the application to review the medical assessment dismissed as frivolous and/or vexatious; the maintenance of the proceedings achieves no purpose in changing the outcome of the medical dispute.
DETERMINATIONS MADE:	DETERMINATION 1. The application to review the medical assessment is dismissed pursuant to s 54 of the Personal Injury Commission Act, 2020 as frivolous and/or vexatious.

REASONS

BACKGROUND

There is presently an application for review of a medical assessment before a Medical Review Panel. That Review Panel has requested that the review be dismissed. The application for summary dismissal was referred to me.
For the following reasons the review of the medical assessment is summarily dismissed.
Ms Mirna Torbay (the claimant) suffered physical and psychological injuries in a motor accident on 31 January 2022.
The insurer is liable to pay to Ms Torbay any damages and/or statutory compensation entitlements under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant commenced proceedings in the Personal Injury Commission (Commission) seeking findings that she sustained non-threshold injuries. Pursuant to Schedule 2, cl 2 of the MAI Act this is a medical assessment matter.
A medical assessment matter is determined in accordance with Division 7.5 of the MAI Act. This means that the matter is determined at first instance by a Medical Assessor[1] and, pursuant to s 7.26 of the MAI Act, on review by a review panel.
[1] Section 7.20 of the MAI Act.
The medical assessment of the physical injuries was referred to Medical Assessor Cameron who issued a medical assessment certificate dated 30 January 2025 (the medical assessment). In respect of the physical injuries, the Medical Assessor found that the motor accident caused soft tissue injuries to the cervical, thoracic and lumbar spines and head which were threshold injuries.
The claimant sought a review of the medical assessment.
In a separate medical assessment certificate dated 2 April 2025, Medical Assessor Canaris concluded that the motor accident caused a non-threshold psychological injury (the medical assessment for the…

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] NSWPIC 541
Decision Date: 10 October 2025

CaseChat Overview and Summary

The matter between Torbay and AAI Limited t/as AAMI involved a dispute over the nature of injuries sustained in a motor accident. Torbay, the claimant, alleged that she suffered non-threshold injuries, while AAI Limited, the insurer, contested this, arguing that the injuries were threshold in nature. The case was heard in the Motor Accident Injuries Commission, which was required to determine the validity of the medical assessments concerning the injuries.

The primary legal issue was whether the medical assessments made by the Medical Assessors (MA) were accurate and if the Review Panel should intervene in the assessment process. Specifically, the court had to consider if the application for review by Torbay was frivolous or vexatious, given that the dispute over the threshold nature of the injuries was no longer relevant. The court also had to examine if the proceedings served any purpose in light of the insurer’s acceptance of the non-threshold psychological injury assessment.

The court ruled that the application to review the medical assessment was dismissed on the grounds that it was frivolous and/or vexatious. The insurer had already accepted the non-threshold psychological injury, rendering the threshold dispute moot. The court exercised the dismissal application with caution, aligning with principles set out in previous cases such as Insurance Australia Ltd v Fayed, Owen v Motor Accidents Authority, Allianz Australia Insurance Ltd v Girgis, Brown v Lewis, and Pham v Shui. The court clarified that the Review Panel’s response on the threshold dispute would not conclusively determine the non-threshold injury assessment. The proceedings were seen as achieving no purpose in altering the outcome of the medical dispute, and thus the application was dismissed.

The court’s final order was to dismiss the application for review of the medical assessment as frivolous and/or vexatious. This decision underscored the importance of the application being exercised with exceptional caution and only when necessary. The outcome effectively resolved the dispute regarding the threshold nature of the injuries, leaving the accepted non-threshold psychological injury as the prevailing assessment.

Orders