//
[2025] NSWSC 1311
General information, not legal advice.
Supreme Court of NSW
2025-11-06
Harrison AsJ
Original judgment source is linked above.
Zoe will write a short plain-English brief of this judgment and email it to you: what it was about, what the court decided and why. It can take up to a minute.
General information, not legal advice.
Or create a free account to save it and ask Zoe follow-up questions.
Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Insurance Australia Limited trading as NRMA Insurance v Mayer [2025] NSWSC 1311
Hearing dates: 25 July 2025
Date of orders: 6 November 2025
Decision date: 06 November 2025
Jurisdiction: Common Law
Before: Harrison AsJ
Decision: (1) The summons filed 27 September 2024 is dismissed.
(2) Each party pay its/his own costs.
Catchwords: ADMINISTRATIVE LAW – judicial review – decision of the Personal Injury Commission of New South Wales – where the insurer was found liable to pay for treatment and care expenses that were directly related to, and reasonably contemplated at the time of, the surgery whether or not the treatment was provided after the 26-week period
STATUTORY INTERPRETATION – the meaning of the word “incurred” in Motor Accident Injuries Act 2017 (NSW), s 3.28 as it read prior to amendment
Legislation Cited: Civil Procedure Act 2005 (NSW)
Interpretation Act 1987 (NSW), s 33
Motor Accident Injuries Amendment Act 2022 (NSW)
Motor Accident Injuries Act 2017 (NSW), ss 3.11, 3.28
Supreme Court Act 1970 (NSW)
Cases Cited: Allianz Australia Insurance Limited v Estate of the Late Summer Abawi [2025] NSWCA 85
Federal Commissioner of Taxation v James Flood Pty Ltd (1953) 88 CLR 492; [1953] HCA 65
SkyCity Adelaide Pty Ltd v Treasurer of South Australia [2024] HCA 37
Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71
Texts Cited: Macquarie Dictionary
Category: Principal judgment
Parties: Insurance Australia Limited trading as NRMA Insurance (Plaintiff)
Alexander Mayer (First Defendant)
Elizabeth Medland, Member of the Personal Injury Commission of New South Wales (Second Defendant)
President, Personal Injury Commission of New South Wales (Third Defendant)
Representation: Counsel:
M Robinson SC (Plaintiff)
J Gumbert (Plaintiff)
Self-represented (First Defendant)
Solicitors:
Hall & Wilcox (Plaintiff)
Self-represented (First Defendant)
File Number(s): 2024/00352248
Publication restriction: Nil
This judgment involves judicial review of a decision of a Member of the Personal Injury Commission of NSW in relation to the meaning of the word “incurred” pursuant to s 3.28 of the Motor Accident Injuries Act 2017 (NSW) as it then was.
The plaintiff is Insurance Australia Limited trading as NRMA Insurance (the insurer). The plaintiff is represented by M Robinson SC with J Gumbert. The first defendant is Alexander Mayer (Mr Mayer) who appeared and was self-represented. While he made some submissions, this judicial review largely proceeded without any real contradictor. The second defendant is Elizabeth Medland (the Commission Member) in her capacity as a Member of the Personal Injury Commission of New South Wales (PIC). The third defendant is the President of the Personal Injury Commission of New South Wales. The second and third defendants have filed submitting appearances.
On 12 January 2023, Mr Mayer was injured in a motor vehicle accident in NSW (the accident).
The insurer is the Compulsory Third Party insurer of the vehicle that Mr Mayer considered to be at fault for the accident.
Mr Mayer applied to the insurer for statutory benefits under Pt 3 of the Motor Accident Injuries Act 2017 (NSW) (the Act), on the basis of the injuries he sustained in the accident.
A dispute arose because the insurer denied payment of treatment expenses on the basis that the treatment occurred after the liability period ended, being 26 weeks from the date of the motor vehicle accident. Mr Mayer claimed that the treatment was related to surgery, funded by the insurer, that he underwent during the 26 weeks. The insurer paid $42,032.06 for surgery-related expenses that were received prior to 13 July 2023.
The total cost of the treatments initially denied by the insurer was $3,023.12. This sum of $3,023.12 relates to expenses incurred after the 26-week period stipulated by s 3.28 of the Motor Accident Injuries Act 2017 (NSW) (the Act). Mr Mayer claimed expenses for post-operation consultations, medication, travel to appointments and a gym membership for rehabilitation purposes.
At this judicial review, senior counsel for the insurer informed the Court that, with the exception of the gym membership, “the post cut-off date expenses” have now been paid by the insurer (T10 [33]-[36]). Thus, the only payment that remains outstanding is the sum of $150.00 claimed for gym expenses. The insurer says that although it has paid the expenses referred to above, it was not actually obliged to pay them.
The dispute came before the Commission Member for determination pursuant to s 7.41 and/or Sch 2, cl 3(n) of the Act on 5 October 2023. The Commission Member determined that the accident was “wholly (mostly)” caused by the fault of Mr Mayer. This fault determination is not subject to challenge.
On 24 July 2024, the Commission Member determined that under s 3.28 of the Act, the insurer was liable for the treatment and care expenses of Mr Mayer regardless of whether the treatment was provided after the 26-week period from the date of the motor vehicle accident (the decision).
The insurer seeks a judicial review on the basis that the meaning of the word “incurred” in s 3.28 of the Act is one that needs to be determined by the Court.
By the summons filed 27 September 2024, the insurer seeks the following relief:
An order in the nature of certiorari or alternatively, a declaration setting aside or declaring invalid, the decision of the second defendant that was made on 24 July 2024 purportedly pursuant to s 3.28 of the Motor Accident Injuries Act 2017 (NSW) that the plaintiff is liable for treatment and care expenses, whether or not the treatment was provided after the 26-week period from the date of the motor vehicle accident.
An order that the matter be remitted to the third defendant for determination by a different Member according to law.
I shall briefly set out the relevant provisions of the Act at the time of the decision under review.
At the time of the accident, s 3.11 of the Act read:
3.11 Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks
(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
Note—
Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault.
3.28 Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries
(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.
At the time of the accident, the relevant guidelines were the State Insurance Regulatory Authority Motor Accident Guidelines Version 9.1 (the guidelines) which commenced on 1 April 2023 (T11 [37]-[38]).
There is no specific guideline in relation to s 3.28 of the Act.
The process for dealing with claims for treatment and care expenses is strictly set out in the guidelines (T11 [39]-[41]). An insurer must determine a claim within ten days; and must conduct an internal review (if requested and the insurer accepts that it can do so), within seven days of receiving an application from a claimant (at pars 4.105 and 7.12 of the guidelines respectively).
Compliance with the guidelines is a condition of an insurer’s licence (as per s 10.7 of the Act) and that breaches put “their licence to operate in this industry at risk” (T11 [44]-[47]).
The relevance of the timeframes in the guidelines, beyond the fact that compliance is a condition of an insurer’s licence, was that given the limitation on a claimant’s entitlement to statutory benefits, the process for determining entitlement must be done fairly expeditiously.
“[ROBINSON]: That’s correct. And it says at sub 1, “An injured person is not entitled to statutory benefits under this division for treatment and care expenses incurred more than 26 weeks after the motor accident. If the accident was caused wholly or mostly by the fault of a person.” And so on. Or they’re threshold injuries.
HER HONOUR: But I’m not going to say, not all – when I just read the beginning of it, not all operations and stuff take place within 26 weeks.
[ROBINSON]: No, your Honour.
HER HONOUR: So that would, yes, wouldn’t make sense. Okay, so yes.
[ROBINSON]: That’s why I emphasised at the beginning, the 10 days and seven days process for decision-making. These things have to be claimed and determined fairly quickly under the guidelines, your Honour…” (T18 [12]-[28]).
“FINDINGS
32. The Insurer has argued that the claimant is only entitled to treatment and care expenses “incurred or provided up to…” the cessation of the relevant 26 week period (being after 13 July 2023).
33. This submission effectively is an extension to the wording in the relevant statutory provision. As set out above, the relevant wording of s 3.28 provides that an injured person is not entitled to treatment and care expenses “incurred” more than 26 weeks after the accident (if found to be wholly or mostly at fault). The words “or provided” utilised by the Insurer are simply absent from the provision.
34. Accordingly, in my opinion the real issue that requires determination is the meaning of the word “incurred” in the context of the provision.
35. In terms of statutory interpretation, generally the meaning of a statute is the grammatical meaning, however, that is not always the case.
36. In the leading case for statutory interpretation, Project Blue Sky v ABA [1998] 194 CLR 355 (Project Blue Sky) at [780], Brennan CJ, McHugh, Gummow, Kirby and Hayne JJ found:
“The duty of a court is to give the words of a statutory provision the meaning that the legislature is taken to have intended them to have. Ordinarily, that meaning (the legal meaning) will correspond with the grammatical meaning…But not always. The context of the words, the consequences of a literal or grammatical construction, the purpose of the statute or the canons of construction may require the words of a legislative provision to be read in a way that does not correspond with the literal or grammatical meaning.”
37. Section 37 of the Interpretation Act 1987, requires that when interpreting a certain statutory provision, a construction that would promote the purpose of the object underlying the Act is to be preferred to a construction that would not promote that purpose or object. [I interpose that the reference to s 37 here should be to s 33.]
38. After carefully considering the wording of s 3.28, I find that the words should be given their grammatical meaning. In this regard, I reject any suggestion that words “or provided” should be read into the provision.
39. This leaves the interpretation of “expenses incurred” as contained in s 3.28.
40. It is notable that the section does not refer to treatment actually received or treatment provided. It instead refers to the “expenses” related to same. To my mind, this invokes a meaning of liability for payment rather than the date of provision of services/treatment.
41. The Cambridge dictionary provides the following definition of “incur” as a verb: “to experience something, usually something unpleasant, as a result of actions you have taken.” This suggests that one can “incur” something after a particular action.
42. In my opinion, the words “expenses incurred” is not synonymous with the words “treatment received” or “treatment provided” and therefore can be asynchronous.
43. In my opinion “incurred” in the context of expenses, equates to a meaning of becoming liable for an expense. It follows therefore, in my opinion, that the Insurer, once deemed liable for the surgery, became liable for all related treatment that would be reasonably contemplated as being reasonable and necessary at the time of the surgery.
44. The claimant’s simple statement that “surgery costs are surgery costs” holds considerable merit, in my view.
45. This interpretation is in line with the objects of the Act contained in s 1.3 of the MAI Act, specifically s 1.3(2)(a) that provides that the objects include: “to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities.”
46. This is particularly so in situations, such as the subject matter, where delays in receiving treatment due to a denial of liability by the Insurer that necessitates a dispute process to unfold where ultimately the Insurer is found liable. Such situation has the potential to significantly prejudice a claimant, and their “optimum recovery” from injuries if s 3.28 were to be interpreted the way the Insurer contends.
47. Whilst my initial intention was to carefully consider all medical evidence and make a determination on each item of treatment in dispute, upon further reflection I consider that such a determination would be outside my power. In this regard, I note that the question of whether treatment is reasonable and necessary and related to the injury caused by the accident is deemed a “medical assessment matter” under Schedule 2 cl 2(b) of the MAI Act.
48. By way of comment only, however, it would appear prima facie that the expenses claimed could be categorised as being reasonable and necessary and directly related to the subject surgery. Although, there may be some question as to whether gym membership is directly related to the surgery. However, this is a question to be answered after careful consideration of medical evidence and is not a question for my determination in a miscellaneous claims matter.
CONCLUSION
49. I find that the Insurer is liable for treatment and care expenses that are directly related to, and reasonably contemplated at the time of, the surgery (C3/4 anterior cervical discectomy and fusion surgery) carried out on 4 July 2023, whether or not the treatment was provided after the 26 week period (13 July 2023).”
The insurer submitted that the Commission Member fell into legal error in making the decision, such that there was jurisdictional error of construction and/or an error of law on the face of the record. In the alternative, the insurer submitted that there was a constructive failure to exercise jurisdiction such that the decision is invalid.
Although Mr Mayer was entitled to receive statutory benefits from the insurer on a no-fault basis under Pt 3 of the Act, that entitlement is limited by factors including, whether the accident was caused wholly or mostly by the claimant. At the time of the accident, s 3.11 of the Act provided that a claimant was not entitled to weekly payment of statutory benefits for loss of earnings beyond 26 weeks after the motor accident if it was caused wholly or mostly by the fault of the claimant.
The Commission Member impermissibly focused on whether the insurer incurred liability for expenses, rather than focusing on the correct meaning and use of the word “incurred” in the context of s 3.28(1) of the Act. Rather, when read in the context of the section, the relevant question is whether the expenses were incurred 26 weeks after the motor accident, not whether the insurer incurred a liability for expenses before that time.
While the expenses that were in dispute before the Commission Member might have been related to a liability that was incurred prior to 26 weeks (being the liability for surgery), the expenses themselves were incurred more than 26 weeks after the motor accident, given that all of the expenses are for treatment after that date.
The treatment may have been reasonably necessary in connection with the earlier surgery (for which the insurer was liable and for which the insurer paid). However, that is not the determinative question. The expenses here were expenses in fact incurred after the statutory liability period ended.
Contrary to the Commission Member’s findings, it is not necessary to read words into s 3.28(1) to arrive at the construction contended for by the insurer. Rather, the insurer says that a plain reading of the section, and reading the word “incurred” in context, leads inexorably to that construction.
The ordinary meaning of the word “incur” may be relevant (per SkyCity Adelaide Pty Ltd v Treasurer of South Australia [2024] HCA 37 at [32]).
The Macquarie Dictionary defines “incur” as follows:
To run or fall into (some consequence, usually undesirable or injurious).
To become liable or subject to through one’s own action; bring upon oneself: to incur her displeasure.
However, this dictionary definition is of limited assistance when considering the word “incurred” in the statutory context of having incurred an expense.
“The word “outgoing” might suggest that there must be an actual disbursement. But partly because such an interpretation would produce very strange and anomalous results, and partly because of the use of the word “incurred”, the provision has been interpreted to cover outgoings to which the taxpayer is definitively committed in the year of income although there has been no actual disbursement. …
‘To come within that provision there must be a loss or outgoing actually incurred. “Incurred” does not mean only defrayed, discharged, or borne, but rather it includes encountered, run into, or fallen upon. It is unsafe to attempt exhaustive definitions of a conception intended to have such a various or multifarious application. But it does not include a loss or expenditure which is no more than impending, threatened, or expected.’: New Zealand Flax Investments Ltd. v. Federal Commissioner of Taxation [(1938) 61 CLR 179, at p 207].”
Although the word “incurred” in s 3.28 is not used in the Act in a taxation context, the principles of “definitively committed”, “actually incurred” and “more than impending, threatened, or expected” are apt and identify the contentions the insurer seeks here.
To put it in factual context, the expense of Mr Mayer’s surgery itself was “incurred” before 13 July 2023, given that the obligation to pay for the surgery arose at the time the surgery was performed. If the bill for surgery had been rendered after 13 July 2023, the insurer would still have been liable for the cost of the surgery, as the expense was incurred prior to the termination of the period of liability.
However, to the contrary, the expenses for follow up treatment and travel were expenses that were nothing more than (at best) expected as at the time the liability period ended, and perhaps not even expected but merely foreseeable as possible future expenses (somehow related to the surgery that had already occurred). While they might have been related to the surgery, they were not in fact incurred prior to 13 July 2023 (the statutory cut off period).
Mr Mayer’s argument before the Commission Member that “surgery costs are surgery costs”, which was accepted by the Commission Member as holding considerable merit, is incorrect. The expenses that the claimant was claiming were not “surgery costs” but rather were costs that could be considered as being related to, and which were subsequent to, surgery. The timing of the costs (even if they could be construed as surgery costs, which the insurer says they cannot) is such that they were distinguishable from the costs that were in fact incurred within the liability period.
Were the construction to be otherwise than as advanced by the insurer, the insurer is exposed to an indefinite and potentially never-ending liability to pay for all future expense that may be deemed to be related to treatment that was incurred during the liability period. This is a construction that is clearly at odds with the plain text of the section, and the context in which “incurred” is used.
Further, the construction adopted by the Commission Member would frustrate the purpose of s 3.28 as a provision plainly designed to cease entitlement to statutory benefits after the defined period. If “the Courts can identify the target of Parliamentary legislation their proper function is to see that it is hit: not merely to record that it has been missed” (Wass v Director of Public Prosecution (NSW); Wass v Constable Wilcock [2023] NSWCA 71 at [4] citing Lord Diplock, “The Courts as Legislators” in Brian W Harvey, The Lawyer and Justice (Sweet & Maxwell, 1978) 263 at 274).
The Commission Member relied on s 1.3 of the Act, specifically s 1.3(2)(a). Here, the objects of the Act are listed in s 1.3; and they are competing objects.
At the hearing on 25 July 2025, the AVL connection did not work. Mr Mayer briefly made submissions over the telephone on loudspeaker (that was because Mr Mayer was driving in Melbourne (T2 [17]-[21]; T3 [7])).
Mr Mayer began by asserting that he had a legal right to file a cross claim in this judicial review but that the Court rejected the filing as it was not the usual practice.
“MAYER: The last thing I received from the Court was saying that they didn’t accept the cross-claim because it’s not usual practice. And I responded with, “Usual practice is irrelevant; the law has stated that I can(?) put in a cross-claim.” [T5 [13]-[16]]
…
MAYER: So the Court sent many things saying, “We haven’t accepted your cross-claim because it’s not usual practice.”
HER HONOUR: Well, it isn’t; that’s true.
MAYER: And I responded with:
“Just because it’s not usual practice doesn’t mean it’s not the law. By law, I have the right to put in a cross-claim. Usual practice is not the law. Legislation is legislation; the law is law. And usual practice is not the law. Just because it’s not usual practice doesn’t mean I’m not legally entitled to put it in.”
And that was the last correspondence I have--
HER HONOUR: Well, you know what?
MAYER: ..(not transcribable)..legal right to put in a cross-claim. Usual practice is irrelevant.
HER HONOUR: You do not have the right under the law - under the Civil Procedure Act and the Supreme Court Act - to put in a cross-claim for a judicial review.
MAYER: Yes, I do. I sought legal advice on that, and I absolutely do have the legal right to do that.” (T5 [25]-[50])
This submission is wrong. There is no provision to file a cross claim in a judicial review in the Supreme Court Act 1970 (NSW) nor the Civil Procedure Act 2005 (NSW).
Mr Mayer then went on to identify that his submissions were contained in his affidavit dated 2 April 2025 that he filed and served on the insurer.
“Do you want to say anything else?
MAYER: Not at this stage; no, your Honour.” (T6 [32]-[34])
“MAYER: Well, just to give you a summary, the relevance in my affidavit is the fact that they’re trying to essentially appeal the decision of the Personal Injury Commission. And it came down to the very simple fact that NRMA - what they did is they’ve played the delay game till the liability period was over, and then once the liability period is over, then they didn’t have to pay for anything. Well, that just means any insurance company in New South Wales can just delay, delay, delay until the six or 12-month liability period is over and they’re not liable for any costs, just by delaying the process. And that’s what I said to the Personal Injury Commission in greater detail obviously, and the Personal Injury Commission agreed with me and ruled in my favour. Because an insurance company can’t just delay and then, “We’ll keep delaying it till it goes past the liability period, then we don’t have to pay anything.”
HER HONOUR: You mean the 26 weeks.
MAYER: The law wasn’t written so insurance companies can get away with not paying anyone ever. And that’s why they’re taking this case to the Supreme Court, because that’s set a precedent for the Average Joe guy like myself, and insurance companies think they can just delay and not ever have to pay out anything.” (T7 [6]-[25])
The Commission Member accepted Mr Mayer’s argument that “surgery costs are surgery costs” as having considerable merit. The insurer submitted that this interpretation of the word “incurred” is incorrect.
The expenses that Mr Mayer claimed were not “surgery costs”. Rather, they were costs related to surgery.
If the Commission Member’s interpretation were accepted, the insurer could be exposed to an indefinite liability to pay for any future expenses that could be said to be related to treatment incurred during the liability period. Such an interpretation conflicts with the plain text of s 3.28 of the Act and the context in which the word “incurred” is used.
Mr Mayer satisfied both sub-sections (1) and (2) of s 3.28 of the Act. It is s 3.28(3) of the Act that comes into play in this judicial review, where the word “incurred” appears. As discussed earlier, the applicable Motor Accident Guidelines are silent in respect of s 3.28 of the Act.
However, s 3.28(3) relevantly read:
“[t]he payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
To my mind, s 3.28(3) of the Act does not require the authorisation of the guidelines but rather, the words "or in other appropriate circumstances" contained in s 3.28(3) provide a discretion to the insurer to pay the treatment and care expenses.
Contrary to Mr Mayer’s submission, if the insurer delayed approval for treatment and care in circumstances where that treatment and care would improve the recovery of the injured person, the insurer can be obliged to make those payments. Section 3.28(3) also provided that the insurer may otherwise authorise payment of treatment expenses in other appropriate circumstances. That is precisely what it did. In these circumstances, it is not appropriate to decide what the meaning of “incurred” is as it appeared in the former s 3.28(3) of the Act. As was stated in James Flood, “[i]t is unsafe to attempt exhaustive definitions of a conception intended to have such a various or multifarious application”.
Pursuant to s 3.28(3) of the Act, the insurer has already exercised its discretion to pay these treatment expenses, so there is no utility in remitting the matter for a further determination.
Costs are discretionary. The plaintiff was unsuccessful, but the first defendant’s submissions were largely unhelpful.
It is my view that the appropriate order for costs is that each party pay its/his own costs.
The Court orders that:
The summons filed 27 September 2024 is dismissed.
Each party pay its/his own costs.
**********
minor changes
Insurance Australia Limited trading as NRMA Insurance
Mayer [2025] NSWSC 1311
(1953) 88 CLR 492
For one to incur an expense as a concept is readily understood. An expense “incurred” is even more straightforward as it is rooted in the event having already occurred. It does not relate to the future. It is an expense incurred solely in the past.
Of more assistance to the statutory interpretation is consideration of the word “incurred” in the context of taxation laws, as considered by the High Court in Federal Commissioner of Taxation v James Flood Pty Ltd (1953) 88 CLR 492 at 506-507; [1953] HCA 65 (‘James Flood’):
It does not assist in the statutory construction required here to select only one of them when others tend against it, as in Allianz Australia Insurance Limited v Estate of the Late Summer Abawi [2025] NSWCA 85 at [59].
In construing s 3.28(1) in the way that she did, the Commissioner Member constructively failed to exercise her jurisdiction and also made an error of law.