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[2026] ACAT 32
ACT Civil and Administrative Tribunal
2026-07-01
Original judgment source is linked above.
Source: the ACT Civil and Administrative Tribunal (www.acat.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LISICA v INSURANCE AUSTRALIA LTD T/AS NRMA (Motor Accident Injuries) [2026] ACAT 32 MAI 3/2024 Catchwords: MOTOR ACCIDENT INJURIES – Motor Accident Injuries Act 2019 – whole person impairment assessment (WPI) – WPI guidelines – whether the respondent made a decision to make an offer or decided a WPI – failure to provide reasons for decision – failure to provide procedural fairness – failure to provide written notice of quality of life benefits payable – where the respondent misdirected and misled the independent medical examiner – where the matter is remitted to the respondent for reconsideration in accordance with the MAI Act and the MAI Guidelines.
Legislation cited: Motor Accident Injuries Act 2019 ss 20, 150, 157, 160, 161, 197, 239 Subordinate Legislation cited: Motor Accident Injuries (WPI Assessment) Guidelines 2019 cls 1.22, 1.23, 11.4
Cases cited: Annetts v McCann [1990] HCA 57 Osmond v Public Service Board of NSW [1984] 3 NSWLR 447
Text /Papers cited: American Medical Association, Guides to the Evaluation of th Permanent Impairment (5 ed, 2001)
Tribunal: Member M Hanna
Date of Orders: 22 June 2026 Date of Reasons for Decision: 22 June 2026 Date of Publication: 1 July 2026 AUSTRALIAN CAPITAL TERRITORY ) CIVIL & ADMINISTRATIVE TRIBUNAL ) MAI 3/2024
BETWEEN: BELMA LISICA Applicant AND: INSURANCE AUSTRALIA LIMITED ACN 000 016 722 TRADING AS NRMA Respondent TRIBUNAL: Member M Hanna DATE: 22 June 2026 ORDER The Tribunal orders that:
The decision made by the respondent, Insurance Australia Limited, in relation to the applicant Belma Lisica’s eligibility for WPI is to be remitted to the respondent insurer to re-make the decision in accordance with section 160 of the Motor Accident Injuries Act 2019 (MAI Act).
The respondent in remaking its decision in accordance with the MAI Act is to do the following: (a) Request Dr Ridhalgh to reassess the injuries to the applicant’s neck, back, right shoulder, left shoulder, right hip, left hip, chest, ribs, abdomen, left knee and right knee. (b) Request Dr Ridhalgh to apply clause 1.23 of the WPI Guidelines in relation to the sternum and ribs. (c) Ensure Dr Ridhalgh is provided with all relevant medical information including the report of Dr Guirgis. (d) Ensure Dr Spear is provided with all relevant medical information including the reports of Dr Teoh and Prudence. (e) Request Dr Ridhalgh to consider the impact of secondary psychological harm.
The respondent is to allow the applicant to be heard before a decision is issued.
……………………………….. Member M Hanna REASONS FOR DECISION 1. This application is a review on a question of law or fact in accordance with Section 197 of the Motor Accident Insurance Act 2019 (MAI Act) which allows for a decision under review to be affirmed, amended or set aside by the Tribunal with a substitute decision or that the matter be remitted back to the insurer with a direction for further decision.
The review concerns the respondent insurer’s decision under section 160(2) of the MAI Act to decide a Whole Person Impairment assessment (WPI) to determine the final offer to make to the injured person.
The relevant section reads (emphasis added): 160 Final offer WPI (1) This section applies if the relevant insurer for a motor accident receives a second WPI report about an injured person. (2) The relevant insurer must decide a WPI to determine the final offer to make to the injured person (the final offer WPI). (3) The final offer WPI must be not less than— (a) if the insurer has not requested the IME provider to arrange a review of the first WPI report under section 159—the WPI assessed in the first WPI report; or (b) if the insurer has requested the IME provider to arrange a review of the first WPI report under section 159—the affirmed or increased assessment of WPI stated in the notice of affirmation or increase.
In its submissions, the respondent set out a detailed chronology of events leading up to what it labelled a final offer WPI for the purpose of section 160 of the MAI Act of ‘nil’. It justifies its offer of 16 July 2024 as the correct decision based on the events and medical advice received.
The events in that timeline form the factual context in dispute whereby, consequent to the letter dated 16 July 2024, the respondent purported to have made a decision and one which, in its view, was sound and warranted.
The applicant does not fundamentally dispute the events outlined in the chronology but submits that the respondent’s interpretation of those events, as well as omissions in the details, are in error.
Further, the applicant submits that the notion that the letter of 16 July 2024 was a decision for the purposes of section 160 is also misguided. The applicant submitted a series of ten grounds for the respondent’s decision to be set aside which I review here.
Was the letter of 16 July 2024 a decision made in accordance with the MAI Act?
The applicant submitted that the decisionmaker, in relation to the WPI, is the insurer who must decide the WPI to determine the final offer in accordance with section 160(2) and that the decision to be made cannot be delegated. Further, that once an insurer receives the evidence, including the WPI reports, and any second WPI report or notice of affirmation or increase, it is for the insurer (the respondent) to make findings of fact, weigh the competing evidence/opinions and make its decision. Further it asserts that such an interpretation is consistent with finalising the application as “justly” as possible in accordance with section 20 of the MAI Act.
In the applicant’s view, the insurer only made a decision to make an offer pursuant to section 161, that it did not decide a WPI pursuant to section 160.
When one examines the sequence of events that occurred, as outlined in detail by both parties, it is the Tribunal’s view that the facts support the applicant’s argument that the letter of 16 July 2024 was actually a decision to make an offer (of nothing) rather than a decision as to what comprised the WPI as outlined in section 160(2). The Tribunal concurs with the applicant that this was an error of law.
Failure to provide reasons
In support of this contention the applicant argued that the respondent failed to provide reasons for its ‘decision’ and by doing so it was an error of law because there was an obligation on the respondent to act in good faith in relation to an application for defined benefits, which includes giving the applicant written reasons for all decision having a material effect on an entitlement to defined benefit or damages.
It cites section 20(4)(d) of the MAI Act which reads: (4) The duty of a licensed insurer to act in good faith in relation to an application for defined benefits or a motor accident claim includes the following: … (d) a duty to give the applicant or claimant written reasons for all decisions having a material effect on an entitlement to defined benefits or damages;
The applicant submitted that there were no reasons as to why Dr Spear’s diagnosis of Somatic Symptom Disorder or Pain Disorder under DSM–IV was preferred over the diagnosis of Post Traumatic Stress Disorder (PTSD) or Major Depressive Disorder and that this was an error of law. The Tribunal concurs with the submission that if it were determined that the WPI was to be less than 5% WPI, and there were separate WPI reports of physical and psychological injuries that the respondent was required to tell the applicant how the final offer WPI was determined in accordance with section 161(1)(b)(iii) but in fact, this did not occur. 1
The applicant cited Osmond v Public Service Board of NSW in support of this proposition. There Kirby P explained the following benefits and policy justifications for a duty to provide reasons: (a) Facilitating Judicial Review: Providing reasons allows the affected party to see if any appealable or reviewable errors were made, helping them decide whether to challenge the decision or accept it. (b) Enhancing Accountability and Legitimacy: He argued that government support and legitimacy depend on being accountable to those whose rights are affected. Giving reasons answers the need for transparency in the exercise of public power.
1 [1984] 3 NSWLR 447 (c) Deterring Arbitrariness: The prospect of having to publicly justify a decision, acts as a disincentive for officials to act in a biased or arbitrary manner. (d) Promoting Better Decision-Making: The intellectual discipline required to articulate reasons encourages decision-makers to be more careful, thorough, and rational. (e) Providing Future Guidance: Reasoned decisions offer a body of “precedent” that can guide future applicants and decision-makers in similar cases.
Whilst the concept that Kirby P argued, that a general common law duty to provide reasons for administrative decisions existed, regardless of whether a statute specifically required it, was unanimously overturned by the High Court of Australia on appeal, there is little question that the principles outlined by him are fundamental where a statutory obligation does exist, such as they do in this matter.
The Tribunal agrees that the absence of reasons is an error of law.
Failing to provide procedural fairness
The applicant submitted that the respondent insurer had a duty to provide the applicant with an opportunity to be heard before a decision of WPI was to be made in accordance with section 20(4) of the MAI Act which imposes a duty to disclose as soon as practicable all information that an applicant or claimant may reasonably need to understand the process for applying for defined benefits or making a motor accident claim. The decision to award a WPI of less than 10% can destroy a claimant’s entitlement to make a common law. 2
In support of this proposition, it cited Annetts v McCann where Mason CJ, Deane and McHugh JJ made it abundantly clear in that a duty of procedural fairness arises, where a power is exercised which may “destroy, defeat or prejudice a person's rights, interests or legitimate expectations”.
2 [1990] HCA 57 at [2]
Failing to act in accordance with section 157 of the MAI Act
The applicant submitted that the conduct of the respondent breached the MAI Act when it received the WPI reports of Dr Ridhalgh and Dr Spear. They argued that as Dr Spear’s report was received after Dr Ridhalgh’s report, and on 22 September 2023, Dr Spear assessed a WPI of 22%, that the insurer was required to comply with section 157 by giving to the injured person a written notice — offering the amount of quality of life benefits and explaining the consequences of the offer pursuant to section 157(3) and that, pursuant to section 157(4), the respondent insurer was required to give such notice pursuant to section 157(3) within 14 days from receipt of 22 September 2023, (6 October 2023) but failed to do so.
The Tribunal concurs that the respondent made an error of law by failing to provide the notice as required.
Misdirection of Dr Ridhalgh’s regarding the left shoulder
The fifth ground relied on by the applicant was that the respondent misdirected and misled Dr Ridhalgh. The applicant injured her left shoulder in the accident, yet her defined benefits application of 13 December 2021 listed “shoulders”. Consequently, the applicant was referred for rehabilitation to “both shoulders.” The response by Benchmark rehabilitation assessed her pain in cervical spine and “shoulders.” The respondent requested MLCOA to assess “both shoulders”. The applicant submitted that the direction to Dr Ridhalgh was impermissible as the requirement was to act in accordance with the WPI report, not challenge it by directing the independent medical examiner to reconsider their opinions. It is the applicant’s view that the respondent misdirected and misled Dr Ridhalgh that the left shoulder was “uninjured.” This was despite the respondent knowing that the left shoulder was injured and requesting MLCOA assess both shoulders.
This is an error of law. I concur with the applicant that any reliance upon Dr Ridhalgh’s further opinions in making its decision was then unreasonable and constitutes both an error of law and fact.
Other grounds
Further to the above, I am persuaded that: (a) there was an error of law and fact by failing to provide Dr Spear with all relevant medical evidence; (b) that there was an error of law by failing to direct MLOCA to assess all injuries suffered in the motor vehicle accident; and (c) that the failure to direct Dr Ridhalgh to clause 1.23 of the Motor Accident Injuries (WPI Assessment) Guidelines 2019 (the Guidelines) constituted both an error in law and fact.
In relation to Dr Ridhalgh, the applicant’s injuries to her ribs and sternum were not assessed. The Guidelines allow for conditions not covered in the Guidelines or the American Medical Association’s Guides to the Evaluation of Permanent th Impairment (5 edition) to be assessed. Specifically, clause 1.23 of the Guidelines states: Conditions which are not covered in the Guidelines – equivalent or analogous conditions 1.23 The AMA5 states: “Given the range, evolution and discovery of new medical conditions, the Guidelines cannot provide an impairment rating for all impairments ... In situations where impairment ratings are not provided, the Guidelines suggest that medical practitioners use clinical judgment, comparing measurable impairment resulting from the unlisted condition to measurable impairment resulting from similar conditions with similar impairment of function in performing activities of daily living. The assessor must stay within the body part/region when using analogy. The assessor’s judgment, based upon experience, training, skill, thoroughness in clinical evaluation, and ability to apply the Guidelines criteria as intended, will enable an appropriate and reproducible assessment to be made of clinical impairment.”
The respondent did not ask Dr Ridhalgh to assess the applicant in accordance with clause 1.23. The applicant submitted that the respondent instead sought ways to reduce the applicant’s WPI rather than increase it. The evidence supports this proposition.
Other
The last ground that the applicant submitted for the orders it sought was that Dr Spear was requested to assess the applicant’s primary psychological injury.
Dr Spear acknowledged the applicant had a clinical diagnosis of PTSD, which is a primary psychological injury in accordance with the example listed at section 150(6) of the MAI Act. Example—psychological injury resulting from a motor accident post-traumatic stress disorder as a result of witnessing the motor accident
Dr Spear was unable to assess a secondary psychological injury, as this is contrary to the requirement of clause 1.22 of the Guidelines. However, a WPI assessment of a primary psychological injury must not take into account a secondary psychological injury (section 150(4)(b) of the MAI Act). Dr Spear did however both diagnose and assess a secondary psychological injury, pain disorder, because such a diagnosis is excluded from being a primary psychological injury by virtue of section 150(6)(b).
Section 150(6)(b) also defines secondary psychological injury, and it is clear that a pain disorder fits this definition. It states: secondary psychological injury means an injury that is— (a) a psychological or psychiatric disorder that results from a physical injury resulting from a motor accident; and (b) diagnosed by a psychiatrist or clinical psychologist. Example—psychological injury that results from physical injury depression and anxiety as a result of ongoing pain from the physical injury
Moreover, clause 11.4 of the Guidelines specifically excluded somatoform disorder from WPI Assessment, it must be deduced that a pain disorder is a secondary psychological injury.
Dr Spear did not follow the Guidelines and, as the applicant argues, any reliance on his opinions by the respondent is an error of law and fact.
Other issues raised by the respondent
In its further submissions dated 8 August 2025, the respondent argued that the applicant’s submissions in relation to Dr Spear’s first report dated 4 October 2023 [in paragraphs 20-27 of the applicant’s submissions 30 July 2025] were flawed.
The respondent relied on Clause 11.4 of the Guidelines which reads: 11.4 The impairment rating must be based upon a psychiatric diagnosis (according to a recognised diagnostic system) and the report must specify the diagnostic criteria upon which the diagnosis is based. Impairment arising from any of the somatoform disorders (DSM-IV TR pages 485 to 511) are excluded from this chapter.
In doing so the respondent submits that Dr Spear’s report was “not a WPI report” because it did not comply with the Guidelines because his assessment of WPI …”included a rating for his diagnosis of pain disorder, which was excluded under clause 11.4 of the of the WPI Assessment Guidelines”. Further it relies upon the submission that DSM-IV TR are “very broad”.
The Tribunal has no evidence before it that there is a requirement under the Guidelines to utilise the DSM-IV for such a purpose. It is stated in the Guidelines that “Impairment arising from any of the somatoform disorders (DSM IV TR, pp 485-511) are excluded from this chapter”.
The evidence before the Tribunal does not support the view that the first report of Dr Spear diagnosed a somatoform disorder under DSM-IV. The evidence indicates that he diagnosed under the DSM-V somatic symptom disorder.
Conclusions
Based on the findings above, I am satisfied that the orders sought by the applicant, in its original submissions, are warranted.
In summary the Tribunal is satisfied that: (a) The respondent failed to make a decision in accordance with section 160 of the MAI Act. (b) The respondent is found to have acted contrary to law and fact in accordance with the details outlined above. (c) The respondent failed to provide adequate procedural fairness by not providing sufficient notice to the applicant of its initial views on the facts and its weighing of the medical opinions, so as to allow the applicant to be heard before a decision was made.
……………………………….. Member M Hanna
Date of hearing: 31 July 2025 Counsel for the Applicant: Mr B Julienne Solicitors for the Applicant: Blumers Lawyers Counsel for the Respondent: Mr B Wilson Solicitors for the Respondent: HWL Ebsworth Lawyers
LISICA
INSURANCE AUSTRALIA LTD T/AS NRMA (Motor Accident Injuries)