A NSW appeal court says motor accident claimants need real medical evidence, not just an assertion, before a psychiatric injury dispute is sent for assessment.
The Court of Appeal ruled in Kewin v AAI Ltd t/as GIO Insurance on May 20, 2026. Stephen John Kewin claimed he was rear-ended in November 2018. He argued his psychological or psychiatric injury was not a "threshold injury" under the Motor Accident Injuries Act 2017 (NSW) - a category that caps weekly benefits and treatment at 52 weeks and shuts off damages.
Under section 1.6, a psychological or psychiatric injury is a threshold injury unless it is a recognised psychiatric illness. Regulation 4 of the Motor Accidents Injuries Regulation 2017 (NSW) carves acute stress disorder and adjustment disorder, as defined in the DSM-V, into the threshold category. To clear the bar, a claimant needs a recognised illness that is not one of those two.
GIO, after internal review, said none of Kewin's injuries cleared it. The physical injuries were accepted as threshold and were not pursued on appeal. Kewin then asked the Personal Injury Commission to refer the psychiatric dispute to a medical assessor. He offered three things: a GP note from January 30, 2020 stating "referral to psychologist needed having recurring dreams about car accidents"; a medico-legal report from orthopaedic surgeon Dr Bodel saying Kewin "has also suffered a significant psychological disturbance"; and fitness-for-work certificates noting "physiotherapy and awaiting to see psychologist."
The Commission wanted more. On September 2, 2024 it told Kewin's lawyers that "there has been no evidence provided in relation to a psychological injury" and set a September 12 deadline. Kewin's solicitors pushed back, arguing the Act "does not require evidence from a party asserting that the injury is a non-threshold injury" and that it was "not economical for medico legal reports to be purchased in circumstances where the cost may not be recovered."
On September 13, 2024 the Team Leader - Medical Disputes closed the application: "Due to the lack of evidence the psychiatric dispute will not be proceeding." The delegate added that a fresh application could be lodged once "a confirmed diagnosis of psychological injury has been sought and provided."
Kewin sought judicial review, lost before Mitchelmore J in the Common Law Division on December 1, 2025, then pursued leave to appeal. His argument turned on section 7.20(2), which says the President "is to arrange" for a referred dispute to be dealt with by an assessor. Once a dispute existed, he said, referral was mandatory. The assessor could then chase information under section 7.20(4).
Leeming JA, with Kirk JA and Griffiths AJA agreeing, granted leave but dismissed the appeal. The court read section 7.20 as a two-step provision. Subsection (2) covers arranging an assessor. Subsection (3) covers accepting the referral. Acceptance comes first. "Before the President has occasion to arrange a dispute which has been referred, it must first be accepted," Leeming JA wrote.
Subsection (3) expressly lets the President refuse a referral on insufficient-evidence grounds - but only in permanent impairment disputes. Kewin argued the absence of an equivalent for threshold disputes meant no such power existed. The court called it a weak expressio unius argument, saying it would be "close to absurd" if "palpably deficient or non-compliant applications had to be referred because they did not involve a dispute about the degree of permanent impairment."
The judgment also backed procedural direction PIC6. Clause 17 requires the applicant party to "produce with the application the evidence that demonstrates the injury status as asserted by them." Clause 18 requires medical evidence from "a treating health practitioner or a practitioner authorised by the Motor Accident Guidelines." Rule 66(3) of the Personal Injury Commission Rules 2021 (NSW) lets the President refuse a non-compliant application. PIC6, the court found, sits alongside section 7.20, not against it.
Kewin's counsel warned the ruling would be harsh on claimants who cannot afford psychiatric reports. Leeming JA was not persuaded. "There is nothing unusual, let alone harsh, in insisting that a claimant who wishes to receive compensation or damages for a psychological injury first provide some evidence (as opposed to an assertion) that demonstrates that injury to the insurer."
The scheme aims to resolve disputes quickly and cost-effectively under section 1.3(2)(g), and section 6.3(2)(c) requires claimants "to promptly do all things reasonably necessary to facilitate the resolution of any dispute involving the claim."
Uncontradicted evidence from Kewin's solicitor was that this was the first occasion on which the Personal Injury Commission had rejected a claim based on the failure to provide evidence establishing a non-threshold psychiatric injury, but that it "now routinely took that course." That made the issue one of general public importance.
The appeal was dismissed. Kewin was ordered to pay GIO's costs.
