Key Takeaways
- Dispute: Whether a mild traumatic brain injury was caused by a motor vehicle accident or by post-accident conduct
- Insurer's position: Brain injury was self-inflicted, not accident-related. Classified as threshold (minor) injury only.
- Courts: Personal Injury Commission Medical Assessor (Aug 2022), PIC Review Panel (Aug 2023), Supreme Court of NSW (Aug 2024), Court of Appeal (Jun 2025)
- Result: Insurer lost at every level. Brain injury confirmed as non-threshold. Our client's full entitlement to CTP statutory benefits upheld.
A 100km/h Crash, a Brain Injury, and an Insurer That Refused to Accept It
At around 3:20am on 7 October 2018, our client was a rear-seat passenger in a car travelling at approximately 100 kilometres per hour through York Street, Sydney. The vehicle collided with another car, spun 360 degrees, mounted the footpath, knocked over a street sign, and slammed into a tree. Impact caved in the entire front of the car and cracked the windscreen. Our client had to crawl out through a broken window with the help of a bystander who smashed the glass to free him.
He was disoriented and in pain. Paramedics arrived within minutes and found him being held prone on the ground by three police officers. They noted right forehead bruising, an altered conscious state, and agitated behaviour. His Glasgow Coma Scale score was 12 out of 15. After medication was administered, it dropped to 3, the lowest possible score. Seizure-like activity was observed on the way to St Vincent's Hospital. None of it registered. His first clear recollection was waking up in intensive care two days later.
For our client, the consequences extended beyond physical recovery. A mild traumatic brain injury affects concentration, memory, the ability to work, and the capacity to function independently. How that injury was classified under the CTP scheme would shape everything: a non-threshold classification meant access to the full statutory benefits he needed to rebuild, while a threshold classification meant the insurer could limit his entitlements to those available for minor soft tissue injuries only.
The CTP insurer of the at-fault vehicle, accepted that the crash caused some soft tissue injuries. Those were classified as threshold injuries under the Motor Accident Injuries Act 2017 (NSW), which limits the benefits available. But the insurer refused to accept that our client's mild traumatic brain injury was caused by the accident.
Their position was blunt: the brain injury was self-inflicted. Not their problem. They pointed to what happened in the minutes after the crash.
What the Insurer Argued
In those minutes, our client became highly agitated. He ran into the middle of the road. Police arrived and attempted to lead him to safety. He resisted. An officer restrained him on the ground, and while restrained, our client repeatedly struck his head against the roadway.
A urine drug screen at the hospital tested positive for benzodiazepines, cocaine, and amphetamines.
The attending officer, Constable Giblin, later told an insurance investigator he did not recall seeing a head injury on our client before the head-striking began. He believed the head wounds were caused by the repeated impacts against the road surface.
The insurer pointed to these facts and argued the brain injury resulted entirely from the head-striking, not the collision itself. Their internal review reached a blunt conclusion: the head injury and related clinical symptoms were "not causally related to the motor vehicle accident, but from the subsequent self-inflicted incident."
If that classification held, our client's brain injury would be treated as a threshold injury. His entitlement to statutory benefits would be significantly limited under sections 3.11 and 3.28 of the Act, and he would have no access to common law damages under section 4.4. Everything came down to one question: what caused the brain injury?
The Causation Question That Decided Everything
That question had a clear legal framework, but its application was contested at every stage. Under Clause 6.7 of the Motor Accident Guidelines, issued under the Motor Accident Injuries Act 2017 (NSW), an accident does not need to be the sole cause of an injury. It only needs to be a contributing cause that is more than negligible. The broader causation principles in section 5D of the Civil Liability Act 2002 (NSW) underpin this test.
Our argument was that the 100km/h collision, the violent impact, and the trauma of being trapped in a wrecked vehicle and crawling through a broken window all contributed to the brain injury. The post-accident agitation and head-striking were themselves consequences of the crash, not separate events. Before the accident, there was no evidence our client was agitated or distressed. The collision, combined with the stimulant drugs in his system, triggered the behaviour that followed.
The insurer's argument required the courts to draw a clean line between the accident and what happened afterwards. We argued no such line existed. The evidence supported us on three fronts.
Three Elements That Decided the Case
The causation standard
The applicable test, drawn from Briggs v IAG Limited [2022] NSWSC 372 and Clause 6.7 of the Motor Accident Guidelines, required only that the accident was a contributing cause that is more than negligible. Not the sole cause. Not even the primary cause. A more than negligible contribution was enough.
The absence of pre-accident agitation
There was no evidence our client was agitated, erratic, or distressed before the crash. The police, the bystanders, and the ambulance records all described a man who became agitated only after a 100km/h collision. That absence undermined the insurer's argument that the head-striking was unrelated to the accident.
The causal chain
Even accepting that the physical mechanism of the brain injury was the head-striking against the road, the accident triggered the agitation that led to it. The crash and the conduct after it were one connected sequence, not two separate events. The evidence before the Panel, including ambulance records, hospital notes, police statements, and a neurological assessment from Dr Tisch, supported that reading.
When the insurer escalated the dispute through three years of proceedings, we defended these arguments at each level. The record speaks for itself.
Four Decisions, One Result
The first step was referring the dispute to the Personal Injury Commission for medical assessment. In August 2022, the PIC Medical Assessor found our client had sustained a mild traumatic brain injury caused by the accident. That made it a non-threshold injury.
The insurer applied for review. In August 2023, a three-member PIC Review Panel examined the evidence afresh: police statements, ambulance records, hospital records, and the neurologist's report. It confirmed the original finding. The high-speed crash was a more than negligible cause of the head injury, and the post-accident agitation and head-striking were themselves triggered by the collision combined with the stimulant drugs in our client's system. On that basis, the Panel concluded the accident materially contributed to the brain injury.
The insurer did not accept that finding either. They sought judicial review in the Supreme Court of NSW.
Supreme Court (August 2024)
Price AJA dismissed every ground of review. On the causation test, the Panel had applied it correctly. On the burden of proof, no reversal had occurred. On the adequacy of reasons, the Panel was not required to address every hypothetical scenario the insurer raised. Every challenge failed: Insurance Australia Ltd t/as Insurance v Le [2024] NSWSC 1022.
The insurer appealed.
Court of Appeal (June 2025)
Justices Stern, Mitchelmore, and Ball unanimously dismissed the appeal with costs. The Court accepted that one of the Panel's findings was technically erroneous: its initial conclusion that the crash directly caused the brain injury did not account for the self-inflicted head-striking as a competing cause. But that error did not matter. A second finding supplied the answer: the accident caused the agitation that led to the head-striking, which itself materially contributed to the brain injury. That reasoning was sound, and it amply supported the Panel's conclusion. Without direct medical evidence pinpointing the precise causal mechanism, the Panel was still entitled to draw inferences from the circumstances: Insurance Australia Ltd t/as Insurance v Le [2025] NSWCA 121.
The appeal was dismissed. The insurer was ordered to pay costs.
Why This Case Matters for Disputed CTP Brain Injury Claims
Our client's entitlement to full CTP statutory benefits for a non-threshold injury remains in place. The insurer contested that entitlement through four separate proceedings across three years. They lost at every level.
The core question was whether post-accident conduct caused by the accident itself can satisfy the causation test. The insurer tried to isolate what happened after the crash from the crash itself. The courts rejected that approach. Where an accident triggers the behaviour that leads to further injury, the accident remains a contributing cause. An insurer cannot draw a clean line between the two when no such line exists.
That principle extends to how causation is proved. The material contribution test does not require scientific certainty. Medical review panels can draw inferences from the circumstances, the clinical evidence, and the surrounding facts. A claim is not defeated simply because no single piece of evidence pinpoints the exact causal mechanism, so long as the inference of causation is logical and supported on the balance of probabilities. But proving that requires someone willing to fight for it.
If Your CTP Claim Has Been Denied
An insurer's decision to deny or limit your claim is not the final word. Medical disputes can be referred to the Personal Injury Commission for independent assessment. If the insurer challenges that assessment through judicial review or appeal, those proceedings can be defended.
This case took three years from the initial medical assessment to the Court of Appeal. The insurer challenged our client's entitlement at every stage. We defended it at every stage. That required understanding both the medical evidence and the legal framework well enough to hold the finding through two rounds of court proceedings.
If your CTP insurer has denied your brain injury claim, or classified your injury as threshold when you believe it should not be, getting legal advice early matters. Call State Law Group on 1300 011 149 or contact us online at statelawgroup.com.au/contact.
Legal disclaimer: This case study describes the outcome of a specific matter settled on its own facts and circumstances. Past results do not guarantee similar outcomes. Every claim involves different injuries, losses, and legal issues. This article is general information, not legal advice. If you need advice about a CTP claim dispute, contact State Law Group directly.
