Speech by the President: UNSW Faculty of Law, Edge Seminar

Speech delivered by the President on 5 March 2026

UNSW Faculty of Law, Edge Seminar

UNSW Law School, Kensington Campus, Thursday 5 March 2026

PERSONAL INJURY COMMISSION UPDATE 2026

Speech by the President of the Personal Injury Commission of NSW Judge G. M. Phillips

Judge Gerard Phillips

I always know it’s the start of the new law term because it’s when, amongst a number of events, I make the pilgrimage to Kensington to deliver my now annual address at the UNSW Law School.

I thank the organisers for the opportunity to speak to you on matters relevant to practice in the Personal Injury Commission (Commission).

In this paper I will commence by marking the centenary of the Commission’s workers compensation jurisdiction. Next, I will deal with the Commission’s new rules governing the use of Artificial Intelligence (AI). These new rules commenced operation on 1 January 2026. AI is truly both a threat and opportunity for legal practice and I will be setting out in some detail what is required in Commission proceedings. I will also address the impending review of the Motor Accident Injuries Act 2017 and some recent decisions relevant to practice in the Motor Accident Division of the Commission.

Last year saw a significant debate in the NSW Parliament about the state of the NSW workers compensation system. An amendment act was passed in 2025 and a second amendment act passed the Parliament in February 2026, both of which make some significant changes, especially with respect to psychiatric injury claims. I will be describing in this paper how the Commission will go about implementing these changes. I will have a few things to say about filings, which are substantially up in both the workers compensation and motor accidents divisions, and how the Commission is contending with this circumstance. Finally, I will have a few words to say about the importance of civility in our daily practice.

A CENTURY OF WORKERS COMPENSATION 1926–2026

The Workers’ Compensation Act 1926 (1926 Act) commenced on 1 July 1926. It was part of the Lang Government’s frenetic first term (1925–27) which also included acts introducing widows’ pensions, the 44-hour week and the Industrial Court.

The 1926 Act was controversial. If one reads the 1925–26 Hansard of the parliamentary debates, the high emotion of the proceedings is plainly evident. Not very different in fact to last year’s parliamentary proceedings! It is undoubtedly an area of the law which excites high passions.

But the 1926 Act did a number of things. It introduced compulsory employer insurance. It introduced a scheme of no-fault compensation and established the Workers Compensation Commission. These three pillars were controversial in 1926, but they were passed into law and remain as key features of the scheme to this day.

The drafter of the legislation was immediately appointed as the first head of jurisdiction. The first Chairman was also appointed as a District Court Judge. His name was Ralph Perdriau. He was supported by two lay members, one employer and one union representative. If ever there was a father or founder of a jurisdiction, it was. A Boer War veteran, he was the only judge for the first nine years of the Commission’s life, meaning all the early decisions were written by him. One cannot therefore underestimate his effect on the entire jurisprudence. He remained as Chairman until 1951, so for a quarter of the Commission’s existence. At his official farewell, the Attorney-General, the Hon. C. E. Martin remarked that his Honour’s decisions had been upheld on appeal at the rate of 75% and that his name would forever be associated with this jurisdiction. This latter remark indeed turned out to be prophetic. The system that he created endures until this day.

A giant of a figure in this area of the law.

One thing I hope to do during this centenary year is to make sure Judge Perdriau’s immense contribution to this area of the law and the establishment of the Commission is properly recognised.

The role of Chairman was interesting. As well as being a sitting judge, the Chairman had the responsibility for the economic health of the workers compensation fund. Indeed the Commission owned the fund, made the investment decisions and had the responsibility to supervise and license insurers. This situation remained until 1983, when the first iteration of the Workers Compensation Commission ended with the creation of the Compensation Court of NSW. The designation of Chairman was dispensed with and the head of jurisdiction became the Chief Judge, which in 1983 was Chief Judge Frank McGrath. All the responsibilities for the workers compensation operational fund transferred to the newly created State Compensation Board, later the WorkCover Authority of NSW, now the State Insurance Regulatory Authority.

The Compensation Court lasted 20 years until it was disbanded in 2003 and replaced by the second coming of the Workers Compensation Commission. The head was no longer a Chief Judge, rather the designation became that of President, which is still the title. Eight judges have led the jurisdiction during its 100-year existence.

The Workers Compensation Commission was then merged into the Personal Injury Commission on 1 March 2021. It is now the Workers Compensation Division of the Personal Injury Commission. So through this brief potted history you can follow the path from 1926 up to today.

Judge Ralph PerdriauJudge Ralph Perdriau

If one reads the law reports, the cases heard in the Commission’s various guises all reflect what was going on in the New South Wales economy at different times. In the early days, it was rural and railway workers and those building the Sydney Harbour Bridge. Later it was those injured working on the Snowy Mountains Scheme, in the mining industry or the great power stations before the RSI epidemic of the 1980s and 1990s. Latterly we have seen the explosion of cases of psychiatric injury and of course, the vaccine mandate cases falling out of the COVID-19 pandemic. The development of the modern New South Wales economy was in part enabled by the existence of workers compensation benefits as a safety net for the workers who were building out the state.

And of course, the history is littered with some larger-than-life characters.

A modest history of this fabulous century is being written and we are planning a ceremonial sitting and perhaps a dinner, all in the second half of the year. So keep an eye out in PIC News for information about these events.

ARTIFICIAL INTELLIGENCE

Much ink has been spilt on this subject both in legal speeches and journals and in the popular press. The advent of AI shapes as becoming one of the most disruptive forces ever to hit the practice of law and the conduct of our system of justice.

In particular, the Chief Justice of NSW has, in a number of headline speeches, outlined the issues and challenges with this new and rapidly evolving technology. The Supreme Court issued Practice Note 23 which commenced on 3 February 2025, together with a direction or guide to all NSW judicial officers on AI. The Practice Note was then swiftly picked up, adopted and endorsed by all other NSW Courts.

I would also note that in January 2026 the Law Society issued the “Solicitors Guide to Responsible Use of AI” which makes a number of references to the Conduct Rules, some of which I will refer to in this paper. The NSW Bar Association has also issued a guide for barristers.

In short, the rules governing AI in the context of legal practice and, for my purposes, litigation, is something that every legal practitioner must be fully aware of. Whether it is you or your opponent using AI in a case, you need to know what the guardrails are and how to follow them.

I am going to spend some time on the challenge of AI in this paper and what you as practitioners need to do.

The Commission reviewed Practice Note 23 and has adopted its contents, albeit adapted for our own operations. The major differences between the Commission and the Courts are that (a) the rules of evidence do not apply to Commission proceedings, and (b) the Commission conducts a different dispute resolution model, which in broad terms requires all evidence to be filed upfront in an application or reply. The Commission’s rules have been tailored to our particular situation but in terms of what they mandate, they are very similar to Practice Note 23.

Before I turn to the specifics of the Commission’s AI rules, it is necessary that I start from first principles. In my view, even absent Practice Note 23, the following conduct rules apply to the use of AI in the practice of the law.

  1. A solicitor’s duty to the court and the administration of justice is paramount and prevails over any other duty to the extent of any inconsistency.1
  2. Court is broadly defined in the Glossary to the Uniform Rules and includes tribunals that exercise judicial, quasi-judicial or administrative functions. It also includes mediation. These duties therefore cover all aspects of practice in the Commission.
  3. Uniform rule 4 sets out some fundamental ethical obligations and rule 5 describes the requisite standard of conduct – namely refraining from conduct that demonstrates you are not a fit and proper person, conduct that is prejudicial to or would likely diminish public confidence in the administration of justice, or conduct likely to bring the profession into disrepute.
  4. Rule 9 sets out the detailed requirements necessary to protect client confidential information.
  5. Rule 19 sets out at length what the solicitors’ duty to the court is. Rule 19 provides:
    • 19.1 - A solicitor must not deceive or knowingly or recklessly mislead the court.
    • 19.2 - A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.
    • 19.3 A solicitor will not have made a misleading statement to a court simply by failing to correct an error in a statement made to the court by the opponent or any other person.
    • 19.6 - A solicitor must, at the appropriate time in the hearing of the case if the court has not yet been informed of that matter, inform the court of—
      • 19.6.1 any binding authority,
      • 19.6.2 where there is no binding authority, any authority decided by an Australian appellate court, and
      • 19.6.3  any applicable legislation,

        known to the solicitor and which the solicitor has reasonable grounds to believe to be directly in point, against the client’s case.

While I have referenced the Uniform Rules as they apply to solicitors, the Barristers’ Uniform Rules, although tailored to a different branch of the legal profession, are to the same effect for the purposes of this paper.

Now let’s examine these Uniform Rules as they collide with AI, and the best way to do this is by looking at some examples.

Example 1 – A lay witness statement or affidavit. If you read AI generated documents, they can be very flowery or verbose. They can also make things up. They also may not accurately reflect the witness’s evidence. How does a statement produced by AI which might not accurately reflect the witness’s evidence comply with rules 3 or 19.1? The answer is that it does not. By filing an AI created statement, the practitioner is representing to the court that this is the witness’s evidence. Prima facie this is misleading the court as to the provenance of the statement.

Example 2 – An expert witness. Virtually every litigated case has expert evidence. We are all aware of the duties on experts from High Court cases such as Makita (Australia) Pty Ltd v Sprowles2 and Sydneywide Distributors Pty Ltd v Red Bull Australia Pty Ltd.3 In short, the opinion must be the expert’s opinion within his or her field of expertise, which is acknowledged as a recognised field of expertise. It must expose the basis of the opinion, the agreed or assumed facts and the path of reasoning taken by the expert to arrive at the opinion. A case theory is often based upon the opinion of a party’s expert. How are the rules, in particular 3 and 19.1, served by an expert report which is presented as constituting the expert’s opinion made in compliance with the principles I have just summarised if it is the product of AI? How is this serving a client’s interests if the case is pursued based on an expert’s opinion which does not meet these principles, or if the expert has entered the client’s confidential instructions on an open AI platform thus breaching client confidentiality?

Example 3 – Written arguments or submissions. We all know how pressurised litigation can be, trying to synthesise large amounts of evidence into a coherent set of written arguments often when you are under time pressure. AI can be a powerful tool in assisting with this task, BUT, have all the transcript or evidence references been checked? Are the case citations real and do they actually represent the principle which has been stated? Does it comply with one’s overall duty to the court? Namely, have you confirmed the position on citations and principles as required by rule 19.6? How is rule 19.6 complied with if cases being cited do not exist or the principle relied on is not relevant or applicable to the circumstance in the case?

Even without Practice Note 23 and the Commission’s AI rules, the use of AI in litigated matters is highly problematic from the point of view of compliance with the Uniform Rules. Presenting evidence which is not the real evidence of the witness, either lay or expert, breaches the Rules as it misleads the court as to the provenance of that evidence. And in my view, it does the client a disservice as their case may be based upon a flawed presentation of the evidence.

There is no doubt that AI will have some beneficial role in future legal practice. I think for practice management it could be a great benefit, and for drafting large complex contracts or assisting in answering Discovery Orders for example. But, when it comes to the production of evidence for litigation, the role is undoubtedly a fraught one for practitioners. Sooner or later somebody is going to be caught using AI in litigation and there will be trouble – especially if a client’s case is compromised. If AI infected evidence is given no weight, that will be a problem for your client’s case.

In my view if you are protecting yourself by following the Uniform Rules, the Commission’s rules and procedural directions on AI, you are protecting your client.

I now turn the Commission’s specific rules dealing with AI which commenced 1 January 2026. They are:

  1. Rule 33A – lay evidence
  2. Rule 33B – expert evidence
  3. Rule 133B – prohibition on using AI in hearings
  4. Rule 133C – written submissions
  5. Procedural Direction PIC 4 – Expert Witness Evidence – paragraph [10]
  6. Procedural Direction PIC 13 – Use of Generative AI

Individually and collectively, these rules and procedural directions mandate the approach to AI in the Commission. I have told the Commission members that it is my expectation that these will be strictly enforced.

In detail, these provisions provide as follows:

“33A Use of generative artificial intelligence in written statements

(1)     Generative artificial intelligence must not be used to generate the content of a written statement, including by altering, embellishing, strengthening, diluting or rephrasing a person’s evidence.

(2)     Each written statement must include a statement that generative artificial intelligence was not used to generate the content of the written statement.

(3)    Generative artificial intelligence must not be used to generate the content of an annexure or exhibit to a written statement unless the annexure or exhibit includes a statement that generative artificial intelligence was used.

(4)    In this rule—

written statement means a written statement of evidence on which a party to applicable proceedings proposes to rely, but does not include an expert’s report to which rule 33B applies.”

Comment – As is plain, rule 33A is a blanket ban on AI being used to produce a witnesses evidence.

“33B      Use of generative artificial intelligence in certain expert’s reports

(1)     This rule applies to an expert’s report for applicable proceedings, including an expert’s report attached to a pre-filing statement for applicable proceedings.

(2)     Generative artificial intelligence must not be used to generate the content of the expert’s report unless—

(a)     the report includes a statement that—

(i)      generative artificial intelligence was used to generate the content of the report, and

(ii)     the use of generative artificial intelligence complied with any procedural direction about the use of generative artificial intelligence, and

(b)     the report identifies the following—

(i)      the part of the report generated using generative artificial intelligence,

(ii)     the name and version of the generative artificial intelligence program used,

(iii)    the date of the use, and

(c)     an attachment to the report identifies the prompts, script or data provided to the generative artificial intelligence program.

(3)    If generative artificial intelligence was not used to generate the content of the expert’s report, the report must include a statement that generative artificial intelligence was not used to generate the content of the report.”

Comment – Once an expert has used AI in the production of an opinion, I expect processes, probably similar to a voir dire in court proceedings, to be undertaken in order to ascertain or confirm that the opinion is indeed that of the expert.

“133B Artificial intelligence use in proceedings

(1)     A party must not—

(a)     join artificial intelligence technology to applicable proceedings, or

(b)     otherwise use artificial intelligence technology during the proceedings.

(2)     In this rule—

artificial intelligence technology means an artificial intelligence tool, application or program.”

“133C Written submissions

If generative artificial intelligence is used to generate the content of written submissions of a party to applicable proceedings, the submissions must state that all citations, legal authorities and case law referred to in the submissions exist and are accurate and relevant to the proceedings.”

“Procedural Direction PIC4 – Expert Witness Evidence

10.    An expert’s written report should include:

(a)     the name and address of the expert;

(b)     an acknowledgement that the expert has read this Procedural Direction and Procedural Direction PIC13 – Use of Generative Artificial Intelligence and agrees to be bound by them;

(c)     details of the expert’s qualifications to prepare the report;

(d)     if Generative AI (Gen AI) has been used to prepare the content of the report, a disclosure required by Procedural Direction PIC 13 - Use of Generative Artificial Intelligence which addresses:

    1. what part(s) of it was prepared using Gen AI or drawing upon Gen AI produced material;
    2. the Gen AI program (and version) that was used, and the date it was used;
    3. an annexure identifying how the Gen AI tool or program was used (for example any prompts used, any default values used, and any variables set), and
    4. if the use of Gen AI is regulated or addressed by any relevant code of practice or principles that bind or apply to the expert, identify that fact and annex to the report a copy of the relevant code(s) or principle(s).

(e)     if Gen AI has not been used in preparation of the report, a statement in the report that it has not been used;

(f)     the facts, matters and assumptions on which the opinions in the report are based;

(g)     the literature or other material used in making the report. Care should be taken to refer to the appropriate guidelines for medical assessments;

(h)     reasons for each opinion expressed. Where several opinions are provided in the report, the expert should summarise them;

(i)      any reference to examinations, tests or investigations on which the expert relies should include, to the extent possible, the identity and qualifications of the person(s) who carried them out, findings and dates of any investigations;

(j)      if an expert’s opinion is not fully researched because the expert considers that insufficient information is available, a statement that the opinion is no more than provisional. Where an expert witness who has prepared a report believes that it may be incomplete or inaccurate without some qualification, that qualification must be stated in the report;

(k)     if applicable, a clear statement identifying that a particular question or issue falls outside his or her field of expertise, and

(l)      in the case of a report that is lengthy or complex, a brief summary of the report (to be located at the beginning of the report).”

“Procedural Direction PIC13 – Use of Generative Artificial Intelligence

Introduction

1. This Procedural Direction concerns the use of Generative Artificial Intelligence and Artificial Intelligence tools, technology or programs in Commission proceedings. This Procedural Direction adopts, to the extent practicably possible, the Use of Generative Artificial Intelligence (Gen AI) Practice Note SC Gen 23 of the Supreme Court of New South Wales for consistency in approach and to maintain public confidence in the integrity of decision making by the Commission.

Applicable legislation and rules

2. Parties should be familiar with the following provisions:

(a)     sections 3 and 42 of the Personal Injury Commission Act 2020, and

(b)     rules 33A, 33B, 133B and 133C of the Personal Injury Commission Rules 2021 (PIC Rules).

Preliminary

3. Gen AI is a form of artificial intelligence that is capable of creating new content, including text, images or sounds, based on patterns and data acquired from a body of training material. That training material may include information obtained from ‘scraping’ publicly and privately available text sources to produce large language models.

4. Gen AI may take the form of generic large language model programs such as Chat-GPT, DeepSeek, Claude, Grok, Llama, Google Bard, Co-Pilot, AI Media or Read AI or more bespoke programs specifically directed to lawyers such as Lexis Advance AI, ChatGPT for Law, Westlaw Precision, AI Lawyer, Luminance and CoCounsel Core. These examples are not intended to be exhaustive. Such programs may use ‘chatbots’ and prompt requests and refined requests from the users of such programs.

5. This Procedural Direction applies to both closed-source and open-source large language model Gen AI.

6. Gen AI is capable of being used to assist legal practitioners and unrepresented parties with various tasks, including drafting documents and summarising information. This Procedural Direction is directed to the circumstances where such use is acceptable.

7. For the avoidance of doubt, for the purposes of this Procedural Direction, Gen AI does not include technology or functionality which merely corrects spelling or grammar, assists with formatting and otherwise does not generate substantive content, and nothing in this Procedural Direction is intended to preclude or apply to the use of:

(a)     search engines such as Google which produce a list of websites that match search criteria but which do not produce an apparently personalised textual answer in response to a specific prompt;

(b)     dedicated legal research software which uses AI or machine learning to conduct searches across material comprising legislation or subordinate legislation, judgments of courts or tribunals, and/or books or articles written for a legal audience.

8. Legal practitioners and unrepresented parties should be aware of limits, risks and shortcomings of any particular Gen AI program which they use. These may include:

(a)     the scope for ‘hallucinations’, that is, the generation of apparently plausible, authoritative and coherent responses but which are in fact inaccurate or fictitious. Examples include false citations and fabricated legislative, case or other secondary references;

(b)     the dependence of Gen AI on the quality and reach of underlying data sets, including the possibility that that underlying database(s) may include misinformation or selective or incomplete data, data that is not up to date or data that is not relevant in New South Wales or Australia;

(c)     the scope for biased or inaccurate output including by reason of the nature or limitations of the underlying data sets;

(d)     the fact that any search requests via a chatbot or interactions or prompts within a Gen AI program may, unless disabled, be automatically added to the large language model database, remembered and used to respond to queries from other users;

(e)      the lack of adequate safeguards, to preserve the confidentiality, privacy or legal professional privilege that may attach to information or otherwise sensitive material submitted to a public Gen AI chatbot; and

(f)     the fact that data contained in a Gen AI data set or database may have been obtained in breach of copyright.

9. Legal practitioners and unrepresented parties should also be aware that data entered into Gen AI programs may be used to train the large language model, potentially making confidential information available to others.

General prohibition

10. Information subject to de-identification or redaction directions of the Commission, the implied (Harman) undertaking not to use information produced under compulsion for any purposes extraneous to the proceedings, material produced under a Direction for Production or a Notice to Produce, or any material that is subject of a statutory prohibition upon publication must not be entered into any Gen AI program unless the legal practitioner or person responsible for the conduct of the proceeding is satisfied that the information:

(a)     will remain within the controlled environment of the technological platform being used and that the platform is the subject of confidentiality restrictions on the supplier of the relevant technology or functionality to ensure that the data is not made publicly available and is not used to train any large language models;

(b)     is to be used only in connection with that proceeding (unless otherwise required or permitted by law to be disclosed or required to be reviewed by a law enforcement agency for policy purposes);

(c)     is not used to train the Gen AI program and/or any large language model.

11. Subject to paragraph 10 and for the avoidance of doubt, a Gen AI program may be used by parties for any of the following purposes:

(a)     the generation of chronologies, indexes and schedules of earnings or schedules of damages;

(b)     the summarising or review of documents and transcripts;

(c)     the preparation of written submissions or summaries of argument, either required by the enabling legislation (such as grounds of appeal), the PIC Rules, or at the direction of the Commission or decision-maker (subject to paragraphs 21 to 23 below).

Written statements, including witness statements or other evidentiary material

12. In accordance with rule 33A of the PIC Rules, Gen AI must not be used in generating the content of written statements, or other material that is intended to reflect a witness’s or other person’s evidence and/or opinion (such as the claimant or injured worker), or other material tendered in evidence or used in cross examination. This paragraph does not prohibit the use of Gen AI for work that is merely preparatory to the drafting of the statement or other document setting out the witness’s or other person’s evidence and/or opinion.

13. Statements should contain and reflect a person’s own knowledge, not AI-generated content.

14. Gen AI must not be used for the purpose of altering, embellishing, strengthening or diluting or otherwise rephrasing evidence when expressed in written form.

15. All written statements must contain a disclosure that Gen AI was not used in generating:

(a)     its content (including by way of altering, embellishing, strengthening or diluting or rephrasing evidence); or

(b)     the content of any annexure or exhibit to the statement, subject to paragraph [16].

16. For the avoidance of doubt, the deponent of the written statement is not required to make the disclosure referred to in paragraph [15(b)] where the annexure or exhibit was not prepared or created for the purposes of the proceedings. Alternatively, where the deponent is aware that Gen AI was used in the preparation or generation of any annexure or exhibit to a statement, this must be disclosed. This disclosure must identify which annexure or exhibit has been prepared or generated by Gen AI, the program used, how it has been used, and when.

17. Legal practitioners must ensure that their clients, and/or investigators who are obtaining and/or preparing statements for the purposes of proceedings are aware of these requirements of disclosure, and it is suggested that such disclosure be stated in a paragraph of the statement, as follows:

‘Generative artificial intelligence was not used to generate

(a)     this statement.

(b)     any annexure/exhibit to this statement, [where applicable: other than annexure/exhibit marked [insert]]’.

Written submissions and arguments

18. In accordance with r 133C of the PIC Rules, Where Gen AI has been used in the preparation of written submissions or arguments, whether the written submissions or arguments are a requirement of enabling legislation (such as written grounds of appeal under s 352 of the Workplace Injury Management and Workers Compensation Act 1998), the PIC Rules, or a direction of the Commission and its decision-makers, the author must verify in the body of the submissions that all citations, legal and academic authority and case law and legislative references:

(a)     exist,

(b)     are accurate, and

(c)     are relevant to the proceedings,

and make similar verification in relation to references to evidence in written submissions or arguments to evidence.

19. Such verification must not be carried out by using a Gen AI tool or program.

20. Any use of Gen AI to prepare written submissions or argument does not qualify or absolve the author(s) of any professional or ethical obligations to the Commission or the administration of justice.

Expert reports

21. Expert reports are required to state the opinion or opinions of the expert, and his or her reasoning process.

22. In accordance with rule 33B of the PIC Rules, Gen AI must not be used to draft or prepare the content of an expert report (or any part of an expert report) without it being disclosed in the report.

23. If an expert witness uses Gen AI for any purpose in preparing an expert report which may be used for proceedings in the Commission, the expert witness must:

(a)     disclose in the report what part(s) of it was prepared using Gen AI, the name and version of the Gen AI program and date it was used;

(b)     keep records and identify in an annexure to the report a record of how the Gen AI tool or program was used (for example any prompts used, any default values used, and any variables set); and

(c)     if the use of Gen AI is regulated or addressed by any relevant code of practice or principles that bind or apply to the expert, such as this Procedural Direction, Procedural Direction PIC 4 – Expert Witness Evidence, and the relevant PIC Rules, identify that fact and annex to the report a copy of the relevant code(s) or principle(s).

24. Examples of the above use of Gen AI may include experts using software that uses Gen AI to analyse sound, graphic or video data, or to interrogate very large data sets, or to conduct statistical analysis.

25. In an effort to adhere with the Gen AI Practice Notes of the District Court and Supreme Court of New South Wales where work injury damages proceedings are heard, expert reports which are attached to a pre-filing statement within the meaning of section 315 of the Workplace Injury Management and Workers Compensation Act 1998 and which are filed in the Commission in proceedings (such as Applications to Strike Out a Pre-Filing Statement, Applications to Cure a Defective Pre-Filing Statement, and Applications for Mediation) are subject to the requirements set out above.

26. Legal practitioners and unrepresented parties must draw the requirements of this Procedural Direction, Procedural Direction PIC 4 – Expert Witness Evidence, and the PIC Rules to the attention of experts when instructing them. This includes, but is not limited to, informing experts such as independent medical examiners or treating medical specialists and allied health professionals who are engaged to prepare a report which may be used in proceedings in the Commission.

Prohibited use of AI during Commission proceedings

27. In accordance with rule 133B of the PIC Rules, parties must not use or join any artificial intelligence technology, tools, applications or programs to any proceedings before the Commission, held either in-person or virtually. The technology subject of this restriction is not limited to Gen AI, but includes AI assistant technology, such as speech-to-text and transcription applications; virtual courtroom and hybrid hearing management tools; AI-powered translation and language accessibility tools; AI-driven sentiment and behavioural analysis tools, and AI-powered legal chatbots and assistants.

28. Legal practitioners must be aware of the limits, risks and shortcomings of these tools, including those outlined at [8] above. These tools pose security risks to the confidentiality of Commission proceedings and information, particularly where other parties or attendees are unaware of their use. Any artificial intelligence function must be disabled by the parties at the outset of an audio, audio-visual or hybrid listing.

29. Use of these tools may also result in a breach of the Court Security Act 2005 which prohibits any kind of external recording of Commission proceedings, including that provided for in AI assistance technology.

Review

30. Due to the rapidly developing nature of AI, this Procedural Direction will be periodically reviewed.”

A few things about these new rules.

I have instructed the members that I expect them to be strictly enforced. You should expect to be questioned about compliance.

If the various confirmations required about AI use or non-use are not given, they will be asked to be given on transcript for the specific pieces of evidence. If they cannot be given, the member may require, for example, the applicant or claimant to give oral evidence, which guarantees the provenance of the evidence. Or worse still for the client, the evidence without the required confirmation is afforded little or no weight.

Members will also be carefully scrutinising lay and expert evidence for the presence of AI generated passages which may not have been disclosed. My working assumption is that oral evidence may be frequently required to confirm or otherwise the presence of AI.

A new aspect of the Rules is 133B. This rule prohibits a party joining the hearing with an AI bot. This bot can have the function of transcribing the evidence (for example). This function breaches the Court Security Act 2005 which applies to the Commission. Or it may suggest questions that might be asked in the proceedings. This is prohibited under the rule. If such an AI bot is joined to the hearing, the member will cease the hearing until the bot is disengaged.

Further as you would be aware, the Harman Principle, often called the implied undertaking, applies to Commission proceedings. If you enter material obtained in Commission proceedings on an open AI system, the Harman principle is breached and probably Uniform rule 9 about protecting client confidentiality (depending on the circumstance). Further, use of an open AI platform may breach orders of the Commission regarding non-publication, redaction or de-identification.

If you use AI to draft submissions, YOU MUST CHECK THEM! That is, you must check the citations and case names (do they actually exist?) and the principles they are said to stand for. Are references to the evidence accurate? Have you confirmed it by reference to the transcript page or exhibit number? See rule 133C and PD 13 at paragraph [18]. Be aware it is becoming the invariable practice of judicial and administrative decision-makers (and their associates) to check all case names cited to confirm their existence. I can guarantee that the first NSW lawyer who puts an imaginary case in a submission will in all likelihood become instantly famous or infamous. This conduct would probably engage Uniform rules 1 and 19. Don’t be that lawyer!

I would also remark that a party that loses a case and who subsequently suspects that the successful litigant used undisclosed AI infected evidence would probably not be too pleased with that state of affairs. In the Commission, such a party can appeal or apply for a reconsideration.

In summary, become very familiar with and follow the rules. There are all sorts of ethical traps around the use of AI which could easily trip up unwary practitioners. Do not be tempted to take an AI shortcut in your work.

On 21 November 2024, the Chief Justice of NSW issued his “Guidelines for NSW Judges in Respect of Use of Generative AI”, in short, prohibiting the use of Gen AI in producing reasons for judgment or in the assessment of evidence. I have directed all of the Commission’s decision-makers that they too are bound by this document. This document also advises judges to be astute in identifying undisclosed AI use in court documents, to require disclosure about the use of AI, and to require assurances that documents have had their accuracy verified.

Even though the Commission’s AI rules only commenced on 1 January 2026, it is evident from the Uniform Rules I have set out above, practitioners have existing professional obligations to the Court and their client with respect to the evidence led in proceedings. Legal practitioners and unrepresented parties must draw the requirements of the rules and relevant procedural directions to the attention of experts when instructing them.

If your opponent challenges evidence as being AI infected, you will need to be able to meet that challenge, even if, for example, the expert report pre-dated 1 January 2026.

Undisclosed and unverified use of AI in litigation presents significant issues affecting the administration of justice. It is all of our duty to see to it that we do not allow this to happen.

I would conclude this section of the paper with this remark. Disputes in the Commission are between real people – an injured citizen who has been hurt at work or on the road and an insurer or employer.

Human problems requiring a human solution.

Whilst technology can assist the process, it cannot take it over.

CHANGES TO WORKERS COMPENSATION LEGISLATION

Two acts of Parliament have been passed making some significant changes to the workers compensation legislation, the most recent on 4 February 2026.4

As you are probably aware, significant changes have been made to cases of psychiatric injury at work. In particular, if a worker has suffered a primary psychological injury, there is now a requirement that the Industrial Relations Commission (IRC) make a finding that conduct is relevant conduct before any dispute may be referred to the Commission for determination.5 The IRC has exclusive jurisdiction to determine this question of what is or is not relevant conduct.6

I want to make some brief remarks about some new aspects of practice in the Commission arising from the amendments and then talk about how the amendments will be brought into operation.

Section 58A of the Personal Injury Commission Act 2020 (2020 Act)

This is a new provision in the 2020 Act. Whilst the Personal Injury Commission Rules 2021 have always enabled the making of orders de-identifying or redacting publishable decisions,7 the new s 58A provides another level in terms of orders restricting publication.8

Section 58 has always been in the 2020 Act and it mandates the publication of decisions. This is consistent with the objects of the 2020 Act to promote transparency, to ensure decisions are fair, consistent and of high quality as well as to promote public confidence in the Commission’s decision making.9 All of this means that under s 58 of the 2020 Act, the presumption is in favour of publication. Section 58 was important because in the pre‑Commission landscape, motor accident cases were dealt with in a Government department which was subject to privacy laws, meaning very few decisions could be published, which was wholly unsatisfactory for that area of the law. Section 58 was aimed at remedying this situation when that work came into a tribunal setting.

The new s 58A is an exception to s 58.

It enables the President to make a “relevant order”, of the type specified in s 58A(3), including in the nature of a non-publication order.

In short, one will have to rebut the presumption in favour of publication to obtain a relevant order.

If you are making an application for an order under s 58A, simply asking for a non‑publication order will be insufficient. To a certain extent in every case, confidential or potentially embarrassing matters may be in the evidence. Merely stating this without more is unlikely to see the discretion under s 58A exercised.

You must specify why, because of the nature of the confidential evidence, or any other matter, an order should be made. For example, the fact that non-publication orders have been made in related proceedings in the Local or District Courts; or publication could cause harm to a party or a witness, or publication could identify a minor.

I would also need to know the attitude of your opponent to the order sought, so that should be part of the information supporting the application.

In some cases the appropriate form of relief may be under r 132 (de-identification/ redaction) rather than s 58A, so consideration will need to be given as to which avenue provides the appropriate form of order.

Rule 132 orders can be made by the member hearing the matter, however only the President can make a relevant order under s 58A.

The order can be made on the motion of the President or by application by a party to the proceedings. If a member thinks that an order should be considered, the member will raise it with the parties and suggest that the application be made to the President. This is best done well before the hearing starts or the decision is issued if the order(s) are to have maximum beneficial effect.

My thinking is that we make this a simple process, namely that a written application for a relevant order under s 58A is made to the President. We will provide information in the near future about how a party can make this application.

I have attached a copy of s 58A to this paper for your information.10 This provision should commence operation in the near future.

Tutors

The 2020 Act has been amended by the addition of a new s 43A, which enables the Commission to appoint a tutor for a person under a legal incapacity.11

This is a terrific reform, it means that instead of parties having to approach NCAT to have a guardian appointed it can be done in the proceedings here in the Commission.

In the near future the Commission will be publishing the required documents and an outline of the process to follow to have a tutor appointed in Commission proceedings. The aim is to make the process of appointment as simple as possible. In short, the tutor will have to confirm their consent to take on the role and that they have no interest adverse to the person who is under an incapacity. The new s 43A(5) grants the Commission power to make rules to govern the conduct of tutors and for their removal. In short, a supervisory power over tutors.

Settlement of death cases

For many years, parties to applications for death benefits under workers compensation have been unable to compromise and settle disputed cases, meaning the dependants either won or lost the application.

This is no longer the case due to the enactment of the new Division 1A of the Workers Compensation Act 1987 (1987 Act).12

Liability must be in dispute.

Under s 32AC of the 1987 Act, the Commission must not entertain an agreement to settle the death claim unless the Commission is satisfied the insurer had a reasonable basis to dispute liability, the amount is reasonable in the circumstances and each dependant is a party to the agreement.

Under s 32AC(5), in assessing the reasonable basis for the insurer to dispute the claim one must have regard to the facts provable on the material available to the Commission and a reasonably arguably view of the law.

The Commission will require parties to file the same documents they currently file in a disputed death claim, namely a Form 2D and a Reply; no change from the current process. This will enable the member to assess the merits of the dispute as required by s 32AC.

This will enable the Commission, in the event that an agreement is reached to resolve the dispute, to exercise its functions under s 32AC(5) of the 1987 Act.

We will be producing a document for parties to file seeking the approval of the agreement they have reached. We are contemplating the content of any new rules which may be needed to support this process.

There will be an approval hearing before a member where oral evidence and submissions are received and the member then issues a decision (either oral or written) approving the settlement or not. There will thus be a degree of formality around settlements of these cases, which is appropriate given the sums involved and the importance of the matter to the dependants.

Commutations

For many years the ability for workers to commute their rights has been very circumscribed. SIRA supervised it and very few were ever done. This was no accident but a deliberate policy choice made in the early 2000s when the Workers Compensation Commission was re-established. The class of case to be commuted will be prescribed by regulations which at the present time do not exist. The requirements for a commutation also must be prescribed by regulations which also as yet do not exist.

Notwithstanding the lack of regulations at present, I provide the following thoughts. The Commission intends where possible, on dealing with applications to commute benefits on the papers. That is, the Commission will develop a form of commutation agreement which must be lodged with the Commission. The rules and/or procedural directions will specify the approved form of the agreement and what documents need to be attached.

Section 87EB says that the rules and procedural directions may provide for the procedure for a commutation – I envisage the rules will allow for the approval to be done on the papers OR, at the member’s discretion, in a hearing. I would envisage that if an approval is going to be refused, the member ought give the parties an indication of why this is the case, thus enabling further negotiation and/or amendment of the agreement.

My working assumption is that once the regulations are available, claimants and insurers will start negotiating commutation agreements, ready to lodge on commencement. We could therefore see a large number of such applications being filed. In the coming weeks I will be conferring with the profession and the insurers (including self and specialised) about how that circumstance will be managed by the Commission in an environment where filings are already well up.

RECENT MOTOR ACCIDENT CASES OF NOTE

There is a growing body of jurisprudence dealing with key provisions in the Motor Accidents Injury Act 2017 (MAI Act). Practitioners in the jurisdiction should be aware of significant cases handed down by the courts. Decisions in two specific areas of disputation are worthy of comment. Those arenas are:

  1. Disputes about whether for the purposes of ss 3.11(1)(a) and 3.28(1)(a) of the MAI Act(statutory fault provisions) a motor accident was caused wholly or mostly by the fault of a claimant.
  2. The function of medical assessors and review panels in medical disputes.
Statutory fault provisions

The entitlement to statutory benefits under the MAI Act is governed by Part 3 of the Act. In AAI Limited t/as GIO v Evic,13 Mitchelmore J said this at [55]:

“It is apparent from this overview of Part 3 that the payment of statutory benefits for which the Part makes provision does not depend on establishing the fault of any person in causing the death or injury. The injured person does not need to prove anyone was at fault for the motor accident, or for his or her injury, in order to obtain benefits under Part 3. The general entitlement in s 3.1 rests on death or injury resulting from a motor accident as defined, subject to the respective limitations and restrictions in Divs 3.3 and 3.4 and the general limitations and restrictions in Div 3.5. Save for s 3.2 of the Act, which makes provision as to how the relevant insurer is to be determined, neither the entitlement nor the limitations and restrictions, draw any distinction by reference to the number of motor vehicles involved in a motor accident resulting in (relevantly) injury to the person making the claim.”

The statutory fault provisions are found in ss 3.11(1)(a) and 3.28(1)(a). Those provisions operate to cease the payment of statutory benefits to a person under Divs 3.3 and 3.4, respectively, if one of the two conditions in subs (1) is satisfied. Relevantly, s 3.11 is in the following terms:

“3.11 Cessation of weekly payments after 52 weeks to injured persons most at fault or with threshold injuries

(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 52 weeks after the motor accident concerned if—

  • (a)     the motor accident was caused wholly or mostly by the fault of the person, or
  • (b)     …

(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 52 weeks for contributory negligence of the person not mostly at fault.”

Section 3.28 is formulated in equivalent terms to s 3.11 and applies to treatment and care expenses.

Importantly, Mitchelmore J said this at [56]–[57]:

“… The focus of the condition, and the relevant enquiry, in paragraph (a) is whether the motor accident, as defined in s 1.4, was caused ‘wholly or mostly by the fault of the person’, being the injured person who is in receipt of the relevant benefits. The qualifiers ‘wholly or mostly’ inform each other and are intended to address the same mischief, namely, contributory negligence. That is made clear in subs (2) of both s 3.11 and 3.28, which sets out when a motor accident is caused ‘mostly by the fault of a person’, namely, ‘if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%’.

Considered in the particular statutory context for which Part 3 makes provision, ss 3.11 and 3.28 are directed at the extent to which the injured person’s failure to take reasonable care contributed to the motor accident. The sections (and s 3.36) use the word ‘fault’ accompanied by a qualifying phrase (‘wholly or mostly’) which clearly invokes contributory negligence. That is confirmed by the express reference, in subs (2), both to contributory negligence and s 3.38. Consistently with the balance of Part 3, the provisions are concerned with contributory negligence not for the injury, but for the motor accident, in a manner that accommodates all types of motor accidents, including single vehicle accidents where the injured person is the owner driver.” (emphasis added)

Other key holdings in Evic were:

  1. The words “wholly or mostly” in ss 3.11(1)(a) and 3.28(1)(a) do not require comparison of the acts of at least two parties. So construed, the concept of contributory negligence could apply to single vehicle accidents (at [67]).
  2. The inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence (at [69]).
  3. Axiak v Ingram14 provided an example of how contributory negligence can be applied in the absence of a tortious defendant as follows:

“… the concept of ‘contributory negligence’ … has to be applied in a different manner to the usual comparative analysis of responsibility undertaken in personal injuries cases. This can be done consistently with the objectives of the legislation by inquiring how far the plaintiff has departed from the standard of care he or she is required to observe in the interests of his or her own safety. The reduction …. by reason of contributory negligence will therefore be determined by assessing the extent to which the plaintiff departed from that standard.”

Mitchelmore J’s decision in Evic is now the leading authority with respect to ss 3.11(1)(a) and 3.28(1)(a). The decision is not limited in its application to “single vehicle accidents”. As can be seen, her Honour also addressed the operation of the provisions more generally.

Parties in proceedings before the Commission should be familiar with this decision.

Medical disputes

There have been a number of significant Court of Appeal decisions delivered in the last 12 months that address the role of decision-makers in medical disputes. These decisions largely restate a number of important considerations that arise in proceedings of this type. Parties must be aware of the decisions and should not be making submissions contrary to them.

It is first helpful to refer to the leading authority from the High Court in this area of law, Wingfoot Australia Partners Pty Ltd v Kocak.15 Time and again the Court of Appeal has referred to Wingfoot in its reasons, including the following passage:

“47.  The function of a Medical Panel is to form and to give its own opinion on the medical question referred for its opinion. In performing that function, the Medical Panel is doubtless obliged to observe procedural fairness, so as to give an opportunity for parties to the underlying question or matter who will be affected by the opinion to supply the Medical Panel with material which may be relevant to the formation of the opinion and to make submissions to the Medical Panel on the basis of that material. The material supplied may include the opinions of other medical practitioners, and submissions to the Medical Panel may seek to persuade the Medical Panel to adopt reasoning or conclusions expressed in those opinions. The Medical Panel may choose in a particular case to place weight on a medical opinion supplied to it in forming and giving its own opinion. It goes too far, however, to conceive of the function of the Panel as being either to decide a dispute or to make up its mind by reference to competing contentions or competing medical opinions. The function of a Medical Panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.” (emphasis added)

In Allianz Australia Insurance Limited trading as Allianz v Susak16 Adamson JA (Payne and Stern JJA agreeing) addressed the role of a medical review panel as follows:

“78.  The Act provides for a medical dispute such as the one which arose in the present case to be determined by way of an assessment by a medical assessor or, on review, a review panel. A review panel is largely comprised of medical practitioners: its function is neither arbitral nor adjudicative; its role is neither to choose between competing arguments nor opine on other opinions on medical questions. Nor is its role to test the credibility of a claimant which it has decided, as part of its functions, to re-examine (following an initial examination by a medical assessor). It is obliged to come to its own opinion and explain its actual path of reasoning in its statement of reasons: Wingfoot at [47].” (emphasis added)

In Allianz Australia Insurance Limited v Yangzom17 Stern JA (Leeming and Kirk JJA agreeing) dealt with the extent of a medical assessor’s obligation to address inconsistencies. Her Honour wrote:

“42. The primary judge found that the medical assessment certificate did not suggest that the inconsistencies that the medical assessor observed had been drawn to Ms Yangzom’s attention: J[82]. In context, this seems to be a reference both to the inconsistent movements the medical assessor observed and to the inconsistencies he identified between his findings and those of other doctors over time. Her Honour appears to have characterised this as a failure to comply with cl 6.41 of the Guidelines which provides that inconsistencies between a medical assessor’s clinical findings and information obtained through medical records and/or observations of non-clinical activities must be brought to the injured person’s attention.

43.    I disagree. I would infer from the fact that the medical assessor recorded Ms Yangzom’s explanation for the identified ‘inconsistent movement at multiple body regions’ that this was drawn to her attention. As to the differences between the medical assessor’s findings and those of Dr Conrad in April 2021 and Dr Bodel in June 2022, I would not regard these as inconsistencies which had to be drawn to Ms Yangzom’s attention at a medicalassessment in November 2023, approximately 17 months after the latter of these two reports. Differences in findings could readily be explicable on the basis of a change in presentation over time. To the extent that this was a matter that the primary judge relied upon in support of her finding of jurisdictional error or error of law on the face of the record, I would thus uphold ground 1(e) of the notice of appeal.” (emphasis added)

Finally, in Allianz Australia Insurance Limited v Bell18 Price AJA (Payne and Ball JJA agreeing) said this about the role of a medical review panel:

“89. The Review Panel was not required to decide a dispute or make up its mind by reference to the competing contentions or opinions. As was recently explained by Adamson JA in Allianz Australia Insurance Limited t/as Allianz v Susak [2025] NSWCA91 at [78] …

90.    The obligation to accord procedural fairness by the Review Panel extended to putting to Mr Bell his concerns about the man being ‘a member of the motorcycle gang’, which was a critical issue and providing him with an opportunity to respond: Kioa v West (1985) 159 CLR 550 at 587 (Mason J); [1985] HCA 81 (‘Kioa’); Frost [Frost v Kourouche (2014) 86 NSWLR 214; [2014] NSWCA 39] at [32], [35]; Amos [AAI Limited t/as GIO v Amos [2024] NSWCA 65; (2024)107 MVR 210] at [55]. However, the Review Panel was not obliged to put to Mr Bell the various histories that he had given about his symptoms. It is important to emphasise that the Review Panel is not a court and ‘does not resolve justiciable controversies constituted by the parties competing claims’: Insurance Australia Group Ltd t/as NRMA Insurance v Keen [2021] NSWCA 287; (2021) 399 ALR 765 at [39] (Leeming JA, Basten JA and Simpson AJA agreeing). The Review Panel was not required to interrogate Mr Bell to ascertain whether he was dishonestly denying any concerns about motorcycle gangs, nor was it required to ask him further questions with the view of determining which version of events was to be accepted: Amos at [61]; Susak at [78].

91.    In my view, the primary judge did not err in rejecting Allianz’s complaint of a denial of procedural fairness …”

And later

“134. … the Review Panel was neither required to choose between the competing arguments of the parties nor explain how it resolved the inconsistencies in Mr Bell’s reporting in its reasons. The Review Panel was obliged to meet the standard required as expressed by the High Court in Wingfoot at [55], to ‘explain the actual path of reasoning in sufficient detail to enable a court to see whether the opinion does or does not involve any error of law’.

…

145. … The Review Panel is not a court and no part of its function was to adjudicate the dispute by determining the scope of the motor accident. The Review Panel’s role was to determine a ‘quintessentially factual issue’ being Mr Bell’s assessment of WPI: Keen at [40].”

With respect to inconsistencies, his Honor said this at [111]:

“There may be some cases where cl 6.41 applies to a clinical assessment of a psychological injury, however, there is nothing in the Motor Accident Guidelines which supports an extension of the obligation under cl 6.41 to an inconsistency in a reporting history that has no relevance to the clinical assessment. The inconsistency in Mr Bell’s reporting did not play any part in the clinical assessment of PTSD and Major Depressive Disorder. The inconsistency in reporting was solely relevant to the issue of causation. I do not detect any error in the primary judge’s construction of cl 6.41.”

Key points that emerge from these decisions are as follows:

  1. The function of a medical panel is neither arbitral nor adjudicative: it is neither to choose between competing arguments, nor to opine on the correctness of other opinions on that medical question. The function is in every case to form and to give its own opinion on the medical question referred to it by applying its own medical experience and its own medical expertise.
  2. It is not the role of a medical panel (or medical assessor) to test the credibility of a claimant.
  3. A review panel is not obliged to put to a claimant various histories they had given about their symptoms.
  4. A review panel is not a court and “does not resolve justiciable controversies constituted by the parties competing claims”.

Submissions to medical assessors, delegates of the President and medical review panels should be prepared with these settled positions squarely in mind.

The recent Supreme Court decision in Stephen John Kewin v AAI Limited t/as GIO Insurance[19]considered the requirements regarding evidence of a medical dispute in threshold injury disputes.

In Kewin, the Commission declined to refer a claimed psychological non‑threshold injury for assessment on the basis that the material lodged was insufficient, relying on Procedural Direction PIC 6. The claimant sought judicial review of that decision.

The Court in dismissing the proceedings confirmed that whether a ‘medical dispute’ exists for the purpose of s 7.20 of the MAI Act is a matter for the Commission to determine.

Mitchelmore J said this at [39]:

“The purpose of rules made under s 20 of the PIC Act, and procedural directions made under s 21 of the PIC Act, is to facilitate the exercise by the Commission of the statutory functions conferred upon it. Those functions include, as I have found, determining whether there is a medical dispute for the purposes of s 7.20 of the MAI Act. I do not discern any inconsistency between the content of the rules and procedural direction on which the Insurer relied, which are directed at ensuring the provision of adequate material to assist consideration of an application for referral, and s 7.20 of the MAI Act. In the present case, the absence of the evidence requested in accordance with the procedural rules was consistent with the absence of a medical dispute in relation to the claimed psychological injury and supportive of the decision made in that regard.”

In summary:

It is for the Commission to determine whether there is a medical dispute for the purposes of s 7.20 of the MAI Act which can be referred for assessment.

Procedural directions, including PIC 6, guide the Commission’s exercise of its statutory functions. Where evidence required by the procedural directions is absent, the Commission may conclude that no medical dispute arises

Threshold injury dispute applications must include medical evidence supporting the injury status as asserted by them, namely that the claimant has suffered a threshold injury or has not suffered a threshold injury within the meaning of section 1.6 of the MAI Act.

If there is no evidence of the claimed threshold/non‑threshold status, the Commission may refuse to refer the dispute for assessment (e.g. where there is evidence in support of the physical threshold injury dispute but none for the psychological, only the physical injury dispute will proceed) which were the circumstances in Kewin.

This year sees the statutory review of the MAI Act, which is currently underway. The scheme is now in its ninth year of operation and doubtless there will be great interest in the outcomes of the review.

FILINGS

It is no secret that the Commission has experienced a surge in filings, especially in the Workers Compensation Division. However filings in the Motor Accidents Division are also well up on prior experience.

Given the pressure the schemes are under, especially the Workers Compensation Operational Fund, our plan this year is to do more with the same resources. To this end we are implementing the following steps:

  1. Enhanced registry and case management processes.
  2. We have increased the dual and triple appointments in our member cohort. The Commission has always had a plan to move to a single member pool, which will provide greater flexibility in allocating our member resources and to provide better coverage for any absences.
  3. Continued recruitment of medical assessors and a program to increase the availability of existing, experienced medical assessors.
  4. We are working hard to minimise rescheduling or cancellations of medical assessment appointments through pre-assessment contact with claimants.
  5. Improved Medical Certificate provision.
  6. We have implemented the second phase of the Medical Review Panel Pilot.
  7. We continue to urge parties to submit their evidence in a timely way, well ahead of a scheduled event (hearing or medical assessment) to ensure that the event proceeds as scheduled. This is really important as we endeavour to list as much as we can to complete more cases.

The Commission’s best assessment of the situation is that this increase in filings will be a feature for 2026. Doubtless the workers compensation amendment acts have provoked claimants to file claims ahead of the changes and the motor accidents 2017 scheme is now probably reaching maturity after a 2 year hiatus due to the pandemic.

All this means increased filings.

It will mean that litigants may wait a little longer for cases to come on – as yet this is not happening but if the filings continue on the same trajectory, it is inevitable that some timings for cases will get longer. We are working hard to avoid this eventuality but it is appropriate that the Commission be open and upfront about this current challenge.

STATE OF NEW SOUTH WALES v CULHANA [2025] NSWCA 157, 17 JULY 2025 (Culhana)

Every now and then the Court of Appeal will revisit what had previously been thought to be a settled area of jurisprudence. This was the case with the five-member bench in the matter of Culhana which overturned the longstanding authority of Raulston v Toll Pty Ltd.20 Raulston had governed the approach to Presidential appeals post the 2011 amendments to s 352 of the 1998 Act. Raulston had been regularly followed by both Presidential members and the Court of Appeal until Culhana.

The ratio of what the Court of Appeal held can be found at [91]:

“Future appeals under s 352 should apply the approach in Warren v Coombes and Fox v Percy. Appropriate deference is to be given to members where their findings are based on evidence in respect of which they have an advantage (such as the kind identified in Lee v Lee at [55]) over the Presidential member hearing an appeal. But it is not sufficient for an appeal to be dismissed on the basis that an inference was ‘open’ to the member, as if the member were a jury and there was some evidence supporting it. If the Presidential member, after making appropriate allowance for the advantages enjoyed by the member, would reach a different conclusion on a question of fact, he or she should not shrink from giving effect to it. Otherwise, the Presidential member will be dismissing an appeal but without fully addressing whether there is an error of fact, law or discretion.”

In Lee v Lee21 the plurality said the following at [55] (citations omitted):

“A court of appeal is bound to conduct a ‘real review’ of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law. Appellate restraint with respect to interference with a trial judge’s findings unless they are ‘glaringly improbable’ or ‘contrary to compelling inferences’ is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts. Thereafter, ‘in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge’. Here, the trial judge’s findings of primary fact were not disturbed. However, in material respects, the Court of Appeal found that the inferences that his Honour drew from those findings were wrong. Notably, the trial judge’s finding that the driver was not wearing the seatbelt not only was contrary to each party’s case but, if correct, on the Court of Appeal's analysis, would lead to the conclusion that there was no real prospect that the appellant was the driver. And the trial judge’s acceptance of the RACQ’s case, that the appellant had been pulled from the driver's seat to the passenger seat immediately behind in something less than 90 seconds, was, in the Court of Appeal’s analysis, unlikely.”

I would add that Culhana does not mean that a Presidential member would merely substitute their preferred view of a particular outcome or evidence, error still must be established.

I do not think that this will lead to more appeals, but the approach to be taken by Presidential members will change. Whilst it has always been necessary to prove error to succeed on appeal, this decision only serves to heighten that obligation. Appeal submissions should therefore focus on the new test and attention should be directed to where, in the impugned decision, the error is found.

COMMISSION DATA

The Commission collects data for chiefly two purposes.

The first is to enable the Commission to comply with its reporting obligations under s 66 of the 2020 Act. This information is presented in our Annual Review, which is tabled in Parliament and published on our website following the end of each financial year.

The second is to enable us to conduct the Commission’s operations efficiently and to provide users with useful information. Often, we publish information relevant to Commission operations in the Personal Injury Commission News. The most recent and best example of this relates to the increased filings the Commission has been experiencing. Data published has included the number of applications, our matters on hand and clearance rates, as well as how we are addressing the demand through a range of initiatives, such as the medical review panel pilot in motor accidents matters. This pilot project is aimed at reducing wait times for such review panels and we have shared the high-level results to date. During COVID and after COVID finished, we published a lot of data on the backlog of medical assessments caused by the pandemic and how that was being tackled.

From time to time, various stakeholders will request the production of certain data and where we can, we will accommodate this request. However, there are times we are unable to assist and that includes where we simply do not collect the requested data or that the request would require significant manual efforts on the part of staff to collect and collate the data.

Secondly, a request may relate to information about the behaviour or performance of types of litigants, such as the types of matters they dispute, their success, and how many cases they are involved in and so on.

The Commission deliberately does not collect this type of data. It is of no assistance in the running of the Commission.

As an independent statutory tribunal deciding disputes between injured claimants, employers and insurers, the Commission must focus on the matters that are in dispute. We are not a regulator, and as such it is not the Commission’s function to collect performance data, nor to provide it to external stakeholders. The Commission’s purpose is to deliver the fair and impartial resolution of disputes, either by facilitated negotiated settlement or by written decisions.

I would note that the Commission publishes its decisions. Last year 1,698 decisions were delivered and they are all publicly available for scrutiny by any interested party.

These remarks need to be borne in mind before any request for data is made.

CIVILITY

“Keep this thought handy when you feel a fit of rage coming on – it isn’t manly to be enraged. Rather, gentleness and civility are more human, and therefore manlier.”

Marcus Aurelius, MEDITATIONS

Finally I want to say something about civility in legal practice. The Chief Justice in his Opening of Law Term Speech for 2026 stated that the legal profession “must be a model of courtesy and respect.”22 A failure to observe this, his Honour stated, would see a diminution in respect for the rule of law.

If one observes our community at present, the atmosphere is both fraught and fragile. It seems almost impossible, or exceptional, for people to disagree on issues in a polite, civilised manner. This temper of the times cannot be imported into the law.

Practice in the area of personal injury law is not simply about the application of legal principles to a problem. At the heart of each dispute is an injured citizen who may have an incomplete understanding of the process and is alternatively hopeful or fearful about what may happen. That the claimant is anxious because the result of the case is important to them is entirely understandable.

Often times a client’s anxiety can feed into the way the lawyers relate to each other in a case. Some cases become combative at an early stage and this then tends to permeate the whole proceeding.

This is not in the client’s interests, nor does it serve justice well.

Work in this area can be hard and emotionally taxing. However this does not justify departure from the standard of courtesy and respect spoken of by the Chief Justice.

This year will be busy in the Commission. At the start of the year, it is timely to acknowledge these challenges and the responsibility that attaches to professional legal practice.

Expectations regarding behaviour before the Commission can be found in Procedural Direction PIC 1 at [39].

Last year the Commission registered 17,298 disputes across the divisions. This is a lot of individual citizens encountering the legal system, perhaps for the first and only time in their life. Each citizen will notice virtually everything that transpires in their case.

The view each of those citizens will form of the legal system will be significantly influenced by what they see and experience in their application, whether from a Commission member or medical assessor, registry clerk or those appearing. So good manners and civility matter.

As I have discussed, filings are up and we will have to contend with some significant changes to the law. We all must work together, decision-makers and the profession alike, to model these virtues, especially when the circumstances might be difficult. It does start with practitioners. For example, is it not better to call one’s opponent and try and work out what is really in dispute and how that is best dealt with as opposed to a hostile exchange of terse emails? Must every point be taken, making the case a war of attrition rather than concentrating on the real issues in dispute as you are required to do under the guiding principle found in s 42 of the 2020 Act? These are matters that require reflection.

The practice of law is actually a very human undertaking. Disputes are disputes between people who need the assistance of professional lawyers to navigate their way through the matter. Whilst technology is advancing rapidly, it is no substitute for the human exchanges which are necessary for justice to be done. This is best done in a civil way.

I wish you all a happy and successful year in practice.

References

1Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, rule 3 (Uniform Rules).

2[2001] NSWCA 305; 52 NSWLR 705; 25 NSWCCR 218.

3[2002] FCAFC 157; 55 IPR 354; 234 FCR 549.

4Workers Compensation Amendment Act 2025 No 72 ; and the Workers Compensation Legislation Amendment (Reform and Modernisation) Act 2026 No 1.

5See new Chapter 7, Part 3, Division 3A inserted into the Workplace Injury Management and Workers Compensation Act 1998 (1998 Act).

6See the new s 105(3) of the 1998 Act.

7See r 132.

8See “Relevant Order” in s 58A(3).

9See s 3 of the 2020 Act.

10Annexure A.

11Annexure B.

12Annexure C.

13[2024] NSWSC 1272 (Evic).

14[2012] NSWCA 311, [85].

15[2013] HCA 43; 252 CLR 480 (Wingfoot).

16[2025] NSWCA 91.

17[2025] NSWCA 104.

18[2025] NSWCA 187.

19[2025] NSWSC 1425 (Kewin).

20[2011] NSWWCCPD 25 (Raulston).

21[2019] HCA 28.

22At paragraph [17].

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