Missing hospital records cannot decide causation - the NSW Supreme Court has reminded CTP insurers in a ruling involving Allianz.
In Bath v Allianz Australia Insurance Limited [2026] NSWSC 165, decided on 9 March 2026, the Court set aside a Personal Injury Commission review panel decision that had assessed a claimant's Whole Person Impairment at just 5% - well short of the 10% threshold needed to access non-economic loss damages under the Motor Accident Injuries Act 2017 (NSW).
The dispute traced back to 2 March 2019, when David Bath was travelling as a passenger on the Sydney Light Rail. The vehicle came to a sudden and unexpected stop, causing Bath and his mobility scooter to fall inside the carriage. Paramedics treated him at the scene before he was taken by ambulance to St Vincent's Hospital.
Bath claimed against Allianz, the CTP insurer of the light rail vehicle, for statutory benefits and damages including non-economic loss. A medical report supporting his claim assessed his WPI at 26%. Allianz disagreed, refused the claim, and a medical dispute followed.
A medical assessor assessed Bath's WPI at 17% and found his injuries were caused by the accident. Allianz applied for a review. On 4 July 2025, the review panel cut the assessment to 5%, finding that Bath's bilateral shoulder injuries, damaged spinal stimulator, and surgical scarring were not caused by the accident.
The panel acknowledged Bath may have fallen onto a shoulder during the incident. But it treated the absence of documented shoulder complaints in hospital records as the deciding factor, noting it "lends weight to the contemporaneous medical records, from several sources, which lack mention of early shoulder pain."
That conclusion came despite an ambulance report from the day of the accident recording Bath's complaint of "pain alongside L) side of body including shoulder and hip," and a hospital letter noting "significant pain, 8/10, almost all over body pain."
Bath sought judicial review, filing an amended summons on 30 October 2025. In a notable feature of the case, all three defendants - including Allianz - filed submitting appearances and did not oppose the relief sought.
Justice Price found the panel committed jurisdictional error. While panels can give weight to contemporaneous records, the absence of documented complaints cannot be treated as decisive. The Court noted, citing Norrington v QBE Insurance, that "there are many reasons why a complaint might not be made, or recorded, promptly following an incident."
The judgment pointed to numerous prior decisions where panels made the same mistake - a pattern that has not gone unnoticed.
The panel's decision was set aside and the matter sent back to the President of the Personal Injury Commission for a fresh determination by a differently constituted review panel.
For CTP insurers and claims teams, the takeaway is straightforward: causation must be weighed on the full body of evidence, not anchored to what is absent from the record. Panels that lean too heavily on gaps in documentation continue to risk having their decisions overturned.
