RECOMMENDATIONS - CLAIM NOT SUITABLE FOR ASSESSMENT

1. Stephen Bunyan (the claimant) was involved in a motor accident on

6 February 2024. Two collisions which took place in close proximity. A fatality resulted and multiple persons injured. 2. On 15 February 2024, made a claim against GIO (the insurer) for common law damages. A claim for statutory benefits was accepted by the insurer on 7 March 2024. 3. The claimant and insurer have now referred the claim to the Personal Injury Commission (Commission) seeking an exemption from assessment. 4. There are at least four CTP claims arising from the collisions. 5. The insurer has submitted that this matter is not suitable for assessment, and ought to be exempted pursuant to rule 99 of the Personal Injury Commission Rules 2021 (PIC Rules), because:

(a) the claim involves complex factual issues (r 99(3)(a) PIC Rules 2021);

(b) the claim involves issues of liability, including contributory negligence, fault or causation (r 99(3)(b) PIC Rules 2021), and

(c) the insurer anticipates the need to call multiple witnesses to give evidence at the hearing, and the Commission does not have the power to compel third parties to give evidence (s 51 of the Personal Injury Commission Act 2020 (PIC Act)).

1. Most relevantly, however is that one of the related claims (the Compensation to Relatives claim brought for the benefit of the deceased driver's partner and young children) has already been exempted from the Commission.
2. Because there is a liability issue common to all claims, the insurer has submitted it is necessary to exempt this claim (and in due course, all related claims) from the Commission so the liability issue common to all claims can be resolved by a single decision maker (a Judge) for consistency.

1. The claimant was involved in a motor vehicle accident at approximately 10.45 am on

6 February 2024 on Peats Ridge Road, Somersby. NSW Police reported that the road was wet. 2. The following parties were involved in the multi vehicle collision:

(a) the deceased Mr Matthew Tyrrell - the CTR claim has already been exempted from the Commission;

(b) Mr Stephen Bunyan (the claimant);

(c) Mr Luke Bullen, and

(d) Dr Joshua Small (GIO's insured driver).

1. The late Mr Tyrrell's partner has also made a claim for pure mental harm damages.
2. The NSW Police report records that Mr Bullen was driving a Tipper truck northbound along Peats Ridge Road when he was involved in a significant head-on collision with a Pantec Truck driven by the deceased. It appears that Mr Bullen's vehicle was on its incorrect side of the road at the time it collided with the deceased's vehicle.
3. Mr Bullen exited his truck to render assistance, and the claimant, who was not involved in the initial collision, pulled over to also render assistance. A Prime Mover, driven by GIO's insured, was driving northbound (in the same direction as Mr Bullen had been) and tried to avoid the collision scene but was unable to do so, and a further collision occurred.
4. In a related claim, on 6 September 2024 an application was made for access to coronial documents in relation to the accident, however the insurer can advise that the request was refused until the Final Postmortem and brief were received. The insurer understands the documents are still unavailable.

1. The Compensation to Relatives claim arising from the death of the deceased has already been exempted from the Commission.
2. The insurer has submitted that this claim (and indeed all related claims) must also be exempted, so that the significant liability issue common to all claims can be considered once, by a single decision maker (a Judge), so consistent findings of fact can be made relevant to the liability issue in each claim.
3. The factual circumstances surrounding this accident are considered by the parties as particularly complex and uncertain.
4. It seems from the material available to the insurer that the first accident involved a collision of significant force between Mr Bullen's truck and the deceased's truck, when Mr Bullen's truck was on the wrong side of the road.
5. Because of the insurer's understanding that Mr Bullen's vehicle was on its incorrect side of the road, and that the first collision created a significant hazard for other motorists coming to the scene, including the insured driver, it is unclear whether GIO's insured driver was at fault for the second collision.
6. The insurer foresees the need to issue subpoenas to produce, including for the complete investigation file from NSW Police, noting the file produced by NSW Police under GIPA has been heavily redacted, such that significant documents have been withheld. It may also be necessary to issue a subpoena to the Coroners Court in relation to the coronial inquest in relation to the deceased.
7. In order for liability to be fairly determined, the insurer foreshadows that it will seek to call several witnesses who were present at the time of the accident, to provide evidence at any hearing on liability.
8. Section 51 of the PIC Act pertains to the Commission's power to issue summons to appear at a conference or hearing. Sub-section (2) states:

"(2) If the proceedings are allocated to the Motor Accidents Division, a summons may be issued only to a party to the proceedings."

1. Section 7.30 of Division 7.6 provides the definitions, and states:

"party to an assessment under this Division means the claimant or the insurer in respect of the claim referred for assessment."

1. The Commission is not empowered to compel third parties to give evidence in assessment conferences.
2. The identity of all relevant potential witnesses cannot be ascertained until complete accident to the Police, and potentially Coronial, briefs are made available.
3. Because of the liability issue common to multiple claims arising from the accident, including one of which already exempted from the Commission, and the need for all claims with a common liability issue to be determined by a single decision maker to ensure consistency and legal cohesion, the insurer respectfully submits this matter is unsuitable for determination by the Commission, and should be exempted.
4. The claimant agrees the matter should be exempted.

1. Section 7.34(1)(b) of the 2017 Act provides that a claim is exempt from assessment if a Member has made a preliminary determination of the claim and has determined, with the approval of the President, that the claim is not suitable for assessment.
2. Rule 99(3) of the Rules sets out circumstances in which a claim may be found unsuitable for assessment as follows:

(a) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim;

(b) whether the claim involves issues of liability, including contributory negligence, fault or causation;

(c) whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State;

(d) whether a claimant or insurer seeks to proceed against one or more non-CTP parties, and

(e) whether the insurer alleges that a person has made a false or misleading statement in a material particular in relation to the injuries, loss or damage sustained by the claimant in the accident giving rise to the claim.

The list in rule 99(3) is not intended to limit the matters that may be considered by the Commission.

1. Rule 99(2) states the Commission must consider the objects of the PIC Act (which includes to promote public confidence in the decision-making of the Commission) and the circumstances of the claim.
2. Section 42 of the PIC Act outlines the guiding principle for the PIC Act and the Rules is to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings.
3. In accordance with s 43(2) of the PIC Act, the Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
4. The claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim.
5. The claim involves issues of liability, including contributory negligence, fault or causation.
6. The claimant and other claims related to the same incident would be more cost effectively dealt with in a single forum.
7. A related compensation to relatives claim has already been exempted from the Commission.
8. Noting the particular factual issues in relation to the question of liability and the various parties involved the provisions of r 99(3)(a), (b) are enlivened.

1. Having made a preliminary assessment of the claim, I determine for the reasons set out above that this claim is not suitable for assessment under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 and I recommend to the President that it be exempt from assessment.
2. In accordance with s 7.34(1)(b) of the Motor Accident Injuries Act 2017, the Division Head (Motor Accident Division) as Delegate of the President, on 27 November 2025, approved Member Shana Radnan's recommendation that the claim is not suitable for assessment.