MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim not suitable for assessment; claimant injured in an incident on premises occupied by Woolworths in an area which was within the interior of a warehouse; claimant was driving a forklift which collided with a motorised pallet transporter; both vehicles owned by Woolworths; claimant employed as a warehouse storeman with Woolworths; claimant intends to issue a claim against the Nominal Defendant on the basis the pallet transporter that caused the incident was unregistered and uninsured for CTP purposes; main issue for determination is whether the incident occurred on a road or road related area which is open to the public and consequently, whether the claimant is precluded from bringing a claim against the Nominal Defendant; liability has been denied by the insurer; claimant also intends to issue a claim against Ready Workforce on the basis it was the employer of the driver of the motorised pallet transporter (which is denied); claimant intends to issue a statement of claim in the District Court both those parties and also a claim against the driver of the motorised pallet transporter seeking damages; claimant submits the matter be exempted in the interests of justice in order for all claims to be determined concurrently in the jurisdiction of the District Court; submitted on behalf of the claimant, the matter should be exempted on discretionary grounds; insurer consents to the application; Held - recommendation that the matter be exempted under section 7.34 (1)(b) on the grounds a claimant or insurer seeks to proceed against one or more non-CTP parties; rule 99(3)(d) of the Personal Injury Commission Rules 2021 (NSW); recommendation subsequently approved by the Division Head, as the President's delegate.

Replacement Recommendations claim not suitable for assessment

1. Vladimir Despot (the claimant) was injured in an incident on 27 January 2023 on premises occupied by Woolworths. The incident occurred within "D zone" of the claimant's employers premises located at 2 Dursley Road, Yennora. The incident occurred in an area which was within the interior of a warehouse. The claimant was driving a forklift which collided with a motorised pallet transporter being driven by Pangavuth Mao. Both vehicles were owned by Woolworths. The claimant was employed as a warehouse storeman with Woolworths.
2. The claimant sustained Injuries to his neck, back and both shoulders, left wrist, together with a psychiatric injury.
3. The solicitor for the claimant prematurely issued proceedings in the District Court at Sydney against the following parties:
   • the driver of the motorised pallet transporter, Mr Mao.
   • GIO Australia, as agent for the Nominal Defendant, on the basis the pallet transporter was unregistered and uninsured for compulsory third party (CTP) purposes, and
   • Ready Workforce (A division of Chandler MacLeod Pty Ltd) on the basis it was the employer of Mr Mao (which is denied).
4. The claimant has made a claim under the Workers Compensation Act 1987 against his employer, Woolworths.
5. The solicitor for the claimant intends to issue a claim against the Nominal Defendant on the basis the pallet transporter that caused the incident, was unregistered and uninsured for CTP purposes. GIO Australia (the insurer) has been appointed as agent for the Nominal Defendant. The solicitor for the claimant also intends to issue a claim against Ready Workforce on the basis it was the employer of the driver of the motorised pallet transporter (which is denied).
6. The accident occurred within the Woolworths warehouse. The main issue for determination, as far as the insurer is concerned, is whether the incident occurred on a road or road related area, which was opened to the public, and consequently, whether the claimant is precluded from bringing a claim against the Nominal Defendant.
7. Liability for the claim has been denied by the insurer.
8. Regarding the claim against Mr Mao, the driver of the motorised pallet transporter, it will be necessary for the Division Head to determine this application, as it is a mandatory exemption pursuant to the Personal Injury Commission Regulation 14(c) which is as follows:
   • a claim made against a person other than an insurer.
9. The solicitor for the claimant has lodged an application for discretionary exemption and I note the matter can be exempted under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAI Act).
10. I note the matter can be exempted under s 7.34(1)(b) of the MAI Act on the following ground under Rule 99(3)(d) of the Personal Injury Commission Rules 2021 (PIC Rules):
    • whether a claimant or insurer seeks to proceed against one or more non-CTP parties.
11. I recommend the matter be exempted because in the interest of justice, all claims should be determined concurrently in the jurisdiction of the District Court.

1. Sub-section 7.34 (1)(a) provides that a claim is exempt from assessment under this Division the claim is of a kind specified in the regulations as a claim that is exempt from assessment under this Division.
2. Sub-section 7.34 (1)(b) provides that a claim is exempt from assessment under this Division if a preliminary assessment of the claim has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.
3. Rule 99 of the PIC Rules list the grounds for considering whether the claim is not suitable for assessment as follows:

"99 Consideration of discretionary exemption from claims assessment

(1) A claimant or insurer may apply for an exemption from assessment under section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act by lodging an application.

(2) In determining whether a claim is not suitable for assessment for the purposes of section 92(1)(b) of the MAC Act or section 7.34(1)(b) of the MAI Act, the Commission must consider the objects of the PIC Act and the circumstances of the claim.

(3) Without limiting the matters that may be considered, the Commission may consider the following -

(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,

(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."

1. In this case a number of considerations listed in cl 99 are relevant.
2. The first relevant consideration is under sub-clause 99(2) of the PIC Rules. When determining whether a claim is not suitable for assessment, the Personal Injury Commission (Commission) must consider the objects of the Personal Injury Commission Act 2020 (PIC Act) and the circumstances of the claim. Section 3 of the PIC Act which refers to the Objects of the MAI Act, enjoins the Commission to be: accessible, professional, and responsive to the needs of all of its users; encourages early dispute resolution; and resolves the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
3. In making my findings, I am also mindful of other relevant consideration listed in rule 99 including that the claim potentially involves:
   • complex legal or factual issues, and
   • issues of liability, including issues of contributory negligence, fault or causation.
4. Although I am concerned about the extra delay and legal costs to be experienced by the claimant, on balance I recommend that this claim is exempt from assessment and is not suitable for assessment under the Division 7.6.

1. In making my preliminary assessment recommending that the matter be exempted from assessment, I have had regard to the following:
   • the objects of the PIC Act set out in s 3 which include the quick, cost effective, just, and informal resolution of disputes.
   • the claim involves potential issues of about liability or contributory negligence and conflicting evidence about how the accident occurred, and
   • the claimant seeks to proceed against one or more non-CTP parties.
2. I have determined in my preliminary assessment that this claim is not suitable for assessment under Division 7.6 of the MAI Act.
3. I recommend that the claim be exempt from assessment by operation of sub-s 7.34(1)(b) of the MAI Act and cl 99 of the PIC Rules.
4. 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 20 March 2026, approved Member David Ford's recommendation that the claim is not suitable for assessment.