RECOMMENDATIONS - CLAIM NOT SUITABLE FOR ASSESSMENT

1. Youssef El Ali (claimant) was injured in a motor accident at Villawood on 10 January 2019 (accident). He subsequently made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer) in relation to the accident. Liability for the claim has been admitted.
2. The insurer has made an application to the Personal Injury Commission (Commission) for the claim to be exempted from assessment under s 7.34(1)(b) of the MAI Act. The application is opposed by the claimant.
3. The parties agree that the application can be determined on the papers. Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that a preliminary assessment of the claim can be conducted on the papers. I am satisfied that sufficient information is available to allow me to conduct the preliminary assessment without holding a formal hearing.

1. Section 7.34 is relevantly in the following terms:

(1) A claim is exempt from assessment under this Division if -

(a) ..., or

(b) the Commission has made a preliminary assessment of the claim and has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.

(2) If a claim is exempt from assessment under this Division, the President must, as soon as practicable, arrange for the issue to the insurer and the claimant of a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned)."

1. Rule 99 of the Personal Injury Commission Rules 2021 (Rules) applies to the application, and is in the following terms:

"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. Procedural Direction MA5 applies to the application. In determining whether the claim is not suitable for assessment, the objects of the PIC Act must be considered. Those objects include, relevantly, to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
2. The guiding principle for the PIC Act and the Rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. The Commission must seek to give effect to the guiding principle when it exercises any power given to it by the PIC Act or the Rules or interprets any provision of the MAI Act or the Rules: s 42(2) PIC Act.

1. The evidence referred to by the parties in their submissions has been considered. The evidence includes material relating to the circumstances of the accident, medical reports, medical records and correspondence between the parties.
2. The claimant has filed an application to lodge a report of Rama Eldehaibi dated

9 September 2025. I give the claimant leave under rule 67C(4) to rely on the report.

1. The insurer argues the claim is not suitable for assessment under Div 7.6 of the MAI Act because:

(a) the claim "presents multifaceted complex medical and legal issues";

(b) the claimant has consistently objected to attending a neuropsychological assessment and his solicitor has indicated he will only attend if compelled by the Commission or a court;

(c) there are no provisions in the MAI Act, Motor Accident Injuries Regulation 2017, or the Personal Injury Commission Rules that empower either a Medical Assessor or Member of the Commission to compel a claimant to attend a medical assessment;

(d) the position adopted by the claimant denies it an opportunity to have him examined in relation to relevant issues which have a bearing on the damages claimed;

(e) the claimant makes a claim for past and future economic loss in excess of $1million;

(f) for the reasons set out at [71] - [83] of its submissions dated 23 July 2024 there is complexity arising from the claimant's economic loss claim;

(g) there are inconsistencies in the claimant's report that he was self-employed at the time of the accident and the relevant bank statements show that no deposits were made into his bank account;

(h) it has been unable to obtain relevant records, and

(i) it should be in a position to require production of records under subpoena.

1. The insurer's submissions include details of its requests that the claimant undergo neuropsychological assessment and the steps it has taken for this to occur. The submissions also include details of the claimant's responses to those requests and arrangements.
2. The insurer points to the recommendation by both Dr Chow and Medical Assessor Jones that the claimant undergo neuropsychological assessment and argues that, having regard to the claimant's self-reporting of the injuries sustained in the accident, together with the recommendations made by two psychiatrists, the request is reasonable. In the insurer's submission, it will be denied procedural fairness if it is not afforded the opportunity to have the claimant undergo a neuropsychological assessment.
3. Details of the steps taken by the insurer to obtain relevant records are recorded in its

18 September 2025 submissions at [11] - [15]. 4. The insurer submits that the most appropriate forum for the matter to be determined is the District Court in which orders can be sought to compel the claimant to attend a neuropsychological assessment, subpoenas can be issued for the production of economic loss documentation and evidence can be given in open court. It also argues that a proper examination of the evidence, and the credibility of the claimant, is required by way of cross-examination and through evidence given in open court and under oath.

1. The claimant opposes the insurer's application for exemption and wants his claim determined by the Commission. His submissions dated 10 October 2025 record he has consented to neuropsychological testing, subject to "what are considered to be reasonable conditions aimed at ensuring the utility of the testing and ensuring that it is not unreasonable, unnecessarily repetitious or dangerous". In his submission, the application is premature and relates to the quantum of damages only. The assessment of damages cannot, in his submission, occur until there is an assessment of his whole person impairment.
2. The claimant's submissions at [3] - [7] address relevant background matters, with particular emphasis on the assessment of his accident caused injuries.
3. The submissions at [8] - [16] address neuropsychological testing. He confirms he has consented to neuropsychological testing "subject to certain conditions", those conditions being recorded at [8].
4. The claimant notes that section 6.27(3) of the MAI Act contemplates a situation where the Commission can request that he undergo a medical or other health related examination. The submissions state that, if the Commission was to direct the claimant to attend neuropsychological testing and give consideration to the conditions raised in the claimant's correspondence of 4 March 2025, "the claimant would comply".
5. The claimant emphasises that liability for the claim has been admitted and submits that the issues raised by the insurer in relation to evidence and/or directions "seem to relate only to past and future earnings". In the claimant's submission, those considerations should be deferred until after the medical assessment process had taken place, and the matter is "actually ready for an assessment of damages."

1. The question I am required to determine, having made a preliminary assessment of the claim, is whether the claim is not suitable for assessment under Div 7.6 of the MAI Act.
2. In addition to the written submissions relied on by the parties, I have considered the matters raised in correspondence between the parties, including the matters raised in the correspondence from the claimant's solicitor dated 4 March 2025 and the response from the insurer's solicitor dated 16 September 2025.
3. In IAG Limited t/a NRMA Insurance v Khaled & ors [2019] NSWSC 320, Bellew J reasoned at [27] that, in accordance with general principles of statutory interpretation, the word "suitable" is to be given its natural and ordinary meaning. His Honour referred to the Macquarie Dictionary definition of "suitable" namely: "[s]uch as to suit; appropriate, fitting, becoming", and adopted that definition. At [28] his Honour stated:

"...[t]here is an obvious, and indeed material, difference between whether or not a matter can be dealt with in the CARS process (in the sense of being capable of being dealt with in that way), and whether it is not suitable to be dealt with in that way. In that sense, capability is not the same as suitability. The terms of section 92(1)(b) required the Assessor to consider and focus upon the latter question..."

1. Liability for the claim has been admitted. There is, however, a clear contest between the parties about the severity of the accident.
2. I consider the following matters are relevant to the question I have to determine:

(a) there is a dispute between the parties about the severity of the accident;

(b) the claimant has given a history of the accident to medical practitioners, including Medical Assessors Paisley and Sidorov, that he was driving at 70km/h when the collision occurred and that his head struck the window;

(c) the other driver involved in the accident has stated: he was traveling very slowly; at approximately 10 -15 km/h; that there was no damage to the claimant's vehicle; emergency services weren't called to the scene, and the claimant "appeared fine and uninjured";

(d) the claimant alleges he suffered both physical and psychological injury as a result of the accident;

(e) there is a dispute about the nature and extent of the claimant's accident caused injuries, including whether he suffers from post-traumatic stress disorder as a result of the accident;

(f) Medical Assessor Jones, a psychiatrist, recommended a "full battery of neuropsychological tests be administered" as there appeared to be "some inconclusive evidence regarding [the claimant's] report memory and concentration capacities as well as questions regarding his symptom validity and presence of abnormal illness behaviour";

(g) there is an issue about whether the claimant's psychological symptoms were caused by the accident, and

(h) while the claimant now agrees to undergo neuropsychological assessment with conditions, the insurer is not prepared to accept those conditions.

1. Contrary to the claimant's submission, s 6.27(3) of the MAI Act does not give the Commission the power to direct him to attend a neuropsychology assessment. The provision relates to an examination or assessment by a "medical assessor". The term "medical assessor" means a person appointed under the PIC Act as a medical assessor for the purposes of the MAI Act. The provision requires him to comply with any request by the Commission to undergo a medical or other health related examination or an assessment by a medical assessor for the purposes of Div 7.5. The proposed neuropsychological assessment is not a medical or other health related examination or an assessment by a medical assessor.
2. One way or another, the dispute between the parties about whether the claimant is required to undergo neuropsychological assessment, and if so whether there are to be any conditions on him undergoing any such assessment, needs to be determined in a forum that has the appropriate power to deal with that dispute. Resolution of that dispute will enable the parties to move forward with the claim.
3. The insurer relies on a "collision and biomechanics report" from Dr Andrew McIntosh. Dr McIntosh is likely to be required to give evidence. He cannot be compelled to do so in the Commission. The reliance by the insurer on Mr McIntosh's opinion adds to the complexity of the claim. It also seems likely that medical experts and the other driver involved in the accident will be required to give evidence.
4. I also consider this is a claim in which the parties should be in a position to avail themselves of the court's powers to both compel the production of documents under subpoena and deal with non-production of documents. The Commission does not have those powers.
5. All of these considerations have led me to the conclusion that the claim is not suitable for assessment by the Commission. I am satisfied determination of the claim by a court is more likely to result in the just, quick and cost effective resolution of the real issues in the proceedings than if the proceedings were assessed by the Commission.
6. Having made a preliminary assessment of the claim I determine that the claim is not suitable for assessment by the Commission under Div 7.6 of the MAI Act. I recommend to the President that the claim be exempt from assessment.
7. 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 5 November 2025, approved Senior Member Brett Williams's recommendation that the claim is not suitable for assessment.