1. Bailey Mahaffy-Toohey (the claimant) is a 31-year-old woman she was a passenger in a motor vehicle accident in which the vehicle she was travelling collided with another vehicle which was in the process of making a right-hand turn. The claimant sustained injuries including a fracture to her lumbar spine, a fractured left clavicle, an injury to her foot as well as psychological injuries. The insurer has conceded that the claimant's injuries are non-threshold injuries. The insurer has not conceded that the claimant's injuries exceed 10% whole person impairment and this issue is yet to be determined.
2. Both the claimant and the insurer submit that this claim is not suitable for assessment at the Personal Injury Commission (Commission).
3. The insurer has now referred the claim to the Commission seeking an exemption from assessment.

1. Both parties confirm it is appropriate to exempt this matter under s 7.34 (1) (b) of the Motor Accident Injuries Act 2017 (MAI Act) it is rule 99(3) of the Personal Injury Commission Rules 2021 (Rules) which sets out the circumstances in which a claim may be found unsuitable for assessment. These include:

(a) a determination as to whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of claim, and

(b) request consideration as to whether the claim involves issues of liability, including contributory negligence, fault, causation.

1. The insurer is alleging that the claimant was involved in what is referred to as street racing. That is that the driver of the vehicle in which she was travelling was driving in a dangerous manner and that the claimant knew that this was his intention and, consequently, would be found to have contributed to her injuries as a consequence of voluntarily assuming the risk associated with activities such as street racing. The insurer has also raised a defence to the claim of joint illegal enterprise in that the claimant was voluntarily participating in an illegal street race and complicit in the insured driver's dangerous driving of the vehicle.
2. The insurer has also alluded to difficulties in compelling witnesses to attend at the Commission.
3. The insurer has also indicated that they will require material from the Office of the Director of Public Prosecution and the New South Wales Police Force and that such material can only be confidentially obtained through the issuing of Court subpoenas. Following the obtaining of this material both parties have indicated the likelihood that the matter will require expert evidence as to speed.
4. Finally, both parties have indicated that there will be a significant number of witnesses who will be required to attend to give evidence, cross examination of such witnesses is likely to take a considerable period of time and the estimate to deal with the question of liability and the allegation of contributory negligence is likely to take in excess of two days hearing time.

1. Both parties have agreed that this raises a number of difficulties in respect to having this matter assessed at the Commission.
2. Firstly, it is a matter in which the insured driver, who was found guilty of traffic offences and sentenced to a period in jail, will not cooperate or attend to give evidence at the Commission. That is, he will attend a hearing of this matter only under a subpoena. I understand and accept this concern.
3. Secondly, both parties have pointed out that this is a matter which will require at least five witnesses who will be required to give evidence. The parties have advised that this number could be closer to 10 witnesses required to give evidence. Accordingly, it is agreed that the hearing will take at least two days. The parties also have advised that, in their view, both the claimant and the insured driver would need to be questioned extensively, and for a protracted period of time, noting the alleged inconsistent statements they have given in this matter.
4. There would also be a requirement to subpoena the drivers of other vehicles in the vicinity, members of the New South Wales Police Force and, accident reconstruction experts and data retrieval experts to confirm the speed which the insured driver was moving at in the modified vehicle in which the claimant was trapped. I accept these witnesses would require subpoenas. I also accept this is a matter which is likely to take well in excess of two days.
5. Thirdly, I note the request of both parties that this might be dealt with expeditiously so as to allow the claimant the opportunity to commence proceedings within three years of the date of accident. I also know that both parties have indicated that, absent the capacity of the parties to fully ventilate all issues between them, and acceptance of the determination of a Member of the Commission is highly unlikely in which case the matter would be remitted to the District Court in any event.
6. I consider the matter ought to be exempted from assessment at the Commission so as to allow both parties to fully investigate this matter noting the requirement to obtain material under subpoena and, at the hearing of this matter, to ensure the attendance at Court of all relevant witnesses. I note the length of time this matter is likely to take at the hearing would preclude it being heard at the Commission noting the complex legal and factual issues surrounding the circumstances of this accident.

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 MAI Act and I recommend to the President that it be exempt from assessment.