RECOMMENDATIONS - CLAIM NOT SUITABLE FOR ASSESSMENT

1. The claimant is a 72-year-old man who was injured in a motor vehicle accident on 28 February 2023. He sustained injuries whilst he was on a bus and fell to the floor of the bus when the insured driver accelerated. The insurer has admitted breach of duty of care with no allegation of contributary negligence. The parties agree that, by reason of the decision in McTye v Ching Yu Chang by his tutor, Leo Alexander Birch [2025] NSWCA 3 (McTye's case), the claimant's damages are to be assessed in accordance with chapter 5 of the Motor Accident Compensation Act 1999 (MACA).
2. The claimant has lodged an application for a discretionary exemption on the basis that the matter involves complex legal issues. That is that damages under the MACA allow for the provision of a calculation for future treatment and future domestic assistance, and these entitlements are also provided for under the statutory benefits scheme of the Motor Accident Injuries Act 2017 (MAIA). As a result, the claimant submits that there is a legal complexity which cannot be adequately determined at the Personal Injury Commission (PIC).
3. At the preliminary conference in this matter the parties were unable to agree that, should the claimant's entitlement to compensation for domestic assistance and treatment be assessed, then the claimant would still have entitlement to statutory benefits under the MAIA. Should the matter either be settled by way of a deed of release or be assessed at the PIC, and the claimant accept that assessment, there would be an entitlement to ongoing statutory benefits for future care and treatment.
4. The parties have been provided with further time to consider their position and make further submissions. The parties have now provided further material and submissions in respect to the claimant's application for exemption.
5. The claimant is a 72-year-old man and no claim is made for economic loss. The claimant has been found to have sustained a 6% Whole Person Impairment (WPI) and consequently has no entitlement to compensation for non-economic loss. The claim for assessment of damages bought in this matter is limited to past and future treatment expenses and future commercial care only.
6. At the heart of this matter is the different interpretations between the claimant and the insurer of the effect of McTye's case. The claimant submits that the effect of this decision is to allow the claimant compensation for past and future medical expenses and past and future domestic care and assistance as a lump sum award.
7. The insurer submits that the claimant is not entitled to an award for damages in circumstances where his loss will be completely mitigated by his statutory entitlements. That is, the effect of the MAIA, which provides statutory benefits for treatment expenses and future care, has the effect of negating any claim under the MACA for an assessment of treatment and care.

1. The effect of s 7.34(1)(b) of the MAIA is to provide for the exemption from claims assessment in circumstances where the PIC 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. That is a discretionary exemption. The effect of Rule 99 of the Personal Injury Commission Rules 2021 (PIC rules) is to outline the considerations for determining whether a matter is suitable for assessment. Most tellingly it obliges that consideration of the objects of the legislation and in particular that proceedings be dealt with justly, quickly, cost-effectively and with minimal formality. Rule 99(3)(a) sets out that the PIC may consider whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim. This is the basis on which this claim for exemption is bought.
2. The parties have very differing positions in respect to how the claim ought to be assessed. The claimant submits that once an allowance for past and future medical expenses and future paid domestic care and assistance is assessed then statutory benefits cease as the claim is governed by the MACA. The insurer submits the claimant will not suffer any loss of damage because he can request the insurer (or CTP Care from five years post-accident) fund his reasonable and necessary accident-related treatment and care expenses. They also point out that any dispute in relation to this can be referred to the PIC for determination thus any assessment of a claim for common law damages, noting it is limited only to treatment and care expenses, must result in an award of $0 to the claimant.
3. I accept that the law on this matter is not settled. The point raised by the insurer is valid. The position put by the claimant also has merit. I consider that this question will require further judicial and statutory interpretation. It follows then that the matter involves complex legal issues and complex issues in the assessment of the amount of the claim. While there may be some benefit in applying the MACA to the assessment of treatment and care expenses, I consider the only real benefit of this would be to provide an opportunity for the insurer to seek judicial review. That said, the matter may not get that far because it may be that a true assessment of the matter would be in accordance with the insurer's submission giving rise to an assessment of $0.
4. If this matter is exempted, then the claimant can commence proceedings in the District Court and a determination of the complex legal issue be made by the Court.
5. This outcome is in keeping with the legislative intentions of both the MAIA and the MACA.

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 26 March 2026, approved Member Hugh Macken recommendation that the claim is not suitable for assessment.