1. The claimant has made this application, contending that his claim for damages is not suitable for assessment by the Commission under Division 7.6 of the MAI Act.
2. The claimant seeks an exemption of the claim being assessed by the Commission pursuant to sub-s 7.34 (1)(b) of the MAI Act and sub-rule 99 (3) (b) of the Personal Injury Commission Rules 2021 (PIC Rules).
3. The claimant's reasons for contending that the claim is not suitable for assessment by the Commission, were:

(a) the claimant contended that the motor accident occurred in a "road related area" within the meaning of s 1.4 of the MAI Act because s 24 of the Road Transport Act 2013 (NSW) defines a "road related area" to include "an area that is not a road and that is open to or used by the public for driving, riding or parking vehicles". Hence, the liability aspect involves complex legal and factual issues;

(b) in order for the claimant to receive a fair and just outcome, it is paramount that the claimant and the insured run this matter as a joint public liability and motor vehicle accident claim in the District Court of New South Wales;

(c) as the circumstances of the accident are factually complex, the claimant also requires witnesses to attend a hearing to give evidence. Noting that the Commission does not have the power to compel the attendance of witnesses, the claimant requires the use of the Court processes where he can issue subpoenas to attend to give evidence and cross-examine witnesses, and

(d) noting that the Commission does not have jurisdiction to hear a public liability claim, the claimant submitted that the matter is not suitable for an assessment in the Commission.

1. In its reply dated 26 September 2025, the insurer submitted that it agreed with the claimant's application.
2. The insurer submitted that the matter is not suitable for assessment by the Commission because the insurer has denied indemnity for the claim. The insurer maintained its position that the accident did not occur on a road or a road related area that was open to or used by the public, or that it was an area that was developed for, or has as one of its main uses, the driving or riding of motor vehicles.

1. Section 7.30 of the MAI Act defines "claims assessment" as an assessment of a claim by the Commission under Division 7.6.
2. Section 7.31 of the MAI Act provides that Division 7.6 applies to a claim whether or not the insurer admits or denies liability.
3. Section 7.36 of the MAI Act provides that in conducting a claims assessment, the Commission is to make an assessment of;

(a) the issue of liability for the claim (unless the insurer has admitted liability), and

(b) the amount of damages for that liability (being the amount of damages that a court would be likely to award).

1. Sub-section 7.34(1) of the MAI Act provides that a claim is exempt from a claims assessment in the following circumstances:

(a) the claim is of a kind specified in the Motor Accident Injuries Regulation 2017 (Regulation) as a claim that is exempt from assessment under this Division, 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 (a discretionary exemption).

1. Rule 99 of the PIC Rules deals with the matters I should consider when making a recommendation to the President to grant a discretionary exemption from a claims assessment. Rule 99 relevantly provides:

"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 Personal Injury Commission Act 2020 (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. According to s (3)(c) of the PIC Act one of the objects of the Act is to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
2. Section 42(1) of the PIC Act provides that the guiding principle for the PIC Act and PIC 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.
3. Section 42(2) of the PIC Act provides that 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 PIC Rules or when it interprets any provision of the PIC Act or PIC Rules.

1. I note that the insurer has given notice to the claimant that it declines to indemnify the owner or driver of the forklift under the third party policy. The insurer has presumably also given that notice to its insured. If that was the case, the claim in question would be of a kind specified in cl 14(e) of the Regulation and thus qualifying for a (mandatory) exemption under sub-s 7.34 (1)(a) of the MAI Act. A mandatory exemption can only be made by the Division Head as the President's delegate.
2. The claimant has not made such an application, and I will therefore proceed to consider whether a discretionary exemption may be granted under sub-s 7.34 (1)(b) of the MAI Act.
3. An exemption from a claims assessment can only be granted pursuant to sub-s 7.34 (1)(b) of the MAI Act, if I make a preliminary assessment of the claim and determine (with the approval of the President) that the claim is not suitable for assessment by the Commission.
4. According to sub-rule 99 (2) of the PIC Rules, in making the determination, I must consider the objects of the PIC Act and the circumstances of the claim. I may also consider the matters referred to in sub-rule 99(3).

1. The claimant's application for a discretionary exemption is essentially based on two elements. The first concerns complex legal or factual issues arising in respect to the claim and the second is the claimant's impending proceedings against a non-CTP party.
2. As to the first element, in conducting a claims assessment, the Commission has jurisdiction to assess issues of liability.
3. However, it is important to keep in mind the question that I need to address when determining whether to recommend the grant of a discretionary exemption is not whether the Commission is capable of assessing these issues, but whether the claim is "not suitable for assessment" by the Commission.
4. I am required in accordance with sub-rule 99 (3) (b) of the PIC Rules to consider whether the claim involves issues of liability, including contributory negligence, fault or causation. That consideration is not about whether the Commission has jurisdiction to assess those issues but whether the processes, practice and procedure available to the Commission to determine the issues, and the limitations in those processes, practice and procedure, would render the claim not suitable for assessment by the Commission.
5. In this case, looking at the circumstances of the accident, I consider that there will be a real contest between the parties about where and how the accident happened, and whether it occurred in a road related area. Resolving that issue would most likely involve calling witnesses to give evidence, including the forklift driver. If the matter were exempted from assessment, the parties would have recourse to coercive procedures of a Court including the ability to apply for the issue of subpoenas to compel witnesses to attend and give evidence. Such procedures are not available in the Commission.
6. There is the further consideration that the claimant intends to make a "public liability claim". Justice would not be served unless all claims arising out of the circumstances of the accident, including any cross claims between defendants, could be heard together in the same proceedings. The Commission does not have jurisdiction to hear public liability claims. Only a Court may hear both CTP and non-CTP claims together.
7. For the above reasons, I am satisfied the claim is not suitable for assessment by the Commission, and it is in the interests of justice to exempt the claim from assessment by the Commission.

1. 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.
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 10 February 2026, approved Member Maurice Castagnet's recommendation that the claim is not suitable for assessment.