(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.

1. The evidence in the application and reply has been considered. The documents relied on by the insurer include claim forms, its liability notice, a police report, factual investigation reports, a property damage claim file and dashcam footage.
2. In the application for personal injury benefits dated 30 January 2025 the claimant provided the following description of the accident:

"My wife was driving...along Finlay Avenue when she proceeded through the intersection with Exhibition Road, through a give way sign, causing a collision with vehicle...I was contacted by a neighbour who advised me that my wife was involved in a car accident and I was in a state of complete panic. I arrived at the scene of the accident and saw my wife with a significant wound on her arm with all the skin removed causing me significant distress. I was also fearful that my son may have also been in the car with her as she had left to pick him up."

1. The claimant recorded that he suffered a psychological injury as a result of the accident.

1. The claimant made an application for damages on 30 January 2025. By letter dated

16 July 2025 the insurer denied liability for the damages claim. The insurer's reasons for doing so included the following:

"Your entitlement to damages is determined by whether the insured driver owed you a duty of care and whether you suffered a recognised psychiatric injury as a result of a breach to this duty of care.

NRMA has assessed that the insured driver did not owe you a duty of care in relation to the accident. The Insured driver did not owe you a duty of care to not injure themselves as a result of their own negligent driving.

NRMA refers to the Judgement of Forrest J in the matter of Homsi v Homsi [2016] VSC 354, in which he noted at [52]:

'the common law does not recognise a general duty on the part of the driver of a motor vehicle (or, for that matter, any person who does no[t] take sufficient care [for] his or her safety) not to cause psychiatric injury to close relatives as a result of injury to himself or herself'.

NRMA has therefore assessed that the insured driver did not owe you a duty of care.

In consideration of the above, NRMA has therefore assessed that the insured driver did not owe you a duty of care and denies liability for your claim for damages..."

1. A NSW Police report dated 21 February 2022 contains details of the date, time and location of the accident, weather and road conditions, and the drivers involved. The following crash summary details are recorded:

"Veh 2 travelling northbound along Finlay Ave approaching Exhibition Pde. Veh 1 travelling eastbound along Exhibition Pde toward Finaly [sic] Ave.

Veh 1 has travelled through give way sign into the T intersection Veh 2 proceeding through with right of way has collided with the rear nearside of veh 1 causing veh 1 to to [sic] tilt before rolling onto its roof."

1. There are two reports from Quantumcorp, the first dated 14 April 2023 and the second

6 July 2023. The contents of both reports, including the annexed documents, plans and photographs, have been considered. 2. I have considered the statement of Ms Gano dated 17 March 2022 and Ms Kanjo dated

28 March 2022. Both statements contain a version of the accident. At [44] - [47] of her statement Ms Gano provided a description of the accident. She states she was travelling at about 20 -30 kmph and:

"...was at the intersection when a saw a car to my right...it was travelling more than 50km/h. This car did not stop or give way at the intersection....It was about five metres from me when I first saw it and I saw that there was a female person driving the car and all the windows were open and the sunroof was open so I could see the driver clearly...

...As soon as I saw that car I could tell she was not stopping so I braked as hard as I could. I came to [a] complete stop but the other car did not slow at all. I even honked the horn but the driver did not react, she was continuing to look straight ahead. The left side of her car hit and scraped along the front of my car..."

1. At [61] in her statement Ms Kanjo states: "I do not know how the accident happened. I did not see the other car prior to the impact and I cannot say how my car flipped up and landed on the roof."
2. The transcript of interview between an investigator and Senior Constable Hawley on

3 July 2023, contained in the second factual report, has been considered. That transcript includes a transcript of a statement given by Ms Gano to the Senior Constable recorded on body worn camera footage. 3. Records relating to a property damage claim include information about the damage to the vehicle driven by Ms Kanjo, including photographs depicting damage to the vehicle. 4. The insurer has also provided a copy of Member Montgomery-Hribar's certificate and reasons dated 30 April 2025. The Member certified that for the purposes of s 3.28 of the MAI Act the accident was caused wholly or mostly by the fault of Ms Kanjo. I have considered the findings made by the Member, including those at [70], [78], [79], [81], [85], [86], [91], [97] - [101], and [118] - [125]. 5. I have viewed the dashcam footage recorded from Ms Gano's vehicle. Her vehicle is seen approaching a T intersection. Ms Kanjo's vehicle can be seen entering the intersection from the right without stopping. Immediately before the collision she can be seen looking straight ahead. Ms Gano's vehicle is seen colliding with the rear passenger side of Ms Kanjo's vehicle. I agree with Member Montgomery-Hribar's description of the footage at [64] - [68], [76] - [77], [80], [113] and [117] of her reasons. 6. The documents relied on by the claimant consist of correspondence from his solicitor to the insurer dated 23 July 2025, correspondence from the insurer to his solicitor dated

10 November 2025 and a report from Associate Professor Robertson dated 4 August 2025. 7. In their correspondence to the insurer dated 23 July 2025, the claimant's solicitor raised a number of matters relating to the denial of liability. It was argued that the "holding" in Homsi v Homsi [2016] VSC 354 at [52] does not apply in NSW and Jaensch v Coffey [1984] HCA 52; (1984) 155 CLR 549, a case relied on in Homsi, has been "superseded" by the subsequent decision of the High Court in Wicks v State Rail Authority of NSW; Sheehan v State Rail Authority of NSW [2010] HCA 22; (2010) 267 ALR 23.The claimant's solicitors also drew attention to Tame v NSW; Annetts v Australian Stations Pty Ltd [2002] HCA 35; (2002) 191 ALR 449. 8. Reference was made to provisions in Part 3 of the Civil Liability Act 2002 (CLA), including ss 28, 29 and 32. It was argued that:

(a) section 32 of the CLA "overrides the common law and applies to the present circumstances, rather than the decision in Homsi";

(b) by reference to s 32(2) of the CLA, the claimant "clearly satisfies" each of the four paragraphs of that sub-section and "it is clearly foreseeable that a person of normal fortitude might, in the circumstances of the case, suffer a recognised psychiatric injury if reasonable care is not taken";

(c) the fact the claimant did not witness the accident does not preclude his claim, reliance being placed in this regard on Wicks v State Rail Authority of NSW; Sheehan v State Rail Authority of NSW [2010] HCA 22; (2010) 267 ALR 23, and

(d) section 30 of the CLA does not apply to the claim.

1. The claimant's fallback position was that if the decision in Homsi did apply, he "must fall within the class of being 'a blameless accident'". In this regard, the correspondence reads:

"As stated within your Liability Notice, the other driver, Ms Gano, has been determined by Member Montgomery-Hribar to have exercised reasonable care in the manner in which she drove her car and was not guilty of any breach of duty of care.

If the decision in Homsi is correct, then that means that Ms Kanjo also was not in breach of any duty of care because she did not owe such a duty of care.

When those two circumstances are combined, the situation equates with being a 'blameless accident'."

1. The claimant's solicitor argued that "in either situation, the NRMA is liable to our client in respect of his claim for damages".
2. The report of A/Professor Robertson, psychiatrist, relates to the claimant's son. The report has been considered. In particular, I have noted the diagnosis, treatment recommendations, and the "provisional" assessment of permanent impairment.
3. Correspondence to the claimant's solicitor from the insurer dated 10 November 2025 relates to his son's claim.

1. The insurer relies on written submissions dated 9 January 2026. The submissions record that the claimant's son has also made a claim for damages arising from the accident, that his son's claim has been exempted from assessment on the basis of legal capacity (age), and proceedings have been commenced in the District Court with respect to that claim.
2. The insurer's submissions state that the application for exemption is made so the claim can be heard concurrently with the claim brought by the claimant's son.
3. The insurer also submits that the claim ought to be exempted on the basis it is not suitable for assessment because:

(a) liability has been wholly denied and there are complex issues surrounding statutory interpretation and common law principles that will need to be determined;

(b) it would be inappropriate for liability in the related proceedings brought by the claimant's son to be determined in a different jurisdiction "noting the liability issues";

(c) there will be a significant overlap in evidence and submissions between the two related claims;

(d) there would be "cost efficiencies" for both parties to have the related claims heard together;

(e) there is a probability the hearing would take more than one day and, for that reason, would be more appropriately heard in Court, and

(f) exempting the claim will enable the parties to compel witnesses to give evidence by subpoena.

1. By letter to the Commission dated 20 February 2026 the insurer's solicitors confirmed that the insurer will not waive its rights under s 6.32 of the MAI Act. It was submitted that the insurer's position in respect of s 6.32 "should not be a determinative factor in respect of the [a]pplication for [d]iscretionary [e]xemption".

1. The claimant relies on written submissions dated 27 January 2026. The submissions record at [1] that the parties agree about the following[1]:

(a) the claimant's wife was injured when the vehicle she was driving collided with another vehicle;

(b) although the claimant did not witness the accident, he subsequently attended at the scene of the accident where he saw the aftermath, including his injured wife, and

(c) the claimant's wife was "solely at fault in causing that accident".

1. The claimant argued that because there is no dispute between the parties regarding any factual matter relating to the occurrence of the accident, there is no need to be able to issue subpoenas to compel witnesses to give evidence, because there is no need to call any witnesses.
2. The claimant argues that the issue of liability is confined to a single dispute, namely whether his wife owed him a duty of care. The claimant disputes that Homsi applies. In the alternative, if Homsi does apply, and there is a finding there was no duty of care to be breached, he argues the accident "must fall within the provisions of a 'no-fault accident' as referred to in Part 5 of the [MAI Act]." It is submitted that in either of those circumstances the insurer is liable to him in respect of his claim for damages.
3. The claimant submits that: an exemption of the claim is unnecessary; the issues for determination fall "clearly within the skillset of each Member of the Commission"; there is no need for witnesses to be called; and the issues about whether there exists a duty of care and if not, whether "this a blameless accident", can be dealt with by way of oral or written submissions.
4. The submissions at [18] - [32] address the prejudice the claimant argues will arise "if the exemption is granted." He argues that prejudice will arise for the following reasons:

(a) he will incur additional costs if the claim is run in the District Court;

(b) as over three years have passed since the accident, he will have to provide a full and satisfactory explanation for the delay and provide evidence that the total damages of all claims likely to be awarded to him if the claim succeeds are not less than 25% of the maximum amount that may be awarded for non-economic loss;

(c) it is possible that leave will be refused to commence proceedings in the District Court. If that occurs the effect of the exemption will be to "deprive him of his damages claim", and

(d) determination of his claim will be delayed.

1. The claimant argues it may "take many years" for his son's claim to be ready for hearing. The suggestion his claim should be heard at the same time was "unacceptable".
2. The claimant submits that the onus rests on the insurer to establish the Commission is an "unacceptable forum for the claim for damages and has failed to do so", and that to grant the insurer's application would be contrary to the objects of "the primary motor accident legislation" and the guiding principle of the PIC Act.
3. On 23 February 2026 the claimant's solicitors sent the following message on the Commission's portal:

"We refer to the Insurer's message that it will not waive its rights under s.6.32 of the Motor Accident Injuries Act. That stance obviously is consistent with an acknowledgement by the Insurer that if the claim is exempted, then the Claimant may not succeed in instituting proceedings in the District Court.

It also means that the Claimant will have the added expense of (both parties) in having to seek leave under s.6.32(3).

Contrary to the Insurer's submission, that prejudice is highly relevant to the determination of the application for exemption. In that regard, the existence of prejudice can be significant enough to refuse to exercise the discretion in granting the application. (And the onus is on the applicant for the exemption, which in the present matter is the insurer.)

It is also relevant for the purpose of complying with the guiding principle of the legislation (s.42 of PIC Act) - namely, to facilitate the just, quick and cost-effective resolution of the real issues of the proceedings. In that regard, in determining the current application the Commission has to give effect to that guiding principle.

In the present circumstances, it would be unjust for the granting of an exemption to expose the claimant to the risk of losing his entitlement to damages and of incurring considerable [sic] more costs and in incurring delays in determining his claim.

The claimant also repeats that the liability issue is one that is suitable to be determined by the Commission. There is no factual dispute and there is no need for witnesses to be called, let alone compelled, to give evidence.

Members of the Commission determine many legal issues that involve much more complexity than concern this matter - for example, see..."[2]

1. This message should not have been sent. The claimant did not have, and did not seek, leave to file additional submissions. Further, any written submissions the claimant sought to rely on should have been filed by way of formal correspondence from his solicitors and not as a message sent through the Commission's portal. I have, nonetheless, considered these submissions; they largely re-state submissions previously made by the claimant. Further, I do not perceive there to be any prejudice to the insurer.

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. The word "suitable" in s 7.34(1)(b) is to be given its natural and ordinary meaning, namely: "[s]uch as to suit; appropriate, fitting, becoming": IAG Limited t/as NRMA Insurance v Khaled & ors [2019] NSWSC 320 at [27].
2. In determining whether a claim is not suitable for assessment for the purposes of s 7.34(1)(b) of the MAI Act, the Commission must consider the objects of the PIC Act: rule 99. 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.
3. The circumstances of the claim must also be considered. Those circumstances here include, without being exhaustive: the circumstances in which the accident occurred; the basis upon which the claimant has asserted an entitlement to damages; the basis upon which the insurer has denied liability for the claim; the matters agreed between the parties; the matters in dispute, and that the claimant will be required to seek leave from the court under s 6.32 of the MAI Act.
4. The MAI Act contemplates that the great majority of disputes will be resolved by the assessment process, and not in court: Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519 (Banos) at [43(a)]. That s 7.34 provides for both mandatory exemptions and discretionary exemptions provides a clear legislative guidepost that appropriate cases should be "redirected" to the court system at an early time by way of preliminary determination: Banos at [43(b)].
5. A relevant consideration is which mode of hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment by the Commission on the one hand, and a court hearing on the other: Banos at [43(d)].
6. The claim is underpinned by the claimant's assertion that his wife, who the parties agree is the only driver whose fault caused the accident, owed him a duty of care and breached that duty. The insurer disputes that a duty was owed.
7. In their correspondence to the insurer dated 23 July 2025 the claimant's solicitor argued, among other things, that:

(a) Homsi v Homsi [2016] VSC 354 "does not apply in New South Wales, if indeed it even still applies to Victorian cases";

(b) section 32 of the CLA "provides the sole test in connection with the issue of 'duty of care'";

(c) section 32 of the CLA "overrides the common law and applies to the present circumstances, rather than the decision in Homsi", and

(d) if Homsi did apply, then the injury to the claimant "must fall within the class of being 'a blameless accident'".

1. At the preliminary conference Mr Sewell argued that whether a duty of care was owed in this case is governed by s 32 of the CLA. There is a dispute about that issue. As I understand the insurer's position, whether there was a duty owed is determined under the common law.
2. The basis upon which the claimant asserts his wife owed him a duty of care has not been the subject of judicial consideration in NSW. Mr Sewell agreed that the legal issue was "novel".
3. Whether the no-fault provisions in Part 5 of the MAI Act are engaged is not a straightforward matter. I do not accept the claimant's submission that if there was no duty of care owed, the claim "must" come within the no-fault provisions in Part 5 of the MAI Act. On my assessment of the evidence, there will be an issue about whether the accident is "a no-fault motor accident" as defined in s 5.1, that provision reading:

"no-fault motor accident means a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person."

1. In conducting a preliminary assessment of the claim, it is not for me to determine the legal issues that arise with respect to the liability dispute. I am required to evaluate whether the claim involves complex legal issues: Transport Accident Commission of Victoria v Leslie Ross Yarham [2016] NSWSC 1791 at [92].
2. The word "complex" is, in this context, an ordinary English word and should be given its ordinary meaning namely: "complicated, involved, intricate, not easily analysed or disentangled": Graham Kelly v Motor Accidents Authority of New South Wales & Anor [2006] NSWSC 1444 (Kelly) at [45].
3. The determination by the Commission that a claim involves complex legal issues is evaluative and must necessarily involve a determination of the relative complexity of the legal issues as compared with the norm: Kelly at [46].
4. In my opinion, this is not a claim that falls within the majority of claims that are resolved by assessment. The majority of claims do not involve novel and complex legal issues such as arise in this claim in relation to: whether a duty of care was owed; whether, and if so to what extent, Part 3 of the CLA applies; and the application of Part 5 of the MAI Act. I am satisfied the claim involves complex legal issues. This is a consideration that weighs in favour of a finding that the claim is not suitable for assessment.
5. A further consideration raised by the insurer is that the "related" claim brought by the claimant's son is litigated in the District Court. The insurer argues both claims should, with respect to the issue of liability, be heard together. The claimant argues that it "may take many years" for his son's claim to be ready for hearing and that the suggestion his claim should be heard at the same time was "unacceptable".
6. The insurer's stated intention is to make an application under UCPR 28.2 for a separate trial on the issue of liability in both matters. If the application is successful, the liability issue in both claims can be determined at the same time, without the need to wait for the son's proceedings to be ready with respect to quantum.
7. The proposed application by the insurer under UCPR 28.2 will involve the exercise of a discretion by the court. Considerations discussed in Southwell v Bennett [2010] NSWSC 1372 and Crawley v Vero Insurance Ltd [2012] NSWSC 593 will come into play. It is not for me to determine whether any such application will be successful. However, given that critical facts are agreed between the parties, and given the parties agree the liability issues can be determined on written and oral submissions, there is a real possibility that an order under UCPR 28.2 will be made for a separate trial on liability. This is also a relevant consideration that supports a finding that the claim is not suitable for assessment. That is because a separate hearing by a court on the question of liability in both claims at the same time is likely to facilitate the just, quick, and cost effective resolution of the real issues in dispute.
8. It is a relevant consideration that if the claim is not exempted and proceeds to assessment in the Commission, in addition to making an assessment of liability the Commission will also be required to make an assessment of damages. That is because s 7.36 requires the Commission to make an assessment of the issue of liability for the claim and the amount of damages for that liability: s 7.36(1). The assessment is to specify an amount of damages: s 7.36(3). The Commission must, as soon as practicable after an assessment, issue the insurer and claimant with a certificate as to the assessment and is to attach a brief statement to the certificate, setting out the Commission's reasons for the assessment: s 7.36(4) and (5).
9. The Commission, unlike a court, does not have the power to make a separate assessment of liability. There is no equivalent provision in the MAI Act, the PIC Act, or the rules to UCPR 28.2.
10. I am satisfied that the claim proceeding to assessment in the Commission is less likely to facilitate the just, quick and cost-effective resolution of the real issues in dispute because the Commission will be required to assess both liability and damages.
11. Neither party will be bound by the Commission's assessment of liability: s 7.38(1). This is a consideration I am entitled to take into account: Kelly at [46]. If the claim proceeds to assessment by the Commission, and the claimant is successful on the issue of liability, it is likely the insurer will not accept the assessment. If that comes to pass, and the claimant wants to pursue his claim, he will be required to commence proceedings in the District Court.
12. Likewise, if he is unsuccessful at assessment on the issue of liability, and wants to pursue his claim, the claimant will have to take the same course. This will involve further time, effort, and costs. These considerations weigh in favour of a finding that the claim is not suitable for assessment.
13. I have given consideration to the claimant's submission that his claim may be barred because it was made late and that it would be "unjust for the granting of an exemption to expose [him] to the risk of losing his entitlement to damages".
14. It is not immediately apparent how it can be said the claimant will lose his "entitlement to damages" in circumstances where any assessment of damages by the Commission will not bind the parties, liability for the claim having been denied by the insurer: s 7.38(2).
15. If the claimant intends to pursue his claim, the likelihood is that he will, sooner or later, be required to seek leave under s 6.32 and satisfy the court of the relevant matters under that provision. I am not satisfied the prospect of the claimant having to seek leave under s 6.32 is a matter that tips the balance against a finding that the claim is not suitable for assessment.
16. The claimant argues he will suffer prejudice if the claim is exempted because he will incur costs associated with running the case in the District Court. As already stated, neither party will be bound by any assessment of the claim made by the Commission. There is a real chance that, given the matters in dispute, the proceedings will ultimately proceed for determination in the District Court in any event. The potential for this to occur, with the associated time and costs, weighs in favour of a finding that the claim is not suitable for assessment. That is because proceeding to an assessment would not facilitate the just, quick, and cost-effective resolution of the real issues in dispute.
17. I am not satisfied that exempting the claim from assessment will give rise to significant delay. Proceedings can be commenced once a certificate of exemption is issued. The parties will need to prepare their respective cases with respect to liability and damages as they would in the Commission. A hearing in the District Court is likely to occupy the same amount of hearing time as in the Commission. If liability is determined as a separate question the proceedings can be determined expeditiously.
18. Having made a preliminary assessment of the claim, and for the foregoing reasons, I am satisfied 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.
19. 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 18 March 2026, approved Senior Member Brett Williams recommendation that the claim is not suitable for assessment.

[1] This was confirmed by the insurer's solicitor at the preliminary conference.

[2] The claimant's solicitor here referred, including by reference to the name of the claimant, to a decision of the Commission that had been de-identified on publication.