MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); Workers Compensation Act 1987 (1987 Act); claimant brought common law claim for injury sustained as a result of his attendance at a motor vehicle accident in his role as a rescuer with Fire and Rescue NSW; consent application for discretionary exemption; associated recovery proceedings in District Court under section 151Z of the 1987 Act; grounds of defence in motor accident claim mirror grounds of defence in proceedings under section 151Z of the 1987 Act; if claim proceeded to assessment in Commission and section 151Z proceedings in District Court risk of inconsistent findings of fact and determination; unnecessary duplication of resources and be contrary to the objects of the MAI Act and the Personal Injury Commission Act 2020; Held - complex factual and legal issues including issues of liability, fault, and causation; claim should be heard in District Court with associated proceedings under section 151Z of the 1987 Act; exemption recommended; recommendation subsequently approved by the Division Head, as the President's delegate.

RECOMMENDATION - CLAIM NOT SUITABLE FOR ASSESSMENT

1. Deryck Salfus (the claimant) alleges he sustained injury whilst attending the scene of a motor vehicle accident in his role as a rescuer with Fire and Rescue NSW on 1 May 2021.
2. Insurance Australia Limited trading as NRMA Insurance (the insurer) is the compulsory third party insurer of the alleged at-fault vehicle.
3. The insurer asks that I refer the claim to the President of the Personal Injury Commission (Commission) with a recommendation that the claim be exempted from assessment under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (the MAI Act) and rule 99(3) of the Personal Injury Commission Rules 2021 (the PIC rules).
4. Rule 99 of the PIC Rules provides that in determining whether a claim is suitable for assessment, the Commission must consider the objects of the Personal Injury Commission Act, 2021 (PIC Act) and the circumstances of the claim.
5. In determining whether a claim is not suitable for assessment for the purposes of

s 7.34(1)(b), matters the Commission may consider under rule 99(3) of the PIC Rules include the following:

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

(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, and

(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. In the Application for Personal Injury Benefits dated 31 March 2025 Mr Salfus described the accident as follows:

"Vehicle 1 (DPD24U) ran through a red light and collided with Vehicle 2 (2513ST) at the intersection of Argyle Street and O'Connell Street, Parramatta NSW (the accident scene). I am a Fire and Rescue NSW employee who attended the accident scene as a rescuer."

"The passenger in vehicle 1 (the victim) was injured and trapped in the vehicle. While I was rescuing the removing the victim from the front passenger seat of Vehicle 1 (DPD42U), I suffered an injury to my left knee, ankle and leg. The victim later died of her injuries. I suffered a psychological injury at the scene and further as a consequence of my injuries."

1. Mr Salfus claims common law damages as a result of the injuries he alleges he sustained as a result of his attendance at the motor vehicle accident on 1 May 2021.
2. Having been injured in the course of his employment, the claimant contemporaneously filed a claim for Workers Compensation benefits. Employers Mutual Limited (EML) is the relevant workers compensation insurer.
3. EML has made a claim for recovery against the insurer under section 151Z of the Workers Compensation Act 1987. Liability for the recovery is firmly in dispute. The 151Z recovery is currently litigated in the District Court of New South Wales (the s 151Z Proceedings). The 151Z Proceedings were filed on 17 January 2024.
4. On 18 February 2025, the 151Z Proceedings were listed for hearing over four days commencing 21 July 2025. However, due to the subsequent lodgement of the claim for common law damages by the claimant that hearing date was vacated.

1. The insurer issued a liability notice dated 30 June 2025 in response to the claim for damages. The grounds upon which liability for the common law claim is disputed mirror the grounds upon which the section 151Z Proceedings are disputed. Those grounds can broadly be summarised as follows:

(a) It is denied the claimant was injured in circumstances governed by the MAI Act, noting the terms of s1.9.

(b) It is denied the insured driver's actions created a "dangerous situation" (within the meaning of that term as it appears in s 1.9 and in the definition of a 'motor accident' in s 1.4 of the MAI Act) which caused injury to the claimant.

(c) It is denied the insured driver owed the claimant a duty of care

(d) It is denied that the claimant's injuries were reasonably foreseeable as a consequence of the driving of the insured driver.

(e) If the insured driver did owe the claimant a duty of care, it is not admitted that the insured driver breached that duty.

(f) It is denied the claimant's injuries were caused by the insured driver's negligence. Rather, the claimant's injuries were caused by the manner in which he performed his duties at the accident scene and/or the system of work invoked by the claimant's employer at the accident scene.

(g) It is denied the claimant's injuries were a result of and caused during a "dangerous situation".

(h) It is not appropriate for the scope of the insured driver's liability to extend to the harm said to have been suffered by the claimant.

1. The insurer submits the basis upon which the claim is defended gives rise to complex legal or factual issues (rule 99(3)(a)) and that the claim involves issues of liability, including contributory negligence, fault or causation (rule 99(3)(b)) which are already before the Court for determination.
2. The insurer submits in determining the s 151Z Proceedings that the court will be required to undertake a notional assessment of the claimant's entitlement to common law damages, and that same assessment will also have to be made in the claimant's common law claim.

'If the damages claim were to remain before the Commission for assessment while the 151Z Proceedings are notionally assessed by the Court, that situation would:

(a) give rise to an unacceptable risk of multiplicity and inconsistent findings of fact and determination in each forum;

(b) be inefficient as it would result in an unnecessary duplication of the resources of each forum and require the unnecessary duplication of evidence and preparation by the parties thereby increasing the overall costs, and

(c) be contrary to the objects of the MAI Act, the Personal Injury Act 2020 and s 56 of the Civil Procedure Act 2005 for matters to be dealt with justly, quickly and cost effectively.

1. The insurer submits it is in the interests of the parties and of the efficient administration of justice that both claims are heard together in the same forum."
2. Accordingly, the insurer submits the claim is not suitable for assessment and should be exempted so that the common law claim can be heard by the District Court at the same time as the related s 151Z Proceedings.

1. The claimant uploaded a Reply 30 July 2025.
2. The claimant agrees that the claim is not suitable for assessment and that it should be exempted. The claimant consents to the insurer's application.

1. Having regard to the complex factual and legal issues including issues of liability, fault and causation and the associated 151Z proceedings already litigated in the District Court I agree with the parties that this claim should be exempted from assessment and heard together with the 151Z Proceedings in the District Court.
2. Accordingly, I am of the view this claim should be exempted from assessment by the Commission.

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 exempted from assessment.
2. I vacate the preliminary conference listed on 13 August 2025 at 9am.
3. 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 4 September 2025, approved Senior Member Susan McTegg's recommendation that the claim is not suitable for assessment.