Recommendations claim not suitable for assessment

Issued under s 7.34 (1) (b) of the Motor Accident Injuries Act 2017

My preliminary assessment of the claim and I recommend to the President that:

1. This claim is not suitable for assessment under Division 7.6.
2. This claim is exempt under sub-section 7.34(1)(b) of the Motor Accident Injuries Act 2017 and r 99 of the Personal Injury Commission Rules 2021.

1. On 6 April 2022, at approximately 8.30 pm, the claimant was riding his Kawasaki motorcycle southbound on Roberts Road in Greenacre, when the insured motor vehicle, which was travelling northbound, made a right-hand turn, into Amarina Avenue, across the path of the claimant's oncoming motorcycle which resulted in a collision.
2. In the Application for Personal Injury Benefits, the claimant describes the circumstances of the accident as follows:

"I was travelling to friend's house and a grey car turned in front of me, I hit it, then blacked out."

1. The claimant sustained several serious injuries, particulars of which are as follows:
   • right knee injury with torn ligaments.
   • left forearm fractures (radius and ulna);
   • left elbow dislocation.
   • right heel laceration.
   • head injury with subdural haemorrhage, and
   • psychological injuries.
2. The claimant made an application for Common Law Damages dated 31 May 2023. The insurer has denied liability for the claim on the basis the claimant was engaged in motor racing at the time of the accident. At the time of the accident, he was employed as a store person.
3. The insurer has obtained CCTV footage of the claimant riding his motorcycle along Roberts Road shortly prior to the collision, and in respect of this footage, the insurer obtained a report from Dr Anderson, mechanical engineer, dated 17 January 2025. Dr Anderson, in summary, has opined the following:
   • the motorcycle driven by the claimant was travelling at approximately 130 kmph at the time of the collision. The speed remained consistent for at least 2.3 seconds before impact;
   • CCTV footage depicts another vehicle identified as a BMW travelling in close proximity to the claimant's motorcycle. Both vehicles were exceeding the speed limit by approximately 60 kmph. Dr Anderson was of the view that is reasonable to infer that the two vehicles were racing in the seconds leading up to the collision, and
   • Dr Anderson is of the opinion that the claimant's excessive speed was the primary cause of the collision.
4. The insurer submits the matter ought to be exempted from assessment and allowed to proceed in an appropriate forum, where the legal and factual complexities can be properly considered and where a binding decision can be made and where non-party witnesses can be compelled to give evidence. The insurer lodged submissions dated 24 July 2025 and

7 November 2025. 5. I note the matter can be exempted under s 7.34(1)(b) of the Motor Accident Injuries Act 2017 (the MAI Act) on the following grounds:

(a) the claim involves issues of liability, including contributory negligence, fault or causation (rule 99(3)(b) of the Personal Injury Commission Rules 2021 (PIC Rules)). The insurer lodged submissions dated 24 July 2025 and

7 November 2025.

(b) the insurer submits the matter is not suitable for assessment and ought to be exempted pursuant to r 99 of the PIC Rules, for the following reasons:

(i) the claim involves complex factual issues, r 99 (3)(a);

(ii) the matter involves issues of liability including contributory negligence, fault or causation, r 99 (3)(b), and

(iii) the insurer anticipates the need to call multiple witnesses to give evidence at the hearing and the Commission does not have the power to compel third parties to give evidence (s 51 Personal injury Commission Act 2020 (the PIC Act)).

1. In the submissions dated 7 November 2025. The insurer sets out in detail the attempts which have been made to contact the insured driver which to date have been unsuccessful. The insurer engaged Quantumcorp Investigators to undertake investigations in relation to liability for this matter. A running sheet detailing of attempts to contact the insured was provided and the following is noted:

(a) on 5 January 2024 investigators attempted to contact the insured via both reported telephone numbers. Neither call was answered, and a text message was left.

(b) on 10 January 2024 investigators spoke with the insured mother via telephone and explained the purpose of the call. She confirmed the insured is her son and said she would pass on the details and advise him to return the call.

(c) on 15 January 2024 investigators attempted to contact via telephone the insured's mother again, however, there was no answer.

(d) on 17 January 2024 investigators attended the insured's residential address and spoke with the insured's mother. An envelope containing a letter outlining the insured's obligations to comply was handed to her to pass on to the insured.

(e) on 19 January 2024 investigators spoke with insured by telephone. He advised he would provide a statement with the date and time to be arranged.

(f) on 23 January 2024 investigators attempted to contact the insured by telephone. The call was not answered, and he later texted that he was at work.

(g) on 24 January 2024 investigators again attempted to contact the insured by telephone, however there was no answer.

(h) on 29 January 2024 another call was made to the insured but again there was no response.

(i) on 30 January 2024 the insured advised he was busy and would contact investigators to arrange a suitable time.

(j) on 8 February 2024 and 14 February 2024, the insurer sent follow up text messages to the insured, and

(k) no further contact was received from the insured after this date.

1. The solicitor for the insurer tried to contact the insured by telephone on 8 October 2025. The individual who answered denied being the insured and advised the number had recently been allocated under a new plan. On 9 October 2025 the insurer issued a letter via registered post to the insured, Mr Hadi Khalil, at his residential address outlining his obligations pursuant to the MAI Act to cooperate with the insurer in relation to the claim. The letter requested he contact the insurer. On the same day, a letter was also issued to a key witness Mr Madi Khalil of the same residential address who was a passenger in the insured vehicle at the time of the accident requesting he make contact to discuss the matter further. Neither party has provided response to date. On 6 November 2025 a further attempt was made to contact the insured by telephone, however the call was not answered.
2. It is submitted by the insurer in the interest of procedural fairness the matter must be exempted so both parties will have the opportunity to cross examine all witnesses including the insured.
3. The solicitor for the claimant in their submissions dated 16 September 2025 opposed the application by the insurer for discretionary exemption. In summary in their submissions the solicitor for the claimant had submitted there had been no indication the insurer had sought to confirm the cooperation and attendance of the insured driver and other witnesses to any proposed assessment conference at the Commission. In this regard I note the following submission made by the solicitor for the claimant:

"3.10 In relation to the insured and insured passenger, there is no indication that the insurer has sought to confirm their cooperation and attendance to any future liability hearings in the PIC. Until this cooperation and attendance is sought and potentially confirmed, it is respectfully submitted that the matter ought to remain in the PIC, so as to facilitate the just, quick and cost effective resolution of the subject claim given the extraordinary cost that would ensue to both parties in the event that matter is exempt, such confirmation as to the need to issue subpoenas to give evidence ought to be established first."

I note these submissions predate the further submissions made by the insurer dated

1. Having regard to the further submissions from the insurer dated 7 November 2025 regarding their attempts to locate the insured driver and other witnesses and obtained their cooperation I determine the evidence of all the persons involved in this incident are crucial to properly determine the facts in issue and their attendance at an assessment conference cannot be assured. In District Court proceedings, the attendance of such non-party witnesses can be facilitated by way of a subpoena which is an effective method of compelling such attendance. I therefore determine it will be necessary to arrange for their attendance by way of subpoena at any hearing in the District Court.
2. I note the definition of a "party" in s 7.3 of the MAI Act which extends to the "claimant and insurer" only. Accordingly under the current Commission mechanisms, the only parties who can be compelled to give evidence are the claimant and the insured owner, whilst there are otherwise penalty units for a failure to comply under s 51 of the PIC Act ,there is not the equivalent of a bench warrant for arrest for the failure to comply with a summons, as is the case for the failure to comply with a subpoena in the District Court. Accordingly, for the matter to remain in the Commission, it cannot be certain that all relevant witnesses with this evidence will be adduced, whereas the District Court provides the ability to issue subpoena to attend to give evidence.
3. I recommend the matter be exempted for the reasons, I have stated above regarding the requirement to subpoena the various individuals referred to above to any future hearing in the District Court and this requirement cannot be achieved if the claim remains in the jurisdiction of the Commission.

1. Sub-section 7.34 (1)(a) provides that a claim is exempt from assessment under this Division the claim is of a kind specified in the regulations as a claim that is exempt from assessment under this Division.
2. Sub-section 7.34 (1)(b) provides that a claim is exempt from assessment under this Division if a preliminary assessment of the claim has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.
3. Rule 99 of the PIC Rules list the grounds for considering whether claim is not suitable for assessment as follows:

"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, 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 this case a number of considerations listed in r 99 are relevant.
2. The first relevant consideration is under sub-cl 99 (2) of the PIC Rules. When determining whether a claim is not suitable for assessment, the Commission must consider the objects of the PIC Act and the circumstances of the claim. Section 3 of the PIC Act which refers to the objects of the MAI Act, enjoins the Commission to be: accessible, professional and responsive to the needs of all of its users; encourages early dispute resolution; and resolves the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
3. In making my findings, I am also mindful of other relevant consideration listed in r 99 including that the claim potentially involves:

(a) complex legal or factual issues.

(b) issues of liability, including issues of contributory negligence, fault or causation, and

(c) whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State.

1. Although, I am concerned about the extra delay and legal costs to be experienced by the claimant, on balance I recommend that this claim is exempt from assessment and is not suitable for assessment under the Division 7.6.

1. In making my preliminary assessment recommending that the matter be exempted from assessment, I have had regard to the following:

(a) the objects of the PIC Act set out in s 3 which include the quick, cost effective, just, and informal resolution of disputes, and

(b) the claim involves potential issues of about liability or contributory negligence and conflicting evidence about how the accident occurred.

1. I have determined in my preliminary assessment that this claim is not suitable for assessment under Division 7.6 of the MAI Act.
2. I recommend that the claim be exempt from assessment by operation of sub-section 7.34(1)(b) of the MAI Act and r 99 of the PIC Rules.
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 28 January 2026, approved Member David Ford's recommendation that the claim is not suitable for assessment.