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 cl 99 of the Personal Injury Commission Rules 2021.

1. This is a mental harm case. The husband of the claimant suffered fatal injuries in a motor vehicle accident on 26 September 2022.
2. The three children of the claimant have also commenced a mental harm claim and a Compensation to Relatives Claim has been commenced in the jurisdiction of the District Court on behalf of the claimant and her three children. One child is a minor, and for this reason Certificates of Exemption have been issued in respect of the Compensation to Relatives Claim and the mental harm claim on behalf of the three children.
3. The solicitor for the claimant submits, since there is overlapping liability issues across all matters, it is appropriate all matters, being the four mental harm claims and the Compensation to Relatives Claim run concurrently together in the District Court.
4. The solicitor for the insurer also submits this matter should be exempted on a discretionary basis from the jurisdiction of the Personal Injury Commission (Commission).
5. It is submitted in relation to the claimant's mental harm claim and in each of the related mental harm claims of the three children, liability has not been wholly admitted by the insurer. The insurer has alleged contributory negligence in the amount of 10% in a liability notice dated 9 February 2024.
6. Regarding the issue of liability in the Compensation to Relatives Claim the insurer has made an identical allegation of contributory negligence to the one raised in the mental harm claims.
7. I accept the submissions from both parties this matter should be exempt from the jurisdiction of the Commission pursuant to the provisions of rule 99 of the Personal Injury Commission Rules 2021 (PIC Rules).
8. I note the matter can be exempted under s 7.34 (1) (b) of the Motor Accident Injuries Act 2017 (MAI Act) on the following ground,

(a) the claim involves issues of liability, including contributory negligence, fault or causation (rule 99 (3) (b) of the PIC Rules).

1. Having regard to the fact this is a mental harm claim, and proceedings have already been commenced on behalf of the children and the claimant in the jurisdiction of the District Court, I consider it appropriate this claim is not suitable for assessment and should be exempt from assessment in the jurisdiction of the Commission to enable proceedings to be commenced on behalf of the claimant in the District Court in Sydney.

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,

(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 cl 99 are relevant.
2. The first relevant consideration is under sub-clause 99(2) of the PIC Rules. When determining whether a claim is not suitable for assessment, the Commission must consider the objects of the Personal Injury Commission Act 2020 (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 rule 99 including that the claim potentially involves:
   • complex legal or factual issues;
   • issues of liability, including issues of contributory negligence, fault or causation, and
   • whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State.
4. 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:
   • the objects of the PIC Act set out in s 3 which include the quick, cost effective, just, and informal resolution of disputes, and
   • the claim involves potential issues about liability or contributory negligence and conflicting evidence about how the accident occurred.
2. I have determined in my preliminary assessment that this claim is not suitable for assessment under Division 7.6 of the MAI Act.
3. I recommend that the claim be exempt from assessment by operation of sub-section 7.34(1)(b) of the MAI Act and cl 99 of the PIC Rules.
   1. 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 14 July 2025, approved Member David Ford's recommendation that the claim is not suitable for assessment.