1. The claimant, Ms Rosemery Landeira Sanchez was involved in a motor vehicle accident on

9 November 2022 (accident). She was conveyed by ambulance to St Vincent's Hospital for treatment. 2. She made a claim for statutory benefits on 2 December 2022 at which time the third-party insurer, AAI Limited t/as GIO (insurer) accepted liability and alleged 35% contributory negligence. 3. On 2 September 2024, she made a common law damages claim against the insurer. In their reply, the insurer increased the allegation for contributory negligence to 80%. 4. Ms Sanchez sustained injuries to her head, right hand, leg, foot and ankle, neck and low back and pelvic region. She developed sepsis and thrombosis after St Vincent's Hospital staff, allegedly failed to treat a cannula inserted into her right arm with professionalism. 5. Ms Sanchez has filed an application in the Personal Injury Commission (Commission) seeking an exemption from assessment. 6. The insurer concedes the claim is not suitable for assessment in the Commission and supports the claimant's application.

1. Ms Sanchez is 30 years old. She works as a financial accountant.
2. At the time of the accident, she was riding her Vespa motor scooter travelling towards the intersection of Bourke and Danks Street, Waterloo. She was knocked to the roadway by the insured driver causing injuries.
3. The ambulance attended the scene of the accident and after initial assessment of

Ms Sanchez's injuries, she was immobilised. The ambulance officers inserted an intravenous access device 20g cannula into her right arm to administrator medication. She was transported to St Vincent's Hospital where she was admitted for treatment. 4. This device was not changed by hospital staff until the day after discharge when she returned to the hospital. A nurse removed the cannula from the claimant's right arm in the hospital carpark. 5. The following day, Ms Sanchez returned to the hospital and was diagnosed with sepsis which required admission for extensive treatment over a number of weeks.

1. The claimant submits this claim is not suitable for assessment by the Commission on grounds the claim involves a non-third party in relation to an allegation of medical negligence.
2. A further ground to support the claimant's application is the suggested likelihood of complex arguments concerning contributions to the alleged medical negligence claim and injuries sustained in the accident.
3. The claimant notes there are two different statutory damages schemes which will need to be applied to the medical negligence action where damages are assessed under the Civil Liability Act 2002 (NSW), whereas injuries sustained in the motor accident claim are to be assessed in accordance with the Act.
4. The claimant highlights the insurer's allegation of 80% contributory negligence, which is denied. Both claims involve complex issues of liability and contributory negligence.
5. More importantly, the claimant submits both claims should run together in the same jurisdiction where apportionment can be applied and to ensure there is no 'double dipping' in the assessment of damages.
6. The insurer agrees that this matter ought to be exempt due to the involvement of a non-third party, the overlap between the two claims, the different statutory schemes regulating each award of damages, the contributory negligence allegation, and the need to avoid duplicate damages being awarded with respect to pain and suffering and economic loss.

1. Section 7.30 of the Motor Accident Injuries Act 2017 defines "claims assessment" as an assessment of a claim by the Commission under Division 7.6.
2. Section 7.31 of the 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 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 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 approval of the President) that the claim is not suitable for assessment under this Division (a discretionary exemption).

1. Rule 99 of the Personal Injury Commission Rules 2021 (PIC Rules) deals with the matters I should consider when granting a discretionary exemption from a claims assessment. Rule 99 relevantly provides:

"Consideration of discretionary exemption from claim assessment

(1) A claimant or insurer may apply for an exemption from assessment under section 92(1)(b) of the Motor Accident Compensation Act 1999 or section 7.34(1)(b) of the Motor Accident Injuries Act 2017 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 Motor Accident Compensation Act or section 7.34(1)(b) of the Motor Accident Injuries Act, the Commission must consider the objects of the Personal Injury Commission Act 2020 and the circumstances of the claim.

(3) Without limiting the matters that may be considered, the Commission may consider the following:

1. whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim,
2. whether the claim involves issues of liability, including contributory negligence, fault and causation,
3. whether a claimant or witness, considered by the Commission to be a material witness, resides outside the State,
4. whether a claimant or insurer seeks to proceed against one or more non-CTP parties,
5. 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, the claim in question is not one of a kind in cl 14 of the Regulation that is exempt from assessment under Division 7.6 of the Act.
2. Accordingly, an exemption from a claim assessment can only be granted at my discretion, pursuant to sub-s 7.34(1)(b) of the Act, if I make a preliminary assessment of the claim and determine (with approval of the President) that the claim is not suitable for assessment by the Commission.
3. According to sub-rule 99(2) of the PIC Rules, in making the determination, I must consider the objects of the Personal Injury Commission Act 2020 (PIC Act) and the circumstances of the claim.
4. It is apparent from the reasons advanced by both the claimant and the insurer that the discretionary exemption is primarily being sought on the basis of issues concerning liability, contributory negligence, and the involvement of a non-CTP party. Their focus is on overlap of motor accident injuries and the medical negligence allegations.
5. The claimant has commenced proceedings in the District Court of New South Wales against the hospital in which the medical negligence allegations have been pleaded. There is a pre-trial date listed for hearing on 3 March 2026 in the District Court.
6. The claimant and the insurer acknowledge the claim involves complex legal and factual issues of liability, contributory negligence and the overlap of the assessment of damages.
7. The claimant and the insurer acknowledge the involvement of a non-CTP party in the District Court against the relevant institution in which the alleged medical negligence has been commenced.

IS THE CLAIM NOT SUITABLE FOR ASSESSMENT BY THE COMMISSION

1. It is apparent from the provisions of s 7.36 of the Act that in conducting a claims assessment, the Commission has jurisdiction to assess issues of liability.
2. It is important to keep in mind the question that I need to address when determining whether to grant 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.
3. This explains why I am required, in accordance with sub-rule 99(3) of the PIC Rules, to consider whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim, the involvement of the non-CTP party and the issues of liability and contributory negligence. These considerations are 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, would render the claim not suitable for assessment by the Commission.
4. In consideration of whether or not a claim involves complex factual, legal and quantum issues is an evaluative exercise which must necessarily involve a determination of the relative, legal and quantum issues as compared with the norm. The word complex should be given its ordinary meaning in the context of reg 99(3)(a) of the PIC Rules and is used in the sense of complicated, not simple, difficult to analyse, understand and explain.
5. Having considered all relevant issues proposed by both the insurer and the claimant, I agree this claim is not suitable for assessment by the Commission. The issues in this case on liability and contributory negligence are complex. Issues involving medical negligence are complex and there is a potential overlap of the assessment of damages. There is a non-CTP party involved.
6. The just, quick and effective resolution of the claim will best be dealt with by a court where non-CTP parties can be joined to the proceedings.
7. Ms Sanchez has made a medical negligence claim which cannot be dealt with by the Commission. Proceedings are underfoot in the District Court, and it is the claimant's intention to join the CTP claim to those proceedings.
8. I am satisfied that this is not a claim that falls within the majority of claims that are resolved by assessment. The majority of claims do not involve complex factual and legal issues surrounding the circumstances of a medical negligence allegation, liability and contributory negligence.

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 Act and I recommend to the President that it be exempt from assessment.