The application before me involves the claimant seeking an exemption on the basis that a material witness to the claimant's economic loss case is unable to provide a signed statement or attend the Commission proceedings allegedly as a consequence of his employer's directions not to participate.
It is common place for a party to seek an exemption when the particular witness cannot be compelled by the commission to appear. Witnesses, medical practitioners, police officers and any third party to the proceedings are often required to give evidence and require a subpoena. The commission has limited powers to compel parties to the proceedings only and it does not include in this case Mr Oakley, required by the claimant.
The insurer in the present matter considers that the calling of the witness Mr Oakley, a second cousin of the claimant does not impact on the information likely to be provided and the relevance of his information or evidence to matters addressing the claimant's intention and likely circumstances but for the accident, where other information is already on hand to establish comparative earning capacity.
The claimant disagrees with the insurer's assessment of the weight of the evidence likely to be given by Mr Oakley and the seeks to rely on the evidence of this witness to provide what is considered evidence going to the core of the claimant's economic loss claim.
Noting that the claim involves a significant claim for past and future economic losses, the claimant's ability to call witnesses to give evidence as it relates to losses claimed is a consideration which directly impacts on whether the matter is suitable to remain at the Commission.
Whilst the insurer has claimed there are other methods to adduce evidence as to comparable earnings, it is a matter for the parties to arrange their evidence and it is procedurally fair to enable the parties to call any witness they choose. The relevance of the evidence and reliance placed upon such evidence is a matter for the ultimate decision maker.
The weight of the witness's evidence and the evidence to be given in examination in chief and cross-examination cannot be ascertained merely on an unsigned statement relied upon to date. I am satisfied that this matter involves complex issues in the assessment of damages and grounds for a recommendation that the matter is unsuitable.
At to the impact of the claimant's injuries on his earning capacity, the most likely circumstances but for the accident are not agreed between the parties and so the ability to call a witness by subpoena to provide evidence going to the issues in dispute brings a complexity which can only be satisfied by an exemption to enable the party seeking to call the witness to be compelled to appear in a court.
The cost effectiveness of the matter being heard at Court is a matter to be considered in this situation, as the claimant's submissions as to the likelihood that the matter would be dealt with at first instance with the relevant witness present, is persuasive that costs would be reduced by avoiding re-hearings.
The matter involves a complexity envisaged by rule 99(3) of the Rules sets out circumstances in which a claim may be found unsuitable for assessment as follows:
[2]
(a) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim.
[3]
There is presently a complexity in the assessment of the claim that a party is required to be compelled to give evidence and for this reason, the matter is unsuitable to remain at the Commission and the discretionary exemption is recommended.
[4]
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 Motor Accident Injuries Act 2017 and I recommend to the President that it be exempt from assessment.
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 29 September 2025, approved Member Shana Radnan's recommendation that the claim is not suitable for assessment.
Parties
Applicant/Plaintiff:
Lovelock
Respondent/Defendant:
AAI Limited t/as GIO [2025] NSWPIC 500;
Legislation Cited (4)
Personal Injury Commission Act 2021
Accident Injuries Act 2017
Injury Commission Rules 2021
Injury Commission Act 2020
Cases Cited (9)
Lovelock v AAI Limited t/as GIO [2025] NSWPIC 500; (25 August 2025)
In support of the Claimant's allegations concerning his probable uninjured earnings, the Claimant intended to rely upon the evidence of Mr Michael Oakley, the Claimant's cousin, who successfully pursued employment as a coal train driver. I spoke with Mr Oakley by telephone on 24 August 2021 and 11 July 2025 and on both occasions, Mr Oakley indicated that he would provide me with a statement for use in these proceedings. During those conversations with Mr Oakley, I interviewed him and prepared a draft statement in line with the information he conveyed to me. That draft statement is Annexure A to this application. This is an outline of the evidence the Claimant intends to adduce from this witness.
Despite Mr Oakley's assurances that he would provide a signed statement, he has not done so, and he has been uncontactable by me in the period since 11 July 2025, despite numerous efforts I have made to reach him. The Claimant also made multiple attempts to contact Mr Oakley during this time, most of which were ignored. I am instructed that on 20 July 2025, however, Mr Oakley contacted the Claimant and advised him that he would not be providing any further information for use in the proceedings as he had been instructed by his employer's legal team to not do so.
On 21 July 2025, I sent an email to Mr Oakley, a copy of which is annexed and marked 'B'. To date, I have received no response to this email.
Mr Oakley's evidence is critical to the assessment of the Claimant's damages as it is evidence that establishes that the Claimant's probable uninjured earnings well exceed his pre-injury earnings. This evidence accordingly has the potential to increase the Claimant's damages for diminution of earning capacity by more than $1,000 net per week. Without this evidence, the Commission will be unable to properly assess the Claimant's losses, and the Claimant will be unable to discharge his evidential burden.
Unlike the court, the Commission has no power to issue a summons compelling a non-party to attend the hearing for questioning: s51(2) Personal Injury Commission Act 2021. Further, unlike a court, the Commission has no power to require a witness to answer a question: see [14] below.
As such, the Commission has no power to compel Mr Oakley to give evidence that will assist the Commission in the assessment of the Claimant's damages. The Court, however, does have such powers. It follows that, in the Claimant's submission, the matter is not suitable for assessment by the Commission and so ought to be exempted. This will enable the Claimant to commence court proceedings, and to arrange for the court to issue a subpoena compelling Mr Oakley to attend the hearing to give evidence. In that case, Mr Oakley will not be able to decline to answer questions by reason of his employer's instruction. The court may compel a witness to answer a question.
Clause 99(2) of the Personal Injury Commission Rules 2021 provides: 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.
Clause 99(3) sets out a non-exhaustive list of matters that may be considered by an assessor in this regard, but it is not necessary that a case fall into one of these categories in order to be considered not suitable for assessment: IAG Limited t/as NRMA Insurance v Xie [2020] NSWSC 1112 at [9].
In Allianz Australia Insurance Ltd v Tarabay [2013] NSWSC 141, Rothman J drew attention to some of the limitations on an assessment conference and on an assessor, which are apposite to the present proceedings. While this decision related to a claim for assessment by CARS under the 1999 Act, the 2 position under the 2017 Act and the PIC Act is not materially different. His Honour said:
In IAG Limited t/as NRMA Insurance v Khaled & Ors [2019] NSWSC 320 Bellew J emphasised (at [27]):
In Insurance Australia Limited v Banos [2013] NSW 1519 at [43], Bellew J held that relevant considerations include:
17. In IAG Limited t/as NRMA Insurance v Qianxia Lou [2019] NSWSC 382 at [23], Wilson J held: 'It was not a question of whether the issues raised by the insurer were commonly dealt with, and thus could be dealt with, by assessment; the question was whether the issues made the matter not suitable for assessment within CARS.'
18. In QBE Insurance (Australia) Limited v Blakeney [2024] NSWPIC 148, the Member said (from [62]):
Mr Oakley is a critical witness to the claimant's claim for past and future economic loss for obvious reasons. Should the matter proceed before the Member, there will no doubt be an argument that the claimant should either be given an allowance for economic loss arising from a precise mathematical calculation which would then be discounted pursuant to the principles of Malec v JC Hutton Pty Ltd[1990] HCA 20. In that case, reference was made to Heydon J's comments in NSW v Moss[2000] NSWCA 133:
At paragraph 31 of the judgment in Allianz v Kerr[2012] NSWCA 13, the Court made reference to the decision in Nominal Defendant v Livaja[2011] NSWCA 121 and recited a number of assumptions upon which the trier of the fact would be influenced; they are as follows:
identify the skills, training and experience of the claimant at the date of accident;
identify the intentions of the claimant at the date of accident;
identify the work which undertaking immediately prior to the accident;
determine the likelihood the claimant would have continued in such employment but for the accident;
determine the possibility the claimant may have obtained promotion or other benefits but for the accident, and
assess the possibility that the employment would have been continuous.
These are factors the present Member would be minded to focus on in determining the issue of future economic loss in this case.
The claimant's argument at hearing will be that he had excellent prospects of obtaining work as a train driver and he will wish to rely upon the evidence that would have been given by
(a) The claimant is a 29-year old....who alleges sustaining injuries in a motor vehicle accident that occurred on 23 November 2018.
(b) On 23 July 2025, the claimant lodged an Exemption Application with the Commission asserting, for the first time, that the matter was not suitable for assessment at the Commission on the basis that the claimant's second cousin would not provide a signed statement.
(c) The insurer lodged Exemption Reply Submissions on 4 August 2025, objecting to the claimant's exemption application on a number of grounds, including that the asserted issues to not represent a 'complexity' so as to render the matter unsuitable for assessment at the Commission.
(d) The matter proceeded to a preliminary conference on 5 August 2025, at which time the claimant's barrister made oral submissions to the effect that Mr Oakley's evidence would possibly include evidence regarding training, systems of work, duties that would have been undertaken and comparative earnings. The Member requested further submissions in light of the evidence that emerged orally during the preliminary conference.
(e) On 8 August 2025, the claimant lodged supplementary exemption application submissions.
(f) The insurer has provided further submissions below, however, the insurer's position remains that which is set out in the submissions dated 4 August 2025. These submissions are to be read in conjunction with those earlier submissions (R1-3).
(g) The claimant asserts that Mr Oakley is a 'critical witness' and that the claimant's economic loss should be calculated 'arising from a precise mathematical calculation'. There is no evidence as to what 'precise mathematical calculation' could be conducted on the basis of Mr Oakley's alleged evidence. The insurer maintains the view that the claimant's second cousin would not be an impartial witness (assuming Mr Oakley could be compelled against his employer's wishes to provide evidence).
(h) At paragraph 10, the claimant asserts that the decision of Nominal Defendant v Livaja[2011] NSWCA 121 identifies a range of assumptions upon which a trier of fact would be influenced in determining a claim for economic loss, including the intentions of the claimant at the date of the accident. The insurer submits that
Mr Oakley's statement (or anticipated evidence) would not go towards the intentions of the claimant and would amount only to comparative earnings evidence, for which the claimant has already provided evidence.
(i) The claimant similarly asserts that he wishes to rely upon the 'evidence that would have been given by Mr Oakley but for his refusal to provide a statement or appear before the Commission, in keeping with the directions he has been given by his employer'. The insurer submits that there is no evidence that Mr Oakley would be willing to participate in the proceedings against the wishes of his employer.
(j) The claimant asserts that the insurer's criticism of the state of evidence 'shows' that the matter is unsuitable for assessment. The insurer submits that the unsatisfactory state of evidence is due, in large part, to the late service of same and the attempts to procure evidence after the original due date of the claimant's evidence.
(k) The insurer submits that the situation (as it currently stands) is that the claimant wishes to rely upon evidence of a family member who is not willing to provide evidence against the wishes of his employer. The claimant's solicitor has prepared a draft statement presumably based on recall of telephone conversations from 2021 and 2025 that, in effect, go towards the issue of comparable earnings.
(l) The insurer submits that criticisms of the state of the evidence does not equate to a justification for exempting the matter due to 'complexity', especially as the claimant concedes as follows at paragraph 85 of his damages submissions: