MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; Motor Accidents Compensation Act 1999; discretionary exemption application by claimant; claim not suitable for assessment at the Personal Injury Commission pursuant to section 7.34 (1)(b); Held - basis not suitable; claim involves complex legal and factual issues pursuant to rule 99(3)(a) of the Personal Injury Commission Rules 2021; privately operated buses operating on public transport route; dispute as to which Act should apply to assessment of damages; other factors include costs of single hearing; recommendation subsequently approved by the Division Head, as the President's delegate.

RECOMMENDATIONS - CLAIM NOT SUITABLE FOR ASSESSMENT

1. Ahmet Duran Pinarbasi (the claimant) was involved in a motor accident on 30 July 2018. The claimant was in his bus stationary, when another bus driven by the insurer struck it from the rear. The claimant contends he sustained injuries in the subject accident.
2. A claim was made against AAI Limited trading as GIO (the insurer).
3. The claimant was driving a bus registered MO3793. The other bus was registered 2665ST. Both the claimant and insured's driver were employed as bus drivers for Transit Systems West Pty Ltd. These were privately operated buses allegedly operating on public transport routes.
4. The claimant has now referred the claim to the Personal Injury Commission (Commission) seeking an exemption from assessment pursuant to rule 99(3)(a) of the Personal Injury Commission Rules 2021 (PIC Rules).

1. On 30 July 2018, the claimant was acting in the course of his employment as a bus driver for Transit Systems West Pty Ltd and was operating a stationary bus on Enmore Road when it was struck from behind by another public transport bus. The other bus, insured by AAI Limited t/as GIO (the insurer), was driven by an employee of the same company, either Transit Systems or State Transit, at the time of the accident.
2. Given that both vehicles involved were public transport buses operated by the same company, this incident constitutes a public transport accident.
3. The insurer in their submission for request for determination by the Review Panel submitted that McTye v Ching Yu Chang by his tutor Leo Alexander Birch [2025] NSWCA 3 (McTye), has not determined the definition of whether the public buses operated by private bus companies would fall under the definition of public transport accident. This to be determined whether s 4.4 of the MAI Act remains applicable as a threshold criterion to be satisfied prior to the quantification of damages in the context of a claim arising from a 'public transport accident'.
4. The Panel has previously expressed the view that, having regard to the factual circumstances of the accident and the authoritative decision in McTye, the determination of the claimant's claim for damages falls within the scope of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) rather than the Motor Accident Injuries Act 2017 (NSW) (MAI Act).
5. The claimant submits that the assessment of damages ought to be determined under Chapter 5 of MAC Act by operation of s 121(1) of the Transport Administration Act 1988 (NSW) (TAA 1988), as interpreted by the Court of Appeal in McTye.
6. The claimant respectfully submits that the current matter involves complex legal and factual issues and accordingly invites the Commission to exercise its discretion under rule 99(3)(a) of the PIC Rules, to exempt from claims assessment.
7. The claimant seeks exemption from assessment under Division 7.6 of the MAI Act, pursuant to s 7.34 of the Motor Accident Guidelines (cf. s 92 of MAC Act).
8. Section 7.34(1) provides that a claim is exempt from assessment where the claim is of a kind specified in the rules as exempt or where the Commission has determined, with the approval of the President, that the claim is unsuitable for assessment under the MAI Act.
9. In McTye, the NSW Court of Appeal confirmed that this provision operates to preserve the application of MAC Act to public transport accidents notwithstanding the commencement of the MAI Act.
10. Respectfully, the claimant submits that the claim falls outside the jurisdiction of the Commission for assessment under the MAI Act and ought properly to be exempted pursuant to the relevant provisions of the Motor Accident Guidelines.

1. The insurer provides these submissions in response to the claimant's submissions dated

13 August 2025 requesting the claim be exempt from assessment under discretionary grounds pursuant to s 7.34(1)(b) of the MAI Act. The claimant submitted that the claim falls outside the jurisdiction of the Commission. 2. In determining whether a claim is not suitable for assessment for the purposes of s 7.34(1)(b) of the MAI Act, rule 99 of the PIC Rules, requires the Commission to consider the objects of the Personal Injury Commission Act 2020 and the circumstances of the claim, including 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. The insurer opposes the claimant's application and submits that the claim is suitable for assessment based on the fact that breach of duty of care is not in issue.

1. On 1 July 2025, the Review Panel certified that the claimant's alleged injuries are threshold injuries as follows:

(a) soft tissue injuries to cervical and lumbar spine, and

(b) injury to right shoulder not caused by the subject accident.

1. The claimant is not entitled to damages under MAI Act by virtue of the binding certificate issued by the Review Panel. Liability for the claimant's damages claim is denied accordingly.
2. The insurer submits that the decision in McTye, is silent as to the application of s 4.4 of the MAI Act even if a claim falls under a "public transport accident".
3. Whether the Commission finds assessment of damages for this claim to fall under the MAI Act or Chapter 5 of the MAC Act, pursuant to s 7.36 of the MAI Act and s 94 of the MAC Act, the Commission has jurisdiction to make an assessment of the issue of liability for the claim and the amount of damages for that liability.

1. Personal Injury Commission Rules 2021 -Division 10.3 Motor Accident proceedings generally:

"Rule 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. Both the claimant and the insurer agree that the comments of Basten J from paragraph [59] were obiter dicta and the issue of whether privately operated buses on public transport routes should be considered "public transport" has not been determined by the courts to date. The insurer submits that the decision in McTye, is silent as to the application of s 4.4 of the MAI Act even if a claim falls under a "public transport accident".
2. This matter involves complex legal issues as there is dispute as to which Act should apply to the assessment of damages, the MAI Act as submitted by the insurer or the MAC Act as submitted by the claimant.
3. Both parties noted that it would be cost effective to have the matter determined at first instance. It was accepted by the parties that should the matter be granted an exemption this live issue of which Act should apply in these circumstances where a private transport registered bus was operating as public transport would be determined once and for all, as currently there are no decisions of the Court determining this dispute.

1. Both parties agreed that should the matter be exempted the cost effectiveness of the determination being undertaken at Court would avoid the additional costs of a rehearing of the Commission's determination. The likelihood of rehearing of the Commission determination was considered a certainty due to the ambiguity surrounding the determination of McTye and the applicable Act to apply in these circumstances of privately owned buses operating public transport routes.
2. I agree with the insurer that the Commission has jurisdiction to assess damages under both the MAC Act and the MAI Act.
3. I am satisfied the circumstances of this matter is one which enlivens rule 99 (3)(a) of the PIC Rules,

"...whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim, "

1. I consider the complex legal issues surrounding this matter are grounds which satisfy my conclusion that the matter is unsuitable for assessment within the Commission and that the discretion to exempt the matter should be exercised. Further it would be more cost effective for the matter to be heard in Court effectively removing the costs of the matter being heard twice.
2. The claimant is not correct in his submission that the claim falls outside the jurisdiction of the Commission as Members of the Commission can hear claims under both MAC Act and MAI Act.

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 pursuant to s 7.34(1)(b) of the MAI Act and I recommend to the President that it be exempt from assessment.
2. 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 6 March 2026, approved Member Shana Radnan's recommendation that the claim is not suitable for assessment.