RECOMMENDATION - CLAIM NOT SUITABLE FOR ASSESSMENT

1. The claimant is a man of nearly 66 years who suffered injuries in a motorcycle accident on 21 November 2017 on Hunter Street in Newcastle.
2. By notice dated 20 June 2018, the insurer admitted breach of duty of care.
3. The provisions of the Motor Accidents Compensation Act 1999 ("MAC Act") apply.
4. The claimant suffered an open left medial epicondyle fracture with associated degloving injury. He subsequently developed left shoulder and left-sided neck pain and has been assessed by Medical Assessor Cameron as having a 6% whole person impairment as a result of those injuries.
5. The claimant also alleges psychiatric injuries resulting from the accident. This is complicated by the breakdown of the claimant's marriage after the accident. Nevertheless, the claimant has been assessed by a Medical Review Panel as having 13% whole person impairment. It is the insurer's case that the history provided by the claimant to the Medical Review Panel is unreliable.
6. Whilst the insurer concedes it is bound by the Medical Review Panel certificate, insofar as the claimant's entitlement to non-economic loss damages is concerned, it maintains that it is not otherwise bound by the Panel's opinion on diagnosis and causation.
7. The claimant seeks damages for non-economic loss, past and future treatment expenses, past and future economic loss, past gratuitous care and future commercial care.
8. It is clear that the biggest component of the claim for damages relates to economic loss. That claim is based on a report of Chris Katehos, forensic accountant of Furzer Crestani. The insurer relies upon a report by Lanz Kahler and Robert Smith of Vincents Forensic Accountants. The claim for past economic loss alone exceeds $2,000,000.
9. At the time of the subject accident, the claimant was a businessman who ran a recycling business as a sub-contractor to Brambles Limited and Iron Mountain. He operated that business through numerous corporate entities.
10. The claim was listed for a first assessment conference on 6 March 2025 which was adjourned part heard. The insurer's counsel (Christine Allan) submitted that the biggest difficulty with the claim is quantifying past wage loss associated with the closure of the claimant's business. The insurer's case is that the claimant lost the business for reasons other than the motor accident. Ms Allan queried what is the claimant's most likely future circumstances but for the accident? Ms Allan also said the insurer would apply for discretionary exemption of the claim from assessment.
11. On 9 April 2025, the insurer lodged its application for discretionary exemption of the claim from assessment, pursuant to Rule 99(3)(e) and (3) of the Personal Inju_ry Commission Rules 2021_ (the Rules), on the basis that:

(a) the claim involves complex legal and factual issues and complex issues in the assessment of the claim, and

(b) the insurer alleges that the claimant has made false or misleading statements in relation to the loss and damage resulting from the accident.

Detailed submissions were provided in support of those contentions.

1. On 5 May 2025, the claimant lodged his reply in which the insurer's discretionary exemption application was opposed.
2. On 16 September 2025, the insurer received the desktop report prepared by the Procare Group which has been served upon the claimant. That report traverses factual matters relating to the closure and sale of the claimant's business trading as "Elite Property Wash" in Queensland. The report indicates that the claimant had a clear involvement in the running of that business for an unknown period between 2021 and 2024. No financial records have been produced for that business beyond 2023, despite their having been sought from the claimant's commercial lawyer. It is anticipated that the claimant will need to be cross-examined vigorously about the establishment, conduct and sale of that business, particularly as it relates to his claim for past and future economic loss.

1. Rule 99(2) of the Rules says that, in considering the suitability of a claim for assessment, a Member should firstly consider the objects of the Personal Injury Commission Act 2020 and the circumstances of the claim. In addition, the Commission may consider the matters listed in Rule 99(3):

(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. The President's power to approve the exemption of a claim from assessment under s 7.24(1)(b) rests with the Division Head of the Motor Accidents Division according to the table of delegations (A) published on the Commission's website.

1. The insurer maintains that the matter is not suitable for assessment in the Commission. Relevant authority is cited.[1]
2. The claimant's wife was required for questioning at the first assessment conference, but did not attend, due to health reasons. The insurer anticipates that records yet to be obtained from Iron Mountain may also identify persons of interest who may be required for examination. The insurer notes that the Commission does not have the ability to compel any witness to give evidence.[2]
3. The insurer submits the claim for economic loss is otherwise complex, in view of the numerous business entities registered in the claimant's name, or to which he was connected, and therefore the multiple sources of income. The economic loss claim is not in substantial. The claim for past economic loss previously has been particularised at some $2,340,000 (page 9 of the joint bundle of evidence).

1. At the preliminary conference on 17 November 2025, James Bartley, solicitor of Bartley Lawyers, represented the claimant and Helene Tretheway, solicitor of Suncorp, represented the insurer. The preliminary conference was stood over to a date to be fixed, to afford

Mr Bartley the opportunity to consider the insurer's discretionary exemption application, which had been uploaded only the previous day, and whether the claimant consents to the application. Ms Tretheway did not oppose Mr Bartley's request. 2. On 28 November 2025, the claimant's solicitor confirmed the claimant's consent to the claim being exempted from assessment on discretionary grounds.

1. Having made a preliminary assessment of the claim, I determine that it is not suitable for assessment under s 92(1)(b) of the MAC Act, and I recommend to the Division Head of the Motor Accidents Division that it be exempted from assessment by consent.
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 15 December 2025, approved Member Gary Victor Patterson's recommendation that the claim is not suitable for assessment.

[1] IAG Limited t/s NRMA Insurance v Khaled [2019] NSWSC 320 and IAG Limited t/as NRMA Insurance v Qianxia Lou [2019] NSWSC 382.

[2] Fasanella v AAI Limited t/as GIO [2024] NSWPIC 162.