RECOMMENDATIONS - CLAIM NOT SUITABLE FOR ASSESSMENT

1. Hrisoula Bacopanos was a passenger in a car involved in a motor accident at about 11.00pm on 19 January 2022. Ms Bacopanos was 21 years of age at the time.
2. On or about 27 February 2022 Ms Bacopanos lodged an application for personal injury benefits with Youi Pty Limited, the third-party insurer of the vehicle in which Ms Bacopanos was travelling in at the time of the accident. On or about 5 April 2024 the claimant made a claim for damages on the basis of the negligence or fault on the part of the driver of the vehicle she was in at the time of the accident.
3. Youi admitted liability for the statutory benefits claim and has paid Ms Bacopanos her statutory benefits and Youi has also admitted liability in the damages claim.
4. The insurer has referred the claim to the Personal Injury Commission (Commission) seeking the exemption of the claim from assessment at the Commission. If the claim is exempted then Ms Bacopanos will be required to commence proceedings in court in order to pursue her claim.

1. Ms Bacopanos' claim and her entitlements to compensation and damages are governed by the provisions of the Motor Accident Injuries Act 2017 (the MAI Act).
2. Division 7.6 of the MAI Act provides for the assessment of claimant for damages including the assessment of the insurer's liability for the claim and the quantum of damages to be paid to the claimant. However not all claims must be assessed and s 7.34(1) provides for:

(a) the mandatory exemption of claims from assessment if "the claim is of a kind specified in the t regulations", and

(b) the discretionary exemption of claims from assessment if "the Commission has made a preliminary assessment of the claim and has determined ... that the claim is not suitable for assessment" and the President of the Commission approves.

1. Rule 99(2) of the Personal Injury Commission Rules says that in considering the suitability of a claim for assessment, the 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 s 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's submissions lodged with the application raise issues with the claimant's credit "and will ... be the subject of serious challenge by the Insurer at any hearing." There are three areas of challenge.
2. The insurer submits at [11] - [16] that the claimant has given incorrect histories and in particular has failed to tell the insurer and four medical examiners that she had a previous motor vehicle accident (in 2018) and previous back and neck conditions.
3. The insurer submits at [17] - [22] that the claimant's stated post-accident social and recreational activities are inconsistent with surveillance footage obtained by the insurer and her activities recorded on social media.
4. The insurer submits at [23] - [27] that the claimant's stated work activities and earning capacity after the accident may be inconsistent with social media, surveillance and an anonymous complaint made to Youi's fraud line.
5. The insurer says in respect of s 99(3) that the claimant involves complex legal or factual issues or complex issues in respect of the assessment, issues of liability and the claimant has made false or misleading statements.
6. In respect of the false or misleading statements, the insurer submits at [31] - [37] that:

(a) section 6.40 of the MAI Act provides for the offence of making false or misleading statements in connection with the claim which attracts a penalty of up to $50,000 and two years' imprisonment;

(b) the cases of Allianz Australia Limited v Tarabay[1] and Insurance Australia Limited trading as NRMA Insurance v Taylor[2] say that the trigger for the exercise of the discretion to exempt is an allegation made by the insurer;

(c) the Commission is entitled to form a preliminary view but cannot determine whether any statement is false or not during the course of an application for exemption;

(d) the Court has said on many occasions "that the Court is in a better position to deal with and determine such allegations than the Commission" (or its legacy organisations including the Claims Assessment and Resolution Service and the Disputes Resolution Service) and the insurer relies on IAG Ltd t/as NRMA Insurance v Abiad[3] as a further example of this, and

(e) the insurer formally alleges that the claimant has given false or misleading statements and identifies them.

1. The insurer submits at [38] - [46] that there are complexities associated with the assessment saying:

(a) Justice Rothman in Kelly v MAA & Anor[4] said that "complex" measn "complicated, not simple, difficult to analyse, understand, explain";

(b) the multiple false or misleading statements is an element of complexity;

(c) the insurer intends to require the medical experts to give evidence;

(d) will call the surveillance operatives to give evidence;

(e) will seek clinical records, bank records, tax records, telephone records and social media records;

(f) seeks to further investigate matters, and

(g) will formally breach breaches of s 6.40.

1. The insurer says there is a complexity in respect of the post-accident work activities and earnings which will require further investigation and production of records.
2. The insurer submits that it is not currently alleging fraud within the meaning of ss 6.41 and 6.42 but has reserved its right to do so.
3. The insurer outlines further steps it intends to take and says "none of this is something that is routinely undertake at the Commission and cannot reasonable be regarded as the norm."
4. The insurer submits at [48] that the claim should be assessed at Court where witnesses and documents can be compelled, where witnesses can give sworn evince, professional transcript is available, the rules of evidence apply, section 128 Evidence Act 1995 protections are in place and s 6.40 breaches are required to be pleaded and particularised.
5. The insurer estimates at [49] that the hearing will take four to give day and acknowledges at [50] the gravity of the allegations it has made.

1. The claimant responded in submissions dated 10 September 2025.
2. The claimant suggests at [4] that the catalyst for the insurer's allegation was the "purported fraud complaint" made on 27 February 2023. The claimant says this was made by a "disgruntled younger brother of the claimant's ex-boyfriend" and at [5] she denies the accuracy of the allegation. The claimant refers at [6] to a "personal dispute" and provides at [7] the name of the ex-boyfriend and suggests at [8] that he is in gaol. The claimant invited the insurer at [9] to contact the person who made the complaint.
3. In terms of the incorrect histories, she submits at [12] she was being truthful and that while she made a claim in respect of the April 2018 accident "she didn't receive compensation" [13]. She says she was 19 at the time and had two days off work but does not dispute it may be more [14]. She says her injuries recovered [15] and [16].
4. The claimant accepts at [17] that she had pre-existing back pain but said she had treatment and recovered [17], it was eight years ago [18] and implies that she forgot about it.
5. The claimant submits at [19] that she has not been working and her social activity is reduced since the accident and takes issue with the surveillance footage which does not show her working [20].
6. The claimant responds at [22] - 26] to the activities depicted in the surveillance film and the other allegations made by the insurer.
7. The claimant submits she has injuries from the accident and has had surgery for these injuries [27] and [30].
8. The claimant submits she has not worked and addresses the insurer's concerns about an online business she is involved with [31] - [36].
9. The claimant addressed the allegation made by the younger brother of her former boyfriend and submits at [49] that she has never been charged with a criminal offence and has no criminal record.
10. The claimant addresses at [50] the allegation she has been doing cleaning work and says she has not and was assisting her friend.

1. At the preliminary conference on 17 September 2025 Mr Di Michel of counsel appeared for the claimant and Mr Gorman appeared for the insurer.
2. Mr Gorman confirmed that the insurer had considered the response from the claimant and pressed the application for exemption.
3. Mr Gorman acknowledged the seriousness of the allegations made and submitted that exemption from assessment enabled the insurer to fully vent its allegations in a way an in a place that afforded the best protection to the claimant. Mr Gorman said that at this stage there was no intention on calling the person who made the report to the insurer's fraud hotline.
4. Mr Di Michel emphasised the claimant's young age at the time of the first motor accident and the fact that she had recovered from her injuries and that this explained her failure to disclose these to the doctors who had examined her. He submitted that the insurer has got caught up in a personal dispute between the claimant and an ex-boyfriend and there is no concrete evidence of the claimant working and that images on social media do not necessarily portray reality.

1. The authorities make it clear that it is not my role to determine, in the course of the current application, whether the statements the insurer takes issue with are, or are not, false or misleading.[5] Justice Campbell in Insurance Australia Limited t/as Banos[6] suggests this could be done "in the rarest of cases where it is so clear that a person has not made a false or misleading statement" and it is "beyond argument". Otherwise, as per the Taylor decision I am required to consider the material and form a preliminary view of the allegations but only so that I can determine whether the claim should be "redirected" to the courts in order that the parties can have a "hearing ... which is in a practical sense fair".[7]
2. The claimant accepts she had a previous accident and previous back pain and appears to accept she did not tell the insurer about it or tell the medical examiners who have provided reports in this claim. The insurer says these omissions are false or misleading statements. The claimant submits there is an innocent explanation in that she was young and fully recovered and received no compensation (although she recovered some statutory benefits). The insurer does not accept the explanation.
3. The issue of whether the claimant deliberately failed to reveal the previous accident and back condition, or whether it was an innocent mistake, needs to be aired and in my view, the most appropriate forum for that is the courts. The insurer will have the ability to compel the production of documents and the giving of evidence, and the claimant will have the protection of the strict rules of evidence.
4. The insurer alleges the claimant is not as greatly impaired as she asserts and has obtained surveillance footage and undertaken social media searches to support these allegations. The claimant has responded to the allegations and explained them. The insurer does not accept the explanation. In order for a fair hearing to be afforded to both parties the surveillance footage will need to be viewed, witnesses may need to be called and the claimant will need to be examined and cross-examined. The insurer should be required to present its evidence in strict compliance with the rules and the claimant should have the protection of those rules.
5. There was a report made to the insurer's fraud hotline. This issue is perhaps the most contentious and on its own in my view warrants the exemption of the claim. The allegation is serious and, if proven, suggests deliberately false statements were made and that the claimant has been involved in criminal activity. There is a public interest factor in having this allegation aired in a court. The insurer will need to test this allegation with evidence and the cross-examination of the claimant. The claimant will want to clear any suggestion of wrongdoing. As a Member of the Commission is not bound by the rules of evidence and conducts a less formal hearing where persons cannot be compelled to give evidence, this suggests that a court is the most appropriate venue for the assessment of this claim. It may also be that the claimant and the reporter of the allegedly false and misleading behaviour (should he give evidence) may need to seek the protection of s 128 of the Evidence Act 1995 and the issuing of the appropriate certificate.
6. The insurer referred in its submissions to IAG Ltd t/as NRMA Insurance v Abiad[8] where it was said at [76]:

"... in an appropriate case an Insurer's claims ought to be tested in a courtroom and be exposed to the type of forensic examination that the assessment process, to some extent at least, cannot necessarily provide."

1. In my view the allegations made by the insurer suggest that Ms Bacopanos' case is an appropriate case where these allegations should be tested in court and exposed to a more rigorous examination than the Commission can provide.
2. The allegations made by the insurer result in there being complexity in the assessment of the claim. I am not satisfied however that, in the absence of those allegations, there would be any significant complexities in the assessment warranting the exemption of the claim.

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 MAI Act and I recommend to the Division Head of the Motor Accidents Division 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 20 October 2025, approved Member Belinda Cassidy's recommendation that the claim is not suitable for assessment.

[1] [2013] NSWSC 141; (2013) 62 MVR 537 (Tarabay).

[2] [2017] NSWSC 507 (Taylor).

[3] [2018] NSWSC 16 (Abiad).

[4] [2006] NSWSC 1444 (Kelly).

[6] [2013] NSWSC 1519 (Banos).

[8] [2018] NSWSC 16 (Abiad).