Hardy v Motor Accidents Insurance Board

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hardy v Motor Accidents Insurance Board [2024] NSWPIC 354
CLAIMANT:	Adam Neville Hardy
INSURER:	Motor Accidents Insurance Board of Tasmania
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	4 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); application for exemption by insurer; application opposed by claimant; where insurer has alleged contributory negligence and that claimant has made false and misleading statements; Allianz Australia Insurance Limited v Tarabay, Insurance Australia Limited t/as NRMA Insurance v Banos, Insurance Australia Limited t/as NRMA Insurance Limited v Milton, Insurance Australia Limited t/as NRMA v Taylor, IAG Ltd t/as NRMA Insurance v Abiad, IAG Limited t/as NRMA Insurance v Khaled & Ors and IAG Ltd t/as NRMA v Qianxia Lou applied; Held – the insurer’s allegations should be tested under oath in a forum in which the Evidence Act 1995 applies; a court hearing is the mode of hearing that will resolve the dispute more efficiently and effectively; claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

BACKGROUND

Adam Hardy (claimant) was injured in a motor accident on the Pacific Highway at Heatherbrae on 27 September 2020 (accident). He subsequently made a claim for damages on the Motor Accidents Insurance Board (insurer) under the Motor Accident Injuries Act 2017 (MAI Act). Liability for the claim has been admitted. Contributory negligence of 33% has been alleged.
The claimant has referred his claim to the Personal Injury Commission (Commission) for assessment under s 7.32 of the MAI Act. At a preliminary conference conducted on

8 April 2024, the insurer applied to have the claim exempted from assessment in accordance with s 7.34(1)(b) of the MAI Act (application for exemption).
The application for exemption was made by the insurer in the course of the general assessment of the claim, a course that was open to either party: cl 17 Procedural Direction MA5 (PDMA5). I dispensed with the requirement for the insurer to lodge an application for exemption and for the claimant to lodge a reply, as otherwise required by cl 17 PDMA5, and directed the parties to lodge bundles containing the submissions and evidence on which they rely for the purposes of the application for exemption.

ON THE PAPERS

At the 8 April 2024 preliminary conference the parties were informed that I proposed to make a preliminary assessment of the claim for the purposes of s 7.34(1)(b) on the papers. There was no objection from either party to me proceeding in this way.[1]
[1] The claimant’s submissions dated 3 June 2024 record that, subject to any conclusion by me that it would “be helpful to have a further [preliminary] conference to discuss issues arising” from his submissions, he has no objection to the application being determined on the papers.
Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded that a preliminary assessment of the claim can be conducted on the papers. I am satisfied that sufficient information is available to allow me to conduct the preliminary assessment without holding a formal hearing.

STATUTORY FRAMEWORK

The application for exemption is made under s 7.34(1)(b) of the MAI Act. That provision is in the following terms:
“7.34 Claims exempt from assessment
(1) A claim is exempt from assessment under this Division if—
(a) …, or
(b) the Commission has made a preliminary assessment of the claim and has determined (with the approval of the President) that the claim is not suitable for assessment under this Division.
(2) If a claim is exempt from assessment under this Division, the President must, as soon as practicable, arrange for the issue to the insurer and the claimant of a certificate to that effect (enabling court proceedings to be commenced in respect of the claim concerned).”
Rule 99 of the Personal Injury Commission Rules 2021 (Rules) applies to the application, and is in the following terms:
“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.”
PDMA5 applies to the application. As recorded earlier, I have dispensed with a number of requirements under the Procedural Direction.
In determining whether the claim is not suitable for assessment I must consider the objects of the PIC Act. Those objects include, relevantly, to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.
The guiding principle for the PIC Act and the Rules, in their application to proceedings in the Commission, is to facilitate the just, quick and cost effective resolution of the real issues in the proceedings. The Commission must seek to give effect to the guiding principle when it exercises any power given to it by the PIC Act or the Rules, or interprets any provision of the Act or the Rules: s 42(2).

EVIDENCE

On 8 April 2024 the parties were directed to provide bundles containing the evidence they each rely on with respect to the exemption application; the insurer by 23 April 2024 and the claimant by 11 June 2024. Bundles were subsequently provided. Surveillance footage and images were also provided.
The bundles contain material relevant to both the contributory negligence allegation and the allegation that the claimant has made false or misleading statements. I have considered all material contained in the bundles, and have viewed and evaluated the surveillance footage and images.
In his statement dated 25 April 2024, the claimant addresses a number of matters, including his gym activity pre and post-accident. He states that since the accident he has continued going to the gym, but has had to modify the exercise he performs and the weight he lifts. He also addresses the surveillance footage, in particular the footage of him with his dog and a friend. He states that the footage doesn’t “show what [his] life is like” living with his injuries, and refers to constant pain in his neck and right shoulder. He describes struggling with his mental health, and provides details of the medication he takes. The claimant also states that he was aware he was “being followed by an investigator during 2023”, and that he had made “genuine attempts” each time he saw a doctor for his claim.

INSURER’S SUBMISSIONS

The insurer relies on written submissions dated 12 April 2024 in support of the exemption application. The insurer argues that the claim is not suitable for assessment, and ought be exempted, because:
(a)    it alleges the claimant has made false and misleading statements in the course of his claim;
(b)    the false or misleading statements give rise to factual and legal complexities;
(c)    the claim involves issues of liability, and inherent to that, complex factual issues, and
(d)    the issue of compellability of non-parties to give evidence at any hearing.
The insurer argues that it is “paramount” the claim be exempted so it can be heard in Court because that would:
(a)    allow it to compel third parties, including medical experts such as Drs Courtenay, Lee, and Medical Assessor Chan, to give evidence (which cannot be done under s 51 of the PIC Act), and for these witnesses to be “properly” cross-examined;
(b)    allow the claimant’s statements to be fully tested under oath, and subjected to “proper” cross-examination in a formal judicial setting;
(c)    enable the parties to issue subpoenas, including interstate subpoenas where necessary, to fully investigate and compel evidence in respect of the allegations of false and misleading statements, and
(d)    ensure both parties are afforded a fair trial.
I pause here to note that while Medical Assessor Chan is competent to give evidence, he is not compellable: s 38 PIC Act. The observations made in the claimant’s submissions dated 3 June 2024 at [164(a)], as they relate to Medical Assessors, are in general terms consistent with my experience. If the application for exemption were based solely on the insurer’s intention to “compel” Medical Assessor Chan to give evidence, I would not be satisfied that the claim is not suitable for assessment.
The submissions confirm that the insurer has by written notice to the claimant alleged he has made a false and misleading statement pursuant to s 6.40 of the MAI Act. The insurer notes that there is no definition of “false and misleading statements” in the MAI Act, and seeks to give meaning to that phrase by reference to ss 6.41 and 6.42 of the MAI Act.
The insurer refers to and relies on Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519 (Banos), Allianz Australia Insurance Limited v Tarabay [2013] NSWSC 141 (Tarabay), Insurance Australia Limited t/as NRMA v Taylor [2017] NSWSC 507 (Taylor), and IAG Ltd t/as NRMA v Qianxia Lou [2019] NSWSC 382 (Lou). The insurer submits that while those decisions deal with provisions (ss 92 and 118) in the Motor Accidents Compensation Act 1999 (MAC Act), the provisions are identical in material respects to s 6.42 and s 7.34 of the MAI Act, and the reasoning in these cases is equally applicable to this application.
The insurer’s submissions at [19] – [25] refer to the evidence it relies on in support of its allegation that the claimant has made false and misleading statements. The allegation is underpinned by the insurer’s assertion that the claimant has made various statements to medical practitioners who have examined him for the purposes of the claim that are inconsistent with the surveillance footage obtained in September 2023. At [24] the insurer identifies specific activities undertaken by the claimant in the surveillance that it submits support its allegation that he has made false and misleading statements.
At [31] the insurer identifies what it submits are the complex legal and factual issues that warrant a discretionary exemption. Those issues are said to include the need for a “stronger level of scrutiny of the evidence”, the possibility that consideration will need to be given to whether the case satisfies the common law tort of deceit, that several lay and expert witnesses will likely be compelled to give evidence, and the likely length of the hearing given the issues, the evidence likely to be tendered, and the witnesses that will be called and cross-examined.
The insurer also identifies at [33]-[37] the complex legal and factual issues it argues will arise with respect to contributory negligence.

CLAIMANT’S SUBMISSIONS

The claimant relies on written submissions dated 3 June 2024. He opposes the claim being exempted from assessment by the Commission, and seeks to have the claim determined by way of assessment as expeditiously as possible.
In addition to Lou and Banos, the claimant identifies IAG Limited t/as NRMA Insurance v Khaled & Ors [2019] NSWSC 320 (Khaled) as a relevant decision in the context of the application. The claimant argues that in determining whether the claim can be “suitably assessed” by the Commission, consideration should be had to the various criteria identified by Campbell J in Banos.
The claimant argues that it is not relevant to consider whether the determination of the matter by the District Court would be better or fairer or more comprehensive than an assessment by the Commission. In his submission, while there are advantages to the processes involved in District Court litigation, there are also significant disadvantages, “not least of which is the substantial cost of the process”.
The claimant agrees that on this application, a determination is not to be made as to whether the allegations that he has made false and misleading statements have been made out. Rather, consideration is to be given as to whether the allegations are of such weight and merit as to render the matter not suitable for assessment. In his submission, the Commission would not be satisfied that the allegations are so serious as to render the matter not suitable for assessment.
The claimant argues that the insurer has erected a straw man, in that it misrepresents the weight of the medical evidence to portray him as having asserted that he has little to no capacity to use his right arm whatsoever and is heavily reliant on his left arm. This characterisation of the medical histories recorded is, in his submission, “just plain false”.
It is argued that the insurer’s submissions contain limited and incomplete quotes from medical histories. The claimant denies that he has made any false and misleading statements to medical experts in relation to the extent of his physical injuries and impairment, and rejects the conclusions reached by Dr Lee that he must have been “pumping iron” either intermittently or continuously since the accident to build or develop the upper body musculature that can be observed in the surveillance.
At [37]-[42] the claimant refers to the circumstances in which the accident occurred, together with Medical Assessor Chan’s findings, to support his submission that he sustained “genuine” physical injuries in the course of the accident.
The submissions also refer to the absence of issues having been raised with respect to his credit or veracity by his treating practitioners, Dr Courtenay, Dr Lee, or Medical Assessor Chan.
The claimant’s submissions canvas in detail the reports of Dr Courtenay, Dr Lee, Medical Assessor Chan, and Dr Jones, including the histories recorded by, and examination findings of, those doctors. The claimant argues that because the insurer has not put before the Commission a report from Dr Jones following his assessment of him in December 2023 a Jones v Dunkel inference may be drawn that consideration of the history provided by him to Dr Jones in December 2023 would not assist the insurer on the exemption application.
I note that Dr Jones’ report dated 23 January 2024, produced after his assessment of the claimant on 12 December 2023, is contained in the claimant’s bundle. In that report, the doctor makes reference to possible inconsistences between what the claimant told him and a summary of his bank account transactions. The report records that the doctor had “some doubts with respect to the veracity and extent of [the claimant’s] symptoms and dysfunction”.
At [97] – [103] the claimant’s submissions address the surveillance footage. He submits that the surveillance observed “remarkably little activity” and “no activity to cause any excitement”. The submissions record that the claimant was aware that he was under surveillance on 17 April 2023, and that he presented to his psychologist with extremely severe symptoms of anxiety and depression exacerbated in direct response to an incident where he was followed whilst driving, ending in a traumatic confrontation.
The claimant submits that, given he was well aware surveillance was being conducted, it would be “remarkably surprising” if he were to engage in activities grossly inconsistent with his consistent presentation to medical examiners. He submits that there is nothing in the surveillance that is inconsistent with his previously described level of activity.
In his submissions from [104]-[117] the claimant raises a range of issues relating to Dr Lee’s report of 25 October 2023, including (but not limited to) that he based his opinion on still photographs and did not watch the surveillance footage. It is argued that the doctor chose to rely on a few, possibly unrepresentative, still shots, and did not seek to extend any procedural fairness by requesting a further appointment to discuss the still shots with him. It is submitted that these matters reflect poorly upon Dr Lee’s credit.
It is, the claimant argues, of particular significance that Dr Lee does not say that there is any movement demonstrated by him in the still shots that is inconsistent with the range of movement demonstrated to Dr Lee (when he previously assessed him), Dr Courtenay, or Medical Assessor Chan.
The claimant argues that Dr Lee has overlooked the issue of whether his musculature was developed in the years preceding the accident or after the accident. It is argued that the photographic evidence makes clear that the development of musculature is not a recent event and precedes the accident.
In the claimant’s submission, it is important to carefully consider exactly what has been observed to see whether the activity is genuinely inconsistent with his reported or likely activities, and that covert surveillance will “almost invariably present an incomplete and inaccurate picture of a claimant’s activities”. Examples with respect to this last matter are provided at [120].
The claimant’s submissions address the photographs on which he relies, each of which was taken in the year preceding the accident. He argues that these photographs make clear that he has been working out and body building for a very lengthy period of time pre-accident and had built the “impressive musculature” that he displayed prior to the accident. He also relies on his statement dated 25 April 2024, the contents of which have been summarised earlier in these reasons.
The claimant’s submissions address the allegation of contributory negligence, including evidence relevant to that issue. He submits that the issues are likely to be legal not factual, and that the legal issues are suitable for being determined by the Commission. He submits that there is no basis for a discretionary exemption as a result of the contributory negligence arguments.
The claimant’s submissions address a number of matters under the heading “[o]verreach by the insurer”. He argues that “generic submissions” made by the insurer with respect to the need to call witnesses, including doctors, should be given no weight in determining whether the matter is or is not suitable for assessment by the Commission.
The claimant’s submissions address matters relating to his mental health, matters that I have taken into consideration.
The submissions also address costs and timing. In this regard, the submissions record that it is possible that a District Court hearing of his claim will involve a five day estimate, and the wait for a hearing of that length could extend beyond 12 months. This, in his submission, involves an additional “price” for the reasons set out at [178].
The claimant’s submissions address the six “criteria” identified by Campbell J in Banos. He submits that the matter is not exceptional and that the issues raised by the insurer do not take the matter outside the scope of cases that not only can, but appropriately should, be dealt with by the Commission.

The claimant submits that there can be a fair hearing to both parties at the Commission. It would, he argues, be fair to him for his case to be dealt with in a timely and “low cost” fashion, and in a way that places the least mental strain on him, in circumstances where he is already physically and psychiatrically injured. Further, in his submission the insurer has not identified any actual (as distinct from hypothetical) unfairness.
He submits that whilst a hearing in the District Court may be better in some respects, it will also be vastly more time consuming, take place considerably further into the future, come at considerably greater cost and have significant adverse impact upon his mental health.
It is argued that the insurer has not satisfactorily established any false or misleading statements, although it is acknowledged that final determination of that issue should not be made on this application. What, in the claimant’s submission, can be determined is that the alleged magnitude of the alleged misleading conduct is likely modest, if proven. There is, it is argued, no particular need for this case to be heard in an open court on the basis of any fraud deterrent or public interest.
The claimant relies on the observation by Campbell J in Banos that “it is not mandatory, whenever a credit issue is raised, to decide that the claim is not suitable for assessment…”, and argues that “once all the insurer’s ‘gotcha’ level of over-excitement” is considered, the medical evidence is consistent with what can be seen in the surveillance. In his submission, the mere fact that the insurer has made the allegation does not mean that his claim should be subject to a discretionary exemption.
The claimant submits that on the balance of considerations, the claim is suitable for being determined by the Commission and should proceed to assessment by the Commission.

INSURER’S SUBMISSIONS IN REPLY

In written submissions dated 18 June 2024, the insurer rejects the claimant’s submission that it has “erected a straw man” and “misrepresents the weight of the medical evidence”. The insurer argues that Dr Lee has provided his opinion based on his observations of the claimant’s musculature, and has concluded that the claimant’s musculature is inconsistent with his reported level of impairment in his shoulder, and specifically that the:
“ranges of motion recorded in each of the reports are not consistent with the movements required to develop and maintain the claimant’s upper body musculature.”
The submissions record that the claimant’s musculature has been observed by both Dr Lee and Medical Assessor Chan and on surveillance. The insurer argues that while the claimant submits his musculature is a vestige of his pre-accident fitness regime, no medical evidence has been provided to support that “theory” or dispute the opinion of Dr Lee, save for “general and untested criticisms of Dr Lee’s credibility”. The insurer says that the “disparaging comments about Dr Lee”, including “criticisms and the suggestions Dr Lee is biased are unbecoming and unhelpful in terms of advancing the issues”.
The insurer “observes” that the issue of muscle disuse atrophy is “well known to occur in circumstances where there is limited range of motion and/or activity”, and submits “it is clear that disuse atrophy is not present here”.
The insurer rejects the claimant’s submission that the matters raised are of “such little weight or consequence” that they should be determined by way of assessment by the Commission rather than a Court hearing.
The insurer also “rejects the claimant’s assertion that the effect of the claimant’s misleading conduct would be ‘modest’, if proven”.
In the insurer’s submission, the issues raised in Dr Lee’s report and subsequent correspondence between the parties is significant, and that those issues have a direct and clear correlation with respect to all heads of damage, not just whether the claimant’s whole person impairment is greater than 10%. The insurer maintains that the claim is not suitable for assessment by the Commission

CLAIMANT’S FURTHER SUBMISSIONS

The claimant also relies on further submissions dated 21 June 2024. He argues that minimal weight should be given to Dr Lee’s opinions. He notes that the gravamen of Dr Lee’s opinion is that the musculature observed on still shots taken from surveillance footage post-accident is inconsistent with his reported level of impairment in his shoulder, and submits that the musculature is a vestige of his pre-accident fitness regime. In support of this submission, he relies on the pre-accident photographs that demonstrate his pre-accident musculature. I have considered those photographs. I accept, on the basis of the date stamps recorded on the photographs, that they were taken prior to the accident. I also accept that the photographs provide evidence of his musculature prior to the accident.
The claimant argues that the insurer has shifted its case, without medical support, and asserts, for the first time, that the “issue of muscular disuse atrophy is well-known to occur in circumstances where there is limited range of motion and/or activity”. In his submission, that assertion is made without evidence.
The claimant submits that Dr Lee makes no mention of disuse atrophy, and that there is no evidence about disuse atrophy. In his submission, Dr Lee has not addressed his pre-accident musculature and whether what can be seen in the still shots from surveillance footage is greater, equivalent to, or a lesser level of musculature than can be identified in the pre-accident photographs.
The claimant argues that the insurer’s assertion that he must have been exercising in a manner inconsistent with his described range of movement post-accident to maintain the level of musculature is made without medical evidence addressing pre and post-accident musculature and without any examination of whether he has in fact maintained his level of musculature when comparing the limited available pre and post-accident photos.
The claimant submits that in the absence of evidence it would be an error of law for the Commission to have any regard to “muscular disuse atrophy” in determining the application.
He repeats his earlier submission that Dr Lee was not asked to comment on whether what was observed in the still shots from the surveillance footage was consistent or inconsistent with the range of motion measured by Medical Assessor Chan. He argues that the insurer cannot and does not seek to prove that the range of motion demonstrated in the surveillance footage was inconsistent with the range of motion demonstrated when he was assessed by the Medical Assessor.

THE DIRECTION SOUGHT BY THE CLAIMANT

In his written submissions dated 3 June 2024, the claimant sought a direction that Dr Lee’s accounts be provided to him. The submissions explain that one of the reasons he sought this direction was that his legal representatives “wanted to look at the accounts” to determine whether there had been a conference between Dr Lee and the insurer’s solicitor with regard to the questions that were to be asked in the doctor’s supplementary report and whether, following discussions, there were any questions that the insurer elected not to ask.
To make the direction sought would not facilitate the just, quick and cost effective resolution of the real issues that arise in this application. Indeed, to do so may lead into territory that expands the scope of matters in dispute in a way that distracts attention from the statutory question I am required to answer. I decline to make the direction.

CONSIDERATION

The question I am required to determine, having made a preliminary assessment of the claim, is whether the claim is not suitable for assessment under Div 7.6 of the MAI Act.
In Khaled, Bellew J reasoned at [27] that, in accordance with general principles of statutory interpretation, the word "suitable" is to be given its natural and ordinary meaning. His Honour referred to the Macquarie Dictionary definition of "suitable" namely: "[s]uch as to suit; appropriate, fitting, becoming”, and adopted that definition. At [28] his Honour said this:
“…There is an obvious, and indeed material, difference between whether or not a matter can be dealt with in the CARS process (in the sense of being capable of being dealt with in that way), and whether it is not suitable to be dealt with in that way. In that sense, capability is not the same as suitability. The terms of section 92(1)(b) required the Assessor to consider and focus upon the latter question…”
The decisions referred to by the parties in their written submissions, and to which reference is made in these reasons, address provisions in the MAC Act, in particular s 92(1)(b). Because that provision is, relevantly, in the same terms as s 7.34(1)(b) of the MAI Act, subject to one matter, those decisions are relevant to the question I am required to answer in these proceedings. The one qualification is that the legal framework in which the decisions were made included the Claims Assessment Guidelines. Those Guidelines do not apply to the insurer’s exemption application in these proceedings; rather, rule 99 of the PIC Rules and PDMA5, together with s 7.34(1)(b), form the statutory framework.

Contributory negligence and related issues

In its liability notice dated 16 February 2024 the insurer alleges that the claimant contributed to the accident and his injuries, and that his actions constitute contributory negligence assessed at 33%. The notice states that:
“[11] The police investigation confirms that you and the insured driver engaged in a prolonged period of dangerous driving involving ‘brake checking’ (intentionally applying brakes whilst driving in front of other vehicles without warning), tailgating, and overtaking. You and the insured driver also engaged in a verbal altercation whilst driving unsafely.
[12] You elected to pull over and continue the engagement with the insured driver, following which the accident occurred.
[13] [The insurer] considers you contributed to your injuries in that you:
(a)Willingly and unnecessarily engaged with the insured driver.
(b)In doing so, placed yourself in a position of harm.”
It may come to pass that, as submitted by the claimant, the contributory negligence allegation will turn on a legal rather than a factual dispute. However, on my assessment of the evidence, there are factual disputes about the circumstances leading up to the accident that may be relevant to the contributory negligence allegation.
The following narrative, recorded in the NSW Police COPS report, illustrates the general circumstances in which the accident occurred:
“Both the accused[2] and the victim[3] involved themselves in overtaking each other, tail gating, and performing what is commonly known as brake checking each other.
They all continued travelling south along the Pacific Highway towards Raymond Terrace.
About 11:50am the accused and the victim were about 100 to 200 metres north of the intersection of the Pacific Highway and Masonite Road, Raymond Terrace, the accused and the victim were slowed by the holiday traffic there. Some words were said between both the accused and the victim, and both pulled over into the break down lane. The accused's motor vehicle was in front of the victim's.
The accused and the victim alighted from their respective motor vehicles and engaged in a verbal altercation. The accused states that the victim slapped him in the face. However, this is contradicted by the victim, and by independent witnesses.
A short time later both the accused and the victim returned to their respective vehicles. The victim prepared to re-enter the traffic. The accused engaged his vehicle in reverse and accelerated harshly back towards the victim's motor vehicle. The rear of the accused's motor vehicle struck the front of the victim's causing extensive damage to the victim's motor vehicle. The front and rear air bags in the victim's motor vehicle were activated by the force of the collision. This resulted in a number of burns and minor bruising to the victim's vehicle's occupants. As a result of the collision the accused's and victim's motor vehicles stuck together.
Police were called by numerous witnesses and attended a short time later.”
[2] Mr Witte.
[3] The claimant.
It is not for me to make findings about the circumstances in which the accident occurred. However, it appears likely that there will be factual disputes about the behaviour of both the claimant and Mr Witte prior to the accident, including: the overtaking manoeuvres of both drivers, whether either or both drivers engaged in “brake checking” or “tail gating”, and whether the claimant slapped Mr Witte.
The claimant will be required to give evidence about the circumstances in which the accident occurred. Even if his evidence in chief is given by way of an evidentiary statement, he will be cross examined. It is possible that Mr Witte will be called by the insurer. If so, he will also be cross examined. There are also independent witnesses, such as Mr and Mrs Carruthers. The insurer’s submissions do not record whether it proposes to call these witnesses and, if so, whether they are prepared to attend an assessment hearing.
I am not satisfied that, for the purposes of rule 99(3), the factual issues that are likely to arise for determination in the context of the contributory negligence allegation involve a level of complexity such as to render the claim not suitable for assessment. Further, the insurer has not identified the particular legal issues it says give rise to a level of complexity that result in the claim not being suitable for assessment. No authority has been referred to or relied on by the insurer that either supports its allegation of contributory negligence or its submission that (in this context) the claim involves complex legal issues.
In determining whether the claim is not suitable for assessment, I have taken into consideration that the claim involves an allegation of contributory negligence. I have also considered, in the context of the claim, the legal and factual issues arising from the allegation of contributory negligence. While those issues do not, on their own, render the claim not suitable for assessment, they do need to be taken into account when considering the circumstances of the claim as a whole.

False and misleading statements

The insurer alleges that the claimant has made false and misleading statements, and argues that, for this reason, the claim is not suitable for assessment by the Commission.
In Banos at [43] Campbell J identified, for the purpose of deciding the statutory question in a case that turns upon whether a person has made a false and misleading statement, six non-exhaustive considerations that are likely to be relevant, and to which I will come.
In Insurance Australia Limited t/as NRMA Insurance Limited v Milton [2016] NSWSC 1521 (Milton) at [25] Beech-Jones J confirmed that Tarabay and Banos are authority for the proposition that it is "erroneous" when considering an exemption application to make a determination as a matter of fact that a particular claimant has or has not made a false or misleading statement and whether, if made, it was deliberate or otherwise. His Honour went on to say that:
“[26] The proposition stated in [38] of Banos which conforms with Tarabay can be accepted. However, that does not mean, and s 92(1) itself does not support any suggestion, that the Assessor should not undertake some evaluation of the allegation of the making of a false and misleading statement in order to determine if the allegation is such that overall the claim is not suitable for a CARS assessment.
[27] Ultimately, the test to be applied is that stated in s 92(1)(b) of the MAC Act. Nothing in s 92(1)(b) or the Guidelines suggest that the mere making of an allegation by an insurer of the making of a false and misleading statement, even one that is fully particularised, necessarily leads to a conclusion the claim is not suitable for assessment...
and later
[65] … it is clear that some form of evaluative assessment is required or at least permissible, albeit one that does not involve the Assessor determining whether, as a matter of fact, the relevant statement was made and made untruthfully (Banos).”
In Taylor Davies J drew together the threads of Tarabay and Banos and said this:
“[38] Thirdly, although, as Tarabay and Banos make clear, it is an error for the Assessor to make a determination about whether a statement is false or misleading, it is difficult to see how an assessor would be in error in forming some sort of preliminary view, and it is difficult to see how the assessor would not have to form such a preliminary view, about the allegation to determine whether the claim is not suitable for assessment: Milton[4]. As Campbell J makes clear at [43](f) it is not sufficient that an allegation alone has been made for the discretion to be exercised that a claim is not suitable for assessment. Something more will be needed. Clause 17.3 also points to the view that the seriousness of what has been alleged must be a consideration. Justice Campbell allowed for the rare position at [39] and [42] that the Assessor could determine that a person clearly had not made such a false or misleading statement. That points also to the forming of a preliminary view.”
[4] Citation omitted.
In IAG Ltd t/as NRMA Insurance v Abiad [2018] NSWSC 1422 (Abiad) Harrison J determined that:
“[76] It is not the role of a claims assessor to second guess an insurer’s allegations that a claimant has made a false or misleading claim. Section 92(1)(b) and cl 14.16.11 implicitly recognise the fact that 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. Much has been written about this already and it is unnecessary to expand upon it here. The simple proposition is that a claims assessor’s task when an application has been made is to assess the allegation and whether it is not suitable for assessment under the relevant Part. The assessor’s role is not to determine the truth or even the strength of the insurer’s allegations.”
In support of its allegation that the claimant has made false and misleading statements, the insurer relies on the opinion expressed by Dr Lee in his report dated 25 October 2023. The claimant has responded to Dr Lee’s opinion, and the insurer’s allegation that he has made false and misleading statements, in both his statement dated 25 April 2024 and his written submissions. He argues that Dr Lee’s report should be given minimal weight, and that his musculature is a vestige of his pre-accident fitness regime.
Among other things, Dr Lee’s report contains the following question and the doctor’s response:
“15. Having regarding [sic] to your examination of the claimant and the enclosed documents would you please provide a report commenting on the following:
(a)Is the range of impairments in the right shoulder recorded [sic] Dr Courtenay, yourself, and Assessor Chan inconsistent with the type of movements which would be required to develop and maintain the claimant’s upper body musculature? Please provide your reasoning for same.
Yes. The ranges of motion recorded in each of the reports are not consistent with the movements required to develop and maintain the claimant’s upper body musculature.
The images of the claimant demonstrate well hypertrophied and well-developed musculature.
In order to achieve this appearance, Mr Hardy would need to repetitively and consistently lift and move heavy weights in all planes of movement over a prolonged period of time lifting heavy weights on a repetitive basis.
In my opinion, to achieve well developed upper back musculature, he would need to raise him arms well above his head in order to pull weights downwards such as on a pulley system like those used in a gym and pulling his arms forcefully downward through a full range of movement in various planes such as abduction and forward flexion.
Similarly, in order to achieve well developed base of neck/trapezius/suprascapular musculature, he would need to also lift heavy weights repetitively above his head beyond the ranges of movement that were measured in formal testing.”

The pre-accident photographs of the claimant, to which reference has earlier been made, may support a finding that the claimant’s musculature is, as he submits, a vestige of his pre-accident fitness regime. However, Dr Lee’s opinion is directed to both the development and maintenance of his upper body musculature. In the doctor’s opinion, the ranges of motion recorded in his earlier report, and the reports of Dr Courtenay and Medical Assessor Chan, are not consistent with the movements required to develop and maintain the claimant’s upper body musculature.

Ultimately, findings will have to be made, informed by admissible evidence (including admissible medical opinion), about the claimant’s musculature, the extent to which it is the product of pre or post-accident activity (or both), the nature and extent of that activity, and whether that activity is or is not consistent with what he has told medical practitioners.
It is not my role to second guess the insurer’s allegation that the claimant has made false or misleading statements, nor is it my role to determine the truth or even the strength of the insurer’s allegation. My task is to assess the allegation and whether the claim is not suitable for assessment: Abiad at [76].
There may be rare cases where a Member making a preliminary assessment to determine whether a claim is not suitable for assessment could find as a matter of law that a proffered statement or alleged inconsistency was not capable of calling into question the reliability of the claimant's account: Banos at [39]. This claim, in my assessment, is not one in which such a finding can be made.
I am not satisfied that the claimant clearly has not made false and misleading statements. My preliminary view is that Dr Lee’s opinion does provide a basis for the insurer’s allegation that the claimant has made false and misleading statements. This should not be read as a finding that the insurer has made good on its allegation; that is not a matter for me to determine.
The insurer should be in a position where it can call Dr Lee. And the claimant should be afforded an opportunity to test the doctor’s opinion through cross examination under oath. That cannot be done at an assessment in the Commission.
As in Banos, the matters raised by the insurer are the type of matters which may be afforded significant weight in the process of assessing the nature and extent of the claimant's injuries and disabilities.
Section 7.34(1)(b) of the MAI Act and rule 99 implicitly recognise that in an appropriate case an insurer’s claims ought to be tested in a courtroom and exposed to the type of forensic examination that the assessment process, to some extent at least, cannot necessarily provide: Abiad [76]. This, in my assessment, is such a claim.
Further, given the seriousness of the insurer’s allegations, the claimant’s evidence should be tested under oath in a forum in which he will have all the rights and protections afforded by the Evidence Act 1995. This cannot occur in an assessment by the Commission.
The claimant's credit has been called into question. He has made submissions about his credit generally[5]. Contrary to what is stated in his submissions[6], Dr Lee does appear to have raised an issue about his “veracity and credit” in his report of 3 February 2023. In this regard, the report records as follows:
“…It is my opinion that whilst his symptoms are consistent with regions affected, his degree of symptomatology and disability are well outside what I would have considered reasonable…”
[5] Submissions dated 3 June 2024 at [43]-[45].
[6] Submissions dated 3 June 2024 at [44].
The claimant has included in his bundle the report of Dr Jones dated 23 January 2024. In that report, Dr Jones raises questions about the reliability of what the claimant told him. In this regard, I note the history recorded at paragraphs [33] and [35] of the doctor’s report, and the matters addressed in paragraph [42], paragraph d on page 10, paragraphs f and g on page 11, and paragraphs a and b on page 12 of the report.
While it is not mandatory, when a credit issue is raised, to decide that the claim is not suitable for assessment under Div 7.6, the credit issues raised by the insurer in this claim are such that it is in my assessment appropriate for the insurer’s claims to be tested in a courtroom and exposed to the type of forensic examination that an assessment process cannot necessarily provide.
I am not satisfied that, having regard to the nature of the issues raised, both parties can be afforded a hearing by way of an assessment conference which is in a practical sense fair. Witnesses (other than the claimant) cannot be compelled to attend a hearing. The Commission is not bound by the rules of evidence: s 43 PIC Act. The allegations made by the insurer are serious. Those allegations should in my assessment be tested within the framework of the Evidence Act. Among other matters, that Act empowers a court to give, if relevant, a certificate under s 128. The Commission has no such power.
An assessment by the Commission is likely to take a number of days, and may ultimately take as long as a court hearing. Unlike a court, the claimant (and other witnesses) will not give sworn evidence in proceedings in the Motor Accidents Division of the Commission. This is a significant consideration in a case where the reliability of the claimant’s evidence is in issue.
Given the allegation that the claimant has made false and misleading statements, neither party should be put in a position where they either cannot compel, or fully and comprehensively cross examine under oath, witnesses whose evidence is relevant to those allegations. The Commission’s procedure is designed to give effect to the objects of the PIC Act and the guiding principle for the Act. However, in this claim, the statutory framework within which the Commission operates may result in either or both parties not being afforded a fair hearing. This would not be the case in court proceedings.

THE CLAIM IS NOT SUITABLE FOR ASSESSMENT

When taken together, the following matters lead me to determine that the claim is not suitable for assessment by the Commission:
(a)    the insurer alleges that the claimant has made false and misleading statements, a very serious allegation;
(b)    I am not satisfied, on a preliminary basis, that the claimant has not clearly made false and misleading statements;
(c) the insurer’s allegations should be tested under oath, in a forum in which the Evidence Act applies;
(d)    the parties should be in a position to compel witnesses to give evidence;
(e)    an assessment before the Commission is likely to take a number of days, and may take as long as a court hearing;
(f)    a court hearing is the mode of hearing that will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment conference on the one hand, and a court hearing on the other;
(g)    the Commission is a forum that, through its practice and procedure, is designed to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible. This is a claim in which the formality of a court hearing is appropriate, and
(h)    the factual and legal issues associated with the contributory negligence allegation.
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 allegations that the claimant has made false and misleading statements. Nor do the majority of claims involve factual and legal disputes with respect to contributory negligence. Very few claims involve, as this claim does, both allegations that the claimant has made false and misleading statements and factual and legal disputes about contributory negligence.
I have taken into consideration the claimant’s mental health and related evidence, including the reports of Dr Neilson. I have also taken into account the costs considerations raised by the claimant. If the claim proceeds for assessment by the Commission, neither party will be bound by the assessment: s 7.38 MAI Act. Given the matters presently in dispute between the parties, there is a real prospect that the proceedings would, if assessed by the Commission, be heard again in the District Court, with associated delay, expense, and potential for adverse impact on the claimant’s mental health. These considerations, in my view, also support a conclusion that the proceedings are not suitable for assessment.
Having made a preliminary assessment of the claim I determine that the claim is not suitable for assessment by the Commission under Div 7.6 of the MAI Act. I recommend to the President that the claim 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 6 August 2024, approved Senior Member William’s recommendation that the claim is not suitable for assessment.

[2024] NSWPIC 354

4 July 2024