Lovelock v AAI Limited t/as GIO - [2025] NSWPIC 500

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Lovelock v AAI Limited t/as GIO [2025] NSWPIC 500
CLAIMANT:	Joshua Lovelock
INSURER:	AAI Limited t/as GIO
MEMBER:	Shana Radnan
DATE OF DECISION:	25 August 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; discretionary exemption application made by claimant; claim not suitable for assessment at the Commission pursuant to section 7.34(1)(b); basis not suitable; complexity; necessity to subpoena a witness to give evidence as employer not permitting signed statement or appearance at Commission; insurer rejected basis; submitted other ways to adduce evidence; rule 99(3)(a) of the Personal Injury Commission Rules 2021 applied; Held – claim not suitable for assessment under section 7.34(1)(b); recommendation that claim be exempt from assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT

INTRODUCTION

Joshua Lovelock (the claimant) was involved in a motor accident on 23 November 2018.
On 2 November 2020, made a claim against GIO (the insurer).
The matter was listed for a face-to-face assessment conference to take place on

12 August 2025. The claimant made an application for the assessment to be vacated and lodged an application seeking an exemption from assessment on the basis that a witness

Mr Oakley would not sign a statement or appear at the assessment conference on instructions of his employer.
A preliminary conference was held with the parties, wherein the insurer raised issue with the claimant’s late service of material and its necessity to obtain information in reply also seeking the assessment conference be vacated to enable time for the insurer to meet the case now pressed by the claimant.
Directions were made providing a timetable for submissions on the exemption application and the assessment conferences was vacated.
The determination of the application for discretionary exemption follows.

CLAIMANT’S SUBMISSIONS

In the claimant’s initial submissions dated 23 July 2025 the claimant made the following submissions:
”5. The Claimant’s claim includes a claim for damages for diminution of earning capacity. At the time of the accident, the Claimant was only 23 years of age, and he was working as a painter’s assistant/brush hand earning $746 net per week. The Claimant’s allegation, however, is that he intended to pursue a career as a coal train driver, in which position his earnings would have increased to at least $1,875 net per week within a couple of years had the accident not occurred.
6. 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 500
Decision Date: 25 August 2025

CaseChat Overview and Summary

Lovelock v AAI Limited t/as GIO involved a dispute between the claimant, Lovelock, and the defendant, AAI Limited trading as GIO, concerning a motor accident injury claim. Lovelock sought a discretionary exemption from the statutory assessment process under the Motor Accident Injuries Act 2017. The case was heard and determined by the Personal Injury Commission. The central issue for the court was whether Lovelock's claim was unsuitable for assessment at the Commission, as provided for in section 7.34(1)(b) of the Act. The court had to assess the suitability of the claim based on factors such as complexity and the necessity of subpoenaing a witness due to the employer's refusal to provide a signed statement or permit the witness to appear at the Commission.

The court found that Lovelock's claim was not suitable for assessment because of its complexity and the necessity to subpoena a witness, given the employer's refusal to cooperate. The insurer argued that other methods could be used to adduce evidence, but the court held that the statutory provision allowed for such exemptions when the reasons were compelling. Rule 99(3)(a) of the Personal Injury Commission Rules 2021 supported the court's decision that the claim was indeed unsuitable for assessment under section 7.34(1)(b). Consequently, the court recommended that the claim be exempt from assessment, and this recommendation was subsequently approved by the Division Head, acting as the President's delegate.

Orders