Lovelock v AAI Limited t/as GIO

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 to this application. This is an outline of the evidence the Claimant intends to adduce from this witness.
7.     Despite Mr Oakley’s assurances that he would provide a signed statement, he has not done so, and he has been uncontactable by me in the period since 11 July 2025, despite numerous efforts I have made to reach him. The Claimant also made multiple attempts to contact Mr Oakley during this time, most of which were ignored. I am instructed that on 20 July 2025, however, Mr Oakley contacted the Claimant and advised him that he would not be providing any further information for use in the proceedings as he had been instructed by his employer’s legal team to not do so.
8.      On 21 July 2025, I sent an email to Mr Oakley, a copy of which is annexed and marked ‘B’. To date, I have received no response to this email.
9.      Mr Oakley’s evidence is critical to the assessment of the Claimant’s damages as it is evidence that establishes that the Claimant’s probable uninjured earnings well exceed his pre-injury earnings. This evidence accordingly has the potential to increase the Claimant’s damages for diminution of earning capacity by more than $1,000 net per week. Without this evidence, the Commission will be unable to properly assess the Claimant’s losses, and the Claimant will be unable to discharge his evidential burden.
10.    Unlike the court, the Commission has no power to issue a summons compelling a non-party to attend the hearing for questioning: s51(2) Personal Injury Commission Act 2021. Further, unlike a court, the Commission has no power to require a witness to answer a question: see [14] below.
11.   As such, the Commission has no power to compel Mr Oakley to give evidence that will assist the Commission in the assessment of the Claimant’s damages. The Court, however, does have such powers. It follows that, in the Claimant’s submission, the matter is not suitable for assessment by the Commission and so ought to be exempted. This will enable the Claimant to commence court proceedings, and to arrange for the court to issue a subpoena compelling Mr Oakley to attend the hearing to give evidence. In that case, Mr Oakley will not be able to decline to answer questions by reason of his employer’s instruction. The court may compel a witness to answer a question.
12. Clause 99(2) of the Personal Injury Commission Rules 2021 provides: 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.
13. Clause 99(3) sets out a non-exhaustive list of matters that may be considered by an assessor in this regard, but it is not necessary that a case fall into one of these categories in order to be considered not suitable for assessment: IAG Limited t/as NRMA Insurance v Xie [2020] NSWSC 1112 at [9].
14. In Allianz Australia Insurance Ltd v Tarabay [2013] NSWSC 141, Rothman J drew attention to some of the limitations on an assessment conference and on an assessor, which are apposite to the present proceedings. While this decision related to a claim for assessment by CARS under the 1999 Act, the 2 position under the 2017 Act and the PIC Act is not materially different. His Honour said:
[36] It is necessary, at least briefly, to reiterate the nature of proceedings before an assessor. The proceedings are informal. By Chapter 15 (clause 15.4.2) the examination of parties and witnesses is usually by the Assessor and questions by other parties to witnesses may only be put as directed by the Assessor. …
[38] The Assessor questions, or may question, a party or witness to such extent as the Assessor thinks proper, but the Assessor cannot compel any party or witness to answer any question. ...
[57] ... The Assessor has no power to subpoena or require the attendance of any person. The Assessor has no power to require an answer to any question. The most that the Assessor is able to do, in dealing with an issue of that kind, is take into account a failure to answer a question in determining an assessment.
15. In IAG Limited t/as NRMA Insurance v Khaled & Ors [2019] NSWSC 320 Bellew J emphasised (at [27]):
“[27] Bearing in mind the terms of section 92(1)(b) of the Act, the question that the Assessor was required to ask herself was whether the claim was not suitable for assessment in CARS. In accordance with general principles of statutory interpretation, the word ‘suitable’ is to be given its natural and ordinary meaning. The Macquarie Dictionary defines the word “suitable” as meaning:
‘Such as to suit; appropriate, fitting, becoming.’
16.   In Insurance Australia Limited v Banos [2013] NSW 1519 at [43], Bellew J held that relevant considerations include:
(a)whether both parties will receive a hearing (assessment conference) which is fair in a practical sense having regard to the nature of the allegation raised, and
(b)which mode of hearing 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. Advantages of the latter may include a better opportunity to properly and fairly cross-examine witnesses whose credit is to be impugned and the greater availability of cross-examination of experts on the material which may call a claimant's reliability into question.
17. In IAG Limited t/as NRMA Insurance v Qianxia Lou [2019] NSWSC 382 at [23], Wilson J held: ‘It was not a question of whether the issues raised by the insurer were commonly dealt with, and thus could be dealt with, by assessment; the question was whether the issues made the matter not suitable for assessment within CARS.’
18. In QBE Insurance (Australia) Limited v Blakeney [2024] NSWPIC 148, the Member said (from [62]):
62. I consider that in these circumstances a court hearing is more likely to result in the just, quick, and cost-effective resolution of the real issues in dispute between the parties when compared to an assessment by the Commission under Division 7.6 of the MAI Act.
63. Not being able to summon witnesses or apply the rules of evidence would hamper assessing this claim in the Commission. A court hearing will resolve the dispute more efficiently and effectively, bearing in mind the comparative limitations and advantages of an assessment with a court hearing on the other
19.    As referred to above, rule 99(2) requires the Commission to consider the objects of the PIC Act. In this regard, section 3 relevantly provides: The objects of the Act are as follows –
… (c) to enable the Commission to resolve the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible,
(d) to ensure that the decisions of the Commission are timely, fair, consistent and of a high quality…
20.    It is also important to consider the objects of the MAI Act. Section 1.3(2)(g) provides that one object of the Act is: “to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.”
21.    The Claimant submits that the claim is not suitable for assessment on this basis and that an assessment by the Commission cannot achieve the objects of the Act. Given the position taken by Mr Oakley, a critically important material witness, the Commission will be unable to resolve a central issue between the parties: viz, the Claimant’s probable uninured earnings. This will prevent the Commission from issuing a fair, consistent decision of high quality as it will be a decision not based on all available evidence.
22.    Such an assessment will also not achieve a cost effective and just resolution of the dispute. The assessment will not be cost-effective as the prospect of a rehearing to the court is all but guaranteed given that critically important evidence in support of the Claimant’s case will not be received by the Commission. It will not not achieve a just resolution of the dispute for the same reason: the interests of justice require that all relevant evidence be considered in a proper assessment of damages.
23. While it is not necessary for rule 99(3) to be engaged, the Claimant submits that the unavailability of evidence central to the question of probable uninjured earnings also gives rise to a complex issue in the assessment of the amount of the claim, and a complex factual issue, and so falls within rule 99(3)(a).
24.    In all the circumstances, the Claimant submits that the matter is plainly not suitable for assessment by the Commission, and accordingly the Claimant submits the matter should be exempted from assessment by the Commission.”
The claimant subsequently provided additional submissions in reply to the insurer’s submissions objecting to the matter being exempted as follows.
The claimant is soon to be 30 years of age. The subject accident occurred on 23 November 2018. The claimant sustained both physical and psychological injuries.
It is noted that Dr Kumar, Medical Assessor, certified 19% whole person impairment arising out of post-traumatic stress disorder. In respect of adaptation, the Medical Assessor recorded that the claimant had attempted to return to work on three occasions and has not been able to do so working beyond a few weeks to two months. He stated that this is in the context of his mental health as well as his physical pain.
The Member is referred to the schedule of damages and would note that future economic loss is claimed in the amount of $2,196,978.
The claimant alleges that prior to the accident he was working for a painting company, Stott’s Painting Contractors. In paragraph 6 of his statement of 26 June 2025, he stated:
“My cousin, Michael Oakley, worked as a coal train driver for Pacific National and he told me that it was a good job with good pay. I decided I wanted to get into this as well. I applied for this job once before the accident but I was rejected because I did not have my driver’s licence at the time. I intended to get this and to then re-apply for the job.”
Had the claimant been successful in his application to become a train driver, he would have enjoyed significant remuneration, as set out in the schedule of damages.
In support of the submission that he would have been a train driver, telephone conferences were held between Mr Greg Masselos and Michael Oakley and a draft statement was prepared by Mr Masselos (Annexure “A” to the Application).
The Member would note:
(a) Mr Oakley is not just a train driver as he was at the time of the accident; he has since been promoted to Operation Supervisor by Pacific National. In this role, inter alia, he supervises train drivers, and
(b) on reading of the unsigned statement, it is obvious that Mr Oakley is qualified to give evidence relating directly to not only the prospects of the claimant obtain work as a train driver, but his progression in that employment and the income that he would have enjoyed but for the subject accident.
Mr Oakley is a critical witness to the claimant’s claim for past and future economic loss for obvious reasons. Should the matter proceed before the Member, there will no doubt be an argument that the claimant should either be given an allowance for economic loss arising from a precise mathematical calculation which would then be discounted pursuant to the principles of Malec v JC Hutton Pty Ltd [1990] HCA 20. In that case, reference was made to Heydon J’s comments in NSW v Moss [2000] NSWCA 133:
“the trier of the fact is to form a discretionary judgment by reference to the whole determinative criteria within fairly wide parameters. Though the trier of the fact in arriving at the discretionary judgment must achieve satisfaction that a fair award is being made, since what is involved is not the finding of historical facts on the balance of probabilities, but the assessment of the value of the chance, it is appropriate to take into account a range of possibilities and outcomes, even though the likelihood of a particular outcome may have been achieved, maybe no more than a real possibility.”
At paragraph 31 of the judgment in Allianz v Kerr [2012] NSWCA 13, the Court made reference to the decision in Nominal Defendant v Livaja [2011] NSWCA 121 and recited a number of assumptions upon which the trier of the fact would be influenced; they are as follows:
·        identify the skills, training and experience of the claimant at the date of accident;
·        identify the intentions of the claimant at the date of accident;
·        identify the work which undertaking immediately prior to the accident;
·        determine the likelihood the claimant would have continued in such employment but for the accident;
·        determine the possibility the claimant may have obtained promotion or other benefits but for the accident, and
·        assess the possibility that the employment would have been continuous.
These are factors the present Member would be minded to focus on in determining the issue of future economic loss in this case.
The claimant’s argument at hearing will be that he had excellent prospects of obtaining work as a train driver and he will wish to rely upon the evidence that would have been given by
Mr Oakley but for his refusal to provide a statement or appear before the Personal Injury Commission (Commission), in keeping with the directions he has been given by his employer.
At the telephone conference, Mr Mooney SC emphasised the importance of Mr Oakley’s testimony and the unsatisfactory state of the evidence should the matter proceed and should an unsigned hearsay statement be admitted as an untested document.
At the telephone conference, the insurer’s representative made much of the unsatisfactory and “fanciful” statement of Mr Oakley and understandably diminished the importance of
Mr Oakley’s evidence on that basis. This makes the claimant’s point in that the current state of the evidence available to the claimant is unsatisfactory in the absence of Mr Oakley providing a written statement and/or being compelled to appear before the Commission to be examined and, at least, available for cross-examination.
There can be no doubt that should the matter proceed with an unsigned hearsay statement of Mr Oakley being admitted into evidence, the Member would be in a very compromised situation. There are two likely scenarios which would follow. In the first scenario, the Member would accept the unsigned hearsay statement of Mr Oakley and award future economic loss in keeping with that document. If that were the case, it would not be surprising if the insurer makes application for judicial review in the Supreme Court by reason of the unsatisfactory state of Mr Oakley’s evidence.
Alternatively, if the Member was not minded to place much weight on the unsigned hearsay statement of Mr Oakley (as the insurer urges), the claimant would be forced to seek a re-hearing in the District Court. In the District Court, Mr Oakley would be subpoenaed to give evidence and if such evidence constituted new evidence (which it almost certainly would), the District Court judge would be compelled to remit the matter back to the Member for further determination under s 6.34 of the MAI Act.
This would be unfortunate because while there may be a transcript of the evidence of
Mr Oakley available to the Member, the Member would still not have had the benefit of assessing Mr Oakley’s demeanour during questioning so as to make a determination as the weight and reliability of his evidence. The Member would then be asked to reconsider her original award with a significant likelihood that the matter would then recommence in the District Court in a resumed trial.
Either of these scenarios is most unsatisfactory and for these reasons, the matter should be exempted as it is plainly not suitable for assessment.
There are three additional matters to briefly address in reply.
(a)    In its submissions, the insurer wrongly submits that the increased prospect of a rehearing to the court is irrelevant to the question of whether the matter is not suitable for assessment. As referred to in our primary submissions, that submission is incorrect because the determination of whether the matter is suitable for assessment must be assessed by reference to the objects of the Personal Injury Commission Act 2020 (PIC Act).
(b)    The insurer’s submissions proceed on the false premise that the matter can only be exempted if one of the cited circumstances in rule 99 is satisfied, however as stated in our primary submissions (with appropriate citations), the list of circumstances in rule 99 is not exhaustive. Contrary to the insurer’s submission, the unavailability of witness can be sufficient even if it creates no complexity.
(c)    Contrary to the insurer’s submission, Mr Oakley does not “speculate” in the unsigned statement about the current earnings of train drivers. He is currently employed as a supervisor of train drivers and so he has direct knowledge of their earnings. The claimant is otherwise unable to prove these probable uninjured earnings.

It is not for the insurer to dictate how the claimant discharges his evidential burden. Its submission that the claimant might be able to prove his case by other means is not to the point (particularly when the insurer is likely to oppose those means). It is similarly irrelevant that the insurer thinks the evidence is not critical. Putting to one side the fact the insurer’s opinion on the situation is not impartial, it is in any event, for the claimant to decide how best to discharge his evidential burden.
The matter is plainly not suitable for assessment for the reasons set out in our primary submissions, in oral submissions at the preliminary conference, and in these further submissions.

THE INSURER’S SUBMISSIONS

On 23 July 2025, the claimant lodged an Application for Exemption with the Commission in the damages dispute. The insurer notes that this was not previously flagged or discussed by the claimant’s solicitor at the Commission’s preliminary conferences on 15 May 2025 or
9 July 2025.
In submissions dated 23 July 2025, the claimant’s solicitor asserts that the matter is unsuitable for assessment at the Commission because the claimant’s second cousin is not willing to sign a statement or be present at the General Assessment. The claimant’s solicitor describes the claimant’s second cousin as a ‘critically important material witness’.
The insurer notes that the unsigned statement of Michael Oakley is a 1.5 page document that contains the following information: Mr Oakley is employed as an ‘Operations Supervisor by Pacific National’.
Mr Oakley expressed a personal opinion that the clamant could have obtained work as a coal train driver but for the subject accident.
Mr Oakley could not directly speak to current coal train driver earnings, but advised that he earned $134,000 gross in 2021. He speculated that the pay would be ‘around 15% higher now’.
The insurer respectfully submits that, at its highest, Mr Oakley’s unsigned statement merely expresses hearsay opinion on the claimant’s capacity and earning potential from a family member. Mr Oakley is not a medical professional or rehabilitation provider, and could not be considered independent. Therefore, the weight that could be afforded to his comments regarding the claimant’s physical and psychological suitability as a coal train driver is extremely limited.
The insurer also submits that it is not clear why the claimant could not have obtained a job search analysis or market report relating to coal train drivers in Newcastle, as opposed to requiring a statement from the claimant’s second cousin. Mr Sidhwa presumably could have commented on this point.
Furthermore, if Mr Oakley was a ‘critically important material witness’, as asserted by the claimant’s solicitor, the insurer submits that it is unclear why Mr Oakley was only contacted on two occasions over a four-year period (being 24 August 2021 and 11 July 2025). The second occasion was 11 days after the claimant’s material was originally due.
The insurer respectfully submits that these delays are not explained in the claimant’s exemption submissions, nor does this delay represent a ‘factual complexity’ that renders the matter unsuitable for assessment at the Commission, in the insurer’s respectful submission.
In any event, the insurer submits that the purported evidence of Mr Oakley is not particularly probative and could not be given significant weight. This is not just because the statement is not signed or because Mr Oakley will not be available for questioning.
In particular, the insurer submits that Mr Oakley’s evidence is that he used to work as a train driver, he considers (in his opinion) that the claimant could have worked as a train driver but for the subject accident, and he gives approximate earnings which are not supported by objective evidence. The insurer submits, with respect, that the evidentiary weight of those statements would not be enhanced to any meaningful degree by Mr Oakley being available for questioning.
The claimant contends that Mr Oakley’s evidence is ‘critical to the assessment of the Claimant’s damages as it is evidence that establishes that the Claimant’s probable uninjured earnings well exceed his pre-injury earnings. This evidence accordingly has the potential to increase the Claimant’s damages for diminution of earning capacity by more than $1,000 net per week…’. The insurer submits that the claimant has already served evidence which he says shows similar increased potential earnings, but for the accident.
Specifically, the claimant has served an ‘earnings report’ of Mr Sidhwa dated 13 July 2025. Mr Sidhwa speculated that the claimant could have earned between $1,520 and $2,915 gross per week as a painter, but for the subject accident. These earnings are essentially consistent with the earnings speculated by Mr Oakley ($134,000 gross per year, but around 15% higher now, so $154,100 gross, equating to $2,963 gross per week).
The claimant alleges both that he would have continued working as a painter and that he would have left this work to commence a role as a coal train driver, notwithstanding his lack of driver’s licence and previous rejection from such a position.
In circumstances where Mr Sidhwa’s report purports to show similar potential earnings in a painting role, it is unclear why Mr Oakley’s statement is ‘critical’ and would justify exempting the matter from the Commission two weeks out from the assessment conference, or why the absence of a signed statement renders the matter unsuitable for assessment in the Commission.
To this end, the statement of Mr Oakley was not included in the claimant’s damages bundle dated 15 July 2025. The claimant was already afforded a two week extension on its evidence, however, even an unsigned copy of Mr Oakley’s statement was not included in the damages bundle. The unsigned statement has only been included in the exemption submissions. It is not clear when the claimant otherwise intended to share this statement with the Commission or the insurer.
Furthermore, s 43(2) of the PIC Act states as follows:
“The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.”
The Member is entitled to have regard and afford weight to the unsigned statement, although the insurer submits that the statement’s probative value is very limited for reasons unconnected to the fact that the document is unsigned.
The claimant asserts at paragraph 23 that this situation constitutes a ‘complex factual issue’ because of the ‘unavailability of evidence’. The insurer disputes that such a situation represents a ‘complex factual issue’, especially as there is other evidence before the Assessor going to potential earning capacity and noting only two attempts were made to contact Mr Oakley over a four year period, for reasons that have not been explained.
Exemption of the matter will substantially increase the costs and delay in the resolution of the matter. The claimant’s solicitor’s comment at paragraph 22 that a ‘rehearing to the Court is all but guaranteed’ does not go to the suitability of the matter to proceed through the Commission.
The insurer submits that the claimant has failed to demonstrate that the unavailability of
Mr Oakley represents a ‘complex issue’ that renders the claim unsuitable for assessment at the Commission. This issue was not raised by the claimant’s solicitor at the Commission’s preliminary conferences on 15 May 2025 or 9 July 2025. In fact, the claimant’s solicitor had not contacted Mr Oakley for the second time until 11 July 2025, after the second preliminary conference, which was a preliminary conference specifically arranged to confirm the readiness of the matter to proceed.
For these reasons, the insurer submits that the Member ought to decline to exempt the matter from the Commission on the basis that the claimant has not established that there are sufficient complexities in the circumstances of the matter that render it unsuitable for assessment at the Commission.
The insurer provided further supplementary submissions to the claimant’s submissions as follows:
(a)    The claimant is a 29-year old….who alleges sustaining injuries in a motor vehicle accident that occurred on 23 November 2018.
(b)    On 23 July 2025, the claimant lodged an Exemption Application with the Commission asserting, for the first time, that the matter was not suitable for assessment at the Commission on the basis that the claimant’s second cousin would not provide a signed statement.
(c)    The insurer lodged Exemption Reply Submissions on 4 August 2025, objecting to the claimant’s exemption application on a number of grounds, including that the asserted issues to not represent a ‘complexity’ so as to render the matter unsuitable for assessment at the Commission.
(d)    The matter proceeded to a preliminary conference on 5 August 2025, at which time the claimant’s barrister made oral submissions to the effect that Mr Oakley’s evidence would possibly include evidence regarding training, systems of work, duties that would have been undertaken and comparative earnings. The Member requested further submissions in light of the evidence that emerged orally during the preliminary conference.
(e)    On 8 August 2025, the claimant lodged supplementary exemption application submissions.
(f)    The insurer has provided further submissions below, however, the insurer’s position remains that which is set out in the submissions dated 4 August 2025. These submissions are to be read in conjunction with those earlier submissions (R1-3).
(g)    The claimant asserts that Mr Oakley is a ‘critical witness’ and that the claimant’s economic loss should be calculated ‘arising from a precise mathematical calculation’. There is no evidence as to what ‘precise mathematical calculation’ could be conducted on the basis of Mr Oakley’s alleged evidence. The insurer maintains the view that the claimant’s second cousin would not be an impartial witness (assuming Mr Oakley could be compelled against his employer’s wishes to provide evidence).
(h)    At paragraph 10, the claimant asserts that the decision of Nominal Defendant v Livaja [2011] NSWCA 121 identifies a range of assumptions upon which a trier of fact would be influenced in determining a claim for economic loss, including the intentions of the claimant at the date of the accident. The insurer submits that
Mr Oakley’s statement (or anticipated evidence) would not go towards the intentions of the claimant and would amount only to comparative earnings evidence, for which the claimant has already provided evidence.
(i)    The claimant similarly asserts that he wishes to rely upon the ‘evidence that would have been given by Mr Oakley but for his refusal to provide a statement or appear before the Commission, in keeping with the directions he has been given by his employer’. The insurer submits that there is no evidence that Mr Oakley would be willing to participate in the proceedings against the wishes of his employer.
(j)    The claimant asserts that the insurer’s criticism of the state of evidence ‘shows’ that the matter is unsuitable for assessment. The insurer submits that the unsatisfactory state of evidence is due, in large part, to the late service of same and the attempts to procure evidence after the original due date of the claimant’s evidence.
(k)    The insurer submits that the situation (as it currently stands) is that the claimant wishes to rely upon evidence of a family member who is not willing to provide evidence against the wishes of his employer. The claimant’s solicitor has prepared a draft statement presumably based on recall of telephone conversations from 2021 and 2025 that, in effect, go towards the issue of comparable earnings.
(l)    The insurer submits that criticisms of the state of the evidence does not equate to a justification for exempting the matter due to ‘complexity’, especially as the claimant concedes as follows at paragraph 85 of his damages submissions:
‘If for some reason he failed to achieve this goal [train driver], it is reasonable to accept the proposition that he would have pursued a career as a painter as he was already involved in that work. The report of Mr Sidhwa, labour market researcher, is to the effect that the claimant would have achieved a similar level of remuneration, but that this would have taken longer to achieve’ (Emphasis added).
(m)     At paragraph 21, the claimant rejects that Mr Oakley’s evidence is ‘speculation’ because ‘he is currently employed as a supervisor of train drivers and so he has direct knowledge of their earnings’. This does not appear to accord with
Mr Oakley’s statement. In particular, at paragraph 11, Mr Oakley states that he ‘earned around $134,000.00 gross in 2021’, however, he anticipated this would now be higher as there were annual increases in the enterprise agreement. It is submitted that this statement does not read as if Mr Oakley has ‘direct’ knowledge of current earnings. The insurer maintains that Mr Oakley’s potential evidence is speculative.
(n)    At paragraph 22, the claimant asserts that it is ‘not for the insurer to dictate how the claimant discharges his evidential burden’ and that it does not matter that the claimant might be able to provide its case otherwise.
(o)    The insurer submits that those issues directly speak to the suitability of the matter proceeding in the Commission and whether there is ‘complexity’, as asserted by the claimant. The insurer maintains that, where there is comparable evidence before the Commission (as conceded at paragraph 85 of the claimant’s damages submissions), there cannot be a reasonable basis to exempt the matter and cause a substantial increase in costs and disbursements. This is particularly so where there is no evidence that Mr Oakley would be willing or able to give evidence in the District Court.
(p)    Contrary to the claimant’s submission at paragraph 22, the insurer submits that it is directly impacted by the manner in which the claimant has sought to conduct these proceedings. The claimant now seeks exemption of the matter, and it remains unclear why a ‘critical witness’ was not contacted outside of two occasions over a four year period, the last of which was 11 days after the original due date of the claimant’s material.
(q)    The insurer submits that exemption of the matter would result in a substantial increase in costs and disbursements so that attempts can be made by the claimant to ascertain what potential evidence could be obtained from a witness who is a family member of the claimant and whose evidence would, at its highest, represents comparative earnings for which similar evidence is already adduced.
(r)    Further, at the preliminary conference, much was made of the fact that Mr Oakley would have had, to some extent, oversight of the claimant and his training.
(s)    Despite this, the supplementary submissions do not provide any meaningful elaboration on this position, including why Mr Oakley would be able to speak to the likelihood of the claimant obtaining his driver’s licence and re-applying for a coal train driver role, which is the reason the claimant was rejected from that role in the past. The claimant’s assertion is that the claimant is totally incapacitated on the open labour market, and it is unclear why evidence would therefore need to be adduced as to the requirements and specifications of a train driving role in the context of the claimant’s assertion of total incapacity for any form of work.
(t)    The insurer submits that Mr Oakley’s evidence is therefore best described as comparative earnings evidence, for which the claimant already has evidence – as set out in our original submissions dated 4 August 2025.
In conclusion the insurer objects to the claimant’s Application for Exemption on the basis that there are not sufficient complexities that render the matter unsuitable for assessment at the Commission. The insurer submits that the Member ought to decline to recommend that the matter be exempted from the Commission.

MATTERS UNSUITABLE FOR ASSESSMENT

Section 7.34(1)(b) of the MAI Act provides that a claim is exempt from assessment if a Member has made a preliminary determination of the claim and has determined, with the approval of the President, that the claim is not suitable for assessment.
Rule 99(3) of the Rules sets out circumstances in which a claim may be found unsuitable for assessment as follows:
(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.
The list in rule 99(3) is not intended to limit the matters that may be considered by the Commission.
Rule 99(2) states the Commission must consider the objects of the PIC Act (which includes to promote public confidence in the decision-making of the Commission) and the circumstances of the claim.
Section 42 of the PIC Act outlines the guiding principle for the PIC Act and the Rules is to facilitate the just, quick and cost-effective resolution of the real issues in the proceedings.
In accordance with s 43(2) of the PIC Act, the Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.

CONSIDERATIONS

The application before me involves the claimant seeking an exemption on the basis that a material witness to the claimant’s economic loss case is unable to provide a signed statement or attend the Commission proceedings allegedly as a consequence of his employer’s directions not to participate.
It is common place for a party to seek an exemption when the particular witness cannot be compelled by the commission to appear. Witnesses, medical practitioners, police officers and any third party to the proceedings are often required to give evidence and require a subpoena. The commission has limited powers to compel parties to the proceedings only and it does not include in this case Mr Oakley, required by the claimant.
The insurer in the present matter considers that the calling of the witness Mr Oakley, a second cousin of the claimant does not impact on the information likely to be provided and the relevance of his information or evidence to matters addressing the claimant’s intention and likely circumstances but for the accident, where other information is already on hand to establish comparative earning capacity.
The claimant disagrees with the insurer’s assessment of the weight of the evidence likely to be given by Mr Oakley and the seeks to rely on the evidence of this witness to provide what is considered evidence going to the core of the claimant’s economic loss claim.
Noting that the claim involves a significant claim for past and future economic losses, the claimant’s ability to call witnesses to give evidence as it relates to losses claimed is a consideration which directly impacts on whether the matter is suitable to remain at the Commission.
Whilst the insurer has claimed there are other methods to adduce evidence as to comparable earnings, it is a matter for the parties to arrange their evidence and it is procedurally fair to enable the parties to call any witness they choose. The relevance of the evidence and reliance placed upon such evidence is a matter for the ultimate decision maker.

The weight of the witness’s evidence and the evidence to be given in examination in chief and cross-examination cannot be ascertained merely on an unsigned statement relied upon to date. I am satisfied that this matter involves complex issues in the assessment of damages and grounds for a recommendation that the matter is unsuitable.
At to the impact of the claimant’s injuries on his earning capacity, the most likely circumstances but for the accident are not agreed between the parties and so the ability to call a witness by subpoena to provide evidence going to the issues in dispute brings a complexity which can only be satisfied by an exemption to enable the party seeking to call the witness to be compelled to appear in a court.
The cost effectiveness of the matter being heard at Court is a matter to be considered in this situation, as the claimant’s submissions as to the likelihood that the matter would be dealt with at first instance with the relevant witness present, is persuasive that costs would be reduced by avoiding re-hearings.
The matter involves a complexity envisaged by rule 99(3) of the Rules sets out circumstances in which a claim may be found unsuitable for assessment as follows:
(a) whether the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim.
There is presently a complexity in the assessment of the claim that a party is required to be compelled to give evidence and for this reason, the matter is unsuitable to remain at the Commission and the discretionary exemption is recommended.

CONCLUSION

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 Motor Accident Injuries Act 2017 and I recommend to the President that it 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 29 September 2025, approved Member Shana Radnan’s recommendation that the claim is not suitable for assessment.

[2025] NSWPIC 500

25 August 2025