Nader v AAI Limited t/as AAMI

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nader v AAI Limited t/as AAMI [2024] NSWPIC 659
CLAIMANT:	Michael Nader
INSURER:	AAI Limited t/as AAMI
SENIOR MEMBER:	Williams
DATE OF DECISION:	28 October 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; application by insurer for exemption from assessment under section 7.34(1)(b); opposed by claimant; claimant a passenger in vehicle; insurer alleges claimant knew or ought to have known that the driver “under the influence of drugs”, and knew or ought to have known driver was speeding/driving recklessly and took no steps to stop him; contributory negligence alleged; insurer alleges extensive pre-accident drug, mental health and forensic history; history of incarceration; significant economic loss claim; Held – claim not typical of matters that proceed to assessment in the Commission; assessment by the Commission likely to take a number of days, and may take as long as a court hearing; the evidence of the claimant and driver should be tested under oath in a forum in which they will have all the rights and protections afforded by the Evidence Act 1995; the formality of a court hearing is appropriate; claim not suitable for assessment; recommendation subsequently approved by the Division Head, as the President’s delegate.

RECOMMENDATIONS – CLAIM NOT SUITABLE FOR ASSESSMENT

BACKGROUND

Michael Nader (claimant) was injured in a motor accident on 13 November 2019 (accident). He subsequently made a claim for damages under the Motor Accident Injuries Act 2017 (MAI Act) on AAI Limited t/as AAMI (insurer).
The claimant referred the claim to the Personal Injury Commission (Commission) for assessment in accordance with Div 7.6 of the MAI Act. The insurer has made an application for the claim to be exempted from assessment in accordance with s 7.34(1)(b) (application). The application is opposed.
On 23 July 2024 I dispensed with the requirement for the insurer to lodge an application for exemption and for the claimant to lodge a reply. Directions were made at that time for the parties to lodge submissions in relation to the application.
At a preliminary conference held on 30 September 2024 the parties agreed that the application can be 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.

THE INSURER’S POSITION – LIABILITY

On 13 October 2021 the insurer issued a liability notice to the claimant. Among other matters, the notice records that drugs were detected in the insured driver’s system, and that the insurer is “investigating whether the [i]nsured owed your client a duty of care”. The notice goes on to state that if a duty of care was owed, the claimant may have contributed to the accident and/or his injuries because:
(a) he knew or ought to have known that the insured was “under the influence of drugs”, and
(b) he knew or ought to have known the insured was speeding/driving recklessly and took no steps to stop him.
The notice records that the insurer required additional information before it can “finalise its determination.” An “interim” allegation is made that the claimant’s contributory negligence amounts to 15%.
Under the heading “Injury Assessment”, the notice records:
“Your client's injury falls outside the definition of minor which meets the requirements of a common law claim for damages.
Therefore, we advise that we have accepted liability for your client's Application for Damages under Common Law claim with a deduction for contributory negligence.
As we have determined that your client contributed to the motor accident and/or his injuries from the motor accident, we will make a deduction of 25% on the amount of compensation to be paid to your client for his common law claim for damages.”
As can be seen, the notice is internally inconsistent; there is reference to an “interim” allegation that the claimant’s contributory negligence amounts to 15%, and a subsequent reference to the insurer making a deduction of 25% on account of the claimant’s contributory negligence. Further, while the notice initially refers to the insurer investigating whether the insured driver owed the claimant a duty of care, the notice later states that the insurer has accepted liability with a deduction for contributory negligence.
Despite these inconsistencies, I am satisfied that as things presently stand contributory negligence remains a live issue between the parties.

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.”
Procedural Direction MA5 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

I have considered the application and reply lodged by the parties, together with the insurer’s liability notice, the documents annexed to the notice, and the material annexed to the submissions.
The application for personal injury benefits dated 3 December 2019 (claim form) contains the following description of the accident:
“I was a passenger in a motor vehicle driven by Troy Xerri…As the driver turned onto Blaxland Rd, he accelerated, losing control of the vehicle we were travelling in. As a result the car went over the concrete median strip onto the other side of the road into an oncoming vehicle and the two vehicles collided.”
The claim form also refers to the injuries suffered by the claimant as a result of the accident, including a “shattered pelvis”, fractured nose and right thumb, and lacerations to his head and face.
A police report dated 26 May 2021 records that the accident occurred on Blaxland Road, Eastwood, at 5.00pm. It is recorded that the weather was fine and the road surface was dry. The speed limit was 60kmph. Mr Xerri is identified as the driver of a white 2010 Toyota Hilux. The report records that MR Xerri’s blood alcohol result was negative. The report records:
“Drug Result Alc sample: DRUGS FOUND- NO ACTION RECOM. CONTACT BSU”
The report also records:
“Opinion of Sobriety: UNABLE TO ASSESS”
The following narrative of the accident is recorded in the police report:
“About 5:10pm on Wednesday 13 November 2019, a Toyota Hilux was travelling in a generally southerly direction on Blaxland Road, Eastwood, where it failed to safely negotiate a left hand bend, before crossing onto the incorrect side of the roadway impacting with a Mazda 2 hatch. The impact forced the [M]azda hatch rearwards, where it impacted with a Hyundai Accent. As a result of the impact, the driver of the Mazda hatch was pronounced deceased at the scene. CIU in attendance and have carriage of…”[1]
[1] The report is cut off at this point in the narrative.
An ambulance report provided under correspondence from NSW Ambulance dated 17 December 2019 includes a description of the claimant’s injuries. The report refers to him having been involved in a “high mechanism rollover”, and that four cars were involved in the accident.
In correspondence dated 11 August 2022, police refused the insurer’s application, made under the Government Information (Public Access) Act 2009 (GIPA), for access to the brief relating to criminal proceedings against Troy Xerri arising from the accident. The refusal was made on the basis that the information requested is excluded information because it relates to the judicial function of a court (the coroner).
The insurer relies on a media article that records Mr Xerri:
“…was in 2022 jailed by District Court Judge Leonie Flannery for a maximum of three years and nine months, with a two-year and four-month non-parole period over the crash that killed …
He had been driving his Toyota HiLux through northwestern Sydney on November 11, 2019 when he lost control.
His ute jumped over the median strip, crossed onto the wrong side of Blaxland Rd, Eastwood, and crashed head-on into a hatchback…
…He pleaded guilty to dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm…”
The insurer also relies on a media report dated 19 September 2024 in which reference is made to Mr Xerri being arrested and charged in relation to an “alleged violent home invasion”. It is stated that Mr Xerri had been released on parole “late last year after serving two years and four months in prison over a fatal crash that killed a mother of three.”
An email from an investigator to the insurer’s solicitor relates to a court listing of a matter involving Mr Xerri. Among other things, the email records that Mr Xerri’s bail remained refused, and that his matter had been adjourned to a date in November 2024.
Correspondence from the claimant’s pre-accident employers has also been provided, including correspondence from Milard Nader, CEO of Naders carpentry. There are also various invoices related to work performed by the claimant in 2019.
I have considered the document described “Incarceration timeline”, that records the claimant’s incarceration history, the chronology of evidence from NSW police, and the chronology of evidence from the Department of Communities and Justice, all prepared by the insurer’s solicitor. I have proceeded on the basis that the summaries accurately record the material summarised. There is no submission to the contrary.
The incarceration timeline records that the claimant was incarcerated for periods in 2014, 2015, 2016, 2017, 2018 and 2019. Following the accident he has been incarcerated for periods in 2019, 2020, 2021, 2022, 2023 and 2024.
The chronology of evidence from NSW police records that the claimant had been convicted of a range of offences both prior to and following the accident.
The chronology of evidence from the Department of Communities and Justice contains summaries of case notes, the first in 2006 and the most recent in March 2024. I have considered the matters referred to in the chronology. The case notes include reference to violence, long term drug use, various offences, charges, and periods of incarceration, together with the claimant’s employment in various roles including as a carpenter. There is also reference to the accident, and the impact the claimant’s injuries have had on his ability to work.
Documents from NSW police, produced in response to a direction for production, include the claimant’s criminal records and various police briefs. The criminal record is extensive, and discloses a range of offences before and after the accident, together with details of multiple sentences (including fines and prison sentences). The documents also include multiple court attendance notices, and facts sheets.

Particulars provided under cover of correspondence from the claimant’s solicitor dated 21 January 2021 state that Mr Xerri is married to the claimant’s cousin. There are particulars of various periods of employment and the names of employers. The particulars record that the claimant has been unable to “attend upon any employment” as a result of the accident, his ongoing injuries and disabilities. Reference is made to a reduced ability to sit, stand, and walk for extended periods. The particulars state that prior to the accident the claimant was working four to six days a week.
In an email to the insurer’s solicitor sent on 8 January 2020, the claimant’s solicitor stated the “the June 2019 tax return is the only return my client has lodged in the past 5 year period”.
I have considered the other particulars sought by the insurer and the responses provided by the claimant’s solicitor.
The claimant’s schedule of damages dated 12 October 2022 records that: at the time of the accident he was a self-employed roofer earning $2,000 a week, having been employed as a roofer since “around” 2001; he has been unable to return to work since the accident; and while he intended to continue working the significant nature of his injuries will entirely prohibit him from doing so or returning to work in any manual labour roles.
The schedule of damages dated 10 October 2022 records that the claimant seeks awards of $350,000 for non-economic loss, $156,100 for past economic loss (as at 12 October 2022), and $1,475,00 for future economic loss, a total of $1,981,100.

SUBMISSIONS

Insurer’s submissions

The insurer relies on written submissions dated 4 September 2024. The insurer refers to the claimant’s “extensive pre-accident drug, mental health and forensic history”, and notes that his criminal record dates back to 2006 and includes details of a range of offences. Reference is also made to the claimant having been incarcerated “for a significant proportion of his adult life”, including between 1 September 2017 to 20 March 2019. There is also reference to him having a “sporadic and inconsistent work history”.
The insurer refers to the significant economic loss claim made by the claimant, and notes that his tax records disclose that between 2017 and 2021 he only earned income (other than benefits from Centrelink and the insurer) in 2019. The insurer also notes that the claimant was incarcerated during the following periods:
(a)    16 March 2020 to 15 January 2021, during which time his in custody work assignments included employment as a cleaning general hand and packer/storeman;
(b)    6 June 2021 to 5 April 2022;
(c)    3 November 2022 to 2 June 2023, during which time his in custody work assignments included employment in garbage recycling, and
(d)    31 December 2023 to 29 July 2024, during which time his in custody work assignments included employment working on demountable structures as a general hand.
The insurer’s submissions record that on 1 February 2024 the claimant’s solicitor indicated that he intended to rely on evidence from at least half a dozen witnesses (referred to at [16] of the submissions) in support of his damages claim.
As to liability, the submissions record that the insured driver pleaded guilty to dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm.
The insurer’s submissions record that it has attempted to obtain a copy of the brief of evidence against Mr Xerri from NSW police and the Coroners Court, without success. The insurer “assumes” that the brief included the results of the drug test administered on Mr Xerri contemporaneous to the accident.
The submissions state that if Mr Xerri was intoxicated at the time of the accident, the insurer will require expert evidence from a pharmacologist addressing whether his ability to drive a motor vehicle was impaired and whether the claimant knew, or ought to have known, of that impairment.
The submissions record that the insurer does not expect to be able to obtain Mr Xerri’s written permission to obtain a copy of his drug test results or the police brief of evidence against him in relation to the accident in the foreseeable future. In this regard, the insurer refers to the media report on 20 August 2024 that records Mr Xerri was charged with another offence in July 2024, is in custody with bail refused, and his parole in relation to convictions arising from the accident has been revoked.
The insurer’s submissions refer to complaints made to medico-legal experts, including ongoing symptoms in his low back, pelvis, buttocks, right lower limb and right thumb, which the claimant reported caused restrictions on his level of functioning.
The insurer notes that a police fact sheet dated 5 June 2021 (two months after he was assessed by Dr Bentivoglio, one month after a vocational assessment with Ms Whitely, and one week after he was assessed by Dr Smith) indicates the claimant was seen walking along a footpath before he stole a vehicle, that police approached him and he then fled leading to a dangerous pursuit. The fact sheet records that the claimant ran to a barbed-wire fence, scaled it and then ran through a carpark, and that he was later observed by police jogging in the vicinity. The insurer also refers to a case note on 9 November 2021 that indicates the claimant expressed a desire not to work in goal as it may impact his claim, and various case notes in 2023 which indicate the claimant would pursue his compensation claim before looking for work, and he could engage in more activities after settlement of his claim.
The insurer refers to a custody management record and police facts sheet dated 30 December 2023 that records the claimant evaded a train fare, jumped the ticket barriers, ran from police as he was in possession of drugs, and fell over multiple times before he was apprehended.
The insurer argues that the claim is not suitable for assessment for the following reasons:
(a)    there will likely be complex arguments concerning the cause of any economic loss in the context of the claimant’s pre and post-accident criminal conduct and incarcerations;
(b) there are documents relevant to liability and quantum, including those in relation to the insured driver and withheld by NSW police pursuant to the GIPA legislation, that will not be produced without the force of a subpoena;
(c)    the parties may require expert liability evidence once material from NSW police becomes available;
(d)    it may be necessary for the insured driver to give evidence about the events leading up to his intoxication and the accident, including the claimant’s knowledge of those events. This may need to be under compulsion of law whilst he is incarcerated;
(e)    the claimant will likely be extensively cross-examined, including with respect to his criminal activities and claims of functional impairment;
(f) there are issues as to the claimant’s credibility and his evidence should be given under oath or affirmation to ensure procedural fairness. He may require the protection of a Certificate pursuant to s128 of the Evidence Act;
(g) the claimant claims he was earning $2,000 net per week prior to the accident. If this is to be maintained, it “prima facie amounts to tax evasion on a significant scale”. For this issue to be appropriately explored he may require the protection of a certificate pursuant to s128 of the Evidence Act;
(h)    there are significant credibility issues which would be more appropriately addressed in a court hearing;
(i)    if the claimant seeks to dispute various accounts provided in the material, it may be necessary to call witnesses who are not a party to the proceedings;
(j)    the symptoms and restrictions reported by the claimant to a number of medical practitioners do not align with the level of functioning reported in the police records at or around the same time he was examined;
(k)    expert witnesses may be required for cross-examination having regard to the assumptions underpinning their opinions by reference to the claimant’s criminal activities, and
(l)    the claimant intends to call evidence from seven witnesses. It is anticipated that they will need to be cross-examined. Neither the insurer nor the Commission can compel their attendance at any conference or hearing before the Commission, which will not achieve a just resolution of the issues in the proceedings, and
(m)     even if those witnesses do attend a hearing before the Commission, that process will not be quick or cost effective as it will likely take several days.

Claimant’s submissions

In written submissions dated 13 September 2024 the claimant argues that the application is without merit and is “simply an artifice to prolong what is an uncontroversial matter on the evidence”.
In the claimant’s submission, he has a concluded entitlement to damages for non-economic loss, and his claim for economic loss is “as good or as bad as the evidence exchanged between the parties establishes.” The claimant argues that the insurer’s submissions focus on matters that are irrelevant to the application, such as the claimant's criminal antecedents, about which he says there is no issue and no controversy. The claimant argues that the insurer’s submissions do not say what they must, namely the steps that have been taken to address these apparently "complex" matters.
The claimant argues that the insurer does not say whether it has made or attempted to make contact with the insured driver, and does not say whether the insured driver has or will refuse to assist in the insurer's enquiries. In the claimant’s submission, “at best, the insurer says that it has not been able to obtain [yet] a copy of the insured's blood test from the hospital under GIPA” and that the insurer “plainly has not tried all that hard”. In his submission, “one very obvious step” the insurer could take is to obtain the insured driver's authority to obtain his hospital records.
The claimant argues that there is not “a scintilla of evidence” in support of the insurer's allegation of contributory negligence; there is no evidence that he was aware of the presence of drugs in the motor vehicle, whether the insured driver had drugs in his system, or what exchange, if any, took place before the accident between him and the driver. Nor has the insurer served any lay evidence about these matters. In his submission, “the allegation is ambitions [sic], and unsubstantiated”.
With respect to his economic loss claim, and the evidence that goes to that head of damages, the claimant submits that “nothing the insurer proposes to do, by issuing subpoenas or otherwise, will change that evidence”.
The claimant’s submissions record that the lay witnesses he relies on in support of his economic loss claim will be available to be cross-examined. In his submission, “[o]ne can hardly imagine a lengthy cross examination about economic loss, because it is the absence of declared income which the insurer says is disentitling, and the claimant accepts that his past income was modest”.
In the claimant’s submission, the insurer should “not be rewarded for sitting idle in investigating this matter”, and that it “has not even made the most basic of enquiries with the insured driver”. He argues that this claim is no different to any other matter that comes before the Commission, and there is no good reason, accordingly, for the Commission to take the exceptional approach the insurer compels. In the claimant’s submission, the insurer’s application should be dismissed.

Insurer’s submissions in reply

The insurer’s submissions in reply dated 9 October 2024 record that, through its former lawyers, it made enquiries in relation to liability and attempted to obtain evidence from the NSW police and the Coroners Court in support of the allegation of contributory negligence. Those enquiries and efforts were unsuccessful. In this regard, the insurer refers to the correspondence from its former lawyers to the Coroners Court dated 7 September 2022 and the email in reply from the Coroners Court dated 8 September 2022.
The submissions also record that the insurer, through its current lawyers, continues to make enquiries in relation to liability and the allegation of contributory negligence. The submissions refer to a media report dated 19 September 2024 that records that in 2022 Mr Xerri was, in relation to the accident, sentenced to a maximum of three years and nine months imprisonment, with a two-year and four-month non-parole period, and was released from prison in November 2023.
The submissions go on to record that Mr Xerri was charged with another offence in September 2024, and that matter was adjourned until 3 October 2024 so that he could appear in Court along with several co-accused.
The submissions state that the insurer, through its legal representative, instructed an investigator to attempt to locate Mr Xerri and attend Court on 3 October 2024. It is recorded that the investigator advised that the application it made to the Department of Justice to ascertain his whereabouts had been declined. Further, Mr Xerri did not appear in Court on 3 October 2024, his bail remains refused, and his matter was adjourned to 21 November 2024 to enable the Office of the Director of Public Prosecutions to review the brief.
The submissions record that the insurer will “continue with this line of enquiry” but does not expect to obtain the co-operation of Mr Xerri or information from the Department of Justice whilst he is incarcerated and there are active criminal proceedings against him.
The submissions again record that witnesses relied on by the claimant in relation to his damages claim will need to be extensively cross-examined under oath.

Claimant’s supplementary submissions

The claimant relies on supplementary submissions dated 16 October 2024 in which he argues that:
(a)    the insurer’s submissions in reply reveal that the first attempts it made to contact Mr Xerri were on 3 October 2024, after the application for exemption had been made;
(b)    there is no evidence to suggest Mr Xerri is uncooperative or unwilling to cooperate with the insurer. The suggestion that the insurer does not "expect to obtain the cooperation of the insured driver" is mere supposition, and without any factual basis;
(c)    the value of the claim should not be reflective of “competent counsel's licence to cross examine witnesses in an unfettered and protracted manner”;
(d)    much of the value in the claim is found in his future entitlements. The Commission will be in no better position than the court to determine this matter, but will be in a better position to justly, efficiently, and more expeditiously dispose of the issues, and
(e)    nothing the insurer says in its supplementary submissions advances its cause any further.
The claimant again argues that the application should be dismissed, and the matter allocated a hearing date.

CONSIDERATION

There appears to be no question that the claimant suffered significant injuries as a result of the accident. He is entitled to damages for non-economic loss, Medical Assessor Woo having certified that his low back injury gives rise to an impairment that is greater than 10%. He contends for an award of damages in excess of $1.9 million.
The question I am required to determine in the context of the insurer’s application for exemption is, having made a preliminary assessment of the claim, whether the claim is not suitable for assessment under Div 7.6 of the MAI Act.
In IAG Limited t/as NRMA Insurance v Khaled & Ors [2019] NSWSC 320, 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.
While it is possible that not all of the matters raised by the insurer in support of its application for exemption will remain in issue, as matters presently stand:
(a)    the proceedings will involve a dispute about the claimant’s contributory negligence;
(b)    at least one, and perhaps both, parties will rely on expert evidence in relation to contributory negligence;
(c)    the insurer will continue to experience difficulty securing the co-operation of, and information from, Mr Xerri;
(d)    Mr Xerri will require a subpoena to compel him to give evidence;
(e) the insurer may seek leave to cross examine Mr Xerri in accordance with s 38 of the Evidence Act 1995;
(f)    the witnesses relied on by the claimant in support of his economic loss claim will be required to give evidence, be cross examined, and require a subpoena to compel them to give evidence;
(g)    the claimant’s credit will remain in issue;
(h)    the claimant is likely to be the subject of extensive cross examination, and
(i) for the reasons advanced by the insurer, the claimant and other witnesses may require the protection of a certificate pursuant to s128 of the Evidence Act.
It is not my role to second guess the insurer’s assertion that the claimant’s credit is in issue, nor is it my role to determine the truth or even the strength of the insurer’s assertion. My task is to assess the allegation and whether the claim is not suitable for assessment: IAG Ltd t/as NRMA Insurance v Abiad [2018] NSWSC 1422 at [76].
On the evidence before me, I am not satisfied, on a preliminary basis, that issues do not arise in relation to the claimant’s credit in the context of his pre-accident earnings, and his post-accident earning capacity.
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 at [76].
While it is not mandatory, when a credit issue is raised, to decide that a 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.
The evidence of both Mr Xerri and the claimant should be tested under oath in a forum in which they will have all the rights and protections afforded by the Evidence Act 1995. The insurer should be able to avail itself, if appropriate, of s 38 of the Evidence Act. This cannot occur in an assessment by the Commission. Nor can the Commission give a certificate under s 128 of the Evidence Act.
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 an assessment. The Commission is not bound by the rules of evidence: s 43 PIC Act. The claimant’s credit should be tested within the framework of the Evidence Act.
An assessment by the Commission is likely to take a number of days, and may take as long as a court hearing. A claim that will require that amount of hearing time is not suitable for assessment by the Commission.
Contrary to the claimant’s submission, this claim is not typical of matters that proceed to assessment in the Commission. 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.
I am satisfied that a court hearing is the mode of hearing that will resolve the matters in 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. This is a claim in which the formality of a court hearing is appropriate.
For the foregoing reasons, the claim is not suitable for assessment by the Commission.
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 7 November 2024, approved Senior Member Williams recommendation that the claim is not suitable for assessment.

[2024] NSWPIC 659

28 October 2024