Section 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAIA) states a claim can be subject of a discretionary exemption from assessment, if it has been determined by the Commission that the claim is not suitable for assessment under Division 7.6.
Rule 99 of the Personal Injury Commission Rules 2021 outlines the considerations the Commission may consider in determining whether a claim is not suitable for assessment:
Procedural Direction MA5 provides that an application for exemption may be made before a Member in the course of a general assessment of a claim.
A Member is required to make a preliminary assessment of the claim and take into consideration of the objects of the Personal Injury Commission Act 2020, consider the issues that arise in the claim to provide a recommendation of whether the claim is not suitable for assessment under Division 7.6 of MAIA.
If the President of the Commission agrees with the Member’s preliminary assessment, and the claim is exempt from assessment, the Claimant will be entitled to commence court proceedings in respect of the claim.
On 19 January 2024, the Personal Injury Commission (PIC) published its decision in RACQ Insurance v BRT  NSWPIC 672.
The Claimant was involved in a motor vehicle accident on 28 June 2018.
The Claimant lodged a claim for damages under MAIA on 28 February 2020 and subsequently referred her claim to the Commission for assessment.
The Insurer, RACQ, sought the claim be exempted from the PIC process, on a discretionary basis, under section 7.34(1)(b) of MAIA.
The Member directed both parties to provide submissions and medical evidence in relation to the application for exemption.
The Insurer provided submissions the claim was not suitable for assessment because of the complex causation issues surrounding the Claimant’s alleged cervical spine and lumbar spine injury based on the following evidence:
The Claimant was afforded an opportunity to provide submissions but did not provide any submissions in respect to the exemption application.
The Member considered:
The Member made a preliminary assessment that a court hearing has the advantage of affording the parties a better opportunity for proper and fair cross examination of the medical witnesses, the ability to compel witnesses to attend the Hearing by way of subpoena and the ability to issue a subpoena for production outside of NSW. The Member, therefore, determined the matter was not suitable for assessment because of the complex medical issues surrounding causation.
The Division Head (Motor Accident Division) as a Delegate of the President approved the Member’s recommendation that the claim was not suitable for assessment.
Whether a matter should be exempted under s 7.34(1)(b) of MAIA turns on the Member’s discretion. It is heavily fact-dependent.
A party who is seeking to have the matter exempted because it is not suitable for assessment should provide supporting submissions and relevant evidence referring to the considerations set out in Rule 99 of the Personal Injury Commission Rules 2021 and under section 7.34(1)(b) of MAIA.
If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Special Counsel Helen Huang today.
In Allianz Australia Insurance Ltd v Salucci  NSWSC 1953, the matter before the Supreme Court was the Insurer's application for judicial review of the Review Panel's determination of 24% whole person impairment in respect of the Claimant's physical injuries.