Tag: Exemptions

When is Damages Claim Unsuitable for Assessment?

Decision

El Saghir v AAI Limited t/as AAMI [2026] NSWPIC 545

Sixty-Second-Or-Less Summary

An insurer seeks a discretionary examination from a PIC claims assessment on the grounds that a liability dispute involves complex legal issues.

Is the damages dispute unsuitable for assessment by the PIC.

In El Saghir v AAMI, a PIC Member concluded that the claim was not suitable for assessment by the PIC because the PIC could not compel compliance with Directions for Production and could not compel witnesses to give evidence (particularly those without any interest in the outcome of the dispute).

Principles

✅ Section 7.34(b) of the Motor Accident Injuries Act 2017 (MAIA) provides that a damages claim may be exempted from assessment by the Commission under Division 7.6 of MAIA where a preliminary assessment is made that the claim is “not suitable for assessment” and the President approves the Member’s preliminary assessment.

✅ Rule 99(3) of the Personal Injury Commission Rules 2021 (PIC Rules) sets out a non-exhaustive list of factors which a Member may take into account when assessing whether the claim is not suitable for assessment by the Commission.

✅ In practice, however, practical matters such as whether the PIC can compel compliance with a Direction for Production or whether the PIC can compel a witness to attend and give evidence may be given weight in assessing whether a claim is unsuitable for assessment by the PIC.

Facts

The Claimant was involved in a motor accident on 9 June 2023 at Auburn. At the time of the accident, the Claimant was a learner driver.

The Insurer denied liability in the damages claim on 3 April 2025 on the grounds that the Insured driver was not at fault.

The Insurer subsequently sought a discretionary exemption from the PIC process pursuant to Section 7.34(b) of MAIA and Rule 99(3) of the PIC Rules. In general terms, the Insurer argued that complex issues with regard to liability were at play and the Court processes were required to compel witnesses to attend to give evidence.

Whilst the Claimant did not oppose the exemption application, the Member was still required to satisfy themselves that the damages claim was not suitable for assessment by the PIC and make a recommendation to the President.

The Member’s Decision

The Member noted the following general differences between proceedings in the Commission and proceedings in Court:

🟪  PIC Assessment Conferences, unlike Court Hearings, are not open to the public.

🟪  PIC Assessment Conferences are informal whereas Court Hearings are more formal.

🟪  Judges have the authority and the power to enforce orders, whereas PIC Members are members of a dispute resolution tribunal.

🟪  A Judge can require a witness to give answers under oath or affirmation and compel the witness to answer questions, whereas PIC Members may only draw inferences where a witness fails to attend or declines to answer questions.

🟪  Only a Court can grant privilege against self-incrimination where a witness is compelled to answer questions.

🟪  Witnesses may be cross-examined at length in Court proceedings, whereas cross-examination in PIC proceedings is at the discretion of the Member (albeit rarely withheld).

The Member ultimately agreed that this claim was not suitable for assessment for the following reasons:

🟪  The relevant test is not whether the PIC has the capacity to determine the dispute, or whether it is preferable for the PIC to resolve the dispute, but whether the claim is not suitable for assessment.

🟪  The fact that the PIC is set up to resolve motor accident disputes and is comprised of Members who are motor accident specialists, tells against a finding that the claim is unsuitable for assessment.

🟪  On the other hand, the PIC cannot compel a party to comply with a Direction for Production or for a witness to attend a PIC Assessment Conference.

🟪 The fact that a PIC Member cannot compel a witness to attend to give evidence must be given weight, particularly given that a witness, with no interest in the outcome of the dispute, is often reluctant to attend and, for example, may have difficulty securing time of work without a subpoena they can show their employer.

My Perspective

The decision in El Saghir provides a useful example of how the factors in Rule 99(3) of the PIC Rules are applied in practice.

It is notable that the driving factors which rendered a claim unsuitable for assessment were practical matters such as whether a witness, with no interest in the outcome of the dispute, can secure time of work to attend a PIC Assessment Conference given that they cannot show their employer a Subpoena to Give Evidence which compels their attendance.

I note that in Insurance Australia Limited t/as NRMA Insurance v Tanuja Banu [2026] NSWPIC 357, a claim was also found to be unsuitable for assessment by the PIC due to a practical matter. In that claim, the Claimant’s failure to comply with a direction to produce some loan documents rendered the claim unsuitable for assessment because the loan documents had “apparent relevance” to the Claimant’s economic loss claim.

PJH

I never use AI when writing my case notes. The purpose of this case note is educational and should not be relied upon as legal or financial advice. My commentary is only current as at the time of publication and is only relevant to motor accident claims in NSW. Readers affected by the issues raised in this case note should seek bespoke legal advice, noting that I act for CTP Insurers and I do not accept direct instructions from those injured in motor accidents.

Non-Compliance with Direction for Production Renders Claim Unsuitable for Assessment

Decision

Insurance Australia Limited t/as NRMA Insurance v Tanuja Banu [2026] NSWPIC 357

Sixty-Second-Or-Less Summary

A Claimant makes a claim for damages following a motor accident. She was employed by her husband’s cleaning business prior to her accident.

The Insurer requests copies of the Claimant’s payslips to verify her claim for economic loss. The Claimant fails to fully comply. Her husband’s company fails to respond to a Direction for Production.

Should the damages claim be exempted from the Commission?

In IAG v Banu, a Senior Member concluded that the matter was not suitable for assessment because the Claimant’s payslips had “apparent relevance” to the assessment of the claim for economic loss and the Commission, unlike the Court, had no power to compel compliance with the Direction for Production.

Principles

✅ Pursuant to section 7.34(1)(b) of the Motor Accident Injuries Act 2017 (MAIA), a claim for damages may be exempted where assessment by the Commission is not suitable.

✅ The primary issue in assessing suitability is whether the Commission can afford both parties a fair hearing.

✅ The Commission may not be able to afford a party a fair hearing in circumstances where an entity fails to respond to a Direction for Production given that the Commission, unlike a Court, cannot compel compliance.

Facts

The Claimant was injured in a motor accident on 28 November 2023 and subsequently made a claim for damages.

She was employed by her husband’s cleaning business at the time of the accident. A dispute arises regarding the level of the Claimant’s personal exertion activity within the business.

At the request of the Insurer, the Commission issued a Direction for Production which required the Claimant’s employer to produce his payslips. The Claimant’s employer failed to comply with the Direction for Production.

The Insurer applied for a discretionary exemption on the grounds that the claim was not suitable for assessment by the Commission.

The Senior Member’s Decision

The Senior Member confirmed that the issue at hand is whether the claim is suitable for assessment by the Commission. The natural and ordinary meaning of “suitable” is “such as to suit; appropriate, fitting, becoming” – IAG Limited t/a NRMA Insurance v Khaled & ors [2019] NSWSC 320.

The Senior Member also confirmed that, in assessing suitability, a primary question was whether the Commission could afford both parties a fair hearing, in a practical sense – Insurance Australia Limited t/as NRMA Insurance v Banos [2013] NSWSC 1519

Having set out those principles, the Senior Member decided that the claim was not suitable for assessment by the Commission for the following reasons:

🟪 Whilst liability was admitted, the Claimant sought damages exceeding $1 million.

🟪 The reliability of the Claimant’s evidence was in issue.

🟪 The Claimant had not been able to provide the insurer with all the payslips which the Insurer had requested.

🟪 The pattern of income likely to be disclosed by the Claimant’s payslips – including income splitting with her spouse – had “apparent relevance” to the assessment of the Claimant’s damages.

🟪 The Claimant’s employer had not produced documents in response to a Direction for Production.

🟪 A Court has the power to compel compliance with a Subpoena for Production, whereas the Commission cannot compel compliance with a Direction for Production.

🟪 The Insurer cannot be afforded a fair hearing without access to the Claimant’s payslips.

🟪 The claim should be determined in a jurisdiction where the Insurer can compel production of records that are “apparently relevant” to the issues in dispute.

My Perspective

The decision in Banu underscores that the list of indicia of suitability in Rule 99(3) of the Personal Injury Commission Rules 2021 are neither prescriptive nor exhaustive. As the Senior Member noted, the sub-rule begins with the words “without limiting the matters that may be considered, the Commission may consider the following…”.

The real issue is whether the circumstances mean that one party will be denied a fair trial if the dispute remains in the Commission.

The fact the Commission cannot compel compliance with a Direction for Production is one factor which might cause a Commission hearing to be unfair to the party seeking production of documents. The party must still, however, demonstrate that the documents it seeks have “apparent relevance” to the issues in dispute.

PJH

The purpose of this case note is educational and should not be relied upon as legal or financial advice. My commentary is only current as at the time of publication. Readers affected by the issues raised in this case note should seek bespoke legal advice, noting that I act for CTP Insurers and I do not accept direct instructions from those injured in motor accidents.