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.