CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Insurance Australia Limited t/as NRMA Insurance v Barsi [2024] NSWPIC 340	
		
Claimant:	Mihalj Barsi	
		
insurer:	NRMA	
		
Member:	Terence Stern OAM	
		
DATE OF DECISION:	21 May 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; member’s recommendation; application for exemption under section 7.34(1)(b); the claim involves complex legal or factual issues, or complex issues in the assessment of the amount of the claim; the primary ground for unsuitability is the non-availability of witnesses; Held – claim not suitable for assessment; recommendation that the claim be exempt from assessment; recommendation approved by Division Head.

MEMBERS RECOMMENDATION – CLAIM IS UNSUITABLE FOR ASSESSMENT
BACKGROUND
1.	I held a telephone conference by Teams, in this Dispute, on 3 April 2024. 
2.	In the report resulting from that conference, I stated that: 
“1. There are two other related matters; Athan Giannakopoulos (M10572888/23) and Mihalj Barsi (M10572782/23). 
2. Mihalji Barsi is ready. 
3. Nicoleta Barsi’s matter is still tied up in the medical dispute division. 
4. Athan Giannakopoulos is ready. 
5. Ms Covell has advised that advice had been received from counsel for the Insurer and it had been provided to it for instructions. 
6. Although there had previously been a claim for an exemption on the basis of unavailability for some documents, that particular issue had now been resolved. However, depending upon the instructions it receives, the Insurer may apply for a discretionary exemption but does not yet have instructions. 
7. The Insurer’s solicitor requested that this matter go over for two weeks at which time, Ms Covell should have instructions as to the application for exemption. The legal representatives of the other parties agreed.”
3.	In the meantime, the claim of Athan Giannakopoulos was discontinued (settled). 
4.	On 29 April 2024, Ian Jones (solicitor for the Insurer) made detailed submissions. 
5.	On 15 May 2024, the solicitor for the claimant advised that he consented to the insurer’s Application for Exemption. 
6.	In an appropriate case, a Member might be of the view that, notwithstanding consent, the matter was not unsuitable for assessment in the Personal Injury Commission and determine the Application for Discretionary Exemption to that effect. Such a determination might be rare but still possible. 
7.	The main thrust of the insurer’s submissions was that this case would require detailed evidence from a number of witnesses as to the factual matrix of the case. 
8.	Significant cross examination would be required even extending to a particular witness who might be regarded as a hostile witness. 
9.	At [17], Mr Jones pointed out that there were at least 17 other potential witnesses identified in the police brief of evidence in addition to those referred to in the submissions. 
10.	There would be at least one expert witness. 
11.	Mr Jones submission went to the identification of the applicable principles applicable to an Exemption Application. 
12.	The basic facts relevant to the question of a discretionary exemption are: 
a.	motor vehicle accident on 8 April 2020 at approximately 2:15am;
b.	Jordan Kaciski was driving a modified 1991 Nissan 200SX when he lost control and crashed; 
c.	it was a single vehicle accident, but there was another vehicle relevantly involved – a 2005 Volkswagen Golf;
d.	the Golf was involved in the accident, because at various times it was driving alongside the Nissan; 
e.	the two vehicles were allegedly racing;
f.	Athan Giannakopoulos, the rear seat passenger in the Nissan was seriously injured in the accident which took place and, 
g.	Michael Barsi, the front seat passenger in the Nissan, died as a result of the injuries he sustained in the accident. 
Grounds for the Application for a Discretionary Exemption
13.	The Insurer refers to section 99 of the Personal Injury Commission Rules 2021 (‘The Rules’) which provides that in determining whether the claim is suitable for assessment, the Commission must consider the Objects of the PIC Act and the circumstances of the claim. The matters which may be considered are expressly listed in subsection 3 as including:
“(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.”
COMPLEXITY
14.	The Insurer submits that there is a complex factual situation in the sense that determining exactly what happened and why is complex, and that there are complex legal issues arising. 
OTHER ISSUES AS TO COMPLEXITY
15.	The Insurer submits: 
a.	The hearing will involve multiple witnesses and at least one expert and, 
b.	At least one witness is likely to be a hostile witness; 
CLAIMANT’S SUBMISSIONS IN REPLY of 15 MAY 2024
16.	On 15 September 2024, the claimant’s solicitor (Hayley Bonica) provided consent on behalf of the Claimant, to the Insurer’s Application for Exemption. 
Documents considered
17.	The documents I have considered are those listed in, and attached to, the application and the reply and any further information provided by the parties.
REGULATORY FRAMEWORK AND LEGISLATION
18.	Clause 12 of the Procedural Directions refers to Section 7.34(1)(b) of the Motor Accident Injuries Act 2017 (‘the Act’) which provides a claim is exempt from assessment if the 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.
[25] 	The Direction continues the assessment of the application must be dealt with in a way that best supports the Objects of the (Act), given the facts and circumstances of the claim. The assessment of the application for exemption may be on the papers.
19.	The objects of the Personal Injury Commission Act 2020 are set out in section 3:
‘3 OBJECTS OF ACT
The objects of this Act are as follows—
(a)  to establish an independent Personal Injury Commission of New South Wales to deal with certain matters under the workers compensation legislation and motor accidents legislation and provide a central registry for that purpose,
(b)  to ensure the Commission—
(i)  is accessible, professional and responsive to the needs of all of its users, and
(ii)  is open and transparent about its processes, and
(iii)  encourages early dispute resolution,
(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,
(e)  to promote public confidence in the decision-making of the Commission and in the conduct of its members,
(f)  to ensure that the Commission—
(i)  publicises and disseminates information concerning its processes, and
(ii)  establishes effective liaison and communication with interested parties concerning its processes and the role of the Commission,
(g)  to make appropriate use of the knowledge and experience of members and other decision-makers.”
CASE LAW
20.	The case law developed under the Motor Accidents Compensation Act 1999 (‘MACA’) is helpful as the issues under that legislation and the current legislation are much the same.
21.	In Zurich Australia Insurance Limited v MAA [2006] NSWSC 845 Hoeben J said:
[39]	‘…..the intention of the Act that the primary means of…resolution of disputed claims…is the claims assessment system…Absent the criteria prescribed under section 92(1)(a) it is for the claim assessor with the concurrence of the PCA to determine what is not capable of resolution within that system.
[53]	...Most claims will be assessed in accordance with Part 4.4...There will be some claims which are exempt...but they will be in the minority and be the exception. Lest such exemptions be granted too freely (and thereby defeat the objects and purpose of the Act) strict requirements are imposed before a claim is exempt…’

22.	In Insurance Australia Limited v Banos [2013] NSWSC 1519 Campbell J at [43] dealt with the relevant considerations where there was an allegation of a false and misleading statement:
(a)	the Act contemplates that the great majority of disputes will be resolved by assessment and not in court
(b)	s 92 provides a clear legislative guidepost that appropriate cases should be redirected to the court by way of preliminary determination
(c)	a primary question will be whether having regard to the nature of the issue both parties can be afforded a fair hearing in a practical sense
(d)	which mode of hearing will resolve the dispute more efficiently bearing in mind the comparative limitations and advantages of an assessment conference on the one hand and a court hearing on the other. The judge lists some of the advantages of a court hearing including better opportunity for proper and fair cross-examination of medical experts
(e)	the public interest
(f)	it is not mandatory when a credit issue is raised to decide that the claim is not suitable 
23.	In IAG Limited t/a NRMA Insurance v Khaled & Ors [2019] NSWSC 320 (21 March 2019), Bellew J said (at [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.”

24.	AAI Limited v Feng [2019] NSWSC 535, Adamson J said [at 59]:
“In paragraph [14] the Claims Assessor outlined the jurisdiction and experience of CARS as a “specialist Tribunal” and what, in his experience, had occurred in such assessments. Although this paragraph was relied upon by the Insurer as an indication that the Claims Assessor had fallen into the same error as the claims assessors in Khaled and Lou, I do not consider this paragraph to have that effect in the present case. Although the ultimate question turns on suitability (or lack thereof), capacity will commonly, if not invariably, be a relevant factor in determining suitability. In paragraph [15], the Claims Assessor again used the words “properly determined”, which, in my view, is sufficient to indicate that he was addressing suitability rather than purely addressing capacity. The reference in paragraph [15(ii)] to the potential for the issue of suitability to be revisited implies that the question of suitability was being addressed in the reasons. The words “particularly complex” in paragraph [15(v)] also imply that an evaluative judgment is being made. The highlighted words in paragraph [17] in the passage from the reasons extracted above suggest that the Claims Assessor was not engaged in a rudimentary exercise of determining whether CARS had the capacity to determine the dispute but rather that the Claims Assessor had not been persuaded by the Insurer’s arguments that the claim was unsuitable for CARS assessment.”
25.	In Insurance Australia Limited trading as NRMA v Howard [2019] NSWCA 224 Adamson J [37] noted that there did not appear to be any express requirement that reasons be given where an Application for a Discretionary Exemption was refused.
26.	At [56] Adamson J held:
‘A claims assessor’s reasons are to be read fairly as a whole and given beneficial construction. They contain an evident justification for the exercise of power: that he was not satisfied that the claim was unsuitable for assessment because a fair and just hearing could still be had at an Assessment Conference.’
27.	In IAG Limited trading as NRMA Insurance Ltd v Qianxia Lou [2019] NSWSC 382 [23] held that:
‘The frequency with which a particular type of issue is ventilated and dealt with in the CARS assessment process is irrelevant to determine whether a claim is “not suitable for assessment”.
The relevant question is not “whether the issues raised by the Insurer were commonly dealt with and thus could be dealt with by assessment?” but rather “whether the issues made the matter not suitable for assessment within CARS.’

28.	In IAG Limited t/a NRMA Insurance v Qin [2020] NSWSC 1025, Harrison As J said at [75]:

“In my view, it is plain from the claim assessor’s reasons that he understood the overriding question to be one of suitability, not capacity. In determining whether the matter was not suitable for assessment at CARS, the claims assessor was entitled to compare the advantages of a CARS assessment and a court hearing, including the capacity for the issues raised in the insurer’s submissions to affect the capacity of CARS to provide the parties with a fair hearing. As such, his reasons reveal that he gave a proper, genuine and realistic consideration of the correct question. This ground of review fails.”
29.	IAG Limited t/a NRMA Insurance v Abdelrazek [2020] NSWSC 773, Adamson J said:
"[38] The effect of the wording of s 92(1)(b) and cl 14.16 of the Guidelines is that, apart from the circumstances of the claim at the time of its consideration, it is a matter for the Assessor to decide what ought to be taken into account and what weight to give particular factors in determining whether the claim is suitable for assessment. As long as the legislation does not, by necessary implication, make any of the matters taken into account by the Assessor irrelevant, the Assessor will not be in error in taking them into account: Minister for Aboriginal Affairs v Peko-Wallsend Limited (1986) 162 CLR 24 at 38-41 (Mason J); [19861 HCA 40 (Peko­Wallsend).
General principles relating to the Assessor's obligation to give reasons
[39] The Assessor's reasons are not to be construed minutely or finely with an eye attuned to the perception of error: see the summary of authorities in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 271-272 (Brennan a, Toohey, McHugh and Gummow JJ); [1996] HCA 6 (Liang).
[43] ... it is plain from the Assessor's reasons (and, in particular [6]) that he appreciated that the overriding question was one of suitability, not capacity, and understood the distinction between the two concepts. Indeed, it was common ground that the claim was one which fell within the discretionary exemption in s 92(1)(b) and not within the mandatory exemption in s 92(1)(a). In these circumstances, it must have been accepted that the claim could have been dealt with by a CARS assessment and would only not be dealt with in that way if it were exempted by the Assessor on discretionary grounds. In determining whether the matter was "not suitable" for CARS assessment, the Assessor was entitled to compare the relative advantages and disadvantages of a CARS assessment and a court hearing.
[47] It may be that the underlying policy behind Chapter 8 of the Guidelines is the assumption that such matters concerning liability are better determined in courtrooms than by CARS. However, this policy is expressed neither in the legislation or the Guidelines. Nor, even if this policy can be discerned, can it be extrapolated into assessments of damages to give rise to a general proposition that all matter which relate to the credibility of a claimant or a witness are better determined in a courtroom than in a CARS assessment.
[48] Indeed, it will be few cases (sic) where the credibility (in the sense of reliability) of a claimant is not sought to be tested, at least to some extent, by an Insurer, whether in the course of a CARS assessment or a court hearing. As Lord Pearce said in Onassis v Vergottis [1968] 2 Lloyd's Rep 403 at 431:
"It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active.11
[52] ... Matters of credibility, though relevant under s 92(1)(b), are not determinative.
[57] ... The Assessor was entitled to envisage the way in which the assessment would be conducted, on the basis of present information, when deciding whether to grant an exemption under s 92(1)(b) of the Act."

30.	The decision of Campbell J in IAG Limited t/a NRMA Insurance v Xie [2020] NSWSC 1112 (Campbell J 21 August 2020) arose out of a challenge to the validity of a decision of a Claims Assessor who refused the Insurer's Application for Exemption.
31.	The Insurer had argued that the claim was not suitable for assessment because the Claimant had made false or misleading statements about matters relevant to past and future economic loss.
32.	Campbell J held that the case had not been shown to be unsuitable for a CARS assessment.
CONSIDERATION
33.	The fundamental principle is not whether or not the claim is suitable for assessment but whether or not it is unsuitable.
34.	The objects of the Motor Accident Injuries Act 2017 are set out in section 1.3 and relevantly:
“(2)(g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes
(5)  In the exercise of a discretion conferred by a provision of this Act or the regulations, the person exercising the discretion must do so in the way that would best promote the objects of this Act or of the provision concerned.”
35.	The basis of the application is that this claim involves:
a.	complex legal issues; 
b.	complex factual issues; and
c.	the availability of witnesses. 
36.	The primary ground for unsuitability is the non-availability of witnesses. 
SUMMARY
37.	My recommendation is that the claim is unsuitable for assessment given the number of witnesses, the complexity of the factual matrix and the complex legal issues.
38.	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 18 June 2024, approved Member Terence Stern’s recommendation that the claim is not suitable for assessment.