An introduction to the new Personal Injury Commission

The Personal Injury Commission Act 2020 (NSW) (‘the Act’) was assented to on 11 August 2020 and is scheduled to commence operation on 1 March 2021, ushering in a new-look merged commission consisting of two specialist divisions – one dealing with workers compensation and the other with motor accidents, with an independent judicial head.

History and judicial independence

The Workers Compensation Commission (‘WCC’) has dispensed justice to injured workers, their employers and insurers in this state since 1926. In those 94 years, no matter what was happening with the insurance scheme, the Commission as an independent statutory tribunal or court has always approached its task independently. 

Likewise, the Dispute Resolution Service (‘DRS’) has a fine history of dealing with a large volume of cases advanced by citizens who have been injured in motor vehicle accidents. At the time of its inception, there was a deliberate policy choice taken to remove the classes of cases dealt with by the DRS out of the mainstream court system and have them dealt with in a way which was very close to tribunal practice. This history and experience will be of great benefit to the new Commission. 

It is my intention that the Personal Injury Commission (‘Commission’) be conducted along the same fearless and independent lines as its predecessor organisations. 

The Commission is to be accessible, professional and responsive to the needs of users, have open and transparent processes and encourage early dispute resolution. As in all tribunals, it has to deal with the real issues in proceedings justly, quickly, cost effectively and with as little formality as possible.

Separate specialist divisions

The Act specifies that there will be two divisions, Workers Compensation and Motor Accidents. There will be specialised decision makers in both divisions.

In terms of workers compensation, all of the existing WCC arbitrators will transition to the Personal Injury Commission. There will therefore be great continuity in terms of dispute resolution in that division and all of the knowledge and experience will transfer too. There will be no change to the processes in terms of the members being the first instance decision makers, with appeals then lying to the Presidential members.

In terms of the Motor Accidents Division, the DRS assessors asked me to conduct a recruitment for both full-time and sessional members ahead of the 1 March 2021 commencement date. They did this for a number of reasons, one of which relates to their wish to continue in practice if they are not successful in gaining appointment as a member. Whilst the transitional provisions would transition all of the DRS assessors, given that the principled decision has been made that they can no longer practise in the jurisdiction and simultaneously be decision makers, I agreed to conduct the recruitment well ahead of time. This is a rule which is already enforced at NCAT, has been enforced at the WCC for years, and is generally enforced in tribunals all around Australia. I think that it is a rule which is completely in conformity with the objects of the Act to promote public confidence in the Commission and its members.

I will also be publishing a code of conduct for members and all service providers in the new Commission, designed to enhance public confidence in the independence and impartiality of all decision makers, members, non-members and medical assessors. Actual or perceived conflicts of interest and other behavioural standards will be clearly spelt out.