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AAK v CIC Allianz Insurance Ltd [2018] NSWDRS CA 011

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsFault of injured person – pedestrian – statutory benefits – agony of the moment – contribution of the Claimant to the injuries – contributory negligence - injuries not a minor injury - pedestrian knocked over by car- failure to stop – not wholly or mostly at fault - payment of treatment and care beyond 26 weeks - Motor vehicle accident – altercation with taxi driver
Legislation citedCivil Liability Act 2002 (NSW) section: 3B(2)(a), 5B, 5C, 5D
Interpretation Act 1987 (NSW) section: s33
Motor Accident Injuries Act 2017 (NSW) section: 1.3(4), 3.11, 3.28, 6.19(2), 7.1, 7.2(3), 7.9, 7.34, 7.41, 7.43
Motor Accident Injuries Regulation 2017, Schedule 1, Part 1(3)(1); Schedule 1, P{art 3(2)(e)
Motor Accident Guidelines, Version 3 July 2018; clause: 4.41.2; 7.438; 7.445
Cases citedAbdallah v Newton (1998) 28 MVR 364.
Allianz Australia Insurance Ltd v Anderson [2013] NSWSC 1186.
Axiak v Ingram [2012] NSWCA 311.
Cockburn v Jacobsen [2017] ACTSC 380.
Cusack v Stayt [2000] NSWCA 244.
Leishman v Thomas (1957) 75 WN (NSW) 173
Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 at [11].
Motor Accident Commission v Curzons [2012] SASCFC 22.
Nominal Defendant v Hawkins [2011] NSWCA 93.
Sangha v Baxter [2009] NSWCA 78.
Teubner v Humble [1963] HCA 11 at [8].
Widera v Reid [2002] ACTCA 3.
Text cited N/A
Parties AAK – Claimant
CIC Allianz Insurance Limited – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

View the certificate

Issued in accordance with cl 7.445 of the Motor Accident Guidelines

Determination of a matter declared under Schedule 2(3) of the Act to be a miscellaneous claims assessment matter

ClaimantAAK
InsurerCIC Allianz Insurance Limited
Date of Accident5 December 2017
DRS Reference10037845
Insurer Claim Number37C000042
DRS Decision MakerBelinda Cassidy
Date of Decision8 October 2018
Attendances for ClaimantMr Geoff O'Hare
Law Advice Compensation Lawyers 
Attendances for InsurerMs Kim Ebbeck
Moray & Agnew Lawyers

The findings of the assessment of this dispute are as follows:

1. For the purposes of section 3.28, the motor accident was not caused mostly by the fault of the injured person.

2. The Claimants costs to be paid by the Insurer are assessed at $1,760.00 inclusive of GST.

Belinda Cassidy
Claims Assessor
Dispute Resolution services

Introduction

1.   AAK was involved in an accident on in the evening of 5 December 2017 at Rushcutters Bay and sustained an injury primarily to his right shoulder and lower back.

2.   On or about 2 January 2018, he made a claim for statutory benefits under the Motor Accident Injuries Act 2017 against CIC / Allianz the third-party insurer of the vehicle AAK says caused his accident being a taxi driven by AF.

3.   AAK has been paid certain benefits for treatment and care but has not been paid any benefits for weekly income loss. AAK has recently been advised by the Insurer that it denies liability to pay for AAK’s treatment and care and it is this dispute that has come before me for assessment.

Background

Factual background

4.   The circumstances of the accident are succinctly set out in the police report [A4]:

On Neild Avenue in Rushcutters Bay, the pedestrian approached the driver’s window of the vehicle to speak further with the driver in relation to some issue that occurred on the roadway prior. As a result, the driver sprayed an unknown substance on the pedestrian and he accelerated off. As the driver accelerated off he knocked the pedestrian to the roadway and failed to stop.

5.   While the Insurer has taken issue with whether the Claimant was ‘knocked’ over, in terms of whether the vehicle impacted with the Claimant, the above circumstances are, in my view, a fair summary of what happened.

6.   I have been provided with:

a.   The Claimant’s application form with attachments;

b.   The Insurer’s reply form with attachments;

c.   The Insurer’s internal review decision which neither party attached to their forms;

d.   Video taken by a passer-by on his or her smartphone.

7.   The Insurer had attached to its reply form some documentation from its investigator’s report (statements from the Claimant, the Claimant’s son and from AF, the taxi driver as well as the police brief). Upon request, the Insurer provided me with the whole of the investigator’s report which contained a useful diagram drawn by AAK and colour photographs of the scene of the accident.

8.   I have received submissions from the Claimant, further submissions from the Insurer, email submissions from both parties as to jurisdiction and brief submissions as to costs.

Insurer’s original liability decision

9.   By letter dated 9 April 2018 [R4], Sarah Hoy, Customer Care Consultant at Allianz gave the Claimant a ‘Liability Notice’ advising him the Insurer would not pay him benefits for his treatment and care needs beyond the first 26 weeks after the accident.

10.   The letter says in part:

The Motor Accident Injuries Act 2017 (“The Act”) requires a number of considerations at this point in your claim:

1.   Whether you were mostly at fault in the motor vehicle accident. The Act states that you are mostly at fault if you are more than 61% to blame for the accident.

2.   The percentage of your contributory negligence. This means how much were your actions or omissions to blame for causing the accident.

3.   Whether the injuries you suffered because of the accident fall into a definition of what the legislation calls a “minor injury”.

Using all the information you provided as well as information provided by other parties involved in the accident and your recovery, the following has been determined in accordance with the Act:

●   You were at fault in the accident. This means that we deny that the person driving the vehicle we insure was at fault.

●   As a result, contributory negligence does not apply.

●   Your injury is not a “minor” injury

11.   With respect to the Insurer, there is a point missing before the first numbered point above (or a misstatement of the first point). One of the considerations required by the Act at the time of making a decision about liability benefits beyond the first 26 weeks is to decide whether the Claimant was wholly or mostly at fault, not just whether he was mostly at fault.

12.   On the second page of the letter under the heading ‘Liability/Fault’ the Insurer refers to smartphone footage of the accident which the insurer says shows the Claimant grabbing the taxi and falling to the ground. The Insurer says the cause of the injury is this grabbing of the vehicle, not the vehicle hitting the Claimant.

13.   The Insurer goes on to say that its insured is likely to have acted ‘in the agony of the moment’ and refers to two Supreme Court decisions. The Insurer then ‘denies [the] claim as you are mostly at fault/at fault in this accident’.

Internal review decision

14.   The Claimant sought an internal review of that decision a day or two late. The Insurer, has accepted the late application and Ms Medland, Internal Review and Disputes Manager at CIC/Allianz issued a certificate of determination dated 31 May 2018. This certificate upheld the original decision of Ms Hoy.

15.   The decision of CIC/Allianz is found on the first page in a box headed ‘outcome of internal review’ and says AAK is not entitled to any further statutory benefits because the Insurer is of the view the Insured driver was not at fault in the use or operation of the taxi and that AAK was at fault.

16.   On the last page under the heading ‘Conclusion’, Ms Medland restates the Insurer’s decision to deny benefits beyond the first 26 weeks saying that ‘the decision to deny fault on behalf of the driver and deem you wholly at fault is affirmed’.

17.   Between the box on the first page and the conclusion on the last page are the Insurer’s reasons. The paragraphs of these reasons are not numbered which makes referencing them a little difficult. In the third paragraph under the box, Ms Medland says the Insurer’s original decision was that AAK was ‘mostly at fault’. This is of course incorrect as the original decision made by Ms Hoy determined AAK was wholly at fault.

18.   Ms Medland refers to the Insurer’s investigator’s report and describes the film. Ms Medland then refers to the statements noting the Insured driver ‘feared for his life’ and takes issue with the reliability of the evidence given by the Claimant. Ms Medland says the footage shows both AAK and his son approaching the taxi creating a threatening situation. With respect, the video shows AAK’s son standing still in what appears to be the outside of the kerbside lane, closer to AAK’s vehicle. He only moves when the taxi takes off. Ms Medland also asserts ‘it is not entirely clear whether something was sprayed in your face’. Again, with respect, having viewed the film I can see and hear something being sprayed. Ms Medland confirms that in her view the vehicle did not hit AAK but that he grabbed the vehicle after it began to move and then fell to the ground.

19.   Ms Medland notes the taxi driver was charged with assault and having a knife but not with any driving offences and suggests the spraying would only be relevant to the allegation of assault and does not fall within the definition of motor accident. Ms Medland says that the injuries sustained by AAK when he grabbed the vehicle and fell to the ground were not caused by the fault of the driver in the use or operation of the vehicle. She says the ‘dominant or proximate cause of the injury is the fact that you decided to grab the vehicle’. Ms Medland also says that even if the events surrounding the incident fell within the definition of motor accident the injuries were caused wholly by AAK’s action in grabbing the vehicle. It appears that Ms Medland, without referring to it, has considered the decision of Nominal Defendant v Hawkins. That case was considering a previous version of the motor accidents legislation which requiring there to be fault on the part of the owner or driver in the use or operation of the motor vehicle and which caused an injury. The legislation the Insurer is required to consider in AAK’s matter is s 3.28 which refers to fault in connection with the motor accident (and is not focused on the injury flowing from that accident).

20.   Finally, Ms Medland says that in the circumstances where two adult males had approached the driver and ‘an altercation ensued’ any actions of the driver were reasonable and made in the ‘agony of the moment’.

21.   There is no mention, in the reasons part of this decision, of any allegation of contributory negligence or any suggestion that AAK was ‘mostly at fault’ other than the reference mentioned in paragraph 17 above.

The insurer’s submissions

22.   The Insurer’s submissions dated 19 July 2018 in reply to the Claimant’s application submit that the Claimant was either wholly at fault in causing the accident but raise, for the first time an alternative allegation that AAK may be mostly at fault on the basis his contributory negligence is greater than 61%.

23.   Ms Ebbeck, for the Insurer confirmed at the teleconference held in this matter and in further submissions dated 21 September 2018 that the Insurer alleges the Claimant was wholly at fault or in the alternative that he is mostly at fault in causing his accident.

Jurisdictional matters

Legislative background

24.   AAK has referred to the Dispute Resolution Service the dispute about whether he is entitled to statutory benefits beyond the first 26 weeks after his accident. CIC/Allianz, at the 26-week mark have cut off his benefits and refused to pay for further treatment and AAK wants his benefits reinstated.

25.   DRS has referred this dispute to me as DRS has categorised the dispute as a miscellaneous claim assessment matter, which is a reviewable decision under Schedule 2(3)(e) of the Motor Accident Injuries Act 2017, being a dispute about:

whether for the purposes of section 3.28 (Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries) … the motor accident was caused mostly by the fault of the injured person.

26.   Section 3.28 of the Act provides:

(1)   An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if:

(a)   the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or

(b)   the person's only injuries resulting from the motor accident were minor injuries.

(2)   A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.

27.   The Insurer has accepted that AAK sustained injuries that are not minor injuries. If there was a dispute about whether or not AAK had sustained minor injuries, the dispute in relation to s 3.28(1)(b) would be heard and determined by a medical assessor under Schedule 2(2)(e).

28.   The Claimant has raised two jurisdictional issues:

a.   The Claimant in his original submissions dated 21 September 2018 says that I have no jurisdiction to determine any issue of contributory negligence including whether the Claimant was mostly at fault for causing his accident because the Insurer did not raise it in the original decision or the internal review decision and it is the latter that is the foundation of the dispute currently before me.

b.   The Claimant also says in an email dated 3 October 2018 that I have no jurisdiction to determine whether the Claimant is wholly at fault because Schedule 2(3)(e) does not identify disputes about a person being wholly at fault as a miscellaneous claims assessment matter.

29.   I will deal with each of these issues in turn.

Can I consider any issue of contributory negligence?

Submissions

30.   The Claimant says in his original submissions [at 1 – 3] that in the first liability decision (made by Ms Hoy) the Insurer has alleged fault and clearly and specifically said that there is no contributory negligence. He also says that the second liability decision, the Certificate of Determination (issued by Ms Medland), wholly denies fault and that in neither decision does the insurer allege contributory negligence.

31.   The Claimant says [at 4] that what was referred to the Dispute Resolution Service was a Merit Review Application in relation to the Insurer’s decision that he was wholly at fault and that contributory negligence was not part of the Claimant’s application and that I have no jurisdiction to determine contributory negligence. The Claimant’s submissions are incorrect in that the dispute before me is not a Merit Review Application but a Miscellaneous Claims Assessment Matter.

32.   The Insurer asserts in submissions filed by email on 28 September 2018 that when the whole of the Insurer’s original decision is read it has identified a relevant issue as ‘whether you were mostly at fault’ and refers to the words under the heading of ‘liability/fault’ to suggest the Insurer’s letter is clearly cutting off the Claimant’s benefits because the Insurer is of the view the Claimant is wholly or mostly at fault.

33.   The Insurer says there is no practical difference in any event, in that the decision has the same effect that is AAK’s statutory benefits are terminated.

Consideration

34.   I agree with the Insurer’s submission that I have jurisdiction to consider whether AAK was contributorily negligent.

35.   Section 6.19(2) requires the Insurer within three months of the date a claim for statutory benefits is made to notify the Claimant whether the Insurer accepts liability to pay benefits beyond the first 26 weeks. I agree with the Insurer that one decision, and one decision only, needs to be made by the Insurer. In that regard, I am reminded of the words of Justice Rothman in Allianz Australia Insurance Ltd v Anderson [2013] NSWSC 1186 in relation to the Insurer’s requirement to issue a liability notice in the previous scheme, ‘there is no third choice’. The Insurer must either ‘accept’ liability to pay statutory benefits beyond 26 weeks or deny liability to pay statutory benefits beyond 26 weeks.

36.   The Insurer has done precisely what s 6.19(2) requires it to do and it is that decision that is the subject of the dispute before me.

37.   The Insurer also says s 3.28(1)(a) refers to ‘wholly or mostly at fault’ and not wholly at fault or mostly at fault and says there does not need to be separate determinations by the Insurer in respect of each.

38.   While I agree with the Insurer that only one decision about liability needs to be made by the Insurer, the Insurer’s decision issued under s 6.19(2) should, in order to avoid disputes and promote clarity, deal with all aspects of its liability to pay benefits beyond the first 26 weeks. In my view, an insurer’s decision under s 6.19(2) decision should include the following:

a.   A list of the injuries the insurer says was caused by the accident and whether any injury is not a minor injury; and

b.   Whether the Insurer is of the view the Claimant was wholly at fault; or

c.   Whether the Insurer is of the view the Claimant contributed to the cause of the accident (contributory negligence) and if so the amount of that contributory negligence noting that if the Claimant is receiving income support benefits those benefits are to be reduced by the Claimant’s contributory negligence.

d.   If the Insurer is of the view that the Claimant’s contributory negligence is to be assessed at more than 61%, then the Insurer’s liability notice should include a finding that the Claimant was mostly at fault for causing the accident.

39.   There is nothing in the Act that requires reasons to be given for the Insurer’s decision. The requirement to provide reasons is contained in the Motor Accident Guidelines version 3 (July 2018) at cl 4.41.2.

40.   The Claimant has observed that the Insurer’s reasons for denying liability to pay benefits beyond the first 26 weeks has varied over time. While it would be preferable for the Insurer to make the correct decision in the first instance, the Act provides for the Insurer to revisit and remake decisions by way of the internal review process.

41.   The internal review by an insurer is governed by s 7.9 and the following two sub-sections are particularly relevant:

(2) The claimant must provide the insurer with such information as the insurer may reasonably require and request for the purposes of an internal review.

(6) An internal review can consider information that was not provided before the decision being reviewed was made.

42.   It should also be observed that there are three potential outcomes of an internal review:

a.   the insurer may decide to reverse the original decision, admitting liability having previously denied it;

b.   the insurer may decide to affirm the original decision for the reasons set out in the original decision; or

c.   the insurer may decide to affirm the original decision giving different reasons for denying the ongoing payments.

43.   When one considers s 7.9 and the possible outcomes of an internal review it is clearly contemplated that the internal reviewer may come to a different conclusion to the original decision maker because the internal reviewer may have, for example, different material that they have requested or required, further submissions from the parties, additional evidence or a different understanding of the applicable law.

44.   The Act does not provide that all of the insurer’s decisions made in a claim (be it an original decision or an internal review decision) are binding on the parties. Some of the insurer’s decisions can be referred to the Dispute Resolution Service to be determined by a medical assessor, a merit reviewer or a claims assessor.

45.   When a miscellaneous claims assessment matter is before a claims assessor, that claims assessor is not restricted to considering the matters raised by the parties but can make enquiries and is not bound by the rules of evidence (cl 7.438). A claims assessor may request documentation and seek additional submissions from parties to the assessment or third parties (s 7.43). This therefore, in my view, allows me to determine the dispute and either make the same decision as the insurer for the same or different reasons or a different decision to that made by the insurer based on all the information that is put before me. The Assessor’s power cannot, in my view, be fettered by the parties or by restricting the claims assessor to only considering the matters raised by the them in the dispute before it was referred to DRS.

46.   While the Insurer’s solicitor has raised a fresh issue not raised by the Insurer before the dispute was referred to DRS, in my view it is not prevented from doing so and to ensure procedural fairness that is why I afforded the Claimant the opportunity of addressing that issue.

47.   In my view the characterisation of the matter before me is not an ‘appeal’ of an insurer’s decision but a hearing de novo of the dispute between the parties and therefore it is open to me to consider all of the issues raised by the Insurer in its decisions and in its submissions.

Does the Act permit me to decide whether AAK was wholly at fault?

48.   The Act provides at 7.9 that a claimant may seek an internal review of a miscellaneous claims assessment matter. Section 7.41 says a miscellaneous claims assessment matter must be referred for internal review before it is referred to the Dispute Resolution Service.

49.   Section 7.1 of the Act defines a miscellaneous claims assessment matter as one set out in Schedule 2 of the Act.

50.   Schedule 2 part 3 of the Act, in part 3 lists 14 disputes declared to be miscellaneous claims assessment matters for the purposes of part 7. Only one of these (paragraph (e)) refers to s 3.28 and the Insurer’s decision to cut off benefits beyond the first 26 week. It says:

whether for the purposes of section 3.28 … the motor accident was caused mostly by the fault of the injured person.

51.   The wording of this clause clearly gives jurisdiction to determine whether an accident is caused mostly by the fault of the injured person. But what is critical, and the point made by AAK is that there is no reference in paragraph (e) to wholly at fault.

52.   Section 3.11 of the Act provides an identical mechanism for cutting off income support benefits (minor injury, wholly at fault and mostly at fault) and s 3.11 is referred to in Schedule 2 part 3(d) as follows:

whether for the purposes of section 3.11 … the motor accident concerned was caused by the fault of another person.

53.   While the mechanism for terminating a person’s statutory benefits is the same, the dispute resolution provisions are widely divergent. Schedule 2 part 3(d) identifies a miscellaneous claims assessment matter as a dispute between the insurer and a claimant as to whether a motor accident concerned was caused by a person or another person. Presumably the ‘a person’ is a reference to the insured. Who is the ‘another person’ referred to, the claimant or some other person and what if the claimant is a pedestrian and an infant pedestrian in particular where there is non-tortious negligence (consider the case of Axiak v Ingram [2012] NSWCA 311)?

54.   The apparent inconsistent wording of miscellaneous claims assessment matters (d) and (e) in part 3 of Schedule 2 is in my view, problematic and, as is evidenced in the matter before me, likely to cause disputation. Legislative clarification would, in my view, be desirable.

Submissions

55.   The Claimant asserted in an email from his solicitors dated 3 October 2018 that it would appear there may be no jurisdiction for DRS to determine whether the claimant was wholly at fault and identified the difficulty with that by asking, what would be the avenue for resolution of the dispute if that was, in fact, the case? The Claimant’s solicitor suggested one option might be the exemption of the claim however, claims for statutory benefits cannot be exempted, exemption (under s 7.34) from assessment enabling the commencement of court proceedings is only available for claims for damages.

56.   The Insurer suggested if I was to read Schedule 2(3)(e) narrowly, that s 7.2(3) permitted the Executive Director of DRS to refer the dispute to be determined in any event.

Consideration

57.   A literal interpretation of Schedule 3(e) would appear to grant to DRS a jurisdiction to determine a dispute about whether the Claimant was mostly at fault but not whether he was wholly at fault. But s 33 of the Interpretation Act and s 1.3(4) of the Act require me, when interpreting a provision of an Act to adopt a construction that would promote the objects of the Act.

58.   I note two of the object of the Act are identified as

(a) to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents and to maximise their return to work or other activities,

(g) to encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes,

59.   It would not be promoting the objects of the Act to allow an insurer to refuse to pay for treatment an injured person needs to return to work or daily activities because of an incorrect liability decision and for a dispute about that refusal to have nowhere to be finally decided. Similarly, it would not promote the object of the Act to have disputes determined quickly, cost effectively and justly by not providing a mechanism for a significant dispute such as the termination of the benefits provided for in the statute.

60.   It is important to consider that in determining whether the Claimant is mostly at fault, I am considering whether the Claimant is contributorily negligent, the degree of that contributory negligence and if so whether his contributory negligence should be assessed at greater than 61%. Contributory negligence in terms of the cause of an accident requires someone other than the Claimant to be primarily negligent or at fault in the first place. If primary negligence is not conceded, it must be determined before contributory negligence can be considered.

61.   In my view, in order to determine whether the Claimant is ‘mostly’ at fault which is specifically provided for in the schedule, I must determine:

a.   Whether the insured driver’s acts or omissions caused the accident (that is whether the insured taxi driver was primarily negligent or at fault at all);

b.   Whether the Claimant’s acts or omissions contributed to the cause of the accident (whether there is any contributory negligence on the part of AAK); and

c.   If so the degree of that contribution. If I determine the degree of that contribution is greater than 61% then the Claimant is considered to be mostly at fault.

62.   While it is not beyond doubt, my preferred interpretation of Schedule 2(3)(d) is that it permits me to determine whether the Claimant is wholly at fault or mostly at fault.

Conclusion on jurisdiction

63.   I am therefore of the view that I have power or jurisdiction to determine:

a.   Whether AF, the taxi driver, was at fault in causing the accident or whether AAK was at fault in causing the accident;

b.   If I find AF was at fault in causing the accident, whether AAK contributed to the cause of the accident; and

c.   If I find AAK did contribute to the cause of the accident, the degree of his contributory negligence and in particular whether the degree of his contribution was greater than 61%.

REVIEW and findings of evidence

Forms and statements

64.   In his application form for statutory benefits signed and dated 2 January 2018, the Claimant says:

The Taxi driver was road raging around me, we both pulled into Neild Ave Rushcutters Bay where I exited my vehicle to see what the issue was. The driver of taxi (4344) then proceeded to shout and become violent and then maced me in the face before running me down and pulling my body around causing me to fall to the ground – from pulling my body around it tore my shoulder and injured my back (video evidence available).

65.   In his application to DRS, AAK’s solicitor says:

The Claimant alleges that the driver of the vehicle insured by Allianz is at fault in the accident. The claimant alleges and submits that is supported by the video footage of the subject accident, at approximately 8.00pm on 5 December 2017, that the driver was at fault sprayed the claimant with mace / capsicum spray in the face and eyes at Rushcutters Bay. As a result of this action of the driver, the claimant has suffered immense pain in the face and eyes, was unable to see and was required to hold onto the taxi for support as he could not see. The claimant submits the taxi driver has then driven off whilst the claimant is holding onto the taxi and the claimant has sustained injury as a result of the driver’s negligence.

66.   AF provided a statement to the Insurer’s investigators. He says:

a.   He was in New Beach Road at the intersection of New South Head Road heading towards Kings Cross, looking for a fare;

b.   He turned into lane one (I take this to mean the lane nearest the kerb);

c.   The Claimant’s vehicle (once in New South Head Road) was in lane three but it drove quickly past him then changed into lane one;

d.   He sounded his horn, having been cut off by AAK, but AAK slowed and braked for no reason;

e.   As there was no one in front of AAK, and a red light, he drove his taxi into lane two then back to lane one and stopped in front of AAK at the intersection of Neild Avenue and New South Head Road;

f.   AAK approached his vehicle in a threatening matter;

g.   The light turned green;

h.   He turned into Neild Avenue ‘to avoid a further confrontation’;

i.   40 seconds later AAK turned left and stopped behind him;

j.   Two men got out of AAK’s car and walked towards the taxi;

k.   AAK approached his window and threatened to kill him;

l.   He drove forward and to his right to get away;

m.   His vehicle did not hit the Claimant and ‘at no time did I squirt the man in the face with any substance’;

67.   AAK drew also gave a statement to the Insurer’s investigators and provided a diagram which, when read together, suggest both AAK and the taxi were stationary at the New Beach Road intersection, the taxi driver in the first or left-hand lane and AAK in the second or right-hand lane and says:

a.   He was travelling along New South Head Road in number [two] lane;

b.   The taxi was in the first lane;

c.   AAK accelerated and then changed lanes into lane one;

d.   The taxi driver blew the horn and flashed his lights and then overtook the Claimant moving into lane two then back to lane one and braked harshly;

e.   AAK braked harshly in order to avoid a collision;

f.   AAK got out of his car at the Neild Avenue intersection and spoke with the driver;

g.   AAK followed the driver around the corner into Neild Avenue and parked;

h.   He got out of his car and approached the taxi driver still seated in his vehicle;

i.   A short conversation occurred;

j.   The taxi driver raised his right hand and sprayed something in AAK’s face;

k.   AAK felt burning and could not see, ‘I was holding my face’;

l.   The taxi driver drove forward and harshly to the right and the driver’s door hit him and spun him around;

m.   AAK then fell to the ground landing on his left shoulder;

n.   ‘The cause of the accident was the taxi impacting with my body’.

68.   AAK’s son (name omitted) has given a statement to the investigator. He says:

a.   They drove from their home in Bellevue Hill to New South Head Road;

b.   When adjacent to Rushcutters Bay park they were in the second lane and the taxi was in the first lane;

c.   His father changed lanes, then he heard the sound of a horn and saw the flashing headlights;

d.   The taxi changed into the second lane then back into the first lane in front of their car and braked;

e.   The cars were stopped at or near the intersection with Neild Avenue, his father got out then got back in and both vehicles moved around the corner;

f.   Both he and his father got out of the car and he stayed next to the ‘front passenger door’;

g.   His father approached the driver and he heard some of the conversation;

h.   He saw spray, his father grabbed his face and the taxi driver pulled out quickly and ‘I saw the front driver’s door to the rear door impact with my father and he fell backwards to the roadway and landed on his right side’.

69.   The police fact sheet is attached to the investigator’s report contains and details of a conversation between AF and the police when he was first apprehended. He said:

  • He did not remember anything when asked to explain what had happened at Neild Avenue;
  • When shown the video he denied the vehicle depicted in it was his;
  • When shown the video with him in it, he denied it was him;
  • When police searched the vehicle, they found no liquid substance although they observed a strong smell from inside the vehicle.

70.   AAK gave a second statement to his solicitor dated 21 September 2018. AAK says [at 4] that he cannot confirm whether he had seen the video footage at the time he gave his initial statement. He said [at 5] that he has reviewed the video. He says everything happened very quickly and he thought he had reached up to his face but can see that the video does not clearly show this but does show him reaching towards the driver. He says his memory is ‘a little hazy’ but he thinks he was reaching toward the driver to stop the spray and get the spray. He also says he did not grab the taxi on the pillar near the driver’s window but that as the taxi moved forward and to the right his arm and hand were pushed back. He says as it moved the taxi collided with his left-hand side causing him to injure his shoulder and fall to the ground.

Reliability of the Evidence

71.   While the rules of evidence do not bind me in my decision making, they cannot be ignored and I must therefore exercise caution when interpreting the video footage of the scene particularly in the absence of any expert evidence dealing with that footage (see for example Cockburn v Jacobsen [2017] ACTSC 380) but the footage is useful in determining whose evidence I should prefer.

72.   AAK son’s statement is inaccurate in that he suggests [at 16] that he got out of his father’s car and remained on the passenger side of the vehicle. The video shows him clearly standing at the driver’s side of the vehicle. He also says [at 17] that he saw his father holding his face. In my view at no stage does the video show his father holding his face although he may certainly have done so after the camera had stopped (there is only 10 seconds of video in total). The remainder of his evidence is consistent with his father’s evidence and the evidence as to what happened in New South Head Road.

73.   AF’s statement is concerning. He denies [at 22] spraying any liquid at AAK at all when it is clear from the video that he did and I note the Insurer’s solicitor has conceded as much in the submissions and at the preliminary conference.

74.   AF’s statement is also difficult to accept owing to his version of the placement of the vehicles in New South Head Road in that he has AAK in lane three crossing to lane one and that AAK’s vehicle turned into Neild Avenue 40 seconds after he did (this would have meant AAK was stationary at green traffic lights for close to 40 seconds). He mentions tooting his horn but no flashing his lights (both AAK and AAK’s son observed this) AF’s credibility is also compromised because of what he told the police (or did not tell the police) when confronted after the events.

75.   I am of the view that AF’s evidence is generally unreliable and I do not accept his evidence as to what was said by either driver at the Neild Avenue intersection or once parked in Neild Avenue.

76.   AAK’s evidence is generally consistent with his son’s evidence. AAK’s statement is wrong [at 20] when he says he held his face and could not see when the video shows he did not hold his face either before the taxi moved off or in the second or two after being sprayed. His second statement explains this by asserting everything happened quickly but acknowledges his memory is a ‘little hazy’. In the light of my finding about the general unreliability of AF’s evidence, I accept AAK’s evidence in particular his evidence of events leading up to the incident and his recounting of the conversations that took place.

77.   There are minor inaccuracies in AAK’s statement and AAK son’s statement when compared with the video however the video footage is 10 seconds long and only four seconds is occupied with the spraying and the falling. I agree with AAK’s observations that things happened very quickly.

Factual findings

78.   On the basis of the statements, AAK’s diagram and the video footage I make the following factual findings:

  • On 5 December 2017, at about 7.30pm there were two vehicles driving along New South Head Road (both had turned right from New Beach Road).
  • AF in his taxi was in the first (or far left-hand) lane closest to the kerb and AAK in his car was in the second lane;
  • There was an interaction between the two drivers between the New Beach Road / New South Head Road intersection and the New South Head Road / Neild Avenue at Rushcutters Bay. AAK moved from lane two into lane one (and in front of the taxi) and then AF moved from lane one (and behind AAK) to lane two and then back to lane one (and in front of AAK);
  • After this interaction, the two vehicles turned left into Neild Avenue and parked;
  • Neild Avenue is at that point a four lane, one-way street;
  • AF parked with his front wheels turned to the right;
  • The Claimant got out of his vehicle as did his son;
  • The Claimant’s son remained in the vicinity of his father’s car;
  • The Claimant stood at the driver’s side window of the taxi, which was open, and had a conversation with the taxi driver;
  • The Claimant was standing on or very close to the line dividing the first lane of Neild Avenue from the second lane;
  • Voices were not at that point raised (I can hear no shouting although I can hear shouting after the Claimant fell);
  • The taxi driver sprays something towards the Claimant’s face;
  • The spray affects the Claimant’s vision;
  • At the time of the spraying the taxi is rolling forwards or moving very slowly;
  • The Claimant reaches towards the taxi with his left arm on the top of the “b” pillar (above the driver’s side passenger window) and his right arm inside the taxi;
  • The taxi moves off, turning to the right to move into the second lane) while the Claimant’s right arm is inside the taxi and after a short distance, the Claimant falls to the ground.

Who caused the accident?

Background

79.   No charges were laid against AAK in relation to the incident. AF, on the other hand, was charged by the police. At the time the application was lodged, there was no result in relation to the police proceedings against AF however on the morning of the teleconference I was advised by AAK’s solicitor that AF had been found guilty of assault, the charge in relation to possessing a knife and driving offences. The Insurer has confirmed that its insured was convicted of two driving offences one of which may have been negligent driving. The Insurer has been advised that AF has lodged an appeal.

80.   I did not consider holding up the Claimant’s statutory benefits decision until the police proceedings had concluded or pending the production of police documents although I asked the parties to advise me if they wanted to defer my assessment. I had no further application from either party.

Parties’ submissions

81.   The Claimant’s submissions state:

a.   The Claimant reached into the taxi as a ‘subconscious and automated reaction’ to the assault;

b.   The cause of the accident was the taxi driver driving forward in an aggressive manner when he knew the Claimant was standing close by and was likely to be impacted;

c.   The spraying of the substance occurred when the vehicle was moving and is therefore part of the driving of the vehicle;

d.   If AF had really feared for his safety he would have wound his window up and kept going;

e.   The taxi driver has been charged with driving offences as well as assault and carrying a knife;

f.   The accident was clearly caused by the conduct (fault) of the taxi driver in his use or operation of the vehicle (particularly driving the vehicle sharply to the right and colliding with the claimant standing next to his vehicle)

82.   The Insurer’s submissions attached to the reply form assert:

a.   AF’s evidence is that he feared for his life following a verbal threat [at 11].

b.   AAK’s evidence, the evidence of AAK’s son and the police reported version of events are incorrect [at 16];

c.   The Claimant attempted to grab hold of the insured driver, holding onto the taxi, after the insured had started driving away. Had the Claimant not attempted to grab the driver or the vehicle there would have been no contact between the vehicle and AAK [18];

d.   The Claimant’s deliberate attempt to make contact with the insured was not an obvious response and that an obvious response would have been for AAK to step away from the vehicle [19];

e.   The cause of the accident was:

i.   AAK’s deliberate decision to approach the driver in the presence of his son and that he knew or ought to have known that would have intimidated the taxi driver;

ii.   AAK’s failure to remain out of the way of the taxi as the taxi driver was attempting to remove himself from a fearful situation;

iii.   AAK’s attempt to grab the insured river and

iv.   AAK continuing to hold on to the taxi as it drove off.

f.   A reasonable person would not have approached the driver in the first place, would have moved away from the vehicle as it departed and would not have attempted to grab the driver.

Legislative provisions

1.83.   I am required to determine whether AAK was wholly or mostly at fault. As I have said earlier in order to determine this I have to determine first whether AF was at fault at all. ‘Fault’ is defined in s 1.4 as ‘negligence or any other tort’.

2.84. The Insurer has, in its further submissions dated 21 September 2018, conceded there was a tort of assault but only in relation to the spraying of the substance at AAK. The Insurer’s submissions no longer dispute that a ‘motor accident’ within the meaning of the Act occurred but assert that the spraying of the substance alone does not constitute a motor accident. The Insurer asserts that in the driving of the taxi, AF was not negligent.

3.85. The tort of negligence requires three things to be proved:

a.a.   A duty of care;

b.b.   A breach of that duty; and

c.c.   Injury, loss or damage caused by the breach.

4.86.   Under s 3B(2)(a) of the Civil Liability Act 2002 (NSW) the ‘Negligence’ provisions of Divisions 1-4 and 8 and Part 1A apply to ‘motor accidents’.

5.87.   It is not disputed that AF owed a duty of care to AAK as a pedestrian to exercise reasonable care for AAK’s safety when driving his taxi. The exercise of reasonable care requires reasonable attention to all that is happening on or near the roadway: Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 at [11].

6.88.   What is disputed is whether AF breached his duty (and was therefore at fault) and whether any injury was caused by that breach. In determining those matters, I must apply the sections in those divisions including ss 5B, 5C and 5D.

Relevant case law cited by the parties

7.89.   The Insurer lodged further submissions dated 21 September 2018. These submissions deal with the charges laid against AF, maintains the Insurer’s denial of fault and provides a list of authorities and, in the alternative, provides one authority in support of its claim that AAK was mostly at fault.

8.90.   The insurer refers me in its further submissions to four cases which it says supports its argument that there is no negligence on the part of AF. Before turning to the cases I should restate the warning issued by Justice Windeyer in the case of Teubner v Humble [1963] HCA 11 at [8].
But decisions on the facts of one case do not really aid the determination of another case. Observations made by judges in the course of deciding issues of fact ought not to be treated as laying down rules of law. Reports should not be ransacked and sentences apt to the facts of one case extracted from their context and treated as propositions of universal application that a pedestrian is always entitled, or that a motorist is always obliged, to act in some particular way. That would lead to the substitution of a number of rigid and particular criteria for the essentially flexible and general concept of negligence.

9.91.   The case of Leishman v Thomas (1957) 75 WN (NSW) 173 is authority for the availability of the defence of ‘agony of the moment’ which is available to a defendant, such as AF, if they acted in such a way as a reasonably prudent driver would have acted in all the circumstances of the case.

10.92.   In Abdallah v Newton (1998) 28 MVR 364 the Claimant was a passenger in a car driven by her nephew. That car was hit from behind by the defendant when the defendant was fleeing from an attack by the nephew. There had been an earlier ‘road rage’ incident when the nephew had cut off the defendant on the M7 (there is a suggestion of a minor impact at that stage) then pulled up in front of him on the exit ramp. The nephew had kicked and hit the car with karate sticks. The trial judge found the defendant’s negligence had caused the collision. On appeal, the Court agreed with the trial judge that the actions of the nephew terrified the defendant into taking off and making an error of judgment which did not constitute negligence.

93.   Also cited is the case of Cusack v Stayt [2000] NSWCA 244. This case commenced with an assault in the car park of a club between a couple, a large tall man and his smaller girlfriend. Both were heavily intoxicated. The woman got into the car, locked herself in and the man proceeded to hit and kick the car. A minor impact occurred and then the Claimant taunted his girlfriend, deliberately standing in her way when she deliberately drives at him. It was held there was no duty of care owed to the injured man. On appeal, Justice Heydon [at 28] found, ‘In my opinion the relationship of the parties to which the plaintiff had substantially contributed was not one in which the defendant owed the plaintiff any duty of care’. The circumstances of this case are far removed from AAK’s accident. Both Claimant and Defendant were intoxicated, the behaviour of the Claimant was more extreme and he acted in such a way as to ‘invite’ the collision that ended up injuring me. I am not assisted by this case.

94.   The case of Widera v Reid [2002] ACTCA 3 also commenced with a ‘domestic’ dispute. In that case, the injured person was in a house with a female friend. Another man (the defendant) came to the house. After words were exchanged at the front door, the defendant got into his car, the Claimant followed him out onto the street and was injured. The woman, who was known to both men did not give evidence and no evidence was given by any witnesses. The injured person denied that he knew the defendant driver. The defendant driver said he did as he was in a relationship with the injured person’s girlfriend and after the accident she went home with the defendant.

95.   The Master, citing Abdallah and Cusack who heard the case, preferred the version of events given by the defendant and found no breach of duty of care as the injured person had moved onto the roadway with the intention of kicking the car when he was hit by the defendant fleeing the scene in genuine fear for his own safety.

Did AF breach his duty of care?

96.   In applying s 5B of the CLA to the facts of this case:

a.   The risk of his taxi striking AAK and causing injury as AF accelerated was a clearly foreseeable risk, being a risk of which he ought to have known;

b.   The risk was clearly not insignificant. AAK was standing next to the taxi, close to the lane dividing line and AF had stopped with his front wheels turned to the right and the circumstances therefore required AF to take care when departing the scene. AAK had reacted to the spray by reaching into the vehicle;

c.   In all the circumstances of the facts of this case, a reasonable person in AF's position would have taken the precautions of moving off slowly particularly when he became aware of AAK reaching into the vehicle;

d.   There was a high probability that injury to the Claimant would occur if care was not taken by AF after spraying the substance and before moving off particularly as AF had left his window open;

e.   The harm which could have occurred in driving off suddenly and accelerating while part of AAK’s body was inside the taxi was very serious and included even death had he hit his head more heavily when he fell or if he had been carried further and to the right before dropping to the roadway (in that he could have been run-over by another vehicle on the roadway);

f.   The burden of taking precautions to avoid the risk of harming AAK would have included winding up his window, not spraying the substance and by leaving the scene more slowly. These precautions were not significant;

g.   The social utility of AF driving his taxi in the way he did was not such that the risk of harm created in the manner he was driving his car should be excused.

97.   I have considered the principles set out in s 5C of the CLA which do not alter my views expressed above.

98.   Taking into account all of these matters, in my view AF failed to take reasonable care for the safety of AAK as a pedestrian standing near his vehicle in circumstances where AF had sprayed a substance into AAK’s face and where it was reasonably foreseeable that he would react in some way.

Did AF act in the ‘agony of the moment’?

99.   The cases of Abdallah and Widera bring into question whether AF genuinely feared for his safety and was, in fleeing, acting reasonably in ‘the agony of the moment’. I do not accept that AF genuinely feared for his safety or that a reasonable person in AF’s position would fear for his safety because:

a.   AF has said in his statement that he turned into Neild Avenue from New South Head Road to avoid further confrontation and pulled over to compose himself. He then said he saw the Claimant behind him and was scared. If AF had truly feared for his safety why did he not drive off in particular once AAK was out of his vehicle? Why did AF not wind up his window?

b.   After the next conversation AF again says he feared for his life and thought he was going to be assaulted. He says AAK threatened to kill him. Again, why did AF not wind up his window and call for assistance?

c.   I have watched and listened to the video, AAK is seen shrugging his left shoulder and arm. He is not wildly gesturing. While I can hear shouting after AAK falls, I can hear no shouting before the spray.

d.   The Insurer has not produced any information as to how its insured taxi complies with the NSW Government’s specifications for taxi security systems and has not produced any information to suggest AF contacted the taxi base to report his fears by way of a duress alarm or radio/telephone contact. There is no footage produced by the Insurer from any CCTV camera installed in the taxi.

e.   AF stopped in Neild Avenue which is a fairly busy road, close to a school sports ground, a number of unit blocks and business premises. The video shows one person on the sports ground side footpath jogging towards New South Head Road, a station wagon passes at the time of the incident and of course there is the person taking the video. At 7.30pm the video shows there is good lighting and some daylight. While it is not broad daylight, the accident did not occur in the dark, in a quiet location with no one around.

100.   I also do not accept that ‘the agony of the moment’ defence is available to AF because it was his deliberate action of spraying a substance into AAK’s face that has provoked the situation. When the video is slowed down, it can be seen that as AF is spraying the substance, his vehicle has started to move and it is only after he stops spraying that he moves off quickly. In my view, all of AF’s actions from the spraying to taking off are deliberate actions and are hardly errors of judgment which would justify being considered decisions made ‘in the agony of the moment’.

Conclusions on causation

101.   AAK fell to the ground because his left arm was on the taxi and his right arm was inside the taxi when the taxi drove off. AAK’s arm was inside the taxi because he says he was trying to stop the driver spraying something at him or he was trying to retrieve the substance that had been sprayed at him. I have accepted his evidence. There was a history of some form of ‘road rage’ shortly before this incident which both parties agree involved AF pulling in front of AAK and stopping.

102.   There are, in respect of this accident, multiple causes. In considering these multiple causes I am assisted by the decision of Nominal Defendant v Hawkins [2011] NSWCA 93 In that case a projectile was thrown by a passenger in a car at Mr Hawkins, when the driver of that car so drove his vehicle to facilitate the throwing of the projectile. The Court was confronted with two causes of the accident, the throwing of the projectile and the driving of the vehicle and determined. Justice Hodgson [at 43 and 43] considered the driving was contemporaneous, part of, and incidental to the throwing. Sackville JA considered that ‘the actions of the driver of the vehicle and the actions of the passenger were concurrent and interdependent causes of Mr Hawkins’ injury.

103.   What is clear to me is that the spraying and the driving off are concurrent and interdependent causes of this accident. If AF had not sprayed the substance into AAK’s face this accident would not have occurred and if AF had not driven off in the manner depicted in the film, this accident would not have occurred. The two things happened within four seconds of each other and in my view AF’s driving is contemporaneous, part of, and incidental to the spraying.

104.   In view then, AF’s actions in spraying the substance into AAK’s face and immediately accelerating and turning towards the right without checking where AAK was caused this accident. AAK was therefore not wholly at fault for causing this accident.

Did AAK contribute to the cause of accident?

105.   The Insurer says in its original submissions that AAK either caused or contributed to the accident by driving into Neild Avenue and questioning AF about earlier events, failed to get out of the way of AF as he drove off, attempted to grab the driver of the vehicle as it drove off and continued to hold on as the vehicle drove off.

106.   I do not consider the verbal interactions between AF and AAK are matters going to contributory negligence. Where he was standing or failing to get out of the way, grabbing the driver or vehicle and continuing to hold on are in my view matters that could constitute contributory negligence on the part of AAK.

107.   In deciding whether AAK was guilty of contributory negligence I must have regard to the standard of care set out in s 5R of the Civil Liability Act.

(a)   the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b)   the matter is to be determined on the basis of what that person knew or ought to have known at the time.

108.   AAK said the events happened very quickly and in his second statement says he reached in to try to stop the spray or retrieve the spray. He said this was instinctive and a sub-conscious move. Would a reasonable person in the position of AAK attempt to stop the spray or retrieve it? Would a reasonable person in the position of AAK having been sprayed with a substance move away from the vehicle? It must be remembered that AAK was standing next to the taxi and close to or on the dividing line between two lanes on a busy road. As the spraying occurred, the video shows a station wagon passing between the person photographing the scene and AAK and the taxi. Had AAK stepped back, he could have been hit by another car travelling along Neild Avenue. Would a reasonable person in the position of AAK anticipate that AF was going to spray and stay or spray and go?

109.   In my view yes, a reasonable person having had something sprayed into his face, would have attempted to stop the spraying and therefore reach towards what was being sprayed in an effort to grab it.

110.  It must be remembered that these events took place over a period of four seconds, there is precious little time for AAK to think rationally and carefully about what was being done and what he should do.

111.   AAK’s reaction of reaching into the vehicle is, in my view, an error judgment on his part, an agony of the moment type decision. He may not have appreciated the taxi was moving because at the time he was sprayed it appears the taxi was rolling forwards very slowly or he may not have been able to see the taxi moving after he was sprayed because his vision was impaired.

112.   In my view a reasonable person in the position of AAK, would not expect to be sprayed in the face and would have acted as AAK acted by trying to stop or retrieve the spray.

113.   I am however of the opinion that AAK placed himself in a position of danger by standing on the roadway close to the taxi and therefore failed to take precautions to avoid a foreseeable risk of harm in circumstances where AF’s front wheels were turned to the right indicating that if AF was going to ‘take off’, the taxi could have come into contact with him.

114.   I asked the parties to provide me with citations for any cases factually similar to AAK’s accident which might guide me in any assessment of contributory negligence.

115.   The Claimant provided me with no references. The Insurer has drawn my attention to the case of Sangha v Baxter [2009] NSWCA 78. This was a case involving a passenger in a taxi who was intoxicated and altercations took place in the taxi before the passenger was let out at his destination. The passenger had, after getting out of the taxi, reached into it and as he did so the taxi drove off. The first hearing in the District Court, before Judge Garling, resulted in a verdict for the Claimant with a finding of 25% contributory negligence. After that decision was overturned, a fresh trial occurred before Judge O’Loughlin. He too found a verdict for the Claimant with a finding of 25% contributory negligence. The Court of Appeal set aside that finding on the basis of a failure to address an issue of credibility and no further details as to any final finding of contributory negligence are available.

116.   I drew the parties’ attention to the case of Motor Accident Commission v Curzons [2012] SASCFC 22. The injured person in this case was intoxicated (evidence suggested between 0.208 and 0.222) and his injury was sustained at about 5.00am. There were two groups of friends that had been drinking at some stage they were together. An argument broke out and two members of the group were removed from where they had been drinking. Sometime later after closing time the two groups met up again in the car park and left in separate vehicles. At one stage the vehicles stopped at traffic lights and an iron bar from one vehicle was used to hit one of the occupants of the other vehicle. A series of incidents occurred after this between the vehicles and their occupants. The Claimant was a passenger in one of the vehicles and got out of the vehicle to retrieve the iron bar and was hit by the other vehicle as he was attempting to get back into the first vehicle.

117.   Mr Curzons was found by the trial judge to be 25% contributorily negligent. This finding was increased by the Court of Appel to 50% on the basis that this ‘fairly reflects their respective culpabilities. The plaintiff was not only intoxicated but he was creating a situation of danger. He was or ought to have been aware of these matters’.

118.   When I compare the relative culpabilities of AAK and AF, I am of the opinion that it was AF who was mostly at fault (in particular because of his spraying a substance into AAK’s face) in causing this accident. When I consider the two cases cited above and compare the behaviour of the plaintiffs in those cases to AAK’s behaviour my view of AAK’s contributory negligence is in the order of 25%.

119.   It follows therefore from my finding that AAK is not wholly or mostly at fault and therefore the Insurer, having conceded the Claimant’s injuries are not minor, has a liability to pay for AAK’s treatment and care beyond the first 26 weeks after the accident.

Legal costs

120.   The Motor Accident Injuries Regulation 2017 provides at Schedule 1, Part 1(3)(1) for the maximum sum of $1,600 for both the Claimant and the Insurer’s legal costs for an individual regulated miscellaneous claims assessment matter. Schedule 1, Part 3(2(e) lists the dispute before me as a regulated miscellaneous claims assessment matter.

121.   Section 7.42 provides that in assessing such a dispute, subdivision 2 applies. Section 7.37 is in subdivision 2 and provides that I have power to assess a Claimant’s costs (when assessing a claim for damages). I am proceeding on the basis that this section also gives me jurisdiction to assess the Claimant’s costs (but not the Insurer’s costs) in a miscellaneous claims assessment matter.

122.   The Claimant asks me to award the maximum and the Insurer agrees.

123.   The issues in dispute between the parties are complex. The amount of work done by both parties is significant and I can imagine the professional costs of both parties would exceed the amount allowed in the regulation therefore I propose allowing the maximum and award assess the Claimant’s costs at $1,600 to which GST is added (under cl 35 of the Regulation) making the total awarded for costs, $1,760 inclusive of GST.

Belinda Cassidy
Claims Assessor
Dispute Resolution Services