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ADM v AAI Limited trading as GIO [2019] NSWDRS CA 090

Overview

Jurisdiction:  Miscellaneous Claims Assessment

Catchwords:  Wholly or mostly at fault – scooter – pedestrian – NSW Police GIPA documents – witness - legal costs
Legislation CitedMotor Accident Injuries Act 2017: Sections 3.11; 3.28 ; Schedule 2(3)(d)

Cases cited:  N/A
Text cited:  N/A
Parties:

  • ADM – Claimant
  • AAI Limited trading as GIO - Insurer

Disclaimer: This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous claims assessment certificate

View here

Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017 and clause 7.441 of the Motor Accident Guidelines.

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

Claimant

ADM

Insurer

AAI Limited t/as GIO

Date of Accident

23 June 2018

DRS Reference

10072904

Date of Internal Review

28 November 2018

DRS Claims Assessor

Sarah Warren

Date of Decision

3 April 2019

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


1.For the purposes of section 3.11 the motor accident was not caused wholly or mostly by the fault of ADM.
2.For the purposes of section 3.28 the motor accident was not caused wholly or mostly by the fault of ADM.
3.The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,829.30 inclusive of GST.

Sarah Warren

Claims Assessor

Dispute Resolution Services

Reasons

Issued in accordance with section 7.36(4) of the Motor Accident Injuries Act 2017.

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) of the Motor Accident Injuries Act 2017, about whether the Claimant was mostly at fault for the accident.

  1. There is a dispute between ADM and the Insurer about whether the Claimant is entitled to be paid statutory benefits beyond the first 26 weeks after the subject accident. The issue is whether the Claimant is wholly or mostly at fault in accordance with sections 3.11 and 3.28 of the Motor Accidents Injuries Act 2017 (“the Act”).
  2. The subject accident occurred on 23 June 2018. The Insured driver was travelling in a northern direction along Quarry Master Drive, Pyrmont. The Insured driver intended to turn right into Saunders Street. The Insured driver commenced his turn into Saunders Street and collided into the Claimant as he was crossing the road. The Claimant was injured as a result of the accident.
  3. The Claimant brought a claim for personal injury benefits on the basis that the Insured driver caused the accident.
  4. The Insurer issued a liability notice on 2 October 2018 stating that it was the Insurer’s view that the Claimant was wholly or mostly at fault for the accident. The Insurer determined that the Claimant crossed the street “when it was unsafe to do so and walked into the path of our Insured driver”. The Insurer assessed contributory negligence at 100%. There is no further details provided that outline the basis for that assessment.  The decision was based on the police report dated 5 September 2018. The Insurer did not possess any statements from the Claimant, insured driver, or the witness at the time of making the liability decision.
  5. The Claimant sought an internal review. On 28 November 2018 the Insurer issued a certificate of determination of the internal review and statement of reasons. The Insurer affirmed the decision of 2 October 2018. The Insurer remained of the view that the Claimant was 'wholly or mostly at fault’ for the accident. The decision was made prior to receiving the statement from the Claimant. The internal review determination fails to decide whether the Claimant was ‘wholly’ or ‘mostly at fault’ and no determination of contributory negligence was made.
  6. The Claimant made an application to the DRS for determination of the dispute as to whether the Claimant was wholly or mostly at fault for the accident.

Documents considered

7. I have considered the documents provided by the parties:

  1. Application from the Claimant dated 20 December 2018 including supporting documents annexed;
  2. Reply from the Insurer dated 5 February 2019 including supporting documents annexed;
  3. Claimant’s Supplementary Submissions dated 28 February 2019; and
  4. NSW Police GIPA documents.

Evidence

Claimant's police notebook statement

  1. The notebook entry appears at pages 90-92 of the paginated notebook pages.  The entry is signed by what appears to be the Claimant and dated 23 June 2018 at 8:20pm.  Approximately two hours after the accident occurred.
  2. The Police notebook entry records the following:

    “Q.     Where did you park your scooter?
    A.       On Saunders St near Quarry Master Drive.
    Q.     When you crossed the road did you look before you crossed?

    A.       Yes
    Q.       Did you cross the road in a straight line?

    A.       Yes
    Q.     Did you see the car that hit you before you crossed the road?

    A.       Yes, I saw it coming up the road.
    Q.        Do you believe it was safe to cross the road?  

    A.         Nothing was there it was blank.  
    Q.       Where did the vehicle hit you?

    A.       The bonnet hit my ankle. Hurting my right ankle.
    Q.       Did you fall to the ground?

    A.       Yes it made me fall to the ground …  
    Q.       How fast do you think the car was going?

    A.       40-50km
    Q.       Were you alert and aware of your surroundings when you crossed the road?

    A.       Yes I was looking, not on my phone
    Q.     Did you see the blinker on the vehicle indicating to turn right?

    A.       No”

Claimant’s statement

10. The Claimant provided a statement signed and dated 19 December 2018 with his Dispute Resolution Service Application Form. In that statement he provided as follows:

Paragraph 4 onwards:

On 23 June 2018, I was involved in a motor vehicle accident. The accident occurred at Saunders Street, Pyrmont approximately 5 to 10 metres east from the intersection of Quarry Master Drive. The location is a built-up residential area.  

The area is subject to high pedestrian traffic. There are multiple signs leading to the intersection, and at the intersection, warning drivers that pedestrians may be crossing the road. There is street lighting at the intersection and the lights were on at the time of the collision.  

It was about 6:30pm when I parked my scooter on the Northern side of Saunders St. I got off my scooter and walked a short distance to the intersection of Saunders St and Quarry Master Drive. I stopped at the intersection and looked left and right. They [sic] were no vehicles on the roadway whatsoever. As such, I commenced crossing Saunders Street in a Southerly direction. I was wearing a red jacket, and a fluorescent green helmet.  

I had almost completed my walk across Saunders St, which is the width of a two way street, when all of a sudden a vehicle travelling in a northerly direction along Quarry Master Drive turned right into Saunders St at considering speed and struck me.  

The vehicle struck the right side of my body and I impacted with the front right corner of the vehicle. The driver of the vehicle kept going forward after it hit me.

The impact caused me to fall forward a few metres and onto the footpath on the southern side of Saunders St. It all happened so fast.” At paragraph 11:

“I was in shock and couldn’t understand how this had happened as I had almost finished crossing the road.” At paragraph 12:

“The car that hit me was travelling at high speed and I couldn’t understand why he would hit me as I felt like the driver should have been able to see me when he was turning right.

  1. The Claimant reported being in shock after the accident occurred and feeling immense pain in his right leg as well as pain in his arms and head from striking the ground.
  2. The Claimant commented that Police spoke to him whilst he was at hospital but given that he was in shock, they indicated that they would go back to visit him after his operation had taken place to take a statement.  He noted that ‘to this day I’ve not had anything further from the police’.
  3. The Claimant indicated that at the time of the accident he was wearing a red jacket and a fluorescent green helmet.  At A7 of the Application there is a photo of a red jacket with Bridgestone written across the shoulder.  The jacket is mainly red with black segments.  There is not a photo of the helmet.

Insured driver’s police notebook entry

14. The Insured driver was questioned by the police at the scene of the accident and Constable Bass recorded in their police notebook the following exchange with the Insured driver in pages 96-99:

“Q.       Tell me what happened?
A.         ‘I was driving on Quarry Master Dr from the direction of the fish      markets. When I approached the Saunders St intersection there was  a car stopped in front of me.  I’ve indicated to turn into Saunders St.   There was a gentleman standing on the sidewalk before I indicated. I  started turning right.  As I’ve gone around the corner the male was now in front of my car. The male was walking across Quarry Master Dr.  A collision then happened.’
Q.        How fast were you going?

A.         Under 20km/h, definitely
Q.        Were your headlights on?

A.         Yes, 100% sure
Q.        Was anything obstructing your vision?

A.         NopeQ.        What was the traffic like?
A.        It was light. There were just one car in front of me.”

Insured’s statement dated 18 October 2018

15. The insured driver, YTC, provided a statement to an investigator, Paul Martinic, dated 18 October 2018, in which he stated as follows:

From paragraph 13 onwards:

Prior to the accident I had been travelling from the city and was on route to my home address at Dundas.

The weather was fine, and the road was dry. It was dark and I had my headlights on.  

I recall about 6:45pm I was travelling north along Quarry Master Drive Pyrmont which has one single lane. I was travelling at a speed of approximately 10km/h.  

The traffic at this time was backed up slightly, I had a car in front of me and we travelling slowly.  

As I approached the intersection of Saunders Street I intended to turn right into Saunders Street and activated my right indicator to do so.  

I noticed a male standing on my right side on the corner of Saunders Street. He was wearing a bicycle helmet and was holding a mobile phone and was staring at the screen.

I recall seeing the vehicle in front of me slowly come to a stop just passed [sic] the intersection of Saunders Street. I slowed down further to about walking speed and began to turn right into Saunders Street.  

As I was turning right into Saunders Street I was in the middle of the intersection between Quarry Master Road and Saunders Street. I heard a small bang to the right side of my vehicle. I didn’t know what the bang was.  

I stopped my vehicle immediately I looked to my right and saw nothing. I got out of my car and noticed the same male from before who was on his phone standing on the footpath, wearing the bike helmet. He was sitting upright next to my rear right passenger’s door. “

Witness statement – LS

16. The Claimant’s solicitors provided a copy of the NSW Police GIPA documents to me under cover of letter dated 28 February 2019. The police GIPA materials include a statement from LS, a witness to the accident. The statement records the following:

From paragraph 3 onwards:

At around 6:25pm I was standing on the northern side of my driveway to my apartment building at 120 Saunders Street Pyrmont with my partner YN. At this time, a car was driving north on Quarry Master Drive, approaching where we was standing. We waited for it to pass. As the car passed, we saw another car approaching, it was a small black hatchback.

As the black hatchback approached the intersection it made a right-hand turn onto Saunders Street. When the car was about 3m past the lines of the intersection, it collided with a male who was crossing the road. I believe the male started crossing the road about 6m east on Saunders street [sic]. I think he was trying to cross to the western side of Quarry Master Drive.  

The driver of the black car stopped and help [sic] the male he hit get off the road and rest on the pole at the intersection…

It was night time when the incident occurred. The street lights were but there was sufficient light. The road was dry.  

I am unsure of the victim was distracted by anything when he was crossing the road.  

As I was on the near side of the black hatchback, I can’t tell of he had his blinker on to turn right. I didn’t take notice of the car prior to the incident occurring. I’m not sure if the cars headlights were on. When the black hatchback was driving up Quarry Master Drive, he was going slow. As he made the turn I think he was doing around 20km/h.’

Other documents

  1. In the Application for Personal Injury Benefits signed by the Claimant and dated 26 June 2018, he provided the following description of the accident:

    ‘I was crossing the road the car comes from the right side of me to straight but without indicator it takes a right turn very fastly [sic] and hit me and I fall down.’

  2. In the police report the crash summary details were recorded as:

    ‘The Subaru barring an SW registration XXX was travelling north on Quarry Master Drive Pyrmont.  As the vehicle has gone to turn right onto Saunders Street, it has collided with the pedestrian.  The pedestrian was conveyed to hospital and had an x-ray scan.  As a result of the incident, the pedestrian has a broken ankle.’

  3. In the police report the police recorded that they determined the Claimant to be the ‘unit responsible’ for the accident and did not determine whether the insured driver was responsible or not.
  4. The Insurer provided a transcript of interview between Paul Martinic and Constable Mitchell Bass taken on 29 November 2018. Constable Bass attended the scene after the accident. Constable Bass indicated that the speed zone in the area of the collision was 40 kilometres per hour (A26).
  5. Photographs of the insured vehicle were provided to me which did not demonstrate any obvious damage to the vehicle. These photographs are not particularly helpful in determining whether the Claimant was wholly or mostly at fault. There is no dispute that the Claimant was struck by the insured vehicle.

Submissions

Claimant’s submissions

  1. The Claimant has provided two sets of submissions to the Dispute Resolution Service in relation to this dispute.  In the initial submissions dated 20 December 2018 (A1) the Claimant has asserted that the accident occurred as a result of the Insured driver’s failure to ‘heed the warning signs, and failing to keep a proper lookout whilst negotiating the right turn into Saunders St’.  The Claimant’s submissions provide that there is various signages at the accident location which warns as to the area being a high pedestrian traffic including bicycles as well as the road narrows prior to the intersection with Saunders Street.  The photographs provided from Google Maps indicate the various indentations in the road for where pedestrians would tend to cross both Quarry Master Drive prior to and after the T intersection with Saunders Street as well as at the termination of Saunders Street.
  2. The submissions clarify that the Claimant had intended to cross Saunders Street from the northern side to the southern side.  It was as he had almost completed his walk across Saunders Street that he was struck by the Insured’s vehicle.  It was the Claimant’s evidence that the impact of the Insured vehicle causing him to fall onto the footpath of the southern side of Saunders Street.
  3. There were also submissions from the Claimant that the vehicle was travelling higher than walking speed as it required considerable force and energy in order to cause fractured bones. It should be noted that there is no medical evidence that addresses that the Claimant’s injuries were caused by a vehicle travelling at higher than walking speed or higher than 20km/h as indicated by the witness LS.
  4. Further, the Claimant makes submissions as to the breach of section 73(B) of the New South Wales Road Rules, 2017.  That road rule addresses that when a driver is turning right from a continuing road into a terminating road, the driver must give way to any pedestrian who is crossing the terminating road at or near the intersection.
  5. In relation to contributory negligence, the Claimant submits that there should be no contributory negligence on his part.  The concession is made that the Claimant was not crossing the road where there was a designated crossing however he had checked the road both ways and commenced his cross when the road was empty of vehicles and safe to do so.  It was only when he had almost completed his crossing that he was struck by the Insured vehicle.
  6. The Claimant asserts that his actions did not contribute to the injuries that he sustained nor were his actions a departure from the standard care expected of a reasonable person in the circumstances.
  7. The Claimant’s supplementary submissions dated 28 February 2019 address the additional material contained within the New South Wales Police GIPA documents.
  8. The Claimant’s submissions draw attention to the police diagram dated 15 July 2018 (however dated and signed 24 July 2018).  It was noted that the diagram was updated following the discussion with the witness LS.  The diagram demonstrates the Claimant crossing Saunders Street in a south/south westerly direction.
  9. It was submitted that given:
    1. the Claimant commenced his walk from the northern side of Saunders Street,
  1. that the Insured driver saw the Claimant before he commenced his turn, and
  2. that the Claimant struck the right side of the Insured’s vehicle,

the insured driver ought to have seen the Claimant as he was crossing the road whilst or prior to him commencing his turn.

Insurer’s submissions

  1. In the Insurer’s submissions dated 5 February 2019, the Insurer maintained the determination that the Claimant was wholly or mostly at fault for the subject accident. The Insurer noted they had reviewed the contents of the copy of the transcript of the interview between Constable Mitchell Bass and Paul Martinic, investigator from MJM Corporate Risk Services, on 29 September 2018.
  2. The Insurer drew attention that there was no damage sustained to the Insured’s vehicle and that the Claimant collided into the right driver’s side of the vehicle.  The Insurer asserted that the Insured driver’s version correlated with versions given by

Constable Bass and the witness.  However it should be noted that Constable Bass did not observe the accident occurring and there was no copy of the statement of the witnesses available at the time of the Insurer providing their submissions. A copy of the statement of LS was not available until the provision of the NSW Police GIPA documents by the Claimant’s solicitors on 28 February 2019 (noted above).

  1. The Insurer draws attention to the Insured driver’s evidence that the Claimant was holding a mobile phone and staring at the screen when he noticed the Claimant prior to turning right into Saunders Street.  The Insurer also relied on the determination by the police that the Claimant was at fault as the Claimant had crossed the road where there were no traffic lights, signage or crossings to prioritise pedestrian traffic.
  2. It was the Insurer’s view that the available evidence as at February 2019 supported that the Claimant had crossed the road when it was not safe to do so and had walked into the side of a turning vehicle.  It was noted that the Insured driver had given a version in his statement that the Claimant was at the right passenger door when he first noticed him.  It is an assumption made by the Insurer that on the basis of this evidence that the Claimant had walked into the right side of the Insured vehicle.

Legislation

35. In making my decision/conducting my review I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017 (NSW) (“the Act”)
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017

Reasons

  1. I have considered the documents provided in the application and the reply and any further information provided by the parties.
  2. The Insurer has determined that the Claimant is ‘wholly or mostly at fault for the motor vehicle accident’.  The Insurer bears the onus of establishing that the Claimant was either wholly or mostly at fault for his injuries.  The liability notice issued by the Insurer on 2 October 2018 only relied upon the Police report dated 5 September 2018. The Insurer did not rely upon any statements for that notice.  It was on the basis that the police had determined the Claimant to be the ‘unit responsible’ that the Insurer determined that the Claimant was wholly or mostly at fault for the subject accident.
  3. A police determination in relation to whether a party may be the unit responsible is not a binding factor on whether an Insured driver has breached their duty of care to a Claimant nor is it determinative that the Claimant is wholly or mostly at fault in an accident.
  4. Since that decision, further statements have been provided as outlined above. The parties agreed at the teleconference that this matter may be determined on the papers. As such, I have not had the opportunity to form an impression of the Claimant, the insured driver, or the independent witness as I might have at an assessment conference in person.
  5. In the Insurer’s submissions dated 5 February 2019, it is asserted that the Claimant ‘walked into the side of a turning vehicle’.
  6. The insured driver gave evidence that he saw the Claimant standing on ‘my right side’ of the sidewalk prior to him commencing his right hand turn. It is not exactly clear as to whether the insured driver means that he saw the Claimant standing on the northern or southern side of Saunders Street.
  7. The statement from LS does not elaborate as to when she first saw the Claimant and nor does it elaborate as to where she saw the Claimant commence crossing the road.  It is not entirely clear that there is a difference in the circumstances as observed by LS compared to the Claimant’s version of events.  LS was unable to say whether the Insured vehicle had its right indicator illuminated nor whether it had the headlights illuminated.  The police diagram amended on 15 July 2018, after they spoke to LS, has the Claimant crossing Saunders Street, close to the intersection with Quarry Master Drive.
  8. On both police site diagrams, dated 24 June 2018 and 15 July 2018, the collision is shown to have occurred at the termination of Saunders Street with Quarry Master Drive and it would appear to be in the middle of the roadway.
  9. LS states that she thought the Claimant was trying to cross to the western side of Quarry Master Drive.  No further explanation is given as to how LS had come to form this belief or how she came to form the belief that the Claimant had started crossing the road approximately six metres east on Saunders Street.
  10. The Claimant describes parking his scooter on the northern side of Saunders Street and that he crossed Saunders Street in a southerly direction. He described the insured vehicle hitting him on the right side of his body. This description is consistent with a finding that the Claimant was walking across Saunders Street from the northern to the southern side.
  11. Given that the Claimant was struck by the right side of the insured vehicle, I accept that the Claimant had travelled at least to the middle of Saunders Street prior to the collision.
  12. The insured driver gave evidence that he saw the Claimant standing on the sidewalk prior to him commencing his right hand turn. He has then given two varying versions of the sequence of events leading up to the accident, outlined as follows:
    1. In his initial reporting to the police at the scene, he noted that he had gone around the corner, the Claimant was ‘now in front of my car’.
    2. However, in his statement provided to the investigator dated 18 October 2018, the insured driver reported that he did not see the Claimant on the roadway. He was aware of the Claimant’s presence in the nearby vicinity as he states at paragraph 18 that he ”… noticed a male standing on my right side on the corner of Saunders Street. He was wearing a bicycle helmet and was holding a mobile phone and was staring at the screen.”. After that, the insured driver reported being alerted to the Claimant’s presence on the roadway after he hears a bang on the right side of his car when he was in the middle of the intersection, undertaking a right hand turn. He did not see the Claimant until he got out of his car. It was at this time that he saw the Claimant at the right rear passenger door sitting on the road.
  13. The evidence of the insured driver demonstrates that he did not see the Claimant commence to cross the road and he did not see the Claimant while he was undertaking his right hand turn into Saunders Street.
  14. The Insured driver makes reference to the Claimant using and looking at his mobile phone whilst he was standing on the sidewalk. The insured driver did not observe the

Claimant commence to cross the road and he did not see him crossing the road.  The Claimant has denied that he was distracted when crossing the road and was not looking at his phone. LS, the witness, does not provide any evidence that the Claimant was distracted by his mobile phone at the time he was crossing the road as she was unable to say. There is no further evidence available in relation to whether the Claimant was using his mobile phone at the time that he was crossing the road. There is only evidence from the insured driver that he was looking at his mobile phone whilst standing on the sidewalk.

  1. The only description given by the insured driver in relation to the Claimant’s clothing was limited to him wearing a helmet. There was no description as to the colour of his clothing or the colour of his helmet. The Claimant described that he was wearing a red jacket and a fluorescent green helmet. He provided a photograph of the jacket he asserts he was wearing at the time. The witness, LS, did not provide a description of what the Claimant was wearing.
  2. I accept that the Claimant was wearing a red jacket and a fluorescent green helmet at the time of the accident.  There is no evidence to contradict that is what he was wearing.  There was evidence that he was wearing a helmet but not other evidence as to the colour of the clothing or the colour of the helmet to dispute or challenge the Claimant’s evidence.
  3. There is competing evidence as to whether the insured driver had his right indicator on. The insured driver asserts that he had his indicator on and the Claimant states that he did not see the indicator on. The witness, LS, was unable to recollect if the indicator was on as her location hindered her view of the right side of the vehicle.
  4. There is no evidence as to speed at which the Claimant was walking across the roadway. It was not submitted by either party that this was a dart out case where the insured driver did not have the opportunity to see the Claimant prior to the collision as a result of him running out onto the roadway.
  5. The Claimant stated that he looked prior to crossing the road. He admitted that he had noticed the insured vehicle coming up the road. He was of the view that it was safe to cross the road at that time. There is no evidence from, the independent witness that the Claimant did not look prior to crossing the road.
  6. The Claimant states that the right front corner of the insured vehicle struck the right side of his body.  As a result of the collision, he fell to the roadway.  The Claimant’s evidence was that the Insured vehicle had continued to move forward after the collision. It is more likely that the Claimant was struck by the front right corner of the insured vehicle and as the insured vehicle continued to move, prior to being brought to a stop, the Claimant ended up being located near the rear passenger door on the road.
  7. The Claimant submits that the insured driver failed to comply with the Road Rules as well as failed to keep a proper lookout when undertaking a right hand turn into a terminating street at a T intersection.  As a result of that failure, the insured driver collided with the Claimant.
  8. Section 3.11 and 3.28 provide that the Claimant is not entitled to statutory benefits (income support and treatment and care) beyond the first 26 weeks after the accident:
    1. If his only injuries are minor injuries; or
    2. If he was wholly at fault for causing the accident; or
    3. If he was mostly at fault for causing the accident.
  9. The Insurer in its liability notice dated 2 October 2018 determined that the Claimant was “wholly” or “mostly at fault” for the accident. The Insurer clarified its position, by assessing the Claimant’s respective percentage for contributory negligence at 100%. It is safe to conclude that the Insurer is alleging that the Claimant was wholly at fault for causing the accident.
  10. The Insurer submits that the Claimant was ‘wholly or most at fault’ because he crossed the road when it was not safe to do so and walked into the side of a turning vehicle. The Insurer has not made any submissions as to findings of contributory negligence. There is no submission from the Insurer balancing the respective actions of the Claimant and the insured driver leading to a finding of a percentage of contributory negligence other than determining that the Claimant was wholly at fault. A determination of 100% contributory negligence by the Insurer determines that the Claimant is wholly at fault.
  11. Section 3.11(2) and 3.28(2) provide:

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%.’

  1. From my review of the evidence available, and balancing the respective actions of the Claimant and the Insured driver, I am not satisfied that the Insurer has established that the Claimant’s actions render him mostly at fault, meaning greater than 61% contributory negligent. I am not satisfied the Insurer has discharged their onus of proving that the Claimant is wholly or mostly at fault for the subject motor vehicle accident.

Costs and disbursements

  1. The Claimant submits that he is entitled to maximum costs permitted by Section 3, Part 1 of Schedule 1 of the Motor Accident Injuries Regulation 2017. In addition, a claim is made for disbursements of $30.00 in relation to the Claimant’s GIPA Application.
  2. The Insurer has not made any submissions in relation to costs.
  3. The Claimant has been represented by Law Partners since commencement of the claim. The Claimant’s solicitors prepared and lodged the dispute with the Dispute Resolution Service. Law Partners have represented the Claimant in relation to the dispute regarding liability before the Dispute Resolution Service. The Claimant’s solicitor has participated in a teleconference, gathered and provided additional materials including two sets of submissions.
  4. I am satisfied that the Claimant is entitled to the maximum amount for legal costs. I allow costs in the sum of $1,633 plus the disbursement in the sum of $30 plus GST (in accordance with cl 35 of the Motor Accident Injuries Regulation 2017), making the total awarded for costs $1,829.30.

Conclusion

My determination of the Miscellaneous Claim is as follows:

66. For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person

67. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,829.30 inclusive of GST.

Sarah Warren

Dispute Claims Assessor

Dispute Resolution Services