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ADU v AAI Ltd trading as AAMI [2019] NSWDRS CA 098

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: Wholly or mostly at fault – statutory benefits – bus – fueling station – police report – ambulance report – CCTV footage – witness statements – contributory negligence

Legislation cited:

  • Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 3.36,7.36, Schedule 2
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines effective 13 July 2018 cl 7.441

Parties:

  • ADU – claimant
  • AAI Ltd trading as AAMI – insurer

Disclaimer: This decision has been edited to remove all unique personal identification including the name of the claimant.

Miscellaneous claims assessment certificate

Reasons for decision

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 wholly or mostly at fault for the accident.

1. There is a dispute between ADU 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 Accident Injuries Act 2017 (“the Act”).

2. The subject accident occurred on 30 April 2018 at approximately 5:00pm. The Claimant was working as a petrol filler at the XXX Bus Depot refuelling bus, registration XXXXXX. He had finished filling up the bus with fuel and was walking towards the front of the bus when the bus suddenly moved and collided into the Claimant. 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 23 November 2018 stating it was the Insurer’s view that the Claimant was wholly or mostly at fault for the accident. The Insurer relied upon the Application for Personal Injury Benefits Claim Form dated 23 August 2018 and NSW Police report dated 25 October 2018 to make the decision that the Claimant was wholly or mostly at fault for the accident. The Insurer stated:

“Based on this information, we believe that you contributed to the accident and/or your injury because you have attempted to leave the fuelling station whilst our insured vehicle was in motion, walking in front of our insured vehicle and in doing so have caused the accident.”

5. The Claimant sought an internal review by way of letter dated 27 November 2018. The Claimant suggested that the Insurer had not gathered enough evidence to make the decision under s.3.28 of the Act including obtaining witness statements as well as other evidence from the police.

6. On 27 December 2018 the Insurer issued a Certificate of Determination — Internal Review and Statement of Reasons. The Insurer affirmed the liability decision of 23 November 2018. The Insurer remained of the view that the Claimant was wholly or mostly at fault for the motor vehicle accident occurring.

7. The Insurer noted in its Statement of Reasons that the NSW Police report provided a differing version of events that was not consistent with the Claimant’s account. The Insurer asserted that the NSW Ambulance report was “consistent with the NSW Police report and CCTV footage that was reviewed by attending police”. The Insurer indicated that the NSW Police report recorded that the Claimant had not followed protocol and attempted to leave the fuelling station while the bus was in motion and that the police did not place the bus driver at fault.

8. The Insurer concluded that the insured driver was not negligent in the driving and operation of the motor vehicle. The Insurer asserted that the insured driver began to move away from the refuelling station on a green light as per protocol.

9. The Insurer commented that contrary to the Claimant’s reports, the Claimant did not walk in front of the bus and was not struck by the front of the bus. The Insurer concluded that the Claimant as wholly at fault for the subject accident on the basis that the Claimant had attempted to leave the fuelling station whilst the bus was in motion, contrary to protocol, the Insurer asserted that the Claimant then slipped and bounced off the side of the bus onto the concrete.

10. The Claimant made an application to the DRS for determination of the dispute as to whether the Claimant was mostly at fault for the accident.

Documents considered

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

(a) Application from the Claimant dated 18 January 2019 including supporting documents annexed;

(b) Reply from the Insurer dated 19 February 2019 including supporting documents annexed;

(c) Email from the Claimant’s solicitors of 26 February 2019 enclosing photographs taken at the site of the accident;

(d) Email from the Claimant’s solicitors of 28 February 2019 enclosing statement of the Claimant signed and dated 28 February 2019;

(e) Email from the Insurer of 26 March 2019;

(f) Email from the Insurer of 2 April 2019 enclosing factual investigation report from MJM Corporate Risk Services dated 28 March 2019 and report annexures;

(g) Email from the Claimant’s solicitors dated 2 May 2019;

(h) Email from the Claimant’s solicitors of 7 May 2019 attaching letter of 7 May 2019 continuing submissions as to the CCTV footage;

(i) Disc containing copy of CCTV footage of the accident provided by the Insurer.

Evidence

Claimant's statement

12. The Claimant provided a statement signed and dated 28 February 2019.     In that statement he provided as follows:

At paragraph 6:

“On 30 April 2018 I was at work (XXX Bus Depot) filling petrol into bus registration number XXXXXX. I had finished filling the petroleum and was walking towards the front of the bus to go onto the bus to do inspections and drive the bus away. As I approached the front of the bus, the bus suddenly moved and collided into me. The vehicle at fault was registration XXXXXX.

At paragraph 11:

“I dispute the GIO Internal Review decision as they have not investigated into the matter and have solely relied on incorrect facts to come to their decision.  I submit that if they had requested for Sydney Busses interpretation of the accident or my explanation of the incident, they would realise that the driver was clearly at fault.”

At paragraph 13:

“The NSW Police do not even understand what my work protocol is and if the Insurer had given me the opportunity to explain I would have advised them the following –

(a) The “green light” is not an indication for the bus to move. The “green light” is lit when the fuel hose/nozzle is returned to its rest position. Please refer to annexure “A”.

(b) The bus is only allowed to move when the shed driver/refueller (myself) has given the clearance for the bus operator to leave. Please refer to annexure “B”.

(c) The driver did not follow protocol by being seated in the bus whilst refueling. Please refer to annexure “C” and “D”.

At paragraph 14:

“Lastly, I did not slip as alleged by the GIO internal Review. I was hit by the moving bus which had caused me to fall.”

13. Annexure “A” to the Claimant’s statement consisted of section 1.3 (page 8) from the CNG Bus Refuelling Installation Training Booklet from Bauer Kompressoren. The following part of section 1.3 was circled:

“Red and Green Stop/Go Driver Indicator Lamps

The stop/go lights which signal to the bus driver when green, that a lane is available for refuelling, and change to red when the fill hose is detached from its rest position for filling, and then go back to green when the fill hose has been returned to its rest position.”

14. Annexure “B” consisted of a photograph of a State Transit Authority Notice which had the following section circled:

“2.4 Bus Departing Refuel Area

After return of fuel nozzle to fuel rest:

  • Shed Driver/Refueller to issue instruction to driver to proceed out of the area upon completion of refuelling;
  • Check for pedestrians before bus is driven out from refuel bay;
  • Strictly observe yard speed limit as bus is driven through refuel bay and depot yard;
  • Shed Driver/Refueller or Driver to secure bus in its parking location.”

15 Annexure “C” contained a copy of section 4.1.1 of the ‘Traffic Operation Operating Plan – XXX’ which provided as follows:

“Drivers must stop at the RED stop line before entering refuelling bay.

On instruction, Bus Operator/Yard Supervisor/Designated Refueller to proceed ensuring that the bus speed is kept within the designated speed limit to the bunded refuel area, secure bus, and switch off engine.

Drivers are not to remain with vehicle whilst refuelling.

Prior to starting the bus the operator MUST check the refuelling process is complete and the exit is clear before the bus is driven out from refuel bay.

Strictly observe the 10km/h yard speed limit as bus is driven through refuel bay and depot yard.

All Yard, Maintenance staff and Bus Operators are to secure the bus in designator parking location.”

16. Annexure “D” consisted of a photograph of a sign at the refuelling area which provided:

“Driver not to remain in bus whilst it is being refuelled.”

Insured driver's statement

17. The insured driver provided a statement to investigator, Danny Scott, on 28 March 2019. The statement provided by the Insurer is not signed by the insured driver.

18. The unsigned statement provides as follows: From paragraph 18 onwards:

“About 5:00pm, I was driving the bus the from the yard to bowser and I drove in and parked the bus. I put the handbrake on and turned the bus off and then got off the bus and I stood on the bus and looking through paperwork. ADU was refuelling the bus. I did not speak to him prior to refuelling the bus. He was standing inside the refuelling cage as the refuelling took place. At the time it was day and weather conditions were fine and the roadway was dry.

The refuelling took about 2 minutes and I then looked and saw the lights had turned from red to green. This indicates that the refuelling had finished. At  this time I saw ADU standing inside the cage. I then got back into the driver’s seat and I turned on the bus and I was looking directly ahead. At this time I did not know where ADU was. After I turned on the bus, it takes about 5-10 seconds so the gas goes through the engine and the bus is able to be driven. I then put the bus into gear and was about to move and I looked to my right and down and behind and I saw ADU walking towards the front of the bus and I saw that tripped at the same time the bus rolled forward. When he tripped he fell onto the side of the bus. I immediately braked and ADU then fell to the roadway. I then put the bus out of gear and the handbrake on and I turned the bus off and I got off the bus to assist ADU. I am aware that the incident was captured on CCTV.”

At paragraph 22 onwards:

“I was not interviewed by Police and Police have not commenced any investigations into the accident. The cause of the accident was ADU tripping and falling into the bus.”

Statement of Mr L

19. Mr L, Depot Director of the XXX Bus Depot, provided a statement to investigator, Danny Scott, on 28 March 2019. The statement provided by the insure is not signed by Mr L.

20. The unsigned statement provides as follows: From paragraph 14 onwards:

“The procedure in respect to the refuelling of busses are that the bus is driven into the Refuelling Area that has three bowsers. The bus driver alights from the bus and secures the bus by the hand brake and switching off the bus. The driver then leaves the bus and no longer has any involvement with the fuelling process. The Refueller then attaches the gas to the bus and this is screwed into the socket that is at the front offside of the bus below where the driver is seated. There is a caged area where the Refueller then moves to and this is about 2 to 3 metres from the bus while the fuelling process takes place. The gas is put into the bus under pressure. The process takes as much time as required. After the gas is put into the bus the cage is opened up and the gas  is turned off from the area where the cage is. The bus cannot move when the fuel hatch on it is open and this is a safety mechanism.

When the gas hose is detached from the bus and the hatch is closed there is a green and red light facing the bus and at a distance of about 30 metres. The light turns from red to green when the hose being put back up and this indicates that the bus is ready to be driven away. It’s then that the bus driver get into the bus and drives away. When the bus is driven away the Refueller knows to step away from the bus. There are no set policies in relation to this. Common sense indicates that a person would not walk in front of a moving bus.

At paragraph 23:

“I am aware that the incident was captured on CCTV. I viewed that CCTV and it shows ADU walking along the side of the bus and tripping on the edge of a concrete platform that is about 15 centimetres in height and he fell against the side of the bus. The bus at the time was slowly moving forward. The bus is seen to immediately stop.”

At paragraph 26:

“The cause of the accident was ADU tripping and falling. There was no fault on behalf of the driver. The driver had a green light to move the bus out of the area.”

CCTV footage of incident

21. The Insurer provided a copy of the CCTV footage of the subject incident. The footage begins and you can see the insured driver sitting in the bus in the driver’s seat with a piece of paper in his hands. The bus is to the left side of the screen.

22. In the centre of the screen, the Claimant can be seen wearing a hi-vis jacket and a dark coloured hat. The Claimant is seen to check something on the wall and then disappears from view.

23. The insured driver is sitting in the driver’s seat with the piece of paper in his hand, folding the piece of paper and then seems to start the ignition (at 00:25). Lights can be seen to illuminate in the dashboard of the bus. The CCTV footage does not have any sound. The insured driver continues to hold a piece of paper in his hands.

24. The Claimant enters at 00:35 from the bottom centre of screen. The Claimant walks along the driver’s side of the bus towards the front of the bus (in the opposite direction of the camera angle). At about 00:37 of the footage, the Claimant can be seen at approximately the front driver’s corner of the bus. The bus commences moving at or about the same time the Claimant steps off the gutter. The collision between the bus and the Claimant occurs at 00:38. The bus commences moving just prior to the Claimant stepping off the gutter. As a result of the collision between the bus and the Claimant, the Claimant is bounced into the brick wall of the bowser. The footage shows that the insured driver get out of the bus and walk around to the front of the bus to check on the Claimant. The insured driver has a piece of folded paper in his right hand.

Other documents

25. The NSW Ambulance report dated 30 April 2018 reported the following:

“59 yo male bus driver had just filled up his bus with fuel at the depot. While he was refuelling, another driver has got into the bus and as the patient has started to walk in front of the bus, it has started to move off. The front right quarter of the bus has hit the pt on the left side of the body, low speed but knocked the patient into the gutter. Pt unable to move due to the pain and NSW Ambulance called….”

26. In the police report the narrative details recorded the following circumstances of the accident:

“When buses are refuelling at the fuel station, operators are guided by red and green signals. These signals operate in the same manner as traffic signals. Whilst the buses are refuelling, a flashing orange light indicates the process is in progress. At the nominated time, the victim who is known as “fueller” (a

person who is in charge of ensuring the buses are fuelled) commenced fuelling the bus as per requirement. The red light was operational indicating the bus could not be moved and the flashing orange light was operating indicating the bus was being fuelled.

Upon completion of the process, the orange light stopped flashing and the green light was operating and as a result the driver began to move away from the fuelling station. For reasons unknown, the victim began walking between the brick wall of the fuelling station and the moving bus. The victim has slipped from a concrete ledge, bounced off the side of the bus and impacted with the concrete causing the possible injuries.

The driver immediately stopped the bus and rendered assistance. A short time later an ambulance arrived at the location and provided assistance to the victim.

A short time later police attended the location and spoke with both the victim and driver. Present whilst this was occurring was the bus depot deputy manager. Police were advised that the incident was captured on CCTV footage. As a result police viewed the footage and it evident the victim had not followed protocol and attempted to leave the fuelling station whilst the bus was in motion. WorkCover was notified of the incident.”

27. In the certificate of capacity/certificate of fitness completed by Dr Sebastian Calvache Rubid and dated 8 May 2018, the following description of how the injury occurred was recorded:

“Pedestrian involved MVA. He suffered multiple injuries after hit by a bus at workplace. Transfer by ambulance to RNSH.”

28. In the Application for Personal Injury Benefits signed by the Claimant and dated 14 May 2018, the Claimant provided the following description of the accident:

“On 30 April 2018 at approximately 5:00pm, I was the petrol filler at the XXX Bus Depot for the bus with registration number XXXXXX. I finished my duty filling the petroleum and was walking towards the front of the bus to go onto the bus to drive the bus away. As I was approaching the front of the bus, suddenly the bus moved and collided into me. The vehicle at fault was bus registration XXXXXX.”

29. The Claimant provided a copy of the Safe Work Instruction – Refuelling of Busses (CNG) which provided a process description of refuelling busses. The following is a summarisation of the activity steps set out in the process description:

(i) Bus arrives for refuelling. Apply park brake and turn engine off.

(ii) Open the bus refuelling door which special key provided.

(iii) Remove dust cover form male fill receptacle on the bus.

(iv) Remove fill hose from rest position.

(v) Attach safety cable to bus.

(vi) Fit fill coupling to male fill receptacle on the bus.

(vii) Open isolation valve on bus.

(viii) Fill control station and close sliding door.

(ix) Initial fill by pushing green “Refuelling Start” button on fill control station.

(x) Close isolation valve on bus.

(xi) Disconnect hose from bus.

(xii) Detach safety cable from bus (Mercedes only).

(xiii) Fit hose to dispenser rest position.

(xiv) Close and lock refuelling door ensuring key is locked in secure location.

(xv) Bus departs. (Potential hazard listed for item 15 is “potential for bus to collide with infrastructure and/or employees working in the refuelling bay”).

Submissions

Claimant's submissions

30. In the submissions dated 18 January 2019 the Claimant submits that the Certificate of Determination – Internal Review of the Insurer is “incorrect”. The Claimant asserts that the Insurer relied on incorrect facts and comments to determine their decision on the basis that the NSW Police report contained incorrect information including the following:

(a) The Claimant had finished refuelling the bus but his duties were not yet complete;

(b) At the time of the accident the Claimant was intending to board the bus to undergo checks which are part of his duties;

(c) The driver had no reason to start the bus and/or move the bus in the circumstances;

(d) It is submitted that the “green light” is not an indication for the bus to move (as identified in Police report). The “green light” is lit when the nozzle is placed back on the pump and it is not an indication for the bus to proceed to drive;

(e) The bus is only allowed to move when the fuel operator (Claimant) has given the clearance for the bus operator to leave;

(f) The police are incorrect that the “victim (Claimant) did not follow protocol”;

(g) The driver is a party that did not follow protocol by being seated in the bus whilst refuelling and by moving the vehicle before the fuel operator (Claimant) gave clearance to do so; and

(h) The Claimant being the fuel operator had the right to traverse around the vehicle, onboard and off board the bus to fulfil his duties.

31. The Claimant contended that  the  Claimant’s  employer,  who  was  aware  of protocol ,had identified that the driver was the party that did not follow protocol and was the party responsible for the accident and the party that was negligent for the accident.    However, no statement from the employer was provided at the time the submissions were made on 18 January 2019.

32. The Claimant asserted that the Insurer had not undertaken proper investigations in determining their decision and that they had failed to provide a percentage of contributory negligence as required by section 3.28(2) of the Act.

33. By way of letter dated 7 May 2019 the Claimant’s solicitors provided further brief submissions. The Claimant drew my attention to the following three frames of the CCTV footage:

(a) “0:00:21” — the Claimant submits that the driver is seen to be holding a piece of paper/document.

(b) “0:00:38” — the Claimant asserts that he made a clean step off the kerb and had been hit by the bus which resulted in him falling to the ground. It is asserted that at all times there is no evidence that the Claimant ever tripped.  It is further noted that the driver is still folding the piece of paper whilst the bus was moving.

(c) “0:00:41” — it is noted that after the Claimant has fallen, the bus driver is still seen folding the piece of paper.

Insurer's submissions

34. In its submissions dated 19 February 2019, annexed to the Reply, the Insurer reiterated and affirmed that the Claimant ought to be considered wholly or mostly at fault for the subject accident based on the evidence “available at that time” (meaning at the time the internal review was undertaken).

35. The Insurer commented that the Claimant had provided no evidence to support the submission that the police report was incorrect and cannot be relied upon.

36. The Insurer noted that there was no statement available from the Claimant’s employer as at 19 February 2019.

37. The Insurer acknowledged that further investigations in relation to the circumstances surrounding the accident were required and that the Insurer would undertake such investigations as a matter of urgency and provide the report once received.

Legislation

38. 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

39. I have considered the documents provided in the Application and the Reply and any further information provided by the parties.

40. The Insurer had 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. It is the Insurer’s position that the Claimant tripped whilst walking towards the front of a moving bus and as a result fell into the bus and then to the ground.

41. Further, the Insurer holds the view that the insured driver was not negligent in any way in the manner in which he operated the bus.

42. The statements that the Insurer relies upon are not signed and that causes some difficulty as to the weight that can be placed upon them compared to the Claimant’s statement which is signed and dated.

43. The parties agreed at the last 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 Mr L, as I might have at an assessment conference in person.

44. The CCTV footage has been interpreted differently by the parties. It is asserted by  the Insurer that the CCTV footage supports the suggestion that the Claimant tripped and fell into the bus. Whereas the Claimant indicates and points out that the insured driver had a piece of paper in front of him throughout the time while he was sitting in driver’s seat of the bus prior to the collision. However, no submission is made by the Claimant in relation to what I should make of that being pointed out. It may well be that the Claimant contends that the insured driver was distracted whilst operating the bus.

45. The Claimant has provided copies of numerous policies and procedures in relation to refuelling buses at the XXX Depot. This includes the procedure that the driver is not to remain in the bus during the refuelling process. The CCTV footage, or the amount of the footage that has been provided, shows the insured driver sitting in the driver’s seat of the bus from the start up until the collision occurs. The insured driver then leaves the bus to check on the Claimant laying on the ground in front of the bus.

46. The footage does not contain sound and does not fully demonstrate when the bus is started. However, it does demonstrate the insured driver moving his right arm down to the right and at the same time lights illuminating on the dashboard of the bus. This may be when the bus ignition was started. No submissions are made by either party as to any notice I should take of when the bus was started and whether that should have drawn draw the Claimant’s attention to the danger of the bus being started or that the driver should not have started the bus yet.

47. From my review of the CCTV footage, I disagree with the Insurer’s assertion that it demonstrates that the Claimant tripped. From my review of the CCTV footage, it is clear that the bus commences to move and almost within the same second the Claimant steps off the gutter and is struck by the front driver’s side corner of the bus. As a result of this collision, the Claimant is thrown to the side into a wall and then falls to the ground.

48. At paragraph 19 of his unsigned statement, the insured driver stated that he checked his mirrors when he was about to move the bus. He stated that he sae the Claimant trip and fall into the bus. As set out above, I do not accept that the Claimant tripped and fell into the bus. The insured driver set out that the bus “rolled forward” at the same time as the Claimant allegedly tripped.

49. The insured driver stated that he did not know where the Claimant was when he stated the ignition and put the bus into gear. He commenced moving forward at the same time as he was watching the Claimant approach the bus in the mirror.

50. The insured driver was aware that the Claimant was within the vicinity of the bus prior to starting the bus. The insured driver had a duty of care to pedestrians, especially when he is aware of pedestrians within that area, to be aware of his surroundings prior to moving such a heavy vehicle. It is clear from the CCTV footage as well as the policies and procedures provided by the Claimant, that the area is a high pedestrian area and the insured driver knew or ought to have been aware of that and taken due care. The evidence of the insured driver demonstrates that he was not aware of where the Claimant was when he started the ignition and put the bus into gear.

51. The CCTV footage demonstrates that the Claimant is wearing a fluorescent hi-vis like jacket at the time of the subject accident. There is no assertion made by the Insurer  or the insured driver that the Claimant was unable to be seen and that contributed to the circumstances of the accident.

52. 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:

(a) If his only injuries are minor injuries; or

(b) If he was wholly at fault for causing the accident; or

(c) If he was mostly at fault for causing the accident.

53. The Insurer in its liability notice dated 23 November 2018 determined the Claimant was wholly or mostly at fault for the accident. In its Certificate of Determination of Internal Review and Statement of Reasons dated 27 December 2018, the Insurer would seem to have affirmed its decision but refined its the position to the Claimant being wholly at fault for the accident. It was the Insurer’s view that the insured driver was not negligent at all in relation to the subject accident.

54. I am not satisfied that the insured driver was not negligent in any respect in regard to his actions which caused the insured vehicle to collide into the Claimant. As a result  of that collision, the Claimant fell to the ground, after some wobbly movements, and as a result has allegedly suffered injuries. I am not satisfied that the Claimant tripped and fell into the bus, nor am I satisfied that the Claimant tripped and fell to the ground and that as a result of that tripping caused his injuries.

55. In my view, the insured driver breached his duty of care and bears some onus in relation to this accident. The insured driver breached procedure by remaining in the vehicle, the CCTV footage demonstrates that he may have been distracted whilst operating the bus, as well as a lack of evidence that he maintained a proper lookout before commencing to move the bus forward when he knew or ought to have known that the Claimant was within the vicinity of the bus. On this basis, I find that the Claimant was not wholly at fault for the subject motor vehicle accident.

56. Section 3.11(2) and 3.28(2) provides:

“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%.”

57. No submissions were made by the Insurer in relation to any specific findings of contributory negligence against the Claimant. The Insurer did not make any submissions of a percentage for contributory negligence. No submissions were made by either party in relation to similar cases that demonstrated an appropriate finding for contributory negligence given the circumstances of this accident.

58. 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.

59. I am not satisfied the Insurer has discharged their onus of proving the Claimant is wholly or mostly at fault for the subject motor vehicle accident.

Costs and disbursements

60. The parties have not made any submissions in relation to costs.

61. The maximum costs permitted by section 3, Part 1 of Schedule 1 of the Motor Accidents Injuries Regulation 2017 provide costs in the sum of $1,633 plus GST as the maximum amount recoverable.

62. The Claimant has been represented by Stephen Young Lawyers since the request for an internal review was made to the Insurer on 27 November 2018. Th Claimant’s solicitors prepared and lodged the dispute with the Dispute Resolution Service. Stephen Young Lawyers have represented the Claimant in relation to this dispute including participating in teleconferences as well as gathering and providing additional materials including two sets of submissions.

63. I am satisfied that the Claimant is entitled to the maximum amount for legal cost. I allow costs in the sum of $1,633 plus GST (in accordance with clause 35 of the Motor Accidents Injuries Regulation 2017), making the total awarded for costs $1,796.30.

Conclusion

My determination of the Miscellaneous Claim is as follows:

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

65. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,796.30 inclusive of GST.

Sarah Warren
DRS Claims Assessor
Dispute Resolution Services