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AFH v AAI Limited trading as GIO [2019] NSWDRS CA 134

Overview

Jurisdiction: miscellaneous claims

Catchwords: Wholly or mostly at fault – motorcycle rider – u-turn – serious injuries – statutory benefits – legal costs – exceptional circumstances – GIPA application – onus of proof – contributory negligence – expert witness – face to face conference – just resolution – reasonable of counsel fees –solicitors costs

Legislation cited:

  • Motor Accident Injuries Act 2017 (NSW) ss 3.11, 3.28, 3.36, 7.36, 7.37, 7.42, 8.3, 8.10, Div 7.6, Schedule 2(3)
  • Motor Accident Injuries Regulation 2017 cl 21, 22, Schedule 1 Part 1 s 3
  • Motor Accident Guidelines effective 13 July 2018 cl 7.441

Cases cited: San v Rumble (No 2) [2007] NSWCA 259

Parties:

  • AFH– claimant
  • AAI Limited trading as GIO 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 7.36(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

ClaimantAFH
InsurerAAI Limited t/as GIO
Date of Accident28 August 2018
DRS Reference10080647
DRS Claims AssessorSusan McTegg
Date of Decision26 August 2019

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

1. For the purpose of section 3.11 the Insurer has conceded that the motor accident was not caused wholly or mostly by the fault of the Claimant.

2. For the purposes of section 3.28 or 3.36 the Insurer has conceded that the motor accident was not caused wholly or mostly by the fault of the Claimant.

3. Legal Costs: The amount of the Claimant's costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $20,807.16 inclusive of GST.

A statement of my reasons for this decision is attached to this certificate.

Susan McTegg
DRS Claims Assessor
Dispute Resolution Services

Reasons for decision

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule (2)(3)(d) & (e) of the Motor Accidents Injuries Act 2017.

1.  There was a dispute between the Claimant and the Insurer as to whether the Claimant was wholly or mostly at fault for causing the motor vehicle accident pursuant to sections 3.11, 3.28 and 3.36 of the Motor Accident Injuries Act 2017 (the Act).

2.  On 28 August 2018 the Claimant was riding his motorbike with a group of other riders travelling south to Ulladulla along the Princes Highway. About 2 kilometres south of Little Forest Road, the Claimant observed two other riders who were part of his group namely, C and H pull over to the left side of the Princes Highway. The Claimant travelled south before performing a U-turn and then travelling north back towards H and C.

3.  Thereafter, the circumstances of the accident were in dispute. The Claimant says he was about 30 to 40 metres from C and H who were on the opposite side of the road when he indicated left and pulled off the side of the road. The Claimant states his bike was stationary in the middle of the "fog lane" and outside the left lane, his bike was in netural, the left indicator was on and the bike was well lit. The Claimant says he felt a massive impact and  woke up face down on the road.

4.  The Insurer asserted that the Claimant had performed a U-turn in front of the path of the insured motor vehicle on the basis the point of impact was in the middle of the north bound lane.

5.  There is no dispute that both the motor vehicle and motor cycle burst into flames. The insured driver dragged the Claimant away from the burning crash site. Both vehicles were extensively damaged and both the Claimant and the insured driver were conveyed to hospital. The Claimant sustained serious injuries.

6.  The Insurer issued a liability notice dated 18 December 2018 declining liability for payment of statutory benefits on the basis the Claimant was "wholly or mostly at fault" for the accident.

7.  An application for internal review was lodged on 11 January 2019.

8.  No decision was made on the application for internal review and the Claimant filed a Dispute Resolution Service Application on 28 February 2019.

9.  The matter was the subject of the first teleconference on 20 May 2019. The Claimant was represented by Mr Andrew Stone of Senior Counsel instructed by Philip Ferraro, of Carroll & O'Dea Lawyers.

10. The Insurer was represented by Ms Mar-Lize Crawford, Solicitor. Various issues were raised but, relevantly for this decision, Mr Stone put the Insurer on notice that he would be making an application for payment of legal costs on the basis of exceptional circumstances.

11.  The Insurer had made a GIPA Application to the NSW Police Force for records pertaining to the accident but that application was still pending.

12.  The Insurer undertook to request a copy of the CTP file pertaining to the claim made by the Insured driver.

13.  A number of issues were canvassed including inter alia the question of which party bears the onus of proof, whether it was appropriate that I make a specific finding of contributory negligence if I found the Claimant was not wholly or mostly at fault, whether it was proposed to treat Senior Constable Madsen as an expert witness and whether a face to face conference was required and if so, the venue for that conference.

14.  I made a number of directions to the parties including directions to the Insurer requiring submissions to be provided on or before 3 June 2019 addressing the question of onus, the question of contributory negligence, whether Senior Constable Madsden was to be treated as an expert witness and the status of the GIPA Application.

15.  On 3 June 2019 the Insurer served submissions stating advice was being sought from Counsel in relation to the onus of proof and providing details of the efforts made by the Insurer to expedite the investigation. The Insurer

  • agreed I should make a specific finding as to contribory negligence in the event I found the Claimant to be not wholly or mostly at fault;
  • advised it was intended to treat the evidence of Senior Constable Madsen as expert evidence;
  • was following up the GIPA Application;
  • advised it did not hold a property damage file for the insured driver; and
  • had requested the QBE CTP claims file in relation to the insured driver on 25 December 2019 and would follow up that request.

16. The matter was the subject of a second teleconference on 5 June 2019. The Insurer was still awaiting advice from Mr Fitzsimmons of Counsel on the question of onus of proof and had been advised that the GIPA Application would be determined by 27 June 2019. Ms Crawford for the Insurer objected to the matter being listed for an assessment conference before she had an opportunity to review the GIPA documentation.

17. To determine whether a face to face assessment conference was required and the location of the assessment conference I directed that the Insurer, on or before 12 June 2019, advise as to the following:

  • Whether the Insurer would be able to secure the attendance of Senior Constable Madsen at an assessment conference and whether he would be available to attend in July.
  • Whether the Insurer was prepared to resume payments on a without prejudice basis until the dispute was determined.
  • Whether the Insurer would be serving a statement by the insured driver and whether the insured driver would be available for questioning at an assessment conference in July.
  • Whether the Insurer required the Claimant, C and Mr T available for questioning.

18. The matter was the subject of a third teleconference on 12 June 2019. On  that occasion Mr Jagoszewski represented the Insurer. The Insurer was not prepared to resume payments on a without prejudice basis. The Insurer:

  • was still uncertain whether Senior Constable Madsen would be available to attend an assessment conference;
  • was still not in a position to confirm whether they would be relying upon a statement by the insured driver although it was not proposed to ask him to give oral evidence because of his mental illness;
  • was still awaiting a copy of the Insured driver's claim file from QBE; and
  • wished to question the Claimant, C and Mr T.

19. It was agreed the matter would be listed for an assessment conference in Sydney on 29 July 2019 on the proviso the Insurer was prepared to pay the expenses of witnesses required for questioning, namely the Claimant and C. In the event the Insurer was not prepared to pay those expenses, I gave the parties leave to approach me with a view to having the matter relisted at a venue on the South Coast. I made a number of other directions.

20. The matter was the subject of a forth teleconference on 17 July 2019. The Insurer had not complied with a number of the directions made by me on 12 June 2019.

21. Ms Crawford advised the first GIPA application had been declined and a fresh application lodged on 16 July 2019.

22. On the basis evidence to be produced in response to the GIPA Application would not be available prior to the assessment conference Ms Crawford asked for the assessment conference to be vacated and re-listed at a later date.

23. The Claimant opposed the application to vacate the assessment conference.

24. The Claimant sustained serious injury in the accident and remained unfit for work. Liability for statutory benefits was declined on 18 December 2018 and notwithstanding lodgement of the Application for internal on 11 January 2019 no attempt was made by the Insurer to lodge a GIPA Application until 26 April 2019. The Insurer then failed to comply with the procedural requirements of the New South Wales Police Force in respect of the GIPA Application resulting in it being declined. Furthermore, notwithstanding receiving notice of that declinature on 24 June 2019 the Insurer made no attempt to lodge a fresh GIPA Application until 16 July 2019.

25. Accordingly, I refused the application to vacate the assessment conference on the basis the Claimant should not be prejudiced by the dilatory conduct of the Insurer having regard to the impact of that conduct upon his statutory rights.

26. Ms Crawford was unable to confirm whether Senior Constable Madsen would be available for questioning at the assessment conference in person or by telephone.

27. When asked whether any further evidence was to be served by the Insurer, Ms Crawford stated the Insurer wished to rely on an investigators report and to furnish submissions. Noting the investigators report was dated 20 June 2019 Ms Crawford was unable to provide any explanation for the failure to serve that report in accordance with my earlier directions in circumstances where the report was clearly available.

28. Mr Stone expressed his concern about the failure of the Insurer to comply with my directions particularly where the Claimant had prepared submissions as directed having regard to the evidence then available.

29. Ms Crawford advised the Insurer would not be serving a statement from the insured driver and nor would he attend the assessment conference.

30. Noting it appeared unlikely the Insurer would secure the attendance of Senior Constable Madsen and the only witnesses available for questioning would be the Claimant and C, Mr Stone questioned whether it was fair that only the Claimant and his witness would be examined.

31. In those circumstances the question arose as to whether it was appropriate to deal with the matter on the papers. Both parties indicated they would obtain instructions as to the necessity for a face to face conference. I directed the Insurer to file any further evidence and submissions by 2:00pm on 19 July 2019.

32. On 19 July 2019, the Insurer issued a liability notice determining the Claimant was not wholly or mostly at fault and accepting liability to pay statutory benefits beyond the first 26 weeks after the accident.

33. Even though the dispute had resolved, Mr Stone indicated the Claimant wished to press his application for costs in exceptional circumstances.

34. The matter was listed for a fifth teleconference on 23 July 2019 when I vacated the assessment conference scheduled to take place on 29 July 2019 and made directions in relation to the service of further submissions on the issue of costs.

35. I have considered the Claimant's submissions on costs dated 15 July 2019, the Insurer's submissions dated 30 July 2019 and the submissions in reply dated 5 August 2019.

Legislation

36. In making my decision I have considered the following legislation and guidelines:

  • Motor Accident Injuries Act 2017
  • Motor Accident Injuries Regulation 2017
  • Motor Accident Guidelines 2017

Whether exceptional circumstances permit recovery of legal costs

37. The Insurer concedes it did not discharge its onus to establish that the Claimant was wholly or mostly at fault for the accident.

38. The Insurer has now admitted liability for the claim for statutory benefits and concedes there are exceptional circumstances to entitle the Claimant to recover costs.

39. However, the Insurer submits that s 8.10 of the Act does not confer a power on me to assess, allow or order costs beyond the maximum fixed by the Regulation.

40. Section 8.3 of the Act provides that the Regulations may fix the maximum costs recoverable and provides:

8.3 Regulations fixing maximum costs etc recoverable by Australian legal practitioners

(1) The regulations may make provision for or with respect to the following:

(a) fixing maximum costs for legal services provided to a Claimant  or to an Insurer in any motor accidents matter,

(b) fixing maximum costs for matters that are not legal services but are related to proceedings in any motor accidents matter (for example, expenses for investigations, for witnesses or for medical reports),

(c) declaring that no costs are payable for any such legal services or other matters of a kind specified in the regulations.

(2) Without limiting subsection (1), the regulations may fix maximum costs for legal services provided to a Claimant by reference to the amount recovered by the Claimant.

(3) An Australian legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section. An Australian legal practitioner is not entitled to be paid or recover any amount for a legal service or other matter of a particular kind if the regulations declare that no costs are payable for a service or other matter of that kind.

(4) An Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the Claimant or the Insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Dispute Resolution Service.

(5) This section does not entitle an Australian legal practitioner to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred.

(6)This section and any regulations under this section prevail to the extent of any inconsistency with the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014). An assessment under that legislation of any costs in respect of which provision is made by a regulation under this section is to be made so as to give effect to that regulation.

(7)The Minister is to consult the Councils of the Bar Association and the Law Society about any proposed regulation under this section. The validity of a regulation is not affected by a contravention of this subsection.

41. As the Insurer submits pursuant to s 8.3(4) an Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to party to a claim for statutory benefits unless payment of those costs 1s permitted by the regulations or the Dispute Resolution Service (DRS).

42. Section 8.10 of the Act provides:

8.10 Recovery of costs and expenses in relation to claims for statutory benefits

(1) A Claimant for statutory benefits is (subject to this section) entitled to recover from the Insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the Claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.

(2)The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a Claimant under this section (including any matters for which no costs and expenses are recoverable from the Insurer).

(3) A Claimant for statutory benefits is only entitled to recover from the Insurer against whom the claim is made reasonable and necessary legal costs incurred by the Claimant if payment of those costs is permitted by the regulations or the Dispute Resolution Service.

(4) The Dispute Resolution Service can permit payment of/egal costs incurred by a Claimant but only if satisfied that:

(a) the Claimant is under a legal disability, or

(b) exceptional circumstances exist that justify payment of legal costs incurred by the Claimant.

(5) An Insurer is not entitled to recover from a Claimant for statutory benefits any legal costs, or other costs and expenses, of the Insurer in relation to the claim.

43. Section 8.10(1) enables a Claimant for statutory benefits to recover reasonable and necessary legal costs incurred by the Claimant in connection with the claim.

44. Section 8.10(2) provides the regulations may make provision for and with respect to fixing the maximum costs and expenses recoverable by a Claimant under this section.

45. Section 8.10(3) provides that the recovery of costs must be permitted by the regulations or the DRS.

46. Section 8.10(4) empowers the DRS to permit payment of legal costs but only if satisfied that the Claimant is under a legal disability or exceptional circumstances exist that justify the payment of costs.

47. This provisiion is consistent with s 8.3(4) which allows an Australian legal practitioner to be paid or recover legal costs if permitted by the regulations or the DRS. Neither s 8.10(4) ors 8.3(4) suggests that the recovery of costs as permitted by the DRS is limited by the Regulations.

48. The Insurer also relies upon the following provisions of the Motor Accident Injuries Regulation 2017.

21 Application of Division

This Division applies to the following costs payable on a party and party basis, on a practitioner and client basis or on any other basis:

(a)legal costs,

(b)costs for matters that are not legal services but are related to proceedings in a motor accidents matter.

Note.

Section 8.1 (2) of the Act provides that expressions in Part 8 (Costs and fees) of that Act (and consequently expressions used in this Part) have the same meaning when used in relation to legal costs in the legal profession legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act 2014) except where otherwise provided in that Part.

22 Fixing of maximum costs recoverable by legal practitioners (sections 8.3 and 8.10)

(1) Except as otherwise provided by this Part, the costs set out in Schedule 1 are the maximum costs for:

(a) legal services provided by an Australian legal practitioner to a claimant or to an insurer in a motor accidents matter, and

(b) matters that are not legal services but are related to a motor accidents matter.

49. Schedule 1, Part 1, s 3(1) provides:

The maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the Act involving a dispute about a regulation miscel/aneious claims assessment matter for $1,600.00 (to a maximum of $6,000.00 per claim).

50. It is agreed that the maximum fixed by the Regulation is currently indexed at $1,633.00.

51. The Insurer submits there is no discretionary power conferred on an assessor other than the power to permit legal costs pursuant to s. 8.1O if exceptional circumstances exist and cl 22 of the Regulation provides that the maximum costs recoverable are limited by Schedule 1 to the Regulation.

52. On the Insurer's interpretation no costs are recoverable by the Claimant unless exceptional circumstances exist and, in that event, those costs are limited by Schedule 1 to the Regulation.

53. The Claimant disputes the Insurer's interpretation of s 8.10 of the Act. The Claimant asserts ss 4 provides a "safety valve" against any injustice in holding costs to the regulated fee by providing for the DRS to permit payment of additional legal costs where exceptional circumstances apply.

54. The Claimant submits the Insurer's interpretation of s 8.10 is not consistent with other sections of the Act. The Claimant points out that Schedule 2, 1(aa) to the Act identifies as a merit review matter a dispute as to whether costs and expenses incurred by the Claimant for the purposes of s 8.10 are reasonable and necessary.

55. As the Claimant states it is difficult to understand why this section would be necessary if costs were only recoverable in exceptional circumstances and if those costs were limited by Schedule 1 to the Regulation.

56. The Claimant also points out that the explanatory note says "legal costs will not be recoverable for statutory benefits claimed unless permitted by the Regulations or the Dispute Resolution Service". The Claimant submits the wording in the explanatory note evidences an intent for the DRS to permit costs where the Regulations do not.

57. The Claimant also refers to the second reading speech which says that the Act "... allows for both the fixing of maximum legal costs by reference to the amount recovered by the Claimant and a fee-for-service model". Certainly there is no suggestion that legal fees for statutory benefits disputes would only be recovered in exceptional circumstances as argued by the Insurer.

58. In submitting thats 8.10(4)(b) should be considered a "safety valve" provision the Claimant concedes that in the majority of cases, the regulated fee would be payable.

59. It is correct as the Claimant submits that not all statutory benefits disputes are equal in terms of complexity.

60. As submitted by the Claimant there are exceptional cases such as a dispute as to whether the Claimant is wholly or mostly at fault which might require extensive factual investigations, interview of lay witnesses, analysis of whether the accident may have caused the injury alledged, legal analysis of contributory negligence, retention of accident reconstruction, mechanical and/or pharmacological experts and an assessment conference with questioning of lay and expert witnesses and detailed submissions as to appropriate findings of fact or law.

61. If the Insurer's argument is correct, there would be no entitlement to recover costs in the majority of the miscellaneous claim disputes. I agree with the following submission made by counsel for the Claimant:

There is a clear intent within the Scheme that there be a "fee for service" system to provide for legal assistance in statutory benefits claims. To require exceptional circumstances before the fee becomes payable runs contrary to the structure of the Act, the explanatory note, the reading speech and the common experience of the Act.

62. The wording contained in subsections 3 and 4 of s 8.10 differs. Subsection 3 refers to recovery from the Insurer of "reasonable and necessary legal costs" whilst ss 4 refers to payment of "legal costs".

63. There is nothing in s 8.10 which suggests ss 4 is limited by the operation of ss 3. Subsection 4 enables the DRS to permit payment of legal costs incurred by a Claimant but only if satisfied that the Claimant is under a legal disability or exceptional circumstances exist that justify payment of legal costs incurred by the Claimant. However, ss 4 does not include the words "as permitted by the Regulations".

64. In my view section 8.10(4) is designed to permit an entitlement to recover legal costs, not limited by the Regulations, where the DRS is satisfied, inter alia, that exceptional circumstances exist.

65. The Insurer also argued the Claimant cannot recover costs in excess of the regulated fee because s 8.3(3) does not permit a legal practitioner to "be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section".

66. The Insurer submits it is unclear how the Claimant can incur such costs if unable to contract out of the regulated costs.

67. I do not accept this submission. Legal costs can be incurred; the question is whether the legal practitioner is entitled to be paid or recover the cost of those legal services.

68. Furthermore, s 8.3(4) provides an entitlement for an Australian legal practitioner to be be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits where payment of those legal costs is permitted by the Regulations or the DRS.

69. I am satisfied s 8.10(4) entitles the DRS to permit payment of legal costs other than as permitted by the Regulations and in excess of the maximum costs permitted by Schedule 1 of the Regulation but only if satisfied that the Claimant is under a legal disability or exceptional circumstances exist.

70. In my view s 8.10(4) evidences the intention of parliament to allow for the payment of legal costs as permitted by the Regulation or as permitted by the DRS if there are exceptional circumstances. In San v Rumble (No. 2) [2007] NSWCA 259 the Court of Appeal considered the term "exceptional case". Campbell JA stated at [67]:

in deciding whether it is an "exceptional case" within the meaning of s 153 (1), the court needs to find that the circumstances of the instant case are unusal  or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors.

71. In my view there were exceptional circumstances in this matter having regard to the complexity of the dispute. However, as I've already noted the Insurer concedes that there are exceptional circumstances in this matter.

Do I have the power to access costs?

72. The Insurer submits s 8.10 only empowers the DRS to permit payment of legal costs but not to assess costs.

73. Division 7.6 of the Act refers to claims assessment and Subdivision 2 of Division 7.6 refers to the assessment of claims for damages and includes s s7.37 which is relied upon by the Insurer to assert a Claims Assessor is not empowered to assess costs in a miscellaneous dispute but only when making an assessment and specifying damages.

74. Section 7.37(1) of the Act provides:

7.37 Claims assessor may assess costs

(1) In making an assessment and specifying damages in respect of a claim, a claims assessor may include in the assessment an assessment of the claimant's costs (including costs for legal services and fees for medico­ legal services) in the matter.

75. Subdivision 3 of Division 7.6 relates to miscellaneous claims assessments and includes s 7.42. The power of the DRS to assess a miscellaneous dispute is found ins 7.42 of Subdivision 3 of Division 7.6 of the Act.

76. Section 7.42 is in the following terms:

7.42 Assessment of miscellaneous disputes in connection with claims

(1) A dispute may be referred at any time to the Dispute Resolution Service by any party to the dispute for assessment under this Division.

(2) Subdivision 2 applies to the assessment of a dispute in the same way as it applies to the assessment of a claim for damages, subject to subsection (3) and such other modifications as may be prescribed by the regulations.

(3) An assessment of a dispute about a miscellaneous claims assessment matter relating to a claim for statutory benefits is binding on the parties to the dispute.

77. It is clear by virtue of s 7.42(2) that Subdivision 2 including s 7.37 also applies to the assessment of a dispute about a miscellaneous claims assessment and and in accordance with s 7.42(3) the assessment of the dispute where it relates to a claim for statutory benefits is binding on the parties to the dispute.

78. Accordingly, a claims assessor may include in the assessment of a dispute about a miscellaneous claims assessment matter relating to a claim for statutory benefits an assessment of costs.

The objects of the act

79. I am satisfied that my interpretation of s 8.10 is consistent with the objects of the Act "to encourage the early resolution of motor accident claims, and the quick, cost effective and just resolution of disputes."

80. I agree with the Claimant that to only allow for recovery of the regulated fee in "exceptional circumstances" would have the effect of denying claimants paid legal representation for statutory benefits disputes in anything but exceptional circumstances. Having regard to the resources available to the Insurer this would constitute a denial of procedural fairness and be inconsistent with the stated object of the Act to encourage the "just" resolution of disputes.

Costs and disbursements

81. I am satisfied thats 8.10 (4) entitles the DRS to permit payment of legal costs other than as permitted by the Regulations where exceptional circumstances exist and that as a claims assessor I have the power to include in this assessment an assesment of the Claimant's costs pursuant to sections 7.37 and 7.42 of the Act.

82. The Claimant submits I should engage in a quick and efficient broad assessment of a reasonable lump sum allowance of fees and to allow that sum, suggesting any other approach runs contrary to the intention of the Act. The Claimant notes the Insurer does not contend for any other approach.

83. The only contested item is the sum of $2,202.20 claimed as a disbursement owing to XXX XXXX Towing for storing the Claimant's motorcycle pending inspection by the Insurer and a determination of liability.

84. The Claimant points out the Insurer only recently instructed their investigators to inspect the two vehicles involved in the collision and that the Claimant appropriately paid a fee for the preservation of that evidence. The Claimant also submits that the Insurer's concession as to liability came shortly after their investigator inspected the two vehicles involved in the collision. For these reasons the Claimant submits this disbursement should be allowed.

85. I do not propose to allow this disbursement. If the Insurer had wished  to  safely secure the vehicles pending inspection they could have done so but there was no obligation on the Claimant to store his motor cycle for 286 days for inspection by the Insurer. There is no evidence before me to suggest that the inspection of the vehicle by the Insurer was persuasive in their concession as to liability.

86. The assessment of costs received from the Claimant includes a memorandum of fees due to Mr A Stone, Senior Counsel totalling $17,655.00 calculated at an hourly rate of $600.00 per hour. Mr Stone submits his retention in this dispute was appropriate where the claim raised novel and unconceded issues under the Act as to onus and costs and where extensive written submissions were required on both the liability and cost issues.

87. He also stated he was able to attend the interview and take witness statements in Milton/Ulladulla charging only for travel from Nowra and that other than the first teleconference the remaining four were conducted without the attendance of an instructing solicitor.

88. I agree it was appropriate to retain experienced counsel, in this case, senior counsel, having regard to the complexity of the factual dispute as to liability and the complex legal issues relating to both onus and costs.

89. No dispute has been raised by the Insurer as to the reasonableness of counsel's fees. However, I am not persuaded to allow his fees  in full where his instructing solicitors are also expert in this area of the law and could have competently undertaken a number of the tasks performed by senior counsel, including obtaining witness statements and drafting correspondence. I am also not convinced of the necessity for senior counsel to participate in each and every teleconference particularly where the Insurer was not represented by counsel. Adopting a broad approach, as proposed by the Claimant, I allow senior counsel's fees in the sum of $12,000.00 plus GST.

90. Carroll & O'Dea Lawyers have provided an assessment of their costs in the total sum of $13,177.20 plus GST for work performed by Mr Tim Concannon, Partner at a rate of $625.00 per hour and for work performed by Mr Philip Ferraro, Solicitor at a rate of $400.00 per hour.

91.On my quick calculation the assessment of their costs quantifies fees for work performed for a total of 22.6 hours.

92. I note the fee allowed for conferences connected with the assessment of a common law claim under the Act is the sum of $306.00 per hour.

93. I propose to allow 22.6 hours at an hourly rate of $306.00 per hour. I consider an appropriate amount for professional fees payable to Carrol O'Dea to be $6,915.60 plus GST.

94. I do not propose to allow the sum of $200.00 for photocopying.

95. I assess the Claimant's costs in the sum of $20,807.16.

Conclusion

96. For the purposes of section 3.11 the Insurer has conceded that the motor accident was not caused wholly or mostly by the fault of the Claimant.

97. For the purposes of section 3.28 or 3.36 the Insurer has conceded that the motor accident was not caused wholly or mostly by the fault of the Claimant.

98. Legal Costs: The amount of the Claimant's costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $20,807.16 inclusive of GST.

Susan McTegg
DRS Claims Assessor
Dispute Resolution Services