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AFI v AAI Limited trading as GIO [2019] NSWDRS CA 135

Overview

Jurisdiction: Miscellaneous Claims Assessment

Catchwords: Wholly or mostly at fault – motorcycle rider – contributory negligence – police records – statutory benefits – reliability of evidence – legal costs – exceptional circumstances – costs above the regulated fee –statutory interpretation – costs assessment – reasonable and necessary legal costs – power to assess costs

Legislation cited:

  • Civil Liability Act 2002 (NSW) s 5B
  • Motor Accident Injuries Act 2017 (NSW) ss 3.2 (2)(b), 3.11, 3.28, 7.28,7.36, 7.37, 7.42, 7.43, 8.3 (1) – (4), 8.10 (1) – (4), schedule 2(3)
  • Motor Accident Injuries Regulation 2017 cl 17, 22, 23
  • Motor Accident Guidelines effective 13 July 2018 cl 7.441

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

Parties:

  • AFI – 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 the certificate

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

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

ClaimantAFI
InsurerAAI Limited trading as GIO
Date of Accident20 May 2018
DRS Reference10072776
DRS Decision MakerClaims Assessor and Merit Reviewer Cassidy
Date of Decision24 July 2019
Conference date and time16 July 2019 at 10:00am
Conference venue and locationPort Macquarie Court House
Attendances for ClaimantMr Roger Firth solicitor - LHD Lawyers
Attendances for InsurerMr Tony Bowen barrister - intructed by Suncorp legal

The findings of this assessment are:

1. For the purposes of section 3.11 the motor accident was caused wholly by the fault of AFI.
2. For the purposes of section 3.28 the motor accident was caused wholly by the fault of AFI.
3. In accordance with s 8.3(4), s 8.10(3) and 8.10(4)(b) due to there being exceptional circumstances, I permit payment of the Claimant’s reasonable and necessary legal costs incurred by the claimant in connection with the dispute outside the regulated amount prescribed in the Motor Accident Injuries Regulation.

Belinda Cassidy
Claims Assessor and Merit Reviewer
Dispute Resolution Services

Introduction

1. AFI was riding his Ducati motorcycle on the Oxley Highway from Walcha towards Port Macquarie when, at the intersection of the Highway with Brackendale Road, he collided with a gold coloured Rav 4 vehicle driven by the Insured Driver. AFI’s partner was on the pillion seat behind AFI and both were injured in the collision.

2. AFI made a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act against  GIO on the basis that it is the ‘relevant insurer’ within the meaning of s 3.2(2)(b) and GIO has accepted the claim admitting it had a liability to pay AFI benefits for the first 26 weeks after the accident. However, GIO has denied liability to pay anything beyond that period.

3. In its liability notice dated 17 October 2018, GIO denied liability on the basis that AFI was mostly at fault for causing the accident and alleged contributory negligence of 75%. AFI asked the Insurer to review the decision and the result of that review was the Insurer affirmed its decision to deny liability but for different reasons. In a decision dated 5 December 2018, the GIO asserted that AFI was wholly at fault for causing the accident.

4. AFI applied to the Dispute Resolution Service for a determination of whether he was wholly or mostly at fault for causing this accident and the dispute has been allocated to me as a miscellaneous claims assessment matter under Schedule 2(3)(c) of the Act.

5. The matter has been listed for four tele-conferences (primarily due to the delay in the police responding to direction from me and in order for the Insurer to undertake investigations) and I determined at the last teleconference that an assessment conference was necessary so I could take evidence from the Claimant, his partner and the Insured Driver.

Background

6. The accident occurred in rural New South Wales a few kilometres out of the town of Walcha on the Oxley Highway which starts in far west New South Wales and progresses through Tamworth over the Great Dividing Range and down to Port Macquarie.

7. AFI submitted screenshots from google maps or google earth with markings upon then and I observed that these showed a slightly different intersection when compared to the photographs in the GIO’s investigator’s report. At the commencement of the assessment conference the parties were shown information from RMS and they agreed that the photographs taken by the Insurer’s investigator and the lane measurements in the investigator’s diagrams reflected the state of the road at the time of the accident.

8. Below is a copy of a screen shot of the area close to the accident scene. It depicts a rural locale with farming land, few dwellings and scattered trees. The Oxley Highway is depicted heading generally north-north-west to south-south-east with Brackendale Road creating a 90 degree t-intersection and heading toward the highway in a generally north-north-east direction.

9. The Claimant’s unchallenged evidence is that there is a two lane section of the highway permitting overtaking at the top of this photograph and that the end of this overtaking section occurs at the point where the road straightens up.

Screen shot of the area close to the accident scene

10. At the assessment conference, the parties agreed with the observations and measurements in the investigator’s report as follows:

a. The end of the overtaking lane to the Brackendale Road intersection was about 400m;

b. There was a yellow and black right hand turn sign about 150m before the intersection;

c. There was a truck turning bay or roadway to the left about 95 metres beyond the intersection;

d. Each lane of the Oxley Highway at or near the intersection was 3.5 metres wide (from the fog line to the lane markings in the middle of the road);

e. From the edge of the bitumen at or near the intersection to the fog line was a distance of about 2.5m; and

f. A Rav 4 motor vehicle is about 1.8 metres wide.

Review of evidence

Documents

11. The Claimant referred his dispute for determination with supporting documents and the Insurer lodged a reply form with further documents.

12. At the time of the first teleconference, the insurer had not investigated this accident other than to request the police report and obtain a signed accident report form from its insured.

13. After the first teleconference, I received additional documents as follows:

a. From the Insurer I have received:

i. an investigator’s report dated 4 March 2019 with photographs and diagrams of the intersection and a statement from the Insured Driver;

ii. a further report from the Insurer’s investigator dated 26 April 2019 with a statement from the attending police officer; and

iii. a copy of the application for personal injury benefits.

b. From the Claimant I have received:

i. submissions;

ii. a statement from AFI and his partner; and

iii. four photographs or screenshots of the roads and the intersections.

c. In answer to a direction issued in accordance with s 7.43 of the Act, the police produced their records. These included the report, statements and charge details but no extracts from any police notebooks.

AFI’s evidence

14. In his undated application for personal injury benefits, AFI described the accident this way:

The Rav 4 was slowed, almost stationary and positioned to the left of centre in the East bound lane of the Oxley Highway. As I have entered the left-hand bend on the Oxley Highway, the Rav 4 has turned right, through my path of travel and the collision ensued after impacting the driver’s side front quarter panel.

15. AFI said at the assessment conference that the police ‘interviewed him’ immediately after the accident while he was being treated by ambulance personnel. He said they asked him two questions, at what speed he was travelling before the collision (he said 100 – 110 kmph) and whether he had taken any drugs or consumed alcohol before the accident (he said no).

16. AFI explained that the police sent him a series of questions which he answered and which form his statement dated 4 June 2018. AFI and his partner gave evidence that, because of his injuries, AFI could not type and so his partner typed out the answers to the question for AFI.

17. Question 4 of that statement is exactly the same as the description of the accident in the claim form. The Claimant also confirms he was wearing a helmet (question 6) and that he was travelling at 100 – 110 kmph as he entered the left-hand bend before the intersection and that he braked and reduced his speed to 65-75 kmph at the time of the collision (question 7). In answer to a question (9) about what he thought caused the accident he said this:

Rav 4 position appeared to indicate exiting main road to driveway on the left. No lit brake lights or indicators were visible on the Rav 4, either through lack of us or low sun reflecting off rear of Rav 4. The length of time the Rav 4 was on the road in the vicinity of the intersection especially in addition to the lack of oncoming traffic was excessive. Failure of Rav 4 to check mirrors at intersection. Possible fatigue of Rav 4 driver.

18. AFI said he had his headlights on because they are hardwired into the bike (question 10) and that he had seen the Rav 4 before the accident (question 11). He further explained the accident at question 12:

The Rav 4 was spotted entereing the left-hand bend (intersection) once the motorcycle had entered the straight after the completion of the overtaking section of the highway. The Rav 4 then remained on the road with no visible brake lights or indicators for a significant period of time with no oncoming traffic to delay the Rav 4 from entering the highway. Rav 4 was positioned to the left of centre of the highway lane. Impact point on the Rav 4 was drivers front quarter panel.

19. In his statement to his solicitor dated 18 March 2019, AFI explained that he and his partner had ridden from Port MacQuarie to Walcha earlier in the day before filling up with petrol, having something to eat and returning the same day.

20. AFI said:

[10] I had spotted the Gold Rav 4 taking the left hand bend in front of me when I had entered the straight just after the over-taking section.

[11] Once I had entered the left hand bend I noticed the Rav 4 was stationary on the left hand side of the road as if it had pulled over. There was no oncoming traffic and no reason for the Rav 4 to have remained stationary for the period of time it did. There were no visible brake or indicator lights.

[12] I slowed down and went to pass on the right hand side to avoid hitting the rear of the Rav 4 as there was no room to pass on the left. As I maneuvered to avoid the Rav 4, the driver began turning right which went into my current path.

[14] I yelled the word ‘fuck’ and applied the brakes heavily in an attempt to avoid the collision. I was unsuccessful in preventing the collision and unfortunately my partner and I were thrown from my motorcycle as a result.

21. At the assessment conference, AFI gave evidence as follows:

a. His Ducati bike has a pillion seat that is a little bit higher than his seat, so AFI’s partner was sitting up a bit.

b. He had first noticed the Rav 4 driven by the Insured Driver in the town of Walcha and then again as they were driving out of town. She was ahead of him ‘and had quite a head start’. He saw her for the third time as he came to the end of the overtaking lane and took the turn before the straight strectch leading up to Brakcendale Road.

c. He was travelling at 100 – 110 kmph and accepted the speed limit was 100 kmph;

d. When he first saw the Insured Driver she was at the intersection. He could not tell if she was stationary, but he formed the opinion that she was and she was there for a long time.

e. He had powered down his bike to 5th gear after he rounded the bend into the straight as the Rav 4 had not moved from the intersection.

f. He was not aware of whether the straight stretch of road leading up to the intersection was uphill or downhill but felt it was flat. He continued on as the road straightened and saw the Rav 4 more accurately and it was to the left of the lane. He continued slowing his bike down before deciding to go around the vehicle.

g. He does not remember seeing the yellow and black right hand turn sign 150 metres before the intersection and he had not seen the green Brackendale Road sign at the intersection.

h. He could not remember the line markings on the road.

i. He had seen a house on the hill to the left and ahead of the intersection and had assumed there was a driveway to the left leading up to it and that is where the Insured Driver was heading.

j. He said the Insured Driver had her vehicle to the left of the lane. He marked on a photograph the four wheel prints of her car and the left two were depicted on the fog line. AFI said that the presence of the Insured Driver’s car to the left side of the road created an ‘ambiguity’ for him.

k. He said he did not notice her indicator or brake lights. He said that he could not say whether she had her indicators on or not because he did not notice them or the sun was shining on her car and he could not see them. He accepted that if the gradient of the road was a slight rise that would explain why he did not see her brake lights because she would not have needed them.

l. He said there was insufficient room to go around her on the left and so he made the decision to go around her on the right.

m. AFI said that as he went to go around her, the Insured Driver started to turn and he swore and then the collision occurred.

n. He said he was flung into the middle of the opposite lane, in the path of oncoming traffic. AFI’s partner landed on the opposite side of Brackendale Road and the bike was on the Walcha side of Brackendale Road. He said the Insured Driver’s vehicle was on the left hand side of the road heading towards Port MacQuarie on the left side of the road. He said he did not see the vehicle being moved.

22. In answer to questions posed by Mr Barton for GIO, AFI:

a. Accepted he could have been travelling over the speed limit;

b. Agreed that the higher the speed, the longer it took to stop;

c. Said when he first saw the Rav 4 he had a clear line of sight 400 m into the distance;

d. Agreed that he would have had the Rav 4 in his field of vision for about 15 seconds and that for 15 seconds he knew there was a vehicle ahead of him;

e. Conceded that he could not say whether the Rav 4 was stopped or not but that it looked to him like it was;

f. Said he thought it unlikely the Insured Driver was moving at 20kmph; and

g. Acknowledged that his bike has a horn but that he did not sound it at any time before the collision.

23. AFI agreed that he was heavily medicated at the time he gave his first statement to the police and at the time he gave the answers to the questions sent to him by the police he was still medicated. He denied that his memory of the accident had deteriorated with time.

24. AFI said that his evidence at the assessment conference (about powering down) was not a new invention but that no one had ever asked him about it before. He had told the police he braked heavily and slowed down. He said he was slowing down as he approached the intersection (because he had powered down) and that he applied the brake when the Rav 4 became a hazard for him, that is when it was turning.

25. He was cross examined about the point of impact and denied that the Rav 4 was two metres into the opposite lane. He was adamant that the point of impact was at the centre of the road. He said the plan drawn by the investigator based on the Insured Driver’s version of events was ‘wildly inaccurate’.

26. AFI agreed that the sequence of events was that he saw something, then yelled the f-word, then braked.

27. AFI agreed that one of the options when confronted by the Insured Driver in front of him was to ‘pull up’ but he said that was possible but counter-intuitive as that would have left him in a position of danger, exposed in the middle of the road in a 100kmph zone.

AFI’s partner’s evidence

28. AFI’s partner sent an email to AFI’s solicitor on 30 November 2018. She says in that email:

The weather was cold, and to keep as warm as possible I was tucked in behind AFI with my head resting on his back. Approximately 4 kilometres out of Walcha I was alerted to an issue on the road by AFI slowing and then yelling out the work ‘fuck’. This was followed by AFI braking heavily. When AFI yelled out I lifted my head from his back and looked over his shoulder. I saw a gold Toyota Rav 4 stopped on the highway. I could not see a blinker or tail lights, however the sun was low and reflecting on the rear of the vehicle. The car was positioned to the left of the lane and was either stopped or barely moving. The road is narrow and there was no room to pass the vehicle on the left. There was no oncoming traffic.

29. AFI’s partner also says in that email:

I was approached by a police officer shortly after exiting the ambulance at Walcha Hospital.
I was panicked and preoccupied with trying to call my children to notify them that I would not be home at the agreed time and organising alternative care arrangements for my youngest daughter who was 10 at the time.
When the police officer asked what happened in relation to the accident I responded that I did not remember much. That was the extent of the conversation that I had with the police officer in relation o the collision.

30. In her statement to the Claimant’s solicitor, AFI’s partner says:

[11] When we were approximately 4 kilometres outside of Walcha I recall hearing AFI suddenly yell the work ‘fuck’ and he applied the brakes very heavily.

[12] After hearing AFI I lifted my head from behind his back and looked over his shoulder to see what was happening.

[13] I saw a gold Rav 4 pulling out from the left hand side of the road. There were no visible indicators. The roadway was very narrow and AFI was unable to pass on the left hand side. The Rav 4 appeared to be pulling out from a stationary position, as it had been pulled over on the side of the road.

[14] There was no oncoming traffic that I could see.

[15] As AFI was not able to brake in time we collided with the front quarter panel of the Rav 4 which caused me to be ejected from the bike and I was thrown over AFI’s head.

31. AFI’s partner gave evidence at the assessment conference. She said her position on the pillion seat was a bit higher than AFI and that, while she was tucked in behind him before the collision when she looked up she had a good view over his shoulder. She said it was cold and before the collision she had been tucked in behind AFI. She had seen the Rav 4 in Walcha but had not see it since. She said she then became aware of it when she heard AFI scream the f-word and she felt the impact of sudden braking. She looked up and saw the Insured Driver’s vehicle on the side of the road and that it looked stopped or stationary. She remembers AFI changing through gears and then hitting the car.

32. AFI’s partner said the accident happened really quickly but that the Insured Driver’s vehicle was to the left and not moving.

33. I asked her if she saw indicators or brake lights and she said she did not notice them.

34. AFI’s partner said that after she came to following the accident the Rav 4 was past the intersection and on the left hand side of the road towards Walcha. She said AFI was yelling in pain and the driver of the Rav 4 was just sitting in her car. AFI’s partner said she yelled and yelled and eventually the driver got out of the car.

35. AFI’s partner was asked about the police record of her saying she did not remember the accident. She said she was just trying to get rid of the police because she was on the phone to her ex-husband and others trying to make arrangements for her three children who were in Port Macquarie.

36. AFI’s partner agreed with Mr Bowen that it all happened in a split second and that she was in shock with a head injury. AFI’s partner said she gets flash backs, has PTSD and that the accident is still very vivid for her.

37. It was put to her that she did not remember much because she did not see much but she said she was ‘pretty clear’ on what she saw.

38. She agreed that she had helped AFI type the answers to the police questions but she said they were his words not hers.

39. AFI’s partner said she could not say for sure that the Rav 4 was not moving when she saw it and agreed their motorbike was moving very quickly.

40. AFI’s partner was confident in saying that the point of impact was towards the centre line.

The insured driver’s evidence

41. In a ‘Greenslip accident report form’ completed by the Insured Driver on 22 August 2018, she describes the accident [question 9] as follows:

I was driving home from work, driving east along the Oxley Highway. I indicated and began to turn right onto Brackendale Road when I was hit by a motorbike.

42. In her answer to a question about the speed of the vehicles involved [question10] she said she was travelling at 20 kmph and that AFI’s vehicle ‘seemed to be very fast’.

43. In her answer to question 11 about who was to blame she said AFI ‘was overtaking at an unsafe time.’

44. The Insured Driver gave two statements to the police. In her first dated 23 May 2018 she says:

I was driving from work to home. I was turning right onto the Brackendale Road … off of the Oxley Highway and I saw this motorbike beside me on my right side and then there was a collision with the front of my car. Then the two people were lying on the road. The passenger was on the left side of the road and the rider was more in the middle.

45. When asked how fast she was travelling she said she did not actually remember but it would have been really slow because she was turning. She says she did not see the motorbike at any time before the collision and that he came from behind her.

46. In her second statement dted 26 June 2018 the Insured Driver says she put on her right indicator where the turn off sign is before Brackendale Road and that she was as close to the centre line as possible because she always turns in the gap between the white lines. She says she did not come to a complete stop because there were no cars coming towards her.

47. The Insured Driver also says that the impact with the motor bike caused her car to straighten up and she finished up ‘facing east on the Oxley Highway close to the centreline’.

48. In her first statement to the Insurer’s investigator dated 22 February 2019, she said:

[8] As I came up towards Brackendale Road travelling generally east on the Oxley Highway I had put my right indicator on well prior to commencing my right turn in Brackendale Road. It is a rural area and there are no houses in the vicinity.

[9] There was no other traffic on the Oxley Highway coming towards me and I looked in the inside and outside rear view mirrors and did not see anything coming up behind me.

[10] I had slowed right down to make the right turn and I would not have been doing any more than 20 km/h. I started to make the right turn and the front of my Rav 4 was about halfway accros the other lane when the motor cycle hit the front driver’s quarter panel of my car. I had not seen him coming up from behind and did not see him until he hit me and I had no time to try to avoid the accident.

49. The Insured Driver says she has lived in the area for 40 years and travels the Oxley Highway and negotiates the Brackendale Road intersection every work day. She describes the road in paragraph 22 as follows:

The road surface is bitumen in good smooth condition. The road when you are travelling east has an uphill grade and there is an overtaking lane for east bound traffic which cuts out just before the Brackendale Road intersection. The road then has a left hand bend and there is one unbroken line on the side for east bound traffic and a gap at Brackendale Road where you turn and the road has to one lane for traffic in either direction. There are not any traffic lights and I can’t tell you what signs are nearby. The speed limit is 100km/h.

50. She says that she had left work before the accident and that she was not tired and had not had any alcohol [14] and that she had both hands on the steering wheel, was not using her mobile phone or tuning the radio and had no other distractions.

51. In her second statement to investigators dated 15 April 2019, The Insured Driver further explains that there is an uphill grade before the intersection and double white lines after the intersection. She says in paragraph 9:

As I came up the hill on the Oxley Highway towards Brackendale Road I had put my right indicator on well prior to commencing my right turn into Brackendale Road. I would have put my indicator on when I came to the sign that shows there is a road to the right and that is where I always put my right indicator on. That sign would be about one hunded and fifty metres north of Brackendale Road.

52. The Insured Driver says:

There was no other traffic coming towards me and I looked in the inside and outside rear view mirrors and did not see anything coming up behind me. I would have looked in both mirrors probably two or three times before I got near to the intersection and I did not see anything coming up behind me. If he was coming up behind and had his healight on, I would think I would have noticed him.

53. She says at [11] that she slowed down and denies stopping before turning and was not there for an ‘excessive’ period of time. She says she would not have had to use her brakes to slow down because it had slowed down.

54. The Insured Driver maintains at [13] that she did not see the motorcycle before it hit her and that she was half-way across the other lane when the impact occurred. She further says:

Before I started to make the turn, I would have been in my lane and the driver’s side of my Rav 4 would have been near the centre line and I was not over to the left side of the road. There is a fog line and about two metres of bitumen from the fog line to the left edge of the road and he could have gone around the back of me. He was over the unbroken white centre line when he was overtaking and then there are double white lines after the intersection.

55. Although the Insured Driver had been required to give evidence at the assessment conference, she did not attend however, after being persuaded that there were no repercussions to her arising from the hearing, she gave evidence from Walcha over the telephone.

56. The Insured Driver said in her oral evidence that she turned her indicator on when she got to the right hand turn sign 150m before Brackendale road, that she slowed down, checked her rear view mirror, looked ahead, slowed right down and started to turn.

57. She did say she thought she may have turned the steering wheel to the left as a defensive reaction to the impact of the collision. She said the motorbike landed in Brackendale Road in the middle, AFI was on the right and AFI’s partner was on the left. She said she was shocked and stopped as soon as she could on Oxley Highway towards the middle of the road but that she later moved her car to the side of the road because someone said she should to prevenet any further accidents.

58. I asked the Insured Driver how well she recalled the day of the accident and her actions. She said she remembered putting her indicator on and was sure she had it on. She said she remembered looking in the rear view and side mirrors. She was adamant that at no stage did she stop. She said she slowed down more to the right on her side of the road.

59. The Insured Driver said she had not read any of her statements before giving her evidence and when she gave her statements to the Insurer’s investigator she was doing so from memory without access to her police statements.

60. In answer to Mr Firth’s questions she said she remembered talking to the police but did not remember what she said. Mr Firth asked her why she did not mention having her indicators on at the time she gave her first statement to the police and she said she just answered the policeman’s questions and he never asked her about her indicators.

61. I asked the Insured Driver whether she put her indicator on and she said at first ‘I am sure I would have ..’ And when I asked her if she was certain she said ‘yes I am certain I put my indicator on’.

Police evidence

62. Senior Constable Michael McDonnell attended the scene of the accident and, as part of his report, drew the sketch below. This shows the intersection of the Highway with Brackendale Road, the two vehicles and the direction of travel with the motor cycle on the incorrect side of the road and the point of impact just over the centre line.

Sketch by Senior Constable Michael McDonnell of the scene of the accident

63. The police officer says [at line 139] that there is a driveway 100 metres further up the Highway away from Walcha. He also agrees with the investigator [at line 150] that it is a straight road at the intersection. At [209] the police officer says he did not observe any skid marks and confirmed that all vehicles had been moved. He was asked whether he determined a point of impact and he said:

The point of impact, given the Insured Driver’s version and when I briefly spoke to her at the scene, was right on where the intersection is on the – and this is based on her version – around the centre line.

64. He agreed it was possible that AFI was on the incorrect side of the road.

65. The police issued AFI with an infringement notice for overtaking a vehicle that was turning and AFI paid the fine. He said at the assessment conference he wanted to fight it but he said he could not afford a lawyer, was in pain and having surgery and other treatment and it was easier to just pay the fine.

Legislative background

66. The Claimant has made a claim for statutory benefits under Part 3 of the Act. The Claimant having satisfied the Insurer that he was injured in a motor vehicle accident, in New South Wales, on or after 1 December 2017, has been in receipt of treatment and income support benefits. I expressed the view at the assessment conference, and received no submissions to the contrary, that therefore the burden of proving he should no longer be entitled to those benefits falls to the Insurer.

67. Section 3.11 and 3.28 say that an Insurer can effectively terminate an injured person’s statutory benefits if:

a. The Claimant’s only injuries are minor injuries;

b. The Claimant was wholly at fault; or

c. The Insured was at fault but the Claimant is guilty of contributory negligence and the contributory negligence is assessed at greater than 61%.

68. There is no issue about the Claimant’s injuries. He sustained a number of fractures (requiring on-going treatment including further surgery) and clearly has non-minor injuries.

69. GIO’s original liability notice alleged the claimant was mostly at fault and that his contributory negligence was 75%. This would appear to imply an admission of primary negligence or fault on the part of the Insured Driver for causing the accident because you cannot have contributory negligence without primary negligence (other than in a no-fault or blameless accident).

70. The internal review decision withdrew that implied admission of fault and determined that AFI was wholly at fault for causing his accident.

71. The parties proceeded before me at the assessment conference on the basis that the Insurer was alleging the Claimant was wholly at fault however both Mr Bowen for the Insurer and Mr Firth for the Claimant argued in the alternative that if I was satisfied the Insured Driver had breached her duty of care to the Claimant, was primarily negligent or was at fault, that AFI was guilty of contributory negligence. Mr Bowen for the Insurer said AFI’s contributoyr negligence, if there was any should be assessed at 75 – 80%. Mr Firth said it should be assessed at 25%.

Matters in issue

72. The following matters are in issue:

a. The reliability of the evidence of AFI, AFI’s partner and The Insured Driver;

b. Whether AFI was wholly at fault or; in the alternative,

c. Whether AFI was contributorily negligence and if so by what degree.

Reliability of the witnesses’ evidence

73. The Insurer challenged the evidence of AFI’s partner primarily on the basis that her evidence was tainted by her partner’s evidence. She had not given a statement to the police at the time of the accident, telling them she did not recall the accident. Her statements to her solicitor after that use similar words to those used by AFI and she conceded that she typed out her partner’s answers to the police officer’s questions.

74. Her evidence at the assessment conference that she heard AFI swear then looked up and saw the Rav 4 on the side of the road contradicts AFI’s evidence because he said he saw the Rav 4 starting to turn, then he swore and then he braked. In my view there would have been no reason for AFI to swear unless the Rav 4 had already started to turn so AFI’s partner could not have seen the Rav 4 on the side of the road.

75. I therefore have doubts as to the reliability of AFI’s partner’s evidence in relation to how this accident occurred noting she conceded the accident all happened very fast.

76. The Claimant challenged the evidence of the Insured Driver. Mr Firth submitted it was implausible that her (much heavier) vehicle was moved by the impact with the (much lighter) motorbike. The Insured Driver’s evidence as to the location of the impact between the two vehicles was also challenged on the basis that both AFI and AFI’s partner placed the point of impact on the centre line and not two metres into the oncoming lane as the Insured Driver said. Again I have not been assisted by any expert evidence as to the point of impact and the police officer’s statement and his hand drawn diagram is based solely on the evidence of the Insured Driver.

77. The evidence from the Insured Driver as to where AFI and AFI’s partner ended up after the collision is somewhat at odds with AFI’s partner and AFI. But it is the evidence from the Insured Driver as to her looking in her rear view mirrors that causes me to doubt her evidence. She says in her second statement to the investigator that she ‘would have’ looked in her mirrors. She herself raises doubts as to whether she did or not because she says she did not see AFI and would have expected to do so if he was coming up behind her which he quite clearly was. I gained the impression from hearing the Insured Driver that she was reconstructing or recreating what she did rather than having a true recollection of what she actually did.

78. The reliability of AFI’s evidence was challenged by the Insurer on the basis that his version of events had changed over time. His statement to the police for example mentioned he could not see the indicators possibly due to the sun although this detail was omitted from the statement taken by his solicitors. I gained the impression AFI was doing his best to tell the truth as he recalled it. He conceded a number of things during the course of his evidence to his determinant. For example he agreed he may have been speeding and he said he could not say the Insured Driver did not use her indicators because he did not notice them.

79. I accept AFI’s evidence about what he saw and what he did leading up to the collision and I prefer his evidence and AFI’s partner’s evidence as to the location of the impact and the location of the vehicles and bodies after the accident.

My Findings

80. Where was the Insured Driver’s vehicle? The Insured Driver said she was to the right of her lane. AFI says she was to the left. Earlier in these reasons I have not accepted AFI’s partner’s evidence on the basis I do not think she would have seen where the Insured Driver started from because she only looked up after AFI swore and commenced braking which was, on his evidence, after the Insured Driver had started turning.

81. I prefer AFI’s evidence to that of the Insured Driver’s as he was in the best place to observe where she was in the road because he was behind her vehicle with the whole width of the road in his sights. AFI was there at the assessment conference and the Insured Driver was not. AFI clearly marked on the photograph the location of the vehicle. I accept his evidence that she was to the left hand side of the 3.5 metres of lane but not off the road and not over the fog line.

82. Did the Insured Driver have her indicators activated? The Insured Driver said she did and AFI said he could not say that she did not. While I have some doubts about the Insured Driver’s evidence, I do accept that she did have her indicators activated at the intersection of Brackendale Road.

83. Did the Insured Driver stop before turning right into Brackendale Road? The Insured Driver lived down Brackendale Road and has done so for 40 years and she was on her way home from work. The Insured Driver, AFI and AFI’s partner all agree there was no oncoming traffic and therefore there would have been no need for the Insured Driver to stop and therefore I am not satisfied she did stop. There is no expert evidence about this, but the Insured Driver said she slowed down in the straight leading up to the intersection because there is a slight uphill gradient. AFI on the other hand was travelling at 100 – 110 kmph. To him, it may have looked like The Insured Driver was stopped or stationary and he conceded as much saying that he gained the impression she had stopped. On the basis of the Insured Driver’s evidence and AFI’s concession I am satisfied the Insured Driver did not stop but had slowed down leading up to the intersection.

84. Did the Insured Driver check her mirrors before turning right? The Insured Driver said in her second statement to the investigators that she checked her mirrors two or three times and never at any stage saw AFI. If AFI had seen the Insured Driver for 400 or so metres then the Insured Driver would have been able to see him in her mirrors if she had looked for him particularly as his headlight was on. Therefore I do not accept that the Insured Driver did check her mirrors before turning into Brackendale Road for the simple reason that she did not see AFI at any stage.

85. Was AFI keeping a proper lookout? In my view AFI was not keeping a proper lookout for the following reasons:

a. He had seen the Insured Driver’s vehicle as he left Walcha and knew she was ahead of him, and he said she was in his view for 400 metres before the intersection which he said was somewhere in the order of 16 seconds;

b. He did not notice the Insured Driver’s indicators;

c. He did not see the right hand turn sign indicating the turn off was approaching 150m before the intersection;

d. He did not see the Brackendale Road sign before the intersection;

e. He did not observe the lane markings on the Oxley Highway.

Was AFI wholly at fault?

86. How does the Insurer satisfy me that the Claimant is wholly at fault? In my view, in a case involving only two vehicles, GIO would satisfy me that the Claimant was wholly at fault if it can satify me that the Insured Driver did not breach her duty of care to the Claimant, that is GIO satisfies me that the Insured Driver was not negligent or not at fault at all. With two vehicles and no other factors at play, one of the drivers must be at fault and the other not-at-fault in causing the accident.

87. The Claimant submits that the Insured Driver, by having her vehicle to the left side of the roadway created an ‘ambiguity’ about what she was going to do next and that she should have taken precautions before turning right into Brackendale Road. Because I have earlier found that the Insured Driver had activated her indicators, presumably that precaution would have been to check first for the presence of the Claimant’s vehicle before turning. I have found that the Insured Driver did not check her mirrors before turning.

88. Under s 5B of the Civil Liability Act, the Insured Driver is not negligent for failing to take a precaution against a risk of harm (to AFI) unless that risk was foreseeable, not insignificant and a reasonable person in the position of the Insured Driver would have taken those precauations.

89. Having found that she was slowing down but not stopped, to the left of the roadway (but not off the roadway or over the fog line), with her indicators activated, at an intersection which was clearly marked and warning of which was given 150m before hand, and where there was a solid white line indicating that no overtaking should occur, I do not find that she had breached her duty of care to the Claimant by failing to check her mirrors for the presence of AFI before turning. She was not, in my view, negligent or at fault in causing this accident.

90. In my view, AFI was wholly at fault for causing his accident due to the speed at which he was travelling, his failure to keep a proper lookout (in particular his failure to notice the signs warning of the approach of Brackendale Road) and, on his evidence, having observed the presence of the Insured Driver on the roadway for at least 16 seconds not slowing down as he approached the intersection. While he says her presence on the roadway created in his mind an ambiguity, had he been keeping a proper lookout he would have seen the warning sign of the approach of the intersection and the intersection sign itself which would have eliminated or reduced the ambiguity. A reasonable person, having kept a proper lookout and noticing the upcoming intersection, would have anticipated the possibility of someone turning right at that intersection and not taken the step of overtaking or passing a vehicle in that location.

91. A driver of a motor vehicle should be travelling at a sufficiently safe distance behind another vehicle in order to avoid colliding with it should something untoward happen and in my view a reasonable person in the position of the Claimant having had the Insured Driver in his sights for some time would have slowed his motor bike down as he approached the intersection. Had there been traffic coming in the opposite direction, AFI would have had to have stopped to let the Insured Driver turn.

92. AFI’s decision to go around the Insured Driver’s car to the right when there was 2 – 2.5 metres on the left hand side (from the edge of the bitumen to the fog line) where he could have gone around her is also important. He he been driving with sufficient regard to the vehicle in front he would have slowed down approaching the intersection and been in a better position to navigate a manoeuvre to the left hand side of the Insured Driver’s car.

93. If I am wrong and the Insured Driver was stationary at the intersection without her blinkers activated and turned right without looking in her rear view mirrors I would have found her negligent but I would also have found a significant level of contributory negligence on the part of AFI (beyond 61%) in circumstances where he had noticed her for 16 seconds, but had not noticed the upcoming intersection and did not entertain the possibility the Insured Driver was going to turn right. In my view he should have slowed down further when he says he first saw her in order to give himself sufficient time to resolve the ambiguity in his mind. Finally there is of course the failure of AFI to activate his horn to alert the Insured Driver to his presence. If he had been travelling at a speed sufficient to enable him to pull up or slow down he could have used his horn to prompt the Insured Driver to turn right, if she was statationary or warn her of his presence thereby preventing her from turning.

94. Having found AFI wholly at fault for causing this accident, it therefore follows that AFI is not entitled to statutory benefits beyoned the first 26 weeks.

Costs and disbursements

The Claimant’s entitlement to costs generally – section 8.3 and s 8.10

95. There are two types of claim permissable under the Motor Accident Injuries Act, claims for statutory benefits under Part 3 and claims for common law damages under Part 4. While the entitlement to those two types of claims and the amounts of benefits and compensation available for those two types of claims are separated into two distinct and separate parts of the Act, there are other parts of the Act that contain provisions relevant to both types of claim. Part 8 of the Act is one of those and covers ‘costs and fees’ although there are matters relating to costs in other parts of the Act (for example s 7.28 provides for costs of medical assessment and s 7.37 empowers claims assessors to assess costs).

96. The Motor Accident Injuries Regulation (MAI Regulation) provides many clauses relevant to the assessment of costs in both claims for statutory benefits and claims for common law damages. Both the Act and the Regulation have to be carefully considered together.

97. AFI seeks the recovery of costs incurred by his solicitor in relation to this dispute. GIO accepts he is entitled to some costs but not to the full extent of the claim made by Mr Firth.

Section 8.3

98. Section 8.3 is headed ‘Regulations fixing maximum costs etc recoverable by Australian legal  practitioners’. It appears to  cover both  claims  for  statutory benefits  (because  s 8.3(4) clearly mentions statutory benefits) and claims for common law damages (because s 8.3(2) permits the fixing of maximum costs by reference to the amount of damages recovered by a claimant).

99. Section 8.3(3) provides that an Australian lawyer is not entitled to be paid or recover:

a. an amount that exceeds any maximum amount fixed by the regulations under section s 8.3(3); and

b. any amount if the regulations declare that no costs are payable.

100. Clause 22 of the Regulation is headed ‘fixing maximum costs recoverable by legal (sections 8.3 and 8.10)’ and refers to Schedule 1 which provides at ‘3 Miscellaneous claims assessments’ 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 regulated miscellaneous claims assessment matter’ the sum of ’16 monetary units (to a maximum of 60 monetary units per claim) currently the sum of $1,633 (and $6,124).

101. Clause 23 of the Regulation provides that no costs are payable for legal services provided to a claimant or an insurer in connection with an application for internal review and the heading of s 23 clearly refers to section 8.3(1)(c) and not s 8.10(2).

102. Section 8.3(4) of the Act provides that an Australian lawyer is not entitled to be paid or recover legal costs for any legal service provided in a claim for statutory benefits unless the regulation or the Dispute Resolution Service (DRS) permits it.

103. The Insurer argues in further submissions dated 23 July 2019 that s 8.3(3) and cl 22 exhibit a clear statutory intention that AFI cannot recover costs beyond the sum of $1,633 permitted by the regulation.

Section 8.10

104. Section 8.10 of the Act is entitled ‘Recovery of costs and expenses in relation to claims for statutory benefits’.

105. Section 8.10(1) provides that a claimant is entitled to recover from the insurer the reasonable and necessary legal costs and other costs and expenses incurred in connection with the claim (and not just the dispute that has arisen in the claim). There is no equivalent of this sub-section in s 8.3 or elsewhere in the Act for common law damages claims because costs, while separate from damages, are a common law right and do not need to be legislated (although the amount of those costs can be, and has been regulated).

106. Section 8.10(1) does not cross-reference s 83 and in fact says that the entitlement to recover costs in a statutory benefits claim is ‘subject to this section’. This sub-section also refers to ‘the insurer against whom the claim is made’ and makes no reference to the ‘relevant insurer’ as determined under s 3.2 or 3.3 and which pays the statutory benefits.

107. Section 8.10(2) permits the MAI Regulation to fix the maximum amount that can be recovered by a claimant ‘including any matters for which no costs and expenses are recoverable from the insurer’. This appears to be a duplication of s 8.3(1)(c) which might suggest the original intention of s 8.3(1) was directed to regulating the costs of common law claims only.

108. Section 8.10(3) echoes 8.3(4) and states that the Claimant is only entitled to recover his reasonable and necessary legal costs if payment is permitted by the Regulation or if payment is permitted by the Dispute Resolution Service.

109. Section 8.10(4) says that the DRS can only permit payment of legal costs incurred by AFI if he is under a legal disability (not relevant) or if exceptional circumstances exist to justify the payment of legal costs.

110. Section 8.10(5) provides that an insurer cannot recover costs from a claimant.

What costs are claimed?

111. The Insurer has submitted (by email dated 19 July 2019) that I should allow the regulated amount of $1,600 for plus GST. I note that amount was the maximum amount when the regulations were first tabled but that since then the amount has been indexed and increased to the sum of $1,633.00.

112. The Claimant makes a claim that there are ‘exceptional circumstances’ in this matter warranting me permitting the recovery of costs outside the regulations for the following reasons:

a. The liability issue was significant as were the ramifications of it;

b. The Insurer committed significant resources including retaining Counsel to appear at the assessment conference;

c. The assessment conference was delayed due to the non-attendance by the insured;

d. The Claimant attended from the Northern Territory;

e. There were four preliminary conferences;

f. The Claimant attended his solicitor’s office for conferences three times, twice with his partnter;

g. Eighty-three six minute units were expended in conferences (498 minutes in total or 8.3 hours by my reckoning);

h. The insured driver provided four statements and the insurer obtained two factual reports;

i. There were 49 emails between the parties and 362 pages of printing and photocopying for the Claimant.

113. In submissions dated 23 July 2019, (from Dallas Campbell Manager, Legal Injury NSW at Suncorp) the Insurer:

a. Refers to s 8.3(3) but does not refer at all to s 8.3(4);

b. Says that AFI’s costs should not exceed the regulated maximum [para 5];

c. Argues that s 8.10 does not operate to empower a claims assessor to award costs beyond the regulated costs but only empowers a claims assessor to award costs ‘permitted and regulated by the regulations in certain circumstances’ [paras 6 - 7].

d. Submits that s 8.10 permits a claims assessor to award costs but only if ‘costs are permitted by the regulations and [my emphasis] there are exceptional circumstances that justify payment of legal costs’ and the insurer gives examples of some of these [para 8];

e. Submits that s 8.10 only empowers a claims assessor to allow costs permitted and fixed by the regulations and does not empower a claims assessor to permit costs outside the regulations [para 10].

114. The Insurer also argues that Schedule 2(1)(aa) identifies as a merit review matter ‘whether for the purposes of s 8.10 (Recovery of costs and expenses in relation to claims for statutory benefits) the costs and expenses incurred by the claimant are reasonable and necessary’. This seems to be an argument that as a claims assessor I do not have power to permit costs under s 8.10.

Do I have power to assess costs?

115. Division 7.6 is headed Claims Assessment and this division includes subdivision 2 relevant to the assessment of claims for damages and subdivision 3 which relates to miscellaneous claims assessments.

116. Section 7.42 (in subdivision 3) applies the provisions of subdivision 2 subject to s 7.42(3) and any modificiations in the Regulation. Clause 17 of the Regulation modifies other provisions but does not modify s 7.37 and therefore as a Claims Assessor with the power to assess costs under s 7.37 it would appear I have power to assess costs in relation to AFI’s dispute with GIO and must do so in accordance with the provisions of the Act and the Regulation.

117. In any event, I hold an appointment as both a Claims Assessor and Merit Reviewer which would therefore also empower me to determine whether the Claimant is permitted to recover costs in connection with his claim under the Act and the Regulation beyond the costs of the dispute.

Is the claimant entitled to the cost of legal representation if he is not successful?

118. Ordinarily in a matter determined by the Courts, costs would follow the event and an unsuccessful claimant would not obtain an order for costs and might even be ordered to pay the successful party’s costs. In the light of s 8.10(5) the latter is not an available option in a statutory benefits claim.

119. However, AFI is not in court. He is seeking to pursue his claim for statutory benefits under a highly regulated scheme. There is nothing in the Regulation that says the Claimant is only able to recover costs if he is successful.

120. Section 8.10(2) enables the Regulation to specify when costs and expenses are not recoverable. Clause 23 of the Regulation specifies that no costs are payable for legal services provided to a claimant in connection with an internal review. There is nothing in the Regulation that says the Claimant is not able to recover costs if he is unsuccessful.

121. In my view, in the light of the Insurer’s original decision (which included an implied admission of breach of duty of care), its change of reason for denying liability and the absence of any real investigation by the Insurer about this accident before the first teleconference in this matter, it was reasonable for the Claimant to refer his dispute to DRS for determination. It was also necessary for him to refer the dispute to DRS because he had non-minor injuries and required treatment and surgery beyond the 26 weeks after the accident for which he sought payment. Had he been successful, he would have had those statutory benefits restored.

122. In an email communication to me sent from the Insurer’s Counsel on 19 July 2019, the Insurer’s representative concedes AFI has an entitlement to costs regardless of the outcome of the dispute. In those circumstances I am of the view that the Claimant should be entitled to the costs of the dispute that is before me.

What costs is AFI entitled to?

123. When I consider s 8.3 (without reference to s 8.10) this would suggest AFI’s legal representative:

a. Cannot recover an amount that exceeds any maximum fixed under s 8.3(3); and

b. Cannot recover for any work where the regulations say payment for that work is not permitted; and

c. Is entitled to be paid and recover costs in connection with the statutory benefits claim if payment is permitted in the regulation or payment is permitted by DRS.

124. When I read the whole of section 8.10 (without considering s 8.3) it appears to me that AFI:

a. is entitled to recover his reasonable and necessary costs from the insurer,

b. in connection with the claim (and not just the dispute arising out of the claim),

c. if payment of those costs is permitted by the regulations or permitted by the DRS because the Claimant is a minor or exceptional circumstances justify it.

125. The Regulation specifies in relation to a claim for statutory benefits:

a. Clause 23 – no costs for internal review

b. Clause 22 (and schedule 1) – maximum costs for a regulated miscellaneous claims assessment matter is set at $1,633

c. Clause 22 (and schedule 1) – maximum costs for representation at an assessment conference held under and in accordance with s 7.46 in the sum of $3,062 plus $306 for the third hour

126. The Insurer’s submissions of 23 July 2019 are deficient due to their failure to refer to s 8.3(4) and their non-engagement with the overlap between s 8.3 and s 8.10. I have received no submissions from the Claimant to assist me.

127. The Insurer’s submissions are also deficient because they assert the DRS can only permit payment of costs are permitted in the regulation and there are exceptional circumstances.

128. The Insurer’s submissions address the issue of the loading (not permitted in a clam for statutory damages because loadings are permitted only in Part 2 of Schedule 1 as an ‘Additional costs for claims for damages’) but do not address the issue of the assessment conference. A Claims Assessor can conduct proceedings in accordance with s 7.46 including holding telephone conferences (see s 7.46(1)) or a ‘formal hearing’ (see 7.46(6)) and under s 7.46(2) a party to proceedings is entitled to be represented by a legal practitioner. Section 7.46 is in subdivision 4 of division 7 and applies to both claims for statutory benefits and claims for common law damages. I acknowledge that it is not entirely clear whether the costs of an assessment conference formal hearing can be claimed in a statutory benefits claim and legislative clarification of this would be desirable.

129. There is no prescribed regulated fee if a lawyer assists a person to make a statutory benefits claim, for answering insurer correspondence or queries in connection with that claim, for providing information and documentation about the claim, for advising a client in relation to an original liability decision, for conferring with a claimant and taking a statement and so on.

130. The Motor Accident Injuries Act is complicated. Disputes in relation to it are governed by the legislation and the common law. Navigating the Act and its entitlements requires skills in statutory interpretation and an understanding of how the Act, the Regulation and the Guidelines work together. It is not uncommon, in my limited experience with this legislation for someone to seek assistance from a lawyer. The Insurer in this matter has also required the assistance of a lawyer.

131. When I read s 8.3 as a whole with s 8.10, the provisions relevant to dispute resolution in this Act and the Regulation I am of the view that I should interpret those sections as follows:

a. The Claimant is entitled to be paid and recover costs in connection with the statutory benefits claim if payment is permitted in the regulation or if payment is not permitted in the regulation and payment is permitted by DRS;

b. Payment of costs not permitted by the regulation can be permitted by DRS if the claimant is a minor or exceptional circumstances exist to justify payment;

c. Payment of the Claimant’s reasonable and necessary legal costs not permitted by the regulation but permitted by DRS (because of exceptional circumstances) includes costs that fall outside the permitted and regulated fee because in my view the regulated fee of $1,633 is fixed specifically by s 8.10(2).

Are exceptional circumstances justified?

132. The Insurer had submitted (via an email sent from the Insurer’s Counsel) that the Claimant is not entitled to costs ‘on the grounds of exceptional circumstances’ because:

a. In the insurer’s opinion, this was not a significant liability dispute and the matter could have been decided on the papers;

b. Taking evidence from three witnesses was not necessary as all three had provided written statements and the matter could have been determined on the papers;

c. The matter was heard in Port Macquarie, the Claimant lives in Port Macquarie, his solicitor works in Port Macquarie and there was no need for anyone to travel.

133. The decision to hold a hearing in Port Macquarie and take evidence from the Claimant, his witness and GIO’s insured was mine as the Claims Assessor charged with affording a process to both parties that is just and fair noting the significant impact of my decision on the parties (a lifetime of care and assistance to the Claimant for his accident-related injuries paid for by the Insurer).

134. The Court of Appeal in the case of San v Rumble (No 2) [2007] NSWCA 259 had to consider the term ‘exceptional circumstances’ in the context of whether indemnity costs could be claimed under s 151(2) of the Motor Accidents Compensation Act. During the course of the judgment Campbell JA said:

[67] In deciding whether it is an “exceptional case” within the meaning of section 153(1), the court needs to find that the circumstances of the instant case are unusual or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors.

135. In most cases a liability decision could be determined on the papers (and I have assessed about a dozen on that basis) but in this case itI could not bearing in mind the circumstances of this claim and the particular factual matters in dispute. I also note the Insurer did not object to there being a hearing at the time the matter was set down. In my view the assessment conference was necessary to evaluate the evidence of the witnesses noting that there were issues as to the reliability of the evidence of all parties due to their opposed statements as to the location of the Insured Driver’s vehicle on the roadway and whether it was stopped or not. It was also necessary to hold an assessment conference because of the absence of my ability to conduct a view of the area and without there being any expert evidence as to speeds, stopping distances and other bio- mechanical factors.

136. In a common law claim under the Motor Accident Injuries Act, the regulation allows a fee for conferences connected with the assessment of that claim in the sum of $306 per hour. If that is the Parliament’s view of a reasonable hourly rate a solicitor can charge then in terms of the conferences that were held with the witnesses and Mr Firth this suggests costs of about $2,540. I note that the assessment conference hearing in Port Macquarie took place over the course of three hours and there were four, 30 minute teleconferences before that which suggests a further five hours or $1,530. Without even considering the email exchanges and written communication between the parties, the cost of this dispute has involved over $4,000 in costs for which the Claimant’s solicitor can only receive the regulated fee of $1,633 (if the cost of the assessment conference is not recoverable in a statutory benefits claim). This discrepancy in my view is significant.

137. There were also costs to the Claimant not caused by anything he did or was responsible for, for example at least two of the teleconferences were required due to the failure of the police to respond in a timely fashion to the s 7.43 direction issued by me and the failure of the Insured Driver to attend the assessment conference caused a delay of about an hour in the assessment proceeding.

138. In my view the particular facts and circumstances of this claim are unusual and out of the ordinary and for that reason I permit the payment of the Claimant’s reasonable and necessary legal costs in connection with the dispute beyond the regulated fee permitted under the regulation. I should make it clear that I am not permitting the recovery of costs associated with any legal work undertaken in making the claim or pursuing the internal review but only those reasonable and necessary costs in connection with the dispute about whether AFI was wholly or mostly at fault in causing his accident.

139. If I am wrong in my interpretation of s 8.3 and s 8.10 and I am not permitted to award costs outside the regulated fees then I would have permitted the regulated fee for the dispute ($1,633) and the regulated fee for the assessment conference held in connection with the dispute ($3,062) plus an additional hour caused by GIO’s insured failure to attend the assessment conference ($306).

Conclusion

140. I have found that AFI was wholly at fault for causing his accident and therefore his application to DRS has failed. However I have found that in the particular facts and circumstances of his claim against GIO, he should be permitted to recover the reasonable and necessary legal costs incurred by him in respect of the dispute beyond those permitted in the Motor Accident Regulation.

Belinda Cassidy
Claims Assessor and Merit Reviewer
Dispute Resolution Service