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AFM v GIO General Limited [2019] NSWDRS CA 139

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsWholly or mostly at fault – motorcycle – head injuries – brain trauma – no memory of accident – police material – expert opinions – contributory negligence – narrow road – inexperienced and untrained motorcyclist – exceptional circumstances – skid marks – failure to wear helmet or protective clothing – maximum legal costs
Legislation citedMotor Accidents Injury Act (NSW) ss 3.11, 3.28, 3.36, 3.38, 7.36(4) & (5), 8.3(4), 8.10(4)(b), Schedule 1 part 1 section 3(1)
Motor Accident Injuries Regulation 2017
Motor Accident Guidelines effective 13 July 2018 cl 7.441
Cases cited

SAN v Rumble (No.2) [2007] NSWCA 259

Text citedN/A
Parties AFM - Claimant
GIO General Limited - Insurer
DisclaimerThis decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

Reasons for decision – Determine the dispute

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

Background

1.  My determination in relation to this dispute is not without difficulty.

2.  The Claimant was riding his motorcycle on a gravel/dirt road near Lismore on 20 April 2018 when his motorcycle collided with a Nissan X-Trail travelling in the opposite direction. The Claimant has no memory of the accident due to head injuries sustained in the accident and the Insurer has denied liability for statutory benefits beyond the first 26 weeks due to the Claimant being allegedly wholly or mostly at fault. The Insurer’s decision to decline benefits beyond 26 weeks was the subject of an internal review by the Insurer conducted on 29 August 2018 confirming the original decision of the Insurer and so the Claimant brings this application to the Dispute Resolution Service for determination of the issues of fault alleged by the Insurer.

3.  The accident occurred on a dirt road and it would appear that the attending police were of the view that the Claimant was at fault in relation to the accident, and this is the conclusion reached in the police event summary. However, I now have the benefit of expert analysis of the available factual material from which conclusions have been reached by those experts as to what occurred and as to whether the Claimant was indeed at fault. Both parties have retained expert opinion, and those experts have provided reports and responses to the reports of the other expert. Those reports are detailed.

4.   I have now received submissions from Counsel retained on behalf of the Claimant and those submissions are to the effect that the Claimant did not contribute to his injuries as a result of his own contributory negligence and that the insured driver ought be found to be 100% liable for the accident.

The Police Material

3.  The event document created by the New South Wales Police Force in respect of the accident records in part the following detail:

Date/time reported: 20/04/2018 12:30 D1:  The insured driver

VEH1: XXXXXX Black Nissan X-Trail FP: BW

D2: AFM

VEH2: Yamaha YYYYY (unregistered)

About 12:30 p.m. on Friday 20 April 2018 D1 was travelling east on Mulvena Road, Larnook. This road is approximately four metres wide and is an unsealed dirt road. The speed limit in this area is 80kmph. The area is remote surrounded by bush land. D1 had just inspected the property he was interested in purchasing and was on his way home. He had a front seat passenger, BW. It is unknown at this stage how fast VEH1 was travelling.

D2 lives on this road and was travelling West. He does not hold a motorcycle licence in any State, the motorcycle was unregistered and he was not wearing a helmet. As D2 completed a right hand bend it appears he has applied his brakes and skidded for about 30 metres causing the motorcycle to slide sideways. D2 has then ended up on the incorrect side of the road and collided with the front of vehicle VEH1. This has ejected D2 from the motorcycle and thrown him about 4 metres onto the Southern kerb alignment.

Both vehicles were moved prior to police arrival to allow ambulance access to D2. D2 was placed in an induced coma and taken to Lismore Base Hospital before being flown to Gold Coast University Hospital in a critical condition.

D1 was conveyed to Lismore Base Hospital by police for blood and urine testing, however was breath tested at the scene and returned a negative result.

It appears from short brake marks in the dirt, D1 may have been travelling on the wrong side of the road, however the road is narrow and not ideal for two vehicles….

4.   The attending police officers took a number of photographs of the vicinity in which the accident occurred and it would appear a sketch was prepared by a person identified as “Kennedy” at 5:15 p.m. on the day of the accident. That sketch indicated the suggested point of impact on a hand drawn diagram together with various other markings which were said to be present on the surface of the roadway at the time of examination by the person identified as “Kennedy”. The mark placed on the road surface by the author of the sketch appears to identify the point of impact as being in the middle of the roadway and there are tyre marks identified in the same document which would appear to indicate the movement of the wheels on the X-Trail vehicle from about the middle of the road towards its correct side of the road indicating that the vehicle appears to have been travelling on the middle of an admittedly narrow road surface. The apparent skid marks identified and relating apparently to the motorcycle appear to indicate that it was travelling on its correct side of the road surface when it commenced to brake.

5.   A police notebook entry dated 25 May 2018 represented a discussion between a police officer and the injured Claimant which confirmed that the Claimant had no recollection of the accident at all as he had suffered with a head injury and some brain trauma.

6.   The police obtained a statement from the passenger in the X-Trail vehicle. The passenger, identified as BW, says that she was travelling as a passenger in the vehicle driven by the insured driver along Mulvena Road. She said she did not believe that they were travelling any faster than 20km an hour. She said that they had travelled about 200 metres when she saw a motorcycle heading towards her which appeared to be out of control and which subsequently collided with the front driver’s side of their X- Trail vehicle. The statement recorded that the injured Claimant went over the roof of their vehicle and they stopped. She said that the male motorcycle rider was lying on the ground on his back in the gutter on the Southern side of the road. She said that the motorcycle rider was not wearing a helmet and was wearing shorts and a T-shirt. Although there are various references to a kerb and gutter there was no manmade structure which could be identified as a kerb or gutter in the usual way that such structures are understood. The road Is a typical gravel road that one sees in country NSW.

7.   During the course of a record of interview between an investigator engaged by the Insurer and the attending police officer, Senior Constable Shannon Hudson, Constable Hudson indicated she had interviewed the driver of the X-Trail on the 29 April 2018 at Lismore Police Station. However the record of that interview is contained on an ERISP disc which was not available to the police officer at the time of the interview by the investigator. Nevertheless, Constable Hudson recalled that the driver (of the car) was travelling about 30km an hour, observed the motorcyclist travelling around the corner, hit his brakes and it was believed he skidded about two metres and then the collision occurred. Furthermore, Constable Hudson recalled that there was some glass on the road surface indicating a point of impact in the middle of the road but probably more to the Southern side of the roadway. I note that the Southern side of the road surface is the part of the road available for vehicles travelling in a Westerly direction which was the direction of travel of the Claimant’s motorcycle.

8.   Constable Hudson made the observation that it appeared to her that the motorcycle rider has come around a bend and observed the presence of the other vehicle coming towards him and hit the brakes which caused his vehicle to slide some 30 metres before impacting with the front of the Nissan X-Trail motor vehicle.

9.   I issued directions to the New South Wales Police Force in relation to production of records held by it. The documents which were obtained included a USB device which had a voice recording of a record of interview between Constable Hudson and the driver of the Nissan X-Trail. I have listened to that record of interview.

10.  A summary of what was said by the other driver is as follows:

i.  I was driving with my friend. I saw the motorcycle initially whilst I was inspecting a property for purchase when I saw the motorcycle pass by that property. To my observations he was proceeding at a fast speed. I observed that he was driving a blue and white trail bike. He did not appear to be wearing a safety helmet. After leaving the property I drove the vehicle in a Westerly direction, although I note that subsequent investigations indicate that the  vehicle  was  being  driven  in  an  Easterly  direction.  The insured driver said that he always drove very slowly and kept to the left as he knows how dangerous these roads could be.

ii.  He said he was driving slowly and had travelled about 80 to 100 metres from the property which he had inspected with his friend when he saw the motorcycle ahead of him. He was asked to draw a diagram of the accident scene. He said that it all happened very fast so he slammed his brakes on immediately and his first observations were of the motorcycle travelling towards his vehicle out of control. He said the skid marks from the motorcycle were quite long. He said he stopped immediately and the motorcycle with the rider continued to slide towards his vehicle and struck the driver’s side corner of the vehicle causing the Claimant to fly over the bonnet and landed in a grass ditch.

iii.  In answer to a question from the police officer he indicated that he did not believe the road was wide enough for two vehicles to pass comfortably.

iv.  He said that the vehicle may have shifted when he slammed the brakes on although the vehicle had new tyres on the car. When asked about speed he said he was doing about 30km an hour. It was a dirt road that he was not familiar with but he had driven on other much worse unsealed roads over many years. He said he was not distracted at the time of the accident and was not speaking to anyone. He said that he probably noticed the Claimant when he was about 50 metres away and even at that time it appeared that the bike rider had lost control. He offered the opinion that he thought that the accident was going to occur anyway regardless of whether his car was present or not.

v.  He said that he saw the back wheel of the motorcycle swing round and the motorcycle then slide side on. He said that the Claimant slid along the roadway with his bike and when the bike struck the vehicle then the Claimant flew over the bonnet of the car and into the drain. He said he applied his brakes immediately he saw the vehicle and that he stopped within two to three seconds. He said the brakes locked up and he slid in a straight line.

The Expert Reports

(i)  Mr Alan Joy

The Claimant’s solicitors retained Mr Joy to provide an expert report in respect of the circumstances of the accident. Mr Joy’s report is dated 5 February 2019. He notes that from the diagram drawn by a police officer that it was apparent that the Claimant had braked heavily on his motorcycle and that the rear wheel of the motorcycle slid to the right placing the motorcycle in a state of “anti-clockwise yaw”.

The impact of the motorcycle according to the police officer was with the right front corner of the insured vehicle about 2.3 metres from the left-hand edge of the roadway. He concludes that the point of impact was probably in the middle of the bike which was sliding towards the Nissan vehicle. From the measurements undertaken by the police, it was also apparent, according to Mr Joy, that at the commencement of skidding of the right front wheel of the Nissan, indicated that the Nissan was travelling 1.1 metres onto the incorrect side of the roadway which he concludes would have effectively obstructed the Claimant’s passage Westwards along the roadway.

Furthermore, Mr Joy concluded that having regard to the width of the Nissan vehicle (1.765 metres) and having regard to the width of the roadway at the point where the impact occurred (4 metres), that if the insured vehicle was travelling on its correct side of the roadway, then there would have been 2 metres of road width available to the Claimant if he chose to continue on his correct side of the roadway.

Further in paragraph 9.9 of his report, at page 17, Mr Joy concluded that as the motorcyclist was travelling on the correct side of the roadway, then the Claimant could have passed by the Nissan vehicle and continued Westward without colliding with it.

Mr Joy appears to accept that at the point of impact and having regard to the road markings, that at the point of impact, the Nissan vehicle was almost stationary, and taking into account the road markings, that it was probable that the Nissan’s pre-braking speed was about 25 kilometres an hour.

In respect of the motorcycle, Mr Joy suggested a speed for the motorcycle of between 73 and 76 kilometres per hour. However, Mr Joy qualified this calculation to say that taking into account the other matters such as the tread pattern of the tyres and braking distance that there ought be a reduction of the speed calculation such that he ultimately concludes that the speed was most likely in the range of between 60 kilometres per hour to 64 kilometres per hour.

I note it appears to be accepted that there were no speed limit signs noted on the roadway in the vicinity of the accident scene, but in all probability the applicable speed was up to at least 80 kilometres per hour.

At page 21 of his report, Mr Joy summarises his findings and opinion. He says that what likely occurred was that the Claimant was Westbound on Mulvena Road on his correct side of the roadway and as he exited a curve in that road, he saw the Nissan motor vehicle approaching from the opposite direction coming downhill out of a left-hand curve. As he did so, the Claimant would have observed the Nissan vehicle travelling substantially on its incorrect side of the roadway such that there was no room to pass on the Southern side of the roadway. He then commenced emergency braking to avoid a collision, but as he did so, entered into an anti-clockwise yaw as a result of the heavy braking which caused the rear wheel to slide out to the right. As a result, the motorcycle travelled partly onto its incorrect side of the roadway colliding with the Nissan vehicle. He also said that the physical evidence indicated that the driver of the Nissan vehicle attempted to steer his vehicle sharply to the left in an effort to avoid the collision.

Immediately before braking, the evidence according to Mr Joy is that the Claimant was travelling at not more than 68 kilometres per hour.

(ii)   Mr Paul Feenan

Mr Paul Feenan has also prepared a report on behalf of the Insurer.

Mr Feenan describes the roadway as little more than a gravel bush track approximately 4 metres wide. The speed limit for the roadway where the accident occurred was 80 kilometres per hour, however there was no advisory speed limit for the area of the roadway under consideration. Mr Feenan observes that the roadway is not sufficient to accommodate vehicles travelling at 80 kilometres per hour.

Mr Feenan reviewed the evidence mentioned in the report of Mr Joy. It seems he did not have available to him the audio recording of the record of interview with the driver of the Nissan.

Mr Feenan disagrees with Mr Joy’s assumption of the pre-accident speed of the motorcycle and suggests it was lower than the 68 kilometres per hour that was referred to. He said that a lower drag factor was required and this indicated that the approach speed of the motorcycle was no more than 60 kilometres per hour. He also disagrees with the findings of the tyre marks left on the roadway as being related to the subject accident. He says that they could well have been apparent even before the date of this accident. He said that the braking marks of a motorcycle did support the characteristics of the marks found on the roadway. He said that the braking did not occur until later. He said the road markings were also consistent with a rider attempting a power slide throughout he bend. He then explains what he means by a power slide.

Mr Feenan agrees with Mr Joy that the likely speed of the Nissan was 25 kilometres per hour. He is also critical of the attending police officer’s freehand drawing of the design of the road and the physical markings on it.

Mr Feenan disagrees with Mr Joy’s assumption as to the position of the Nissan vehicle on the road immediately before the accident commenced to occur.

Mr Feenan suggests that the evidence does not permit the speed of the motorcycle to be determined in any precise manner, but the physical indications are that it is probable that the Claimant was laying his motorcycle over whilst turning the handlebars, but not braking, and commenced to brake once he became aware of the presence of the oncoming Nissan at which point he applied harsh rear wheel braking which instigated the rotational and loss of control of the motorcycle.

Mr Feenan says that the Claimant was unlicensed and had only owned the motorcycle for some two weeks and that having regard to his assumptions as to the manner in which the accident occurred, the accident had all the hallmarks of a very inexperienced and untrained motorcyclist. He says that if the Claimant was experienced, he ought to have simply applied the brakes to the front wheel sufficient in order to brake in straight line and not veer onto the incorrect side of the roadway. Furthermore, the Claimant is well aware of the road conditions because he lives locally and has travelled along it many times.

Mr Feenan says that due to the nature of the roadway, there is no centre line and that the vehicles which travel upon the roadway adopted the position of travelling along a number of visible wheel tyre ruts which mainly occupy the centre section

of the roadway. He says that the tyre marks are not those of a motorcycle under braking, but rather markings consistent with a motorcycle adopting an accelerating manoeuvre whilst cornering.

Mr Feenan doubts the police officer’s conclusion as to the presence of brake markings on the roadway as having been made by the Nissan. The expert also goes on to say that there were numerous tyre marks on the roadway and these could be consistent with previous road markings and not related to the accident. He says that there is no evidence to support the approach position of the Nissan as found by Mr Joy. He says that the loss was directly attributable to the Claimant’s lack of control and lack of formal training or certification in the use of motorcycles.

(iii)  The Response of Mr Alan Joy

Mr Joy undertook a reply to the Mr Feenan report in June 2019. Mr Joy takes issue with a number of matters raised by Mr Feenan. A number of them are in respect of the information made available to Mr Feenan in respect of the preparation of his report.

In essence, Mr Joy says that the information provided by the police as to the physical evidence was a reliable source of information and the criticisms made by Mr Feenan of that evidence were not warranted. Mr Joy does not necessarily take issue with the slightly lower speed of the Claimant’s motorcycle prior to the collision. This would suggest a speed of somewhere between 60 and 68 kilometres per hour of the motorcycle before braking.

Mr Joy says that the evidence of the passenger in the insured vehicle and the observations made by the police at the scene clearly support his opinion that the motorcycle was under braking leading up to the point of impact with the Nissan vehicle rather than the suggestion made by Mr Feenan that the motorcycle had engaged in a power slide manoeuvre.

Mr Joy says that the evidence, although not perfect, is sufficient to identify the skid marks on the roadway emanating from the Nissan motor vehicle, indicating a sharp turn to the left under braking by the driver of the Nissan vehicle. Mr Joy sees no reason, in conclusion, to alter his initial report.

(iv)  Further Supplementary Report of Mr Alan Joy

Mr Joy prepared a further supplementary report dated 24 June 2019 in respect of a request that I made concerning the issue of speed and reaction of the Claimant to the emergency which presented itself. In respect of that request, Mr Joy considered that the Claimant’s response to the emergency was reasonable in the circumstances he faced. He also said that the attempt to avoid the accident by braking heavily was a reasonable response to the emergency situation as it presented to him.

(v)   Supplementary Report of Mr Paul Feenan

Mr Feenan also provided a supplementary report dated 10 July 2019. That report in summary says that had the Claimant applied correct braking to the front wheel sufficient to retard but not lock up the wheel, then the accident could have been avoided.

Whilst the Claimant’s riding history was unknown, the circumstances of the accident had all of the hallmarks of a very inexperienced and untrained motorcyclist. He says that Mr Joy has not taken issue directly with his opinion that the accident was attributable to the Claimant’s lack of control of his motorcycle during stopping from his speed of travel and possibly exacerbated by the use of a vehicle of which he had no formal training or certification to be riding.

Documents considered

11.  I have considered the documents provided in the application and the reply and the additional documents including the expert reports, police material provided in answer to the direction I issued for production and the submissions of both parties.

Legislation

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

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

Findings

13.   In general terms, I accept the analysis of the factual matters identified by Mr Joy in relation to the physical evidence as his opinion is based on the forensic material provided in substantial part by the police officers in attendance at the scene. Although the recording of the physical evidence is less than ideal, I accept Mr Joy’s opinion that the evidence is of sufficient quality to enable a traffic accident reconstruction specialist to form an opinion as to the likely scenario which gave rise to the accident that occurred.

14.   Having regard to my acceptance of the factual matters giving rise to this accident, I am prepared to accept therefore that the Nissan motor vehicle was probably straddling the imaginary centre line of a roadway which was barely sufficient to enable two motorcars to pass, as commonly occurs when driving on unsealed roads. I also accept that the Nissan vehicle was probably travelling at no more than 25 kilometres per hour and when the driver first observed the presence of the oncoming motorcycle, was able to veer to his left and come to a stop within a matter of a few metres. Although the Insured driver indicates in his ERISP interview that he travelled on his correct side of the road and braked in a straight line, this evidence conflicts with the physical I have accepted and has a hint of being exculpatory. I prefer the summary of the police evidence documented by the attending officers that I have previously referred to. For similar reasons I do not accept the version provided by BW in its entirety in that parts of her evidence state their vehicle was on its correct side of the road when she first observed the motorcycle about 50m away as it was fishtailing towards her vehicle. This evidence conflicts with the evidence at the scene which showed the Nissan had been in the middle of the road and braked and skidded from the middle closer to its correct side of the road. Furthermore the evidence of the skid marks was that they were 30m, not 50m in length.

15.  I also accept that the motorcycle was travelling at a speed of somewhere between 60 and 68 kilometres per hour and that the reaction of the motorcyclist to the presence of the oncoming Nissan car caused him to brake heavily. This braking manoeuvre caused the motorcycle’s rear wheel to slide in an anti-clockwise direction such that the motorcycle was travelling almost side on towards the Nissan vehicle and struck the Nissan vehicle on the front driver’s side corner ejecting the Claimant who then flew past the vehicle and onto the roadway near the grass verge on the Nissan vehicle’s correct side of the roadway.

16.   Whilst I accept Mr Joy’s analysis of the physical evidence, I do not accept his opinion as to the Claimant’s speed or reaction to the presence of the oncoming vehicle as being reasonable. In my view, a motorcycle rider who acutely aware of the road conditions close to his home would not or should not have ridden his motorcycle at a speed of between 60 and 68 kilometres per hour having regard to his obvious knowledge of the road conditions including the width of the road and the likely presence of oncoming motor vehicles. A prudent motorcycle rider would have driven at a speed sufficient to enable him to brake with sufficient time to avoid either losing control of the motorcycle or in order to bring his motorcycle to a stop over a short distance. It seems to me that the driver of the Nissan vehicle was able to bring his vehicle to a complete stop within a matter of a few metres and to take evasive action by moving to his left side. If the Claimant himself had been travelling at a similar speed or at a speed which enabled him to brake without losing control, then the accident would not have occurred. Although travelling within the allowed speed limit the road conditions were such that he ought to have ridden his motorcycle in accordance with the conditions of which he was well aware. In this regard I note also the problems of sight distance referred to in the police logs noting the presence of vegetation and corners in the roadway.

17.   Nevertheless, I consider that the primary cause of the accident was the Nissan driver’s decision to drive his vehicle in the centre of the roadway, which caused the Claimant to react to an emergency situation and causing him to lose control of his vehicle. I consider therefore that the Nissan driver bears the majority of the responsibility for the accident which occurred. In my view therefore, the Claimant has established that the Nissan driver was at fault in the accident, but that he contributed to the circumstances of the accident either by travelling at a speed which was excessive in the circumstances or by failing to maintain control of his motorcycle in the circumstances which presented to him.

18.   In my view, the Nissan motor vehicle driver bears responsibility to the extent of two- thirds and the Claimant to the extent of one-third in respect of the accident.

19.   The issue was raised by the Insurer as to the Claimant’s lack of a driver’s licence however I accept the Claimant’s submission that this is an irrelevant consideration absent any further evidence as the Claimant’s otherwise lack of experience in motorcycle riding.

The Issue of Failure to Wear a Safety Helmet and Appropriate Clothing

20.   After receiving the Claimant’s submissions and conducting a review of the evidence it became apparent to me that neither party had made reference to the Claimant’s failure to wear a helmet or the wearing of shorts and a tshirt so that I sought further submissions as to the issue of contributory negligence which may arise from such circumstances.

21.   I subsequently received additional submissions from both parties as to these issues.

22.   The Claimant submits that it is known the Claimant suffered injuries to his face, head, back, wrist elbow and knee. The injuries were sufficiently serious to require admission to a major hospital and being placed into an induced coma. There has been no expert evidence addressing the issues relating to the failure to wear a helmet or protective clothing. Although s3.38 requires a finding of contributory negligence for failure to wear a safety helmet there is no such requirement in respect of the wearing of inappropriate clothing. It is submitted therefore that a reasonable assessment of contributory negligence absent any such expert evidence is 15%.

23.   The Insurer submits that the Claimant has demonstrated a high level of contributory negligence which without more would lead to a finding of contributory negligence of greater than 61% having regard to the nature of his injuries.

24.  I consider the Claimant’s submissions are correct. The onus of establishing the presence of and extent of contributory negligence rests with the Insurer although subject to the legislative requirement that makes a finding of contributory negligence for the failure to wear a helmet mandatory. In the absence of expert evidence as to the qualitative nature of the injuries suffered as a result of the Claimant’s failure I agree with the Claimant’s submissions in this regard save for the fact that I consider such negligence ought be slightly higher than 15%. I assess contributory negligence at sixteen and two thirds per cent.

Determination

25.  Combining my assessments of contributory negligence I find that the Claimant has contributed to his damage to the extent of 50%.

Costs and disbursements

26.  The Claimant seeks a special assessment of costs pursuant to s 8.10(4) of the MAI Act on the basis of exceptional circumstances. It is submitted that those costs ought be assessed in the sum of $6,798 inclusive of GST, together with non-regulated disbursements of $9,340.10 for Mr Joy and GIPA costs of $444.60, giving a total of $16,582.70.

27.  The Insurer is prepared to concede costs at the Regulated fee of $1,633 plus GST on the basis that the disbursements be deferred for consideration in the Claimant’s damages claim.

28.  The provisions for costs and fees is to be found in Part 8 of the Act and in particular Sections 8.1 through to 8.10. Section 8.3 provides that regulations fix maximum legal costs recoverable by a Claimant. The costs include:

(i)   section 8.3(4):
That 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 the payment of those legal costs is permitted by the Regulations or the Dispute Resolution Service [emphasis added].
(ii)   section 8.10(4) provides that:
The Dispute Resolution Service can permit payment of legal 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. [emphasis added]

(iii)  Schedule 1, Part 1, Section 3(1) of the Act 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 Regulated Miscellaneous Claims Assessment matter are $1,600 (to a maximum of $6,000 per claim).

29.  I note that in accordance with the legislation the sum of $6,000 is adjusted annually and is currently $6,180 plus GST.

30.  I note that the Claimant has restricted the claim for costs to the maximum referred to in Schedule 1, Part 1, Section 3(1) of the Act however section 8.10(3) makes reference to the recovery of costs as permitted by the Regulations or the Dispute Resolution Service. In

other words it appears to me that a claim for costs based on exceptional circumstances is a claim for costs determined by the Dispute Resolution Service and not necessarily restricted to the maximum costs permitted by the Regulations as there is a distinction drawn between costs permitted by the Regulations and costs permitted by the Dispute Resolution Service as is clearly referred to in section 8.10(3).

31.  Having established that a Claimant can seek costs in excess of the Regulation as permitted by section 8.10(4)(b), the question remains are there exceptional circumstances in which I should permit the claim for costs which is made?

32.  The issue of exceptional circumstances has been the subject of some judicial determination and I refer in particular to the decision of the New South Wales Court of Appeal in SAN v Rumble (No. 2) [2007] NSWCA 259.

Justice Campbell in that case said:
In deciding whether it is an “exceptional case” within the meaning of s153(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.

33.  In my view the factors involving this particular claim do fall within the parameters of “exceptional circumstances” as set out in section 8.10(4)(b) for the following reasons:

(i)  The Claimant suffered very significant injuries, not only orthopaedic but also involving brain damage such that he had no memory of the actual accident. As a result of this and in order to assess the relevant circumstances of the accident the Claimant was required to engage solicitors and indeed experienced counsel to assist in obtaining expert evidence to identify what in fact occurred in the accident.

(ii)   Extensive enquiries were required of the police who were reluctant to provide all relevant information and it was necessary for me to issue a direction to the police to provide a complete file in respect of the accident, which I subsequently made available to the parties. It was only after all of the relevant documents had been obtained that a determination could be made and in doing so incurring substantial legal costs and disbursements.

(iii)  Even though the Claimant had established on the basis of his expert evidence that he was not wholly or mostly at fault, the Insurer maintained its denial of any liability to make statutory payments beyond 26 weeks.

(iv)  The Insurer obtained its own expert evidence in relation to the circumstances of the accident and there was considerable conflict between the opinions of both experts.

(v)   The physical evidence noted by the police and interpreted by the Claimant’s expert conflicted with the versions given by the Insured driver and the passenger in the Insured vehicle. It is noted that that the only eye witness accounts of the accident were those provided by the driver and passenger noting that the Claimant had no memory of the actual accident.

(vi)  Not only were there issues relating to how the accident occurred but there were also issues relating to the failure of the Claimant to wear a helmet and to wear appropriate clothing which required advice and submissions.

(vii)  Although I have little evidence before me as to the extent of the physical injuries, it would appear that the Claimant did suffer very significant physical injuries and will continue to suffer from disabilities as a result such that there are not only issues as to liability and contributory negligence but also issues as to the ongoing effects of the Claimant’s disabilities arising from the accident.

(viii)  In my view it was entirely appropriate for the Claimant to engage solicitors and counsel to advise and to obtain expert evidence and make extensive enquiries by means of GIPA applications and eventually request me to issue a direction to the police to provide all relevant documentation.

(ix)  Such costs incurred by the Claimant are entirely reasonable and for the reasons indicated above indicate the extensive costs have been and most likely will continue to be occurred in respect of this claim.

(x)   Taking all of the above matters into account, I therefore consider the Claimant has satisfied that exceptional circumstances exist and I am prepared to assess the Claimant’s costs on the basis as submitted to me by the Claimant’s legal advisers and I assess those costs in the sum of $16,582.70 as claimed.

(xi)   In allowing the amount claimed by the Claimant I note there were six teleconferences, five expert reports, the need for issue of a direction to police for production of documents and the consideration of those documents and ERISP interview of the Insured driver as well as the involvement of counsel and three sets of submissions by the Claimant. In my view the claim is modest.

Conclusion

My determination of the Miscellaneous Claim is as follows:

1.   For the purposes of section 3.11 the motor accident was caused by the fault of another person

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

3.  Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Act 2017 is $16,582.70 inclusive of GST.

Colin Stoten
DRS Claims Assessor
Dispute Resolution Services