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AGM v AAI Limited trading as GIO [2019] NSWDRS CA 170

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsMedical dispute – minor injury – statutory benefits – medical assessment – legal costs – reasonable and necessary costs – physical injury – psychological injury
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 33.1, 3.1(2)(a), 3.1(2)(b), 3.2, 3.2(2), 3.2(4), 3.11, 3.24, 3.28, 3.35, 3.38, 6.12, 7.36(4), 7.36(5), div 3.3, div 3.4, Schedule 2(3)
Motor Accident Injuries Regulation 2017 Schedule 1
Motor Accident Guidelines 2017 (as amended on 15 January 2019) cl 4.28
Civil Liability Act 2002 (NSW) s 5R
Cases citedPodbrebersek v Australian Iron & Steel [1985] HCA 34
Text cited N/A
Parties AGM – Claimant
AAI Limited t/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

Reasons for Decision

Issued in accordance with section 7.36(5) of the Motor Accident Injuries Act 2017

Introduction

Factual circumstances surrounding the accident

1.   AGM was involved in an accident on 20 March 2018 at about 1.15pm at the corner of Saywell Road and Waratah Crescent Macquarie Fields. Below is a diagram of the accident location inserted to provide a geographical context to the matters in issue between the parties.

AGM.jpg

2.   The intersection of Saywell Road and Waratah Crescent is a ‘T-intersection’ with Waratah Cresent being the terminating street and Saywell Road being a through street leading up to Railway Parade and Macquarie Park Railway Station.

3.   AGM was riding his Harley Davidson motorcycle in a generally north-north-west direction along Saywell Road. His motorcycle had a greenslip insurance policy with GIO.

4.   The insured driver was driving his Isuzu 4WD Wagon in a generally north-noth-east direction. The insured driver’s vehicle has a greenslip insurance policy with Allianz.

5.   AGM was seriously injured in the accident. There is reference in the documents to him being placed in an induced coma for five days, that his left leg was amputated below the knee and he sustained multiple other fractures which are pinned and plated.

Liability and fault dispute - GIO

6.   On or about 27 April 2018, without the assistance of a lawyer, AGM made a claim for personal injury statutory benefits which he sent to GIO, his own insurer [R1 GIO].

7.   GIO accepted the claim and on 6 June 2018 wrote to AGM [R2 GIO] accepting liability to pay benefits for the first 26 weeks after the accident. On that date GIO wrote another letter to AGM [R3 GIO] referring to a telephone call and confirming that GIO ‘is the CTP insurer of the nominated at fault motor vehicle’. AGM has not, at any stage in these proceedings or in the documentation before me, indicated he was of the view that he was at fault or that his motor vehicle was the at-fault motor vehicle. I note the application for personal injury statutory benefits AGM completed contains the following information:

a.   When asked to describe the accident AGM said he ‘can’t remember’.

b.   He listed his own vehicle and its registration number when asked to provide details about all the vehicles involved in the accident (when clearly there were two vehicles involved).

c.   When asked what was the registration number of the car he thought was most at fault he ticked the box which says ‘still being determined’.

8.   On 3 July 2018, GIO wrote to AGM denying liability to pay statutory benefits after the first 26 weeks [R4 GIO].

9.   AGM, at this stage now represented, sought an internal review of that decision on 24 January 2019 and that internal review was determined by GIO on 8 April 2019 [A1 GIO]. The decision affirmed the original decision (to deny ongoing benefits) albeit for different reasons.

10.   AGM’s solicitors lodged an application with DRS on 6 May 2019 seeking determination of a dispute about whether AGM was entitled to statutory benefits beyond the first 26 weeks after the accident. That dispute identified GIO as the respondent to the application.

Relevant insurer dispute - Allianz

11.   Mr Kolokossian advised me at the first teleconference that when he became involved, he formed the view that AGM may have served the claim form on the wrong insurer.

12.   Section 6.12 of the Motor Accident Injuries Act requires a claimant to serve notice of a claim for statutory benefits on the ‘relevant insurer’ under Part 3. Section 3.2 (in Part 3) provides for payment of statutory benefits by the ‘relevant insurer’ and sets out matters relevant to identifying the ‘relevant insurer’. As only one set of statutory benefits can be paid to an injured person, it would appear there can only ever be one ‘relevant insurer’.

13.   Clause 4.28 of the Motor Accident Guidelines provides:

… if notice of a claim has been given to an incorrect insurer and the claim must be transferred to the relevant insurer, the claimant is excused from giving notice of a claim to the relevant insurer. The insurers must cooperate so that the necessary information is exchanged and the claimant s recovery and benefits are not adversely affected.

14.   The GIO Claims Officer acknowledged there had then been an error made by GIO in the transfer of the file when GIO became aware that it was the ‘incorrect insurer’. GIO transferred the file to NRMA for ongoing management and payment of any further statutory benefits on the mistaken belief that NRMA was the insurer of The insured driver’s motor vehicle. When GIO received no response from NRMA, GIO made further enquiries and identified Allianz as the correct insurer of The insured driver’s vehicle and AGM’s file was sent to Allianz with a request that Allianz take over management of the claim.

15.   Despite the contents of cl 4.28 of the Guidelines, on 18 March 2019, the Claimant’s solicitors sent an application for Personal Injury Benefits to Allianz requesting Allianz take over management of AGM’s claim for statutory benefits [A1 Allianz].

16.   By letter dated 9 July 2019 [R2 Allianz] Allianz advised Mr Kolokossian that Allianz was unable to accept liability as Allianz was not the relevant insurer. Allianz said AGM was wholly at fault and therefore GIO is the relevant insurer.

17.   On or about 14 June 2019, AGM’s solicitors lodged an application with DRS seeking determination of a dispute about which of the two insurers was the relevant insurer.

18.   On 27 August 2019 I was advised by email that the two insurers had resolved the issue of which of them was the relevant insurer and had agreed that GIO was the relevant insurer for the purposes of s 3.2 of the Act. I confirmed this agreement orally with both Allianz and GIO who said that GIO was the relevant insurer for the purposes of determining the disputes before me.

19.   The comment immediately above and the email communication I had received from the GIO Claims Officer advising me of the agreement appears to limit the ‘relevant insurer’ agreement to the current disputes and foreshadows that, if I find in favour of AGM, Allianz will then be the relevant insurer for the purposes of s 3.2 and the ongoing payment of AGM’s statutory expenses.

Matters in dispute for determination

20.   Mr Kolokossian confirmed at the second teleconference that AGM was not an ‘earner’ within the meaning of the legislation and therefore made no claim for weekly income support benefits under Division 3.3 of the Act. AGM was, at the time of the Act, in receipt of Centrelink benefits. Therefore there is no need to make any decision relevant to s 3.11 or s 3.38 of the Act.

21.   Mr Kolokossian also confirmed at the second teleconference that the Claimant was charged with two offences related to the motor accident, one of which was a serious driving offence. While he was convicted of one offence (related to speeding), he was not convicted of the serious driving offence (negligent driving).

22.   Finally Mr Kolokossian confirmed after the teleconference that the motorbike AGM was riding at the time had its headlight hardwired which means when the bike is turned on, the head lamp automatically turns on and does not turn off until such time as the motor bike’s ignition is turned off.

23.   Noting the agreement reached between the Insurers, the following disputes remain for me to determine:

a.   Whether AGM has an entitlement to ongoing statutory benefits;

b.   Whether AGM is entitled to costs in relation to the relevant insurer dispute and; subject to the outcome of the first dispute,

c.   Whether AGM is entitled to costs in relation to the ongoing statutory benefits dispute and the amount of those costs.

24.   In addition to the documentation attached to the application and reply forms, I have received records (including CCTV footage) from the NSW Police in answer to a direction issued by me. Copies of the documents have been provided to the parties and they were invited to my office to view the CCTV footage but have not taken up the offer.

25.   I asked the parties at the second teleconference whether they intended to obtain any further evidence and neither party said they wished to obtain any additional evidence.

26.   I also asked the parties whether they wanted to make any further submissions particularly in the light of the new evidence contained in the police records and neither party said they wished to make any further written submissions although short oral submissions were made.

27.   Neither party sought an assessment conference and the opportunity to provide oral evidence or submissions.

28.   I formed the view I had sufficient evidence before me to enable me to make a decision in respect of the matters in dispute and therefore my assessment has proceeded ‘on the papers’.

Background to the ongoing statutory benefits dispute

Legislative provisions

29.   There is no dispute that AGM was injured in a motor vehicle accident, in the state of NSW after 1 December 2017. Therefore, pursuant to s 3.1 of the Act he is entitled to statutory benefits payable in accordance with Part 3 of that Act.

30.   Section 3.2 provides that statutory benefits are payable by the relevant insurer which, in the case of an accident involving more than one motor vehicle is, under s 3.2(2) and (4) the insurer which provides insurance cover to the owner or driver of the motor vehicle whose fault caused the injury in respect of which statutory benefits are payable or if there was more than one such motor vehicle the insurer of the motor vehicle who was most at fault.

31.   Statutory benefits include weekly income support payments under Division 3.3 of the Act and treatment and care expenses in accordance with Division 3.4 of the Act.

32.   While  statutory  benefits  are  payable  regardless  of  whether  anyone  was  at  fault (s 3.1(2)(a)) and  even  if  the  person  to  whom  the  benefits  are  paid  was  at  fault  (s 3.1(2)(b)) there are limits and restrictions to the amount of benefits payable (e.g. treatment and care expenses must be reasonable and necessary under s 3.24) and in some cases no benefits are payable (e.g. if a claimant has a workers compensation claim in accordance with s 3.35).

33.   Section 3.28 provides that:

(1)    An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if:
(a)The motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or

(b)The person’s only injuries resulting from the motor accident were minor injuries.

(2)    A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in seciotn 3.38) was greater than 61%.

Insurer decision making

34.   In its original decision dated 3 July 2018 [R4 GIO], GIO’s Senior Claims Advisor, wrote a letter advising AGM GIO denied liability to pay him ongoing treatment and care expenses in these terms:

We have considered the following information in relation to the accident:

  • Your Application for Personal Injury Benefits claim form only lists your own vehicle as involved in the accident. You are therefore deemed to be at fault.
  • In accordance with the Motor Accident Injuries Act, the driver of the at fault vehicle is not eligible for statutory benefits after 26 weeks.

35.   GIO’s Senior Claims Advisor also refers to a ‘non-minor injury letter’ dated 3 July 2018 which is not before me. Bearing in mind the catastrophic nature of AGM’s injuries it is not disputed that AGM has a non-minor injury and that therefore, s 3.28(1)(b) is not relevant.

36.   It is apparent from GIO’s liability notice, that the only information considered by GIO in its original decision was the claim form and the Act and possibly a conversation with AGM. GIO has put no evidence before me which would indicated that GIO undertook any investigation into the facts and circusmtances of the accident and made no enquiries as to the existence or identity of any other vehicles involved in the accident.

37.   AGM was dissatisfied with GIO’s liability decision and sought an internal review on 31 January 2019.

38.   GIO completed the internal review on 8 April 2019 and issued a 12 page document entitled ‘Statement of Reasons – Internal Review’ which states the outcome of the internal review is:

The writer considers you have contributed to [the] accident and your injuries and has assessed your contributory negligence at 70%. The writer considers you are mostly at fault for the subject motor vehicle accident and that you are not entitled to statutory benefits after 26 weeks from the date of the subject motor vehicle accident.

39.   At the second teleconference, GIO confirmed that the Insurer is of the view AGM was not wholly at fault for causing the motor accident but that GIO alleges the Claimant was mostly at fault.

Review of the evidence

Police report

40.   The Insurer’s internal review decision relies on the NSW Police report dated 10 July 2018 (obtained after, and therefore not considered when the original liability decision was made)

41.   The Police report identifies the speed limit in the area as 50 km/h and nominates AGM’s vehicle as the ‘unit responsible’.

42.   The Police report is, in my view, secondary evidence and not the best evidence noting that the police records (upon which that report is based) are now available.

Insurer’s investigations – the Claimant’s statement

43.   The Insurer’s internal review decision also relies on a Factual Investigation report from Quantum Corp dated 30 March 2019 which included a statement from AGM dated 26 March 2019, over a year after the accident.

44.   AGM says he was riding his brother’s motor cycle, that it was about three years old and had travelled between 8,000 and 9,000 kms according to the odometer. AGM says he rides the vehicle about once a week. He says the bike was in good mechanical condition.

45.   AGM says the weather was fine and the road was dry and the visibility was good. He says the intersection where the accident happened is uncontrolled (photographs obtained by the investigators and the police reveal there are no lights, give way or stop signs at the intersection.

46.   AGM says at paragraph 39 that he does not remember anything about the other vehicle and at [41]:

I heard so many different stories about how the accident occurred from different people so I don’t know what to believe.

47.   At [42 – 45], and elsewhere in the statement he makes it clear he has no recollection of the events leading up to the collision.

48.   AGM told the investigator he was shown the CCTV footage while he was in hospital and he describes what he saw. He said he thought the footage had been speeded up and said at [49]:

My father told me the other driver apparently told the Police that he saw me and he still pulled out.

49.   AGM says he was very familiar with Saywell Road having driven it along it almost daily [36].

Insurer’s investigations – the Insured driver’s statement

50.   GIO obtained a second report from Quantum Corp dated 7 May 2019 which included a signed statement from the insured driver dated 29 March 2019 (again over a year after the accident).

51.   The insured driver says that he had left his home 100 metres away and was intending to travel to the Glenquarie Shopping Centre. He says he is very familiar with the intersection. He says in this statement:

[39]  I approached the intersection and engaged my right indicator. I am convinced I came to a stop before entering Saywell Road and I looked in both directions on Saywell to ensure the road was clear. I wouldn’t know how long I stopped for but it would have been a matter of seconds.

[40]  The road was definitely clear before I entered Saywell Road.

[41]   I commenced my right turn and completed the turn. My vehicle [was] then completely within the south-eastbound lane of Saywell Road. I continued within the centre of my lane to the south-east for about 5 – 10 metres down the road.

[42]   Halfway through my turn, I first saw the motor cycle approaching when I was on the intersection. The motorcycle was heading north-wetbound on Saywell Road towards me. The motor cycle was about 100 metres away from me when I first saw it. The motorcycle was definitely speeding. I don’t know how fast he was going but post collision the police told me he would have been going at least 90 kmph.

[43]  I completed my turn and saw the motorcycle lock up the rear wheel. The motorcycle slid for at least 40 – 50 metres towards me. I saw the motorcycle swerve onto the wrong side of the road at one stage onto my lane by then the rider corrected himself back into his lane. I saw a big puff of smoke coming out of the rear of his bike when the tyre was skidding.

[45] After I completed my turn, the motor cycle clipped the rear driver side quarter panel of my vehicle also around the rear driver side wheel and bumper.

52.   The insured driver says there was nothing blocking his vision at the time of the accident and he was not distracted. The insured driver details the attempts he made to contact the Claimant and his family and express his sympathies.

The police records

53.   In the police records is a statement form Senior Constable Matthew Couldrey who attended the scene of the accident, undertook some investigations, obtained the CCTV footage from one of the residences close to the intersection and who interviewed the Claimant in the hospital. Constable Couldrey also organised the scene of accident survey reproduced at paragraph 60 below.

54.   There is also a statement of Senior Constable Wayne Stephenson who has, according to his statement, been a Crash Investigator with the police for over six years.

55.   He attended the scene of the accident, took photographs and made detailed notes.

56.   There is an extract from Senior Constalbe Couldrey’s notebook which includes a statement taken from the Claimant on 30 June 2018. The police officer asked what happened and the Claimant said ‘I don’t remember nothing’.

57.   There is also a copy of a police notebook which records a statement taken from the insured driver on 20 March 2018 which says (relevantly):

As I got to the end of Saywell, naturally I looked right and left to ensure there was ability for me to exit from Waratah Cres in a safe manner. I did see the motorbike some distance away. At that time he would have been going down the down bit of the hill. As we were turning into Saywell he did veer over the white lines. He must have rectified himself and then we were on the straight at this time and then he jammed on the anchors and I could see smoke coming from his back tyre and then he ran into by back right hand side.

58.   The insured driver tells the police he was travelling at 5 km/h ‘if that’ as he had only just left his home and moved onto the roadway. He says he had his right hand indicator on before he turned.

59.   There is a DVD provided by the police with three video clips. One is a video taken by someone of film showing on a computer screen which is very out of focus. Another is also a video taken by someone of film showing on a computer screen which shows nothing of relevance. The third video, the longer one appears to be the actual CCTV footage obtained by the police. I have watched that footage. It looks up Saywell in the direction of the station. I see the insured driver’s car emerging and AGM’s motorcycle with approaching with smoke coming from the rear wheels. The CCTV footage shows the time of impact. The relevant footage covers a time period of about three seconds.

60.   The police records also include a report from Gavin Lennon of the NSW Police Forensic Imaging Section entitled ‘Collision Reconstruction and Analysis’. Mr Lennon has 10 years experience in this field. He examined the evidence taking particular note of a tyre mark (48 metres in length marked in pink below) and scrapes and scratches on the road surface (marked in yellow below).

AGM 1

61.   Mr Lennon expressed the view at paragraph 14 that the straight tyre mark evidences a level of braking to the front wheel (but not locking) with braking and locking of the back wheel.

62.   Mr Lennon at paragraph 17 says he examined the CCTV footage which showed the insured driver’s car ‘completing’ the turn and that the impact occurred when The insured driver had ‘almost fully completed the right-hand turn process’. While the angle of the camera might distort the view, it appears to me from, from the photographs that the insured driver could not have taken a tight 90° turn from Waratah Crescent into Saywell Crescent but that he took a looser turn something more in the order of 45° which would have had him taking longer to traverse the lane AGM was in thereby possibly impeding AGM’s progress for longer.

63.   AGM had raised issues with the quality of the film when shown it at hospital and Mr Lennon says at 19 that the footage was not suitable for determining the speed of AGM’s motorcycle because the frame rate of the recording was inconsistent. Having viewed the footage I agree with Mr Lennon.

64.   Mr Lennon has assumed the friction rate of Saywell Road in the absence of that material being provided to him and he says at [21] that he has made a conservative estimate.

65.   Analysing only the tyre marks and the scrapes and scratches on the road he has estimated the speed of AGM’s motor cycle at 74 km/h. Mr Lennon says tht the motor cycle would have reduced speed upon impact with the insured driver’s car and would also have reduced speed when it collided with the parked vehicle before coming to rest. Mr Lennon has not taken these into account and says:

As such the speed determination of 74km/h based solely on the tyre mark and slide lengths is an underestimation of the actual speed of the motorcycle immediately prior to the start of the tyre mark.

66.   Mr Lennon concludes that AGM was travelling at over 74km/h at the time the tyre mark began which was when he started to brake. It would appear this report was used as evidence in order to charge AGM with speeding.

67.   There are a number of photographs in the police documents including aerial photographs of the scene of the accident, screen shots of the CCTV footage, close ups of the road surface and the marks upon it and there are several photographs taken of Saywell Road, with the intersection and The insured driver’s car in the frame looking up Saywell Road towards Glenquarrie shopping centre (and away from the railway station). This shows the ‘downhill’ part of Saywell Road referred to in The insured driver’s statement.

68.   The photograph of the tyre marks, and the plan drawn by the police indicates that at all times after braking, AGM was on his correct side of the road and that the point of impact was also on the correct side of the road.

Is AGM mostly at fault?

The parties’ submissions

69.   The GIO’s submissions attached to the application form do not assist me in this matter as they only deal with the ‘relevant insurer’ dispute which has resolved.

70.   The GIO’s internal review decision abandoned the allegation that AGM was wholly at fault and conceded at the last teleconference that the insured driver had breached his duty of care to AGM because he had seen AGM approaching the intersection but did not check again before entering into the intersection. The concession that the insured driver was at fault or negligent would appear to be made on the basis that the insured driver failed to keep a proper lookout.

71.   The GIO’s internal review decision includes a lengthy review of the evidence and a significant degree of repetiation but it would appear the allegation of contributory negligence made against the Claimant can be found at page 10 in this passage:

The writer considers on careful review of the evidence presently available that you failed to adjust the speed of your motorcycle to the road conditions especially considering the accident occurred in a residential area.

The writer considers you drove to an excessive speed to such an extent that you were unable to slow down or stop with sufficient time to permit The insured driver to clear the T’intersection without colliding into him. The writer notes the damage to the other vehicle as being on the extreme right rear, this would indicate that this driver almost completed the right hand turn before you collided withhis vehicle. The writer notes from photographs provided of the scene of the accident aht you and the driver of the other vehicle would have had an unobstructed view of traffic in the area.

72.   GIO stated at the second teleconference that AGM was most at fault because he was speeding and this was a significant factor in the cause of the accident. GIO have submitted that AGM’s contributory negligence should be assessed at 70%.

73.   The Claimant’s submissions are in a large part also of limited assistance to me as paragraphs 10 – 13 criticise the Insurer’s decision making (and in particular the absence of enquiry by the Insurer before making its decisions) and do not take into account the evidence that has subsequently come to light.

74.   The Claimant suggests:

a.   The evidence form the insured driver is that he did not carry out or maintain the necessary checks before turning;

b.   That the insured driver had an obligation to give way before turning and carry out necessary checks;

c.   If he had carried out these checks, he would have seen the Claimant and avoided the accident;

d.   Even if the Claimant was speeding (which was not conceded at the time) The insured driver had an obligation to take care beore turning and he failed to do so;

e.   The onus lies with the Insurer to proove the Claimant was at fault;

f.   The Claimant had a reasonable expection that seomone would not drive across his path;

g.   The accident was caused by the fault of the driver;

h.   There is no evidence to suggest in any way the claimant was the sole cause of the accident.

75.   Mr Kolokossian conceded at the second telephone conference that there is now evidence the Claimant was speeding and that therefore there should be a finding of contributory negligence made against his client however he was of the view the finding should be in the order of 10 - 15% but not more than 50%.

My findings of fact

76.   I find that both AGM and the insured driver were very familiar with Saywell Road and the intersection with Waratah Crescent.

77.   I am satisfied that AGM has no recollection of the accident and therefore his statement does not assist me greatly.

78.   I accept that the headlamp on AGM’s motor cycle was activated at the time of this collision and tht therefore he was more visible that if there was no headlamp on.

79.   I have two statements from the insured driver. One given to the police on the day of the accident and the other given a year after the accident. I prefer the evidence set out in the statement contained in the police officer’s notebook as it is more contemporaneous. The statement given by the insured driver to the insurer’s investigator includes language clearly suggestive that the insured driver is trying to recreate what has happened and rationalise what has occurred.

80.   I am satisfied, based on the police statement, that the insured driver came to the T intersection and looked to his right at which point he saw AGM in the distance and then he looked to the left before proceeding into the intersection.

81.   I find that the insured driver did not look again to the right before proceeding into the intersection because if he had, he would have seen AGM again (and closer to him) and would therefore not have pulled out into his path. I do not accept the contents of paragraph 42 of the insured driver’s statement that he only saw the Claimant when he was half way through his turn.

82.   Having reviewed the CCTV footage I agree with Mr Lennon’s assessment of it that the impact occurred when the insured driver had almost but not fully completed his turn and therefore I do not accept the insured driver’s recollection that the impact occurred when he had completed his turn.

83.   Having reviewed the photographs and the CCTV footage I am satisfied that AGM was on his side of the road when he started braking and that the impact occurred on AGM’s correct side of the road.

84.   I accept the unchallenged evidence of Mr Lennon that AGM was travelling in excess of 74 km/hr in the moments leading up to the accident but I make no findings as to his actual speed.

85.   I find that the insured driver turned across the Claimant’s path as AGM proceeded down Saywell Road approaching the intersection with Waratah Crescent.

My assessment of contributory negligence

86.   GIO concedes that the insured driver was at fault and breached his duty of care to the Claimant. There is therefore primary negligence on the part of the insured driver.

87.   The Claimant concedes he contributed to the cause of the accident and the injuries, disabilities and impairments flowing from that accident.

88.   It remains for me to determine the degree of AGM’s contributory negligence and, if it greater than 61%, whether he is mostly at fault.

89.   While s 3.38(1) of the Act states that the common law and enacted law in relation to contributory negligence applies to reduce weekly statutory benefits (for income support) after six months, there is no statutory guidance about assessing contributory negligence in s 3.11 or 3.28 however common sense and consistency would suggest that in assessing contributory negligence for the purposes of determining whether AGM is mostly at fault, I should apply the common law and enacted law.

90.   The enacted law is of course section 5R of the Civil Liability Act which applies sections 5B and 5C and requires consideration of the standard of care required of AGM. The Standard of care is that of a reasonable person in his position and the matter is to be determined on the basis of what AGM knew or ought to have known at the time of the accident. In assessing contributory negligence I must then consider a reduction by such percentage as is just and equitable in the circumstances of this particular case.

91.   Applying the High Court’s dicta in Podrebersek v Australian  Iron  and  Steel  Pty  Limited [1985] HCA 34; (1985) 59 ALJR 492.

The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man and of the relative importance of the acts of the parties in causing the damage. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.

92.   In the light of my factual findings, it is my view that for the insured driver to exercise reasonable care before turning right across Saywell Road he was required to stop and check that the intersection was clear before proceeding. It is also my view that in the particular circumstances of this case, having seen AGM approaching the intersection when he first looked, he should taken the small precaution of checking again before proceeding into the intersection. Simply put, the insured driver owed a duty of care not to turn across traffic until it was safe to do so. It is for that reason that GIO have conceded he breached his duty of care. While I agree the insured driver does not have to anticipate or expect a person to be speeding, having seen AGM on his first look, he had a duty to check again before proceeding. In my view, the insured driver’s relative culpability is greater than the 30% suggested by GIO.

93.   I have found that AGM was speeding. He was travelling at something in excess of 74 km/h in a 50 km/h zone along a street he was familiar with therefore he would have been aware of the intersection with Waratah Crescent and that motorists may wish to turn right from that intersection. I acknowledge that neither party has presented any expert evidence to me to suggest if AGM had been travelling at a lower speed he would have been able to avoid this accident, however I believe that by travelling at the speed he was travelling, AGM gave himself little opportunity to maintain control of his motorbike if an emergency presented itself before him. While his speeding has contributed to the accident, his culpability relative to that of the insured driver is, in my opinion less than the 70% assessed by GIO.

94.   The insured driver had seen AGM approaching and did not take the small extra precaution of checking again to see if his path was clear. He placed himself in the path of AGM when he should not have.

95.   In my view when I consider the relative culpability of both parties I am of the view that AGM should bear 40% of the blame for the cause of this accident.

96.   Having found his contributory negligence is not greater than 61% it follows that AGM is not wholly at fault for causing this motor accident and that his statutory benefits should be restored.

Is AGM entitled to costs?

97.   AGM seeks costs in respect of both applications currently before me. In respect of the dispute concerning whether he is entitled to ongoing statutory benefits, GIO has conceded that if AGM is successful he should be awarded costs as fixed by Schedule 1 of the Motor Accident Injuries Regulation.

98.   Noting the amount of work undertaken by Mr Kolokossian (a senior legal practitioner) in making the application to DRS, drafting submissions, attending on two telephone conferences, considering the bundle of police documents and advising his client, I am of the view the Claimant should be allowed costs at the maximum sum allowed under the Regulation that is the sum of $1,633 plus GST of $163.30.

99.   In respect of the dispute about which insurer is the relevant insurer, GIO says no costs should be awarded because the dispute about ‘relevant insurer’ was a dispute between the two insurers only and in accordance with s 3.3 only insurers can bring that dispute to DRS. In my view, s 3.3 empowers DRS to determine which insurer is the relevant insurer when there is a dispute about it or where there is a delay in determining it. I do not think that wording prevents a claimant from referring that dispute to DRS particularly when it was, in this case, preventing the determination of the substantive dispute that is, whether AGM was mostly at fault.

100.   I note the correspondence put before me by both Insurers. I note the Insurer’s submissions attached to the application against GIO which states quite clearly that the GIO was of the view Allianz was the relevant insurer and I note the letter from Allianz to the Claimant and its submissions that GIO was the relevant insurer. I note that at the first teleconference the representatives for both insurers admitted there were no published arrangements as permitted by s 3.3(1) which would help AGM determine which insurer was the relevant insurer. Finally GIO agreed only this week that it was the relevant insurer and even then GIO appears to qualify that by suggesting only for the purposes of these proceedings.

101.   In my view it was entirely reasonable that Mr Kolokossian referred to DRS, on behalf of his client, the dispute about which of the two insurers was the relevant insurer.

102.   Again considering the work that was undertaken by Mr Kolokossian in referring this particular dispute to DRS, preparing submissions, attending upon one teleconference and the communication involved in connection with the late agreement by the insurers, I am of the view that costs should also be awarded in the sum of $1,633 plus GST of $163.30 for this dispute.

Conclusion

103.   My determination of the Miscellaneous Claims Assessment matters referred to me is as follows:

a.   AGM is not wholly or mostly at fault for causing his accident;

b.   The Insurers have agreed that GIO is the relevant Insurer; and

c.   AGM is entitled to costs for each of the two applications before me.

104.   I will issue two certificates, one in respect of each application reflecting the issues in dispute in those applications.

Claims Assessor
Dispute Resolution Service
30 August 2019