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AGU v QBE Insurance (Australia) Limited [2019] NSWDRS CA 179

NSW DISPUTE RESOLUTION SERVICE (NSWDRS)
JurisdictionMiscellaneous Claims Assessment
CatchwordsMostly at fault – motorcycle – collision – conflicting versions of accident – witnesses – legal costs – learner driver licence – statutory benefits – self-employed – travel costs – expenses for attendance
Legislation cited Motor Accident Injuries Act 2017 (NSW) ss 3.11. 3.28, 3.36, 7.36(4), 7.3695), Schedule 2(3)(d) and (e)
Motor Accident Injuries Regulation 2017 ss 33, 200, Schedule 1 Section 3(1), Schedule 1 Section 3(2)(d) and (e)
Motor Accident Guidelines 2017 cl 7.441
Cases citedN/A
Text cited N/A
Parties AGU – Claimant
QBE Insurance (Australia) Limited – Insurer 
Disclaimer This decision has been edited to remove all Unique Personal Identification including the name of the Claimant.

Miscellaneous Claims Assessment Certificate

Reasons for decision

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d) and (e) of the Motor Accident Injuries Act 2017, about whether the Claimant is mostly at fault for causing the accident.

1.   There is a dispute between AGU, the Claimant, and the Insurer in respect to whether the Claimant was mostly at fault for causing the accident between his motorcycle and the uninsured motor vehicle,  in respect of which the Insurer represents the Nominal Defendant, and pursuant to sections 3.11 and 3.28 of the Motor Accidents Injuries Act 2017 ("the Act").

2.   The Claimant was injured when the motorcycle he was riding came into collision with a motor vehicle travelling in the opposite direction, driven by Ms P

3.   The Claimant says that as he came over the crest of a hill, he saw the vehicle in the opposite direction on his side of the road and heading towards him.  He  says the vehicle veered sharply to his left to avoid him but there was still a collision on his side of the road. He says the driver of the motor vehicle, Ms P, was at fault for causing the accident.

4.   The Insurer says that as the Claimant came over the crest of the hill, his motorcycle came onto the wrong side of the road as a result of which the driver moved to her left to try and avoid a collision but there was still a collision, on her side of the road. It says in those circumstances that the Claimant was mostly at fault for causing the accident.

5.   Accordingly, the Insurer issued its initial liability decision to cease the Claimant's benefits as and from 14 October 2018, on 14 September 2018. The Claimant sought an internal review of that decision and the Insurer issued its internal review decision on 5 November 2018. This was in the same terms, hence this application.

Documents considered

6.   I have considered the documents provided in the application and the reply and any further information provided by the parties.

7.   Further information has included additional police records, statements and a factual investigation report undertaken on behalf of the Insurer.

8.   The Claimant requested a face to face assessment conference and the Claimant attended in person and gave evidence and was questioned by the Insurer. A witness called by the Claimant, Mr MD, attended by phone and was also questioned.

9.   The Insurer called two witnesses by phone, the driver and her father, Mr P. They were also questioned. At the conclusion of the assessment conference I heard submissions from both parties.

Submissions

10.   The Claimant submits that he was not at fault, as I have set out above. He submits that the accident was caused solely by the fault of the driver for veering onto his side of the roadway and causing a collision on his side of the road.

11.   The Insurer submits that the accident was caused mostly by the fault of the Claimant for veering onto the wrong side of the road and for causing the collision, which its insured driver attempted to avoid.

12.   The Claimant relies on statements by himself and Mr MD as well as their oral evidence and also a statement made by the Insured driver to the police following the accident.

13.   The Insurer relies upon a written statement from Mr P together with the oral evidence of the driver and Mr P, and its factual investigation report which included an interview with the investigating police officer.

14.   Prior to the assessment conference, I raised with the parties a number of issues for their consideration prior thereto. Relevantly I asked the parties to consider which party bore the onus of proof in this matter. Is it the Claimant as it is his application or the Insurer, as it sought by its liability decision, to cease the Claimant's benefits? I heard oral submissions from both parties on this issue at the assessment conference which I will consider in my reasons below.

Legislation

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

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

Reasons

16.   I have considered the documents provided in the application and the reply and any further information provided by the parties, as I have set out above.

17.   As is clear from the above, there is a conflict as to how this accident occurred. Both the Claimant and the Insured driver blame each other, for being on the wrong side of the road and causing the collision.

18.   The Claimant completed his Personal Injury Claim Form on 3 May 2018, then about three weeks after the accident. He described the accident in the following terms therein:

"I was approaching a left hand corner, travelling at approximately 50-55 km/hr. As I entered the corner there was a vehicle coming in the opposite direction towards me. I believe this vehicle was on my side of the road. I had to make a decision about which way to go, the car was in front of me. The car then swerved violently to the left and I had no option but to hit the driver's side of the car. After the impact I was knocked out for approximately 3-5 minutes".

19.  The Claimant was not interviewed by the police at the scene of the accident because of his serious injuries. These included a number of factures  to his back and right leg and he was also momentarily unconscious. He was taken to the Canberra Hospital.

20.   The police did speak with the Claimant by phone, he believes a few months later, and he provided his version of the accident then.

21.   The Claimant has made a statement for the purpose of this application dated 30 May 2019. In that statement the Claimant said that he has been riding motorcycles for more than 32 years and he was very familiar with the roadway having travelled this a number of times in the past.

22.   On the day of the accident he was riding with a group of friends, probably about a dozen or so on motorbikes, but during the course of their journey they broke up into separate groups. At the time of the collision he said he was  riding  ahead of three or four other motorcycles.

23.   AGU says the riding conditions were perfect, it was clear, sunny and not windy. He said that just before the collision he had slowed at the bridge located at Dallen Ford Road as there was a number of pedestrians standing on and around the bridge. He checked his speedometer and he was travelling at 50 km/hr. He said he knew that after travelling across the bridge the road then began to rise to a crest, which then veered left.

24.   He said that he normally rides his motorcycle in the middle of the lane and that was what he was doing on the day. He said that as he approached the top of  the crest he noticed the vehicle that he later collided with was in his lane. He saw it swerve violently to the left to avoid colliding head on with him and if the driver had not done so he feared he could have been killed. He says that as the vehicle swerved, it clipped his motorcycle causing him to be thrown to the ground.

25.   He says that he has never been involved in a motorcycle accident at any other time.

26.   When questioned at the assessment conference, the Claimant says that the closest motorcycles ahead of him were two to five kilometres ahead and probably about ten minutes or so in travel time. He said there were no vehicles between him and the car when he first saw it and he was not overtaking any other vehicles just prior to the impact. The relevance of this will become clear.

27.   He said that when he first saw the insured vehicle, he was  on the crest of the hill and on his correct side of the road and the vehicle was heading towards  him. He said it was about 200mm on his side of the dividing centre lines, with the driver's side wheels. He said that at no time did he cross the unbroken lines before the collision so that the collision occurred on his side of the road.  He  said it has never been his practice to ride on the centre line.

28.   He says that since the accident he has been told by Mr MD that soon after he regained consciousness on the side of the road, he said to Mr MD"She was on my side of the road".

29.   He said that he was riding within the speed limit, which according to the police report was 60 kph.

30.   He said that there was a very short distance between when he saw the car and the impact, probably only two or three metres, and he first hit the front guard or mirror but after that did not recall as he was knocked unconscious. He recalled there was no time to brake.

31.   He said his motorcycle apparently hit the road on the opposite side after the impact. He confirmed that coming into the corner he was in the centre of the lane and then came off the centre at the time of impact.

32.   The Claimant relied on a statement and evidence from Mr MD who was one of the other members in the group of motorcyclists that date. Mr MD provided a signed statement dated 14 September 2018 and also, as I have noted, gave evidence by telephone at the assessment conference.

33.   Mr MD confirms that a group of riders has planned the trip this day and it was early into their ride that the accident occurred. He said he was travelling directly behind the Claimant with three others behind him and there was another group further ahead along the road. He confirmed the weather was fine and clear.

34.   He confirmed that as the group approached the Shoalhaven River, the road winds down to a bridge and the speed limit is reduced to 60 km/h. He said at that stage the Claimant was 30 metres in front of him. He also noticed several people standing near the bridge and some parked cars and that caused them both to slow down.

35.   He confirmed that after leaving the bridge, the road climbs back up and he  could see the Claimant following the road and then disappeared  over a crest. He then heard in his headset the Claimant yell out loudly and he heard the sound of a collision.

36.   He said in his statement that as he continued around the comer he could see a red colour car approaching and leaving the road out to his right. He said "The car seemed to be out of control". He said he saw the Claimant's  bike lying on the left hand shoulder and the Claimant himself lying on the right hand side of the road. He immediately went over to him and other people then started to pull over and stop, including the other motorcycle riders. Because of the country location they had to wait some time for an ambulance and the police to arrive.

37.   Mr MD said that the Claimant was not travelling above the speed limit nor too fast for the road conditions or corner. He was close  enough to  see him enter the corner to the left hand side of the lane and he said he took the same line entering the corner.

38.   When questioned at the assessment conference, he confirmed that he rushed over to the Claimant and tried to revive him and he came to and they had a brief conversation. He said that although he appeared shocked and confused, when he asked him what happened the Claimant said "The car was on the wrong side of the road".

39.   When cross-examined Mr MD said the Claimant would not have crossed the centre line, taking the line into the corner that he saw him take over the  crest of the hill.

40.   The Insurer called Ms P, the driver, at the assessment conference and she was questioned. The driver had given a statement to the police which was recorded in the investigating officer's police notebook. She signed that statement on the day of the accident, 14 April 2018.

41.   Her handwritten statement reads:

I was driving under instruction of my dad because I am on my learner's licence. I was driving towards the bridge about 60 klm. As I came over the hill I saw there were a number of motorbikes. One looked like it was trying to overtake the other ones, and swerved into my lane. I tried to pull over to the left and slow down. Then the motorbike that was trying to overtake hit my driver's side door. I put on my brakes and pulled over on the side of the road and stopped. My dad got out to help and check the motorbike rider".

42.   When questioned at the assessment conference, the driver said that she had a clear recollection and recalled making that statement and signing the notebook and she had seen it again recently.

43.   She said it was the Claimant's motorcycle that overtook other motorbikes and swerved into her lane. She could not remember how many other motorbikes there were or how close they were. She later said that she may have been incorrect about other motorcycles being present and it may just have been the Claimant's motorcycle "moving as motorcycles do". She did not elaborate on that statement. She said her father told her to move over on the road.

44.   As noted by the police, the Claimant was on her learner's licence and she told me she only had twelve hours driving experience in total at the time. That included the one hour drive from Jervis Bay on the day of the accident.  She said her sister RP was also in the car, seated in the back and she is now 20 years of age. She said she had had a learner's licence for about two months at the time.

45.   The driver said the first impact between the car and the motorcycle was when the car was in the gully. She identified this by referring to the photographs her father had taken immediately after the accident and where there was a speed advisory sign to slow down to 40 km/h. According to the photos the speed sign in fact says 45 km/h. She said that she was doing about 60 km/h at the time of the accident.

46.   She said that when she first saw the motorcycle it was at the crest of the hill and he was in the middle of the dividing lines or slightly on her side of the road. She said she slowly veered left to avoid a collision and kept veering left but had to avoid the road signs. She said both her side passenger wheels were in the dirt when the vehicles collided. She said she only moved gradually to the left and she thought the motorcycle first hit the rear passenger door and slightly to her driver's door and there was only one impact.

47.   Mr P, the driver's father, also gave evidence at the assessment conference by telephone. I should say that this is because Mr P and his daughter live in Victoria. Mr P also provided a written statement to the Insurer's investigator dated 23 July 2018. He took a number of photographs immediately after the accident which form part of the Insurer's investigator's report. Mr P told me that he took these photos about one minute after the accident as soon as he got out of the vehicle. That does seem strange to me given that the Claimant was lying on the side of the road and obviously injured. One might have thought that his first concern would have been for the Claimant's condition.

48.   In his written statement, Mr P says that he was supervising his daughter because she was on her learner's licence. She was driving his work  vehicle  that she had permission to drive and they were returning to Victoria from a holiday at Jervis Bay. He confirmed his other daughter was a rear seat passenger. He said in his statement that the driver had had her L plates for a few months but had not had a huge amount of driving lessons and it was mainly country style driving.

49.   Mr P said that his daughter had driven the same road a few day before when the family went to Jervis Bay. He said that before the accident his daughter had been driving below the speed limit and handling the car very well.

50.   He said that his daughter was driving at no more than 90 kph along a stretch of road with some slight bends as they were approaching the river crossing near where the accident occurred. He recalled that before the accident they passed three or four motorcycles travelling in the opposite direction.

51.   Describing the accident, he said his daughter was driving at a moderate speed and well within her lane. He wasn't sure of the speed but he thought it was between 80 and 90 kph. He said there were unbroken dividing lines and his daughter was slowing down as they approached the rise when he suddenly saw a motorcycle rider appear over the crest riding towards them approaching a slight left bend. He said he thought the rider was travelling too fast for the turn and crest and was heading towards them crossing the centre double lines. He said his daughter immediately veered to the left with the left tyres hitting the dirt verge and moved over as far as she could, nearly hitting a warning sign on the side of the road just as the front of the motorcycle collided into the driver's door. He said at that stage the car was half off the road and he thought the collision took place close to the centre of their lane, perhaps slightly closer to the centre of the road.

52.   Mr P said that his daughter was well within her lane and not veering towards the centre line or the other side of the road at all.

53.   In his statement Mr P said he recalled the passenger side tyres hitting the dirt 10 or 15 metres before the warning sign (to which I have already referred) and he thought at that stage they were travelling no more than about 60 kph.

54.   He said the bike first hit the driver's door, then scraped along the driver's side for a metre or two towards the back wheel.

55.  He said that soon after the impact the full car was on the dirt verge and they actually manoeuvred to the left of a white guide post before veering back to the right a bit to avoid trees and coming to a stop near the crest of a hill.

56.   He said "Ms P was screaming and just stayed in the car initially and I got straight out and walked around the front of the car and looked  back down the hill towards the motorcycle rider". He noticed damage to the car and he saw another group of motorbike riders come over the crest and slow down and stop near the rider and bike. He did not mention in his statement that it was at that point that he took the photographs.

57.   He said he saw the rider had slid off the road to the western verge and separated from the bike which was lying on its side on the other side of the road opposite him. He said he went down to the Claimant who  came to and was  able to stand up. He could see blood on him. He agreed it took some time for the police and ambulance to arrive.

58.   When questioned at the assessment conference, Mr P said that he saw the collision clearly and when he first saw the motorcycle it was coming over the crest and was in his correct lane, but just before the impact he came halfway into the other lane. He said his daughter then put the left hand tyres into the dirt but couldn't go any further because of the signs blocking passage.

59.   He agreed that when they went into the dirt, it was at the warning sign and that is where the impact occurred. He described their car as gradually  veering off the road.

60.   He thought the motorcycle was still upright when the collision occurred which he thought was just past the driver's door. He denied taking the  wheel of the vehicle to change its direction or that the vehicle was on the wrong side of the road. He agreed that his daughter had been doing 80 to 90 kph before the impact, but said she was not going fast and that he had last noticed the speed about two to three hundred metres before the impact. He said that whilst there had been a big group of motorcycles in total, they were not present at the time of the accident.

61.   As I have noted, there is a clear dispute between the parties as to which vehicle was on the incorrect side of the road at the time of the collision. The police investigated the cause of the accident.

62.   According to the police report, the speed limit in the area is 60 kph. Apparently when speaking to the investigator the police officer thought the gazetted speed was 80 kph but agreed that there were lower recommended speed signs on  both approaches to the bridge. The speed limit of 60 kph was confirmed by Mr D. That would mean that immediately prior to the collision the insured driver was driving in excess of the speed limit at the estimated 80 to 90 kph.

63.   The initial police report described the accident as follows:

Crash Summary Details

About 1030 Saturday 15/04/2018 (sic) The Rider of the Motor cycle was travelling in an easterly direction along the Oallen Ford Rd Oallen, The rider has crossed the Oallen Ford bridge and was attempting to navigate a left hand bend over the crest of a hill At this time the Driver of MV 2 was travelling in a westerly direction along the Oallen Ford rd Oallen  The Driver was traveling up the eastern side of the same hill as the  rider  At this time the rider's and MV's mirrors have collided, causing  the  motorcycle to turn into the vehicle, impacting the driver side The Bike has hit the roadway and the rider has been thrown from the bike The rider has slid down the hill in an easterly direction coming to rest unconscious on  the southern side of the road The bike has also slid down the hill, coming to rest on the northern side of the road

The MV has swerved off to the southern side of the road, into the dirt in an attempt to avoid an accident This vehicle has come to rest in the dirt on  the southern side of the road at the top of the hill"

64.   Further police records were then obtained on a GIPA application by the Claimant. These included a number of photographs taken by the police at the scene as well as further detail of the accident. In describing the collision of the mirrors it is recorded:

"It is unknown which side of the road this has occurred on. This has caused the MC to turn into the side of the MV. This impact has thrown the rider from the MC causing both to hit the ground on the driver's side of the road. Both the rider and bike have slid to the bottom of the hill coming to rest on opposite sides of the road.

At the time of impact the driver has attempted to swerve away from the motorcycle, causing her vehicle to leave the roadway onto the dirt"

65.  The report goes on to read:

"Police have observed 2 (my underlining) point of impact on the MV side of the road. Tyre tracks from the MV could be seen on the dirt at this point

...... The physical evidence at the scene can support either version supplied. Without any third party witness no determination could be made as a definite at fault driver'.

66.   As I have noted the investigating police officer, Senior Constable Kane Jackson, was interviewed by the Insurer's investigator on 4 July 2018.

67.   He told the investigator "The Claimant, he later learnt, had slid south along the north bound line between 15 to 20 metres south of the initial impact site, coming to rest just off the road surface onto the dirt verge. The officer commented that there was a white scrape mark along the path that AGU had slid, which police attributed to have been caused by AGU's helmet".

68.   The report goes on to read "Senior Constable Jackson offered a possible scenario that the first impact did appear to be with the side mirror of the vehicle adjacent to the driver's door. He surmised that this impact was likely with the right handlebar of the motorcycle, which could have caused the bike to turn further right into the side of the vehicle, resulting in it sliding along the driver's side of the vehicle as the two vehicles passed each other".

69.   The police officer apparently noted a gouge in the roadway, and this is shown in the photographs, which the police officer had felt had been caused either by the rim of or a snapped steel disc brake from the motorcycle at the end of the collision phase. The officer also noticed there was no debris on the road to assist in pinpointing an exact location of the impact and there was no evidence of tyre braking marks from either vehicle.

70.   Tyre marks were noted in the dirt consistent with the vehicle travelling in the same generally north bound direction and not indicating a sharp left turn.

71.   The police officer confirmed that due to conflicting versions of the accident, no action was taken against either the Claimant nor the driver.

72.   The police officer, as I have noted, made mention of a gouge and a white  scrape mark, on the surface of the north bound lane. As I have noted, he told the Insurer's investigator that this had been caused by the bike and  the Claimant falling to the road after the collision. These marks are clearly shown in the photographs and there is no doubt that the gouge mark is towards  the centre of the northbound lane. It is clear, however, from photo 38  that  the gouge mark is to the north of the speed warning signs, identified by both the driver and Mr P as being the point of initial impact. In that case, then given that the gouge mark was, according to the police, caused when the bike fell to the road after the impact, then the impact could not have occurred at the speed warning signs in the gully, as stated by the driver and Mr P. I note the Insurer's investigator also describes the gouge, in photo 31, as being caused by the tumbling motorcycle, just after the initial impact.

73.   The Insurer relies on the statements by the police officer and its investigator. Their conclusions as to the physical marks do not support the version of the accident given by the driver and her father.

74.   That means the point of impact must have been closer to the crest of the hill, as described by the Claimant.

75.   Accordingly, the driver would not have had the need to pull off the road before the speed warning sign and travel along in the dirt before the collision, as she and her father described.

76.   In addition, I find that the driver and her father were mistaken about the initial impact between the motorcycle and the vehicle. There is  clearly  damage shown to the driver's side mirror and this is consistent with the  police description of the initial impact being between the mirror and the handlebar of the Claimant's motorcycle. I accept, as Senior Constable  Jackson surmised, this caused the motorcycle to turn into the car with the resultant damage to the doors on the driver's side. I also accept his conclusion that the gouge in the roadway had been caused by a part of the motorcycle when it fell to the road after the impact. The position of that being in the northbound line does not indicate the initial point of impact, in my view, as I have indicated.

77.   Clearly the driver was mistaken as to the events leading up to the accident. Her initial recollection given in her signed statement in the police notebook was that the Claimant was trying to overtake other motorcycles and swerved into her  lane and that is what caused her to pull over and slow down. She also said she saw the motorcycle as she came over the hill (my underlining). These statements are inconsistent with the evidence of the Claimant, Mr MD and even Mr P. Given Mr P's description of his daughter screaming after the accident, I do not believe that she has a clear recollection of the immediate events before the accident.

78.   I also cannot accept Mr P’s description of the accident because clearly the point of impact was much closer to the crest of the hill than he indicated. This would not have allowed the gradual moving to the left that he described and in my view would be inconsistent with an inexperienced learner driver faced with a possible head on collision, calmly moving to her left. Indeed I note in his statement Mr P says, at paragraph 10, "Ms P actually done very well in immediately veering to her left .... .". That, in my view, is more consistent with the description given by the Claimant of the movement of the vehicle  just prior to the impact.

79.   Whilst there are tyre marks in the dirt to the western side of the road, these do not, in my view, confirm the movement of the vehicle as described by the driver and Mr P. They could equally be consistent with the vehicle having run off the road and then back onto it leading up to the point of impact and then leaving the road again. The tyre marks, according to the photographs and the diagrams prepared by the Insurer's investigator, do not appear to be continuous.

80.   In addition to these matters, I have taken into account that according to the driver and her father, she was exceeding the speed for that area leading up to the impact, as described in the police report and by Mr MD. I have also noted the absence of a statement from RP who was clearly present. I am not told whether she witnessed the collision or not, but the absence of her statement is unexplained.

81.   As I have not accepted the evidence of the driver and her father, as I have set out, then on balance I find that the accident occurred as described by the Claimant, an experienced motorcycle rider travelling within the speed limit. That is that as he came over the crest of the hill the vehicle had come across the centre lines onto his side of the road and the first impact was on his correct side of the road. The physical signs of the gouge mark and scrape mark are located on the road past that likely point of impact and are consistent with the Claimant and his motorcycle falling to the road there after the collision. I also accept the Claimant's initial comment to Mr MD that the car was on the wrong side of the road.

82.   I indicated at the beginning of these reasons that I had asked the parties to consider who bore the onus of proof. In the Claimant's submission the Insurer bore the onus and in the Insurer's submission the Claimant bore the onus.  It was the Insurer's view that its decision having been made as to fault and the Claimant having brought this application, that it was the Claimant's onus. In my view that is erroneous.

83.   Pursuant to Part 3 of the Act, the Claimant is entitled to statutory benefits which only cease, under sections 3.11 and 3.28 if the accident was caused wholly or mostly by the fault of the person.

84.   There is no dispute that the Claimant had been receiving statutory benefits before the Insurer's decision. It is the Insurer's allegation that the Claimant was mostly at fault for causing the accident. This application is a challenge to that decision but does not, in my view, shift the onus from the Insurer, given that by that decision it seeks to terminate the Claimant's statutory benefits.

85.   I should add, however, that even if the Claimant bore the onus, I am satisfied that he has discharged that onus of showing that he was not mostly at fault for causing the accident.

Costs and expenses

86.   Part 8 of the Act relates to costs and fees. Section 8.10 provides for the recovery of costs and expenses in relation to claims for statutory benefits, subject to the provisions of the Motor Accident Injuries Regulation.

87.   Schedule 1 to the Regulation provides, at section 3(1), that the maximum legal costs for services provided to a Claimant in connection with the assessment  of a dispute about a regulated miscellaneous claims assessment is to be an amount of $1,600.00. That has now been increased from 1 October 2019 to an amount of $1,660.00.

88.   Pursuant to section 3(2)(d) and (e) disputes under section 3.11 and 3.28 are regulated miscellaneous claims assessment matters.

89.   I have the power therefore to assess a Claimant's costs in connection with this miscellaneous claims assessment matter. I note the amount of work done  by the Claimant's solicitors has not been insignificant, including attendance at the teleconference and assessment conference. The likely professional  costs  of the Claimant's solicitors would exceed the amount allowed in the Regulation.

90.   I propose therefore to allow the maximum and assess the Claimant's costs at $1,660.00 plus GST, making a total of $1,826.00.

91.   At the conclusion of the assessment conference I also discussed with the parties the costs of the Claimant's attendance at the assessment  conference, for which he had travelled from Canberra to Sydney.

92.   Pursuant to Part 6, Division 1, section 200) of the Regulation, travel costs and expenses of the Claimant for attendance at the Dispute Resolution Service are not regulated. The Claimant should therefore have his costs of attendance at  the hearing.

93.   The Claimant drove from Canberra which was a round trip of 600  kms. Pursuant to Division 5, section 33 of the Regulation, costs of travel by a private motor vehicle for a medical assessment are to be calculated at a rate of $0.66 per kilometres. In my view that is an appropriate rate for the Claimant's travel  for the assessment conference. 600 kilometres at $0.66 per kilometre is $396.00.

94.   The Claimant also claimed the cost of overnight motel accommodation at Randwick in an amount of $210.00 which appears reasonable as well as Uber and taxi fares of $46.00, again a reasonable expense.

95.   The Claimant is self-employed and missed one and a half days work to attend. He indicated that he could probably pick up one day of this work but the other half day would be missed at a normal loss of $600.00 gross. I would allow that loss on a net basis at $300.00.

96.   Accordingly, the Claimant's travel costs and expenses for attendance at the Dispute Resolution Service will be an additional amount of $952.00.

97.   The Claimant's legal costs and expenses will therefore be in total an amount of $2,778.00 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

98.   For the purposes of section 3.11 the motor accident was not caused mostly by the fault of the Claimant.

99.   For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the Claimant.

100.   Legal Costs and Expenses: The amount of the Claimant's costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826.00 and the amount of the Claimant's expenses for attendance at the Dispute Resolution Service is an amount of $952.00, making a total of $2,778.00 inclusive of GST.

Philip Watson
DRS Claims Assessor
Dispute Resolution Service