ABA v NRMA Insurance Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	ABA v NRMA Insurance Ltd [2021] NSWPIC 143
APPLICANT:	ABA
RESPONDENT:	NRMA Insurance Ltd
MEMBER:	Maurice Castagnet
DATE OF DECISION:	27 May 2021
CATCHWORDS:	MOTOR ACCIDENTS- Miscellaneous claims assessment; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; significant injuries; Nominal Defendant; why the claimant’s vehicle left the road; unidentified black 4WD van or SUV swerved suddenly into his lane; son as a front-seat passenger; car that caused the accident did not stop; COPS; witness statement; no black 4WD near the claimant’s car; witness accounts are directly contradictory; claimant’s immediate history provided as to the existence of a black SUV; Held- claimant was not wholly or mostly at fault in the motor accident; costs exceptional circumstances.
DETERMINATIONS MADE:	1. For the purposes of section 3.11 the motor accident was not caused wholly or mostly the fault of the claimant. 2. For the purposes of section 3.28 the motor accident was not caused wholly or mostly by the fault of the claimant. 3. The insurer is to pay the claimant’s costs in the amount of $15,394.50 inclusive of GST.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

INTRODUCTION

The matter for determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2, clauses (3)(d) and (e) of the Motor Accident Injuries Act 2017 (the Act) about whether ABA (the claimant) was wholly or mostly at fault for causing the motor accident on 24 September 2018.

THE BACKGROUND TO THE CLAIM

The claimant is a 68-year-old man who suffered significant injuries in a motor accident on 24 September 2018 on the M4 Motorway near St Clair.
He was driving his Toyota Hilux westbound on the Motorway when his motor vehicle left the roadway and collided with some trees on the median strip.
On or about 30 September 2018, the claimant lodged an Application for Personal Injury Benefits with the CTP insurer of his own vehicle, Allianz.
Personal Injury Benefits are statutory benefits that include weekly payments for loss of earnings and the costs of reasonable and necessary treatment and care.
Allianz accepted liability for the claim for the first 26 weeks and paid statutory benefits to the claimant during that period. Thereafter, Allianz declined to pay further benefits on the basis that the claimant was wholly at fault in the motor accident.
The claimant pursued a claim for further statutory benefits through the Nominal Defendant. He contended that his motor vehicle was forced off the roadway by an unidentified motor vehicle. The claim was allocated to NRMA, the respondent insurer to this Application.
On 24 June 2019, the insurer issued a Liability Notice – Benefits after 26 weeks denying the claim on the basis that the claimant was charged with Negligent Driving and the insurer considered that this was a serious driving offence within the meaning of s 3.37 of the Act.
On 5 July 2019, the claimant requested a review of this decision.
It is not apparent from the documents before me whether the internal review took place but on 5 August 2019, the claimant lodged an application with the Dispute Resolution Service (DRS) for a review of the insurer’s decision, which was accepted.
As part of its reply to the DRS application, the insurer issued a Further Liability Notice denying liability for the claim on the basis that the claimant was wholly at fault for the motor accident.

At some stage the insurer abandoned its denial of liability on the basis of the claimant having committed a serious driving offence, although it is not clear from the documentation before me exactly when that occurred.
The matter was referred to Assessor Inglis (as he then was) for determination with an Assessment Conference due to proceed on 11 December 2019.
On 5 December 2019, the insurer made an application for an adjournment of the assessment conference seeking more time to pursue and obtain a statement from an independent witness, CT.
The claimant agreed to an adjournment on the basis that the insurer re-instated payment of statutory benefits until the liability issue was resolved.
The Assessor adjourned the matter to a preliminary conference on 30 January 2020 and an Assessment Conference on 6 February 2020.
On 30 January 2020, the insurer advised the Assessor that it had not been successful in obtaining a statement from CT. On the same day, the insurer issued (a second) Further Liability Notice, on this occasion, admitting liability for payment of statutory benefits after 26 weeks from the date of the motor accident. This effectively brought those proceedings to an end.
On 6 October 2020, the insurer issued (a third) Further Liability Notice denying liability for ongoing statutory benefits on the basis that the claimant was wholly at fault for the motor accident. On this occasion, the insurer relied primarily on the evidence obtained from CT in a statement dated 7 September 2020.
An internal review of this decision was sought by the claimant on 11 December 2020.
On 30 December 2020, the insurer confirmed its original decision which resulted in the claimant bringing this application which is now before me for determination.

THE ISSUES IN CONTENTION

The central issue in the dispute is why the claimant’s vehicle left the roadway.
The claimant contends that an unidentified black 4WD van or SUV swerved suddenly into his lane which forced his motor vehicle to leave the roadway and eventually crash into some trees on the median strip.
The insurer contends that the claimant’s motor vehicle left the roadway because the claimant lost control of it and that there was no other vehicle involved which may have caused the claimant’s motor vehicle to leave or be forced off the roadway.

DOCUMENTS CONSIDERED

I have considered the documents provided in the Application and the Reply. I have also considered the following further documents provided by the parties:
(a)    The claimant’s additional submissions on costs dated 29 March 2021.
(b)    The insurer’s submissions on costs dated 1 April 2021.
(c)    The claimant’s further submissions on costs dated 6 April 2021 (10.35 am via the portal).
(d)    The insurer’s further submissions on costs dated 6 April 2021 (12.46 pm via the portal).
(e)    The insurer’s further submissions on costs dated 6 April 2021 (20.45 pm via the portal).
(f)    The claimant’s supplementary submissions on costs dated 8 April 2021.

EVIDENCE NOT IN DISPUTE

The following evidence is uncontroversial:
(a)    The motor accident occurred at about 4.20 pm on the M4 Motorway westbound, between the Bennett Road overpass and the Mamre Road overpass, St Clair.
(b)    There were three lanes of travel westbound on the M4 Motorway, lane 3 being closest to the median strip or the fast lane.
(c)    The witness CT was driving his motor vehicle westbound in lane 3 at a distance behind the claimant’s motor vehicle.
(d)    The weather was fine and the roadway was sealed and dry.
(e)    The claimant’s blood alcohol reading was negative.
(f)    There were no issues of mechanical failure or tyre blowout.
(g)    The claimant was trapped in his motor vehicle for at least 55 minutes after the motor accident.
(h)    Senior Constable Mary-Louise Keating of the NSW Police Force was at the scene within minutes or a short time after the accident occurred.
(i)    The claimant’s son, ABA’s son, was travelling in the claimant’s motor vehicle as a front-seat passenger.

THE CLAIMANT’S EVIDENCE

The claimant made three statements regarding the circumstances of the accident. He also gave oral evidence at the Assessment Conference.

Statement in the claim form

The claimant lodged an Application for Personal Injury Benefits on or about 30 September 2018. The evidence reveals that he was still an in-patient at Westmead Hospital at that time.[1]
[1] R3.
In the application, the claimant describes the circumstances of the accident as follows:
“As I was driving west on M4, I swerved to not hit a car that was entering my lane & in doing so I lost control & came off the road & hit a tree.”

Statement recorded in Police notebook

About two months later, on 26 November 2018, the claimant was interviewed by Senior Constable Keating when he was an in-patient at Minchinbury Hospital. Senior Constable Keating recorded the following evidence from the claimant in her notebook about the circumstances of the accident[2]:
“About 4.20 pm I was travelling west on the M4. I had left work about 4.00 pm. In the car with me was my son. I was travelling in lane 3 westbound and I was under the speed limit. I always travel under the speed limit. We were travelling along and I saw a 4WD van or SUV in lane 2. It caught my eye as it had tinted windows. He had his blinker on. He came straight into us like a spear. I didn’t know what he was doing. He came in on my left just past the front door and he was spearing into me. I have swung the car out into the breakdown lane. I saw the chain. I saw we were close to the drain. I then swung back to the left when I saw the chain and then there was the tree. I thought I had missed the drain. The next thing I remember someone saying ‘Are you alright?’”
[2] A11.

Statement of 17 September 2019

On 17 September 2019, the claimant provided a statement through his solicitors.
In that statement, he described the circumstances of the accident as follows[3]:
“…
2.     On Monday 24 September 2018 at about 4.00pm I was driving my motor vehicle, a white Toyota Hilux in a westerly direction on the M4. I had passed under the Bennett Road overpass at St Clair. I was in the right hand/number 3 fast lane. I had my son, ABA’s son, in the passenger seat.
3.      The M4 at that time, at that place, was having roadworks done and there was an 80 km speed limit and I was travelling at about the speed limit. At that time of the afternoon there was a fair bit of traffic going west.
4.      I noticed a black SUV type vehicle which had been in the number 1 lane come across into the number 2 lane and then suddenly, and without putting on its blinker, it started to come into my lane right on top of me. I had to brake to avoid a collision and I steered right to try and avoid hitting that black vehicle. As I did that I got on to the side of the road, the car got slightly out of control and I ended up going inside the cable barrier and hitting a tree in the middle of the expressway. There was quite a heavy collision and my car came backwards from the tree and ended up on its side on top of the cable wiring on the right-hand side of the number 3 lane on the M4 expressway, only approximately 100 to 200 metres beyond the Bennett Road overpass.
5.      The black car that caused the accident did not stop. It kept going. I did not see, in the fraction of a second that the accident occurred, any details of the driver or the registered number of the car. I was concentrating on avoiding the collision and then watching where I was going as I collided with the tree.
…”
[3] R5.
In his statement, the claimant also said that he recalls that virtually a few seconds after the accident he received a phone call from his eldest son, F. He recalls telling him that he had just been in a car accident and that he was trapped in the car. He recalls that as soon as he hung up, he received a call from his wife A and he told her the same thing.

Claimant’s oral evidence

The claimant gave oral evidence at the Assessment Conference. His oral evidence may be summarised as follows:
(a)    He was driving his vehicle in lane 3.
(b)    He had slowed down to about 70-80 km an hour when he saw the roadworks sign and speed limit.
(c)    Traffic had started to pick up. At that time of the day, it starts to increase a bit.
(d)    He first saw a black SUV travelling in lane 1. He was talking to his son. He then saw the black SUV spearing from lane 1 into lane 2 and towards his vehicle in lane 3.
(e)    He did not see any indicator light on the SUV when it moved from lane 1 to lane 2 and towards his vehicle. It is possible that it had its blinker on, but he did not see it, the vehicle was virtually on top of him. It happened so quickly. All he knows is that he had to get out of the way.
(f)    He saw the front driver’s side of the black SUV near the left front side of his vehicle, near the wheel guard. It was going to hit his vehicle.
(g)    He does not know how fast the black SUV was travelling. It was at an angle. It was spearing towards him. The vehicle must have been going faster that he was but he does not know how fast.
(h)    He started braking to avoid a collision with the black SUV. He swerved within seconds. There was no contact with the vehicle.
(i)    He does not remember seeing any police car or police car lights on the other side of the Motorway.
(j)    He did not tell his wife about what happened in the accident while he was in hospital. His wife paid the (negligent driving) fine without him knowing and while he was still in hospital.
(k)    He could have told hospital staff about what happened in the accident, but he cannot remember. He does not remember anyone at the hospital asking him how the accident happened.
(l)    He knew that his licence had expired (the day before) and he had the (renewal) forms with him that day, to go and renew it in Penrith.

THE EVIDENCE OF THE WITNESS ABA’S SON

The claimant’s son, ABA’s son, made a statement through the claimant’s solicitors on 21 February 2019.
In his statement, he describes the circumstances of the accident as follows[4]:
“…
2.      I recall that I was coming home that afternoon with my father, in his car. I recall we left Blacktown at about 4.00pm and we were travelling our normal way home which was on the M4 expressway heading west towards Orchard Hills.
3.      As far as I can remember it was fine weather and the traffic, as usual at that time of the afternoon was fairly busy heading west.
4.      I recall that I was sitting in the front passenger seat of my father's Toyota Hilux and the car was driving in the number 3 lane, the one closest to the median strip heading west at about 75 or 80 kmph as we were going through a road works zone.
5.      I recall that I was chatting with my father and everything was normal. I recall that he suddenly braked and swerved and said "oh shit" At that moment I saw a black car coming from my left towards our lane at an angle and my father's car was swerving right to avoid colliding with that black car.
6.      I couldn't see who was driving the car and I didn't see the registration number or get any details about the car.
7.      My father's car went right, ended up on the median strip and collided with a tree.
…”
[4] A9.
ABA’s son also gave oral evidence at the Assessment Conference. His evidence may be summarised as follows:
(a)    He suffered a brain injury in a car accident when he was about 17 years old and still at school.
(b)    He is able to read and write English. He has done a course at TAFE after leaving school. He has read his statement and signed it.
(c)    He recalls that they were travelling in lane 2 and a black car coming towards the front left side of their vehicle. It was going faster. It was on the side of him coming towards the front of their vehicle.
(d)    He did not see any indicator light on the black car.
(e)    When his father saw the car, he said ‘Oh, shit,’ and then started to swerve. He saw the black car coming toward them as his father said those words.
(f)    His father later told him that the speed limit was about 80km/ph.

NSW AMBULANCE REPORT

In evidence, is the NSW Ambulance Electronic Medical Record dated 24 September 2018.[5]
[5] R2.
The evidence reveals the ambulance paramedics arrived at the scene of the accident at 4.32 pm. Contact was made with the claimant at 4.34 pm. He was trapped in his vehicle by compression to his lower legs. The passenger had already been pulled from the vehicle by bystanders.
The evidence reveals that at 4.40 pm, the claimant was observed to be verbally orientated, obeying motor commands and had a Glasgow Coma Scale (GCS) score of 15/15.
The evidence reveals that the claimant was transported from the scene at 5.23 pm.

NSW POLICE FORCE DOCUMENTS

In evidence, are documents which were produced on 21 June 2019 by the NSW Police Force to the insurer’s investigators, AHC Investigations, under the Government Information (Public Access) Act 2009 (GIPA)[6].
[6] A11
One of those documents was a COPS event report that was finalised on 30 March 2019. It provided a narrative of the circumstances of the motor accident. That narrative is the same as that contained in the NSW Police Force Report issued to Allianz on 12 November 2018[7] prior to an interview with the claimant on 26 November 2018. It reads as follows:
“As the vehicle has approached the Emergency U turn bay a Police vehicle has passed travelling in an easterly direction. According to the witness the driver for unknown reasons has braked harshly causing the vehicle to swerve and [sic] sideways and mount the Flexi Fence, the vehicle has travelled sideways along the Flexi fence for several metres before colliding with a section of trees.”[8]
[7] A10
[8] A11

THE EVIDENCE OF SENIOR CONSTABLE KEATING

The author of the COPS event report and the Police Officer who attended the scene of the accident, Senior Constable Mary-Louise Keating, was interviewed on three occasions in relation this matter.

The first interview with M&A investigations

Senior Constable Keating was first interviewed by an investigator, John Bow of M & A Investigators on behalf of Allianz on 20 February 2019 at Springwood Police Station and through a telephone call on 20 March 2019.
A transcript of her record of interview is in evidence.[9] Her evidence may be summarised as follows:
[9] A12.
(a)    On the day of the accident, she was patrolling the M4 to make sure traffic was moving smoothly.
(b)    At about 4.20 pm, she was travelling east between Mamre Road and the Bennett Road overpasses when she received a CAD message about the accident.
(c)    As she was close by, she drove to the scene and arrived about 30 seconds after the accident happened. She did not actually see the accident happen. She used the emergency U-turn bay to turn around and approach the scene.
(d)    At the scene, she saw smoke and dust in the air and a Toyota Hilux Utility XXXXX X. It had mounted the wire guard rail and driven into trees. The driver and passenger were getting out of the vehicle and she checked on their welfare.
(e)    She said there was no indication of changing lanes or oncoming vehicles. There were no other cars. It was a single vehicle accident.
(f)    The driver, ABA had an expired licence YYYYYY, 23 September 2018.
(g)    She described the scene of the accident as 1 km east of the Mamre Road overpass on the westbound side at St Clair and west of the emergency U-turn bay. There were 3 lanes westbound. There were roadworks at the time and the speed limit was 80 kms.
(h)    She spoke to the claimant at the scene but not really about what happened. She was more

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concerned about his welfare.
(i)    She then spoke to the claimant again on 26 November (2018) in hospital. The claimant said he was in the third lane going under the speed limit. There was a four-wheel drive or van in lane 2 that had its blinker on and it caught his eye. The vehicle then started to move into his lane as if it was going to spear into him. He has swerved to avoid it.
(j)    She said that there was no supporting evidence that confirmed or assisted the claimant’s version of events.
(k)    The claimant’s 35-year-old son, ABA’s son, was in the vehicle at the time but she said that she did not interview him.
(l)    She said that there was a witness to the accident, CT [sic] (T). CT stated he was behind the claimant’s car and saw the car swerve for no reason and hit the wire fence. He stated there was no black 4WD near the claimant’s vehicle.
(m)     She said she interviewed CT but she was not prepared to read his statement onto the record.

The second interview with AHC Investigations

A few weeks later, on 31 March 2019, Senior Constable Keating was again interviewed at Springwood Police Station. On this occasion, the interview was conducted by Shane Darlington of AHC Investigations on behalf of the respondent insurer to this application.
A transcript of her record of interview is in evidence.[10]
[10] R4.
A summary of her evidence is as follows:
(a)    The accident happened about 4.20 pm, westbound on the M4 and just after the Bennett Road overpass and the closest intersection was Mamre Road, St Clair.
(b)    She was driving eastbound on the M4 when she saw a group of people on the side of the road. She got a radio message and so, turned around and came back using an emergency U-Turn bay.
(c)    The speed limit was 80 kms due to roadworks.
(d)    There was medium traffic and the weather was fine.
(e)    She said that there were no witnesses to the accident itself.
(f)    She said there were other people who had stopped by but they did not see anything.

The third interview with the claimant’s solicitors and Mr Stone SC

Senior Constable Keating was interviewed for the third time, on this occasion by the claimant’s solicitors at Springwood Police Station on 28 January 2020. Mr James McAuley of Lamrocks Solicitors was in attendance at the Police station and Mr Stone SC was in attendance by telephone.
In evidence is a transcript of the record of interview.[11]
[11] [A15].

On this occasion, Senior Constable Keating gave evidence that she did speak to the claimant at the scene of the accident about the circumstances of the accident.
A relevant extract of her evidence is as follows:
“73 Andrew Stone SC: Did you have any conversation at all with ABA at the scene?
Snr Con Keating: Um I asked him how he was.
74 Andrew Stone SC: Yes.
Snr Con Keating: And I quickly got what happened.
75 Andrew Stone SC: Okay and what did he tell you about what had happened?
Snr Con Keating: That um that there was a vehicle in lane um, now you’re stretching my memory here because I haven’t re-read anything – um that he was travelling in lane 2 or he was in lane 3 and there was a vehicle in lane 2 and the vehicle swerved towards him and he went off the road – lost control and sent off the road – something along those lines.
76 Andrew Stone SC: And that was an account he gave you at the scene within a very short period of time of the accident having occurred and whilst he was still trapped in the vehicle.
Snr Con Keating: Yeah, roughly, yes, that’s not his exact words but roughly that to my memory.”
The remainder of her evidence from the interview may be summarised as follows:
(a)    She arrived at the scene of the accident in a very short time.
(b)    She confirmed that by the time she arrived at the scene, several cars had pulled up, someone had exited their car and made their way to the side of the claimant’s vehicle.
(c)    When she arrived at the scene, she observed smoke and dust in the air.
(d)    She spoke to ABA’s son at the scene and asked him how he was and does not think that she asked him about how the accident happened.
(e)    She spoke to CT at the scene of the accident and he told her that the claimant just drove off the road and there was no other car.
(f)    She probably talked to CT after she had heard from the claimant about the existence of the black vehicle.
(g)    She has spoken to CT by phone on a couple of occasions subsequently because the (insurers’) investigators wanted her to contact CT to see if he would give a statement to them.
(h)    She did not take a written statement from CT at the scene.
(i)    She interviewed the claimant in hospital on 26 November 2018 and took a statement which she recorded in her notebook.

THE EVIDENCE OF THE WITNESS CT

CT was interviewed by Shane Darlington of AHC Investigations on behalf of the respondent insurer to this application. He provided a statement on 7 September 2020.[12]
[12] A20.
CT was 20 years of age at the time of the motor accident and 22 years of age at the time of signing his statement.
In his statement, he describes the circumstances of the accident as follows:
“…
9.     On 24 September 2018, I was a witness to a single vehicle motor vehicle accident on the M4 Motorway. At the time I was driving my work car, being a White Mazda BTS0. The registration of my vehicle was ZZZZZZ. At the time I was driving alone. The vehicle is a single cab ute and has tinted windows.
10.   I was on my way home to xxxxx Claremont Meadows from my job site at Rozelle. I left Rozelle at about 3:30pm. I was not in a hurry and had been driving for about 1 hour when the accident occurred.
11.   At approximately 4:20pm I was travelling in a Westerly direction on the M4 Motorway in lane 3 of 3. The speed limit was 110km/h and I was traveling at 110km/h. There was not a lot of traffic on the road at the time. The weather was fine and sunny and the road was dry. I don't recall the sun being in my face or affecting my view of the road in front of me.
12.   I noticed a white ute in front of me. I am not certain of the make or model of the vehicle. It had NSW registration XXXXX X. This car was about 60-70m in front of me with no other car between it and myself. I estimate this vehicle was in front of me for at least 5km before the accident.
13.   During this time the driver of this vehicle appeared to be traveling [sic] at the speed limit, and was not swerving in and out of traffic. Both myself and this driver maintained the speed limit of 110km/h and at no time did either of us exceed the speed limit.
14.   When I drive, I always look ahead of the vehicle that is in front of me. At the time there were no vehicles in front of the white ute or to the left side in lane 1 or 2. There are only 3 lanes so to the right of the vehicle was a large grassed median strip separating the West and east bound lanes.
15.   I had just passed the Bennett Rd overpass when I noticed a police vehicle stopped with its lights on. It was stopped on the far-left side of the East bound lanes. I am not sure if it was conducting a traffic stop or if it was just stopped by itself.
16.   When the white ute in front of me was in line with the police vehicle on the opposite side of the road, the vehicle suddenly slowed, the driver jumped on the brakes, I heard the sound of brakes and saw smoke from the rear of the car before it swerved to the left, entering lane 2 of 3, then swerving to the right back into lane 3 of 3 and continuing out of control into the median strip where its front end has collided heavily with a tree. I estimate the vehicle was out of control for between 20-50m before it collided with the tree.
17.   I believe the driver has seen the police vehicle, reacted for some reason resulting in the driver losing control. There were no other cars in front of or next to the car prior to the driver losing control. I had a clear view of this vehicle when it lost control as my view was unobstructed. At no time was I in lane 2 beside the white ute prior to the accident. I was always behind the vehicle. At no time did I observe a white van or SUV with tinted windows swerve from lane 2 into lane 3 causing the white ute to crash into the tree.
…”
The remainder of his evidence may be summarised as follows:
(a)    He had a clear view of traffic from all directions before the accident. The road was level from his direction. It was daylight at the time and there was no glare or shadows affecting his vision.
(b)    There were no roadworks underway at the time of the accident.
(c)    He pulled over to the right side of the road. There were a number of other drivers who had also stopped.
(d)    The Police arrived in about 5 minutes. He spoke to an officer for a short time at the scene. He does not recall the police officer’s name. He told them that he witnessed the entire accident and that there was no other vehicle involved.
(e)    The Police have not contacted him since the day of the accident to provide a formal statement.
(f)    He has not received correspondence from the claimant, his representatives or insurers since the accident.

THE CLAIMANT’S SUBMISSIONS

The claimant made both detailed written submissions and oral submissions which may be summarised as follows.

Written submissions

The claimant gave a contemporaneous account to an attending police officer whilst still trapped in his vehicle at the scene and that he has given multiple consistent accounts since. His consistent account has been that he was forced off the road by a black 4WD or SUV cutting across in front of him from lane 2.
The claimant swerved to the right to avoid an impending collision. The claimant does not suggest there was any contact between his vehicle and the unidentified SUV. The swerve to the right was to avoid a collision occurring.
The claimant’s account is corroborated by his son who was in the front-passenger seat.
The only evidence to challenge that of the claimant and his son comes from CT who was driving some distance behind the claimant’s vehicle. CT has signed a statement (prepared for him by an investigator retained by the respondent insurer) on 7 September 2020. The statement denies the presence of a black SUV.
The claimant submits that the Member is entitled to take into account multiple factual errors in CT’s statement when considering the reliability of his account. Some of these include the following:
(a)    CT identifies the relevant section of road as having a speed limit of 110 km/h applicable at the time of the accident. He says that he was travelling at 110 km/h on the day of the accident.[13] This evidence is incorrect. The claimant has described that he was travelling through a roadworks zone and that the speed limit was 80 km/h. Senior Constable Keating’s evidence confirms that the applicable speed limit was 80 km/h due to roadworks[14].
(b)    CT says: “There was not a lot of traffic on the road at the time.”[15] This is inconsistent with the description of Senior Constable Keating that there was moderate traffic flow.[16] The statement is also grossly inconsistent with common experience. The accident occurred on the M4 westbound in the course of the evening peak hour. CT says that he had left his place of work at Rozelle at 3.30 pm and that he had been driving for about an hour when the accident occurred at about 4.20 pm.[17] The distance from Rozelle to the scene of accident is only 40km so CT must have been in the understandably substantial peak hour traffic to have taken 50 minutes to travel that 40 kilometres involved. This is particularly so when considering that over half the journey would have been on the M4 with its absence of traffic lights and its higher speed limits.
(c)    Later in his statement, CT again repeats the incorrect history that the applicable speed limit was 110 km/h.[18]
(d)    CT says that he had just passed the Bennett Road overpass when he noticed a police vehicle stopped with its lights on. It was stopped on the far-left side of the eastbound lanes. He was not sure if it was conducting a traffic stop or if it was just stopped by itself. This evidence is most likely a flawed reconstruction. It is untrue. Senior Constable Keating never describes being stopped by the side of the road with her lights on when travelling eastbound. To the contrary, she describes being in motion eastbound and only passing the accident after it had already occurred and several vehicles had come to a halt.
(e)    There is no suggestion of any other police car in the vicinity. If there had been a police car sitting stationary eastbound opposite where the accident occurred, then that police car would have been the first responder ahead of Senior Constable Keating. CT has effectively manufactured a memory to try and explain the accident. The stationary eastbound vehicle which he describes so confidently does not exist and never did.
(f)    CT’s confabulation is extended later in his statement where he speculates (without any basis) that the claimant has seen the police vehicle and reacted for some reason, resulting in a loss of control.[19]
(g)    Given that the claimant was acknowledged by CT to be travelling at the speed limit,[20] there is just no logical reason why the claimant would lose control because there happened to be a police car on the other side of the road, stationary with its lights on. There is certainly no reason for the sort of heavy braking that would cause a vehicle to run out of control off the roadway. CT’s speculative and falsely based accident reconstruction efforts do not reflect well upon his credit.
(h)    CT says that the Police have not contacted him since the date of the accident to provide a formal statement.[21] If this is the truth, then it is certainly only a half truth. The evidence of Senior Constable Keating is that she spoke to CT on a couple of occasions by telephone subsequently.[22]
(i)    CT says: “I have not received correspondence from the claimant, their representatives or insurers since the accident.”[23] Again, if this is the truth, then it is very much only a half truth. There have been efforts to contact CT by the claimant’s legal representatives and the insurers’ investigators (M&A on behalf of Allianz and AHC Investigations on behalf of the respondent insurer). CT has spurned all of these efforts to meet with and interview him for a period of two years. It is unclear as to why CT includes this half-truth in his statement and why it is phrased as it is. It is unclear whether this half-truth is purely the work of CT or whether he received assistance from Mr Darlington in trying to shape his statement to avoid having to mention how evasive he had been in response to earlier efforts to try and interview him.
[13] A20 – paragraph 11 of CT’s statement.
[14] R4
[15] A20 – paragraph 11 of CT’s statement.
[16] R4 – Q36
[17] A20 – paragraph 10 of CT’s statement.
[18] A20 – paragraph 13 of CT’s statement.
[19] A20 – paragraph 16 & 17 of CT’s statement.
[20] A20 – paragraph 13 of CT’s statement.
[21] A20– paragraph 22 of CT’s statement.
[22] A15 - Q89 and Q99 – 101.
[23] A20– paragraph 27 of CT’s statement.
In her third record of interview, Senior Constable Keating was unable to explain why she had not recorded in her police notebook the information given to her by the claimant at the scene as to the circumstances of accident.[24] Senior Constable Keating appeared to try and walk back from the suggestion that she had obtained a contemporaneous account from the claimant at the scene. This appeared to be in response to the challenge as to why she had failed to record this important conversation in her police notebook.
[24] A15 - Q20
In the same interview, Senior Constable Keating agreed that the second account that she took from the claimant when she interviewed him in hospital was consistent with the contemporaneous account that he gave at the scene.[25]
[25] A15 - Q81
However, there is an inescapable logic that Senior Constable Keating just could not avoid. In her record of interview with M&A Investigations (for Allianz)[26] she told the investigator she had discussed the accident with the witness, CT at the scene. CT had said that there was no black SUV near the claimant’s vehicle.
[26] A12 - Answer 24
In the third record of interview, Senior Constable Keating accepted that CT could only have denied the existence of a black SUV to her if she had specifically asked about the particular type of vehicle. Senior Constable Keating could only have asked about the existence of a specific vehicle if someone had told her as to its existence. Realistically, that person could only have been the claimant.[27]
[27] A15 - Q133-136.
The claimant’s initial account as to the existence of the unidentified vehicle was made within minutes of the accident while injured and trapped within a vehicle. He did not have the benefit of legal advice. He did not have the benefit of any other external input or advice. He did not have the benefit of time for reflection or confabulation. There was an immediate history provided as to the existence of a black SUV.
In short, the claimant experienced some very significant injuries in the subject accident. Within minutes, Senior Constable Keating was at the scene and asking the claimant about what had happened. Although trapped in his vehicle and seriously injured, ABA immediately provided the history of the black SUV forcing him off the road.
An Application for Personal Injury Benefits was executed by the claimant on 30 September 2018. The claim form would have been completed in hospital. It is signed and dated by the claimant. At this stage, the claimant was not legally represented.
The account as to the circumstances of the accident is entirely consistent with the contemporaneous account. The fact that his driver’s licence expired the day previously is entirely irrelevant to the current dispute.
The claimant does not recall discussing the circumstances of the accident with Senior Constable Keating at the scene.
ABA’s son’s account is consistent with that of the claimant. ABA’s son has never been approached by Allianz or the respondent insurer to provide an account in relation to the circumstances of the accident.
The claimant submits that his contemporaneous account, repeated in a consistent fashion three times subsequently, and corroborated by his son (who was a front seat passenger in the vehicle) would be accepted. The contemporaneous nature of the identification of a specific type of unidentified vehicle, whilst pinned in a vehicle with internal injuries and substantial fractures, speaks heavily against the likelihood of confabulation.

Oral submissions

Senior Counsel says that the claimant accepts there were minor inconsistencies in his oral evidence regarding the blinker, the braking and where did the black vehicle come from. However, the central tenet of his account was consistent.
ABA’s son was also consistent in his evidence about the black vehicle.
Senior Counsel submits that CT’s evidence was not subject to challenge and the Member would therefore give it a lesser degree of weight, considering the inconsistencies in the factual matters.

THE INSURER’S SUBMISSIONS

The insurer also made both detailed written submissions and oral submissions which may be summarised as follows.

Written submissions

The insurer says that if the claimant’s evidence is accepted and he establishes the presence of an unidentified vehicle which cut in front of him, causing him to swerve to avoid a collision, then he should be found not to have been at fault.
The insurer refers to the NSW Ambulance report which makes no reference to the presence of another vehicle.[28]
[28] R2
The insurer refers to three histories obtained at Westmead Hospital on 24 and 26 September 2018 which refer only to a high-speed collision into a tree and do not advert to the presence of an unidentified vehicle.[29]
[29] R3
The insurer submits, despite the claimant’s assertion to the contrary, there is no evidence that he provided a contemporaneous version of events at the scene. To establish the allegation that a contemporaneous version was provided, he relies solely on a flawed and problematic recollection of the events of that day provided by the attending police officer, Senior Constable Keating, approximately 16 months after the accident occurred.
The insurer submits that in June 2000, ABA’s son was involved in a serious motor accident which resulted in a head injury causing seizures and problems with memory and concentration. He was on a disability support pension due to this injury.
At paragraph 16 of his statement,[30] CT stated that the claimant’s
‘vehicle suddenly slowed, the driver jumped on the brakes, I heard the sound of brakes and saw smoke from the rear of the car before it swerved to the left, entering lane 2 of 3, then swerving to the right back into lane 3 of 3 and continuing out of control into the median strip where its front end has collided heavily with a tree. … There were no other cars in front of or next to the car prior to the driver losing control. I had a clear view of this vehicle when it lost control as my view was unobstructed. … I was always behind the vehicle’.
[30] A20.

Senior Constable Keating has provided a number of accounts of what happened to two sets of investigators, and later to Mr Stone SC. The insurer submits that her accounts are inconsistent to varying degrees and cannot be taken to be reliable. This is particularly the case in relation to precisely what was said at the scene.
Senior Constable Keating’s earliest recollection, per her statement to M&A Investigations, is that she did not really speak to the claimant about what happened. That is consistent with her not recording the claimant’s version of events in her notebook on the day of the accident.
It is now more than two years post-accident, and it is expected that recall of the relevant events will have deteriorated. For this reason, the COPS event represents the earliest recording of what was said at the time.
By contrast, the insurer relies on the evidence of an independent witness, CT, who is recorded by police at the time of the accident as stating that the claimant braked harshly and swerved with no observable cause for the claimant’s actions.
CT, identified only as ‘the witness’, is recorded as saying that the claimant had braked harshly ‘for unknown reasons’, causing the vehicle to swerve sideways and mount the fence. In that record, he does not specifically deny the presence of a black vehicle, which would indeed support the claimant allegedly providing Senior Constable Keating with a consistent version of events at the scene.
The insurer acknowledges that there appear to be elements of possible reconstruction and opinion contained in CT’s written statement. However, his evidence about having a clear, unobstructed view of the claimant’s vehicle, and the absence of any external cause for the claimant’s actions leading to the collision is clear and consistent with the contemporaneous police record.
There are clear issues of credit involved in the determination of this dispute, where the witness accounts are directly contradictory.
The insurer submits that the claimant first provided a version of events involving a black vehicle on 26 November 2018 to Senior Constable Keating. He did not mention the presence of another vehicle to any treatment providers prior to this time.
Contrary to the claimant’s submissions, there is no requirement for a person to have legal training to be aware that they are unlikely to be compensated, fully or at all, for their injuries if they are solely at fault in an accident.
In relation to CT and his previous lack of cooperation with investigations in this matter, it is not uncommon that an involved witness may not wish to participate in legal proceedings in which he has no stake and for which his involvement cannot be compelled. The insurer submits that his unwillingness does not impinge his credit to any degree.
Ultimately CT is the only witness who has no interest in the outcome of this dispute, and accordingly his clear evidence about the absence of any other vehicle alleged to have caused the accident should be preferred.

Oral submissions

In oral submissions, Senior Counsel concedes that CT has been evasive. He concedes that the insurer’s evidence clearly lacks CT being questioned which is a deficiency but it is not fatal. The documents make it clear that he is just a witness. He has done his best to be involved. Why would he lie?
Senior Counsel says that the claimant has been inconsistent in his evidence. In the Police Notebook, it is recorded that the claimant said the black SUV had its blinker on. In oral evidence he said there was no blinker on. Clearly, there was some confusion or doubt in the claimant’s mind and this is a significant matter.
Mr Turnbull SC submits that the claimant remembered a black vehicle as soon as he woke up, yet it is unclear why he did not tell his wife about it.
Mr Turnbull submits that ABA’s son admitted that he had memory problems. In oral evidence, ABA’s son said that they were travelling in lane 2.

LEGISLATIVE FRAMEWORK

In making my decision, I have considered the following legislation and guidelines:
(a) Motor Accident Injuries Act 2017 (the Act).
(b) Motor Accident Injuries Regulation 2017 (the Regulation).
(c) Motor Accident Guidelines 2017 (Version 7) (the Guidelines).

CONSIDERATION

The relevant legislation

Part 3 of the Act is concerned with the entitlement to statutory benefits and the circumstances in which they are payable in respect of death or injury resulting from a motor accident.
Section 3.1 provides that the claimant as an injured person is entitled to payment of statutory benefits regardless of whether he was at fault in the motor accident.
On that basis, the claimant received payment of statutory benefits of weekly payments and treatment expenses from the CTP insurer of his own vehicle, Allianz, for a period of 26 weeks.
Sections 3.11 and 3.28 of the Act relevantly provide that statutory benefits of weekly payments and treatment and care expenses are not payable beyond 26 weeks from the date of the motor accident if the motor accident was caused wholly or mostly by the fault of the injured person or if the injured person has only suffered minor injuries in the motor accident.
After the period of 26 weeks and in reliance upon ss 3.11 and 3.28, Allianz declined to pay any further benefits to the claimant on the basis that he was wholly at fault in the motor accident.
The claimant then made an application for further benefits to the respondent insurer to this application, as the Nominal Defendant.
The insurer initially paid benefits for a period of time but after receiving a statement from the witness, Cameron Tobin, it denied payment of any further benefits. In doing so, the insurer also relied on ss 3.11 and 3.28 on the basis that the claimant was wholly at fault in the motor accident.

It is common ground between the parties that the claimant has suffered more than minor injuries for the purposes of the ss 3.11(1)(b) and ss 3.28(1)(b) of the Act.
The only issue to be determined in this application is whether the claimant is wholly or mostly at fault in the motor accident.
Section 1.4(1) of the Act defines fault as negligence or any other tort.
According to the claimant’s evidence and the evidence which is not in dispute, the motor accident occurred in the following circumstances:
(a)    He was driving his Toyota Hilux Ute westbound on the M4 Motorway between the Bennett Road overpass and the Mamre Road overpass, St Clair.
(b)    He was travelling in lane 3 or the fast lane closest to the median strip.
(c)    The weather was fine and the roadway was sealed and dry.
(d)    His blood alcohol reading was negative and there were no issues of mechanical failure with his Ute or any tyre blowout.
(e)    His son, ABA’s son was travelling in his Ute as a front-seat-passenger.
(f)    He observed that the speed limit was 80 km when he saw the roadworks speed limit sign.
(g)    He slowed down to a speed of 70-80 km/ph.
(h)    He observed a black 4WD travelling in lane 1. It caught his eye because it had tinted windows.
(i)    He was talking to his son when he saw the black 4WD spearing at an angle from lane 1 into lane 2 and towards his vehicle in lane 3.
(j)    It was possible that the black 4WD had its blinker on, but he did not see it. The vehicle was virtually on top of him.
(k)    He braked and swerved to avoid a collision with the vehicle and as he did, he lost control of his vehicle and ended up colliding with some trees on the median strip.
(l)    There was no contact with the black vehicle. It did not stop. It kept going.
I accept that evidence for the following reasons.
The essential elements of the claimant’s evidence are corroborated by the evidence of the claimant’s son, ABA’s son and Senior Constable Keating.
ABA’s son was a front-seat passenger in the claimant’s vehicle and he saw the black vehicle spearing towards their vehicle at an angle. He heard his father apply the brakes and saw him swerve to avoid colliding with the black vehicle. The black vehicle was going faster than their vehicle.
There was a suggestion by the insurer that ABA’s son had memory problems and that his evidence was problematic because he had suffered a brain injury in a car accident about 20 years ago. I had no difficulty in accepting ABA’s son’s evidence. He gave his evidence in an honest and coherent manner. There were minor inconsistencies between some of his oral evidence and his written statement. For example, in oral evidence he recalled that they were travelling in lane 2. In his written statement, he said that they were travelling in lane 3. ABA’s son was not the driver of the subject vehicle and it is understandable that at some stage on the Motorway as a passenger, he may not have been paying attention to the lane of travel. He was consistent in both his oral and written evidence that a black car speared towards the vehicle he was travelling in from lane 2.
I accept that Senior Constable Keating did her best to recall the accident. She was travelling eastbound when the accident occurred. She was passing the scene of the accident when she received a radio call about the accident. She turned around further along at the emergency U-Turn bay and arrived at the scene of the accident within minutes. She spoke to the claimant while he was still trapped in his vehicle. The claimant told her about the black vehicle which swerved towards him and that he lost control and went off the road. That evidence is consistent with the evidence of the claimant and ABA’s son. She later recorded the claimant’s evidence in her notebook when she interviewed the claimant on 26 November 2018. There is no reason for me not to accept her evidence.
The claimant does not remember discussing the circumstances of the accident with Senior Constable Keating at the scene. The NSW Ambulance report reveals that at the scene of the accident and as at 4.40 pm the claimant was verbally oriented, obeying motor commands and GCS score of 15/15. This evidence suggests that the claimant was capable in communicating while entrapped in his vehicle at the scene of the accident with significant physical injuries.
The claimant has subsequently given three consistent accounts that he was forced off the road by a black SUV which was spearing towards him from lane 2.
Some parts of CT’s evidence are consistent with that of the claimant. For instance, CT recalls the claimant’s vehicle slowing.
Where CT’s evidence is inconsistent with that of Senior Constable Keating, the claimant and ABA’s son, I prefer the evidence of the latter witnesses, particularly in view of the following matters:
(a)    CT recalls a speed limit of 110 kph, and recalls travelling at that speed. The speed limit on this part of the M4 is usually 110 kph, but the evidence of Senior Constable Keating, the claimant and ABA’s son was to the effect that road works were underway and the speed limit at the time of the accident was 80 kph.
(b)    He states that there was not a lot of traffic on the road. He says there were no vehicles in front of the claimant’s vehicle and no vehicles in lanes 1 and 2. I prefer the evidence of the claimant and ABA’s son that the road was fairly busy, and the evidence of Senior Constable Keating of medium traffic flow. That evidence is consistent with the time of day and the reduced speed limit.
(c)    Both the claimant and CT were travelling in the fast lane. For that reason, I find it was likely that there were other vehicles in the vicinity of the claimant’s vehicle shortly before he ran off the road.
(d)    CT gives the registration number of the claimant’s vehicle. I consider it most unlikely that he would recall such a detail travelling at a distance of 60-70 m behind the vehicle and almost two years after the accident.
(e)    CT states that he does not recall a “white van or SUV” swerve from lane 2 into lane 3. The claimant and ABA’s son say that a black SUV swerved into lane 3.
(f)    CT recalled that he had just passed Bennett Road overpass and he noticed a police vehicle stopped with its lights on in the far-left side of the Eastbound lanes. That evidence is inconsistent with the evidence of Senior Constable Keating that her police car had passed the accident scene after it had already occurred. That would place her vehicle further west and further away from CT.
(g)    CT did not provide a formal statement until almost two years after the accident.
(h)    CT did not attend the assessment conference, and his evidence was unable to be tested by questioning.
I consider that the claimant, ABA’s son and Constable Keating gave more reliable evidence.
It follows that I find that the accident occurred in the circumstances described by the claimant. A black vehicle in lane 2 commenced to enter the claimant’s lane, causing the claimant to swerve his vehicle to his right to avoid a collision whereupon the claimant lost control and hit some trees on the median strip.
I find that the claimant was not wholly or mostly at fault in the motor accident.

COSTS
The claimant has made an application for the Commission to permit the payment of his legal costs by the insurer for an amount in excess of the regulated fee prescribed by the Regulation. The application is made pursuant to s 8.10(4) of the Act on the basis that there are exceptional circumstances.
The maximum amount for regulated costs in each miscellaneous matter determined in this matter is currently $1,660 plus GST. On a regulated basis, the claimant would be entitled to $3,320 plus GST.
The claimant’s primary submission is that exceptional costs are warranted because the matter had to proceed to a face-to-face conference requiring the questioning of witnesses.
The insurer agrees with the claimant’s primary submission and makes an application for the Commission to permit the payment of its own legal costs in excess of the regulated fee on the same basis.
I have considered extensive submissions made by both the claimant and the insurer on the issue. Indeed, I was somewhat concerned about the extent of the attention given to the question of costs, particularly in view of the objects of the Act, including s 1.3(g):
“To encourage the early resolution of motor accident claims and the quick, cost effective and just resolution of disputes.”
In making its application, the insurer’s primary submission is that Wright J interpreted s 8.3 of the Act in AAI Ltd trading as GIO v Moon[31] to mean that the Commission’s discretion to permit costs over the regulated maximum fee applies equally to the claimant and the insurer.
[31] [2020] NSWSC 714 (Moon)
The claimant disputes that interpretation of Moon, and says that Wright J did not find that there was a general discretion under s 8.3(4) and s 8.10(4) to permit insurers’ solicitors to charge solicitor/client costs in excess of the regulated fee.

Determination on costs

I do not accept the insurer’s submission.
Section 8.3(4) of the Act provides that an Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services to a party to a claim (whether the claimant or insurer) in connection with the claim for statutory benefits unless it is permitted by the Regulation or the Commission.
Schedule 1 Part 1, clause 3(2)(a) - (m) of the Regulation sets the maximum costs recoverable for legal services in various miscellaneous claims assessment matters. Schedule 1 Part 1, clause 3(1) of the Regulation provides that 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 16 monetary units (to a maximum of 60 monetary units per claim).

Section 8.10 of the Act makes further provision for the recovery of costs and expenses in relation to claims for statutory benefits.
Section 8.10 relevantly provides:

“8.10 Recovery of costs and expenses in relation to claims for statutory benefits
(1)    A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2)    The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3)    A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4)     The Commission 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)

It is clear that s 8.10 is only applicable to a claimant in a claim for statutory benefits.
Subsection 8.10(3) provides that a claimant can recover reasonable and necessary legal costs if payment is either permitted by the Regulation or the Commission.
Section 8.10(4) provides that the Commission can permit payment of legal costs incurred by the claimant if exceptional circumstances exist to justify the payment of those costs.
There are no other provisions in the Act which provide for the payment or recovery of an insurer’s legal costs in a claim for statutory benefits other than the provisions of Schedule 1 of the Regulation.
It follows that the insurer’s application that it be permitted to pay legal costs under s 8.10(4) must be rejected.
I now turn to the claimant’s application for costs.
I note that the insurer consents to the application.
I am not persuaded, that a face-to-face conference involving the questioning of witnesses, would in itself, amount to an exceptional circumstance enlivening the Commission’s discretion under s 8.10(4)(b).
I am cognisant, however, that this matter has had a lengthy history, involving multiple witnesses. This also contributed to the hearing being somewhat longer than usual. On that basis, I am prepared to find exceptional circumstances.
Accordingly, I exercise my discretion pursuant to s 8.10(4)(b) of the Act and determine that the claimant is entitled to recover his reasonable and necessary costs from the insurer.
I have considered the bill of costs submitted by the claimant for assessment and the reply submissions from the insurer.
Again, bearing in mind the objects of the Act, in particular, that participants in the scheme have shared and integrated roles in keeping the overall costs of the scheme within reasonable bounds so as to keep the premiums down[32], I consider that it is appropriate to apply the regulated hourly rate of $311 (applicable in common law damages claims) as I have done in previous decisions, in assessing the reasonable and necessary costs for the work carried out by the solicitors in this matter.
[32] ss 1.3(3)(a) of the Act

Applying that hourly rate, to the work carried out by the solicitors, I allow the claimant 25 hours for their solicitors’ professional costs ($311 x 25 = $ 7,775 plus GST) in lieu of the above regulated costs pursuant to s 8.10(4)(b) of the Act, as reasonable and necessary costs.
In this matter, I did not consider that the issues were of such degree of complexity that would warrant the payment of counsel’s costs at senior counsel’s rates. Dealing efficiently and cost effectively with the factual disputes and other issues arising in this matter would in my view, be well within the competence of members of the junior bar.
For the foregoing reason, I consider that it also appropriate to apply the regulated hourly rate of $311 per hour to the work carried out by Senior Counsel. I allow the claimant 20 hours for the fees of Mr Stone, SC ($311 x 20 = $ 6,220 plus GST) in lieu of the above regulated costs pursuant to s 8.10(4)(b) of the Act, as reasonable and necessary costs.

The total costs allowed are $13,995 plus GST for the claimant’s costs and disbursements.

Conclusion

My determination of the Miscellaneous Claim is as follows:

For the purposes of s 3.11 the motor accident was not caused wholly or mostly the fault of the claimant.
For the purposes of s 3.28 the motor accident was not caused wholly or mostly by the fault of the claimant.
The insurer is to pay the claimant’s costs in the amount of $15,394.50 inclusive of GST.

Maurice Castagnet

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 143

27 May 2021