ABD v NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	ABD v NRMA Insurance [2021] NSWPIC 163
APPLICANT:	ABD
RESPONDENT:	NRMA Insurance
MEMBER:	Anthony Scarcella
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 section 3.28 of the Motor Accident Injuries Act 2017; bicycle collided with a motor vehicle; intersection; determined on the papers; witness; insured driver drove the claimant to his home; claimant did not slow down at all as he came through the intersection; red mountain bike type; COPS report; bicycle rider was meant to stop and give way to the vehicle; conflicting versions of the motor accident; claimant’s evidence contained inconsistencies; claimant failed to give way; failed to keep a proper lookout; Held- motor accident caused mostly by the fault of the claimant; legal costs.
DETERMINATIONS MADE:	1. For the purposes of section 3.28 of the Motor Accident Injuries Act 2017 the motor accident was caused mostly by the fault of the injured person. 2. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,826 inclusive of GST.

Reasons for Decision

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

BACKGROUND

The matter for determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2, clause 3(e) of the Motor Accident Injuries Act 2017 (the MAI Act), about whether the injured person was wholly or mostly at fault within the meaning of section 3.28 of the MAI Act.
On 17 November 2019, ABD (the Claimant) was riding his bicycle when it collided with a motor vehicle driven by NM (the Insured Driver) at an intersection in Nelson Bay (the motor accident).
On 10 December 2019, the Claimant lodged an application for personal injury benefits with the relevant compulsory third party insurer, NRMA Insurance (the Insurer).
The Claimant received statutory benefits in the form of treatment and care expenses following the motor accident.
On 21 February 2020, the Insurer notified the Claimant that it had decided that the Claimant was wholly at fault in the motor accident and notified that it would cease payments of statutory benefits from 17 May 2020.
On 13 March 2020, the Claimant made an application for internal review of the Insurer’s decision.
On 3 April 2020, the Insurer conducted an internal review and issued a Certificate of Determination confirming its original decision and certifying that the Claimant was wholly at fault in the motor accident.
On 14 April 2020, the Claimant lodged the Dispute Resolution Application form and supporting documents currently before me (the Application). On 15 May 2020, the Insurer lodged the Dispute Resolution Reply form and supporting documents (the Reply).
At the teleconference on 15 July 2020, the parties agreed that the issue in dispute is whether the Claimant was wholly at fault in the subject motor accident under section 3.28 of the MAI Act.
The parties agreed that the Insurer bears the onus of proof in this dispute.
The parties agreed that the matter could be determined by me ‘on the papers’.
The Personal Injury Commission (the Commission) commenced operation on 1 March 2021 and the Dispute Resolution Service (DRS) was abolished by clause 3 of Part 2, Division 2, schedule 1 to the Personal Injury Commission Act 2020. I am a General Member of the Motor Accidents Division of the Commission and clause 14B(1) of the Personal Injury Commission Regulation 2020 designates this DRS application as pending proceedings and clause 14B(3) empowers me to assess the claim.

EVIDENCE

Documentary evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a)    The Application dated 14 April 2020 and attached documents.
(b)    The Reply dated 15 May 2020 and attached documents.
(c)    Documents produced by the NSW Police Force under the Government Information (Public Access) Act 2009 (the GIPA Act) on 1 December 2020.
(d)    NRMA Insurance motor vehicle assessment report dated 17 November 2019.
(e)    NSW Police Force event card issued at Raymond Terrace Police Station on 18 November 2019.
(f)    Undated sketch plan of the motor accident site prepared by the Claimant and attached to his lawyer’s written submissions dated 5 March 2021.
(g)    Insurance declaration form dated 3 January 2020.
(h)    NRMA Insurance letter to the Claimant dated 23 January 2020.
(i)    NRMA Insurance letter to the Claimant dated 19 March 2020.
(j)    A & J Auto Body Repairs quotation 000000 dated 20 February 2020.
(k)    Report by Dr Andrew Myers dated 10 May 2020.
(l)    Centrelink medical certificate issued by Dr Michael Yee dated 23 June 2020.
(m)     Ten colour photographs of the Insured Driver’s vehicle.

Oral evidence

No oral evidence was adduced in this matter as the parties agreed that it could be determined ‘on the papers’.

The Claimant’s evidence

In evidence, there is an entry providing the Claimant’s version of events in respect of the motor accident recorded by Senior Constable Mark David Prince at the Nelson Bay Police Station in his police notebook on 18 November 2019.[1] I will now refer to the relevant parts of that notebook entry.
[1] Senior Constable Prince's police notebook at pages 74-76
The police notebook entry recorded a motor vehicle accident between a car and a bicycle at the intersection of Armidale Avenue and Parkes Street at 11.00 am on 17 November 2019. It recorded the Claimant’s particulars. It noted the Claimant as being the rider of the bicycle. It noted that an unidentified male was driving a white 4WD sized wagon.
The police notebook entry recorded the Claimant’s version of the motor accident as follows:
“Rider was travelling along Armidale Ave towards Austral St when veh pulled out of Parkes St and collided with him, knocking him off the bike. The rider was in shock and was given a lift home by the male driver at his request but no details were exchanged at the time. It is believed that the residents of Armidal [sic] Ave may have witnessed the MVA as they came outside and offered water to the rider and said they would look after his bike for him.”[2]
[2] Senior Constable Prince's police notebook at pages 75-76
In evidence, there is the Claimant’s application for personal injury benefits dated 10 December 2019 in which he provided a very brief description of the motor accident as follows:
“I was bicycling on a pushbike on park street [sic]. I had accident with a car number [Insured Driver’s motor vehicle registration number].”[3]
[3] Attachment A1 to the Application
In evidence, there is a signed statement by the Claimant dated 8 April 2020.[4] I will now refer to the relevant parts of that statement.
[4] Attachment A2 to the Application
The Claimant stated that he has resided in a unit in Armidale Avenue, Nelson Bay for about 1.5 years. On 17 November 2019 at 10.30 am, he left his residence for the purpose of riding his bicycle to his place of work at xxx in Yacaaba Street, Nelson Bay. He cycled through the intersection of Armidale Avenue and Parkes Street, Nelson Bay three to four times a week.
The Claimant stated that he was very aware of the Give Way sign at the intersection of Armidale Avenue and Parkes Street and that he had always stopped his bicycle at the intersection.
On 17 November 2019, whilst riding to work, he stopped his bicycle at the Give Way sign in Armidale Avenue at the intersection of Parkes Street. He looked to his left and to his right. He did not see any cars approaching and proceeded left onto Parkes Street with the intention of proceeding onto Dowling Street and then on to Nelson Bay. This was his usual route to work. As he was turning into Parkes Street, the Insured Driver’s vehicle collided with the rear of his bicycle causing him to be thrown from his bicycle and land between the middle and the right-hand side of Parkes Street.
The Claimant opined that the Insured Driver was travelling at a speed in excess of 50 km/h because of the nature of the impact. The Claimant’s bicycle landed “half on the road and the grass.”[5] He stated that the Insured Driver applied his brakes after the impact. The Claimant observed skid marks on the roadway after the collision and those skid marks were visible for three or four days thereafter.
[5] Attachment A2 to the Application at [9]
The Claimant disputed the Insured Driver’s version of events and stated that his bicycle came in contact with the front left-hand side of the bonnet of the vehicle.
On 18 November 2019, the Claimant attended the Nelson Bay Police Station to report the motor accident and spoke with Senior Constable Prince from Raymond Terrace Police. Senior Constable Prince took notes in his police notebook and advised him that he would investigate the accident site. The Claimant did not hear from senior Constable Prince again.
On 29 November 2019, the Claimant visited a witness to the motor accident, SJ, in order to find out the Insured Driver’s address. SJ believed that the Insured Driver lived in one of four houses and he pointed them out to the Claimant. H, a female friend of the Claimant, accompanied him on a door knock of the four houses. The Insured Driver was located and he provided the Claimant with his insurance details as requested.
On 29 November 2019, H and the Claimant telephoned the Raymond Terrace Police Station to ascertain what was happening in relation to the reported motor accident. They were advised that there was no police report as yet. H and the Claimant provided the police officer with the Insured Driver’s name and address in the hope that the motor accident would be investigated.

The Insured Driver’s evidence

In evidence, there is a signed statement by the Insured Driver recorded by Senior Constable Prince in his police notebook on 31 January 2020 in respect of the motor accident. I will now refer to the relevant parts of that statement.
The police notebook entry recorded that the Insured Driver was the driver of a white Nissan Murano when it was involved in a motor vehicle accident in Parkes Street at about 11.00 am on 17 November 2019. It recorded the Insured Driver’s particulars.
The police notebook entry recorded the Insured Driver’s signed statement in respect of the motor accident as follows:
“I was heading west on Parkes St. Came to the intersection of Parkes and Armidale St slowing down. I looked left and right and Armidale Ave was all clear. I was going very slowly and my foot was covering the brake. I always go really slowly through that intersection because Mum and Dad have been cleaned up twice there before. As I drove through the intersection a bloke on a red pushbike came flying into the left side of my car, colliding with the front left bumper and bonnet.
I was almost all the way through the intersection when he collided with my car. I parked my car straight away and got out and the cyclist was already on his feet. I asked him if he was OK and if he needed first-aid and offered to drive him to the polyclinic but he said he was fine and just to give him a lift home. Another bloke that lived on the corner of the intersection came over as well and offered him some water but he didn’t want anything so I gave him a lift home. I hadn’t met this other bloke before but I believe his name is [redacted]. I took the bloke home to [redacted] but I didn’t think to give him my name and he didn’t ask me for mine. I only noticed a bit of a scratch on the cyclist’s leg but other than that he didn’t seem to have any other injuries.”[6]
[6] Senior Constable Prince's police notebook at pages 94-96
In evidence, there is a signed statement by the Insured Driver dated 17 November 2019. I will now refer to the relevant parts of that statement.
The Insured Driver stated that, on Sunday, 17 November 2019 between 11.20 am and 11.30 am, he was driving in a westerly direction along Parkes Street, Nelson Bay. Prior to entering the intersection of Parkes Street and Armidale Avenue, he looked to the left and to the right and, having a clear path, entered the intersection. When he was halfway through the intersection, a man (the Claimant) riding a red bicycle “flew through the intersection & the give way sign.”[7] The Insured Driver “hit the brakes”[8] but the Claimant was too far into the intersection for him to avoid a collision.
[7] Attachment R2 to the Reply at Annexure A at [1]
[8] Attachment R2 to the Reply at Annexure A at [1]
The Insured Driver stated that he alighted from his vehicle and went to the aid of the Claimant, who was in the gutter. Also present was SJ, who had witnessed the incident. The Claimant got up saying that he was fine and wanted to be taken home. Both the Insured Driver and SJ repeatedly suggested to the Claimant that he needed to be taken to the Polyclinic. The Claimant refused and kept saying that he was fine and wanted to be taken home.
The Insured Driver drove the Claimant to his home in Armidale Avenue. As they arrived, the Insured Driver again offered to take the Claimant to the Polyclinic. The Claimant again refused, left the car and entered his home.
After the Insured driver had dropped the Claimant off home, he returned to the accident site and assisted SJ move the Claimant’s bicycle off the road. The Insured Driver and SJ had a conversation about the damage that had been done to the Insured Driver’s vehicle, which was owned by his father.
After the Insured Driver left the accident site, he continued on with his plans for the day, which included picking up his parents from a Sunday barbecue lunch at Nelson Plains.
Later in the afternoon of 17 November 2019, the Insured Driver attended the Nelson Bay Police Station and filed an accident report with Sergeant Ian Allwood.
In evidence, there is a signed statement by the Insured Driver dated 30 November 2019. I will now refer to the relevant parts of that statement.
The Insured Driver stated that, at about 1.15 pm on Saturday, 30 November 2019, he was about to leave home when the Claimant, accompanied by a female, approached him. The female asked him for his personal details, the details of the motor vehicle he was driving and his insurance details. The Insured Driver provided those details and advised her that the vehicle was in his father’s name.
The Insured Driver stated that the female said that the Claimant was in the wrong but required insurance details as he needed to be compensated because of his inability to work.
The Insured Driver stated that, once the conversation ended, he observed the Claimant and the female leave in a silver four door hatchback Honda. The Claimant was in the driver’s seat and the female was in the passenger seat.
In evidence, there is a signed statement by the Insured Driver dated 20 January 2020 taken by an investigator from AHC Investigations engaged by the Insurer. I will now refer to the relevant parts of that statement.
The Insured Driver stated that he was xx years of age and resided with his parents in Parkes Street, Nelson Bay, where he has lived all his life.
The Insured Driver stated that, on the day of the motor accident, he was driving his father’s 2010 Nissan Murano. The motor accident occurred at the intersection of Parkes Street and Armidale Avenue, about 100 metres from his home. Each time he uses the car, he has to travel on Parkes Street through the intersection of Armidale Avenue as it is the only way out from his end of the street. Parkes Street runs in an east/west direction and Armidale Avenue runs in a north/south direction. The speed limit is 50 km/h. Both roadways consist of one lane in each direction, with no marked lanes. The only markings on the roadway are the Give Way lines at the intersection of Armidale Avenue.
The Insured Driver stated that his parents had been “taken out twice”[9] at the same intersection by drivers coming through the Give Way sign and not stopping.
[9] Attachment R2 to the Reply - The Insured Driver’s statement dated 20 January 2020 at [16]
The Insured Driver stated that, at the time of the motor accident, he was heading over to Nelson Plains to pick up his parents from a barbecue. He intended to stop in “to say a quick hello”[10] and then take his parents back home.
[10] Attachment R2 to the Reply - The Insured Driver’s statement dated 20 January 2020 at [17]
The Insured Driver stated that, on the day of the motor accident, the weather was fine and dry. It was daylight and there was no traffic around. He reversed out of his driveway onto Parkes Street and then drove off in a westerly direction towards Armidale Avenue. Being aware how drivers come through that intersection, he would not have been doing more than 40 km/h and he always took his foot off the accelerator and shifted it over the brake just in case he had to stop suddenly. He was looking ahead as he approached Armidale Avenue, looked left up the hill and right down the hill along Armidale Avenue and observed no oncoming cars. He did not see any pedestrians. He did not see the Claimant’s bicycle. He proceeded into the intersection.
The Insured Driver stated that, he was still only travelling at about 40 km/h, when suddenly and without warning a pushbike and rider (the Claimant) came racing down Armidale Avenue from his left. The Claimant did not slow down at all as he came through the intersection. The Claimant came straight through in front of him and hit the front of the Murano, scraping along the bumper bar and landing on the Murano’s bonnet.
The Insured Driver stated that the Claimant ended up in the gutter on the other side of Parkes Street. The Insured Driver stopped in the intersection, got straight out and ran over to the Claimant.
The Insured Driver stated that he observed that the Claimant had a few grazes and “a bit of bark off his skin”.[11] The Claimant did not complain about any injuries but just stated that he wanted to be taken home.
[11] Attachment R2 to the Reply - The Insured Driver’s statement dated 20 January 2020 at [25]
The Insured Driver stated that SJ took the Claimant’s bicycle off the roadway and observed that the bicycle brakes were not working. SJ then took the bicycle to his home until the Claimant came to pick it up.
The Insured Driver stated that, after he had taken the Claimant home, he saw the bicycle at SJ’s home and noticed that the brake levers on the handlebars did not work. He described the Claimant’s bicycle as a red mountain bike type and that it was not in very good condition.
The Insured Driver stated that after he left SJ, he went to pick up his parents from Nelson Plains. When he came home, he attended the Nelson Bay Police Station and reported the accident to Sergeant Ian Allwood, who was “the boss”[12] at the police station. Sergeant Allwood took a report of the incident and wrote it in his notebook. The Insured Driver did not sign anything.
[12] Attachment R2 to the Reply - The Insured Driver’s statement dated 20 January 2020 at [29]
The Insured Driver stated that he had not been charged by the police in relation to the motor accident and that the police informed him that the Claimant was at fault.
The Insured Driver stated that he provided the Insurer with a statement he prepared on about 2 December 2019 after the Claimant turned up at his home on 30 November 2019. On the latter date, the Claimant and his female friend admitted that he was at fault in the motor accident. The female did most of the talking on their visit to the Insured Driver’s home. They said that they needed the Insured Driver’s details so he could get insurance for not being able to work. The Insured Driver observed that the Claimant had his right arm heavily bandaged.
The Insured Driver stated that, as a result of the motor accident, the damage to his father’s car was at the passenger side front corner of the bumper bar, which consisted of a scratch down to the bottom layer of paint and “a forearm size dent”[13] on the passenger side of the bonnet. The car was comprehensively insured through NRMA Insurance and his father was handling all the insurance details.
[13] Attachment R2 to the Reply - The Insured Driver’s statement dated 20 January 2020 at [33]

SJ’s evidence

In evidence, there is a signed statement by SJ dated 20 January 2020 taken by an investigator from AHC Investigations engaged by the Insurer. I will now refer to the relevant parts of that statement.
The statement refers to SJ being the father of the Insured Driver and the owner of the vehicle he was driving.[14] This is clearly an error made by the statement taker and not noticed by SJ at the time he signed his statement.
[14] Attachment R2 to the Reply – SJ’s statement dated 20 January 2020 at [2]
SJ stated that he has resided in Parkes Street, Nelson Bay for the past 11 years. The unit in which he resides is the second from the corner of Armidale Avenue on Parkes Street. He can see the intersection of Parkes Street and Armidale Avenue from his front door. He has a good view of the intersection but there is a large tree blocking some vision of Armidale Avenue.
SJ stated that Parkes Street runs in an east/west direction. Armidale Avenue runs north/south up the hill across Parkes Street. Both roadways have one lane in each direction. Give Way signs face the traffic in Armidale Avenue. The speed limit is 50 km/h.
SJ stated that, at about the time of the motor accident, he was standing out the front of his house speaking with his mother-in-law. It was about 11.30 am when she left. He did not actually see the impact of the bicycle and the car because it was obscured by the tree at the corner of his yard. SJ heard the thumping noise of the bike hitting the car and this made him look towards the intersection. As he looked, he observed a man flying through the air head over heels at about body height off the ground. He did not hear any squealing of breaks from either the car or the bicycle. The Claimant was rolling through the air and he was going that fast that he landed on the grass footpath on the opposite side of Parkes Street, in the neighbour’s yard.
SJ stated that he ran over to the intersection and observed the bicycle in the middle of the intersection with the Insured Driver, who was known to him, but not well-known. The Insured Driver’s vehicle was stopped in the middle of the intersection and the bicycle was a couple of metres in front of it in the middle of the road. The Insured Driver appeared pretty shaken.
SJ then went over to the Claimant, who he knew used to work night shift at YYY. He observed that the Claimant was wearing a bicycle helmet, shorts, T-shirt and thongs. He observed that the Claimant’s leg was bleeding. The Claimant appeared to be in shock. The Claimant was looking straight through him as he tried to speak with him. The Claimant was getting up off the ground when SJ asked him to sit back down and informed him that he had just been in an accident and needed to go to hospital or call an ambulance. The Claimant argued with SJ and the Insured driver, in that, the Claimant did not want them to call an ambulance. They tried to convince him to, at least, attend the Polyclinic up the road and offered to take him there. However, the Claimant just got up off the ground and walked to the Insured Driver’s car, opened the passenger door and got in. The Claimant wanted to be taken home.
SJ stated that the Insured Driver was “pretty upset”[15] and did not know what to do. He was aware that the Insured Driver was on his way to pick up his parents from a party. He believed that the Insured Driver drove the Claimant home.
[15] Attachment R2 to the Reply – SJ’s statement dated 20 January 2020 at [17]
SJ stated that he removed the Claimant’s bicycle from the road and took it to his home. He observed that the bicycle “was pretty mangled”.[16] SJ did not recall checking the bicycle brakes. He did not know whether they were operational or not.
[16] Attachment R2 to the Reply – SJ’s statement dated 20 January 2020 at [18]
SJ stated that, on the Monday following the motor accident, he returned the Claimant’s bicycle to him. He observed that the Claimant had his right arm in plaster and that his right leg was swollen.
SJ stated that, whilst he did not see the actual impact between the bicycle and the car, he was in no doubt that the Claimant was travelling through the intersection at speed and that he did not stop or give way at the intersection because he flew through the air for some distance before he landed. He opined that, had the Claimant stopped, he would have been on the road in front of the Insured Driver’s car where the bicycle was.
SJ stated that the damage to the Insured Driver’s vehicle was to the passenger side of the front bumper bar. There was also “a ding in the middle of the bonnet”[17] of the vehicle.
[17] Attachment R2 to the Reply – SJ’s statement dated 20 January 2020 at [26]

NRMA Insurance CTP Insurance – Accident Report Form

In evidence, there is an NRMA Insurance CTP Insurance – Accident Report Form (the Form) dated 3 January 2020 signed by the Insured Driver’s father.
The Form provided particulars of the Insured Driver, his father and his vehicle. It noted the date of the motor accident as being 17 November 2019 and its location.
In the Form, under the descriptor “what happened?”, appeared the following:
“Driving west along Parkes St at the intersection of Armidale Ave and Parkes Street a man riding a red bike road out in front of me. He went through a give way sign and collided with the front of the car.
That afternoon we attended Nelson Bay Police Station & reported the accident to Sgt Ian Allwood: Phone – 02 xxxx Mob: xxxx xxx”
The Form recorded the Insured Driver’s speed as 30 km/h to 40 km/h.
The Form recorded SJ as a witness to the motor accident.
The Form provided a hand drawn diagram of the accident scene that was consistent with the Insured Driver’s evidence.

NSW Police Force documents

The Insurer’s lawyers made an application to the NSW Police Force for access to documents under the GIPA Act. On 24 April 2020, the NSW Police Force responded to the GIPA Act application and produced the following documents, which are in evidence:
(a)    Event E 00000000 in the Centralised Operational Policing System (the COPS report) dated 6 November 2020.
(b)    The police notebook of Senior Constable Prince.
(c)    The COPS report site diagram dated 18 November 2019.
I have already referred to the entries in Senior Constable Prince’s police notebook.
There is a COPS report dated 2 March 2020 in evidence.[18] However, it did not contain the detail that appeared in the later COPS report dated 6 November 2020, which was updated after further investigations by police and after the Insured Driver was spoken to by police. The COPS report dated 2 March 2020, created on 19 November 2019 and updated on 29 November 2019, in its crash summary, had the Insured Driver failing to give way to the Claimant at the intersection of Parkes Street and Armidale Avenue.
[18] Attachment R7 to the Reply
The COPS report site diagram dated 18 November 2019 was inconsistent with the evidence of the Claimant, the Insured Driver and SJ. It placed the Claimant as having commenced to enter the intersection on the incorrect side of the road of Armidale Avenue.
The COPS report dated 6 November 2020, initially created on 19 November 2019, was further updated on 8 February 2020 and 9 February 2020. I will now refer to the relevant parts of the COPS report.
An entry on 30 November 2019 recorded that, at about 2.15 pm, the Claimant provided police with the Insured Driver’s details. The entry also recorded that the Insured Driver allegedly reported the matter to Nelson Bay police at a later time. However, system checks did not reveal any report attaching to the subject vehicle registration.
An entry on 31 January 2020 at 3.55 pm recorded that the Insured Driver attended Raymond Terrace Police Station to provide his version of events in respect of the motor accident. This version was recorded in the police notebook of Senior Constable Prince to which I have already referred.
The final entry in the case narrative of the COPS report is undated but is presumed to have been entered on either 8 February 2020 or 9 February 2020, as shown in the “Case History” towards the end of the document and relevantly read as follows:
“As a result of investigations since the MVA it has been noted that traffic on Armidale Ave must give way to traffic on Parkes Street in Nelson Bay. When the MVA was reported to Police it was done so at the Police Station rather than Police attending the scene and at the time the OIC was not familiar with the intersection.
It was initially believed that Armidale Ave had the right of way as it was explained like this by the bicycle rider when making the report. Police have now clarified that Parkes St has the right of way and it was the bicycle rider who was meant to stop and give way to the vehicle.
Police cannot comment on the claims that the bicycles [sic] brakes were not working as the bicycle was not examined as Police did not attend the scene as it was a late report.
As such the bicycle rider is at fault and no further investigation is required.”[19]
[19] COPS report dated 6 November 2020 at page 1

Record of Interview with Senior Constable Mark David Prince

In evidence, there is a transcript of a record of interview between the Insurer’s investigator and Senior Constable Prince on 8 February 2020 in relation to the motor accident. I will now refer to the relevant parts of the transcript of the record of interview, which may be summarised as follows:
(a)    Senior Constable Prince stated that he was attached to the Raymond Terrace Police Station and that at the time of the motor accident, he was working at the Nelson Bay Police Station just for that day.
(b)    Senior Constable Prince stated that he had been in the NSW Police Force for 16 years performing general duties. He had attended hundreds of motor accident scenes.
(c)    Senior Constable Prince stated that he was not familiar with the site of the motor accident. He had driven through it but did not take much notice of it. Traffic in Armidale Avenue must give way to traffic in Parkes Street. The speed limit in the area is 50 km/h. He did not take any measurements of the point of impact in respect of the motor accident.
(d)    Senior Constable Prince stated that the Insured Driver was heading along Parkes Street, being the street in which he resided and the Claimant was on his bicycle coming down the hill in a southerly direction along Armidale Avenue. The Claimant failed to give way at Parkes Street and collided with the front passenger side of the Insured Driver’s vehicle. He confirmed that the motor accident occurred on 17 November 2019.
(e)    Senior Constable Prince stated that he had not inspected the Insured Driver’s vehicle after the motor accident. He was unaware as to whether the Insured Driver was interviewed but he was aware that the latter attended the Nelson Bay Police Station later that night on 17 November 2019 and spoke to Sergeant Ian Allwood, who was permanently based there. Senior Constable Price was told that Sergeant Allwood made a notebook entry in respect of the motor accident and was under the impression that an events number had been entered. However, it had not been and he believed that Sergeant Allwood must have entered it up or put the event on the following day. Senior Constable Prince did not have a copy of Sergeant Allwood’s notebook.
(f)    Senior Constable Prince confirmed that he interviewed the Claimant and took a notebook version in respect of the motor accident. He then read out the contents of the version in his notebook to the interviewing investigator. I have already referred to the contents of the notebook.
(g)    Senior Constable Prince stated that the Claimant had told him that the Insured Driver’s car pulled out and failed to give way to him. He accepted that until he found out later that the Claimant was meant to give way to the Insured Driver. It threw him to start with.
(h)    Senior Constable Prince stated that the Claimant reported the motor accident the day after the accident. He stated that he had not seen the Claimant’s bicycle, did not know what he was wearing at the time of the motor accident and had not attended the accident scene. Senior Constable Prince was aware that SJ did not actually see the motor accident but heard something and walked over to the scene. At the time of the interview, he had not yet spoken to SJ despite his attempts to make contact.
(i)    Senior Constable Prince stated that the Claimant and Insured Driver did not even think to exchange details. He opined that they were both in a bit of shock and did not realise that they needed to do so.
(j)    Senior Constable Prince stated that the Insured Driver was on his way to pick up his parents from a party or function at the time of the motor accident.
(k)    Senior Constable Prince confirmed that he had not seen the vehicles involved in the motor accident nor had he seen any photographs of any damage to them. However, he had been told that there was a dent possibly on the bonnet of the car.
(l)    Senior Constable Prince stated that no charges had been laid at the time of the interview with the investigator.

The AHC Investigations report

In evidence, there is a factual investigation report by AHC Investigations dated 17 February 2020, commissioned by the Insurer.[20] I will now refer to the relevant parts of that factual investigation report.
[20] Attachment R2 to the Reply
The factual investigation report had attached to it, amongst other things, the Insured Driver’s statement dated 20 January 2020, SJ’s statement dated 20 January 2020, a site diagram provided by the Insured Driver, a site diagram provided by SJ, a photographic log, accident scene diagrams and a transcript of the record of interview with Senior Constable Prince.
The factual investigation report provided an investigation summary which included an incident overview, details of the persons interviewed, particulars of person spoken to and a scene description. The scene description was consistent with the evidence. I give no weight to the incident overview in the report because, in the main, it is the investigator’s summary of the statements provided by the Insured Driver and SJ.
The Google Earth satellite view of the accident site initialled and marked by the Insured Driver depicted the latter travelling in a westerly direction along Parkes Street and an arrow depicted the northerly direction in which the Claimant was travelling along Armidale Avenue. In about the middle of the intersection, the Insured Driver has drawn the position of his vehicle and marked with the letter “X” the point of impact with the bicycle.
The Google Earth satellite view of the accident site initialled and marked by SJ depicted a line commencing from a point slightly beyond the Give Way lines facing Armidale Avenue, arcing to the front grassed area of the house on the corner of Parkes Street on its northern side. At the end of the arced line there was a circle that depicted the position at which the Claimant landed after impact.
The photographic log consisted of 16 colour photographs of the accident scene. The photographs numbered 1 to 10 inclusive and photograph 12 were of the subject intersection taken from diverse angles and distances. These photographs were of assistance and were consistent with the evidence. The photographs numbered 11 and 13 had marked on them the alleged point of impact, the Claimant’s path of travel, the Insured Driver’s path of travel and the trajectory of the Claimant’s path and landing place after he had been thrown from his bicycle. The photographs numbered 14 and 15 had marked on them the alleged point of impact. I have exercised caution in relation to the marked-up photographs numbered 11, 12, 14 and 15 because they were so marked by the investigator based on his interpretation of the statements he took and the marked-up Google Earth satellite photographs by the Insured Driver and SJ. The photograph numbered 16 purports to be SJ’ view of the subject intersection from where he was standing when he heard the impact and saw the Claimant flying through the air to the opposite side of the roadway. It depicted the large tree referred to in SJ’s evidence that partially blocked his view of the subject intersection.
The photographic log also consisted of five colour photographs of the Insured Driver’s vehicle. The photograph numbered 21 identified the vehicle by its number plate. The photograph numbered 20 provided a view of the undamaged driver’s side of the vehicle. The photograph numbered 18 provided a front view of damage to the vehicle’s bonnet and bumper bar. The photograph numbered 19 provided a kerbside view of the vehicle on which damage to the bonnet and bumper bar was visible from a distance. The photograph numbered 22 provided a closer view of damage to the bonnet of the vehicle. The photographs of damage to the bonnet and bumper bar of the vehicle were consistent with the evidence of the Insured Driver and SJ.
The accident scene diagrams were four in number and were prepared by the investigator. The first diagram depicted the subject intersection. The second diagram depicted the subject intersection with roadway measurements. The third diagram depicted the positions from which the investigator’s 16 photographs were taken of the subject intersection. The fourth diagram had marked on it the alleged point of impact, the Claimant’s path of travel, the Insured Driver’s path of travel and the trajectory of the Claimant’s path and landing place after he had been thrown from his bicycle. Again, I have exercised caution in relation to the fourth diagram because it was so marked by the investigator based on his interpretation of the statements he took and the marked-up Google Earth satellite photographs by the Insured Driver and SJ.

The Insured Driver’s property damage related documents

In evidence, there is a quotation from A and J Auto Body Repairs dated 20 February 2020 in respect of the Insured Driver’s motor vehicle. The quotation referred, amongst other things, to removing and refitting the vehicle’s front bumper bar, grill, bonnet D & A and two headlamp covers. It also referred to repair of the front bumper bar and the bonnet of the vehicle. The damage referred to was consistent with the evidence of the Insured Driver and SJ.
In evidence, there is an undated NRMA Insurance motor vehicle assessment report in respect of the Insured Driver’s motor vehicle, that referred to A and J Auto Body Repairs. The total estimated cost of repairs was identical to the total contained in the quotation from A and J Auto Body Repairs dated 20 February 2020 in respect of the Insured Driver’s motor vehicle.
In evidence, there is a letter from NRMA Insurance to the Claimant dated 23 January 2020 that, amongst other things, held the Claimant responsible for the damage caused to the Insured Driver’s vehicle in the motor accident.
In evidence, there is a letter from NRMA Insurance to the Claimant dated 19 March 2020 that, amongst other things, confirmed that it held the Claimant responsible for the damage caused to the Insured Driver’s vehicle in the motor accident and sought payment of the sum of $2,502.22 for such damage.

SUBMISSIONS

The Claimant provided written submissions on the substantive issues dated 5 March 2021.
The Claimant’s principal submissions may be summarised as follows:
(a)    Police initially believed that the Insured Driver was at fault for the motor accident because he had failed to give way at the intersection of Armidale Avenue and Parkes Street, Nelson Bay.
(b)    The Claimant had always maintained that the motor accident did not occur at the intersection of Parkes Street and Armidale Avenue but on Parkes Street. The COPS report site diagram showed an incorrect point of impact.
(c)    On 18 November 2019, the Claimant attended the Raymond Terrace Police Station to report the motor accident in the company of a friend. The Claimant was provided with Senior Constable Prince’s card with an event number written on it. The fact that the Claimant was the first to report the accident to police was inconsistent with the version that he was at fault for the motor accident.
(d)    Contrary to the Insured Driver’s evidence, the Claimant did not fly through the intersection and the Give Way sign. The Claimant had already turned left from Armidale Avenue into Parkes Street at the time of the collision. At the time of the motor accident, the Claimant was travelling to work on his bicycle, taking the same route he took three to four times per week. The Claimant was not travelling through the intersection.
(e)    SJ’s evidence that he did not hear the squealing of brakes from either the motor vehicle or the bicycle was inconsistent with the Insured Driver’s version that he had hit the brakes.
(f)    The Claimant refuted the allegation that his friend had advised the Insured Driver that he, the Claimant, was in the wrong.
(g)    The Insured Driver’s statement dated 20 January 2020 made no mention of the Claimant turning left into Parkes Street but rather, that he was coming through the intersection. Further, there was no mention of the Claimant having been thrown after impact. Instead there was reference to the Claimant landing on the bonnet of the Insured Driver’s vehicle.
(h)    The fact that the Insured Driver did not think to exchange particulars at the accident scene was inconsistent with his belief that the Claimant was at fault for the motor accident. Particularly as damage had been caused to the Insured Driver’s vehicle.
(i)    SJ stated that he saw a man flying through the air, head over heels, spinning through the air. SJ’s version of events following the motor accident was inconsistent with the Insured Driver’s statement dated 20 January 2020, in that, the Insured Driver stated that the Claimant had landed on the bonnet of his vehicle.
(j)    The Insured Driver’s evidence that he was travelling at a speed of 50 km/h was inconsistent with the evidence of SJ, who stated that after impact he saw the Claimant flying through the air.

The Insurer provided written submissions on the substantive issues dated 15 May 2020 and 15 March 2021.
The Insurer’s principal submissions may be summarised as follows:
(a) The principles applicable in determining whether a person has been negligent include the “General Principles” set out in section 5B of the Civil Liability Act 2002 (the CLA). The standard of care that applies for the purpose of contributory negligence is that which is prescribed by section 5R(2) of the CLA, namely, a reasonable person in the position of that person and the matter is to be determined based on what that person knew or ought to have known at the time.
(b)    The Insurer referred to and relied on the principles in Podrebersek v Australian Iron and Steel Pty Ltd[21] (Podrebersek).
[21] Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; 59 ALR 529 at 532-533.
(c)    Both the Claimant and the Insured Driver were familiar with the location of the motor accident.
(d)    The Insurer referred to and relied on the colour photographs of the accident site attached to the AHC Investigations report, in particular, photographs numbered 3 to 8. The Claimant had an unobstructed view of Armidale Avenue. A Give Way sign faced traffic in Armidale Avenue and was clearly visible to the Claimant.
(e)    A reasonable person in the Claimant’s position would have taken extra care prior to entering the intersection. The exercise of such reasonable care involved reasonable attention to all that was happening on and near the roadway that might present a source of danger: Manley v Alexander[22] (Manley).
(f)    If the Claimant had stopped at the Give Way sign in Armidale Avenue, and looked both ways without seeing any vehicles prior to proceeding left onto Parkes Street, he would have noticed the Insured Driver’s oncoming vehicle on Parkes Street. In such circumstances, he could not have been keeping a proper lookout and it indicated that he did not, in fact, stop at the Give Way sign.
(g)    A reasonable person in the Claimant’s circumstances ought to have known the dangers of failing to give way at the intersection, especially one that he was familiar with and used frequently. A reasonable person would have taken greater precaution for their own safety. The evidence demonstrated that the Claimant departed from the standard of care of the reasonable man: Pennington v Norris[23] (Pennington).
(h)    The diagrams and photographs (numbered 11 to 15) attached to the AHC Investigations report demonstrated the point of impact of the bicycle with the motor vehicle. The photographs were consistent with the Claimant failing to give way in colliding with the Insured Driver’s vehicle, who had the right-of-way at the intersection. The photographs demonstrate a dent on the front left bonnet of the Insured Driver’s vehicle, which indicated that the Claimant’s version of events were inconsistent with the damage to the vehicle. If the Claimant had been hit from behind, it was not plausible for the damage to the vehicle to be on the front left bonnet.
(i)    The police ultimately found that the Claimant was at fault for the motor accident because he failed to give way at the intersection.
(j)    The COPS report site diagram demonstrated the point of impact following police investigations. The site diagram was consistent with the Claimant being at fault for the motor accident after failing to stop at a Give Way sign. The site diagram was also consistent with the photographs, which clearly showed a dent on the front left bonnet of the Insured Driver’s vehicle. The damage shown on the vehicle indicated that the Claimant’s version of events and the site diagram were inconsistent.
(k)    The Insurer maintained that the Claimant was wholly at fault for the motor accident.

REASONS

[22] Manley v Alexander [2005] HCA 79

[23] Pennington v Norris (1956) 96 CLR 10 at 16).

The relevant legislation and legal principles

Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
Section 3.28 of the MAI Act relevantly provides that statutory benefits are not payable beyond 26 weeks from the date of the motor accident in the event that the motor accident was caused wholly or mostly by the fault of the injured person.
Section 3.28(2) of the MAI Act provides that a motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident was greater than 61%.
Section 3.38(1) of the MAI Act provides that in assessing contributory negligence, regard must be had to the common law and the enacted law.
Section 3B(2)(a) of the CLA provides that Divisions 1 - 4 and 8 of Part 1A (Negligence) of the CLA apply to motor accidents.
Section 5B(1) of the CLA provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and, the risk was not insignificant; and, in the circumstances, a reasonable person in the person’s position would have taken those precautions.
Section 5B(2) of the CLA provides that in determining whether a reasonable person would have taken precautions against the risk of harm, the court is to consider the following (amongst other relevant things):
(a)    The probability that the harm would occur if care were not taken.
(b)    The likely seriousness of the harm.
(c)    The burden of taking precautions to avoid the risk of harm.
(d)    The social utility of the activity that creates the risk of harm.
Whether there is any contributory negligence requires, pursuant to section 5R of the CLA, a determination of whether a reasonable person in the Claimant’s position, would have ridden his bicycle into the subject intersection where and when he did, knowing what he did or what he ought to have known. Section 5R of the CLA imposes an objective test.
In assessing the degree of negligence, I am required to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them.
In Podrebersek, the High Court of Australia confirmed that the following considerations should be made when determining the apportionment of culpability between parties:
(a)    The culpability of both parties; that is, the degree of departure and standard of care of the reasonable man: Pennington.
(b)    The relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd[24] (Stapley); Smith v McIntyre[25] (McIntyre) and Broadhurst v Millman[26] (Broadhurst).
(c)    The whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.
[24] Stapley v Gypsum Mines Ltd [1953] AC 663 at 682.
[25] Smith v McIntyre [1958] Tas SR 36 at 42-49.
[26] Broadhurst v Millman [1976] VR 208 at 219.
Ultimately, the apportionment becomes a matter of impression having regard to the circumstances of the location, the amount of traffic, the skill of the driver, the condition of the vehicle and any loss of its control: Hallowell v The Nominal Defendant[27] (Hallowell).
[27]Hallowell v The Nominal Defendant [1983] Qld R 266, per Jones J.
The Insurer referred to and relied on the majority decision (3 – 2) in the High Court of Australia in Manley. In Manley, the respondent was struck and injured by a vehicle driven by the appellant. The respondent was lying on the roadway at the time of the accident and was heavily intoxicated. The appellant's attention had been drawn to a third person at the side of the road, Mr Turner. The appellant nevertheless continued to drive his vehicle at the same speed and changed his vehicle’s direction by veering to the centre of the road and struck the respondent.
In Manley, Gummow, Kirby and Hayne JJ found, amongst other things, as follows:
“No doubt the appellant's attention was drawn to the figure of Mr Turner standing at the side of the road and behaving in a way that suggested that he might act in some way that would require the appellant to respond. But recognising one possible source of danger does not mean that a driver can or must give exclusive attention to that danger. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.
It may readily be accepted that the possibility that someone would be found lying on a roadway like Middleton Beach Road at 4.00 am is properly to be described as remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”[28]
[28] Manley v Alexander [2005] HCA 79 at [11] – [12]
The relevant principle espoused by the majority in Manley is that a driver’s duty of care requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.
I will now consider the relevant evidence in this matter and apply the legislation and legal principles referred to above.

Consideration and findings

I give little weight to the evidence that the police concluded that the Claimant was at fault for the motor accident because I must assess the contributions of the respective parties based on the evidence before me and by applying the relevant legislation and legal principles to that evidence. For the same reasons, I give no weight to the letters addressed to the Claimant from NRMA Insurance dated 23 January 2020 and 19 March 2020, holding the Claimant at fault for the motor accident.
The Claimant submitted that, the fact that he was the first to report the accident to police was inconsistent with the version that he was at fault for the motor accident. I reject the submission. The evidence of the Insured Driver, corroborated by Senior Constable Prince, was that the Insured Driver reported the motor accident at the Nelson Bay Police Station to Sergeant Allwood later on the day of the accident, that is, on 17 November 2019. Senior Constable Prince explained his understanding of the delay in respect of the entry of the event number and the delay in interviewing the Insured Driver. There were no adverse inferences to be drawn against either the Claimant or the Insured Driver in this regard. The fact that the police did not attend the scene of the accident explained why Senior Constable Prince, whose evidence was that he was unfamiliar with the accident site, initially accepted the Claimant’s version that the Insured Driver failed to give way to him.
The Insured Driver’s evidence was that he was travelling along Parkes Street slowly and that, as he was almost all the way through the intersection, the Claimant and his bicycle came flying into the left side of his car, scraped the front left bumper bar and the Claimant landed on the bonnet. The Claimant ended up in the gutter on the other side of Parkes Street. The Insured Driver’s evidence in this regard was, in the main, consistent. Although, in his statement dated 17 November 2019, he stated that his vehicle was about halfway through the intersection at the time of the collision.
The Claimant submitted that he had always maintained that the motor accident did not occur at the intersection of Parkes Street and Armidale Avenue but on Parkes Street. The Claimant also submitted that, contrary to the Insured Driver’s evidence, he did not fly through the intersection and the Give Way sign. That is, he stopped, checked both ways for traffic coming along Parkes Street and then turned left into Parkes Street. The Claimant’s evidence was that he had already turned left into Parkes Street from Armidale Avenue by the time of the collision.
The Claimant reported the motor accident to the police on 18 November 2019, being the day following the accident, in the company of a friend. The Claimant’s version was recorded by police in a notebook. The notebook entry described the Claimant as travelling along Armidale Avenue towards Austral Street when the Insured Driver’s vehicle pulled out of Parkes Street and collided with him, knocking him off his bicycle. Austral Street is two blocks north of Armidale Avenue. There was no reference in the police notebook to the Claimant having already turned left or as being in the process of turning left into Parkes Street from Armidale Avenue. The fact that the Claimant stated to police that he was travelling along Armidale Avenue towards Austral Street is arguably inconsistent with his assertion that he had turned left into Parkes Street. However, I accept that turning left onto Parkes Street and then turning left onto Dowling Street to get to Yacaaba Street, Nelson Bay, would have been the shorter route for the Claimant to get to work. Further, the reference to Austral Street may only have been to indicate to police the direction the Claimant was travelling along in Armidale Avenue, that is, north. Therefore, I draw no adverse inference to the reference in the police notebook to Austral Street.
Whilst the Claimant stated that he was very aware of the Give Way sign at the intersection of Armidale Avenue and Parkes Street in his evidentiary statement dated 8 April 2020, the COPS report created on 19 November 2019, in its crash summary, had the Insured Driver failing to give way to the Claimant at the intersection of Parkes Street and Armidale Avenue based on the Claimant’s report. This was inconsistent with the Claimant’s evidence that he was very aware of the Give Way sign.
The COPS report site diagram dated 18 November 2019, based on the Claimant’s version to police on that date, did not depict the Claimant’s bicycle as having turned into Parkes Street. I have already noted that the site diagram was inconsistent with the evidence of the Claimant, the Insured Driver and SJ. It placed the Claimant as having commenced to enter the intersection on the incorrect side of the roadway on Armidale Avenue.
In his application for personal injury benefits, the Claimant elected not to provide an accident site diagram but took the option of providing a very short verbal description of an accident with a car whilst riding his bicycle in Parkes Street. The description did not refer to the Claimant having turned left from Armidale Avenue into Parkes Street but stated that the accident occurred on Parkes Street.
The NRMA Insurance CTP Insurance – Accident Report Form completed by the Insured Driver and/or his father, by way of a diagram, depicted the point of impact at a location where the Insured Driver’s vehicle was most of the way through the intersection.
On 29 November 2019, the Claimant and a female friend named H, attended the Insured Driver’s home. The Claimant’s evidence was that he and H obtained insurance details from the Insured Driver. The Insured Driver’s evidence was that the Claimant and his female friend attended his home on 30 November 2019 and that he provided them with his personal details, the details of the motor vehicle he was driving and his insurance details. Further, the Insured Driver stated that the Claimant’s female friend told him that the Claimant was in the wrong but required insurance details as he needed to be compensated because of his inability to work. There is no statement from H in evidence. The Claimant’s statement did not deal with the allegation that H admitted fault for the motor accident. However, I am reluctant to give any weight to the Insured Driver’s assertion that H admitted fault on the part of the Claimant in circumstances where the Claimant does not have a good command of the English language. H was not a witness to the accident. There is no evidence that the Claimant told H to admit fault.
The Google Earth satellite view of the accident site initialled and marked by the Insured Driver depicted the latter travelling in a westerly direction along Parkes Street and an arrow depicted the northerly direction in which the Claimant was travelling along Armidale Avenue. In about the middle of the intersection, the Insured Driver drew the position of his vehicle and marked with the letter “X” the point of impact with the bicycle at a point that was slightly beyond the middle of the intersection. This was inconsistent with the Claimant having already made a left turn into Parkes Street. Whilst SJ did not see the collision, his evidence was that, after the collision, the Insured Driver’s vehicle was stopped in the middle of the intersection and the bicycle was a couple of metres in front of it in the middle of the road. This was also inconsistent with the Claimant having already made a left turn into Parkes Street.
The only accident site diagram prepared by the Claimant was provided after this application had been lodged and was attached to the Claimant’s submissions dated 5 March 2021. This diagram depicted the collision occurring in Parkes Street west of its intersection with Armidale Avenue. It appeared to show the back of the bicycle being struck by the Insured Driver’s vehicle. This was inconsistent with the evidence of the Insured Driver and SJ referred to above. The diagram was also inconsistent with the Claimant’s own evidentiary statement, where he said that the collision occurred as he was turning into Parkes Street.
The Claimant’s site diagram depicted skid marks behind the Insured Driver’s vehicle in Parkes Street west of the intersection with Armidale Avenue. This was inconsistent with the Insured Driver’s evidence that he hit his brakes whilst in the intersection. SJ did not hear any squealing of brakes from either the car or the bicycle. In his evidentiary statement, the Claimant stated that he observed skid marks on the roadway after the collision and that the skid marks were visible for three or four days thereafter. The Claimant did not identify the location of the skid marks. There were no photographs of the skid marks in evidence.
The Claimant’s site diagram also depicted the post impact trajectory of the Claimant, after having been thrown from his bicycle, landing almost in the middle of Parkes Street. This was inconsistent with the evidence of the Insured Driver, who stated that the Claimant landed in the gutter on the opposite side of Parkes Street. It was also inconsistent with the evidence of SJ, who stated that the Claimant landed on the grass footpath on the opposite side of Parkes Street, in the neighbour’s yard. The diagram also depicted the position of his bicycle after the impact as being on the opposite side of Parkes Street near the edge of the roadway. This was inconsistent with the evidence of the Insured Driver and SJ, who placed the Claimant’s bicycle a couple of metres in front of the Insured Driver’s vehicle in the middle of the roadway.
The Google Earth satellite view of the accident site initialled and marked by SJ depicted a line commencing from a point slightly beyond the Give Way lines facing Armidale Avenue, arcing to the front grassed area of the house on the corner of Parkes Street on its northern side. At the end of the arced line there was a circle that depicted the position at which the Claimant landed after impact on the grass footpath on the opposite side of Parkes Street, in the neighbour’s yard. The Claimant’s site diagram as to where he landed after he was thrown from his bicycle was inconsistent with SJ’s evidence.
The photographs of the alleged damage to the Insured Driver’s vehicle on the left front bumper bar and bonnet were consistent with the Insured Driver’s evidence. The damage to the front bumper bar and bonnet was corroborated by SJ.

In relation to the Insured Driver’s assertion that SJ observed that the Claimant’s bicycle brakes were not working, SJ’s evidence was that he did not recall checking the bicycle brakes and did not know whether they were operational or not. The police did not inspect the Claimant’s bicycle and there was no expert evidence in relation to its condition or damage. The only evidence about the post collision damage to the bicycle came from SJ who described it as “pretty mangled”.[29] There was no evidence that the Claimant’s bicycle brakes were not working.
[29] Attachment R2 of the Reply – SJ’s statement dated 20 January 2020 at [18]
I give no weight to SJ’s opinion that he was in no doubt that the Claimant was travelling through the intersection at speed and failed to stop at the Give Way sign. SJ did not see the collision because a tree blocked his view. He heard a thump, looked towards the intersection, saw the Claimant flying through the air head over heels at about body height and then ran to the intersection to render assistance. There was no expert evidence in support of SJ’s lay opinion in this regard.
The Claimant opined that the Insured Driver was travelling at a speed in excess of 50 km/h. Yet, his evidence was that he stopped at the Give Way sign, looked to his left and to his right. He did not see any cars approaching and proceeded left onto Parkes Street. This was inconsistent with him being in a position to estimate the Insured Driver’s speed when his evidence was that he did not see any vehicles. Similarly, his lay opinion that the nature of the impact must have meant that the Insured Driver’s speed was in excess of 50 km/h carries no weight in the absence of any expert evidence in this regard. The Insured Driver’s evidence was that his speed, at all material times, was not more than 40 km/h, with his right foot hovering over his brakes because he was conscious that his parents had been “taken out twice”[30] at the same intersection by drivers coming through the Give Way sign and not stopping.
[30] Attachment R2 of the Reply - The Insured Driver’s statement dated 20 January 2020 at [16]
The Claimant and the Insured Driver were familiar with the subject intersection. Both professed to having exercised caution at the intersection, as I have referred to in their evidence above. Yet, there was a collision.
Inconsistencies in evidence are not unexpected. There are two conflicting versions of the motor accident given by the Claimant and the Insured Driver. SJ, an independent witness, corroborated much of the relevant parts of the Insured Driver’s evidence referred to above. However, he did not witness the lead-up to the collision or the impact itself. The Insured Driver’s evidence was, in the main, consistent with his signed police notebook statement on the day of the motor accident. The Claimant’s evidence contained the inconsistencies referred to above.
I accept SJ as an independent witness of truth, who provided his observations at the site of the motor accident from the time he heard the thumping noise and thereafter.
I accept the Insured Driver as a witness of truth, who did his best in his statements, with consistency, to provide his observations of the lead-up to the motor accident, the collision and the aftermath.
Whilst I have no reason to doubt the Claimant’s credibility, I have concerns about the reliability of his evidence. The Claimant’s evidentiary statement was dated 8 April 2020, some five months after the motor accident. The value of contemporaneous evidence has been repeatedly endorsed by the courts. In Onassis and Calogeropoulos v Vergottis[31], Lord Pearce said of documentary evidence:
“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”
[31] Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431
Where there is a conflict in the evidence, I prefer the evidence of the Insured Driver and SJ over that of the Claimant for the reasons referred to above.
I make the following findings in relation to the motor accident:
(a)    The intersection of Parkes Street and Armidale Avenue, Nelson Bay is situated in a residential area. The speed limit is 50 km/h. Both roadways have a sealed bitumen surface with one lane in each direction. Parkes Street runs in an east/west direction. Armidale Avenue runs in a north/south direction. There were Give Way signs facing traffic in Armidale Avenue on each side of its intersection with Parkes Street.
(b)    At all material times on 17 November 2019 at or about 11.30 am, the Claimant was travelling in a northerly direction downhill in Armidale Avenue towards its intersection with Parkes Street.
(c)    At all material times on 17 November 2019 at or about 11.30 am, the Insured Driver was travelling in a westerly direction along Parkes Street towards its intersection with Armidale Avenue at or about 40 km/h.
(d)    On reaching the intersection, the Claimant failed to give way to the Insured Driver’s vehicle and collided with its front left bumper bar, resulting in him being thrown off his bicycle and onto the bonnet of the vehicle. The Claimant was then propelled through the air, landing on the northerly side of the grass verge of Parkes Street at or about the point indicated by SJ in his marked-up Google Earth satellite view of the accident site and as marked in photograph numbered 3 of the investigator’s photographic log. The collision occurred in or about the middle of the intersection at or about the point indicated by the Insured Driver in his marked-up Google Earth satellite view of the accident site and as marked in photograph numbered 3 of the investigator’s photographic log.
(e)    At the time of the collision, it was daylight, the weather was fine and visibility in and around the accident site was good.
(f)    Following the collision, the Insured Driver’s vehicle had come to a stop in or about the middle of the intersection. The Claimant’s bicycle was about two metres in front of the Insured Driver’s vehicle in the middle of the roadway.
(g)    The Claimant was riding his bicycle at an excessive speed in the circumstances.
(h)    The Claimant failed to keep a proper look out for the Insured Driver’s vehicle on entering the intersection, having failed to observe the presence of the Insured Driver’s vehicle on Parkes Street.
(i)    The Claimant failed to adequately brake or slowdown when entering the intersection so as to avoid the collision.
(j)    A reasonable person in the Claimant’s position, being familiar with the intersection and the Give Way sign, would not have ridden a bicycle onto the intersection without braking, slowing or stopping and checking the intersecting roadway for traffic, knowing that he had to give way to traffic in Parkes Street.
(k)    A reasonable person would have taken extra care prior to entering the intersection and would have been paying attention to all that was happening on and near the roadway that may have presented a source of danger in time to take reasonable steps to react to any such dangers.
(l)    The Insured Driver failed to keep a proper look out for the Claimant’s vehicle on entering the intersection, having failed to observe the presence of the Claimant’s bicycle on Armidale Avenue, despite the fact that he was cautious of that particular intersection and the fact that he was travelling slowly.
(m)     The Insured Driver failed to apply his brakes in time to avoid the collision.
(n)    Each party had some responsibility for the collision.
I have weighed up the respective acts of negligence of the parties involved and referred to above. I have taken into account the Podrebersek considerations in determining the apportionment of culpability between the parties. I find on the evidence that the Claimant’s contribution to the motor accident significantly outweighed the Insured Driver’s contribution. Accordingly, I am satisfied that the Insurer has discharged its onus and established that the motor accident was caused mostly, but not wholly, by the fault of the Claimant within the meaning of section 3.28(2) of the MAI Act for the reasons stated above.

LEGAL COSTS AND DISBURSEMENTS

Section 8.10 of the MAI Act 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.”
Section 8.10 of the MAI Act confers a costs power on a Member of the Commission not previously held by CARS assessors under the Motor Accidents Compensation Act 1999 (the MAC Act).
Schedule 1 Part 1, clause 3(2)(a) - (m) of the Motor Accident Injuries Regulation 2017 (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 MAI Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units (to a maximum of 60 monetary units per claim).
The Insurer made written submissions in relation to legal costs dated 15 March 2021 and its submissions may be summarised as follows:
(a) Legal costs should be assessed at the regulated maximum in the dispute.
(b) In accordance with sections 8.3(4) and 8.10(3) of the MAI Act, the Claimant is entitled to recover reasonable and necessary costs associated with the statutory benefit claim as allowed under the Regulation in the dispute.
(c) In accordance with Schedule 1 Part 1, clause 3(2)(e) of the Regulation, the amount allowed is $1,660 plus GST ($1,826 inclusive of GST) should be allowed.
The Claimant made brief written submissions in relation to legal costs dated 5 March 2021 and its submissions may be summarised as follows:
(a) The Claimant sought the sum of $3,266 plus GST for legal costs.
(b) The basis for the sum claimed was limited to the fact that the matter involved four telephone conferences and the perusal of large amounts of documentation to prepare final submissions.
No other details were provided by the Claimant in relation to his submissions in respect of legal costs. It was unclear as to whether the Claimant was seeking costs for legal services in excess of those provided for in Schedule 1 Part 1, clause 3 of the Regulation by relying on the discretionary power conferred on a Commission Member to order costs beyond the regulated amount if “exceptional circumstances exist that justify payment of legal costs incurred by the claimant”: section 8.10(4)(b) of the MAI Act. No itemised bill in respect of the sum of $3,266 sought for legal costs was submitted. I have assumed that the Claimant was arguing that exceptional circumstances existed in this matter within the meaning of section 8.10(4)(b) of the MAI Act.
The leading case addressing section 153(1) of the MAC Act and the “exceptional case” provision was San v Rumble (No 2),[32] (Rumble). Campbell JA, with whom Beazley JA and Ipp JA concurred, relevantly stated at [67]:
“A litigant who seeks to have a court displace, under Section 153(1), the regime that Section 151 creates, bears the onus of proving facts and presenting arguments that persuade the court that it is appropriate to make such an order. In deciding whether it is an ‘exceptional case’ within the meaning of Section 153(1), the court needs to find that the circumstances of the instant case are unusual or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors. But, to adopt Kelly, the case need not be one that is unique, unprecedented or very rare. The conclusion that the case is exceptional can arise in any of the ways identified by Rares J in Ho. Beyond that, it seems to me, it is not possible for general guidance. As the New Zealand courts have found concerning the discretion that was the subject of Awa, it will be necessary to approach each application by a careful consideration of the facts of the individual case.”
[32] San v Rumble (No 2) [2007] NSWCA 259
The statement of principle relied on by Rares J in Ho v Professional Services Review Committee No 295[33] (Ho) was that exceptional circumstances:
“… can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together, are seen as exceptional.”
[33] Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26]
In AAI Limited trading as GIO v Moon[34] (Moon), Wright J envisaged at [99] that a matter may be exceptional because it involves an unusual degree of factual or legal complexity or for some other reason, requires the Claimant to incur more substantial legal costs.
[34] AAI Limited trading as GIO v Moon [2020] NSWSC 714
I have carefully considered the facts of this case and the brief submissions the Claimant made that sought to persuade me to exercise my discretion to order costs for legal services in excess of those provided for in Schedule 1, Part 1, clause 3 of the Regulation. I am not satisfied that any of the factors individually raised by the Claimant in his submissions or any combination of them, or when taken together can be seen as exceptional. Further, I am not satisfied that the case included an unusual degree of factual or legal complexity requiring the Claimant to incur more substantial legal costs. Accordingly, I decline to exercise the discretion conferred on me under section 8.10(4)(b) of the MAI Act.
The Claimant’s miscellaneous claims application has been unsuccessful. Given the circumstances of the accident and the nature of his injuries, I find that it was not unreasonable for the Claimant to refer this dispute for determination. I have had regard to section 8.10 of the MAI Act and Schedule 1, Part 1, clause 3 of the Regulation. Section 8.10(2) of the MAI Act enables the Regulation to specify when costs and expenses are not recoverable. There is nothing in the Regulation that states that claimants are not able to recover costs if they are unsuccessful in Miscellaneous Claims proceedings. Further, Wright J in Moon at [82] determined:
“… There is nothing in s 8.10 or any other provisions of the MAI Act that suggests that a claimant’s entitlement to recover legal costs under s 8.10 depends on whether or not the claimant was successful before the DRS. …”
Under Schedule 1, Part 1, clause 3 of the Regulation, the Claimant is entitled to the costs in each dispute for determination subject to the cap of 60 monetary units.
Accordingly, I am satisfied that the Claimant is entitled to the payment of legal costs at the regulated maximum in each dispute. In accordance with section 8.3(4) and section 8.10(3) of the MAI Act, I permit the Claimant to recover from the Insurer the reasonable and necessary costs associated with the statutory benefits claim as allowed under the Regulation on the dispute in this matter as follows:
Dispute under Schedule 1, Part 1, clause 3(2)(e) of the Regulation:
16 monetary units or $1,660 plus GST.
Therefore, I allow costs in the total sum of $1,660 plus GST (being $1,826 inclusive of GST).

LEGISLATION

In making my decision, I have considered the following legislation and guidelines:
(a)    The MAI Act.
(b)    The Regulation.
(c)    Motor Accident Guidelines 2017 (the Guidelines).
(d)    The CLA.

CONCLUSION

My determination of the Miscellaneous Claim is as follows:
(a) For the purposes of section 3.28 of the MAI Act, the motor accident was caused mostly by the fault of the Claimant.
(b) Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Regulation is $1,826 inclusive of GST.

Anthony Scarcella

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 163

27 May 2021