Ajk v GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	AJK v GIO [2021] NSWPIC 321
CLAIMANT:	AJK
INSURER:	GIO
MEMBER:	Elizabeth Medland
DATE OF DECISION:	28 July 2021
CATCHWORDS:	MOTOR ACCIDENTS - 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; cessation of statutory benefits after 26 weeks as claimant at fault; collision reconstruction report; claimant changed lanes on M4 motorway in the path of insured prime mover truck; Held - claimant found to be wholly at fault; recovery of legal costs; no requirement to provide itemised list of work to recover regulated costs.
DETERMINATIONS MADE:
1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 6 June 2020. 4. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017, is $1,660 plus GST.

Reasons for Decision

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

Background

This determination relates to a dispute between the parties as to whether the injured person was wholly or mostly at fault in accordance with sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (The MAI Act).
The claimant was involved in a motor vehicle accident occurring on 9 June 2020 (the accident). A claim for statutory benefits dated 15 June 2020 was subsequently lodged with the insurer of the vehicle allegedly at fault.
By way of notice dated 16 October 2022, the insurer advised of their decision that the claimant was wholly at fault for the accident and payments of statutory benefits would cease 26 weeks after the accident.
An Application for Internal Review was lodged thereafter by the claimant’s lawyers on 28 October 2020.
An Internal Review decision of the insurer dated 17 November 2020 upheld the original decision.
An Application was subsequently lodged for assessment of the dispute, and the matter was allocated to me for determination.
An assessment conference took place on 2 June 2021 via videolink where the claimant gave evidence and was questioned extensively by the insurer’s Counsel.
The insured driver, Mr P, also attended the assessment conference following the claimant’s evidence and was also questioned extensively by both Counsel.
Directions were made at the conference regarding provision of submissions on costs, which have now been provided.

Documents considered

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

Summary of documentary evidence

The accident occurred on the M4 motorway at Eastern Creek. The claimant was driving a Toyota Corolla sedan in a westerly direction with her husband as the front seat passenger. The insured was driving a prime mover truck carrying shipping containers.
A collision occurred between the two vehicles. There is a divergence in the accounts given by the claimant and the insured driver as to how that collision occurred. Generally, the insured contends that the claimant changed lanes into the path of the insured vehicle causing the collision. In contrast, the claimant denies that she was changing lanes and instead alleges at all relevant times both vehicles were in the same lane and alleges that the insured driver collided with the rear of her vehicle.
In the Application for Personal Injury Benefits the version of events provided by the claimant is as follows:
“On 9 June 2020 at 9:00am, I was driving the vehicle with registration XXXXX X along the right lane of M4. The truck with registration XXXXX X was following closely from behind. Suddenly, the truck from behind accelerated and hit the rear end of my vehicle.”
In a Physiotherapy Initial Report of Jeffry Szeto dated 10 June 2020, a history is recorded relevantly as follows:
“…A truck was approaching and following closely from behind, AJK intended to switch to left lane and turned on left indicator. As there was another trunk (sic) approaching on left lane, she remained to stay on the right lane. However, wile AJK’s car remained on the same (right) lane (and did not changed lane), the truck from behind (car at fault) accelerate and rear ended her car. AJK reports that following the collision, her car spinned around and the truck (car at fault) hit her car a second time” [sic].
The insurer obtained a factual investigation repot of MJM dated 28 September 2020. Such report includes a draft statement of the claimant dated 15 September 2020. At paragraph 67 of the statement the claimant states she was in the left lane. She then states:
“As I was driving, I suddenly heard a loud noise and felt a bang from back side. This impact was heavy and it caused my vehicle to wriggle left and right and I lost control of my vehicle.
I suddenly felt another bang, which was from the back side again, and I would describe this impact to be heavy as well”
Following the accident, the insured driver completed an incident report at the apparent request of his employer. That report is R5 of the Reply. It includes the following account:
“…heading west on the M4 in Lane 2 just past the twin Caltex servos – there was a car in front of me also in Lane 2 but I could see she was slowing down & possibly wanted to change lanes to lane 1 there was a safe gap between me & her, & then she indicated Left & changed lanes into Lane 1 I think accelerated to go past her in lane 2 & then all of a sudden without indicating she changed lanes back into lane 2 – that’s when impact occurred. *My personell belief Impatient She probably tryed to go back into Lane 2 to beat the 4 or 7 trucks in front of her & then try & push her way back into Lane 1.” [sic].
The insured driver provided a signed statement to MJM Investigators dated 21 August 2020. Relevantly, the Insured stated that he was travelling in Lane two of four. He states that he was travelling around 60-70 kph and noted that the driver in front was constantly speeding up and then braking.
The insured driver states that that he formed the impression that the claimant was attempting to move to lane one and was trying to get in front of other vehicles in doing so. He then states from paragraph 21:
“I then saw a large enough gap in the lanes 1 of 4 and the vehicle in front of me has then indicated left before moving entirely into the left lane. 22. I have then accelerated forward and suddenly out of nowhere, the vehicle that was in front of me that had just changed into the left lane moved back into my lane without indicating… The vehicle and my truck collided.”
The insured goes on to state that the impact caused the car to spin and that the impact was to the front left of the tuck and rear right corner of the car.
It is stated by the insured that when the vehicles stopped and he and the claimant got out of the vehicles the claimant denied that she had changed lanes after he had asked why she had done so. She apparently repeatedly said “no”. The Insured states that he told the claimant that he had dashcam in his truck and he states: “…the female driver’s demeaner [sic] changed right away.”
There are passages within the statement where the insured driver makes assertions regarding a conversation that he overheard. He contends that the claimant’s husband made certain comments to a tow truck driver. The insured driver was also questioned on this at the Assessment Conference. I have placed no weight on these assertions as there is no evidence before me of either the claimant’s husband or the tow truck driver. I do not consider the evidence to be sufficiently reliable to be taken into account.
The insurer relies upon the opinion of William Keramidas, Traffic Engineer.
Mr Keramidas has provided two reports (dated 5 October 2020 and 8 March 2021).
Mr Keramidas provided his opinion following consideration of a number of documents, which included the Application for Personal Injury Benefits, of a statement of the insured driver, a number of photographs of the accident scene and vehicles provided by the claimant’s solicitor. Also considered were documents relevant to the claim of the claimant’s husband. I have not taken into consideration the content of any document that forms part of the husband’s claim. This is because firstly I have no evidence to suggest that the husband provided consent to such claim documents being utilised in this claim, and further the husband has not provided a statement in this claim and nor was he called to give any evidence and therefore I do not consider such evidence to be sufficiently reliable.
Without summarising the entire content of the opinion of Mr Keramidas, the ultimate conclusion of him is that the damage profiles of the two vehicles is inconsistent with the version of events of the claimant (as apparently set out in the submissions of the claimant’s solicitor), and found that the damage was entirely consistent with the version of events of the insured driver.

Submissions

Claimant’s written submissions

The claimant’s written submissions are dated 14 December 2020.
These submissions assert that there were two collisions and the first caused the claimant’s vehicle to swerve side to side and that whilst swaying the second impact caused the corner of the insured vehicle to collide with the rear driver side corner of the claimant’s vehicle.
The submissions state that the claimant did not change lanes at any time. It is then stated:
“In hindsight, the claimant acknowledges that she may have submitted to the physiotherapist she had put her indicator on, however in any event, she had always maintained that she did not change lanes.”
It is asserted that the accident would have occurred prior to, or just after a traffic island, due to the location of her bumper bar which was recovered after the accident at such location, together with debris. It is submitted that the claimant would not have had the opportunity to change lanes as alleged by the insured driver.
It is further submitted that the insured driver was nevertheless at fault as he failed to abide by section 126 of the Road Rules 2014 which provides that a sufficient distance is to be kept from a vehicle in front in order to avoid a collision.
The claimant’s written submissions go on to assert:
“The claimant submits that a more reasonable and objective assessment of the accident would be that the claimant had put her indicators with intentions to change lane. The insured driver thinking that the claimant was to change lanes had sped up too quickly before the claimant had made any turn and directly impacted the centre of the vehicle. The impact has resulted the claimant’s vehicle to sway and hence causing a second impact to the corner of the vehicles.”
It is also submitted that the opinion of Dr Keramidas does not reflect the circumstances of the accident and the report should not be relied upon by me.

Insurer’s written submissions

The insurer submits that the version of events provided by the insured driver in his statement is consistent with the incident report that he completed for his employer records.
It is submitted that on the basis of the totality of the evidence I would accept that the insured’s version of events as being internally consistent and also consistent with the physical evidence, as noted by Mr Keramidas. In contrast, I would find the version of events provided by the claimant to be internally inconsistent with the physical evidence.
In response to the claimant’s written submissions, it is noted that the submissions concede that the claimant likely had her indicator on. The insurer notes that if there was no opportunity to merge then it is unclear why she would have her indicator on. The insurer then provides a shot of the relevant section of roadway from Google Maps that demonstrates that there would be “ample opportunity” to merge lanes to the “entry lane” (effectively lane one of four).

Further evidence

At the assessment conference the claimant gave evidence through an interpreter.
The claimant’s oral evidence was somewhat at odds with the written submissions lodged on her behalf. For instance, the claimant was quite adamant in her oral evidence that she at no point turned on her blinker. In contrast, the submissions lodged on her behalf suggest that the most logical explanation for the accident was that the claimant turned on her blinker and the insured collided with the rear of the vehicle after speeding up too quickly before the claimant had made any turn.
In fact, at the conference the claimant clearly denied ever putting on her indicator and ever stating that she did, including to the physiotherapist.
The evidence the claimant gave at the conference was somewhat confusing as to what lane she was travelling in immediately prior to the accident occurring. At one point in questioning by Mr Bowen the claimant seemed to suggest that she was in lane one of four. However, shortly after in questioning she appeared to agree to a suggestion she was travelling in lane two of four.
She was consistent, however, in her evidence that she did not turn on her indicator and did not have an intention of changing lanes at all.
The claimant was questioned on the repairs to her vehicle. She agreed when it was put to her that she paid for the repairs out of her own pocket. She did not agree that she did so because she considered the accident to be her fault. Instead she suggested that she did so as she needed the car for work and medical appointments. She stated that she received no response from the insured.
When the insured driver gave evidence he did not describe lane one of four as an “entry lane”, instead he said it was a “full lane” but if people were going on or off the motorway they needed to be in that far left lane. He stated that at the collision point around 1 km ahead was a turnoff to go to the M7 and a bit further was a turnoff to Walgrove road. He stated that one must be in the far left lane if they wished to exit.
In respect of the point of impact of the collision the insured stated that his truck hit the vehicle on the back right hand corner. He described that immediately after the vehicle spun around and that there was “probably” another impact but he could not say exactly where that was but guessed it would have been on the left side, given the marks to the passenger side.
Under questioning by Mr Loukas, the insured stated that it seemed to him at the time that the claimant wished to go into lane one, that she changed lanes but because there were trucks ahead of her in lane one she decided to get back into lane two to try and push into the lane one further down the road.
He stated that when she changed lanes to lane one he accelerated as he did not wish to change lanes and wanted to get past her. He stated that all of a sudden, without indicating, the claimant moved into lane two and he had no time to apply the brakes or sound the horn.
He stated that prior to the accident the claimant was speeding up and slowing down and he formed the impression she was wanting to change lanes and he also saw her head looking over her shoulder into the left mirror. Mr Loukas questioned the insured as to whether he would be able to see her head from his vehicle, and the insured responded that he could as he was travelling at a safe distance behind.
In response, Mr Loukas suggested to the insured that if he was travelling at a safe distance then the accident would not have happened once she changed lanes. The insured rejected the suggestion and stated that when the claimant moved he accelerated and was coming up beside her and he was very close to being beside of her when she all of a sudden moved back into lane two.
It was suggested to the insured that the second impact was to the back rear right corner of the claimant’s car. The insured firmly denied such suggestion.
The insured was questioned on the absence of dashcam footage. It had been established that he had mentioned that there was a dashcam immediately after the accident. However, it is apparent that any footage is not available. The insured gave evidence that he was advised by a person within his employer’s organisation (whom exactly he could not recall) that the footage was not working. Accordingly, no footage is available.
The insured was also questioned regarding his refusal to provide information as to his previous driving history. At this point the insured became somewhat agitated and maintained that it was not relevant.

Claimant’s submissions at the Assessment Conference

In submissions at the assessment conference Mr Loukas stated that the most likely scenario was that the claimant was in lane two of four, whilst acknowledging that such submission went against the evidence of the claimant. It was stated, however, that it was the most logical position. It was submitted that the first impact was straight from behind, which caused a loss of control of the vehicle, with the car moving such that the second impact was between the back right rear of the vehicle and the front left of the truck.
It was submitted that weight can not be placed on the report of Mr Keramidas, and noted that the comment in respect of the damage to the bumper bar has limited forensic value given that it was found “discarded” on the side of the road at a later point.
It was further submitted that the struts that support the bumper bar were not bent and that same was consistent with a straight on flush hit. Thereafter, there was a loss of control causes the vehicles to be at different angles. It was submitted that such version has been consistent all along and should be believed.
Mr Loukas suggested that the absence of the dashcam footage and the refusal to provide information on prior driving history added doubt to the insured’s version of events.
In line with the written submissions of the claimant, Mr Loukas suggested that the likely scenario is that the claimant’s left blinker was engaged, which caused the insured to assume that she was going to turn left and when she did not the insured collided with the rear of her vehicle.
Essentially, it was submitted that the claimant never moved lanes and as such the insured breached his duty by failing to keep a safe distance behind the claimant as per section 126 of the Road Rules.
Further to the above proposition, a further three alternative propositions as to the circumstances of the accident were put to me on behalf of the claimant. The first of which was that even if she did not engage her blinker, the claimant still did not change lanes and accordingly the insured is entirely at fault for not keeping a safe distance.
The second alternative proposition put forward was that if I were to accept the insured’s version that the claimant had changed lanes he was still at fault because there was sufficient time for him to avoid hitting the claimant’s vehicle, even if she did come back into lane two.
The third alternative proposition put forward was that if I were to find the claimant at fault, there would still be negligence of the insured by failing to avoid the accident noting that he formed the impression that she was an impatient driver and should have taken steps that would have avoided the accident.
Mr Loukas also drew my attention to the case of Draca v Silva [2012] NSWCA 312 (Draca). It was submitted that the facts of such case are similar to the subject facts. As I understand it the claimant relies on this case to give weight to the submission that the insured was not keeping a safe distance and such failure led to the accident.
Draca involved a motor accident where the claimant in the primary proceedings was travelling in lane one of three on Liverpool Road in Sydney, in circumstances where lane one came to an end such that a vehicle travelling in that lane would need to move to the adjoining lane two as it approached the termination of lane one.

The primary judge found that the claimant indicated to join lane two and when he found what he perceived to be a sufficient gap in the traffic. At the same time he saw the respondent’s truck behind him in lane two and considered that he could safely move across in front of the truck. When moving to the lane a collision occurred with the near side of the rear of the respondent’s truck.
In that case, the respondent gave evidence that he was not aware that the accident had occurred and that was accepted by the primary judge.
The primary judge found no liability on behalf of the respondent truck driver.
Mr Loukas specifically drew my attention to paragraph 20 of the Court of Appeal’s decision where the Court referred to the primary judge’s finding that whilst the claimant was required to give way to the respondent, that did not necessarily negate any negligence on the respondent’s part. It was then stated:
“In other words, notwithstanding the rule, the respondent could still be guilty of negligence had his Honour found that he was or ought to have been alerted by the appellant’s attempt to move into lane 2 if the circumstances were such as would have enabled him, using reasonable care and skill, to have slowed up to allow the appellant to complete the manoeuvre safely.”

Insurer’s submissions at the Assessment Conference

In response, Mr Bowen noted the most contemporaneous record of the accident is that provided by the insured in the incident report form of his employer. It was submitted that there was uniformity and consistency with the insured’s account.
In respect of the issue of there being a second impact, it was submitted that this was not something the insured had missed as it is set out in the incident report form where there is damage to the passenger side of the car noted.
It was submitted that in contrast the version of events of the claimant had not been consistent. It was noted that the submission made on behalf of the claimant that she had intended to change lanes and switched on her indicator was inconsistent with the evidence that she gave.
Mr Bowen submitted that whilst alternative propositions were put to me in respect of how the accident occurred, they should not be accepted given facts must be established to make a finding and the claimant’s evidence did not support the propositions put to me.
It was also submitted that I should draw an adverse inference that there was no evidence by way of statement or oral evidence from the claimant’s husband, who was a passenger in the vehicle.
In response to the claimant’s submission that the insured was at fault due to a failure to keep a safe distance, it was submitted that once the claimant had changed lanes from lane two to one and the insured remained in lane two, the insured was entitled to accelerate in circumstances where his lane was clear. It was submitted that instead, the claimant made a reckless decision to re-enter lane two without looking and into the path of the truck that was reasonably accelerating and in such circumstances there could be no liability on the part of the insured.
It was finally submitted, that if I did find some liability on the part of the insured then the finding of contributory negligence would be significant, and would be in the order of 75%.

Reasons

In consideration of the totality of the evidence I find that leading up the accident both the claimant and the insured were travelling in lane two of four, with the insured travelling directly behind the claimant. This is a fact that appears to be agreed to by both parties. In any event, it is the most logical conclusion on the evidence available.
I agree with the submission of the insurer that the evidence of the insured should be preferred over that of the claimant. The version of events given by the insured in the incident report, his statement and his oral evidence are consistent. With the dominant and clear thread being that the vehicles were travelling in lane two, that the claimant was speeding up and slowing down and that she moved to lane one, that he sped up after she did so and when he was almost by the side of her vehicle the claimant moved suddenly back into lane two without indication. I accept the insured’s evidence in this regard.
Whilst the insured did become somewhat agitated at questioning regarding his driving record, I found him to be an honest and accurate witness. I am not satisfied that there is sufficient evidence in front of me that would have me make an adverse inference that the dashcam footage is not available. I accept the insured’s evidence that he was not aware that the dashcam was not functioning at the time of the accident.
I do not accept the version of events given by the claimant in evidence that she did not change lanes and did not turn on her blinker at any point. Her oral evidence is not consistent with the version of events in the claim form and her statement and the history recorded in the physiotherapy report. However, I do not place any significant weight on the account in the physiotherapy report given it is not direct evidence from the claimant that she has verified.
I also do not accept the various alternative propositions put to me, including that the claimant put on her blinker but did not change lanes before the collision. There is no evidence before me that supports such proposition, including the claimant’s own evidence.
I reject the submission that if the insured’s version of events is accepted that the claimant did change lanes, that he was still at fault on the basis that he did not keep a safe distance. I accept the insured’s evidence that he had kept a safe distance behind the claimant when she was in lane two directly in front of him. In this regard, it is consistent with the insured’s evidence that he was able to observe the claimant’s head move over her left shoulder prior to changing lanes, being evidence that I accept as truthful.
I also accept the insured’s evidence that the claimant changed lanes suddenly and without indication and she did so at a point where there was no reasonable opportunity to avoid the collision.
I do not accept a proposition that once the claimant’s vehicle had moved out of the insured’s lane that he was then somehow at fault by not keeping a safe distance. I accept the submission that the insured, once the claimant’s vehicle had moved from his lane, was entitled to accelerate and move forward in the lane, provided it was clear. To find otherwise would effectively mean that the insured was obligated to ensure his vehicle was behind the claimant at all relevant times on the chance that she may make an unsafe manoeuver. Whilst I do accept that the insured formed the view that the claimant was a hesitant driver, I do not accept that it would be unreasonable for him to accelerate forward in lane two when the claimant’s vehicle was removed from his lane.
Whilst the claimant’s Counsel referred me to the case of Draca, I do not find such case assists the claimant. Whilst I was referred to paragraph 32 of that decision where Justice Tobias refers to the High Court case of Sibley v Kais (1967) 118 CLR. Such passage discusses a situation where a claimant was already part way in the lane of the respondent and as such the respondent had an obligation to take evasive action to avoid a collision. The key part of that passage are the words “…and was in a position to alter his course.” I do not find this to be the case in the subject accident. I have found above that the claimant changed back into lane two suddenly and without indication and I accept the insured’s evidence that he had no opportunity to take evasive action to avoid the collision.
Moreover, I find the case of Draca to support the case of the insured. In this regard, I refer to paragraph 45 of Justice Tobias’ judgment which provides:
“However, neither of the above passages required his Honour to find that the mere fact that the appellant had engaged his right hand indicator light thereby signalling that he intended to move at some point out of his lane into the adjoining lane of itself required the respondent to take some particular action to enable the appellant to do so. Nor did they require the respondent to keep the appellant’s vehicle under constant surveillance in order to be able to react in the event that the appellant decided at some indeterminate point on the roadway to attempt to move in front of the respondent’s truck.”
I find that the above supports my finding above that the insured was entitled to accelerate forward once the claimant had moved out of lane two and he was not under a special obligation to anticipate the claimant moving back into the lane.
In respect of the issue regarding the occurrence of two collisions between the vehicles, it appears to be common ground that this did occur. There is, however, a dispute as to the point of impact of each collision.
Having accepted the insured’s evidence that the claimant had moved to lane one and then suddenly moved back into lane two when he was almost beside her, I accept that the first collision occurred between the front passenger side of the insured vehicle and the rear driver’s side corner of the claimant’s vehicle. The photographic evidence before me is consistent with a collision having occurred between these two areas of the vehicles.
Having found that the accident occurred in the way it did, and as such the first collision is as described in the paragraph above, I do not consider it relevant to the issue of fault where the point of impact of the second collision.
In respect of whether the claimant’s vehicle spun or swerved side to side after the first collision, I accept the insured’s evidence that the vehicle spun. This is also consistent with the first collision occurring in the manner that I have found.
Whilst a submission was made that the struts of the claimant vehicle’s bumper bar were not bent as such it was more likely the first impact was straight on to the back of the vehicle; I do not consider there is sufficient evidence, expert or otherwise, that satisfies me that such submission should be accepted.
Whilst the conclusions of the traffic expert, Mr Keramidas, are consistent with my findings, his did not assist me in my determination.

Costs and Disbursements

88.There is a dispute between the claimant and the insurer in respect to recovery of legal costs under section 8.8 of the MAI Act.
89.The claimant in the initial written submissions made a claim for regulated costs at the maximum payable under the Motor Accident Injuries Regulation 2017 (the Regulation).
90.At the conclusion of the assessment conference the issue of costs were raised, and I made directions for the provision of submissions from the parties regarding same.
91.The claimant's representatives made submissions dated 4 June 2021 which seek "exceptional costs" in addition to the regulated costs under clause 3(2)(d) & (e) of Part 1, Schedule 1 of the Regulation.
92.In support of such claim, the submissions go through the various steps required to ready the matter for assessment. This includes explaining the traffic engineer reports, interpreted to the claimant, the internal review process and the assessment conference held on 2 June 2021.
93.It is submitted that the legal work undergone exceeds the amount of regulated costs and therefore claims exceptional costs in the circumstances.
94.It is submitted that no less than 15 hours of additional legal work was performed as a result of the dispute and the insurer's request for further expert evidence and the assessment conference.
95.The insurer submits in reply that whilst there is a claim of not less than 15 hours of additional legal work there is no itemised list of work performed provided. In any event, it is alleged that the additional work claimed is entirely excessive in the circumstances.
96.It is also submitted that the claimant agreed to an assessment conference taking place rather than an assessment on the papers. It is submitted there are no exceptional circumstances.
97.It is further submitted that Schedule 1, clause 3(1) of the Regulation does not confer an automatic entitlement for the claimant to incur the maximum amount prescribed, or in excess where a finding of exceptional circumstances is made. It is further submitted that the disclosure requirements under the Legal Profession Uniform Law applies to all legal services for regulated and unregulated legal costs.
98.I have found against the claimant. However, I am satisfied that there were reasonable prospects of success such that it was reasonable for the claimant to pursue the dispute and as such find it reasonable to award costs. I find that the insurer itself must have considered the dispute to be less than clear cut given that it obtained two expert reports as to the circumstances of the accident.
99.I am also not satisfied that Justice Wright's findings in AAI Ltd trading as GIO v Moon [2020] NSWSC 714, as submitted by the insurer, is such that the claimant is required to provide an itemised list of work performed in order to recover regulated costs. His Honour's findings make it clear that where the PIC (then DRS) permits payment of costs above the regulated amount the lawyer is entitled to paid in accordance with the Legal Profession Uniform Law and other relevant legal principles. I do not consider that such finding makes it obligatory that the claimant's lawyers need provide an itemised list of work to recover regulated costs.

I am satisfied that the claimant is entitled to the payment of legal costs. Utilising my discretion, I allow costs in the sum of $1,660 plus GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
·the MAI Act
·the Regulation

Elizabeth Medland

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 321

28 July 2021