Banmala v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Banmala v AAI Limited t/as GIO [2022] NSWPIC 762
CLAIMANT:	Nisha Banmala
INSURER:	AAI Limited t/as GIO
MEMBER:	Bridie Nolan
DATE OF DECISION:	19 December 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; pedestrian injured by motor vehicle when crossing multiple lane carriageway in large public hospital precinct; claimant crossed road when she considered it safe to do so; injured by vehicle changing lanes; determination as to whether for the purposes of sections 3.28 and 3.36 the motor accident was caused mostly by the fault of the injured person; whether insured driver maintained a proper lookout; contributory negligence; Held – claimant kept proper lookout; insured driver changed lanes unexpectedly in stationary traffic; insured driver failed to keep a proper lookout; claimant 20% contributorily negligent for failing to cross at traffic signals through heavy stationary traffic; claimant not wholly and mostly at fault.
DETERMINATIONS MADE:	Certificate *Issued under s 7.36(4) of the Motor Accident Injuries Act2017* and cl 7.497of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.28 or s 3.36 the motor accident was not caused mostly by the fault of the injured person. 2. Effective Date: This determination takes effect on 20 September 2019. 3. Legal Costs:** The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,980 inclusive of GST.

Reasons for Decision

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

Background

This determination relates to: an application for the determination of a miscellaneous claims dispute pursuant to Schedule 2, cl 3(e) of the Motor Accident Injuries Act 2017 (the Act) as to whether the claimant was wholly or mostly at fault for the accident.

Nisha Banmala (the claimant), sustained injuries arising from the motor vehicle accident on 20 September 2019 as a pedestrian on Frenchs Forest Road West in Frenchs Forest, in the state of New South Wales.
On 1 October 2019, the claimant lodged an Application for Personal Injury Benefits.
On 27 November 2019 the insurer issued a liability notice denying liability in respect to the claimant’s statutory benefits post 26 weeks on the basis that she had suffered a minor injury and was wholly at fault for the accident.
On 7 May 2020 by way of internal review, the insurer affirmed its decision that the claimant was wholly at fault for the subject accident.
The claimant has raised a dispute with respect to that determination by her application to the Personal Injury Commission (the Commission).
The claimant alleges that her injuries were suffered as a result of the negligence and breach of duty of care on the part of the insured driver. Alternatively, she avers that the subject accident was a no-fault accident for the purposes of Part 5 of the Act.
The accident occurred about 150 m west from the intersection of Wakehurst Parkway. The accident scene is a mixed-use area, mainly residential but with various infrastructure such as that appurtenant to the Northern Beaches Hospital, which has only been recently constructed.
The speed limit in the area is 40 kmph. The accident did not occur at traffic signals. At the scene of the accident there are no warning signs nor traffic control signals. The road lanes are normal width.

The subject accident

The claimant refers to her statement dated 23 September 2021 for her version of events. It sets out relevantly the facts as follows:
(a)    the claimant alighted from the bus on the left-hand side of Frenchs Forest Road and proceeded to cross to the right-hand side of the road. Frenchs Forest Road consisted of six total lanes, with three lanes in each direction of traffic separated by a median strip;
(b)    the claimant crossed the first three lanes safely with no difficulties as she had done on previous occasions;
(c)    the claimant paused on the median strip, gauged her surroundings, and sought to determine whether the road was safe to cross, and
(d)    the claimant has no recollection of the events thereafter.

Claimant’s evidence

The claimant says that on the morning of 20 September 2019 she got up and prepared herself for work as she did any other day. She does not recall exactly where she caught the bus from on that day. She recalls that the bus stopped on the left-hand side of Frenchs Forest Road which is where she usually alights. The Northern Beaches Public Hospital is on the other side of Frenchs Forest Road. She exited the bus and proceeded to cross Frenchs Forest Road to the other side. She recalls alighting the bus at approximately 7.00am.
To her memory, the road consisted of six lanes and three lanes were going in each direction with a median strip in the middle. The traffic was usually heavy at this time of morning. It was usually her practice to cross the road in the mornings when she is making her way to work. It is not uncommon for pedestrians to cross the road in that way at the place she did. On most mornings when alighting from the bus, most of the pedestrians also look to cross the road in the same way that she did. There is a pedestrian crossing that is some distance away, but she made the decision to cross the road as she did every other morning, adjacent to where the bus stopped. She recalls on this particular morning no other pedestrians alighted the bus and proceeded to cross the road in the way she did. She had never had any issue prior when crossing the road and exercised the requisite level of caution when she did.
She says before crossing the first three lanes she recalls carefully checking the road for oncoming traffic. The traffic in the first three lanes was quite light. The road was clear. She only crossed the first three lanes when she was positive that it was safe to do so. It is her usual practice to check carefully before crossing the road. She would never purposely cross the road unless she was absolutely certain she had taken every precaution, and that it was safe to do so.
She recalls crossing the first three lanes and making it to the median strip with no difficulties. At this point there were more than three lanes she had to cross with traffic running in the opposite direction. She also recalls whilst standing on the median strip, cars in the two lanes closest to her were stationary but there were still moving vehicles in the kerbside third lane. As it was not yet safe to cross, she waited on the median strip for the cars in the lane to stop moving. The last thing that she recalls is checking the road to determine whether it was safe to cross. Her last memory is of her standing on the median strip. She does not recall when she decided to cross. She can only assume she would have crossed if she was certain that it was safe to do so and that was her usual practice.

Insured’s evidence

At about 7.00am, the insured was travelling in a westerly direction along Frenchs Forest Road at Frenchs Forest in lane number two.
At the time, the traffic flow was heavy in the both the easterly and westerly directions. The weather conditions were fine, and the road was dry. She says she was not using her mobile telephone and did not have her car radio on or was distracted by anything or any occupant in her vehicle. She was moving slowly in heavy traffic and looking directly ahead.
She saw the traffic in front of her in the number two lane and three lane was stopped. She decided to change lanes into the number one lane and intended to make a left-hand turn further along the roadway. She put her left indicator on and was travelling at about 10 kmph. She then looked in the mirror on the near side of her vehicle and did not see any vehicles travelling in the number one lane. She also looked over her shoulder and still did not see any vehicles. She formed the opinion that it was safe to change lanes.
She then changed lanes and then started to accelerate and there were no vehicles in the lane in front of her vehicle. She was looking directly ahead in the vehicles in the number two and number three lanes were stationary.
She then felt an impact and then saw a woman on the front offside corner of her vehicle. She had run between the stationary vehicles in the number two lane to her left. She did not have time to brake or avoid the collision prior to the impact. She then harshly braked, and the woman then flew sideways off her vehicle. She drew a diagram of the accident (Figure 1 below). There is also a Google Maps image of where the accident occurred (Figure 2 below).

Figure 1- Insured driver’s diagram of the accident.

Figure 2 Google Maps image of where the accident occurred with hand intentions as to the point of impact

An eyewitness’ evidence: Sally Noyen

A witness describes the accident as follows. At about 7.00am, she was travelling in a westerly direction along Frenchs Forest Road at Frenchs Forest in number two lane. At the time the traffic flow was heavy in the same direction she was travelling and heavy in the other direction. The weather conditions were dry. She was stopped in heavy traffic and was looking to her left and talking to her sister. She then saw out of the corner of her eye, a flash of red and saw a woman who had run past the back of her vehicle. She had run from the direction of the north side of the roadway. There were vehicles stopped in front and behind her vehicle and also vehicles stopped in lane number three. She then saw the same woman who ran behind her vehicle, propelled into the air along the number one lane. Her body then impacted with the near side of her vehicle and her mirror was taken off. She then saw the vehicle had collided with the woman in lane one.

Documents considered

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

SUBMISSIONS

Insurer’s submissions

The insurer submits the claimant concedes she ran from the northern kerb of Frenchs Forest west between stationery vehicles facing west and collided with the vehicle driven by the insured in turning lane one. The versions provided by the insured and witness are consistent with the police report. The police determined the claimant was responsible for causing the collision.
The facts the insurer submits I ought to find are:
(a)    the motor accident occurred at 7.00am on Friday, 20 September 2019 on Frenchs Forest Road west in Frenchs Forest. The traffic was heavy for vehicles travelling both east and west on the road;
(b)    the insured was travelling west. The insured is employed as a nurse at the Northern Beaches Hospital and was on her way to work when the motor accident occurred;
(c)    the witness was travelling west on Frenchs Forest Road west and was stationary in lane two;
(d)    the vehicle in lane two immediately behind the witness’s vehicle was stationary;
(e)    the insured was travelling at approximately 10 kmph in lane two and changed lanes to lane one as the insured intended to turn left;
(f)    lane one is a turning lane for traffic turning in the car park for the Northern Beaches Hospital. There were no vehicles ahead of the insured in lane one;
(g)    the claimant was running from north to south across Frenchs Forest Road west;
(h)    the claimant was running between stationary traffic lanes in two and three, travelling west on Frenchs Forest Road;
(i)    the claimant ran directly behind the witness’s vehicle in lane two;
(j)    the point of impact was located approximately metres west of the Wakehurst Parkway;
(k)    the collision between the claimant and the insured in lane one travelling west on Frenchs Forest Road;
(l)    the collision between the claimant and the insured did not occur on the pedestrian crossing;
(m)     the pedestrian crossing was available east of the point of impact at the intersection of Frenchs Forest Road and Wakehurst Parkway;
(n)    the pedestrian crossing was available west of the point of impact at the intersection of Frenchs Forest Road and Gladys Avenue;
(o)    the insured was looking directly ahead and had accelerated from 10 kmph when the collision occurred;
(p)    as a result of the collision with the insured vehicle, a second collision occurred between the claimant and a witness’s vehicle;
(q)    the claimant collided with the near side of the witness’s vehicle causing the near side mirror of the witness’s vehicle to break off, and
(r)    police attended the accident scene and determined the claimant was responsible for causing the motor vehicle accident.
The insurer submits that the claimant was wholly at fault for the following reasons:
(a)    the claimant was attempting to cross the road in heavy traffic at a point where it was unsafe for her to do so;
(b)    the claimant failed to have proper regard for her own safety by running across the road between stationary vehicles without keeping a proper lookout;
(c)    the claimant denied the insured sufficient time or opportunity to avoid a collision by running between stationary vehicles, and
(d)    the claimant failed to utilise one of the two pedestrian crossings that were conveniently available to her.
As to contributory negligence, the insurer’s primary submission is that the insured was driving at an appropriate speed and keeping a proper lookout and the claimant was wholly at fault.
However, should I be against the insurer in this submission, the insured driver was driving at an appropriate standard and submitted that I would accept the claimant was mostly at fault as she contributed to her injuries by more than 61%. The insurer refers to T and X Company Pty Ltd v Chivas [2014] NSWCA 235 (Chivas), where there was a 75% reduction for two persons as they ran out against traffic lights across a path of a taxi travelling along Market Street in Sydney at 50 kmph which did not slow down. It puts forward this decision as an analogous support for its contentions.
I note, however, it overlooks the fact that in order for there to be a finding of contributory negligence there must first be a finding of fault on the part of the insured driver. I note nowhere in the submissions does the insurer make a submission that the insured driver was at fault. However, the insurer does go on to say that whilst the insured was driving within the speed limit and keeping a proper lookout, her contribution if any, would be minimal. By contrast, the claimant is said to have exposed herself to a significant risk of injury by running across a busy roadway between stationary vehicles that were likely to and did obscure her from view of driver’s travelling west on Frenchs Forest Road west. The claimant failed to keep any proper lookout and failed to use one of two traffic lights controlled by pedestrian crossings that were available.

Claimant’s submissions

The claimant raises the issue of inconsistency in the insurer’s evidence with respect to the speed of the claimant. In a statement of Ms Cunningham dated 17 November 2021 at [17], Ms Cunningham suggests that the claimant was “almost walking quickly” at the point of where she had reached the third westbound lane on Frenchs Forest Road. The statements of Ms Noyen (an eyewitness) and the insured suggested the claimant was running.
The claimant contends that as she crossed the first three lanes before arriving in the median strip, she recalls that she walked and did not run. She cannot recall the events which occurred between choosing to cross the further three lanes of traffic and the point of impact and is therefore unable to say for certain whether she was walking or running.
She submits that where there is no objective evidence to determine the pace or speed of movement between the lanes and whether conflicting factual versions of the events that the factual evidence in regard to pace or speed should be given or afforded little weight.
She says that her usual practice was always to exercise the highest level of care and caution when crossing Frenchs Forest Road. The claimant raises difficulty with the insurer’s allegation that she was running also in circumstances where her prior practice generally and in the moments immediately prior to the accident she was walking.
Irrespective of the issue of speed or pace at which she was walking, she submits that the insurer failed to keep a proper lookout. She says that the evidence of the insured establishes a window of time between the successful changing of lanes and the impact between the claimant and the vehicle. The insured’s statement is silent as to whether an appropriate and proper lookout on the road and her surroundings was undertaken during this window.
Whilst it is accepted that the insured probably checked her left-hand mirror and safely gauged whether it was safe to change from the middle to left hand lane, it is the claimant’s submission that thereafter proper attention and regard to the road’s surroundings was not undertaken by the insured. If so, the insured would have spotted the claimant and would have had time to brake to avoid the collision.
The insured also referred to the heavy traffic flow of that particular morning. This heavy flow of traffic is a fact, she says, that has been established by several other witnesses and submits that it may reasonably be inferred that the insured was sufficiently pre-occupied with managing the heavy traffic from her vehicle along with the change of lanes so as to distract her from the road and accordingly prevent her from spotting the claimant at an earlier distance.
She submits that on the objective factual evidence accepted by both parties, there does not appear to be grounds to find the claimant wholly or mostly at fault for the accident.

Reasons

Section 3.28 of the Act entitles the insurer to cease paying statutory benefits for treatment and care expenses incurred more than 26 weeks after the motor accident if the motor accident was caused wholly or mostly by the “fault” of the claimant.
“Fault” in this context refers to the claimant’s negligence or any other tort. Section 1.4 of the Act defines “fault” as it appears in the Act to mean “negligence or any other tort”. There is no carve out of this definition for statutory benefits.
The expression “at fault” connotes tortious liability. Tortious liability is a legal construct which determines civil liability for the injuries caused to a person by another person arising from a breach of a duty fixed by law, the breach of which is redressable in an action for unliquidated damages. That liability does not accrue unless and until damage is sustained and the tort is complete.
In the context of a “motor accident”, it is predicated on a duty of all road users to take reasonable care while using the road. A duty of care is breached when a person is injured because of an act or omission of another person, when it was reasonably foreseeable that the action could cause injury, and a reasonable person in the same position would not have acted that way. That duty exists for the benefit of other road users, not the person to whom the duty attaches. Specifically, a driver cannot have a claim in negligence against him or herself: see Whitfield v Melenewycz(2016) 92 NSWLR 624; [2016] NSWCA 235 at [31]. Likewise, by extension, nor can a pedestrian have a claim against himself or herself.
The expression “the fault of the person” in both ss 3.11 and 3.28 of the Act would appear to refer only to the tortious liability of the injured person, viz. legal causation for the accident attaching to the injured person. This is fortified by the fact that s 3.11 and
s 3.28 of the Act contain alternative qualifying adverbs of the phrase “at fault” - “wholly or mostly”. By their colocation, these qualifiers inform each other. They are clearly intended to address the same mischief: contributory negligence, as ss 3.11(2) and 3.28(2) define. Hence, they operate to require comparisons between the relevant importance of the acts or omissions of at least two parties in causing the accident. Indeed, ss 3.11(2) and 3.28(2) make plain it is the legislative intention of ss 3.11 and 3.28 that there be an assessment of apportionment of liability further to the analysis required by s 3.38(1) and (3) of the Act, (that is, the application of the common law and enacted law as to contributory negligence that applies to an award of damages) as to what is “just and equitable” as between the injured person and another person by having regard to their respective shares in the responsibility for the accident. It incorporates therefore, not only consideration of the relevant provisions of ss 5D, 5E, 5R, 5S and 5T of the CL Act, but also the principles articulated in Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 and Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 and the operation of s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW).

In my opinion, such a comparative analysis as is expressly required by an assessment of contributory negligence under ss 3.11 and 3.28 of the Act, is utterly inappropriate when, as here, the insurer denies liability for the accident. In short, the apportionment exercise required by ss 3.11 and 3.28 of the Act cannot apply unless there is another tortfeasor, otherwise the analysis is completely artificial and contrary to the common law position (not disavowed by the Civil Liability Act 2002 (NSW) (CL Act) or other law incorporated by the operation of s 3.38 of the 2017 Act) that the claimant can have no tortious liability to himself.
Thus, the claimant, who cannot be “at fault”, cannot therefore be “wholly or mostly at fault”. To find to the contrary requires not only an abnegation of the established legal position that a person does not owe a duty of care to himself or herself and an apportionment exercise in a vacuum. Even if ss 3.11 and 3.28 of the Act, were to create a separate and free-standing test for liability unique to its provisions (which is not, in my opinion, supported by the statutory text or context), the claimant nonetheless, cannot be wholly at fault. This would involve the uncoupling of the operation of express alternative qualifiers to incorporate the test of contributory negligence as spelt out in ss 3.11(2) and 3.28(2).
Further, to cleave, the express alternative qualifiers from each other and apply them to the phrase “at fault” as discrete constituents for the purposes of applying s 3.11 and
s 3.28 of the Act to single and multiple putative tortfeasor accidents, would not only do violence to the statutory language, but it would also undermine the cohesion of the determination posited by the provisions themselves. That is, the provision envisages contributory negligence can be apportioned to 100%: see e.g. s 5S of the CL Act, but it cannot be without an alternative putative tortfeasor: see Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36 at [83] and [86], and Davis v Swift [2014] NSWCA 458 at [50].
On this analysis the claimant is not “wholly at fault”, because she cannot be “at fault”, and thereby her conduct cannot be subjected to the apportionment analysis the provision expressly requires unless the insured driver was at fault.
In my opinion, she was.
While incumbent on the driver to take reasonable care, it is not the duty of the driver to drive so that there is no foreseeable risk of injury to others. But a driver must nevertheless foresee the extent of damage that may be done by a driver to a pedestrian, the degree of likelihood that a pedestrian will suddenly come into the path of an ongoing vehicle, the consequent extent of the precautions which a driver must take against that eventuality and the extent to which a driver when confronted with such a danger may act to avoid it. This duty of care of a driver of the motor vehicle is owed to all uses of the road, including the inattentive, and those who have departed themselves from the relevant standard of care upon them to take reasonable precautions for their own safety.
The preponderance of evidence suggests that the insured driver in changing lanes failed to keep look out. When changing from lane two to lane one and a reasonably prudent driver or exercising all due care and skill and taking into account the various matters which I have outlined above, would be alert to the possibility that pedestrians may be stepping off the kerb. Although that was not the case in this instance and the claimant was heading to the kerb this is a matter nevertheless that would have occupied the insured driver’s mind in changing lanes. Nowhere in the insured driver’s evidence does she say that she checked to ensure that there was nobody entering the roadway from the southern kerb. The fact is that she did not, especially in a built-up area such as where the accident occurred constitutes a departure from the standard of care incumbent upon her. This duty was amplified particularly because she was driving in morning traffic near major public infrastructure such being the large and busy public hospital. Contrary to the insurer’s submissions, I do not consider this departure to be minimal.
It is a well-established rule that a claimant is required to conform to the same standard of care as the insured, with allowance for the fact that the relevant inquiry is directed to what is reasonable for her own safety rather than the safety of others. The claimant is to be held to the standard of care expected of an ordinary reasonable person crossing the road that the claimant did on the morning of her accident. By failing to cross at a marked cross and dart within traffic, the claimant has departed from this standard of care.
Having considered the evidence as a whole, I am persuaded that the claimant, when standing on the median strip ready to complete the second leg of her crossing of Frenchs Forest Road, considered the westbound traffic travelling was stationary and there was sufficient time for her to cross. The fact that the insured driver pulled out of lane two to proceed in lane one was plainly not a matter apparent to the claimant as she commenced to cross the road. I am not persuaded that the claimant failed to keep a proper look out.
Unlike the situation under the Motor Accidents Compensation Act 1999 (NSW), s 138, which was the subject of discussion in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 (see, in particular, [84]-[85]) and the various cases to which the insurer refers in its submissions, the Act was enacted later than the CL Act such that s 5R of the CL Act should be taken as subject to s 3.38(3) of the Act. For this reason, caution is necessary with respect to the authorities which pre-date the Act such as Chivas. In particular, the change of emphasis which was said to have arisen from the enactment of the CL Act and which raised doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage has arguably undergone a subtle change. The prevailing requirement emerging from s 3.38 of the Act (in particular, as derived from the nature of the role of the Commission in s 3.38(3)(c)) is that I apportion liability according to what I consider and reason to be just and equitable in the circumstances of the case. Therefore, under this new statutory regime, unlike its predecessor, the conduct of the driver is open to be judged against a higher standard than that of the pedestrian: cf. Chivas at [54].
Under the newly enacted statutory regime, the claimant's and the insured driver's shares in the responsibility for the injury occasioned would appear to be a mandatory factor in considering a “just and equitable” apportionment. The legislative decision to maintain the requirement of just and equitable determination renders the effect of the assessment under s 5R of the CL Act subject to the power to consider other factors relevant to the “just and equitable” test.
Therefore, in my view, it is open to me to consider the obligations the imputed knowledge of the significant damage that a motor vehicle may do to a pedestrian in determining contributory negligence under s 3.38 of the Act, despite the claimant's decision to cross the road where she did, being one, which, for reasons to which I will come, was not the more significant departure from the standard of care, in the circumstances. And I observe, that even if I am wrong in my construction of the effect of s 3.38 in the legislative scheme, it is nonetheless open to me to proceed to find as I do: see Chivas at [11] and [16].
While a pedestrian crossing at a signal crossing is certainly preferable, choosing to cross otherwise, does not necessarily bespeak a departure from the relevant standard of care to warrant a finding that the claimant was mostly at fault. The claimant expressly averted to the fact that she, as did others, frequently crossed at the junction at which she did at that time of morning. She was plainly visible as the evidence of the eyewitness suggests by her reference to the flash of red that passed behind her car.
The “weighty factor” in assessing the relative responsibility for the accident in Chivas (at [57]) was the unpredictable step taken by the deceased in that case in seeking to cross the road again stay red pedestrian light and in the face of oncoming traffic. That mix of identified considerations required a far higher level of apportionment of liability to the deceased in that case which gave rise to the finding of 75%. None of those factors is present in this case.
The claimant was not crossing contrary to a traffic signal. Much of the traffic was stationary if not completely stationary. The claimant’s usual practice was to cross the road safely every morning without incident. I accept that the claimant looked to determine if it was safe to cross before she did.
Although I do not make an assessment of her contributory negligence, in my opinion the claimant’s actions warrant no greater finding of liability than 20%. Therefore, the claimant is not wholly or mostly at fault.

Costs and disbursements

The claimant seeks recovery of costs pursuant to s 8.10 of the Act. She submits that in this matter, complex issues are involved requiring parties to peruse and consider voluminous documentation. The claimant spent significant time and resources attempting to make contact with up to 12 witnesses listed throughout NSW Police documentation and other evidence with the hope of finding a bystander willing to provide their version of events in the absence of the claimant’s recollection of the events immediately prior to the accident. She says that she spent significant time and resources chasing up non-responsive witnesses or witnesses who agreed to speak at a later date. She also spent significant time explaining to witnesses the purpose and nature of the statement with additional time spent alleviating their concerns with respect to providing evidence. Ultimately, with the exception of one witness, none was willing to assist. The claimant also retained counsel in this matter who consulted with and advised her and has undertaken significant preparation and research in respect of the claimant’s application.
She says that the regulated costs are designed to cover an ordinary matter where far less preparation and time is involved. The nature of this matter is exceptional, and it would result in substantial injustice if the regulated costs were implied.
The insurer submits that there is no basis for awarding exceptional costs because the claim does not involve exceptional circumstances. The issue in dispute was not of great complexity and the factual circumstances were straightforward. The evidence relied on by the lay witnesses is generally consistent. The police report identified six witnesses in addition to the witnesses that had already provided a statement. The claimant refers to attempting to make contact with 12 witnesses but no evidence of those attempts nor the identity of those witnesses has been provided. The claimant only refers to Ms Monique Walker who provided a statement to the insurer.
I agree with the insurer’s submissions. There is nothing exceptional about the circumstances of this matter. Indeed, the claimant has not provided any evidence as to the cost that she has incurred so that I can make the assessment required pursuant to s 8 .10 of the Act. I therefore allow costs it the amount of $1,980 inclusive of GST.

Conclusion

My determination of the Miscellaneous Claim is as follows:

For the purposes of s 3.28 or s 3.36 the motor accident was not caused mostly by the fault of the injured person.
Effective Date: This determination takes effect on 20 September 2019.
Legal Costs: The amount of the claimant's costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $1,980 inclusive of GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
·        the Act;
· Motor Accident Injuries Regulation 2017;
·        Motor Accident Guidelines 2017;
·        Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9(1)(b);
·        Motor Accidents Compensation Act 1999 (NSW), s 138, and
·        CL Act, ss 5B and 5R.

B. K. Nolan

Member (Motor Accidents Division)

Personal Injury Commission

[2022] NSWPIC 762

19 December 2022