Dewar v Allianz Australia Insurance Limited
[2023] NSWPIC 270
•8 June 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Dewar v Allianz Australia Insurance Limited [2023] NSWPIC 270 |
| Claimant: | Donna Dewar |
| insurer: | Allianz Australia Insurance Limited |
| Member: | Maurice Castagnet |
| DATE OF DECISION: | 8 June 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - MotorAccident Injuries Act 2017; assessment of claim for damages; section 7.36(4); claimant is a 61-year-old woman who suffered injuries in a motor accident on 6 April 2021; the claimant was travelling as a passenger in the insured bus when she fell off her seat; duty of care; breach of duty of care; Held – for the purposes of sections 3.11 and 3.28 the motor accident was not caused wholly or mostly by the fault of the claimant; the amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $3,960 inclusive of GST. |
| determinations made: | Certificate Issued under s 7.36(4) of the Motor Accident Injuries Act2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of ss 3.11 and 3.28 the motor accident was not caused wholly or mostly by the fault of the claimant. 2. The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $3,960 inclusive of GST. |
Reasons for Decision
Issued under s 7.36(5) of the Motor Accident Injuries Act 2017
INTRODUCTION
These proceedings concern a miscellaneous claim assessment under Schedule 2, cls (3)(d) and 3(e) of the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant, Donna Dewar, seeks a review of the insurer’s decision made under ss 3.11 and 3.28 of the MAI Act to the effect that the claimant was wholly at fault in the motor accident.
BACKGROUND
The claimant is a 61-year-old woman who suffered injuries in a motor accident on
6 April 2021. The claimant was travelling as a passenger in the insured bus when she fell off her seat.On 13 September 2021, the claimant made an application with the insurer for payment of statutory benefits.
On 2 December 2021, the insurer accepted liability to make these payments for the first 26 weeks.
On 31 January 2022, the insurer notified the claimant that it declined liability for any payments beyond 26 weeks, on the basis that the claimant was wholly at fault in the accident.
On 6 June 2022, the claimant sought an internal review of the insurer’s decision. On 26 June 2022, the insurer issued a determination affirming its original decision.
On 2 November 2022, the claimant commenced these proceedings in the Personal Injury Commission (Commission) to resolve the dispute. The proceedings are now before to me for determination.
DETERMINATION ON THE PAPERS
I conducted several teleconferences with the parties over the course of the proceedings to discuss the material provided to the Commission and to explore the availability of further evidence. Ultimately, further documents were provided to the Commission including CCTV footage material from the insured, Busabout and a statement from the insured driver.
At the teleconference conducted on 18 April 2023, the parties agreed that I could proceed to determine the matter “on the papers”.
I am satisfied that there is sufficient information before me to determine the matter on the papers without holding a formal hearing.
In making my decision, I have considered the documents provided by the parties and documents produced by Busabout. These include:
(a) the CCTV footage of the accident from Busabout recorded on 6 April 2021;
(b) the complaint record Busabout recorded on 7 April 2021;
(c) the claimant’s Application for Personal Injury Benefits dated 13 September 2021;
(d) the insurer’s Liability Notice – Benefits up to 26 weeks dated 2 December 2021;
(e) the insurer’s Liability Notice – Benefits after 26 weeks dated 31 January 2022;
(f) the claimant’s application for internal review dated 6 June 2022;
(g) the insurer’s internal review decision dated 27 June 2022;
(h) the insurer’s submissions dated 24 November 2022;
(i) the claimant’s signed statement dated 14 December 2022;
(j) the claimant’s submissions dated 29 December 2022;
(k) the signed statement of the insured driver, Samisoni Ratawa dated
10 March 2023;(l) the insurer’s further submissions dated 21 April 2023, and
(m) the claimant’s further submissions dated 27 April 2023.
LEGISLATION
In making my determination, I have considered the following legislation and guidelines:
· the MAI Act;
· the Motor Accident Injuries Regulation 2017 (Regulation);
· the Motor Accident Guidelines, Version 9.1 (Guidelines) and
· the Civil Liability Act 2002 (Civil Liability Act).
EVIDENCE
The claimant’s evidence
In her application for statutory benefits dated 13 September 2021, the claimant described the circumstances of the accident in the following terms:
“I was on crutches entered the bus just sat down to get my opal card out the driver stopped suddenly. I fell off the seat banging my head twice on the floor, landed heavily on the left side of my body, hurting my hand as I tried to stop myself from falling.”
The claimant provided a signed statement to the Commission dated 14 December 2022.
Her evidence concerning the circumstances of the accident is as follows:“…
11. On 6 April 2021 at around 4:39pm, I was boarding a bus front [sic] the bus stop opposite Chemist Warehouse on Kellicar Road, Campbelltown.
12. I was using crutches when I entered the bus. I was struggling to board the bus as I am very short- 135cm - and the bus could not be lowered closer to the road to assist me to get up. At this time, I was also holding 3 bags.
…
14. I remember him [the driver] being annoyed or frustrated at me from the very beginning as I was struggling to get onto the bus. It felt like he was rushing…
15. Upon boarding the bus, I tried to tap on with my opal card but the driver had indicated with his thumb and said "up there." I had assumed that he was informing me to tap on with my opal card at the machine located further down the bus, next to the seats on the wheelchair section of the bus.
16. I had just sat down on one of the fold down chairs of the bus to get my opal card out. I would never normally sit on these chairs. I always choose to sit on a bus seat with some sort of protection in front of them to protect me from falling over.
17. The other two chairs located in the fold down-wheelchair section of the bus were folded up. I had yet to even put my bags down before the bus started to drive. When I had put my grocery bags down I begun to look though my handbag to locate my opal card as I had still not yet had time to tap on.
18. I was holding onto my crutches with my left hand and looking through my handbag, which I was holding on my right side. I remember putting pressure on my crutches to act as a brake since the bus was picking up speed so quickly. I remember the bus picking up three different speeds as we approached the roundabout.
19. As we approached the roundabout, the bus did not slow down. The driver therefore had to stop suddenly since there was another car to the right that had right of way. The other car was also driving quite fast.
20. I heard the screeching of the brakes and the bus halted to a stop. The force of the sudden halt caused me to fall off my seat and banged my head twice on the bus bar. I landed heavily on the left side of my body hurting my hand as I tried to prevent myself from falling.
21. Everything happened so fast. I was yet to have tapped my opal card and yet to be stable and secure in my seat. […]
22. As a result I had blurred vision and an extremely severe headache. I also suffered shooting pain and numbness from my neck down towards my legs.
23. There were two other passengers on the bus who had helped me up from the floor and asked if l was alright. […]
…
25. After I had fallen, the bus driver was still for a long time. He then told me to just 'sit down and don't move'. At no point had he asked me if I was ok.
…”
The insured driver’s evidence
The insured driver, Samisoni Ratawa provided a signed statement dated 10 March 2023 to the Commission.
The insured driver said that he migrated to Australia in 1996. He is able to speak, read and write English fluently. He has been driving buses for the last four years on a full-time basis. He is currently working casually. The insured driver was shown the CCTV footage prior to making his statement. As to the circumstances of the accident, the insured driver said the following:
“…
11. I do not recall instructing the claimant to move down the back of the bus before tapping on. This happened a long time ago, so I cannot recall this conversation.
12. I was just driving normally. The bus took off and she fell. The problem was the seat she was next to was up, if it was down it would of [sic] stopped her fall. She did not balance herself in the seat and that is why she fell.
13. I do not recall if I had to give way to another vehicle as I approached the roundabout. I cannot recall from the images that were shown to me.
14. I do not recall hearing screeching sounds of vehicles [sic] brakes prior to the incident. It happened too long ago.
15. I cannot recall if I was running late early or on time. This was a few years ago.
16. The bus just started before the accident. I did not accelerate harshly, I would have been doing less than 20km/h. I was not doing excessive speed at the time of the accident.
17. I do not recall braking harshly. I don’t recall the incident at all, the lady falling. Only what was shown to me on the CCTV.
18. I do not recall anything about the claimant tapping on to get on the bus. I saw on the footage that she did not tap on.
19. I reviewed the bus footage. I believe I was driving in a normal safe manner. I merely accelerated from the bus stop at a normal pace and the lady fell from the seat. If the seat next to her was down she would not of fell [sic].
…”
The CCTV footage
The insurer relies on CCTV video footage obtained from the insured, Busabout. The footage was provided to the Commission in three parts – Part 1, Part 2 and Part 3. The footage captured scenes of the claimant entering the insured bus, her fall on the bus and the events shortly thereafter.
Both parties have viewed the footage and have provided submissions to the Commission on the evidence.
I have viewed the footage. I have made certain findings of fact arising from my observations of this evidence and my findings are noted later in these reasons.
THE CLAIMANT’S SUBMISSIONS
The claimant’s submissions may be summarised as follows:
(a) The conduct of the insured driver must be evaluated with regard to his position as a professional driver and his obligations to passengers (Anikin v Sierra at 46 [2004] HCA 64; 79 ALJR 452; 211 ALR 621). In this instance, the impaired mobility of the claimant (of which the insured driver was aware) is a relevant consideration.
(b) The claimant’s evidence is that she attempted to “tap on” when she entered the bus but was hurried on by the bus driver. This corresponds with the CCTV footage which shows at the 22:42:13 mark on CH7, the bus driver motions with his left hand to the rear of the bus. The claimant is not given an opportunity to "tap on".
(c) The claimant’s evidence is that she assumed that the bus driver wanted her to “tap on” at the rear of the bus. Her evidence is that she was attempting to retrieve her opal card from her handbag when the bus took off unexpectedly before the bus driver forcefully applied the brakes causing her to fall.
(d) The claimant’s evidence is that the driver accelerated towards the roundabout. Consequently, the driver had to apply the brakes harshly to avoid a collision with a vehicle entering from the right side of the roundabout. The braking of the bus, evident on the CCTV footage, corresponds with the claimant falling from her seat.
(e) There is no evidence to justify the bus driver’s harsh application of the brakes. The driver ought to have been aware of the requirement to give away to a vehicle entering the roundabout from the right, and the requirement to brake. He ought to have modified his speed accordingly to avoid the need to brake harshly. This is particularly so having regard to the claimant’s vulnerable position.
(f) The claimant submits that the bus driver’s conduct here departs from the required standard of care, having regard to the following:
(i)he ought to have known the claimant needed to “tap on”, and ought to have waited until this occurred before driving the bus;
(ii)the claimant has acted reasonably in attempting to "tap on", consistent with her obligations as a passenger;
(iii)the claimant clearly had mobility issues, and
(iv)the driver failed to wait until she was safely seated, holding onto the available handrail, before moving the bus.
(g) The claimant’s case in negligence can be summarised as follows:
(i)the bus was driven prematurely, before the claimant was safely seated;
(ii)the driver drove at an excessive speed in the circumstances, and
(iii)the driver applied the brakes harshly, due to driving the bus at an excessive speed.
(h) There should be no finding of fault (or contributory negligence) on the claimant’s part. The fact that the claimant was not holding onto the available handrail can only be evaluated in the context of her understanding that she was required to tap on, and her impaired mobility. In this context, there is no fault on the part of the claimant.
THE INSURER’S SUBMISSIONS
The insurer’s submissions may be summarised as follows:
(a) The CCTV footage/images of the accident indicates the claimant was seated on a side seat, with shopping bags, crutches and was not holding on. The insured vehicle was proceeding through a roundabout when the claimant fell off her seat. There is no evidence of negligence in the manner in which the bus was driven. The actions of the insured driver were non-contributory to the claimant’s fall, and it is on this basis the insurer asserts the claimant was wholly at fault.
(b) The CCTV footage establishes the insured bus driver was looking in the rear vision mirror and waited until the claimant was seated before taking off. There is no evidence to indicate the insured braked harshly or was negligent in any way.
(c) In Part 1 of the CCTV footage, at the 28 second mark, the insured driver can be seen looking in the rear vision mirror, waiting for the claimant to locate a seat. Once the claimant was seated, the insured driver engaged the indicator and began to move the bus.
(d) The insurer submits the insured driver was not required to wait for the claimant to utilise the handrail, before moving the bus. The insurer submits that the onus was on the claimant to utilise the handrail, to take care for her own safety.
(e) Once seated, the claimant is observed holding shopping bags, crutches and was not holding on. It is the insurer’s position that the insured driver’s duty of care did not extend so far as to ensure the claimant was utilising the available handrail prior to moving the bus, but rather, that she was seated.
(f) The claimant asserts the insured driver accelerated towards the roundabout at an excessive speed. The insurer does not dispute that the insured driver accelerated from the bus stop towards the roundabout, as he was required to do so, but does refute that he travelled at an excessive speed. In his statement, the insured driver stated that he accelerated from the stop at a normal pace. In this regard, Part 1 of the CCTV footage at 53 seconds, shows the bus departs the stop and accelerates slowly.
(g) The insurer refutes the claimant’s assertion that the bus was driven at an excessive speed and contends there is no evidence of negligence in the manner in which the bus was driven. The insurer relies upon the insured driver’s evidence in which he advised he was doing less than 20kmph.
(h) The insured driver braked at the roundabout to give way to oncoming traffic, as was required, however, the insurer disputes that he braked harshly.
(i) The insurer relies on the decision of Saleh v Allianz Australia Insurance Limited [2002] NSWPIC 97, where Member Cassidy found the claimant, who was a passenger in a public bus and was injured when she fell as she moved down the aisle to alight from the bus, was wholly at fault. It was held the cause of the accident was the claimant’s failure to take any care for her own safety. The claimant did not hold on as she stood up and moved through the bus and held a mobile phone in one hand and a bus ticket in the other. There was no evidence the bus driver braked sharply or suddenly and no evidence any other passenger was thrown about the bus.
(j) Each of the above circumstances are very similar to those of the subject accident, noting the claimant failed to take care of her own safety by not holding on to the available handrail despite being aware the bus would be moving from the stationary position and proceeding along the designated route.
(k) The insurer relies upon the case of AJX v Alliance Australia Insurance Ltd as agent for the Nominal Defendant (Claims Assessment) [2020] NSWSIRADRS 51(20 April 2020) in which it was determined the claimant was wholly at fault by failing to hold onto a handrail. Factual parallels can be drawn between the circumstances of the abovementioned case and the subject accident. In that case, Claims Assessor Harris (as he then was) held there was fault on the claimant’s part by failing to maintain hold of the handrail. He found that the claimant should have been aware the bus would move forward again and for the claimant’s safety, she was required to have a firm hold of the handrail. Likewise, the insurer submits the claimant would have been aware that the bus would accelerate and stop as required, and maintains the claimant should have utilised the handrail, thereby taking care for her own safety.
(l) Consequently, there is no evidence to suggest the insured driver breached his duty of care. The insurer therefore submits that the claimant was wholly at fault for the subject accident.
THE RELEVANT LEGISLATION
Part 3 of the MAI Act is concerned with the entitlement to statutory benefits and the circumstances in which they are payable in respect of death or injury resulting from a motor accident.
Section 3.1 of the MAI Act provides that the claimant as an injured person is entitled to payment of statutory benefits regardless of whether he or she was at fault in the motor accident.
On that basis, the claimant received payment of statutory benefits from the insurer for a period of 26 weeks.[1]
[1] The insurer’s decision was made in accordance with the applicable provisions of the MAI Act at the relevant time.
At the end of that period, in reliance on ss 3.11 and 3.28 of the MAI Act, the insurer ceased paying those benefits.
At the relevant time, ss 3.11(1)(a) and 3.28 (1)(a) of the MAI Act provided that an injured person is not entitled to statutory benefits of weekly payments and treatment and care expenses incurred more than 26 weeks[2] after the motor accident if the accident was caused wholly or mostly by the fault of the injured person.
[2] For motor accidents occurring on and after 1 April 2023, the MAI Act now provides that the relevant period is 52 weeks instead of 26 weeks. (See the Motor Accident Injuries Amendment Act 2022.)
Sections 3.11(2) and 3.28 (2) provide that a motor accident was caused mostly by the fault of the claimant if the contributory negligence of the claimant in relation to the motor accident was greater than 61%.
In this case, the insurer’s decision was made pursuant to ss 3.11(1)(a) and 3.28 (1)(a) of the MAI Act to the effect that the claimant was wholly at fault in the motor accident.
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
In s 5 of the Civil Liability Act, negligence is defined as meaning failure to exercise reasonable care and skill.
Pursuant to s 3B(2)(a) of the Civil Liability Act, Divisions 1-4 and 8 of Part 1A (Negligence) apply to motor accidents.
For the purpose of assessing breach of duty of care, s 5B(1) of the Civil Liability Act provides that a person is not negligent in failing to take precautions against a risk of harm unless: (a) the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), (b) the risk was not insignificant, and (c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
Section 5B(2) provides that in determining whether a reasonable person would have taken precautions against a 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, and (d) the social utility of the activity that creates the risk of harm.
LEGAL PRINCIPLES – DRIVER’S DUTY OF CARE
The principles concerning the duty of care a driver owes to other road users, and relevant to breach of duty by reference to s 5B of the Civil Liability Act, were summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows:
"[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one: Cook v Cook [1986] HCA 73; 162 CLR 376; s 5B.
[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40 at 47 - 48; Vairy at [60], [105], [124] and [126]; New South Wales v Fahy [2007] HCA 20; 232 CLR 486 at [57]. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung [2001] HCA 48; 181 ALR 301 at [13]. The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires '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'.
[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path: per Ipp JA (Heydon and Santow JJA agreeing) in Cole at [61], citing Grove v Elphick (1985) 2 MVR 74 and Morris v Luton Corporation [1946] 1 KB 114. Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."
CONSIDERATION
Findings of fact
Having considered the whole of the evidence, including my observations of the CCTV video footage, I make the following findings of fact:
(a) The claimant boarded the insured bus on 6 April 2021 at a bus stop in front of the Macarthur Square shopping centre, Kellicar Road, Campbelltown.
(b) When the claimant was boarding the bus, she used two crutches to assist her entry. She was carrying three bags on her arms.
(c) After the claimant had entered the bus and was facing the bus driver, the bus driver made a gesture with his left hand and thumb pointing over his shoulder. I accept the claimant’s evidence that at the time the bus driver made this gesture, the bus driver said to the claimant “up there”.
(d) The bus driver then saw the claimant proceeding down the bus in his rear vision mirror.[3] The bus driver saw the claimant taking the side seat (in the wheelchair section on the kerb side of the bus) which was the closest seat to the rear door of the bus.[4]
(e) There was a “tap on” or smartcard device next to the claimant’s seat at the rear door entry.[5]
(f) When the claimant was seated, her two crutches were on top of her body and her three bags were still on her arms.[6] The claimant’s evidence is that she then began searching for her smartcard in her handbag. I accept that evidence.
(g) As the claimant was searching in her handbag, with her crutches on top of her body and her three bags under her arms, the bus driver began driving the bus away from the dedicated bus lane into the general traffic lane.[7]
(h) Within about 12 seconds, the bus was being driven towards a roundabout.[8]
(i) As the bus was approaching the roundabout, a vehicle entered the roundabout from the right-hand side.[9]
(j) About one second later, the bus stopped at the roundabout. The claimant fell off her seat. The claimant’s bags and two crutches were scattered around her on the floor of the bus.[10]
[3] CCTV video footage- Part 1- 22:42:19 to 21- CH2 and CH3.
[4] CCTV video footage- Part 1- 22:42:22 to 23- CH2 and CH3.
[5] CCTV video footage- Part 1- 22:42:23 21- CH-3.
[6] CCTV video footage- Part 1- 22:42:24 to 37- CH3.
[7] CCTV video footage- Part 1- 22:42:28 to 38- CH8.
[8]CCTV video footage- Part 1- 22:42:28 to 40- CH8.
[9] CCTV video footage- Part 1- 22:42:41 - CH3.
[10] CCTV video footage- Part 1- 22:42:42 CH3.
Discussion
The insurer says that the evidence shows that prior to her fall, the claimant was seated on the side seat. The bus driver was looking in the rear vision mirror and waited until the claimant was seated before take-off. Once the claimant was seated, the bus driver engaged the indicator and began to move the bus. These submissions are consistent with my factual findings above.
The insurer says that the evidence shows that once seated, the claimant was not holding on to the handrail. That is also consistent with my observations of the CCTV video footage.
It is the insurer’s primary submission that the claimant fell because she was not holding on to the handrail. The insured submits that the bus driver was not required to wait for the claimant to utilise the handrail, before moving the bus. The onus was on the claimant to utilise the handrail, to take care for her own safety. It is the insurer’s position that the insured driver’s duty of care did not extend so far as to ensure the claimant was utilising the available handrail prior to moving the bus, but rather, that she was seated.
I accept that in normal circumstances, a bus driver was not required to wait for a passenger to utilise the available handrail before moving the bus.
Here, however, the bus driver was aware that the claimant entered the bus from a bus stop located in front of a large shopping centre, on crutches and carrying three shopping bags. The bus driver gave her instructions of where to tap her smartcard. The claimant proceeded to the seat next to the rear smartcard tap point. The seat provided no forward protection. The claimant was searching for her smartcard in her handbag when the bus driver saw her in his rear vision mirror, with her two crutches on top of her and with three bags on her arms. In my view, the bus driver ought to have been aware that any movement of the bus while the claimant was in such a compromised position, would have presented a real and significant risk of harm to the claimant.
I consider that in these circumstances, a reasonable person in the bus driver’s position would wait for a passenger with impaired mobility and laden with three shopping bags, to put down her bags and crutches, to tap her smartcard and have an opportunity thereafter to hold on to a handrail before moving the bus.
In the circumstances of this case, and for the purposes of ss 3.11 and 3.28 of the MAI Act, I find that the claimant was not wholly or mostly at fault for the motor accident.
COSTS
This is a miscellaneous claims assessment matter. Pursuant to cl 3(1) of Part 1, Schedule 1 of the Regulation, the maximum costs for legal services provided to a claimant in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units. That currently equates to $1,800 plus GST.
In this matter, there were two disputes submitted for assessment under Schedule 2, cls 3 (d) and (e) of the MAI Act.
Taking into account the issues in dispute, the issue of a Direction for Production, participation in several teleconferences, the extent of the evidence and submissions, including CCTV footage, I allow the claimant’s reasonable and necessary costs in the maximum regulated amount for each dispute. On that basis, I assess the claimant’s legal costs in the amount of $3,960 inclusive of GST.
CONCLUSION
For the purposes of s 3.11 of the MAI Act, the motor accident was not caused wholly or mostly by the fault of the claimant.
For the purposes of s 3.28 of the MAI Act, the motor accident was not caused wholly or mostly by the fault of the claimant.
The amount of the claimant’s legal costs assessed in accordance with the Regulation is $3,960 inclusive of GST.
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