Dutton v AAI Limited t/as GIO
[2022] NSWPIC 759
•18 November 2022
CERTIFICATE OF DETERMINATION OF MEMBER CITATION: Dutton v AAI Limited t/as GIO [2022] NSWPIC 759 CLAIMANT: Rodney Dutton INSURER: AAI Limited t/as GIO MEMBER: Bridie Nolan DATE OF DECISION: 18 November 2022 CATCHWORDS: MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant on mountain bike riding on footpath and crossing road at pedestrian island when struck by four-wheel-drive vehicle; whether for the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person; whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor vehicle accident in accordance with section 3.38; claimant on disability support pension; no requirement to make assessment regarding section 3.11; Held – accident caused by the insured driver’s failure to keep a proper lookout when changing lanes and claimant’s inattention to vehicles on roadway; claimant failed to alight bicycle to cross the roadway; claimant’s contributory negligence at 55%; claimant not wholly and mostly at fault; insurer entitled to reduce the statutory benefits payable in respect of the motor accident by 55%.
DETERMINATIONS MADE: Certificate
Issued under s 7.36(4) of the Motor Accident Injuries Act 2017
The findings of the assessment of this dispute are as follows:
1. For the purposes of s 3.28 the claimant is not mostly at fault.
2. For the purposes of s 3.38 the insurer is entitled to reduce the statutory benefits of payable in respect of the motor accident by 55%.
3. Effective Date: This determination takes effect on 12 January 2021.
4. 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
This determination relates to an application for a miscellaneous claims assessment dispute arising from a Certificate of Determination issued in accordance with cl 7.29 of the Motor Accident Guidelines (Guidelines) wherein the insurer found that the claimant was mostly at fault for the subject motor vehicle accident.
The questions for me to determine are framed by Schedule 3, cl 3(e) and (g) of the Motor Accident Injuries Act 2017 (NSW) (the Act), which require me to determine whether for the purposes of s 3.28 of the Act, the motor accident was caused mostly by the fault of the injured person. It follows that if I am not so satisfied, I must determine whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor vehicle accident in accordance with s 3.38 of the Act for contributory negligence. As the claimant is on a disability support pension, I do not consider I need to engage on this miscellaneous claim assessment with the questions concomitant to s 3.11 of the Act.
Background
1.Rodney Dutton (the claimant) was involved in a motor vehicle accident on 12 January 2021.
2.He lodged an Application for Personal Injury Benefits on 3 February 2021. In his claim form, he identified the motor accident occurring when he was cycling on the footpath on the right side of North Street, Albury in the State of New South Wales. He stopped at the front of 380 North Street at a driveway, with the intention to cross the road at a designated break in it, clearly designed for that purpose. He looked over the parked cars, saw no car coming and he went down the driveway to cross over the median strip when he was then struck by a four-wheel drive. He says he must have landed five to ten metres down the road.
3.In a letter dated 17 June 2021, the insurer denied liability for statutory benefits after 26 weeks from the date of the accident, on the basis the claimant was wholly at fault for the motor vehicle accident.
4.The insurer’s original decision was made pursuant to Schedule 2(3)(d) - whether for the purposes of s 3.11, the motor accident concerned was caused by the fault of another person, and Schedule 2(3)(e) - whether for the purposes of s 3.28 the motor accident was caused mostly by the fault of the injured person. The insurer found that the claimant was wholly at fault for the accident because it said the claimant failed to keep a proper lookout for oncoming traffic resulting in the motor vehicle accident.
5.On 18 June 2021, the claimant’s solicitors requested an internal review of that liability decision.
6.On internal review the insurer found that both the insured driver and the claimant contributed to the accident. It then considered apportionment of liability in order to determine the relative culpability of the parties. In considering the material before the insurer, it concluded that a just and equitable assessment of the claimant’s responsibility for the accident was no less than 85%. Thereby, the claimant was considered to be wholly at fault for the accident and his statutory benefits ceased at six months following the accident.
7.He applies for the determination of a miscellaneous claims dispute assessment pursuant to that determination.
Material before me
8.In his statement the claimant says relevantly as follows:
(a)The claimant was riding a mountain bike, which he had owned for approximately three to six months before the accident. He said that he customarily rode his bike three to four times a day as a way to engage in recreational activity and kept himself out of the house.
(b)On 12 January 2021, he left the house at approximately 10:30 – 10:40am. He was wearing a helmet. The weather was fine and dry. He intended on riding his bike down to Noreuil Park.
(c)He was travelling on North Street and reached a driveway in the front of 380 North Street, in order to cross the road onto the break in the median strip, and then to further cross onto the other side of the road.
(d)He says that prior to crossing the road, he stood on the pedals of the bike in order to be able to look over the three to four vehicles that were parked on the side of the road to ensure that it was clear and safe for him to cross.
(e)He says that the sun was not blocking his vision or creating a glare. There were also large trees in the area that would have been creating shade.
(f)He did not see any oncoming cars and he proceeded to cross.
(g)Just as his bike left the driveway, the insurer collided into him, and he was thrown several metres.
(h)He was still in the left lane as the accident occurred.
(i)He says that it was after the collision that the insured driver applied the brakes, as he heard a skid noise after the collision occurred, not before.
(j)The insured driver got out of his vehicle and checked his car for damage before coming to check on the claimant.
(k)He says there was an off-duty ambulance officer nearby who saw him on the ground, and he ran over and saw the claimant and told him he would get some assistance.
(l)He says his phone was damaged in the accident and there was no way of calling triple zero.
9.In the ambulance report and hospital records there are various records that the claimant was struck on the right side by a four-wheel drive/ute while cycling at an estimated speed of variously 50 or 60 kmph.
10.The insurer’s investigator identified no witnesses during the course of investigations. He found no CCTV footage of the accident.
11.The investigator attended the scene of the accident and noted the following:
(a)North Street travels in a general east/west direction. It is a sealed bitumen road and in good condition.
(b)It has two lanes in either direction with opposing traffic separated by a raised concrete median.
(c)There are marked parking bays on either side of the roadway.
(d)The speed limit for the roadway is 60 kmph.
(e)The topography of the road is straight and level.
12.The insurer’s investigator took a statement from the claimant which sets out largely what I have set out above. Relevantly, it records that when the claimant approached the driveway at 380 North Street, he was still up on the pedals looking west along North Street for any vehicles. He did not see any vehicles and slowly rode off the driveway onto North Street. As he came onto the roadway, he took another look to his right and saw the insured vehicle one to two metres to his right and heading straight for him. He estimates the vehicle was travelling at approximately 60 kmph. He did hear the sound of skidding but was not sure if he heard skidding and then the impact, or the impact and then heard the sound of skidding. He was impacted by the motor vehicle on the right-hand side and believes that he was thrown about ten metres east.
13.The insurer’s investigator’s report sets out the version of the insured which was relevantly as follows:
(a)He estimates the incident occurred 50 metres east of the intersection of North and Young Streets.
(b)There were vehicles parked along the northern side of North Street which was part of the reason why he could not see the cyclist who had been hidden by the parked vehicles.
(c)He was the driver of his car and was wearing a seatbelt at the time.
(d)He had collided with a cyclist which had come out onto the roadway from the northern footpath and from in between parked cars.
(e)The cyclist was wearing light coloured clothing and shorts and he recalls seeing a graze on his leg. He does not recall any lights flashing.
(f)He was travelling east along North Street and turning right onto Young Street in the right-hand lane of two eastbound lanes at the time.
(g)He came to the corner; he slowly increased his speed to 60 kmph with the intention to turn left into Mate Street. He says he would have been ready to veer across to the left-hand lane.
(h)He was picking up speed and noticed a flash of movement out of the corner of his eye. He noticed the cyclist move out from between two parked cars on his left-hand side.
(i)He believes he would have braked before the impact.
(j)He believes that it was a case of the cyclist running into the front of his car, instead of him running into the cyclist.
(k)He was only a couple of metres from the cyclist when he first noticed him and guessed that he would have been going at about 50 kmph at the time of impact.
(l)He got out and went to see how the cyclist was. He recalls the cyclist had rolled onto the bonnet a bit then rolled back down the roadway.
14.The investigator’s report, as does much of the material before me, contains photographs of the scene where the accident occurred. These photos variously depict the driveway where the claimant sought to cross the road, the break in the median strip where the claimant intended to cross the road, view that the claimant would have likely had looking directly across the road where he intended to cross which shows a gap in the median strip, plainly intended for pedestrians to cross, and the view of the road looking in both easterly and westerly directions. I have had detailed regard to these various photographs.
SUBMISSIONS
Claimant’s submissions
15.The claimant disputes the insurer’s version of events that he was not yet merged into the left lane at the time of which he collided with the claimant. It relies on the fact that only eight metres in front of where the claimant and he collided, is the first of the left-hand arrows indicating the turn into Mate Street. He relies upon the fact that the left turn was to be taken in 71 metres and that it is entirely plausible that the insured driver had already began to merge into the left lane at the time of the collision.
16.It relies upon the insured driver’s statement that he was just picking up speed and noticed a flash of movement out of the corner of his eye, when he then noticed the cyclist move out in front of the two parked cars to his left-hand side, and he believes that he would have braked before impact.
17.The claimant submits that had the entirety of the insured vehicle been in the right-hand lane at the time of the accident, the cyclist would have not been only just coming out from in between the parked vehicles, but rather, would already have been in the left-hand lane.
18.In fact, he submits, in order for the collision to occur with a vehicle that was in the right-hand lane, the claimant’s bicycle would have to have been at least partially in the right-hand lane.
19.He submits therefore that the insured driver failed to keep a proper lookout for pedestrians and cyclists when changing lanes and he recklessly “veered” into the left-hand lane which, prior to this occurring was clear and safe for the claimant to enter into.
20.He submits not only did the insured driver change lanes in an unsafe manner but was generally driving in an unsafe manner. In particular, he relies on the insured driver’s assertion that immediately before the collision he was just picking up speed. I interpolate, it is curious that a driver who is intending to change lanes to make a left-hand turn was picking up speed. Indeed, to my mind the obverse ought to have been the case and he should have been slowing down. On this point, the claimant submits that a reasonable and safe driver would be required to reduce his speed, not to gain speed nor to safely change lanes and safely make the left-hand turn.
21.He also relies upon the fact that there is a sign for the left-hand turn onto Mate Street from North Street which reads “turn left at any time with care”.
22.The insurer notes that the insured driver reported that he described himself as very familiar with that section of North Street. Therefore, the claimant submits that it must be assumed that the insured driver knew that he was approaching an intersection and would be required to almost completely reduce his speed to ensure traffic is clear, and in order for him to turn onto Mate Street. Nevertheless, he increased his speed.
23.He also refers to the fact that the insured driver says that “he believed he would have braked before the impact.” However, the claimant says that the brakes were applied after the collision as he heard the skid noise then. I note that there is some conflict in the evidence with respect to this fact.
24.The claimant submits that these matters establish that the insured driver was driving carelessly by increasing his speed as he approached the intersection, which would require him to give way, and therefore, it is certainly likely that he was similarly careless when he veered into the left-hand lane without ensuring it was safe for him to do so.
25.He submits that the insured driver’s lack of attention on the road means that he did not apply the brakes prior to the impact because he was clearly not paying attention to the road or his surroundings.
26.Had the insured driver slowed down and made sure it was safe to change lanes, the accident could have been avoided.
27.The claimant submits that he was not wholly or mostly at fault for the subject accident. In fact, he submits the subject accident was wholly caused by the insured driver as he failed to uphold his duties as a driver in accordance with legislation.
Insurer’s submissions
28.The insurer submits that there are key inconsistencies in the claimant’s evidence, and I should treat it with caution.
29.It refers to the claimant’s submissions and says that the facts relied upon by him are inconsistent with the insured driver’s assertion that he was preparing to, but had not yet merged into the left-hand lane. It notes that 71 metres is a considerable distance and it submitted that the distance would have allowed the insured driver ample opportunity to merge into the left lane in preparation to making a left hand turn into Mate Street, and that this is consistent with several left-hand turn arrows located between 380 Mate Street, where the accident occurred, and the remainder of North Street, leading to the left-hand turn.
30.The insured driver notes in his statement that he first saw the claimant when he was a couple of metres away, when the claimant moved out from in between two parked cars. The insured driver’s assertion that he was still in the right lane when the collision occurred is entirely consistent with the claimant having exited from between parked cars, and his bicycle having travelled across the left lane when the collision between the front of the claimant’s bicycle and the front of the driver’s side of the insured vehicle occurred. This is consistent with the damage to both the claimant’s bicycle and the insured’s vehicle.
31.It submits that the insured driver was travelling well under the speed limit of 60 kmph at the time of the collision. His evidence is that he was travelling at 50 kmph and had just started to gain speed when the collision occurred. It submits that he was not travelling at an unsafe speed in the circumstances.
32.It also submits that the insured driver applied his brakes at the time of the accident and urges me to reject the claimant’s version on the basis that he was not in a position to comment on when precisely the insured driver applied his brakes. It relies on the fact that the claimant was unable to confirm to the insurer’s investigator as to whether the skidding was heard prior or subsequent to the impact. It relies on the fact that NSW police determined that the claimant was responsible for the accident.
33.It says that the claimant had a duty to take reasonable steps to ensure that he avoided any hazards on the roadway such as oncoming vehicles. It relies on the claimant’s evidence that prior to leaving the driveway and proceeding to the roadway, he stood up on the pedals of his bicycle to see over the parked cars and did not see any oncoming vehicles. He then proceeded to ride his bicycle onto North Street and was struck by the insured vehicle.
34.It submits that in these circumstances there are only three possible conclusions:
(a)The claimant did stand up on his pedals and saw the roadway over the top of the parked cars, must have seen the oncoming insured vehicle and therefore rode directly into the path of the insured vehicle;
(b)The claimant did stand up on his pedals but could not see the roadway over the top of the parked cars and therefore did not keep a proper lookout for the vehicles on the roadway, and proceeded unsafely into the roadway from between two parked cars and directly into the path of the insured vehicle;
(c)The claimant did not stand up on his pedals and therefore did not keep a proper lookout for vehicles on the roadway and proceeded unsafely into the roadway from the two parked cars and directly into the path of the insured vehicle.
35.It submits that I would be satisfied that the claimant was mostly at fault for the accident for the following reasons:
(a) He failed to alight from his bicycle before crossing the road;
(b) He failed to stop his bike and check for oncoming traffic before crossing the road, particularly in circumstances where he entered the roadway from between two parked cars;
(c) He failed to keep a proper lookout for oncoming vehicles, both prior to, and as he was crossing the road;
(d) He failed to perceive and give way to the insured vehicle before he proceeded to cross North Street;
(e) He road his bicycle into the path of the insured vehicle;
(f) He failed to take evasive action to avoid the collision;
(g) He failed to control his bicycle so as to avoid injury;
(h) He failed to take any, or any reasonable care for his own safety;
(i) He failed to take any, or any reasonable care to avoid injury;
36.Notably absent from these submissions is any reference to the asserted relative culpability of the insured driver, such that it is not clear how the insurer contends I should assess the relative culpability.
Documents considered
37.I have considered the documents provided in the application and the reply and any further information provided by the parties.
REASONS
Legislative framework
38. Part 3 of the Act deals with statutory benefits. The entitlement to statutory benefits is provided for in s 3.1(1) of the Act. It provides for a scheme wherein if the injury to a person results from a motor accident in the State, statutory benefits are payable in respect of the injury as provided for by Part 3. Statutory benefits are payable except as otherwise provided by the Part whether the motor accident was caused by the fault of the owner or driver of a motor vehicle, in the use or operation of the vehicle, or even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.
39. For the first 26 weeks following an accident, statutory benefits for treatment and care expenses are payable without regard to the fault of any person involved in the accident: see s 3.24 of the Act. This is consistent with the legislative intent of the Act, expressly provided for in the Act’s Objects provision, s 1.3(2)(a), to encourage early and appropriate treatment and care to achieve optimum recovery of persons from injuries sustained in motor accidents, and to maximise their return to work or other activities.
40. Section 3.28(1) of the Act introduces a statutory prohibition on the continuing payment of weekly statutory benefits to injured persons where the motor accident was caused “wholly or mostly by the fault of the person”. Subsection (2) provides that a motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in s 3.38 of the Act) was greater than 61%. In furtherance of the plain legislative intention, sub-s 3.28 (3) provides that despite the proviso in sub-s (1), statutory benefits under this Division incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Guidelines authorise their payment. The payment for those expenses may be so authorised if; the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses, or in other appropriate circumstances.
41. The parties are in dispute as to the claimant’s ongoing entitlement to statutory benefits for treatment and care following the insurer’s determination on an internal review, that the claimant was mostly at fault by virtue of a finding that he was 85% contributorily negligent for the accident. This dispute is, therefore, a miscellaneous claims matter as defined by Schedule 2 (3) (d), (e) and (g). This dispute, as defined in s 7.40 of the Act, has been referred to the Dispute Resolution Service by the claimant and allocated to me to determine under s 7.42, as read together with s 7.36, of the Act.
42. The relevant inquiry posed by the expression “fault” is one of legal causation or responsibility for the harm caused. A question arises as to through what legal prism is that responsibility to be assessed.
43. Except for the express inclusion of s 5R, to which I will come, the Civil Liability Act 2002 (NSW) (the CLA) would not appear to apply to the assessment of causation, per se. This is because a claim for statutory benefits is not “a claim for damages for harm resulting from negligence” to which Part 1A of the CLA, in which s 5D is housed, applies: as s 3.1 of the Act makes plain, and statutory benefits are payable in respect of an injury regardless of fault until 26 weeks. These payments must continue beyond the 26-week period unless the person to whom they are to be paid was wholly or mostly at fault.
44. As s 3.28(2) provides, a motor accident is caused mostly by the fault of a person if their contributory negligence in relation to the motor accident (as referred to in s 3.38 of the Act) was greater than 61%.
45. Section 3.38 (1) of the Act provides:
(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident [my emphasis].
46. It does not expressly apply to statutory benefits for treatment expenses.
47. While s 3.38(1) of the Act introduces the operation and effect of the common law on contributory negligence, and enacted law, being both s 5R of the CLA and s 9 of the Law Reform (Miscellaneous Provisions) Act 1965 (NSW), to the determination of loss of earnings, it is not directed to the determination of statutory benefits for treatment or expense. Therefore, caution should be applied to the application of cases decided pursuant to these statutory schemes. The same issue arises with respect to s 3.38(3)(c), which pertains to the reduction of weekly payments. It is not expressly clear how the reference contributory negligence “as referred to in s 3.38” of the Act is intended to apply: see s 3.28(2).
48. At common law and under the CLA, contributory negligence is a defence. Under the Act, in this statutory context, it is by virtue of the operation of s 3.28 of the Act, a proviso or qualification on ongoing payment of statutory benefits to be objectively determined. In Vines v Djordjevitch (1955) 91 CLR 512 at 519-520, the High Court provided that where a statute provides “an … exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter …”. As it is the insurer who wishes to rely upon the existence of the condition of exclusion under s 3.28(1)(a) of the Act, this authority would appear to render, incumbent upon it, the legal burden of persuading or proving that proviso is satisfied. See also Chugg v Pacific Dunlop Ltd [1990] HCA 41; 170 CLR 249 at 257. Cross on Evidence describes the legal burden as “the obligation of a party to meet the requirement of a rule of law that a fact in issue must be proved (or disproved) by a preponderance of the evidence”: JD Heydon, Cross on Evidence (Lexis Nexis Butterworths, 9th ed, 2013) [7010].
49. In my view, the condition of disentitlement, viz. whether the injured person was “mostly at fault”, in the statutory context of s 3.28 of the Act and whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with s 3.38 of the Act, requires a consideration of the attribution of responsibility or causation of the harm to determine whether it exceeds the statutory threshold of 61%. It, therefore, requires me to consider whether the claimant failed to take reasonable care for his safety and to what extent that failure contributed to the harm she suffered. The standard of care required of the claimant in this instance is that of a reasonable person in his position, to be determined based on what she knew or ought to have known at the time — a purely objective “reasonable person” test. The extent to which the fault is to be determined would appear to be, by virtue of the parenthetical inclusion of s 3.38 of the Act to my determination, such percentage I determine is just and equitable in the circumstances of the case. That is, in accordance with the mandate contained in s 3.38(3)(c) of the Act.
50. The clear intent of the provision is that a blameworthy claimant should not be able to avoid responsibility for the consequences to which he or she has carelessly contributed. Rather, when considering the question of apportionment of responsibility, I am to consider the entire conduct of both parties in relation to the circumstances of the accident and make a comparison between their respective departures from their obligations. Any apportionment of fault must be “just and equitable”, and this is determined by having regard to the relative blameworthiness of the parties and the causal potency of their acts: see e.g., Stapley v Gypsum Mines Ltd [1953] AC 663 (HL) (Stapley), 682; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 (Podrebersek), 494.
51. The relevant question posed by Schedule 2(3)(e) of the Act is whether, for the purposes of s 3.28 of the Act, the motor accident was caused mostly by the fault of the injured person. “Mostly at fault” requires me to determine whether the claimant's responsibility for the occurrence of the harm was more than 61%. In this case, given the insurer’s concession as to fault, that requires the task of apportionment based on what I consider just and equitable in the circumstances. I am required to carry out a comparative analysis of the culpability of both the claimant and the insured driver: see Podrebersek. This involves an analysis of the degree of departure from the standard of care by a reasonable person: Pennington v Norris (1956) 96 CLR 10 at [16]) and in addition, an analysis of the relative importance of the acts of the parties causing the damage: Stapley at [682]. It is an ostensibly impressionistic and qualitative assessment of the causal potency: a finding of proportion, of balance and relative emphasis, and of weighing different considerations. It involves an individual choice or discretion, as to which there may well be differences of opinions by different minds: Podrebersek at 494.
52.Having considered the evidence, I am persuaded that the claimant was relatively more culpable for the accident occurring than the insured driver. My reasoning is as follows.
53.The insured driver was driving at a speed in accordance with the speed limit or just below. The fact that he was increasing his speed to turn a corner to my mind constitutes a departure from the conduct of a reasonable person in his position. The fact that he was speeding up diminished his reaction time.
54.I am also satisfied that the insured driver was in the process of changing lanes at the time of the collision and should have been more alert to any activity that might be occurring in that left lane into which he was travelling, at least 20 meters before manoeuvring this vehicle to veer left. As such, I am satisfied that he failed to keep the proper look out, and this failure significantly contributed to the harm the claimant suffered.
55.I am also satisfied that the insured driver failed to take reasonable measures to avoid the collision in that he failed to swerve to the right, despite there being room to do so, to avoid the claimant. According to the claimant he had at the very least one to two metres of reaction time to do so. I am satisfied that given the claimant’s inattention, to which I will come, that indeed the insured driver probably had more time to apprehend the claimant. The fact that he did not is the basis upon which I am satisfied, it is open to me to infer, that he was not keeping a proper look out at all. The only part of the claimant’s bicycle which had been damaged is the front wheel. At the speed at which the insured was driving, the insured driver would have been able to, with the slightest turn of the wheel, avoid the accident.
56.I agree with the basal proposition put by the claimant in his submissions that had the driver been driving in a manner which was more attentive, had kept a proper look out, reduced his speed in such a manner as a reasonable person in his position would be expected to do when changing lanes, and taken evasive action, the accident may very well have been avoided. However, this is not the end of the inquiry.
57.The fact that the claimant was on the roadway at the time of the collision suggests that he too failed to keep a proper look out. Given the relatively unobstructed view that the claimant had on the road, had he kept a proper look out, as he as required to do, he had ample time to see the insured vehicle approaching. His failure to alight his bicycle and walk across the road, make a proper assessment of the safety to cross the road, as would be prudent in the circumstances, would also have avoided the accident completely. I consider on a relative assessment therefore the apportionment of culpability for the occurrence of the accident for the claimant is slightly the greater.
58.Considering the positions of both the claimant and the insured, weighing up all the evidence and considering their relatively equal culpabilities, but attributing a slightly higher burden to the claimant, I consider that the appropriate apportionment of liability is 55% to the claimant.
59.Accordingly, the claimant is not wholly or mostly at fault and the insurer is entitled to reduce the payment of his statutory benefits by 55%.
Costs and disbursements
60.There is a dispute between the claimant and the insurer in respect to recovery of legal costs under s 8.8 of the Act.
61.In response to the claimant's submission that it seeks the maximum regulated costs for the application, the insurer makes submissions with respect to the requirement that costs be incurred, and that those costs be reasonable and necessary in connection with the dispute. It submits that these costs cannot be determined until the claimant has provided an itemised account of all legal work done in connection with the dispute as well as any evidence that any claim for disbursements have actually been incurred.
62.It refers to Schedule 1, Clause 3(1) of the Motor Accidents (Injuries) Regulation 2017 (NSW) (Regulations), which provides that maximum costs for legal services provided to a claimant or to an insurer in connection with the assessment under Division 7.6 of the Act involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units (to a maximum of 60 monetary units per claim).
63.It submits that the above does not confer an automatic entitlement for a claimant to incur the maximum of the amount prescribed for a miscellaneous dispute, nor does it confer a legal right of recovery by a lawyer from the insurer upon a party/party basis.
64.It submits that it is not clear whether the claimant entered a legal contract for legal services with its solicitors in connection with the subject miscellaneous dispute, and if so, the terms under which legal costs are to be charged to the claimant.
65.It relies upon the decision of Wright J in AAI Limited trading as GIO v Moon [2020] NSWSC 714 (Moon) at [144], wherein his Honour refers to the proper construction of the expression of "incurred" in s 8.10(1) and of s 8.3 of the Act.
66.It submits accordingly that the disclosure requirements under the Legal Professional Uniform Law Act 2014 (LPUL) applies to all legal services for regulated and unregulated costs provided in connection with a miscellaneous dispute and the member must be satisfied that such requirements have been met:
(a)it submits that s 8.10(1) of the Act entitles the claimant to recover from the insurer "reasonable and necessary" legal costs "incurred" by the claimant in connection with a miscellaneous dispute. In other words, it does not entitle the claimant to recover costs on an indemnity basis.
(b)it submits that the claimant is only entitled by virtue of the provisions in s 8.3 and 8.10 of the Act to recover "reasonable and necessary" legal costs from the insurer in circumstances where those costs have been incurred in accordance with the LPUL and other principles discussed in Moon, the legal basis for "ordered costs" under s 63 of the LPUL and legal costs where reasonable and necessary, having regard to the services provided in connection with a miscellaneous dispute.
(c)It says that once the above matters have been satisfied, that I must assess whether legal costs incurred by the claimant are reasonable and necessary, and that such assessment be undertaken in circumstances where the claimant's solicitors have provided an itemised bill of professional costs rendered, and evidence of any claim for disbursements that have actually been incurred.
67.In my view, it would be a curious circumstance that the claimant has not properly incurred legal costs payable to his Australian legal practitioner and that I will need evidence of the instruments to satisfy me that costs have been incurred. As I understand the statutory matrix, to which the insurer has referred, it is incumbent upon me to exercise my discretion which is predicated upon an assessment based on my experience in matters such as these and costs matters more generally.
68.Therefore, I see no basis to depart from an award of costs in accordance with the Regulations. Given the standard of the claimant’s statement and submissions in this matter, I am satisfied that the claimant has incurred costs which are reasonable and necessary.
69.Using my years of considerable experience appearing as counsel in many matters involving the question of costs, e.g. security for costs applications and judicial review of the assessment of costs, I consider that the work that would have been reasonable and necessary to complete the submissions would be no less than 8 hours, which I have calculated as follows:
(a) 1 hour preparing the application for miscellaneous claims assessment;
(b) 1 hour in conference with the claimant,
(c) 1 hour of drafting a draft statement,
(d) 1 hour to review the statement with the claimant and settle it,
(e) 3 hours of preparation of the submissions, and
(f) 1 hour in preparation for and appearance at the preliminary teleconference before me.
70. I would calculate that those costs would be incurred at a standard rate for such legal services in the amount of $311 per hour ex GST.
71. In the circumstances the amount of work that appears to me to have been undertaken suggest that the amount of costs reasonably and necessarily incurred on a solicitor/client basis amount to $2,488 ex GST, which I would consider it to be very close to 100% recoverable on an assessment.
72.Accordingly, I am satisfied that the claimant is entitled to the payment of legal costs, and I allow costs at the maximum regulated amount of $1,980 inclusive of GST.
Conclusion
My determination of the Miscellaneous Claim is as follows:
73.For the purposes of s 3.28 the claimant is not mostly at fault.
74.For the purposes of s 3.38 the insurer is entitled to reduce the statutory benefits of payable in respect of the motor accident by 55%.
75.Effective Date: This determination takes effect on 12 January 2021.
76.Legal Costs: The amount of the claimant’s costs assessed in accordance with the Regulations is $1,980 inclusive of GST.
Legislation
77. In making my decision, I have considered the following legislation and guidelines:
· Motor Accident Injuries Act 2017 (NSW) (the Act)
· Motor Accident Injuries Regulation 2017 (NSW) (Regulations)
· Civil Liability Act 2002 (NSW) (the CLA)
· Law Reform (Miscellaneous Provisions) Act 1965 (NSW)
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