Gillespie v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gillespie v AAI Limited t/as GIO [2022] NSWPIC 383
CLAIMANT:	Peter Gillespie
INSURER:	AAI Limited t/as GIO
MEMBER:	Elizabeth Medland
DATE OF DECISION:	15 July 2022
CATCHWORDS:	MOTOR ACCIDENTS - Whether the insurer is entitled to reduce weekly payments of statutory benefits on account of contributory negligence pursuant to section 3.38 of the Motor Accident Injuries Act2017 (MAI Act); claimant riding an e-bicycle in Byron Bay to the left of the insured vehicle who turned left into the path of the claimant; whether reasonable for the claimant to travel to the left of traffic; whether the insured gave sufficient notice of intention; consideration of expert traffic engineer evidence; claim for exceptional costs pursuant to section 8.10(4) of the MAI Act; Held – no contributory negligence; claimant travelling reasonably and lawfully to the left of traffic; insured failed to give any or any reasonable intention to turn left; regulated legal costs awarded.
DETERMINATIONS MADE:	1. For the purposes of s 3.38 the insurer is not entitled to reduce the statutory benefits of payable in respect of the motor accident. 2. Effective Date: This determination takes effect on 31 December 2021. 3. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $7,524.20 plus GST. 4. A brief statement of my reasons for this determination are attached to this certificate.

Reasons for Decision

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

Background

This determination relates to a dispute between the parties as to whether the insurer is entitled to reduce weekly payments of statutory benefits after 26 weeks on the basis of contributory negligence, pursuant to s 3.38 of the Motor Accident Injuries Act 2017 (MAI Act).

Mr Peter Gillespie (the claimant) is a 51-year-old male who suffered injury as a result of a motor vehicle accident that occurred on 1 July 2021 in Byron Bay, NSW.
The claimant was riding an electric bicycle along Jonson Street to the left of the insured vehicle when the insured vehicle made a left hand turn into Kingsley street into the path of the claimant.
A claim for statutory benefits was lodged with the insurer that was accepted.
In a notice dated 19 October 2021 the insurer accepted liability for statutory benefits after 26 weeks, however, indicated that payments of weekly statutory benefits would be reduced by 40% on account of the insurer’s assessment of contributory negligence.
The claimant, through his lawyers, lodged an application for internal review with the insurer on 20 October 2021.
On 5 November 2021 the insurer issued an internal review decision that set aside the original assessment of 40% contributory negligence and determined contributory negligence to be 15%.
The claimant’s lawyer subsequently lodged an application with the Personal Injury Commission (the Commission). The dispute has been allocated to me for determination.
The insurer alleges as part of the dispute before me that contributory negligence ought to be assessed between 25-30%. The claimant submits that there should be a finding of zero contributory negligence.
I have held two teleconferences with the parties. Both parties indicated that it was appropriate that I assess this matter on the papers. I am satisfied that I have sufficient information upon which to make an assessment on the papers. No assessment conference has taken place.
Time was given for the claimant to obtain an expert report from a traffic engineer. Both parties have lodged updated submissions.

Documents considered

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

Legislative framework

Succinctly, payments of weekly statutory benefits after 26 weeks are to be reduced by the percentage of contributory negligence pursuant to s 3.38 of the MAI Act.
Section 3.38 provides as follows:
“(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.
(2)     A finding of contributory negligence must be made in the following cases—
(a) where the injured person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the injured person satisfies the insurer or the Commission that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident,
(b) where—
(i) the injured person (not being a minor) was, at the time of the motor accident, a voluntary passenger in or on a motor vehicle, and
(ii) the driver’s ability to drive the motor vehicle was impaired as a consequence of the consumption of alcohol or any other drug and the injured person was aware, or ought to have been aware, of the impairment,
unless, in the circumstances of the case, the injured person could not reasonably be expected to have declined to become a passenger in or on the motor vehicle,
(c) where the injured person (not being a minor) was, at the time of the motor accident, not wearing a seat belt when required by law to do so,
(d) where the injured person was, at the time of the motor accident, not wearing a protective helmet when required by law to do so,
(e) where the defence of volenti non fit injuria would have been available, but for section 4.18 (Defence of voluntary assumption of risk), in proceedings for an award of damages in respect of the motor accident,
(f) in the case of any other conduct of the injured person that is prescribed by the regulations for the purposes of this section.
(3)     The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence—
(a) if subsection (4) requires the statutory benefits be reduced by a fixed percentage—by that fixed percentage, or
(b) by such percentage as the parties agree, or
(c) in any other case—by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case.
If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission.
(4)     The regulations may fix the percentage by which weekly payments of statutory benefits are to be reduced on account of contributory negligence in respect of specified conduct that constitutes contributory negligence of an injured person.
(5)     This section does not exclude any other ground on which a finding of contributory negligence may be made.
(6)     For the purposes of this section, an alcohol or other drug-related offence is—
(a) an offence of driving a motor vehicle with a particular concentration of alcohol or other drug in the person’s breath or blood, or
(b) an offence of driving a motor vehicle under the influence of alcohol or other drug, or
(c) an offence of causing death or injury while driving a motor vehicle under the influence of alcohol or other drug, or
(d) an offence, in connection with the driving of a motor vehicle, of—
(i) refusing or failing to submit to breath analysis, to undergo a breath test, to submit to an assessment of sobriety or to provide samples of the person’s blood and urine, or
(ii) wilfully altering the concentration of alcohol or other drug in the person’s breath or blood, or
(iii)      preventing a sample of the person’s blood from being taken for analysis.”
Schedule 2 cl 3(g) of the MAI Act declares a dispute as to whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with s 3.38 as a miscellaneous claims assessment matter.
Section 7.42 allows a party to refer a miscellaneous claims assessment matter dispute to the Commission for assessment under Division 7.6 of the MAI Act.

Circumstances of accident and summary of evidence

In the Application for Personal Injury Benefits (claim form) dated 6 July 2021 the claimant described the accident as follows:
“Whilst cycling at approximately 22 kilometres an hour along Johnson street travelling adjacent to a Hyundai van doing which was driving at a similar speed, the Hyundai van suddenly turned left without indicating colliding with me knocking me off the pushbike onto the road surface. I landed on my right side causing significant damage to my hip, thigh, fracturing 2 ribs and causing internal damage to my right shoulder which has been diagnosed by Ultrasound as a full thickness tear to the SST.
Driver admitted fault and to not indicating.” [sic]
In a NSW police report dated 28 July 2021 it is apparent that the police did not determine either party to be at fault. The Crash Summary Details are set out as follows:
“On Thursday the 1^st July, 2021 at about 5.45pm the Victim was riding his pushbike south along Jonson street, Byron Bay, adjacent to Veh 2 a white Van. At the corner of Jonson and Kingsley Veh 1 turned left into Kingsley street without indicating and as a result Veh 2 has collided heavily with the front nearside of Veh 1 causing him to eject from his pushbike and fall onto the bitumen.”
The insurer caused for a factual investigation of the accident to be undertaken by M & A Investigations. Before me are two reports dated 11 August 2021 and 23 February 2022.
The report of 11 August 2021 indicates that the investigators encountered difficulty in obtaining a statement from the insured driver. She instead directed them to the owner of the vehicle, a Mr Dean King. Investigators also encountered difficulty obtaining cooperation from Mr King.
Investigators were able to obtain a statement from the claimant dated 2 August 2021. That statement can be summarised relevantly as follows:
a.     On the day of the accident the claimant left his place of work, Liquid Pool Designs in Byron Bay, where he is the self-employed owner of the business. After which he went home until approximately 4.40pm.
b.     Being a nice day, the claimant took his black Dirodi brand Rover electric bicycle for a ride around Byron. After riding to take in the view of the ocean, the claimant ran into a friend and they both decided to have a beer together at the Northern Hotel.
c.     The claimant reveals that he had two middies of Tooheys New beer. He states that “I was definitely not affected by alcohol when it came time for me to leave.”
d.     The claimant and his friend left the hotel and walked the bicycle to the zebra crossing just near Byron Bay Post office. It was at this point the pair parted company.
e.     The claimant then commenced to ride in a southerly direction on the eastern side of Jonson Street with the intention to ride to his home approximately one kilometre away.
f.     It is stated that the claimant turned on the front and rear lights of his bicycle. The claimant explains that the electric component was engaged with a digital display at the front. The claimant states that he knew that he had the lights on as he is not able to see the digital display unless the lights are switched on.
g.     It is admitted by the claimant that he did not have his safety helmet on for the journey, but explains that he had it with him.
h.     He describes not being in a major hurry and estimates that he reached a speed of 22 km/h, which was shown on the digital display of the bicycle.
i.     The claimant describes there being traffic along the south bound lane of Jonson Street that was travelling reasonably slowly. He states that “I was passing some of these cars on the inside as they were slowing down with the traffic.”
j.     Then at paragraph 24 the claimant states:
“I recall seeing a Hyundai van that was white in colour and it was travelling in the same south bound lane. I reached the van and I was riding parallel to it on the inside still just above 20 kilometres per hour. We came up to the intersection of Kingsley Street that was running off to my left. At this time it was about 5.50pm and I was still parallel to this white Hyundai van. I would estimate that I was about 10,00 [sic] metres from Kingsley street. Very suddenly and without any indicator coming on this white Hyundai van made a left hand turn right in front of me to turn left into Kingsley Street. This happened so fast it virtually gave me very little time to react. All I had time to do was to serve to my left and apply the brakes but I could not avoid the van. The van hit my bicycle quite hard on the front right side of the bicycle. The part of the van that hit my bicycle was the front left hand bonnet area.”
k.     It is stated at paragraph 26 that when the insured driver exited her vehicle after the collision the claimant told her that she did not indicate and she reportedly replied: “I know, I am sorry.”
l.     The claimant describes the insured driver being initially reluctant to exchange particulars, with her saying that she needed approval from her boss. She also explained the van was hired. Details were eventually exchanged, and despite some indication from a bystander that police were going to attend the scene both parties left the scene with the claimant having his wife come and pick him up.
m.   The claimant later attended the Byron Bay Police Station to formally report the accident.
The investigation report includes diagrams and photographs of the accident scene. They depict Jonson Street to have one lane travelling in each direction. The claimant and the insured were travelling in the south bound lane. The roadway on the south bound side meets the relevant T intersection with Kingsley Street. The roadway leading up to the intersection has front to kerb parking. The roadway has a strip of garden that divides the two lanes. The divider is described as being two metres in width.
The road surface is bitumen and appears to be in reasonable condition. The relevant speed limit is 50km/h.
Whilst the investigators had difficulty obtaining cooperation from the owner of the vehicle, the internal review team of the insurer were successful in obtaining an email from Mr Dean King of Cut Price Car Rentals. The insurer has included the email of 2 August 2021 in the documents it relies upon. Mr King explained in his email that he considered the claimant to be at fault. He formed an opinion that the claimant was riding on the footpath and that is why he was not sighted prior to the collision. Mr King concludes that the claimant should have given way.
I have not placed any weight upon the email from Mr King to the insurer. As rightly pointed out by the internal review team of the insurer, the email is unqualified opinion and includes largely hearsay evidence.
After the commencement of these proceedings the investigators commissioned by the insurer were eventually successful in obtaining a signed statement from the insured driver and a passenger in the vehicle. However, those statements were not obtained by the investigators, but are instead copies of statements that were provided to Mr Dean King of Cut Price Rentals.
The statement of Ms Sandra Linares, the insured driver, dated 6 July 2021, can be summarised as follows:
a.    At the time of the accident the claimant was in the course of her duties as a
door-to-door sales person for PowerSmart Industries.
b.    She states that she was driving the insured van at about 5.50pm along Jonson Street. She was in the company of a number of work colleagues.
c.     She describes the area as being dark with the sun having gone down. She states there to be little street lighting.
d.    The insured states that she was traveling around 30km/h and was approaching the intersection of Kingsley Street and had intended to turn left. She states that she turned on her left hand blinker and looked into her side mirror and to the side of the van. She describes it being “all clear.”
e.    She describes commencing the turn into the intersection when suddenly she heard one of her colleagues say “bicycle” and so she applied the brakes and it stopped almost straight away.
f.     At the same time she heard a bang on the left hand side of the van, she turned to her left and saw that a bicycle had collided with the side of the van.
g.    The insured describes the claimant asking whether she had called the police and in her opinion he looked “a bit scared.” Allegedly, one of her colleagues stated that the claimant did not want the police called.
h.    She describes the claimant as swearing and repetitive. She states that at the time she assumed he was in shock, but “thinking about it now”, he was angry and his words were not clear and even a little slurred.
Also provided is a statement of Gonzalo Pena dated 10 July 2021. He describes being seated in the front passenger seat of the insured van at the time of the accident. He states that he was being driven home.
He estimates the insured driver travelling at around 30km/h.
At paragraph 6 of the statement he states:
“Just prior to the intersection of Kingsley Street I said to Sandra words to the effect of, ‘its here you need to turn.’, Sandra then slowed down the Van to around 10km/h and turned into the intersection commencement of the Kingsley street, when I looked to the left and saw a male person riding a push bike, in my opinion, it looked like the bike was going to collide with the Van so I yelled out words to the effect of. ‘Sandra watch out,’, Sandra immediately stopped the Van and I saw the bike ride into the left-hand front of the Van.” [sic]
Mr Pena then explains that the claimant looked away when Mr Pena repeatedly suggested that the Police be called.
I have not placed any weight on the various comments of Mr Pena and the insured driver as to the claimant’s state of mind concerning the calling of police and any implied suggestion that he was intoxicated. This is mere speculation and not reliable evidence.
The report also includes a number of photographs apparently taken by Mr King of the insured vehicle. It demonstrates damage to the nearside of the vehicle.
The claimant has also provided a statement of Mr Wayne Begg dated 18 March 2022.
Mr Begg is the friend that the claimant refers to in his statement who joined him for a drink at the Northern Hotel.
Mr Begg confirms that both he and the claimant consumed two “light” middies of beer each.
He describes leaving the hotel with the claimant who was pushing his electric bicycle to where Mr Begg’s car was parked in Butler Street. Mr Begg states that he was interested in the claimant’s bicycle as he was considering purchasing one himself. The two men therefore had a short chat about the battery capacity of the bicycle and he states that he noticed and commented on how bright the headlight was on the bicycle.
Mr Begg states that the two then parted company with the claimant riding in a southerly direction along the left-hand side of Jonson Street. He states: “the headlight was on as Peter rode away from me on Jonson street. I clearly remember seeing it.” (sic)

Expert report of Mr Alan Joy

The claimant’s initial submissions with the Commission stated an intention to obtain an expert report from a traffic engineer.
A report was eventually provided by Mr Alan Joy, traffic engineering consultant, dated 10 May 2022.
Mr Joy undertook a site inspection, and also inspected the claimant’s bicycle. It is apparent that he was provided with all relevant documents that are before me including the statements mentioned above.
Mr Joy notes there to be five metres of roadway for the south bound traffic on Jonson street, and notes there to be no bicycle lane marked.

The report includes Mr Joy’s opinion that consistent with the version of events of both parties, the collision configuration is consistent with the insured van turning left into the path of the claimant
In terms of the speed of the parties, Mr Joy concludes that there is no physical evidence sufficient to use as a base to calculate the actual speeds of the two vehicles.
However, based on the statement of the claimant that he was travelling parallel to the van on the inside just about 20km/h, and regard for the nature of the environment and overall outcome, Mr Joy concludes that it reasonable to accept speeds at impact of about 20km/h for the bicycle and about 10km/h for the van.
In terms of the position of the vehicles, Mr Joy notes that the claimant riding to the left of the roadway before the collision was in accordance with the NSW Road Rules for bicycle riders which state:
“Riding in traffic
Bicycle riders must use a bicycle lane, if available, unless it’s impractical to use it. If there’s no bicycle lane, ride to the left of the road but avoid grates, debris and parked cars.”
In terms of vision of the claimant by the insured, Mr Joy concludes that:
“Vision of the location of Mr Gillespie and his bicycle while riding alongside the left side of the van prior to commencing to turn left would almost certainly have been available to Ms Linares by way of the left exterior mirror of the van, assuming it was correctly adjusted to suit her seating position.”
When coming to such conclusion, Mr Joy notes that the insured vehicle was equipped as standard with wide-angle exterior rear vision mirrors. In addition, Mr Joy notes the evidence of Mr Pena that he saw the claimant prior to impact. My Joy find that this evidence combined with the evidence of the claimant is such that the insured driver would most probably also have had available to her direct vision of the claimant.
On such basis Mr Joy concludes that the insured driver’s failure to see the claimant prior to commencing her turn left is a strong indication that she failed to check her to her left including her side mirror, properly or at all before commencing the turn.
Mr Joy opines that the claimant could have avoided the accident if he swerved to the right instead of riding to the left of the van, so that the van could turn left and he could continue straight. However, this is only on the basis of him receiving sufficient warning of the insured’s intention to turn left.
It is concluded by Mr Joy that the critical causal factors in the collision are firstly: the insured’s failure to check for other traffic adequately or at all in advance of turning into Kingsley street, and secondly; her failure to provide the claimant with warning of her intention to turn sufficient or at all before turning into Kingsley street.
Mr Joy goes on to set out relevant sections of the NSW Road User Handbook, which includes advice such as always checking for other vehicles on the left and right before turning.
Relevantly, Mr Joy also sets out cl 141 of the NSW Road Rules which provides as follows:
“141 No overtaking etc to the left of a vehicle
(1) A driver (except the rider of a bicycle) must not overtake a vehicle to the left of the vehicle unless –
a.The driver is driving on a multi-lane road and the vehicle can be safely overtaken in a marked lane to the left of the vehicle, or
b.The vehicle is turning right, or making a U-turn from the centre of the road, and is giving a right change of direction signal and it is safe to overtake to the left of the vehicle, or
c.The vehicle is stationary and it is safe to overtake to the left of the vehicle, or
d.The driver is lane filtering in accordance with rule 151A.
…and…
(2) The rider of a bicycle must not ride past or overtake, to the left of a vehicle that is turning left and is giving a left change of direction signal.”

Submissions

Both parties have provided a number of sets of submissions. For ease of reference, I have set them out below in chronological order.

Claimant’s submissions of 23 November 2021

These submissions are preliminary in nature. They foreshadow the claimant obtaining a forensic traffic engineer’s opinion prior to final submissions and determination of the Commission.
It is submitted that there should be a finding of zero contributory negligence.
In respect of the failure to wear a helmet, the submissions state that such failure did not in any way contribute to the liability circumstances nor to the extent of the claimant’s injuries.
It is submitted that the claimant riding as near as practicable to the left-hand side of the roadway prior to the collision is not a factor that ought to give rise to any finding of contributory negligence.
It is submitted that the insured driver failed to observe the claimant prior to turning and also failed to indicate her intention to make a left-hand turn.

Insurer submissions dated 21 January 2022

The insurer notes that it has been unable to obtain a statement from the insured driver as at the date of the submissions.
The submissions confirm that the insurer admits its insured driver breached her duty of care, however, the claimant contributed to the accident for the following reasons:
a.    failed to keep a proper lookout for his safety;
b.    failed to travel in designated lane;
c.     failed to anticipate turning vehicle;
d.    failed to maintain a safe speed in the circumstances;
e.    rode to the left of a vehicle in the same lane when it was unsafe to do so;
f.     failed to wear a helmet which is mandatory;
g.    failed to take any, or any reasonable care for his own safety, and
h.    failed to take any, or any reasonable care to avoid injury.
The insurer submits that “although aware of the slow speed at which the insured’s vehicle was travelling, as well as the upcoming intersection, at no time has the claimant given the evidence of slowing down, but rather kept pace with the speed of the insured’s vehicle.”
Noting the absence of a statement of the insured, the insurer submits that even in a situation where the blinker was not activated, a reasonable person in the position of the claimant would have slowed down and pulled behind the insured vehicle as it approached the Kingsley Street intersection.
It is submitted that the claimant riding parallel to the insured vehicle not only put himself in a dangerous position of potentially being in the blind spot, but also given himself little opportunity to avoid the accident in the event a blinker may have been late activated, or an emergency situation where the insured van may have had to swerve to the left.
In respect of the failure to wear a helmet, the insurer refers to s 3.38(2)(d) of the MAI Act. It is also submitted that the section does not state a head injury needs to be sustained in order for that mandatory finding to be made. The insurer submits that the fact that he was not wearing a helmet, even though he had it with him, in addition to other unsafe actions, evidences the claimant’s failure to take precautions against the risk of harm.
The insurer also makes submissions in respect of the claimant allegedly riding whilst under the influence of alcohol. The insurer notes the claimant admits that in the space of less than an hour before the accident he consumed two middies of full strength beer. The insurer notes that no more than two standard drinks in the first hour for males are to be consumed to maintain a blood alcohol concentration (BAC) of 0.05%.
The insurer admits that it has no evidence of the claimant’s BAC at the time of the accident, however, submits the claimant on his own evidence exceeded the recommendation of two standard drinks within an hour.
Despite no evidence of the claimant’s BAC and no expert pharmacologist evidence, the insurer persists with a submission that “on the claimant’s own evidence, it is open to a Member to find the claimant’s concentration and ability to make informed decisions was impaired as a result of his alcohol consumption.”
The insurer concludes that a reasonable person in the position of the claimant would:
a.    not have been undertaking vehicles as they were approaching an intersection;
b.    have reduced their speed;
c.     have anticipated the possibility of the insured van turning, and
d.    have worn a safety helmet.
It is submitted that finding of contributory negligence ought to be in the vicinity of 25-30%.

Claimant’s submissions dated 16 May 2022

The submissions note that the insured driver’s statement confirms that she did not observe the claimant prior to making the left turn. It is also noted that the witness, Mr Pena, after telling the insured driver where she needed to turn observed the claimant to his left when the insured vehicle slowed down. It which point Mr Pena, yelled out to the insured driver words to the effect of: “Sandra watch out.”
It is submitted on behalf of the claimant that Mr Pena’s statement is conspicuously silent on the issue of whether the indicator was activated prior to the accident. However, the statement does confirm that the insured driver was not aware of the claimant’s presence until Mr Pena yelled his warning.
It is pointed out on behalf of the claimant that despite there being other passengers in the vehicle no statements are provided despite the photographs of the insured vehicle depicting glass windows extending almost the full length of its passenger’s side.
It is submitted that the insured driver’s evidence that she activated her indicator ought to be rejected when not corroborated by any other witness and is refuted by the claimant.
The submissions set out relevant parts of the report of Mr Joy in supporting the claimant’s position that he had no advance warning of the insured’s left hand turn. The submissions also reiterate the road rules as set out in the report of Mr Joy that the claimant was riding his bicycle in adherence with same. Specifically, the claimant was lawfully riding as near as practicable to the left, was permitted to overtake a vehicle on the left if that vehicle was not turning left and was not giving a left change of direction signal.
In respect of the insurer’s submission that the claimant was riding under the influence at the time of the accident, it is submitted that the argument ought to be rejected. It is noted that there is no evidence to suggest that the claimant’s ability to ride and control his bicycle was affected by alcohol.
In respect of the failure to wear a helmet, it is submitted that such failure did not and could not possibly in any way have contributed to the liability circumstances of the accident and did not contribute to his injuries.
It is submitted that “the claimant could not have been more obvious than he was by virtue of the brightly illuminated headlight of his bicycle.

Insurer’s further submissions

After consideration of the statement of the insured driver and Mr Pena, and the report of Mr Joy, the insurer submits that the claimant’s evidence that he rode parallel to the insured vehicle as they both approached the intersection “is tantamount to finding that the claimant rode his bicycle alongside the insured vehicle, in the vehicle’s blind spot.”
It is further submitted that even when the insured vehicle began to slow down the claimant continued to ride parallel to the van.
The insurer then submits:
“Notwithstanding the blinker of the insured vehicle being activated late or even at all, the insurer submits a reasonable person in the shows of the claimant, overtaking a slowing vehicle up the left-hand side, as it approached an intersection, when it was dark with poor lighting conditions, ought to have slowed down and not continued to ride within the blind sport of that vehicle.”
It is then submitted that the claimant put himself in a dangerous position of being within the insured’s blind spot and gave himself very little opportunity to avoid an accident in the event a blinker was activated late or in an emergency situation where the van may have to swerve left quickly.
The insurer confirms that the insured driver’s evidence is that the claimant’s headlight was not activated. It is then submitted that reliability of the statement of Mr Begg should be in doubt given in a situation where he is in a friendly relationship with the claimant and the passage of time since the accident.
The insurer confirms the previous submissions set out above as to what a reasonable person in the position of the claimant would have done, with the addition of the following:
a. not have ridden a bicycle in the insured driver’s blind spot, and
b. have made themselves visible to other drivers by activating a headlight on their bicycle and not worn dark clothing.
Submissions are then made as to the claimant’s claim for costs. Submissions as to costs are set out and dealt with below.

Claimant’s submissions dated 20 June 2022

It is submitted that the insurer’s submissions erroneously state that the insured driver denies that the claimant had his headlights illuminated. It is submitted that the insured driver’s statement that the claimant’s bicycle “did not have any lights on it” is demonstrably false. It is then noted that the report of Mr Joy depicts the claimant’s bicycle as being fitted with front a standard LED headlight and a red LED tail light.
It is noted that the statement of Mr Pena ‘tellingly” the says nothing as to whether the claimant had his lights on or not.
In respect of the insurer’s suggestion as to the reliability of the evidence of Mr Begg, it is submitted that “there is no legal doctrine that supports a view that the evidence of an otherwise credible witness ought be impugned by reason of nothing more than a ‘friendly relationship’ with the person who is the subject of that Statement.”
In respect of the insurer’s allegation of the claimant travelling in the insured driver’s blind spot, this argument is described as “nonsensical” by the claimant’s representatives. In this regard, it is submitted that the insurer has failed to adduce evidence that establishes whether the insured driver could see or not see the claimant. In addition, the evidence of the passenger, Mr Pena, is that he saw the claimant in advance of the collision and finally the report of Mr Joy establishes that there was no blind sport.
Accordingly, it is submitted that if the insured driver was keeping a proper lookout she would have seen the claimant prior to commencing her turn. Further it is submitted:
“More importantly, as only contributory negligence is in issue, there is no satisfactory evidence to indicate that the Claimant was riding his bicycle in such a way that he knew or ought to have known that he was in the any ‘blind spot’, even if one existed.”

Reasons

The factual circumstances of the accident are largely not in dispute. There is apparent agreement that both the claimant and the insured vehicle were travelling south bound on Jonson Street approaching the T intersection with Kingsley Street. There is no dispute that the claimant was riding to the left of the insured vehicle and at no relevant time in front of the insured vehicle.
The critical issues that are in dispute are:
a. whether the insured driver indicated her intention to turn left, and
b. whether the claimant would have been visible to the insured prior to her commencing her left turn into Kingsley Street.
In addition, the insurer also disputes that the claimant riding to the left of the insured and “undertaking” was reasonable.
In consideration of the Road Rules, specifically Rule 141, not only was it reasonable for the claimant to be travelling to the left of the traffic, it was also lawfully following the requirements of the Road Rules. I therefore reject the insurer’s submission that the claimant should not have been travelling to the left of the insured vehicle.
In respect of the further issue as to whether the claimant had his bicycle headlight illuminated, I accept the evidence of the claimant and Mr Begg. I am sufficiently satisfied that it is more likely than not that the headlight was illuminated at the time of the accident.
Upon reading the insurer’s submissions, particularly the most recent submissions, the arguments of the insurer are largely contingent upon the claimant riding in the insured driver’s “blind spot.”
I agree with the submissions made on behalf of the claimant that there is no evidence to suggest this is the case.
It is the insurer’s burden to establish contributory negligence. The insurer has not adduced any evidence to support the continuous assertion that the claimant was travelling in the insured driver’s “blind spot.” Instead, the only reliable evidence that I have before me as to the visibility of the claimant is the opinion of traffic engineer, Mr Joy. Mr Joy concluded that it most likely that the claimant would have been visible to the insured driver if she had in fact kept a proper lookout prior to commencing her left hand turn. This conclusion is also consistent with the evidence of Mr Pena, who saw the claimant prior to the collision occurring. I reject the evidence of the insured driver that she checked to her left and her mirrors and it was “clear.” This evidence is not consistent with the balance of the material before me.
In respect of the question of whether the insured driver indicated her intention to turn left, I make a finding that she did not activate her indicator on approach to the intersection, or otherwise only activated same at a time where it did not provide adequate warning to the claimant to take action to avoid the collision.
In this regard, I accept the evidence of the claimant that the insured vehicle indicator was not activated on approach to the intersection. After considering the statement of the claimant, I consider him to be a witness of truth. He very freely concedes he was not wearing a helmet and also gives evidence as to the consumption of alcohol prior to the accident .
When I couple my acceptance of the claimant’s evidence with Mr Pena’s evidence that just prior to the intersection he told the insured driver where to turn, I am led to conclude that the insured driver made a sudden turn to the left without activating her indicator in the lead up to the intersection. In this regard, I accept the claimant’s evidence of a sudden turn by the insured as being an honest account of the events. Consequently, I find that a reasonable person in the position of the claimant would not have had sufficient opportunity to avoid the accident.
In summary, the claimant was lawfully riding to the left of the roadway in accordance with the Road Rules when the insured driver made a left hand turn into the claimant’s path of travel, without proper or reasonable warning.
Whilst the insurer has submitted that the claimant should not have travelled parallel to the insured on the basis that he put himself in peril if the vehicle turned unexpectedly, a reasonable person is not required to anticipate every possibility that may arise. Effectively, this amounts to impermissible hindsight reasoning (Mobbs v Kain [2009] NSWCA 301 at [103])
In respect of the insurer’s assertion that the claimant was intoxicated at the time of the accident, I reject this submission in its entirety. In the absence of any evidence as to the claimant’s BAC at the time of the accident and/or expert pharmacologist opinion the submission is essentially frivolous.
As set out above the insurer has also made a submission that a finding of contributory negligence should be made in circumstances where the claimant was not wearing a helmet.
The insurer bears the onus in not only establishing that the claimant was not wearing a helmet, but also whether and to what extent any such failure materially contributed to the claimant’s injuries.
On the facts before me, there is no dispute that the claimant was not wearing a helmet at the time of the accident, even though he had one with him.
However, I have no evidence before me that convinces me or even suggests that the failure to wear a helmet materially contributed to the claimant’s injuries. There is no evidence of any head injury.

In circumstances where I have made a finding that the failure to wear a helmet in no way contributed to the occurrence of the accident or the injuries occasioned I am guided by the case of Nominal Defendant v Rooskov [2012] NSWCA 43 (Rooskov). In Rooskov, the Court of Appeal affirmed a decision of the trial judge not to apply a reduction for contributory negligence on account of intoxication. This was in circumstances where s 138(2) (a)-(d) of the Motor Accident Compensation Act 1999 (MAC Act) is relevantly identical to the wording of s 3.38 (2)(a)-(d). In this regard, from [141] the Court found as follows:
“141. I would accept that the Respondent is likely to have had decreased alertness due to his degree of intoxication. I would accept that anyone who rides a bicycle on a public road in the extreme state of intoxication that the Respondent was in is placing himself at serious risk of injury. However, that the Respondent placed himself at serious risk of injury by venturing onto a public road at all that afternoon does not answer the question of whether the Appellant has discharged the onus of showing that the Respondent’s intoxication actually caused or contributed to his injuries.
142. Another part of the ‘enacted law’ that s138(1) MAC Act makes applicable in determining contributory negligence for the purpose of this case is the Civil Liability Act 2002. Section 5R(1) of that Act provides:
‘The principles that are applicable in determining whether a person has been negligent also apply in determining whether a person who suffered harm has been contributorily negligent in failing to take precautions against that risk of harm.’
143. One such principle ‘applicable in determining whether a person has been negligence’ is s5D of the Civil Liability Act 2002:
(1) A determination that negligence caused particular harm comprises the following elements:
(a) that the negligence was a necessary condition of the occurrence of the harm (factual causation), and
(b) that it is appropriate for the scope of the negligent person’s liability to the harm so caused (scope of liability).’
144. Thus, the Appellant will succeed in establishing that there was contributory negligence arising from the intoxication of the Respondent only if the Appellant establishes that the intoxication was a necessary condition of the injuries that the Respondent sustained.”
Whilst the above refers to intoxication rather than not wearing a helmet, the principle is applicable. In the present case, I have found that the insurer has failed to establish that failure to wear a helmet contributed to the occurrence of the harm, and indeed that the failure in any way contributed to the claimant’s injuries occasioned.
Accordingly, I make a finding of zero contributory negligence.

Costs and disbursements

There is a dispute as to costs. Submissions are made on behalf of the claimant that costs should be awarded pursuant to s 8.10(4) on the basis that exceptional circumstances exist so that costs should be awarded above the regulated amount.
Schedule 1 cl3(1) of the Regulation provides that the maximum costs for legal services provided to a claimant involving a dispute about a regulated miscellaneous claims assessment matter is 16 monetary units. The current value of a monetary unit is $016.89.
Therefore, the maximum amount of legal costs to be awarded under the Regulation is $1,710 plus GST.
The parties have provided submissions as to whether exceptional circumstances exist. I have summarised same below in chronological order:

Claimant’s submissions dated 16 May 2022

The claimant makes an application for exceptional circumstances costs pursuant to s 8.10(4) of the MAI Act, and states that the maximum regulated fee would unfairly prejudice the claimant in circumstances where the amount and type of work involved is in no way commensurate with the regulated amount.
It is submitted that the insurer’s allegation of contributory negligence required extensive investigation of the liability circumstances including obtaining an expert report from a traffic engineer. A site inspection occurred over an extended period of time both in the daylight and dark conditions.
The submissions also note that the matter involved the taking of a witness statement of Mr Begg. It is also noted that it was not until 28 February 2022 that the claimant had the opportunity to consider the statement of the insured driver and the statement of the passenger, Mr Pena.
It is submitted that the claimant’s need to obtain an expert report is supported by the fact that the insurer made a decision as to contributory negligence without having considered the statements of the insured driver and Mr Pena.
The claimant also submits that he was required to deal with allegations of the effect of alcohol and the failure to wear a helmet, which are described as “frivolous.”
Finally, it is submitted
“…that if he [the claimant] were prevented from recovering reasonable legal costs from the insurer it would effectively mean that he would be unable to properly meet the Insurer’s allegation of contributory negligence and so would suffer a reduction of his weekly statutory benefits of at least 30% based on the insurer’s current position.”
A claim for legal professional costs in the sum of $15,000 plus GST, and counsel fees of $3,000 plus GST.
Also claimed is the unregulated fee of Mr Alan Joy, Forensic Traffic Engineer in the sum of $6,395.62.
The total of costs claimed is therefore $26,195.62.

Insurer’s submissions dated 30 May 2022

The insurer submits the matter is not complex and that there is little or no dispute about the circumstances giving rise to the motor accident. It is submitted that the matter did not require additional legal work, legal costs and associated delays of obtaining an expert traffic expert.
The insurer also suggests the claimant’s submissions appear to suggest that the expert was report was needed to counter the evidence of the insured driver, and notes that the claimant had always intended to obtain an expert report as set out in the claimant’s initial submissions. The insurer submits that the commissioning of an expert report had nothing to do with the insured driver’s statement.
The claimant’s submission that the insurer’s allegation relating to intoxication and the non-wearing a helmet was “frivolous” is described by the insurer as not a ground for the awarding of exceptional costs.
The insurer submits that the claimant has failed to establish exceptional circumstances exist.
It is then stated that if exceptional costs are permitted that the maximum regulated fee of $1,710 is a reasonable amount having regard to a commensurate amount that would be awarded in a damages claim involving liability, particularly in a situation where the matter was dealt with on the papers.
Further it is submitted that the costs agreement disclosing the legal services to be provided to the claimant and also an itemised bill detailing all legal work and services provided to the claimant in connection with the dispute would be required, in the event exceptional costs are awarded.
In respect of the expert report, the insurer submits that there was no utility in the claimant obtaining a traffic engineer report.
The insurer submits that the facts of the motor accident speak for themselves, and that the evidence of the expert has not been of any assistance in the current matter and obtaining the report is contrary to the objects of the MAI Act to “facilitate the just, quick, and cost-effective resolution of the real issues in the proceedings.”

Claimant’s submissions dated 20 June 2022

The claimant submits that the obtaining of an expert report was warranted on the basis of the conflicting versions of events.
It is submitted that the insurer made a significant allegation of contributory negligence prior to the provision of the insured driver’s statement and in doing so deprived the claimant of a significant portion of his weekly income benefits.
It is further submitted that the claimant is not obliged to provide any agreement in relation to the disclosure of costs as it was never intended, nor could it be the case that costs with respect of a miscellaneous claims matter be charged to the claimant.
It is concluded by the claimant that:
“The insurer submits that proportionality ought be a factor and refers to the common law regulated costs set out in Schedule 1 of the Regulations ought be a guide. The claimant submits that in circumstances were regulated costs do not apply then costs at large are appropriate. This situation would be no different to a matter having been exempt from general assessment and referred to court of adjudication.”

Reasons

In the case of AAI Ltd trading as GIO v Moon [2020] NSWCA 714, Wright J at [99]:
“In addition, other cases can be envisaged which are exceptional, because they involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant. These cases fall within s8.10(4). It would be consistent with the objects and other provisions of the MAI Act, including for example s7.46, and the express terms of s8.10(3) and (4), to permit the amount of legal costs recoverable under s 8.10 in such exceptional cases to exceed the maximum fixed by the regulation, where that was reasonably required to prevent injustice, hardship or some other relevant adverse consequence.
I am not satisfied that exceptional circumstances exist in this matter. The complexity of factual and legal issues involved in this matter are not such that they could be described as unusual. I accept, and have indeed found above, that the factual circumstances of the matter were largely not in dispute. The matter did not require an assessment conference.
Whilst I accept that legal work undertaken may exceed the regulated amount, that is not the question that I must resolve. The determination must be whether exceptional circumstances exist. The legal and factual issues involved in this case, whilst not insignificant, are not unusual or indeed exceptional.
I do not, however, accept the insurer’s submission that the obtaining of the expert report by the claimant had no utility. I have been assisted by the opinion of Mr Joy as expressed in his report. In this regard, I note the insurer’s arguments largely hinged on the claimant riding in the insured’s “blind spot.” This allegation was made despite the fact that no evidence was adduced by the insurer to establish such allegation. Instead, the report of Mr Joy was such that I was satisfied that the claimant was not in the claimant’s blind spot. In such circumstances, I find that it was reasonable for the claimant to obtain the opinion of a traffic engineer.
However, the obtaining of a traffic engineer’s report is not in itself enough to give rise to “exceptional circumstances” as required by s 8.10(4) of the MAI Act for me to award legal costs above those set out in the Regulation. Obtaining a traffic engineer’s report is not an unusual step in these kinds of disputes.
In respect of counsel fees, I do not consider the circumstances of the matter are such that they would reasonably exceed the capabilities of an experienced personal injury practitioner.
It should be noted that in the event that exceptional costs are claimed in a matter, as submitted by the insurer, an itemised bill should be provided. In this regard, I would refer the parties to the Merit Review decisions of the Commission of Allianz Australia Insurance Limited v Rymer [2022] NSWPICMRP 6 and Allianz Australia Insurance Limited v Rymer [2022] NSWPICMRP 7.
I allow legal costs in the amount of $1,170 plus GST representing the maximum regulated amount. I also allow the costs of the report of Mr Joy totalling $5,814.20 plus GST as an unregulated amount under cl 20(a) of the Regulation.
Therefore, the total costs awarded by me is $7,524.20 plus GST.

Conclusion

My determination of the Miscellaneous Claims dispute is as follows:
(a) For the purposes of s 3.38 the insurer is not entitled to reduce the statutory benefits of payable in respect of the motor accident.
(b) Effective Date: This determination takes effect on 31 December 2021.
(c) Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $7,524.20 plus GST.

Legislation

In making my decision I have considered the following legislation:
·        the MAI Act;
·        the MAC Act;
·        the Regulation, and
·        the Civil Liability Act 2002.

Elizabeth Medland

Member (Motor Accidents Division)

Personal Injury Commission

[2022] NSWPIC 383

15 July 2022