Gould v Westpac Banking Corporation

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Elliott v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 58
APPLICANT:	Christopher Elliott
RESPONDENT:	Insurance Australia Limited trading as NRMA Insurance
MEMBER:	Elizabeth Medland
DATE OF DECISION:	13 February 2024
CATCHWORDS:	WORKERS COMPENSATION - Motor Accident Injuries Act 2017; miscellaneous claim dispute as to whether the claimant is wholly or mostly at fault for motor accident under sections 3.11 and 3.28; accident occurred when insured vehicle turning right into the path of the claimant; claim for “exceptional” costs pursuant to section 8.10(4)(b); Held – insurer failed to discharge onus; insured failed to keep a proper lookout by not checking for vehicles travelling behind before performing turn; claimant mostly at fault; exceptional costs awarded.
DETERMINATIONS MADE:	CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act2017 1. For the purposes of s 3.11 the motor accident was caused by the fault of another person. 2. For the purposes of s 3.28 the motor accident was not caused wholly or mostly by the fault of the injured person. 3. Legal costs: finding that exceptional circumstances exist under s 8.10(4)(b) of the MAI Act and leave granted to the parties to approach me within 20 business days with any request to assess costs.

STATEMENT OF REASONS

INTRODUCTION

Mr Christopher Elliott (the claimant) is a 31-year-old man that suffered injury in a motor accident on 30 September 2022. He was the driver of a Toyoto Echo on Wheeler Parade, Dee Why NSW when a collision occurred with a BMW. A number of facts are in dispute as set out below.
A miscellaneous claims dispute has arisen between the parties as to whether the claimant was wholly or mostly at fault for the accident pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (MAI Act).
The claimant lodged an Application for Personal Injury Benefits (claim form) with QBE Insurance (Australia) Limited (QBE) on or about 2 October 2022.
Liability for payment of statutory benefits was initially accepted by QBE. However, in a notice dated 13 December 2022 QBE denied ongoing benefits beyond 26 weeks on the basis that the claimant was considered as being wholly or mostly at fault for the accident.
An internal review was requested and by a determination dated 17 April 2023 QBE affirmed the original decision.
An application was subsequently lodged with the Personal Injury Commission (Commission) seeking a determination of the dispute between the claimant and QBE. The matter has been allocated to me as a Member of the Commission.
I have held a number of teleconferences in this matter. It came apparent that the relevant insurer, who is the compulsory third party insurer of the BMW, is in fact Insurance Australia Limited trading as NRMA Insurance (NRMA – the insurer). I eventually caused for NRMA to be joined to the proceedings pursuant to Rule 62(1) of the Personal Injury Commission Rules 2021 (PIC Rules), and QBE to be removed from the proceedings pursuant to Rule 62(2) of the PIC Rules.
Initially NRMA submitted that the dispute was who was the “relevant insurer” pursuant to s 3.3 of the MAI Act. However, at a teleconference held on 5 September 2023 it was eventually agreed by the NRMA’s (the insurer) representative that the dispute for determination relates to whether the claimant is wholly or mostly at fault pursuant to ss 3.11 and 3.28 of the MAI Act, rather than who is the relevant insurer pursuant to s3.3 of the MAI Act. The matter has therefore proceeded on such basis.
At the teleconference of 5 September 2023 it was agreed that the matter should be set for an assessment conference. The parties subsequently provided me with a range of available dates.
An assessment conference was set and occurred on 24 November 2023 via Microsoft Teams. Both the claimant and the insured driver attended to give evidence. However, it was noted that it had not been previously confirmed that the insured driver would be attending and the claimant’s representative objected to the matter proceeding in the absence of a signed statement from the insured. This point was ultimately conceded by counsel for the insurer and a further assessment conference was set to occur on 28 November 2023 with a direction that a signed statement of the insured be provided.
A statement of the insured driver was provided on 27 November 2023 and the further assessment conference proceeded on 28 November 2023 via Microsoft Teams. Both the claimant and the insured driver gave evidence.

DOCUMENTS CONSIDERED

I have considered the documents included in the application and reply and all other documentation provided by the parties.

LEGISLATIVE FRAMEWORK

Section 3.11 of the MAI Act provides as follows:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if-
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) 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 section 3.38) was greater than 61%.”
Section 3.28 of the MAI Act provides as follows:
“(1)    An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2)     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 section 3.38) was greater than 61%.
(3)     Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident 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.”
Pursuant to Schedule 2 cl (3)(d) & (e) of the MAI Act, a dispute relating to ss 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purposes of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.

SUMMARY OF EVIDENCE

The claimant’s versions of events

The claim form dated 2 October 2022

The claimant describes the accident as follows: “driving down Wheeler Parade to go to work then a car pulled out in front of me.”

Claimant’s statement dated 12 May 2023

The statement was prepared following an interview with investigators, Procare Group acting on behalf of QBE.
The claimant explains that at the date of the accident he held a valid class “C” NSW driver’s licence. However, his licence was suspended at the time of the interview due to a drug driving charge incurred on February 2022, however, the suspension not taking effect until October 2022.
In respect of the subject motor accident the claimant explains it occurred between 11 and 13 Wheeler Parade, Dee Why. He was on his way to work at the waste collection depot in Cromer in the Northern Beaches of Sydney. It was an early morning shift and the accident occurred at approximately 5.20am.
From paragraph 32 the claimant states as follows:
“Daylight had just commenced; I had activated my headlights and my windscreen wipers as the weather was wet and damp from the light rain showers.
I was driving north on Wheeler Parade in Dee Why enroute to the Cromer Depot.
Wheeler Parade is a quiet suburban street that has blocks of home units lining each side of the roadway.
The roadway declines near the north towards Pacific Parade in Dee Why.
The speed limit on this roadway is 50 kilometres per hour. There are no road markings on the roadway to identify the north and south bound traffic flow.
I had commenced the decline towards Pacific Parade on Wheeler Parade. I was alert and focused on my driving. I was travelling around 50 kilometres per hour and there was no other traffic on the roadway.
I had just passed the intersection of The Crescent and Wheeler Parade. I next recall seeing a vehicle exiting from a unit block driveway to my left without warning. Due to the rainfall it was hard to tell if the car was exiting the driveway or pulled partially into the gap between either side of the driveway parallel to the gutter, but the vehicle pulled out in front of me without any indicator lights or anything to prewarn me of his intended movement.
From this point forward I have little memory of what happened. I remember that I felt intense pain in my head, left leg and back.”
The claimant goes on to state that the NSW police did not contact him after the accident to speak to him about his version of events. The claimant states that he had to reach out to the police and attended a police station before speaking to an officer.

NSW police evidence

The police report records the accident as being reported on 30 September 2022. The claimant’s vehicle is noted as the “unit” responsible for the accident. The crash summary details are recorded as follows:
“About 5:25am on Friday 30^th September 2022, a grey bmw was travlling (sic) North bound on Wheeler Pde Dee why when the driver attempted to make a right hand turn into the driveway of number 12 a blue Toyota Echo was travelling North bound behind the grey bmw and has attempted to overtake the grey bmw when the two vehicles have collided causing the blue Toyota Echo to spin out onto the wrong side of the road and the grey bmw to collide with two parked vehicles.”
As noted above, QBE caused for a factual investigation to be undertaken by Procare Group. A copy of the resultant report dated 7 March 2023 forms part of the material before me. The investigators conducted an interview with the NSW police, and a copy of a transcript of interview dated 14 February 2023 with Constable Nicole Chinnen is included.
Constable Chinnen explains that she attended the scene of the accident with a colleague and was nominated as the officer in charge. She found the claimant’s vehicle situated in the middle of the road facing the wrong way. The insured vehicle was facing towards a driveway, having collided with two other parked vehicles.
Constable Chinnen’s offsider spoke to the insured driver at the scene of the accident. A copy of the body worn camera of the interview was evidently played during the interview with the investigators and is transcribed within the document. The insured told the officer that he was coming down Wheeler Parade and was going slow to identify the house which he needed to pull into – number 12 [noted that the insured driver was performing duties as an Uber driver at the time].
The insured then states: “I’ve seen that, I’ve slowed over to here, seen that’s number 15, and realised number 12’s over here, indicated to come into number 12. Begun my turn as I approached the entry to number 12 driveway, and as I turned the other vehicle impacted me and collided.”
The impact is described as having occurred on the driver’s side door of the insured vehicle. The insured goes on to state that he was travelling 20 kilometres an hour “at that point.”
The insured further goes on to confirm he was travelling “down” and “slowed right down here” and was “just crawling” in order to identify the side of the street he presumably needed to pick up his passenger.
He then states: “as soon as I’ve identified that, I’ve indicated to turn into this side…obviously, I’ve travelled a bit further down the road, turned and as I’ve turned, the impact has occurred…like it was a total shock to me.”
Constable Chinnen explains that a statement was not taken from the claimant at the scene of the accident due to his injuries and him being transported to hospital. The Constable confirms the claimant came into the police station on 26 October 2022. Constable Chinnen states that she asked for his version of events and the claimant responded: “I was on my way to work, driving down Wheeler Parade towards Pacific Parade in Dee Why. And, the next thing I know is a car just pulled out in front of me.”
When asked what speed he was travelling, the claimant replied stating that he was

travelling the speed limit and if not, under. The Constable confirmed that the speed limit is 50 kilometres per hour.
When asked when the claimant first noticed the insured vehicle he replied stating that he did not really remember and confirms that he did not see the vehicle travelling in front of him. He states: “…There was no car travelling in front of me.”
Constable Chinnen confirms that they were unable to identify any independent witnesses to they considered the claimant to be at fault. He was issued with an infringement notice for overtake of a vehicle turning right.
When asked by the investigator as how she thought the collision occurred, Constable Chinnen states:
“I think that when the BMW was slowing down, Mr Elliott has attempted to overtake to the right of the vehicle not realising that the BMW was actually turning. And, as he’s gone to turn, he’s collided with the driver’s door. And, due to the impact, has spun his car and ended up where he was ended up.”

Statement of insured driver, Andrew Green, dated 25 November 2023

On the morning of the accident the insured was working as a ride share driver. He left his home in Concord West at around 4.00am.
After completing two jobs, the insured received a request for pickup just after 5.00am at 12 Wheeler Parade, Dee Why. He explains that once he accepted the job his Uber driver App provided him with turn by turn instructions to the pickup point. When he entered Wheeler Parade from The Crescent he states that there were no vehicles travelling in either direction, and the only vehicles present were parked along the kerb.
He states that the weather was overcast and it was raining and as such he had his headlights on and his wipers on.
The insured driver states that the Uber driver app can be unreliable with the side of the street a pickup is on. He states that he cannot see the customer waiting at the approximate location, he will first determine the side of the street the house number.
With the assistance of some attached diagrams the insured states that as he approached the vicinity of the pickup he slowed to 10-20kph and scanned the left side of the road for a street number. With further assistance with diagrams that he has marked, the insured states that as he moved his vehicle passed a tree by Block no.15 on the left, a block number came into view on the brickwork of the driveway entrance. This had him determine that street number 12 was on the right. He then focussed his attention to that side, continuing on at a low speed.
He states he then identified number 12 on the right and states that he activated his right-hand indicator to turn right and slowed further as he approached the driveway at the northern edge of block 12 and “…since there were no oncoming vehicles, I began to turn into the driveway.” He states that half way through the turn he started to hear a whirring sound to his right and through his driver’s side window he saw the front of the claimant’s vehicle two to three metres away, coming directly towards him at “great speed.”
The insured states:
“…it was a moment of complete and utter shock. It did not compute why the vehicle was there. There was no evasive manoeuvring on the other driver’s part. The other driver did not sound their horn. The other driver did not brake. It was as though they had no inkling I was there.”
The insured states that claimant’s vehicle was travelling from behind his vehicle and was on the wrong side of the road when the impact occurred.
The insured states that in the aftermath of the accident as he approached the claimant the claimant started yelling words to the effect of: “you stopped! You pulled out in front of me.” The insured states that he did not pull out in front of the vehicle, and he formed the impression that the claimant intended to lie about the accident.

EVIDENCE AT THE ASSESSMENT CONFERENCE

The claimant’s oral evidence

Under questioning from his legal representative, the claimant gave evidence that as he was driving down Wheeler Parade it was raining and he had his windshield wipers activated.
He states that after a unit block he saw a car on his left side which was between two parked cars. He noticed that it was protruding out from the other ones. He states that as he got close to that vehicle it pulled out on him and that is when the collision occurred.
In describing the insured vehicle’s position the claimant commented that it was protruding out, and that he could tell it was in front of a driveway and it was not parked correctly if it was parked and he thought maybe the car was pulled over. He assumed that the vehicle was stationary.
Under questioning from counsel for the insurer, the claimant stated he was not sure if his memory is better now than when he spoke to police. He stated that some details have come back to him and others have drifted away.
It was noted that the claimant stated to police that he was going the speed limit, if not under and told investigators he was travelling at 50kph. It was further noted that he told police that he did not really remember when he first noticed the insured vehicle. The claimant explained that some things have come to him over time and he finds it intimidating talking to police and his answers were not specific.
Ms Dinkha asked the claimant why he did not tell police where he saw the insured vehicle and he explained that he did not want to give an exact location and then be pulled up and told that he was wrong. The claimant stated that he first saw the insured when it was across a driveway between two cars and denied that he did not remember where the vehicle was when he first saw it.
The claimant confirmed that the first time he mentioned anything about a vehicle emerging from a driveway was when he spoke to the investigator. He states that his vehicle was a couple of metres (“max”) away from the insured vehicle when it began to move. Further, that from a distance it was hard to tell if the vehicle was moving or not.
The claimant’s evidence was relatively vague on the position of the insured vehicle leading up to the accident, however, he did consistently say that part of the vehicle was sticking out further than the parked cars parallel to the kerb. He further denied a suggestion that he had previously stated that the vehicle was coming out of a driveway. He conceded that he can see why people would be confused. He stated that the car was exiting the space in front of the driveway.
The claimant denied that the insured driver had indicated and turned into a driveway to the right when the accident occurred. He denied the suggestion that he was overtaking the insured vehicle when the accident occurred.
It was put to the claimant that the accident did not occur as it was exiting from a driveway. The claimant stated that he does not have an exact recollection of what happened but he has a “rough idea”.
In respect of the infringement notice issued to him, he stated that it had been put on “hold” and he was waiting to speak to his lawyer about it.

The insured driver’s oral evidence

The insured confirmed under questioning from Mr Firth that from his recollection he had not travelled along Wheeler Parade before the accident. He confirmed that as he drove down the roadway there was a lot of parked cars on either side.

It was confirmed by the insured that he relied on the Uber driver app to get to the crescent of the roadway and then he used the dot on the map that appears to determined how far down Wheeler Parade he was picking up from. He confirmed that he slowed down in order to orientate himself and better identify the street numbers on the left side. It was agreed that number 15 was the first number he identified. It was also confirmed that the numbering is located on the southern side of the driveway (noting the insured was travelling from the north).
Mr Firth noted that there was a tree adjacent to the southern side of number 15, that there was no street lighting and therefore it would not be easy to identify. The insured answered that he does not recall being troubled by finding the number. However, he did answer “thereabouts” when it was put to him that the insured would have had to travel at least partially past the southern border of the driveway to be able to see the number 15.
The insured denied the suggestion that he pulled close to the driveway to assist in identifying the street numbering. He stated that seeing the number was not so important to him that he was going out of his way to see it.
Mr Firth suggested to the insured that number 12 was immediately opposite to number 15. The insured answered that it was in “the vicinity” and later stated that part of unit block 12 is opposite number 15.
The insured was questioned on the part of his police statement that forms part of the transcript mentioned above. It was noted that the police were wearing a body worn camera, however, that footage does not form part of the evidence before me. The insured was taken to the part of the transcript where he told police at the scene that he had “slowed over to here…” The insured was asked what was meant by that. He answered that he was walking down the road, and he said that when he got to the point where he saw the street number. He denied at any point pulling in between vehicles and stated that at no time did he care enough about a street number that he would waste his time pulling in between vehicles. He did state that he moved closer to the side of the road but did not stop.
The insured went on to say that he moved closer to that side of the road to identify number 15 and proceeded to pull out closer to the middle of the lane and to identify number 12 on the right side of the road. He further stated that when he moved out into the road he was “almost at the dot” (meaning the pinpointed location on his Uber driver app). He identified block numbered 12 and saw a glimpse of a person emerging from the block which he assumed was his passenger. That triggered his decision to begin indicating and proceed to turn. He stated that it was raining and he thought he would do the customer a favour. He stated that he was halfway through the turn when he heard a “whirring” sound and the collision occurred. It was confirmed that the very first time he became aware of the presence of the claimant’s vehicle was the split second before the impact.
Under direct questioning the insured confirmed that he did not look in his rear view mirror or driver’s side mirror before commencing his turn. The insured clarified under questioning from Ms Dinkha that whilst he said that he did not, he did not recall doing so and that he does not recall whether he did or not. He stated that he did not expect “under any circumstances” that there would be a vehicle travelling behind him on the wrong side of the road.

SUBMISSIONS
Claimant’s written submissions dated 10 May 2023

The submissions assert that the insured driver made an illegal right hand turn across the claimant’s path without indicating causing the collision.

Insurer’s written submissions dated 25 July 2023

Much of the submissions centre on a purported issue of “relevant insurer”. As noted above, at the teleconference of this matter the insurer’s representative agreed that the real issue in dispute was whether the claimant was wholly or mostly at fault pursuant to ss 3.11 and 3.28 of the MAI Act.
In respect of the issue of fault, the insurer notes the insured driver puts his speed at 20 kph to police, being consistent with him slowing his vehicle preparatory to make a right turn into a driveway.

Insurer’s oral submissions

Ms Dinkha submitted that the case comes down to two diametrically opposed versions of events. It was submitted that the insured gave evidence in a careful, considered and forthright manner. On the other hand, the claimant’s versions of events contained variations, with it noted that there was no mention in the version provided to police of a driveway from where the insured allegedly moved from. It was further noted the claimant was unsure of a number of important details, including distances.
It was submitted that I would have no hesitation in taking the insured at his word and therefore find the claimant to be wholly at fault.

Claimant’s oral submissions

In response, Mr Firth submitted that the versions of events of the claimant and the insured driver, when considered carefully, are not as opposed as what may first appear. Mr Firth submitted that I could accept the evidence of the insured drier and still not find the claimant to be either wholly or mostly at fault.
Mr Firth submitted that the immediate cause of the collision was the right hand turn into the driveway on the right immediately into the path of the oncoming claimant. It was submitted that the insured did so without looking in his mirrors and if he had done so the accident would not have occurred. It was further noted that the roadway did not contain a line in the middle to delineate the lanes, and the claimant was perfectly within his rights to pass him to the right.
The photographs of the vehicles at rest at the scene of the accident where relied upon by Mr Firth in submitting that they are more consistent with the claimant’s version of events, because if the collision occurred as the insured alleges, being almost in the driveway, he would not have ended up on the Eastern side of the roadway.
It was submitted that noting the conditions of it being raining and dimly lit, the probabilities are that the insured driver had to pause to find the number 15 and then makes an unexpected turn.
Mr Firth submitted that the claimant committed no breach by overtaking the insured’s vehicle. Ms Dinkha in response noted that overtaking a vehicle turning right is an offence under regulation 142 of the Road Rules 2014. Moreover, such breach is why the police issued the claimant with an infringement notice.

FINDINGS AND REASONS

Firstly, on the issue of credit I considered the claimant’s evidence to be at times confused and occasionally he was defensive in his manner. I formed the impression that some details he provided were the result of hindsight reasoning, rather than direct recollection. For these reasons, I have approached the claimant’s evidence with some level of caution, particularly when his account of events is inconsistent with other evidence.
I found the insured driver to give an earnest and honest account of events. He did appear to be emotionally invested in the proceedings, despite any personal liability to him. For this reason I considered him to at times attempt to over explain his version of events and at times become defensive and also delve into hindsight reasoning. However, overall I considered him to be a witness of truth who sincerely attempted to provide an honest account.
On the evidence, I am satisfied that on the balance of probabilities the insured driver travelled slowly down Wheeler Parade in the process of orientating himself in terms of street numbers, in order to determine where his customer pick up would be. I note that the number 15, that the insured confirms as the first street number he identified was situated on the southern side of the number 15 apartment building and after some trees/shrubbery. I also accept the evidence that at the relevant time the conditions were not ideal, noting that it was raining and overcast and very early in the morning.
Noting all the factors set out above, I make a finding that the insured driver slowed considerably at the point of number 12 on the roadway, such that he was stationary for a moment or otherwise travelling at a “crawling” pace. It is noted that the insured himself described his pace as “crawling” when giving his version of events to police.
I also make a finding that in his efforts to identify the street number to his left he moved over to the left side of the roadway. However, I do accept the insured driver’s evidence that he did not position his vehicle between two parallel parked vehicles as suggested by the claimant. In this regard, the claimant’s evidence appeared to be the result of hindsight reasoning and I note that no mention was made to police of the insured’s vehicle being sighted prior to the moment before the impact.
However, I am satisfied that on the balance of probabilities that he moved to the left of the roadway, particularly when considering the mention to police of him apparently motioning to a spot to identify the street numbering.
There are some aspects of the evidence that are not satisfactory to the point where I am not sufficiently satisfied to make a finding on the balance of probabilities. This includes exactly where the insured driver’s turn to the right occurred. Whether it was immediately at the point of number 12 or whether it was further down the roadway to the driveway of number 15. The driveway being on the southern side of the number 12 apartment building. It is apparent, however, on the balance of probabilities that the turn happened at a point between these two points.
I reject Mr Firth’s suggestion that I could make a finding in this regard based on the position of the vehicles coming to rest after the accident. In the absence of expert liability evidence from a traffic reconstruction engineer I do not consider that it is open to me to accept this submission, noting that I am not able to determine factors such as estimated speeds based on damage to the vehicles.
However, the photographs of the damage do demonstrate significant front end damage to the claimant’s vehicle and damage to the driver’s door of the insured vehicle. On this basis I make a finding that the impact occurred as the insured vehicle was making a right hand turn on the roadway. I do not accept a suggestion that the accident occurred from the insured “pulling out” from the left side of the road, which appears to be consistent with the claimant’s version of events given at the assessment conference.
Accordingly, I make findings that the insured driver had moved to the left of the roadway to identify a street number and did so on the southern side of number 15 apartment block. He did this whilst travelling at a “crawling” pace. He has then moved from that position to the left and moved to the right with his attention now fixed on locating number 12 on the opposite side. After doing so, he has at some point after the number 15 street numbering on the left and at or before the driveway of apartment 12 made a right hand turn. I also am satisfied on the balance of probabilities that the insured driver did not look in his rear view mirror or driver’s side mirror during this period.
In respect of the claimant’s actions, on the evidence I am sufficiently satisfied that on the balance of probabilities on approach the claimant decided to move around the insured vehicle who was to the left and travelling very slowly. However, as he did so, the insured has moved from that position and at some point shortly thereafter has made a right hand turn in front of the claimant who had moved to the right of the road, leaving insufficient time for the claimant to avoid the accident.
Whilst I accept the insured’s evidence of turning his indicator is likely to be the truth, noting the distances involved, specifically apartment block 12 being essentially opposite the numbering of apartment block 15, the amount of time and distance the indicator would have been activated would have been likely reasonably insufficient for the claimant to react to avoid the collision.
During the course of submissions, I addressed Ms Dinkha as to her submission that the claimant would be found wholly at fault. I stated that from the evidence given at the assessment conference I did not anticipate making such finding. I specifically referred to the insured driver’s evidence that he did not look in his mirrors, which he later clarified as him having no recollection of doing so. I stated that I considered that a reasonable person in the position of the insured driver would have looked in the rear-view mirror and/or driver’s side mirror before commencing a turn and on such basis, I anticipated making a finding that the insured driver was at least partially at fault. Ms Dinkha reiterated the submission that the claimant should be found wholly at fault and any finding of contributory negligence would be more than the threshold of 61%.
Having now considered reconsidered the evidence carefully again since the assessment conference I maintain my view that the insured driver breached his duty of care by not looking in his mirrors before commencing a right hand turn. I also consider that his indication to turn right was not sufficiently long enough in either distance or time to safely make the turn, having not looked in his mirrors. In this regard, I note the insured’s evidence as set out in para. 62 above that when he pulled out into the road he was almost at the “dot” on the Uber Driver App.
In making these findings, I have considered the police findings and the issuance of an infringement notice to the claimant. I note, however, that this is not something I am bound to follow, and it essentially amounts to nothing more than a differing opinion.
From the evidence, I gained some impression that the claimant may not have been keeping a proper lookout and perhaps was travelling at an excessive speed. However, the evidence is not to such a height that I make any finding of contributory negligence as I do not consider the insurer has discharged its onus of proof in that regard. It may be that expert liability evidence would be able to calculate with sufficient certainty the position of the vehicles, and the speed of the vehicles (particularly the claimant), in the lead up to the accident. However, I do not consider it is open to me make these findings on the evidence before me in these proceedings.
For the above reasons, I find that the claimant is neither wholly or mostly at fault.

COSTS

As a regulated miscellaneous claims assessment matter under Schedule 1 cls (3)(2)(d)&(e) of the Motor Accident Injuries Regulation 2017 (Regulation), legal costs may be awarded.
Schedule 1 cl(3)(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 $119.96 which translates to a maximum amount of $1,919 per dispute.
In a letter dated 28 November 2023 the claimant’s legal representative made a claim for “exceptional costs” in accordance with the principles espoused in the case of Moon v AAI Ltd t/as GIO [2022] NSWPIC 516. Whilst not specifically noted in the correspondence, it is assumed that the costs claim is made pursuant to s 8.10(4)(b) of the MAI Act.
In making this application, the legal representative noted that the matter was originally listed for 24 November 2023, however, was adjourned to allow a statement of the insured driver to be prepared. When the matter was heard on 28 November 2023 it proceeded for over three hours.
It is not abundantly clear from the correspondence what the claim for costs amounts to. I did request an itemised list of tasks performed which was received in a letter dated 30 November 2023. Whilst a date of each task is provided, along with a description, the amount of time claimed is not listed. Nor is any amount in monetary value set out.
It should be further noted that I do not consider any work undertaken prior to the preparation of the subject application to be claimable as an expense directly related to these proceedings.
I am satisfied that exceptional circumstances exist in this case. In this regard, the need for two separate hearings came about due to the insurer not providing a signed fulsome statement of the insured driver before he somewhat unexpectedly appeared at the first scheduled assessment conference. The assessment conference on 28 November 2023 also proceeded beyond the expected three hours.
In the absence of the claim for costs being clearly set out I give I do not make a final assessment of costs at this time. Instead, I invite the parties to come to an agreement as to the claimant’s entitlement to costs, and in the absence of same give leave to the parties to approach me within 20 business days from the date of issuance of this decision, with a request that I assess costs. Any such request should include an itemised list of items claimed, by whom, the time taken and the amount claimed.
This certificate and reasons is therefore issued on an interim basis. A final certificate and reasons will be issued once the issue of costs is finalised. It is noted that I will not accept any submissions on any matter other than costs.

CONCLUSION

For the purposes of s 3.11 the motor accident was caused by the fault of another person.
For the purposes of s 3.28 the motor accident was not caused wholly or mostly by the fault of the injured person.
Legal costs: finding that exceptional circumstances exist under s 8.10(4)(b) of the MAI Act and leave granted to the parties to approach me within 20 business days with any request to assess costs.

[2024] NSWPIC 58

13 February 2024