| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Grinter v CIC Allianz Insurance Limited [2024] NSWPIC 267 |
| CLAIMANT: | Grant Grinter |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Susan McTegg |
| DATE OF DECISION: | 23 May 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; Motor Accident Injuries Regulations 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28; claimant sustained serious injury in a motor accident on 8 July 2021; claimant was driving a vehicle which collided with the rear of a large trailer being towed by a truck; in dispute was whether the rear and side lights of the truck and trailer were on shortly before and at the time of impact; Held – on balance of probabilities lights were working on the trailer at the time of the accident; the insured truck would have been visible by the claimant at a distance of 113 metres providing sufficient time to either brake or steer his vehicle to avoid collision; the claimant ran into the back of the insured truck and trailer because he was not keeping a proper lookout; claimant was wholly at fault for accident; costs in favour of the claimant assessed on the basis of exceptional circumstances under section 8.10(4); application by insurer for an order under section 8.3(4) that it be permitted to pay legal costs to its lawyers outside of costs permitted by the Regulations on the basis of exceptional circumstances; application opposed by claimant; AAI Limited T/as GIO v Moon only available judicial guidance; in exercising discretion for insurer to pay legal costs to its lawyers in excess of the regulated amount appropriate yardstick provided where it has been found that exceptional circumstances exist to justify an order in favour of the claimant under section 8.10(4); where the insurer bears the evidentiary onus. |
| DETERMINATIONS MADE: | CERTIFICATE 1. For the purposes of s 3.11 the motor accident was wholly or mostly caused by the fault of the injured person (the claimant). 2. For the purposes of s 3.28 the motor accident was wholly or mostly caused by the fault of the injured person (the claimant). 3. The insurer is to pay the claimant’s costs incurred in connection with the claim pursuant to section 8.10(4)(b) of the MAI Act in the sum of $26,510 inclusive of GST. 4. The insurer is permitted to pay its lawyers reasonable costs for the legal services provided in relation to the claim in excess of the costs permitted by the MAI Regulations. 5. A brief statement of my reasons for this determination are attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Grant Grinter (the claimant) was involved in a motor accident on 8 July 2021. He was driving down the Pacific Highway a little south of Ballina when he collided with the rear of a large trailer being towed by a truck.
On or about 14 July 2021, Mr Grinter made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against Allianz Australia Insurance Limited, the third-party insurer of the truck / trailer he believes caused the accident (the insurer).
On 16 September 2021 the insurer advised the claimant that it accepted liability for the statutory benefits claim.
On 24 November 2021, the insurer advised the claimant it denied liability to pay ongoing statutory benefits to the claimant beyond the first 26 weeks after the accident on the basis he was “wholly at fault” in respect of the accident.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. The insurer affirmed that decision in a determination dated 17 December 2021.
The claimant has referred the issue of whether he is wholly at fault to the Personal Injury Commission (Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The Commission’s proceedings were allocated to Member Belinda Cassidy who held a number of teleconferences with the parties but was ultimately unable to conduct the assessment conference resulting in the matter proceeding before me on 21 February 2024.
DOCUMENTS CONSIDERED
On 16 November 2023 the claimant uploaded an indexed and paginated bundle of documents sought to be relied upon (claimant’s bundle). On 17 November 2023 the insurer uploaded an indexed and paginated bundle of documents sought to be relied upon (insurer’s bundle).
The recording of the emergency call made by Mr Matthews at 6.12am is also in evidence.
The parties also relied upon a supplementary report of expert Nigel McDonald dated 20 February 2024 and video footage of the accident scene showing the claimant’s vehicle alight.
During the assessment conference the insurer tendered four photographs as follows:
· photograph 1 depicts the claimant’s vehicle after the accident but before it was engulfed in flames with both passenger side doors open bearing a time stamp of 6.32am;
· photograph 2 depicts the claimant’s vehicle after the accident before it was engulfed in flames but with smoke pouring from the vehicle bearing a time stamp of 6.29am;
· photograph 3 depicts the claimant’s vehicle engulfed in flames with the truck parked further down the road bearing a time stamp of 6.39am, and
· photograph 4 depicts the back of the trailer following the accident bearing a time stamp of 7.25am.
THE RELEVANT LAW
Section 3.11 of the MAI Act states:
“(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 threshold 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%.
Note.
Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault.”
Section 3.28(1)and (2) of the MAI Act states:
“(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 threshold 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%.
There is no dispute that Mr Grinter sustained serious and therefore, non-threshold injuries.
Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Mr Grinter is wholly or mostly at fault in respect of his weekly benefits (Schedule 2, cl 3(d)), whether he is wholly or mostly at fault in respect of his treatment and care benefits (Schedule 2, cl 3(e)) and whether statutory benefits should be reduced for the claimant’s contributory negligence (Schedule 2 cl 3(g)).
ISSUES FOR CONSIDERATION
In an opening address at the outset of the assessment conference Mr Stone confirmed the following:
(a) the claimant concedes the headlights of the insured’s truck were on at the time of the accident;
(b) the claimant concedes the insured’s truck came to a halt before he pulled out onto the Pacific Highway;
(c) the claimant concedes the insured’s truck pulled out onto the Pacific Highway when he had space and it was safe for him to do so;
(d) the claimant concedes the insured’s truck gradually built up speed to about 30kmph at the time of the impact.
(e) accepting the insured’s truck stopped before turning onto the motorway and was travelling at 30kmph he would have been on the motorway for 29 seconds at the time of the accident as per the expert opinion of Mr McDonald;
(f) accepting the headlights of the insured’s truck were on at the time of the accident the claimant concedes the side marker lamps, the rear position lamp and the rear number plate lamp on the trailer would have been working if the electrical connection between the prime mover and the trailer was properly connected at the time of the accident;
(g) the claimant concedes having regard to the expert opinion of Mr McDonald if the lights on the trailer were working at the time of the accident the insured vehicle would have been visible by the claimant at a distance of 113 metres and the reaction time would have been sufficient for the claimant to brake or steer to avoid the collision, and
(h) if the lights on the trailer were not working at the time of the accident the claimant would not have seen it until 30 metres ahead and there was nothing he could have done to avoid the collision.
The factual issues in dispute are the following:
(a) whether the rear and side lights of the truck and trailer were on shortly before and at the time of impact, and
(b) whether the insured driver at some time after the impact and before the first responders arrived realised the rear and side lights of the truck and trailer were not on and connected or reconnected the link between the prime mover and the trailer to activate the rear and side lights.
THE EVIDENCE
The ambulance report
The ambulance report dated 6 July 2021[1] relevantly states:
(a) the call was received at 6.12am;
(b) the ambulance was dispatched at 6.18am, and
(c) the ambulance arrived on the scene at 6.43am.
[1] Claimant’s bundle p 9.
The report indicates in the case description:
(a) the ambulance was the first emergency service on the scene;
(b) the car was “fully engulfed”;
(c) the claimant was lying on the bitumen after self-extricating out of the back passenger door with the assistance of a “bystander” and walking 50m from the vehicle;
(d) the claimant was conscious and denied loss of consciousness, and
(e) the claimant was hypothermic with an obvious fracture to his left forearm, a 15cm laceration to his left knee, large abrasion to his left chest, a depressed chest wall, and abrasions to both hips and the right knee.
The emergency call to 000
Mr Matthews called emergency at 6.12am. During the call he confirmed fuel was leaking from the claimant’s vehicle. He also stated there was a bit of smoke and flames as soon as the car hit. When asked if the flames were still present he replied “No”.
During the call the 000 operator asked Mr Matthews if the driver of the truck was injured. Mr Matthews is heard to ask Mr Hardy “No pain anywhere” and Mr Hardy is heard to reply “No, I’m fine”.
The police report
The police report indicates the location of the accident was 300 metres north of the McAndrews’ lane on-ramp, that it was dry, dawn and the speed limit was 110kmph.[2]
[2] Claimant’s bundle p 20.
The police report provides these crash summary details:
“About 6.18am … the 60 year old male driver of a Kenworth T350 prime mover (…) towing a trailer load of concrete has entered the Pacific Hwy from McAndrews Lane, Pimlico. The 60 year old male driver has proceeded to accelerate to around 30 km/h in lane one of two before being struck from behind by a Grey Nissan Patrol being driven by a 36 year old male.
The impact has caused significant front-end damage to the Nissan patrol. The 60 year old male driver of the prime mover has stopped and attended the Nissan Patrol and was able to extricate him via the nearside passenger door. The Nissan Patrol was noted to be leaking diesel and caught fire a short time later….”
Record of interview by investigator with Senior Constable Andrew Stewart
The insurer’s investigator interviewed Senior Constable Stewart at Ballina Police station on 17 September 2021.[3] Whilst various answers have been redacted, he stated:
(a) he had been with the police for seven years and Ballina for two years [6-7];
(b) the job came through at 6.18 am [14];
(c) on arrival a vehicle was completely engulfed in flames with the Fire Brigade on scene with one patient … He’d been extricated and was being seen to by paramedics [14];
(d) it was just after 6.00am and was still completely dark. There was no other lighting at the location [90-91];
(e) he estimated the point of impact was 50 metres north of the McAndrews Lane bridge [110-113], and
(f) the rear of the trailer was caved in, the axle was bent and it was difficult to make an assessment as to whether the lighting was active prior to the accident [217].
[3] Claimant’s bundle p 66.
Application for personal injury benefits (the application)
In the application dated 14 July 2020 Mr Grinter provided the following description of the accident:
“Truck pulled out in front of me. Had no where to go and hit the back of it no breaks [sic] 100 kmph.”[4]
[4] Claimant’s bundle p 6.
Statements of Grant Grinter
Mr Grinter provided a statement to the police on 24 July 2021 by way of a body worn camera.[5] Relevantly he said:
[5] Claimant’s bundle p 125.
(a) “I was heading northbound, wide awake, travelling to work.
(b) Truck pulled out in front of me and I had nowhere to go.
(c) He literally pulled out in front of me. I don’t believe he had taillights on and I did not see him at all till last second, and it was too late.”
(d) The incident occurred about 10 past 6.
(e) It was dark and he had his headlights on low beam because there was traffic coming onwards.
(f) He was travelling at 100kmph.
(g) He was travelling northbound in the left-hand lane.
(h) In terms of the traffic “there was nothing on the road” and “there was random cars coming, like, southbound, like …”
(i) He had his seatbelt on.
(j) As soon as he hit the vehicle, the vehicle caught into flames. The flames were coming up the windscreen.
(k) He raced cars professionally and was very good with his reaction times.
(l) He had no time. He heard the flames coming up. He undid his seatbelt and went to the turn the ignition off but everything was jammed, he couldn’t turn the ignition off and he couldn’t put it into park. He couldn’t open the driver’s door.
(m) His knees were trapped and he punched and punched the dash to get his left leg free causing a massive laceration to his knee.
(n) The passenger door was smashed to bits and he couldn’t get out of it. He went to climb into the back seat. His left arm was snapped.
(o) He climbed into the back seat and realised every back window was blown in from the impact.
(p) The kid locks were on, he couldn’t get out.
(q) The fire was in the car at that stage and the owner of the truck came up to the driver’s window and said, “Were you on your fucking phone or something?”. He did nothing to help the claimant.
(r) A young fellow ran up and helped him get out of the passenger side past the booster seat. He then walked with Mr Grinter about 30 to 40 metres back and laid him in front of someone’s car to get the warmth from the engine before covering him with jumpers and a foil blanket.
(s) After walking away from the car, the truck driver pulled the truck forward. The car started rolling away and then Mr Grinter heard bangs, the fire wall blew out and it ended up in the middle of the road off to the right.
(t) He didn’t have tail lights…. and “every photo and video that every person has ever sent me … there’s no tail lights, there’s no lights, there’s no clearance lights except for one single one on the very front right, driver’s side right, front.”
(u) “I’ve got so many people forwarding me photos and videos and everything.”
(v) ‘But bang, bang, like, I didn’t see it at all. It’s a dark blue truck at dark “. “… with no lights, like. I had my headlight and I literally seen a flicker of the number plate, I think it must have been dirty, I don’t know, I just seen it flicker and I’ve gone fuck and grabbed and that’s it.”
(w) While he was lying down the truck driver came up and someone said “What, did you not feel and hear or anything like that?” The truck driver said, “I just thought my trailer disconnected”. Mr Grinter said to him “Shouldn’t you be doing your pre-checks on your truck before you take off, like a shunt test?” The truck driver ignored him and walked away.
(x) The claimant had raced cars professionally for eight years.
Mr Grinter provided a statement dated to an investigator dated 13 September 2021. Relevantly he stated:
(a) He had a Queensland driver’s license, he is familiar with the Pacific Highway and travels on it regularly. He has a relatively good driving record with only a couple of minor speeding fines [12];
(b) He purchased the Nissan Patrol seven months before the accident and drove it on a regular basis. It was in excellent physical and mechanical condition [15];
(c) He went to bed at 8.00pm the night before the accident and did not drink alcohol that night. He doesn’t use prohibited or prescription drugs [16];
(d) His alarm went off at 5.00am, he had breakfast and left for work at about 5.45am. It was dark and he had his headlights on [17];
(e) He was not in a hurry and travelled north on the Highway in the left hand lane at 100kmph. “I always travel below the speed limit” [20];
(f) He got to Pimlico. He rarely sees vehicles coming onto the highway from the McAndrews Lane on ramp [21];
(g) The first thing he noticed just as he passed the McAndrew’s Lane Bridge:
“…was the reflection off my headlights of a number plate in front of me. There was definitely no tail or other lights at the rear of this vehicle. I had not even realised that a vehicle had entered upon the Pacific Highway from the McAndrews Lane on ramp. If this vehicle had his headlights [on] I would have seen it prior. I virtually only saw the flash of this number plate on a dark blue trailer for a split second. The next moment the front of my four wheel drive impacted very heavily into the rear of the rear trailer”;
(h) He had no time to brake or take evasive action [22];
(i) The next moment after impact he saw a flash which was the airbag deploying. Then a fire started at the bonnet of his vehicle and a flame was coming up to the front windscreen. He tried to turn the ignition off and put the vehicle in park but could not as part of the engine had come into the interior of the vehicle.[24];
(j) He was conscious and remained conscious.
“I could see flames starting to come into the car. I went into survival mode and I started to punch at the dash to free my left leg. I punched the dash with my right hand as my left arm had clearly been fractured and was sitting at a strange angle. I managed to free my left leg and I went to open the driver’s door but that was jammed. I then tried the front passenger door that was also jammed. I then climbed between the two front seats to the back seat. I had a baby seat and a booster seat in the back and I had to climb between them.” [25];
(k) He stated:
“At this point elderly male on the driver’s side of my vehicle. … All the windows on my vehicle were smashed and my vehicle was still on fire. To my surprise this elderly male said loudly to me ‘What, were you on your fucking phone or something?”
The claimant said:
“I don’t even know where my phone is. To my further surprise this male then just huffed and walked away. I was still very much in danger as the fire was in the front seats at this stage. At no stage did this male attempt to get me out or help me.” [26];
(l) The back doors were “child locked” and would not open. A younger male arrived at the scene and said “Matey, we need to get you out of this car fast”. Mr Grinter said the elderly male was nearby and he heard him say “I am moving my truck away from the fire….”. The younger mail then opened the rear door and he reached in and put his arm around me and lifted me out. This male then supported me to an area over to where there was another vehicle. At this time my vehicle was still on fire. The truck and trailer I hit was moved away. When it moved my vehicle rolled approximately 15 to 20 metres forward on the second lane of the highway. The front tyres blew out from the first and it stopped on the road.[27];
(m) The young male laid Mr Grinter down in front of his car and put jumpers and foil over him [26]]. While he lay there the car went completely up in flames;
(n) The elderly male came over to where Mr Grinter was. The younger male said to the elderly male “Didn’t you see him or feel him hit you?” The elderly male said, “I thought my trailer disconnected on the highway.” [29];
(o) He was driving safely in the left lane and that:
“…the only reason the accident occurred was this elderly male had pulled out onto the Pacific Highway very suddenly and without warning. He did not have headlights on and had no safety lights on the trailer. There is no street lighting at that intersection and at no time did I see the truck enter onto the Pacific Highway. This elderly male had not pulled out onto the highway in a safe manner. My headlights were on.” [38]; and
(p) It was still full dark when the accident occurred. The truck driver did not have any lights on. It was very sudden. One moment there was nothing in front of me and the next moment the dark blue object was in front of me. I only saw the reflection of his number plate for a second. He estimated the truck was travelling at less than 20kmph. The impact was just past the bridge, about 50 metres.
“In one of the media photos he has his lights on but these were not put on till after the accident happened. Even with his lights on he still does not have clearance lights down the side, except for one single one on the driver’s side front corner.” [43]
Oral evidence of Grant Grinter
Mr Grinter conceded that he had only recently accepted that it was not correct that the insured truck pulled out in front of him. Mr Grinter agreed he did not see the truck at all, although he no longer alleges the insured truck did not have its headlights on.
Mr Grinter said his vehicle was on fire whilst he was being rescued and reiterated that the fire was in the front seat when Mr Hardy spoke to him (paragraph 26 of his statement dated 13 September 2021.
Mr Grinter was shown the four photographs referred to above. He denied his vehicle was not on fire before he was extricated from the vehicle, stating the fire was in the footwell on the left hand side of the vehicle.
Whilst Mr Grinter was directed to photograph 1 which showed both the front and rear passenger doors open he was adamant he had not been able to open the front passenger door and went to the rear passenger door to exit the vehicle.
Mr Grinter was shown photograph 2 and asked to confirm it showed tail lights on the truck. He did not agree insisting the light which could be seen was the clearance light and not the trailer light.
Mr Grinter was adamant that at no point did the truck driver help him. Even though his vehicle was on fire he insisted Mr Hardy did not help the other driver get him out of the car.
Mr Grinter was adamant that he had provided to police and his lawyers photographs which showed no clearance lights on the truck except for one single one at the very front right.
Mr Grinter was asked if he saw the truck driver return to his vehicle and pull the truck forward. Mr Grinter said he did not see Mr Hardy return to his truck but he said he heard the truck and turned around and saw the truck move away.
Statements of Garry Hardy
On 20 September 2021, Mr Hardy advised the insurer’s investigator he did not want to be interviewed.[6] He did however respond to questions as follows:
“Q. Firstly, the other party has alleged that you did not stop at the intersection where McAndrews Lane meets the Highway and you must have come straight out on the highway.
A. That is not right. The other bloke wouldn't have a clue.
Q. The second and more important aspect is that the other driver has alleged that when you came out of McAndrews Lane you did not have your lights on your prime mover and there were no side lights on the trailer, except for one up near the cabin on your driver's side.
A. That is bullshit. Of course, I had my lights on. How would I be able to see the road if I didn't have them on? It was pitch dark at the time.”
[6] Claimant’s bundle p 6.
On 26 October 2023, Mr Hardy gave a statement to the insurer’s solicitor.[7] Relevantly he stated:
[7] Insurer’s bundle p 12.
(a) He had in excess of 30 years professional driving experience.
(b) On 6 July 2021 he was the driver of the prime mover and trailer.
(c) On the morning of the accident, he arrived at the yard of Rose Haulage. He started the truck to warm it up, left the truck running while he parked his car, got his bag with his smoko and log book and walked back to the truck. [3]
(d) He entered the truck, and as part of his preparation put on the truck lights, including the hazard lights and took out a metal pole to check the tyres of the prime mover and trailer. He walked around the entire truck inspecting every tyre and that the lights and blinkers were working. [4]
(e) After the inspection he entered his log book and left the yard. He drove along McAndrews Lane and until he reached the intersection with the Pacific Highway where he stopped and checked for approaching vehicles. He saw two vehicles in the distance but determined there was enough time to enter the roadway. [5]
(f) He turned onto the Pacific Highway increasing his speed as he moved along the highway. [6]
(g) After a short distance he felt a bump to the rear of his vehicle. He thought the trailer had fallen off so he looked in his mirrors and saw the claimant’s car and realised it had hit his truck. [7]
(h) He pulled the truck over, jumped out and went to check on the other driver who appeared to be asleep or unconscious. He tried to open the driver’s door but he couldn’t. He tried the passenger door behind the driver but it was also jammed so he went to the front passenger door. Another person arrived and after a short time the driver woke up and crawled out the back of the vehicle. [8]
(i) The other witness and Mr Hardy assisted the driver back to the witness’s car which was parked closer to the overpass bridge. The witness had blankets in his car which we put over the driver. [9]
(j) Whilst still with the driver and witness Mr Hardy called his boss Jade Rose. [10]
(k) He did not move his truck at any time after he pulled it over to the side of the roadway until the tow truck arrived. [11]
(l) After exiting the truck to render assistance to the driver Mr Hardy, he did not go back to his truck until after emergency services arrived. He stayed with the driver until help arrived. [12]
(m) He did not at any time after the collision alter the connections between the prime mover and the trailer. [13]
Oral evidence of Garry Hardy
When questioned Mr Hardy conceded he had no actual recollection of what he did at the haulage yard on the morning of the accident and his evidence was based on what he normally did. Mr Hardy agreed his usual start up routine was as follows:
(a) get the truck running;
(b) parking the car;
(c) putting his bag with his smoko and logbook in the truck;
(d) putting the truck lights on including the hazard lights;
(e) checking the tyres with a pole;
(f) inspecting the tyres, and
(g) inspecting the lights and blinkers on the truck were working.
Mr Hardy agreed he did not drive the insured truck and trailer the day before the accident and it was possible it was driven by someone else. When asked if it was the driver’s responsibility at the end of the day to clean up the truck Mr Hardy said he would usually check the truck was tidy and it was generally washed once a week. However, if it was very dirty you would probably “hit it with the fire hose and make it reasonable”.
Mr Hardy stated the trailer had attached to it a skip bin, a 45 cubic metre bin containing solid concrete. The skip bin is winched on and off the trailer.
Mr Hardy agreed the truck was not as well illuminated at the rear as other trucks. Mr Hardy agreed the bin itself had no lighting system on it and that there was no lighting visible from the rear of the truck above the tray level although Mr Hardy stated the lights down the side of the truck and on the mirrors would be visible if coming up behind the truck.
Mr Stone questioned Mr Hardy about the presence of dirt across the number plate as depicted in photograph 4. Whilst Mr Hardy conceded there was dirt on the number plate he identified dots on the photograph as oil. He also agreed that about three quarters of the reflective strip beneath the number plate was covered in dirt.
Mr Hardy also agreed that it was difficult to see that that mudflap beneath the number plate was white or cream. The photograph depicts a dirty mudflap. He also agreed that the mudflap if white would have some reflective quality. He conceded he had made no attempts to clean either the reflective strip or the mudflap before commencing his trip on the morning of the accident.
Mr Hardy agreed that visibility would be reduced where the reflective strip was not “nice and shiny” although he insisted it could still be seen. He agreed he could have cleaned it more but would not concede that it was unsafe.
Mr Hardy also agreed that mud could be thrown up on the light above the number plate and onto the set of three lights which sit above the light for the number plate but if he had noticed they were muddy he would have wiped his hand over it, although on the day of the accident it was night time and he could not see the mud. Surprisingly, Mr Hardy was not prepared to agree with the proposition that the reflective material is more important at night than it is by day.
Mr Hardy was defensive when questioned about his reluctance to cooperate with the investigator from Allianz in September 2021.
In terms of his recollection of what occurred Mr Hardy agreed it was the better part of two years before he was asked to give a detailed account of the accident although he stated every time he drove past the patch on the road at the accident scene he thought about it a bit.
Mr Hardy stated he rang his boss after he helped moved the claimant underneath the bridge in front of the other car.
When asked if it was part of his routine to check that the plug that connects the electrics in the prime movement to the electrics in the trailer was securely fastened Mr Hardy replied, “If it wasn’t fastened the lights wouldn’t work.” Mr Hardy stated it was awkward to check the connection and it was either working or it was not and whilst he had no specific recollection of checking whether the lights were working on that particular day it was his common practice to do so and in any event if the lights were not on it would have been obvious. Mr Hardy also stated the plug is either connected or it’s not. He stated, “It’s a tight fit, it’s – if it disconnected it would stay disconnected.”
Mr Hardy categorically disagreed that that he was driving the truck without the running lights on, that the collision occurred because he didn’t have the running lights on or that he may have connected the running lights after the accident occurred and before he went back to provide assistance to the claimant.
Mr Hardy disagreed that he provided minimal assistance at the scene of the accident, or that after the accident he moved his vehicle forward a short distance to get it away from the vehicle that was on fire. Mr Hardy stated there was no way he went back to the truck because he had not left the claimant and did not go back to the truck until he had to get his licence out for the police. Mr Hardy specifically stated:
“Because when I left the truck to go to the four-wheel drive to get him out I went to the car. When we got him out we – we – we helped him back to the bridge and he lied down in front of the other bloke’s vehicle and he got him a – a – a rug thing to put over him what was – like alfoil, that’s why I though he was a first aid-type person and we were there talking to him and then the vehicle started to smoke a fair bit and the bloke – the injured driver was saying, ‘what happened to the vehicle?’. And I said, ‘It’s smoking.’ And then I took a picture and then – and then there was a bit of a noise, a boom noise and then we – the car had caught on fire so I took a picture of it and then I showed him on my phone, I said, ‘This is the – this is your car now, it’s on fire.’ You know, and I hadn’t gone back to the truck from when I got out of the truck to render assistance to him to …”.
Statements of Benjamin Matthews
Mr Matthews gave a statement to police on 17 July 2021.[8] Relevantly he stated:
[8] Claimant’s bundle p 59.
(a) He was driving north from his home towards Ballina in the same direction but behind Mr Grinter.
(b) He was travelling at 100kmph “and it was still quite dark”. There was minimal traffic.
(c) As he got close to the McAndrews Lane overpass,
“I saw a ball of flames in front of me and car go sideways from the left-hand lane towards the right hand-lane. I had to brake quite hard but pulled my car over to the side of the road, put my hazards on and went up to the vehicle to see if I could help the bloke”.
(d) He was able to help Mr Grinter out of the car through the rear left hand door. He stated the driver of the truck had stopped and came back to help him. He says the driver “mentioned to me that he thought his trailer had fallen off.” The truck looked like it was traveling north in the left hand lane.
(e) Mr Matthews did not see the 4 x 4’s brake lights come on but he was maybe 5 seconds behind it.
(f) At the time there wasn’t any traffic in the overtaking lane.
On 17 September 2021, the investigator had a conversation with Mr Matthews as follows:[9]
[9] Claimant’s bundle p 59.
“Q. You were following behind the Nissan Four wheel drive prior to it impacting with the rear of the trailer on the Pacific Highway?
A. Yes. I would have been about 5 seconds behind it. I just saw it swerve slightly to the right and then a flame came out of it. I then saw the accident scene and stopped. I got the male out of the back of his car. It was well on fire by this time.
Q. At any stage did you happen to see the truck and trailer come onto the Pacific Highway from McAndrews Lane?
A No. I was behind the four wheel drive. About 5 seconds further back. I didn't see the truck come out. It is a badly designed intersection as it virtually has no turning merging lane onto the highway. It is a dangerous intersection as trucks come out of there with cars coming along at 110 kilometres an hour.
Q. At any stage did you notice if the truck and trailer had its lights on when it came out onto the Highway?
A. No. I didn’t see it come out.
Q. Do you know if the truck had its lights on later when the emergency services were at the scene?
A. It was not something I was looking for. I don't know.
Q. Do you know what speed the four wheel drive may have been travelling at?
A. Probably 100 to 110 kilometres an hour.
Q. Do you know if the driver of the four wheel drive put his brakes on prior to the impact?
A. I don't think so. I think he just swerved but it was too late.”
Oral evidence of Benjamin Matthews
Mr Matthews stated when he approached the vehicle it was smashed up and not moving. He did not recall observing any flames whilst getting Mr Grinter out of the vehicle, although he observed flames five to 10 minutes later.
Mr Matthews stated the truck was further up the road, 75 to 100 metres in the left lane at the edge of the road. He was asked if he saw the truck driver go back to the truck and move it and replied, “not that I recall”.
When asked if there was enough light to see the car in collision with the truck Mr Matthews said he saw a ball of flame which was the car. He parked in the underpass about 50m from the car. He said initially he walked towards the car because he assumed any occupant was dead but then saw the claimant moving and changed his pace. Mr Matthews said he approached the driver’s door which he could not open, the rear driver’s door which he could not open, the passenger door which he could not open and then approached the rear passenger door. He said Mr Grinter moved reasonably well on his own but needed help to get past the car seat.
Mr Matthews helped Mr Grinter back to his car before calling 000. When asked if the driver of the truck provided assistance Mr Matthews could not recall although he said he had assistance from at least two persons.
Mr Matthews was aware of fuel on the road. He said he made no direct observation of flames inside the front passenger footwell. When asked if he saw flames inside the car Mr Matthews said he was not looking for flames, his primary concern was getting Mr Grinter out of the car.
When asked if it was possible the truck driver went back to the truck and moved it Mr Matthews said his primary focus was on the call to emergency services. He said he did not see the truck driver move the truck but it was a possibility.
Local court proceedings
On 8 July 2022 proceedings in the Local court at Ballina against Mr Grinter for negligent driving were withdrawn and dismissed.
Statement of Jade Rose
Mr Rose provided a statement dated 28 March 2023. He is the owner of the vehicle driven by Mr Hardy. He states on arrival at the scene all lights on the trailer except the damaged rear tail lights were in working order.
He provided photographs of the trailer which showed the following lights to be illuminated:
· the running light above the middle wheel of the three rear wheels;
· the light on the mudguard of the front wheels of the trailer together with three running lights along the left hand side of the trailer, and
· the light on the mudguard of the front wheels of the trailer together with three running lights along the right hand side of the trailer.
He was not aware of any problems with the trailer lights [11].
In a further statement dated 14 November 2023 he stated when he arrived at the scene he met up with Gary Hardy who was under the overpass with the driver and other people. He walked to the truck to get a fire extinguisher and the lights of the vehicle were on.
Experts
Dr R T Casey, mechanical engineer provided a joint report to both parties dated 30 July 2023.[10] He explains:
(a) Having looked at a photograph of the truck he indicated there was a rear registration illumination device, rear position lamps, side marker lamps, reflectors and a combination stop lamp, reverse lamp and park lamp on the truck.
(b) The lights of the trailer are powered by a direct electrical connection from the truck through a multi-core electrical cable running alongside the pneumatic hoses that activate the brakes.
(c) He noted that the side marker lamps, rear position lamp and rear number plate lamp appeared to be functional. It follows that if the electrical connection between the prime mover and the trailer was properly connected and the head lamps were switched on, those lamps would have been working properly. Furthermore, if the park lamps, brake lamps and indicator lamps on the trailer were working at the time of the incident and the trailer was properly electrically connected to the prime mover, then these lights would have been working at the time of the Incident.
[10] Claimant’s bundle p 145
Mr Nigel McDonald, civil engineer provided a joint collision reconstruction report dated 25 September 2023. He says:
(a) it was civil twilight at 6.14am on 6 July 2021 at Pimlico and dawn at 6.40am;
(b) each vehicle shows a pattern of offset impact;
(c) the insured truck travelled around 120 metres along the Pacific Highway from McAndrews Lane to the point of impact;
(d) the point of impact was near the northern side of the overpass in lane 1;
(e) the likely speed of the truck was 30kmph and at that speed he would have been on the motorway for between 14 and 29 seconds; 14 seconds if he had not stopped before turning or 29 seconds if he had stopped;
(f) if the lights were ineffective or not operating – the claimant would not have seen the truck until 30 metres ahead and nothing could have been done to avoid it, and
(g) if the lights were on the claimant would have seen the truck at 113 metres and with reaction time would have braked or steered to avoid it.
Mr McDonald provided a supplementary report dated 20 February 2024. He was asked to assume:
(a) the insured truck’s headlights were on low beam, and
(b) there were no other vehicles or other objects on the roadway ahead of the insured vehicle within the beam distance.
Mr McDonald concluded:
(a) a driver approaching the rear of another vehicle would identify the presence of the other vehicle by the pattern of lights and reflectors on the rear;
(b) in the absence of effective lighting and/or reflectors an approaching driver is unlikely to identify the presence of a truck from the truck’s headlight illumination alone at a time and distance to be able to avoid a collision, and
(c) he was not able to determine if the tail lights on the insured vehicle were operating effectively.
Insurer’s submissions
In written submissions dated 4 November 2022 the insurer notes the following salient points:
(a) photographic evidence taken at the scene of the accident shows the trailer with headlights and trailer lights illuminated:
(b) the independent witness Mr Matthews does not assist in proving or disproving the lights were illuminated, and
(c) there is no allegation of an absence of lights on the truck in the application for personal injury benefits.
Ms Allan further submitted at the conclusion of the evidence as follows:
(a) whilst Mr Hardy was completely honest about his lack of recollection of that particular morning his routine was to always check around the truck including for the lights before taking the truck out;
(b) it is conceded that the headlights were working and the only way in which the taillights would not be working was if the connecting cable was not attached;
(c) Mr Hardy’s evidence was that the cable was firmly attached and could not become dislodged during travel;
(d) there was nothing in the police investigation which suggested that the truck did not have its taillights working;
(e) there is no evidence from anyone who saw Mr Hardy go back to reconnect the lights and more importantly Mr Hardy said he did not do so;
(f) Mr Grinter says he heard the truck being driven but did not see Mr Hardy get into the truck;
(g) Mr Matthews does not confirm one way or the other whether the truck driver went back to the truck, although he did not see it happen;
(h) the claimant’s case is based on an inference that the trailer was not illuminated because the claimant did not see it until he was virtually on top of it and had no time to react;
(i) it is nonsensical to suggest that in an emergency situation where a vehicle was on fire Mr Hardy, would go back to his truck to reconnect a cable;
(j) Mr Grinter exaggerated the extent of the fire where his evidence that the fire was up on the windscreen and then in the front seats of his car was not borne out by the photographs taken after the claimant was extricated from the vehicle which show smoke and some spark at the bottom of the car;
(k) Mr Matthews agreed he initially observed a fireball but did not observe any flames when he assisted Mr Grinter in getting out of the car, although he was clear that his focus was on assisting the claimant;
(l) the evidence of the claimant in respect of the failure of Mr Hardy to help him is inconsistent with the evidence of Mr Hardy and the evidence of Mr Matthews in his statement to police where he said he and the truck driver helped the claimant get out of the car;
(m) the position of the truck depicted in the photographs is consistent with the evidence of Mr Hardy who stated when the truck came to rest after the collision it was 75 to 100m down the road half straddling the slip lane and the left-hand lane;
(n) the failure of the insured driver to clear the mudflaps does not lead to the inference that he did not check the lights, noting it was pitch black at the time he would have been checking the lights and it is doubtful dirt on the mudflats would have been visible, and
(o) the accident was wholly caused by the claimant’s negligence in failing to keep a proper lookout.
Claimant’s submissions
The claimant’s clearly articulated position in relation to the dispute is that:
(a) the headlights of the insured’s truck were on at the time of the accident;
(b) the insured’s truck pulled out onto the Pacific Highway when he had space and that it was safe for him to do so;
(c) the insured’s truck gradually built-up speed to about 30kmph at the time of the impact;
(d) the rear lights and side lights of the truck and its trailer were not on at the time of the impact, and
(e) the insured driver (Mr Hardy) at some time after the impact and before the authorities arrived realised his rear lights and side lights were not on and returned to his truck and connected or reconnected the link between the prime mover and trailer and activated the rear lights and side lights.
At the conclusion of the evidence Mr Stone made the following submissions:
(a) the statement of Mr Hardy was at best misleading and maybe even false. He presented the steps taken in preparation for his trip that day as his actual recollection when he readily conceded he did not remember what he did on that morning but was reliant on his usual practice;
(b) Mr Hardy has no actual recollection of checking his lights that morning, all he can say is this what I usually did, not even what he invariably without fail did;
(c) Mr Hardy was not responsible for the connection between the truck and the trailer and it is not known who, when or how the connection was made;
(d) Mr Hardy was prepared to drive a vehicle onto the road indifferent to the state of the reflectors. It is nonsense to suggest reflectors might be more valuable in the daytime than the night time. The entire exchange of questioning about the state of the vehicle reflects poorly on the insured driver’s credit, particularly where he was not prepared to make reasonable concessions;
(e) If the insured driver was not prepared to take the time to ensure the reflectors could do their job by taking five minutes with a fire hose to clean them, Mr Stone asks what else hasn’t he taken the trouble to do properly;
(f) accepting the truck headlights were on does not prove the trailer’s lights were on;
(g) realising the rear and side lights were not on the insured driver could have reconnected the trailer headlights before he left his truck or he could have returned to his truck and connected the link between the truck and the trailer sometime after the impact and before the authorities arrived;
(h) the claimant’s account should be preferred where he provided an account two days after coming out of hospital and where he gave a further consistent account to an Allianz investigator two months later. Mr Hardy on the other hand does not provide a detailed account until over two years after the event and passes of usual practice as his actual recollection;
(i) looking at the cooperation of each man, the claimant cooperated with the police and the Allianz investigator whilst the insured driver refused to cooperate with the investigator. This difference in cooperation speaks to the claimant’s character and credit;
(j) the claimant gave his evidence without making submissions, without trying to add things in, without providing explanations when none was sought and without trying to justify whilst Mr Hardy gave non-responsive answers, attempted to work exculpatory material into his answers, refused to make reasonable concessions and was an advocate in his own case. Mr Stone submitted the insured driver was a less impressive witness;
(k) there is no reason not to accept the claimant’s account that the fire was in front of him and by the time he was emerging from the vehicle it was in the adjacent footwell. He does not say that the flames were still licking at the windscreen for the entire time it took to exit the vehicle, whilst Mr Matthews was focused on the rescue and not the fire assessment;
(l) photograph 1 depicts lights under the vehicle illuminating the bitumen and visible orange glows which suggest something slowly smouldering, photograph 2 suggests that whatever it was that was burning had dropped and started to ignite the diesel on the roadway, whilst in photograph 3 the vehicle was fully aflame. This sequence of events is consistent with some residual fire in the footwell coming up from some part of the engine bay lining. Whilst Mr Matthews suggested the fire had subsided that does not mean the fire was out or that there were no flames, just that it had subsided;
(m) Mr Stone submitted Mr Hardy painted himself as somebody who rendered a good deal of assistance although he does not actually describe any. He described looking, trying to open the front passenger door but does not suggest he helped carry Mr Grinter back to Mr Matthew’s car;
(n) if the vehicle was as well-lit as Mr Hardy asserts why didn’t the claimant see it and why didn’t Mr Matthews see it. There is no evidence to show that Mr Grinter was distracted in his vehicle;
(o) it is necessary to weigh up the inherent probability of somebody who’s given no evidence of being distracted, is freshly awake, is off to work, on a familiar trip, who is apparently a careful and cautious driver, has experience as a professional race driver and yet he runs into the back of a truck against the inherent probability of someone who admits they can’t remember their pre start up routine, who doesn’t care enough about safety to clean the reflectors, who forgot to do a safety check that morning and having realised plugs something in after the accident, and
(p) where there are two conflicting accounts and it is not possible to find that one account is more probable than the other the insurer will fail to discharge its onus that the claimant is wholly or mostly at fault.
Insurer’s submissions in reply
In submissions in reply Ms Allan submitted the insurer driver did make a reasonable concession when he conceded he couldn’t remember precisely what he did three years ago. Furthermore, it’s something he did every single day, it was his usual routine and there is no reason to expect that this would not have happened on the day of the accident.
Whilst Mr Hardy did not want to sit down with the investigator in the early days after the accident Ms Allan submitted he has demonstrated his cooperation by being available for questioning before the Commission, noting he was not compelled to attend.
FINDINGS
Factual findings must be supported by logically probative evidence and any inferences drawn must be reasonably open on the facts.[11]
[11] Australian Broadcasting Tribunal v Bond (1990) CLR 321; [1990] HCA 33 at [367].
Agreed facts
The following facts are not in dispute:
(a) the accident occurred just after 6.00am on 6 July 2021, it was still dark;
(b) the claimant was the driver of a Nissan Patrol vehicle in excellent mechanical condition;
(c) the claimant was well rested, did not drink alcohol the night before and does not use prohibited or prescription drugs;
(d) the claimant was familiar with the Pacific Highway, he was not in a hurry and was travelling about 100kmph;
(e) the point of impact was about 50 metres north of the McAndrews Lane bridge on the Pacific Highway at Pimlico;
(f) the insured driver has over 30 years professional driving experience
(g) at the time of the accident the insured driver was driving a truck and trailer to which was attached a skip bin containing concrete;
(h) the insured’s truck pulled out onto the Pacific Highway when he had space and when it was safe for him to do so;
(i) the insured’s truck gradually built up speed to about 30kmph at the time of the impact;
(j) the headlights of the insured’s truck were on at the time of the accident;
(k) accepting the headlights of the insured’s truck were on at the time of the accident the side marker lamps, the rear position lamp and the rear number plate lamp on the trailer would have been working if the electrical connection between the prime mover and the trailer was properly connected at the time of the accident;
(l) if the lights on the trailer were working at the time of the accident the insured vehicle would have been visible by the claimant for 113 metres and the reaction time would have been sufficient for the claimant to brake or steer to avoid the collision;
(m) if the lights on the trailer were not working at the time of the accident the claimant would not have seen it until 30 metres ahead and there was nothing he could have done to avoid the collision, and
(n) the claimant exited the vehicle through the rear passenger door with the assistance of the witness Mr Matthews.
Facts in dispute
The pre-check
In his statement of 26 October 2013, Mr Hardy portrayed his usual pre-check routine as what he actually did on the morning of the accident when, in fact, he had no independent recollection of what he did in the yard that morning. This is not surprising. Mr Hardy is an unsophisticated witness and at the time of providing his statement may not have understood that it was important to delineate between his usual routine and his actual recall and, indeed, it is not apparent if that distinction was ever explained to him.
Not only had Mr Hardy not driven the insured truck the preceding day it was still dark when he was in the yard before commencing his journey on the morning of the accident. Assuming he followed his usual pre-check routine it is unlikely the dirt on the mudflaps or on the reflectors would have been apparent to him. I am not prepared to rely on the mud on the reflectors on or the mudflaps to conclude that Mr Hardy was lax in his pre-check routine on the day of the accident.
In the absence of any independent recollection, whilst I cannot be categorical about what steps Mr Hardy took to inspect his truck and trailer in the yard on the morning of the accident, I find on the balance of probabilities, having regard to his 30 years’ experience as a professional driver it was more likely than not that Mr Hardy undertook his usual pre-check routine including walking around the truck to inspect the lights before leaving the yard that morning.
Whether Mr Hardy assisted Mr Matthews at the scene
Mr Grinter was adamant that Mr Hardy did not render any assistance at the scene, although he recalled speaking to him whilst he was still in the car and again after he had been extracted from the car and was lying on the ground in front of Mr Matthews car.
When he was questioned at the assessment conference Mr Matthews was unable to recall if Mr Hardy assisted him with Mr Grinter although he thought he had received assistance from at least two persons. However, when he spoke to the police on 17 July 2021 he said that the driver of the truck stopped and came back to help him. This is a contemporaneous account and is consistent with the evidence of Mr Hardy who stated he assisted Mr Grinter back to the witness’s (Mr Matthews’) car. In his statement Mr Hardy said he stayed with the driver until help arrived. This is consistent with the 000 emergency services call. In the recording of that call Mr Matthews is heard to speak to Mr Hardy and Mr Hardy is heard to reply which places him in the vicinity of Mr Matthews at that time.
Even though Mr Grinter retained amazing presence of mind in his attempt to exit his vehicle it must have been a terrifying experience to say nothing of the serious injury he had sustained. In these circumstances it is not surprising Mr Grinter was not aware of any assistance provided by Mr Hardy and in fact, was hostile towards him after Mr Hardy had accused him on being on his phone at the time of the accident.
Whether Mr Grinter witnessed flames in the car
It is clear from the evidence of Mr Matthews that there were flames coming from the claimant’s vehicle because he braked hard and pulled over after he saw a ball of flames in front of him coming from the claimant’s car.
It is also apparent from the recording of the 000 call to emergency services that there was smoke and flames at the time of the collision although by the time Mr Matthews was on the phone to the 000 operator the flames were no longer present.
Certainly, the assertion by Mr Grinter that he saw flames on the windshield is consistent with the flames observed by Mr Matthews. I am also satisfied that even though those flames had subsided there may still have been flames visible in the passenger footwell having regard to the orange glow which can be seen underneath the claimant’s vehicle in photograph 1. Even though Mr Matthews did not observe any flames when he assisted Mr Grinter to exit the vehicle it was clear his focus at that time was on getting Mr Grinter out of the vehicle. This is not surprising considering he was aware of fuel on the road and had previously seen flames emanating from the vehicle. Clearly there was a sense of urgency in extracting Mr Grinter and moving away from the vicinity of the vehicle.
Whether Mr Hardy moved the truck following the accident
On 24 July 2024 in his body cam statement Mr Grinter said “after walking away from the car, the truck driver pulled the truck forward. The car started rolling away…” and in his subsequent statement he said he heard the elderly male say, “I am moving my truck away from the fire …” and “The truck and trailer I hit was moved away. When it moved my vehicle rolled approximately 15 to 20 metres forward …” and in his oral evidence Mr Grinter said he did not see Mr Hardy return to his truck but he heard the truck and turned around and saw the truck move away.
In his statement dated 26 October 2023 Mr Hardy said he did not move his truck at any time after he pulled it over to the side of the roadway. In his oral evidence he denied moving his truck or returning to his truck after the accident because he had not left the claimant. He was able to describe in some detail the assistance provided to the claimant by Mr Matthews.
In his oral evidence Mr Matthews stated the truck was further up the road, 75 to 100 metres away in the left lane. When asked if the truck driver went back to the truck and moved it he replied, “not that I recall”. However, he subsequently said his focus was on the call to emergency services and whilst he did not see the truck driver move the truck it was a possibility.
The evidence of Mr Grinter suggested that the truck was close to the claimant’s vehicle and moving the truck allowed his vehicle to roll 15 to 20 metres forward. However, there is no evidence the truck stopped near the claimant’s vehicle. The truck is not visible in photograph 1 which shows the claimant’s vehicle after he had exited the vehicle but before it was engulfed by flames and I cannot be satisfied that the sequence of events was the truck moving forward followed by the vehicle rolling where there is no evidence the truck was ever in close proximity to the vehicle following the accident. Furthermore, it is clear from the evidence of Mr Matthews that the truck was already some distance up the road at the time he arrived to render assistance.
There is some difficulty with the timing of these events, although it seems from Mr Grinter’s statement and his oral evidence that he says he heard the truck and turned around when he was being supported to the area where he lay down. I have already indicated I accept the contemporaneous account provided by Mr Matthews where he said the driver of the truck came back to help him and I note this evidence is corroborated by the evidence of Mr Hardy.
As to whether Mr Hardy returned to his truck to move it after Mr Grinter had been removed from the vehicle and was lying on the ground I have already indicated I accept Mr Hardy remained with Mr Matthews to render assistance to Mr Grinter whilst Mr Matthews was talking to emergency services.
I prefer the evidence of Mr Hardy that he did not return to his vehicle, that he assisted Mr Matthews with Mr Grinter after he was extricated from his car and remained in the vicinity of the claimant whilst he was lying on the road in front of Mr Matthew’s car.
I accept Mr Hardy’s account, that he did not return to his truck until he had to retrieve his licence at the request of the police.
Whether Mr Hardy connected or reconnected the link between the prime mover and trailer
I have concluded Mr Hardy did not return to his truck after the accident and before the first responders arrived.
The only other question is whether he realised the rear and side lights of the truck and trailer were not on and he connected or reconnected the link between the prime mover and the trailer to activate those lights before leaving the truck to render assistance.
The only relevant evidence, other than the assertion of the claimant that those lights were not on, is the evidence of Mr Hardy. He categorically denied that those lights were not working or that he connected the lights after the accident and before he went back to assist the claimant. It is inexplicable that Mr Hardy having observed the claimant’s vehicle in his mirror and realised it had hit his truck would take the time to reconnect lights before jumping out and rendering assistance to any occupant of that vehicle. I find this scenario unlikely. Indeed, in his oral evidence Mr Hardy stated it was awkward to check the connection and it was either working or it was not.
Whether lights on the trailer were on shortly before and at the time of impact
It is conceded that the headlights were working and the only way in which the taillights on the trailer would not be working was if the connecting cable was not attached. However, photographs taken at the scene of the accident shows the trailer with lights illuminated. To conclude that Mr Grinter collided with the rear of the trailer because the lights were not working I would have to be satisfied that Mr Hardy either returned to the truck to reconnect the lights or that he reconnected the lights before leaving the truck.
There is no evidence that Mr Hardy went back to reconnect the lights or that he reconnected the lights before leaving the truck, only the assumption that he must have done so where the claimant did not see the truck before colliding with the rear of it. Mr Grinter did not see Mr Hardy get into the truck and importantly Mr Hardy says he did not do so.
Where it is accepted that in photographs post-accident there are lights on the trailer and where I have found the insured driver Mr Hardy did not reconnect the lights prior to leaving his truck following the accident and nor did he return to the truck to reconnect the lights prior to the arrival of the first responders, I find the lights on the trailer were working at the time the accident occurred.
The reliability of the evidence generally
In considering the reliability of the claimant’s evidence I note the following assertions made by the claimant were not borne out by the evidence and were, quite correctly, abandoned by the claimant at the assessment:
· that the headlights of the insured’s truck were not on at the time of the accident;
· that the insured’s truck did not come to a halt before he pulled out onto the Pacific Highway, and
· that the insured’s truck pulled out onto the Pacific Highway directly into the path of the claimant’s vehicle leaving him with “nowhere to go”.
It seems that it was so inexplicable to the claimant that he could have been at fault in running into the back of the insured truck that he drew those conclusions, which he has now conceded were wrong, but which explained how this inexplicable event could have occurred.
Where Mr Grinter’s recall as to those matters was not accurate it is difficult to be confident as to the reliability of his evidence as to the lighting on the truck and whether Mr Hardy returned to his truck to move it and/or reconnect the lights.
The criticism of Mr Hardy’s credit, on the other hand is limited to his attempt to present his usual pre-check routine as his actual recollection, to suggest he may not have undertaken the pre-check routine where arguably he was prepared to drive a vehicle onto the road indifferent to the state of cleanliness of the reflectors and where he failed to co-operate with the insurer’s investigator when approached in September 2021.
Whilst it would have been preferable if Mr Hardy had cooperated with the investigator in 2021 and provided a contemporaneous account I find his evidence is generally consistent with the evidence of the independent witness Mr Matthews.
Whilst I accept the evidence of the claimant is his honestly held belief I find that he is mistaken. I agree with the insurer that his case is based on an inference that the trailer was not illuminated because he did not see it until it was too late to react.
WAS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT
There is no dispute Mr Grinter was injured in an accident involving the use or operation of a motor vehicle in accordance with s 1.4 of the MAI Act.
The burden of proof lies with the insurer to establish that the accident was caused wholly or mostly by the fault of the claimant.[12]
[12] Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 at [45], [55] and [67].
The claimant has conceded if the lights on the trailer were working at the time of the accident the truck would have been visible by the claimant at a time that would have been sufficient for him to brake or serve to avoid the collision.
Where it is agreed that the insured truck pulled onto the Pacific Highway when he had space and it was safe for him to do so, where it is agreed the insured truck was travelling at 30kmph in the left hand lane and where I have found the lights on the truck and trailer were illuminated at the time of the accident I find there has been no breach of duty by the insured driver in his driving of the insured truck.
I have found on the balance of probabilities that the lights were working on the trailer at the time of the accident. Given that finding and where it is agreed that the insured truck would have been visible by the claimant at a distance of 113 metres giving Mr Grinter sufficient reaction time to either brake or steer his vehicle to avoid the collision I find Mr Grinter ran into the back of the insured truck and trailer because he was not keeping a proper lookout.
For the purposes of ss 3.11 and 3.28 of the MAI Act I find that the motor accident was caused wholly by the fault of Mr Grinter.
COSTS
Legal framework
The assessment was a miscellaneous claims assessment matter under Schedule 2 cl 3(d) and (e) of the MAI Act.
Section 3.3 of the MAI Act provides that the regulations may make provisions for or with respect to the fixing of maximum costs for legal services provided to a claimant or an insurer.
Clause 3 of Schedule 1 Part 1 of the Motor Accident Injuries Regulation 2017 (MAI Regulations) provides that the maximum costs payable in respect of a miscellaneous claims assessment is 16 monetary units. Schedule 3 of the MAI Regulations provides that the current monetary unit is $119.96. Accordingly, the maximum payable to the insurer under cl 3 of Schedule 1 Part 1 is $1,919.36 plus GST.
Section 8.3(1) to (5) of the MAI Act provides:
“(1) The regulations may make provision for or with respect to the following—
(a) fixing maximum costs for legal services provided to a claimant or to an insurer in any motor accidents matter,
(b) fixing maximum costs for matters that are not legal services but are related to proceedings in any motor accidents matter (for example, expenses for investigations, for witnesses or for medical reports),
(c) declaring that no costs are payable for any such legal services or other matters of a kind specified in the regulations.
(2) Without limiting subsection (1), the regulations may fix maximum costs for legal services provided to a claimant by reference to the amount recovered by the claimant.
(3) An Australian legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section. An Australian legal practitioner is not entitled to be paid or recover any amount for a legal service or other matter of a particular kind if the regulations declare that no costs are payable for a service or other matter of that kind.
(4) An Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the claimant or the insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Commission.
(5) This section does not entitle an Australian legal practitioner to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred.”
The insurer submits that s 8.3(4) of the MAI Act entitles an insurer to recover legal costs in connection with a claim for statutory benefits where permitted by the regulations or the Commission.
Section 8.10 of the MAI Act deals with the recovery of costs incurred by a claimant in a claim for statutory benefits. Section 8.10 provides:
“(1) A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2) The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the insurer).
(3) A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4) The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that—
(a) the claimant is a person under legal incapacity, or
(b) exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
(5) An insurer is not entitled to recover from a claimant for statutory benefits any legal costs, or other costs and expenses, of the insurer in relation to the claim.”
Claimant’s entitlement to exceptional costs
The insurer concedes the claimant is entitled to recover legal costs pursuant to s 8.10 of the MAI Act on the basis exceptional circumstances exist.
Having regard to the complexity of the matter, the need to engage expert witnesses, the involvement of senior counsel and the necessity for a face-to-face assessment conference I find exceptional circumstances exist and the claimant is entitled to recover legal costs pursuant to s 8.10(4)(b) of the MAI Act.
On 3 April 2024 I was informed that the parties were engaged in negotiations in respect of the claimant’s costs. As agreed by the parties I varied the timetable in the event agreement is not reached in respect of those costs.
Insurer’s entitlement to costs
The insurer seeks an order under s 8.3(4) of the MAI Act that it be permitted to pay legal costs to its lawyers outside of those costs permitted by the MAI Regulations on the basis of exceptional circumstances.
The insurer’s submissions
In AAI Limited t/as GIO v Moon[13] in construing s 8.10(3) Wright J said at [95]-[97]:
“95. As I have explained above, ‘the payment of legal costs is permitted by the regulations [made under s 8.10(2)]’ where the legal costs do not exceed the maximum costs fixed by the regulations. Section 8.10(3) then contains a second category of legal costs which a claimant may recover, namely legal costs whose ‘payment is permitted by ... the [DRS]’. If these words are to have an effective area of operation and not be superfluous or insignificant, they should be construed as empowering the DRS to permit the payment of legal costs in excess of the maximum costs fixed by the regulations. The text of s 8.10(3) does not include any limit, by reference to the amount of legal costs, on the DRS’s power to permit payment of costs, although s 8.10(4) does constrain the exercise of the DRS’s power.
96. Under s 8.10(4), the DRS ‘can permit payment of legal costs incurred by a claimant but only if’ the DRS is satisfied that:
(1) the claimant is under a ‘legal disability’ – s 8.10(4)(a); or
(2) ‘exceptional circumstances exist that justify payment of legal costs incurred by the claimant' – s 8.10(4)(b).
97. When regard is had to s 8.10(4), the DRS’s power to permit payment of legal costs can be seen as designed to deal with particular unusual situations where the maximum costs fixed by the regulations may not be adequate.”
The insurer submits having regard to the decision in Moon, if the words in s 8.3(4) are to have an “effective area of operation”, they should be construed as empowering the Commission to permit the payment of legal costs in excess of the maximum legal costs permitted by the MAI Regulations.
The insurer notes the constraints to the Commission’s power are not replicated in s 8.3(4). Justice Wright made the following comments in respect of s 8.3(4) in Moon:
“127. The second exception in s 8.3(4) is where ‘payment of those legal costs is permitted by ... the [DRS]’. There is no limitation in s 8.3(4) on the ability of the DRS to permit payment, whether by reference to the maximum costs fixed by the regulations or otherwise. The only effective limit on the amount of costs that might be recovered where the payment is permitted by the DRS under s 8.3(4) is found in s 8.3(5) which provides:
‘This section does not entitle an Australian legal practitioner to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred.’
128. As a result of the unconfined terms in which the DRS’s ability to permit payment under s 8.3(4) is stated and the fact that payment of those legal costs, to the extent that they do not exceed the maximum costs fixed by the regulations under s 8.3(1), is ‘permitted by the regulations’, it appears to me that the DRS has a discretion to permit payment of those legal costs where they exceed the maximum costs fixed by the regulations. Were it otherwise, the words ‘unless payment of those legal costs is permitted by ... the Dispute Resolution Service’ would be otiose and superfluous.”
The insurer submits this is an appropriate matter for the exercise of the Commission’s discretion to permit payment of the reasonable costs of legal services provided to it in connection with the claim, including counsel’s fees.
The insurer notes liability was contested and three liability reports were commissioned including the report of Mr McDonald at the behest of Member Cassidy. The insurer argues the issues in the proceedings were complex and involved substantial preparation in connection with the hearing.
The insurer also refers to the fact that the matter proceeded by in-person hearing which concluded at around 4pm, and that oral evidence was adduced from the claimant, the insured driver, and the independent witness Mr Matthew.
The claimant’s submissions
The claimant provided submissions dated 3 April 2024. The insurer argued given there is no application for the claimant to pay the insurer’s costs the claimant has no standing to object to the costs order it has sought.
The primary concern of the claimant’s lawyers is that permitting the insurer to pay its lawyers beyond the regulated fee creates an imbalance in the statutory benefits dispute resolution model where most claimants do not have the financial capacity to pay a solicitor/client cost gap but the insurer does.
The claimant submits in Moon Wright J was dealing with s 3.10(3) and any commentary in relation to the operation of s 8.3(4) was obiter dicta.
The claimant submits s 8.3(4) provides the statutory power for the Commission to award costs in excess of the regulations only where the criteria set out in s 8.10 are met. It is submitted that to interpret s 8.3(4) as giving the Commission a general and unfettered power to waive the application of the regulations that generally prohibit solicitor/client costs undermines the intent of s 8.3 to regulate the maximum costs for statutory benefit disputes.
The claimant submits the construction of s 8.3(4) contended for by the insurer would allow every claimant and every insurer in statutory benefits disputes to seek from the Commission orders that allow them to pay their lawyers above the regulated fee, undermining the purpose of having a regulated fee.
The claimant submits that it appears capricious that a claimant is required to demonstrate exceptional circumstances to recover additional party/party costs but an insurer does not.
It is submitted that if s 8.3(4) gives a general discretion to waive the application of the costs regulations then there is no statutory restraint on the exercise of the discretion.
The claimant also submits that if the Commission permits the insurer to pay its lawyers in excess of the regulated fee the Commission should take an interest in exercising control over the additional payment being permitted.
It is submitted the statutory benefits scheme is meant to provide quick and cheap dispute resolution of disputes with one safety valve for complex matters and children provided in s 8.10. Permitting the insurer to pay its lawyers under s 8.3(4) will, it is argued, predominantly work to the benefit of insurers who can afford to pay solicitor/client costs, and risks opening a floodgate to such applications where there is no exceptional circumstances barrier.
Insurer’s submissions in reply
The insurer provided submissions in reply dated 10 April 2024.
Whether the comments made by Wright J in Moon are obiter the insurer submits the relevant passages engaged with the subject application and specifically address s 8.3(4).
The insurer submits the plain reading of s 8.3(4) permits the Commission to exercise its discretion to award legal costs in excess of the maximum costs fixed by the regulations.
The insurer argues that contrary to the claimant’s submissions the awarding of costs in favour of the insurer creates a balance, particularly where it is common place for claimant’s representatives to seek an order for payment of costs under s 8.10 and where the claimant has an equal entitlement to make an application for costs under s 8.3(4).
Where any costs awarded pursuant to either s 8.3(4) or s 8.10 are met by the insurer, not the claimant, the insurer submits the claimant has no standing with respect to the insurer’s application that it be permitted to pay its lawyers reasonable legal costs for the legal services provided in connection with a claim, including counsel’s fees.
Refusal of the insurer’s application would, it is submitted create an inequity within the dispute resolution process where the claimant has legal representation, including senior counsel. The insurer submits, given the complexity of the dispute it ought not be unrepresented, or expect its lawyers to conduct their work and not be paid for same.
Determination
The insurer argued given there is no application for the claimant to pay the insurer’s costs the claimant has no standing to object. However, it is always helpful to have a contradictor. I propose to address the claimant’s submissions whilst keeping in mind that the submissions purportedly lodged on behalf of the claimant are, in reality, the submissions of the claimant’s legal advisors noting that the claimant does not “have any skin in the game”.
The claimant submitted the comments made by Wright J in Moon are obiter. Whilst that may be the case, Wright J specifically addressed s 8.3(4) at some length, and his decision provides the only available judicial guidance as to the interpretation of that section.
After explicitly stating at [127] – [128] that there is no limitation on the ability of the DRS (now the Commission) to permit payment of costs under s 8.3(4) Wright J considered the scheme as constructed by the MAI Act and the MAI Regulations and concluded:
“140. It is apparent that the scheme of the MAI Act and MAI Reg is to mitigate the rigour of s 8.3(3) in respect of legal costs in motor accident matters generally by cl 25 of the MAI Reg. In these circumstances, it is not surprising, nor is it likely to adversely affect the integrity of the scheme of the MAI Act and MAI Reg as a whole, that s 8.3(4) should mitigate the rigour of s 8.3(3) in relation to legal costs in connection with statutory benefits claims, to which cl 25 of the MAI Reg does not apply.
141. Accordingly, in order to ensure that the words “or the Dispute Resolution Service” in s 8.3(4) are useful and pertinent, s 8.3(3) should not be construed as preventing the DRS from permitting payment under s 8.3(4) of legal costs in amounts exceeding the maximum costs fixed by regulations made under s 8.3(1), in appropriate cases.”
The claimant argues permitting the insurer to pay its lawyers beyond the regulated fee creates an imbalance. I do not agree. Whilst the claimant can secure legal representation, obtain expert opinion and retain counsel in those complex matters where it is possible to demonstrate exceptional circumstances justifying an order for legal costs under s 8.10(4), a narrow construction of s 8.3(4) places the insurer in the invidious position where they do not have the same right. It is unlikely lawyers would be prepared to undertake the preparation required for complex matters including the retention of counsel if there is no entitlement to be paid or recover legal costs for those services in excess of the regulated costs.
The claimant submits if s 8.3(4) gives a general discretion to waive the application of the costs regulations there would be no statutory restraint on the exercise of the discretion. It is correct that s 8.3(4) does not require the insurer to demonstrate exceptional circumstances. However, where an application for costs under s 8.3(4) is brought on instructions from the insurer and the costs are payable by the insurer to their own lawyers it is likely the insurer will impose their own restraint on the amount of costs they are prepared to pay their lawyers and the matters in which they are prepared to countenance an application for costs being made. Insurers are sophisticated litigants who are capable of assessing what is required to meet their evidentiary burden, and they have the skill and knowledge to assess the work required and the likely cost of that work.
In respect of the submission that permitting the insurer to pay its legal representatives under s 8.3(4) will predominantly work to the benefits of insurers who can afford to pay solicitor/client costs and give rise to the risk of opening a floodgate to such applications where there is no exceptional circumstances barrier I rely upon the comments made by Wright J in Moon at [135]:
“135. Secondly, allowing the DRS to permit legal practitioners in appropriate cases to be paid and recover legal costs in connection with statutory benefits claims in excess of the maximum costs fixed by regulations under s 8.3(1) would not undermine the integrity of the costs structure for the motor accident injury compensation system as a whole, which is generally underpinned by s 8.3(3). The first exception in s 8.3(4) achieves the same result as the application of s 8.3(3). The second exception in s 8.3(4) involves a similar discretionary power for the DRS to depart from the restriction in s 8.3(3), when dealing with claims for statutory benefits, as the courts generally possess under s 8.6(1) in relation to claims for damages.”
I am satisfied having regard to the judgement of Wright J in Moon that s 8.3(4) empowers the Commission to permit the insurer’s lawyers to be paid legal costs in excess of the maximum legal costs permitted by the MAI Regulations.
The Commission will need to be satisfied that it is appropriate to exercise its discretion under s 8.3(4) to allow the insurer to pay legal costs in excess of the regulated amount. In circumstances where it has been found that exceptional circumstances exist so as to justify an order in favour of the claimant under s 8.10(4)(b) it is also appropriate to exercise its discretion under s 8.3(4). Indeed, that is an appropriate yardstick by which to assess whether the Commission’s discretion should be exercised.
In this matter the insurer has consented to an order in favour of the claimant under
s 8.10(4)(b) and I have agreed the claimant has been able to demonstrate exceptional circumstances having regard to the complexity of the liability dispute, the existence of competing expert opinion, the involvement of senior counsel for the claimant and a hearing which lasted most of the day.Furthermore, it would be unreasonable to deny the insurer an order which would permit its lawyers to be paid in excess of the regulated amount where the insurer bore the evidentiary onus in establishing the claimant was wholly or mostly at fault for the accident.
I find in this matter it is appropriate to permit the insurer to pay its lawyers reasonable costs for the legal services provided in relation to the claim in excess of the costs permitted by the MAI Regulations.
Assessment of the claimant’s exceptional costs
On or about 26 April 2024 the claimant uploaded to the portal the following:
· Memorandum of Slater & Gordon’s professional fees, and
· Memorandum of fees payable to Andrew Stone SC.
The claim for costs and disbursements totals the sum of $28,160 inclusive of GST.
On or about 15 May 2024 the insurer uploaded to the portal objections to the claimant’s claim for costs. The insurer’s primary objection relates to the duplication of work performed by senior counsel and the claimant’s legal representatives.
The insurer also objects to the time claimed by the claimant’s legal representatives where it is reflected in quarter hourly units as opposed to the accepted practice of six minute units. The insurer also notes there is a disparity when comparing the time claimed by the claimant’s legal representative and the time charged by counsel for the same task.
Whilst I note those objections my role will be to determine what is fair and reasonable in accordance with s 172(1) of the Legal Profession Uniform Law 2014 which provides:
“172 Legal costs must be fair and reasonable;
(1) A law practice must, in charging legal costs, charge costs that are no more than fair and reasonable in all the circumstances and that in particular are—
(a) proportionately and reasonably incurred; and
(b) proportionate and reasonable in amount.”
Professional costs
I assess the claimant’s professional costs as follows::
Date
Task
Charge
Objection
Assessment
Costs allowed
2/11/2021
Prepare and attend first claimant interview
– 1 hour$400
No objection
Allowed
$400
10/11/2021
Advice to claimant
– 1 hour
$400
No objection
Allowed
$400
16/11/2021
Review liability material provided by insurer
– 1.5 hours$600
No objection
Allowed
$600
26/11/2021
Call with claimant
– 0.25 hours$100
No objection
Allowed
$100
3/12/2021
Review further material provided by insurer
– 1 hour$400
No objection
Allowed
$400
8/12/2021
Draft brief to counsel
– 1 hour$400
No objection
Allowed
$400
17/12/2021
Review liability notice
– 0.25 hours$100
No objection
Allowed
$100
21/12/2021
Read advice from counsel
– 0.25 hours$100
No objection
Allowed
$100
31/01/2022
Prepare and attend teleconference with claimant
– 1 hour$400
No objection
Allowed
$400
14/2/2022
Prepare and attend conference with claimant and counsel
– 1 hour$400
No objection
Allowed
$400
24/2/2022
Prepare and attend call with Ben Matthews – 0.5 hours
$200
No objection
Allowed
$200
25/2/2022
Prepare and attend call with claimant
– 0.25 hours$100
Objection
– allow 0.12Allowed – no basis on which to assume call did not take 15 minutes
$100
8/4/2022
Prepare and attend teleconference with claimant
– 0.5 hours$200
No objection
Allowed
$200
30/6/2022
Telephone call confirming Local Court proceedings dismissed
– 0.25 hours$100
No objection
Allowed
$100
11/7/2022
Prepare and attend teleconference with claimant
– 1 hour$400
No objection
Allowed
$400
14/10/2022
Prepare claimant’s submissions
– 1 hour$400
No objection
Allowed
$400
14/10/2022
Prepare and lodge PIC application
– 0.5 hours$200
No objection
Allowed
$200
4/11/2022
Review insurer’s reply
– 0.5 hours$200
No objection
Allowed
$200
11/11/2022
Prepare and attend teleconference with Member Cassidy
– 1 hour$400
Objection
– allow 0.5 hoursAllow 1 hour –issues in dispute were canvassed by Member Cassidy with the parties and leave given to issue Directions for Production
$400
11/11/2022
Review PIC Teleconference report
– 0.25 hours$100
Objection
– allow 0.06Objection upheld
$40
14/11/2022
Review DFP – NSW Police and Ambulance – 0.25 hours
$100
No objection
Allowed
$100
23/1/2023
Prepare and attend teleconference with Member Cassidy
– 1 hour$400
Objection
– allow 0.5Allow 1 hour – issues in dispute including obtaining an expert report to address visibility canvassed with Member Cassidy.
$400
23/1/2023
Review PIC teleconference report
– 0.25 hours$100
Objection
– allow 0.06Objection upheld
$40
23/2/2023
Conference with counsel
– 1 hour$400
No objection
Allowed
$400
28/2/2023
Prepare and attend teleconference with Member Cassidy
– 1 hour$400
Objection to charge for both counsel and solicitor for appearance. Counsel charged for 30 minutes Lawyer charge excessive
– allow 1 hour for both counsel and solicitor.Allow solicitors costs for 0.5 hours
$200
28/2/2023
Review Commission’s teleconference report
– 0.25 hours$100
Objection
– allow 0.06Objection upheld
$40
24/3/2023
Liaise with Moray & Agnew re joint expert reports – 0.25 hours
$100
Objection
– allow 0.06Objection upheld
$40
29/5/2023
Prepare and attend teleconference with Member Cassidy
– 1 hour$400
Objection
– allow 0.5Objection upheld – question of readiness only canvassed.
$200
30/5/2023
Review Commission’s teleconference report
– 0.25 hours$100
Objection
– allow 0.06Objection upheld
$40
14/6/2023
Review letter of instruction to Nigel McDonald
– 0.5 hours$200
Objection
– allow 0.06Objection upheld in part. Allow 0.25 hours
$100
14/6/2023
Prepare letter of instruction to Dr Robert Casey
– 0.5 hours$200
Objection
– allow 0.06Allowed
– 30 minutes reasonable to prepare letter of instruction to expert.$200
6/10/2023
Prepare and attend call with claimant
– 1 hour$400
Objection
– allow 0.5 hoursAllowed
– reasonable$400
19/10/2023
Review and advise on jointly commissioned reports
– 1 hour$400
Objection
– noting claim by counsel for 2 hours.Objection upheld in part
– allow 0.5 hours$200
23/10/2023
Prepare and attend telephone call with counsel
– 0.5 hours$200
Objection
– allow 0.5 hoursAllowed
$200
25/10/2023
Liaise with Moray & Agnew re further documents relied on by claimant
– 0.5 hours$200
No objection
Allowed
$200
16/11/2023
Prepare claimant’s bundle of documents
– 1 hour$400
No objection
Allowed
$400
17/11/2023
Review Insurer’s bundle of documents
– 0.5 hours$200
No objection
Allowed
$200
13/12/2023
Prepare and attend teleconference with Member Cassidy
– 0.5 hours$200
No objection
Allowed
$200
20/2/2024
Prepare and attend conference with claimant and counsel
– 2.5 hours$1,000
No objection
Allowed
$1,000
21/2/2024
Prepare and attend hybrid hearing
– 5 hours$2,000
No objection
Allowed
$2,000
TOTAL
$12,100
I allow professional fees in the sum of $12,100 plus GST.
Counsel’s fees
I refer to the Memorandum of fees of Mr Stone SC.
I assess the fees incurred by Mr Stone SC as follows:
Date
Task
Charge
Objection
Assessment
Amount allowed
21/12/2021
Review brief –letter of advice
– 1 hour$500
No objection
Allowed
$500
14/2/2022
Review liability materials from insurer, telephone conference with claimant
– 1.5 hours$750
No objection
Allowed
$750
15/2/2022
Letter of advice – 0.5 hours
$250
No objection
Allowed
$250
24/2/2022
Telephone conference with witness Ben Matthews
– 1 hour$500
No objection
Allowed
$500
27/7/2024
Telephone discussion with solicitor
– no charge$0
$0
27/2/2023
Telephone discussion with instructing solicitor re liability and telephone discussions with solicitor for insurer re suitable experts – 0.5 hours
$250
No objection
Allowed
$250
28/2/2023
Teleconference with Member Cassidy, instructing solicitor and Ms Allen for insurer and telephone calls both prior to and following teleconference – 0.5 hours
$250
Objection to appearance by counsel but allow 1 hour for appearance for both solicitor and counsel.
Where claim for solicitor’s professional fees only allowed for 0.5 hours, allow claim by counsel.
$250
6/6/2023
Review and redraft letters of instructions to experts Dr Casey and Mr McDonald
– 0.5 hours$250
No objection
Allowed
$250
12/7/2023
Review further amended letters to experts, telephone discussion with Ms Allen for insurer
– 0.25 hours$125
No objection
Allowed
$125
18/10/2023
Review expert reports of Dr Casey and Mr McDonald and draft letter of advice
– 2 hours$1000
Objection as excessive – allow 1 hour
Objection upheld – reasonable to allow 1 hour to review report and draft letter of advice.
$500
23/10/2023
Telephone conference with claimant and instructing solicitor and obtain instructions re settlement offer – 1 hour
$500
No objection
Allowed
$500
24/10/2023
Review ERISP provided by claimant to police and discuss with instructing solicitor
– 0.5 hours$250
No objection
Allowed
$250
30/10/2023
Letter of advice re expert evidence, the availability of the truck driver and preparation of claim
– 0.5 hours$250
Objection – not necessary or reasonable
Allowed – ongoing obligation of counsel to review and advise on claim including prospects of success having regard to the available evidence and the availability of witnesses.
$250
13/12/2023
Teleconference with Member Cassidy
– 0.5 hours$250
No objection
Allowed
$250
12/2/2024
Review further proposed letter of instructions to Mr McDonald, discuss with instructing solicitor and Ms Allen for insurer
– 0.25 hours$125
No objection
Allowed
$125
19/2/2024
Review supplementary report of Mr McDonald and discuss with instructing solicitor
– 0.5 hours$250
No objection
Allowed
$250
20/2/2024
Review brief and prepare for hearing. Conference with instructing solicitor and claimant
– 4 hours2,000
Objection
– allow 2 hoursAllowed
– reasonable to allow preparation for hearing by counsel including conference with claimant and instructing solicitor of 4 hours.$2,000
21/2/2024
Participate in PC assessment hearing – starting at 8am with conferences. Hearing concluded at 4pm – 1 day
$5,000
Objection
– allow 5 hoursAllowed
– hearing commenced at 10am and concluded at 4.25pmFair and reasonable to allow 1 day brief fee.
$5,000
Total
$12,000.
I assess disbursements, namely counsel’s fees in the sum of $12,000 plus GST.
Claimant’s total costs and disbursements
I assess the claimant’s total costs and disbursements in the sum of $26,510 inclusive of GST.
- AGLC
- Grinter v Cic Allianz Insurance Limited [2024] NSWPIC 267
- Case
- [2024] NSWPIC 267
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included whether the lights on the truck and trailer were operational prior to and at the time of the collision, and if the claimant was negligent in failing to maintain a proper lookout. The court concluded that, on the balance of probabilities, the lights were working, and the claimant's failure to observe the truck and trailer constituted the primary cause of the accident. The claimant was therefore deemed wholly at fault. Additionally, the court assessed costs in favour of the claimant under section 8.10(4) due to exceptional circumstances, while also addressing the insurer's application to pay legal costs exceeding the regulated amount.
The insurer sought to pay its lawyers costs beyond the regulated limit, arguing exceptional circumstances justified such an order. The claimant opposed this application, referencing the case of AAI Limited T/as GIO v Moon as the only available judicial guidance. The court considered the appropriate standard for determining exceptional circumstances in this context, ultimately ruling in favour of the claimant. The final orders reflected the court's determination on liability, costs, and the insurer's application for additional legal costs.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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