Harris v NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Harris v NRMA Insurance [2021] NSWPIC 352
CLAIMANT:	Jonathan Harris
INSURER:	NRMA Insurance
MEMBER:	Anthony Scarcella
DATE OF DECISION:	13 September 2021
CATCHWORDS:	MOTOR ACCIDENTS - Application for assessment of common law damages; motorcycle accident on a motorway; Claimant motorcyclist applied his brakes heavily because an unidentified vehicle travelling in front of him suddenly braked; Claimant thrown off his motorcycle; no collision between motorcycle and unidentified vehicle; Nominal Defendant wholly denied liability; section 5B of the Civil Liability Act 2002; Mobbs v Kain, Sibley v Kais, Trompp v Liddle, Derrick v Cheung, Manley v Alexander and Mugford v Ames considered and applied; reliability of Claimant’s evidence; Onassis and Calogeropoulos v Vergottis and Watson v Foxman considered; entitlement to regulated costs where the Claimant is not entitled to damages; section 3.7 of the Motor Accidents Injuries Act 2017; Held – the driver of the unidentified motor vehicle owed a duty of care to the Claimant; the driver of the unidentified motor vehicle did not breach the duty of care owed to the Claimant; the Claimant is entitled to regulated costs despite failing to obtain an award of damages.
DETERMINATIONS MADE:	1. On the issue of liability for the claim, the NRMA Insurance, as the nominated compulsory third-party insurer of the driver of the unidentified motor vehicle allegedly at fault, owed a duty of care to the Claimant. There was no breach of that duty of care and the Claimant is not entitled to damages for the injury, loss and damage sustained. 2. Under sections 7.36(3) and 7.36(4) of the *Motor Accidents Injuries Act* *2017, I specify the amount of damages for this claim as $0. 3. The amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the Motor Accidents Injuries Act* *2017*, is $7,631.12 inclusive of GST.

Reasons for Decision

Issued under section 7.36(1) of the Motor Accidents Injuries Act 2017

BACKGROUND

This dispute relates to an application for an assessment of a claim for damages (the Application) under section 7.36 of the Motor Accidents Injuries Act 2017 (the MAI Act) in respect of a motor accident that occurred on 26 May 2018. The Application was lodged with the Dispute Resolution Service (DRS).
The Personal Injury Commission (the Commission) commenced operation on 1 March 2021 and the DRS was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020. I am a General Member of the Motor Accidents Division of the Commission and clause 14B(1) of the Personal Injury Commission Regulation 2020 designates this Application as pending proceedings and clause 14B(3) empowers me to assess the claim.
Mr Jonathan Michael Harris (the Claimant) is a 22 year old man, who was involved in a motor accident on 26 May 2018 on the M2 Motorway at North Ryde (the motor accident) in which he suffered injuries. The alleged injuries were to the lumbar spine and left metacarpal.
On 7 October 2020, the Claimant lodged with the DRS the Application for the personal injuries he sustained in the motor accident against the Nominal Defendant, in this case, NRMA Insurance (the Insurer) being, the nominated compulsory third-party insurer of the unidentified motor vehicle the Claimant alleged was at fault.
On 4 November 2020, the Insurer lodged with the DRS a reply to the Application (Reply), wholly denying liability for the motor accident on the part of the driver of the unidentified vehicle (the Nominal Defendant).
At a teleconference on 22 March 2021, the matter was set down for an audio visual assessment conference on 15 June 2021. Mr John Ryan of counsel appeared for the Claimant, instructed by Mr Phil Banister, solicitor. Mr Bede Kelleher of counsel appeared for the Insurer, instructed by Mr Scott Graham, solicitor.
The parties agreed that the following issues were required to be determined by me:
(a)    the issue of any liability on the part of the Nominal Defendant in the motor accident;
(b)    the issue of any contributory negligence on the part of the Claimant in the motor accident;
(c)    the nature and extent of the Claimant’s injuries;
(d)    the Claimant’s entitlement to damages for non-economic loss;
(e)    the Claimant’s entitlement to damages for past loss of earnings or past loss of earning capacity, and
(f)    the Claimant’s entitlement to damages for future loss of earnings or future loss of earning capacity.
The parties agreed that if the Claimant succeeded on the issue of liability, he would have an entitlement to damages for non-economic loss.

EVIDENCE

Documentary Evidence

The following documents were in evidence before the Commission and considered in making this determination:
(a) the Claimant’s Application dated 7 October 2020 and the supporting documents attached and thereafter lodged with the Commission, and
(b) the Insurer’s Reply dated 4 November 2020 and the supporting documents attached and thereafter lodged with the Commission.
Oral evidence
Oral evidence was adduced from the Claimant at the audio visual assessment conference.
SUBMISSIONS
The Claimant provided written submissions on the substantive issues dated 22 February 2021 and provided amended written submissions dated 4 March 2021, supplemented by brief oral submissions at the assessment conference.
The Insurer provided written submissions on the substantive issues dated 4 November 2020 and 19 March 2021, supplemented by brief oral submissions at the assessment conference.
I will refer to the parties’ submissions under each relevant issue for determination set out below.
LIABILITY FOR THE MOTOR ACCIDENT
The Claimant’s evidence
In evidence, there is the Claimant’s Application for Personal Injury Benefits (the Claim Form) dated 31 May 2018 in respect of the motor accident.[1] I will now refer to the relevant parts of the Claim Form.
[1] The Application at pages 4-9
In the Claim Form, the Claimant described the site of the accident as being approximately 300 metres west of the entrance to the Lane Cove Tunnel.
In the Claim Form, the Claimant described the motor accident in the following terms:
“I was travelling along the M2 motorway and was approximately 300 metres west of the Lane Cove Tunnel when the car in front of me unexpectedly broke [sic] suddenly for no apparent reason. I applyed [sic] my breaks [sic] to avoid a collision and was thrown forward off my motorbike landing on the roadway. The car in front did not stop.”[2]
[2] The Application at page 6 at [3]
In the Claim Form, the Claimant described his injuries as two fractures of the lumbar spine (L2 and L3) and a fracture of the left little finger.
In evidence, there is a statement by the Claimant provided to an investigator, Mr John Gottstein, appointed by Allianz Insurance Australia Limited dated 26 June 2018. I will now refer to the relevant parts of that statement.
The Claimant described himself as an experienced motorcycle rider on roads other than freeways. Prior to the motor accident he had only driven on freeways less than 12 times.
The Claimant stated that, on 26 May 2018, he left his home in Alexandria at about 1:00 pm and rode his motorcycle to Kellyville Oval to play rugby league for UTS. He played between 3:00 pm and about 4:15 pm. He left Kellyville Oval at about 4:30 pm with the intention of riding back home.
The Claimant stated that he rode his motorcycle East along the M2 Motorway in the left lane. He had been riding behind a black motor vehicle for some distance on the M2 Motorway. The black motor vehicle was accelerating away from him and then slowing down again for no apparent reason. Initially, the slowdown was not a dramatic change in speed (about 10 km/h). The Claimant kept his distance from the black motor vehicle.
The Claimant stated that when approaching the Lane Cove Tunnel, the speed limit varied from 100 km/h to 80 km/h. The black motor vehicle accelerated away from him for a couple of seconds. The Claimant continued riding at a speed of less than 80 km/h because the speed limit entering the tunnel was 80 km/h.
The Claimant stated that when he was about 300 metres west of the Lane Cove Tunnel, he observed the black motor vehicle’s brake light activate and drop its speed significantly so that it forced him to take evasive action by braking heavily to avoid a collision. As the Claimant applied his brakes, the motorcycle slowed significantly before the back wheel rose and he was ejected from the motorcycle over the front handlebars onto the roadway.
The Claimant stated that he did not know why the black motor vehicle slowed down. The motorcycle did not collide with the black motor vehicle. The Claimant came to rest on his back in the centre of the left lane on the roadway and managed to roll himself out of the lane to avoid being hit by oncoming traffic.
The Claimant stated that at the time of the motor accident the weather was cold and dry. It was dark and the headlight of his motorcycle was on. The traffic was medium for that time of night on a freeway.
The Claimant stated that he was very familiar with the accident scene because he rode out to Kellyville to play football and also had a friend who lived in Kellyville, who he visited regularly.
The Claimant stated that other vehicles stopped to render assistance. Police and ambulance attended the accident scene. The Claimant was admitted to Royal North Shore Hospital, where he was diagnosed with having suffered L2 and L3 fractures and a 5^th left metacarpal fracture.
On 19 July 2018, the Claimant was interviewed by Probationary Constable Jack Owens, who recorded the Claimant’s statement in his police notebook. The Claimant’s police notebook statement dated 19 July 2018 was read out by Constable Andrew Stepens in his record of interview with the Insurer’s investigator, Mr Danny Scott, on 2 August 2018. Below are relevant parts of the Claimant’s police notebook statement:
“… I am 19 years of age. I am the owner of a 2015 CFMoto 650 NKS motorcycle … I have been riding my motorbike for four months and I hold a current rider learner motorcycle licence. At about 5:45 pm on Saturday, 20 May 2018, I was returning home from playing football. I was riding my motorcycle easterly along the M2 motorway as I approached the Lane Cove Tunnel. I was travelling in the left hand lane at approximately 75 km/h to 80 km/h. I was wearing a full face motorcycle helmet, full motorcycle leathers and gloves. Approximately 200 metres out of the tunnel, a black vehicle in front of me accelerated towards the tunnel. The vehicle then approach the speed camera warning sign and applied the brakes aggressively. This has caused me in turn to apply my brakes heavily to avoid a collision. I was a safe distance from the rear of the vehicle prior to the accident. This has caused me to be ejected from my motorcycle as the front tyre locked up and threw me forward. I have left my seat, done a single front flip and landed on my back. The motorcycle has done the same and landed three metres away from me. The next thing that happened was a driver behind me got out to assist me, getting my motorcycle off the road. As a result, I was conveyed to Royal North Shore Hospital by ambulance. I fractured my L2 and L3 vertebrae. I remained in hospital for four days before being released to recover at home. I had not consumed any alcohol or drugs on this day.”[3]
[3] Reply - Record of Interview with Constable Stepens at pages 6-7
In evidence, there is a transcript of a record of interview between the Insurer’s investigator, Mr Scott and the Claimant on 23 July 2018 in respect of the motor accident. I will now refer to the relevant parts of the transcript of the record of interview, which may be summarised as follows:
(a)    The Claimant has held a motor vehicle drivers licence since he was 17 years of age and was currently on his green provisional licence. He obtained his motorcycle learners permit in about February 2018 and had been riding his motorcycle for about three months at the time of the motor accident.
(b)    The Claimant stated that he was riding his motorcycle along the M2 Motorway in the left lane towards the city (in an easterly direction) for about 10 minutes leading up to the motor accident.
(c)    The Claimant stated that the motor accident occurred about 200 metres from the opening of the Lane Cove Tunnel. He denied being familiar with that section of the roadway because he had only driven on it may be six or seven times previously.
(d)    The Claimant stated that the speed limit on the motorway dropped from 100 km/h to 80 km/h on approach to the tunnel.
(e)    The Claimant stated that it was very dark. He believed that the street lights were on, as was the headlight on his motorcycle and the cars around him. The weather was dry and so was the roadway. He estimated that the motor accident occurred between 5:45 pm and 6:00 pm.
(f)    The Claimant stated that earlier that afternoon he had been playing rugby league at Kellyville Oval for UTS West Tigers. He finished playing at about 4:45 pm. He then went to a KFC outlet where he sat and had something to eat for about 20 minutes. He left the KFC outlet and headed for home in Alexandria on the M2 Motorway.
(g)    The Claimant stated that there was a black motor vehicle in front of him on the M2 Motorway that slowed down and sped up. The Claimant kept a distance of about 30 metres to 40 metres between his motorcycle and the black motor vehicle in the lead up to the motor accident. When the black motor vehicle slowed down, the Claimant would slow down.
(h)    In response to a request for the Claimant to provide details as to how the motor accident occurred, his answer was recorded as follows:
“Okay so we are driving along the, um, ah, the M2, um, the guy would accelerate and decelerate. I maintain a safe distance away from the car, um, as we hit the crests the guy accelerated away, um, I believe up until he saw the, um, speed camera in tunnel, ah, up until then he dropped around twenty-five to thirty-five k’s an hour. Instantly I reacted, um, and I pulled the front brake causing me to flip over the handle bars and to be ejected from the, um, seat of my bike consequently making me land on my back and, um, fracturing my L2 and L3.”[4]
(i)    The Claimant stated that he believed that the black motor vehicle slowed because its driver was going too fast at the highest point of the hill travelling towards the tunnel. He did not observe anything in front of the black motor vehicle that would have caused it to brake or slow quickly.
(j)    The Claimant stated that, at the point he first observed the black motor vehicle brake, he estimated that there was between 40 metres and 50 metres between it and his motorcycle.
(k)    The Claimant stated that he fell off his motorcycle between the crest of the hill and the tunnel. The Claimant estimated that his motorcycle was about 15 metres to 20 metres from the rear of the black motor vehicle at the point in time where he fell onto the roadway. The black motor vehicle drove away and the Claimant was pretty sure that its driver was not even aware of him.
(l)    The Claimant stated that he was travelling at 80 km/h when he applied his brakes. He did not apply both the front and rear brakes but just the front brakes and the front wheel locked up.
(m)     The Claimant stated that his motorcycle slowed down significantly from 80 km/h to 40 km/h before ejecting him into the air and landing on his back about two or three metres in front of his motorcycle. He then rolled himself off the roadway and lay on his back.
(n)    The Claimant stated that there was a car behind him and to his right at the time of the motor accident. He was unaware of the names of any witnesses to the motor accident. The driver of the car behind him was French and he rendered assistance, as did others.
[4] Reply - Record of interview between Mr Scott and the Claimant on 23 July 2018 at Q and A 112
In evidence, there is a statement by the Claimant dated 18 February 2021. I will now refer to the relevant parts of that statement.
The Claimant stated that he was 22 years of age and had commenced a Bachelor of Engineering majoring in Mechanical and Mechatronics at the University of Technology Sydney. He expected to finish his degree in mid-2024. Whilst attending university, he has worked in part-time employment.
The Claimant stated that, on 26 May 2018, he travelled to Kellyville Oval to participate in a game of rugby league. He arrived at Kellyville Oval just after 2:00 pm. The game was due to start at 3:00 pm. He played for UTS, West Tigers. The game finished at about 4:45 pm. Following the game, he was hungry so he went to a KFC outlet and had a meal. After his meal, he headed home on his motorcycle and entered the M2 Motorway.
The Claimant stated that, prior to the motor accident, he had been riding behind a black car in the left lane of the M2 Motorway. He followed that vehicle for quite a while. There was not much traffic on the motorway at that time. The black car in front of him would speed up and then slow down by about 10 km/h from time to time. The Claimant tried to maintain a constant speed below 100 km/h, which was the speed limit on the M2 at that point on the roadway.
The Claimant stated that as the M2 Motorway approaches the Lane Cove Tunnel, it heads downhill and around a left hand bend and the speed limit reduces to 80 km/h. He reduced his speed to 80 km/h and the black motor vehicle in front of him increased its distance from him for a short time until just before the motor accident. The Claimant was 30 metres to 40 metres behind the black motor vehicle.
The Claimant stated that, at the point where the speed limit reduced to 80 km/h, there was a sign across the roadway advising of speed cameras in the Lane Cove Tunnel. Just beyond that sign there was an entry from Epping Road to the M2 Motorway prior to the start of the Lane Cove Tunnel. Attached to the Claimant’s statement was a photograph of the speed camera sign on the approach to the entry to the Lane Cove Tunnel.
The Claimant stated that as the black car reached the speed camera warning sign, it braked suddenly without any apparent reason. This caused him to apply the brakes on his motorcycle to avoid a collision with the rear of the black car. He estimated that his speed probably reduced from 80 km around a 40 km/h very quickly and he came off his motorcycle landing on the roadway.
The Claimant stated that, at the time of the motor accident, both he and the black motor vehicle were travelling in the left of two lanes on the M2 Motorway, about 300 metres from the entrance to the Lane Cove Tunnel. The motor accident happened at about 5:30 pm.
The Claimant stated that the black car did not stop after he came off his motorcycle. He lay on his back on the roadway and some people came to his assistance. He recalled a French gentleman who checked on his welfare. Police and ambulance attended the accident scene. The Claimant was conveyed by ambulance to Royal North Shore Hospital, where he was admitted for four days.
The Claimant stated that police officers spoke to him briefly at the accident scene but did not take any formal statement because he was in a bad way. On 19 July 2018, he spoke with Constable Owen who made a note of what he told him.
The Claimant stated that he had seen the statement of Constable Stepens dated 2 August 2018. The Claimant confirmed that he had spoken to Constable Stepens several times over the telephone to arrange for a time to take his formal statement. The Claimant stated that at no time did Constable Stepens ask him how the accident happened over the telephone. The telephone conversations were limited to arranging for a time to take his formal statement.
The Claimant referred to the report of Dr Robert Breit dated 17 October 2019 commissioned by the Insurer and denied telling Dr Breit that the traffic was getting heavy and “everyone was tailgating”.

In evidence, there is a letter from the Insurer’s lawyers dated 21 October 2020[5] requesting further and better particulars in respect of liability and replies thereto from the Claimant’s lawyers dated 16 November 2020.[6] The relevant replies to the particulars sought may be summarised as follows:
[5] Reply at pages 159-162
[6] Reply at pages 171-174
(a)    The Claimant purchased the motorcycle he was riding at the time of the motor accident on or about 18 December 2017 and had ridden it on a daily basis in the Sydney metropolitan area thereafter.
(b)    The Claimant obtained his motorcycle rider’s learners permit in late 2017 and obtained his motorcycle rider’s provisional licence in June 2020.
(c)    On the afternoon of the motor accident, the Claimant had been playing rugby league at Kellyville and left that location at approximately 4:30 pm. The Claimant went to get some food after the game and was on his way home at the time of the motor accident.
(d)    The Claimant entered the M2 Motorway at the Norwest entry at about 5:30 pm. It was dusk and the traffic density was medium.
(e)    The Claimant observed the unidentified vehicle in the same lane in front of him for a period of time and was unsure as to how long he had been travelling on the M2 Motorway at that time. There were no vehicles between the Claimant’s motorcycle and the unidentified vehicle. The Claimant did not at any point pass the unidentified vehicle.
(f)    The Claimant travelled behind the unidentified vehicle for approximately five minutes for, perhaps, five kilometres. During this time, the speed of the unidentified vehicle fluctuated up and down. As the vehicles approached the Macquarie exit to the M2 Motorway, traffic density increased slightly.
(g)    A change in the speed of the unidentified vehicle occurred at the point where the speed camera sign was positioned on the downhill roadway to the Lane Cove Tunnel entrance.
(h)    The Claimant fell from his motorcycle as approaching the Lane Cove Tunnel. In the minute prior to the fall, the Claimant was travelling at 80 km/h and the unidentified vehicle was travelling faster than 80 km/h in the same lane and ahead of the Claimant. The Claimant’s motorcycle was 10 to 15 metres from the unidentified vehicle when the latter vehicle applied its brakes heavily. The traffic conditions at that time were moderate. It was dark, but the Claimant could see the unidentified vehicle in front of him and for a distance ahead of that vehicle. There was no traffic immediately in front of the unidentified vehicle. At that point in time, the Claimant had good visibility of the downhill stretch of roadway approaching the Lane Cove Tunnel.
(i)    The unidentified vehicle’s speed reduced quickly, consistent with heavy braking. The Claimant, on observing the unidentified vehicle braking, braked to avoid a collision with it. The Claimant used both the front brake and rear brake in combination. The Claimant did not undertake any further braking or evasive action after his initial response because he had been ejected from his motorcycle.
(j)    The Claimant did not come into collision with the unidentified vehicle. As far as the Claimant is aware, there were no vehicles in the vicinity of his motorcycle at the time of the collision. Vehicles stopped to render assistance but the Claimant cannot provide the details of those vehicles because of his condition at the time.
(k)    The unidentified vehicle was a small to medium vehicle, dark in colour and believed to be black.
At the commencement of his oral evidence at the assessment conference, the Claimant confirmed that the contents of his written statement were accurate and that his signature appeared at the bottom of the statement.
The Claimant’s relevant responses to questioning by the Insurer’s counsel in oral evidence at the assessment conference in respect of the issue of liability may be summarised as follows:
(a)    The Claimant stated that he started riding a motorcycle in February 2018. Before he started riding a motorcycle, he had to obtain a learner’s permit for which he had to sit a written examination.
(b)    The Claimant agreed that, when riding a motorcycle, he had to pick the correct path of travel. He stated that he was aware that he had to maintain a safe distance not only from vehicles in front of him but also all around him.
(c)    The Claimant stated that he was aware of the three second rule from his studies to obtain a motorcycle rider learner’s permit and later, his provisional licence. He was aware that rule required him to calculate a distance of three seconds from the vehicle travelling in front of him by fixing on a stationary object. He was aware that this would enable him to have enough time to perceive a problem and react to it. He was also aware that the three second rule involved allowing 1.5 seconds for perception and 1.5 seconds for reaction.
(d)    The Claimant agreed that the faster one travelled, the bigger the distance one must leave under the three second rule. The Claimant agreed that travelling at 80 km/h one would be travelling at 22 metres per second and a safe distance under the three second rule would be 66 metres. He stated that he understood that riding less than three seconds behind a vehicle in front of him was unsafe. The Claimant stated that he understood that, in adverse driving conditions, such as driving in the rain or in the dark, the three second rule should be extended. The three second rule set the minimum safe distance when riding a motorcycle in good conditions and that further allowance should be made if there were less than ideal conditions, like riding in darkness.
(e)    The Claimant agreed that he knew, as a motorcycle rider and a driver of motor vehicles as at May 2018, that he had an obligation to make certain that he drove far enough behind the vehicle in front of him so that he could stop in time if the vehicle in front came to a sudden halt.
(f)    The Claimant stated that he understood that motorcycles are not as good at braking as motor vehicles because they do not have the same stopping power or stability. Motorcycles have front and rear brakes. The Claimant understood that it was unsafe riding practice to apply only the front brakes on a motorcycle.
(g)    The Claimant agreed that motorcycles are difficult to see but that motorcycle riders have better vision, despite having to wear a helmet, of what is around them. He agreed that it was good riding practice to look all about him whilst riding a motorcycle. He stated that it was a ritual, in that, it was something he would do every time.
(h)    The Claimant agreed that he entered the M2 Motorway at the Norwest entry about 10 minutes prior to the motor accident. It was just getting dark at the time he entered the M2 Motorway and there was light to medium traffic. There were vehicles in front of him, to the side of him and behind him. He was travelling in a southerly direction on the M2 Motorway towards Macquarie University and Ryde Road behind the Nominal Defendant’s vehicle in the left lane. At the Macquarie exit there was a slight increase in the density of traffic.
(i)    The Claimant agreed that in his written statement he had stated that there was no other vehicle in front of the Nominal Defendant’s vehicle just before the motor accident. The Claimant stated that he knew that for a fact. He was riding 30 metres to 40 metres behind the Nominal Defendant’s vehicle. The Claimant maintained a constant speed and it was the speed of the Nominal Defendant’s vehicle that fluctuated from the Norwest entrance all the way through to the scene of the motor accident. Whilst the speed of the Nominal Defendant’s vehicle was fluctuating, other vehicles were overtaking him over a stretch of 5 km.
(j)    The Claimant stated that when the speed limit on the M2 Motorway dropped to 80 km/h, he dropped his speed to comply with the speed limit. As he approached the Lane Cove Tunnel, there was increasing traffic all around him. There was no one in front of the Nominal Defendant’s vehicle and no one overtook in the right lane within a minute prior to the motor accident. He conceded that it was likely that there were vehicles to his right. He conceded that it was likely that there were probably other vehicles in front of the Nominal Defendant’s vehicle but that they were some distance away. He maintained that there were no vehicles directly in front of the Nominal Defendant’s vehicle. They may have been 100 metres to 200 metres in front of it. The Claimant denied that there was slowing traffic in front of the Nominal Defendant’s vehicle.
(k)    The Claimant conceded that his view that the Nominal Defendant slammed on his brakes because of the speed camera sign was one he came to later in a moment of reflection. It was not a view that he held on the night of the motor accident. He agreed that it was not a view he had in his mind when he provided his statement to Mr Gottstein on 26 June 2018. He agreed that he had engaged in a process of reconstruction and that his hypothesis came much later on.
(l)    The Claimant stated that he had ridden along the subject section of the M2 motorway about 10 to 15 times on his motorcycle prior to the motor accident. He knew the route home. He did not have to look it up. He agreed that there were three speed camera signs on approach to the Lane Cove Tunnel.
(m)     The Claimant stated that the Nominal Defendant’s vehicle did not slow down prior to braking suddenly. The Claimant stated that he did not speed up just before the motor accident. He had no reason to believe that the Nominal Defendant would slam on the brakes. The Claimant agreed that if he were within 15 to 20 metres of the Nominal Defendant’s vehicle just prior to the motor accident, he was way too close for his own safety.
(n)    The Claimant stated that he applied both the front and rear brakes just before being ejected from his motorcycle. When it was pointed out to him that, in his interview with Mr Scott, he stated that he only applied the front brake on his motorcycle, he explained that he used both brakes but must have said to Mr Scott that he used the front brakes harder. He subsequently conceded that what was in the record of interview with Mr Scott must be true. He stated that with every passing day, his memory of the motor accident fades. He agreed that a statement made by him two months after the motor accident would be more accurate than a statement made now. His memory now is that he applied both brakes but two months after the motor accident his memory would have been clearer.
The Claimant’s relevant oral evidence at the assessment conference in respect of the issue of liability may be summarised as follows:
(a) The Claimant stated that the motor accident occurred on a Saturday.
(b) The Claimant stated that he could have been 40 metres to 50 metres away from the Nominal Defendant’s vehicle when he first saw it apply its brakes. He thought he was taking a safe distance applying the three second rule. However, he was not concerned because the Nominal Defendant’s vehicle was accelerating away.
Elizabeth Harris’ evidence
In evidence there is a statement by the Claimant’s mother, Elizabeth Harris dated 2 February 2021.
Ms Harris stated that she attended Royal North Shore Hospital on the evening of the motor accident and asked the Claimant how it had occurred and he responded with words to the following effect:
“The car in front of me braked suddenly and I had to brake to avoid the collision.”
NSW Ambulance
In evidence, there is the NSW Ambulance Electronic Medical Record (the EMR) bearing the case date of 26 May 2018 pertaining to the Claimant.[7]
[7] The Application at AD 2
The EMR recorded that NSW Ambulance received a call at 5:27 pm and that an ambulance was dispatched at 5:30 pm to the Lane Cove Tunnel, off Epping Road, North Ryde.
The EMR recorded the following relevant case description:
“c/t 19yr old male post mca o/a pt supine on side of road, helmet in situ, pt wearing protective gloves + jacket – still in situ, pt wearing jeans and sneakers, pt states travelling approx. 80km/hr down slight incline, braked heavily on front brake to avoid slowing traffic in front, bike flipped over front wheel landing upside down on road, petrol leaking from tank, pt states flipped with bike landing approx. 2m in front of bike directly onto his back, nil loss of consciousness, pt states rolled to side of road out of ongoing traffic. …”[8]
Royal North Shore Hospital
[8] The Application at AD 2 at page 2
In evidence, there is the Royal North Shore Hospital Discharge Referral dated 29 May 2018.[9]
[9] The Application at pages 22-28
The Discharge Referral confirmed that the Claimant had been conveyed to Royal North Shore Hospital by ambulance following a motorcycle accident. It recorded that the Claimant suffered an L3 burst fracture, an L2 endplate fracture and a fracture of the fifth left metacarpal.
The Discharge Referral recorded that the Claimant was riding his motorcycle home following a rugby game when his motorcycle flipped forwards and he was flipped over the handlebars, landing flat on his back on the roadway. The Claimant rolled off the road and remained on the ground. He was wearing a helmet and jacket.
In evidence, there are the Claimant’s Royal North Shore Hospital clinical records.[10]
[10] The Application at AD1 and Reply at R22
The clinical records disclosed that, at 6:32 pm on 26 May 2018, Mr Nick Cockrell recorded, amongst other things, a history that the Claimant was a motorcycle rider travelling at 80 km/h when he went over the handlebars post braking. At 7:27 pm, Dr Elise Carpenter, Junior Medical Officer, took a history that the Claimant was riding back from rugby when a car in front suddenly braked, the Claimant slammed on his brakes, including the front brake, the bike flipped forward and the Claimant flipped over the handlebars. At 7:28 pm, Ms Rebecca Cowan, Registered Nurse, took a history that the Claimant was travelling on a motorbike at 80 km/h when he braked suddenly due to a car in front.
NSW Police Force Documents
In evidence, there is a letter from NSW Police Force dated 3 August 2018 and attached Event 294959694 in the Centralised Operational Policing System (the COPS report) dated 2 August 2018 in respect of the motor accident.
The COPS report recorded the incident date and time as 26 May 2018 at 5:30 pm. The incident location was described as the M2 Motorway, North Ryde. Epping Road was described as the intersecting road. The road alignment and gradient were described as straight and level. The roadway was sealed and dry. The weather was fine. It was dark and the street lighting was on.
The COPS report recorded the following crash summary details:
“About 5:30 pm on Saturday, the 26^th of May 2018, vehicle 1 [the Claimant’s motorcycle] was travelling east on the M2 Motorway. As the rider has approached the Lane Cove Tunnel, the rider has applied the brakes harshly and as a result has been ejected from the motorcycle. The rider and the motorcycle have slid for approximately 10 metres before coming to a stop.”[11]
Record of Interview with Constable Andrew Stepens
[11] Reply at R1 at page 4
In evidence, there is a transcript of a record of interview between the Insurer’s investigator and Constable Andrew Stepens on 2 August 2018 in relation to the motor accident. I will now refer to the relevant parts of the transcript of the record of interview, which may be summarised as follows:
(a)    Constable Stepens stated that he had been a member of the NSW Police Force for 3.5 years and conducted numerous investigations into motor vehicle accidents. He did not possess any qualifications as a crash investigator but had been trained by the NSW Police Force in relation to the investigation of motor vehicle accidents. He has given evidence in court in respect of motor vehicle accidents.
(b)    Constable Stepens stated that on 26 May 2018, the motor accident came to his attention across Police Radio as a priority single vehicle accident on the M2 Motorway just before the Lane Cove Tunnel in the eastbound lanes.
(c)    Constable Stepens stated that he arrived at the scene of the motor accident at about 5:30 pm. An ambulance was already on the scene and was parked in front of a black motorcycle that was laying on its side. The Claimant was being assessed by ambulance paramedics. The ambulance, the motorcycle and the Claimant were located in lane 1. There was no one else on the scene. No one had stopped to assist at that stage.
(d)    Constable Stepens stated that he had a quick conversation with the ambulance paramedics but the Claimant wasn’t in a position to provide his version of events. He and Constable Campbell assisted the ambulance paramedics in placing the Claimant onto a spinal board and a gurney before he was moved into the ambulance. The ambulance paramedics worked on the Claimant at the scene for about 20 minutes before conveying him to Royal North Shore Hospital.
(e)    Constable Stepens stated that he took a number of photographs at the scene of the motor accident. He observed the motorcycle on the roadway. No other vehicle was involved. He observed a single motorcycle skid mark which ended just before the position the motorcycle was situated on the roadway. The skid mark was, at least, 5 metres in length. The sealed bitumen surface of the roadway was dry and in a fair condition. He did not observe any oil or other contaminant on the roadway leading to the accident location that may have contributed to the accident. There were two eastbound lanes. There was a downward incline on the roadway leading into the Lane Cove Tunnel. The speed limit is 80 km/h at the side of the motor accident.
(f)    Constable Stepens stated that it was dark by the time he arrived at the scene of the motor accident. He confirmed that the Claimant was interviewed by Probationary Constable Owens on 19 July 2018 and read out the Claimant’s police notebook statement.
(g)    Constable Stepens stated that he had spoken with the Claimant several times over the telephone to organise taking his statement. At no time did he mention anything about another vehicle being involved in the motor accident. At no time did the Claimant tell him anything about a vehicle braking in front of him.
(h)    Constable Stepens stated that no witnesses left their details and police have not interviewed any other person.
(i)    Constable Stepens opined that harsh braking caused the Claimant to fall from his motorcycle, most likely due to his inexperience as a motorcycle rider. He also opined that the speed of the motorcycle could possibly have contributed to the motor accident. He stated that police had not taken action against any person in respect of the motor accident and that the investigation had been finalised.
Mr Michael Griffiths’ evidence
In evidence, there is a report by Mr Michael Griffiths, Bio-Medical and Mechanical Engineer of Road Safety Solutions dated 4 February 2021 prepared at the request of the Insurer’s lawyers.[12] Mr Griffiths reported specialised experience in investigation and research into motorcycle crashes over a period of 40 years.
[12] Reply at pages 114-156
Mr Griffiths identified the documents provided to him,[13] most of which were in evidence before me.
[13] Reply at page 118
Mr Griffiths provided extracts from NSW government publications in respect of what motorcycle riders are taught and what they need to do to obtain their motorcycle rider learner’s permit. He highlighted relevant sections of the publications, mainly from the Motorcycle Riders’ Handbook.
Mr Griffiths observed that the Claimant’s evidence described a riding environment which he perceived to be more hazardous than normal. He had completed the NSW Transport off-road training plus a written examination designed to teach riders the necessary skills and to assess the adequacy of riders’ knowledge of riding safety. NSW Transport’s recommended minimum following gap distance is three seconds with additional distance to be allowed for hazardous conditions. Mr Griffiths opined that the Claimant appeared to have maintained a following gap of approximately two seconds.

Mr Griffiths observed that riders are taught to use both brakes. The hazards of bad braking, for example, using the front brake only, is explained during the training referred to above. The Claimant reported only using his front brake. The loss of traction and subsequent fall demonstrated that he over-braked his front wheel.
Mr Griffiths observed that learner riders are advised to avoid riding in darkness and to use local roads they are familiar with. In this case, the Claimant was riding well after sunset and on a motorway.
Mr Griffiths concluded as follows:
(a)    The Claimant was an inexperienced learner rider, who did not heed the advice in the Motorcycle Riders’ Handbook to only ride on local streets and not to ride at night time.
(b)    On the Claimant’s own evidence, he was close-following vehicles ahead at a gap approximately equivalent to two seconds, rather than the minimum three seconds recommended for experienced motorcycle riders in the Motorcycle Riders’ Handbook. The Claimant’s following distance of 40 metres to 50 metres (say 45 metres), meant that he was maintaining a following distance of about two seconds rather than the minimum of three seconds required for safety. The minimum recommended three seconds following distance when travelling at 80 km/h results in a calculation of 67 metres as being the safe distance.
(c)    The Claimant braked heavily using his front brake only, which is unsafe braking practice and likely to cause the front wheel of the motorcycle to lock up and lose traction, resulting in the motorcycle falling to the roadway, as it did in this case. The Claimant’s response to apply the brake to his front wheel only was naïve and not in accordance with the braking technique recommended in the Motorcycle Riders’ Handbook. It is the minor steering inputs to the front wheel of a motorcycle which keep it upright. Once the front wheel loses traction, it is inevitable that the motorcycle will fall over.
(d)    If it is accepted that the unidentified vehicle in front of the Claimant’s motorcycle engaged in erratic speed changes, then the Claimant had the following options:
(i)increase his safety margin from a minimum gap of three seconds to four or more seconds;
(ii)“buffer” by changing into the adjacent lane 2 well prior to the event, so as to not have to respond to the behaviour of the allegedly erratically driven unidentified vehicle;
(iii)“buffer” by moving into the breakdown shoulder lane to his left; and,
(iv)conduct braking in the manner that was taught at the pre-licensing off-road training course, of braking in a moderate, balanced manner, using both brakes.
Mr Griffiths opined that the issue of whether other motor vehicles were tailgating did not affect his opinion in relation to safe following distance; good braking technique; and buffering options.
Submissions
The Claimant’s written submissions in respect of the liability issue may be summarised as follows:
(a)    The Nominal Defendant was at fault for the following reasons:
(i)Speeding up, then braking without apparent reason as the vehicles approached the entrance to the Lane Cove Tunnel on the M2 Motorway.
(ii)Braking harshly without warning and in circumstances where there was no apparent reason for the braking.
(iii)The harsh braking of the Nominal Defendant’s vehicle occurred on a stretch of the M2 Motorway approaching the Lane Cove Tunnel on a significant decline. The Claimant had a clear vision of the roadway ahead of the Nominal Defendant’s vehicle and there was no traffic immediately in front of it as it approached the entrance.
(b)    There was no reason for the Nominal Defendant’s vehicle to suddenly brake other than, by inference, to react to the sign that there were speed cameras in the tunnel. The speed camera sign was located at a point on the M2 Motorway at which the Nominal Defendant’s vehicle braked suddenly and without warning. That action was unnecessary and negligent in the circumstances.
(c)    The Claimant gave a consistent account of the manner in which the motor accident occurred in a number of statements and interviews, including, the Royal North Shore Hospital clinical records; the Claimant’s Application for Personal Injury Benefits; the Claimant’s statement taken by Mr Gottstein; the Claimant’s police notebook statement; the transcript of the record of interview between Mr Scott and the Claimant; the transcript of the record of interview between Mr Scott and Constable Stepens; and the statement of Ms Harris.
(d)    The only version of the motor accident available is the one provided by the Claimant and that version must be accepted. The Claimant’s version was also consistent with the skid mark identified by Constable Stepens which, in turn was consistent with the fact that the Claimant was required to take evasive action and so, braked heavily. No witnesses left their details with police.
(e)    There was a suggestion by Constable Stepens that he was not informed of the manner of the motor accident by the Claimant before the latter provided a formal statement. Any suggestion that this raised a recent invention was contradicted by the fact that the Claimant had informed the Royal North Shore Hospital and completed an Application for Personal Injury Benefits immediately after the motor accident describing the manner in which he was injured. The Claimant’s version was also corroborated by his mother in her statement as to what she was told on the night of the accident when she visited the Claimant in hospital.
(f)    It was unclear how Dr Breit, in his report, concluded that the Claimant was “tailgating”. It was not the history given to him by the Claimant and it was not the history contained in the documents provided to Dr Breit by the Insurer in its letter of instruction dated 20 September 2019.
The Insurer’s written submissions in respect of the liability issue may be summarised as follows:
(a)    The Insurer denied liability and submitted that the Claimant was wholly responsible for the motor accident. Whilst the Claimant was the only witness, he failed to provide consistent histories. On any of the versions provided by the Claimant, he has been the author of his own misfortune by failing to follow proper and safe riding practices.
(b)    The Insurer accepted that there was an unidentified vehicle that braked in front of the Claimant.
(c)    The NSW Ambulance EMR recorded the Claimant informing the paramedics that he was travelling at approximately 80 km/h down a slight incline when he braked heavily on his front brake to avoid slowing traffic in front. The description of the presence of traffic in front of the Claimant is consistent with the disputed history provided to Dr Breit and is consistent with the Claimant’s replies to the Insurer’s request for particulars.
(d)    The evidence established that the Claimant, being an inexperienced motorcyclist, was travelling too fast and too close behind the Nominal Defendant’s vehicle and wrongly and harshly applied only the front brakes of the motorcycle.
(e)    The Insurer relied on the expert evidence of Mr Griffiths, who opined that the combination of the Claimant following too closely behind the Nominal Defendant’s vehicle in darkened conditions whilst an inexperienced rider, together with the inappropriate application of the front brakes alone was the true cause of the accident.
(f)    If the version of events provided in the Claimant’s response to the Insurer’s request for particulars were accepted, the Claimant was travelling far too close (10 metres to 15 metres) behind a vehicle he knew to be travelling erratically. He left himself insufficient time and space to take adequate steps to react as any reasonable road user must and he was, as such, unable to avoid the motor accident.
(g)    In applying the front brakes only, the Claimant chose an inappropriate method of braking his motorcycle that contributed to its instability and his ejection from it.
(h)    Even at a following distance of 30 metres to 40 metres (the Claimant’s statement dated 17 February 2021) or a following distance of 40 metres to 50 metres (the Claimant’s record of interview with Mr Scott), on Mr Griffiths’ evidence, he was travelling too close behind the Nominal Defendant’s vehicle and at too high a speed in the conditions.
(i)    The Claimant was a very inexperienced motorcycle rider, who was aware of the surging and decelerating activities of the Nominal Defendant. He was driving in the dark. In those circumstances, a reasonable motorcyclist would have established and maintained a safe distance and a safe speed behind the Nominal Defendant’s vehicle. There was no evidence that, at any point in time, the Claimant engaged in maintaining the appropriate distance of 67 metres at a speed of 80 km/h as explained in the expert evidence of Mr Griffiths.
(j)    There was no compelling or reasonable evidence to engage in the speculative or arguably inferential case put by the Claimant, that the Nominal Defendant’s vehicle braked in response to seeing a speed camera sign. Such a finding is unnecessary and irrelevant.
(k)    The principal feature of the Nominal defendant’s passage from the time of first observation to the time of the motor accident by the Claimant was one of surging forward and reducing speed back to the speed limits. There is nothing per se negligent in that mode of driving. Whilst speeding may be a breach of road laws, there must be more to the Claimant’s case than mere speeding. The fact that a driver may reduce his speed to get back to the applicable speed limit is not, of itself, negligent.
(l) All road users owe a duty of care to all other road users to exercise reasonable care to avoid foreseeable risks of harm. The question always is whether, in the circumstances, was the action of the defendant a reasonable one in response to the foreseeable risk of harm: section 5B of the Civil Liability Act 2002 (the CLA).
(m)     The Claimant is inviting the decision maker to engage in hindsight reasoning by the manner in which he puts his case. The risk of harm must be assessed prospectively: Mobbs v Kain[14] (Mobbs).
[14] Mobbs v Kain [2009] NSWCA 301
(n)    There is no duty for the Nominal Defendant to maintain a constant speed. The duty is to maintain the passage of his/her motor vehicle in a manner that, prospectively assessed, reasonably takes into account the risk of harm to other road users. In this case, the Nominal Defendant was no more than increasing and decreasing his speed. The Claimant’s own description of the braking varied. The braking was described by the Claimant as sudden and other than pointing to it as the direct temporal association with the motor accident, the Claimant did not and cannot establish why the braking was negligent.
(o)    The common law has long held that a driver’s duty encompasses reacting appropriately to another driver who may break road rules or act in a manner unsafe to other road users: Sibley v Kais[15] (Sibley); Trompp v Liddle[16] (Tromp).
(p) In this case, the Nominal Defendant’s vehicle had, on the evidence, been surging forward and decelerating over a period of at least five minutes over a distance of five kilometres. Nothing in that behaviour speaks of negligence. The Claimant’s evidence was that he was able to maintain an almost continual distance behind the Nominal Defendant’s vehicle. There was no need for the Claimant to continue to travel behind that vehicle. There was no evidence that it was unable to leave the lane due to the presence of heavy traffic. The Claimant was aware of, on notice and able to react appropriately to the Defendant’s changes in speed. There was nothing implicitly negligent in the sudden braking of a motor vehicle on a roadway and the Australian Road Rules advert to that very circumstance: Regulation 126 of the Road Rules 2014 (NSW) made under the Road Transport Act 2013 (the Road Rules).
(q)    It is readily foreseeable that the driver of a motor vehicle may for any number of reasons suddenly decelerate or brake the vehicle. An example might be where a driver exceeding the speed limit becomes aware of the fact and appropriately reduces their speed to meet the surrounding circumstances. If that is what occurred in this case, as is suggested by the Claimant, then it was incumbent on the Claimant, who had previously seen similar behaviour, to establish and maintain a safe distance as he had been taught and as was required of a reasonable motorcyclist in his position.
(r)    There was no suggestion on the evidence that the Nominal Defendant knew or ought to have known of the presence of the Claimant behind him or should or ought to have known that he was travelling too close at too high a speed in all the circumstances. Rather, it is within the scope and content of the duty of all motorists to maintain a safe distance so that a driver can appropriately react to expected circumstances such as sudden braking.
(s) The Claimant has failed to establish any identifiable act of negligence under section 5B of the CLA.
(t) In the event that the above submissions are not accepted, the Insurer submitted that any breach of duty of care in the Nominal Defendant applying the brakes was not causative of the motor accident. The necessary condition of the harm, being the test under section 5D of the CLA, was the fact that the Claimant, in breach of the applicable road rule and safe driving practices for a motorcycle rider, was travelling too close and too fast behind the Nominal Defendant’s vehicle.
(u)    In such circumstances, the necessary condition of the harm was not any braking by the Nominal Defendant, which is a normal and explicable piece of road conduct, but rather the unsafe conduct and practices of the Claimant and his inappropriate method of braking.
(v) In the event that there was a finding against the Insurer of an act of negligence and causation, the Insurer made submissions on contributory negligence and referred to the tests thereof in section 5R of the CLA. The Claimant, by travelling too close behind at an inappropriate speed and by applying his front brakes, had departed from the standard of care expected from a reasonable motorcycle rider. These were very significant departures from the standard of care expected of a reasonable motorcyclist on the evidence of Mr Griffiths.
(w)   The Nominal Defendant has most likely applied brakes to reduce his speed, which is a much lesser departure from the standard of care expected.
(x)    In such circumstances, in applying the test of comparing the relative departures from the standard of care expected of each the Claimant and the Nominal Defendant, 75% of the blame lay with the Claimant.
[15] Sibley v Kais [1967] HCA 43
[16] Trompp v Liddle (1941) 41 SR (NSW)
The Claimant’s oral submissions at the assessment conference in respect of the liability issue may be summarised as follows:
(a)    The kernel of the Claimant’s account is quite straight forward and quite consistent. The Claimant’s evidence was that there were no vehicles directly in front of the Nominal Defendant’s vehicle but that there were vehicles in the Lane Cove Tunnel. Those vehicles were nowhere near the Nominal Defendant’s vehicle. It was a spontaneous event. There was no reason for the Nominal Defendant’s vehicle to brake and come to a sudden halt. It was completely unexpected.
(b)    Whilst the driving of the Nominal Defendant was somewhat unusual, the Claimant was coping with it until the sudden braking.
(c)    Contrary to the Insurer’s submission, the Nominal Defendant knew or ought to have known of the presence of the Claimant behind him or known that he was travelling too close or at too high a speed in all the circumstances. The Claimant was there to be seen. He was riding a motorcycle at night with his motorcycle’s headlight on. A prudent driver in the position of the Nominal Defendant had a duty to the Claimant to keep a proper lookout and to avoid the foreseeable risk of injury to him.
(d)    The Claimant was not travelling too close to the Nominal Defendant’s vehicle or at too high a speed. The Claimant did not apprehend that the Nominal Defendant would behave in the manner he did because there was no reason to do so.
(e)    Whilst the Claimant’s recollection varied, he is a truthful person. If anything, he understated the significance of his injuries. The kernel of his case would be accepted.
(f)    Mr Griffiths’ conclusions, in answer to questions put to him by the Insurer’s lawyers, gave no consideration to the conduct of the Nominal Defendant, that is, accelerating and then slamming on his brakes for no reason. That conduct is the Claimant’s case. The conclusions in Mr Griffiths’ expert report can only go to the issue of contributory negligence because he does not give any consideration at all to the conduct of the Nominal Defendant.
(g)    In so far as liability is concerned, there is negligence on the part of the Nominal Defendant for accelerating and then slamming on the brakes in circumstances where there was no need or anticipated need for that to occur. Contributory negligence is a different matter. One area of contributory negligence may be that of the Claimant’s braking, if it is not accepted that he applied the rear brake of the motorcycle.
(h) Causation under section 5D of the CLA is determined on the ‘but for test’. The Claimant’s case is that, but for the breach, namely, the Nominal Defendant slamming on the brakes for no reason, the Claimant would not have been forced into taking the action that he did.
The Insurer’s oral submissions at the assessment conference in respect of the liability issue may be summarised as follows:
(a)    There is no evidence of the Nominal Defendant’s vehicle coming to a sudden halt. There is evidence of a sudden braking manoeuvre. A sudden halt suggests that the vehicle came to a rest and there is simply no evidence that occurred.
(b)    The Claimant’s submission that the Nominal Defendant had a duty of care to keep a proper lookout is a retrospective analysis of what was occurring. The Claimant has not articulated the precise breach he relies on. Is it the braking? Is it the speed? Is it the braking and speed because of the closeness? If it is the closeness, that gives rise to a very fundamental problem of causation as addressed in the Insurer’s written submissions. Despite the Claimant being aware that the speed of the Nominal Defendant’s vehicle was fluctuating, the Claimant maintained an unsafe distance behind it at all times.
(c)    In his more contemporaneous evidence, the Claimant stated that he was at a distance of between 30 metres and 40 metres behind the Nominal Defendant’s vehicle, which on any view was far too close and he pulled on the front brake only. That was the cause of this accident.
(d)    The Claimant must show that any breach must be a necessary condition of the harm. Braking and/or travelling at a speed higher than the speed limit were not the cause of this motor accident.
(e)    Observing the situation prospectively, why should a driver have a reasonable concern that someone driving behind him would be travelling too close and would fail to apply their brakes properly?
(f) Regulation 126 of the Road Rules reminds us all that we have to drive at a safe distance behind the vehicle in front of us so that we can stop in time. That informs the duty of care. It does not determine breach. It does not determine the scope but it certainly informs a decisionmaker of the process that must be taken on a prospective basis.
(g)    On the evidence, it is likely that the Nominal Defendant applied his brakes because the traffic in front of him was increasing in density as it approached the Lane Cove Tunnel. That is likely because the Claimant carefully made reference to the traffic around him and one can only really make a genuine assessment of the speed of a vehicle in front of him by reference to other vehicles in front of him. It is likely that the Nominal Defendant’s vehicle slowed for some reason. Why it slowed does not matter.
(h)    The Claimant has engaged in, to a large extent, a reconstruction over time. He gave evidence of what he thought would or should have happened as opposed to what in fact did happen. The Claimant’s reconstruction in respect of the speed camera sign demonstrated that the Claimant was endeavouring to explain in his own mind how he got himself into this terrible position.
(i)    What prospectively more ought a driver have done than to slow down when they recognised they were going over the speed limit or there was traffic slowing down in front of them? It is the duty of the driver to drive at a safe speed.
(j)    Mr Griffiths provided sufficient expert evidence to find that the manner of riding was distinctly unsafe and was far too close given the speed. He provided sufficient evidence to find that the Claimant’s braking manoeuvre was distinctly unsafe and the wrong choice. Had that not occurred, the accident would not have occurred.
(k)    Whilst the Claimant is the only witness, the decision maker has to be actually persuaded that the version of events that the Claimant proffered occurred. There is no one solid version of events. The Claimant’s more recent statement bears little relationship to the statements provided to Mr Gottstein or Mr Scott. One cannot be satisfied that the Claimant’s version of events is one that must be accepted. It is simply one of a number of versions that he has proffered over time.
Consideration and findings

Section 3B(2)(a) of the CLA provides that Divisions 1 - 4 and 8 of Part 1A (Negligence) of the CLA apply to motor accidents.
All road users owe a duty of care to all other road users to exercise reasonable care to avoid foreseeable risks of harm.
I find that the Nominal Defendant owed a duty of care to the Claimant and note that the Insurer did not dispute that such a duty was owed.
The establishment of duty of care and breach of duty are determined prospectively and not in hindsight. The question whether there has been a breach of duty is to be addressed prospectively and by reference to what a reasonable driver in the Nominal Defendant’s circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users: Wyong Shire Council v Shirt;[17] Vairy v Wyong Shire Council;[18] Mobbs.
[17] Wyong Shire Council v Shirt [1980] HCA 12; 146 CLR 40
[18] Vairy v Wyong Shire Council [2005] HAC 62; 223 CLR 422
Section 5B(1) of the CLA provides that a person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known); and the risk was not insignificant; and, in the circumstances, a reasonable person in the person’s position would have taken those precautions.
Section 5B(2) of the CLA provides that in determining whether a reasonable person would have taken precautions against the risk of harm, the court is to consider the following (amongst other relevant things):
(a)   the probability that the harm would occur if care were not taken;
(b)   the likely seriousness of the harm;
(c)   the burden of taking precautions to avoid the risk of harm, and
(d)   the social utility of the activity that creates the risk of harm.
Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident: Derrick v Cheung.[19] The exercise of reasonable care requires reasonable attention to all that is happening on and near the roadway that may present a source of danger and that, in turn, requires simultaneous attention to and consideration of a number of different features of what is already or may later come to be, ahead of the vehicle’s path: Manley v Alexander.[20]
[19] Derrick v Cheung [2001] HCA 48; 181 ALR 301
[20] Manley v Alexander [2005] HCA 79
There is no general rule that, in all circumstances, a driver can rely on the performance by others of their duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act on the assumption that another will act in some particular way must remain a question of fact to be judged in all the particular circumstances of the case: Sibley. A driver’s duty encompasses reacting appropriately to another driver who may break road rules or act in a manner unsafe to other road users: Sibley; Trompp. A driver should contemplate the carelessness of others.
Regulation 126 of the Road Rules relevantly provides that a driver must drive a sufficient distance behind a vehicle travelling in front of the driver so that the driver can, if necessary, stop safely to avoid a collision with the vehicle. Whilst a breach of the Road Rules is not determinative of negligence, it can inform the scope and conduct of a duty of care.
In Kosinski v Snaith[21] (Kosinski) the defendant ran into a deer on a highway and the plaintiff ran into the rear of the defendant’s vehicle. In finding that the accident was wholly caused by the negligence of the plaintiff, the Saskatchewan Court of Appeal found:
“The presence of the deer was not, in my opinion, a factor to be considered when determining if [the plaintiff] had been negligent. There is a clear and well defined standard of care imposed upon the driver of a vehicle which follows another. He must keep a reasonable distance behind the vehicle ahead; he must keep his vehicle under control at all times; he must keep an alert and proper lookout; and he must proceed at a speed which is reasonable relative to the speed of the other vehicle. He must anticipate that for whatever reason, the vehicle ahead may stop. He need not anticipate the reason. He must proceed with that care which will enable him to avoid colliding with it.”[22]
[21] Kosinski v Snaith (1983) 1 DLR (4th) 170
[22] Kosinski v Snaith (1983) 1 DLR (4th) 170 at [21]
The South Australian Court of Appeal decision of Mugford v Ames[23] (Mugford) referred to the decision in Kosinski as having correctly characterised the onus on the following driver as a heavy one, noting that the Saskatchewan Court of Appeal provided a helpful and accurate summary of the content of the duty in the observations cited above.
[23] Mugford v Ames (2000) SASC 241 at [42]
In respect of the issue of causation, the parties referred to section 5D of the CLA, which provides as follows:
“5D GENERAL PRINCIPLES
(1)      A determination that negligence caused particular harm comprises the following elements –
(a)that the negligence was a necessary condition of the occurrence of the harm (‘factual causation’), and
(b)that it is appropriate for the scope of the negligent person’s liability to extend to the harm so caused (‘scope of liability’).
(2)      In determining in an exceptional case, in accordance with established principles, whether negligence that cannot be established as a necessary condition of the occurrence of harm should be accepted as establishing factual causation, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.
(3)      If it is relevant to the determination of factual causation to determine what the person who suffered harm would have done if the negligent person had not been negligent –
(a)the matter is to be determined subjectively in the light of all relevant circumstances, subject to paragraph (b), and
(b)any statement made by the person after suffering the harm about what he or she would have done is inadmissible except to the extent (if any) that the statement is against his or her interest.
(4)      For the purpose of determining the scope of liability, the court is to consider (amongst other relevant things) whether or not and why responsibility for the harm should be imposed on the negligent party.”
The establishment of causation turns on proof on the balance of probabilities and on application of the “but for” test, which in turn requires consideration as to what would have happened had the breach of duty not occurred: Strong v Woolworths Limited.[24] Unlike duty of care and breach, causation is determined retrospectively: Wallace v Kam.[25]
[24] Strong v Woolworths Limited [2012] HCA 5
[25] Wallace v Kam [2013] HCA 19
Whether there is any contributory negligence requires, pursuant to section 5R of the CLA, a determination of whether a reasonable person in the Claimant’s position, would have acted where and when he did, knowing what he did or what he ought to have known. Section 5R of the CLA imposes an objective test.
In assessing the degree of negligence, I am required to weigh up the respective acts of negligence of the parties involved and determine an appropriate apportionment between them.
In Podrebersek v Australian Iron and Steel Pty Ltd[26] (Podrebersek), the High Court of Australia confirmed that the following considerations should be made when determining the apportionment of culpability between parties:
(a)   the culpability of both parties; that is, the degree of departure and standard of care of the reasonable man: Pennington v Norris[27] (Pennington);
(b)   the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd[28] (Stapley); Smith v McIntyre[29] (McIntyre) and Broadhurst v Millman[30] (Broadhurst), and
(c)   the whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case.
[26] Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 at 494; 59 ALR 529 at 532-533.
[27] Pennington v Norris (1956) 96 CLR 10 at 16).
[28] Stapley v Gypsum Mines Ltd [1953] AC 663 at 682.
[29] Smith v McIntyre [1958] Tas SR 36 at 42-49.
[30] Broadhurst v Millman [1976] VR 208 at 219.
Ultimately, the apportionment becomes a matter of impression having regard to the circumstances of the location, the amount of traffic, the skill of the driver, the condition of the vehicle and any loss of its control: Hallowell v The Nominal Defendant[31] (Hallowell).
[31]Hallowell v The Nominal Defendant [1983] Qld R 266, per Jones J.
I will now consider the relevant evidence in this matter and apply the legislation and legal principles referred to above.
Whilst I have no reason to doubt the Claimant’s credibility, I have concerns about the reliability of his evidence. The Claimant’s statement prepared for this assessment conference was completed with the assistance of his lawyer on 17 February 2021, some 2.75 years after the motor accident. It contained some inconsistencies when compared to the statement of the Claimant taken by Mr Gottlieb and the transcript of the Claimant’s record of interview with Mr Scott. There were also inconsistencies with some of the contemporaneous and other documents in evidence, as well as his oral evidence at the assessment conference. The Claimant’s recollections varied. At the assessment conference he made concessions, some of which were against his interest.
The value of contemporaneous evidence has been repeatedly endorsed by the courts. In Onassis and Calogeropoulos v Vergottis[32], Lord Pearce said of documentary evidence:
“It is a truism, often used in accident cases, that with every day that passes the memory becomes fainter and the imagination becomes more active. For that reason a witness, however honest, rarely persuades a Judge that his present recollection is preferable to that which was taken down in writing immediately after the accident occurred. Therefore, contemporary documents are always of the utmost importance.”
[32] Onassis and Calogeropoulos v Vergottis [1968] 2 Lloyd’s Rep 403 at 431
More recently, in Watson v Foxman,[33] (Watson) McLelland Chief Judge in Equity said:
“ … Human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which the plausible details are then, again often subconsciously, constructed. All of this is a matter of human experience.”[34]
[33] Watson v Foxman (1995) 49 NSWLR 315
[34] Watson v Foxman (1995) 49 NSWLR 315 at 319
Along the lines of McLelland CJ’s observations of the fallibility of human memory in Watson, I have formed the view that the Claimant has subconsciously reconstructed parts of his evidence. I agree with the Insurer’s submission that the Claimant has engaged in a reconstruction of events over time. He gave evidence of what he thought would or should have happened as opposed to what in fact did happen.
Accordingly, I have treated the Claimant’s evidence with caution.
The Claimant’s reconstruction in respect of the speed camera sign being a reason for the Nominal Defendant applying his/her brakes unexpectedly, demonstrated that he was endeavouring to explain in his own mind how and why the motor accident occurred. There is no evidence to support the inference that the Claimant was asking me to draw in this regard and I decline to draw the inference. It was nothing more than speculation.
Another example of reconstruction was the Claimant’s evidence in relation to traffic on the approach to the entrance of the Lane Cove Tunnel.
The Claimant maintained that there were no other vehicles in front of the Nominal Defendant’s vehicle on the approach to the Lane Cove Tunnel entrance. He stated that, despite it being dark, he had a good view of the road ahead as he descended the incline in the motorway to the entrance of the Lane Cove Tunnel. He could see the Nominal Defendant’s vehicle in front of him and for a distance ahead of that vehicle. However, the history he provided to ambulance paramedics on 26 May 2018 was that he braked heavily on his front brakes to avoid slowing traffic in front. The reference to slowing traffic was arguably consistent with the tailgating history allegedly provided to Dr Breit.
The Claimant’s own evidence was that of increasing medium traffic density as he approached the Macquarie Park exit. In his oral evidence at the assessment conference, the Claimant stated that, as he approached the Lane Cove Tunnel, there was increasing traffic all around him but not immediately in front of the Nominal Defendant’s vehicle. He then conceded that it was likely that there were probably other vehicles in front of the Nominal Defendant’s vehicle but that they were some distance away, maybe, 100 metres to 200 metres in front of it.
There is also evidence, including in the photograph attached to the Claimant’s statement dated 17 February 2021, that there is an entry lane from Epping Road onto the M2 Motorway shortly prior to the Lane Cove Tunnel entrance, that merges into the left lane on the M2 Motorway in which the Claimant and Nominal Defendant were travelling. For the reasons referred to above, I do not accept the Claimant’s evidence that there were no vehicles immediately in front of the Nominal Defendant’s vehicle. I am satisfied, on the balance of probabilities, that there was slowing traffic on the approach to the entrance of the Lane Cove Tunnel, including vehicles immediately in front of the Nominal Defendant’s vehicle.
There were inconsistencies in the Claimant’s evidence about the distance he maintained between his motorcycle and the Nominal Defendant’s vehicle from the time he first observed it shortly after entering the M2 Motorway at Norwest until immediately prior to the motor accident. There was no dispute that the Nominal Defendant’s vehicle was accelerating and decelerating in front of the Claimant on the M2 Motorway immediately preceding the motor accident.
The Claimant maintained that, at all material times, he kept a safe distance between his motorcycle and the Nominal Defendant’s vehicle. In the Claimant’s transcript of the record of interview with Mr Scott, he stated that he kept a distance of about 30 metres to 40 metres between his motorcycle and the Nominal Defendant’s vehicle. When the Nominal Defendant’s vehicle slowed down, the Claimant slowed down. He stated that, at the point he first observed the Nominal Defendant’s vehicle brake, there was a gap between them of 40 metres to 50 metres and he was travelling at about 80 km/h. At the time he was ejected from his motorcycle, there was a gap of about 15 metres to 20 metres between them. However, in the Claimant’s replies to the Insurer’s request for particulars, it was stated that the Claimant’s motorcycle was about 10 metres to 15 metres behind the Nominal Defendant’s vehicle at the time it applied its brakes heavily.
In his oral evidence at the assessment conference, the Claimant stated that he was riding behind the Nominal Defendant’s vehicle by some 30 metres to 40 metres and travelling at about 80 km/h. However, when later questioned by his counsel, the Claimant stated that he could have been 40 metres to 50 metres away from the Nominal Defendant’s vehicle when he first saw it apply its brakes. He also stated that he thought he was maintaining a safe distance and applying the three second rule.
The unchallenged expert evidence of Mr Griffiths was that, on the Claimant’s own evidence, he was close-following the vehicle ahead at a gap approximately equivalent to two seconds, rather than the minimum three seconds recommended for experienced motorcycle riders in the Motorcycle Riders’ Handbook. The Claimant’s following distance of 40 metres to 50 metres (say 45 metres), meant that he was maintaining a following distance of about two seconds rather than the minimum of three seconds required for safety. The minimum recommended three seconds following distance when travelling at 80 km/h results in a calculation of 67 metres as being the safe distance.
The Claimant’s oral evidence at the assessment conference that he “would have applied his front and rear brakes” in response to the Nominal Defendant’s sudden braking, was another example of reconstruction.
The NSW Ambulance EMR dated 26 May 2018 recorded a history from the Claimant that he had braked heavily on his front brakes. On 26 May 2018, Dr Carpenter recorded a history that the car in front of the Claimant suddenly braked and that the Claimant slammed on his brakes including the front brakes. In the Claimant’s transcript of his record of interview with Mr Scott on 23 July 2018, he stated that he pulled the front brake which caused him to flip over the handlebars. In the Claimant’s replies to the Insurer’s request for particulars, he stated that he used both the front brake and rear brake in combination. In the Claimant’s statement to his lawyer dated 17 February 2021, he referred to applying the brakes on his motorcycle.
In the Claimant’s oral evidence at the assessment conference, he initially stated that he used the front and rear brakes just prior to being ejected from his motorcycle. When it was put to him that he told Mr Scott that he had only applied the front brakes on his motorcycle, the Claimant explained that he used both brakes but must have said to Mr Scott that he used the front brakes harder. He subsequently conceded that what was in the record of interview with Mr Scott some two months after the motor accident must be true. He then volunteered that, with every passing day, his memory of the motor accident was fading. He stated that his memory now is that he applied both brakes but conceded that his memory two months after the motor accident would have been clearer.
The unchallenged expert evidence of Mr Griffiths was that riders are taught to use both brakes. He opined that the Claimant braked heavily using his front brake only, which was unsafe braking practice and likely to cause the front wheel of the motorcycle to lock up and lose traction, resulting in the motorcycle falling onto the roadway, as it did in this case. I am satisfied, on the balance of probabilities, that the Claimant braked heavily using only the front brakes on his motorcycle immediately prior to being ejected from it.
I make the following factual findings in relation to the motor accident:
(a)    At about 5:30 pm on 26 May 2018, the Claimant entered the M2 Motorway via the Norwest entrance on his motorcycle. It was dusk. The traffic was of medium density.
(b)    Shortly after entering the M2 Motorway, the Claimant observed the Nominal Defendant’s vehicle in the left lane of the motorway in front of him.
(c)    The Claimant travelled behind the Nominal Defendant’s vehicle at the displayed speed limits from the time he entered the M2 Motorway to the time of the motor accident (being between 5 and 10 minutes). Neither vehicle moved from the left hand lane during that time.
(d)    Between the time the Claimant first observed the Nominal Defendant’s vehicle and the time of the motor accident, the latter’s vehicle accelerated and decelerated on a number of occasions.
(e)    As the Claimant and the Nominal Defendant approached the Macquarie Park exit of the M2 Motorway, traffic density increased slightly.
(f)    The Nominal Defendant’s vehicle increased its speed at about the point at which the M2 Motorway commences to descend towards the Lane Cove Tunnel.
(g)    About 200 metres to 300 metres before the entrance to the Lane Cove Tunnel, there was slowing traffic and the Nominal Defendant’s vehicle applied its brakes.
(h)    The Claimant had maintained a distance of about 30 metres to 50 metres between his motorcycle and the Nominal Defendant’s vehicle up to the time immediately preceding the motor accident, when the distance was reduced to between 10 metres to 15 metres.
(i)    On observing the illumination of the brake lights on the Nominal Defendant’s vehicle and its deceleration, the Claimant applied his front hand brakes hard, which caused the front wheel of his motorcycle to lose traction, the rear wheel to rise and the Claimant to be ejected from the motorcycle and land heavily on the roadway.
(j)    The Claimant’s motorcycle made no contact with the Nominal Defendant’s vehicle.
(k)    At the time of the motor accident, it was dark.

The Claimant submitted that the Nominal Defendant was at fault because it sped up and then harshly applied its brakes without warning or without any apparent reason. In his oral submissions, the Claimant submitted that the Nominal Defendant’s vehicle came to a sudden halt. There is no evidence that the Nominal Defendant’s vehicle came to a halt. There is evidence of a sudden braking manoeuvre by the Nominal Defendant.
In oral submissions, the Claimant conceded that, whilst the driving of the Nominal Defendant was somewhat unusual in the lead up to the motor accident, the Claimant was coping with it until the sudden braking occurred.
In addressing section 5B of the CLA, the Claimant submitted that the Nominal Defendant knew or ought to have known of the presence of the Claimant behind him or known that he was travelling too close or at too high a speed in all the circumstances. The Claimant was there to be seen. His headlight was on. A prudent driver in the position of the Nominal Defendant had a duty to the Claimant to keep a proper lookout and to avoid the foreseeable risk of injury to him. I agree with the Insurer’s submission that the Claimant’s approach to section 5B of the CLA above is made in hindsight rather than prospectively. Observing the situation prospectively, why would the Nominal Defendant reasonably foresee that someone driving behind him/her would be travelling too close and would fail to apply their brakes properly.
The factual findings made above together with the opinions expressed in the unchallenged expert evidence of Mr Griffith lead me to the finding that the Claimant was wholly responsible for the motor accident. The Claimant was on notice of the Nominal Defendant’s variations in speed. There is a clear and well defined standard of care imposed on the driver of a vehicle that follows another. They must keep a reasonable distance behind the vehicle ahead; they must keep their vehicle under control at all times; they must keep an alert and proper lookout; and they must proceed at a speed which is reasonable relative to the speed of the other vehicle. They must anticipate that for whatever reason, the vehicle ahead may suddenly decelerate or stop. They need not anticipate the reason. They must proceed with that care which will enable them to avoid an accident.
Based on the findings made above, whilst the Nominal Defendant owed the Claimant a duty of care, I find that such duty of care was not breached.
In view of my findings, there is no need for me to deal with the issues of causation (section 5D of the CLA) or contributory negligence (section 5R of the CLA).

LEGAL COSTS AND DISBURSEMENTS

There was a dispute between the parties as to the Claimant’s entitlement to legal costs and disbursements where there was no breach of that duty of care on the part of the Nominal Defendant and the Claimant was not entitled to damages for the injury, loss and damage sustained.
The Claimant provided written submissions dated 26 August 2021 in respect of legal costs and disbursements.
The Insurer provided written submissions dated 6 September 2021 in respect of legal costs and disbursements.
The Claimant provided written submissions in reply dated 8 September 2021.
I will refer to the parties’ written submissions below and thereafter, provide my reasons in respect of my determination of the Claimant’s entitlement to legal costs and disbursements.
The Insurer submitted that section 7.37 of the MAI Act permits an award of costs but that the awarding of those costs is conditional on “making an assessment and specifying damages in respect of a claim”. Whilst this matter proceeded to a determination/assessment, the Claimant was not awarded damages. An award of damages is a precondition for the awarding of costs.
The Insurer submitted that, whilst the Claimant was entitled to bring his claim for common law damages in the Commission, the fact of his ability to do so does not see an entitlement to costs arise regardless of whether he is successful in that action. If this were so, a potential anomaly would arise with respect to how matters determined in the Commission are dealt with as distinct from similar matters proceeding in the District Court of New South Wales because of section 8.5 of the MAI Act that provides that costs payable on a party/party basis are to follow the event in the usual course of the awarding of costs. The objects of the MAI act were not intended to encourage claims being brought which had no merit or were speculative in nature.
The Insurer submitted that, in the event the above submissions were rejected by the Commission and find that there remains a discretion which might be exercised, such discretion would not be exercised in the present matter given the Commission’s ultimate findings on the questions of fact and law. If the Commission found that there was a discretion available to award costs in the Claimant’s favour, then the Insurer did not dispute the claimed monetary unit allowance nor the cost calculations in the Claimant’s written submissions.
The Claimant referred to section 8.5 of the MAI Act and its provisions in respect of costs regarding claims determined by court proceedings. The Claimant submitted that there was no similar provision within the MAI Act in respect of costs of proceedings for the assessment of common law damages. The Insurer agreed with the latter submission. The Claimant submitted that section 8.5 of the MAI Act can have no application or relevance to the Claimant’s costs in this claim.
The Claimant submitted that section 7.37 of the MAI Act makes provisions in respect of the assessment of costs by a Commission Member. It is not a condition precedent that there be an award of damages in favour of a Claimant. The section only requires the Member to make an assessment and to specify damages. Both these elements have been satisfied. There was an assessment and the specified damages was in the amount of $0.00. There is no provision in the MAI Act or the Motor Accident Injuries Regulation 2017 (the Regulation) to say that a Claimant had no entitlement to costs if unsuccessful in the application.
The Claimant submitted that awarding legal costs to the Claimant following an assessment which was arguable on the issue of liability and where the Claimant suffered a significant injury (conceded as greater than 10% whole person impairment) is consistent with the objects of the MAI Act “to provide support”: section 1.3 (1).
The Claimant submitted that section 7.37(3)(b) of the MAI Act provides that an assessment of costs must give effect to any requirement of the regulations under Part 8. Section 8.3 of the MAI Act refers to the regulations that may make provision for fixing maximum legal costs. The Regulation at Schedule 1 is the relevant regulation and the Member ought to exercise his discretion in favour of the Claimant and award costs in accordance with the Regulation.
Section 7.37 of the MAI Act provides that in making an assessment and specifying damages in respect of a claim, the Commission may include in the assessment an assessment of the Claimant’s costs, including costs for legal services and fees for medico-legal services, in the matter. The section uses the word “may”. In other words, a Member of the Commission has a discretion to award such costs in accordance with the Regulation.
I accept the Claimant’s submission that section 8.5 of the MAI Act has no application or relevance in this matter. The section clearly applies where a claim is determined by court proceedings. There is no similar provision of costs being payable on a party and party basis following the event in respect of the assessment of a damages claim under section 7.37 of the MAI Act. Whether its omission was intentional or an oversight by the legislature is irrelevant for my purposes. There is nothing in the MAI Act or in the Regulation that states that Claimants are not able to recover costs if they are unsuccessful in damages claims.
I reject the Insurer’s submission that an award of damages in dollar terms is a precondition for the awarding of costs. In satisfaction of section 7.37(1) of the MAI Act, I have made an assessment and specified the damages as zero dollars. The fact that I have assessed the damages at zero dollars does not mean that damages have not been specified.
In respect of the discretion conferred on me by section 7.37 of the MAI Act, I have considered the facts of this case and the brief submissions made by the Claimant that sought to persuade me to exercise my discretion to award legal costs in his favour. Given the nature of the Claimant’s injuries, the circumstances of the motor accident and that the issue of liability was arguable, I find that it was not unreasonable for the Claimant to refer this dispute for determination. Accordingly, I exercise the discretion conferred on me under section 7.37 of the MAI Act and award legal costs in favour of the Claimant.
I assess the Claimant’s legal costs and disbursements in accordance with Part 8 of the MAI Act and the Regulation in accordance with the attached sheet.

CONCLUSION

On the issue of liability for the claim, the NRMA Insurance, as the nominated compulsory third-party insurer of the driver of the unidentified motor vehicle allegedly at fault, owed a duty of care to the Claimant. There was no breach of that duty of care and the Claimant is not entitled to damages for the injury, loss and damage sustained.
Under sections 7.36(3) and 7.36(4) of the MAI Act, I specify the amount of damages for this claim as $0.
The amount of the Claimant’s costs, taking into account the amount of damages assessed in respect of this claim, assessed in accordance with the MAI Act, is $7,631.12 inclusive of GST.
LEGISLATION
In making my decision I have considered the following legislation and guidelines:
(a)    the MAI Act;
(b)    the Regulation;
(c)    Motor Accident Guidelines 2017;
(d) the Road Rules, and
(e) the CLA.

Anthony Scarcella

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 352

13 September 2021