Insurance Australia Limited t/as NRMA Insurance v Kumar

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Insurance Australia Limited t/as NRMA Insurance v Kumar [2022] NSWPIC 631
CLAIMANT:	Tej Kumar
INSURER:	IAG Ltd trading as NRMA Insurance
MEMBER:	Bridie Nolan
DATE OF DECISION:	15 November 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant injured by motor vehicle in repair workshop when vehicle ran over his shoulder; dispute as to which vehicle was the relevant vehicle; conflict in eyewitness evidence; dispute under section 3.3(a) as to which insurer is the insurer of the “at fault” motor vehicle; whether statutory benefits in section 3.2(7) are payable by the relevant insurer; dispute between insurers in respect to recovery of legal costs; Held – relevant insurer dispute determined; costs permitted under section 8.3(4).
DETERMINATIONS MADE:	Certificate *Issued under s 7.36(4) of the Motor Accident Injuries Act 2017* and cl 7.497 of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows:** 1. NRMA is the insurer of the at-fault motor vehicle for the purposes of s 3.3 of the Motor Accident Injuries Act 2017 (NSW) (the Act) and is responsible for the payment of any statutory benefits to the claimant. 2. Effective date: this determination takes effect on 13 April 2018. 3. Legal costs: I grant permission under s 8.3(4) of the Act for the Australian legal practitioners in this case (both the solicitors and barrister) to be paid their legal costs for the legal services provided to the two insurers in connection with the claimant’s claim for statutory benefits. 4. I grant the parties liberty to be heard on the question as to whether I should award the claimant solicitors’ costs be paid by NRMA pursuant to s 8.10 (4) (b) of the Act.

Reasons for Decision

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

Background

This determination relates to:

This miscellaneous claim assessment dispute involves the question as to the identity of the insurer of the at fault motor vehicle, NRMA or Allianz, and whether statutory benefits are payable by the relevant insurer for the subject accident. The subject accident was alleged to have occurred on 13 April 2018 at the claimant’s place of employment at Lansvale Smash Repairs at 5 Cosgrove Road, Strathfield in the State of New South Wales (the workshop).
The claimant, Tej Kumar, alleges that a Ford Ranger, registration number CSO 74U (the NRMA insured vehicle) ran over his shoulder while he was working on another vehicle at the workshop. However, his supervisor and the workshop’s medical officer advised that the only car in the vicinity at the time of the alleged incident was a Kia Carnival, registration number YGK-01P (the Allianz insured vehicle).
The NRMA has referred two disputes for determination:
(a) a dispute relating to s 3.3(a) of the Motor Accident Injuries Act 2017 (the Act) as to which insurer is the insurer of the at fault motor vehicle accident (the relevant insurer), and
(b) whether pursuant to s 3.2(7) of the Act statutory benefits are payable by the relevant insurer.
Sections 3.3 and 7.42 of the Act and Schedule 2 of the Act confer power on the Personal Injury Commission (the Commission) to determine miscellaneous claim assessment matters. Section 3.3 of the Act provides that the Commission may determine which insurer is the relevant insurer in respect of the claim and its determination is binding on the insurers for the purposes of this Part. Schedule 2(3)(c) of the Act poses the question which insurer is the insurer of the at-fault motor vehicle for the purposes of s 3.3 (Determination of relevant insurer).
Section 3.2(7) of the Act provides that the nominal defendant or other insurer who pays statutory benefits under the Part is entitled to recover the amount of statutory benefits properly paid from the relevant insurer liable to make those payments. That dispute does not respond to any matter in Schedule 2. Allianz submits that the Commission does not have any power to determine that dispute. In my view, this dispute to be amenable to determination pursuant to Schedule 2 (3) (n) of the Act, which enables the Commission to determine any issue of liability for a claim, or any part of a claim for statutory benefits not otherwise specified in the schedule.
Section 7.41(3) of the Act provides that an internal review required before a miscellaneous claim assessment does not apply to a dispute about a miscellaneous claims assessment of a matter prescribed in the Motor Accidents Injuries Regulations 2017 (the Regulations). Rule 11 of the Regulations provides internal review does not apply to a dispute about which insurer is the insurer of the at fault vehicle for the purposes of s 3.3 of the Act.

Documents considered

I have considered the documents provided in the application and the reply and the further information provided by the parties together with the recording of the evidence given at oral hearing.

Submissions

Allianz’s submissions

Allianz relies on the Application for Statutory Benefits lodged by the claimant upon NRMA dated 27 August 2018 in which the claimant identified the vehicle at fault to be a Ford, registration CSO 74U driven by “Paul”. Allianz submits this is the earliest point in time at which the at fault vehicle was identified by the claimant and is the best evidence as to the identity of the vehicle.
As at 17 October 2019, the claimant’s solicitor requested information from the NRMA, as the claimant was unable to report the accident to the police, as he was unaware of the driver’s full name, address and licence, but he did not request the registration, as he continued to be aware of the registration number as recorded in the Application for Statutory Benefits.
Allianz disputes the contents of the email of Helen Scott of NRMA to Allianz dated
21 August 2020, in which the abovementioned email is said to note that the “claimant was unable to identify the correct vehicle at fault”. Allianz submits that the claimant was always able to identify the correct vehicle at fault, just not the driver by his full name and licence details.
As at 9 October 2019, NRMA instructed AHC to investigate liability and noted the vehicle was a Ford driven by “Paul”, bearing registration CSO 74U owned by Custom Service Leasing Pty Ltd. AHC reported on 30 October 2019. AHC interviewed the claimant as permitted by his solicitor. The claimant’s statement says that he was working on a RAV4 when he alleged to have been hit by another vehicle. He identifies the vehicle as the Ford which was a customer’s car that was being worked on. While he could not remember the registration number at the time, which was 79 weeks after the accident was alleged to have occurred, he referred to the claim form submitted, which Allianz submits is the Application for Statutory Benefits.
Allianz relies on the facts that in October 2019, AHC attempted to interview the employer, Trevor Ashby, who refused to provide a statement and alleged that the people who witnessed the accident did not want to be involved. He refused to provide details of the driver, “Paul”, and refused an inspection of where the accident was alleged to have occurred. Mr Ashby is alleged to have stated “I was upstairs at the time, and I heard someone has been hit”. Allianz submits that the transcript of the conversation provided by AHC, is hearsay evidence between the investigator and
Mr Ashby, and as Mr Ashby did not hear or see the accident, his statement to the investigator is further hearsay evidence as the identity of the vehicle. I accept this proposition is correct.
Allianz submits that Mr Ashby is an unreliable witness noting his reluctance to cooperate, his inability to identify the vehicle involved in any event and his hearsay evidence, which cannot be preferred over the claimant’s direct evidence.
As of 10 July 2020, Mr Ashby emailed NRMA for further information and he confirmed no person actually witnessed the accident, “Jimmy advised vehicle ran over his shoulder”. Allianz submits that this statement supports its submission that the best evidence is that of the claimant who identified the vehicle in 2018 and supports the submission that Mr Ashby’s evidence is unreliable and based on hearsay.
On 13 August 2020, Mr Ashby provided a statement to NRMA which Allianz notes is two years and four months after the accident, and again, Mr Ashby confirmed he did not hear or see the accident and he was upstairs in the office. He reiterates his hearsay evidence of the identity of the vehicle, which Allianz again submits is unreliable.
On 7 September 2020, Nathan Wall provided a statement to AHC which Allianz notes is two years, four months, and twenty-five days after the accident. He confirmed he did not see or hear the accident and did not know the type of car involved. Allianz submits that Mr Wall cannot be relied upon to identify the vehicle.
On 7 September 2020, Paul Shea provided a statement to AHC, which Allianz notes is two years, four months, and twenty-five days after the accident. Mr Shea states that he did not hear or see the accident, but he alleges he was driving a Kia Carnival through the doorway when he lost vision of the area where the claimant was working, when the claimant jumped up and said that I ran over his shoulder. He did not remember the registration number of the vehicle he was driving.
Allianz submits that the evidence of Mr Shea, two years, four months, and twenty-five days after the accident is unreliable by reason of the passing of the time and noting that he did not know the registration number of the vehicle.
On 4 December 2020, the claimant confirmed in his letter to Hall & Wilcox that the claimant was adamant he was run over by a Ford Ranger.
Allianz submits the claimant, as a panel beater, can easily identify the make and model of the vehicle by sight as he did in 2018, when he recorded the registration and make of the vehicle involved.
Allianz submits the claimant’s evidence is to prefer that of Mr Shea, the only person in a position to identify the vehicle he said he was driving on the basis that Mr Shea’s evidence on the identity of the vehicle was provided two years, four months, and twenty-five days after the accident. Allianz submits that in the event that NRMA holds a DRIVES search which confirms the vehicle registration CSO 74U or CS0 74U pertains to a Ford Ranger that the claimant’s evidence is consistent on registration, make and model and should be preferred. Allianz submits that I would not accept that a Kia Carnival was involved nor a vehicle bearing registration YGK 01P, on the basis that there is no evidence to support it. Allianz submits that the registration of the vehicle at fault was CSO 74U and that was fixed to a white Ford Ranger utility vehicle insured by NRMA.
In supplementary submissions, Allianz says that I would find the evidence of Mr Shea, his employer and supervisor, Mr Ashby and the First Aid Officer, Mr Wall, unreliable. The three witnesses were unwavering in relation to the identity of the vehicle involved when the balance of the evidence contains inconsistencies. It submits that I would find their evidence on the identity of the vehicle, manufactured.
Allianz submits that Messrs Shea, Ashby, and Wall were all adamant in oral evidence on 17 June 2021, that the identity of the vehicle of 13 April 2018 was a Kia, yet:
(a)    in 2019, Mr Ashby refused to provide a statement to AHC Investigators, refused to disclose any of the witnesses, refused to provide details of the driver, refused an inspection, and stated that he was upstairs and heard that someone had been hit. In 2020, Trevor Ashby stated “no person actually witnessed the accident, Jimmy advised the vehicle ran over his shoulder”. In 2020 when he finally provided a statement, he provides the identity of the vehicle he was told was involved. In 2021, in oral evidence, he maintained the identity of the vehicle but that was what he had been told. When asked to produced evidence of the Ford Ranger that could have been involved, there were only two in the workshop, despite alleging there were many as he serviced a fleet. The second Ford was removed was a possibility as the claimant had only worked on one, being CSO 74U;
(b)    Mr Wall never provided any evidence about the identity of the vehicle, even when he was given the opportunity in 2020, when he provided a statement to AHC, alleging he was never asked. Allianz submits I would not accept this, when that was the reason the investigator was there. The first time he provided evidence of the identity of the vehicle, was in oral evidence in 2021. He alleged he knew cars, down to number plates of vehicles on a highway, yet could not identify the vehicle upon which the claimant was working. He alleged, against all oral evidence that the vehicle at fault was being reversed out of the paint shop when the accident happened, which Allianz submits I would not accept. For the first time, he was certain of the identity of the vehicle in 2021 but could not identify the vehicle the claimant was working on yet was sure of the identity of the vehicle at fault. Allianz submits his evidence was not credible and was manufactured;
(c)    Paul Shea identifies the vehicle for the first time, over two years since the accident occurred. In oral evidence before me in 2021, he could give no specifics regarding what made him so sure about the identity of the vehicle at fault even as I invited him and prompted him to recall. The only thing he came up with was “he sat up”. He was unable to identify the vehicle the claimant was working on, yet he was sure of the vehicle and the identity at fault. Allianz submits I should not accept this, as his evidence was not credible and manufactured;
(d)    while the claimant presented poorly on matters which were the subject of surveillance, he was consistent in the identity of the vehicle at fault and has been since he first formally identified the vehicle at fault in 2018 when he submitted to the Application for Personal Injury Benefits. He was able to identify the vehicle as first, he had just finished working on it and, second, he had recorded it in his diary and saw it parked next to him in the workshop;
(e)    the claimant’s diary confirmed he finished working on a Ford Ranger CSO 74U at 9:00 am on 13 April, the day of the accident. Both the claimant and Mr Shea agreed that the vehicle at fault was driven to the paint shop at the time of the accident, which is the next step for the vehicle after the claimant completes his panel beating work. The employer’s work injury report confirmed the accident occurred at 9:30 am, which perfectly fits the timeline for the completion of the panel beating on the Ford Ranger to proceed to its next stage, being the paint workshop. It was on its journey there that it struck the claimant;
(f)    the claimant has been consistent about the identity of the vehicle since 2018 and remained so through to 2021. Now, in 2021, there is corroborative documentary evidence by way of a diary with a time recording and at the time he finished at 9:00 am, plus the injury report with the time stated at 9:30 am, which confirmed the Ford Ranger was the vehicle at fault, and
(g)    it submits that I would be satisfied on the evidence that the registration of the vehicle was CSO 74U, fixed to the white Ford Ranger utility vehicle insured by IAG Ltd trading as NRMA Insurance.

NRMA’s submissions

Initially NRMA was unable to obtain the registration of the vehicle it alleged was responsible for the accident. Subsequently it identified the other vehicle as a Kia Carnival bearing registration YGK 01P (Allianz’s vehicle).
It submits that the claimant’s Application for Personal Injury Benefits signed
27 August 2018 indicated that he believed the vehicle at fault was one being driven by “Paul” bearing registration CSO 74U which is the NRMA vehicle. The claimant did not provide a vehicle type nor the driver’s full name.
On 17 October 2019, the claimant’s solicitors emailed NRMA that it was unable to report the accident to the police as it did not know the insured driver’s licence, full name and address.
It instructed AHC Investigations (AHC) to conduct factual investigations.
In their initial factual investigation report dated 30 October 2019, AHC provided a non-signed copy of the claimant’s statement which provided as follows:
“Paragraph 17. I continued to work on this RAV4 when all of a sudden, the foreman has driven his car around and drove straight over my shoulder. I have shouted out in pain as I did not even see the car coming or hit my shoulder.
Paragraph 18. I then sat down for about half an hour …
…
Paragraph 20. The police were not called and there was no report made at a later date. I also do not know what type of report was made on behalf of the staff at Lansvale Repairs.
Paragraph 21. There was no CCTV footage of the incident and I do not believe that there were any photographs taken at the time. I do not know the names or contact details of any witnesses; however, Lansvale Smash Repairs might have these details.
Paragraph 22. The vehicle that ran over my shoulder was a Ford. I do not remember the registration number of this car, but it is indicated in the claim form that was submitted. I remember that it was a customer’s car that had been worked on and it was a normal practice for it to be driven through the workshop as it was at the time.
…
Paragraph 27.The driver of the Ford that ran over my shoulder did say sorry at the time. He added that he could not see me …”
AHC also included a transcript of a conversation with Mr Ashby on 24 October 2019. Mr Ashby at the time was not prepared to provide a signed statement, nor the details of the vehicle he said was involved in the accident, but did say the following:
“I was upstairs at the time, and I heard someone had been hit. I went down there and Tej [sic] said that a car had hurt his shoulder. There were no marks on his shirt, or his body and I could see this as he took his shirt off at the time.
…
No footage. No cameras and no person saw the car hit him on the day. I have even spoken to our supervisor and medical officer who went to him on the day and they have advised it was not a Ford with the registration that has been nominated by Tej, it was a Kia [sic] Carnival people mover.”
In an email exchange between NRMA and Mr Ashby, the claimant’s employer, on
7 and 10 July 2020, Mr Ashby is said to have confirmed the vehicle involved in the accident, or at least the only vehicle that could have been involved in the accident, was the Allianz vehicle.
AHC provided a further report to NRMA dated 18 August 2020. This included a statement from Mr Ashby, subsequently provided by AHC dated 13 August 2020, which provided as follows:
“(a)    When the accident was alleged to have occurred with Tej Kumar, our supervisor and medical officer went to offer him some assistance. These staff members are identified as Paul Shea – supervisor and Nathan Wall – medical officer. They can both be contacted at Lansvale Smash Repairs on xxxxxxx; however, they have indicated to me that they did not see or hear the alleged accident.
(b)     Mr Kumar alleged it was a Ford Ranger that had collided with his shoulder on the day of the incident, however, the supervisor and medical officer advised that the only car in the vicinity of the alleged site was a Kia Carnival, registration number YGK-01P.
(c)     The vehicle was … in our workshop for minor damage and at the time it was being driven by Paul Shea when the accident is alleged to have occurred. Paul Shea can be contacted at Lansvale Smash Repairs; however, he has indicated he did not see or hear the alleged accident.”
The latest report from AHC dated 17 September 2020 includes a statement of Nathan Wall, obtained on 7 September 2020, which provides at paragraph 11 that he was working upstairs when Paul Shea asked him to render assistance to an incident involving Mr Kumar as I am the first aid officer.

AHC, within the same report provided the statement of Mr Shea dated
7 September 2020, which says:
“Paragraph 11. I was driving a Kia Carnival through a doorway of a workshop at the time when I lost vision of the area where Mr Kumar was working as it travels in an upward gradient. When I came through the doorway the Kia levelled out and Mr Kumar has jumped up and said that I had run over his shoulder.”
Paragraph 12. I do not remember the registration of the Kia Carnival that I was driving at the time …
…
Paragraph 14. I immediately stopped the Kia Carnival that I was driving at the time, called the safety officer down to the area for assistance. His name his [sic] is Nathan Wall and he is the first aid officer. We both went and spoke to Mr Kumar.”
NRMA therefore submits that on the basis of the above, the claimant may have incorrectly remembered the vehicle registration when completing the Application for Personal Injury Benefits on 28 August 2019.
Mr Shea, in a statement made to AHC on 7 September 2020 said in his statement that:
“(a) I was driving a Kia Carnival through a doorway at the time …
(b) I do not remember the registration number of the Kia Carnival that I was driving at the time.”
It submits that all available witnesses agree that the driver of the vehicle was Paul, hence NRMA submits that I would be satisfied that the driver was Mr Paul Shea, as referred to in the statements of Mr Ashby, Mr Wall, and Mr Shea himself.
It submits therefore that Allianz should be assessed as the relevant insurer under s 3.3 of the Act.
It submits that the claimant’s evidence should not be accepted on the basis that he is not a reliable historian. Also, he made a number of false and misleading claims under s 6.40 of the Act and that his evidence on the whole must be considered with great caution. These false and misleading statements were in relation to a wide range of issues, although some might seem insignificant, as a whole, it submits, they shatter the claimant’s credibility.
In its submissions it points to a number of inconsistent facts in the claimant’s evidence more broadly and relating to the extent of his injury and his capacity for work. It relies on this evidence to submit that the claimant is not a witness of truth, nor is he a reliable historian.
It submits that, by contrast, Mr Shea gave clear and incontrovertible evidence that he was driving a Kia Carnival at the time of the incident.
Likewise, it submits, Mr Wall gave clear and incontrovertible evidence that he came to the scene of the incident and ran around the car – a white people mover – to get to the claimant. Mr Wall explained why he could not recall what car the claimant was working on. By the time he ran around the white people mover his focus was on the claimant which, NRMA submits is a reasonable explanation having regard to his position as a first aid officer. Mr Ashby has confirmed that there were two Ford Rangers at the workshop on the date of the accident and only one Kia Carnival.
The claimant’s work diary, assuming it is an accurate record, shows that:
(a)    of the three vehicles referred to in the documents provided by Mr Ashby, the claimant worked only on the Ford Ranger bearing registration CSO 74U;
(b)    the claimant has no record of the other Ford Ranger bearing registration CC5 0EK or the Kia Carnival, and
(c)    the only other vehicle that the claimant worked on that day was the RAV4 that he says he was underneath at the time the accident occurred.
The claimant says at the time of the incident that he blacked out or lost consciousness for a period of five to ten minutes explaining that during the time he could see nothing, and further that he could not see the vehicle involved in the incident. He explained that he had previously seen the Ford Ranger in the shop as it was getting a paint job.
Whilst NRMA does not admit that the claimant lost consciousness, he is the only witness that suggests that the vehicle involved in the accident was the Ford Ranger bearing registration CSO 74U. His own evidence – that he did not see the vehicle at the time of the incident and could not have seen the vehicle for up to ten minutes – undermines his claim. Coupled with the claimant’s poor presentation as a witness, NRMA submits his evidence as a whole should be disregarded.
It submits that neither parties’ case suggests a separate vehicle to the Ford Ranger bearing registration CSO 74U or the Kia Carnival YGK 01P were involved in the incident. The NRMA submits that it is not open to me to find that some other vehicle was involved, in those circumstances.

Reasons

In Maria Saravinovska v Krste (Chris) Saravinovski; Chris Saravinovski v George Saravinovski (No 6) [2016] NSWSC 964 at [462]-[473], Kunc J summarised as the principles which attach to fact finding. Relevantly:
(a)    regard must be had to the fallibility of human memory, which only increases with the passage of time and the competing interests of those persons involved: per McClelland CJ in Equity in Watson v Foxman & Ors, and Commonwealth Bank of Australia v Foxman Holdings Pty Ltd (Receiver and Manager Appointed) (1995) 49 NSWLR 315 (1995) 49 NSWLR 315 at 318;
(b)    there must be "actual persuasion" that the alleged matter occurred in the sense that I may be reasonably satisfied of its existence, taking into account the seriousness of the allegation, the inherent likelihood of the alleged matter, and any consequences that would flow from such a finding. See: Warner v Hung, in the matter of Bellpac Pty Ltd (Receivers and Managers appointed) (In liquidation) (No 2) (2011) 297 ALR 56 at [48]; [2011] FCA 1123 (Emmett J);
(c)    evidence given by a witness will be preferred in cases where the version of events given is inherently probable in the circumstances or is given against their interest;
(d)    the fact that a witness is untruthful on some matters does not negate their credibility in its entirety. Evidence that is of logical probative value may be relied upon, whereas evidence that contains discrepancies or inadequacies, or is otherwise tainted, will not be relied upon. This is especially the case where the untruthfulness, as here, relates to ancillary matters. See Cubillo v Commonwealth of Australia (No 2) (2000) 103 FCR 1 (Cubillo) at [118], [121] (O'Loughlin J); [2000] FCA 1084, and Sangha v Baxter [2009] NSWCA 78 (Sangha) at [155]-[156] (Basten JA, Handley JA agreeing);
(e)    disbelieving one matter does not automatically make the obverse true, although it may lend support to the existence of an alternative state of affairs, and
(f)    not every issue before me is capable of resolution, nor is it always necessary to resolve every aspect. It will always be dependent upon the evidence available to the Commission and the nature of the claim brought. Only the real issues in a matter must be conclusively determined.
In determining its factual findings as to the relevant insurer, I am not bound to accept any of the evidence of a particular witness and may accept part only of a particular witness's evidence: Cubillo at [118]- [123], and Danckert v Tonkin [2015] NSWSC 1570 at [152]. Where there are starkly divergent views on the issue of the relevant vehicle, I am required to form a view having regard to the whole of the evidence. I am not quite required to accept or reject the entirety of any particular witness’s evidence. That is, because I may not be persuaded as to the claimant’s evidence with respect to the extent of his injury or incapacity does not mean that I must find him untruthful as to the aspects of his evidence with which I am concerned in this matter. That is so, even if it were be found that he has lied regarding these other matters: Sangha at [155]- [156], and Croucher v Cachia [2016] NSWCA 132 at [129]. Unless the evidence requires it, findings on credit should not be made “globally” – “a witness may reliably recount some matters and not others”: Leung v Fordyce [2019] NSWSC 18 at [76] and CCL Secure Pty Ltd v Berry [2019] FCAFC 81 at [94].
In my view, having regard to the whole of the evidence in the inconsistencies which are ably set out, particularly in Allianz’s submissions above, the contemporaneous written records created before the prospect of this dispute are a more reliable indicator of what occurred than competing contentious accounts of the various witnesses drafted or created later when the matter was under investigation.
I am acutely aware of the limitations of witness statements and records of interview as vehicles for conveying an accurate account. While they have an important function and serve a useful purpose, they are not always the best means of acquiring evidence. Where there are disputed issues of fact, they are, in my opinion, an unsatisfactory medium.
Likewise, oral evidence is frequently also unreliable for a different reason. This is because human memory of what occurred or what was said is fallible for a variety of reasons and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervenes and processes of memory are overlaid subconsciously by perceptions, innocent discussions as to recollections or recounts, or perceived self-interests, as well as conscious consideration of what should or could have happened.
Having considered the whole of the evidence, and the parties’ detailed submissions, I am actually persuaded that the best and most reliable evidence in this instance is the handwritten note of the claimant’s diary entry as to the vehicle upon which he worked on the morning of the incident. He was by all accounts the only witness to the accident. He claimed that the vehicle that collided with him when he was on the ground was the vehicle upon which he had earlier worked being the Ford Ranger. This fact is clearly recorded in his diary. He had not challenged us to the veracity of this entry.
This evidence is to be preferred over the evidence of Mr Shea, who recalls being “up high” when the incident occurred, which recollection informs his evidence that he was driving the Kia, not having witnessed the accident nor being able to identify the registration of the vehicle that he was driving at the time.
Mr Wall’s recollection of running around a people mover appears, based on the chronology set out in Allianz’s submissions, to be a creature of recent recollection. I am persuaded that it is a product of human memory reconstructed by latter discussions with colleagues in an earnest attempt to resolve the identity of the vehicle. As Allianz correctly notes this evidence came later in time to the original position taken by these two witnesses when the investigation was first on foot.
For these reasons, the contemporaneous note, is, in my view, the more persuasive evidence.
I do not consider that the issues of the claimant’s credibility more generally properly infect his evidence with respect to this fact. He has no self-interest, as I understand it, nor was any alleged, which would cause him to be untruthful as to the identity of the relevant insurer.
Accordingly, I am persuaded that the relevant insurer is the NRMA, and, consequently, it is liable for the payment of the statutory benefits owing to the claimant.

Costs and Disbursements

There is a dispute between insurers in respect to recovery of legal costs under Part 8 of the Act.
NRMA makes an application for costs above the regulated level. It submits that the claimant is not a party to the dispute before the Commission for determination and is not entitled to costs. It seeks its costs on the application.
It submits that s 8.3(4) of the Act confers on the Commission the discretion to award legal costs.
It refers to Wright J’s interpretation of s 8.3 of the Act in AAI Ltd t/as GIO v Moon [2020] NSWSC 714 at [70], [113] and [120] – [121], and [127] – [128].
It submits that an hourly rate of $311 be allowed, which is consistent with the approach taken by several Members when allowing for conferences connected with the assessment of common law claims and relies on several decisions where this approach has been undertaken. It submits that I was assisted by the representation by counsel at the oral hearing in this matter. It submits that any costs award I would apply to both solicitors and barrister’s fees.
In relation to costs, Allianz does not agree that the cases relied upon by the claimant support the exception of costs for an insurer rather than the claimant. However, if I were to find that NRMA the insurer of the vehicle at fault and deny the claim for recovery of statutory benefits by NRMA from Allianz, it seeks an exception that its costs be paid by NRMA at the charge out rate claimed by NRMA.
Section 8.3 (4) of the Act, when read together with the very helpful explication in the reasons of Wright J in Moon, allows the Commission to permit the payment or recovery of costs in excess of the statutory maximum.
The statutory maximum in this instance only applies to the second of the two miscellaneous assessment disputes by dint of Schedule 2 (3) (n) of the Act and Schedule 1(3)(2)(g1) of the Regulations.
As the reasoning above demonstrates, the determination of that second dispute is inextricably linked with the determination of the first dispute. Therefore, the costs incurred in respect of the first dispute are the same costs incurred in respect of the second dispute which is a regulated miscellaneous claims assessment matter provided for in Schedule 1(3) of the Regulations.
As I apprehend by NRMA’s submissions it seeks permission to pay its lawyers (solicitors and barristers) costs in excess of the statutory maximum. Allianz seeks that NRMA pay its costs.
This issue of payment of costs in by one insurer to another was not the subject discussion in Moon. However, extension the reasoning in that case would not appear to permit me to award costs. That is because of the disjunctive use of the expression “or” in s 8 (4) of the Act between the two adjectives “payment” or “recovery” applies to an Australian legal practitioner, not a party. Recovery of costs is provided for in s 8 .10 of the Act which provides for the entitlement of a claimant for statutory benefits to “recover” from costs from an insurer. There is no entitlement for recovery of costs between insurers.
Nevertheless, I am persuaded that this is a matter which was sufficiently detailed and complex to warrant a grant of permission under s 8.3(4) of the Act for the Australian legal practitioners in this case (both the solicitors and barrister) to be paid their legal costs for the legal services provided to the two insurers in connection with the claimant’s claim for statutory benefits. I consider the amount of $311 per hour is an appropriate assessment of the sum to be paid.
The claimant to be in this case as a witness only. Nevertheless, he was at all times represented by his solicitor. I see no reason why the claimant’s solicitor should not also be entitled to the payment of his costs pursuant to s 8.10(4)(b) of the Act. Nevertheless, his solicitor has not made an application for costs. I will grant the parties liberty to be heard on this question by approach to me on the portal.

Conclusion

My determination of the Miscellaneous Claims are as follows:

NRMA is the insurer of the at-fault motor vehicle for the purposes of s 3.3 of the Act and is responsible for the payment of any statutory benefits to the claimant.
Effective Date: This determination takes effect on 13 April 2018.
Legal Costs: I grant permission under s 8.3(4) of the Act for the Australian legal practitioners in this case (both the solicitors and barrister) to be paid their legal costs for the legal services provided to the two insurers in connection with the claimant’s claim for statutory benefits.
I grant the parties liberty to be heard on the question as to whether I should award the claimant solicitors’ costs be paid by NRMA pursuant to s 8.10 (4) (b) of the Act.

Legislation

In making my decision I have considered the following legislation and guidelines:
• the Act, and
• the Regulations.

[2022] NSWPIC 631

15 November 2022