Koster v NRMA
[2021] NSWPIC 484
•26 November 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Koster v NRMA [2021] NSWPIC 484 |
| CLAIMANT: | Luke Koster |
| INSURER: | NRMA |
| MEMBER: | Terence Stern |
| DATE OF DECISION: | 26 November 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under section 3.28 of the Motor Accident Injuries Act2017; motorcycle accident with vehicle; contributory negligence; winding unmarked road; steep road and blind corner; learner driver; conflict in evidence; legal costs; exceptional circumstances; claim for fees of Senior Counsel; Held - driver of the vehicle likely more at fault than the claimant. |
| DETERMINATIONS MADE: | The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.28 the motor accident was not caused mostly by the fault of the injured person 2. Effective Date: This determination takes effect on 26 November 2021. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with section 8.10(4) of the Act is $ 12,831.50 inclusive of GST. A brief statement of my reasons for this determination is attached to this certificate. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017 (‘the Act’)
BACKGROUND
This determination relates to a miscellaneous claim which is a reviewable decision under Schedule 2(3)(d)(e) of the Act about cessation of statutory benefits pursuant to sections 3.11 and 3.28 of the Act
There is a dispute between Luke Koster, ‘the Claimant’ and the Insurer with respect to the cessation of statutory benefits pursuant to ss 3.11 and 3.28 of the Act.
The Claimant was injured in an accident on 14 November 2019 at about 6:30 pm when the motorbike he was riding, CZL42 was involved in a collision with a vehicle YGQ491 driven by Sarah Aspinall, ‘the Insured driver’.
The location of the accident was Macquarie Pass part of the Illawarra Highway near Robertson NSW with the nearest cross street being Mount Murray Road.
Brief Undisputed Facts
At the time of the Accident the Claimant was riding his motorcycle in a southerly direction i.e. down Macquarie Pass and the Insured driver was driving her motor vehicle in a northerly direction.
Macquarie Pass is a steep and winding mountain pass with a combination of a number of sharp bends and winding roads with blind corners.
The collision occurred on a left sweeping bend from the Insured driver’s direction of travel and at the exit of a blind corner where the view was obstructed by a rock wall at the immediate edge of the roadway of the Insured driver’s line of travel.
Factual Dispute
The factual dispute can be summarised shortly. The Insured driver alleges that she was “hugging” the rock wall and definitely on her side of the road which was not marked by any line. While the Claimant alleges that the Insured driver’s vehicle was well away from the rock wall.
The competing versions shortly put. The Insured driver maintains [Statement of 20 January 2020]:
“[24] My car was damaged at the front end…
[32]where the road starts going up hill and becomes very winding, (it) is known as Macquarie Pass…
[33] I came to an area of Macquarie Pass that has the last hair pin bends…
[34]I went around the very sharp right-hand hairpin corner and started to drive uphill around some sweeping hairpin bends. I accelerated out of the tight hairpin, and I was travelling less than 50 km/h as it is very steep and winding.
[35]I came to a sweeping left corner that has a rock wall about 10 metres high on the left side of the bend that obscures vision through the corner. I slowed down to take the corner and I was in third gear. I rounded the left bend and stayed wholly in my lane.
[36]As I came around the rock face, my vision opened up through the bend and I immediately saw a motorbike coming straight towards me and he was in the centre of my lane. The road doesn’t have any separation lane marking but I know I was completely in my lane because I was so close to the rock wall.
[37]I put my brakes on heavily to try and stop… There was no time for me to try to avoid him and he smashed straight into the centre of my car. When the collision happened, the car was still in motion but had slowed right down and straight after the impact, my car stalled as I hadn’t put the clutch in …
[38]I would estimate that he was only about 3 metres in front of me when I first saw him.”
The Claimant also gave a Statement on 20 January 2020. Again, I briefly summarise the relevant parts of the Statement.
“[32]We roe (sic – read ‘rode’)… along the Illawarra Highway heading back to Albion Park and I was riding first, and Tyson was following behind about three or four car lengths.
[33]I got to the first hairpin corner… and we started to negotiate the bends as you go downhill… I may have been in 3rd gear… and travelling at about 60 km/h and slowing for sharper corners.
[34]I left the first hairpin that was a sharp right-hand bend and started to go through the winding sweeping corners…as I went through a left-handed sweep a car passed me in the opposite direction and there was enough room to pass.
[35]About three or four seconds after that car passed me, I approached a right-handed sweep that is partially a blind corner because of a large rock wall and I was holding a line and approaching it near the centre of the road but I was definitely in my lane.
[36]I suddenly saw a car approaching from the opposite direction and almost dead centre of the road and possibly maybe a little further over my side… It just appeared in front of me and the next thing I remember is hearing a click and realised I was in the air.”
Tyson Davison gave a Statement on 17 November 2019 which I briefly summarise:
“We left to return to Albion Park via Macquarie Pass at approximately 6:30pm. Luke was riding in front, and I was approximately 3-4 car lengths behind…
As I came down the hill I saw Luke come into the corner and the impact happen. As Luke was taking a corner his bike was towards/near the centre of the road, and at the same time… a small silver hatchback ran wide out of the corner crossing over the middle of the road… I saw the impact happen and both vehicles hit head on… when I reached the scene both the vehicles were in the middle of the road.”
EVIDENCE AT THE ASSESSMENT CONFERENCE
The Insured driver said that immediately before the Accident she was travelling at 50 kph as she was rounding a corner. She was going rather slow, and she had an eye on the speedo. She slowed right down to take the corner and was in third gear and crawled around the corner when she saw the motorcyclist and noticed how close she was. She tried to make her vehicle slow down but there was not much she could do, and he collided with the front of her car. He was very close when she rounded the corner.
Under cross-examination the Insured driver emphasised that she was “crawling” around the corner at the time of the collision. She said her car travelled about a metre beyond the collision point. She did not have time to swerve at all and she was close to the rock wall.
The Insured driver was shown the cover of the L plate which appeared in one of the photos and was just in front of the car where it had fallen off. She was asked to agree that the orientation of the vehicle in the photo was away from the rock wall. She replied that the car had swerved and that was the explanation.
The Insured driver agreed that she didn’t see when the L plate cover fell off and she could not give an explanation as to why it was where it appeared in the photo on the road.
Mr Toomey put it to the driver that the photo showing the position of the L plate cover was completely inconsistent with the version she gave of proximity of the vehicle to the rock wall immediately prior to the collision. She replied that she knew her car had moved at the point of the impact.
Mr Toomey asked her if the car did not move then she had to agree the photo was inconsistent with the vehicle having hugged the rock wall before the accident. She did not agree that she was not hugging the rock wall but has taken the corner more widely. She did not agree that the photo showed the resting position of the car at the impact point of the accident.
Mr Toomey put it to the Claimant that the vehicle was travelling very slowly and came to a standstill at the time of the accident as a result of having stalled. She disagreed.
David Aspinall answered questions. He made it clear he wasn’t focussing as a result of being very tired and this was the reason why his sister was driving. He did recall in his peripheral vision the car being close to the rock wall, but this was in the context of his acceptance that he was not focussing at the time of the accident. He did not notice the motorcyclist at all until the Accident actually happened and in fact, he did not realise what was happening until he felt a collision impact.
The Claimant answered questions in cross-examination. He said that immediately prior to the collision his speed may have been about 50 km/h. Questioned with respect to para [36] of his Statement, maintained that the Insured driver was on his side of the road and that she was not in the centre but on his side of the road.
It was put to him again that the Statement said, “almost dead centre”. He answered that she was in his area of the road and if anything she was driving wide of the corner. He denied that she was closer to the rock wall.
Tyson Davison answered questions. He said he was riding 3-4 car lengths behind and was looking ahead of him. He was pretty certain where the Claimant was but was not focussing on him.
Mr Davison said the car came a bit wider out of the corner and then there was the impact.
OTHER EVIDENCE
The most significant evidence apart from the witnesses referred to above is the photographic evidence taken by the police at the time of the collision. The most significant of the photos were photos taken at 7:48 pm and 7:49 pm on 14 November 2019. The object on the road in about the centre of the front of the vehicle was identified at the Assessment Conference as being the cover of the L Plate. The car is seen at a significant angle with the rear appearing to be pointing towards the rock wall.
SUBMISSIONS
Submissions of the Insurer
The Insurer’s primary written submission is at R1. I briefly summarise:
[36] The Accident was caused wholly by the fault of the claimant.
[43]The Insurer highlights the damage to the Inured driver’s vehicle was primarily to the front bumper/grill and deformity/indentation in the middle of the bonnet. This is consistent with the Insured driver’s version that she was wholly within her lane very close to the rock wall and that the claimant crossed on to the incorrect side of the road while negotiating the right sweeping bend.
[44]The most likely scenario was that the Claimant while negotiating the partially blind right sweeping bend at about 60 km/h encroached onto the oncoming lane which caused him to collide head on.
[45]Refers to Vairy v Wyong Shire Council [2005] HCA 34.
[46]Refers to Manley v Alexander [2005] HCA 79 at [12].
[47]The Claimant breached his duty of care to safely manoeuvre his vehicle by failing to keep his motorcycle within his lane, maintain a safe speed while negotiating a bend and keep a proper lookout. He was unable to take evasive action and collided head on with the Insured’s vehicle which was travelling in the opposite direction at about 25 km/h.
[48]A reasonably prudent driver in the position of the Claimant ought to have been able to safely manoeuvre his vehicle while negotiating a bend in the correct lane and to have avoided the Accident.
[49]A reasonably prudent driver in the position of the Claimant would have anticipated that he was travelling along a steep and winding mountain pass with sharp hairpin bends and winding roads with blind corners, that may create dangerous situations and require him to exercise greater caution.
[50]The accident was caused wholly by the fault of the Claimant.
Claimant’s Primary Submissions
The Claimant’s primary submissions of 20 August 2021 are at A1. I briefly summarise by reference to the paragraph numbers:
[8] The Insured driver was reconstructing where she was on the road by reason of her belief as to the position of her car in relation to the rock wall.
[10]The damage to the front of the Insured driver’s car demonstrates that the collision occurred just to the driver’s side of centre on the front of the vehicle.
[11] The vehicle was not moved from its resting position following the collision.
[12]The vehicle had not been moved from its resting position before the police photographs were taken.
[14]The photographs taken by the police demonstrate the nose of the car to be pointing away from the rock wall consistent with the driver having “run wide”. The driver had no time to do anything other than brake hard. She took no other evasive action. the position of the car on the carriage way, as depicted in the police photographs cannot be explained by the Insured driver having swerved when confronted with the oncoming motorcyclist. Her account is consistent with what her brother said at para [23] to the investigator that his sister “had absolutely no time to react”. The debris in front of the car including the L plate which had evidently fallen off, appear immediately under the front of the car, demonstrating that the resting position of the car is the same as that at the point of impact.
[16]Given that the damage to the Insured driver’s car was almost front and centre if the version given Insured driver and her brother that she was driving wholly within her lane were correct, it would mean that the Claimant, an experienced motorcyclist, rounded a blind righthand bend in a position where, were a car to be coming the other way, he would be on an unavoidable collision course. That is inherently unlikely. The far greater likelihood is that the Insured driver was inexperienced, failed to negotiate the left-hand bend in her own lane, taking the bend too widely.
[17] On the basis of the whole of the evidence the Insured driver took the bend too widely placing her vehicle in the Claimant’s lane and on an unavoidable collision course.
[18]The opinion of the police constable is inadmissible.
Submissions at the Assessment Conference
Mr Toomey submitted:
[1]The Claimant had 20 years riding experience and was very familiar with the road.
[2]It is inherently unlikely that the Claimant was on the wrong side of the road into a blind corner.
[3]The diagram the driver made was of a collision course with the rockface.
[4]That the driver took the bend wide is entirely consistent with the front of the vehicle being in the centre of the road.
[5]The photos are very important and emphasise the position of the L plate cover on the road.
[6]This is not a case about speed or a proper look out. The objective evidence is consistent with the vehicle being in the centre of the road not hugging the rockface.
[7]The Insured driver’s reconstruction was inconsistent with the photos.
[8]The driver had reconstructed her evidence. This led to her evidence that after the motor vehicle accident she fumbled with the steering wheel i.e. causing the vehicle to end up in its final position.
[9]Her account of fumbling with the steering wheel is a reconstruction. The objective evidence is consistent with the position of the L plate cover on the road.
[10]The Insurer has the onus of proof.
[11]David Aspinall said that the vehicle was stopped at the point of collision.
[12]The photos are totally inconsistent with the driver’s version. There was no evidence of considerable movement of the vehicle after collision.
[13]The only explanation is that the driver ran wide just before the collision.
In reply, Ms Kulczycki submitted that the Claimant took reliance on the photos too far. There was no evidence that the vehicles did not move. The photos don’t go so far as to show that the vehicle was over the centre line.
LEGAL FRAMEWORK
Legislation
In making my decision I have considered the following legislation and guidelines:
·Motor Accident Injuries Act 2017 (NSW) (‘the Act’);
·Motor Accident Guidelines 2017; and
·Civil Liability Act 2002.
Section 3.11 of the Act states:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a)the motor accident was caused wholly or mostly by the fault of the person, or
(b)the person’s only injuries resulting from the motor accident were minor injuries.
(1) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
30. Section 3.28 of the Act states:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if--
(a)the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b)the person's only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.
Section 5R of the Civil Liability Act 2002 provides:
‘5RStandard of contributory negligence
(2) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm
(3) For that purpose:
(a)the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b)the matter is to be determined on the basis of what that person knew or ought to have known at the time’
Case Law
The Common Law applies in relation to a determination of the degree of default for the purposes of contributory negligence.
Most of the common law decisions in respect of contributory negligence are in relation to the apportionment of damages and such apportionment is made by such percentage as the court thinks just and equitable in the circumstances.
In Cooper v Nominal Defendant [2017] NSWDC Neilson DCJ [at 32] said:
‘……an effect of s.5R is to pick up and apply, as best one can, to the conduct of the person who suffers harm principles relevant to determining negligence on the part of the person owing a duty of care. That would include the general principles set out in s.5B and 5C. That in turn would be consistent with the fact that Div.2 of Part 1A applies to motor accidents. Significantly s.3B(2) of the Civil Liability Act provides at s.49 also applied to motor accidents.’
At 34 his Honour referred to the judgment of the High Court of Australia in Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34:
‘The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison of culpability for the damage involves the comparison both of culpability i.e. of the degree of departure from the standard of care of the reasonable man……and the relative importance of the acts of the parties in causing the damage…….it is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination.’
In Singler v Ferguson [2015] NSWDC 38 Mahony SC DCJ set out the legal principles applicable [116]:
‘[116] The plaintiff bears the onus of proof of establishing that the defendant was negligent. Negligence is to be determined pursuant to the provisions of the CLA. ……
[117] …the High Court held in Sibley v Kais [1967] HCA 43……that the regulations relating to traffic rules were not definitive of the respective duties of drivers of vehicles to each other, nor was the breach of such regulations conclusive as to the performance of a duty owed to other road users.’
At page 427 his Honour said:
‘The common law duty to act reasonably in all the circumstances if paramount. The failure to take reasonable care in given circumstances is not necessarily answered by reliance upon the expected performance by the driver of the give way vehicle of his obligations under the regulations, for there is no general rule that in all circumstances a driver can rely upon the performance by others of the duties, whether derived from statutory sources or from the common law. Whether or not in particular circumstances it is reasonable to act upon the assumption that another will act in some particular way, as for example, by performing his duty under a regulation, must remain a question of fact to be judged in all of the particular circumstances of the case.’
His Honour continued:
‘[35] The exercise of reasonable care requires, as the majority observed in Manley v. Alexander …..reasonable attention to all that is happening on or near the roadway that may present a source of danger. 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 vehicles’ path.
[36] The driver is not required……to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such event……the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37] ….nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the limits of visibility and control so as to be able to react to whatever ventures into the vehicle’s path…..
At [121] referring to the Court of Appeal decision in Dungan v Chan [2013] NSWCA 182:
‘15. A driver is entitled to assume that others will observe the rules of the road. …….as a general rule a person is entitled to assume that others will act in a non-negligent manner. However, where negligence is the issue the real question is, whether, in all the circumstances, the person charged with negligence exercised a degree of care that those circumstances required……’
McHugh J Vairy v Wyong Shire Council (2005) 223 CLR 422 also held that the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case:
“Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require 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 [2005] HCA 79 at [11].”
In Manley v Alexander [2005] HCA 79 Gummow, Kirby and Hayne JJ who were the majority judgement held at [12]:
“It may readily be accepted that the possibility that someone would be found lying on a roadway... at 4.00 am is... remote. But the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
In Varga v Galea [2011] NSWCA 76 McColl JA delivered the judgement of the Court. She said at [10]:
“Section 5E of the 2002 Act provides that in determining liability for negligence, the plaintiff always bears the onus of proving, on the balance of probabilities, any fact relevant to causation. I would understand "plaintiff" to be read as meaning, where appropriate, the party propounding the issue of negligence, in this case, the respondents. This is made clear, insofar as the issue of contributory negligence is concerned...”
RESOLUTION
In this case there are two diametrically opposed versions of the facts. On the one hand there is the Insured driver who insists that she was at all times going extremely slow. On the other hand there is the Claimant a very experienced rider, who insists he was coming down hill in a safe line and at a safe speed.
The Claimant was in fact, probably, riding in a safe line and the accident on the balance of probabilities would not have happened if the Insured Driver had “hugged” the rock wall.
The Claimant’s version is corroborated by Mr Davison who was riding 3-4 lengths behind him. Although not independent, as he was friends with the Claimant, it is not to be readily assumed that he would lie.
There is objective evidence as to the position of the Insured driver’s vehicle immediately prior to the accident. She was driving very slowly, so slowly that when she engaged the brake realising there was going to be a collision her vehicle stalled.
There is objective evidence as to the position of the vehicle being more towards the centre of the road than “hugging” the rock wall by the position of the L plate cover and the indication of the rear of the vehicle toward the wall shown in the police photograph which was taken before the vehicle was moved.
Mr David Aspinall made it clear he was not focussed on the driving as he was very tired and in fact, he only realised that there was an accident when there was an impact. His perception of the proximity to the wall was peripheral only and his evidence cannot be relied upon as probative of the proposition that the Insured driver was “hugging” the wall.
The more likely explanation for the collision is that the Insured driver in fact took the corner wide.
The question that I am asked is whether or not the Claimant was “mostly at fault” for the collision. In order to prove that fact, the onus is on the Insurer, but it has failed to do so.
If the degree of contributory negligence is required to be determined and, it is not, it was well under 61% and probably under 50%.
I find that the Claimant was not wholly at fault with respect to the cause of the Accident.
Further, I find that pursuant to s 3.28(1) of the Act the Claimant was neither wholly nor mostly at fault in respect of the cause of the collision.
COSTS AND DISBURSEMENTS
Both parties have made submissions as to whether or not exceptional circumstances apply. The Claimant’s solicitor has made submissions in respect of the amount of costs.
Claimant’s submissions
The Submission reviews s 8.10 and refers in particular to s 8.10(4)(d) of the Act and then refers to Schedule 1 of the Motor Accident Injuries Regulation 2017 and notes that the Schedule prescribed that the maximum costs recoverable in respect of disputes pursuant to 3.11 and 3.28 being miscellaneous claim assessment matters is 16 units or $1710.24 in respect of each dispute plus GST.
I briefly summarise the Submissions:
[5] argues that the power provided by s 8.10 has the effect of permitting Claimant’s benefit of legal representation in relation to “unusually complicated disputes”. If “exceptional circumstances exist that justify payment of legal costs incurred by the claimant”.
The Submission proceeds to argue that “exceptional circumstances” must be considered against the totality of PIC disputes rather than as against the individual category of dispute under consideration.
[11]The Submission further argues that a higher proportion of assessment disputes and in particular liability disputes may involve exceptional circumstances.
[13]The Submission then refers to San v Rumble (No 2) [2007] NSWCA 259 in which Campbell JA [with whom Beasley JA and Ipp JA agreed] in considering s 153(1) of the Motor Accidents Compensation Act 1999 (now s 8.10(4)) stated that:
“[67]In deciding whether it is an “exceptional case” within the meaning of section 153(1), the court needs to find that the circumstances… are unusual or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors. But… the case need not be one that is unique, unprecedented, or very rare.”
[14]Refers to AAI Ltd trading as GIO v Moon [2020] NSWSC 714.
[16]The Submission continues at [16] to set out the arguments for the proposition that this case gave rise to exceptional circumstances which justify payment of legal costs incurred by the Claimant. The “circumstances” are set out (a)-(i):
(a)Detailed instructions and interview with the Claimant and witness including preparation of statements;
(b)Legal analysis of “wholly or mostly at fault” and contributory negligence;
(c)Review of all material on liability;
(d)GIPA Applications;
(e)Written submissions;
(f)Involvement of Counsel;
(g)Conferences with witnesses both in preparation and with Counsel;
(h)Attending at Assessment Conference; and
(i)Briefing Senior Counsel given the difficult “liability” issue and the diametrically opposed evidence of the witnesses and in addition the Claimant’s significant injuries.
[17]The Submission continues that the legal work involved much more than what the regulated fee permits.
[18]Claimant’s serious injuries.
[19]The Claimant would have been unlikely to marshal the evidence himself.
The Submission then proceeds to quantify the costs including 15 hours for the Claimant’s solicitor at $590.00 an hour for $8,850.00 plus GST and fees of Senior Counsel of $33,049.75 for a total of $41,899.75. It should be noted Mr Toomey’s fees includes an uplift of $5,962.50 as per his agreement with Mr Garling.
Insurer’s Submissions
I briefly summarise the Submissions of the Insurer of 19 November 2021:
[1.2] Disputes that liability disputes inherently require extensive investigations. The Insurer questions what legal analysis of contributory negligence was performed.
[1.4]The legislation does not provide for a specific cost regime for matters involving determination of fault and does not specifically exempt such matters from the regulated costs regime. Something more is required than the fact it is a liability dispute or oral evidence is required to make a case exceptional.
[1.5]The Submission continues that this claim does not fall into a category of exceptionality. There were not multiple teleconferences, substantial investigations or involvement of experts.
[1.6] The Submission refers to para [16] of the Claimant’s Submission and argues that (a)-(e) are inherent in any Miscellaneous Claims Dispute and could not cause the matter to be regarded as exceptional. Further, the decision to engage Senior Counsel at the Claimant’s election does not make a matter exceptional.
[1.7]The retention of Senior Counsel by the Claimant must be seen in the light that there was in effect only one issue, the position on the road of the driver’s car and the position of the Claimant’s motorcycle.
[1.8]Further, there were no new or novel legal principles and very little engagement with legal precedent. There was no requirement to engage any complex expert opinion or independent dissection of a complex chain of events.
[1.9]The Submission continues that this was a miscellaneous claims dispute as contemplated by the legislation and the Claimant’s costs should be limited to the regulated amount.
[2]The Submission then proceeds that an appropriate hourly rate for the Claimant’s Solicitor is $311.00 an hour which would fit in with the allowed rate for conferences connected with the assessment of a common law claim under the Act.
[2.1]Refers to a number of other decisions by other Assessors.
[2.2]Refers to the Objects of the Act to encourage the ‘quick, cost effective and just resolution of disputes’ and ‘keeping the overall costs of the scheme within reasonable bounds’.
[2.3]This part of the Submission concludes that if I consider that there are exceptional circumstances the appropriate amount for Solicitor costs would be no more than $2,332.50 plus GST.
The Submissions then deal with the costs of Counsel:
[3.1]It notes that the Regulations did not anticipate the retention of Counsel in a Miscellaneous Claim disputes. In Claims Assessment matters the maximum amount that can be awarded for representation is a flat fee of 30 monetary units and submits that if I were minded to accept that exceptional circumstances applied, I should limit the amount accordingly.
The Submission deals with the invoice provided by Mr Toomey and at [3] disputes the need to spend excessive 3 days preparing and running this case. It continues that the Regulations did not anticipate a situation where Counsel would be retained in a Miscellaneous Claims dispute. It then observes that in a Claims Assessment matter the maximum that can be awarded for representation in a case which might involve liability and quantum is a flat fee of 30 monetary units which would involve preparation for hearing by Counsel.
The Submission continues that if I were minded to accept that exceptional circumstances applied, I should limit the fee for Counsel to not more than 30 monetary units.
The Submission continues [3.2] to refer to the restrictions on fees for legal representations in court proceedings. Further, the submission argues that in a Miscellaneous Claim dispute in circumstances where the Regulations would suggest the retention of Senior Counsel in Court proceedings would be exceptional, I should take that into account in any determination.
CONSIDERATION
The 2017 Act states:
“8.3 Regulations fixing maximum costs etc recoverable by Australian legal practitioners
(3) An Australian legal practitioner is not entitled to be paid or recover for a legal service or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section. An Australian legal practitioner is not entitled to be paid or recover any amount for a legal service or other matter of a particular kind if the regulations declare that no costs are payable for a service or other matter of that kind.
(4) An Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the claimant or the insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Commission.’
‘8.10 Recovery of costs and expenses in relation to claims for statutory benefits
(3) A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4) The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that—’
(a)the claimant is under a legal disability, or
(b)exceptional circumstances exist that justify payment of legal costs incurred by the claimant.’”
The Application for legal costs has been made on the basis that there have been “exceptional circumstances” and an award of additional legal costs is justified in the circumstances.
In Masters & Cheyne [2016] FamCFC 255 at [42] Murphy J said:
“Exceptional circumstances has… been interpreted… in… different contexts [citation omitted] in ordinary usage… “exceptional” means “unusual or out of the ordinary” [citation omitted] or “unusual or extraordinary” [citation omitted]…
We must construe “exceptional” as an ordinary English adjective and not as a term of art. It describes the circumstance which is such is to form an exception, which is out of the ordinary course, or is unusual, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that it is regularly, or routinely, or normally encountered [citation omitted].
As Watts J pointed out the Full Court…applied that statement.”
The Family Court of Australia more recently followed the articulation of the meaning of the phrase “exceptional circumstances” in Martyn & Martyn [2020] FamCA 526.
In a more recent discussion in the High Court of Australia in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 Gageler, Keane and Nettle JJ considered the phrase “exceptional circumstances” in section 473DC of the Migration Act. At 229 [30] their honours said:
“Quite what will amount to exceptional circumstances is inherently incapable of exhaustive statement. The word "exceptional", in such a context, is not a term of art but "an ordinary, familiar English adjective": "[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.”
In another case BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 White J discussed considerations that the Authority had to take into account when determining whether it was satisfied that “exceptional circumstances” exist at [41]:
“Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional: Griffiths v The Queen(1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295[2007] FCA 388 at [23]‑[26] (Rares J); Hasim v Attorney‑General of the Commonwealth [2013] FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).”
The Claimant’s Submission refers to what Campbell JA said in San v Rumble (No 2) [2007] NSWCA 259. Whether or not the facts of this case give rise to “exceptional circumstances” is in contest and if so, the appropriate legal costs are also in contest.
AAI Ltd trading as GIO v Moon [2020] NSWSC 714 (a decision of Wright J) also involved a Miscellaneous Dispute decision as to whether the accident was caused wholly or mostly by the fault of the Claimant. In that case, the DRS Assessor found that in the particular circumstances of the case the claimant should be permitted to recover the reasonable and necessary legal costs incurred by him in respect of the dispute beyond those permitted in the Regulation.
Wright J said at [99] that other cases could be envisaged that were exceptional because they involved an unusual degree of factual or legal complexity or for some other reason and this required the incurring of more substantial legal costs via the claimant and it was consistent with the objects of the Act to permit the amount of legal costs recoverable in such exceptional cases to exceed the amount fixed by Regulation where that was reasonably required to prevent injustice, hardship or other relevant adverse consequences.
Wright J continued [103] that the legal costs that a Claimant for statutory benefits was entitled to recover and be paid under s 8.10 were the “reasonable and necessary” legal costs “incurred by the claimant” in connection with the Claim.
Further [105], whether legal costs were reasonable and necessary was a matter that depended on the circumstances of each case.
Legal costs are incurred within the context of s 8.10 when the Claimant has become liable to pay costs for legal services.
Further, at [111] where the Claimant has an actual liability to pay legal costs for services provided by a lawyer and the lawyer who provided the services has a corresponding entitlement to payment the relevant costs have been “incurred:
Were there “exceptional circumstances”?
i.First, the retention of Senior Counsel was not an “exceptional circumstance”. There are many competent personal injury lawyers at the bar who would have been available to accept the brief in this matter with sufficient notice and who would have discharged this role very competently.
ii.There were no independent witnesses.
iii.The facts as to how the Accident happened required close analysis.
iv.Most liability disputes as to the question of who was wholly or mostly at fault do have independent witnesses or other facts which makes the resolution of the matter much more readily determinable.
v.This case involved diametrically opposed accounts and it was necessary to hold an Assessment Conference which involved lengthy cross-examination, particularly of the Insured driver.
vi.The Assessment Conference commenced at 10:30am on 17 November 2021 and was lengthy, taking more than 3.5 hours.
vii.There was a substantial body of material consisting of 243 pages.
viii.The Insured driver was a relatively young person who at the date of her Statement on 20 January 2020 was 17 years old.
ix.Robust cross-examination was required, and it was reasonable and probably necessary that such cross-examination be conducted by a skilled cross-examiner, while not necessarily Senior Counsel.
x.The Claimant did sustain significant injuries including, as submitted, a potential brain injury.
xi.As submitted, the Claimant did sustain serious injuries such that he has valuable rights at stake.
When all of the factors are taken into account, I consider that this is a case where the circumstances are exceptional and s 8.10(4) applies.
I assess costs of the Claimant’s solicitor at $311.00 an hour (having taken into account the Insurer’s Submissions referred to above) for 15 hours giving an amount of $4,665.00 plus GST i.e. $5,131.50. I consider this amount is reasonable and that the Claimant has incurred a liability to his solicitor for at least that amount.
I assess the fees of Counsel as follows:
i.reading, preparation and conferences on the basis that it was reasonable and necessary to brief Counsel (but not Senior Counsel) including GST $3,850;
ii.Brief on Hearing including GST $3,850;
Total amount $7,700.00.
It follows that the total amount that I allow for legal costs for the Claimant is $ 12,831.50 including GST.
Terence Leland Stern
Member (Motor Accidents Division)
Personal Injury Commission
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