MacMahon v Insurance Australia Limited t/as NRMA insurance

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	MacMahon v Insurance Australia Limited t/as NRMA Insurance [2021] NSWPIC 427
Claimant:	Anthony MacMahon
insurer:	Insurance Australia Limited t/as NRMA Insurance
Member:	Ms Belinda Cassidy
DATE OF DECISION:	19 October 2021
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); statutory benefits claim; miscellaneous claims assessment; whether claimant wholly or mostly at fault under sections 3.11 and 3.28 of the MAI Act and whether weekly benefits should be reduced for any contributory negligence under section 3.38 of the MAI Act; single vehicle accident; motorcycle on semi-rural road; rider lost control on a bend sustaining catastrophic injury; failure to see speed advisory and curve warning sign; deficiencies in road design and signage which did not comply with current standards caused the accident; consideration of expert evidence; Held - claimant not wholly or mostly at fault and no contributory negligence; costs assessed in accordance with the Regulation.
determinations made:	In accordance with Division 7.6 of the Motor Accident Injuries Act2017, the Commission’s assessment is: 1. For the purposes of section 3.11 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 3. In accordance with section 3.38 of the Act, the claimant’s weekly payments of statutory benefits are not to be reduced due to the finding there was no contributory negligence on the part of the claimant. 4. The amount of the claimant’s costs in the matter is $14,155 inclusive of GST. A statement setting out the Commission’s reasons for the assessment are included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Anthony MacMahon was riding his motorcycle along Hinton Road in Phoenix Park near Morpeth on Sunday 6 October 2019. He turned right into Phoenix Park Road and, at the intersection of McFadyens Road as he went around a bend in the road he drove off the road and into a gully.
Mr MacMahon was thrown from his motorbike and among the injuries sustained by

Mr MacMahon was a spinal cord injury which has resulted in paraplegia. At the commencement of these proceedings, Mr MacMahon was an interim participant in the Lifetime Care and Support scheme. I understand he is now a permanent participant in the scheme.
On 21 October 2019, Mr MacMahon made a claim for personal injury benefits on his own insurer (NRMA) under Part 3 of the Motor Accident Injuries Act2017 (the MAI Act). On 6 November 2019, NRMA accepted the claim and commenced paying benefits to Mr MacMahon[1].
[1] Mr MacMahon’s claim form is identified as document A5 in the agreed bundle of documents (the bundle). NRMA’s first liability notice accepting the claim is dated 6 November 2019 and is identified as document A6 in the bundle.
NRMA continued to pay benefits while its investigations into the accident continued. At the conclusion of those investigations, on 13 May 2020, NRMA wrote to Mr MacMahon advising him that he was wholly at fault in causing his accident and that pursuant to sections 3.11(1) and 3.28(1) liability for any benefits beyond the first 26 weeks after the accident was denied[2]. An internal review was sought and NRMA affirmed its original decision[3].
[2] NRMA’s liability notice accepting liability while investigations were continuing is dated 6 January 2020 and is identified as document A7 in the bundle. NRMA’s final liability notice denying liability dated 13 May 2020 is identified as document A8 in the bundle.
[3] The internal review decision dated 23 June 2020 is not in the agreed bundle but is identified as document A7 in the claimant’s original bundle of documents.
Mr MacMahon and NRMA are in dispute about whether Mr MacMahon was wholly at fault in causing his accident and that dispute was referred by Mr MacMahon to the former Dispute Resolution Service (DRS) on or about 5 August 2020. The dispute was referred to me for determination. I have held five preliminary teleconferences in the matter. At the last teleconference, on 7 September 2021, the parties requested, and

I determined I would assess the dispute on the papers.

LEGISLATIVE FRAMEWORK

Liability for benefits beyond 26 weeks

Part 3 of the MAI Act establishes a scheme of statutory income support as well as the payment of treatment and care benefits for almost all[4] persons killed or injured in a motor accident (within the definition in the legislation) on NSW roads on or after

1 December 2017.
[4] There are some disentitling provisions. For example, if a person has a workers compensation claim (section 3.35) or they have been charged with or convicted of a serious driving offence (section 3.37) then no benefits are payable at all.
The first 26 weeks of benefits are paid if no one is at fault or even if the injured person is at fault[5]. However, after the first 26 weeks, the legislation states that an injured person is not entitled to benefits if they only have minor injuries[6] or if they are wholly or mostly at fault for causing their accident[7]. ‘Mostly at fault’ requires a finding of contributory negligence of greater than 61%[8].
[5] Section 3.1
[6] Within the definition of ‘minor injury’ contained in section 1.6.
[7] Section 3.11(1) for weekly income support payments and section 3.28(1) for treatment and care benefits.
[8] Section 3.11(2) and s 3.28(2).
NRMA says Mr MacMahon was wholly at fault or, in the alternative that he is mostly at fault and because the degree of his contributory negligence should be assessed at 80%[9].
[9] Paragraphs 28 and 29 of the Insurer’s further submissions – document A3 in the agreed bundle.
Mr MacMahon says in his further submissions[10] he was not at fault at all. He says that the road and the signage were not up to standard and that the relevant road authority ‘was the only, or at least the predominate, cause’ of his accident. Mr MacMahon denies any contributory negligence[11].
[10] Paragraphs 2.15 – 2.19 of document A5 in the agreed bundle.
[11] Paragraphs 3.1 – 3.13 of document A5 in the agreed bundle.
Section 3.38 provides for the reduction of any weekly benefits paid or to be paid after 26 weeks for the claimant’s contributory negligence.
The parties agree that there are three disputes to be determined in these proceedings:
(a) whether NRMA can terminate Mr MacMahon’s weekly statutory benefits under section 3.11 because he is either wholly or mostly at fault;
(b) whether NRMA can terminate Mr MacMahon’s treatment and care benefits under section 3.28[12] because he is either wholly or mostly at fault, and
(c) if he is not wholly or mostly at fault, whether NRMA can reduce the claimant’s weekly statutory benefits under section 3.38.
[12] While the claimant is a participant in the Lifetime Care and Support Scheme (LTCS) because of his catastrophic spinal cord injury, Mr MacMahon asserted (and it has not been challenged by the insurer) that there are some treatment modalities not covered by LTCS but which are covered under the MAI Act.

Jurisdiction

As mentioned in paragraph 5, the claimant’s application was lodged at DRS. The Personal Injury Commission (the Commission) commenced operation on 1 March 2021, and I am a Member of the Motor Accidents Division of the Commission.
Schedule 1 of the Personal Injury Commission Act2020 (the PIC Act) provides:
(a) the DRS is abolished - clause 3;
(b) the DRS matter in this claim is a ‘pending proceeding’ – clause 14B(1);
(c) I am empowered to assess the matter – clause 14B(3), and
(d) the MAI Act, the Motor Accident Injuries Regulation 2017 (the Regulation) and the Motor Accident Guidelines continue to apply – clause 14B(4)(c).
Schedule 2 to the MAI Act, clause 3 provides a list of miscellaneous claims assessments matters. Sub-clauses (d), (e), (g) and (n) provide the Commission with power to determine the above disputes.

REVIEW OF THE EVIDENCE

Claimant’s evidence

The claimant’s claim form did not include a description or diagram of the accident scene but relied on the police report.
Mr MacMahon gave a statement to the insurer’s investigator on 17 December 2019 while he was a patient at Royal North Shore Hospital[13] which includes the following information:
[13] The statement is part of the AHC Investigations report dated 24 December 2019 (identified as document A9 in the agreed bundle) and can be found at page 50.
(a)    the claimant was, at the time of the accident 47 years of age;
(b)    he had been riding motorcycles since he was 17 years of age and rode his motorcycle about 10 – 20 hours a week;
(c)    he discloses a couple of driving infringements but says he had none in the last five years;
(d)    he says he had never had any previous at fault motor accidents;
(e)    the accident the subject of this claim occurred at 1.45pm on 6 October 2019. The weather was fine and the road was dry;
(f)    the claimant was riding his 2016 Harley Davidson Roadster motorcycle which he had owned for over a year, which he was familiar with and which was in good condition having been serviced a few months before the accident at the place of purchase – Harley Davidson at Gosford;
(g)    he had been lunching with his daughter at the Hinton Hotel[14] and was travelling to a friend’s place at Largs some five minutes away;
[14] There is no suggestion of any involvement of alcohol and the police report does not indicate that alcohol was a factor in this accident. The claimant says he had two light beers with lunch and that the last drink was about 30 minutes before the accident.
(h)    ‘My view was clear and unobstructed at the time of the collision’. Visibility he said was good as the area was lit by natural daylight;
(i)    he described the area as rural and that the site of the accident was on Phoenix Park Road near McFadyens Road. The road was bitumen and consisted of two lanes, one in each direction marked by double unbroken lines;
(j)    the speed limits was set at 80 kilometres an hour;
(k)    he describes the road architecture as involving a flat gradient, a deep gully directly beside the road (and close to the road), a blind bend to the right which started off gradually but which ‘gets very sharp’. There was a shed on the eastern side of the road which blocked his view of the bend;
(l)    Mr Macmahon says he was unfamiliar with the road and it was his first time driving upon it;
(m)     at the time of the accident there were no other vehicles around however there was a vehicle coming towards him in the opposite direction which passed him. He surmises that had that vehicle not been there at that time he may have been able to take some corrective action by leaving his bike further to the right and taking some corrective action;
(n)    he left the Hinton Hotel about two minutes before the accident, turned right onto Phoenix Park Road, a few hundred metres later saw an 80km/h sign and accelerated to 70 km/h;
(o)    he remained in the centre of his lane and was ‘looking ahead, paying attention to the road ahead and my surrounds’;
(p)    ‘I saw the road up ahead curve to the right. It looked like a gradual turn. By the time I first saw that corner, I was on top of it, and only a few metres from the corner. The road just looked like it went straight, then all of a sudden I saw the corner in front of me’;
(q)    the accident occurred ‘within a split second’;
(r)    he tried to take evasive action by braking however he was already in the corner and had to let go of the brakes to maintain control. He ‘feathered’ the brakes and lent to his right. He said he could not ‘shed’ enough speed or turn sharp enough to complete the turn;
(s)    his rear wheel hit the grass and pulled the bike into the gully which was ‘a metre to 5 foot’ below the road without a fence. His bike became airborne, landed on the bottom of the gully and his back was compressed and he was then thrown off the bike landing in the grass;
(t)    he says, ‘the corner looked like it was a 45 degree corner … it is definitely a strange and dangerous corner’. He considered there should have been warning signs or a metal guardrail;
(u)    Mr MacMahon thinks he was doing about 60 km/h at the time of impact;
(v)    he felt pain in his back and could not move his legs. He was hidden from view but managed to ring his daughter. A passing vehicle saw his hand sticking up holding his phone and stopped to assist;
(w)   Police and ambulance arrived and in time a Westpac helicopter arrived to transfer him to Royal North Shore Hospital but he was in ‘too much pain to focus on the events at the scene’;
(x)
his bike was ridden home by his daughter’s boyfriend. It had a small

20 cent piece sized dent in the petrol tank the handlebars were bent and the front headlight was smashed;
(y)    he says there was nothing blocking his vision to the front or the left or right and he was not distracted, and
(z)
he says, ‘The police officer, as well as the hospital, have advised me that

I should inform the council about that dangerous corner’.
Mr MacMahon drew a sketch of the scene of the accident which is reproduced below:
[Diagram 1]

First Responder evidence

The Ambulance report[15] has a record of a call made at 13.43 arriving at the scene at 14.01 and a history of the motorcycle accident ‘Male was single rider of motorcycle moving approx 70-80 km/h and lost control going around bend in the road’.
[15] Document A16 in the agreed bundle.
Police produced documents following an application made by the claimant[16]. Included is the report which has what appears to note an incorrect time of 2.45pm but which says:
Vehicle 1 was travelling in a northerly direction along Phoenix Park Road Morpeth at approximately 80 km /h. About 60 metres north of the intersection of McFadyens road vehicle 1 entered a bend, at the beginning of the bend the front wheel of the vehicle left the roadway and into the grassy area at the side of the road.
The vehicle continued for about 20 metres into the ditch adjacent to the road before the front wheel became jammed in grass and direct causing the vehicle to flip causing the rider to be ejected for a short distance.”
[16] These documents are found in three bundles identified as A17, 18 and 19 in the agreed bundle’.
In the third group of documents (at page 169) is a police case report which notes the claimant said he was not speeding and did not see the signage for the corner. The police noted there was signage, the speed was not excessive and that no further action would be taken. Police photographs clearly show the ditch, the curve and the farmhouse.
The police records include details of a number of other police incidents and accidents occurring in the vicinity both before and after Mr MacMahon’s accident. Of relevance are the following[17]:
(a) 8 October 2016 - two vehicles approached the bend from opposite directions, the one travelling generally south took the bend ‘wide’ and the other took evasive action and slid off the bend into a grass ‘spoon drain’. The police describe this bend as ‘off camber’ with an unsealed shoulder, and
(b) 28 March 2015 - a vehicle was ‘negotiating a sweeping right-hand bend’ when the passenger side wheels left the roadway. The driver made attempts to correct however the vehicle ‘careered into a culvert’.
[17] The first incident is recorde3d at page 191 and the second at 216 - 217

Insurer’s evidence

The insurer’s investigator’s first report only includes the claimant’s statement and related and consent type documents. The investigator completed a second report[18] which includes a scene diagram, photographs and an interview with one of the attending police officers, Senior Constable Fishbeck on 20 March 2020.
[18] Dated 23 March 2020 and identified as document A10 in the agreed bundle.
Senior Constable Fishbeck says:
(a)    he has 14 years policing experience as a general duties Police Officer. He was the officer in charge of the investigation;
(b)    the accident happened just past the bend;
(c)    he spoke with Mr MacMahon on 31 October 2019;
(d)    a blood alcohol sample taken at the Hospital returned a negative result;
(e)    there was minimal damage to the motorbike which the Senior Constable indicated no excessive speed;
(f)    the claimant was found not far from his bike which again Senior Constable Fishbeck suggests indicates Mr MacMahon was not ‘doing eighty’ at the time of the accident, and
(g)    the Senior Constable was asked to surmise what caused the accident and he noted the corner was ‘signposted out’ and that it could have been inattention, unfamiliarity with the road and not entering the corner correctly.
The photographs of the scene of the accident taken by the investigator show the three signs of relevance which will be discussed throughout these reasons:
(a)    photograph 1 - a black and yellow curve warning and 35 km/h speed advisory sign affixed to the first telegraph pole on the left of Phoenix Park Road after the Hinton Road intersection. There is a shrub or bush next to the telegraph pole and what appears to be tall grass around or possibly a mound underneath the pole;
(b)    photographs 2, 3 and 4 - a black and white chevron sign at the McFadyens Road intersection (referred to by the experts as a unidirectional hazard marker). This can be seen in photograph 2 which was taken 200 metres from the accident location (although the direction of the chevrons appears difficult to distinguish) and is even clearer in photograph 3 (taken 150 metres from the accident location) and photograph 4 (100 metres from the accident location) at which stage the direction the chevrons are pointing is clear, and
(c)    a single yellow and black Chevron Alignment Marker (referred to by the experts as a CAM) at the same intersection and to the right of the black and white unidirectional marker as it faced Mr MacMahon. In photograph 4 it can just be seen in front of eight trees and next to a sign advertising a business. It is more clearly seen in photograph 5 taken approximately 50 metres from the accident location.
The police photographs confirm the second and third signs were there as at the date of the accident but there was a dispute about whether the first sign (the speed advisory sign) was there or not.
Following the receipt of documents produced by the Maitland Council[19] and input from the experts, the parties agree that the 35 km/h speed advisory sign was in place at the time of the accident.

EXPERT EVIDENCE

[19] These documents are identified as A13, 14 and 15 and were provided on 28 September 2020, 17 March 2021 and 1 July 2021 and were the primary reason for the time taken in determining the dispute.

Nigel McDonald - AIS Traffic Accident Investigations – first report

Mr McDonald was commissioned by NRMA to provide a report addressing:
(a)    the visibility of the curve warning and 35 km/h speed sign;
(b)    the speed Mr MacMahon was travelling, and
(c)    the view he would have had to the signposting.
Mr McDonald is a Civilian Forensic Accident Investigator with training, study and experience as an accident investigator since 2002 and before that, 13 years as a civil engineer in Traffic Engineering and Road Safety. In total he has 31 years of relevant experience.
Mr McDonald has a Bachelor of Engineering with Certificate qualifications in traffic safety and accident reconstruction. From 2002 to the present, he has worked on a number of projects concerning road safety. From 1994 to 2002 he worked for NRMA Limited as a crash reduction programme manager, traffic engineering manager and project officer. He worked for NRMA Limited as a traffic engineering officer and cadet from 1989 to 1992. He has attended a number of seminars and workshops including in 2017 ‘Road infrastructure issues and motor-cycle crashes seminar’.
Mr McDonald attended the accident site on 22 January 2021 (at an unknown time) and summarised his findings as follows[20]:
(a)    if the 35 km/h sign was there, it could easily be seen including by a motor cyclist turning out of Hinton Road;
(b)    Mr MacMahon was likely to be travelling at 70 km/h as he travelled through the curve and at that speed it was likely he would depart the roadway;
(c)    if he had travelled at a speed less than 58 km/h he would have comfortably followed the curve, and
(d)    the right-hand curve / turn was also clearly marked by a ‘unidirectional’ hazard marker.
[20] The report is dated 25 January 2021 as is identified as document A20 in the agreed bundle.

Mr McDonald expressed the opinion that the 35 km/h sign was there on the date of the accident and that the black and white unidirectional hazard marker was conspicuous but at paragraph 26 of his report he says the black and yellow CAM sign was not conspicuous.
Figure 8 in Mr McDonald’s report shows the curve warning and speed advisory sign is a short distance from the Hinton Road intersection placed on a power pole and with a bush or small tree located next to the pole. Mr McDonald expresses the view at paragraph 31 of his report that the sign was further away from the edge of the traffic than is typical but that because of the rural locale this did not detract from the ability to see it.
Mr McDonald notes at paragraph 47 that the radius through the curve does not accord with current standards as it is not consistent, tightening at a point more than halfway through the curve. But he does note that the risk is not so great that someone travelling at up to 60 km/h could navigate it.

Grant Johnston – CSI Australia

Mr Johnston was qualified by the claimant and has provided a report dated 4 July 2021[21]. Mr Johnston identifies himself as a Civilian Forensic Consulting Engineer with 25 years of training, study and experience.
[21] The report is identified as document A 21.
Mr Johnston has Undergraduate Engineering qualifications and a Master of Engineering Science in traffic and pavement. He has undertaken a number of accident reconstruction courses including an ‘Advanced Motorcycle Collision Investigation Course’ in February 2008.
Mr Johnston was instructed to comment on the presence and placement of the curve warning and speed advisory sign, comment upon the report of Mr McDonald and consider:
(a)    the condition of the road and the bend in the context of motorcyclists,
(b)    prevailing standards, policies and procedures for road warning and advisory signs?
(c)    whether a speed advisory and curve warning sign was required and if so where it should have been located and whether it was appropriately located?
(d)    is Mr MacMahon’s failure to see the sign explicable?
(e)    the relevance or significance of other signs?
(f)    what was the cause of Mr MacMahon’s failure to negotiate the bend and leave the roadway?
Mr Johnston visited the scene of the accident on 20 June 2021 at about 1pm. He utilised a drone and software to produce a detailed plan. He reviewed the documentary evidence.
In Part 5 of his report, Mr Johnston provides a detailed examination of the location of the incident, details of the road with comprehensive measurements and analysis of the photographs and the signage.
Like Mr McDonald, Mr Johnston has analysed aerial photographs and the shadows created to determine that the 35 km/h sign was present at the time of the accident[22].
[22] At page 42 of the report, page 305 of the agreed bundle.
Mr Johnston (at paragraph 6.4) considers the minimal damage to the motorcycle suggests it was not travelling over the 80 km/h speed limit.
Mr Johnston has analysed the curve using Mr McDonald’s diagram and the scale plan Mr Johnston obtained using his drone and was satisfied they were basically identical. He then looked at the centreline radius of Mr McDonald’s curve and considered the curve was not consistent and that it did ‘tighten through the second half of the corner’. He identifies this as an ‘undesirable design feature’ further compromised by the McFadyen’s road intersection giving the impression of a wider radius which tightens with a narrowing of the roadway which together forces a vehicle to more suddenly adapt to the tighter curve (paragraph 7.8).
Mr Johnston considered the evidence of Mr MacMahon who had said he detected the corner too late and was unable to ‘tighten his line’. Mr Johnston says this is consistent with his analysis of the curve. While the claimant navigated the first part of the turn successfully his speed was too great, and he was unable to complete the second half of the turn.
Mr Johnston measured the first part of the bend as having a radius of 100 metres and the second part had a radius of about 70 metres. In figures 5.7 and 5.8 Mr Johnston has reproduced two of the police photos. Figure 5.7 shows the start of the bend and the placement of the buildings and the inability to see the continuation of the bend. Figure 5.8 shows the continuation of the bend.
At paragraphs 7.14 to 7.16, Mr Johnston suggests that at 70 km/h the claimant would have been successfully able to complete the turn if it had remained at a radius consistent with the first part of the turn. Mr MacMahon would then have had two seconds to perceive the tightening of the bend. Mr Johnston considered the claimant’s evidence of applying the brakes then feathering the brakes and attempting to lean to the right but that he could not reduce his speed sufficiently to decrease the radius of his turn and successfully continue around the bend.
Mr Johnston says at the bottom of page 52 of his report ‘…the precise loss of control mechanism does not change the causative element of the road geometry unexpectedly tightening’.
Mr Johnston agreed with Mr McDonald that the maximum safe speed for the corner would have been around 60 km/h.
In terms of the placement of the 35 km/h speed advisory and curve warning sigh,

Mr Johnston measured it as 141 metres south from the start of the bend, 65 metres north of the Hinton Road intersection, 5 metres to the west of the road edge and 2.55 – 3.7 metres above the ground. He says at paragraphs 7.23 – 7.25:
(a) to comply with the 2009 standard, the sign should be been placed 60 – 80 metres before the curve, and
(b) the relevant standard for such signs suggests it should have been placed 2 to 5 metres from the edge of the road, clear of roadside vegetation and not less than 1.5 metres above the nearest edge of the road. Mr Johnston notes this sign was on the outer boundary, not on an independent signpost and higher up than usual.
Importantly at paragraph 7.24 and noting figure 7.6 Mr Johnston identifies that the speed advisory and curve warning side in the opposite direction was placed on an independent pole 2 metres from the edge of the roadway and 1.5 metres high.
I note that the standard also refers to ‘clear of roadside vegetation’. Photograph 1 in the insurer’s investigator’s second report (taken in March 2020) shows a small shrub or tree next to the pole and sign. Figures 4 and 7 of Mr McDonald’s first report are photographs of the telegraph pole and sign taken in January 2021 showing what appears to be the same small shrub or tree growing almost to the height of the sign.

Mr Johnston’s photograph (figure 5.4) of the same pole and sign taken in July 2021 shows no shrub or tree. It is unfortunate that Mr Johnston has not commented upon the presence of this shrub or tree and determined whether it was present at the time of the accident. Mr Johnston has therefore not considered its effect on the visibility and noticeability of the sign.
Mr Johnston also suggests that the placement of the sign 65 metres from the intersection of Hinton Road caused difficulties for the clamant as it was not in his long or even medium range vision and that his primary field of vision was down the roadway. He suggests that within three to four seconds of emerging from Hinton Road he would have passed it unless he happened to look to his left at the line of telegraph poles. He expressed the view that it is ‘quite conceivable that he could miss the presence of [the curve warning and speed advisory sign] given its maximum permissible offset and inconspicuous location on an existing utility pole’. He suggests if it had been placed within the 60 – 80 metre standard distance from the corner ‘this would also provide significantly more opportunity to vehicles controllers entering from Hinton Road time to identify the presence of the sign’.
Mr Johnston also takes issue with the ‘unidirectional hazard marker’ which he says does not have a specific meaning for a horizontal curve and is more usually used as a pair at an intersection (paragraph 7.29).
Mr Johnston also notes that the Chevron alignment marker is ‘barely discernible’ and as only one was used on a curve with a radius of 50 – 99 metres this is not in compliance with the 2009 standard paragraph 7.34
Finally, Mr Johnston (at paragraph 7.36) notes there was a relatively deep ditch (which he records in paragraph 5.8 as being 1.5 metres deep) on what he describes as a ‘poorly designed and delineated corner close to the edge of the roadway’ which he suggests is lacking a guardrail or barrier.
Mr Johnston’s findings were:
(a)    at paragraph 8.3 – that the change in radius of the curve from 100 to 80 metres required a vehicle ‘to reduce speed for the smaller radius portion of the bend especially for a motorcycle where speed, lean angle and radius are all interrelated’;
(b)    at paragraph 8.5 – the curve required appropriate warning and speed advisory signs and chevron markers throughout the bend. ‘The warning sign provided, and the advisory speed were in accordance with the requirements of the Standard but their position was not’. There should have been more than one chevron marker;
(c)    at paragraph 8.10 – the curve warning sign should have been closer to the bend, on an independent signpost at the expected height;
(d)    at paragraph 8.12 – the unusual placement of the sign meant a rider of a motorcycle’s eye was not drawn to it;
(e)    at paragraph 8.16 – ‘the location of the sign contributed to [the claimant’s] failure to see the sign’ particularly as the claimant was turning right;
(f)    at paragraphs 8.20 and 8.22 – the unidirectional hazard sign was in adequate and did not indicate the nature and severity of the bend ‘it simply means a motorist should pass to the right of this sign’, and
(g)    at paragraph 8.24 – the chevron alignment marker was not conspicuous and there should have been more spanning the curve.
Mr Johnston states that the cause of Mr MacMahon’s accident was that:
He had not sufficiently adjusted his speed for the corner due to his failure to identify the warning sign or visualise the severity of the corner.”

Nigel McDonald - AIS Traffic Accident Investigations – 2^nd report

Mr McDonald prepared a supplementary report dealing primarily with the matters raised by Mr Johnston[23]. He says:
[23] The report dated 7 September 2021 is identified as document A22 in the agreed bundle.
(a)    he measured the location of the pole at 5 metres from the roadway by measuring the distance from the edge of the road to the centre of the pole. This suggests to me that therefore half of the sign is within the standard and the other half outside the standard;
(b)    he agrees with Mr Johnston that approaching road users would have to look up and to the left to see the sign although it would be within their field of vision when looking along the road as they approach the sign;
(c)    he disagrees that the unidirectional hazard marker and CAM were inconspicuous and suggests there was no obstruction in front of the signs and that ‘the background to these signs was not of a pattern that would conceal standard and easily recognised road signs’;
(d)    he notes that daylight saving time started on the day of the accident, but he makes no comment on whether this affects any of Mr Johnston’s opinions;
(e)    he would have liked to examine the motorcycle and disagrees that the absence of damage indicates the speed of the vehicle;
(f)    Mr MacMahon could have travelled through the curve on a constant radius of around 70 metres because a motorcycle being narrower than other vehicles does not have to occupy the centre of the lane throughout the curve and can start the curve ‘wide’ in the lane. I note Mr MacMahon’s evidence that there was a car coming in the opposite direction as he was rounding the bend which affected his choices and attempts to avoid the accident;
(g)    Mr McDonald takes issue with the placement of the speed advisory and warning sign and suggests it was compliant with the standard. He says at 2.63 metres it is a typical height compared to a minimum of 2.15 metres required in an urban setting and a minimum of 1.5 metres in a rural setting. He says it was not ‘much higher’ that usual;
(h)
Mr McDonald also takes issue with Mr Johnston’s estimate that the claimant had one to two seconds to identify and absorb the information on the sign. Mr McDonald is of the view he had up to 9 seconds. Mr McDonald has assumed the claimant has stopped at the Hinton Road intersection and that it would have taken Mr McMahon up to 9 seconds at a typical acceleration from a standing start and with a speed of 50 km/h by

65 metres. There is no evidence in his statement that Mr MacMahon stopped. Mr McDonald says the sign would have been within the claimant’s field of view until he was near the sign;
(i)    he agrees that the unidirectional hazard marker has no specific meaning of a curve and is appropriate for an ‘abrupt narrowing’ of the roadway. He says this sign was conspicuous, and
(j)    he appears to agree that the speed advisory and curve warning sign was placed too far away from the curve and therefore not in compliance with the standard and that the lone Chevron Alignment Marker was also not placed in accordance with the standard and should have been accompanied by others. Mr McDonald does however consider the unidirectional hazard marker does give an indication of an abrupt movement to the right which should have alerted the claimant to the tightening of the bend.
Mr McDonald concludes that ‘The key matter in this incident appears to be that the claimant proceeded through the curve too fast as he did not observe any pre-warning of the curve severity and the need to slow for the curve. Signs within the curve do not pre-warn a road user of the need to slow for the curve’.

CONSIDERATION OF THE ISSUES

Submissions from the parties – wholly at fault

The claimant’s initial submissions[24] and NRMA’s first submissions[25] are of limited utility as they were written in the absence of any of the expert reports or the additional evidence about the existence of the speed advisory and curve warning sign.
[24] Identified as document A1 in the agreed bundle.
[25] Identified as document A2 in the agreed bundle.
NRMA’s final submissions[26] note:
(a)    in relation to the previous motor vehicle accidents at the location, details of which were provided in the police documents, the insurer suggests the March 2015 accident appears similar but that there is no evidence about what signs were in place at that time. The insurer suggests the other accidents are not comparable and there are few details;
(b)    while the advisory / warning sign was non-compliant with the current standard in terms of location from the curve, NRMA notes it was within standard in terms of its position from the road and the height was not unusual. NRMA says that placing the sign further away than required gave the claimant more time to prepare for the corner. The insurer says the sign was there to be seen and should have been seen if Mr MacMahon had been maintaining a proper lookout;
(c)    NRMA appears to concede the CAM was not in accordance with the standard, but says the unidirectional hazard sign and the CAM were not obstructed. If Mr MacMahon had been keeping a proper lookout of the road ahead, he would have seen the unidirectional hazard marker which was conspicuous and gave a warning of an abrupt change in direction to the right, and
(d)    while the insurer concedes the construction of the road was not to standard, NRMA says that this would not have contributed to the accident if Mr MacMahon had been keeping a proper lookout and adjusted his speed in accordance with the speed advisory sign.
[26] Identified as document A3 in the agreed bundle.
The claimant’s final submissions[27] address the 35 km/h sign noting:
(a)    the sign was installed after 2010 and was not compliant with the 2009 standard in that it was not 60 – 80 metres from the corner and was too far away;
(b)    the sign was installed on a pole which was at the maximum lateral distance from the edge of the roadway and at least half the sign was outside the maximum;
(c)    while there is no maximum height in the standard the two experts agree it was higher than usual and further away from the lane than usual, and
(d)    it was understandable and not unreasonable for Mr MacMahon to have failed to observe it.
[27] Identified as document A4 in the agreed bundle.
The claimant notes the general agreement of the experts that the yellow and black CAM was not conspicuous and being on its own, non-compliant with the standard. It was therefore understandable and not unreasonable for Mr MacMahon to have failed to observe it.
The claimant submits the meaning of the unidirectional hazard marker is unclear and therefore insufficient to warn the claimant of the approaching right hand bend.
Mr MacMahon submits that the road was not built to the current standards, that the full extent of the curve was blocked by the buildings on the corner and, ‘without adequate signage and warnings, a reasonable driver in Mr MacMahon’s position, maintaining a proper lookout of the road ahead, would not have appreciated the nature of the right-hand curve and the risk it presented’.

Submissions from the parties – mostly at fault

The insurer submits that because the claimant was not familiar with the road, a reasonable person in his position would have reduced his speed and paid greater attention to the road and its surroundings.
The insurer points out an inconsistency in the claimant’s statement that is at paragraph 38 where he says he saw an 80 km/h speed sign a couple of hundred metres north on Phoenix Park Road after turning from Hinton Road.
The insurer argues that despite his view being obscured by the buildings, the claimant continued to ride at 70 – 80 km/h and that the risk of the bend being sharp was foreseeable and a reasonable person would have taken greater care and slowed down.
The insurer quotes from Hawthorne v Hillcoat[28] and Manley v Alexander[29] to suggest the standard of care a driver must exercise is to control the speed and direction of the vehicle to be able to react and adjust to hazards, events or unforeseen circumstances.
[28] [2008] NSWCA 340
[29] [2005] HCA 79
The insurer draws my attention to Davis v Swift[30], a blameless accident motor accident compensation case to suggest that I should assess Mr MacMahon’s contributory negligence by reference to the departure from what would be expected from a reasonable person in the claimant’s position and that I would find his contributory negligence in the order of 80% which would mean he was mostly at fault.
[30] [2014] NSWCA 458
The claimant denies any contributory negligence at all and takes issue with the decisions cited by the insurer noting that in order to establish that a motorist was negligent and failed to keep a proper lookout, the insurer must ‘establish that the motorist had the opportunity to see [the hazard] and failed to do so’.
The claimant says he was travelling at 70 km/h, 10 km/h below the speed limit which was reasonable. The speed advisory and curve warning sign was placed in an unusual location and the yellow and black CAM was inconspicuous and there were not more of them which explains and excuses why he entered the curve at the speed that he did. The buildings to the right of the curve masked the full extent of the curve.
Mr MacMahon says the insurer’s criticism of him is ‘formulated entirely through the prism of hindsight’ which is unreasonable because:
(a)    he did not see a speed advisory sign, placed in an unusual and atypical location;
(b)    he did not see a CAM which was inconspicuous and not compliant with the standards;
(c)    he did not attribute a meaning to the unidirectional hazard marker which is a meaning not usually given to that type of sign;
(d)    he did not anticipate that the curve was not compliance with the standard, and
(e)    he did not drive even further below the speed limit when there was no apparent reason to do so.

MY FINDINGS

Assessment of the evidence

There was no real challenge from the insurer to the claimant’s evidence other than paragraph 24 of the submissions which challenge the statement that there was an 80 km/h speed sign a few hundred metres north from Hinton Road. The photographs and investigator’s reports suggest there was an 80km/h sign to the left of the Hinton Road intersection but not to the right in the direction Mr MacMahon was travelling.
Mr MacMahon is clearly mistaken or confused about the location of that sign. I note Mr MacMahon’s statement was provided to investigators when he was still in hospital and his statement noted that immediately after the accident, he was in too much pain to focus on the accident.
The insurer did not require Mr MacMahon for the purposes of him giving oral evidence and cross-examination.
In my view, Mr MacMahon’s evidence is generally reliable and should be accepted.
In terms of the experts, there has been no challenge to the expertise of either of them and my review of their qualifications and experience suggests they are both suitably qualified to give evidence. Mr Johnston has tertiary qualifications whereas

Mr McDonald does not. Of his 31 years’ experience, Mr McDonald has been employed by NRMA for over one third of that time. I do note that his resume suggests in civil matters he represents claimants much more often than insurers.
Neither expert comments on the standard relevant to the sign which requires a sign to be erected ‘free of vegetation’ and the presence of the small tree or bush growing next to the power pole to which the 35 km/h speed sign was affixed.
Considering both of the experts and the detail of their respective reports, I prefer the evidence of Mr Johnston. Mr Johnston’s report is much more thorough than

Mr McDonald’s first report, in particular in the measurement and examination of the scene. Mr McDonald’s second report takes some issue with Mr Johnston’s report but not in any significant details and in fact there is much they agree on.

Findings of fact

Considering all of the evidence, lay and expert I find as follows:
(a)    Mr MacMahon was an experienced and generally careful motorcycle rider (his statement and the absence of previous at-fault accidents);
(b)    the speed limit in the vicinity of the sign was 80 km/h (agreed by the experts);
(c)    Mr MacMahon turned right out of Hinton Road and accelerated along Phoenix Park Road to a speed of about 70 km/h (agreed by the experts). He was not speeding at the time of the accident;
(d)    shortly before the accident, after he entered the curve, he reduced his speed further to about 60 km/h (the claimant’s statement);
(e)    the 35km/h curve warning and speed advisory sign was present on the day of the accident (agreed by the experts and in accordance with the evidence from Maitland Council);
(f)    Mr MacMahon did not see the 35 km/h curve warning and speed advisory sign (his statement to the police);
(g)    the road architecture, structure or geometry does not meet the current standards (agreed by the experts) and the tightening of the corner is an unexpected and undesirable feature (Mr Johnston’s evidence);
(h)    there was a drain, culvert or ditch along the northern side of Phoenix Park Road after its intersection with McFadyens Road which was between 1 and 1.5 metres below the road surface (Mr Johnston’s report);
(i)    the ideal speed to safely travel through the corner was a speed less than 60 km/h (agreed by the experts);
(j)    the 35 km/h curve warning and speed advisory sign was in an atypical location due to its distance from the edge of the road, the placement on a telegraph pole (and not an independent metal pole) and its height (agreed by the experts). It is also possible it may breach the standard due to the presence of the small tree or shrub which has now been removed;
(k)    the yellow and black CAM was not conspicuous (agreed by the experts). My review of the photographs indicates the sign did not stand out against the background of the trees behind it, until a vehicle would have been almost at the curve. There is also an advertising sign to the right of it which in my view could be a distraction. The single CAM was not in accordance with the standard and should have been one of several placed throughout the curve to provide additional warning of the severity of the curve;
(l)    the white and black unidirectional hazard marker was conspicuous but was being used in an atypical situation (agreed by both experts), and
(m)     the tightening of the curve and the presence of buildings on the right blocked the full extent of the curve (Mr Johnston’s evidence).
Finally, I find that the primary cause of this accident was that Mr MacMahon drove into the bend at a speed that was too fast for the corner and he did so because he did not see the 35 km/h speed advisory and curve warning sign.

The cited case law

Both of the cases cited by the insurer (Hawthorne and Manley) were cases involving pedestrians. In Hawthorne the pedestrian was wearing dark clothing and the accident happened at night. In Manley the accident also happened at night and the plaintiff had been lying on the roadway. In both, the injured pedestrians were prosecuting a cause of action in negligence against the driver of a motor vehicle in claims for common law damages.
The parties appear to agree that for a motorist to be negligent in failing to keep a proper lookout, the motorist must have had the opportunity to see the danger or the hazard and had failed to do so.
There is a definition of ‘fault’ in section 1.4 of the MAI Act which includes the ‘tort of negligence’. This might suggest that I need to consider whether Mr MacMahon was negligent. However, the dispute before me is about entitlement to a statutory scheme of benefits and the claim before me is not a claim for common law damages.

Mr MacMahon owes no duty of care to himself and therefore considering whether he was negligent or not is, in my view, not the way to approach the question posed in sections 3.11(1) and 3.28(1).
In Mr MacMahon’s case there is no ‘defendant’ and therefore I do not, in my view, have to determine the primary negligence of any particular person or entity. I do not have to consider, for example, whether the local council owed a duty of care to Mr MacMahon and breached that duty of care. My focus is on Mr MacMahon and his actions or inactions and whether he, and he alone was to blame or was responsible for causing his accident.
In my view the way to approach the question of whether the accident was caused wholly by the fault of Mr MacMahon is to consider whether there was anyone or anything that caused this accident other than Mr MacMahon. If there is, then he cannot be wholly at fault.
In considering the question of whether Mr MacMahon was mostly at fault, in my view I have to consider whether there is any contributory negligence at all on the part of Mr MacMahon and, if so the degree of that contributory negligence. If I find his contributory negligence is greater than 61% he will be mostly at fault.
In determining whether there is any contributory negligence on the part of the claimant, I must consider section 5R of the Civil Liability Act 2002 which imposes a standard of care as ‘that of a reasonable person in the position of that person’ and that is determined ‘on the basis of what that person knew or ought to have known at the time’.
I agree with the insurer that the approach to assessing the degree of contributory negligence would be in the same way as the court approached that matter in Davis v Swift[31]. That case was dealing with the blameless accident (no-fault) provisions of the Motor Accidents Compensation Act1999. As the concept of contributory negligence ordinarily requires a finding of primary negligence on the part of some other person, the court had to grapple with how to assess contributory negligence in an accident where there was no fault on the part of the defendant and therefore no ability to assess the ‘relative culpability’ of the injured claimant versus a negligent defendant.
[31] [2014] NSWCA 458
In that case the court determined that, in a blameless accident, the degree of contributory negligence is assessed, not be apportioning responsibility between two protagonists but by considering the claimant’s departure from that expected of a reasonable person in the claimant’s position.

Was the accident caused wholly by the fault of Mr MacMahon?

In my view the accident was not caused wholly by the fault of Mr MacMahon for the following reasons:
(a)    the road’s design (in terms of the path of the roadway and the consistency of the curve) does not comply with the current building standard and is therefore a potential hazard or danger to vehicles driving upon it;
(b)    the tightening of the curve in the road was a particular hazard or danger to vehicles in particular motorcycle riders ‘where speed, lean angle and radius are all interrelated’[32]. This is also in circumstances where, for those travelling in the same direction as Mr MacMahon, the change in radius of the curve was obstructed by the farm buildings on the corner;
(c)    the curve should have had a series of Chevron Alignment Markers throughout it which would highlight the potential hazard or danger to riders or drivers. The erection of only one CAM did not accord with the current standard and the placement of that CAM in front of trees and with vegetation and an advertising sign around it made it less conspicuous than it should have been;
(d)    the unidirectional hazard marker while conspicuous was not used in the way such a sign is usually used and which would provide sufficient warning of the sudden change in the curve;
(e)    the curve warning and speed advisory sign was placed in an unusual position, on a utility pole and not a standalone pole, higher up the pole than usual, at the maximum or beyond the maximum distance from the roadway and likely with vegetation very close to it, and
(f)    the curve warning and speed advisory sign was placed too far back from the corner to provide adequate warning.
[32] Mr Johnston’s report paragraph 8.3.
I also note Mr Johnston’s comment at paragraph 7.36 of his report that the ‘relatively deep roadside ditch’ should have had a guardrail or other barrier to prevent vehicles from entering the ditch.
When viewed as a whole, the deficiencies of the road and the signage related to it, mean that in my view Mr MacMahon’s actions or inactions alone cannot be considered to have caused the accident. I find support in the fact that there were two accidents in the same locale in the four to five years before the accident where it appears a driver and a motorcycle rider have lost control at that bend with a comment on the state of the road by the police in one of those.

Was the accident caused mostly by the fault of Mr MacMahon?

The fundamental difference between the two experts in this matter is that Mr Johnston says it was understandable and reasonable that Mr MacMahon did not see the speed advisory and curve warning sign whereas Mr McDonald says it was within Mr MacMahon’s field of vision and was there to be seen.
The sign was there, but Mr MacMahon, an experienced motorcycle rider did not see it. This raises the question of whether he was keeping a proper lookout and whether, a reasonable person in his position, riding a motorcycle and having seconds before turned out of Hinton Road, should have seen it.
I note the finding of the Court of Appeal in Mamo v Surace[33]. In dealing with the issue of negligence on the part of a driver who collided with a cow on the roadway at night. The driver had been, for a period of a couple of seconds before hand, adjusting the CD player in the car. Justice McColl said at paragraph 60:
Accepting that the exercise of reasonable care required the respondent to be able to control the vehicle so as to know what is happening in the vicinity of the vehicle so as to be able to take reasonable steps to react to those events (Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 (at [12] per Gummow, Kirby and Hayne JJ) does not, as Meagher JA pointed out in Marien v Gardiner, require the reasonable driver to be able to, in effect, foresee every event which might happen in the vicinity of the vehicle or, at all times, be in a position to react to everything which might occur.
[33] [2014] NSWCA 58
The court’s finding was that reasonableness and not perfection is required in keeping a proper lookout and that, in the circumstances of that case it was not a breach of duty for the driver to take his eye off the road for a short period of time.
Mr MacMahon has turned out of one road into another. It was an area he was not familiar with. There is no evidence about whether he came to a stop at the intersection before turning right or whether, in the absence of any traffic he slowed down and took the turn without stopping. To safely turn into Phoenix Park Road, he would have had to look left and right to ensure there was no traffic coming. As he turned, his focus would have been on the roadway and straightening his motor bike to navigate the next step of his short journey.
As the rider of a motorcycle, more vulnerable than, for example a motor car driver, Mr MacMahon’s focus would have been, in my view, more focused on his immediate surroundings, such as the road surface ahead and not his peripheral surroundings such as a sign which, in order to see, the insurer’s expert acknowledges he would have had to turn his head and look up.
I do not accept Mr McDonald’s evidence that the claimant would have had up to nine seconds to take in the sign and appreciate its significance. There is not enough evidence as to whether he had completely stopped and how quickly he accelerated once in Phoenix Park Road. Mr McDonald’s evidence contains too many assumptions.
Mr MacMahon’s evidence from his statement was that he was riding normally, staying in the centre of his lane and looking ahead. While the sign was within his field of vision (according to Mr McDonald’s report) he would have had to look up and to the left to properly see it. I accept the opinion of Mr Johnston that the placement and location of this sign was unusual and so unusual as to excuse or explain why Mr MacMahon did not see it.
Having missed seeing the curve warning and speed advisory sign, there was little more, in my view that a reasonable person in the position of the claimant could have done to prevent this accident. There was only one CAM which was inconspicuous and not more CAMs which would have complied with the standard and given a reasonable opportunity to Mr MacMahon to appreciate the approaching curve and adjusted his speed further in advance. The black and white chevron sign while visible was not used in a typical way and I accept Mr Johnston’s evidence that it was not an adequate indicator of the nature or severity of the bend.
I note Mr MacMahon was riding below the speed limit and reduced his speed even further as he entered the curve. I do not believe a reasonable person in the position of the claimant would have reduced their speed in the circumstances just because they were unfamiliar with the road.
I am not satisfied that there should be any finding of contributory negligence made against Mr MacMahon.

Conclusion in respect of the substantive matter

It therefore follows that Mr MacMahon’s accident was not caused wholly or mostly by his fault and therefore his statutory benefits under Part 3 of the Act should be restored.
It also follows that Mr MacMahon’s weekly benefits under Division 3.3 of the Act should not be reduced as I have found no contributory negligence on his part.

Assessment of costs

The claimant seeks costs pursuant to section 8.10 of the Act outside the fees set in the Motor Accident Injuries Regulation on the basis that there are ‘exceptional circumstances in the claim’[34]. While the insurer appears to concede that it is appropriate for costs to be awarded the insurer says that costs should be restricted to the sum set out in the Regulation[35].
[34] Paragraphs 4.1 – 4.3 of the submissions dated 13 October 2021.
[35] Paragraphs 31 - 37 of the submissions dated 27 September 2021.
The claimant says the circumstances of the claim are exceptional on the basis that there was a large amount of material to consider including lengthy submissions from both parties, lengthy investigation reports and two expert reports. The claimant says the dispute has taken over 14 months to be determined with five preliminary conferences and that NRMA expanded the terms of the dispute to include allegations of contributory negligence.
Schedule 1 of the Regulation, Part 1 clause 3(1) provides that the maximum costs for legal services ‘in connection with an assessment … involving a dispute about a regulated miscellaneous claims assessment matter’ is 16 monetary units with a maximum of 60 monetary units per claim. The current value of a monetary unit is $106.89 and the fee for a single miscellaneous claims assessment matter is therefore $1,710[36]. As there are three miscellaneous claims assessment matters to be determined the maximum amount allowed then is the sum of $5,130.
[36] Schedule 3 of the Regulation clause 2 sets out the monetary unit amount and clause 3 requires that the calculated sum is rounded to the nearest dollar.
The parties agreed, early on in the proceedings, that there were three miscellaneous claims assessment matters to be determined in the proceedings before me. While they are interrelated and involve the same facts and evidence, the Regulation clearly envisages a separate fee for each.
The claimant has not provided an estimate of the actual costs incurred in this matter but says that the regulated fee suggests five to six hours of legal work would be covered by the regulated fee.
I am not satisfied that there are exceptional circumstances in this claim to justify the awarding of costs outside the maximum permitted by the Regulation. Liability was denied early on and the insurer has not wavered from its allegation of ‘wholly at fault’. The insurer’s allegation of contributory negligence in the alternative came about because I formed the view early on that a finding of ‘mostly at fault’ was open to me and in order for me to determine that issue I had to consider contributory negligence and the degree of any contributory negligence.
I accept that there were documents obtained from third parties (the police and the local council) but the local council documents in particular were required because of the claimant’s decision to effectively ‘put the insurer to proof’ of the existence of the 35 km/h curve warning and speed advisory sign.
The reports from the experts were lengthy but narrowed the issues in dispute between the parties considerably and in particular reduced the need for an assessment conference hearing to be conducted.
While there are, in my view, no exceptional circumstances in the claim to warrant costs beyond those permitted in the Regulation, I am of the view that the work required in this matter justifies the maximum amount permitted for each of the disputes covered by this assessment and I allow the sum of $5,130 for the claimant’s professional costs.
The expert’s report fee of $8,965 is accepted by the insurer, the fee is unregulated and is reasonable and will be allowed. In addition, the claimant seeks the cost of two applications made under the Government Information (Public Access) Act 2009 ($30 each) which the insurer also agrees should be included in the claimant’s costs. I will allow those. I note that all disbursements claimed are inclusive of GST.
Costs are therefore allowed as follows:
(a)    Professional costs  $5,130
(b)    GI (PA) Act applications  $60
(c)    Mr Johnston’s report  $8,965
Total  $14,155

Member Belinda Cassidy
Motor Accidents Division
Personal Injury Commission

[2021] NSWPIC 427

19 October 2021