Medcraft v Allianz Australia Insurance Limited
[2021] NSWPIC 435
•22 October 2021
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Medcraft v Allianz Australia Insurance Limited [2021] NSWPIC 435 |
| CLAIMANT: | James Medcraft |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 22 October 2021 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); statutory benefits claim; liability declined on the basis accident was not a motor accident within section 1.4 of the MAI Act and in the alternative that if there was an injury the Act is precluded from applying under section 1.9 on the basis the injury arose ‘gradually from a series of incidents’; claimant using a wheelchair; alleged injury due to alleged failure to properly secure wheelchair in a wheelchair accessible taxi; injury occurred during course of journey of up to 20 minutes in duration; Held - accident was a motor accident and injury did not arise gradually from a series of incidents; consideration of Owen v NSW, Khaya v Container Terminals Australia Ltd and Hooker v Gilling. |
| 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 3.1 of the Motor Accident Injuries Act2017, 2. The amount of the claimant’s costs in the matter is $4,213 inclusive of GST. A statement setting out the Commission’s reasons for the assessment are included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
James Medcraft (the claimant) says he was injured in a motor accident on Christmas Day 2019.
Mr Medcraft had been to lunch with his mother at The Star Sydney at Pyrmont.
Mr Medcraft (who uses a wheelchair) and his mother had called for a wheelchair accessible taxi at the conclusion of their lunch. Mr Medcraft says his wheelchair was not properly restrained in the back of the taxi and that he was injured during the course of the trip home and more specifically in three separate incidents during that trip.Mr Medcraft made a claim for statutory benefits in relation to his injury against Allianz, the third-party insurer of the taxi (the insurer).
Allianz has denied liability for the claim and Mr Medcraft has referred that dispute to the Personal Injury Commission (the Commission) for determination. The matter has been allocated to me and I have held three teleconferences.
At the last teleconference[1] the method of assessment was discussed, and it was suggested by the parties, and I concurred, that the matter could be fairly determined on the papers.
BACKGROUND
[1] On 6 September 2021.
Claim form and liability decisions
In his claim form[2], the claimant says the accident occurred on the corner of William and North Street, Leichhardt. He describes the accident as follows:
“I was a wheelchair passenger in wheelchair Taxi. Driver did not secure chair at front and when turning left at approximately 50 km/h wheelchair tipped up causing me to take force in right shoulder.”
[2] The application for personal injury benefits is signed and dated 14 February 2020 and is identified as document A2 at page 2 of the claimant’s bundle.
The claimant described his injuries as follows:
“Pain to shoulder and ribs
Shoulder has ruptured ligament and fracture
Reduced function of right arm”Mr Medcraft also disclosed in the form:
“I am in a wheelchair after pedestrian vs car in 2016. In that event I had dislocated shoulder with reconstruction in 2017.”
The insurer has issued a number of liability notices and decisions as follows:
(a) 30 March 2020[3] – admitting liability to pay statutory benefits to Mr Medcraft for the first 26 weeks after the accident;
(b) 18 May 2020[4] – denying liability to pay statutory benefits to Mr Medcraft on the basis that CCTV footage shows that there was no accident, the wheelchair was secured and there was no event as alleged;
(c) 1 June 2020[5] – internal review decision upholding the second liability decision. Liability was denied on the basis the accident did not meet the requirements of section 1.9 in that there was no injury as alleged and any injury may have arisen ‘from a series of events’ during the journey, and
(d) 28 July 2020[6] – maintaining the denial of liability and relying on a report from Dr Michael Griffith who had viewed the CCTV footage.
[3] Identified as document A12 at page 36 of the claimant’s bundle.
[4] Identified as document R9 at page 199 of the insurer’s bundle.
[5] The internal review certificate of determination is identified as document A13 at page 38 of the claimant’s bundle.
[6] Identified as document A14 at page 46 of the claimant’s bundle.
Legislative Framework
The Motor Accident Injuries Act2017 (the MAI Act) provides a scheme of compulsory insurance for the owners of registered vehicles operating in New South Wales and a scheme of compensation and benefits for persons injured in New South Wales.
Mr Medcraft has made a claim for statutory benefits under Part 3 of the Act.
Section 3.1(1) of the MAI Act provides that if a person sustains injury which ‘results from a motor accident’, ‘statutory benefits are payable in respect of the … injury’ as provided by Part 3.
Section 3.1(2) provides that, subject to the limitations and restrictions in Part 3, statutory benefits are payable ‘whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle’ and even if the accident ‘was caused by the fault of the person to whom the statutory benefits are payable’.
Statutory benefits are therefore available on a no-fault basis although there are some disentitling provisions[7]. At a point in time 26 weeks after the accident, entitlement to ongoing statutory benefits depends upon the nature of the injury and the claimant’s part in causing the accident[8].
[7] For example, if a claimant has a workers compensation claim or if a claimant is charged with or convicted of a serious driving offence (neither of which applies to Mr Medcraft). See sections 3.35 and 3.37.
[8] Sections 3.11(1) and 3.28(1) state that if a person’s only injuries are minor (within the statutory definition) or they are wholly or mostly at fault for causing the accident, benefits cease after 26 weeks.
Statutory benefits include weekly income support benefits for up to five years after a motor accident[9] and treatment and care benefits for life after a motor accident[10]. As
Mr Medcraft was in receipt of a disability support pension at the time of his accident it is unlikely he would have had any entitlement to weekly benefits. He has made a request for payment of shoulder surgery and related treatment following the events of Christmas Day 2019. This request has been rejected by the insurer.[9] Division 3.3 of the MAI Act.
[10] Division 3.4 of the MAI Act
The phrase ‘motor accident’ is defined in section 1.4 of the Act as:
“an incident or accident involving the use or operation of a motor vehicle that causes the ... injury to a person where the ... injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during –
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving o the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control”
Section 1.9 is found within the Division 1A of the Act and concerns the general restrictions on the application of the Act. It says:
“(1) This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.
(2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents.”
Dispute
Allianz denies Mr Medcraft’s entitlement to any statutory benefits at all on the basis that his injury was not sustained in a motor accident within the meaning of section 1.4 of the MAI Act or that if he did sustain injury it is excluded under section 1.9(2) on the basis it arose ‘gradually from a series of incidents’.
Schedule 2 (3)(b) of the MAI Act provides the Commission with jurisdiction to determine ‘whether for the purposes of section 3.1 … the … injury to a person has resulted from a motor accident in this State’.
The submissions lodged by the parties and the discussions held at the teleconferences confirm that the issues I need to consider are:
(a) whether Mr Medcraft sustained an injury in the journey on Christmas Day?
(b) whether his injury arose out of the use or operation of the wheelchair accessible taxi during the driving (or other use or operation) of the taxi?
(c) whether his injury arose gradually ‘from a series of incidents’?
REVIEW OF THE EVIDENCE
The claimant’s statement
Mr Medcraft provided a statement to the insurer’s investigators on 19 March 2020[11]. It should be noted that he refers to the wheelchair taxi as a bus and he says:
[11] Identified as document A3 at page 8 of the claimant’s bundle. The statement contains additional information about Mr Medcraft’s concerns about the driver. As they are not directly relevant to the matters in dispute it is not necessary to canvass them in these reasons.
(a) the claimant is 41, married and lives in Summer Hill;
(b) he is not employed and in receipt of a disability support payment;
(c) he was involved in a significant and serious accident in the United States of America in 2016 when the claimant was hit by a car. The claimant sustained serious orthopaedic injuries to his right leg and a brain injury. He had a metal brace fixed around his left knee and pins inserted into the bones of his left leg;
(d) Mr Medcraft says that wheelchair accessible taxis usually have a seatbelt ‘so that passengers are attached to the actual vehicle and not just the chair’ and that there are four anchor points so that the wheelchair is attached to the vehicle;
(e) Mr Medcraft says his electric wheelchair has a seat belt which he does not usually wear ‘unless I am being transported in a vehicle or that kind of thing’;
(f) after the taxi arrived, the taxi driver moved to the back of the taxi and lowered the ramp and Mr Medcraft drove his wheelchair up the ramp and into the back of the taxi;
(g)
the taxi driver only used two of the four anchor points and did not give
Mr Medcraft the taxi’s seat belt. The claimant said he fitted his own wheelchair seat belt after the journey started;
(h) the claimant did not raise the failure of the taxi driver to secure the wheelchair at the time because he thought it was a new system. The claimant did not say anything to the driver during the course of the journey because he had PTSD and was fearful of the driver’s reaction;
(i) the claimant took photos inside the taxi of the unattached anchor points, and
(j) the journey was in two parts. The first part was from the casino to the claimant’s mother’s house in Hubert Street Leichhardt. The alleged injury occurred in the second part of the trip between the claimant’s mother’s house and his own house.
The claimant provides details of how he says he sustained his injury as follows:
“[22] I think we turned right into William Street, Leichhardt and then made a sharp left onto North Street when the wheelchair tipped up onto its right chair went over to almost a 45 degree angle. It then fell back down onto its wheels again. As a result I hit my right shoulder hard into the mechanism for the wheelchair ramp on my right near the side of the bus.
[23] When that happened I kind of went into shock and I was in some discomfort but mainly shock. After that the driver made a number of weaving turns during the journey and that same thing happened on another 2 occasions with my right shoulder hitting hard into the mechanism for the wheelchair ramp. I still did not say anything to the driver as I was in shock.”
The claimant records a number of actions he took immediately after the journey including attempting to make a complaint about the driver whilst still at the kerb, making a written complaint (on his phone) to the NSW Point to Point Transport Commission, ringing his wife to tell her about it, and ringing the taxi company. He says he attended Burwood Police station in mid-January 2020.
He says he went home, and his shoulder pain was escalating so he took some painkillers. He rang a GP service who would not attend and then he called an ambulance who gave him some pain killing injections and took him to RPA Hospital. He said he was discharged the next day and had some physiotherapy. He said [at paragraph 33] that ‘My injuries from the bus trip were confined to my right shoulder’.
The claimant says at paragraph 37:
“I believe the actions of the driver in not properly securing the wheelchair and providing me a seatbelt to fix me to the bus caused the wheelchair to rock of it wheels on 3 occasions causing the injury to my right shoulder.”
Claimant’s medical records
The claimant relies on the hospital’s discharge summary and letter to the claimant’s doctor[12] which refers to his presentation at emergency. This document notes:
(a) the claimant presented with right shoulder, neck, right sided rib and right lower leg pain;
(b) he gave a history of ‘being thrown against the inside wall of taxi whilst sitting in his wheelchair in the taxi. The wheelchair had not been fully anchored (there is a reference at page 3 of two out of four anchor points) … He did not fall out of the wheelchair, nor did the wheelchair fall over’;
(c) he was examined and was tender in the neck and AC joint of his right shoulder with palpable tenderness in the ribs. He had ‘no obvious bruising or step deformity, or open wound’ in the shoulder or chest. His right lower leg was ‘mildly tender’ on palpation;
(d) his symptoms improved during his stay in emergency with application of ice;
(e) he was x-rayed and no acute fracture or dislocation or disruption of the joints was revealed;
(f) the diagnosis was of a whiplash injury to the neck and soft tissue injury to the right shoulder and right chest wall. It was considered a possibility that his AC joint was strained and the lower leg symptoms were also considered to be soft tissue injury related, and
(g) he was advised to continue using ice and his regular medication.
[12] Document A5 in the claimant’s bundle. This version of the document is almost impossible to read. As a result, I prefer to consider the copy found in the Hospital records included within the Insurer’s bundle, document R3 at page 13.
There is a ‘to whom it may concern’ report from Tom Dawson ‘senior physiotherapist’ dated 15 January 2020[13]. This report notes the claimant had been attending the practice since 16 October 2019 following his 2016 American injury. It is noted
Mr Medcraft suffered T9-12 vertebral fractures, head injury, fractured right clavicle and bilateral tibial and fibula fracture in that accident and Mr Medcraft had a number of surgeries. It is also recorded that he had a right acromioclavicular joint (AC joint) reconstruction before the accident which had not been successful.[13] Document A6 in the claimant’s bundle.
Relevantly, Mr Dawson records the claimant’s Christmas Day incident where he says Mr Medcraft was not properly secured resulting him being ‘flung to the right striking his right shoulder on the side of the taxi and suffering a whiplash event to the neck’. He records that since then the claimant has been unable to weight bear and mobilise because of pain and limited movement in his right shoulder. Mr Dawson recommended shoulder physiotherapy and says:
“It appears that the Taxi accident has injured an already vulnerable right shoulder and is significantly delaying our ability to continue with Jim’s lower limb rehabilitation.”
Dr Russel Haque and Associate Professor Al Muderis (orthopaedic surgeons) provided a report following a consultation on 11 February 2020[14]. These two doctors had been involved in the claimant’s lower leg care including his surgery in November 2019. They note:
“He reports that he was able to bear weight on the left lower limb and was able to mobilise with the help of support until he injured his right shoulder in an accident a few weeks ago.”
[14] Document A7 in the claimant’s bundle.
They observed Mr Medcraft’s right shoulder AC joint was dislocated with tenderness around the joint. They were planning a revision AC joint reconstruction which would allow him to rehabilitate and weight bear.
There is a further letter to the claimant’s GP dated 11 August 2020[15] where it is recorded that Mr Medcraft was mobilising but had fallen at home and twisted his knee. This report says of relevance:
“In terms of his ongoing lawsuit to get his right shoulder surgery approved, from viewing his video of the taxi ride which does show a lot of rattling and bumping around while he was in the wheelchair, it is probable that this could have exacerbated the AC joint in his shoulder causing disruption.”
[15] Document A8 in the claimant’s bundle.
There are documents relevant to the claimant’s request for right shoulder surgery including the doctor’s request and quotation dated 19 February 2020, disclosures and consents and then a document from Dr Al Muderis to Allianz responding to a series of questions posed by Allianz. This document is dated 13 March 2020[16] and it says:
(a) A/Prof Al Muderis had not reviewed the claimant before his lower limb injury in the USA and was treating him only for his lower limb injury;
(b) he refers to ‘a recent injury to his right shoulder which has caused him significant pain’ but that there was no complaints of pain before that;
(c) he says ‘it is impossible to determine whether Mr Medcraft would have required revision surgery [to his shoulder] before the 25 December incident but that his symptoms are consistent with pain from the joint which has only arisen since December 2019’, and
(d) he was aware of the previous injury and that the AC joint is currently very unstable and requires fixation but he said it was difficult to determine whether this was due to the 25 December ‘accident’ or the previous injury and he also says the surgery is necessary, but he cannot determine causation.
[16] The quality of the copy of this document is poor. I can barely discern some of the questions from Allianz although the responses are readable as they are in bold.
Claimant’s expert – Dr Shane Richardson
Dr Shane Richardson of Delta-V has provided a report dated 12 August 2021[17] in which he was asked to address:
(a) whether Mr Medcraft suffered an injury whilst travelling as a passenger in the taxi? and
(b) whether the injury occurred progressively or as a result of one to three separate incidents?
[17] This report is found at page 48 of the claimant’s bundle.
Dr Richardson had a limited number of documents. He does not appear to have had the medical records including the hospital notes and the claimant’s treating doctor’s reports. It does not appear he had the photographs taken by Mr Medcraft of the anchor points in the back of the taxi.
He reviewed the footage and using the left armrest of Mr Medcraft’s wheelchair as a reference point (depicted in figures 3 – 5) he forms the view the wheelchair did move and was not properly secured.
He also points to a point in the footage (depicted in figure 6) of the claimant grabbing his right shoulder.
At page 12 of the report, Dr Richardson says it is possible that the claimant’s right shoulder was impacted against the frame of the wheelchair in the back of the taxi but he also says ‘it is also possible that Mr Medcraft did not sustain an injury’.
Dr Richardson is critical of the quality of the footage and notes there is limited published data about injuries such as Mr Medcraft’s. He does repeat that the claimant’s left hand clutching his right shoulder is indicative of injury, but that this is not an expert opinion.
Dr Richardson is also equivocal about whether the injury could have occurred with one impact or several.
Finally, Dr Richardson takes issue with Dr Griffiths’ report noting that some but not all of Mr Medcraft’s movements were voluntary and that Dr Griffiths has not considered the movement of the left armrest and which correlates to a rightward tilting of the wheelchair. And that ‘anyone … viewing the CCTV footage would be able to determine that this assertion of Mr Griffiths’ is factually incorrect’.
Insurer’s evidence
The ambulance report[18] contained in the hospital notes records an attendance at about 7.00pm. The claimant was in bed and had given a history of being in a taxi in his wheelchair and whilst travelling and turning a corner his right arm was pinned against the vehicle causing pain in his neck, shoulder and right leg. Pain killers were provided with ‘good effect’ after the claimant said he had taken his own pain killers with ‘poor effect’.
[18] Page 12 of the Insurer’s bundle.
The hospital note (page 12) diagnoses a soft tissue injury.
Physiotherapy notes from Leichhardt Sports centre have been provided with the last entry on 21 February 2020 recording continued back pain and what appears to be ‘right shoulder not too bad without weight bearing and increased pain with weight bearing’. The notes commence in November 2019 with a number of references to Mr Medcraft’s right shoulder before the accident. On 26 November 2019 there is a reference to ‘main complain today right shoulder pain …’, 29 October 2019 ‘Both shoulders stiff and sore’, 23 October 2019 ‘right shoulder good … began aching against last night’ and so on.
The claimant’s extensive general practitioner’s notes have been produced[19] which reveal many pre-accident issues with his leg, mental health issues, anaemia and diabetes. I have not been taken by the insurer to any particular pre-accident shoulder complaints in these records or in fact any specific entry.
[19] The Leichhardt General Practice clinical notes are identified as document R4 at pages 69-165 of the Insurer’s bundle.
The first attendance after the accident occurred on 7 January 2020 ‘recent review in ED with pain in shoulder following being thrown around in taxi as wasn’t anchored’. He was having physiotherapy and ‘might pursue claim’. He was seen again on 20 January 2020 for ‘shoulder review and CTP’. It was noted he hurt his right shoulder, ribs ‘and a few other places’. Mr Medcraft was complaining of shoulder and right sided ribs that hurt but the latter were much better.
The claimant was referred for radiology and ultrasound and on 30 January his shoulder was slightly better but still sore. He was seen again on 10 February and 21 February still complaining of right shoulder pain with some restriction of movement on 21 February 2020.
There is a letter from NSW Police dated 27 April 2020 saying no report could be found[20].
[20] Identified as document R7 at page 174. As Mr Siddiqui reveals in his statement that the police visited him (and gave him the event number) it would appear there is no dispute about whether the claimant has complied with the accident verification requirements of sections 6.8 and 6.9.
The taxi driver, Mr Khaja Siddiqui has provided a statement to the insurer’s investigators dated 17 March 2020[21]
[21] Found at page 182 of the Insurer’s bundle. The statement contains additional information from Mr Siddiqui about the claimant and his mother which is not directly relevant to the matters in dispute it is not necessary to canvass them in these reasons.
(a) he has been driving taxis for 10 years. At the time of the accident, he was driving a Toyota Hi Ace 11 seater mini bus;
(b) he owns the vehicle and had modified it and was certified to transport wheelchairs. He had been operating the vehicle since August 2019 and drove it 35 hours a week;
(c) the claimant did not complain during the journey and thanked him for the trip;
(d) 14 days after the trip he received a call advising him of a complaint and as a result he was required to do more training;
(e)
he says the man in the wheelchair was properly secured. He notes
Mr Medcraft had his own seatbelt and Mr Siddiqui says he ‘secured the wheelchair itself using the 4 straps that hold it down’;
(f) he says he thinks he secured all four straps and ‘I later saw that the man was using his phone to take lots of photos down below him like I did not secure one of the belts for the wheelchair’;
(g) he said when he saw the claimant taking photographs, he turned around at which stage the claimant would stop and look at the driver;
(h) he says the journey was uneventful and he did not brake harshly or hit any large potholes;
(i) after dropping the claimant’s mother in Annandale, he continued on to Leichhardt ‘which from memory was his doctor who was actually open on Christmas day’;
(j) when they arrived, he opened the back and fitted the ramps and undid the chair straps. He said ‘I can recall undoing at least 2 or 3 straps’. While there are four straps he cannot recall if they were still secured;
(k) Mr Siddiqui asked him about his leg injury and he says Mr Medcraft told him about his accident in the US. He said the claimant did not complain about the journey or any injury;
(l) Mr Siddiqui said that 14 days after the journey he was contacted by his ‘network’ about a complaint and he was suspended for two or three days and was required to undertake a ‘remedial course on how to load and unload a wheelchair’ and he had to pay $250 to do that course, and
(m) Mr Siddiqui says after being contacted by the taxi company he was contacted by the Police (from Burwood and then Ashfield) and he told them nothing happened.
Mr Siddiqui says:
“I believe the passenger in my taxi was not injured at all. He did not fall from his wheelchair and there was nothing that occurred at all during the journey…As I said he made no complaint to me at all and he appears to be happy and looking at his phone or taking photos with it during the journey.”
Insurer’s expert – Dr Michael Griffiths
Dr Griffiths[22] was asked to report on the allegations made by Mr Medcraft that:
(a) during the course of the journey his wheelchair tilted to the right at 45° to the extent that his right shoulder had a hard impact with the wheelchair ramp system;
(b) the wheelchair movement occurred because the taxi driver had not correctly anchored the wheelchair, and
(c) as a result of the tilting, he received injury which required surgery.
[22] The report is dated 21 July 2020 and is included in R10 at page 205 of the insurer’s bundle.
Dr Griffiths provides a succinct summary saying ‘It is deduced that the CCTV is sound evidence that no incidents of a rightward tilting nature occurred. That is, the physical evidence of the video shows Jim Medcraft’s allegations are wrong’.
Dr Griffiths was provided with a number of photographs some of which were taken by Allianz’s investigator (photographs 1 – 4) and others by Mr Medcraft (photographs 5-12). While the former were clear and able to be viewed by me, the latter were not.
I cannot provide any interpretation or come to any conclusion in relation to those photographs.Dr Griffith also includes still shots taken from the CCTV footage which show the claimant in various positions in his wheelchair. These are not particularly helpful as they are stills taken every 30 seconds. On my viewing of the footage there are occasions where much happens between each thirty second interval.
Dr Griffiths says, ‘the video showed the normal minor motion of a restrained wheelchair and occupant which might be expected in a typical road journey’. He also notes that
Mr Medcraft voluntarily moved within his wheelchair throughout the journey.Dr Griffiths then goes into significant detail analysing the medical records and the claimant’s right shoulder pathology and say [at paragraph 7.6] that ‘Whilst the medical records seem inconclusive as to whether there was or was not any recurrent injury to his right shoulder, the physical evidence of the van’s CCTV shows that there was no impact of his right shoulder with the retracted wheelchair ramps structure’.
Dr Griffith provided a second report[23] commenting on Dr Richardson’s report and noted the wheelchair structure and the fact that armrests are removable and flexible. He suggests that movement of the ‘back and base of the wheelchair structure’ is a better indicator of a lack of effective restraint of the base of a wheelchair.
[23] Included in document R10 at page 252 of the insurer’s bundle and dated 7 October 2021.
In this second report, Dr Griffiths identifies his specific expertise on the safe restraint of wheelchair occupants, the regulation by NSW Government of vehicles approved to convey wheelchairs and their occupants. Dr Griffiths says that there is a system of inspection and review which he appears to suggest means that Mr Siddiqui’s vehicle must not have had an ‘untreated hazardous structure’ in it. It is unfortunate that despite his expertise and engagement with the wheelchair restrain system, Dr Griffiths does not engage with the issue of the occupant restraint system (a seat belt which would have harnessed Mr Medcraft to the taxi) in Mr Siddiqui’s taxi.
Dr Griffiths maintains his view that there is no evidence to suggest the wheelchair was not adequately restrained to allow the wheelchair to tilt and that the CCTV footage shows the backrest maintained its position. He again says there was no tilting of the wheelchair to 45 degrees, the wheelchair was secured, and the claimant’s right shoulder did not impact the structure and there was no potential for the claimant to have received a shoulder injury on this journey.
The CCTV footage
There are two files of video footage[24]. The first is short and contains four views from four different cameras including an internal camera and is limited to the arrival, loading and departure of the taxi. The second is longer and shows the internal view of the whole journey.
[24] The CCTV footage is identified as documents AD4 and AD5.
The first film shows Mr Medcraft’s mother getting into the taxi and being seated by 14.00.07. It then shows Mr Medcraft and his wheelchair being lifted and driven into the rear of the taxi by 16.00.30. The driver collapses the lifting mechanism and shuts the rear door by 16.00.55 and returns to his seat. At 14.01.08 Mr Medcraft can be seen securing himself to his wheelchair with his own seat belt.
The longer video shows that from very early on in the journey Mr Medcraft is taking photographs of the left and right hand sides of the base of the wheelchair.
I cannot discern any seat belt from above either of Mr Medcraft’s shoulders suggestive of a taxi-based occupant restraint. If there was any wheelchair based seat belt it does not appear to have been used. Mr Medcraft’s torso was not at any stage restrained and toward the end of the video he was leaning forward and there does appear to be more significant side to side movement of his body while he was in that position.
The footage does show a degree of movement and bumping around of the wheelchair and the claimant does move from side to side and up and down as the journey progresses. There is not much movement in the first part of the journey ad movement is certainly more frequent after Mr Medcraft’s mother was dropped off as the taxi appears to navigate the streets of the inner west.
There were what appeared to me to be slightly more significant movements at 16.11.43 where I could perceive a lifting and tilting of the wheelchair. There was also more movement at 16.12.11 and at 16.16.16 following which the claimant put his left hand out in a movement which appears to be him trying to stabilise the wheelchair.
I note the claimant’s movement of his left arm to his right shoulder at the end of the journey as observed by Dr Richardson. I would not have called that movement a ‘grabbing’ movement which to me suggests a sudden or pronounced movement.
Mr Medcraft certainly moved his left arm up to his shoulder, touched and held his shoulder for a short period.
I did not see Mr Siddiqui turning around during the course of the journey particularly while Mr Medcraft was taking photographs. He did turn when Mr Medcraft’s mother reached her destination but otherwise he appears to have been firmly focussing on the road ahead during the journey.
EVALUATION OF THE EVIDENCE
The insurer did not require Mr Medcraft for cross-examination, therefore his evidence is untested. Having seen the CCTV footage, what is clear to me is that at no stage does the wheelchair appear to tilt to a 45° angle. It is also clear that he was not ‘thrown about’ in his wheelchair until the last part when he was leaning forwards. It is clear that part of Mr Medcraft’s evidence is exaggerated.
While I do not have evidence from Mr Medcraft’s wife, or the medical practice he rang on the day of the incident or the attempts at complaining to the taxi authority, I do have evidence from Ambulance and hospital and doctors of the claimant’s complaints on the day of the accident and the days relatively soon afterwards. Mr Medcraft has been consistent in his complaints of increased right shoulder pain and other injuries (neck, ribs and leg) since the Christmas day journey, and he has been consistent in his complaint that he was not properly restrained.
I therefore accept Mr Medcraft’s evidence noting that it does need to be tempered by a degree of exaggeration.
Mr Medcraft did not require Mr Siddiqui for cross-examination. His statement is mistaken as to the interim (Annandale vs Leichhardt) and final (Leichhardt vs Summer Hill) destinations of the journey. And I do not accept he turned around to look at
Mr Medcraft as he was taking photographs.
Mr Siddiqui’s evidence as to the securing of the wheelchair suggests he is less than certain about what he actually did. While in the first part of his statement he says he used four anchor points at the beginning of the journey he is not at all clear that the four anchor points were in use at the end of the journey. He makes no reference at all to whether there was a seatbelt in the taxi that Mr Medcraft says is required to restrain occupants.
There is no challenge to the expertise of either Dr Richardson or Dr Griffiths. I recorded in my first teleconference report that it was not clear to me from my review of
Dr Griffiths’ report that he has addressed whether the photographs taken by the claimant in the back of the taxi show whether the claimant’s wheelchair was properly secured by the four anchor mounts and the seat belt. It is unfortunate that neither of the experts actually comment on the claimant’s photographs and his statement or the presence or otherwise of the taxi’s occupant restraint seat belt.I also note from the second video that it took about a minute from when the taxi stopped to when the rear door was closed and in that time Mr Medcraft and his wheelchair needed to be lifted, stowed and secured. Neither of the experts have commented on whether that suggests all four of the anchor points could have been used.
Neither of the experts comment on Mr Siddiqui’s statement in particular his recollection of not undoing all four of the anchor restraints or the presence or absence of an occupant restraint system or seatbelt within the back of the taxi. Dr Griffiths’ report I found focussed too greatly on whether the claimant’s need for shoulder surgery and the injury alleged was caused by any incident or event in the back of the taxi as opposed to asking the questions necessary for me to determine the dispute. Dr Griffiths does not mention the claimant’s other complaints of pain and potential injury in his neck, ribs and leg. I do not find Dr Griffiths’ evidence compelling.
In my view Dr Richardson’s evidence as to the movement of the wheelchair and the claimant within the taxi is more aligned to my own viewing of the footage and therefore I prefer his evidence.
MY CONSIDERATION OF THE ISSUES
Insurer’s first submissions
Allianz’s original submissions[25] rely heavily on the report of Dr Griffiths and his opinion that there was no possible mechanism which could have cause the claimant’s right shoulder injury. Dr Griffith did not deal with the alleged injury to the claimant’s neck, ribs or leg and his report is of limited assistance for that reason.
[25] Identified as document R11 at page 259 – 267 of the insurer’s bundle.
The insurer also submits that any pain that arose during the journey ‘was a symptom of his pre-existing injuries as opposed to a new frank injury or aggravation’.
There is no doubt the clamant had a previous right shoulder injury with a failed reconstruction and the physiotherapist’s report document complaints of right shoulder pain in October and November 2019. However, the insurer does not address the medical evidence in the GPs notes or the reports of Dr Al Muderis which support a claim for increased symptoms in the shoulder after the accident. The insurer also does not address the other injuries reported to the hospital namely neck pain, rib pain and leg pain. Again, while these injuries may not have been significant and may have recovered within days or weeks after Christmas, there is evidence of these injuries having occurred.
The thrust of the main submissions is that the claimant’s injury arose gradually from a ‘series of incidents’ which takes his claim outside the ‘General Restrictions’ to the MAI Act contained in section 1.9(2).
The insurer refers to the explanatory note to the Motor Accidents Compensation Amendment Act2006 in support of its argument. While the relevant section inserted into the Motor Accidents Compensation Act1999 (the MAC Act) by the amendment (section 3A) is similar to section 1.9, the schemes are not. The MAC Act was a common law scheme of compensation whereas I am dealing with a no-fault statutory benefits scheme. Section 3A of the MAC Act for example refers to fault whereas section 1.9 of the MAI Act does not.
Before the 2006 amendment the definition of ‘injury’ was limited to ‘accidents or incidents’ caused by the fault of an owner or driver of a motor vehicle in the use or operation of that motor vehicle. The inclusion of the word ‘fault’ in the ‘definition’ in my view limits the utility of some of the earlier cases. The wording of the relevant provisions in the Motor Accidents Act1988 also include the word ‘fault’ throughout and the definition of ‘motor accident’ does not include the word ‘incident’ therefore cases dealing with this legislation are also of limited utility.
The insurer refers to the case of Owen v New South Wales[26] where the plaintiff was jolted, allegedly for two hours and aggravated a back injury while being transported between jails. This 1996 event was found not to be a motor accident as was the subject matter of the case of Khaya v Container Terminals Australia Ltd[27] where the plaintiff was found not to have sustained a frank injury in 2001 but the aggravation of degenerative changes caused by ‘ergonomically unsatisfactory’ posture and seating over a lengthy period of time.
[26] [2004] NSWCA 165.
[27] [2005] NSWCA 433.
The insurer also refers to the case of Hooker v Gilling[28] which the insurer submits is authority for the proposition that an injury must occur ‘at a fixed point of time’ and that the definition of injury in s 3(1) of the MAC Act ‘does not extend to a progressive injury’.
[28] [2007] NSWCA 99.
The matter of Hooker concerned an appeal from the decision of a District Court Judge who, on a Notice of Motion filed by the defendant insurer, had struck out a series of paragraphs of an amended Statement of Claim. The substance of the proceedings was a claim for what appears to be pure mental harm which developed as a result of a series of assaults between May 2002 and March 2004 some of which involved being driven at by a motor vehicle. None of the notice, verification or exemption / assessment provisions had been complied with in respect of any or all of the alleged motor vehicle assaults. The appeal concerned only the issue of whether the claimant was allowed to amend the Statement of Claim to plead a ‘progressive injury claim’.
The Court of Appeal set out the difference in the definitions of ‘injury’ and ‘motor accident’ before and after the 2006 amendments and noted the insertion of section 3A:
“[42] The 2006 Amending Act was, in my view, expressed to be declaratory of the meaning of the MAC Act. As I have earlier noted the amendments to s 3 streamlined, but did not relevantly add any new concept to, the definitions under consideration. The Explanatory Notes made the legislature’s intention to clarify the position plain. The MAC Act should be understood, therefore, not to apply, or to have applied, to an injury that arose gradually from a series of incidents. This was the state of the law as exposed by judicial decisions prior to the 2006 Amending Act, and the position has now been given legislative clarification.”
The Court was critical of the pleadings in Mr Hooker’s case which particularised a series of separate incidents at specified and fixed points in time. It became apparent during the course of the appeal that the plaintiff was actually alleging he suffered an injury at the end or the culmination of the series of events separately pleaded. In other words, he was alleging a progressive injury. I note Mr Medcraft is not alleging a progressive injury.
The insurer takes issue with the claimant’s case and asserts he had not identified the specific incident and asserts that if the claimant sustained an injury ‘it is submitted that this injury was sustained on and off over the 20-minute journey on 25 December 2019’ and therefore cannot be said to be an injury sustained in an ‘accident’ under the Act.
Insurer’s further submissions
The insurer’s further submissions[29] deal with the claimant’s submission that his injury was a result of three specific incidents during the course of the journey and that each of those is a motor accident.
[29] Document identified as R12 at pages 268 – 278 of the insurer’s bundle.
The insurer alleges that the injuries were not caused or did not arise as a result of the ‘driving of the vehicle’ and that any injury arose due to the ‘structure of the wheelchair, the restraint system of the wheelchair taxi or the structure of the frame of the wheelchair lifter’.
The insurer submits there must a causal connection between the injury and the driving and a temporal connection in that the injury must be caused during the driving use or operation of the taxi.
The insurer cites the decision of Windeyer J in Government Insurance Office of NSW v RJ Green & Lloyd Pty Limited[30] who said that any use ‘that is not utterly foreign to its character as a motor vehicle is, I consider, covered by the words [‘’use of a motor vehicle]’ and noted that loading a vehicle used to carry goods was part of or incidental to its usual or normal use.
[30] (1966) 114 CLR 437.
Allianz suggests that the structure of the wheelchair, the restraint system of the wheelchair taxi or the structure of the frame of the lifter ‘is not an essential part of the ordinary use of a motor vehicle in the normal way’ and is ‘utterly foreign to its character as a motor vehicle’.
Allianz quotes the Court of Appeal’s decision in Leach v The Nominal Defendant[31]:
“… in order to fall within s 3A, it is necessary to identify a sufficient connection between the injuries and the driving fault. Driving which is merely the occasion for the infliction of injuries will not suffice even if it is contemporaneous with the activity which inflicts the injury.”
[31] [2014] NSWCA 257 judgment of McColl JA at 68.
I note the Leach decision relates to the application of s 3A of the MAC Act which required there to be a causal and temporal connection between the ‘driving’ (or other use) and ‘fault’. Fault is not mentioned and is not relevant in section 1.9 of the MAI Act which only requires there to be a causal and temporal connection between the ‘driving’ (or other use) and injury.
Allianz suggests that the driving of the wheelchair taxi was ‘a background fact to the injury’ which resulted from the three features of: the wheelchair, the restraint system and the lifter / frame. Allianz suggest there may have been fault in any or all of those three things but not the driving and says there was no close causal connection between the use of the vehicle and the injury.
In arguing the claimant’s injury did not occur as a result of, and during the driving of the vehicle Allianz says the predominate and proximate cause of the injury was the system of securing the wheelchair which is removed from the concept of driving and is precluded by section 1.9(1).
Claimant’s original submissions
The claimant’s 13 August 2020 submissions[32] identify the first left hand turn from William Street into North Street in Leichardt as the source of the claimant’s shoulder injury and that on two further occasions the vehicle turned left causing the wheelchair to tilt causing the right shoulder to strike the wheelchair ramp in the same fashion.
[32] Document identified as A1 at page1 f the claimant’s submissions.
The claimant notes the insurer has misconstrued the claim as a progressive injury and that his injury occurred on three separate occasions at specified times.
The claimant relies on his statement and the CCTV footage which ‘speaks for itself’ and his consistent complaints since immediately after the accident.
Claimant’s further submissions
The claimant’s further submissions rely on the previous submissions and say:
(a) he suffered injury due to the negligence of the driver in failing to properly secure the wheelchair, and
(b) that the vehicle tipped and righted itself causing the claimant’s elbow to impact the armrest.
The claimant relies on his statement, the driver’s statement and the fact he was taking photographs during the journey as support for the assertion the wheelchair was not properly secured.
The claimant argues that Dr Griffiths’ report is of limited assistance as he watched the CCTV footage and formed the view the claimant had not suffered injury to his shoulder. The claimant suggests there is no expert analysis as opposed to Dr Richardson who viewed the footage and indicted it appears to show movement and displacement but that the footage was not clear.
The claimant asserts the issue of injury should be determined by reference to the lay evidence namely his evidence and his contemporaneous reports of injury which have not been countered by the insurer.
The claimant asserts there can be more than one accident during the course of one journey but does not allege a cumulative injury. He points to one significant incident and two further incidents each of which is a motor vehicle accident the first of which is more significant. The claimant says I do not have to determine which of the three incidents let to injury as long as one of them did.
FINDINGS ON THE ISSUES
Was the claimant’s wheelchair properly secured?
The claimant says he expected two types of restraints in a wheelchair taxi, an occupant restraint system which I understand is a seatbelt connected to the taxi which secures the person in the wheelchair to the chair and the taxi. In addition, there is a system of wheelchair restraints which are designed to secure the wheelchair to the taxi. These involve the four anchor points referred to throughout this dispute.
The claimant says he was not given a seatbelt and that the driver of the taxi did not secure all four anchor points or did not secure them properly.
The taxi driver is silent as to the availability or otherwise of a taxi-based seat belt and is not sure whether he released all four of the anchor points at the end of the journey. This to me suggests Mr Siddiqui did not use any seat belt or properly secure all four of the anchor points at the commencement of the journey.
There is evidence from the claimant, confirmed by the video that he secured himself in his wheelchair by using his wheelchair’s own lap-sash type seat belt.
There is evidence from the claimant about the anchor points and photographs that he took in the back of the taxi. There is also evidence from Mr Siddiqui about remedial action taken by the taxi company against him following a complaint.
There is silence from both of the experts as to the existence of a taxi-based seat belt, whether it was available to be used and if so, whether it was required to be used. The experts both limit their reports to a consideration of the CCTV footage only and do not engage with the photographs taken by Mr Medcraft and the other evidence. The experts do not address the video showing the taxi stopping to when the back door closed and whether the wheelchair and Mr Medcraft could have been properly secured in the time frame of about one minute.
I am satisfied on the evidence before me that the claimant was not properly secured in the wheelchair accessible taxi that he rode on 25 December 2019. This finding is made on the basis of the evidence of Mr Medcraft, Mr Siddiqui and the video footage.
Did the claimant sustain an injury on 25 December 2019?
While I do not accept the claimant sustained an injury in the precise mechanism he has alleged – that is by the tilting of his wheelchair to a 45ۨ° angle, I accept that his behaviour immediately after the journey and the evidence form those who have examined him, support a finding that he did sustain an injury to his neck, right shoulder, right ribs and leg on the day in question.
The injuries appear, from the hospital notes, to have been diagnosed as a number of soft tissue injuries. They do not appear to be significant particularly when compared to the injuries sustained by Mr Medcraft in the US hit and run in 2016. The injuries he sustained on Christmas Day may have been short lived or even transient, but in my view it is not necessary for me to make any further findings in relation to the particular type or the extent of the injury.
In a statutory benefits claim there are likely to be disputes about whether the claimant sustained only ‘minor injury’ within the definition of section 1.6 and whether the claimant’s shoulder surgery is reasonable and necessary and related to the injury sustained in the accident. These are medical assessment matters and appropriately, are to be determined by Medical Assessors of the Commission.
Did injury arise from a ‘motor accident’?
Section 1.4 included a definition of ‘motor accident’ that requires there to be:
(a) an ‘incident or accident’;
(b) involving the ‘use or operation of a motor vehicle’;
(c) which ‘causes … injury to a person where the … injury is a result of and is caused … during’, and
(d) ‘the driving of the vehicle’.
Incident or accident
I have considered the judgment of Justice Beazley (as she then was) in Owen’s case where, in discussing the provisions of the Motor Accidents Act1988 she found:
“[60] In my opinion the context and reasoning in Dunn indicate that the phrase is not intended to refer to a fixed instant in time.
[61] The context involved consideration of a motor accident. Most motor accidents do not occur instantaneously. Usually, at least, motor accidents occur over time-spans of seconds, and it is quite possible for a motor accident to occur over a period longer than that.
[62] The reasoning, to my mind, conveys the concept that for a motor accident to be caught by Pt 5 it must be sufficiently circumscribed in time to allow it to be identified as such and to set in train the reporting and other provisions of the Part. Common sense suggests that the time involved would be short.”
The claimant says there were three separate occurrences within the back of the taxi. There is a suggestion in the documents before me[33] that the claimant may have provided the insurer with an abridged version of the CCTV footage showing time stamped occurrences which he says show him coming into contact with the wheelchair lifting or ramp frame.
[33] The insurer’s internal review decision.
I do not appear to have that version of the footage, but I have reviewed the footage provided to me and noted a number of individual and specific movements that appear more pronounced than others. I consider there was some unusual movement and at least one incident of the wheelchair tilting (although not to an angle of 45°).
In my view, what happened to the claimant in the back of the taxi is ‘sufficiently circumscribed in time’. It is confined to the second part of the journey on Christmas Day (after Mr Medcraft’s mother had left the taxi) from approximately 16:10.48 to 16.18.30. The particular facts and circumstances of Mr Medcraft’s claim suggest an incident or incidents occurring at a ‘fixed point in time’ over a time-span that is longer than seconds but shorter than 10 minutes.
It is not in my view necessary for the claimant to point to a ‘fixed instant of time’ where a specific and particular injury occurred.
I also note that the case of Owen was dealing with a definition of motor accident that did not include the word ‘incident’. The inclusion of that word in my view widens the scope and includes more and possibly shorter events or more minor occurrences within the definition of ‘motor accident’.
Use or operation
I reject the insurer’s argument that the wheelchair, restraints and ramp were ‘utterly foreign to its character as a motor vehicle’. The insured taxi was a wheelchair accessible taxi, modified for the express purpose of carrying people in wheelchairs so that, as Mr Griffiths says, they did not have to be transferred out of their wheelchair into a vehicle and the wheelchair stowed elsewhere.
The restraints and ramp or lifting mechanism were an intrinsic part of the modified and regulated motor vehicle to provide access to the vehicle and to provide the safe transport of people.
Mr Siddiqui’s taxi was being used or operated to transport people with injuries or mobility issues. In my view, any injury that arose while it was being used to transport Mr Medcraft, or during the loading or unloading of Mr Medcraft and his wheelchair would likely be a use or operation of the vehicle as it was designed and modified.
Cause of injury, result of driving
I agree with the insurer that of the four uses listed in the definition only the ‘driving’ use is relevant here.
I have found Mr Medcraft’s injury occurred as a result of him not being properly secured in the back of the taxi. Whether that was due to the negligence or oversight of Mr Siddiqui is not necessary for me to determine. But the failure to properly secure
Mr Medcraft and his wheelchair by occupant and all four wheelchair restraints led to instability of the wheelchair and provides the causation connection between the use or operation of the vehicle and injury and the temporal connection between the driving and the injury.
Having found the claimant was injured in the course of the journey in the back of the taxi, and noting there is no requirement for fault on the part of the owner or driver, there must in my view be a finding that the injury occurred ‘as a result of’ and ‘caused during’ the driving of the vehicle.
It therefore follows that the claimant was injured in a ‘motor accident’ within the meaning of the definition in section 1.4.
Did the injury arise gradually from a series of incidents?
The claimant’s application may still fail if the general restrictions on the application of the Act as contained in section 1.9(1) or (2) apply.
Section 1.9(1) does not require there to be fault or negligence on the part of the owner or driver of a motor vehicle but an injury resulting from the use or operation of a motor vehicle if the injury is a result of and was caused during the driving of the vehicle. For the reasons provided above, I have found that Mr Medcraft was so injured.
Section 1.9(2) would prevent Mr Medcraft from recovering statutory benefits from Allianz if I found his injury arose ‘gradually from a series of incidents’.
The question to ask here is not whether the injury arose simply from a series of events but whether it arose gradually from a series of events. As the Court observed in Hooker v Gilling[34]injuries arising out of the nature and conditions of employment over a period of time are not covered by the previous scheme due to the wording of section 3A of the MAC Act and would not be covered by the wording of section 1.9(2) of the MAI Act.
[34] At paragraph 36 for example.
The insurer says any injury that did occur was progressive and arose as a culmination of three or more incidents. There is no medical evidence to support this argument.
The claimant says there were three separate incidents all of which caused an injury. He says the first was the most significant but there were at least two others. He does not say which particular injury was caused by which particular incident.
In my view the use of the word ‘gradually’ is important. Giving that word its usual meaning suggests an injury that develops slowly or progressively, bit by bit at unspecified times or due to unspecified occurrences rather than something that could happen over a shorter time frame but more suddenly or acutely.
I also note that Mr Medcraft claims injuries to at least four parts of his body and not just his right shoulder.
In view, based on the totality of the factual evidence surrounding the claimant’s journey, Mr Medcraft’s various injuries may have occurred in a series of incidents during the one journey but they did not occur gradually.
CONCLUSION
It therefore follows that the MAI Act applies to the soft tissue or other injuries sustained by Mr Medcraft in the motor accident on Christmas Day 2019.
Mr Medcraft is therefore entitled to be paid or receive statutory benefits for the first 26 weeks after the accident and beyond if sections 3.11 and 3.28 permit it.
ASSESSMENT OF COSTS
Introduction
Mr Medcraft seeks the payment of his costs and disbursements relevant to this dispute and Allianz does not dispute the entitlement to some costs[35].
[35] The claim for costs is set out in the claimant’s final submissions at pages 104 – 105 of the claimant’s bundle. The insurer’s submissions are found at paragraphs 32 – 53 of the further submissions at pages 273 – 278 of the insurer’s bundle.
Mr Medcraft seeks professional costs in the sum of $7,000. Mr Medcraft also seeks to recover the cost of his expert ($2,332), photocopying ($527.45) and postage ($18.30).
The insurer concedes the claimant is entitled to the regulated fees and the cost of the expert’s report but does not concede the cost of photocopying and postage.
Are there exceptional circumstances in this claim?
The claimant seeks costs pursuant to section 8.10 of the Act outside the fees set in the Motor Accident Injuries Regulation 2017 on the basis that there are ‘exceptional circumstances in the claim’. He says that there was ‘an unusual and extensive amount of work’ involved, two experts, multiple telephone conferences, submissions and a significant amount of material.
The insurer says amongst other things that the claimant has not established what the exceptional circumstances are, that there was no face-to-face assessment conference, the dispute was not unusual and the claimant’s submissions were brief. The insurer also suggests the claimant should have provided an itemised bill of costs.
I am not satisfied that the circumstances of Mr Medcraft’s claim are exceptional warranting the awarding of costs outside the Regulation. Investigations into it were straightforward due to the existence of the CCTV footage, the claimant’s injuries were relatively straightforward due to the hospital and medical records, and the dispute that arose for determination was straightforward.
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].
[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.
Can Mr Medcraft recover the cost of photocopying and postage?
Having decided Mr Medcraft is not entitled to ‘exceptional costs’ beyond the scope of the Regulation it follows that he is entitled to recover the cost of the disbursements permitted in the Regulation.
Clause 20(a) permits the recovery of Dr Richardson’s fees in the sum of $2,332. There is nothing in any other part of the Regulation that permits the recovery of postage and photocopy fees are recoverable but only for health practitioners providing medico-legal services[37].
[37] Schedule 2 item 9 of the Regulation.
The total costs recoverable by Mr Medcraft are therefore:
(a) Professional costs including GST $1,881
(b) Dr Richardson’s fee $2,332
Total $4,213
Member Cassidy
Motor Accidents Division
Personal Injury Commission
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