Nasr v IAG Limited t/as NRMA Insurance and QBE Insurance (Australia) Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Nasr v IAG Limited t/as NRMA Insurance and QBE Insurance (Australia) Ltd [2022] NSWPIC 34
CLAIMANT:	Soad Nasr
CLAIMANT INSURER:	IAG Limited t/as NRMA Insurance
OTHER INSURER:	QBE Insurance (Australia) Ltd
MEMBER:	Ray Plibersek
DATE OF DECISION:	25 January 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; collision between two cars in a carpark; subsequent collision with a fence and a tree; one or two accidents; two different insurers;  relevant insurer; hearsay evidence; did the claimant have a medical episode; did the claimant press her accelerator instead of her brake; interpretation and use of photographs; contributory negligence; “agony of the moment”;  onus of proof; rules of evidence; standard of persuasion; Commission procedure; cases considered Vines v Djordjevitch, Epeabaka  v Minister for Immigration and Multicultural Affairs, Minister for Immigration and Ethnic Affairs v Pochi, Sullivan v Civil Aviation Safety Authority, Beezley v Repatriation Commission; Held - QBE Insurance (Australia) Ltd is the relevant insurer for the purposes of sections 3.2 and 3.3 the Motor Accident Injuries Act 2017 (MAI Act); motor accident was not caused wholly by the fault of the claimant; no contributory negligence by the claimant; sections 3.28 and 3.38 the MAI Act; Commission to make findings of fact based on material that is logically probative, relevant and reliable; when making a decision the Commission must examine the evidence and then be satisfied or persuaded that the evidence satisfies the requirements of the legislation; to say that is not to impose an “onus of proof” on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a statutory benefit; photographs should not be used by a decision-maker to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural per Tobas JA Blacktown City Council v Hocking; contributory negligence and “defence” of “agony of the moment”; Stuart v Walsh followed; claimant awarded maximum regulated legal costs against each insurer; no “exceptional circumstances” legal costs awarded.
DETERMINATIONS MADE:	1. QBE Insurance (Australia) Ltd is the relevant insurer for the purposes of sections 3.2 and 3.3 the Motor Accident Injuries Act 2017. 2. For the purposes of section 3.28, the motor accident was not caused wholly by the fault of the Claimant. 3. For the purposes of section 3.38, there was no contributory negligence by the Claimant. 4. QBE Insurance (Australia) Ltd is to pay the Claimant’s legal costs assessed in accordance with the Motor Accident Injuries Act 2017 and Motor Accident Injuries Regulation 2017, of $1,660 plus GST. 5. NRMA Insurance (Australia) Ltd is to pay the Claimant’s legal costs assessed in accordance with the Motor Accident Injuries Act 2017 and Motor Accident Injuries Regulation 2017, of $1,660 plus GST.

Background and Introduction

This determination relates to a dispute about under sections 3.2, 3.3, 3.28,3.38 and 8.3 of the Motor Accident Injuries Act 2017 (the MAI Act).

On 14 November 2018 Ms Soad Nasr, (the Claimant) drove her car to Earlwood to attend her GP. As she was parking her car in a car park she was hit by another vehicle driven by Lyndon Fawcett who is insured by QBE Insurance, (QBE).
The Claimant’s last memory is of driving into the carpark and commencing to make a left-hand turn into a parking bay. As she did so she heard a loud bang. She recalls very little after the bang.
The available evidence is that as the Claimant was parking she was hit by the other car in the rear left of her car. The Claimant’s car then accelerated rapidly and collided with a fence and a tree some distance from her intended car park. The Claimant was seriously injured by the collision with the tree. She is 78 years of age and speaks little English.
After the accident the Claimant had to be cut out of her car and was taken to St George hospital where she remained for surgery and treatment for many weeks. The Claimant’s injuries included: fractured ribs, back, left ankle, sternum and internal bleeding.
The Claimant and her daughter completed and lodged a CTP claim form with the insurer of her car NRMA Insurance, (NRMA).
Initially the Claimant’s insurer NRMA accepted and paid her claim for 26 weeks. The NRMA then denied liability.
In a liability notice dated 1 March 2019, (R 1), the NRMA wrote to the Claimant accepting liability for the payment of statutory benefits after 26 weeks from the date of the motor accident whilst investigations continued.
In another liability notice dated 10 April 2019, (A 1), the NRMA wrote to the Claimant declining the claim for the payment of statutory benefits after 26 weeks. The NRMA found the Claimant wholly at fault for her accident and injuries based on the factual report, police interview and lodging her claim on her policy.
The Claimant now seeks to claim against the other driver (insured by QBE) who initially hit her in the car park as she was parking.
In an application for a miscellaneous claims assessment dated 12 May 2021 the Claimant’s solicitor seeks an assessment of whether the injured person is mostly at fault. (Matter number M10416254/21). There is also a merit review dispute about legal costs. This application is brought against the NRMA.
There is another application for a miscellaneous claims assessment also dated 12 May 2021 where the Claimant’s solicitor makes a claim against the other driver and QBE. There is also a merit review dispute about legal costs. (Matter number M10416311/21).
The parties have identified a number of issues for determination in this case. I have grouped these issues as follows which I will address below: procedural issues; evidence about the accident; was there one or two accidents; Commissions rules of evidence and procedure; who is at fault or mostly at fault; contributory negligence; and who is the “relevant insurer” ?

Procedural issues

I have considered the documents provided with the Claim form, the reply and further information including the parties submissions and the evidence from the Claimant and other driver Lyndon Fawcett.
I decided not to have an oral hearing because both drivers stated that they either had no memory or what happened or did not see the accident. Accordingly I did not expect an oral hearing would produce any additional evidence that would be helpful in determining what happened. None of the parties requested an oral hearing. QBE’s solicitors expressly submitted that the issues of fault or liability in this claim could be assessed on the papers, and they did not require a face-to-face assessment conference.
On 14 January 2022 I requested from the parties a clear copy of the Barrington Investigations report dated 27 March 2019 and also a copy from QBE of a statement from their insured driver Lyndon Fawcett. A further clearer copy of the Barrington Investigations report was provided by the NRMA but without any annexures. No response was received from QBE and no copy of any statement from Lyndon Fawcett was provided. This case has been difficult to decide because of the lack of evidence and the parties have made it more difficult by their failure to provide all evidence that may have assisted in determining the matter.

Evidence of Accident/s

I will briefly summarise the available evidence about the accident/s.
In her application for personal injury benefits dated 25 November 2018, (R 1-R 2), the Claimant described the accident as follows:
“I was driving into carpark to park so I can attend my medical clinic ….I was going to park and something startled me. I can’t remember what happened next but I was trapped in my car after hitting into a tree and fence after I heard a loud bang from behind me.”
The NRMA obtained an investigation report from Barrington Investigations dated 27 March 2019, (R 4).
Barrington Investigations interviewed the Claimant and the investigating police officer, Constable Matthew Clinton. The other driver, Lyndon Fawcett, declined to be interviewed . A hearsay account of the accident was obtained from Mr Fawcett’s employer and owner of the QBE insured vehicle.
Barrington Investigations interviewed the Claimant in the presence of her daughter Rania Guirguis and an interpreter on 19 March 2019. Almost every question and answer during the interview is incomplete because of the difficulty with language and the interpreter. In response to question 66 about hearing a bang behind her the Claimant said she was shocked, afraid and frightened. In response to question 77 she says she did not know what happened. At question 99 she was asked whether her car had ever had any mechanical problems. The Claimant replied: no. In response to question 101 when asked whether she had ever had any medical episodes when driving the Claimant said no. In response to questions 104 and 105 Rania Guirguis said her mother always had mild tremors but until the accident they were under control and after the accident are controlled by medication.
During his interview with Barrington Investigations, (at questions 50 to 55), Constable Clinton said he visited the Claimant and her daughter in hospital on 16 January 2019. Constable Clinton gave his account of what the Claimant’s daughter Rania Guirguis told him what the Claimant said about the accident: “…at a later stage I was able to organise her daughter to get a Version from her and that wasn’t until January this year….her Version was she had arrived at the car park early in the morning because she had a doctor’s appointment… she had parked her vehicle and then she claims that while she was in this parking spot, she’s felt a bump from behind and then she’s told me she doesn’t remember what happened after that and remembers seeing a fence and a tree.”
During his interview with Barrington Investigations, (at question 39), Constable Clinton read out from his police notebook his note of Mr Fawcett’s account of the accident:
“So he informed me that he had come into the carpark, made his way down and he’s gone over, this carpark is full of quite high-speed humps, as he’s come in and gone over a speed hump he’s slipped a gear and the car has jumped forward a bit. As he’s jumped forward he has seen the Toyota Corolla. He couldn’t tell me if it was reversing or if it was parking and he’s collided with the rear of it. Um, as he’s done that paperwork has fallen on the floor. He has leant forward to pick up his paperwork, looked up and the car wasn’t there. So then he has driven around and seen the vehicle in the tree and stopped”.
Although Lyndon Fawcett was not interviewed for the Barrington Investigations report his employer, who was the owner of the QBE insured vehicle, gave a hearsay account of what Mr Fawcett said happened. This account included the following:
“As he entered the car park a silver Corolla Ascent sedan reversed out of one of the car spaces located directly behind the shop complex.
Linden struck the left-hand side corner of the vehicle causing minor damage to the rear tail gate, rear quarter panel, left hand rear quarter panel and boot.
After striking the vehicle Linden stopped his vehicle and reached down to remove a folder which had then slid onto the gearstick.
Whilst doing this, the operator of the Corolla proceeded forward and out of sight from Linden.
Linden then proceeded to the south portion of the car park towards the exit onto Hartill-Law Avenue in search for the vehicle.
He then proceeded along Hartill-Law Avenue onto Slade Road where he then turned the vehicle around and returned back to the car park to see if any witnesses had seen the incident or if the other vehicle had returned to the incident scene.
Upon return he noticed the silver Corolla stopped against a tree located at the far eastern end of the car park.
The vehicle had run through a chain mesh fence and into a tree located approximately100 metres away from where the original accident had occurred.”
Also in the Barrington Investigations report, Constable Clinton was asked (at question 69), whether he was aware if the Claimant had experienced any other medical episodes previously. He replied that he was not aware of any and her next of kin had informed him that the Claimant had only just recently got her licence back from the RMS for which she needed to be medically cleared.
Constable Clinton was asked (at question 87), whether there were any independent witnesses to the accident and he answered no.

Submissions

I have considered the documents provided with the Claim form, the reply and further information including the parties submissions and the statement from the Claimant. I have also considered all the material supplied by both insurers is both matters.
I have set out in some detail the submissions from the Claimant’s solicitors and both insurers because many of the submissions are in the form of a dialogue amongst the parties. A brief summary would not give an accurate picture of how the issues were raised and debated by the parties. I will then address each of the issues raised by the parties.

Claimant’s solicitor’s submissions dated 4 February 2021

The Claimant’s solicitor’s submissions dated 4 February 2021 (A 4) in summary submit that:
(a)   the Claimant had only recently had her driver’s licence renewed. She had no health issues affecting her ability to drive;
(b)   following the collision, the Claimant’s vehicle continued to travel forwards, accelerating until it struck a tree within the carpark;
(c)   the Claimant and her daughter Rania filled out the claim form in hospital;
(d)   Rania also contacted QBE, the insurer for Lyndon Fawcett;
(e)   Rania and the Claimant both believed and informed both insurers that Lyndon Fawcett was at-fault for the accident;
(f)    the Claimant had mistakenly lodged her claim against her own insurer and has now attempted to lodge a claim with QBE;
(g) an issue in dispute is which insurer (NRMA or QBE) is the relevant insurer for the purposes of section 3.3 of the Motor Accident Injuries Act 2017;
(h) an issue in dispute is whether for the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person;
(i) an issue in dispute is whether the relevant insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38
(j)    an issue in dispute is whether exceptional circumstances exist to entitle the Claimant to the payment of legal costs incurred by the Claimant in accordance with section 8.10;
(k) QBE is the relevant insurer for the purposes of section 3.3 as their insured driver was at-fault for the accident;
(l)    there are not separate accidents;
(m)     in terms of causation the same result must arise;
(n)   the chain of causation between the impact from the two vehicles to the impact with the tree was unbroken;
(o)   whether the Claimant lost control of her vehicle because of the sudden impact from behind, or that she was rendered unable due to shock or other injury following the impact to control her vehicle, the result is the same;
(p)   Mr Fawcett ‘s version of events suggests that he was not keeping a proper lookout because he had not seen the Toyota Corolla until the impact;
(q)   Mr Fawcett leant forward to pick up paperwork at around the time the impact occurred also suggests that he was not keeping a proper lookout;
(r)    it is difficult to accept that Mr Fawcett entirely avoided seeing any of the aftermath of the accident including the Claimant’s vehicle running through the carpark and into a tree;
(s) if it is determined that the QBE Insured driver (Lyndon Fawcett) is not at fault for the accident, the Claimant makes a claim under the no-fault provisions of Part 5 of the Motor Accident Injuries Act 2017;
(t) the Claimant is not wholly or mostly at fault for the accident for the purposes of section 3.28;
(u) the Claimant is not contributorily negligent for the purposes of section 3.38; and
(v) a claim against ones’ own policy is not an admission or indication of fault, but rather an avenue for a Claimant to make a no-fault claim under Part 5.

Claimant’s solicitor’s further submissions dated 24 September 2021

The Claimant’s solicitors’ further submissions dated 24 September 2021 (AD 1) in summary submit that:
(a) the Claimant’s position is that QBE is the relevant insurer pursuant to section 3.3 of MAI Act 2017 and that their insured driver, Lyndon Fawcett, is mostly at fault for the subject accident;
(b)   the Claimant has previously detailed her position with respect to the late lodging of the claim against QBE as at paragraphs 2.1-2.7 of Submissions dated 4 February 2021;
(c)   the Claimant did not seek legal advice until 10 April 2019. It was not until much later that the Claimant’s solicitors became aware of the claim form being mistakenly lodged against NRMA instead of QBE; and
(d)   the Claimant’s solicitors forwarded correspondence to QBE on multiple occasions seeking a concession. No response was received from QBE or its representative.

NRMA’s submissions 13 August 2021

The NRMA made initial submissions in reply received on 13 August 2021 (R 2). In summary those submissions are:
(a) the Claimant lodged an application seeking a merit review of NRMA’s decision to cease the payment of statutory benefits pursuant to section 3.28 of the Motor Accidents Injuries Act;
(b) the NRMA issued its internal review certificate on 1 May 2019. The Claimant’s application against NRMA is therefore outside the time prescribed by rule 115(3) of the Personal Injury Commissions Rules. In the absence of any submission to the contrary NRMA says that the Claimant’s application should be dismissed;
(c) the Claimant’s submission is that she is not mostly at fault because the driver of the insured vehicle is at fault. By definition the Claimant does not appear to believe that the accident falls within the no-fault provisions. The Claimant does not address at all the fault of any other person or her own fault in the driving of the vehicle;
(d) the accident was caused by the negligence of the QBE insured or that the collision was the result of the Claimant’s failure to properly control her vehicle in response to the initial collision; and
(e) the NRMA disputes that exceptional costs apply.

NRMA’s further submissions 12 October 2021

The NRMA made further submission received on 12 October 2021 (AD 2). In summary those submissions are:
(a) the NRMA continues to rely on its earlier submissions and now confirms that it no longer takes any issue with the limitation period;
(b) the Claimant’s primary position is that the driver of the QBE vehicle was wholly at fault for her accident and injuries;
(c) it inherently follows that this could not be a no-fault accident;

(d) NRMA should not be required to pre-emptively respond to an alternative
submission about why this collision might fall within the no-fault provisions;
(e) either the accident was caused by the negligence of the QBE insured or the collision was the result of the Claimant’s failure to properly control her vehicle in response to the initial collision;
(f) the other insurer, QBE asserts that there were two relevant collisions - the first a collision between its insured’s vehicle and the Claimant’s vehicle and the second when the Claimant’s vehicle ran out of control and collided with a tree/fence;
(g) the NRMA’s position is that there was no relevant break in the chain of causation between the first collision and the Claimant then colliding with a fence/tree;
(h) QBE submits at paragraph 21 that the ‘second incident’ was either caused by a medical episode or the Claimant mistakenly placing her foot on the accelerator;
(i) QBE has put on no evidence from its Insured as to what the Claimant purportedly did which broke the chain of causation.

(j)    at its highest QBE offers a third hand account that an unidentified person told its insured driver that the Claimant was speeding through the carpark (at paragraph 10 QBE submission);
(k)   neither the Claimant nor QBEs insured can offer any evidence as to what occurred after the first incident or collision;
(l)    QBE has failed to discharge is evidentiary burden;
(m) NRMA says that if it is accepted that the Claimant must have placed her     foot on the accelerator then it would be accepted that this occurred in the agony of the moment and did not break the chain of causation. See the decision of Stuart v Walsh [2012] NSWCA 186 per Tobias AJA and Street CJ in Leishman v Thomas (1957) 75 WN(NSW) 173 at 175;
(n) it would also not be surprising that if the Claimant was in the process of reversing out of a parking spot and alternating between acceleration and braking could have resulted in the accelerator being applied;
(o) the Claimant behaved consistently with a reasonably prudent driver and there was no break in the chain of causation;

(p) the other alternative proposed by QBE is that the Claimant suffered a medical episode. There is presently no medical evidence that the Claimant suffered a medical episode prior to or during either collision or that any such condition was causative; and

(q) there is evidence in the statement of Constable Clinton that the Claimant had only recently received her licence back having lost it as a result of a medical condition associated with tremors.

NRMA’s second further submissions 25 November 2021

The NRMA made second further submission received on 25 November 2021 (AD 4). In summary those submissions are:
(a) section 3.2(2) of the MAI Act provides that the relevant insurer for the purposes of section 3.3 of the Act is the insurer of the at-fault motor vehicle;
(b) NRMA’s position is that there was only one accident and that the QBE vehicle was the at fault vehicle. In accordance with section 3.2(2) it would therefore flow that QBE is the managing insurer;
(c)   does the Claimant’s requirement for treatment and rehabilitation arise out of the first or second incident? It is NRMA’s understanding that there is no direct evidence which goes to this point;
(d)   if it were found that there were two accidents it would also be found that the Claimant was at fault for the second collision such that NRMA was entitled to cease payment of the Claimant’s statutory benefits pursuant to section 3.28;
(e)   the Claimant’s submission is that the QBE vehicle was at fault. It inevitably follows, by the Claimant’s own submission, that this could not be a no-fault accident;
(f)    the Claimant is yet to explain how the second collision was a no-fault accident or the basis on which any such finding would be made. In particular the Claimant does not say that she suffered any medical episode at the wheel of her vehicle. NRMA says there is no basis for any finding that the accident was a no-fault accident;
(g)   QBE asserts that there were two relevant incidents - the first a collision between its vehicle and the Claimant’s vehicle and the second when the Claimant’s vehicle ran out of control and collided with a tree/fence;
(h)   QBE concedes that’s its insured driver was at fault for incident 1 but asserts that this was a minor collision. NRMA argues that given the extensive damage to the rear of the Claimant’s car the first incident or collision was a significant impact to the Claimant’s vehicle which could have caused significant injury;
(i)    QBE relies on March v E & MH Stramare Pty Ltd (1991) 171 CLR but otherwise puts on no evidence as to why the Claimant’s injuries and entitlement to statutory benefits was not caused by incident 1;
(j)     NRMA’s position is that there was no relevant break in the chain of causation between the first incident and the Claimant colliding with a fence/tree;
(k)   QBE submits at paragraph 21 that the ‘second incident’ was either caused by a medical episode (discussed below) or the Claimant mistakenly placing her foot on the accelerator. NRMA however observes that QBE has put on no evidence from its Insured as to what the Claimant purportedly did which broke the chain of causation;
(l)    NRMA says that the Claimant did behave in a manner consistent with a reasonably prudent driver and there was no break in the chain of causation; and
(m)     there is nothing in the available material to suggest that the Claimant suffered any type of medical episode at the time of or immediately prior to the collision.

QBE’s submissions 24 June 2021

QBE made submissions dated 24 June 2021 (R 1). In summary those submissions are that:
(a) no claim was formally made against QBE, so QBE have made no determination on liability for statutory benefits and such a determination has not been the subject of an internal review;
(b) it is submitted that the only issue which can be agitated against QBE which is the relevant insurer;
(c) QBE’s understanding is that no weekly benefits have been paid to the Claimant as she is 79 years of age and was on the age pension. Thus the third issue about section 3.38 , reduction of weekly statutory for contributory negligence should be dismissed and not referred for consideration;
(d) NRMA arranged for a factual investigation into the accident, which was carried out by Barringtons, (R 4);
(e) Barringtons interviewed the Claimant and the investigating police officer, Constable Matthew. The other driver, Lyndon Fawcett, declined to be interviewed and instead a hearsay account of the accident was obtained from Mr Fawcett’s employer and owner of the QBE’s insured vehicle;
(f)    QBE submits that there were two relevant incidents - the first a minor collision between its insured vehicle and the Claimant’s vehicle and the second when the Claimant’s vehicle travelled 60 to 100 meters and collided with a fence and tree in a high impact collision;
(g) the Claimant argues that the two collisions are not separate accidents and that it was a natural consequence that, as a result of the first collision, the claimant lost control of her vehicle;
(h) QBE’s position is that there is no reasonable basis upon which one could attribute the cause of the second incident to the first incident;
(i)    the evidence suggests that the second collision is likely to have been caused by either the Claimant suffering a medical episode, or mistakenly putting her foot on the accelerator rather than the brake;
(j) it was not foreseeable that the Claimant would either have a medical episode or drive in such a manner after a low-speed collision. On this basis, the requirement in section5B of the Civil Liability Act 2002 is not met and no duty of care was owed by the QBE insured driver to the Claimant;
(k)   the requirement that the plaintiff's damage be caused by the negligence of the defendant means that where negligence is proved, but a subsequent event is proved to be the effective cause of injury, the defendant is not liable: March v E & MH Stramare Pty Ltd (1991) 171 CLR 506;
(l)    the Claimant’s actions in driving in the manner that she did would constitute a subsequent event, after the first impact, which was the effective cause of her injuries;
(m) the relevant insurer for the second accident was the insurer of the Claimant’s own vehicle, the NRMA; and
(n) any issue as to whether NRMA have reasonably declined liability for statutory benefits beyond 26 weeks is a matter of dispute between NRMA and the Claimant.

QBE’s further submissions dated 30 September 2021

QBE made further submissions dated 30 September 2021 (AD 2). Those submissions submit that:
(a)   the Claimant's solicitors requested by correspondence dated 4 February 2021 that QBE make a decision with respect to liability. At that point, liability was still being investigated as a copy of NRMA’s file was being sought by QBE;
(b)   no formal determination was ever made by QBE with respect to liability for statutory benefits beyond 26 weeks;
(c)   under clause 4.26 of the Motor Accident Guidelines and sub-section 6.15(4) of the MAI Act if notice of a claim has been given to an incorrect insurer and the claim must be transferred to the relevant insurer, the claimant is excused from giving notice of a claim to the relevant insurer;
(d)   there is no application for internal review on the issue which would allow a determination of the issue of liability for statutory benefits beyond 26 weeks as against QBE by the Personal Injury Commission. The Commission does not currently have jurisdiction to determine this issue; and
(e)    the issue of liability for the claimant’s statutory benefits can be effectively determined by way of the relevant insurer dispute which is currently on foot and determination of the denial of statutory benefits beyond 26 weeks by NRMA.

QBE’s second further submissions dated 29 November 2021

QBE made further submissions dated 29 November 2021 (AD 4). Those submissions submit that:
(a) the Claimant's and NRMA’s solicitors submit that the lack of a statement from QBE’s insured driver means it should be afforded less weight than the other evidence. There are no statements from the claimant or eyewitnesses in this claim;
(b) the other witnesses to the Claimant’s driving through the car park have not been identified in the police interview should not reduce the weight of the evidence that was provided to the police;
(c)   a direction could be made to the New South Wales Police Service for their records and witness statements but the investigating police officer’s account of what was told to him at the scene is sufficient for a determination of this issue;
(d) NRMA argues in the second further submissions that no evidence has been served by QBE as to why the claimant’s injuries and entitlement to statutory benefits was not caused by the first incident;
(e) it is apparent from the evidence that the Claimant’s injuries were caused by the second collision with the fence and tree;
(f)    the claimant’s rib and sternal fractures would have been caused by the deployment of the airbag and the Claimant’s body movement towards the front of the vehicle upon her vehicle hitting the tree. A rear end collision could not have caused fractures to the ribs or sternum, nor a fracture to the Claimant’s ankle;
(g) the photographic and police evidence show that the impact between QBE’s vehicle and the Claimant’s vehicle was a minor rear end collision;
(h) the impact between the Claimant’s vehicle and the fence and the tree involved a more significant impact likely to have caused much greater forces and injuries on the Claimant’s body;
(i)    the decision of Stuart v Walsh does not apply in these circumstances. That decision discussed an ‘agony of the moment’ defence to an allegation of negligence;
(j)    the Claimant’s actions in driving through a car park, through a fence and into a tree could not be described as the response of a reasonably prudent driver on any view of the facts in this case;
(k)   the second collision, between the claimant’s vehicle and the tree, does not appear to have been witnessed by anybody. There is no evidence as to what transpired in between the minor impact with QBE’s insured vehicle and the moment the Claimant’s vehicle hit the tree;
(l)    it is submitted that the evidence does not support a finding that the second accident was a reasonably foreseeable consequence of the initial accident;
(m) the Claimant’s injuries were sustained by her during the impact between her vehicle and the fence and tree;
(n) the Claimant’s injuries which were plainly caused by a head on collision which would have pushed her body forward rather than a minor rear end collision which would have pushed her back into the seat;
(o) QBE disputes that exceptional costs apply to this application.
(p) the issues in this case are complicated by the involvement of two insurers and two separate collisions;
(q) it is submitted that the claimant’s solicitors have not obtained expert evidence with respect to the issues of fault or liability and this is a claim which, QBE submits, can be assessed on the papers, therefore not requiring a face-to-face assessment conference as to the issues; and
(r)   regulated costs are sufficient in this claim to compensate the Claimant’s solicitors for the work required.

Commission’s rules of evidence and procedure

Having now summarised the available evidence and submissions, I now briefly outline the provisions about evidence and procedure under which the Commission operates.
Section 43 of the Personal Injury Commission Act 2020 ( PIC Act) provides that the Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate.
Section 43 states:
“43 Procedure before Commission generally
(1) Proceedings in any matter before the Commission are to be conducted with as little formality and technicality as the proper consideration of the matter permits.
(2) The Commission is not bound by the rules of evidence but may inform itself on any matter in the manner the Commission thinks appropriate and as the proper consideration of the matter before the Commission permits.
(3) The Commission is to act according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms.”
Whilst it is clear that the Commission is not bound by the rules of evidence, a tribunal it is not precluded from adopting or applying them, see: Sullivan v Civil Aviation Safety Authority [2014] FCAFC 93 at [121] (Sullivan)..
As stated by Flick and Perry JJ in Sullivan [at 97]:
“The procedural flexibility accorded to an administrative tribunal does not absolve it from the obligation to make findings of fact based upon material which is logically probative in which the rules of evidence provide a guide.”
The law requires a tribunal to make findings of fact based on material that is logically probative, relevant and reliable, see Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 31
See also Beezley v Repatriation Commission [2015] FCAFC 165; (2015) 150 ALD 11 at [68] where the Full Federal Court summarised how a tribunal is to make its decisions based on relevant and probative material.:
“In any case before a merits review tribunal (or a first instance decision-maker), a decision can only be made on the basis of relevant and probative material. The material must be probative of the matters for which the statute provides: see Minister for Immigration and Ethnic Affairs v Pochi [1980] FCA 85; 44 FLR 41 per Deane J. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. And unless and until a decision-maker is satisfied, or persuaded, that the requirements are met, then no occasion to exercise the power in favour of an applicant arises. In that sense, as a practical matter, it is not incorrect to say that a person “must satisfy” the requirements in the statute. To say that is not to impose an onus of proof on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a benefit or interest: see generally, McDonald v Director-General of Social Security [1984] FCA 59; 1 FCR 354 at 356-357 and 358 (per Woodward J), 366 (per Northrop J) and 369 (per Jenkinson J); Ward v Western Australia [1996] FCA 1452; 69 FCR 208 at 215-218; and Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs [2012] FCAFC 81; 289 ALR 237 at [18] and the cases there cited.”

44. As far as my research reveals there are no cases that consider in specific detail the issues of “evidence” or the “burden of proof” before any Australian tribunal dealing with motor vehicle accidents. In Vines v Djordjevitch [1955] HCA 19 (Vines), the High Court approved an argument that the burden of proof rests with the plaintiff when she sought to prove compliance with a proviso that was required in the Motor Car Act 1951 (No. 5616) (Vict.).

45. Attempting to accurately summarise the process to be followed by a tribunal when considering evidence and making findings is fraught with difficulties. The process was described comprehensively in the decision of Finkelstein J in Epeabaka, Faustin v Minister for Immigration and Multicultural Affairs - [1997] FCA 1413. The question before the Court concerned what approach should be taken by the Refugee Review Tribunal in determining whether it has been sufficiently persuaded of the existence of facts which it is asked to determine. Although His Honour dealt with the process followed by the Refugee Review Tribunal, some of the analysis may be used as a general guide in proceedings before the Commission.

46. In summary Finkelstein J set out the process in matters before the Refugee Review Tribunal as follows. The Tribunal must simply listen to all of the evidence and decide the case on the basis of that evidence. In considering the evidence the Tribunal is ‘under a duty to arrive at the correct or preferable decision in the case’… When deciding a case the Tribunal must have regard to what is an appropriate standard of persuasion (or proof). In Liang the High Court observed that the decision-making processes that are applicable to civil litigation, such as notions of burden of proof and the like, are not always applicable to administrative decision-making: see 185 CLR 282.

47. His Honour further stated at [4 to 7]:

“ Unless the Tribunal is required to apply some standard of proof it is not easy to see how the Tribunal should direct itself in determining whether the evidence before it permits it to make a particular finding of fact. On one view the Tribunal could approach the matter solely by reference to “natural justice and common sense” (see McDonald at 9) but this does not give a sufficiently clear guide to the Tribunal in my opinion. It is more likely to arrive at the correct or preferable decision if its obligation is to determine the existence of facts in accordance with the civil standard except in respect of those matters where the nature of what must be decided makes this inappropriate.
In the course of deciding whether it has been persuaded, on the balance of probabilities, of the existence of a particular fact or event the Tribunal is not bound by the rules of evidence. That is not to say that the rules of evidence should be set aside. In R v War Pensions Entitlement Appeal Tribunal; Ex parte Bott (1933) 50 CLR 228 at 256 Evatt J pointed out that those rules were developed “to prevent error and elicit truth”. Nevertheless, because it is not bound by rules of evidence the Tribunal can act on any material that is helpful in coming to a decision. That includes material that might be admissible in a court of law. It includes hearsay that might not be admissible in a court; presumably the hearsay must be reliable: Kavanagh v Chief Constable of Devon and Cornwall [1974] 1 QB 624 at 633 . But in all cases the evidence relied upon must be logically or rationally probative of the fact to be determined. This was the point that was made by Diplock LJ in R v Deputy Industrial InjuriesCommissioner; Ex parte Moore [1965] 1 QB 465 at 488 :

‘The requirement that a person exercising quasi-judicial functions must base his decisions on evidence means no more than it must be based on material which tends logically to show the existence or non-existence of facts relevant to the issue to be determined, or to show the likelihood or unlikelihood of the occurrence of some future event the occurrence of which would be relevant. It means that he must not spin a coin or consult an astrologer, but he may take into account any material which, as a matter of reason, has some probative value in the sense mentioned above. If it is capable of having any probative value, the weight to be attached to it is a matter for the person to whom Parliament has entrusted the responsibility of deciding the issue.’

Lord Diplock returned to this topic when delivering the advice of the Privy Council in Mahon v Air New Zealand [1984] AC 808 . There His Lordship said (at 820 ) that one rule that governed administrative decision-making was that the decision must be based “upon evidence that has some probative value”. He explained (at 821) that “what is required is that the decision to make a finding must be based on some material that tends logically to show the existence of facts consistent with the finding and that the reasoning supportive of the finding, if it be disclosed, is not logically self-contradictory.” Once it is accepted, as I think it should be, that the Tribunal is required to base its findings on probative evidence it must follow that the Tribunal is also under an obligation to rationally consider that evidence. There would be little point to the imposition of an obligation upon a tribunal to decide a case on probative evidence if there was not an additional obligation to rationally consider that evidence. Each obligation is designed to ensure, so far as may be possible, that the Tribunal does indeed arrive at a decision which is the correct or preferable decision. Conversely if each obligation is not imposed there will be a tendency for administrative decision-making to be arbitrary.”

See also the more recent decision of Re Minister for Immigration and Multicultural Affairs; ex parte Applicant S154/2002 [2003] HCA 60; (2003) 201 ALR 437 at [57], per Gummow and Heydon JJ.

Consideration of evidence – Findings

Having summarised the available evidence and the procedure to be followed when considering the material or evidence in the matter, I now determine the findings to be made in this case. My task is to determine whether I have been sufficiently persuaded of the existence of facts which I am asked to determine.
The rules of evidence provide useful rules for both the admission and exclusion of evidence. In the present case there is considerable hearsay and opinion evidence presented and relied upon by all parties in support of their submissions about how the accident occurred. A crucial issue in this case is how should that evidence be treated and what weight should be given to it by the Commission. Generally speaking hearsay evidence is given less weight than direct evidence because that person’s version of the evidence cannot be tested and is for that reason considered less reliable. Under the rules governing the admissibility of opinion evidence, any opinion evidence is generally excluded unless given by a qualified expert.
The three factual issues I will consider and make findings on are: whether I can make a finding that the Claimant somehow contributed to her own accident by suffering a medical episode or mistakenly pressing the accelerator of her car instead of pressing the brake; whether I can use photographs of the damaged car to determine how, when and what caused the Claimant’s injuries; and whether there was one or two accidents
(i)Did the Claimant suffering a medical episode, or mistakenly put her foot on the accelerator rather than the brake?
QBE solicitors submit that the evidence suggests that the second collision is likely to have been caused by either the Claimant suffering a medical episode, or mistakenly putting her foot on the accelerator rather than the brake.
The Claimant submits that the Claimant had only recently had her driver’s licence renewed. She had no health issues affecting her ability to drive. There is no notation or medical concern noted in the Claimant’s medical file expressing any concern about her fitness or ability to drive at the time of the accident, (AD 3). In the Barrington Investigations report, Constable Clinton said he was not aware that the Claimant had experienced any medical episodes. Her next of kin had informed him that the Claimant had only just recently got her licence back from the RMS for which she needed to be medically cleared. There is no other evidence from Constable Clinton, who attended the accident, that the Claimant exhibited any signs of any medical episode other than her injuries. There is no evidence from the hospital file or from any expert medical report which raises the possibility that the Claimant was unfit to drive.
QBE submits that Claimant suffered a medical episode during the collision. QBE has failed to point to evidence or to persuade me that such a medical episode could have caused or contributed to the accident or collision.
There is not sufficient evidence before me where I could be satisfied that it is more probable than not that the Claimant may have experience a medical episode or condition that would have caused her to lose control of her car and accelerate through the car park and collide with the tree. The preponderance of the evidence before me was that she medically fit to drive and it was unlikely that the Claimant experienced a medical episode during the accident.
Similarly, there is not sufficient evidence before me where I could be satisfied or persuaded that the Claimant may mistakenly have put her foot on the accelerator rather than the brake. The Claimant’s solicitor’s submit that the Claimant may have lost control of her vehicle because of the sudden impact from behind, or that she was rendered unable due to shock or other injury following the impact to control her vehicle. While any of these suggestion may be a plausible or possible explanation, there is simply no medical evidence, expert evidence or witness evidence that would support such a finding. The best finding that can be made on the available evidence is that it is not known what caused the Claimant’s car to accelerate rapidly soon after the collision with Mr Fawcett’s car.
(ii)Use of photographs to determine how and what caused the Claimant’s injuries.
QBE solicitor’s made three detailed submissions that there is evidence that the second collision with the fence and tree was a high impact collision that is likely to have caused the Claimant’s injuries. QBE solicitors submit that the Claimant’s rib and sternum fractures were caused by the deployment of the airbag and the Claimant’s body movement towards the front of the vehicle when her vehicle hit the tree. A rear end collision could not have caused fractures to the ribs or sternum, nor a fracture to the Claimant’s ankle. QBE solicitor’s also submit that the photographic and police evidence show that the impact between QBE’s vehicle and the Claimant’s vehicle was a minor rear end collision. The impact between the Claimant’s vehicle and the fence and the tree involved a more significant impact likely to have caused much greater forces and injuries on the Claimant’s body.
Based on the available evidence and photographs, I could not be satisfied that it is more probable than not that there collision with the fence and tree was a high impact collision that is likely to have caused the Claimant’s injuries. There is evidence from the Claimant and Constable Clinton in their interviews with Barrington Investigations about the damage to the front and rear of the Claimant’s car. There are also photos in the Barrington Investigations which show considerable damage to the left rear of the Claimant’s rear bumper and left taillight. The photos also show more severe damage to the front bonnet, windscreen and driver’s side door with airbags deployed inside the car.
I am very reluctant to make any findings about the cause of the Claimant’s injuries by simply relying on or accepting the parties interpretation of the photos. In Blacktown City Council v Hocking [2008] NSWCA 144 the Court of Appeal has cautioned about how photographs are to be used or interpreted in the absence of expert evidence. In the absence of expert evidence it was not open to a judge or tribunal to rely merely upon his/her interpretation of the photographs in coming to his/her conclusion about the evidence. Tobias JA gave a good summary of how photographic evidence should be used. His Honour stated at [167] :
“… in Short v Barrett, Court of Appeal, 5 October 1990 (unreported), Meagher JA, with the concurrence of Clarke and Handley JJA, observed that in relying on his own interpretation of photographic evidence, the trial judge had overlooked the ‘sage advice’ of Lord Reid in C Van der Lely NV v Bamfords Ltd [1963] RPC 61 at 71. His Lordship said:
‘Lawyers are expected to be experts in the use of the English language, but we are not experts in the reading or interpretation of photographs. The question is what the eye of the man with appropriate engineering skill and experience would see in the photograph, and that appears to me to be a matter for evidence. Where the evidence is contradictory the judge must decide. But the judge ought not, in my opinion, to attempt to read or construe the photograph himself; he looks at the photograph in determining which of the explanations given by the witnesses appears to be most worthy of acceptance.’ “
Tobias JA concluded at [169 to 172] that photographs:
“…. should not be used by a judge to make findings of fact which are otherwise unsupported by the evidence and are therefore no more than conjectural: Schmidt v Schmidt [1969] QWN 3 at 6; Beaton v McDivitt (1985) 13 NSWLR 134 at 142.....In my view it required the evidence of an expert to so interpret the relevant photographs. In the absence of any such evidence, it was not open to her Honour to substitute her own view as a lay observer over the evidence of an expert.”
Accordingly, absent any expert evidence to assist me in interpreting the photos of the Claimant’s Toyota , I cannot accept any of submissions from QBE’s solicitors that the Claimant’s injuries were mostly caused by the collision with the tree and that their insured driver was not responsible for those injuries.
(iii)One or two accidents
The Claimant’s evidence is contained in her application form. In summary, she states that she was parking her car and was startled by something. She heard a loud bang behind her and was trapped in her car which hit a tree and a fence. She remembers nothing else. There is no evidence from the Claimant that she suffered a medical episode or pressed her accelerator instead of the brake. Her account is corroborated by her daughter’s hearsay account of what her mother told her as was recorded by Constable Clinton.
The evidence from the other driver, Lyndon Fawcett ,is only available in hearsay form from an account by the Constable Clinton who attended the scene and Mr Fawcett’s employer. In summary, that evidence is that Mr Fawcett was driving his Toyota Hi Lux utility in the car park when he collided with the Claimant’s Toyota Corolla . At the time of the initial collision he bent down to pick up some papers in his car and when he next looked he could not see the Claimant’s car. He then drove around the car park and later notice her car had collided with a tree.
Constable Clinton’s evidence in the Barrington Investigations report was there were no independent witnesses that witnessed the actual accident.
The Claimant and the NRMA both submit there was one accident and not two separate accidents. They say the driver of the QBE vehicle was wholly at fault for the Claimant’s accident and injuries. The Claimant submits that the chain of causation from the initial impact between the two vehicles to the impact with the tree was unbroken.
The insurer for the other driver, QBE, submits that there were two relevant incidents. The first a minor collision between its insured vehicle and the Claimant’s vehicle and the second when the Claimant’s vehicle travelled 60 to 100 meters and collided with a fence and tree in a high impact collision.
I have considered all the available evidence about the circumstances surrounding he accident. I have also considered the approach the Commission should take in determining whether I have been sufficiently persuaded of the existence of facts which I have been asked to determine. When making a decision the Commission must examine the evidence and then be satisfied or persuaded that the evidence satisfies the requirements of the legislation. The Commission must make findings of fact based on material that is logically probative, relevant and reliable. Whilst the rules of evidence don’t apply in proceedings before the Commission, they can be a useful guide. If an applicant does not provide evidence and information sufficient to meet the statutory requirements, an applicant is unlikely to have the statutory power exercised in her or his favour. A decision-maker must be satisfied, or persuaded, that the requirements in the statute are met. To say that is not to impose an “onus of proof” on an applicant, but rather to recognise the operation of the legislative scheme under which the person seeks a statutory benefit.
Based on my reading of the statements and evidence from the two drivers, I am persuaded or satisfied that it is more probable than not that there was one accident and not two. Although the evidence from the other driver, Lyndon Fawcett ,is only available in hearsay form, his evidence is that as the initial collision occurred he looked down to pick up some papers and then as he next looked up he could not see the Claimant’s car. Her car had driven away in the time it took him to look down then up again. Given the short time that it took for Mr Fawcett to look down then up and then not see the other car drive away indicates that these events happened very quickly in one continuous chain of events. If there had been two separate accidents, as suggested by QBE, one would expect some evidence of a slight pause, delay or gap between the initial collision and the driving away of the Claimant’s car. There is no such evidence before me of such a delay or gap. I am not persuaded by evidence and submissions made by QBE that there were two separate accidents.
I will now deal with the two issues of which driver is at fault and which insurer is the relevant insurer.

Payment of statutory benefits and who is at fault or mostly at fault?

(i)Statutory provisions about whether the accident was caused wholly or mostly by the fault of the Claimant.

Under section 3.1 of the MAI Act, statutory benefits are payable (except as otherwise provided by Part 3) for injury resulting from motor accident whether or not the motor accident was caused by the fault of the driver or even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.
The legislation relevant to the issue of whether a person has an entitlement to weekly payments of statutory benefits where a motor accident was caused wholly or mostly by the fault of the person can be briefly summarised as follows. Sub-sections 3.11 (1) and 3.28 (1) provide that statutory benefits are not payable more than 26 weeks after the accident if:
(a)the accident was caused wholly by the Claimant's fault, or
(b)the accident was caused mostly by the Claimant's fault. ‘Mostly at fault’ is defined as being contributory negligence of greater than 61%, or
(c)the Claimant has only minor injuries.

72. When deciding which driver was wholly or mostly by the fault, the issues I have to consider include :

a. Whether the Claimant is wholly at fault which is determined by considering:
i.whether Mr Fawcett owed a duty of care to the Claimant, and
ii.whether Mr Fawcett breached that duty of care to the Claimant.

b. Whether the Claimant is mostly at fault which is determined by considering:
i.whether the Claimant has any contributory negligence at all, and
ii.if so, the degree of her contributory negligence.

73. When determining duty of care the relevant legislation I am required to consider includes sections 5B and 5C of the Civil Liability Act. When determining contributory negligence I will consider subsections 5R and 5S of the Civil Liability Act.

74. Section 3.11 of the MAI Act concerns the issue of cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks. I have noted the issues raised by section 3.11 but will not give any consideration to it in this case because the Claimant’s solicitors have not raised it as an issue in dispute. I also note QBE’s submission that no weekly benefits have been paid to the Claimant as she is 79 years of age and was recieving the age pension, (see R 1).

Under section 3.28 of the MAI Act is as follows:

“3.28   Cessation of statutory benefits after 26 weeks to injured adult persons most at fault or to injured persons with minor injuries
(1)   An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a)  the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b)  the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”

Section 3.38 of the MAI Act provides in part as follows:
“3.38 Reduction of weekly statutory benefits after 6 months for contributory negligence
(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident.”
(ii)Was there a duty of care and a breach of that duty or contributory negligence?
Before I can reach a concluded view about whether the accident was caused wholly or mostly by the fault of the Claimant I need to determine whether there was a duty of care, a breach of that duty or contributory negligence
“Negligence” is defined in section 5 of the Civil Liability Act as a failure to exercise reasonable care and skill.
Sections 5B and 5C of the Civil Liability Act provide:

“5B   General principles
(1) A person is not negligent in failing to take precautions against a risk of harm unless—
(a)  the risk was foreseeable (that is, it is a risk of which the person knew or ought to have known), and
(b)  the risk was not insignificant, and
(c)  in the circumstances, a reasonable person in the person’s position would have taken those precautions.
(2) In determining whether a reasonable person would have taken precautions against a risk of harm, the court is to consider the following (amongst other relevant things)—
(a)  the probability that the harm would occur if care were not taken,
(b)  the likely seriousness of the harm,
(c)  the burden of taking precautions to avoid the risk of harm,
(d)  the social utility of the activity that creates the risk of harm.

5C   Other principles
In proceedings relating to liability for negligence—
(a)  the burden of taking precautions to avoid a risk of harm includes the burden of taking precautions to avoid similar risks of harm for which the person may be responsible, and
(b)  the fact that a risk of harm could have been avoided by doing something in a different way does not of itself give rise to or affect liability for the way in which the thing was done, and
(c)  the subsequent taking of action that would (had the action been taken earlier) have avoided a risk of harm does not of itself give rise to or affect liability in respect of the risk and does not of itself constitute an admission of liability in connection with the risk.”

Having considered the evidence before me and the relevant legislation, I find that the accident was caused wholly or mostly by the fault of QBE insured driver, Mr Fawcett. I also find that Mr Fawcett was negligent. He owed the Claimant a duty of care and he breached that duty of care. In the hearsay account provided through the police and his employer, the evidence is that Mr Fawcett admitted colliding with the Claimant’s car while she was parking. The evidence is that as the collision was occurring he was distracted by some papers or a folder falling from a seat onto his gear stick. As he looked down to retrieve the papers and then looked up again the Claimant’s car was not there anymore. Because all of the events of the accident occurred in close proximity, I have found above that there was one accident and not two separate accidents.
Considering 5B and 5C of the Civil Liability Act, the risk of a collision and subsequent injury to another person was foreseeable and not insignificant. In the circumstances of this case, a reasonable person in Mr Fawcett’s position would have taken precautions against the risk of harm of a collision in the carpark. Given that Mr Fawcett was driving in a carpark full of moving cars and pedestrians a reasonable person would have taken precautions to keep a look out, drive carefully and avoid colliding with any car or person in the carpark. The probability was high that harm would occur if care were not taken and would likely result in serious injury. The burden of taking precautions to avoid the risk of harm was not high.
Despite my finding that the Claimant was not wholly or mostly by the fault for the accident she may not be entitled to weekly payments of statutory benefits for any period of loss of earnings or earning capacity because she may be retired. In their written submissions QBE’s solicitors refer to section 3.13 of the MAI Act and note that the Claimant has retired.
Section 3.13 of the MAI Act provides as follows
3.13 Termination of weekly payments on retiring age
(1) If the motor accident that causes a person’s injury happens before the person reaches the retiring age, a weekly payment of statutory benefits is not to be made under this Division in respect of any resulting period of loss of earnings or earning capacity occurring after the first anniversary of the date on which the person reaches the retiring age.
(2) If the motor accident that causes a person’s injury happens on or after the person reaches the retiring age, a weekly payment of statutory benefits is not to be made under this Division in respect of any resulting period of loss of earnings or earning capacity occurring more than 12 months after the motor accident occurs.
There is no evidence before me as to whether or not the Claimant was working at the time of the accident or that she had retired. The only submission from QBE was that the Claimant was not working and was in receipt of the age pension. QBE further submits that the issue about section 3.38, the reduction of weekly statutory for contributory negligence, should be dismissed and not considered. Other than that submission, there is no evidence as to whether the Claimant had retired or was working in some capacity. I make no finding as to the Claimant’s employment status.

(iii) Was there contributory negligence by the Claimant and is there a “defence” of “agony of the moment”?

I will now consider the issue of whether there contributory negligence by the Claimant as referred to in section 3.38 of the MAI Act and in the Civil Liability Act.
Sections 5R and 5S of the Civil Liability Act provide:
“5R   Standard of contributory negligence
(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm.
(2) For that purpose—
(a)  the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b)  the matter is to be determined on the basis of what that person knew or ought to have known at the time.
5S   Contributory negligence can defeat claim
In determining the extent of a reduction in damages by reason of contributory negligence, a court may determine a reduction of 100% if the court thinks it just and equitable to do so, with the result that the claim for damages is defeated.”
In their written submissions both insurer’s also responded to the “agony of the moment” issue.
In its submission, (AD 2), the NRMA says that if it is accepted that the Claimant must have placed her foot on the accelerator then it would be accepted that this occurred in the agony of the moment and did not break the chain of causation. See the decision of Stuart v Walsh [2012] NSWCA 186 per Tobias AJA and Street CJ in Leishman v Thomas (1957) 75 WN(NSW) 173 at 175.
The NRMA submits that it is relevant that the Claimant was moving out of a car spot at the time of the accident - she was possibly in reverse - the Claimant could not simply drive forward or quickly veer out of the way. It is also relevant that the collision was between her small vehicle and the large QBE vehicle. It would not be unsurprising if such a collision momentarily disoriented the Claimant. It would also not be surprising that if the Claimant was in the process of reversing out of a spot and alternating between acceleration and braking that this could have resulted in the accelerator being applied. Having regard to the above NRMA says that the Claimant did behave in a manner consistent with a reasonably prudent driver and there was no break in the chain of causation.
QBE’s submission (at AD 4) is that the decision of Stuart v Walsh does not apply in these circumstances. That decision discussed an ‘agony of the moment’ defence to an allegation of negligence.
QBE’s submission then refers to a passage from Stuart v Walsh which states:
‘It is a circumstance, and one possibly of great importance, that the defendant, charged with negligence, may have been forced to act in a sudden crisis or emergency, unexpected and unheralded, without that opportunity for calm reflection which makes it easy after the event to suggest that it would have been wiser if he had done something else.’
QBE then submitted that the Claimant’s actions in driving through a car park, through a fence and into a tree could not be described as the response of a reasonably prudent driver on any view of the facts in this case. QBE also submits that the Claimant’s actions could not be considered the reasonably foreseeable response to the impact between the two vehicles. An “agony of the moment” defence to an allegation of negligence cannot apply in circumstances where the allegation of negligence has been made by the Claimant and the Claimant’s insurer NRMA, against QBE’s insured.
Having considered the evidence before me and the relevant legislation, I find that there was no contributory negligence by the Claimant. Because I have found that that there was no contributory negligence by the Claimant, the relevant insurer is not entitled to reduce the statutory benefits payable (if any) for the motor accident under section 3.38. As set out above, I have found that there was no evidence that the Claimant suffered a medical episode to cause her to lose control of her car while she was parking. I have also found that there was no evidence from which I could make a finding that the Claimant mistakenly pressed her accelerator instead of her brake. Because all of the events of the accident occurred in close proximity, I have also found above that there was one accident and not two separate accidents.
Under 5R and 5S of the Civil Liability Act I am required to consider whether there was contributory negligence by the Claimant for failing to take precautions against the risk of harm. The standard of care required of the Claimant in this case and who is that of a reasonable person in the position of the Claimant. I am required to determine the matter on the basis of what that person knew or ought to have known at the time.
In this case the Claimant’s evidence was that she heard a loud bang behind her and does not remember anything until she hit the fence and tree. She said she was shocked, afraid and frightened. There is no reliable evidence that the Claimant suffered a medical episode, accidently pressed her accelerator or contributed to her own accident by her actions. There is no evidence or submission made about any precautions she could have taken against the risk of harm to herself while she was parking her car in the carpark. Based on the available evidence, the Claimant acted as reasonable person and with what she knew at the time of the accident.
The ‘agony of the moment’ defence to an allegation of negligence in Stuart v Walsh is an additional argument in the Claimant’s favour. It is alleged by QBE that the Claimant acted with contributory negligence in driving at high speed through the car park. Relying on Stuart v Walsh in a reply to that allegation, it is open to the Claimant to say that she was acting in a sudden unexpected crisis or acting in a state of shock and was not negligent. Based on the available evidence, this would seem to be a response open to her in answer an allegation that she acted with contributory negligence.
I am satisfied on the available evidence that there was no contributory negligence on the part of the Claimant and that she acted as reasonable person or driver in the position of that person or driver.

Who is the “relevant insurer”?

The legislation relevant to the issue of who is the relevant insurer can be briefly summarised as follows.
Under section 3.2 of the MAI Act, statutory benefits are payable by the relevant insurer and if the motor accident involved more than one motor vehicle, the insurer of the at-fault motor vehicle.
Section 3.2 provides as follows:
“3.2   Statutory benefits payable by relevant insurer
(1) The statutory benefits payable under this Part are payable by the relevant insurer.
(2) The relevant insurer is (subject to this section and section 3.3)—
(a)  if the motor accident concerned involved only 1 motor vehicle with motor accident insurance cover—the insurer of the motor vehicle, or
(b)  if the motor accident concerned involved more than 1 motor vehicle—the insurer of the at-fault motor vehicle, or
(c)  in any other case—the Nominal Defendant.
Note—
The Nominal Defendant will be the relevant insurer where the motor vehicle concerned was not insured or identified as referred to in Division 2.4.
(3) However, in the case of the payment of statutory benefits for treatment and care provided more than 5 years after the motor accident concerned, the relevant insurer is the Lifetime Care and Support Authority of New South Wales.
(4) The insurer of the at-fault motor vehicle is the insurer who provides motor accident insurance cover to—
(a)  the owner or driver of the motor vehicle whose fault in the use or operation of the vehicle caused the death or injury in respect of which the statutory benefits are payable, or
(b)  if there is more than one such motor vehicle—the owner or driver of the motor vehicle who was most at fault.
(5) For the purposes of this Act (including any motor accident insurance cover in respect of a motor vehicle) a liability that the relevant insurer has to pay statutory benefits under this Part in respect of death or injury is deemed to be a liability in respect of death or injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle (being a motor vehicle for which the insurer is the relevant insurer).
(6) If the insurer of the at-fault motor vehicle is not a licensed insurer under this Act, statutory benefits payable under this Part are payable by the Nominal Defendant on behalf of the insurer.
(7) The Nominal Defendant or other insurer who pays statutory benefits under this Part is entitled to recover the amount of statutory benefits properly paid from the relevant insurer liable to make those payments.”
Under section 3.3 of the MAI Act, if there is there is a dispute about which insurer will accept a claim, the Commission may determine which insurer is the relevant insurer in respect of the claim.
Section 3.3 provides as follows :
“3.3 Determination of relevant insurer
(1) Insurers may enter into arrangements approved by the Authority for the determination of which insurer will accept a claim for statutory benefits and be the relevant insurer in respect of the claim.
(2) If there is a dispute about which insurer will accept a claim for statutory benefits or any delay in determining the insurer who will accept a claim, the Commission may determine which insurer is the relevant insurer in respect of the claim and its determination is binding on the insurers for the purposes of this Part.
Note—
See also section 3.44 (Statutory benefits determinations relating to fault etc not binding in relation to common law claims).”
As detailed above, I have found that the QBE insured driver, Lyndon Fawcett was the driver of the at fault motor vehicle. I have found that he was wholly at fault for the accident and the Claimant was not at fault. I have also found that there was no contributory negligence on the Claimant’s part. Accordingly, I find the relevant insurer under sections 3.2 and 3.3 of the MAI Act is QBE.
In its written submissions, (at A 4), the Claimant’s solicitors submit that In the event that it is determined that the QBE Insured driver (Lydon Fawcett) is not at fault for the accident, the Claimant makes a claim under the no-fault provisions of Part 5 of the Motor Accident Injuries Act 2017.
In view of the above findings and conclusion I have not found it necessary to consider in detail the Claimant’s alternative argument that it was a no-fault motor accident.

Legal costs

In this application or submission on the awarding of legal costs for this dispute.
In view of my findings and conclusions, I will assess legal costs in favour of the Claimant.
Section 8.3 of the MAI Act provides for the fixing of maximum costs recoverable by Australian legal practitioners. Sub-section 8.10(1) provides that a claimant for statutory benefits is (subject to that section) entitled to recover from the insurer ‘reasonable and necessary’ costs in connection with the claim. This is qualified by sub-sections (3) and (4) which provide that the recovery of costs is allowed if payment is permitted by the Regulations or the Commission, if satisfied that the claimant is under a legal disability or exceptional circumstances exist.
Under schedule 2 sub-clauses 3 (c), (e) and (g) of the MAI Act the three matters in dispute of:
·which insurer is the insurer of the at-fault motor vehicle for the purposes of section 3.3;
·whether for the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person; and
·whether the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident in accordance with section 3.38,
are all declared to be miscellaneous claims assessment matter for the purposes of Part 7 of the MAI Act.
Under Schedule 1, Part 1 sub-clause 3 (1) of the Motor Accident Injuries Regulation 2017 (the Regulation), the maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units. Two of these matters are included in the definition of regulated miscellaneous claims assessment by Schedule 1 Part 1 sub-clauses 3 (1) and (2) (d), and (g).
Accordingly, in this dispute I can award legal costs up to 16 monetary units. Schedule 3 provides a definition of a monetary units and for an adjustment of maximum costs and fees for inflation.
Applying my discretion and experience, I consider it appropriate to allow legal costs of $1,660 plus GST payable by each insurer to the Claimant. Because there were two applications before two insurers which required two sets of legal work to be undertaken by the Claimant’s solicitors it is appropriate for there to be an award of costs for each application.
I note that the Claimant’s solicitors applied for “exceptional circumstances” legal costs.
The Claimant’s solicitors submitted that legal costs should be awarded on “exceptional circumstances” basis under sub-section 8.10 (4) of the MAI Act, (AD 5).
The Claimant’s solicitors submit, (at A 4), that both insurers were in possession of the claimant’s Application for Personal Injury Benefits. Both insurers were aware that the Claimant was in ICU, and were aware that there were significant differences between the Claimant and the defendant’s version of events. It was also clear in numerous email exchanges that both insurers were aware of the Claimant’s and her daughter’s intention to lodge a claim against the QBE policy rather than a no-fault claim with NRMA. The Claimant’s solicitors submit that despite knowing the Claimant was inexperienced and unrepresented, both insurers failed to advise the Claimant as to the correct course of action, and instead allegedly misled the Claimant to file a no-fault claim with NRMA. The Claimant’s solicitors further submit that the NRMA unreasonably denied liability partly based on the misconceived notion that a claim lodged on the Claimant’s own policy meant that the Claimant was at-fault and was not entitled to benefits after 26 weeks.
The Claimant’s solicitors finally submit that the conduct of both insurers has led to significant delay and costs for the Claimant. The Claimant has not received any statutory benefits since 10 April 2019. They submit that the conduct of NRMA has required the Claimant to brief counsel, conduct investigations, and hold multiple conferences to challenges NRMA’s liability decision. Therefore, for the above reasons and submissions, the Claimant submits that ‘exceptional circumstances exist that justify payment of legal costs incurred by the claimant’ as per Section 8.10.
The NRMA disputes that exceptional costs apply, (R 1).
The QBE disputes that exceptional costs apply to this application, (AD 4).
QBE submits that whilst the issues are complicated by the involvement of two insurers and two separate collisions, it is submitted that the Claimant’s solicitors have not obtained expert evidence with respect to the issues of fault or liability. QBE submits that this claim can be assessed on the papers not requiring a face-to-face assessment conference as to the issues. QBE submits that regulated costs are sufficient in this claim to compensate the Claimant’s solicitors for the work required.
Following Wright J in AAI Ltd trading as GIO v Moon [2020] NSWSC 714 at [99-103] and Campbell JA in San v Rumble (No. 2) [2007] NSWCA 259 at [67], I do not find that exceptional circumstances exist in this dispute that would justify the award of legal costs in this case. I agree with the insurers arguments that there is nothing in this dispute that is exceptional. I note there were several sets of written submissions and a number of preliminary conferences. There was not a large amount of written evidence or material to consider and there were no in person Assessment Conferences involving the examination of witnesses. Although I accept it was a complex claim involving two insurers and complex questions of causation. Overall, in my view this present dispute does not involve any exceptional circumstances or unusual degree of complexity which would justify a finding that “exceptional circumstances” legal costs should be awarded.
Accordingly, I allow the maximum regulated legal costs in the amount of $1,660 plus GST for each application before each insurer.

Ray Plibersek

General Member and Merit Reviewer

Personal Injury Commission

[2022] NSWPIC 34

25 January 2022