O'Connor v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	O'Connor v QBE Insurance (Australia) Limited [2025] NSWPIC 197
CLAIMANT:	Leanne O'Connor
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Belinda Cassidy
DATE OF DECISION:	12 May 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits and claimant’s application that the motor accident was not caused wholly or mostly by her fault under sections 3.11 and 3.28; claimant driving from Dubbo at night on straight country road; police travelling in same direction as claimant with headlights on and red and blue warning lights activated; police overtake at the same time claimant turns right into a parking area on the other side of the road; insurer alleges claimant wholly or mostly at fault; Held – claimant was wholly or mostly at fault; contributory negligence assessed at 80-100%; costs allowed and assessed at $4,382.20; section 42 of the Personal Injury Commission Act 2020 and rule in Browne v Dunn, and Jones v Dunkel considered; AAI Limited t/as GIO v Evic, and Allianz Australia Insurance Limited v Shuk applied regarding approach to assessment of contributory negligence; Logar v Ambulance Service of NSW applied regarding road rules and social utility of emergency vehicles having right of way.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant. 2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant. 3. The amount of the claimant’s costs in the matter is $4,382.40 inclusive of GST. A statement setting out the Commission’s reasons for the assessment is included with this certificate.

STATEMENT OF REASONS

INTRODUCTION

Leanne O’Connor was involved in a motor accident on 31 May 2022 on the Old Dubbo Road in Central West New South Wales. She says was turning right to get off the road to make a phone call to her son when she collided with a police car overtaking her apparently on the way to assist other police.
On or about 7 June 2022, Ms O’Connor made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against QBE the third-party insurer of the police car.
On 22 September 2022 the insurer issued a liability notice to the claimant denying any liability to pay ongoing statutory benefits to the claimant on the basis she was “wholly or mostly at fault”.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. Because the insurer affirmed that decision and the claimant does not agree with it, the claimant has referred the issue of whether she is wholly or mostly at fault to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings have been allocated to me. I held a preliminary conference on

30 January 2025 and the matter was listed for hearing on 5 March 2025.

LEGISLATIVE FRAMEWORK

Ms O’Connor’s claim is a claim for statutory benefits under Part 3 of the MAI Act.
Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4. As Ms O’Connor was an “earner” within the meaning of the Act and has been injured, she is entitled to both weekly benefits and treatment and care benefits.
Under s 3.1 of the MAI Act benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11(1) and 3.28(1), an injured person is not entitled to statutory benefits beyond the first 26 weeks after the accident if the injured person only has threshold injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident.[1]
[1] For accidents occurring on or after 1 April 2023 benefits are available for 52 weeks. For all accidents, the terminology of “minor injury” in the original legislation was amended to adopt the term “threshold injury”.
A motor accident is considered to be caused “mostly by the fault” of a person if their contributory negligence is assessed as greater than 61%.[2]
[2] Sections 3.11(2) and 3.28(2).
The parties agree that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Ms O’Connor is wholly or mostly at fault in respect of her weekly benefits (Schedule 2, cl 3(d)) and whether she is wholly or mostly at fault in respect of her treatment and care benefits (Schedule 2, cl 3(e)).
If the motor accident was not caused “wholly or mostly” by the fault of the claimant weekly benefits can be reduced, in accordance with s 3.38, by the degree of the claimant’s contributory negligence. Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether statutory benefit should be reduced for the claimant’s contributory negligence.

SUBMISSIONS

Insurer’s decision making

The insurer’s original liability decision dated 22 September 2022[3] alleges the claimant was “wholly at fault as [she] failed to give way to an emergency vehicle”. Liability was also declined because the insurer was of the view the claimant had sustained soft tissue injuries only and a minor psychological injury.
[3] Page 46 of the insurer’s bundle.
The claimant requested an internal review of the insurer’s liability decision in her statutory benefits claim. The insurer completed the review on 29 March 2023.[4] QBE relied on a report from Brooksight Investigations and the statement of Sergeant Moore (and the statements contained within it) noting that the three statements (the two attending police officers and the claimant) were consistent in that there were flashing lights which the claimant had seen and that she initially moved left before deciding to turn right.
[4] The certificate of determination for the internal review is at page 17 of the claimant’s bundle, the reasons are provided at page 13 of the insurer’s bundle.
The insurer says, “the evidence demonstrated you moved into the path of an approaching Police vehicle and moved your vehicle to the right without ensuring that it was safe to do so.”
The claimant has also made a claim for damages with QBE on 9 February 2024 and QBE has “rejected” that claim on the basis the claimant has only threshold injuries and therefore no entitlement to damages.[5]
[5] The claim form is at page 20 and the liability notice at page 21 of the claimant’s bundle.

Claimant’s submissions

The claimant’s submissions lodged with the application for miscellaneous claims assessment comprise four paragraphs. The first three record some background to the dispute and the fourth contains eight sub-paragraphs which set out a number of factual matters.
The claimant submits she was travelling home and decided to call her son. She was going to pull over to call him and initially indicated to the left then recalled a parking area further on to the right. She turned her indicator on and turned and was then struck by a vehicle. She submits she had no warning of the collision.
The claimant says the accident was caused wholly by the fault of the driver of the police vehicle that hit her.

Insurer’s submissions

The insurer filed submissions with the Reply noting that the claimant and the two police officers agreed, in their contemporaneous statements, that the police vehicle had its red and blue warning lights activated. The insurer takes issue with the claimant’s assertion she had no warning.
The insurer notes the claimant activated her indicators to move towards the left before indicating and turning right “at the last minute”.
The insurer cites the road rules in relation to giving way to police vehicles.

Preliminary conference

A preliminary conference was held on 30 January 2025 with the claimant, her solicitor (Ms Li) and her barrister (Mr Sciglitano). The insurer was represented by Mr Molenkamp.
The statement of Sergeant Moore was considered and the claimant’s representatives said there was no issue with the accuracy or otherwise of the Sergeant’s statements and the statements of the police officers that she had read out to the investigator. On that basis I indicated I would not be assisted by the original police records.
After alerting the parties to the case law likely to be relevant, the parties advised they did not wish to provide any additional evidence although Mr Sciglitano said the claimant may wish to “comment or amplify her version of events from her statement”. Although the claimant was present for the preliminary conference, she was not in a quiet area her evidence could not be taken at that time. Arrangements were made for an assessment conference by audio-visual link on 5 March 2025 at 10.00am. The claimant was advised about the availability of the soundproof hearing room facility at Service NSW in Dubbo.
Directions were issued for submissions addressing the matters discussed at the preliminary conference and raised in the report.

Insurer’s further submissions

The insurer’s submissions were due on 17 February 2025 and were received on

12 February 2025. The insurer submits:
(a)    the version of events set out in the claimant’s submissions is not consistent with the version of events reported by the claimant to Sergeant Moore [7];
(b)    the claimant’s suggestion she needed to ring her son to check on his welfare was not mentioned in the police statement [11];
(c)    the claimant’s recent statement must be approached with caution as it is: inconsistent with the earlier version; does not disclose all relevant details and, has been prepared in the context of the claim [13] – [14], and
(d) I should draw an inference “with respect to the material facts not disclosed” [17].
The insurer says the facts that should be uncontentious are:
(a)    the claimant was travelling out of Dubbo on a two-lane road;
(b)    a police vehicle was travelling behind her;
(c)    its warning lights were activated in response to a non-pursuit job;
(d)    the road conditions were wet;
(e)    the police car was travelling at but not above the speed limit;
(f)    the claimant indicated to the left;
(g)    the police moved to the right to overtake;
(h)    the claimant turned right in front of the police vehicle’s path, and
(i)    the vehicles collided.
If those facts were established, the insurer says at [19] that the claimant should be found to be wholly or mostly at fault. The insurer refers to the decision of AAI Limited t/as GIO v Evic[6] and says:
[6] [2024] NSWSC 1272.
(a)    the claimant was negligent. She owed the police officers a duty of care [22] and breached that duty [23] by:
(i)failing to keep a proper lookout;
(ii)failing to heed its presence when it was overtaking;
(iii)failing to give way to an emergency vehicle;
(iv)turning into the path of an overtaking vehicle in particular a police vehicle with lights activated, and
(v)turning across a two-lane road and into a traffic “island” when it was not safe to do so.
(b)    the claimant saw the police lights, indicated to turn left to give way then turned into the path of the overtaking vehicle [24] – [25]. The police lights were active;
(c)    a reasonable person in the claimant’s position would have indicated left to give way to the emergency vehicle [31] or slowed down to let it pass [22] but would not have moved into the only available lane that the emergency vehicle could use to overtake [23];
(d)    the police officers were not negligent and did not breach their duty of care to the claimant [40] because:
(i)their lights were activated in response to a job when the claimant was a couple of hundred metres ahead [42];
(ii)the claimant responded indicating left which was a “reasonable signal” suggesting she had seen the police and was moving out of the way [43];
(iii)the police were not speeding [44], and the police officer indicated and properly moved to the right [45];
(iv)the evidence suggests the claimant changed her indicator when the police car was about 20 metres from “and almost perpendicular” to the claimant’s vehicle [47], and
(v)the police vehicle swerved to the right but could not avoid the collision [49].
(e)    a reasonable person in the position of the police officer would have done the same thing [52];
(f)    the speed (of the emergency vehicle) did not cause the accident [53] and there is social utility in permitting emergency vehicles to have right of way when lights are activated [54];
(g)    the claimant knew (or ought to have known) about the road rules [57];
(h)    road users including the police officer in this case was entitled to rely on the left hand signal just as the claimant was obliged to rely on the police lights [65], and
(i) there is no breach of duty of care and the claimant was wholly or mostly responsible for the collision [68].
The insurer then submits if there is contributory negligence it should be assessed at 100% or at least 66% [71] because the primary cause of the collision was the claimant turning into the path of an overtaking police vehicle [72].

Claimant’s further submissions

The claimant’s submissions were due on 28 February 2025 but were not made available to me until after the assessment conference had commenced.
The claimant recited at [5] the same factual circumstances from the original submissions.
The claimant refers at [8] – [11] to the case law and submits at [12] that there are two things to be determined, whether there is any contributory negligence at all and if so the degree of that contributory negligence.
The claimant submits at [16] that there is no contributory negligence on her part and that at [17] she was wholly within her lane when she activated her right turn indicator to turn into the parking area.
The claimant submits at [18] a reasonable person in the position of the claimant would have been scanning the road in front of her particularly as she was intending to turn right in front on oncoming traffic and further submits:
(a)    the police were responding to a job but not “an active emergency pursuit”;
(b)    the police did not activate their sirens;
(c)    the police did not slow down at any stage to overtake in a safe manner;
(d)    the police vehicle was travelling at between 100 – 110kmph on the driver’s evidence, and
(e)    the claimant was travelling at 80kmph.
The claimant submits the insured driver could have:
(a)    activated the sirens;
(b)    flashed the police vehicle’s headlights, or
(c)    slowed the vehicle to safely undertake an overtaking manoeuvre.
The claimant refers at [21] to the “New South Wales Police Force Safe Driving Public Policy Statement” and says:
(a)    police officers are required to respond to emergencies, criminal acts or public safety issues in a considered way considering the specific circumstances that face them;
(b)    they should only use persons who are trained and assessed;
(c)    untrained officers are not permitted to engage in urgent duties or pursuits, and
(d)    urgent duty driving cannot occur if there are persons other than police officers in the car.
The claimant submits:
(a)    it is not known whether Constable Newman was appropriately trained [27];
(b)    the insurer retained investigators to interview the three relevant police officers (Sergeant Moore, Constable Newman and Constable Parker) [29] and both Constables declined to be interviewed [30] and [31];
(c)    an “inference can be drawn” from Constable Newman’s “failure to provide a signed statement” in accordance with Jones v Dunkel [1959] HCA 8 [33];
(d)    the police vehicle was not in pursuit and was on an “urgent duties (response)” and the driver must have appropriate training [34], and
(e) there was no real emergency and no need to be travelling at 100 – 110kmph at the time of the accident [36].
When considering the reasonableness of the police driver’s conduct, if he had slowed the vehicle to a complete stop, driven around the claimant’s vehicle and then re-accelerated that would have taken “in all likelihood” less than 30 second which would have made little difference to the type of response the police vehicle was involved in [37].
Finally, the claimant submits that there should be no contributory negligence but if there is to be a finding, the degree of contributory negligence should be in the order of 15% to 20%.

REVIEW OF THE EVIDENCE

Claim form

The claim form was signed and dated 7 June 2022. The claimant says she was “driving when I went to go to right and [was] hit behind by police car.” She has left blank the part of the claim form which provides for a description of her injuries.

Ambulance and hospital records

The report from the ambulance personnel who attended the scene of the accident states that a call was received at 8.26pm and they arrived on scene at 8.50pm.
The case description notes that there was a two-car accident, and the claimant was the only patient, and it says:[7]
“[On attendance patient] is able to ambulate to ambulance, [patient] holding right arm and shoulder, [complains of] shoulder pain, [patient’s] car has sustained considerable damage to driver’s side of the car, curtain airbag has deployed, steering wheel airbag not deployed, driver’s side airbag deployed, [patient] states curtain airbag has hit her in the side of the head and sent her glasses flying off her face, [patient] states her door fell off on the road, [patient states she was travelling at [approximately] 100 km p/h at time of impact with the police car. [On examination patient] is oriented to time and place, well perfused, GCS 15, [patient] is able to articulate events of the accident, [patient] denies [loss of consciousness], patient denies c-spine pain, [patient] denies any other injuries. [Patient] has equal grip strength in hands, nil hip pain, nil abdominal pain, nil leg pain, good movement in extremities, [patient] denies headache, [patient] states she has dull ache in her right shoulder and numbness in her right arm, [patient] given 1 g Panadol, 400 mg ibuprofen on route to hospital.”
[7] Obvious abbreviations have been inserted into the text in square brackets for exempt “Pt” is a common abbreviation for patient.
The ambulance records they arrived at Dubbo Hospital at 9:26pm and that the claimant was off the stretcher at 10.10pm and the ambulance was cleared to leave at 10.30pm.
The claimant’s pulse rate was measured at 8:51 (78 and regular), 9:10 (82 and regular) and 9.26pm (76 and regular). Her blood pressure was measured at 160, 162 and 189 over 103 at those three times. Her Glasgow Coma Scale (GCS) was normal (15 out of 15) at those three times and her pain levels rose from 2, to 3 and then 4 out of 10.
The records from Dubbo Base Hospital include the discharge summary[8] which notes complaints of right shoulder pain were made and investigated and there was no acute injury. The claimant was “discharged home with simple analgesia and GP follow-up”. The simple analgesia was paracetamol and ibuprofen.
[8] Page 4 of the bundle.
The triage note[9] made by the registered nurse from 9.37pm notes:
“[Brought in by ambulance] after [motor vehicle accident]. Unknown speed, [patient] hit a police car or vice versa / Unclear mechanism, Air bag deployed, seat belt on, self-extricated. [complains of pain / numbness to the right shoulder … Nil loss of consciousness, ? amnesic to the event.”
[9] Page 9 of the bundle.
It is recorded that the claimant had Panadol and Nurofen from the ambulance officers.
The progress note made by another registered nurse from 10.09pm records this history:[10]
“[Patient] travelling approx. 80km/hr. Has seen police lights flashing in rear view mirror. [Patient] went to pull over. Police car came from behind and hit left side of car. Left passenger door fell off, left front wheel came off. Patient wearing seat belt. Curtain and roof airbags deployed; steering wheel airbag did not deploy. [Patient] self-extricated. Able to recall full events. [Patient] denies [loss of consciousness] or head strike. Pain radiating from right shoulder down to right leg. [Patient obviously guarding and supporting right arm and shoulder.”
[10] Page 11 of the bundle.

The claimant was examined at this time, and it was noted she was alert, her GCS was 15 out of 15. Her pain levels were recorded as 6 out of 10. She had been given Paracetamol and Ibuprofen at triage and was “declining any stronger analgesia”.
This progress note also records “NSW Police Officer currently talking to patient”.
The next record is of the emergency department assessment undertaken at 10.35pm. It was recorded in a progress note made by Dr Stephenson (junior medical officer) at 12.31am[11] and says:
[11] Page 12 of the bundle.
“Colin at bedside
HOPC [history of presenting complaint]
Was driving [around] 80km/hr.
Saw police in rear vision mirror on horizon – flashing lights
– went to pull over to the left but it was muddy, and she was worried about being bogged
-instead indicated to the right and moved over
-was wearing a seatbelt
-had a big bang and was unsure of what had happened – a bit shocked
-The police car had come from behind and hit the left side of the car
-left side passenger door fell off, left side front wheel [fell]
-felt she was hit into her driver side door “concertina to the driver side”
-airbags were deployed – side airbags, roof airbags but not steering wheel airbag
-ended up on other side of road, another car coming toward her, but they did not hit her
-no [loss of consciousness] that she thins – whole event is a bit hazy”
The claimant was examined, police blood test was taken, and the claimant was denying analgesia. At 12.29am it was noted the claimant was developing lower back pain.
At 3.54am another junior medical officer recorded in a progress note[12] that the claimant wanted to go home as she had a teenage child at home. She had ongoing pain but was well and was upset that she had to wait for her CT scan results. After the CT scan results, the claimant was diagnosed with a likely right shoulder soft tissue injury and cleared for discharge.
[12] Page 15 of the bundle.
The history recorded by the radiologist at 10.45pm[13] notes the impact to the claimant’s vehicle was from behind and to the right side into the driver’s side door.
[13] Page 20 of the bundle.

Police report and statements

The police report was created by Seargent Moore of Dubbo Police Station. The road was described as straight, the weather was fine (although the road was said to be wet), it was dark, and the speed limit was said to be 100kmph. The lights of both vehicles were said to be on.
The description of the accident is stated as follows:
“Vehicle two [the claimant] was travelling at a stated speed of 80 km/hr and was followed by vehicle one travelling at 100 km/hr. Vehicle one is a marked police vehicle and had warning lights activated in response to a job. Vehicle two indicated and moved to the left before the driver changed her mind, indicated right and turned right and across the path of vehicle one who attempted to overtake.”
Both vehicles were said to require towing, and the claimant was reported to have been taken to hospital.
The insurer retained an investigator (Brooksight Investigations) to conduct enquiries about the accident. A statement was taken from Sergeant Moore (relieving inspector at the time of the interview)[14];
[14] The Brooksight Investigations report is dated 23 February 2023 and is at page 57 of the claimant’s bundle.
(a)    she was listening to a police pursuit that was underway and heard a vehicle had been involved in the collision [A8];
(b)    she attended the scene within 10 minutes [A10];
(c)    she saw the police Pajero vehicle with its lights (red and blues) activated and another police vehicle on scene. The claimant’s vehicle was facing east but on the western side of the road and the Pajero was off the side of the road facing east [A12];
(d)    she saw the claimant on the side of the road with police and was told an ambulance would be attending [A17];
(e)    the claimant was “very shaken, on the verge of in shock”, she was offered a seat in the Sergeant’s car, but Ms O’Connor declined. She was complaining of pain [A18];
(f)    she put the claimant’s things from her car into the police car and met her at the hospital [A21];
(g)    she took a statement from the claimant in emergency at 10.30pm which was read out as follows [30]:
“It had been raining. Wet bitumen and the side of the road was boggy … I entered the 100 kilometre zone and I was probably doing 80 kilometres and saw red and blue lights, but not full ones, coming behind me, along my back. I thought they had someone pulled up in town. I thought they might be coming, so I indicated to the left, but it was boggy. And I know the parking bay was on the right because we live out there. So, I indicated right to get out of the way. As I went, there was an impact that hit the front driver’s side wheel and door. I had no idea who had hit me, and I didn’t think it would be the police car that hit me”;
(h)    the claimant also said that the police officer “just kept saying he was so sorry”;
(i)    Sergeant Moore says she obtained a version from Constable Newman before she spoke to the claimant as he was due to finish his shift [A41] and [A42]. This statement was therefore taken before the Sergeant had gone to the hospital;
(j)    Constable Newman said he had his seatbelt on, and his headlights were on and his “warning lights” and the speed limit was 100kmph. He said he was driving at 100 – 110kmph assisting another vehicle in a pursuit and:
“I saw a while car a couple of hundred metres in front of me … travelling in the same direction. It was dry, and I had my warning lights on. And it was – it was wet and dark. I saw the white vehicle indicate to the left and pull off to the side of the road. I indicated to the right and accelerated to merge around and overtake the vehicle. As I was in the northbound lane, the vehicle came straight over from the left, across into – and into my path. I had nowhere to go to avoid colliding with the vehicle. And I tried to avoid her by swerving to the right, but she continued into my path, and we collided.”
(k)    after getting out of his vehicle Constable Newman said he “sprinted” to assist the claimant out of the car:
“I said, ‘what happened? You pulled over to the left.’ She said, ‘it looked boggy and it’s been raining, I didn’t expect you to be there so quickly’.”
(l) Sergeant Moore also took a statement from Constable Parker [65]. He confirms he was with Constable Newman in a “fully marked, caged police vehicle, being a Mitsubishi Pajero” and:
“I saw a white hatch motor vehicle ahead of us in the southbound lane and travelling in the same direction as us. Constable Newman and I approached the 100-kilometre zone … and he began to accelerate as we entered the zone. Constable Newman had primary warning lights activated. The motor – the white motor vehicle began to slow down. I noted the left-hand side blinker come on. I looked at my mobile phone to look at Google Maps … I noticed a light change on the white vehicle which got my attention, and I looked up. The vehicle was almost perpendicular to ours, heading into the northbound lane of the road.”
Constable Parker says he heard Constable Newman ask the claimant if she was OK.
Sergeant Moore explained that the vehicle the police were in was not actually involved in the pursuit of a suspect, they were heading to a pursuit being conducted by others in case they were needed to assist with the arrest of suspects or if the vehicle being pursued was later dumped [A106].
The Brooksight report indicates that the police took photographs of the vehicles, but those photographs were not provided.
A number of photographs have been included in the claimant’s application:[15]
(a)    photographs 1 and 9 show the right-hand side of the road with the parking area, gravel verge and grass verge;
(b)    photographs 2, 4, 7 and 11 show a wider view of the right-hand side of the road and that the road is straight and flat;
(c)    photographs 6 and 8 show a car parked on the gravel with a wide grass verge. The car is fully on the gravel at the side of the road beyond the fog line and not on the grass. On the other side of the road (the side where the claimant was coming from), there does not appear to be any gravel verge but a grassy verge only;
(d)    photographs 10 and 12 shows grass with a fence and gate and when considered with photograph 13 this is clearly the grass verge beyond the gravel. Photograph 13 also shows the straight road but the decline or dip on the approach to where the accident occurred;
(e)    photograph 14 shows mud but it is not clear where;
(f)    photograph 15 shows a mobile speed camera sign on the side of the road heading back towards Dubbo and the straight road with a slight incline towards Dubbo (decline towards the camera) can be seen in the distance, and
(g)    there are several photographs showing significant deformation damage to the claimant’s vehicle. The rear driver’s side door panel is dented, the driver’s side door is missing completely and the driver’s side front panel and driver’s side of the bonnet is also significantly damaged. What can be seen of the passenger side, by comparison, looks untouched.
[15] Commencing at page 24 of the claimant’s bundle.

Claimant’s statement

The claimant provided a statement dated 27 November 2024 to her solicitors as part of this dispute and in support of her damages claim.
Ms O’Connor says relevant to this dispute:
(a)    it was evening (between 8.00 and 8.20pm) and the road was wet [5];
(b)    she had finished work and was heading home which is about 11km from her work and usually takes her 15 minutes and she has been driving the route for five years and is very familiar with the road [8] – [10];
(c)    the Old Dubbo Road is a two lane (one each way) sealed road with a broken centre lane and a grass verge on each side of the road [11] – [13];
(d)    the road is straight and mostly flat with a slight incline towards where the accident occurred [14];
(e)    she decided to call her 13-year-old son who had been at home, sick with flu [15];
(f)    she was going to pull over to the left to make the call, but realised it was wet, and the grass was thick and dense, so she decided not to stop there [16] but as she knew there was a parking area on the right she activated her indicator to turn right into that area [17];
(g)    she was struck “suddenly and without warning” from behind and to the right as she was turning [18];
(h)    “I was completely off the roadway (and into the parking area) when I was struck” [19] and she was spun around and came to rest on the roadway on the opposite side of the road [20], and
(i)    after the accident she could not get out of the car and after “what seemed like a few minutes” one of the police officers approached her, and after “what seemed like about 15 minutes” an ambulance arrived, and she was taken to hospital.

THE ASSESSMENT CONFERENCE

Mr Sigliatano and Ms Marocchi were in the same room in Sydney for the assessment conference. The claimant was in Dubbo and had technical difficulties and could not join the conference on camera, but she was available by phone.[16] While that caused minor difficulties (I had intended to show her the photographs of the scene), Ms O’Connor was able to fully participate in the assessment conference without difficulties.
[16] She was not using the facility at Service NSW in Dubbo.

The claimant’s evidence

The claimant was asked about the photographs and what they showed. She could not remember the contents or order of the photographs that were taken and said her partner took them and they showed the area where the accident happened.
The claimant confirmed it was evening and dark and that the road was wet. She confirmed she had finished work at her café and was on her way home. She agreed it was 11km from her café to home, a journey which usually takes her 15 minutes.
She said she was about 9 or 10km from home when the accident happened, right on the outskirts of Dubbo. She said she had just come out of the 60km zone into the 100km zone and was driving at about 80. She said “I always travel at 80 in and out of Dubbo. That’s the trip I do in the morning and the evening.”
She was taken to that part of her statement where she said she was going to ring her son. She explained that he had been unwell and home in bed so she thought she would “brighten his day with some Chinese [food]”. She said she had a hands-free phone set up in her car. She explained she pulled over to ring her son, so she was not driving further towards home (and away from town). If he was hungry and wanted Chinese, she planned then to return to town and buy the food before recommencing her journey home.
Ms O’Connor was asked whether she moved to the left and she said:
“No, I flicked [the indicator] once and then I thought, oh, there’s a parking bay there. So, I only briefly eased, flicked once and then swung across to the right.”
She explained what she meant by “eased” in that she slowed down and then indicated and then swung across to the right to get into the parking bay.
The claimant confirmed the road at that point was straight and that there was a 6m drop back toward town that she had come down. Ms O’Connor also confirmed that there are broken lines down the middle of the road and that it was lawful for a car to overtake where the accident happened.
She was asked whether she looked in her mirrors to see if there was anything behind her or overtaking her and she said that she did so as, “I always use my mirrors”. She said she was more concerned with whether there was anything coming towards her. But she confirmed she looked in her rearview and side mirrors and she said:
“I did not see any headlights, No headlights and no car. Look I wouldn’t dare turn without looking.”
Ms O’Connor confirmed again that she looked, saw no headlights and no flashing lights before she commenced her turn.
Constable Newman’s statement was read to the claimant and while she accepted, she had told him the left side of the road looked boggy she denied saying “I didn’t expect you to be there so quickly.”
When she was asked whether she remembered talking to Sergeant Moore at the hospital she said, “very vaguely, very, very vaguely.” Ms O’Connor said that she remembered a blonde woman getting a chair and sitting with her. She also said her partner was with her and had helped “fill in a few gaps”.
After reading the first part of her statement to Sergeant Moore, the claimant denied saying that she had seen red and blue flashing lights. She did say she recalled seeing a “silhouette” way back in town. She further said that was about 400 to 600m from where she turned onto the Old Dubbo Road. She explained what she meant by a silhouette was something reflecting off something else. But she said it was:
“Certainly not a vehicle and not the headlights … just a silhouette of a red and blue flick against a building or something. Way back in town.”
When she was read the part of her police statement that said, “I thought they had someone pulled up in town. I thought they might be coming, so I indicated left.” She accepted she told the police officer it was boggy, but she then said, “I have no idea what I said on the night.” The claimant then repeated:
“I have no memory of what I said to her at all on the night.” That’s what she has written, and she got me to sign it with my uninjured hand.”
After pausing I asked Ms O’Connor to confirm that what she was saying was that she has no memory of what she said to Sergeant Moore. The claimant responded,
“No nothing at all. I cannot remember a single thing about it. I remember a blonde woman looking intently into my face telling me I was lucky to be alive. That’s what I remember.”
Ms O’Connor confirmed she did not remember anything else about the conversation.
The claimant said, “I was so badly knocked around”. Ms Sciglitano asked her when she was spoken to by the Sergeant, and she said:
“I’d really just been taken out of the ambulance and taken to a bed in casualty and then she was there very quickly pulling up a chair because I was like, this is weird … I just felt I was so out of it, but I thought it was very strange. And yeah, I couldn’t really hear anything. I was so badly banged around the head, so quickly, quite quickly I’d say 15 to 30 minutes, if that, after the accident took place.”
The claimant said she had not been given pain killers at that stage but her blood pressure was “through the roof” and that she could not take any medicine orally because she was sick.
The claimant also reported that, at the scene of the accident, Constable Newman was tugging at her, pushing the side airbag away and shining the torch in her face and trying to get her out of the vehicle. She says when she did get out, he suggested she sit on the ground which was wet, so he opened the boot of her car and she sat on the tailgate of the boot. She said she was not well enough to stand. She later said she was “ill, very ill. I could not stand up.”
After the insurer’s representative asked Ms O’Connor about the silhouette of the red and blue lights, the claimant said that as she drove out of town, she double checked and they were not there. She then said:
“[the police] weren’t behind me as I went down the country road. Not on the road I turned on. I looked left and right. There was no one there and no, no visible light or cars or headlights or anything. When I went down the six metre hill and then proceeded to turn across, there was nothing, nothing at all.”

Final submissions from the parties

The claimant’s counsel submitted:
(a)    the accident was traumatic, the claimant was placed in an ambulance and conveyed to hospital;
(b)    the claimant would have been shaken up at the time of her interview;
(c)    her partner was filling in some blanks because she could not remember;
(d)    that I “would treat what’s being said at that point in time with some caution”;
(e)    her second statement (November 2024) was not tainted in any way;
(f)    she flicked her left indicator on but did not move to the left;
(g)    she almost instantaneously changed her mind, indicated and turned right;
(h)    she did not depart from the roadway. She was at all times wholly within her lane;
(i)    she was paying attention to what was ahead of her;
(j)    the police were overtaking the claimant, and they should have taken care;
(k)    the police were responding to another police vehicle that was involved in a pursuit and the relative emergency of the police officers who were involved in the collision was not great;
(l)    culpability lays entirely at the feet of the police officer, and
(m)     there was no reason for them to be travelling at the speed of 100 to 110kmph, they could have continued driving behind the claimant matching her speed.
The insurer submitted there were red and blue lights that the claimant had seen in “silhouette” as she left town which is consistent with her contemporaneous statement. She had seen a police vehicle. Leaving aside the red and blue lights there is also evidence of headlights on the vehicle which she should have seen. Having activated her indicator to the left, it was reasonable for the police to rely on that and overtake.

Ambulance and hospital notes

Due to the claimant’s submissions at the assessment conference as to her state of mind and the version of events she gave to police at the hospital, I asked the parties to provide the ambulance report and the hospital notes in order for me to address that submission.
The ambulance records and hospital notes were provided. Both parties were given the opportunity to make final submissions in response to that material and on 2 May 2025 the claimant advised no further submissions would be made.

FINDINGS OF FACT

General evidence related issues

The claimant says I should draw a “Jones v Dunkel” inference[17] due to the police officers not giving statements to the insurer’s investigator. This rule of evidence operates in litigation where there is an unexplained failure by a party in that litigation to give evidence, to call witnesses or to tender documents or other evidence. This can lead to an inference that the uncalled evidence would not have assisted the party.
[17] [1959] HCA 8 (Jones v Dunkel).

The insurer says I should draw a “Brown v Dunn inference”[18] due to the claimant not mentioning in her 2024 statement matters she told the police in her statement at the hospital on the night of the accident. The rule in Browne v Dunn operates when a witness for one party gives evidence that is inconsistent with what the other party wants to lead in evidence. The rule requires the other party to raise the contention with that witness during cross-examination and given them the opportunity to explain themselves.
[18] This is a reference to the House of Lords decision of Browne v Dunn (1893) 6 R 67 (HL) (Browne v Dunn).
I note that s 43 of the Personal Injury Commission Act 2020 requires me to proceed with as little formality and technicality as the proper consideration of the matter permits. Section 43 also says that I am not bound by the rules of evidence and may inquire into any matter that I consider is necessary. While not bound by the rules of evidence I note both of these rules have been developed to afford procedural fairness to parties during the process of litigation. As I am required to afford procedural fairness to the parties in the course of my assessment, the two rules referred to by the parties provide guidance in the task of assessing.
The “failure” of the police to provide statements to the insurer’s investigator cannot in my view permit me to draw an inference that their evidence would have assisted the claimant. They have given statements to the Sergeant, their statements are in evidence and during the preliminary conference the claimant’s counsel did not object to the accuracy of the Sergeant’s statement, or the statements contained therein. The statements are in evidence and there is no means of compelling the police to give oral evidence at the Commission.
The inconsistencies in the claimant’s two statements (and her evidence at the assessment conference) were raised with her during the course of the assessment conference and will be dealt with below. Ms O’Connor confirmed she was questioned and that she was asked to sign the statement and did so. I read to her what she is alleged to have said on the night of the accident, and she gave evidence that did not remember what she said to the police. There is no “inference to be drawn” under the Browne v Dunn rule.
I should point out to both parties that submissions are not evidence. Submissions are a written form of advocacy and should refer to the evidence and argue the case referring to the applicable statute and any relevant case law. But what is in the submissions cannot be considered as evidence in the matter per se. The insurer for example submits that the police activated their red and blue lights at a certain time. Having read the statements there is no evidence about when the police activated their lights. Both Constables said the lights were activated and that they saw the white Mercedes, but they did not say they only activated their lights when they saw the white Mercedes. So too the claimant’s submissions that it was wet. While there was evidence that the road surface and the grass verge on the eastern side of the road were wet but there was no evidence that it was raining.
My final comment on the evidence is that there is no expert evidence about the claimant’s ability to see the police vehicle in her mirrors or the time she would have or should have been aware of the red and blue lights or the headlights of the vehicle. There is no expert evidence about the distance the police vehicle travelled in any particular time frame, the speed the claimant is likely to have been driving at the time she turned to the right and so on.

Is the claimant’s evidence to police reliable?

The claimant submitted at the assessment conference that I should treat what she said to the police with caution because the accident was traumatic, the claimant had been taken to hospital and would have been shaken up at the time of her interview.
The ambulance report notes the claimant had a normal GCS which is a neurological test designed to assess a person’s level of consciousness after a head injury. The result was normal. The claimant was said to be “able to articulate events of the accident” and was given Panadol and Ibuprofen on her way to hospital.
The hospital triage note suggests the claimant may have been “?? amnesic to the event” but the subsequent progress note at 10.09pm was that the claimant was “able to recall full events, she had declined stronger analgesia and she was talking to police”. At 10.30pm, the claimant was able to give a doctor a history of the incident although he records “whole event is a bit hazy.”
While there is some evidence of confusion, Ms O’Connor was able to give an account of the accident to the ambulance and hospital personnel in circumstances where the medical examinations do not indicate any head injury, issues with consciousness or significant problems with memory. It is also noteworthy that the claimant had not been given any medication that might have caused an altered state of awareness.
The claimant’s 24 November 2024 statement made more than a year and a half after the accident does not refer to what she told police and on three occasions at the assessment conference Ms O’Connor said she did not recall what she said to the police. There has been no medical evidence put before me to explain this failure to recall or to suggest for example it was due to a head injury such as an impact from the side airbags.
The histories recorded by ambulance and hospital personnel are consistent with the statement Ms O’Connor gave to police and by and large to the statements given by the police. I therefore accept the claimant’s contemporaneous records to the police as reliable evidence as to what the claimant reported to them on the night of the accident.

Findings of fact

I am satisfied on the evidence as to the following matters:
(a)    speed of Ms O’Connor’s vehicle - likely to be 80km or less at the time she decided to move left then turn right. The ambulance records state she was driving at 100km and hospital records also record 100km. The claimant said in her statement to police on the night of the accident, in her November 2024 statement and in her evidence at the assessment conference she was travelling at 80km. I accept that the claimant was driving at 80km when she decided to pull over to the left and that she slowed further before turning to the right. This is consistent with the police passenger, Constable Parker’s evidence that the claimant’s vehicle “began to slow down”. While there is no expert evidence, based on my experience, I am of the view that it is unlikely that the claimant was travelling at 80km at the time when she turned right as, in my experience she would have needed to slow further in order to safely execute the turn she made;
(b)    speed of the police vehicle - 100 – 110km. This finding is based on Constable Newman’s evidence to Sergeant Moore on the night of the accident and is consistent with his decision to overtake the claimant who was travelling ahead of him at 80km;
(c)    road – the road was wet, but it was not raining. This finding is made on the basis of the police report and the claimant’s 27 November 2024 statement. There is a small hill back towards Dubbo and the claimant had come down that decline to the straight and flat section of road where the accident occurred. This finding is made on the basis of the claimant’s evidence and the photographs;
(d)    police vehicle lights – Constable Newman had the vehicle’s headlights on – this finding is based on the police report. Constable Newman also had the vehicle’s blue and red flashing lights activated – this finding is based on the claimant’s history given to the nurse at 10.09pm, the history given to Dr Stephenson at 10.35pm, the history given to the police at 10.30pm as well as the evidence of Constables Newman and Parker;
(e)    police vehicle indicators – I accept that Constable Newman activated his right-hand indicator before he pulled out to overtake the claimant – I make this finding based on his evidence;
(f)    claimant's indicators and movement to the left - the claimant first indicated left but did not move to the left – this finding is made on the basis of the claimant’s evidence. I do not accept Constable Newman’s evidence (which has not been tested) that “she indicated to the left and pull off to the side of the road”. While the claimant may have intended to move left and gave that impression to Constable Newman, I do not accept that she actually pulled off the side of the road. If she had, there would have been no need for Constable Newman to have overtaken her. After first indicating left;
(g)    claimant’s indicators and movement to the right - Ms O’Connor then indicated right and turned to the right. This finding is made on the basis of the claimant’s consistent evidence and the evidence of the two police officers. I do not accept the claimant’s submissions that there was an instantaneous change of indicators from left to right. The claimant’s oral evidence was that she activated her left indicator for one flick then changed her mind and indicated to the right. That could not all have occurred at the same instant as it takes time to activate the blinker, react to the thought about the left side being boggy and then activate the blinker again. It must have occurred over a few seconds. Without expert evidence I am not prepared to make a finding of how many seconds or what distance the claimant and the police travelled in that time frame, but I am satisfied there was a gap in time between the left indicator activating and the right indicator activating. The presence of a gap, albeit small is consistent with the actions of Constable Newman who saw the left-hand indicator being activated, reacted to it and decided to overtake, activating his right-hand indicator and commencing the overtaking manoeuvre;
(h)    claimant’s turn to the right – the claimant commenced her right hand turn as the indicator was activated. The claimant’s oral evidence at the assessment conference was that she briefly slowed down, her indicator flicked once, and she commenced her turn at or close to the same time. This evidence is consistent with Constable Parker who notice “a light change” on the claimant’s vehicle and as he looks up, the claimant is perpendicular (at right angles) to the police car. It can be reasonably assumed that the “light change” is a reference to the right-hand indicator;
(i)    the claimant was aware of the police vehicle behind her – the claimant’s statement does not mention the police car at all. The evidence at the assessment conference of seeing a “silhouette” back in town and a “red and blue flick … way back in town” is not consistent with the history recorded in the 10.09pm progress note from Dubbo Hospital that Ms O’Conner had “seen police lights flashing in rear view mirror” and the history given to Dr Stephenson at 10.35pm that she “saw police in rear vision mirror on horizon – flashing lights”. The evidence at the assessment conference is also not consistent with the statement she gave to the police in the hospital at 10.30pm that she “saw red and blue lights … coming behind me along my back”, and
(j)    the claimant did not look before she turned – Ms O’Connor said at the assessment conference she looked in her mirrors to see if there was anything behind her or overtaking her because “I always use my mirrors”. While I accept the evidence of the claimant is her honestly held belief, I find that she is mistaken. The road was straight, the photographs suggest there was nothing to interfere with her ability to see a car with at least headlights on approaching from behind and there is no expert evidence to suggest they could not be seen. She cannot have looked in her mirrors because, according to her evidence she did not see anything, no headlights, no flashing lights and no car behind her when the police car driven by Constable Newman was in fact there and was there to be seen.

CONSIDERATION OF THE ISSUES

Did Constable Newman breach his duty to the claimant?

Justice Mitchelmore said at [61] in Evic, where there is more than one motor vehicle involved in the accident the claimant’s contributory negligence is assessed by considering the apportionment of culpability of each. His honour Justice Basten said at paragraph [32] of Allianz Australia Insurance Limited v Shuk:[19]
“Without a proper finding as to breach of duty, the proportionate culpability of each cannot be assessed.”
[19] [2023] NSWSC 788.
Ms O’Connor does not have to prove Constable Newman breached his duty of care and that he was negligent or at fault for causing her accident to be entitled to ongoing benefits. However, a finding about whether Constable Newman was at fault or was negligent needs to be made in order to establish whether there is any culpability on his part, for the purposes of then assessing his culpability relative to the claimant’s. This then enables an assessment of the degree of Ms O’Connor’s contributory negligence.
The evidence of Sergeant Moore is that the two constables were responding to a lawful police emergency and were heading to assist other police officers who were in another vehicle pursuing a car with more than one person in the car. The claimant’s submissions refer to police protocols for drivers (but do not provide evidence or expert opinion about that). While the two officers were not themselves pursuing the suspect car the claimant suggests their “emergency” was of a lesser severity than the officers at the front line of the pursuit. I am of the view their emergency was nevertheless serious and not trivial police business. Cases such as Logar v Ambulance Service of NSW[20] acknowledge that there is a social utility of emergency vehicles having right of way and while they are exempt from the road rules when in pursuit or on urgent matters, they are not excused from liability should an accident occur.
[20] [2017] NSWCA 274
Constable Newman was driving at 100 – 110kmph when he came upon the claimant driving at 80kmph and slowing down and indicating left. It was, in my view, reasonable for a person in the position of Constable Newman to commence overtaking the claimant in order to get past her and get on his way to support his colleagues.
Constable Newman was driving along a country road at night with his headlights on and warning lights (reds and blues) activated. I do not consider that a reasonable person in the position of Constable Newman should have taken into account the possibility that the claimant may not have seen him.
I do not consider a reasonable person in the position of Constable Newman should have anticipated that the claimant would, having first indicated that she was going to pull over to the left, change her mind and turn right without looking in her mirrors first.
I reject the claimant’s argument that the police officer should have slowed his vehicle to safely undertake an overtaking manoeuvre. With respect the claimant was, on her evidence, driving 20 kms below the speed limit and slowing down in order to find a safe place to telephone her son. The overtaking manoeuvre was undertaken by the police to move ahead of a slower moving vehicle.
In my view there is a departure from the standard of care on the part of Constable Newman. The photographs of the scene of the accident show a much smaller shoulder on the left-hand side of the road compared to the right and while the claimant had indicated left, I have found she had not moved to the left. A reasonable police officer in my view would have taken some additional precaution before commencing to overtake.
Constable Newman’s culpability in my view lies in him not doing something more to alert the claimant to his presence on the roadway before he commenced his overtaking manoeuvre, such as flashing his headlights, sounding his horn or momentarily activating his siren (assuming he was permitted to do that).

Did the claimant contribute to the cause of this accident?

In the course of her reasons in the Evic case, Justice Mitchelmore said the following:
(a) the phrase ‘wholly or mostly’ in ss 3.11 and 3.28 of the MAI Act is a composite phrase (not two concepts), and is addressed at the claimant’s contributory negligence [56] relevant to the accident (not the injury) [57], and
(b) section 3.38, and the assessment of contributory negligence requires the enacted law of contributory negligence to be applied including s 5R(2)(a) of the CL Act and that the test of contributory negligence is “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person” [60].
Ms O’Connor was driving on a straight stretch of road at 80kmph or less as she looked for a suitable place, on her evidence, to safely pull over to call her child.
As I have found, on the evidence, that the claimant was aware of the presence of the police vehicle with flashing lights at some distance behind her, in my view, a reasonable person in her position would have been aware of the possibility there was an emergency of some sort, that the police would be travelling quickly and perhaps more quickly than she was at 80kmph or less and that they might catch up to her.
In my view a reasonable person in the position of Ms O’Connor would have looked in her mirrors and checked to see whether the police were still behind her or how far behind her they were before she turned right into the parking area on the other side of the road.
I have previously found that the claimant did not check her mirrors before turning because the police vehicle was there and there is no evidence to suggest the police vehicle could not be seen. Ms O’Connor was not, in my view keeping a proper lookout and in doing so has contributed to the cause of the accident.
If I had accepted Ms O’Connor evidence given at the assessment conference that she was not aware of the presence of the police car behind her then, in my view, she has failed to adhere to the standard of care that would be expected. A reasonable person in her position driving on a straight stretch of road should have noticed the headlights of the police car in her mirrors as well as the flashing red and blue lights.

What is the degree of the claimant’s contributory negligence?

If there is contributory negligence found on the part of the claimant, then s 3.38(3)(c) requires an assessment of the degree of contributory negligence that is “just and equitable in the circumstances of the case” (Evic at [73]).
In my view the culpability on the part of Constable Newman is much less than the claimant’s. In my view his contribution is in the order of 20% and a just and equitable assessment of the degree of the claimant’s contributory negligence is 80%.

CONCLUSION

Is the claimant wholly or mostly at fault?

As I have assessed the degree of the claimant’s contributory negligence at 80% and as 80% is greater than 61%, it follows therefore that Ms O’Connor is mostly at fault for causing the accident on 31 May 2022.

Costs

The claimant seeks legal costs of the matter, and the insurer has not opposed an order for costs.
Sections 7.37 and 7.42 empowers the Commission to assess costs when assessing the dispute.

Legal costs

The claimant has been receiving benefits under Divisions 3.3 and 3.4 and disputes have arisen as declared under Schedule 2(3)(d) and (e). The claimant is, in my view entitled to costs of those two disputes. Each of the declared matters is a regulated miscellaneous claims assessment matter and each attracts a maximum of 16 monetary units or $1,992 in accordance with Schedule 1, Part 1(3) of the Motor Accident Injuries Regulation 2017 (the Regulation). Bearing in mind the amount of work undertaken in this matter (two teleconferences, the briefing of counsel and the drafting of submissions) I am of the view that the maximum legal costs should be awarded. To this should be added an amount for Goods and Services Tax.[21]
[21] Regulation 35.

Disbursements

The costs that I can assess are the claimant’s costs “in the matter” (s 7.37(1) of the MAI Act). The costs therefore to be assessed are the costs relevant to the miscellaneous claims assessment matter concerning liability and not the costs of the claim at large. If the claimant seeks costs of the claim at large, and the insurer opposes those costs, then I note Schedule 2(1)(aa) identifies that as a merit review matter that can be referred to the Commission.
The claimant’s schedule of disbursements seeks recovery of costs in relation to six items including a medico-legal report of Dr Conrad, clinical notes of a cardiologist, two different sets of notes from Dubbo Medical and Allied Health Group and two reports from doctors in that practice. None of these documents were attached to the claimant’s application to the Commission and none have been relied on by the claimant. As the substance of the disputes before the Commission concerns liability or fault and not medical matters I will not allow the cost of these six medical reports and records.
The claimant’s list of disbursements indicates there have been six conferences with Counsel and the client and advises that counsel’s fees are “TBA” (to be advised). No advice has been received as to the amount claimed. The Regulation provides (Schedule 1, Part 1(4)) for a maximum flat fee for representation at an assessment conference and for an hourly fee for conferences. I do not propose allowing any amount for the six conference claimed because:
(a) the assessment conference fee is permitted for claims assessments and not miscellaneous claims assessments, and
(b) the hourly conference fee must be “directly related to an assessment of a claim for damages” and cannot be awarded in a miscellaneous claims assessment matter.
The claimant’s costs are therefore assessed in the sum of $3,984 plus $398.40 for GST.

[2025] NSWPIC 197

12 May 2025