QBE Insurance (Australia) Limited v Sassin
[2025] NSWPIC 387
•7 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | QBE Insurance (Australia) Limited v Sassin [2025] NSWPIC 387 |
| CLAIMANT: | Mary Sassin |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Maurice Castagnet |
| DATE OF DECISION: | 7 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; dispute under section 3.28 concerning insurer’s decision to cease statutory benefits after 26 weeks; insurer contended that the claimant was wholly at fault for the accident by attempting to make a right-hand turn into the path of the claimant’s vehicle; competing versions of events from both parties complicated by versions from independent witnesses that were inconsistent with both parties’ evidence; finding that the claimant failed to keep a proper lookout and made a right-hand turn into the path of the insured vehicle when it was unsafe to do so; Held – claimant wholly at fault for the motor accident; claimant’s costs beyond the regulated amount permitted under section 8.10(4); payment of insurer’s solicitor and client costs permitted beyond the regulated amount under section 8.3(4). |
| DETERMINATIONS MADE: | CERTIFICATE Issued under s 7.36(4) of the Motor Accident Injuries Act2017 The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.28 the motor accident was caused wholly by the fault of the claimant. 2. Pursuant to s 8.10(4)(b) the Personal Injury Commission (Commission) permits payment of the claimant’s reasonable and necessary legal costs incurred in relation to the claim, the amount of such costs to be agreed with the insurer. Should parties fail to reach agreement as to the amount of the costs, the claimant is at liberty to apply for an assessment of the costs by the Commission by filing an application for assessment under Schedule 2, cl (1) (aa). 3. Pursuant to s 8.3(4) the Commission permits the payment of the insurer’s solicitor and client legal costs reasonably incurred in relation to the claim, noting that the insurer’s solicitors are not entitled to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred. A brief statement of my reasons for this determination is attached to this certificate. |
STATEMENT OF REASONS
INTRODUCTION
These proceedings concern an application filed on 11 December 2023 with the Personal Injury Commission (Commission) by the insurer, QBE, for a Miscellaneous Claim assessment under Schedule 2, cl (3)(e) of the Motor Accident Injuries Act 2017 (the MAI Act).
In the application, the insurer sought a determination under Schedule 2, cl (3)(d) of the MAI Act about whether the motor accident “was caused by another person”. However, during the course of the proceedings, it was established that both parties were seeking a determination about whether for the purposes of s 3.28 of the MAI Act, the motor accident was caused wholly or mostly by the fault of the claimant, Mary Sassin.
The determination to be made by the Commission is therefore under Schedule 2, cl (3)(e) of the MAI Act.
BACKGROUND
The claimant is a 59-year-old woman who was involved in a motor accident on 12 May 2019 that occurred at the intersection of Old Northern Road and Gilbert Road, Glenhaven, when there was a collision between the vehicle she was driving and a vehicle insured by the insurer.
The claimant and the insured driver have provided conflicting versions about how the collision occurred, as will become apparent later in these reasons when the evidence is addressed.
The claimant suffered significant injuries in the accident. On 21 May 2019, she made a claim with the insurer for payment of statutory benefits, which included payment of benefits for treatment and care. On 17 June 2019, the insurer accepted to pay those benefits for the first 26 weeks after the accident.
On 26 September 2019, the insurer notified the claimant that it had decided to decline liability to make any further payment of those benefits after 26 weeks, on the basis that she was wholly at fault in the accident.
The claimant disputed the decision. In the normal course of events, the claimant would make a formal request for an internal review of the insurer’s decision but in this case, it appears that the parties continued to engage in informal discussions about the dispute, while the insurer conducted further investigations into the circumstances of the accident, and while the insurer continued to make payments of the claimant’s reasonable and necessary treatment and care expenses “in good faith”.
Ultimately, the insurer issued a final liability notice to the claimant on 21 June 2023, maintaining its position that the claimant was wholly at fault for the accident and indicated that all “good faith” payments would cease after 29 September 2023.
The parties then agreed that, instead of the insurer conducting an internal review of the decision, the insurer would commence proceedings to seek a determination of the dispute by the Commission.
The proceedings are now before me for determination.
ASSESSMENT CONFERENCE
I conducted the proceedings by way of an assessment hearing via audio-visual link on
6 March 2025. The claimant, the insured driver, Kazuko Davis and a witness, Robert Davis attended the hearing to give evidence.
EVIDENCE
I have considered the following material:
(a) the insurer’s bundle of documents filed on 11 December 2023 (327 pages);
(b) the claimant’s bundle of documents filed on 5 June 2024 (57 pages);
(c) the insurer’s further submissions dated 12 July 2024;
(d) documents produced pursuant a Direction for Production, by the NSW Police Force on 2 April 2024 (14 pages) and 13 November 2024 (14 pages);
(e) the insurer’s first additional bundle of documents filed on 20 January 2025, and
(f) the insurer’s second additional bundle of documents filed at my request on
13 March 2025.
The claimant’s evidence
On 14 May 2019, the claimant was interviewed by Constable Davies at Eastwood Police Station which was recorded in his police notebook.[1] She described the circumstances of the accident as follows:
“I was traveling Southbound on Old Northern Rd, towards Castle Hill. I had intended to turn right onto Gilbert Road. As I approached the turn I slowed indicated & turned into the right hand turning lane. As I approached the traffic light I noticed it to be green in the direction I was heading, I also noticed there were no vehicle traveling in the opposite direction towards me. At this point I proceeded to turn right onto Gilbert Rd as I thought it was safe to proceed through the intersection. The next thing I knew the airbags had gone off & I felt a large impact hit my vehicle from the front of the car.”[2]
[1] Pages 20-24 of the claimant’s bundle.
[2] Pages 21-22 of the claimant’s bundle.
When asked by Constable Davies whether she had a green arrow to turn, the claimant said:
“Look I’m not sure if it was a green arrow or light, however I know I had a green light & it was safe to turn.”[3]
[3] Page 23 of the claimant’s bundle.
When asked by Constable Davies whether there were any cars coming in the opposite direction, the claimant said:
“No, so I turned.”[4]
[4] Page 23 of the claimant’s bundle.
When asked by Constable Davies what direction the other vehicle (involved in the collision) came from, the claimant said:
“I’m not sure, I was turning and I got hit. The impact was to the front of the car, near the driver’s side.”[5]
[5] Page 24 of the claimant’s bundle.
In her application for personal injury benefits dated 21 May 2019, the claimant described the circumstances of the accident as follows:
“I was driving towards Castle Hill … from my home. I was at the corner of Old Northern Road, about to turn right into Gilbert Rd, on a green light, when I realised I was hit! I was shocked as I did not expect the other car to be turning right into Old Northern Rd, at the same time as I was turning right into Gilbert!”[6]
[6] Page 212 of the insurer’s bundle.
In an accident report form submitted to NRMA Insurance for her vehicle damage claim dated 3 July 2019, the claimant described the circumstances of the accident as follows:
“At about 11am I had indicated to turn right & stopped on the corner of Old Northern Rd & Gilbert Rd. The lights were green and after checking there was no other cars or vehicles coming, I proceeded to turn right into Gilbert Rd. Before I knew it, I was hit by another car while they were turning right out of Gilbert Rd! …They must have gone on a red light as the light was definately [sic] green for me to go! The impact of the accident left me in instant shock! As I certainly did not expect a car in Gilbert Rd to be turning out onto Old Northern Rd, while the light was green for me & the coast was all clear when I was turning into Gilbert Rd!”[7]
[7] Pages 224-225 of the insurer’s bundle.
In response to a question in the claim form: “How fast were you going (km/h)?”, the claimant stated:
“I had stopped at the light, once the green light was mine & no one coming, I proceeded at 40-50klms approximately.”[8]
[8] Page 226 of the insurer’s bundle.
On 3 December 2019, in response to questions put by the insurer’s investigators to the claimant through her solicitors, the claimant said that the traffic lights at the intersection permits a right hand turn from Old Northern Road into Gilbert Road and a left hand turn from Gilbert Road into Old Northern Road, on green arrows.[9]
[9] Page 323 of the insurer’s bundle.
As to the circumstances of the collision, the claimant’s response was:
“At approximately 11am, I came to the intersection of Old Northern Rd and Gilbert Road, I indicated, slowed down, turning into the right hand lane preparing to turn right. The light was green for me to turn, there was no one coming. I proceeded to turn right from Old Northern [sic] Rd into Gilbert Rd at approximately 40km/hr when I was hit. I believed the other vehicle was turning right out of Gilbert, while I was turning right into Gilbert. They must have gone on a red light, as the light was definitely green and the coast was clear for me to go. My front driver side collided with other vehicles[sic] from driver side also.”[10]
[10] Page 324 of the insurer’s bundle.
The claimant gave oral evidence at the assessment conference. That evidence may be summarised as follows:
(a) At about 11.00am on 12 May 2019, she was travelling south along Old Northern Road, Glenhaven intending to make a right-hand turn into Gilbert Road. There was light traffic on the road.
(b) When she came to the intersection, she had her indicator on to turn right into Gilbert Road. She said that the lights were definitely green and there was no one coming when she was about to turn.
(c) When asked by her counsel to clarify the colour of the traffic lights facing her at the intersection at that time, she said:
“Yes, they were definitely green and definitely no one coming when I was about to turn into Gilbert Road.”
(d) When asked by her counsel to clarify whether “no one coming” meant that she did not see anyone coming, the claimant said:
“Yes, absolutely no one.”
(e) When asked whether she saw a green arrow in her favour, the claimant said the lights were definitely green, no one was coming and it was safe for her to turn when she made the turn.
(f) When asked by her counsel whether there was a need for her to stop to make the right-hand turn, the claimant said:
“I slowed right down, and I may have stopped. Look, what I don’t fully remember is whether there was a green light but what I know was that I slowed right down. Yes, I stopped and there was no one coming and I gradually drove into Gilbert Road.”
(g) When asked by her counsel how far she was in the intersection when (the collision) happened, the claimant said:
“I was probably halfway in the turn and before I knew it, God knows, I don’t know where it came from, I was hit. I was baffled as to where it would have have come from.”
(h) When asked by her counsel about whether she had a memory of anything else about the accident, the claimant described the trauma of the injuries she has suffered and said: “I just don’t know where it came from. Sorry.”
(i) When asked by her counsel about the damage to her car from the impact, the claimant said it was in the middle of the front of her car and on the driver’s side.
(j) When questioned by the insurer’s counsel, the claimant said that she had assumed that the other car would have come from Gilbert Road because there wasn’t a car to be seen on Old Northern Road (in the opposite direction) when she proceeded to turn. The claimant said that if the other car had been coming from Old Northern Road, the damage to her car would have been on the other side of her car. The claimant conceded that she had not seen the other car at any point prior to impact.
The insured driver’s evidence
On 1 June 2019, the insured driver, Kazuko Davis was interviewed at Eastwood Police Station by Constable Lauren Smith which was recorded in her police notebook. The insured driver described the circumstances of the accident as follows:
“I was driving Northbound along Old Northern Road towards Dural. I had green light proceeded through the intersection. I drove through the intersection and at last second noticed the vehicle then there was a big bang. The impact felt like we were airborne. I don’t remember ending in the position we were in, but I remember someone opening my door and asking me “can you get out of the car?...”[11]
[11] Pages 26-27 of the claimant’s bundle.
When asked by Constable Smith how fast she was travelling prior to the collision, the insured driver said:
“About 55 kilometres if that.”[12]
[12] Page 27 of the claimant’s bundle.
In an accident report form dated 10 June 2019 to her insurer, QBE, the insured driver described the circumstances of the accident as follows:
“I was driving on Old Northern Rd, Glenhaven around 11:00 -11:30am on May 12 2019, towards Round Corner. At Gilbert Road/Old Northern Rd intersection the light was for my path. The white car…turned to its right to my path and hit my car – driver’s side front wheel area. Both airbags depleted [sic] & stopped. It was sudden, quick, I never had a chance to steer or brake to avoid this horrible collision.”[13]
[13] Page 222 of the insurer’s bundle.
On 9 August 2019, the insured driver was interviewed by insurer’s investigator, Mr Shane Darlington of Verifact. An unsigned copy of the record of the interview was submitted in evidence.
It was recorded that the insured driver was travelling in a northerly direction along Old Northern Road in the centre lane (of 2 lanes), travelling at about 50kmph in a 60kmph zone. As she approached the intersection of Gilbert Road she was faced with a green traffic control light. As she proceeded through the intersection, a vehicle that was driving in a southerly direction on Old Northern Road had attempted to make a right hand turn in Gilbert Road in front of her vehicle causing a collision in the middle of the intersection.[14] It was recorded that the insured driver first saw the other vehicle about 20m prior to entering the intersection when the other vehicle was still stationary.[15]
[14] Pages 303-304 of the insurer’s bundle.
[15] Page 305 of the insurer’s bundle.
On 1 November 2019, the insured driver was interviewed by another insurer’s investigator, Robert McKenna of Verifact. The insured driver’s son, Robert Davis who was a front seat passenger in the insured vehicle at the time of the accident, was not interviewed and on this occasion, was allowed to be present when a statement was being taken from the insured driver.
In her signed statement of the same date, the insured driver said:
“I was in the lane closest to the centre median strip and would have been doing around 40km/h to 55km/h, just flowing along with the traffic. There were cars in front of me. There were no cars next to me. As I approached the intersection of Gilbert Road, I had a green traffic light facing my vehicle, the [sic] were several cars in front of me went through the intersection. As I approached the intersection there were cars facing south waiting to turn right into Gilbert Road. When I was about halfway into the intersection I still had the green traffic light when the first car facing south has commenced to turn right and in doing so the front of her car has impacted with the front right of my car.”[16]
[16] Page 287 of the insurer’s bundle.
The insured driver gave oral evidence at the assessment conference. That evidence may be summarised as follows:
(a) On the morning of 12 May 2019, she drove from her home to shop at Castle Hill Towers and then at Chemist Warehouse, Castle Hill. When she stopped at Chemist Warehouse, she parked on Old Northern Road. She then drove straight down on Old Northern Road in a northerly direction to go to Anthony’s Gourmet Meats at Dural.
(b) She reached the intersection of Old Northern Road and Gilbert Road, Glenhaven about 11.00am with the intention to drive through towards Dural Road. There was light traffic on the road.
(c) When she approached the intersection, the traffic lights were “green” in her favour. She saw that there were a couple of cars waiting to turn right on the other side of the road but she was concentrating on looking ahead and continued to drive through the intersection as the lights did not change and were still green.
(d) The first time she saw the other car in the collision was when it was almost in front of her eyes. She had no chance to put on the brakes. It happened in a split second.
(e) At the time of impact, she was doing about 50kmph. The speed limit was 60kmph but she was doing “nothing near it.”
(f) It was put to the insured driver by the claimant’s counsel that she may have been confused or mistaken about the road she was travelling on at the time of the collision, or she might have fabricated the circumstances of the accident. The claimant said that it is possible from her home to drive to the butcher shop at Dural via Gilbert Road but on the day of the accident, she had gone shopping at Castle Hill Towers, then Chemist Warehouse on Old Northern Road Castle Hill, and then drove down Old Northern Road to go to the butcher shop. She said that she is familiar with the area and repeated her path of travel from Castle Hill to the butcher shop was on Old Northern Road.
The evidence of Paul Andrew Julien
A statutory declaration sworn by Mr Julien on 12 June 2019 was in evidence. Mr Julien stated the following:
“I was driving behind Mary Sassin’s white Corolla on or about 11am Sunday 12 May 2019. Mary was travelling South along Old Northern road Glenhaven turning right into Gilbert Road on a Green light when a silver Corolla … travelling East aloncl [sic] Gilbert Road collided with Mary’s white Corolla at the intersection. The Silver Corolla stopped at the point of impact and Mary’s white Corolla rolled back until the brake was applied.”[17]
[17] Page 12 of the claimant’s bundle.
In his statutory declaration, Mr Julien did not indicate whether he saw the direction that the silver Corolla was travelling once it reached the intersection of Old Northern Road from Gilbert Road. In an earlier email to the claimant’s vehicle damage insurer, NRMA, Mr Julien said that the collision occurred when the Silver Corolla “entered Old Northern Road while turning right towards Castle Hill”.[18]
[18] Email from Mr Julien to NRMA, dated 20 May 19:08, produced in the insurer’s second late bundle.
Mr Julien did not attend the hearing to give oral evidence.
The evidence of Robert Davis
The claimant’s son, Mr Davis, was travelling as a front-seat passenger in the insured vehicle at the time of the accident.
Mr Davis was interviewed by the insurer’s investigator, Mr Mc Kenna on 20 January 2025.
Mr Davis provided a signed statement on the same date which is now in evidence.Mr Davis described the circumstances of the accident in paras [17] – [20] as follows:
“17. We were in the lane closest to the centre of the road. I recall we had a green traffic light facing our car. There were other cars in front of us that went through the intersection that were about three or four cars [sic] length in front of us. I could see there were cars facing south on Old Northern Road that were waiting to turn right into Gilbert Road. The [sic] was a white Toyota which was the first vehicle and it was stopped behind the white stop line for the traffic lights in the right turn lane.
18. My mother drove into the intersection with a green traffic light facing us. As we were about halfway into the intersection the first car, which was a white Toyota Corolla that was facing south on Old Northern Road started to turn right. We would have been just at the end traffic island on our side of the intersection when the car started turning right.
19. My mum didn’t have any time to react and the front right hand guard of my mums [sic] car hit the front centre of the bumper bar of the white Toyota Corolla that was turning right. My mum’s car ended over near the north western corner of the intersection, because the right front wheel was tucked up underneath the car.
19. Mum is not a fast driver, and would have been doing 50 to 55km/h when she entered the intersection.”[19]
[19] The insurer’s first late bundle.
Mr Davis gave oral evidence at the assessment conference. That evidence may be summarised as follows:
(a) On the day of the accident, he was travelling as a front seat passenger in the insured vehicle. They had left their home to shop at Castle Hill Towers and then at Chemist Warehouse, Castle Hill and then onto Anthony’s Gourmet butcher at Dural. After shopping at Chemist Warehouse, they drove towards Dural on Old Northern Road.
(b) As they approached the intersection of Old Northern Road and Gilbert Road, there were cars in front of them that had gone through the intersection. They had a green light in their favour. As they drove through the intersection, all of a sudden, a white Corolla approached their car on the right and collided with their car.
(c) Mr Davis said that about two months after the accident, he gave a statement to the Police at the Eastwood Police Station.
The evidence of other witnesses
According to the police notebook of Constable Lilley, Police interviewed two witnesses, Olivia Kate Patterson and Felicity Patterson on the day of the accident.[20] At the time of the accident, these witnesses were in a stationary vehicle at a red light on Gilbert Road facing the intersection of Old Northern Road. Ms Olivia Patterson was the driver and Ms Felicity Patterson was a passenger.[21]
[20] Page 265 of the insurer’s bundle. It is not clear whether the interview occurred at the scene of the accident or at Ryde Police Station.
[21] Page 247 of the insurer’s bundle.
It was recorded that Ms O Patterson reported that the silver Corolla was travelling on Gilbert Road in the left lane beside them and had a green arrow to turn left onto Old Northern Road. A white Corolla travelling north on Old Northern Road collided with the silver car and then rolled back.[22] Ms F Patterson reported the same occurrence and did not hear any braking or skidding.[23]
[22] Page 266 of the insurer’s bundle.
[23] Page 266 of the insurer’s bundle.
In her final Police Event report dated 5 November 2019, Constable Smith acknowledged that the witnesses’ versions of events were inconsistent with the accounts of both the claimant and the insured driver.[24]
[24] Page 245 of the insurer’s bundle.
Expert evidence
The insurer relied on the report of engineer, William Keramidas dated 9 September 2022 and the claimant relied on the report of engineer, Grant Johnston dated 18 January 2023. Both experts were asked to consider the evidence available at the time of their reports and undertake an accident reconstruction and provide their opinion.
Mr Keramidas’s opinion may be summarised as follows: [25]
(a) The most likely approach paths of the two vehicles involved in the collision was the insured driver travelling north in lane 2 of 2 on Old Northern Road as she entered the intersection with Gilbert Road. At the same time, the claimant was travelling south on Old Northern Road and had commenced to turn right so as to travel west on Gilbert Road.
(b) The paths of travel are consistent with the front off-side of the insured vehicle colliding with the front of the claimant’s vehicle, with the damage to that vehicle extending from about the centre front through to the off-side. The relative angle between the two vehicles was assessed as being approximately 40 degrees off a direct head-on configuration. The impact can be said to be an angled off-set head-on.
(c) The point of collision on the roadway was assessed as being at the intersection of lane 2 of the northbound carriageway on Old Northern Road with a 15-metre arc connecting the right turn lane on the southbound portion of that carriageway, with lane 2 of the westbound portion of the carriageway on Gilbert Road. In other words, this was the expected path of a vehicle turning from Old Northern Road into Gilbert Road.
[25] Page 90 of the insurer’s bundle.
Mr Johnston’s opinion was inconclusive. He stated:
“In my opinion there is not enough information to determine a reasonable narrow discrete band of solutions that excludes either scenario[26] and therefore in the absence of further evidence I can only state that I would suggest that both scenarios and [sic] plausible and it is not even possible to give them weight based purely on the forensic evidence it will depend on the final evidence of the witnesses and crash participants with regards to determining if one scenario or the other is more likely.” [27]
[26] Scenario 1 with the insured driver driving out of Gilbert Road and Scenario 2 with the driving north along Old Northern Road.
[27] Page 90 of the insurer’s bundle.
THE INSURER’S SUBMISSIONS
The insurer submits that it is apparent when reviewing the photographs of the damage to the vehicles that the insured driver’s version of events is the only version of events that may be correct. This is also supported by the accident reconstruction evidence of Mr Keramidas.
The insurer submits that on the claimant’s own evidence, she was not sure what direction the insured driver was travelling in or where it came from. On that basis, the insurer says that the claimant was not keeping a proper lookout.
The insurer submitted that the evidence suggests that both parties had a green light in their favour. Rule 62(1)(c) of the Road Rules provides that a driver turning right at an intersection with traffic lights must give way to any oncoming vehicle that is going straight ahead or turning left at the intersection. The insurer submits that the claimant has contravened the relevant road rules and proceeded to turn right, crossing the insured vehicle’s path of travel, in circumstances where it was unsafe for her to do so.
The insurer says that the overwhelming preponderance of evidence supports a finding that the claimant was wholly or mostly at fault.
THE CLAIMANT’S SUBMISSIONS
The claimant submits that the insured driver’s evidence is contrary to all the other witnesses’ evidence and that of the claimant. Scenario1 in the report of Mr Johnston and the reconstructed image of the accident impact illustrates how the accident could have occurred in a fashion consistent with all the other evidence that the insured driver was driving out of Gilbert Road.
The claimant submits that if the insured driver had a green arrow in accordance with Phase B they should have turned left into the left foremost lane on Old Northern Road, to avoid taking the left too wide and colliding with cars travelling south on Old Northern Road and turning right into Gilbert Road, also on a green arrow. As the claimant was in a great deal of shock, it is entirely plausible that she was incorrect or unsure about the direction the insured was turning out of Gilbert Road, but sure in her evidence that there was no oncoming traffic northerly on Old Northern Road.
The claimant submits that the more likely version of events is that the insured driver took the left turn too wide causing the collision and therefore she is at fault.
The claimant submits that the weight of the evidence supports the claimant’s position on the issue of fault and that on the balance of probabilities, the claimant was not wholly or even mostly at fault for the accident.
THE RELEVANT LAW
The legislation
Part 3 of the MAI Act is concerned with the entitlement to statutory benefits and the circumstances in which they are payable in respect of death or injury resulting from a motor accident.
Section 3.1 of the MAI Act provides that the claimant as an injured person is entitled to payment of statutory benefits regardless of whether she was at fault in the motor accident.
On that basis, the claimant received payment of statutory benefits payments for treatment expenses from the insurer for a period of 26 weeks.
At the end of that period, in reliance on s 3.28 of the MAI Act, the insurer ceased paying those benefits.
Section 3.28 (1)(a) of the MAI Act provides an injured person is not entitled to statutory benefits for treatment and care expenses incurred more than 26 weeks after the motor accident if the accident was caused wholly or mostly by the fault of the injured person.[28]
[28] For motor accidents occurring on or after 1 April 2023, the period of 26 weeks has been amended to 52 weeks by the Motor Accident Injuries Amendment Act 2022.
Section 3.28 (2) provides that 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 was greater than 61%.
In this case, the insurer’s decision was made pursuant to s 3.28 of the MAI Act to the effect that the claimant was wholly at fault in the motor accident.
Section 1.4(1) of the MAI Act defines fault as negligence or any other tort.
In s 5 of the Civil Liability Act 2002 (Civil Liability Act), negligence is defined as meaning failure to exercise reasonable care and skill.
Pursuant to s 3B(2)(a) of the Civil Liability Act, Divisions 1-4 and 8 of Part 1A (Negligence) apply to motor accidents.
For the purpose of assessing breach of duty of care, s 5B(1) of the Civil Liability Act provides that 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);
(b) the risk was not insignificant, and
(c) in the circumstances, a reasonable person in the person's position would have taken those precautions.
Section 5B(2) provides that 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, and
(d) the social utility of the activity that creates the risk of harm.
Legal principles – driver’s duty of care
The principles concerning the duty of care a driver owes to other road users, and relevant to breach of duty by reference to s 5B of the Civil Liability Act, were summarised by Meagher JA (Macfarlan and Emmett JJA agreeing) in Marien v Gardiner [2013] NSWCA 396 as follows (omitting citations):
"[33] The duty of the driver of a motor vehicle to users of the roadway, including pedestrians, is to take reasonable care for their safety having regard to all the circumstances of the case: per McHugh J in Vairy at [26]. Under the common law and the Civil Liability Act, the standard by which reasonable care is measured is an objective and impersonal one….
[34] The question whether there has been a breach of that duty is to be addressed prospectively and by reference to what a reasonable driver in the appellant's circumstances would have done, if anything, by way of response to any foreseeable risks of injury or sources of danger to other road users…. A person is not negligent in failing to take precautions against a risk of harm unless the risk was foreseeable, not insignificant and a reasonable person would have taken those precautions in those circumstances: s 5B(1).
[35] Whether reasonable care has been exercised is not determined by asking if different conduct could have produced a different outcome and avoided a collision or accident… The exercise of reasonable care requires, as the majority observed in Manley v Alexander at [11], 'reasonable attention to all that is happening on and near the roadway that may present a source of danger'. That in turn requires 'simultaneous attention to, and consideration of, a number of different features of what is already or may later come to be, ahead of the vehicle's path'.
[36] The driver is not required, however, to know or predict every event which happens in the vicinity of the vehicle so as to be able to take reasonable steps to react to such events. As Hodgson JA (Ipp JA and Gyles AJA agreeing) said in Hawthorne v Hillcoat [2008] NSWCA 340 at [47], the driver is only required to take reasonable steps to be in a position to know what is happening or might happen in the vicinity of the vehicle.
[37] Nor is the driver required to be in a position where he or she can react to everything which may happen in the vicinity of the vehicle. The driver is not required to travel at a speed which is within the 'limits of visibility and control' so as to be able to react to whatever ventures into the vehicle's path… Derrick v Cheung was such a case. An unattended infant child emerged from between two parked cars and darted into the path of the vehicle. The driver was not negligent despite the fact that he was travelling at a speed which did not enable him, upon seeing the child, to avoid the collision."
CONSIDERATION
Paths of travel
The claimant’s evidence is that prior to the collision, she was driving her white Corolla in a southerly direction on Old Northern Rd, towards Castle Hill. She said that at the intersection of Old Northern Rd and Gilbert Road, she had intended to turn right onto Gilbert Road. As she approached the intersection, she slowed down and turned into the right-hand turning lane. She saw that the traffic lights were green in her direction. I accept that evidence.
The insured driver’s evidence is that prior to the collision, she was driving her silver Corolla in a northerly direction Old Northern Road towards Dural. When she reached the intersection of Old Northern Road and Gilbert Road, Glenhaven, she intended to drive through the intersection towards Dural. When she approached the intersection, the traffic lights were “green” in her favour. She saw that there were a couple of cars waiting to turn right on the other side of the road but she was concentrating on looking ahead and continued to drive through the intersection as the lights did not change and was still green. I accept that evidence.
The collision
A collision then occurred between the two vehicles in the intersection of Old Northern Road and Gilbert Road.
The insured driver said as she drove through the intersection, she saw the claimant’s vehicle almost in front of her eyes and there was a big bang. She was aware that the claimant’s vehicle was one of the vehicles that she saw on the opposite side of the road prior to the collision, waiting to turn right. She said she had no chance to put on the brakes. It happened in a split second. She said that the front right of her vehicle was impacted. I accept that evidence.
In oral evidence, the insured driver said at the time of the collision, she was doing about 50 kmph. In a written statement she said it could have been up to 55 kmph. She said the speed limit was 60 kmph but she was doing “nothing near it.” I accept that the insured driver was travelling within the speed limit at the time of the collision.
The claimant said that she proceeded to turn right into Gilbert Road because she saw “no one coming” in the opposite direction on Old Northern Road and she thought it was safe to proceed through the intersection. She then commenced to make a right-hand turn into Gilbert Road when the collision occurred. She described the collision as “the next thing I knew was that the airbags had gone off & I felt a large impact hit my vehicle from the front of the car”. The claimant said that the impact was to the middle front of her vehicle, near the driver’s side.
When describing the manoeuvre of her right-hand turn, the claimant’s evidence was that she slowed right down and eventually stopped before making the turn, and when she saw no one coming, she “gradually drove into Gilbert Road”. She said that she was doing about 40kmph when she was hit.
When asked by Constable Davies (two days after the accident) what direction the insured driver’s vehicle came from, the claimant said: “I’m not sure, I was turning, and I got hit.”
In oral evidence, when describing how far she was in her right-hand turn when the collision occurred the claimant said that she was probably halfway in the turn and “before I knew it, God knows, I don’t know where it came from, I was hit. I was baffled as to where it would have come from.”
In her previous written statements and in oral evidence, the claimant said that she believed the insured vehicle was turning right out of Gilbert Road when she was making her right hand turn into Gilbert Road and that it must have gone on a red light because she had a green light and “the coast was clear for me to go” and because the damage to her car would have been on the other side of her car.
I do not accept the claimant’s evidence that the collision occurred because the insured driver drove out of Gilbert Road and collided with her vehicle when she was making a right hand turn into Gilbert Road.
First, it is apparent from the claimant’s evidence that she did not see the insured’s vehicle coming out of Gilbert Road when the collision occurred. She has made that assumption purely on the basis that she did not know where or what direction the insured vehicle came from prior to the collision.
Second, it is contrary to the evidence of the insured driver, which I have accepted, that the insured driver was driving in a northerly direction along Old Northern Road at the time of the collision. The insured’s driver evidence is corroborated by the evidence of her son who was travelling as a front seat passenger in her vehicle at the time of the collision.
Third, I am of the opinion that the severity and location of the damage to both vehicles is consistent with the paths of travel, which I found on the evidence to be, the insured driver travelling north on Old Northern Road as she entered the intersection with Gilbert Road when the claimant commenced to make her right-hand turn into Gilbert Road. In making that conclusion, I accept Mr Keramidas’s opinion that the damage on impact reflected the relative angle two vehicles as being approximately 40 degrees off a direct head-on configuration and that the impact can be said to be an angled off-set head-on. I also accept Mr Keramidas’ assessment of the point of collision as being at the intersection of lane 2 of the northbound carriageway on Old Northern Road with a 15m arc connecting the right turn lane on the southbound portion of that carriageway, with lane 2 of the westbound portion of the carriageway on Gilbert Road. This assessment reflected the expected path of a vehicle turning from Old Northern Road into Gilbert Road.
On the claimant’s own evidence, I conclude that when making her right-hand turn, the claimant was not paying attention to what was in front of her. As a result of her inattention, the claimant was mistaken as to the direction of travel of the insured vehicle. She did not see the insured vehicle travelling straight down Old Northern Road in front of her, at all, which resulted in the collision.
In Manley v Alexander [2005] HCA 79 at [11]‑[12], the plurality Gummow, Kirby and Hayne JJ stated the duty of riders and drivers on public roads as follows:
“…driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle’s path…the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
The other witnesses
I have considered the statutory declaration of Paul Andrew Julien. It gives a very limited account of the accident. Mr Julien could not be cross examined and for both those reasons I am not inclined to give the evidence much weight.
The evidence of Olivia Kate Patterson and Felicity Patterson is inconsistent with both the claimant’s and the insured driver’s accounts of the accident. It is difficult to understand how the collision could have occurred if the insured driver was turning left from the left-hand lane of Gilbert Road into Old Northern Road while the claimant’s vehicle was turning right from Old Northern Road.
Robert Davis provided a statement some two months before the hearing. It adds little to the evidence.
Findings
In the circumstances, I find that the claimant breached her duty of care to the insured driver as a road user. She failed to pay reasonable attention to the movements of the insured vehicle. She failed to keep a proper lookout and made a right-hand turn into the path of the insured vehicle when it was unsafe to do so.
It follows that for the purposes of s 3.28 of the MAI Act, I am satisfied that the claimant was wholly at fault for the motor accident.
COSTS
Both parties make an application for the recovery of their legal costs beyond the maximum amount allowed by the Motor Accident Injuries Regulation 2017 (the Regulations).
In this case, the maximum regulated costs for legal services provided to the claimant and the insurer in connection with the matter is $1,992 plus GST[29] (the regulated amount).
[29] Schedule 1, Part 1 Regulation 3 and Schedule 3 of the Regulations.
Part 8 of the MAI Act governs the award of legal costs in motor accident matters and applies to legal costs payable on a party and party basis, on a solicitor and client basis or on any other basis.[30] The expression, ‘legal costs’, includes amounts payable to a law practice as well as other items that may be charged (such as disbursements) but does not include interest.[31]
Claimant’s costs
[30] Sections 8.2 of the MAI Act.
[31] Sections 8.1 of the MAI Act.
The claimant’s application for costs is governed by the provisions of s 8.10 of the MAI Act, which deals specifically with the recovery of costs incurred by a claimant in a claim for statutory benefits.
The relevant provisions of s 8.10 are:
“(1) A claimant for statutory benefits is (subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(2) ...
(3) A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4) The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that—
(a) the claimant is a person under legal incapacity, or
(b) exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
(5) …”
To be “exceptional circumstances”, the circumstances must be unusual or out of the ordinary whether as a result of qualitative or quantitative factors. The case need not be one that is unique, unprecedented, or very rare. The question is determined on the basis of the facts of the individual case: San v Rumble (No 2) [2007] NSWCA 259 at [67]. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].
Considering in this case, the following matters:
(a) the nature of the factual circumstances in dispute;
(b) the conflicting versions of events given by independent witnesses;
(c) the requirement to issue a direction for production to the NSW Police Force for further material and to deal with such material;
(d) the requirement to conduct multiple teleconferences with the parties;
(e) the requirement to conduct an assessment conference hearing;
(f) the requirement for the claimant, insured driver and a lay witness to attend the assessment conference for questioning, and
(g) it was a matter in which it was reasonable for either party to brief junior counsel,
I consider that exceptional circumstances exist for the Commission to permit payment of the claimant’s reasonable and necessary legal costs beyond the regulated amount.
Pursuant to s 8.10(4)(b) of the MAI Act, I therefore permit the payment of the claimant's reasonable and necessary legal costs incurred by the claimant in connection with the claim.
I note that the amount of the legal costs to be paid to the claimant is determined by agreement with the insurer, failing such agreement, the amount recoverable by the claimant is determined by an assessment by the Commission. This may be done by the claimant by filing an application for assessment under Schedule 2, cl (1) (aa) of the MAI Act.
The insurer’s costs
The Commission’s discretion to permit the insurer’s costs in excess of the regulated amount is found in the provisions of s 8.3(4) of the MAI Act.
Section 8.3(4) provides that an Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the claimant or the insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Commission.
When considering the issue of the Commission permitting payment of legal costs beyond the regulated amount in AAI Ltd trading as GIO v Moon [2020] NSWSC 714, Wright J made the following observations in regard to s 8.3(4):
“127 … There is no limitation in s 8.3(4) on the ability of the DRS [32] to permit payment, whether by reference to the maximum costs fixed by the regulations or otherwise. The only effective limit on the amount of costs that might be recovered where the payment is permitted by the DRS under s 8.3(4) is found in s 8.3(5) which provides:
“This section does not entitle an Australian legal practitioner to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred.”
128 As a result of the unconfined terms in which the DRS’s ability to permit payment under s 8.3(4) is stated and the fact that payment of those legal costs, to the extent that they do not exceed the maximum costs fixed by the regulations under s 8.3(1), is “permitted by the regulations”, it appears to me that the DRS has a discretion to permit payment of those legal costs where they exceed the maximum costs fixed by the regulations. Were it otherwise, the words “unless payment of those legal costs is permitted by … the Dispute Resolution Service” would be otiose and superfluous.”
[32] The Commission’s predecessor.
Considering the helpful observations of Wright J together with the provisions of s 8.3(4) of the MAI Act, I accept that the Commission is conferred with a general discretion to permit payment of legal costs beyond the regulated amount in a statutory benefits claim. It follows that if I exercise such discretion, the insurer is entitled to pay its own lawyers, its solicitor and client costs incurred in connection with the claim. That is because the payment or recovery of such costs is not constrained by the provisions of s 8.10 of the MAI Act which only applies to the claimant’s payment or recovery of his party and party costs.
Section 8.4(5) also makes it clear that in case of a dispute between the insurer and its solicitors about the amount of the insurer’s solicitor and client costs to be recovered is not determined by the Commission, but by a court or costs assessor.
It also appears that the exercise of my discretion under s 8.3 (4) to permit payment of insurer’s solicitor and client costs beyond the regulated amount is not subject to a finding that I am satisfied that exceptional circumstances exist that justify the payment of the legal costs on that basis.
In Moon, Wright J considered that the discretion should be exercised in “appropriate cases”.[33] Given that I have found that exceptional circumstances exist that justify the payment of the legal costs incurred by the claimant in connection with the claim, I consider that this is an appropriate case to exercise my discretion to permit payment of the insurer’s solicitor and client costs beyond the regulated amount under s 8.3(4).
CONCLUSION
[33] At [140-141].
For the purposes of s 3.28 the motor accident was caused wholly by the fault of the claimant.
Pursuant to s 8.10(4)(b) the Commission permits payment of the claimant’s reasonable and necessary legal costs incurred in relation to the claim, the amount of such costs to be agreed with the insurer. Should parties fail to reach agreement as to the amount of the costs, the claimant is at liberty to apply for an assessment of the costs by the Commission by filing an application for assessment under Schedule 2, cl (1) (aa).
Pursuant to s 8.3(4) the Commission permits the payment of the insurer’s solicitor and client legal costs reasonably incurred in relation to the claim, noting that the insurer’s solicitors are not entitled to recover costs for a legal service or matter that a court or costs assessor determines were unreasonably incurred.
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