Scott v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Scott v AAI Limited t/as GIO [2022] NSWPIC 544
Claimant:	Robert James Scott
insurer:	AAI Limited trading as GIO
Member:	Susan McTegg
DATE OF DECISION:	30 September 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28 of the Motor Accident Injuries Act, 2017; claimant sustained serious injury; claimant riding motorcycle travelled behind bus in lane 2 before moving into lane 1 as the bus commenced to make left hand turn colliding with the bus; Held – bus activated left hand indicator at time claimant travelling behind bus in same lane; indicator was working; claimant failed to observe indicator and “do not overtake turning vehicle” sign on rear of bus; claimant failed to observe the slowing of the bus and the movement of the bus (albeit briefly) into lane one before attempting to drive past the bus; claimant failed to keep a proper lookout; claimant was wholly at fault for accident; costs assessed on the basis of exceptional circumstances.
determinations made:	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 $26,374.02 inclusive of GST.

REASONS FOR DECISION
INTRODUCTION

Mr Robert James Scott (the claimant) sustained serious injury whilst riding his motor bike on 3 December 2018 (the accident).
AAI Limited trading as GIO (the insurer) is the relevant insurer liable to pay statutory benefits to Mr Scott under the Motor Accident Injuries Act 2017 (the MAI Act).
Mr Scott completed an Application for Personal Injury Benefits on 7 December 2018.
On 5 February 2021 the insurer declined liability for payment of statutory benefits following the first 26 weeks after the accident on the basis Mr Scott was wholly at fault for the accident.
On 5 February 2021 an application for an internal review was submitted by Mr Scott.
In an Internal Review Decision dated 22 February 2021 the insurer confirmed the decision that Mr Scott was wholly or mostly at fault for the accident.
Mr Scott lodged an application in the Personal Injury Commission (the Commission) on 23 April 2021.
In issue are the following disputes:
a. whether for the purposes of s 3.11 of the MAI Act the motor accident was caused wholly or mostly by the fault of the claimant, and
b. 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.

JURISDICTION

The Commission was established on 1 March 2021 and the Dispute Resolution Service was abolished by cl 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act).
I am a Member of the Motor Accidents Division of the Commission. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings.
Because of the date of the accident cl 14D(3)(b) provides that the MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.

DOCUMENTS CONSIDERED

Documents filed in the portal have been allocated a number. A document with a number preceded by the prefix A indicates this is a document uploaded on behalf of
Mr Scott and a document with a number preceded by the prefix R indicates this is a document uploaded on behalf of the insurer. Documents bearing a number with the prefix AD are additional documents uploaded by either party. The numbering of documents in the portal is simply for the purpose of allowing parties to the proceedings to identify the documents in the portal. I have considered the following documents:
(a)    claimant’s submissions dated 12 April 2021 (A1);
(b)    application for Personal Injury Benefits dated 7 December 2018 (A1);
(c)    insurer Liability Notice dated 5 February 2021 (R3);
(d)    Internal Review Certificate dated 22 February 2021 (A1);
(e)    NSW Police report (A1);
(f)    NSW Ambulance report (A1);
(g)    letter from Wayne Pasterfield dated 29 January 2020 (A1);
(h)    insurer’s submissions dated 17 May 2021(R1);
(i)    factual investigation report of Quantumcorp dated 26 October 2020 with attachments (R4);
(j)    supplementary report of Quantumcorp dated 15 March 2021 (R5);
(k)    forensic investigation report of Mark Byrnes of First Response Consultancy dated 9 November 2021 (AD11);
(l)    report of Grant Johnston, Consulting Engineers dated February 2022 (AD15);
(m)     CCTV footage recorded by Safari Firearms (AD5);
(n)    CCTV footage – Burwood 3863 – cam forward (AD18);
(o)    CCTV footage – Burwood 3863 – driver cam (AD19);
(p)    CCTV footage – Burwood 3863 – front door cam (AD20);
(q)    CCTV footage – Burwood 3863 – read deck cam (AD21);
(r)    CCTV footage – Burwood 3863 – read door cam (AD22);
(s)    email from Edwina Krasnowski of Transit Systems to Brooke Hill dated
29 November 2021 (AD12);
(t)    email from Gerard Malouf and Partners and reply email from Suncorp dated 14 June 2022 (AD26), and
(u)    email from Constable Kurt Zambesi to Brooke Hill dated 17 June 2022 (AD 27).

THE RELEVANT LAW

Section 3.11 of the MAI Act states:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
Note.
Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault.”
Section 3.28 of the MAI Act states:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”

ASSESSMENT CONFERENCE ON 17 JUNE 2022

The matter was the subject of an assessment conference on 17 June 2022. Mr Scott was represented by Mr Ryan Lynch of counsel instructed by Ms Ana Attalla of Gerard Malouf Partners and the insurer was represented by Mr Tony Bowen of counsel instructed by Ms Brooke Hill of Suncorp.
Mr Scott was questioned at the assessment conference. One of the major factual issues was whether the bus was wholly or mostly in lane two prior to the collision.
Whilst CCTV footage obtained from Safari Firearms had been provided by the NSW Police Force in response to a Direction for Production Mr Scott believed there was additional footage of the bus driving along Stoney Creek Road prior to making a left-hand turn into Preddys Road. Mr Scott believed he had viewed this additional footage and it was this footage which was referred to in proceedings in the Local Court at Sutherland on 29 January 2020.
Mr Lynch sought to adduce evidence from Mr Scott as to what he had observed on that footage. Mr Bowen objected to that evidence. I indicated I would not allow Mr Scott to testify as to what he saw on that CCTV footage where it was nearly 18 months since he saw the footage, where the footage was not available to the insurer, and where the insurer was taken by surprise by this evidence and would not be able to test the accuracy of that evidence in the absence of the footage.
Ms Hill offered to make further enquiries of her contact with NSW Police as to the existence of further footage. A short adjournment ensued to enable those enquiries to take place. Mr Bowen advised that Ms Hill spoke to two police officers who examined the brief and noted that it appeared we were seeking access to a record described in the index to the police Brief of Evidence as “CCTV footage from the corner of Stoney Creek Road, Bexley”. Mr Bowen indicated one further line of enquiry remained and that was to speak to Constable Zambesi, the officer in charge of the matter. He was on leave but would be returning to work the following Monday. I also noted that the footage seemed to be referred to as Exhibit 4 in the Local Court proceedings and may have been retained by the court.
I indicated I thought it was important an attempt to be made to locate this footage in circumstances where Mr Scott’s right to receive ongoing treatment, care and statutory benefits will be determined by this dispute. It was agreed it was appropriate to proceed with the conduct of the assessment on the basis an opportunity would be provided thereafter to the parties to locate any additional footage.
A further dispute arose where Mr Scott sought to rely upon an interpretation of that footage provided by police officers and referenced in documents in the police brief of evidence, namely the Case Report and the Facts Sheet. Arguably this is hearsay evidence and I indicated it would be a question of weight to be accorded to that evidence in the absence of any additional surveillance footage.
Mr Lynch indicated the claimant also wished to make an application for exceptional costs in these proceedings. I indicated I would issue a draft decision with directions to the parties to provide submissions as to costs.
At the conclusion of Mr Scott’s evidence both Mr Lynch and Mr Bowen made further oral submissions.
I directed the parties to make enquiries about the existence of further CCTV footage recorded by Safari Firearms and to advise the result of those enquiries by 1 July 2022. Depending on the result of those enquiries I indicated I would made further directions by 8 July 2022 as to the further conduct of the proceedings including as to costs.
An issue also arose as to whether the claimant had asked the insurer to have the insured driver, Mr Hoi available for questioning. I gave leave to the insurer to upload to the portal a copy of the email from the solicitor for Mr Scott in respect of the attendance of Mr Hoi at the assessment conference.
I was advised by Mr Scott’s lawyers on 5 July 2022 that they had been unable to locate any further CCTV footage.
The insurer uploaded to the portal an email from Constable Kurt Zambesi dated
17 June 2022 in which he stated:
“I confirm there is only one video from Firearms Safari being the one already provided.
The only other footage obtained was from the bus involved.”

THE EVIDENCE

The police report

The police report provided the following crash summary details:
“At the TOI (time of impact), VEH2 (a Volvo Bus registered No. MO3863 driven by Kim Ping Hoi) was travelling east on Stoney Creek Rd, Bexley in lane two of two. At this stage DRT1 (motorbike registered No. BXJ34 driven by Mr Scott) is believed to have been travelling directly behind VEH2 (bus registered No. MO3863) or further back in lane one of two. VEH2 has intended to turn north into Preddys Rd, Bexley. Due to the large size of the vehicle and angle of the turn, DRI2 has needed to turn from lane two of two, DRI2 slowed to about thirty kilometres and activated his left indicator. DRI2 states he looked into each of his mirrors however could not see any vehicle behind or besides him. VEH2 began to turn left and about halfway through completing the turn, it appears that DRI1 has attempted to overtake the turning vehicle. It is unclear how fast VEH1 was travelling however he has impacted heavily with the rear nearside of VEH2….”

Mr Scott’s evidence

Mr Scott is now 43 years of age. At the time of the accident, he was employed as a tyre salesman.
Mr Scott was conveyed by ambulance to St George Hospital. He sustained a fracture of the right femur, a fracture of the tibia and fibula, a fracture to the right knee, a tear to the posterior cruciate ligament of the right knee, a soft tissue injury to the right shoulder, damage to teeth, and lacerations to the chin, the bridge of the nose and the right eyebrow.

Record of interview with Constable Zambesi

On 4 April 2019 Mr Scott participated in a record of interview with Constable Kurt Zambesi. The following are the relevant extracts of that interview:
“Q1. Were you the driver of motor cycle with registration BX5 34, being a black Harley Davidson, that was involved in a traffic accident involving a bus on Stoney Creek Rd cross of Preddys Ave, Peakhurst about 5.40 pm on Monday the 3rd of December 2018.
A1.    Yeah, that’s Bexley too.
Q2.   What happened?
A2.    I was riding my bike on Stoney Creek Rd. I was in the left-hand lane and the bus was in the right hand lane. I didn’t see any blinker on the bus to turn left. I assumed the bus was travelling straight because it was in the right-hand lane. There was a car at the lights in front of me because the lights were green. The bus waited for the car to go straight and I have been behind the car. I don’t think the bus has seen me and he had just hooked it in front of me.
Q5.   How fast were you travelling at the time?
A5.    I would have been doing about 50k/h
Q9.   Where did you hit the bus during the accident?
A9.    To be pretty honest, I’m pretty sure it was up towards the front left.
Q14. Were you under the influence of any drugs or alcohol at the time?
A14. I had actually had a beer before. Just two beers in the space of two hours.
Q15. How close to the car in front of you were you?
A15. To be honest I can’t remember. I was well up beside the bus.”

Statement of Mr Scott dated 3 September 2019

Mr Scott provided a statement dated 3 September 2019. Adopting the numbering contained in that statement he provided the following description of the accident:
“4. On 3 December 2018, I was involved in a motor vehicle accident whilst travelling on my motor bike. The incident occurred as I was riding along Stoney Creek Road and approaching the intersection of Preddys Road, Bexley. As I approached the intersection, I noted that the lights were red. There was a vehicle in the left-hand lane that was stopped at the traffic lights and a bus in the right-hand turn lane. I could not see whether there was a vehicle in front of the bus.
5. I approached the traffic lights along the left-hand turn lane and as I had gotten about 10-15 metres from the vehicle in front the lights turned green and that vehicle proceeded to go. I then continued to travel along the left lane when without notice or warning the bus, which was in the right-hand lane, seemed to negotiate a left-hand turn attempting to go into Preddys Road. As a result, I collided heavily with the bus.”

Evidence of Kim Ping Hoi, the insured driver

At the accident scene Constable Zambesi recorded a conversation with Mr Hoi, the driver of the bus which was recorded by body worn video. The relevant parts of the conversation reported by Constable Zambesi are as follows:
“I said: Alright so what’s happened?
Mr Hoi said: I’m turning left from Stoney Creek Road onto Preddys Road, taking both lanes because that’s a sharp turn, and can’t do it in one lane. Doing probably thirty (30) to forty (40) K’s and this speed, and I put the indicator on before I start turning. I think this guy take me from behind because he's at my blind point, and I can’t even see him. I just heard a hit – small hit on the side of bus, and I stopped.”
Constable Zambesi recorded an interview with Mr Hoi in his police notebook F653817. The relevant parts of that interview were as follows:
“I said:Were you the driver of bus MO3863, that was involved in a traffic accident on Preddys Road, cross of Stoney Creek Road Bexley, at about 5:40 on the 3rd of December 2018?
He said:              Yes.
I said:                   What happened?
He said:I turning left, but taking two lanes, and during my turn I hear something but at the back of my bus. I stopped the bus straight away and see a motor bike crashed out the front of my bus. I come off the bus, and see him lying on the ground. He was bleeding a lot with a leg injury. There was some people from nearby trying to help, and they were doing first aid.
I said:I’m now going to ask you some questions about this matter. You don’t have to say or do anything if you don’t want to. Do you understand?
He said:               Yes.
I said:I’ll record anything you say or do, and I can use this recording in court. Do you understand?
He said;               I understand.
I said:                   What direction were you heading in?
He said:               From Stoney Creek Road, left onto Preddys Street.
I said:                   What lane were you in?
He said:I was taking both lanes, the first and second lane so I can turn left, because we can’t do it with one lane.
I said:                   What did you do before you turned?
He said:I shared a lane – I turned on left indicator. I forget if it was red light before, but I can’t remember if was red then green. But it was a green light.
I said;                    Well, what colour was the traffic light?
He said:                Green definitely.
I said:                    How fast were you going?
He said:                Around 30 to 40 kilometres by my estimate.’
I said:                    How fast do you usually go when turning around corners?
He said:                Depends on traffic, but normally around 30 to 40 kilometres.
I said:                    What other vehicles were around you at the time?
He said:                Far past mirrors on the side of my bus, I didn’t see any.”
Mr Hoi provided a statement dated 17 September 2020. Adopting the numbering contained in that statement he relevantly stated:
“14.   The weather conditions were fine and the road was dry. The visibility was fine and the road was well lit by natural daylight and there were no issues with sun glare or anything like that. The weather and visibility were not factors in the cause of this collision.
15.    The collision occurred at the intersection of Stoney Creek Rd, and Preddys Rd, Bexley NSW. Preddys Road has two lanes in each direction including a parking lane facing north. Stoney Creek Road has three lanes heading east including a right hand turn lane and there are three lanes heading west also including a right hand turn lane. Opposing traffic directions are separated by double unbroken white lines on both roads.
16.    The intersection is an X style intersection controlled by traffic lights in all directions and the roads are straight and flat. There are no pedestrian crossings at the traffic lights. The speed limit is 60 km/h on Stoney Creek Road but I am not sure about the speed limit is on Preddys Road but I think it is 60 km/h.
17.    The roadways were in good condition.
18.    I am very familiar with the road and would drive along there roughly five to ten times a week.
19.    At the time of the accident there were no passengers on the bus.
20.    I could not tell you any of the details of the motorcycle I collided with.
21.    There was just the rider on the bike and he did not have a pillion passenger.
22.    At the time of the collision I was travelling from Hurstville which was the terminal and I completed my run and was returning without passengers back to the depot in Burwood.
23.    At the time of the collision the traffic density was moderate.
24.    I was heading east along Stoney Creek Rd and had slowed down to about 20 to 30 kmph to make the sharp left hand turn onto Preddys road. I was taking up both lanes in order to make that turn and my left hand wheels were in the left lane while the right hand wheels were in lane two of three. At no stage did I stop for a red traffic light at that intersection.
25.    There is a bus stop about 50 metres west of the intersection and just before that bus stop there are some cars parked along the side of the road which meant I would have to travel in lane two to go past the parked cars and the motorcycle rider would have had to do the same thing and would have been travelling behind my bus. My left hand indicator came on about 70 metres before the corner and I put it on as I was passing the parked cars on the left hand side of the road just before the bus stop.
26.    After passing the parked cars I was driving in both lanes in preparation for the left hand turn onto Preddys road. I checked my left hand mirror twice and did not see the motorcycle at all before the collision and as I was making my left hand turn he has tried to overtake the bus on the left hand side in lane one. I think the bike rider may have been in my blind spot.
27.    I both heard and felt the impact of the motorcycle crashing into the rear left hand door of my bus…”

Bus defect

There is no evidence of any defect in the bus. An email from Edwina Krasnowski, Depot Administrator, Burwood, dated 29 November 2021 confirms the bus driver completed a pre-departure check as per the Driver Guidelines Handbook, however, no paperwork is required for that check.

Evidence of Constable Zambesi

Constable Zambesi participated in an interview with Raymond Puechberty of Quantumcorp on 28 September 2020.
He concluded Mr Scott was at fault stating:
“Obviously you’re not allowed to overtake a bus as it’s turning. He – from viewing the CCTV compared to his version of events his version of events was incorrect that he provided in the fact that he said there was a car in front of him and the bus has stopped which there wasn’t a car. The bus has never stopped which was confirmed on CCTV. And as the bus has already been pretty much completing its turn that’s when he’s hit the back of it.”

CCTV footage

CCTV footage from Safari Firearms shows the accident from a distance. It shows a black SUV which proceeds through the intersection prior to the bus reaching the intersection.
CCTV footage from the bus includes footage titled “forward CAM”, “driver CAM”, “front door”, “rear deck”, and “rear door”.
The CCTV footage from Safari Firearms and from the bus was made available to the expert witnesses and was the subject of comment in those reports.

Court Attendance Notice

Mr Scott was served with a Court Attendance Notice for an offence of Overtake/pass vehicle contrary to sign pursuant to s 143(1a) of the Road Rules 2014.
Regulation 143 of the Road Rules is in the following terms:
“(1) A driver must not drive past, or overtake, to the left of a vehicle displaying a do not overtake turning vehicle sign if the vehicle is turning left and is giving a left change of direction signal, unless it is safe to do so.
(1A) A driver must not drive past, or overtake, to the left of a vehicle displaying a do not overtake turning vehicle sign unless--
(a) the driver is driving on a multi-lane road and the vehicle can be safely overtaken in a marked lane to the left of the vehicle, or
(b) the vehicle is turning right, or making a U-turn from the centre of the road, and is giving a right change of direction signal and it is safe to overtake to the left of the vehicle, or
(c) the vehicle is stationary and it is safe to overtake to the left of the vehicle.”

Transcript of proceedings before the Local Court

I was furnished with the transcript of evidence before Magistrate Love in the Sutherland Local Court on 29 January 2020.
The following evidence was given by Mr Hoi:
“Q.    At about that time you were approaching the intersection of Preddys Road and Stoney creek Road in Bexley?
A.     Yes.
Q.     As you were approaching that intersection first of all can you just briefly described that intersection to the Court? (p5)
A.     It’s a green light on the street and I’m going from Stoney Creek Road turning left into Preddys Road and I’m taking two lanes to – because that’s a sharp turn. I have to take two lanes to pass the turn and I put on the left indicator, probably at least 40 to 80 metres ahead, that’s probably six seconds before, I check the mirror, there is no car on my left because there’s a – it’s a two lane street. There’s cars parked on the left lane so I’m pretty sure I’m the only one on the free lane to turn left and when I’m turning left I hear halfway, just before I start to turn, halfway I hear a big sound crash on my back of the bus. So I stopped the bus immediately and get off. I can’t see anything from the mirror yet at that point because it’s probably in my blind point. Get off the bus, there a motorbike on the – I think it’s in the front of the bus on the left hand side and there’s a man lying behind somewhere bleeding on the street.
Q.     Just in relation to the indicator, you told the Court that it was about 50 to 80 metres before the intersection you turned it on?
A.     Yeah. Something like that.
Q.     Could you explain how you arrived at that distance estimate?
A.     There’s a – that’s just -
Q.     Perhaps a reference to landmarks or things nearby or just your general experience, what you may have relied upon to form that estimate?
A.     There’s a traffic lights at the corner and there’s a few cars parked on the street on the left, so there is probably three or four cars on the street on my left which are parked there. Yeah, I’m pretty sure I started indicator before that, before the parking cars on the left lane. So that would be – and after – from the way I put the indicator to – till the lights, probably this to six seconds time, so that’s from estimation, like probably 50 to 80 metres. Yeah, that’s what I’m saying.
Q.     In relation to the bus’s control instruments, could you describe how you go about turning on the left indicator in your bus?
A.     I went to turning, I check the back mirrors, check the left mirrors and because I’m turning left and I’m on the right lane I didn’t see – I didn’t check the right mirror I think, yeah, and see that there no car behind on my left hand side, so I put the indicator on and I keep on driving and once I passed the car parked on my left start making turn.”
Mr Scott gave evidence in the Local Court. I have not reproduced the entirety of the evidence but only that evidence which is relevant to this dispute. Relevant evidence in chief was as follows:
“Q.    Stoney Creek Road and Preddys Road. Can you very carefully tell us what occurred when you were approaching the intersection of Stoney Creek Road and Preddys Road?
A.     I was in lane 1, the bus was in lane 2.
Q.     Which part of Stoney Creek Road are we talking about?
A.     We’re prior – coming up prior to Preddys Road.
Q.     How far prior to Preddys Road are you talking about?
A.     Well, I was in lane 1 probably for about 150 metres, 200 metres prior to the lights. Going straight forward the bus – I was travelling in that same direction as the bus and then all of a sudden the bus has taken me out.
Q.     We weren’t there?
A.     Yeah.
Q.     All we’ve seen is bits and pieces of some footage so we need you to explain – we all know the bus took you out. Well, there was a collision and you were injured?
A.     Yeah.
Q.     What we need to know is bit by bit what occurred. We’ve seen the footage. There’s some parked cars in lane 1 approaching Preddys Road. Where were you in relation to the bus when you went past those parked cars?
A.     Beside the bus.
Q.     Sorry, say it again. Beside the bus?
A.     Beside the bus.
Q.     At the time when there’s parked cars?
A.     No. As we come past the parked cars, I’ve come into lane 1.
Q.     At any stage were you in lane 2?
A.     Leading up to it. Yes, I was. Yeah. Because there was parked cars on that – that left—
Q.     After you got past the parked cars, what did you do?
A.     Pulled into lane 1.
Q.     Why did you pull into lane 1?
A.     Because that was – there was room there.
Q.     It was around 5.30 on a weeknight?
A.     Yeah.
Q.     How would you describe the traffic?
A.      It was heavy.
Q.     What was in front of you when you made your way over to lane 1?
A.     There was a car in front of me.
Q.     Where were you positioned in relation to the bus when you’ve moved into lane 1.
A.     I was pretty much at the side, the side of the bus.
Q.     The bus was fairly long?
A.     Which side? Whereabouts?
A.     I’d say at the back half of the bus.
Q.     Were you overtaking the bus?
A.      No, I wasn’t.
Q.     Was there any reason why you couldn’t overtake the bus?
A.     Because there was a car in front of me.
Q.     And did you, at any stage, see the bus indicate?
A.     No.
Q.     What lane was the bus in?
A.      It was in lane 2.
Q.     Did you form any opinion as to what you thought the bus was going to?
A.     I – in my mind, that bus is going straight ahead.
Q.     What happened?
A.      I got taken out…………….
Q.     When you say “taken out” …
A.     Well, I was proceeding to the actual intersection and then the bus has come straight and bang, I’ve collided with the bus.
HIS HONOUR: Mr Pasterfield, I don’t understand your client’s evidence. When he says he moves into lane 1, there was a car in front of him. I don’t understand that evidence.
PASTERFIELD
Q.     When you say there was a car in front of you, was that a parked car or a moving car?
A.     No, it was a moving car. The car was at the lights.
Q.     It was at the lights?
A.     Yeah.
Q.     Where were you and the bus when you noticed that car at the lights?
A.     I noticed that car when I came into that lane.
Q.     Was it parked? Was it stopped?
A.     No, it was mobile.
Q.     It was moving?
A.     It was moving.
Q.     When you say at the lights, it was moving through the lights?
A.     Going through the lights.
Q.     And how far from the lights were you when you noticed that car?
A.     It’s hard to say. I’d say at least 20, 30, maybe 40 metres.
Q.     I’ll ask you again. At any stage, did you notice the bus indicator come on?
A.     No.
Q.     He turned from lane 2 across your path to negotiate—
A.     The car’s gone through the intersection and then the bus has come straight around behind the car.
Q.     After the car when through the intersection?
A.     Yeah.
Q.     Do you recall how fast you say the bus was going at that time?
A.     I couldn’t say.”
Mr Scott was cross examined and during the cross examination he was shown CCTV footage marked Exhibit 4 in those proceedings. The relevant evidence of Mr Scott was as follows:
“Q.    You’ve said that the car went through the intersection before you did. Can you describe the car?
A.     No, I couldn’t.
Q.     I’m going to show you the CCTV footage. Before I do, you’ve given evidence today in court that there was a car in front of you. You also told police in your driver version that “there was a car at the lights in front of me because the lights were green. The bus waited for the car to go straight” and that’s the version which you provided to police and you stand by that version? (p14).
A.     Yes.
EXHIBIT 4 PLAYED TO COURT
Q.     Do you agree that that’s the bus entering the intersection on the right hand side?
A.     Yes.
Q.     It might be easier to see on that one. It’s a bit closer to you. Do you agree that so far the only vehicle that was in front of the bus was the black SUV?
A.     That’s correct.
Q.     Would you agree that that SUV had gone into the roundabout, left the roundabout and gone so far down the street it was out of sight before the bus came to the roundabout?
A.     There’s no roundabout.
Q.     The intersection? There’s no other vehicles other than that black SUV?
A.     That’s just that one car.
Q.     It’s completely out of frame now, isn’t it, as the bus is entering, isn’t it?
A.     Yeah.
EXHIBIT 4 PLAYED TO COURT
Q.     Would you agree that’s your bike hitting the bus? (p15)
A.     That’s my bike.
Q.     Sir, I put it to you that there was no car that was travelling in front of you?
A.     Yes there was. You just saw it.
Q.     But the bus didn’t enter the intersection until that car had totally left the intersection, did it?
A.     No. Because the bus is in the right hand lane.
Q.     How can it be that the car is in front of you when the car is so far in front of the bus that it’s already left the intersection?
A.     Well, I don’t know about so far in front of the bus.
Q.     It was sufficiently far in front of the bus that it had left the intersection before the bus entered it. It’s not the case that the car was in front of you, is it?
A.     Yes, the car was in front of me.
Q.     It’s not the case that the car was directly in front of you is it?
A.     The car was in front of me.
Q.     That’s not the question I asked, sir. It’s not the case that the car was directly in front of you, is it?
A.     As in directly as in right in front of me or as in “in front of me”?
Q.     I’m asking about your position in relation to the car. If the bus is in front of you and then the car is in front of the bus, that car is not directly in front of you, it’s in front of the bus?
A.     The car was in front of me.
Q.     You’re saying that the car was directly in front of you?
A.     I didn’t say that.
Q.     Are you saying that the car was in lane 1 and you were in lane 1 at the same time?
A.     The car was in lane 1, yes.
Q.     But that’s not when you were behind the bus?
A.     No.
Q.     Sir, I’m not asking you whether all three vehicles were travelling in single file, I’m asking about your position relative to that car. Is it your evidence that you and the car were in lane 1 and the bus was in lane 2?
A.     That’s correct.
Q.     Is it then your evidence that the car is in front of you in lane 1 and the bus is in lane 2 and therefore, not in front of you?
A.     I don’t understand what you’re saying there.
Q.     Your evidence is “There was a car at the lights in front of me. The bus waited for the car to go straight” and you were behind the car, that was the statement provided to police?
A.     Yeah.
Q.     What I’m trying to do is reconcile that with what’s shown on the footage. In the footage, there is a significant time delay between when the car enters, negotiates and leaves the intersection and when the bus enters the intersection do you agree?
A.     Well, I don’t know what the timeframe is but yeah.
Q.     They’re not simultaneously entering the intersection, are they? There’s more than one car length between the car and the bus, isn’t there?
A.     There’s a little bit of space there.
Q.     In fact, there’s an entire intersection between the nose of the bus and the boot of the car at one point, so it’s clearly not the case that they entered at the same time, is it?
A.     No. They didn’t actually enter at the same time.
Q.     It’s your evidence that this car was nearby when you attempted to go through the intersection, is that correct?
A.     That’s correct.
Q.     Sir, I put it to you that the car was far enough away that it didn’t make any difference to what happened in the intersection, do you agree?
A.     Well, what you’re saying is that the car wasn’t in the vicinity of the actual - of the bus, it was.
Q.     I’m saying it was far enough away that it didn’t make a difference to what happened in that intersection?
A.     Well, as I said, there was a car in front of me.
Q.     I’m going to stop you there. It’s a yes or no question. Please answer it. I put it to you that car had left the intersection before you and the bus entered the intersection?
A.     Yeah.
Q.     I put it to you that as a result of that, that car played no part in the collision between you and the bus?
A.     Yeah.
Q.     You agree?
A.     If you say.
Q.     It’s not about what I say, sir. It’s about your evidence?
A.     No.
HIS HONOUR
Q.     Sir, you either agree or disagree?
A.     I agree.”

Expert reports

Report of Mark Byrnes of First Response Consultancy

The claimant relied upon a report of Mark Byrnes, forensic investigator dated
9 November 2021.
Mr Byrnes concluded on the images supplied that the bus driver fully engaged the indicator lever on the left side of the steering column, about 100 m west of the eastbound holding line of the intersection. Although he also noted there was no physical evidence that the indicator lamp was working as designed when the lever was engaged.
Mr Byrnes found if the indicator lamp had been operating it would have been visible to Mr Scott for about 2.7 seconds prior to the motorcycle entering lane one. He noted that once Mr Scott was in lane one and alongside the bus conspicuousness of the indicator lamps would have decreased due to the reduced peripheral vision caused by
Mr Scott’s full faced helmet.
Mr Byrnes stated it was evident from the supplied footage that there was only very negligible lateral movement of the bus supporting Mr Scott’s assertion that the bus remained wholly within lane two prior to commencing the turn proper. He noted there was no apparent steering input by the bus driver prior to the left hand down steering input at the commencement of the turn.
Mr Byrnes said accepting the evidence of Mr Scott that the indicator was not illuminated and the positioning of the bus in lane two, there would have been little to no visual cue that the bus was about to turn.
Mr Byrnes stated it was evident on the CCTV footage from the bus that the bus driver made three discernible head movements to his left (assumedly looking at the external nearside mirror) of about three seconds in total. Mr Byrnes thought the bus driver’s scanning technique would best be described as ephemeral glances. He concluded the bus driver should have been more diligent and methodical in checking mirrors to ensure that lane one was not occupied prior to commencing the left turn.
He thought it was reasonable to assume the motorcycle was within the confines of lane one for approximately five seconds. He concluded had the bus driver given more time to scanning the nearside mirror prior to the left turn he would have had more opportunity to identify the approaching motorcycle.

Report of Grant Johnston, consultant engineer

The insurer relies upon a report of Grant Johnston dated February 2022.
Mr Johnston notes the ‘cam forward’ video shows the roadway and the intersection of Preddys Road ahead of the bus. It shows that the traffic signals were green at the intersection as the bus approached and that there were no vehicles stopped at the intersection ahead of the bus as it approached the intersection. A screen capture time stamped 5.44.46 pm shows the nearest vehicle is approximately 50 m ahead in lane two as it proceeds through the intersection.
He also notes the presence of a bus video recording system which includes an event log including the use of the turn indicators and brake application.
The ‘cam forward’ video indicates the left-hand turn indicator was activated at a time of 5.44.50 pm which is about 9 seconds before the bus starts to turn and about 11 seconds before impact. The indicator was activated before the bus had passed the last of the parked vehicles.
Mr Johnston provided a screen capture taken at 5.44.58 pm, which shows the view ahead of the bus immediately before it commenced the left turn.
He notes that the camera labelled as the ‘rear deck’ camera records Mr Scott colliding with the rear door at 5.45.01 pm.
Mr Johnston also notes that the video footage from Safari Firearms show the bus travelling east along Stoney Creek Road and commencing to turn left into Preddys Road. The bus stops during its turn immediately after Mr Scott’s motorcycle is seen to collide with the rear door of the bus. Mr Scott separates from the motorcycle which continues to the front of the bus before falling over.
Mr Johnston used an Austroads design template overlaid onto an aerial image of the intersection of Stoney Creek Road and Preddys Road to demonstrate that it was not possible for the bus to make the turn without using both lanes, as he suggests Mr Hoi was seen to be doing on the CCTV at the time of the accident. He notes that rule 28(2) of the Australian Road Rules recognises the need for vehicles longer than 7.5 m (the bus was 12.5 m long) to utilise multiple lanes to complete a left turn.
He also notes there was a “Do not overtake turning vehicle” sign on the rear of the bus.
Mr Johnston relied on the CCTV footage to show the relative movement of the bus shadow relative to the dividing line. In Figure 8.6 he shows the relative position of three shadows where the time lapse between each of the three frames is negligible. The bottom shadow is when the bus was passing the parked cars and is assumed to be wholly within lane two. The second image is after the bus has passed the parked vehicles and is furthest to the left relative to the dividing lane. The third shadow is just before the bus driver commences the left turn and the bus is seen to have drifted back close to its original position. Mr Johnston suggests this evidence shows the driver of the bus initially placed his vehicle in both lanes to indicate that he intended to turn left from the right lane.

Mr Johnstone noted the indicators on the bus were located at the rear of each side, they were high output LED and clearly visible.
Mr Johnston also suggested the slow speed of the bus on the approach to the intersection on a green light was another indicator that the bus intended to turn at the intersection.
He concluded it was Mr Scott who did not provide the bus the time and distance to complete his turn as he was required to do under the Australian Road Rules.
In response to the report of Mr Byrnes Mr Johnston states it is not correct to suggest that as the motorcycle came to the rear of the bus it had not yet started to turn. He provided synchronised front camera and onboard camera images looking toward the rear deck reproduced in figure 8.9 to show that the bus was well into the turn when the motorcycle passed the rear of the bus.
Mr Johnston concluded that the physical and video evidence is consistent with the account of the bus driver and is inconsistent with Mr Scott’s version of events. He stated Mr Scott failed to identify the visual cues that demonstrated the bus was intending to turn left, namely, the left turn indicator, followed by the position of the bus partially straddling both lanes and the slowing speed of the bus as it approached the intersection.

Email from Gerard Malouf Partners and email from Suncorp in reply dated 14 June 2022

In an email from Ana Attalla of Gerard Malouf Partners dated 14 June 2022 Mr Scott asked, “Will your insured driver be attending to give his evidence orally”. In an email in reply also on 14 June 2022 Ms Hill on behalf of the insurer replied, “GIO does not intend on calling the insured to give evidence. GIO relies on the insured’s evidence provided under oath in the local court proceedings”.

Evidence at the assessment conference

Objection to Mr Scott’s evidence

Mr Scott gave evidence at the assessment conference. At the outset of the assessment conference Mr Bowen objected to Mr Scott giving further evidence having regard to the statements already furnished and the evidence before the Local Court.
I noted this objection had been raised before. On 21 October 2021 the insurer opposed the listing of the matter for an assessment conference on basis Mr Scott had provided his evidence in his statement, the matter has been the subject of a hearing in the Local Court and CCTV footage of the accident was available. Mr Scott’s lawyers objected to the matter being dealt with on the papers and advised the claimant sought an opportunity to give evidence as to the circumstances of the accident.
In the teleconference report dated 21 October 2021 I noted:
“5.     My position is as outlined at the last teleconference. I refer to Procedural Direction PIC2. One of the factors to consider in determining whether a matter can be dealt with on the papers is whether there are any objections to doing so. Whilst the available evidence includes a statement from Mr Scott, a record of interview between Mr Scott and Constable Zambesi, a statement from the insured driver, a transcript of proceedings in the Sutherland Local Court and CCTV footage Mr Scott objects to the matter being dealt with on the papers.
6.     Whilst there has been evidence given in the Sutherland Local Court, I note those proceedings cannot create an estoppel, where the parties are not the same and where the onus of proof is of a different standard.
7.      Determination of this dispute will establish whether Mr Scott has any ongoing entitlement to statutory payments and payment for treatment and care. Mr Scott has one opportunity to bring this claim and there is no right of appeal of the decision to be given in this matter in the PIC. In these circumstances I consider it would be appropriate for the matter to proceed by way of an assessment conference to ensure there is no denial of procedural fairness.”
I informed Mr Bowen I understood the matter had been listed on the basis Mr Scott would give further evidence and I was satisfied there would be no procedural unfairness where he would have an opportunity, on behalf of the insurer, to question
Mr Scott, and indeed, to raise with him any inconsistencies which might arise between his statements, his evidence in the Local Court and his evidence to be given during the assessment conference.
Both parties agreed if I was to find Mr Scott was not wholly or mostly at fault, I should make a finding as to contributory negligence.

Whether Mr Scott had sought the attendance of Mr Hoi at the assessment conference

In his opening address Mr Lynch noted the bus driver, Mr Hoi was not present and indicated the claimant had invited the insurer to have him attend for questioning.
Mr Bowen disputed Mr Hoi had been asked to attend. He said the claimant’s lawyers had asked if Mr Hoi would be available to give evidence but had not made a request for him to be present.
I note the email communications between Gerard Malouf Partners and Suncorp on
14 June 2022 confirms no request was made for Mr Hoi to be present at the assessment conference and there can be no criticism of the insurer for not asking him to attend.

Mr Scott’s evidence at the assessment conference

Mr Scott confirmed he lived close to the accident location and had ridden his motorcycle on Stoney Creek Road many times. He was travelling from Campbelltown and had drunk two beers over a two-hour period. A low reading was recorded when he was breath tested following the accident. Mr Scott denied he was affected by the alcohol at all.
Mr Scott was going to Bexley so intended to travel straight ahead at the intersection with Preddys Road.
Mr Scott stated he was travelling in lane two behind the bus and moved into lane one once there were no parked cars. Mr Scott agreed the parked cars in lane one were about 70 to 100 m from the intersection. He stated when he was travelling behind the bus, he observed it was going straight ahead.
Mr Scott was adamant he did not see a blinker and agreed he could not say whether it was on or off. He agreed the bus displayed a “Do not overtake turning vehicle” sign on the bottom left-hand corner.
He stated he observed the car when he originally came into lane one. He also stated that he was not at any time prior to the collision alongside the bus.
He was travelling at 50 kmph in lane one approaching the intersection when the bus veered left. Mr Scott said he did not see a blinker.
Mr Scott said the bus never moved into lane one before commencing the turn.
When Mr Bowen questioned Mr Scott about his move into lane one, Mr Scott said, “I was making room for myself”. Mr Bowen suggested there was no reason for Mr Scott to move into lane one unless he was planning to overtake the bus. Mr Scott denied he was overtaking the bus at all. When asked why he needed to make room for himself when he had all of lane two available Mr Scott said, “when travelling on a motorcycle it is best to position yourself in the right position, I chose to jump into that left hand lane”.
Mr Scott denied the suggestion put to him by Mr Bowen that when he said he “jumped” it meant that he moved quickly into lane one and accelerated to overtake the bus.
Mr Scott denied that was the case and said that he had amended his use of the word “jumped” to say he merged into the left-hand lane.
Mr Bowen questioned Mr Scott about his statement dated 3 September 2019. In that statement Mr Scott said as he approached the intersection the lights were red. He conceded that was not correct and, in fact, the lights were green.
In that statement Mr Scott said there was a vehicle in the left-hand lane stopped at traffic lights and the bus was in the right-hand lane. When asked if he conceded there was no car in lane one Mr Scott said there was a car in lane one but it was previous to the intersection. Mr Bowen referred Mr Scott to the CCTV footage taken from the front of the bus and his evidence in the Local Court where he accepted there was no car in lane one as he approached the intersection. When asked to concede that his evidence in the statement as to the presence of the other car was incorrect Mr Scott reiterated that there was a car, but it was “previous” to the intersection. However, Mr Scott did agree his statement was incorrect where he said there was a car stopped at the traffic lights. Mr Scott conceded in his evidence in the Local Court he had agreed at no point was there a vehicle in lane one which had any bearing on the accident.
When Mr Bowen suggested Mr Scott did not have a good recollection of events giving rise to the accident, he said he had sustained head injuries in the accident, however, he considered he did have a good recollection of the accident.
When questioned by Mr Bowen, Mr Scott agreed he travelled in lane two until he was clear of the parked cars and then approached the intersection in lane one. He agreed the traffic lights were green as he approached. Mr Scott agreed that that part of his statement where he said the lights turned green as he approached was incorrect, the lights were green and did not change.
Mr Scott agreed when he was travelling behind the bus he had an unobstructed view of its indicators, in particular the left-hand indicator, although he later resiled from that evidence.
When asked by Mr Bowen whether he had an unobstructed view of the sign “Do not overtake turning vehicle” when he was behind the bus, Mr Scott replied, “no it was obstructed by the car that was behind it you couldn’t actually see the sign”. Mr Scott said there was heavy traffic, and the sign was obstructed. He said “it was the same thing with the blinker – couldn’t see it”.
Mr Bowen put to Mr Scott that in his statements to police, in his evidence to the Local Court and his evidence that day at no time had he said the sign at the back of the bus was obstructed by a vehicle. Mr Scott stated he was driving in the left-hand lane, there was multiple traffic, and he was not looking for a sign in the bottom left-hand corner.
When Mr Bowen suggested to Mr Scott there was no vehicle between him and the bus, Mr Scott stated there was multiple traffic, peak hour traffic.
I asked Mr Scott, “When you were in lane two and the bus was in front are you saying there was a vehicle between you and the bus?”. Mr Scott replied, “multiple vehicles in front of me”. I said, “between you and the bus?” Mr Scott replied, “yes”.
Mr Scott testified the bus did not move at all into the left lane, nor did he observe the bus slow down or decelerate. When asked by Mr Bowen if he saw the indicator operating for at least 10 seconds before the accident, Mr Scott testified he did not see either the blinker or the sign.
Mr Scott denied that the bus moved into the left lane. He said he was aware that Preddys Road joins Stoney Creek Road at a 45º angle and he was also aware that a large vehicle would need to utilise both lanes to negotiate a left-hand turn. However, to his knowledge the bus was not turning left.
Mr Scott was shown the CCTV footage “cam forward” on which it was submitted the bus can be seen to move into the left lane as it approaches Preddys Road. Mr Scott agreed the bus was moving but did not agree it was moving into the left lane.

SUBMISSIONS

The claimant’s submissions

Submissions dated 12 April 2021

The claimant provided submissions dated 12 April 2021. The claimant asserts the insured driver (bus driver) failed to keep a proper lookout. The insured (bus) made a left-hand turn from the right lane and failed to give way to traffic in the left-hand lane.
The claimant submits that it is apparent from the CCTV footage that the bus was wholly within lane two at the time the driver began executing the turn. Mr Scott submits that the Roads and Maritime Safety Rules for Intersections and Turning - information for heavy vehicles note “Trucks and buses need more space to turn wide or cut into traffic”. Therefore, the safety rules state that at marked intersections, heavy vehicle drivers must “Position your vehicle so that any vehicles behind cannot pass on your left”.
The claimant submits the bus driver failed to position his vehicle so that any vehicles behind, or to the left, could not pass on the left. Furthermore, Mr Scott submits the bus driver had an increased responsibility to keep a proper lookout for oncoming traffic in the left lane.
The claimant submits on the CCTV footage the bus driver looked briefly in his side mirror and did not slow down significantly before conducting the turn across the lane of traffic. He also submits if the bus driver had undertaken regular mirror checks while driving, he would, in all likelihood, have become aware of the presence of Mr Scott.
Mr Scott relies upon the letter of Wayne Pasterfield, criminal lawyer dated
29 January 2020 in which he stated:
“After hearing evidence from you and the bus driver, the Magistrate came to the view that although this was a tragic accident, technically you did try to overtake the bus whilst it was turning and were therefore guilty of the offence.
It is probably the case that the bus driver was guilty of negligent driving and/or not keeping a proper lookout but he was not charged by Police so he could not be penalised.
The Magistrate took all this into account in deciding to issue no penalty in relation to the offence which in my opinion reflects the minor nature of the offence and the fact that the bus driver contributed to the accident to a great extent.”

Submissions dated 30 September 2021

The claimant provided further submissions dated 30 September 2021.
The claimant refers to the CCTV footage from the front door of the bus noting that at 5.22.52 pm on the footage the bus would have been wholly within lane two as there were vehicles parked in lane one. Using a ruler, the claimant notes at that point in time there was a distance of 10 cm from the edge of the gutter to the door of the bus. The claimant notes that same distance is maintained as the bus drives along Stoney Creek Road, indicating that the bus remained in lane two. Further Mr Scott notes at 5.44.59 pm, just before the bus turned into Preddys Road, the same distance of 10 cm can be measured from the bottom of the gutter to the door. Mr Scott submits this indicates the bus must have been travelling wholly in lane two along Stoney Creek Road, meaning it would not have been obvious to Mr Scott that the bus intended to turn into Preddys Road.
Turning to the forward camera on the bus the claimant submits the shadow of the bus can be used to estimate the movements of the bus. At 5.44.50 pm the bus would have been wholly in lane two as there were parked cars in lane one. At that time the bus shadow is 4 cm from the dotted white line on the road.
At 5.44.58 pm just before the bus makes the turn, the shadow is again 4 cm from the dotted white line on the road, again indicating that the bus was wholly within lane two at the time of making the turn into Preddys Road.
The claimant concedes that at 5.44.55 pm the forward camera indicates that the shadow is 5.2 cm from the dotted white line. However, it is submitted this does not mean the bus had moved into lane one merely that it had slightly moved left. The claimant submits this may be explained by the movement of the angle of the sun from the bus or even if there was a slight movement into lane one it would have only been a short distance and would not have been indicative of an intention to make a sharp turn across a lane of traffic. In any event even if Mr Scott noticed a slight movement from the bus into lane one, the bus then moved wholly back into lane two.
Mr Scott submits the bus was wholly within lane two at the time of making the turn into Preddys Road.

Submissions dated 16 March 2022

The claimant provided further submissions dated 16 March 2022.
The claimant notes that the report of Mark Byrnes concludes the following:
(a)     there was only negligible lateral movement of the bus which supports
Mr Scott’s evidence that the bus was wholly within lane two at the time of commencing the turn;
(b)     there is no calculable physical evidence that the indicator was actually working as designed;
(c)     the bus driver made three discernible head movements to the left of about three seconds in total which the claimant described as ephemeral glances, and
(d)     the bus driver was negligent in that failed to:
(i)position the bus so that vehicles behind could not pass on the nearside;
(ii)position the bus like the buses observed during his site appreciation, so that it would have been apparent that the bus was turning left prior to the commencement of the turn, and
(iii)be diligent and methodical in checking mirrors to ensure that lane one was not occupied prior to commencing the left turn, noting the size of the bus.
The claimant submits that the use of an indicator is not sufficient to indicate a driver’s intention, especially when undertaking an unusual manoeuvre in a heavy vehicle. The claimant submits that unless the bus was a significant way into lane one for a significant period before undertaking the turn, most drivers would assume the bus was simply merging lanes. It is submitted if a driver is at the rear left of the vehicle which suddenly makes a turn across the lane there is no opportunity for Mr Scott to slow down and nowhere for Mr Scott to manoeuvre their vehicle so as to avoid the collision.
The claimant notes that based on the report of Grant Johnston the insurer submits that the insured vehicle moved 0.6 to 0.85 m to its left prior to undertaking the turn, being at a maximum a quarter of a lane. The claimant submits this conclusion is unreliable based as it is on the relative bus shadow position. The claimant also notes there is no evidence indicating that the bus was at the very edge of the second lane, so a shift of 0.6 to 0.85 m to the left would not necessarily place the bus a quarter of the way into the left lane.
Further, the claimant refers to paragraph 2.2(b) of the insurer’s further submissions which state:
“From 5:44:18 until 5:44:44 of the ‘driver cam,’ ‘rear door’ and ‘front door’ footage a broken white dividing line is intermittently visible through the left-hand doors of the bus…”
The claimant notes the insurer draws the conclusion from this that the bus was wholly within lane two during this period as a result of being able to see the white lines. The claimant agrees but notes that the white line is visible over the edge of the bus. Noting that buses are a significant height off the ground, due to the angle of the camera the bus would not be able to be driving right on the white dividing line and still be seen by the camera. As such, the bus would have had to have been driving some distance to the right of the white dividing line. Accordingly, the claimant submits a movement of at best 0.85 m to the left would not have placed the vehicle significantly within lane one and would not have indicated to other motorists that a left turn was being undertaking. The claimant also relies upon the opinion of Mark Byrnes who reported there was no apparent steering input by the insured driver prior to the left-hand turn.
The claimant asks whether it was reasonable for the bus to be wholly or mostly within lane two prior to commencing the turn noting it is apparent from Figures 13, 14 and 15 of the report of Mark Byrnes that other buses executing the same turn were able to do so from significantly within lane one.
The claimant submits that a breach of the Australian or NSW Road Rules is not definitive of a breach of duty of care (Sibley v Kais (1967) 118 CLR 424 at 427) for the purposes of s 5 of the Civil Liability Act 2002. Rather, it will be an important factor to be taken into account when determining a breach (Penrith City Council v East Realisation Pty Ltd (in liq) (2013) MVR 180 at 193, [53] per Tobias AJA, 184 at [4] per McColl JA).
The claimant notes that the rules which allow a vehicle longer than 7.5 m to turn from the marked lane next to the left lane as well as, or instead of, the left lane only applies where it is not practicable for the driver to turn left from within the left lane and where the driver can safely occupy the next marked lane and can safely turn left at the intersection by occupying the next marked lane, or both lanes.

The claimant submits that these rules place an obligation on the bus driver to safely conduct the turn, to only move into the next marked lane as far as necessary for it to be practicable for the vehicle to undertake the turn and where it was necessary to turn from wholly or mostly within lane two to ensure the vehicle took up both lanes to indicate their intention in the period leading up to the turn.
The claimant submits the bus driver was negligent in choosing to turn left from wholly or mostly within the second lane and by only relying upon his indicator to signal his intention to turn left. The claimant’s lawyer submits both Mr Scott, and the insured driver were in breach of the NSW Road Rules and negligent, although Mr Scott’s contribution to the accident was less than 61%.

Oral submissions

Mr Lynch made oral submissions at the assessment conference. At the outset of the assessment conference Mr Lynch noted there were three major factual issues:
(a)    whether the bus driver was wholly or mostly in lane two prior to the collision;
(b)    what was the relevant position of Mr Scott on the motorcycle prior to the collision, and
(c)    whether the insured driver ought to have seen Mr Scott prior to the collision.
Mr Lynch sought to rely upon the Police Case Report and the Facts Sheet which were part of the Police Brief of Evidence. Both of those documents suggest the officer in charge had viewed the missing CCTV footage from Safari Firearms and formed a view the bus was turning from lane two.
Mr Lynch conceded it will be a matter of what weight should be given to this evidence in the absence of any further footage from Safari Firearms. However, where there was no further CCTV footage from Safari Firearms I do not propose to give any weight to the Police Case Report and the Facts Sheet.
Mr Lynch says Mr Scott did not see the indicator. However, in the event the indicator was activated and working Mr Scott’s submission is that this was a minor factor in the cause of the collision.
Mr Lynch submitted the synchronised images on page 41 of the report of Grant Johnston are consistent with the evidence of Mr Scott.
He also notes as indicated by Mr Johnston at pages 41 and 42 of the report that the CCTV footage shows that Mr Scott on his motorcycle was positioned at the rear of the bus until just prior the collision. It is submitted that on the objective evidence the bus was mostly if not wholly in lane two until just prior to commencing the turn.
Mr Lynch submitted if I was to find that the bus was wholly in lane two prior to commencing the turn there was significant departure from the standard of care where:
(a)    the CCTV shows no left-hand steering input from the insured driver;
(b)    the indicator alone was not enough to warn Mr Scott, and
(c)    in the absence of clear movement into lane one Mr Scott was entitled to proceed on the basis the bus intended to go straight ahead, inculpating the insured driver.
In reply to submissions made by Mr Bowen that Mr Scott had never before given evidence about changing lanes because he needed room, Mr Lynch noted Mr Scott was asked during his evidence in chief in the Local Court about changing lanes. When asked “Why did you pull into lane one” he replied, “because there was room there”.
Mr Lynch also argued it was not correct to say the Facts Sheet was challenged in the Local Court in its entirety. Mr Scott gave evidence in the Local Court that the bus remained in lane two, that he was not overtaking and in his mind the bus was going straight ahead.

Insurer’s submissions

Insurer submissions dated 17 May 2021

The insurer provided submissions dated 17 May 2021.
The insurer submits no weight should be placed on the opinion of Wayne Pasterfield on the basis that his opinion that the Magistrate’s decision to issue no penalty reflected the fact that the bus driver contributed to the accident to a great extent is at complete odds with the transcript which suggests that the decision to issue no penalty was in fact due to the injuries sustained in the accident which Magistrate Lowe referred to as ‘significant extra curial punishment’.
The insurer submits the evidence of the bus driver that he made the left turn from both lanes after having indicated for 70m and checking his mirrors is supported by the CCTV footage.
The insurer submits that the evidence of the bus driver that he did not stop at a red traffic light prior to the collision is supported by the evidence of Constable Zambesi who reported it was confirmed on CCTV that there was no car ahead of Mr Scott and the bus did not stop.
The insurer submits Mr Scott attempted to overtake the turning bus and collided with the middle doors of the bus as the bus was mid-way through the turn.
The insurer submits Mr Scott was wholly or mostly at fault because of:
(a)     failing to observe the bus’s indicator, particularly in circumstances where
Mr Scott was travelling directly behind the bus when the indicator was activated;
(b)     overtaking/passing the bus contrary to ‘Do not overtake turning vehicle’ sign;
(c)     travelling too fast in the circumstances;
(d)     failing to take reasonable and adequate care so as to avoid an accident;
(e)     failing to control his motorcycle so as to avoid an accident and or injury;
(f)     failing to see, slow down and take evasive action so as to avoid an accident, and
(g)     failing to take adequate or any care for his own safety.

Insurer’s submissions dated 25 August 2021

The insurer provided supplementary submissions dated 25 August 2021. The insurer refers to the CCTV footage from Safari Firearms and submits it cannot be concluded from that footage, given the angle from which the footage was taken, that the bus was wholly in lane two prior to commencing the turn.
The insurer concedes that the bus was wholly within lane two until a point marked 9.43 on the ‘driver cam’ footage where a broken white dividing line is intermittently visible through the door to the right of the bus. However, it is submitted that the white dividing line is not visible on the footage between the point marked 9.43 and the point marked 10.02 when the collision occurred. From this the insurer submits it can be inferred that the bus was in both lanes one and two prior to executing the turn. The insurer submits this is consistent with the evidence of Mr Hoi in his bodycam statement, in his police notebook statement, in his statement dated 17 September 2020 and with his evidence under cross examination in the Local Court.
The insurer submits I would adopt the findings made by Magistrate Love and:
(a)     accept that the bus driver indicated in sufficient time before the intersection and that the indicator was functioning;
(b)     reject Mr Scott’s evidence that the bus made a left hand turn without notice or warning and accept that Mr Scott was travelling directly behind the bus when the indicator was activated and was to commence the turn;
(c)     reject Mr Scott’s evidence that the bus stopped at a red traffic light prior to the collision;
(d)     reject Mr Scott’s evidence that there was a vehicle was in front of him in lane one and the bus waited for that vehicle to go through the intersection and then turned in front of Mr Scott, and
(e)     accept that Mr Scott overtook the bus in lane one when he was not permitted to do so.

Insurer’s submissions dated 25 February 2022

The insurer provided supplementary submissions dated 25 February 2022 having reviewed the entirety of the footage from the bus. The insurer notes the following:
(a)    at 5:44:50 pm of the ‘driver cam’ the bus driver is observed activating the left blinker (whilst vehicles are parked within lane one);
(b)    from 5:44:18 pm until 5:44:44 pm of the ‘driver cam,’ ‘rear door’ and ‘front door’ footage a broken white dividing line is intermittently visible through the left-hand doors of the bus, suggesting that the bus was wholly within lane one during that period;
(c)    at 5:44:52 pm of the ‘forward cam’ the bus is observed moving to the left after there are vehicles no longer parked in lane one, consistent with the bus driver’s evidence that he was in both lanes, with his left-hand wheels being in lane one, due to the sharp turn into Preddys Road;
(d)    from 5:44:52 pm of the ‘driver cam,’ ‘rear door’ and ‘front door’ a white dividing line is not visible in circumstances where there is clearly a broken white dividing line immediately prior to the intersection, suggesting that the bus was not wholly within lane two during that period;
(e)    at 5:44:54 pm the event log indicates that the foot brake was applied (consistent with the insured slowing);
(f)    at 5:44:53, 5:44:55 and 5:55:57 pm of the ‘driver cam’ the bus driver is observed checking his left mirrors;
(g)    at 5:44:58 pm of the ‘driver cam’ the bus commences the turn;
(h)    at 5:45:00 pm the bus had entered the intersection and was clearly across lane one and two (‘driver cam’). At that time, the motorcycle was approaching but had not yet reached the rear of the bus in lane one (‘rear door’), and
(i)    at 5:45:03 pm Mr Scott collides with the bus.
The insurer submits based on the event log and the ‘driver cam’ the bus driver turned on his left indicator at 5.44.50 pm, approximately 100 m from the incident scene and before lane one was cleared of parked vehicles. At this time Mr Scott was required to travel in lane two behind the bus. The insurer submits Mr Scott must have travelled behind the bus for at least several seconds while the left indicator was flashing. The foot brake was engaged at 5.44.54 pm and the rear brake lights show the bus began to slow. At 5.44.58 pm the bus driver is seen to actively steer the bus to the left.
The insurer notes the indicators on the bus are located at the rear of each side and typically are clearly visible from behind. There was also a “Do not overtake turning vehicle” sign visible on the rear of the bus.
The insurer submits the bus driver placed the bus in both lanes on approach to the intersection to indicate to vehicles behind that he intended to turn left from the right lane. Mr Scott failed to identify the visual cues that the bus was intending to turn left, the indicator, the position of the bus partially straddling both lanes and the slowing speed of the bus as it approached the intersection.

Oral submissions

Mr Bowen made oral submissions at the assessment conference.
Mr Bowen submitted I would find the indicator was functioning at the time of the accident where Mr Scott had not sought to advance an argument that it was not functioning and where the insured driver had undertaken a mechanical check that morning.
Mr Bowen argued the evidence of Mr Scott was not reliable. Evidence in his statements to the police were not accepted in the Local Court, in particular his evidence as to the presence of another vehicle in lane one was incorrect, his evidence about the lights changing was incorrect and his evidence about the location of his vehicle as he approached the intersection unsure. He noted the new evidence given by Mr Scott at the assessment conference about his view of the bus being obstructed by other vehicles is another example of Mr Scott changing his evidence. He also noted Mr Scott suggested his head injuries may have affected his memory.
He also submitted Mr Scott’s evidence about needing more room has never been given before and makes little sense. Mr Bowen submitted Mr Scott’s intention to travel through the intersection is consistent with overtaking the bus at speed. He suggested Mr Scott jumped into lane one with the intention of overtaking the bus without looking at the cues from the bus.
Mr Bowen noted the evidence of the bus driver is unchallenged. He noted the CCTV footage from the bus shows a sequence of events, namely, the bus driver checking his mirror three times, putting his indicator on, the bus decelerating and moving into lane one. He submitted there was no breach of duty by the insured driver.
Mr Bowen refers to figure 7.3 of the Grant Johnston report which indicates that at the time the indicator went on Mr Scott must have been behind the bus, because at that point lane one was still obstructed by parked vehicles.
In relation to the Police Facts Sheet Mr Bowen suggested Mr Scott was not entitled to cherry pick the facts he sought to rely upon, particularly in circumstances where
Mr Scott had not accepted those facts and had challenged the charge. Mr Bowen said the insurer relied upon the findings of the Magistrate and he also noted the facts relied upon by the police included the evidence of Mr Hoi who said he was taking both lanes at the time he commenced the turn.

Insurer’s submissions dated 11 July 2022

The insurer provided supplementary submissions dated 11 July 2022.
The insurer notes Senior Constable Kurt Zambesi confirmed in an email dated
17 June 2022 (AD27) that ‘there is only one video from Firearms Safari being the one already provided’.
In addition to repeating the submissions set out at paragraph 142, albeit with times recorded from the ‘converted footage’ above the insurer submits the non-existence of additional footage from Safari Firearms reinforces the insurer’s submission that
Mr Scott’s evidence is unreliable.
The insurer submits that no weight should be placed on the interpretation of the Safari Firearms footage by police in circumstances where the position of the bus is clearly not evident from that footage. I have already indicated in the absence of any additional CCTV footage from Safari Firearms I do not propose to give any weight to the interpretation of Constable Zambesi contained in the Police Case Report and the Facts Sheet.
The insurer reiterates that the only available video footage as to the position of the bus showed it moving to the left after there are no longer vehicles parked in lane one consistent with the evidence of the insured driver, Mr Hoi.

WAS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT?

Pursuant to section 3.1 of the MAI Act Mr Scott is entitled to statutory benefits if he has an injury that results from a motor accident. Section 3.1(2) provides that statutory benefits are payable, accept as otherwise provided by Part 3, irrespective of fault.
It is agreed Mr Scott was injured in an accident involving the use or operation of a motor vehicle in accordance with s 1.4 of the MAI Act.
However, the insurer relies upon sections 3.11 and 3.28 of the MAI Act to assert
Mr Scott is not entitled to statutory benefits past 26 weeks on the basis the motor accident was caused wholly or mostly by the fault of Mr Scott.

Was Mr Scott wholly at fault?

The first question to be determined is whether Mr Scott was wholly at fault.

The letter from Wayne Pasterfield

I do not propose to place any weight upon the letter from Wayne Pasterfield, having regard to the evidence contained in the transcript of the Local Court and where the Magistrate found the offence proven.

The reliability of Mr Scott’s evidence

The insurer argues the evidence of Mr Scott is unreliable whilst the evidence of the bus driver is unchallenged. The veracity of Mr Scott’s evidence was challenged in relation to why Mr Scott did not see the indicator or the “Do not overtake turning vehicle” sign on the bus, his assertion there was another vehicle ahead of his vehicle which played a role in the accident, whether the lights were red or green as he approached and his evidence about the location of his motorcycle as he approached the intersection.

Was the Indicator working?

Mr Hoi informed Constable Zambezi that he put the indicator on before he started turning and, in his statement of 17 September 2020 Mr Hoi stated his left-hand indicator came on about 70 m before the corner whilst he was still passing the parked cars on the left-hand side of the road. He gave evidence in the Local Court that he put on the left indicator at least 40 to 80 m ahead whilst he was still passing the parked cars in the left lane.
The CCTV footage shows a movement by Mr Hoi which is consistent with the operation of the indicator lever on the left side of the steering column.
Mr Scott has consistently stated he did not see the indicator and when questioned at the assessment conference he stated he did not see a ‘blinker’ and he agreed he could not say whether it was on or off.
Ms Byrnes concluded from the CCTV footage that the bus driver fully engaged the indicator lever on the left side of the steering column, about 100 m west of the intersection.
Mr Johnston concluded from the ‘cam forward’ footage that the left indicator was activated about nine seconds before the bus started to turn and before the bus had passed the last of the parked vehicles.
I also note Mr Hoi had completed a pre-departure check prior to leaving the bus depot with no report of any defect in either indicator.
In the absence of any evidence to suggest the indicator was not working I accept the left-hand indicator was working, although I also accept Mr Scott did not see the indicator. I also accept the indicator was activated by the bus driver 80 to 100 m before the intersection and before the bus had passed the last of the parked vehicles. It is clear on the evidence of Mr Scott and from the CCTV footage that Mr Scott was travelling in lane two behind the bus at that time.
Mr Scott’s evidence at the assessment conference was that he did not see the indicator or the ‘Do not overtaking turning vehicle’ sign when he was traveling behind the bus because of the presence of traffic or what he described as ‘multiple vehicles’ between his bike and the bus at that time. This evidence was surprising because at no time had Mr Scott ever suggested there were multiple vehicles travelling between his motorcycle and the bus impeding his view of the indicator or the ‘Do not overtake turning vehicle’ sign although in the Local Court he had described the traffic as heavy.
The ‘cam forward’ shows the roadway and the intersection of Preddys Road ahead of the bus. It shows that the traffic signals were green at the intersection as the bus approached and that there were no vehicles stopped at the intersection ahead of the bus as it approached the intersection. A screen capture time stamped 5.44.46 pm shows the nearest vehicle is approximately 50 m ahead in lane two as it proceeds through the intersection.
There is no evidence the indicator was not working. Mr Hoi undertook a check before leaving the depot and the indicator was working at that time. Mr Hoi says he activated the indicator, and this is confirmed by the CCTV footage which shows him leaning down to do so. Mr Scott did not see the indicator. In the absence of any evidence to suggest the indicator was not working, I am satisfied the indicator was working and was activated by Mr Hoi prior to the accident.
Having regard to the evidence of Mr Scott’s expert Mr Byrnes not only do I find the indicator was working but that it would have been visible to Mr Scott for 2.7 seconds prior to the motorcycle entering lane one.

Were the lights red or green?

In his record of interview with Constable Zambesi Mr Scott stated the lights were green as he approached them. In his statement dated 3 September 2019 Mr Scott stated as he approached the intersection, he noted the lights were red and there was a vehicle in the left-hand lane stopped at the traffic lights and the bus in the right-hand lane. In his evidence to the Local Court Mr Scott agreed the lights were green and at the assessment conference Mr Scott agreed the statement of 3 September 2019 was incorrect and the lights were green.
In his interview with Constable Zambesi Mr Hoi stated the lights were green, although he could not remember if they had been red before. In his statement dated
17 September 2020 he stated at no time did he stop for a red traffic light at the intersection and in his evidence to the Local Court he stated the light was green.
It is clear from the CCTV footage that the lights were green as the bus approached the intersection.
I find the lights were green at the time the bus and the motorcycle approached the intersection.

Whether another vehicle played a role in the accident?

In his record of interview with Constable Zambesi Mr Scott stated there was a car at the lights in front of him because the lights were green, and the bus waited for the car to go straight. In his statement dated 3 September 2019 he stated as he approached the intersection there was a vehicle in the left-hand lane stopped at the traffic lights and when he was 10 to 15 m from the vehicle in front the lights turned green, and that vehicle proceeded to go. In the Local Court Mr Scott stated he could not overtake the bus because there was a car in front of him. He said it was a moving car and it was at the lights and as the car went through the intersection the bus came straight around behind the car.
It is clear from the CCTV footage that not only were the lights green as the bus approached the intersection but there were no vehicles stopped at the intersection ahead of the bus and nor was there a car which went through the intersection as the bus started to come around.
Mr Scott was shown that CCTV footage and agreed it showed a black SUV which entered the intersection but had left the intersection by the time the bus had entered the intersection. Mr Scott agreed, albeit reluctantly that the SUV played no part in the collision between his motorcycle and the bus.

The location of Mr Scott’s vehicle as it approached the intersection

Mr Hoi apparently did not see Mr Scott’s motorcycle at any time.
In the Local Court Mr Scott said he was in lane one probably for about 150 or 200 m prior to the lights.
However, at the assessment conference Mr Scott stated he travelled in lane two behind the bus and moved into lane one once there were no parked cars. He agreed the parked cars were about 70 to 100 m from the intersection. This is consistent with the CCTV footage.
I also note the synchronised front camera and onboard camera images looking towards the rear deck reproduced in figure 8.9 of Mr Johnston’s report show the bus had started to turn when the motorcycle passed the rear of the bus.

The position of the bus on the road as it approached the intersection

In his record of interview and in his statement dated 3 September 2019 Mr Scott stated the bus was in the right-hand lane and he assumed it was travelling straight ahead.
During the assessment conference Mr Scott denied the bus moved into the left lane and during his evidence in the Local Court Mr Scott said the bus was in lane two.
In his conversation with Constable Zambesi at the scene and in his record of interview Mr Hoi stated he was taking both lanes to turn because he could not turn from one lane. In his statement dated 17 September 2020 Mr Hoi said he had slowed down to 20 to 30 kmph, his left-hand wheels were in the left lane and his right-hand wheels in lane two. In the Local Court Mr Hoi stated he had to take two lanes to make the turn.
I do not find it necessary to consider the unscientific shadow measurements made by ruler relied upon by the claimant where there is little variation between both experts as to the movement of the bus as it approached the intersection.
The insurer’s expert Mr Johnston reviewed the relative position of shadows shown on the CCTV footage. The first image is when the bus is passing the parked cars and is assumed to be wholly within lane two, the second image is after the parked cars have been passed when the shadow is furthest to the left relative to the dividing lane, whilst the third shadow shortly before the driver commences the turn suggests the bus has drifted back to its original position.
The insurer submits the insured vehicle moved 0.6 to 0.85 m to its left prior to undertaking the turn, at a maximum a quarter of a lane. However, the claimant suggests this evidence is unreliable based as it is on shadows and where there is no evidence to show that the bus was at the very edge of the second lane, meaning a shift of 0.6 to 0.85 m to the left would not necessarily place the bus a quarter of the way into the left lane.
Mr Byrnes opines that the measurements of Mr Johnston support Mr Scott’s assertion that there was only very negligible lateral movement of the bus. Mr Byrnes also commented there was no apparent steering input by the bus driver prior to the turn.
I have viewed the CCTV footage and I agree the shadow evidence is not a reliable guide as to the location of the bus on the road, although it does seem the shadow briefly moved closer to the left-hand side of the road before moving back to the right. However, where there is no evidence as to where the bus was travelling in relation to the dividing line, I cannot be satisfied there was a shift of 0.6 to 0.85 m to the left.
However, in considering the position of the bus on the road I also note the unchallenged evidence of Mr Hoi that his left-hand wheels were in the left-hand lane.
I accept there was some movement of the bus into the left-hand lane although it does seem the bus veered back to the right shortly before commencing the turn.

Whether the bus driver kept a proper lookout

Whilst the claimant argues the bus driver was not diligent in checking his mirrors to ensure that lane one was not occupied before commencing his turn it is apparent that the bus driver turned his head to look to the left on three separate occasions. I consider this was reasonable having regard to the obligation of the bus driver to keep a proper lookout not only for vehicles travelling to the left of his bus but also the road and vehicles in front of him.

Determination

The discrepancies in Mr Scott’s evidence cause me concern about the reliability of his recollection as to the circumstances of the accident.
I do not accept in the absence of clear movement into the left lane Mr Scott was entitled to proceed on the basis the bus intended to go straight ahead, inculpating the insured driver.
Whilst a breach of the Australian or NSW Road Rules is not definitive of a breach of duty of care it is a factor to take into consideration when determining breach. It is agreed it was not practicable for the bus to turn from the left-hand lane where the bus was longer than 7.5 m. It is clear from Regulation 143 of the Road Rules there is an obligation on a road user to avoid overtaking or driving past a vehicle displaying a ‘Do not overtake turning vehicle’ sign or where a vehicle has given a left change of direction signal unless it is safe to do so. There is no dispute the bus displayed a ‘Do not overturn turning vehicle’ sign and I have found the left-hand indicator was activated by the bus driver and working at the time of the accident.
Mr Scott was travelling behind and in the same lane as the bus at the time the indicator was activated. Mr Scott did not see the indicator at all. This means in moving into the left-hand lane without observing whether the indicator on the bus was activated
Mr Scott was not only in breach of the Road Rules but negligent in failing to keep a proper lookout and to take reasonable care for his own safety.
Not only did Mr Scott fail to observe the indicator and the ‘Do not overtake turning vehicle’ sign he also failed to observe the slowing of the bus and the movement of the bus (albeit briefly) into lane one before attempting to drive past the bus.
Whilst the question I am required to consider is the fault of Mr Scott, the claimant has argued Mr Hoi also breached his duty of care as a prudent driver. I do not agree.
Mr Hoi not only engaged his left-hand indicator, but he also looked to the left on three separate occasions, he slowed his vehicle and there was some movement of the bus into the left-hand lane. I do not accept there was any obligation on Mr Hoi to ensure his bus took up both lanes to indicate his intention to turn left in the approach to the turn.
I do not doubt that Mr Scott believed the bus was going straight ahead but I find in reaching this conclusion he was at fault in that he failed to keep a proper lookout, he failed to observe the indicators on the bus before moving into the left-hand lane and travelling past the bus, he failed to observe the “Do not overtake turning vehicle” sign and he failed to observe the bus slowing. Mr Scott failed to take reasonable care for his own safety.
I find Mr Scott was wholly at fault for the accident.

CONCLUSION

For the purposes of ss 3.11 and 3.28 of the MAI Act I find that the motor accident was caused wholly by the fault of Mr Scott.

COSTS

Mr Scott had indicated he wished to make an application for an exceptional costs award pursuant to s 8.10 of the MAI Act on the basis of the unusual complexity in the matter.
On 8 August 2022 I issued draft reasons for decision and provided a timetable for the parties to upload submissions in respect of costs.

The relevant law

Section 8.10 of the MAI Act provides:
‘8.10 Recovery of costs and expenses in relation to claims for statutory benefits:
(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)    The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a claimant under this section (including any matters for which no costs and expenses are recoverable from the Insurer).
(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 Dispute Resolution Service.
(4)    The Dispute Resolution Service can permit payment of legal costs incurred by a claimant but only if satisfied that:
(a)the claimant is under a legal disability, or
(b)exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
(5)    An Insurer is not entitled to recover from a claimant for statutory benefits any legal costs, or other costs and expenses, of the Insurer in relation to the claim’.

The claimant’s position

The claimant uploaded to the portal submissions dated 19 August 2022 marked AD30.
A claim is made for the maximum regulated costs. In addition, the claimant seeks an award of costs pursuant to s 8.10(4)(b) of the MAI Act.
The claimant submits exceptional circumstances exist having regard to the additional work the claimant’s legal representatives were required to undertake beyond what would ordinarily be required in an application where the maximum regulated costs would suffice. The additional work was described as follows:
“•      prepare the initial submissions for the application as well as two additional further submissions – 20 units;
·        peruse the three sets of submissions relied upon by the insurer – 15 units;
·        preparing, reviewing and participating in at least five teleconferences with the Commission;
·        initial review of extensive CCTV footage – 15 units;
·        reviewing of CCTV footage with counsel and claimant to obtain instructions – 10 units;
·        preparing brief to counsel and participate in at least 4 conferences with counsel and the claimant – 50 units;
·        consulting and conferring with a crash reconstruction expert – 10 units; and
·        reviewing liability report – 8 units”.
A claim is made for an additional 142 units at the compromised rate of $445 plus GST, noting the hourly rate usually charged by Mr Vrege Kolokossian, the senior partner acting for the claimant is $570 plus GST. A claim is also made for counsel’s fees and the costs of the liability report of Mr Byrnes.
The claim made is calculated as follows:
Maximum regulated costs for the application (including GST)              $1,881
Mr Byrnes liability report  $2,000
Exceptional costs   $26,310.90
Total  $30,191.90

The insurer’s position

The insurer uploaded submissions to the portal dated 2 September 2022 marked AD31.
The insurer notes that in AAI LTD trading as GIO v Moon [2020] NSWSC 714 Wright J held that a claimant could incur and recover legal costs from the insurer exceeding the maximum prescribed by the regulations.
The insurer notes that s 8.10(1) only entitled the claimant to recover from the insurer “reasonable and necessary” legal costs incurred by the claimant in connection with the dispute.
The insurer submits there has been a parliamentary intention to “fix the maximum costs and expenses recoverable by a claimant” noting Regulation 22 expressly refers to s 8.10. For these reasons the insurer concedes the claimant is entitled to recover the maximum prescribed by Regulation 22 and Schedule 1 of the Regulation which is 16 monetary units.
The insurer submits if the claimant is permitted to recover legal costs exceeding the maximum prescribed by the Regulation, ss 7.42 and 7.37 apply to the assessment of costs in a miscellaneous dispute.
Section 7.37(3)(a) and (c) provides that in making an assessment of the claimant’s costs the Commission:
(a) may have regard to the amount of any written offer of settlement made by either party to the matter, and
(c) must have regard to the principles and matters referred to in s 200 of the Legal Professional Uniform Law (NSW) (the Uniform Law).
The insurer submits that the Commission, when assessing costs, must have regard to the following:
(a) the legal basis in which the claimant has agreed and instructed his lawyers to incur legal costs, ie the costs agreement;
(b)whether such costs are reasonable and necessary in relation to the real issues in dispute, and
(c)the order or legal basis in which the claimant can recover legal costs from the insurer.
The insurer called for a copy of the costs agreement between the claimant and Gerard Malouf & Partners and Mr Ryan Lynch of counsel and an itemised bill detailing all legal work and services provided to the claimant in connection with the miscellaneous claims dispute. The claimant declined to provide a copy of the costs agreement on the basis it was not a proper request. The insurer argues without the provision of the costs agreement it is unclear whether the scope of work was disclosed, the legal costs to be incurred and on what basis costs might be recovered from the insurer.
Indeed, the insurer submits to permit a claimant to incur and recover legal costs for every dispute brought before the Commission, without regard to the prospects of success, is likely to expose the Commission to the innudation of disputes without or with very little prospect of success.
The insurer declined liability on the basis the claimant was wholly at fault on 5 February 2021 whilst the same decision was reached by the Commission on 8 August 2022 relying on lay and factual evidence obtained by the insurer. Accordingly, the insurer submits the incurrence of $30,191.90 in legal costs was unreasonable and unnecessary. The insurer submits there was no utility or probative value of the experts commissioned by the parties and no reference was made to any expert evidence under the heading “Determination”.
On 22 October 2021, the insurer offered to resolve the dispute by paying the maximum legal costs fixed by the Regulations of 16 monetary units in exchange for the claimant withdrawing his dispute. The offer was expressed to be in accordance with the principles enunciated in Calderbank v Calderbank (1975) 3 All ER 333.
The insurer submits some benefit ought to accrue to the insurer for its early attempts to resolve the real issues in the dispute and the claimant ought to incur some penalty for unreasonably incurring legal costs and resources.
The insurer submits that s 8.10 does not provide for the recovery of costs on an indemnity basis and submits that a reasonable hourly rate is $321 (being three monetary units) consistent with the maximum hourly rate relating to conferences directly related to an assessment of a claim for damages as outlined in Part 1 of Schedule 1 of the Regulations.
The insurer submits that the regulated amount of $1,881 including GST (being approximately 5.3 hours at the hourly rate of $321 plus GST) is reasonable and necessary for legal costs for serves provided prior to 22 October 2021, namely;
(a)     preparing submissions dated 12 April 2021 (4 pages) and 30 September 2021
(2 pages);
(b)     persuing insurer submissions dated 17 May 2021 and 25 August 2021 (4 pages);
(c)     participating in teleconferences on 28 June 2021, 13 August 2021 and 30 September 2021, and
(d)     reviewing CCTV footage and the insurer’s offer.

DETERMINATION

There is no dispute that the claimant is entitled to recover the maximum amount of costs fixed by the maximum prescribed by Regulation 22 and Schedule 1 of the Regulation which is 16 monetary units or the sum of $1,881 including GST.
The question is whether the claimant is entitled to recover additional costs in accordance with s 8.10(4)(b) on the basis exceptional circumstances exist.
I do not consider s 8.10 entitles the claimant to recover statutory costs in additon to costs under s 8.10(4)(b). The entitlement to costs is either the recovery of statutory costs or costs on the basis exceptional circumstances exist.
In San v Rumble (No. 2) [2007] NSWCA 259 the Court of Appeal considered the term “exceptional case”. Campbell JA stated at [67]:
“…in deciding whether it is an ‘exceptional case’ within the meaning of s 153 (1), the court needs to find that the circumstances of the instant case are unusal or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors.”
In Moon Wright J stated a case may be exceptional because it involves an unsual degree of factual or legal complexity or for some other reason or where permitting recovery of costs which exceeds the maxiumum fixed by the regulation is “reasonably required to prevent injustice, hardship or some other relevant advserse consequence”.[1]
[1] AAI LTD trading as GIO v Moon [2020] NSWSC 714 at [99].
There can be no dispute that this dispute involved an ususual degree of factual complexity. It is not correct to assert, as the insurer submits, that there was no utility or probative value to the expert reports commissioned by the parties. In determining the claimant was wholly at fault I had regard to the expert opinion that the left indicator was activated before the bus had passed the last of the parked vehicles, and that it would have been visible to Mr Scott for 2.7 seconds before his motorcycle entered lane one. I also relied upon the synchronised camera images reproduced in Mr Johnston’s report which showed the bus had started to turn when the motorcycle passed the rear of the bus. In considering whether the bus was wholly or mostly in lane two prior to the collision I was assisted by not only the CCTV footage but also the expert opinion provided by both Mr Johnston and Mr Byrnes.
The dispute involved the review of statements provided by the claimant and Mr Hoi, it involved the review of extensive CCTV footage, including from four cameras on the bus and the footage from Safari Firearms and it involved consideration of the evidence given by the claimant and Mr Hoi in the Local Court. It was necessary to issue a Direction for Production to the Commissioner of Police to obtain access to all police records. Both the claimant and the insurer obtained expert’s reports and the claimant relied on three sets of written submissions and the insurer on four sets of written submissions. The matter proceeded to an assessment conference and whilst the insurer objected to the claimant giving further evidence my reasons for allowing him to do so are set out in paragraphs 71 to 74 above.
Whilst the claimant was not successful in this dispute the claim was not without merit having regard to the uncertainty as to the position of the bus on the road as it approached the intersection, and the location of the motor cycle as it approached the intersection. In concluding the claimant was wholly at fault I was assisted by the expert evidence, in particular, the analysis of the CCTV footage.

Mr Scott’s entitlement to accident-related treatment and care expenses for life under Part 3 of the MAI Act was dependent on a finding that he was not wholly or mostly at fault. The objects of the PIC Act is not only to resolve the real issues in the proceedings justly, quickly, cost effectively and with as little formality as possible but to ensure the Commission is accessible, professional and responsive to the needs of all its users.
Having regard to the issues in dispute, the importance of the claim in determining Mr Scott’s ongoing entitlements and the objects of the PIC Act I am satisfied for the purposes of s 8.10(4)(b) that exceptional circumstances do exist that justify payment of legal costs incurred by the claimant in connection with the dispute.
As the insurer correctly states s 7.37(3) of the MAI Act requires the Commission to have regard to the amount of any written offer of settlement, to have regard to the regulations under Part 8 of the MAI Act and to have regard to the principles and matters referred to in s 200 of the Uniform Law.
Section 200 of the Uniform Law requires me to have regard to s 172(1) of the Uniform Law when assessing costs. Section 172(1) provides:
“A law practice must, in charging legal costs, charge costs that are no more than fair and reasonable in all the circumstances and that in particular are
(a) proportionately and reasonably incurred; and
(b) proportionate and reasonable in amount”.
I refer to the decision of the Merit Review Panel in Allianz Australia Insurance Limited v Rymer [2022] NSWPICMRP 6. In Rymer the Panel noted that all insurers in the compulsory third party scheme are “receivers of public money that is compulsorily levied” and the assessment of costs determines the quantum of costs to be paid out of the public monies. In Rymer the Panel concluded costs should be assssed with a degree of scrutiny and undertook an item-by-item assessment of the costs claimed.
In this matter the claimant has not itemised the costs claimed notwithstanding the request from the insurer for an itemised account. Whilst I would have been assisted by an itemised account I note the claim is for 142 units or 14.2 hours of work performed by Mr Kolokossian. Having regard to the complexity of the factual dispute and the extensive evidence to be considered including the CCTV footage I do not consider the claim for 14.2 hours of work by the claimant’s lawyers to be excessive.
In determining that exceptional circumstances exist to justify the payment of costs beyond the fees prescribed in the Regulation I consider the hourly rate provided in the Regulation of $321 is a guide only. Not all of the work was undertaken by Mr Kolokossian; not only was counsel instructed by Ms Attalla at the assessment conference but Mr Kolokossian only participated in four out of the five teleconferences. I have not been provided with a copy of the costs agreement or any details about the experience of Ms Attalla or of Ms Eades who participated in one of the teleconferences and had some involvement in the matter. In those circumstances I propose to adopt the rate of $321 per hour plus GST.
I have reviewed the Tax Invoice issued by Mr Lynch of counsel for the claimant which was furnished by the insurer. I consider it was reasonable for the claimant to retain counsel having regard to the complexity of the factual dispute and the importance of the outcome to the claimant’s entitlement to treatment and care. The insurer also retained experienced counsel and the involvment of counsel on behalf of the claimant ensured a level playing field for Mr Scott in the determination of the dispute. The insurer did not raise any specific objection to counsels fees, although objection is a given, noting the insurer submitted costs should be limited to costs prescribed by the Regulation. I consider counsel’s fees to be reasonable.
In making an assessment of the claimant’s costs s 7.37(3) of the MAI Act provides I may have regard to the amount of any written offer of settlement. The insurer submits having regard to the Calderbank offer made on 22 October 2021 the claimant should not be entitled to recover any legal costs incurred after that date.
The offer of settlement was open for acceptance until 12 November 2021. Whilst my decision was ultimately in accord with the insurer’s determination of 5 February 2021 not all of the evidence on which I based my decision was available for consideration by the claimant at the time of the offer, in particular, the reports of Mr Byrnes and Mr Johnston. Acordingly, in the exercise of my discretion I do not propose to accede to the insurer’s submissions and nor do I propose to reduce the costs recoverable.
I also propose to allow the sum of $2,000 in respect of the report fee paid to Mr Byrnes.
I assess the claimant’s costs in accordance with s 8.10(4) in the total sum of $26,374.02 calculated as follows:
·    Solicitors fees at $321 per hour for 14.2 hours  $ 4,558.20
·    GST on solicitors fees  $ 455.82
·    Counsels fees  $19,360.00
·Expert Report of Mr Byrnes  $ 2,000.00

[2022] NSWPIC 544

30 September 2022