Whitby v Insurance Australia Limited t/as NRMA

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Whitby v Insurance Australia Limited t/as NRMA [2022] NSWPIC 437
CLAIMANT:	Susan Whitby
INSURER:	Insurance Australia Limited t/as NRMA
MEMBER:	Bridie Nolan
DATE OF DECISION:	18 July 2022
CATCHWORDS:	MOTOR ACCIDENTS - Miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28 of the Motor Accident Injuries Act 2017; where the motor accident occurred when the insured driver, the claimant’s cousin, had a sedative response to the use of methamphetamines the evening before; where the claimant had authorised the insured’s use of her vehicle in knowledge of the insured’s use of methamphetamines; Held - claimant not at fault for the motor accident and insurer permitted to reduce statutory benefits by 60%.
DETERMINATIONS MADE:	Issued under section 7.36(4) of the Motor Accident Injuries Act 2017 and clause 7.497of the Motor Accident Guidelines The findings of the assessment of this dispute are as follows: 1. For the purposes of section 3.11 the motor accident was caused by the fault of another person. 2. For the purposes of sections 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person. 3. For the purposes of section 3.38 the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident by 60%. 4. Effective Date: This determination takes effect on 17 March 2019. 5. Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $5,478 inclusive of GST.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

Before me is an application for a miscellaneous claims assessment to determine whether statutory benefits for treatment, care and weekly payments are payable after 26 weeks from the date of the motor vehicle accident, which occurred on
17 March 2019.
An internal review decision was made in this matter on 24 August 2021 varying the original decision of 11 August 2020 made by the insurer to reduce contributory negligence from 100% to 80%.
On the evidence before the insurer, it determined that the claimant, as a voluntary front seat passenger, in a vehicle driven by her cousin, whom she knew to have used methylamphetamine the night before, was 80% contributorily negligent. The basis for that decision is, shortly stated, that the claimant, as the owner of the vehicle and as voluntary front seat passenger, handing the keys to the vehicle to her cousin, Leanne, the insured driver of the vehicle who, in the opinion of the insurer was under the influence of drugs, contributed to the accident at a proportion of 80%.
In the claimant’s submissions, she was not “mostly at fault” as that provision is statutorily understood. Rather, she contends, despite the clear provisions of
s 3.38(2)(b), no finding of fault ought to be made. She contends in the alternative, that if it were appropriate to make some finding of contributory negligence, any such finding would be minimal and would not exceed 25%. She submits it would certainly not exceed 61% and the claimant would not be found mostly at fault.
In its submissions the insurer accepts that contributory negligence would be less than 61% if the claimant had not authorised the use of her own vehicle and given the keys to her sister, Leanne. However, the circumstance in the claim is that the owner of the vehicle authorised the use of her vehicle in circumstances where she was aware that her cousin had taken ICE and given the same to her. The insurer claims that the claimant administered the drugs to her cousin, the insured driver. The insurer relies on the authority in Joslyn v Berryman [2003] HCA 34; 214 CLR 552 (Joslyn) where cases such as these rises to a standard where there is no duty.

Evidence before me

The claimant is currently 40 years of age.
On 17 March 2019, shortly after midday, she was front seat passenger of her own car driven by her cousin, Leanne Whitby. The car collided with the back of a parked van on the side of the street. Her friend, Jay Condran, was in the back seat at the time. The claimant sustained injuries to her right hip, left ankle, head, right arm, abdomen, legs, and left foot. She also suffered a psychological injury.
On the night before the accident, the claimant had a party at her house in Waratah West. She says that she was that evening “smoking and drinking quite heavily”. She also took ICE. Her cousin was at the party along with others. She did not see her cousin drink any alcohol, nor did she recall her cousin taking any drugs. She does not recall what time the party concluded as she was “pretty out of it”. She said that she went to bed before the party ended. She is not aware of what time she woke up the next morning but posits that it could have been around 9:00 am. She remembered that her cousin woke her up to ask her to use her car. Initially she refused, but she says that her cousin seemed fine so she agreed that she could drive her car as long as she came with her. Her cousin drove to the shops and then drove home and cooked breakfast for everyone. She does not recall anything strange about her cousin’s behaviour or ability to drive. Her cousin then drove the claimant to their friend’s place, Jay Condran, in Beresfield. She does not recall what time that was but speculates it was around 11:00 am. Again, she notes nothing unusual about her cousin’s behaviour or ability to drive during their trip.
Her cousin and she then left Beresfield to drive to Maitland. It was on this fourth journey that the accident occurred. She fell asleep soon after getting in the car on this journey. Her cousin says that she passed her a cigarette in the car before she fell asleep. She does not recall this, but she does not believe that it occurred. She did not think that she had any cigarettes that morning as she had run out during the night before.
The next thing that she recalls is a male voice saying, “look out!”. She said that she now knows that that was Jay who called out in the back seat and that the car hit a parked van on the side of the road. She does not remember how she came to hit the van. She had been asleep at the time. She goes on to describe the injuries she sustained and the procedures she underwent following the accident. She spent more than one (1) month in hospital recuperating.
In a statement given to the investigator, the insured driver, Leanne Rebecca Whitby, the claimant’s cousin, dated 17 March 2019, said relevantly as follows:
“She attended the party on the evening before the accident with 10 or more people at the claimant’s house. She took ICE which she had bought for $50 in the quantity of 0.001 grams. She wasn’t consuming alcohol as she did not drink. The claimant was also taking ICE that evening and drinking spirits ‘Woodstock’ in the quantity of about six or more cans.”
On the morning of the accident at about 8:00 am, the insured driver said that she had only had about one hour of sleep the whole night. The claimant and she drove to the shops to pick up some breakfast of bacon and eggs. She knew that the claimant was not in a fit state to drive. The insured driver felt okay as she had not consumed any alcohol the evening before and only had a small quantity of ICE. She drove the vehicle back home after a quick shop for supplies and felt fine. She said that she was not tired.
They cooked breakfast at about 8:45 am. Susan had stopped drinking about two hours before, only because they had run out of alcohol.
Throughout the morning the claimant was becoming irritable, abusing the children, and causing trouble. Chris, an uncle of Susan’s children told the insured driver to “get her out of here because she is upsetting the children”. The claimant gave the insured driver keys to her car. They left the claimant’s home at about 10:30am and arrived at or about 10:45am or 11:00am at 17 Railway Parade, Beresfield. At this place they played a game of pool. They were not consuming alcohol or taking any drugs. They were in the company of among others, Jay Condran.
A further incident occurred wherein the claimant was asked to leave. Jay Condran asked if he could get a lift to Maitland, so the claimant and the insured driver agreed to drive him to Maitland.
They left the Beresfield property at about noon and were driving with Jay sitting in the back and the claimant in the passenger seat. Each were wearing seatbelts. The weather was fine although overcast.
The insured driver asked the claimant for a cigarette, and she said, “she took ages to hand me a cigarette”. She said that she had about a quarter of the cigarette and then passed it back to Susan. Suddenly, she was feeling a bit sick, with an off feeling after having a cigarette. She cannot recall how fast she was travelling but she knows that she was within the 50kph speed limit. The reason for this is that she knows she always drives within the speed limit. She was not distracted in any way on her mobile phone. She remembers driving through a roundabout in Lindesay Street and suddenly, she felt herself losing consciousness while driving the vehicle. Jay, who was sitting in the back seat yelled something and she regained consciousness and that is when she collided with a parked car on the left side of Lindesay Street. She cannot recall if she used the breaks or not. She said she believes that she was drugged by Susan; she may have put something in the cigarette that she handed her. She said that after the impact she came to, and her seatbelt had been removed. She said that she knew that she was wearing her seatbelt. She cannot recall who removed her seatbelt. She says that she remembered trying to get out, but her left ankle was just dangling. She says she tried to push her right ankle back into place, but she could see her bone protruding out of her skin.
She records her stay in hospital and her discharge upon waiting for the surgery on her ankle.
She says that she has had no contact with the claimant regarding the accident on
17 March 2019, except for a threatening text message saying, “I am going to sue your ass off and get rich”. She said that she had also received a message from Jay saying basically the same thing.
Pursuant to enquiries made with the police on 2 March 2020, the insurer’s investigator, having spoken to Senior Constable Sorensen who became involved in the investigation following the accident, provided access to the investigator’s statements of the insured, Mr Condran, and an off-duty Police Officer, Ms Jade Redman, who had attended the scene of the accident and provided her observations as to the impairment of the insured. Mr Clark reports that police advised that the insured had been charged with negligent driving occasioning grievous bodily harm, negligent driving, and driving under the influence. Police also obtained an expert opinion report advising the expert believes that the insured was under the influence of methylamphetamine.
In a statement dated 29 March 2020, Jay Condran, the rear seat passenger in the vehicle at the time of the accident said relevantly that, he had been playing pool that morning with the insured and the claimant. He said that there was nothing in the insured’s appearance, speech, or behaviour that morning that caused him to question her ability to drive safely on that occasion. He had no reason to think or believe that she was affected by drugs. He thought that she had been functioning completely normally while she was at his house. Therefore, he did not think twice about getting in the car with her. He was aware that the claimant and the insured had been at a party the night before but did not discuss it in detail.
He says that when he realised that the car was heading towards the grass on the left of the road, imminently before the accident, he knew something was wrong, so he yelled at the insured. The insured did not respond. He looked over at the insured from the back seat and said that she appeared to be asleep. She was snoring and her hands were in her lap. He tried to wake her. He leant over and tried to grab the steering wheel from the back but could not pull it hard enough to change the direction. He said they were going fast at this stage.
He says that he was shocked to learn later that the insured had drugs in her system that day. He said he had no idea that it was the case. There was absolutely nothing in her behaviour, her appearance or her speech that indicated to him that she was in any way affected by drugs that morning. If there had been, he would not have agreed to go in the car in the first place. He said that he was only going in the car for a ride. He said that he did not need to be there, and he would not have got in the car if he thought that the insured was affected by drugs.

Submissions

Originally the matter was to be the subject of an oral hearing on 17 June 2022, however, I was advised on that day, that the claimant was content with the matter to be dealt with on the papers.

Claimant’s submissions

Her contention is that the accident was caused by a sudden and unexpected loss of control, which the claimant could not have foreseen, given how normally the driver had been driving in all previous journeys that same day. She submits that her version is corroborated by the evidence of the rear seat passenger, Jay Condran. She submits that the facts are radically different to the extreme case of Mackenzie v The Nominal Defendant [2005] NSWCA 180; 43 MVR 315 (Mackenzie) to which the insurer has referred.
The claimant refers to the insured driver’s blood test result which was positive for methamphetamine. The police pharmacologist certificate stated that the insured driver’s blood samples contained blood amphetamine 0.03 mg, blood methamphetamine 0.3 mg. The pharmacologist concluded that “I am of the opinion that at the time that the accused was under the influence of the “rebound sedation of methylamphetamine withdrawal”.
She says that she was not to know and had no reason to suspect that the insured’s ability to drive at the time of the accident was impaired by drugs.
The accident had occurred after midday on 17 March 2019. The insured had not been drinking the night before and she had not consumed any alcohol stating she had only had a small amount of ICE. The insured had told police that she had not taken any drugs after 9pm or 10pm the night before, and that it was only a small quantity.
She points to the fact that she had been able to take two journeys prior to the subject accident and had been able to carry out the activities during the day without difficulty. She was able to function normally the next morning. When asked by police whether she had felt impaired in her ability to drive a motor vehicle she said that she had felt fine. The claimant has no independent recollection of the accident herself. She was asleep at the time. She refers to the fact that Jay Condran in his statement says that the insured was driving fine and then the vehicle started to leave the road.
She says that she had no reason to believe the insured’s ability to drive was impaired by the small amount of the drug ICE the night before. The insured was able to get up early the next morning, drive to the shops, buy breakfast, cook breakfast, and make other journeys in the morning. She refuted the assertion that the cigarette the insured driver says was passed to her by the claimant was laced with some substance which “drugged” the insured driver.
She says in these circumstances it cannot be that she is 80% to blame for the accident. If it were appropriate to make some finding of contributory negligence, this would not exceed 25%.
She claims that “having regard to the nature of the issues raised and the amount of work involved, that she seeks a special costs order pursuant to s 8.10(4) of the Act. She makes no further submission in support of this claim and does not provide any material to substantiate the legal costs incurred.

Insurer’s Submissions

The insurer says that the claimant’s submission ignores the findings of the police pharmacologist and the observations of Senior Constable Jade Redman. It is accepted that the insured felt okay to drive, but that is not the relevant test, and it does not obviate the claimant of her responsibility for the accident as a reasonable sober driver would not have authorised the use of their vehicle.
It submits that a reasonable person in the position of the claimant would not have allowed the claimant to drive the vehicle in circumstances where:
(a)    she had been given ICE the night before;
(b)    she was aware that the insured driver had only had about one (1) to two (2) hours sleep;
(c)    that she had been in the company of the insured driver for many hours;
(d)    she was a user of ICE herself and aware of what occurs when the user is coming down from the drugs, and
(e)    she ought to have observed that the insured driver was slurring her speech, had bloodshot eyes, and was falling asleep before entering the vehicle.
The authorisation of the insured driver to drive her vehicle in circumstances where she knew that she was impaired by ICE and indeed gave the ICE to the driver, renders her culpable.
The claimant’s suggestion that the insured driver drove well up until the accident does not make the claimant less responsible, given the finding that the pharmacologist made about the sedative effect of the withdrawal from ICE. The insured driver falling asleep is certainly foreseeable given the lack of sleep and the impact of withdrawal of amphetamines.
The insurer accepts that the contributory negligence would be less than 61% if the claimant had not authorised the use of her own vehicle and given the keys to her cousin. However, in the circumstances, the owner of the vehicle authorising the use of her vehicle when she was aware that the insured driver had taken ICE the night before and is such that it conforms with the circumstances of cases that give rise to the standard of no duty as set out in Joslyn v Berryman. And accordingly, the contribution from the claimant would be in excess of 61%.

Reasons

Pursuant to s 3.38(2)(b) of the Motor Accidents Injuries Act 2017 (NSW) (the MAI Act), a finding of contributory negligence must be made where the claimant, not being a minor at the time of the motor accident, was a voluntary passenger in the motor vehicle and the driver’s ability to drive was impaired as a consequence of the consumption of alcohol or any other drug, and the injured person was aware or ought to have been aware of the impairment, unless, in the circumstances of the case, the injured person could not reasonably be expected to decline to become a passenger in the motor vehicle. I am satisfied that the claimant knew that the insured was impaired as a consequence of the consumption of ICE. As a user of ICE herself, I infer that she knew well the effects of homeostatic reaction (in this case, rebound sedation) of stimulant drug use should reasonably have understood this to be a likely impairment the insured suffered by reason of intoxication. Accordingly, I am required by the statute to make a finding of contributory negligence in the circumstances of this case.
The question is by which percentage is it just and equitable that I do so: see
s 3.38(2)(b) and s 3.38(4) of the MAI Act. That description of contributory negligence reflects the common law position that the claimant’s lack of care must contribute to the occurrence of the injury or the nature or extent of it: Astley v Austrust Ltd [1999] HCA 6; 197 CLR 1 at [21], citing Nance v British Columbia Electric Railway Co Ltd [1951] AC 601 at 611 with approval.

The MAI Act provides that the Regulations may prescribe the extent by which contributory negligence works to reduce statutory benefits in certain circumstances.
I have had regard to the Regulations, and they do not prescribe such, at the time of my decision.
The statute does not require consideration merely of the available objective evidence to the exclusion of the observations and knowledge of the claimant and any other credible witness. All the information either known to the claimant or that which she should reasonably have ascertained must be considered. The error identified in Joslyn v Berryman [2003] 214 CLR 552, was the failure to consider the knowledge the plaintiff had, or should have had, of the defendant’s previous drinking and other behaviour. By confining consideration to the judgement made by the plaintiff at the point when the defendant began to drive, Joslyn limited the enquiry to subjective matters. Of course, if there was nothing else which the plaintiff ought to have known; that would have been the end of the enquiry. But in Joslyn, like here, there was a great deal more that the claimant knew and if she herself had been sober, ought to have known, with respect to the insured’s condition.
In this case, I have considered the evidence of the witnesses that I have set out above. Even though the claimant knew there had been some hours between when the claimant had known the insured driver to consume what is said to be a relevantly small amount of methamphetamines, I am satisfied that she ought reasonably to have known, and, indeed should have understood that the use of such stimulant, did have the homeostatic sedative response, which the pharmacologist concluded the insured driver had suffered from at the time of the accident. The claimant was not a person of limited experience with respect to such matters, and, accordingly, her judgement was sufficient to justify the conclusion that she is contributory negligent, despite the prescription in the statute. Even though the insured driver’s behaviour was, by the accounts of the voluntary passengers, not such that it would cause a reasonable person concern with respect to their ability to drive the vehicle, the claimant’s knowledge of the sedative effects of methamphetamines is an important consideration which cannot be ignored.
The test as posed by McHugh J in Joslyn at [38] said:
“Hence, the issue is not whether a reasonable person in the intoxicated passenger’s condition – if there could be such a person and would realise that the risk of injury in accepting the lift. It is whether an ordinary reasonable person – a sober person – would have foreseen that accepting a lift from the intoxicated driver was exposing him or her to a risk of injury by reason of the driver’s intoxication. If a reasonable person would know that he or she was exposed to a risk of injury in accepting a lift from an intoxicated driver, an intoxicated passenger, who was sober enough to enter the car voluntarily, is guilty of contributory negligence. The relevant conduct is accepting a lift from a person whose driving capacity is known or could reasonably be found to be impaired by reason of intoxication.”
As I have set out above, the claimant submits 25% contributory negligence is appropriate which is to be contrasted with 80% as submitted by the insurer.
The apportionment exercise in s 3.38(4) of the MAI Act is a discretionary one. Unlike the situation under the Motor Accidents Compensation Act 1999 (NSW) (MAC Act),
s 138, which was the subject of discussion in Boral Bricks Pty Ltd v Cosmidis (No 2) [2014] NSWCA 139 (see, in particular, [84]-[85]), the Act was enacted later than the Civil Liability Act 2002 (NSW) (CL Act), such that s 5R of the CL Act should be taken as subject to s 3.38(3) of the Act. For this reason, caution is necessary with respect to the authorities which pre-date the Act. In particular, the change of emphasis which was said to have arisen from the enactment of the CL Act and which raised doubt as to the emphasis in past cases placed on the capacity of a motor vehicle to cause far greater damage, when compared with the capacity of a pedestrian to cause damage has arguably undergone a subtle change. The prevailing requirement emerging from s 3.38 (in particular, as derived from the nature of the role of the Dispute Resolution Service in s 3.38(3)(c)) is that I apportion liability according to what I consider and reason to be just and equitable in the circumstances of the case.
To rely too heavily upon cases which have been decided under the regime provided by the MAC Act would work to elide causation and culpability. Culpability is the measure of departure from an appropriate standard of care and may be viewed separately from the causal link between carelessness and harm of which s 5R of the CL Act has been construed to speak. The breach by a driver is not of a duty owed to herself or himself, but of a duty of care owed to each of her/his passengers and to other road users. An apportionment which is “just and equitable” requires the weighing of the culpability of each claimant as against that of the negligent insured driver and an assessment of the contribution of the lack of care of each to the damage caused. The range within which the resultant apportionment lies may, in a particular case, be quite broad and is essentially fact driven.
The approach in Podrebersek therefore remains relevant, notwithstanding the changed legislative landscape: see Joslyn per Hayne J [157] and Mackenzie per Giles JA at [62]. Section 3.38 of the MAI Act does not purport to impinge on the obligation to have regard to the injured person’s share in the responsibility for the damage; it should not be read as an exception to s 9(1) Law Reform (Miscellaneous Provisions) Act 1965 (NSW) to which it is made subject by s 3.38 of the MAI Act.
Under the newly enacted statutory regime, the claimant’s and the insured driver’s shares in the responsibility for the injury occasioned are a mandatory factor in considering a “just and equitable” apportionment. The legislative decision to maintain the requirement of just and equitable determination renders the effect of the assessment under s 5R of the CL Act subject to the power to consider other factors relevant to the “just and equitable” test. What I must do, therefore, is balance the actions of the claimant and the insured and their relative culpability for the damage. An assessment of the culpability of a plaintiff and a defendant, for the purposes of apportionment, requires a consideration of the relative importance of the conduct of each party in causing the damage. In Wynbergen v Hoyts Corporation Pty Ltd [1997] HCA 52; (1997) 72 ALJR 65 at 68, Hayne J identified the following factors:
(a)    there must be a comparison of the degree to which each part has departed from what is reasonable;
(b)    regard must be had to the relative importance of the acts of the parties in causing the damage, and
(c)    the whole conduct of each negligent party in relation to the circumstances of the accident must be subjected to comparative examination.
Further, at common law and under the CL Act, contributory negligence is a defence. Under the Act, in this statutory context, it is, by virtue of the operation of s 3.38 of the MAI Act, a proviso or qualification on ongoing payment of statutory benefits, to be objectively determined. In Vines v Djordjevitch (1955) 91 CLR 512 at 519-520, the High Court provided that where a statute provides:
“an … exclusion which assumes the existence of the general or primary grounds from which the liability or right arises but denies the right or liability in a particular case by reason of additional or special facts, then it is evident that such an enactment supplies considerations of substance for placing the burden of proof on the party seeking to rely upon the additional or special matter …”
As it is the insurer which wishes to rely upon the existence of the condition of exclusion under s 3.28(1)(a) of the MAI Act, this authority would appear to render incumbent upon it, the legal burden of persuading or proving that proviso is satisfied. See also Chugg v Pacific Dunlop Ltd [1990] HCA 41; 170 CLR 249 at 257. Cross on Evidence describes the legal burden as 'the obligation of a party to meet the requirement of a rule of law that a fact in issue must be proved (or disproved) by a preponderance of the evidence": JD Heydon, Cross on Evidence (Lexis Nexis Butterworths, 9th ed, 2013) [7010].
The insurer’s reliance on Mackenzie to attribute almost complete liability to the claimant requires some consideration. Mackenzie and the insured Brown were heavily intoxicated at the time of the incident the subject of the proceeding. Mackenzie was found to have known that the insured was unlicensed, inexperienced, and wholly unfit to be allowed to ride Mackenzie’s motorcycle and that he was severely intoxicated. Nevertheless, Mackenzie allowed the insured to ride the Harley Davidson motorcycle with Mackenzie as his pillion passenger. The decision in that case was premised on the plaintiff having invited a friend who had no licence and whom he believed to be “immature and irresponsible”, to drive the motorcycle. The plaintiff said that he would not “in his right mind” have permitted him to drive the motorcycle: at [26]. The insured’s blood alcohol level was estimated at 0.187% at the time of the accident. The plaintiff's blood alcohol level was estimated at 0.25%. The trial judge fixed the plaintiff's culpability at 100%. In considering whether the appeal court should interfere with that finding, Giles JA (with whom Stein AJA and Gzell J agreed) stated at [101]:
“In reconsidering the reduction of the passenger's damages in Berryman v Joslyn [2003] HCA 34; 214 CLR 552] a reduction of 60% was found, and in Williams v Government Insurance Office (NSW) a reduction of 80% was upheld. The cases turn on their own facts. I have gone to a number of other cases of intoxicated passengers of intoxicated drivers, and the assessments vary widely. It is necessary to make an assessment on the facts of this case.”
The Court found error in the process of assessment and concluded that a just and equitable reduction was 80%: at [112].
At the time at which the insured driver in this case caused the accident, she lost consciousness. In that sense, she must be responsible for the accident as she was not in control of the vehicle. This is indeed a contribution which, in most circumstances would constitute the greater contribution to the accident. I am not inclined to accept the assertion made by the insured, that the claimant was responsible for her falling asleep, as is suggested by inference, by virtue of the claimant having laced the cigarette she provided. This inference is supported by nothing more than mere conjecture and is denied by the claimant. It is insufficiently probative for me to take it into account.
Most certainly losing consciousness is the greater contribution to the occurrence of the accident. The contribution of the claimant for what occurred is, therefore, not as great as 100%, however, I do not believe that in the circumstances as they were, given particularly that the claimant knew of the sedative effects of methamphetamine and the fact that her cousin had only had such a small amount of sleep, and that she herself had fallen asleep at the time of the accident, means that she is only partially to blame. I consider that her culpability for the damage would mean that an apportionment to her would be greater than 25%.
The claimant had already, on earlier occasions, observed her cousin to drive and carry out the tasks that she had undertaken that morning without any difficulty. The claimant was, more intoxicated than the insured driver, however, this does not entirely diminish her observation (supported also by that of Jay Condran) that the insured exhibited minimal signs of intoxication throughout the morning.
I have already taken into account that the claimant knew the sedative effects of methamphetamines and she herself was growing tired at the time of the accident, and that she knew, or ought to reasonably have known, that these effects would be potentially informing the insured driver’s ability to control the vehicle at or about the time of the accident. I consider that this ought to have been considered by the claimant, to have been impaired her cousin’s ability to drive, as she had knowledge of consumption of drugs the evening before. While she would not have considered her experience, which was one of a more highly intoxicated person, to be replicated in the insured, due to the difference in consumption of substances, nonetheless, a sober person taking reasonable care for their own safety would not discount the possibility of a rebound sedative affect as problematic for a person in control of a vehicle on the morning following the consumption of methamphetamines the night before.
I have also considered the fact that the evidence would suggest that the claimant had, in the circumstances as they were, limited opportunities to decline travel with the insured, by virtue of the fact that she had been asked to leave on a number of occasions, the various residences she attended due to her alleged behaviour at the time. There does not seem to be a dispute between the parties that the claimant’s behaviour was causing incident with the company she was keeping that morning. Although this is attributable to her conduct, no doubt induced, whether in part or otherwise, by her use of substances. In doing so, I have not discounted the fact that the vehicle the insured was driving was the claimants and that she had permitted the insured to use it despite the knowledge that I have herein found her to hold.
On balance, these facts do not support a finding equivalent to that found by the Court of Appeal in Mackenzie, however, her culpability is greater than 50%. In the circumstances of this case, I consider that 60% contributory negligence is appropriate.
For these reasons, the insurer is entitled to reduce the claimant’s entitlement to statutory benefits by 60%, but not cease them entirely, as the claimant was not “mostly at fault”.

Costs and disbursements

There is a dispute between Susan Whitby and the insurer in respect to recovery of legal costs under section 8.8 of the MAI Act.
The claimant submits she is entitled to an award of costs under s 8.10 of the MAI Act but provides no substantive reasons or evidence to support the incurring of costs. In my view, while the facts in this case had the effect that the determination of the miscellaneous matters was somewhat elusive, it is not an exceptional case in the context of the statutory regime. In addition, in the absence of evidence, I am unable to make an assessment of the "exceptional" costs as I am required to do under the statute.
I am satisfied that the claimant is entitled to the payment of legal costs in accordance with the statutory scale for miscellaneous claims disputes matters Schedule 3(d), (e) and (n), and I allow costs in the sum of $1,826 inclusive of GST, for each matter, totalling $5,478.

Conclusion

My determination of the Miscellaneous Claim is as follows:

For the purposes of s 3.11 the motor accident was caused by the fault of another person.
For the purposes of ss 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person.
For the purposes of s 3.38 the insurer is entitled to reduce the statutory benefits payable in respect of the motor accident by 60%.
Effective Date: This determination takes effect on 17 March 2019.
Legal Costs: The amount of the claimant’s costs assessed in accordance with the Motor Accident Injuries Regulation 2017 is $5,478 inclusive of GST.

Legislation

In making my decision I have considered the following legislation and guidelines:
• the MAI Act;
• Motor Accident Injuries Regulation 2017;
• CL Act;
*Law Reform (Miscellaneous Provisions) Act 1965 (NSW)

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established