Williams v Insurance Australia Limited t/as NRMA Insurance
[2022] NSWPIC 243
•29 March 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Williams v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 243 |
| CLAIMANT: | Warren Williams |
| INSURER: | Insurance Australia Limited t/as NRMA Insurance |
| MEMBER: | Terence Stern |
| DATE OF DECISION: | 29 March 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Cessation of statutory benefits; sections 3.11, 3.28 and 3.36(4) of the Motor Accident Injuries Act 2017 (MAI Act); no-fault accident; section 5.1 MAI Act; Claimant alleged he attempted to avoid two deer; balance of probabilities; Held- the Claimants account should be accepted; Sdrolias v Allianz Australia Insurance Ltd; costs; “exceptional circumstances”; Masters & Cheyne; Martyn & Martyn; Plaintiff M174/2016 v Minister for Immigration and Border Protection; BVZ16 v Minister for Immigration and Border Protection; AAI Ltd trading as GIO v Moon; finding of “exceptional circumstances”; section 8.10(4) of the MAI Act. |
| DETERMINATIONS MADE: | 1. For the purposes of section 3.28 or 3.36 the motor accident was not caused mostly by the fault of the injured person 2. Effective Date: This determination takes effect on 29 March 2022. 3. Legal Costs: The amount of the Claimant’s costs assessed in accordance with the Motor Accident Injuries Act s.10 (4) is $3,500.00 plus GST giving $3,850.00. |
Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
This determination relates to miscellaneous claim which is a reviewable decision under Schedule 2 (3) (d) (e) of the Act about cessation of statutory benefits pursuant to sections 3.11 and 3.28 of the Act.
BACKGROUND
There is a dispute between Warren David Williams, “the claimant” and the insurer with respect to cessation of statutory benefits pursuant to s 3.11 and 3.28 of the Act.
The claimant was injured in a road accident on 5 March 2021 when, on his allegation, he swerved to avoid deer that suddenly ran onto the road. The vehicle rolled and the claimant sustained serious injury.
THE FACTUAL DISPUTE
The claimant stated to Police who interviewed him on 12 May 2021 that there was a vehicle in front of him that ‘spooked’ two deer which then ran onto the road in front of his vehicle. The claimant attempted to avoid the deer and lost control of his vehicle causing it to veer onto the median strip and then to roll.
The insurer submits that this was not a no-fault accident pursuant to s 5.1 of the Act, rather an accident in which was caused by the act or omission of the driver/claimant in the management and control of the vehicle.
The insurer also submits there was no mention of deer on any prior occasion including to the ambulance officers or the people in Gosford Hospital whether in the Emergency Department or after admission.
THE EVIDENCE
I briefly summarise the evidence.
The Police Report
The Police Report attaches the claimant’s handwritten statement which reads:
‘There were two deer of (read “off”) the shoulder to the left as I headed northbound on the motorway. The other car went past and must have shocked the deer. The deer ran off the shoulder on the motorway to cross the road. The deer were 10 metres apart from each other. The one closest to me ran towards me in a diagonal direction. I tried to swerve both at 90kph. I lost control and tried to correct it but my hand fell off the wheel.’
The Ambulance Report
The Ambulance Electronic Medical Record contains the following entry:-
‘o/a police and fire rescue on scene, at single car mva rollover, pt self extracted…..p/t states can’t recall the event or what caused his car to roll over ……’
The Illawarra Shoalhaven Local Health District (i.e. Wollongong Hospital Discharge Referral states:
‘Potential fracture of the superior articular process of C5 involving the right C4/C5 facet joint……a burst compression fracture of a L1 is present.’
In other words, the claimant had fairly significant injuries.
The Discharge Referral states:
‘Warren David Williams was admitted to Wollongong Hospital after injury sustained in a Motor Vehicle accident when involved a single car rollover – estimated 100km/h.’
There is no mention of deer running onto the motorway.
Barringtons Group Australia Pty Ltd – Investigator Report
The insurer has provided and relies upon a Factual report of an investigator – Barringtons of 14 May 2021.
Inika Lees interviewed the claimant on 8 April 2021. He said in answer to question [76]:
‘…..I was driving……there was a car in front of me …..about……a hundred metres in front …..he’s come past and then next minute this deer come running straight at me…..’
In answer to question [77] he said:
‘…..I was on the outside lane and there was a deer. By the time he went past the deer, it was just on the side of the road, it’s come, sort of running across into my lane so I’ve sort of like just went to go around it onto the inside lane and then, ……there was another one next to him. One had antlers and the other one didn’t…..but I’ve kept swerving, kept turning and I just like over, over corrected and then just gone straight up into the, …..centre……median strip which was grass……which is about one point four high which is on a slope with trees in it and I’ve just gone airborne and gone over the top of that. So, I’ve lost control and I’ve gone over the top of that and I’ve just gone airborne and the car’s just flipped, landed on the roof and by that time I’ve been knocked out and……I’ve come to and the car was back on its all fours…..’
In answer to question [164] as to what he told the Police the claimant said:
‘I was a little bit dazed I’m pretty sure. …..I told them…..I’m not sure what happened’.
In a further interview by Inika Lees with the claimant on 6 April 2021 at question 83 she asked:
‘And then as he’s sort of just driving along, you’ve seen a deer come into the slow lane?’
He answered:
‘I think he has gone past and has spooked them. They were, they just take off and run at you or run. They just take off.’
At question [86] she asked:
‘Deer has come running towards you in the slow lane?’
He answered:
‘Yeah.’
At question [88] Ms Lees asked:
‘To go around it in the fast lane?’
He answered:
‘Yep.’
Then she asked at question [89]:
‘But then there was another one in front of you? Is that right?’
He answered:
‘Yes, yes. So, I just kept correcting and then I over corrected.’
She asked the question in [98]:
‘Do you think you applied the brakes or skidded prior to losing control?’
He answered:
‘Yes I did apply the brakes which I um, yeah, I tried to when that second deer I, I noticed…..’
Submissions by the insurer
I briefly summarise the Submissions [R1] by reference to the relevant numbers:
‘[26] Accident caused wholly by fault of the claimant.
[28]The claimant’s version of the accident involving the deer could not be corroborated.
[29]Contemporaneous evidence, the Ambulance Report and the Clinical Records of the hospital indicate that the claimant had no recollection of the cause of the accident. There is no mention of deer being present.
30]The claimant submits that the accident was a ‘no-fault’ accident and he was not negligent or at fault in any way. He relies on AAI Limited v Singh [2019] NSWSC 1300. He asserts that the accident was caused by a deer darting in front of the vehicle he was driving. The insurer disputes this.
[31]Pursuant to s 5.1 of the Act a ‘no-fault motor accident’ is a motor accident not caused by the fault of the owner or driver of any vehicle.
[32]In AAI Limited v Singh [2019] NSWSC 1300, the Plaintiff was injured when a truck he was driving overturned shortly he left dock. The shipping container had been loaded by others. The vehicle rolled because the container had not been properly secured. The was no fault on the part of the Plaintiff or the owner of the vehicle. Fagan J. held that Part 5 of the Act did not apply to accidents where someone – anyone at all – is at fault. Additionally, in single vehicle accidents where no other person is at fault, s 5.2(1) does not operate to deem fault in the injured person.
[33]Submits that s 5.1 of the Act is not satisfied. The accident was not a ‘no-fault’ accident.
[34]The claimant was at fault for failing to safely manoeuvre and control his vehicle.
[35]Refers to Hossain v Mirdha [2015] NSWDC 108 where a Plaintiff who had swerved his vehicle to avoid hitting a dog crossing the road resulting in a collision with a parked truck was held to have been causally implicated in the accident if not the sole or primary cause. The Plaintiff was not entitled to rely upon the blameless accident provisions which then applied.
[36]Refers to ACW v NRMA Insurance Ltd [2019] NSWDRS CA 075 where the Claims Assessor concluded that the claimant saw a fox and swerved to avoid it was not entitled to rely upon the proposition that the accident was a blameless accident.
[37]The claimant performed an act that was the cause of the collision. The claimant’s response to the events on the road was causative and, on the evidence available [38], he lost control due to his act of swerving which caused the vehicle to roll over.’
Submissions by the claimant
I brief summarise the claimant’s submissions. The submission refers to s 3.11(2) and argues that this is a very different test of what is required when considering what represents a “no-fault” accident. The submission then refers to Whitfield v Melenewycz [2016] NSWCA 235 and Hussian v Mirdah [2105] NSWDC 108 and seeks to distinguish them on the basis that they do not relate to a claim for statutory benefits but rather to damages claims.
The submission continues arguing that the relevant decision in relation to statutory benefits is AAI Limited v Singh where they submitted it was specifically held:
‘Part 5 has no bearing upon an injured person’s entitlement to statutory benefits. It provides no basis for them being terminated after 26 weeks.’
The submission continues that the Act provides that an even ‘at-fault’ driver regardless of whether it be a single or multiple vehicle accident is entitled to ongoing statutory benefits provided that he was not more than 61% responsible for the accident.
The submission continues that there is no doubt that the accident was caused by a deer darting in front of the claimant as he was driving his car. This is why the accident occurred. It continues that event if contributory negligence existed it would not reach 61%.
Further, any ‘over correction’ in attempting to avoid hitting the deer was made in the ‘agony of the moment’ and cannot constitute negligence.
The submission then provides me with a copy of a DRS Decision of Assessor Ford in Wheeler v GIO General Limited when the claimant there was injured when he attempted to swerve to avoid a mound of gravel on the roadway in front of him.
Consideration
At para. 33 the insurer submits that s 5.1 of the Act is not satisfied and that the accident is not a ‘no-fault’ accident.
Part 5 of the Act does not apply if the death or injury of the person was caused by an act or omission of the driver even if the act or omission does not constitute fault by the driver in the use or operation of the vehicle [s 5.4 (2) (a) MAI 2017].
The real question is whether or not the claimant was wholly or mostly at fault [s 3.28 (1) (a)].
Further, the question is whether the accident was caused by the negligence of the claimant in that his degree of fault was greater than 61% [s 3.28].
The balance of probabilities
A fundamental question in considering the evidence is whether or not, on the balance of probabilities, the claimant’s account should be accepted.
In Sdrolias, McCallum JA [16] referred to what McDougall J (with whom McColl and Bell JJA agreed) said as to findings on the balance of probabilities:
“… for a tribunal of fact to be satisfied on the balance of probabilities of the existence of a fact, it must feel an actual persuasion of the existence of that fact …
… two schools of thought had been propounded as to the proof of facts, referred to as “the objective probability school” and the “belief school”:
“The former requires simply a mechanistic assessment of the probabilities, and the finding that the balance comes down ‘at least 51 to 49 that such-and-such has taken place or will do so’ …”
McCallum J continued [17]:
“McDougall J expressed the view at [52] that the approach that should be adopted in the resolution of disputed questions of fact is a combination of the two approaches …”
Her Honour referred at [17] to what Hodgson J wrote extra-curially:
“… the two approaches could be combined … ‘if … the tribunal … believes that an event has occurred, with the strength of that belief being at least such as would be indicated by a probability in excess of 50%, then the civil onus is discharged’. Thus, his Honour adhered to the requirement of a feeling of actual persuasion. But he made it plain that, once the feeling has been obtained, it is sufficient for it to lead to the conclusion that the event in question is more likely than not to have occurred, with ‘a probability in excess of 50%’.”
Onus of proof of contributory negligence
Pursuant to s 5E of the Civil Liability Act 2002 the party alleging contributory negligence has the onus of proof that the claimant contributed to the accident, the cause of the accident in this situation, to a percentage of it at least 61%.
The claimant has alleged expressly the facts which caused him to swerve and his car to roll and he provided a statement to NSW Police on 3 May 2021.
The insurer, on the other hand, has referred only to the absence of any reference to deer immediately after the accident in the Ambulance Report or in the Emergency Department of Wollongong Hospital.
The submission by the insurer requires me to infer that the claimant made up the story of the deer in order to obtain compensation or at least to secure his rights to continuing statutory benefits under the Act. This would amount to an inference of unlawful behaviour.
I am satisfied, on the balance of probabilities, of the existence of a fact namely that, the two deer were spooked and that one of them ran across the freeway towards the claimant. One of the two deer had antlers, a fact specifically recollected by the claimant, that it had happened suddenly and must have posed a danger to the claimant and caused him to attempt to avoid the animals as a result of which he lost control of his vehicle which rolled. I feel an actual persuasion of the existence of these facts. [Sdrolias v Allianz Australia Insurance Ltd [2022] NSWCA 20.
The claimant had a potentially very serious accident. According to him, he was knocked out and when he came to the car was back on its all fours [answer to question 77 of Inika Lees].
His injuries were serious and potentially very serious.
I do not believe that one can conclude that the insurer has discharged by establishing that the claimant was wholly at fault or partly at fault to a level greater than 61%.
Resolution
In this case there are two diametrically opposed versions of the facts. On the one hand, the claimant says that two deer, one with antlers and presumably a danger to any vehicle that collided with them were spooked and ran onto the freeway and the claimant took action to avoid them causing his vehicle to roll. On the other hand, the insurer says that that story is, in effect, made up and that the claimant lost control of his vehicle causing it to roll.
The claimant conceded that at one stage he took his hands off the steering wheel or, at least his hands were not on the steering wheel but taken in the context of mounting the median strip, on the balance of probabilities, this is not causally relevant in establishing fault.
I have accepted that the claimant gave his account of the deer to the Police and to the Investigator and I have accepted his version as being correct on the balance of probabilities.
I am, however, not persuaded that if such action constituted contributory negligence that it amounted to 61% or more [see s 3.28(2) of the Act].
Accordingly, I find that the claimant was not wholly at fault with respect to the cause of the accident.
COSTS AND DISBURSEMENTS
Both parties have made submissions as to whether or not exceptional circumstances apply. The claimant’s solicitor has made submissions in respect of the amount of costs.
Claimant’s submissions
I briefly summarise the submissions made 14 March 2022.
The current application involves two Miscellaneous Claims Assessment matters pursuant to Clause 3 of Schedule 2 of the Act:
(i)pursuant to Clause 3 (d) whether for the purposes of s 3.11 – i.e. the cessation of weekly payments to injured persons whether the claimant was mostly at fault in causing the accident;
(ii)pursuant to Clause (e) whether for the purposes of s 3.11 – i.e. the cessation of statutory payments for treatment and care the claimant was mostly at fault in causing the collision.
The claimant’s submission contends that these are two completely separate matters and pursuant to Regulation 3 (1) of the Regulations the costs for legal services are regulated between 16 monetary units and a maximum of 60 monetary units per claim.
It is submitted that it would be appropriate to award no less than the maximum of 60 monetary units i.e. $6,000.00 per claim.
Further, it is submitted alternatively that there are exceptional circumstances permitting an award in excess of the regulations.
The claimant’s solicitor then refers to AAI Limited t/as GIO v Moon as authority for the proposition that it is lawful to award costs beyond the amount specified in the Regulations where exceptional circumstances exist justifying the payment of such costs – s 8.10(4)(b).
The submission continues that the current assessment was exceptional in that it involved:
(a)consideration of not only Police records but a full investigation report commissioned by the insurer;
(b)an analysis of previous decisions;
(c)further submissions;
(d) (i) that Part 5 relates to a claim for damages but not statutory benefits;
(ii)addressing the various decisions relied upon by the insurer.
The claimant continues at (e) but that paragraph is argumentative and is not directly relevant to exceptional circumstances.
The insurer required the Police to produce documents which had to be considered.
The Police notebook was relied upon.
The insurer referred to the Police as considering the claimant was at fault. This statement was incorrect and required the claimant to lodge further submissions.
Such additional work by the claimant’s lawyers resulted in a statement by the insurer’s investigator that the Police did not discount that deer may have been on the roadway.
Additional work and further submissions were required as a result of the insurer’s incorrect statement of fact.
Junior counsel was briefed to prepare the claimant’s submissions including the submissions on costs.
It was reasonable to brief junior counsel as the law involving single vehicle accidents is complex and different considerations are involved.
Further, it is submitted that the insurer should actually be awarded the claimant’s costs on a party/party basis including counsel’s fees.
The insurer’s submissions on costs of 16 March 2022
The insurer made submissions in reply as follows:
4-5Disputes that there were two miscellaneous claims assessment matters under Schedule 2. The PIC Application was originally lodged pursuant to Schedule 2 Clause 3 (e) as indicated in the claimant’s submissions of 23 November 2021 and confirmed in the Teleconference Report of 3 February 2022.
7The insurer does not agree that the matters referred to by the claimant’s solicitor constituted exceptional circumstances.
8There was:
(a) only one Teleconference;
(b)an Assessment Conference was not required;
(c)there was no need for the claimant to provide statements from any persons such as witnesses;
(d)there was no expert evidence;
(e)the retention of junior counsel is not an exceptional circumstance.
10The insurer submitted that the value of a monetary unit is $106.89 and the fee for a single miscellaneous claims assessment matter is $1,710.00 and that the maximum allowed should be $1,710.00.
CONSIDERATION
The 2017 Act states:
‘8.3Regulations fixing maximum costs etc recoverable by Australian legal practitioners
(3) An Australian legal practitioner is not entitled to be paid or recover for a legal services or other matter an amount that exceeds any maximum costs fixed for the service or matter by the regulations under this section. An Australian legal practitioner is not entitled to be paid or recover any amount for a legal service or other matter of a particular kind if the regulations declare that no costs are payable for a service or other matter of that kind.
(4) An Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the claimant or the insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Commission.’
‘8.10Recovery of costs and expenses in relation to claims for statutory benefits
(3) A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4) The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that –‘
(a) the claimant is under a legal disability, or
(b)exceptional circumstances exist that justify payment of legal costs incurred by the claimant.’
The Application for legal costs has been made on the basis that there have been ‘exceptional circumstances’ and an award of additional legal costs is justified in the circumstances.
In Masters & Cheyne [2016] FamCFC 255 AT [42] Murphy J said:
‘Exceptional circumstances has…..been interpreted…..in…..different contexts [citation omitted] in ordinary usage…..’exceptional’ means ‘unusual or out of the ordinary’ [citation omitted] or ‘unusual or extraordinary’ [citation omitted]…..
We must construe ‘exceptional’ as an ordinary English adjective and not as a term of art. It describes the circumstances which is such is to form an exception, which is out of the ordinary course, or is unusual, or special, or uncommon. To be exceptional a circumstance need not be unique or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered [citation omitted].
As Watts J pointed out the Full Court……applied that statement.’
The Family Court of Australia more recently following the articulation of the meaning of the phrase ‘exceptional circumstances’ in Martyn & Martyn [2020] FamCA 526.
In a more recent discussion in the High Court of Australia in Plaintiff M174/2016 v Minister for Immigration and Border Protection [2018] HCA 16 Gageler, Keane and Nettle JJ considered the phrase ‘exceptional circumstances’ in section 473DC of the Migration Act at 229 [30] their honours said:
‘Quite what will amount to exceptional circumstances is inherently capable of exhaustive statement. The word ‘exceptional’, in such a context, is not a term or art but ‘an ordinary, familiar English adjective’: ‘[t]o be exceptional a circumstance need not be unique, or unprecedented, or very rare; but it cannot be one that is regularly, or routinely, or normally encountered.’
In another case BVZ16 v Minister for Immigration and Border Protection [2017] FCA 958 White J discussed considerations that the Authority had to take into account when determining whether it was satisfied that ‘exceptional circumstances’ exists at [41]:
‘Generally, consideration of whether exceptional circumstances exist will require consideration of all the relevant circumstances. That is because even though no one factor may be exceptional, in combination the circumstances may be such as reasonably to be regarded as exceptional: Griffiths v The Queen (1989) 167 CLR 372 at 379 (Brennan and Dawson JJ); Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [23]-[26] (Rares J); Hasim v Attorney-Genral of the Commonwealth [2013) FCA 1433, (2013) 218 FCR 25 at [65] (Greenwood J).’
AAI Ltd trading as GIO v Moon [2020] NSWCA 714 (a decision of Wright J) also involved a Miscellaneous Dispute decision as to whether the accident was caused wholly or mostly by the fault of the claimant. In that case, the DRS Assessor found that in the particular circumstances of the case the claimant should be permitted to recover the reasonable and necessary legal costs incurred by him in respect of the dispute beyond those permitted in the Regulation.
Wright J said at [99] that other cases could be envisaged that were exceptional because they involved an unusual degree of factual or legal complexity or for some other reason and this required the incurring of more substantial legal costs via the claimant and it was consistent with the objects of the Act to permit the amount of legal costs recoverable in such exceptional cases to exceed the amount fixed by Regulation where that was reasonably required to prevent injustice, hardship or other relevant adverse consequences.
Wright J continued [103] that the legal costs that a Claimant for statutory benefits was entitled to recover and be paid under s 8.10 were the ‘reasonable and necessary’ legal costs ‘incurred by the claimant’ in connection with the claim.
Further [105], whether legal costs were reasonable and necessary was a matter that depended on the circumstances of each case.
Legal costs are incurred within the context of s 8.10 when the claimant has become liable to pay costs for legal services.
Further, at [111[ where the claimant has an actual liability to pay legal costs for services provided by a lawyer and the lawyer who provided the services has a corresponding entitlement to payment the relevant costs have been ‘incurred’.
Were there ‘exceptional circumstances’?
i.first, the retention of junior counsel was not an ‘exceptional circumstances’. There are many occasions in which counsel are involved in miscellaneous disputes such as this;
ii.there were no independent witnesses;
iii.the facts as to how the accident happened required careful consideration;
iv.most liability disputes as to the question of who was wholly or mostly at fault do have independent witnesses or other facts which makes the resolution of the matter much more readily determinable;
v.this case involved diametrically opposed accounts;
vi.the insurer did qualify an Investigator who provided transcript of two interrogations of the claimant. Further there was a substantial body of material to consider.
vii.the claimant did sustain significant injuries.
When all of the factors are taken into account, I consider that this is a case where the circumstances are exceptional and s 8.10(4) applies.
It was submitted that there were two separate miscellaneous disputes for consideration and that there should therefore be two separate lots of costs awarded. In fact, there was only dispute in substance and that was whether or not the claimant was to be continued to be entitled to continue to receive statutory benefits after 26 weeks in circumstances in which the insurer alleged that the claimant was wholly or mostly at fault in circumstances where his alleged contribution to the cause of the accident was greater than 61%.
I assess costs of $3,500.00 plus GST in all including what I consider to be a fair and reasonable amount for the involvement of counsel. Counsel’s work included attendance at the Teleconference of 17 November 2021, and preparation of the submissions.
Terence Stern
Member (Motor Accidents Division)
Personal Injury Commission
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