Yankovich v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Yankovich v AAI Limited t/as GIO [2022] NSWPIC 137
CLAIMANT:	Elissa Yankovich
INSURER:	AAI Limited t/as GIO
MEMBER:	Belinda Cassidy
DATE OF DECISION:	22 March 2022
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); claim for statutory benefits; dispute about whether claimant wholly or mostly at fault and whether benefits should cease under sections 3.11 and 3.28 of the MAI Act; claimant was a learner motorcyclist riding on an unfamiliar road which was difficult to navigate due to bends in the road and alternating sunshine and shade; claimant had motorcycle helmet with sun visor which she was continually adjusting; father riding ahead of her and leading the way to show her where /how to ride; claimant lost control on a bend in the road and collided with a tree sustaining serious injuries; Held- claimant wholly at fault; sun and trees were part of the landscape and did not cause the accident; only cause of the accident was claimant’s inexperience in riding to the conditions of sun and shadows on a difficult stretch of unfamiliar roadway; issues of ‘motor accident’ and section 1.4 of the MAI Act considered; observations as to the approach to ‘wholly or mostly’ at fault cases in single vehicle accidents where no other person and no thing caused the accident; costs assessed for two disputes in accordance with the regulated fees.
DETERMINATIONS MADE:	In accordance with Division 7.6 of the Motor Accident Injuries Act2017, the Commission’s assessment is: 1. For the purposes of section 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly by the fault of the claimant. 2. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly by the fault of the claimant. 3. The amount of the claimant’s costs is assessed at $3,762.00 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

Elissa Yankovich was involved in an accident on 18 November 2020 on the road between Oberon and Bathurst in the Central West of New South Wales. Ms Yankovich was riding her motorcycle when it ran off the road into a tree causing Ms Yankovich serious injuries.
On or about 23 February 2021, Ms Yankovich made a claim against GIO, the third-party insurer of her own vehicle.
A dispute has arisen in connection with the claim. The claimant has referred that dispute to the Personal Injury Commission (the Commission) and it has been allocated to me for determination.
I have held one teleconference in the matter and after discussions with the parties determined it was appropriate to decide the dispute on the papers without a formal hearing.

LEGISLATIVE BACKGROUND AND INSURER DECISION MAKING

Statutory framework

The claim that is before me is a claim for statutory benefits under Part 3 of the Motor Accident Injuries Act 2017 (the MAI Act).
Under section 3.1 of the MAI Act, benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident[1].
[1] There are three provisions which prohibit the payment of any statutory benefits, that is where the claimant has a workers compensation claim (s 3.35), where the claimant is the owner or driver of an unregistered vehicle, and they were wholly or mostly at fault (s 3.36) and if the claimant is charged with or convicted of a serious driving offence (s 3.37).
However, pursuant to sections 3.11 (relevant to weekly benefits) and 3.28 (relevant to treatment and care benefits), after 26 weeks from the date of the accident, an injured person is not entitled to statutory benefits if the injured person only has minor injuries (within the definition in section 1.6) or if the injured person was wholly or mostly at fault for causing the accident. In this case there is no dispute that Ms Yankovich sustained very serious (non-minor) injuries.
Schedule 2, clauses 3(d), (e) and (n) provide the Commission with jurisdiction to determine whether the motor accident on 18 November 2020 was caused wholly or mostly by the fault of the claimant and therefore whether GIO can terminate her weekly statutory benefits under section 3.11(1) and (2) her and treatment and care statutory benefits under section 3.28(1) and (2).

Other statutory provisions

The parties have referred in their submissions to two definitions from section 1.4 of the MAI Act as follows:
“fault means negligence or any other tort.”
and
“motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a)     the driving of the vehicle, or
(b)     a collision, or action taken to avoid a collision, with the vehicle, or
(c)     the vehicle’s running out of control, or
(d)     a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”

Insurer’s decisions

In its first liability notice,[2] GIO accepted liability to pay the claimant statutory benefits for the first 26 weeks after the accident (that is up to 19 May 2021). While not explicitly stating it, by accepting liability, the insurer accepts the accident is a motor accident within the definition in section 1.4 of the MAI Act and that it is the relevant insurer under section 3.2.
[2] The first liability notice is document A4 in the claimant’s bundle and is dated 9 July 2021.
In its second liability notice[3] the insurer accepts that the claimant has sustained non-minor injuries but denies any liability for statutory benefits beyond the first 26 weeks. The insurer’s notice is lengthy, and it is not entirely clear whether the insurer is alleging the claimant was wholly at fault or whether she was mostly at fault or both, in the alternative.
[3] This notice is document A5 in the claimant’s bundle and is dated 5 August 2021.
Under the heading “Determination”, the GIO says the claimant is “wholly or mostly at fault for the accident”. But earlier the insurer says the claimant is “wholly at fault” only and earlier still, says the claimant contributed to the accident by:
(a)   failing to control her motorbike;
(b)   failing to take care her own safety, and
(c)   failing to take care to avoid injury.
The claimant sought an internal review of that decision and on 11 October 2021[4] the insurer affirmed its original decision but clarified that it alleged the claimant was wholly at fault and she alone caused the accident.
[4] The internal review decision is document A7 in the claimant’s bundle.

REVIEW OF THE EVIDENCE

Claim form and police documents

In her application for statutory benefits[5], the claimant discloses she was 21 at the time of the accident. She says the accident occurred at 3.40pm and that she: “Hit tree on side of road while travelling [from Oberon to Bathurst]”.
[5] Document R2 in the insurer’s bundle of documents and is signed and dated 23 February 2021.
She says she broke her left radius, left ulna, left femur, left patella and left clavicular bones. She was admitted to hospital for nearly three weeks.
NSW Police attended the scene of the accident and complied a report[6]. Police noted the speed limit was 100 kph, the road was curved, there was a grade, the weather was fine, the surface was sealed and dry and it was daylight. The pre-crash speed of the claimant’s motorcycle was recorded as 70 kph.
[6] Document A3 in the claimant’s bundle of documents. It was created by Senior Constable Simpson of the Oberon Police Station.
The description of the accident provided by the police was as follows:
“A 21 [year] old female learner rider has been travelling north on … heading towards [Bathurst]. She was riding a new GSX Suzuki 125 and this was only her second outing on a public road. Just past the intersection with … the rider has attempted to negotiate a right-hand, downhill sweeping bend. The rider was following her father, the witness in the matter, who was also on a motorbike.
The rider has lost control of her motorbike and has run off the nearside of the road. The left side of the rider and bike have collided with a tree and the rider was thrown off.”
The claimant was not charged with any offence as a result of the accident.

Claimant’s statements

Ms Yankovich’s claim form was lodged late. In support of her late claim, she wrote a lengthy letter dated 28 June 2021[7]. She provides the following description of the accident in the first paragraph of that letter:
[7] Document R5 in the insurer’s bundle.
“On the 18^th of November, I went for my first out of town ride as an L plater on my GSX 125. I ran into a large tree, because the sun was shining directly into my eyes, while I was trying to negotiate a right-hand bend. By the time my eyes adjusted to the bright light flickering through the trees, I was off the tar and onto the dirt on the left-hand side of the road. The road was already turning to the right but with my lack of riding experience and panic, I could not get back into the road and ran into the tree … Then bounced off the tree and landed back on the road, over 6 metres away from the impact, leaving me with concussion.”
The claimant has provided a statement in support of her claim[8]. Ms Yankovich says
[8] The statement is signed but is not dated and is document A1 in the claimant’s bundle.
(a)   She bought the motorbike on 15 August 2020 and obtained her learner permit on 4 November 2020.
(b)   She had ridden the bike around Bathurst after getting her license and, with her father, had ridden out to Perthville[9] and back on a mainly straight stretch of road.
[9] A distance of about 10 kms.
(c)   On 18 November 2020 she and her father left Bathurst in the early afternoon planning to ride to Oberon and back.
(d)   She was wearing a full-face helmet with clear visor and a drop-down tinted visor. As she was riding, she had the sun visor down but as she travelled into shadows caused by the trees, she flicked the visor up and down depending on the lighting, the shadows or the amount of glare. As she did this, she noticed her eyes took time to adjust from sunlight to shadows and back “which momentarily impaired my perception of the road”.
(e)   She was riding between 70-80 kph ahead of her father but that he would sometimes pull her over to explain aspects of riding.
(f)    When they got to Oberon the claimant said she was feeling unwell. She and her father had something to eat and drink. Her father decided they would return but on a road that was quieter and they would take a quicker route home.
(g)   Her father told her that there would be “a lot of shadow flickering” because there were a lot of trees and that on this leg, he would take the lead to show her how to successfully navigate this stretch. She says (at 13) that: “He said that the shadowing also made riding even difficult for him. He said that there were some tight bends ahead, but we would go slowly”.
(h)   The claimant says (at 15) that she has “no memory of the accident” and that the last thing she remembers is the roundabout in Oberon and her father overtaking her to take the lead.
Ms Yankovich further says (at 17):
(a)   that the version in her claim form was her understanding of how the accident happened based on what her father told her after the accident;
(b)   that the version of the accident she gave in the explanation for the late claim was based on what she remembered about the difficulties she had with the sun and the shadows before the accident and what her father told her after the accident, and
(c)   that she was adjusting her tinted visor as she travelled due to the alternating shadow and sunlight. On the way to Oberon the road was straight, she was travelling well below the speed limit and was able to “safely adjust my visor by taking my left-hand off the handlebar.”
At paragraph 18 of her statement the claimant says she returned to the scene of the accident on 19 December 2021 and observed the trees by the side of the road and the shadows and she expressed the view that the accident occurred where there was a left-hand bend into a dip and then a sharp right-hand bend and:
“I do not believe I could have flicked my tinted visor up and down quickly enough to accommodate the rapid change in visibility from bright sunlight to dark shadow and there would not have been enough time event travelling at the speed at which my father says we were travelling for me to take one hand off the handle bars in order to adjust my visor quickly when I was attempting to negotiate a double bend in the roadway at the same time”.
The claimant (at 19) accepts that she was not experienced and that her lack of experience contributed to the accident “but I believe I did not contribute to the accident by anything I did or did not do. I believe I was travelling at a safe speed and I was following the lead of my father”.
The claimant’s father, Mladen Yankovich has also provided a statement[10]. In it he says:
[10] His statement is signed and dated 16 November 2021 and is document A2 in the claimant’s bundle of documents.
(a)   He is in his mid-50s and has been riding motorcycles for 14 years.
(b)   He says (at 4) his daughter got her license before she bought her motorbike but did not ride until after she had the bike.
(c)   She rode around Bathurst and out to Perthville to gain experience.
(d)   He says on the day of the accident he rode behind her out to Oberon and that she was travelling at 70-80 kms and riding safely and carefully.
(e)   When they got to Oberon, Elissa was feeling sick, and they made the decision to head home along a quicker route. He says (at 9):
25.“I explained… that there was a short section of [the] road which was quite difficult to navigate even for me despite my years of experience riding motorcycles. The difficult was that there was a series of bends with a dip in the road and that there were trees close to the road and the position of the sun at that time of day would cause a rider to travel through bright sunshine and dark shadowing making visibility difficult. I said I would ride in front and show her the way through the bends. I asked her to follow close behind me and watch what I was doing.”
Mr Yankovich says (at 12) that it was 3.40pm and that the trees were causing dark shadowing across the road alternating with bright sunshine making it difficult to see because his eyes had to adjust to the change in light. He says he had ridden this section of road many times before. He then says:
(a)   He slowed down to 60-65 kmph and he checked his speedometer.
(b)   He looked behind him as he entered the left-hand bend, and his daughter was 20 meters behind him.
(c)   After checking on her he had to look ahead and negotiate the left-hand bend, dip and swing to the right and seeing the road was difficult because of the sunlight and dark shadows but that:
27.“because of my many years of experience riding motorcycles and because of my experience negotiating this particular stretch of road I knew where to look as I rode through the two bends.”
(a)   As he came out of the right-hand bend, he looked behind him and he said that his daughter appeared to have “missed the right-hand bend and was travelling straight off the roadway”.
While he did not see the impact, he formed the view (at 17) she had left the roadway and collided with a tree. He says (at 19) they were both wearing helmets and that as they entered the “corner section” when he was checking Elissa, he saw her left-hand up to her helmet. He says:
“From my experience, Elissa would not have had time to flick her visor up and down as she passed from bright sunlight to shadow as she negotiated the left-hand and then righthand bends particularly where, as an inexperienced rider, she would have had to take one hand off the handlebars to adjust her visor.”
Mr Yankovich expresses the opinion (at 20) that the accident was caused by the road and environmental conditions together with Elissa’s inexperience. He identifies the road and environmental conditions as:
(a)   The geometry of the road being the left-hand curve, dip and right-hand curve.
(b)   The position of the sun.
(c)   The location of the trees and the shadows on the roadway.
(d)   The combination of sunshine and shadow and the time it takes for vision to adjust to the changes in lighting.
The claimant’s father has provided some photographs one of which shows a road direction and speed advisory sign of 75 kmph and another which shows a curve and side street warning.

SUBMISSIONS

Claimant’s submissions

The claimant’s original submissions[11] commence with a recitation of the facts (paragraphs 1-20). The submissions cite the definition of fault in section 1.4 and the definition of mostly at fault within sections 3.11(2) and 3.28(2) but note that contributory negligence is not defined (paragraphs 22-25).
[11] Document A8 in the claimant’s bundle.
The claimant’s submissions note that the police surmised that the claimant had lost control of her motorcycle but did not investigate how or why. The claimant says there is no evidence she had to take evasive action presumably to avoid a collision with something.
The substantive submissions start under the heading “Was the claimant wholly or mostly at fault in causing the accident?” and argue:
(a) Fault is defined in the MAI Act as “negligence or any other tort” and the tort of negligence requires there to be a duty owed, a breach of that duty and injury caused by that breach. The claimant did not owe herself an actionable duty of care therefore the definition of “fault” does not appear to be relevant to her claim.
(b) Fault is defined in section 5 of the Civil Liability Act 2002 (the CL Act) as a failure to exercise reasonable care and skill. With respect to the claimant that definition is of “negligence”, fault is not mentioned. Sections 5R and 5S of the CL Act apply to the claimant’s claim in so far as contributory negligence is concerned.
(c)   At common law, contributory negligence is not a tort and is not actionable without primary negligence on the part of someone. A person is guilty of contributory negligence when they expose themselves to a risk of injury which might reasonably have been foreseen and avoided and they sustain injury as a result.
(d) Sections 3.11(2) and 3.28(2) “conflate” fault with contributory negligence (because of the phrase “wholly or mostly at fault”) and that fault there means contributory or non-tortious negligence or want of care. “Fault” therefore whether wholly or mostly, means a failure to exercise reasonable care. The claimant in a single vehicle accident would be disentitled to statutory benefits by reason of a failure to exercise reasonable care to the extent that they were responsible by more than 61%.
(e)   Section 3.38 provides for circumstances where a finding of contributory negligence must be made however none of these apply to this claim.
(f) Sections 5R and 5S of the CL Act and common law principles apply in determining whether the claimant caused the accident by her own failure to exercise reasonable care and skill.
(g) The standard of care applicable in the tort of negligence and non-tortious contributory negligence imposed by the CL Act are measured against the objective standard of reasonable conduct and on the basis of what the claimant knew or ought to have known at the time.
(h)   The claimant was young, inexperienced in riding. She was cautioned by her father, was under observation and instruction of her father and reliant upon his guidance.
(i)    The cause of the accident was the claimant’s failure to take the sharp right-hand bend after exiting the left-hand bend and this was due to her inexperience, her lack of familiarity with the road, her difficulty seeing and her ability to deal with the road architecture was beyond her skill and experience.
(j)    The claimant was acting reasonably. She was travelling below the recommended speed and following the line of an experienced rider.
(k)   The claimant has no recollection of the cause of the accident and an accident reconstruction expert would be unable to explain it.
(l)    The claimant’s capacity to safely negotiate the road was limited by her lack of riding experience.

The submissions say (at [48]) that there is no suggestion the claimant’s father was acting as a driving instructor or that he had assumed any legal liability in respect of where they were going and how they would ride. The fact that she chose to listen to her father and accept his guidance is evidence of a reasonable response to the risk of travelling on an unfamiliar road.
The claimant says the insurer bears the onus of proof in satisfying me that the claimant is wholly or mostly at fault [49].
The claimant accepts she must bear some responsibility but not more than 61%. She says she undertook a variety of measures to avoid the accident but still crashed.
At [52] the submission states:
“The claimant probably crashed because of the bright light and shadowing at the accident scene such that she lost sight of the roadway at a critical point in negotiating the exit of the left-hand bend and entering the sharp right-hand bend.”
The submissions conclude with the statement that the MAI Act provides for statutory benefits to continue beyond the first 26 weeks after the accident if the injured person’s “fault” is not more than 61% and the claimant’s fault would be in the order of 30% but no more than 50%.

Insurer’s submissions

The Insurer’s lengthy submissions are dated 14 February 2022.
The insurer outlines the central issue in section 1 of the submissions and says:
(a)   An injured person is entitled to statutory benefits if their injury is sustained in a “motor accident”.
(b)   The definition of “motor accident” requires there to be injury caused in the use or operation of a motor vehicle.
(c)   Where the injured person uses or operates the only motor vehicle involved in the accident, they must have been the only cause of their injury and therefore wholly at fault for the motor accident.
(d)   Any enquiry into any other cause not involving the use or operation of the motor vehicle is unnecessary because the injury sustained by the claimant would not be the result of a motor accident.
The insurer outlines, in sections 2-5 of the submissions the circumstances of the accident and the various ‘versions’ of events provided by the claimant in her claim form, her letter and her statement and says that as the claimant now says the sun was the main cause for her accident, the sun is a cause of injury.
The insurer refers (at paragraph 2.11) to the Minister’s speech at the second reading of the MAI Act where he refers to “at-fault drivers” as including drivers who may have been injured being blinded by the sun and that the new scheme will provide them with a six-month safety net.[12] The insurer says that the Minister was of the view that drivers blinded by the sun are to be considered “at-fault drivers”. GIO goes on to submit that the proximate cause of the claimant’s accident was the sun and not her use or operation of a motor vehicle and that the scheme enacted by the new legislation did not contemplate the recovery of benefits in this situation.
[12] This speech is said to have been given on 9 March 2017 no further Hansard reference was given.
The insurer challenges (at paragraph 3.5) the reliability of the claimant’s evidence by citing her varying accounts of how the accident happened and points to her most recent statement which says Ms Yankovich does not remember how it happened and therefore there should be no weight given to her evidence about what she thinks happened.
The insurer also challenges (at paragraph 4.2) Mr Yankovich’s evidence as he did not see what happened and only provides opinions of what he believes happened.
The insurer’s submissions contain a length section concerning fault. GIO says (at paragraphs 6.1 and 6.3) the claimant has a duty to exercise reasonable care to prevent injury to themselves and to other road users and agrees with the claimant that the standard of care is that set out in section 5R of the CL Act. In terms of what is reasonable, the claimant relies on the majority in Imbree v McNeilly[13]:
[13] Their Honours Gummow, Hayne and Kiefel JJ - [2008] HCA 40 at [27] (Imbree).
“The standard of care which the driver (the first respondent) owed the passenger (the appellant) was the same as any other person driving a motor vehicle - to take reasonable care to avoid injury to others. The standard thus invoked is the standard of the ‘reasonable driver’. That standard is not to be further qualified, whether by reference to the holding of a licence to drive or by reference to the level of experience of the driver.”
The insurer says (paragraph 6.4) on the basis of that decision that Ms Yankovich’s lack of experience or unfamiliarity of riding on a country road is immaterial.
The insurer quotes the majority of the High Court in Manley v Alexander[14]:
[14] Their Honours Gummow, Kirby and Hayne JJ - [2005] HCA 79 at [12] and [11].
“…the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events…”
48.and
"Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. And much more often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path”.
The insurer notes (paragraphs 6.6-6.9) that the accident occurred when the motorcycle left the roadway and the various explanations for the accident include the claimant flicking her sun visor up and down and taking her hands off the handlebars to do so.
GIO says (at paragraphs 6.10 and 6.11) that it may have been that the shadowing and sun resulting in or contributed to Ms Yankovich’s injuries, but it was her departure from her obligation to exercise reasonable care and skill that caused this accident. The insurer notes the claimant’s father did not lose control and was successfully able to negotiate the same stretch of roadway.
Under the heading “cause of the injury”, the insurer says (at paragraph 7.1) there must be a causal connection between the injury and the use or operation of a vehicle which requires the claimant to establish that the “motor accident” was the proximate cause of her injury.
The insurer relies on sections 1.4, 1.9 and 3.1 to says only people injured by the use or operation of a motor vehicle receive statutory benefits and that there must be a close causal connection between the use and the injury and mere incidental use does not entitle a person to benefits. GIO quotes Allianz Australia Insurance Limited v GSF Australia[15] and Cavanah J in QBE Insurance (Australia) Limited v Abberton[16] to support this.
[15] [2005] HCA 256 at [49].
[16] [2021] NSWSC 58 at [68] (Abberton).
GIO says the third-party scheme does not provide benefits for injuries caused by and resulting from the “sun or other environmental factors”. The insurer refers to two decisions of Member Medland concerning accidents where the claimant was alleging the condition of the road caused the accident. In the first, ALQ v GIO Insurance[17] the member said she could not make a finding against a local council. In the second Desmond v GIO[18] Member Medland found that if an accident was caused entirely by the condition of the roadway, then the accident could not be a motor accident.
[17] [2020] NSWSIRADRS 100 at [31].
[18] [2021] NSWPIC 437 at [X].
The insurer’s submissions continue in section 8 under the heading “All motor accidents require an at fault driver” relying on the relevant insurer provisions and sections 3.2 and 3.4 to suggest there has to be an “at fault” driver and another driver in order to determine which insurer is the relevant insurer.
The insurer says in section 9 that attempting to apportion fault between an injured driver and another person not using or operating a vehicle or some other cause (like the sun) may have unintended consequences for the scheme. The insurer offers the hypothetical of a person found to have been blinded by the sun who collides with and injures a pedestrian. If the driver is 60% at fault, then the pedestrian can only recover 40% of their damages.
Finally, the insurer refers to Part 3 of Schedule 2 which enables a Commission member to determine:
(a) whether for the purposes of section 3.11 … the motor accident concerned was caused by the fault of another person, and
(b) whether for the purposes of section 3.28 … the motor accident was caused mostly by the fault of the injured person.
The insurer submits that (d) enables me to determine whether the claimant or another person were at fault and therefore the legislation intends for there to be two people to decide between. The insurer says that if the claimant is at fault and no one else is at fault the claimant is only entitled to 26 weeks of benefits.

Claimant’s further submissions

At the teleconference held in this matter on 1 March 2022, the claimant requested the opportunity to make final submissions in answer to the submissions lodged by the insurer. I directed that any such submissions be lodged by 18 March 2022 and they were lodged on that day.
The claimant submits that:
(a) Her accident was a “motor accident” within the meaning of section 1.4 of the Act and that fault is not relevant in that definition. As a result, whatever the cause or whoever is to blame, statutory benefits are payable.
(b) The Minister’s second reading speech cannot override the fact that each case should be decided on its own facts.
(c)   The case of Zotti does not assist because that was a case involving the definition in the previous scheme and a dispute about the meaning of “collision”.
(d)   The case of Abberton does not assist because it was a case about whether a serious driving offence had been committed and the disentitlement to any benefits at all under section 3.37.
(e)   The cases of ALQ v GIO and Desmond v GIO relied on by the insurer concerned claims where the allegation was that the accident was caused by the state of the road. In both those cases there was no issue about whether the accident was a “motor accident” within the meaning of section 1.4.
(f) The insurer refers to the cause of the claimant’s injuries whereas sections 3.11 and 3.28 require a consideration of the cause of the accident.
(g)   The insurer’s submissions that all accidents require an at-fault driver is contrary to Singh.
(h)   The insurer’s submissions that all liability for an accident must add up to 100% are inconsistent with legal principles says in the insurer’s example of the driver blinded by the sun and injuring a pedestrian, both would be entitled to statutory benefits because neither of them were at fault.
(i)    The entitlement to statutory benefits beyond the first 26 weeks requires there to be an explanation as to the cause of the accident which can come from direct evidence or from inferences. The clamant and her father have done their best to explain how the accident happened.
(j)    While the insurer has only argued “wholly at fault” in its liability notices, I should determine whether the claimant is wholly at fault or mostly at fault.
(k)   The case of MacMahon v Insurance Australia Limited t/as NRMA Insurance (MacMahon)[19] concerned the state of a road and there was expert evidence as to the deficiencies in the road. These deficiencies included the construction, architecture and geometry of the road, possible obstruction and deficiencies in signage. In Ms Yankovich’s case the features of the road and the riding conditions were partly a cause of the accident saying:
60.“The claimant and her father were aware of the riding conditions and the road features and modified their riding behaviour as far as reasonably possible to allow the claimant to safely navigate the bends in the prevailing conditions”.
(a)   A reasonable person in the claimant’s situation would have taken the same precautions she did and if there was an error of judgment by the claimant as she negotiated the first bend that was not the sole cause of the accident. “Reasonableness and not perfection is required”.
(b)   The claimant is neither wholly nor mostly at fault because she was riding below the speed limit and there was nothing she did that was inattentive or reckless. She was “substantially inexperienced” and was focussed on her father and for a variety of reasons simply failed to take the bend.

MY APPROACH TO THE ISSUES

Preliminary matters – motor accident and section 3.1

[19] [2021] NSWPIC 427.

There are many parts of the MAI Act based on provisions of the Motor Accidents Compensation Act 1999 (the MAC Act). The definition of fault in section 3 of the MAC Act is identical to section 1.4 of the MAI Act which defines “fault” as “negligence or any other tort”. The MAC Act and the previous scheme was a primarily fault-based scheme where, in order to obtain damages, a claimant had to prove “fault” on the part of another person. In a claim for damages under Part 4 of the MAI Act, as the definition of “fault” includes the tort of “negligence”, an injured person will succeed in their action against a tortfeasor, if they can establish a duty of care was owed, that duty of care was breached, and they sustained injury, loss and damage as a result of that breach.
However, Ms Yankovich is not making a damages claim under Part 4 of the MAI Act. She is making a claim for statutory benefits under Part 3. If a person is injured in a “motor accident” in New South Wales after 1 December 2017 then, in accordance with section 3.1(1), there is an entitlement to benefits for lost income and treatment and care subject to the remaining provisions of Part 3.
The entitlement to any benefits at all depends on there being a “motor accident” which is also defined in section 1.4 of the MAI Act which requires there to be:
(a)   an “incident or accident” which involves the “use or operation of a motor vehicle”,
(b)   that causes the claimant’s injury and where the injury “is a result of and is caused … during”,
(c)   the vehicle being driven, a collision, the vehicle running out of control, or a dangerous situation caused by a vehicle being driven, a collision or the vehicle running out of control.
The insurer submissions culminating in paragraph 7.11 suggest that the definition of a motor accident does not include any “tortfeasor” who is not using a motor vehicle or an accident involving being blinded by the sun. The thrust of the insurer’s submissions appears to be that in order for the claimant’s accident to be considered a “motor accident” within the definition, her injury must be caused by her use or operation of her vehicle. If her accident was caused, as she says by the sun, then the insurer says it was not caused by her use or operation of the vehicle and therefore she was not injured in a “motor accident” and the insurer has no liability to pay benefits.
The definition of “motor accident” can apply to a single vehicle accident or a multi-vehicle pile-up. It can apply to an incident such as when a passenger falls in a bus or an accident in its more usual sense of a collision between a vehicle and another vehicle or object. But the incident or accident does not have to be caused by the use or operation of the vehicle, the incident or accident must simply involve the use or operation of a motor vehicle.
Ms Yankovich was injured in an accident when the motorcycle she was riding crashed into a tree. She was using and operating that motorcycle at the time. The collision between the motorcycle and the tree involved Ms Yankovich’s use or operation of her motorcycle because she rode into the tree. It was the accident (her collision with the tree) which caused her injuries. Whatever the cause of the accident, human or environmental, her injuries were caused as a result of and during her driving of the motorcycle and her collision with the tree.
I agree with the claimant’s submissions that Ms Yankovich was injured in a “motor accident” within the meaning of section 1.4.
Section 3.1(2) provides that statutory benefits are payable (unless limited or restricted by other provisions in Part 3):
(a) whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, or
(b) even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.
When section 3.1 is read as a whole, Part 3 of the MAI Act provides a system of statutory benefits where fault plays no part[20] generally in determining the entitlement to statutory benefits, at least in the first 26 weeks after the accident. For that reason, GIO accepted Ms Yankovich’s claim and paid her statutory benefits until 19 May 2021.
[20] Section 3.36 prevents the owner or driver of an unregistered motor vehicle from receiving any benefits at all if their injuries were caused wholly or mostly by their own fault.
For the insurer to now argue that the third-party scheme does not provide any benefits to persons injured by “environmental factors” while using or operating a motor vehicle appears to ignore section 3.1(1) and the remainder of Part 3 which provides no such exclusion or restriction.
The claimant was injured in a “motor accident” and has an entitlement to statutory benefits.

The termination of benefits – sections 3.11 and 3.28

GIO has no liability to pay statutory benefits beyond 19 May 2021 under sections 3.11(1) and 3.28(1) if the accident “was caused wholly or mostly by the fault of” the claimant. That is the dispute that has been brought to the Commission and I must therefore ask myself the question “was Ms Yankovich’s accident caused wholly or mostly by her own fault”.
I have received extensive submissions from both parties as to how I should approach answering that question primarily because Part 3 of the MAI Act uses the word “fault”, the definition of which, in section 1.4 incorporates the “tort” of negligence and “tort” is a legal concept usually applicable only in an action (claim) for damages.
The claimant’s solicitor appears in his submissions (at 32) to treat the phrase “wholly or mostly” as one concept and therefore involving only contributory or non-tortious fault. The submissions appear to suggest that therefore the definition of “fault” contained within section 1.4 should not be applied.
I note section 6 of the Interpretation Act1987 suggests that definitions occurring in an Act apply to the construction of that Act unless the context or subject-matter indicates or requires otherwise. Therefore, the presumption is that the definition of “fault” contained in section 1.4 should apply wherever it appears in the legislation. I therefore do not accept the claimant’s submission that the reference to fault in sections 3.11 and 3.28 is a reference to non-tortious negligence or fault.
In my view there are two distinct concepts within the phrase “wholly or mostly” at fault and in my view, this requires me to determine whether the accident was caused:
(a) wholly by the fault of the claimant, or
(b) mostly by the fault of the claimant.

The approach to “wholly at fault”

In a two-vehicle collision it would be appropriate in my view, when determining whether an accident was caused wholly by the fault of a claimant, to consider whether the accident was caused by the fault as in negligence of the owner or driver of the other vehicle. That requires consideration of whether the owner or driver of that other vehicle owed a duty of care to the claimant, breached that duty and that breach caused injury.
In a claim made by another type of road user (such as a pedestrian or bicyclist) in respect of an incident or accident involving a motor vehicle, a similar approach could be taken. That is did the motorist owe a duty of care, breach the duty of care and did the breach cause the pedestrian or the cyclist’s injury.
While the tort of negligence is not determinative of the question in these sorts of cases, it is a guide that helps answer the question of whether an accident was caused wholly by the fault of the claimant or wholly or partly by the fault of the person against whose insurer the claim is made.

Similar use can be made of the concept of fault from the tort of negligence in an accident caused by some other person who is not the owner or driver of a motor vehicle and may not be directly involved in the accident. In AAI Limited trading as GIO v Singh[21], there was no other owner or driver involved. The parties agreed that the cause of the accident was the unsafe loading of the shipping container being towed by Mr Singh. Neither the claims assessor nor the Court made a finding “against” the person or corporation that was responsible for loading the shipping container. The question in Singh’s claim was whether he was wholly or mostly at fault and that question was answered by the claims assessor and the Court in the negative. So too in MacMahon, where the issue in question was whether the motorcycle rider was wholly at fault in circumstances there were issues with the construction of the road and the signage. As the author of that decision, I noted at [84] that I did not have to determine the primary negligence of any particular person or entity” and I did not have to consider whether there was any liability on the part of the local council.
[21] [2019] NSWSC 1300.
In a single vehicle accident, when the owner and driver is the only person involved, looking for “fault” in terms of the tort of negligence is not helpful because the injured owner or driver does not owe themselves an actionable duty of care which could found a suit in negligence. See for example the case of Whitfield v Melenewycz[22] (Melenewycz).
[22] [2016] NSWCA 235 per Meagher JA at [31].
In my view, in a single vehicle accident, where there is no other person involved, it is appropriate to approach the question of whether the accident was caused “wholly [by the] fault” of the claimant by considering whether the accident was caused in whole or in part by something other than the claimant’s driving. If there is something else that caused the accident, then the claimant cannot be “wholly” at fault.
In that regard consider the facts of Melenewycz. Mr Melenewycz was riding a friend’s motorcycle when he was knocked off that motorcycle by a kangaroo that had jumped out, without warning. If a person was injured in similar circumstances under the current scheme, if they were travelling within the speed limit and keeping a proper lookout, they would be unlikely to be considered “wholly” at fault because the primary cause of the accident was the actions of a wild animal. So too, Mr Connaughton[23] who was driving up the Mount Ousley Road between Wollongong and Sydney when a tree fell, without warning, on top of the cabin of his truck causing him injury. A person in a similar situation would be likely to recover statutory benefits because there was nothing, they did to cause the accident.
[23] Garry Connaughton v Pacific Rail Engineering Pty Limited [2015] NSWDC 89 (Connaughton).
However, if a person like Mr Melenewycz was knocked off a motorcycle by a runaway cow that had escaped from a paddock due to poor fencing or if someone like Mr Connaughton had been hit by a tree felled by a council worker who did not look for traffic before cutting it down, then their accidents would not likely be “no-fault accidents” within the meaning of section 3.1(2)(a) or Chapter 5 of the MAI Act disentitling them from the recovery of damages under Part 4 of the MAI Act although they may have an action in damages against the landowner or the council worker. But as they would have been injured in a “motor accident” within the meaning of section 1.4 they would be likely to have an entitlement to statutory benefits beyond the first 26 weeks because the accidents were not caused by their fault but were caused by the poor fencing which let the cow escape or the negligent felling of the tree.
The insurer’s submissions suggest there must be an “at-fault” driver in every accident. I do not agree. Firstly, section 3.1 provides that a claimant is entitled to statutory benefits if there is no one at fault. Secondly, the case of Singh has considered an insurer’s liability to pay statutory benefits in a single vehicle accident with only one driver who was not at fault. In that case Justice Fagan found liability on the part of the GIO to pay statutory benefits beyond the first 26 weeks. The claimant in that case was a truck driver towing a trailer upon which a loaded shipping container had been placed. Mr Singh had nothing to do with the loading of the trailer and, when he turned a corner at slow speed, his truck tipped over because the load, which had been not properly secured within the container shifted.
The insurer cited the wording in Schedule 2(3) of the MAI Act to support its argument. Schedule 2 of the MAI Act “designates for the purposes of Chapter 7” of the Act what is a miscellaneous claims assessment matter, what is a medical assessment matter and what is a merit review matter. The purpose of Schedule 2 is only to provide jurisdiction to the various types of decision-makers identified in Chapter 7. Schedule 2 is limited in its operation to Chapter 7 and it should not be used to interpret the substantive parts of the legislation. In any event, Schedule 2(3) of the Act provides the jurisdiction as identified by the insurer in (d) and (e) but it also provides in (n) the jurisdiction for a member to determine any other issue of liability or part of liability of a statutory benefits claim.
The insurer’s submissions refer to the cause of the accident and the cause of the injuries. Justice Fagan in Singh noted at [20] a distinction between the two. The focus of my enquiry in this case when considering sections 3.11 and 3.28 is whether the claimant’s accident (that is her losing control of her motorcycle and colliding with a tree) was caused wholly or mostly by her own fault.

The approach to “mostly at fault”

When splitting the phrase “wholly or mostly by the fault” of the claimant into two separate questions, the approach to whether a person is “mostly at fault” simply requires a consideration of:
(a) whether the claimant is responsible for any contributory negligence at all?
(b) If she is, the degree of that contributory negligence?
If her contributory negligence is greater than 61% then sections 3.11(2) and 3.28(2) operate to disentitle her to any further benefits.
As submitted by the claimant, this requires a consideration of section 3.38 because sections 3.11(2) and 3.28 (2) require it. Section 3.38(1) calls for the application of the “common law and enacted law” that would ordinarily apply to a damages claim, when considering contributory negligence in the statutory benefits claim and the reduction of weekly benefits. Section 3.38 lists a number of circumstances where a finding of contributory negligence must be made, and I agree with the claimant that none of these apply to Ms Yankovich’s case.
The enacted law includes the CL Act in particular section 5R. The test to be applied is, as identified by both parties, an objective one being the standard of care of a reasonable person in the claimant’s position taking into account what the claimant knew or ought to have known at the time.
When there are two protagonists (such as two drivers in an intersection collision or a pedestrian knocked down by a car) then issues of relative culpability or relevant blameworthiness apply[24]. The issue of “mostly” at fault in such a case would be determined in favour of a claimant if their contribution to the cause of the accident was less than 61% when compared to the other person.
[24] Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34.
When there is a single vehicle accident with no other protagonist, the issue of contributory negligence is problematic because there is no other person’s behaviour with whom a comparison can be made. However, the approach taken by the Court in Axiak v Ingram and Davis v Swift[25] in the case of a “blameless” (Division 1A of the MAC Act) or “no-fault” (Part 5 of the MAI Act) accidents provides guidance. By their very name, blameless or no-fault accidents are accidents not caused by the fault of anyone, yet the provisions[26] allow for the reduction of damages due to the injured person’s actions that contributed to the accident or the injuries. In those circumstances the court found[27] the approach should be to look at the claimant’s departure from the standard of care he or she is required to observe in the interest of his or her own safety.
[25] [2012] NSWCA 311 (Axiak) and [2014] NSWCA 458 (Davis) respectively.
[26] 7F for MAC Act cases and 5.5 in MAI Act cases.
[27] In both Axiak and Davis, the injured persons were pedestrians involved in collisions with a car.
And in this regard the distinction between fault in terms of a cause of the accident compared to fault in terms of the cause of injury is important. Mr Melenewycz may not have been wearing a helmet or protective clothing and his injuries may have been greater because of that, but the lack of a helmet or appropriate clothing would have had nothing to do with how the accident happened. So too if Mr Connaughton had not been wearing a seatbelt and that had caused him a different or greater injury, that would be relevant to his contribution to his injuries but had nothing to do with the cause of the accident. If Mr Melenewycz or Mr Connaughton were injured after 1 December 2017 in circumstances where they contributed to their injuries but not the cause of the accident, then section 3.38 would operate to reduce their weekly benefits.
Again, in the matter before me I must focus on the accident and ask the question - whether it was caused wholly by the fault of the claimant or mostly by the fault of the claimant. In terms of whether she is “mostly at fault”, I must consider whether Ms Yankovich’s actions or omissions contributed to the cause of the accident which is determined by considering whether she departed from the standard of care she should have observed in the interest of her own safety and evaluating the extent of the departure.

FINDINGS – WHAT CAUSED THIS ACCIDENT?

Evaluation of the evidence

The police report provides a version of events contributed to by the claimant’s father. There was no police officer who actually witnessed the accident first-hand. The police officers say the accident occurred because the claimant lost control of her motorbike and that does not appear to be in dispute by Ms Yankovich or by GIO.
However, the claimant notes that the police do not say how or why she lost control.
The claimant has provided versions of how she said the accident happened in her claim form and in her statement in support of her late claim. She now says she does not know exactly how the accident happened because she has not memory of it.
The insurer raises issues with the reliability of her evidence and says I should give her evidence no weight (paragraph 3.5 of the insurer’s submissions) because she does not remember what happened.
The versions of the accident are consistent in the following respects:
(a) her motorcycle left the road and collided with a tree, and
(b) the accident occurred after a left-hand bend, a dip in the road and on a sharp right-hand bend in the road.
The full and satisfactory explanation letter provides other details which are consistent with the statement Ms Yankovich has given in support of the current application:
(a)   she was an inexperienced rider;
(b)   she was riding with her father who was an experienced rider and she followed him;
(c)   the sun was shining through the trees by the side of the road which cast shadows on the road, and
(d)   she was having difficulty adjusting her vision to the light and the shadows.
Her final statement provides additional details including her loss of memory as to precisely how the accident happened, her use of her sun visor and having to flick it up and down to deal with the changing light on the roadway.
The explanation in the claim form is brief as is required by the form, her other explanations are more detailed as the circumstances demand. I do not find any of the versions inconsistent with each other, they are simply more detailed.
I accept the claimant’s evidence surrounding the circumstances leading up to shortly before the collision. While she has no memory of the moments before the collision with the tree, her evidence as to what she was doing as she rode her bike that day and the issues with what she could see, and the experience with her visor and her vision have been consistent.
The claimant’s father did not see the impact, but as he exited the bends, he looked behind him and saw her heading off the road having missed the turn. Before that his last vision of his daughter was of her adjusting her sun visor. To do that she had to take one hand off the handlebar. While there is extensive evidence from Mr Yankovich about what he told his daughter to do in terms of her riding, how to take the curves and her speed, there is no evidence from the claimant’s father as to what guidance he gave her as to the use of her sun visor, whether he had a sun visor, whether he was using it and whether he was flicking it up and down depending on the light.
I note the claimant’s father’s evidence is generally consistent with the claimant’s as to the events leading up to and on the day of the accident.
I accept that both the claimant and her father have been doing their best to explain the circumstances leading up to, and the cause of, the accident.
I accept Mr Yankovich’s expertise as a motorcycle rider and his experience on this stretch of road. I accept that the road was difficult to navigate due to the bends in it and the dip and that at the time of day with alternating light and shadows it was more difficult to navigate.

How did this accident happen?

The evidence of the claimant and her father satisfy me that the accident occurred because the claimant lost control of her motorcycle. I am satisfied that Ms Yankovich lost control of her motorcycle because she failed to take a right-hand bend on a difficult stretch of road. She failed to take the bend because she had adjusted or was adjusting her tinted visor which required her to take one hand of the handlebar and touch her helmet.
I accept the claimant’s evidence and the evidence of her father that the reason the claimant needed to adjust her visor was because of the combined effect of the sun and the trees and the shadows thrown across the road.
I accept the claimant’s father’s evidence that he was travelling at about 60 to 65 kmph and that by inference (because she was following him) so too was the claimant.
I accept the unchallenged evidence from the claimant’s father’s photograph that there was a speed advisory sign of 75 kmph shortly before the bends and the scene of the accident.

IS THE CLAIMANT WHOLLY AT FAULT?

There is no real dispute that the cause of the accident was the claimant losing control of her vehicle, leaving the road and colliding with a tree. Even the reason for the claimant losing control does not appear to be challenged by the insurer, that is that there were trees by the side of the road, the sun was shining through the trees and the shadows thrown onto the road made it difficult for the claimant to see.
In my view what caused Ms Yankovich to lose control of her motorcycle was the claimant’s inexperience as a rider and her inability to navigate the stretch of road with a left-hand curve and dip followed by a sharp right-hand turn with variable lighting.
I am strengthened in making this finding by the fact that the claimant’s father, who was an experienced rider, successfully navigated the same stretch of road without incident.
Ms Yankovich was following her father and was trying to ride where he was riding and do what he was doing however, she was not as experienced as he was. While Mr Yankovich was riding to the conditions, he was taking into account what he knew about the road and his experience and modified at least his riding speed because his daughter was following his lead. While he was taking precautions to assist his daughter navigate the stretch of road, he was clearly making assumptions that she could follow his modified lead. No allegation of negligence or poor instruction is made by the claimant against her father, therefore I do not have to consider whether he bears any responsibility for causing the accident.
The road the claimant and her father were riding on is a man-made construction and there is no evidence that it was built against the relevant code, poorly maintained or inadequately signed. The cases provided with respect to accidents caused by road conditions are therefore not greatly relevant because the claimant does not allege that it was the road itself that resulted in her losing control of her motorcycle
In the cases of Melenewycz and Connaughton, the accidents were caused when something untoward happened to the claimants by an animate (jumping kangaroo) or inanimate (falling tree) object while the claimants were riding or driving their vehicles. In Ms Yankovich’s case, there was no particular action from an animate or inanimate thing as she was riding or driving. The sun and the trees are part of the world in which we live. You cannot turn off the sun or cut down all the trees. They are part of the environment through which Ms Yankovich and Mr Yankovich rode their motorbikes and they are part of the conditions that they had to ride to. And sometimes the conditions of the environment require adjustments to be made to the way in which a car is driven, or a motorbike is ridden. And sometimes the conditions of the environment require the cessation of the drive or the ride until the conditions improve.
Consider other environmental factors that might affect a journey. For example, what if there is heavy fog where visibility was extremely limited, and a person drove off the road and into a tree and was injured? While the fog led to the accident, it cannot in my view cause the accident because it is part of the conditions and the true cause would have been the way in which the car had been driven in those conditions, the driver’s failure to pull over and wait until the fog lifted and so on.
Therefore, it is my view that while the sun, the trees, the light and the shadows on the road from Oberon to Bathurst led to the accident they are no more than the scenery or the backdrop to the journey, the conditions of the time of day. The only cause of Ms Yankovich’s unfortunate accident was, in my view, her unfamiliarity with the road, her inexperience riding a motorbike and in particular the difficulties she was having adjusting her vision and her visor to the changing light.

CONCLUSION

While the word “fault” in the MAI Act suggests negligence, liability or culpability which in turn suggests blame and guilt, the word fault can also be interpreted to simply mean responsibility. In my view, on the facts and circumstances of this case, the responsibility for this accident lies with Ms Yankovich.
I find therefore, that the accident was caused wholly by the fault of Ms Yankovich and GIO has no liability to pay her statutory benefits beyond the first 26 weeks after the accident.
It follows that there is no need for me to consider the issue of contributory negligence and whether Ms Yankovich was “mostly at fault”.
If I had been required to assess Ms Yankovich’s departure from the standard of care she should have observed, then I would have found her contributory negligence to be in the order of 80%.
Following the High Court’s decision in Imbree, the test of the reasonable driver is an objective one and not that of a reasonable learner driver adjusted to take into account the level of the learner driver’s individual experience. Ms Yankovich’s departure from the standard of the “reasonable driver” was significant as is evidenced by the fact her father, riding in front of her maintained control of his motorcycle and did not leave the road and collide with a tree.

THE ASSESSMENT OF COSTS

Claimant’s submissions

The claimant seeks costs of the dispute pursuant to section 8.10(4) because she says there are exceptional circumstances in the claim. The claimant refers me to a number of cases including San v Rumble[28], AAI Limited t/as GIO v Moon[29] and Koster v NRMA[30] which suggest exceptional requires something unusual, out of the ordinary, exceptional or with an unusual degree of factual or legal complexity.
[28] [2007] NSWCA 259).
[29] [2020] NSWSC 714 (Moon).
[30] [2021] NSWPIC 484.
The claimant says the exceptional circumstance of her case are that: she is relatively young without experience to conduct the application without a lawyer, detailed statements were required, there are no independent witnesses, the police did not explain how and why she lost control of her motorcycle, legal analysis was required of the issues of wholly or mostly at fault and contributory negligence, and it was a single vehicle accident requiring detailed submissions. The claimant includes within the costs claimed, “attendance at an assessment conference hearing and the likely cross-examination of the claimant and her father”.
The submissions assert that the amount of work “far exceeds” the regulated amount “exposing the claimant to substantial costs which she cannot recover from the insurer”. A claim is made for 20 hours at $550 per hour for a personal injury accredited specialist in the total sum of $11,000.

Insurer’s submissions

The insurer submits that if the claimant is unsuccessful, she should be awarded no costs and that if costs are to be awarded in respect of this dispute, they are to be awarded on a regulated basis, bearing in mind the scope of the dispute and says no exceptional circumstances exist.
Following the first preliminary conference, the insurer was given the opportunity to make further submissions on costs in the light of my indication that if regulated costs were to be awarded the claimant was entitled to costs up to the maximum amount for two disputes that is a dispute about whether the claimant’s weekly benefits should be terminated and whether her treatment and care benefits should be terminated.
The insurer advised that no further submissions would be made.

Is the claimant entitled to any costs?

I note the decision of Justice Wright in Moon at [82] said that there is nothing in the MAI Act or the Motor Accident Injuries Regulation 2017 (the Regulation) that suggests the claimant’s entitlement to recover costs depends upon the outcome of the determination of the dispute.
I will permit the payment of legal costs of the dispute as they are reasonable and necessary in accordance with section 8.10(3) and I have been assisted by Mr Schwab in preparing the application and making submissions.

On what basis should costs be assessed?

Costs in a statutory benefits claim are governed by provisions in sections 8.3 and 8.10 of the MAI Act. In essence these provisions allow for the awarding of costs on two bases:
(a) where costs are permitted in the Regulation, in which case only the costs allowed in the Regulation can be awarded, and
(b) where the Commission permits costs beyond those provided in the Regulation and that can only be done in circumstances were the claimant is lacking in legal capacity or where “exceptional circumstances” exist which justify the awarding of costs on that basis.
The claimant seeks costs of the application on the basis there are “exceptional circumstances” in the case.
The insurer says there are no “exceptional circumstances” in this claim.
I agree with the insurer. In my view this claim and the dispute that has arisen in connection with it does not involve any great complexity. The accident was a single vehicle accident, no expert evidence was obtained, lay evidence was taken and submissions were made. The factual issues to be determined as to the cause of the accident were straightforward and the legal issues not complex. While the submissions were lengthy, they were not unduly so. There was no hearing and only one teleconference in the matter.
I am not satisfied that there are exceptional circumstances in this claim that justify the awarding of costs for the matter on a basis other than those costs permitted in the Regulation.

The amount of costs to be awarded

Schedule 1, Part 1 clause 3(1) of the Regulation provides that the maximum costs for legal services in connection with a regulated miscellaneous claims assessment matter is 16 monetary units (currently the sum of $1,710). Clause 3(2) then provides a list of the regulated miscellaneous claims assessment matters. The following appear to be relevant:
“(d) whether for the purposes of section 3.11 … of the Act the motor accident concerned was caused by the fault of another person,
(e) whether for the purposes of section 3.28 … of the Act the motor accident was caused mostly by the fault of the injured person.
(g1) any issue of liability for a claim, or part of a claim, for statutory benefits referred to in clause 3(n) of Schedule 2 to the Act.”
Schedule 2 clause 3 to the MAI Act provides a list of miscellaneous claims assessment matters upon which the list in the Regulation is based. It is odd that the wording of the provision in both lists relevant to section 3.11 disputes refers only to the fault of another person and not the fault of the person claiming the benefits and does not refer at all to “mostly at fault”. It is equally perplexing that the provision in both lists relevant to section 3.28 disputes refer only to “mostly at fault” and not “wholly at fault”.
The matter referred to the Commission by the claimant involved two disputes about the GIO’s liability for Ms Yankovich’s claim:
(a) whether the claimant’s weekly income statutory benefits should be terminated, and
(b) whether the claimant’s treatment and care benefits should be terminated.
Those two disputes required the determination of two issues, whether the claimant was wholly at fault and whether the claimant was mostly at fault in causing her accident.
Noting the work done in preparing the application and the submissions and in particular the work done in answering the insurer’s submissions about “motor accident” not raised before, I am of the view that the maximum regulated fee of $1,710 should be awarded in respect of each of the above disputes that is the sum of $3,420. I note there are no disbursements, but that GST is to be added to this amount.

[2022] NSWPIC 137

22 March 2022