CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	
Radford v QBE Insurance (Australia) Limited [2021] NSWPIC 477	
		
Claimant:	Casey Radford	
		
insurer:	QBE Insurance (Australia) Limited	
		
Member:	Susan McTegg	
		
DATE OF DECISION:	22 November 2021	
		
CATCHWORDS:	MOTOR ACCIDENTS -   Miscellaneous claims Assessment; wholly or mostly at fault; sections 3.11 and 3.28 of the Motor Accident Injuries Act, 2017; rider of scooter moved into left hand lane; truck turned left across path of scooter; dispute as to whether truck wholly in left lane; dispute as to whether truck indicated before moving into left lane; discrepancy between evidence of insured driver, independent witness and claimant; necessity for assessment conference; whether claimant entitled to recover exceptional costs; Held – due to inconsistency between witnesses, insurer not discharge onus of proof; claimant not wholly or mostly at fault; just resolution of dispute included needed for assessment conference; costs assessed on exceptional basis pursuant to section 8.10(4)(b) of the Motor Accident Injuries Act, 2017.
	
FINDINGS made:	The findings of the assessment of this dispute are as follows:

1.	For the purposes of section 3.11 the motor accident was not wholly or mostly caused by the fault of the injured person (the claimant).
2.	For the purposes of section 3.28 the motor accident was not wholly or mostly caused by the fault of the injured person (the claimant).
3.	The claimant's costs are assessed in the sum of $10,862.84 inclusive of GST.

A brief statement of my reasons for this determination are attached to this certificate	

INTRODUCTION
1.	On 12 July 2019 Casey Radford (the claimant) sustained serious leg injuries in a motor vehicle accident (the accident). The circumstances of that accident give rise to this dispute.
2.	If I find the accident was caused wholly or mostly by the fault of the claimant, he will not be entitled to ongoing payment of statutory weekly benefits or payment of treatment and care expenses under the MAI Act. 
3.	The claimant had served six years in the Royal Australian Navy before discharge in May 2019. He received a Department of Veteran Affairs incapacity payment in respect of a broken right ankle sustained whilst playing football for the Navy. 
4.	On 26 July 2019 the claimant completed an Application for Personal Injury Benefits in respect of injury sustained in the accident.
5.	On 30 October 2019 QBE Insurance (Australia) Limited, (the insurer) issued a liability notice, 26 weeks post-accident, in which they advised liability was accepted pending further investigation. 
6.	Thereafter, a series of communications between the claimant and the insurer led the claimant to believe that the insurer would assume payment of weekly payments. Payments were made and the claimant, in reliance on those communications, ceased his Navy incapacity payments. 
7.	In a notice dated 26 October 2020 the insurer declined liability for payment of statutory benefits on the basis the claimant was wholly at fault, or in the alternative, that he had contributed to the accident and that his contributory negligence was assessed at 100%. The notice stated that the claimant’s entitlement to weekly payments, treatment and care expenses would cease from 26 weeks after the accident, notwithstanding payments had been made after that date.
8.	On 30 October 2020 the claimant applied for an internal review having regard to the late liability notice and the insurer’s conduct of the matter. 
9.	On 12 November 2020 the insurer sent an email to the claimant relevantly stating as follows: 
“We acknowledge that there have been a number of unacceptable delays in this claim due to administrative oversight. 
In the circumstances we are willing to continue paying your client statutory benefits up to 104 weeks post-accident, this is done on a without prejudice basis.”
10.	In an Internal Review Decision dated 20 November 2020 the insurer confirmed the decision denying liability. 
11.	The claimant lodged an application in respect of a Miscellaneous Claims Assessment on 30 June 2021. 
12.	The matter was the subject of an assessment conference on 11 November 2021.The claimant was represented by Mr A Stone, Senior Counsel instructed by Ms Michelle Martin.   The insurer was represented by Mr Mark Malley of Moray & Agnew Lawyers instructed by Ms Deborah Livanos from QBE. The claimant and Mr Phillip Haddad, an independent witness to the accident were questioned. 
13.	Mr Malley advised the insurer was unable to locate the insured driver Mr Whetnall, who had provided several addresses including the Hotel Erskineville and a flower shop at Newtown. Enquiries of the employer formerly known as Dial-a-Dump and subsequently as Bingo failed to find any record of Mr Whetnall. 
JURISDICTION OF THE PERSONAL INJURY COMMISSION
14.	The Personal Injury Commission (PIC) commenced operation on 1 March 2021 and the Dispute Resolution Service was abolished by clause 3 of Part 2, Division 2, Schedule 1 to the Personal Injury Commission Act 2020 (the PIC Act). 
15.	I am a Member of the Motor Accidents Division of the PIC. Clause 14A (1) of the Personal Injury Commission Regulation 2020 designates the application “pre-establishment proceedings” and clause 14D empowers me to determine those proceedings. 
16.	Because of the date of the accident clause 14D(3)(b) provides that MAI Act and the Motor Accident Guidelines (the Guidelines) continue to apply.
DOCUMENTS CONSIDERED
•	Application for Personal Injury Benefits dated 26 July 2019.
•	QBE Liability Notice dated 26 October 2020. 
•	Application for internal review dated 29 October 2020. 
•	Certificate of Determination – Internal Review and reasons dated 20 November 2020.
•	NSW Police Report.
•	Ambulance Report.
•	Photographs (x 4) of the accident scene. 
•	Claimant’s statement dated 28 November 2019. 
•	Statement of Paul Whetnall dated 8 December 2019.
•	Photographs of damage to the bike. 
•	Record of Interview of Kasey Watler of 3 January 2020.
•	Documents produced by the New South Wales Police Force under Direction including statement of Phillip Haddad dated 12 July 2019 and seven colour images of the accident scene.
•	Claimant’s submissions dated 30 June 2021.
•	Insurer’s submissions dated 16 July 2021. 
•	Claimants’ submissions as to inconsistencies.
•	Details of claimant’s solicitors’ costs of statutory benefits liability dispute dated 11 November 2021.
•	Insurer’s further submissions on costs – quantum dated 18 November 2021. 
THE RELEVANT LAW
17.	Section 3.11 of the MAI Act states: 
“(1)	An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a)	the motor accident was caused wholly or mostly by the fault of the person, or
(b) 	the person’s only injuries resulting from the motor accident were minor injuries.
(2) 	A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
Note.
Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault.”

18.	Section 3.28 of the MAI Act states: 
“(1) 	An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a)	the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b)	the person’s only injuries resulting from the motor accident were minor injuries.
(2) 	A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) 	Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”
19.	Section 3.38(1) of the MAI Act is in the following terms:

“(1) 	The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident.”
20.	Section 3.38(3) of the MAI Act is in the following terms:

“(3) 	The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence--
(a) 	if subsection (4) requires the statutory benefits be reduced by a fixed percentage--by that fixed percentage, or
(b) 	by such percentage as the parties agree, or
(c) 	in any other case--by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case.
If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission.”
21.	Section 5R of the Civil Liability Act 2002 (CLA) sets out the principles that apply in determining the question of contributory negligence. Section 5R(2) provides the following: 

“(a) 	the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and 

(b)	the matter is to be determined on the basis of what that person knew or ought to have known at the time.”

THE EVIDENCE
Application for personal injury benefits
22.	In the Application for personal injury benefits the claimant provided the following description of the accident: 
“I was on a motorised scooter, travelling northbound in the right lane on Avoca Street. A truck was stationary in the left lane but indicated right and moved into the right lane, so I indicated and moved to the left. The truck then suddenly turned left in front of me to enter a driveway cutting me off and I crashed into the left side of the truck and slid underneath. He then drove up onto my pelvis. Upon assistance from passers-by, the truck reversed off my body.” 

The claimant’s statement
23.	The claimant provided a statement to the insurer’s investigator dated 28 November 2019.
24.	At the time of the accident the claimant was in Sydney to visit his surgeon in relation to his ankle injury. The claimant was staying with a friend in Pagewood and borrowed a 2011 Piaggio motor scooter for transportation. 
25.	On 12 July 2019 the claimant was travelling from Maroubra Beach to Bronte in a northerly direction along Avoca Street, Randwick. He had not consumed any alcohol or taken any medication or drugs on the day of the accident. He was not fatigued.
26.	In his statement and adopting the numbering used in that statement the claimant provided the following evidence as to the circumstances of the accident:
“20. 	On Avoca Street, Randwick, at the scene of the accident there are two northbound lanes running past a supermarket on the left.
21.	Shortly after the supermarket there is a clearway in the left hand lane, however, I noticed a truck stationary in that left hand lane clearway as I was riding north in the right hand lane. 
22.	I was approximately 100 metres away from the truck when I noticed its right indicator blinking and the truck started to pull out from the left lane and move directly over to the right lane. 
23.	On seeing the truck move across the road to the right lane I indicated and moved to the left lane in order to pass the truck on the inside.
24.	The truck was completely in the right lane and I assumed it was either going to turn right at Albert Street, which was approximately 70 metres further north from where the truck pulled over to the right lane, or at the major intersection with Alison Road, which was approximately 250 metres further north from where the truck pulled over to the right lane. 
25.	As I drew level with the truck it changed direction abruptly and turned in front of me to access a driveway to Marcellin College, 164 Avoca Road, Randwick. 
26.	I did not see the left indicator of the truck flashing at any time prior to it turning left in front of me.
27.	I was possibly too close to the truck to notice if the driver had indicated, however, if the driver did indicate it would have been at the last second prior to the truck turning left in front of me. 
28. 	On seeing the truck turn in front of me I applied the brakes and locked both wheels of the scooter and slammed into the side of the left hand side of the truck with both hands raised for protection.
29.	The momentum of the scooter took me straight underneath the truck, however, I don’t believe the driver knew that I had collided with the truck because he kept driving and as a result I was dragged towards the footpath. 
30.	The driver kept going and was halfway into the driveway entrance at 164 Avoca Road when witnesses called out to the driver to stop and that time the rear wheels of the truck drove over me and came to rest on my pelvis/hip. 
31.	The driver did not know whether to go forward or back to get the truck wheels off my pelvis/hip. 
32.	The driver started to reverse, however, that movement pinched my thighs and I called out to stop. 
33.	The witnesses were attempting to get the scooter out from between my legs, however, I asked them to wait for the arrival of the paramedics.
34.	I was unable to obtain any witness details and assumed the attending police officers obtained those particulars.
42	I am unable to recall the speed limit at the accident scene, however, I estimate my speed as being 40 kilometres per hour. 
43.	The weather was fine, visibility was clear and the road conditions were good. 
44.	I was wearing a pair of boots, jeans, a full face helmet, t/shirt and heavy jacket and no gloves. 
45.	I was familiar with the area having driven around it for almost 6 years and ridden a bike around the area for almost 2 years. 
46.	I had ridden the Biaggio scooter at least 15 times in the past 2 years.” 
The claimant’s oral evidence
27.	The claimant is no longer attached to the Navy, he is a non-active reservist and has moved back to Tasmania. 
28.	The claimant did not resile from the statement provided to the insurer’s investigator although he confirmed the language in the statement was not verbatim and that it was not suggested by the investigator that he obtain legal representation before providing his statement. 
29.	The claimant said he owns a similar scooter to the Piaggio motor scooter he was riding at the time of the accident and he was comfortable riding that scooter.
30.	He confirmed he travelled northbound on Avoca Street past the shopping centre where an additional turning late had been scalloped out of the pavement before the road returned to two lanes northbound past the shopping centre. 
31.	The claimant confirmed the bike has an automatic headlight which means it is always on low beam. 
32.	The claimant stated he had returned to the scene of the accident several times and still thought the truck was stationary 100 metres or maybe 150 metres away when he first saw it. When questioned by Mr Malley as to whether he was 100 or 150 metres away from the truck when he first saw it the claimant stated it was an estimate. 
33.	He estimated the truck was 15 to 20 metres back from the driveway to Marcellin College at that time. 
34.	The claimant also confirmed the truck should not have been stationary where it was because the road is a clearway at that point. 
35.	The claimant said he observed the right-hand indicator activated on the truck and the truck started to pull into the lane he was travelling in, that is the right-hand lane. The claimant indicated left and moved into the left-hand lane. The claimant was adamant the truck was completely in the right-hand lane with the right-hand indicator on although he later stated when questioned that the truck was already taking up half of the right-hand lane when he indicated to move to the left. 
36.	At the time he decided to move into the left lane the claimant estimated he was 40 to 50 metres from the truck and 60 metres to the south of the driveway. There were no vehicles between his scooter and the truck.
37.	The claimant stated the truck was slow moving and he was travelling faster at about 40 kmph. 
38.	The claimant was adamant that at no time did he see the truck indicate he was making a left-hand turn. If he had done so, the claimant says he would have slowed down and let the truck complete that manoeuvre. He said if Mr Whetnall did indicate it might have been after the scooter had passed the rear corner of the truck. 
39.	The claimant stated that when the scooter was level with the truck it was fully in the right lane but coming up to the driveway the truck cut in front of him to turn into the driveway. 
40.	The claimant was adamant the truck did not indicate to turn left prior to making that turn.
41.	The claimant said he did not see the “DO NOT OVERTAKE TURNING VEHICLE” on the rear of the truck. However, the photographs show the sign was obscured by dirt and the presence of two chains hanging in front of it, although, it is undoubtedly common knowledge that all trucks in New South Wales display such a sign. In any event the claimant said he was not overtaking a turning vehicle as there was no indication the truck was intending to turn left into the college driveway. 
42.	The claimant denied he revved his engine, he denied he accelerated as he approached the truck and he denied he accelerated as he passed the truck. The claimant confirmed there were no other vehicles between himself and the truck. He described the road as completely clear and said there were no hazards present to prevent the insured driver seeing his scooter in his wing mirror. 
43.	The claimant said he did not see a man wave his arms at him before the accident. He also said he did not see hazard lights activated on the truck. 
44.	The claimant collided with the truck just behind the front axle. The truck was still moving at the time of the collision and, indeed, he asserted the truck kept driving and drove on to his pelvis with the front of his rear set of wheels. The claimant stated pedestrians were screaming and the truck stopped and then backed off him degloving his thigh. 
 Statement of Paul Whetnall
45.	The driver of the truck Paul Whetnall provided a statement dated 8 December 2019. He was the holder of a heavy rigid drivers licence and had been driving trucks on and off for 30 years. He stated at the time of the accident he was driving a white Isuzu Rigid Truck 2016 model single steer Bogey truck. He was working for Dial-A-Dump now known as Bingo. 
46.	In his statement and adopting the numbering used in that statement Paul Whetnall provided the following evidence as to the circumstances of the accident: 
“20.	At the point of impact, I was travelling slowly about 5 to 10 km per hour making a left turn into a driveway at Marcellin College. 
21.	I am not sure how fast the claimant bike was going.
25.	The incident occurred at about 12 pm on the 12 July 2019 on Avoca Street Randwick NSW about 100m south of Alison Road. 
26.	The area where the accident occurred is a residential/retail zone. 
27.	The speed limit is 60 k per hour on Avoca Street, Randwick NSW.
30.	I was wearing my seat belt and travelling alone heading from where I had just pulled up on Avoca Street awaiting a call up from a representative of a company that had hired a 9m Marrell which is a large skip bin. 
37.	I recall I travelled north on Avoca Street Randwick and pulled over about 30m south of the driveway I had to enter in lane 1. I was just past the Randwick Shopping village car park. 
38.	I was stationary for about 5 minutes and then was waved up to the driveway. 
39.	I pulled away from the kerb and indicated right to get into lane 2 of 2 on Avoca as I needed the two lanes to be able to get the truck into the driveway.
40.	I travelled along lane 2 and then indicated left to shows the cars behind I was entering a driveway. Like most trucks I had a do not overtake turning vehicle sign on the back.
41.	When I reached the driveway and now slowing I then waked my hazards on and after looking into my passenger side mirror and also the driver’s side I could see all the cars behind me slowed and there were no cars or the Claimant bike in my passenger mirror at any stage when I looked to then begin my left turn into the Marcellin College driveway (sic).
42.	When I looked there was a van and a 4WD behind me in lane 2 and nothing in lane 1. I had my left indicator on at this point and legally began my left turn. 
43.	I made it all the way across lane 1 and my front tyres were now up and over the foot path and this is when I heard some glass smash but didn’t feel any impact. 
44.	I looked again and couldn’t see anything around me, and it was at this point other pedestrians told me to stop moving forwards. 
45.	I got out and I could see that the Claimant bike had hit my truck at about the petrol tank area just behind the front wheels. 
46.	I was asked by someone at this stage to reverse slightly to take some pressure off him as he was under the tank and near the gutter.” 
Record of interview between Trent Southworth and Constable Kasey Watler
47.	I have been furnished with the transcript of a record of interview between an investigator Trent Southworth of Brooksight Investigations and Constable Kasey Watler of 3 January 2020. 
48.	In that record of interview Constable Watler described what he saw when he arrived at the scene of the accident as follows:
“Q11.	And just in your opinion what are the circumstances of the accident?
A.	Do you want me to do just like a run down?
Q12.	Yeah, just do a bit of a run down, a bit of a brief.
A.	So we were responding to this accident, myself and I think it was constable Jordon Hunt. When we arrived on scene, there was a fairly large, like Isuzu Truck with a dump truck on the rear trailer. 
Q13.	Yep.
A.	At the time the truck was semi in lane 1 of 2 and kind of like turning into the driveway of Marcellin College.
Q14.	And just of note for this, we’re looking at some photos you’ve taken at the scene.
A.	Yep.
Q15.	So what you’re saying, the truck is sort of up the driveway on the footpath with its nose into Marcellin college School Driveway?
A.	Yep.
Q16.	On Avoca Street?
A.	On Avoca Street, yeah. At that time there was a male rider who was still semi stuck under the truck. He was kind of more trapped by the Moped he was riding and the wheel of the truck. 
Q17.	Yes, and the rear wheels.
A.	Which were the rear, yeah, the rear wheels of the truck. 
Q18.	So as far as the longevity of the truck, we’re talking toward the middle, towards the back half of the truck?
A.	Towards the end, yep.
Q19.	Yep.
A.	Yeah, when we got there he was kind of still under the wheels of the truck. I then ascertained who the driver was. I had a conversation with the driver.” 
Statement of Phillip Haddad recorded in police notebook. 
49.	In response to a Direction for Production the New South Wales Police Force provided a copy of Police Notebook F655839 of Constable Joshua Menzie. That notebook contains a signed statement of Phillip Haddad dated 12 July 2019. In his oral evidence Mr Haddad confirmed that statement was provided within an hour of the accident occurring. 
50.	That statement includes the following relevant paragraphs:
“3.	About 1.05 pm on Friday the 12th July 2019 I was walking south on Avoca Street, Randwick on the western footpath. 
4.	As I crossed the driveway to Marcellin College I saw a white dump truck stopped facing in north in the left hand lane with his left indicator on.	
5.	I saw him swerve about 2 thirds into the right hand lane with his left indicator still on. He was travelling about 10 -15 km/h. He had been stationary in the left lane about 30 metres before Marcellin college.
6.	He began to turn left when I saw a scooter approaching the truck in the right hand lane heading north from the rear.
7.	I saw the scooter swerve into the left hand lane and accelerate.
8.	The truck continued its turn into the driveway. The scooter collided with the rear left hand boggy of the truck. 
9.	The truck continued to move and the rider of the scooter screamed. The scooter went under the truck and the truck’s wheel was on the rider’s leg.
10.	I ran to the left hand door of the truck and started banging. Then ran to the front and told the driver to stop, then called emergency services.” 
Oral evidence of Phillip Haddad
51.	Phillip Haddad lived in the area and was walking to the Royal Randwick Shopping Centre at the time of the accident. He was familiar with the area having lived there for four years. 
52.	He was walking south on Avoca street when he saw a large truck with a skip on the back of it parked south of the driveway of the shopping centre. He noted the presence of the truck because it was stopped in a no standing area on a busy road. He observed the truck had the left indicator on, even though it was stationary. He observed the truck driver looking in his right rear vision mirror.
53.	Mr Haddad noted, 15, 20 or maybe 30 seconds after he first saw the truck that it started to roll forwards. At that point Mr Haddad was still on the northern side of the college driveway. He observed the truck move north slowly in the left-hand lane. 
54.	Mr Haddad stated as he crossed the college driveway, he noticed the truck start to swing out into the right-hand lane. He said the nose of the truck moved into the right lane and then the rear of the truck moved into the right lane as the front of the truck moved into the left lane. He started that during the manoeuvre, part of the truck was always in both lanes and he never saw the truck wholly in the right-hand northbound lane. He agreed with Mr Stone that the truck was never more than 2/3 into the right-hand lane and that there was, in effect, a sweeping turning movement by the truck. 
55.	Mr Haddad stated the left-hand indicator was on during the entire time he had the truck under observation He did not see the right-hand indicator on at any time. He did not see hazards lights activated at any time while he had the truck under observation. 
56.	When questioned by Mr Stone, Mr Haddad conceded that in a conference with Ms Martin and Mr Stone at 5.00 pm the preceding day he said that the truck momentarily flashed the right indicator a few times “realised that he was doing that truck thing that he was pulling out to pull in”.
57.	The following exchange occurred:
“Mr Stone:	Are you saying that you’ve altered your evidence here today to override a recollection that you had last night because it’s not in your police statement?
Mr Haddad:	No, I’m not saying that, but I can’t recall the right-hand indicator being engaged. So, I’m not saying that I observed it.
Mr Stone:	Well, it was a recollection that you had when you were talking to Ms Martin last night wasn’t it?
Mr Haddad:	It was a recollection, yes.
Mr Stone:	And it’s a recollection that you’ve now abandoned today?
Mr Haddad:	Yes, it is.” 
58.	Mr Haddad stated as the rear of the truck cleared the left-hand lane, he saw the scooter approaching on the right-hand lane approximately 10 metres to the rear of the truck. He says as the scooter approached the rear of the truck, he observed it to slow down. 
59.	When he reached the southern side of the driveway Mr Haddad said the turn commenced with the front of the truck starting to turn into the driveway and the rear of the truck moving from the left-hand lane into the right-hand lane. He said most of the tray of the truck was still within his field of vision. Mr Haddad said the scooter was closing on the rear of the truck and was decelerating before he heard the scooter’s motor deepen and he swung into the left-hand lane. At that point Mr Haddad said he raised his left arm to alert the scooter driver to what he sensed was danger. 
60.	Mr Haddad estimated the scooter was less than three metres from him when it moved into the left-hand lane and at that point Mr Haddad estimated he was five to 10 metres beyond the southern border of the driveway in line with the scooter and the rear of the truck. 
61.	Mr Haddad disagreed with the proposition that the truck did not commence its turn until the scooter was in the left-hand lane and alongside the rear section of the truck. 
62.	Mr Haddad said after he raised his arm the scooter went by him and he heard a crashing sound before turning to see what was happening. He said he observed the truck rolling forward into the driveway when there was an impact with the scooter forward of the double bogey towards the rear of the truck. 
63.	Mr Haddad was unable to say whether shortly after the impact the truck reversed a short distance to get it off the claimant, although he agreed it was possible. 
64.	Mr Haddad said the truck kept moving so he alerted the driver who then jumped out of the vehicle and came around to the left-hand side of the truck. 
The insurer’s submissions
65.	The insurer accepts it bears the onus of proof in showing that the claimant was wholly or mostly at fault.
66.	Mr Malley agreed that both witnesses who gave oral testimony had endeavoured to assist the Commission with their recollection of what had occurred. He submitted the claimant had an interest in the outcome whilst Mr Haddad was the classic, disinterested independent witness.
67.	Mr Haddad was ideally placed to see what occurred. He was adamant that the left-hand indicator was on at all times, even when the truck started to move into the right-hand lane. He was also adamant that the scooter did not move to the left-hand lane until after the truck had commenced its turn. Indeed, Mr Haddad asserted that at no time was the truck wholly in the right-hand lane and parallel to the gutter but, in fact, made a sweeping a manoeuvre to turn into the driveway. 
68.	Whilst the evidence of Mr Haddad has a number of points of difference from the evidence contained in the statement of Mr Whetnall, the insurer submits that the evidence of Mr Haddad should be accepted, and I should find the claimant was wholly at fault. 
The claimant’s submissions
Onus of proof
69.	The claimant agrees the insurer bears the onus of proving that the claimant was wholly or mostly at fault. This means the insurer has the onus of adducing evidence of facts to prove that fault. The claimant does not need to prove anything beyond his involvement in the accident. 
Weight to be given to the police officer’s opinion
70.	The claimant objects to any weight being given to what is described as the ‘non-expert and speculative opinion’ of the police officer. 
71.	The claimant submits that, whilst I am not technically bound by the rules of evidence, I am bound by the rules of procedural fairness. 
72.	Accordingly, the claimant submits I would err if I was to place any weight upon an unqualified, non-expert opinion to reach a conclusion and if I did so the conclusion would be procedurally unfair and an error of law. 
73.	The claimant also submits no weight should be placed on hearsay evidence. 
Resolving the conflicting accounts
74.	Whilst agreeing he was a persuasive witness, Mr Stone submitted, I would have serious doubts about the accuracy of Mr Haddad’s recollections. 
75.	The claimant sought to highlight the points of difference between the evidence of Mr Whetnall and Mr Haddad noting that in each instance the evidence of the claimant is consistent with that of Mr Whetnall. 
(a)	Mr Whetnall says he pulled away from the kerb whilst Mr Haddad says the truck rolled forward. The claimant stated the truck started to pull out from the left lane and move directly over to the right lane.
(b)	Mr Whetnall says he indicated right. When questioned Mr Haddad denied Mr Whetnall indicated right although he conceded he told Mr Stone and Ms Martin in conference that the truck momentarily flashed the right indicator a few times. The claimant observed the right indicator blinking and the truck start to pull out. 
(c)	Mr Whetnall says he indicated right to get into lane 2 of 2 (the right-hand lane) whilst Mr Haddad stated the truck was never fully in the right-hand lane but in effect straddled both lanes. The claimant states the truck moved fully into the right-hand lane. 
(d)	Mr Whetnall says he travelled along lane 2 whilst Mr Haddad says in the course of making a sweeping turn movement the truck was never more than 2/3 into the right-hand lane. The claimant says the truck travelled in the right-hand lane. 
(e)	Mr Whetnall says he was asked to reverse slightly to take the pressure off the claimant. This is consistent with the claimant’s testimony that the truck backed off him degloving his thigh. Mr Haddad had no recollection of the truck reversing although conceded it may have occurred. 
(f)	Mr Whetnall says the impact was at about the petrol tank area just behind the front wheels whilst Mr Haddad said the impact was forward of the double bogey towards the rear of the truck. The claimant described the point of impact as just behind the front axle. 
76.	Mr Stone argued if the truck turned left and indicated the left-hand turn before Mr Haddad first saw the scooter change from the right-hand lane into the left-hand lane such a manoeuvre would have been a suicidal move by the claimant. 
77.	Mr Stone submitted that the account of Mr Whetnall was largely consistent with the claimant’s account, the main point of distinction being Mr Whetnall said he indicated before turning left and the claimant denied observing the left-hand indicator. 
78.	Mr Stone suggested the assertion by Mr Whetnall that he activated his hazard lights was an extraneous detail made up after the event. In any event it is not otherwise supported by either the claimant or Mr Haddad. 
79.	Mr Stone also noted there was no suggestion in the statement of Mr Whetnall that he checked his mirror before moving into the right-hand lane. He submits that if he checked his mirror at that time, he would have become aware of the presence of the scooter, particularly given the presence of the hard-wired headlight, in the right-hand lane behind him. Mr Stone argues the failure to observe the claimant’s scooter suggests Mr Whetnall did not check his right-hand mirror before pulling into the right-hand lane. 
80.	Mr Stone submitted that the account provided by the claimant in his oral testimony was consistent with his prior statement, apart from being vague as to whether he was 100 or 150 metres from the truck when he first saw it. Mr Stone suggested that answer was no more than an indication of the difficulty of estimating distances in a moving tableau. 
81.	Mr Stone submitted that I would find no fault on the part of the claimant and that I would not be satisfied Mr Whetnall indicated left before moving into the left-hand lane.
82.	However, if I am not persuaded the claimant was not wholly at fault, Mr Stone concedes there is some complexity in establishing the claimant was not mostly at fault. 
83.	Mr Stone submits if Mr Whetnall checked both right and left side mirrors before indicating and turning left, he would have seen the claimant’s scooter. Furthermore, he questions the need to check the right-hand mirror if Mr Whetnall was intending to move into the left-hand lane. 
WAS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT
84.	Section 1.4 of the MAI Act defines motor accident as follows:
“’motor accident‘ means an incident or accident involving the use or operation of a motor vehicle that caused 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.”
85.	The insurer accepts the claimant was injured in an accident involving the use or operation of a motor vehicle that caused and resulted in injury in accordance with section 1.4 of the MAI Act. 
86.	I do not propose to give any weight to the opinion of the police officer, Constable Kasey Watler where he was not an eyewitness to the accident and where he is not an expert.
87.	To find the claimant was wholly or mostly at fault it is only necessary to find that the insurer has not discharged its onus. In other words, if I cannot decide between the version of events relied upon by the insurer and the version of events relied upon by the claimant, the insurer will not have discharged its onus in establishing the claimant was wholly or mostly at fault. 
88.	However, the critical issue in determining whether the claimant was wholly at fault is whether Mr Whetnall activated his left-hand indicator before commencing his turn into the driveway.
89.	In the circumstances of this claim, given the divergence of evidence as to whether Mr Whetnall activated his left-hand indicator prior to moving into the left-hand lane, the onus of proof is significant.
90.	Leaving aside the question of whether the left-hand indicator was activated there are more points of comparison between the evidence of the claimant and the evidence of Mr Whetnall than there are between the evidence of the independent witness Mr Haddad and Mr Whetnall. 
91.	Mr Haddad was a persuasive witness and believed his recollection of what occurred to be correct. However, it is difficult to reconcile his evidence with the evidence of both the claimant and Mr Whetnall. 
92.	If I was to accept that the truck did not indicate right, did not move fully into the right-hand lane but straddled both lanes in the course of making a sweeping turn into the driveway of Marcellin College it would be necessary to find the claimant moved into the left-hand lane at a time when the truck was still, in part, straddling that lane. I find that unlikely. 
93.	I find the truck driven by Mr Whetnall did indicate right before moving into the right-hand lane. I am not satisfied Mr Haddad was confident about his recollection as to whether Mr Whetnall indicated right, noting he conceded he advised Mr Stone and Ms Martin in conference the day before the assessment conference that the truck momentarily flashed the right indicator a few times. Therefore, I do not accept the evidence of Mr Haddad that the truck had the left-hand indicator activated during the entire time he had the truck under observation.
94.	I find the point of impact was at about the petrol tank just behind the front wheels in accordance with the evidence of the claimant and Mr Whetnall and not in front of the double bogey as suggested by Mr Haddad. 
95.	I find the truck did not indicate left before moving into the left-hand lane. I am satisfied the suggestion by Mr Whetnall that he indicated left and that he waked [sic] his hazards on were details made up by Mr Whetnall, who was undoubtedly distressed about his role in the accident, after the event. I do not accept the evidence of Mr Haddad that the truck had his left-hand indicator on during the entirety of the manoeuvre having regard to my concern about his recollection generally. 
96.	The claimant’s evidence at the assessment conference was persuasive and it was consistent with the version of events the claimant provided to the insurer’s investigator on 28 November 2019. The claimant concedes it was possible Mr Whetnall activated his left-hand indicator but only after the scooter was past the rear corner of the truck. 
97.	I find at the time the claimant indicated left and moved his scooter into the left hand the truck was travelling wholly in the right-hand lane and the claimant was entitled to assume the truck had moved into that lane intending to make a right hand turn further down the road. 
98.	Having regard to the inconsistency between the evidence of Mr Whetnall and the evidence of Mr Haddad I am not satisfied the insurer has discharged the onus of proof to establish that the claimant was wholly at fault. 
99.	The next question is whether the claimant contributed at all to the accident. To be disentitled to statutory benefits under sections 3.11 and 3.28 of the MAI Act it is necessary to find that the contributory negligence of the claimant was more than 61%.
100.	Was the standard of care exercised by the claimant at that time the standard of care of a reasonable person in the position of the claimant having regard to what he knew or ought to have known at the time? In my view yes. Having regard to my findings set out above I find there was no contributory negligence by the claimant. 
CONCLUSION
101.	I find pursuant to sections 3.11 and 3.28 of the MAI Act that the accident was not wholly or mostly caused by the fault of the claimant. 
102.	It follows that where the claimant was not wholly or mostly at fault for the accident, he is entitled to payment of statutory benefits beyond the first 26 weeks after the accident in accordance with sections 3.11 and 3.28 of the MAI Act. 
COSTS
103.	Schedule 1 Part 1, clause 3(1) of the Motor Accident Injuries Regulation 2017 (the MAI Regulation) provides that the maximum costs for legal services provided to a claimant or an insurer in connection with an assessment under Division 7.6 of the MAI Act involving a dispute about a regulated miscellaneous claims assessment matter are 16 monetary units (to a maximum of 60 monetary units per claim). The subject disputes are miscellaneous claims assessment matters under Schedule 1, Part 1, clause 3(2) of the MAI Regulation. 
104.	The claimant seeks an order for costs in excess of the regulated fee under section 8.10(4)(b) of the MAI Act on the basis of exceptional circumstances.
105.	Section 8.10 of the Act provides:

“8.10 Recovery of costs and expenses in relation to claims for statutory benefits

(1)	A Claimant for statutory benefits is (subject to this section) entitled to recover from the Insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the Claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.

(2)	The regulations may make provision for or with respect to fixing the maximum costs and expenses recoverable by a Claimant under this section (including any matters for which no costs and expenses are recoverable from the Insurer).

(3)	A Claimant for statutory benefits is only entitled to recover from the Insurer against whom the claim is made reasonable and necessary legal costs incurred by the Claimant if payment of those costs is permitted by the regulations or the Dispute Resolution Service.

(4)	The Dispute Resolution Service can permit payment of legal costs incurred by a Claimant but only if satisfied that:

(a)	the Claimant is under a legal disability, or
(b)	exceptional circumstances exist that justify payment of legal costs incurred by the Claimant.

(5)	An Insurer is not entitled to recover from a Claimant for statutory benefits any legal costs, or other costs and expenses, of the Insurer in relation to the claim.”
The claimant’s submissions
106.	Mr Stone concedes that the intent of the MAI Act is to have a large number of disputes determined for a regulated fee. Mr Stone submitted that it is not necessary to establish that the dispute is exceptional within the singular category of a liability dispute but within the totality of disputes pertaining to claims for statutory benefits. 
107.	In Ho v Professional Services Review Committee No 295 [2007] FCA 388 Rares J considered the term ‘exceptional circumstances’ stating at [26]:
“Exceptional circumstances within the meaning of s106KA(2) can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significant, when taken together are seen as exceptional.”
108.	Mr Stone submitted that holding a face-to-face assessment conference in the course of determining a statutory dispute was of itself exceptional and justified the involvement of counsel and even senior counsel. 
109.	Mr Stone also pointed out that very significant rights hinged on the outcome of this dispute for the claimant and procedural fairness, particularly having regard to the resources available to the insurer, means the claimant should not be denied recovery of exceptional costs in this dispute. 

The insurer’s submissions
110.	The insurer submitted the dispute was factual only and the proceedings did not involve legal or procedural complexity. Mr Malley submitted that this dispute involved a motor vehicle collision with three witnesses, an ordinary, everyday event which could have been dealt with on the papers. 
111.	The insurer submitted that in introducing the MAI Act, it was the intention of Parliament to reduce the amount expended in legal costs in the CTP scheme to ensure the overall affordability of the scheme. I do understand Mr Stone to cavil with that argument. 
112.	The insurer submits the circumstances of the dispute are not exceptional or out of the ordinary and the fact that the claimant elected to engage senior counsel and to incur legal costs outside the legislative framework does not make the case exceptional. 
113.	The insurer submits it is necessary to keep the objects of the Act in mind when determining costs, in particular the objects set out in section 1.3(2)(d) to keep premiums affordable and in section 1.3(2)(g) to encourage the quick, cost effective and just resolution of disputes. 
114.	The insurer also relies upon section 1.3(3)(a) which refers to the shared and integrated role of all participants in the scheme in the overall aim of benefiting all members of the motoring public by keeping the overall costs of the scheme within reasonable bounds.
115.	The insurer submits for the “exceptional circumstances” caveat to be invoked the dispute and any work incidental thereto must truly be extraordinary. 
116.	In interpreting a provision of the MAI Act the insurer reminds me that section 1.3(4) requires me to prefer a construction that would promote the objects of the Act or the provision to a construction that does not promote those objects. 
117.	Similarly, section 1.3(5) requires me to exercise any discretion under the MAI Act or the regulations in a way that would best promote the objects of the Act or the provision concerned. 
Determination
118.	In AAI Ltd trading as GIO v Moon [2020] NSWSC 714 Wright J at [97] stated section 8.10(4) of the MAI Act provides the power to permit legal costs designed to deal with particular, unusual situations where the maximum costs fixed by the regulations may not be adequate. 
119.	Further at [99] Wright J stated:
“In addition, other cases can be envisaged which are exceptional, because they involve an unusual degree of factual or legal complexity or for some other reasons, and this requires the incurring of more substantial legal costs by a claimant.”
120.	In San v Rumble (No. 2) [2007] NSWCA 259 the Court of Appeal considered the term “exceptional case”. Campbell JA stated at [67]:
“In deciding whether it is an ‘exceptional case’ within the meaning of s 153(1), the court needs to find that the circumstances of the instant case are unusual or out of the ordinary, whether that unusualness or being out of the ordinary arises from qualitative or quantitative factors.”
121.	In the circumstances of this claim no detailed statement had been obtained from Mr Haddad where his contact details were unknown until after documents were produced in response to a Direction for Production. I agreed with the claimant that this was an appropriate matter for an assessment conference given the conflicting accounts of the accident provided by the claimant, the insured driver, Mr Whetnall and the independent witness, Mr Haddad. 
122.	There was a significant factual dispute and I considered failing to give the claimant an opportunity to question the insured driver and the witness would deny the claimant an opportunity to test the evidence of those witnesses and possibly constitute a denial of procedural fairness
123.	Whilst the parties were unable to secure the attendance of Mr Whetnall, it was the oral evidence of Mr Haddad, and in particular, the inconsistency in his evidence with that of Mr Whetnall and the claimant which was significant in my determination that the insurer had not discharged the onus of proof in demonstrating that the claimant was wholly or mostly at fault. 
124.	Whilst I note the objects of the MAI Act relied upon by the insurer, I also note that section 1.3(2)(g) includes not only the quick and cost effective resolution of disputes but also the ‘just resolution’ of disputes. 
125.	In my view the ‘just resolution’ of the dispute included the need for a face-to-face assessment conference. 
126.	Whilst the dispute may not have been exceptional within the singular category of liability disputes it was exceptional within the 16 types of miscellaneous claims assessment matters included in Schedule 1, Part 1, clause 3(2) of the MAI Regulation.
127.	In the particular circumstances of this claim I am not satisfied the maximum costs fixed by the Regulation are adequate. The need for an assessment conference required the incurring of more substantial legal costs by the claimant. 
128.	I am satisfied the necessity for an assessment conference having regard to the conflicting evidence of the witnesses would constitute an exceptional circumstance, where face to face assessments are not usually required for the resolution of miscellaneous claims assessment matters.
129.	I propose to assess costs on an exceptional basis pursuant to section 8.10(4) of the MAI Act. 
The assessment of costs
130.	In a document dated 11 November 2021 the claimant provided itemisation of both the solicitor’s costs and the costs of Mr Stone, senior counsel.
131.	The claim for solicitors’ costs is calculated at the rate of $500 per hour for work performed by Ms Martin, a practitioner with over 20 years’ experience, at the rate of $250 per hour for work performed by Shirley Jin, a practitioner with less than five years post admission experience and work performed by an administrative assistant at $100 per hour. A claim is made in the total sum of $14,377.50 plus GST. 
132.	The insurer submits that recoverable costs are limited to costs “in connection with an assessment”, that is, the costs in connection with the assessment before the PIC in accordance with Schedule 1 Part 1, clause 3(1) of the MAI Regulation. 
133.	The insurer also takes issue with the hourly rate claimed and submits that it is not appropriate to award costs based on an hourly rate exceeding that recoverable for legal representation at an assessment conference and/or in relation to a conference directly related to a claims assessment, namely three monetary units or of $320.67 plus GST per hour. The insurer submitted the solicitor’s costs should be allowed in the sum of $3,053.16 which I calculate equates to 9.52 hours at $320.67 per hour.
134.	Having regard to the overall aim of keeping the scheme affordable I generally agree with the submissions of the insurer. However, I propose to allow 12 hours at $320.67 per hour to take into account the work involving in briefing and conferring with counsel. I allow solicitors costs in the sum of $3,848.04 plus GST.
135.	A claim is made for disbursements, not subject to GST in the sum of $226.40. I do not propose to allow for photocopying but will allow the sum of $30 in respect of the GIPA Application. 
136.	An additional claim is made for counsel’s fees at the rate of $600 per hour in the total sum of $12,700 plus GST.
137.	Whilst I do not agree with the insurer that this was not an appropriate matter for counsel, I do agree that it did not call for the involvement of senior counsel. Whilst not conceding any liability for counsel’s fees the insurer submitted, I would also allow counsel’s fees at the rate of $320.67 per hour. I find it more appropriate to allow counsel’s fees at the rate of $400 per hour. 
138.	The insurer submitted it was appropriate to allow counsel’s fees for 12.33 hours. Whilst I agree generally with the insurer’s objections in respect of counsel’s fees, I propose to make an additional allowance for counsel’s time in reviewing the insurer’s reply and drafting further submissions as to why an assessment conference was required. I consider 15 hours reasonable. 
139.	Accordingly, I propose to allow counsel’s fees calculated at $400 per hour for 15 hours in the sum of $6,000 plus GST.
140.	I assess costs in favour of the claimant in the total sum of $10,862.84. 

Susan McTegg
Member (Motor Accidents Division)
Personal Injury Commission.