In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission's (Commission) assessment is:

1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant.
2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant.

A statement setting out the Commission's reasons for the assessment is included with this certificate.

1. Gurvinder Singh was involved in a motor accident on 1 June 2022 at about 6.30pm. There is no dispute that Mr Singh was the driver of a motor vehicle that commenced to proceed through a multi-lane intersection that collided with another vehicle travelling in the opposite direction who turned across his path. What is in dispute is who had the benefit of a green light that permitted the driver to drive through the intersection.
2. Both Mr Singh and the driver of the other vehicle, Mr Scerri, participated in a record of interview that was recorded by the investigating police officer via body cam and an agreed transcription of those interviews was provided with the insurer's updated material. As both Mr Singh and Mr Scerri were to be questioned about the accounts provided on the evening of the accident, both were asked by me to view a recording of their respective interviews on the day of the hearing. I am told they did so prior to being questioned at the assessment conference.
3. Mr Singh made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) against QBE Insurance (Australia) Limited, the third-party insurer of Mr Scerri's motor vehicle.
4. Whilst the claim was accepted and statutory benefits paid for the first 26 weeks after the accident, QBE later denied liability to pay ongoing statutory benefits to the claimant on the basis that he was "wholly or mostly at fault". The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. On 2 September 2024 the insurer affirmed that decision.
5. Mr Singh referred the issue of whether he was wholly or mostly at fault to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
6. After the proceedings were allocated to me, I conducted three preliminary conferences. At the first preliminary conference I was requested to issue various notices of production, with the matter thereafter adjourned pending production of material from those notices. At the second preliminary conference a timetable was set to list the matter for an assessment conference and I made various directions compelling the parties to upload their material on the Commission Portal. Just prior to the proposed assessment conference, I was requested to conduct an urgent preliminary conference and subsequently deferred the date for the assessment conference to permit the insured and his passenger to be physically available for questioning, in addition to ensuring an appropriate interpreter was available to assist the claimant.

1. Mr Singh's claim for statutory benefits was made pursuant to Part 3 of the MAI Act. Statutory benefits include weekly income benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
2. Pursuant to Division 3.1 of the MAI Act, benefits are payable regardless of whether there is fault on the part of the owner driver of the motor vehicle in the use or operation of the motor vehicle, and even if the injured persons fault caused the motor accident. However, pursuant to Division 3.11(1) and 3.28(1), an injured person is not entitled to statutory benefits beyond the first 26 weeks after the accident if the injured person only has threshold injuries (within the definition of s1.6) or if the injured person was wholly or mostly at fault in causing the accident.
3. Whilst there is no definition of "wholly at fault," a motor accident is caused "mostly by the fault'' of a person if contributory negligence is assessed as greater than 61%.[1]
4. The parties agree that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Mr Singh is wholly or mostly at fault in respect to his weekly benefits (Schedule 2 cl 3(d)) and whether he is wholly or mostly at fault in respect to his treatment and care benefits (Schedule 2 cl 3(e)).

1. Prior to the commencement of the hearing, I acknowledged that a certified Punjab interpreter, Mr Paramjit Singh CPN6MT13B, was available at the hearing to assist

Mr Singh. Mr Singh indicated his preference was to answer questions that were asked of him in English however, I requested that if he harboured any concerns in respect to understanding the precise words of any questions asked of him that he ought to have recourse to the interpreter. During the hearing there were a number of occasions in which Mr Singh sought the assistance of the interpreter. Accordingly, I am content that Mr Singh understood the nature of all the questions asked of him. 2. At the commencement of the hearing the claimant's counsel sought to add to the material the recent medical assessments of the Commission being the certificates and reasons of Medical Assessors Woo and Curtin who assessed the claimant for whole person impairment. The insurer's counsel objected to those reports and have been added to the material to be considered by me on the basis that they ought to have been included with the claimant's uploaded material. Furthermore, both assessments were still within the review period and if a review was undertaken and successful, those assessments would have no validity. 3. I accept that there is limited relevance in respect to both reports in relation to the issues I need to decide however, there are potentially matters of recorded medical history in those reports that may be relevant and as a result, I propose to permit the reports to form part of the material to be considered by me. 4. The insurer's counsel also took objection to Mr Singh providing further evidence beyond what has been provided in his statement in the material filed on his behalf. The insurer's counsel submitted that the issues in the case were historical, and unlike damages assessments, updating evidence since the last statement in the circumstances was inappropriate. The claimant's counsel submitted that there were discrete issues he wished to explore with the claimant including the disparity of versions of the accident provided by the claimant on the evening of the accident and subsequently. In the circumstances I acceded to the claimant's counsel's request in the interests of justice. I thereafter proposed to permit the insurer's counsel to question the claimant in respect to this additional material, rather than that material potentially becoming available effectively in re-examination of the claimant. Such would have otherwise deprived the insurer of an opportunity to further question the claimant in respect to it. 5. At the conclusion of the questioning of Mr Singh, Mr Scerri and his father (who was a passenger in his vehicle), the claimant's counsel sought to obtain further evidence from Mr Johnston the mechanical engineering expert retained on behalf the claimant. Objection was taken by the insurer's counsel to any further evidence being provided by Mr Johnston, as such ought properly have been provided in response to the insurer's expert report from Mr Keramidis, there having been ample opportunity provided to the claimant to respond to the insurer's expert report previously. The claimant's counsel was unable to satisfy me that there were matters that have arisen from the questioning of the lay evidence that potentially could impact upon the opinions expressed by Mr Johnston that justified having Mr Johnston provide further evidence. Accordingly, I declined the claimant's counsel's application to have Mr Johnston give oral evidence at the hearing as the only basis to do so effectively would have been to respond to Mr Keramidis' opinions that ought to have been undertaken previously by way of a supplementary report.

1. The parties formally agreed the following facts:

(a) at about 6.30pm on 1 June 2022 the claimant Gurvinder Singh was driving a white Toyota Aurion sedan, registered number EEL89V, in a northerly direction along Northern Road, Luddenham;

(b) at the same time Christopher Scerri was driving a Mazda utility, registered number CQD19T, in a southerly direction along Northern Road, Luddenham, and

(c) at an intersection of Northern Road, Luddenham, Christopher Scerri attempted to make a right-hand turn into Elizabeth Drive, Luddenham when a collision occurred with the claimant's vehicle.

1. It was submitted on behalf of the claimant that I would accept the claimant's evidence that he was in a state of shock when responding to questions in the police interview at the hospital some hours after the accident. This is the reason it was submitted, that there is a disparity between the version of events conveyed by the claimant, particularly regarding his vagueness as to the colour of the traffic light he faced as he entered the intersection, together with his assessment as to who was at fault. It was submitted that I would find that it was plausible that the claimant was focused on other matters and in a state of shock after been medicated at the hospital. Such was prior to the police conducting a verbal record of interview, a transcript of which has been agreed between the parties to be an accurate record of that interview.
2. It was further submitted that the claimant's retained expert Mr Johnston confirms that the traffic signal phasing report at the time of the accident is indecisive and that the speed of Mr Scerri's vehicle was significantly faster than stated, thereby raising questions about his account of stopping on a red arrow prior to proceeding after it turned green. The claimant in the circumstances, it was submitted, was limited to approximately 1.9 seconds, requiring about 77m to perceive, respond and stop.
3. It was also submitted that any criticism of Mr Johnston's opinions having not been provided with parts of the police investigation material and extensive photographs taken by the police, are overridden by Mr Johnston's detailed site visit, whereas Mr Keramidis failed to inspect the site.
4. In all the circumstances the relative culpability ought to be found as to 75% to Mr Scerri and 25% to Mr Singh.

1. The insurer submits that I will have little difficulty in finding favour with the factual version provided by Mr Scerri, that has been consistent at the scene of the accident and in subsequent statements obtained from him. Furthermore, such version is also corroborated by his father who was a passenger in the vehicle driven by Mr Scerri. It was submitted that I would not accept Mr Singh's contention that he was confused when providing particular aspects of the accident on the evening of the accident namely, what colour the lights were, to which he indicated, "I don't remember that, sorry." Also, when asked, "Who do you think caused the accident?," Mr Singh replied: "I don't know, to be honest I don't know." The subsequent versions provided by Mr Singh, that he definitely faced a green light when entering the intersection prior to the collision, cannot in the circumstances be accepted.
2. Furthermore, it was submitted that I would be concerned and not accept the evidence given for the first time by Mr Singh at the hearing, of a conversation that purportedly occurred between he and Mr Scerri at the scene after the accident. Mr Singh gave evidence that after the accident he said to Mr Scerri, "Why did you jump the lights?" However, Mr Singh had signed a statement dated 4 August 2022, from a telephone interview with a loss assessor, whereby he indicated he had never spoken to the other driver or his passenger.[2]
3. It was further submitted that I would accept the lay evidence of those who observed the collision, and who were stopped in the streets crossing the northern road, that rendered likely the traffic light phasing triggering phase "G2" that would have provided a green arrow for Mr Scerri and a red light for Mr Singh prior to him arriving at the intersection. In accordance with the expert report of Mr Keramidis, had Mr Singh been keeping a proper lookout he would have had approximately 6.7 seconds to observe Mr Scerri's vehicle, and with normal perception/response times, would have had sufficient time to slow prior to reaching the point where impact occurred such as to avoid that impact.
4. Furthermore, it was submitted I would have no difficulty in accepting the thorough and detailed analysis provided in Mr Keramidis' report as opposed to that of Mr Johnston who did not have significant material produced by the police as well as extensive police photographs.

The claimant's statements record of Interview 1 June 2022.

1. Mr Singh was interviewed by investigating police officer Constable Rubbo at Nepean Hospital at approximately 10.00pm, some three and a half hours after the accident.

Mr Singh said he was in the left lane travelling north along Northern Road, Luddenham and prior to entering the intersection where the accident occurred, he did not remember the colour of the traffic light that he was facing. He was both familiar with the car he was driving having owned it for three years and had regularly driven it. He was also familiar with the road where the accident occurred as it is his regular route to and from work. His car was in good mechanical condition with a clean windscreen and whilst it was dark, the road was well illuminated with overhead lighting. As he entered the intersection, he saw no cars on either side of him or in the intersection. He then " ... saw this ute ... I grabbed the handle very tightly ... and that's it".[3] 2. Mr Singh confirmed he was the only person in the car, had clear visibility and was listening to YouTube on his mobile phone that he had put in the console of the vehicle.

1. Mr Singh signed an Application for Personal Injury Benefits on 16 June 2022 in which he described the accident:

"I proceeded through the intersection at Elizabeth Drive as I had a green light when vehicle registration CQD19T, which had been travelling in the opposite direction, turned right at the intersection against a red light and collided with my vehicle."[4]

Statement from telephone interview with insurer investigator 4 August 2022

1. Mr Singh participated in a telephone interview with David O'Neill from Quantum Corp instructed by the insurer, who in turn produced a draft statement that was perused by his solicitor prior to him signing it sometime subsequently. At the time the telephone interview was undertaken his wife and legal representative were present. In his statement he said he was driving home to Parramatta from this place of work at Narellan. He said the weather conditions were fine and the road was dry with good visibility, because of the streetlights in the vicinity of the accident scene. His headlights were turned on, but he does not remember if the other vehicle involved had their headlights on or off.
2. Mr Singh indicated the traffic lights facing him:

" ... at the intersection were always green as I approached and entered the intersection. I don't remember exactly if the traffic light displayed green left or right turn arrow, but I am 100% certain that I definitely had a green light to proceed straight across the intersection. I always go straight across that intersection towards the M4 Motorway so I was focused on the green circle traffic lights and I remember that very clearly and with certainty."[5]

"I don't remember the approximate distance between my car and the other vehicle when I first saw it but it just appeared directly in front of my path and I didn't have time to brake or take any evasive action to avoid the collision.''[6]

1. Mr Singh further deposes that: "I never spoke with the other driver or his passenger ... I was in so much pain and that was the main thing I focused on post collision."[7]

1. Mr Singh confirmed he had been driving effectively for 12 years, and since arriving in Australia in 2017, he had driven 50 hours a week as he worked as a truck driver. On the day of the accident, he was driving in the left northbound lane of Northern Road approaching the intersection of Elizabeth Drive at approximately 75 to 80kph:

"I am 100% sure that I had a green light to proceed straight across the intersection. When I was about halfway across the intersection, a white car suddenly appeared directly in front of me. There was nothing I could do. It all happened so quickly. I was not able to take any evasive action to avoid the collision."[8]

1. Mr Singh deposed that he suffered an intra articular fracture of the distal left radius, a displaced intra articular fracture of the distal right radius and a displaced right ulnar styloid process fracture. The day after the accident an open reduction and internal fixation was undertaken on both wrists, with him being discharged from hospital on 3 June 2022.

Dr Conrad reported on his fractured wrists, neck injury, injury to both shoulders as well as continued back pain from the accident. He further deposed in the weeks following the accident that he started feeling depressed and anxious with a feeling of helplessness due to his inability to work and support his partner. He has not been able to work since the accident.[9]

1. Mr Singh said at the hospital prior to the interview with Constable Rubbo, he had consumed some painkillers and was feeling "fear and confusion." By inference, the version in relation to the colour of the traffic light he was facing and who was at fault, was clouded in confusion due to the shock he was experiencing because of the trauma in the accident. Mr Singh indicated he had spoken to the other driver soon after the accident and said to him, "Why did you jump the light?" Mr Singh indicated that the insured responded, "I didn't, you did". Mr Singh confirmed that his description of the accident, and the claim form, was correct as was his explanation at the time of being interviewed by the loss assessor, namely, that he had a green light upon entering the intersection.
2. When it was suggested to Mr Singh that the version provided to Constable Rubbo was completely different to that he had subsequently provided i.e. in respect to the colour of the traffic light he was facing, he responded, "I don't remember". In his statement he indicated he was "100% certain he definitely had a green light to proceed across the intersection". Mr Singh responded, "I was in shock and confused".
3. Mr Singh was reminded that he was asked by Constable Rubbo on the evening of the accident, "Who caused the accident?" Constable Rubbo was told by Mr Singh, "To be honest I don't know". When asked by Constable Rubbo at that time "Do you think he ran the red light?" Mr Singh responded, "I'm not sure".
4. Further, when it was suggested to Mr Singh that he had not advised the police that he had a conversation with the other driver, Mr Singh said "he never asked" and subsequently conceded, "I was confused".
5. Finally, it was suggested to Mr Singh that on approaching the intersection he would have had in the order of 200m of clear view to identify the insured's vehicle turning across his path. It was suggested to Mr Singh that he was not looking straight ahead as if he had done so, he would have seen the insured's vehicle. Mr Singh said he knew he had a clear path as he entered the intersection and only saw the insured's utility when it was "just in front of me".

1. The insured, Mr Scerri was interviewed by Constable Rubbo at the accident site on the day of the accident at 8.23pm in a recorded record of interview via body cam. A transcription has been provided by the insurer and is agreed by Mr Scerri to be an accurate account of the recorded interview.
2. Mr Scerri said he was waiting at the lights until he had a green arrow to turn. "Halfway through the corner I didn't even see him, no lights, no nothing, just bang."[10] He said he was stopped for a good minute before the arrow turned green. He said he was driving his work vehicle, a BT50 that was mechanically sound, that he had been driving daily for the previous four to five weeks. He said his father James Scerri was sitting in the passenger seat when the accident occurred. He said he believed "the other party ran the red light and cleaned me up".[11]

Insured property damage claim form dated 2 June 2022

1. A description of the accident was provided in the insured employer's property damage claim where it was confirmed Mr Scerri was travelling southbound on Northern Road turning right onto Wilmington Road, when another vehicle heading north went through the intersection and we collided. "I believe the other vehicle went through a red light possibly on the phone as there was no attempt of braking shown."[12] The relative speed of the two vehicles was disclosed as 15-20kph for Mr Scerri's vehicle and 80kph for Mr Singh's vehicle. When I asked Mr Scerri who provided the information in respect to speed, he was unaware even though he was a co-signatory to the claim form.

Statement of Christopher Scerri from telephone interview with Quantum Corp

1. Mr Scerri said he was driving a work vehicle, with which he was familiar, south along the Northern Road in the far-right lane of six lanes. The two right lanes are designed for vehicles turning right. On approach to the intersection the traffic lights facing him were red, resulting in him coming to a complete stop at the stop line where he waited for about 30 seconds to a minute for the lights to change. He noticed a stationary vehicle stopped at the intersection to his right, and when the traffic light changed to a green right turn arrow, he proceeded turning right through the intersection. When almost through the intersection he felt the force of a collision having not seen or heard the other vehicle prior to impact. The airbag in his vehicle hit him in the face and subsequently he noted the front of the other car collided with the front passenger side of his vehicle. Mr Scerri estimated the speed of his vehicle at the time of impact was slow and maybe 20 to 30kph.
2. After helping his father from his car, Mr Scerri went to assist the other driver and asked if he was all right and offered him some water, but did not have any other conversation with him about the circumstances of the accident. Mr Scerri assessed the other driver to be totally at fault as Mr Scerri had a green right turn arrow and could not understand how the other driver did not see him.[13]

Statement of James Scerri from Telephone interview with Quantum Corp 25 August 2022

1. James Scerri deposed he was a front seat passenger in the Mazda BT50 driven by his son. Mr James Scerri recalls being driven in a southerly direction along Northern Road and being stationary at the traffic lights waiting for it to change from red to green with the right indicator engaged. The vehicle was the first vehicle to stop at the stop line and after the green right turn arrow appeared, his son commenced driving into the intersection making a right-hand turn. Mr James Scerri says he remembers:

"Christopher had the green right turn arrow with complete certainty and without any doubt. I remember I was looking up at the traffic lights when we got it, so I didn't see the other vehicle approaching and I didn't see it hit us. There was no screeching tyres or brakes, and no warning at all."[14]

Oral evidence of Christopher Scerri (the insured)

1. Mr Scerri was questioned about his speed as he drove through the intersection which he had variously described as between 15 to 20kph and 20 to 30kph. He conceded that those estimates were a "wild guess". However, he denied that it was possible that he was travelling 50 or 60kph. Mr Scerri confirmed that at no time did he see the other vehicle that collided with him, and was surprised that other drivers had witnessed the vehicle having its headlights on. He further denied that he was not paying attention whilst driving immediately prior to the impact.
2. Mr Scerri confirmed that he had stopped to a red arrow at the subject intersection and only proceeded through it after been provided with a green arrow to do so.

1. Mr James Scerri is the father of the insured and was seated in the front passenger seat of the vehicle driven by his son. At the time of reaching the intersection he recalls the vehicle became stationary at a red arrow before proceeding across the intersection after the arrow turned green. Mr James Scerri did not see the other vehicle as he was focused on the traffic lights that were high above the roadway. It was suggested to Mr James Scerri that his son did not stop at the intersection before proceeding through it, which James Scerri denied.

1. In an interview with David O'Neill from Quantum Corp and Constable Rubbo, it was revealed that there were witnesses to the accident whom Constable Rubbo had interviewed and recorded details in his police notebook. In one vehicle, that was travelling eastwards towards Elizabeth Avenue, was Mr Kong, in another vehicle was Ms Dith from Fairfield. In third vehicle, similarly travelling east to Elizabeth Avenue, was Mr McKiernan. They said their cars had become stationary at a red light at the subject intersection and recounted the vehicle driven by Mr Scerri was making a right-hand turn when the collision occurred. No one was able to identify the colour of the lights facing the vehicles that were either proceeding north or south in Northern Road. All witnesses confirmed that both vehicles involved in the collision had their head lights illuminated.

1. The claimant obtained from Transport for NSW a traffic control signal phasing report for the subject intersection. A response was provided by Mr Wade Stapleton, Lead Network Operations Officer of the department dated 17 April 2024.
2. At this intersection there are essentially four phases that have been activated, two of which have two subsets. The exact sequence and timing of the respective phases in the signal operation is variable as it is governed by demand and traffic density, both at that intersection, and other intersections at the time. If there are no demands for any phase, the intersection will be governed by "A" phase. If there are simultaneous demands for all phases, the sequential cycling will be "A", "D", "E", "G" and then back to "A".
3. The claimant thereafter commissioned an expert engineering investigation report that was prepared by Grant Johnston dated 27 November 2024. In preparation of his report, Mr Johnston attended the intersection, drove both routes undertaken by Mr Singh and Mr Scerri, perused documents provided and relied upon various additional documents and images, as well as taking various measurements of the multi-lanes within the intersection. Mr Johnston also referenced the phasing report and observed the sequencing of traffic lights at the intersection to better understand the phasing report.
4. Mr Johnston explained that the sequencing in the phasing report was dependent upon demand, that is, whether a vehicle was detected on the roadway in a lane dedicated to turn a particular direction, and if not, the next sequence would be skipped. As Mr Johnson had no independent evidence as to the configuration of the lights that faced both Mr Singh and Mr Scerri, he essentially found it conjecture as to what particular phase the lights were in at the time the parties entered the intersection.
5. By examining the damage to the respective vehicles Mr Johnson opines that the impact occurred when Mr Scerri's vehicle was at 45 degrees to the centre front portion of Mr Singh's vehicle. By undertaking a momentum analysis, Mr Johnston determined the likely speed at impact of Mr Scerri's vehicle range from 59 to 63kph on the assumption that Mr Singh was travelling 75 to 80kph.
6. Harnessing a computer application, Mr Johnston was able to determine a person in

Mr Singh's position would have had an average response time of 1.9 seconds. If Mr Scerri was travelling at 25 to 30kph then Mr Singh ought to have had five to seven seconds to perceive Mr Scerri's vehicle after it commenced to turn effectively across the middle of the roadway to the point of impact. If Mr Singh failed to see the other vehicle, then it tends to suggest the other vehicle was travelling at a much higher speed. 7. Mr Johnston determined that Mr Scerri would have had an average of approximately 2.1 seconds response time. He opines that Mr Scerri would have had at least 10 seconds to identify Mr Singh's vehicle approaching, suggesting that Mr Scerri was travelling much faster than he has stated. 8. Finally, Mr Johnson opines that the higher speed is more consistent with a continuous fast acceleration rate rather from the stop position at the holding line and hence it is more likely the vehicle had not stopped at the holding line at all.

1. Mr Keramidis was retained by the insurer and has provided an extensive report after reviewing substantial material. Mr Keramidis undertook a momentum analysis and found that the claimant speed, assuming no braking prior to impact, would have been in the order of 80kph. The speed of the insured's vehicle was assessed to be in the order of

60 kph. Regardless of the colours of the respective traffic lights, Mr Keramidis opines that the claimant failed to keep a proper lookout and if he had done so, would have seen the insured's vehicle at least four seconds prior to impact and that ought to have permitted him to brake for between 1.8 and 2.4 seconds after his response time from detecting the other vehicle. This, Mr Keramidis opines, would have provided the claimant opportunity to have avoided the collision. 2. Mr Keramidis also opines that the traffic light signals at the intersection operate on a "demand" basis which would have been impacted upon the arrival of the insured's vehicle at the intersection, as well as the three vehicles that were eastbound that yielded at a red light and witnessed the collision between the claimant and the insured. On the assumption that the insured's vehicle probably arrived earlier at the intersection, the phase "G2" would have been triggered which would have displayed a green arrow for the insured and a red light for the claimant. 3. Mr Keramidis indicated that the insured, at the time of commencing his turn, would have been at least 120m from the intersection and hence would not have expected to delay his turn. Whilst turning across the intersection it is expected the insured would have had his focus of attention in the direction of his turn.

1. Both the insured and the claimant submitted that they had competing green lights sanctioning them to progress through the subject intersection. The insured says he failed to see the claimant prior to impact, whereas the claimant effectively says he saw the insured's vehicle only a moment prior to impact, at which time all he was able to do in readiness for the inevitable impact was to firmly grip the steering wheel.
2. There is evidence from Constable Rubbo that immediately after the accident he observed the phasing of the traffic lights and concluded that they were responding appropriately. Hence there is no suggestion of the traffic lights malfunctioning such as to provide in the circumstances both parties an ability to proceed with competing green lights.
3. Before assessing any relative culpability between the parties in respect to their manner of driving, being mindful of the approach sanctioned by Justice Michelmore in AAI Limited t/as GIO v Evic,[15] I must make findings as to whether it was the claimant or the insured that was sanctioned to traverse the intersection in accordance with the traffic control lights. I therefore need to carefully assess the versions of both the claimant and the insured.
4. When I turned to assess the credibility of Mr Singh's evidence, there was nothing in his demeanour that I observed whilst he was questioned for more than one hour, that would cause me to have concerns that he was attempting to deliberately mislead me in respect to his recollection of those matters leading up to the accident. It is however telling that within hours after the accident Mr Singh disclosed to Constable Rubbo that he had no recollection of the colour of the traffic lights he faced upon entering the intersection and was unsure as to who was at fault in the accident. Whilst I accept that Mr Singh suffered not inconsiderable injuries, he was at the hospital when interviewed by Constable Rubbo, he was not medicated other than with painkillers and he appeared to otherwise be able to recall detailed aspects of the accident.
5. Whilst Mr Singh may now genuinely believe that in accordance with his usual practice, he had the benefit of a green light when entering the intersection, I do not accept such was the case. I find his answers to Constable Rubbo when interviewed at the hospital some hours after the accident, persuasive in that he had no distinct recollection that he was entering the intersection with a green light permitting to do so. There are other aspects of his evidence that I find confusing, for example, the oral evidence of Mr Singh referring to a conversation he had with the insured immediately after the accident. This is in stark contrast to Mrs Singh's signed statement of 4 August 2022 some two months after the accident, where at paragraph [54] he deposed:

"I never spoke with the other driver or his passenger. They didn't approach me or have any conversation with me. I think they were sitting at the scene on the curb also post-collision. I was in so much pain and that was the main thing I focused on post-collision."

I harbour concerns in respect to Mr Singh's recollection of the events surrounding the accident when three years later, he provides oral evidence attesting to a conversation between he and the insured after signing the statement referred to above in consultation with his solicitor.

1. I am fortified by my concerns in respect to the accuracy of Mr Singh's recollection of the pertinent matters relating to the accident after hearing from both the insured and his father. I harbour no concerns in respect to they both being witnesses of truth, with the insured making some concessions in respect to his estimate of his speed as he drove through the intersection.
2. When I turned to seek further assistance from the expert evidence produced by the parties, I find their opinions to be of limited utility in relation to the issues in the case. Both experts in their momentum analysis conclude that the claimant was travelling at the point of impact in the order of 80kph whilst the insured was travelling in the order of 60kph. Whilst Mr Johnston, retained by the claimant, suggests a likely inference that the insured was travelling much faster than what he conceded, he accordingly leaves open the prospect that he did not in fact become stationary prior to commencing his turn. The traffic phasing report, according to Mr Johnston, does not permit any findings to be made in respect to which party faced a green or red light at the relevant time. This is because the sequencing can be interrupted by a demand placed on the phasing by the presence of other vehicles at the intersection.
3. Mr Keramidis concludes that Mr Singh was not keeping a proper look out prior to the impact as he ought to have seen the insured for at least four seconds, and would have had time to brake after he responded for around two seconds providing an ability to avoid the accident. Mr Keramidis did not however make similar findings in respect to Mr Scerri who failed to see Mr Singh's vehicle at all. Rather he indicated at the time of first turning with the green arrow, Mr Singh's vehicle would have been sufficiently far away for him not to delay entering the intersection. As Mr Scerri executed the turn, his attention would have been more in the direction to which he was heading as opposed to the direction from which Mr Singh was coming.
4. Mr Keramidis is of the view that the arrival of Mr Scerri's vehicle, and the vehicles subsequent at the cross intersection, renders it likely that the phasing would have reverted to "G2" which would have resulted in Mr Singh being provided a red light prior to his entry into the intersection.
5. There appears to be no basis upon which it can be found in what sequence the various parties arrived at the intersection, namely the insured and the three eastbound vehicles that subsequently stopped relative to the approach of Mr Singh's vehicle. Accordingly, I am not satisfied that the demand phasing of the traffic lights at the relevant intersection would have necessarily resulted in a "G2" sequence, thus providing a red light for those vehicles travelling into the intersection in the direction of Mr Singh.
6. I am however satisfied with the evidence of the insured Mr Scerri, and his father, who confirm that Mr Scerri's vehicle became stationary at the intersection at a red arrow for a period before it turned green, permitting the insured to advance through the intersection. As there was no evidence of any malfunctioning of the traffic lights, it follows that Mr Singh must have faced a red light upon his entry into the intersection.

1. I am satisfied on the evidence of the following facts:

(a) The accident occurred in circumstances as agreed between the parties and referred to in paragraph 16 of these Reasons.

(b) When Mr Singh was entering the intersection travelling north, he passed through a red stop traffic control light. I make this finding as I have accepted the evidence of the insured Mr Scerri, and his father, in relation to them progressing through the intersection being obedient to a green arrow. I accept that Constable Rubbo had observed the sequencing of the traffic lights soon after the accident and found there was no malfunctioning of them. Also, I do not share Mr Singh's confidence that he progressed through a green light when entering the intersection, having concerns in respect to the version of events he provided to Constable Rubbo immediately after the accident.

(c) The collision occurred when the insured's vehicle was aligned approximately 45 degrees to the path of travel of Mr Singh's vehicle, resulting in major damage to both vehicles, with the front section of Mr Singh's vehicle substantially impacted as was the front passenger headlight area of the vehicle driven by Mr Scerri. I make this finding based on the numerous photographs depicting the damage to both vehicles and the agreement of the experts when assessing the point of impact.

(d) Mr Singh only became aware of the presence of the vehicle driven by Mr Scerri a moment before impact which only permitted him to take a firm grip on the steering wheel of his vehicle, without time to attempt to brake prior to impact. I make this finding by accepting Mr Singh's various statements and his oral evidence in relation to these matters. I am also comforted by the police investigation that revealed the absence of any skid marks prior to the point of impact.

(e) Mr Scerri only became aware of the presence of Mr Singh's vehicle upon feeling and hearing the impact that he described as a "big bang", having not seen the presence of Mr Singh's vehicle prior to that time. I make this finding as I have accepted the evidence of both Mr Scerri and his father in addition to the absence of any skid marks again noted by the experts.

(f) Both vehicles had their lights illuminated when passing through the intersection. I make this finding based on the evidence of the drivers of the vehicles stopped at the cross street at the intersection who consistently indicated they saw the lights on both vehicles.

(g) The claimant's vehicle prior to impact was travelling approximately 80kph whereas the insured's vehicle was travelling at approximately 60kph. I make this finding based on the general agreement between the experts after undertaking a momentum analysis to determine speed immediately prior to impact based on damage occasioned to each vehicle and their relative characteristics.

Did the claimant contribute to the cause of the accident?

1. I have found that the claimant passed through a red light to progress through the intersection prior to the collision with the insured's vehicle. Clearly on that finding the accident must have been caused by the claimant's failure to exercise reasonable care and appropriately yield at a red traffic control sign rather than proceed into the intersection.
2. In Evic's[16] case Justice Michelmore found where there is more one than one motor vehicle involved in an accident, s 3.11 and s 3.28, the MAI Act requires an assessment of the claimant's contributory negligence by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk[17], [61]. It follows that I must make a determination of the relative culpability of both parties in order to satisfy

s 3.28 (2) of the MAI Act when determining whether the motor accident was caused mostly by the fault of a person if the contributory negligence was greater than 61%.

1. There is an obligation for each driver to take reasonable care and hence the collision involving another vehicle passing through a red light does not necessarily mean that vehicle was 100% contributory negligent in relation to the accident. What amounts to taking reasonable care in the circumstances is a question of fact: see Sibley v Kais.[18] A road user exercising reasonable care must expect that not everyone will comply with all road rules.
2. Mr Scerri passed through a very large intersection as agreed by the experts but failed to detect Mr Singh's vehicle travelling towards him with his lights illuminated. Whilst I accept that the primary focus of Mr Scerri's attention would be to look in the direction of the street in which he was turning, a reasonable driver in the position of Mr Scerri, none the less, ought to have detected the presence of Mr Singh's vehicle prior to impact. For this reason, in my view there is a degree of contributory negligence exhibited by Mr Scerri.

Was the accident caused wholly or mostly by the fault of the claimant?

1. Clearly, on my findings the claimant ought to have stopped at the red light and not entered the intersection which constitutes a failure to exercise reasonable care. The failure however of the claimant not to detect the presence of the insured until a moment before impact also constitutes a failure on his part not to exercise reasonable care in all the circumstances.
2. When considering a comparison of what a reasonable person in the claimant's and insured's position should have done when traversing the subject intersection, in all the circumstances, I consider it just and equitable to assess the claimant's contributory negligence at 80% and the insured at 20%. It follows from this finding that for the purposes of ss 3.11 and 3.28 of the MAI Act, the accident was caused mostly by the fault of the claimant.

1. In the insurer's updated submissions, an application was foreshadowed pursuant to

s 8.3(4) of the MAI Act to seek to have me make an order permitting payment of the insurer's reasonable legal costs for legal services provided to it in connection with the claim. These were to include counsel's fees together with the costs of expert reports. At the conclusion of the hearing the insurer's counsel formally made such an application. The claimant's counsel neither consented nor opposed the insurer's application. 2. At the same time, the claimant sought an order pursuant to s 8.10 (4)(b) of the MAI Act seeking recovery from the insurer for his legal costs incurred as there were exceptional circumstances in terms of the Act that justified such an order. The insurer's counsel neither consented nor opposed the claimant's application.

1. The insurer concedes in the absence of any further orders, its legal service providers are restricted to payment of the maximum costs available pursuant to the Motor Accident Injuries Amendment Regulation 2017.
2. In support of the insurer's application it is submitted two expert reports have been commissioned, extensive oral evidence was adduced from a number of witnesses, both parties are represented by counsel and the issues are complex and involved substantial preparation.
3. Once it is found that this is an appropriate matter in which the Commission should permit payment of the insurer's reasonable legal costs provided to it in connection with the claim, including counsel's fees, the only effective limit placed upon an assessment of the amount of those costs is a determination by a costs assessor that any of those costs were "unreasonably incurred".[19]
4. I agree with the insurers submission this matter involved complex issues in the background of the investigating police being unable to determine who was at fault at the time of the accident and subsequently. Furthermore, both parties appropriately retained expert mechanical engineers to undertake an accident reconstruction, including a momentum analysis to assess the relative speed of both vehicles at the time of impact. I accept that it was appropriate for the insurer to retain a mechanical engineer in order to garner any objective evidence that would be supportive of the insured's version of events, particularly in the background of it bearing the onus of proof to establish that the claimant was wholly or mostly at fault.
5. Accordingly, I find this is an appropriate matter in which the Commission should permit payment of the insurer's reasonable legal costs for legal services provided to it in connection with the claim, including counsel's fees pursuant to s 8.3(4) of the MAI Act.

1. Whilst the claimant has not been successful in his application, unlike in court proceedings, the claimant still maintains an entitlement to recover legal costs pursuant to s 8.10 of the MAI Act.[20] Recovery by the claimant of costs from the insurer in a claim for statutory benefits, in excess of those costs prescribed by the regulations however, requires certain preconditions to be met. They must be "reasonable and necessary" legal costs incurred[21] and there must exist "exceptional circumstances" that justify payment of those legal costs incurred by the claimant.[22]
2. I find the "exceptional circumstances" surrounding this matter include:

(a) a significant factual dispute between the parties relating to the particular circumstances of driving for both the claimant and the insured;

(b) the need for the claimant to retain an expert mechanical engineer to undertake an accident reconstruction in order to potentially assist the acceptance of the claimant's version of events;

(c) the need for both parties to prepare detailed submissions in relation to competing expert reports, in addition to a traffic phasing report;

(d) the need for both parties to retain experienced counsel to appear at the hearing of the matter that involved extensive oral evidence from the witnesses that occupied well in excess of a half a day's hearing, and

(e) the need for extensive questioning of the lay witnesses to resolve the factual dispute between the parties.

1. I find the retaining of an expert mechanical engineer on behalf of the claimant was reasonable and necessary in all the circumstances. I also find that exceptional circumstances exist that justify payment by the insurer of the reasonable legal costs incurred by the claimant in connection with these proceedings in accordance with s 8.10 of the MAI Act.

[1] Motor Accident Injuries Act 2017, s 3.11(2) and s 3.28(2).

[8] Claimant's bundle, 7, [25]-[28].

[15] [2024] NSWSC 629.

[16] AAI Limited t/as GIO v Evic [2024] NSWSC 629.

[17] [2023] NSWSC 788.

[18] [1967] HCA 43.

[19] s 8.3 (5) MIA Act and AAI Ltd trading as GIO v Moon [2020] NSWSC 714 at [127].

[20] See AAI Ltd trading as GIO v Moon [2020]; NSWSC 714; Wright J at [82].