Zendehdel v AAI Limited t/as AAMI [2023] NSW PIC 143

The Personal Injury Commission (PIC) has issued a decision with implications as to how it can assess future common law damages disputes. There are important considerations for insurers from this decision as it confirms there is no automatic entitlement to a costs order in the claimant’s favour, even for disbursements, following claims assessment.

Background to the case

The claimant was involved in a motor vehicle accident in May 2020, when her vehicle collided with AAMI’s insured driver at an intersection controlled by a stop sign.

The claimant maintained that she had come to a stop at the stop line, and looked in both directions, before travelling forward. The claimant asserted that AAMI’s insured driver was travelling at speed, and that had the insured been travelling at the sign-posted speed limit the accident would not have occurred. It was however conceded that there was a degree of contributory negligence on behalf of the claimant.

Following the accident, the claimant was charged by police, with the claimant pleading guilty to the lesser charge of negligent driving.

There were two independent witnesses to the accident, who provided signed statements. Both witnesses asserted that the claimant had failed to give way at the stop sign.

The insurer had previously asserted that the claimant was wholly or mostly at fault, in the post-26 weeks decision. The claimant did not elect to challenge this decision in the PIC.

On lodging the common law damages claim form, liability was again denied for the damages claim by AAMI.

The claimant subsequently lodged an application for claims assessment of the common law claim with the PIC.

Both parties qualified expert liability evidence in the interim, and it was otherwise agreed that there would be a separate hearing on the issue of liability.

Further, the parties requested that the issue of liability be determined on the papers.

Findings of the Member

In considering the evidence, Member Cassidy observed:

  1. That the independent evidence of the two witnesses was plausible and consistent.
  2. That the claimant’s expert provided an under calculation of the claimant’s speed, and an over-calculation of the insured driver’s speed.
  3. That the expert report relied upon by the insurer was more accurate and complete, than the report relied upon by the claimant.

The Member subsequently found as follows:

  1. In reliance upon the report of AAMI’s expert, it was not accepted that AAMI’s insured was speeding or travelling at an excessive speed.
  2. The claimant had asserted several times that she had come to a stop at the stop sign, before entering the intersection. The Member did not accept this evidence, particularly given the contrary evidence of independent witnesses.
  3. Additionally, the claimant had asserted that she had checked the intersection carefully, before moving forward. Had the claimant done so, the Member determined the claimant would have clearly seen the insured driver’s oncoming vehicle, who had right of way.

Ultimately, the Member found that the insured driver had not breached her duty of care to the claimant. The insured driver had right of way, was travelling below the designated speed limit, and was exercising reasonable care. The insured driver had no reason to anticipate the threat of the claimant’s vehicle, nor any time to react to avoid the accidence once the threat materialised.

The Member therefore found that the cause of the accident was the claimant’s failure to give way at the applicable stop sign and enter the intersection when it was not safe to do so.


As the Member found the insured driver was not at fault, it followed that the claimant’s claim failed, and she had no entitlement to damages.

Further, as the claimant was unsuccessful on her application, the Member did not award any costs in her favour.

As a result of this costs order the claimant was unable to recover any disbursement costs, including those of her liability expert. Additionally, there was no award for any regulated costs, including costs of the claims assessment hearing under Schedule 1 of the Motor Accident Injuries Regulation 2017.

Going forward – important considerations for insurers

The decision of the Member to assess the dispute in this manner firstly demonstrates the ability of the PIC to show a degree of flexibility and informality in resolving claims. This is in keeping with the objects of the PIC to determine claims in a ‘just, quick and cost effective’ manner, with as ‘little formality as possible.’

By separately assessing liability in this instance, whilst issues of the claimant’s entitlement to non-economic loss were yet decided, the claim was able to progress on the issue of liability.

As a result, there was a reduction in costs for both parties, including ultimately those costs of a hearing on quantum. Additionally, by assessing the dispute on the papers, the parties avoided incurring costs of an in-person hearing.

The decision is otherwise of significance, in terms of those costs orders made by the Member. The decision highlights that costs orders in damages assessments are discretionary under s 7.37(1) of the Motor Accident Injuries Act. Accordingly, this decision confirms that there is no automatic entitlement to a costs order in the claimant’s favour, even for disbursements, following claims assessment.

Further information / assistance regarding the issues raised in this article is available from the author, Helene Tretheway, Special Counsel, or your usual contact at Moray & Agnew.