Tag: CTP

#24 – Slippery When Wet – Another Driver’s Speed Means They’re Mostly-at-Fault

Decision

Salazar Renteria v AAI Limited t/as GIO [2025] NSWPIC 623

Sixty-Second-Or-Less Summary

A Claimant rides her motorcycle on a wet road. She’s riding at 60 kph in a 50 zone. She slows to 25 kph to make a ninety-degree turn at the bottom of a hill. The Claimant loses control on the wet road and suffers injury.

Was the Claimant wholly or mostly at fault for her accident?

In Renteria v GIO, a PIC Member found that the Claimant was 70% responsible for her accident because her speed was too high for the wet conditions and the sharp turn. The Claimant was, therefore, wholly or mostly at fault for her accident.

Principles

✅ Pursuant to section 3.11 and section 3.28 of the Motor Accident Injuries Act 2017, a Claimant is not entitled to ongoing statutory benefits if they are wholly or mostly at fault for their accident.

✅ In single vehicle motor accidents, assessing the Claimant’s contributory negligence requires an evaluative judgment of the extent to which they departed from the required standard of care.

Facts

On 14 August 2024, the Claimant was riding her motorcycle in Hurstville. She lost control of her motorcycle, on the wet road, whilst turning left from King Georges Road onto Hurstville Road. She argued that the accident was solely caused by the wet conditions rather than any want of care on her part.

The Insurer determined that the Claimant was not entitled to ongoing statutory benefits, beyond 52 weeks, because she was wholly or mostly at fault for her accident.

The Insurer’s determination was confirmed on internal review and the Claimant lodged a miscellaneous assessment in the Commission to resolve the most-at-fault dispute between the parties.

The Member’s Decision

The Member found that the Claimant was wholly or mostly at fault for the following reasons:

🟪 The Claimant’s Speed – the Claimant was riding at 60 kph in a 50 zone in wet conditions. She slowed to 25 kph in order to make the left hand turn into Hurstville Road. An inference can be drawn that a wet road can be slippery and that the presence of water on the road requires a driver or a motorcycle rider to pay additional attention to how they control their vehicle and to reduce their speed. The Claimant’s speed was too high given the wet road, the downhill slope and the sharp ninety-degree corner. By commencing the turn at 25 kph, the Claimant failed to exercise reasonable care.

🟪 The Claimant’s Control – after losing balance, the Claimant failed to appropriately apply the brakes of her motorcycle and, instead, steered to the right, causing the motorcycle to fall to the right-hand side.

🟪 The Claimant’s Contributory Negligence – the Claimant’s contributory negligence should be assessed by reference to the degree she departed from the required standard of care. On that basis, the Claimant’s contributory negligence was 70%

My Perspective

The decision in Renteria illustrates, once again, how contributory negligence is assessed where the Claimant is the only party involved in the accident.

As established by the Supreme Court in Evic, in single vehicle accidents, the concept of relative culpability does not apply because there is no relative culpability to compare. Instead, contributory negligence is assessed by measuring the extent to which the Claimant’s driving behaviour departed from the standard of care required of them to protect their own safety.

My Case Note on Evic can be found here.

To explore other claims where PIC Members have applied Evic:

🟪 Evic Applied – Assessing Contributory Negligence in Single Vehicle Accidents

🟪 Evic Rides Again – Driver in Single Vehicle Accident Not Mostly at Fault

🟪 Slippery When Wet – When an Unsafe Speed Means You’re Livin’ on a Prayer

🟪 Bicyclist Found Wholly at Fault 

🟪 Evic Applied – How to Assess Contributory Negligence in a Chain Collision? 

🟪 How is Relative Culpability Assessed When One Party Disobeys the Road Rules? 

🟪 How Most at Fault Disputes are Assessed When the Insured is Not at Fault?

Interestingly, in assessing the Claimant’s contributory negligence at 70%, the Member’s decision mirrored that of a prior most-at-fault dispute involving a driver losing control in wet conditions: Mellor-Langham v QBE Insurance (Australia) Limited [2025] NSWPIC 194.

PJH

#22 – Supreme Court Finds that Pet Care is an Attendant Care Service

Decision

Insurance Australia Limited t/as NRMA Insurance v Chowdhury [2025] NSWSC 1392

Sixty-Second-Or-Less-Read

A Claimant fractures his ankle in a motor accident. He is no longer able to look after his three cats.

Does providing food and water to the cats, and refilling their kitty litter, constitute treatment and care?

In IAG v Chowdhury, the Supreme Court found that pet care falls comfortably within the ordinary English meaning of “attendant care service” because the pet care aims to provide assistance to an injured person with an everyday task.

Principles

✅ The words “…services that aim to provide assistance to people with everyday tasks..” in the definition of “attendant care services” in section 1.4 are the operative words.

✅ The words “…and includes (for example) personal assistance, nursing, home maintenance and domestic services” provide guidance as to what an “attendant care service” might be but other kinds of services might also be an “attendant care service”.

✅ Pet care is an “attendant care service” because it aims to provide assistance to an injured person with an everyday task.

Facts

The Claimant was involved in a motor accident on 11 November 2024. He sustained a fractured right ankle and a left wrist injury.

The Claimant subsequently sought to recover the cost of caring for his three cats as a treatment expense within the statutory benefits regime in Part 3.4 of MAIA. The care included feeding the cats, changing the litter tray and filling the cats’ water bowl.

The Insurer declined to meet the cost of the Claimant’s pet care on the grounds that that kind of care did not fall within the definition of “attendant care services” and it follows that the pet care was not “treatment and care” within the meaning of s 1.4 of MAIA

At first instance, Member Cassidy concluded that services to assist the Claimant care for his cats were “attendant care services“. The Insurer sought judicial review in the Supreme Court.

Relevant Definitions

Section 3.24 of the MAIA states, in general terms, that an injured person is entitled to statutory benefits for treatment and care provided to the injured person, provided the treatment and care is reasonable and necessary and related to the injuries sustained in the motor accident.

Section 1.4 of MAIA provides a definition of “treatment and care“, which includes an exhaustive list of eleven types of treatment and care. One of those items is “attendant care services“.

Section 1.4 of MAIA defines “attendant care services” as “services that aim to provide assistance to people with everyday tasks, and includes (for example) personal assistance, nursing, home maintenance and domestic services“.

The Supreme Court’s Decision

Breaking Down the Definition of “Attendant Care Services”

Justice McHugh, at [16], observed that the words “…services that aim to provide assistance to people with everyday tasks” are the operative part of the definition and disclose a purposive intent.

More specifically:

🟪 The relevant services merely aim to provide assistance with an everyday task. They may not succeed in their ambition.

🟪 The services may or may not involve performing the identified task. The services could aim to achieve the desired outcome in another way.

🟪 The descriptor “everyday” applies to the task which the claimant previously performed, rather than the service being sought.

His Honour added that “attendant care services” includes services that fall outside the concepts of “personal assistance, nursing, home maintenance and domestic services”.

In other words, a task can be an “attendant care service” even if it is not personal assistance, nursing, home maintenance or domestic services.

Responding to the Insurer’s Arguments

His Honour responded to the arguments raised by the Insurer as follows:

🟪 The Insurer argued that damages are not recoverable at common law for the value of gratuitous pet care services

The decision in Geaghan v D’Aubert [2002] NSWCA 260 was about whether the value of gratuitous pet care services could be recovered at common law. It was not about whether a plaintiff could recover the cost they incurred in replacing the pet care they previously provided. The statutory benefits regime in Part 3.4 of MAIA is about the latter, not the former.

🟪 MAIA uses similar or identical language to the Motor Accidents Act 1988 and the Motor Accidents Compensation Act 1999 which were designed to regulate gratuitous care claims only and should be understood not to extent to pet care

Neither MAA nor MACA prevented a plaintiff from recovering the actual cost of pet care they incurred as a consequence of their injuries.

🟪 The objects and secondary materials for MAIA are inconsistent with any intention to expand common law rights and express an intention to reduce scheme costs

Many aspects of MAIA expand a claimant’s rights, beyond their common law entitlement, including a right to statutory benefits for 52 weeks irrespective of fault.

Conclusion

Justice McHugh, therefore, concluded that:

🟪 “Attendant care services” should be given its ordinary English meaning.

🟪 The evident purpose of s 3.24(1) of MAIA is to secure assistance to injured persons with everyday tasks, including in and around the home.

🟪 Providing food and water to the Claimant’s cats and changing their litter were such tasks.

🟪 Services that are aimed to assist an injured person with pet care tasks fall comfortably within the ordinary meaning of “attendant care services“.

The Insurer’s application was, therefore, dismissed.

Pete’s Perspective

The Supreme Court’s Decision in Chowdhury provides some useful insights into how treatment and care disputes should be assessed.

Pet Care

Firstly, and most obviously, given this decision, a claim to recover the cost of providing care to pets will ordinarily constitute a claim for “attendant care services” which is recoverable pursuant to s 3.24(1) of MAIA.

Whether the claimed pet care costs are reasonable and necessary and related to the accident depends on the facts of each case. Any dispute can be referred to the Commission as a medical assessment matter.

For the Injured Person

Section 3.24(1) provides that an injured person may recover expenses incurred in connection with providing treatment and care “for the injured person“.

There have been PIC decisions which suggest that the words “for the injured person” in s 3.24(1) mean that the treatment and care must actually be provided to the claimant. See, for example, Warner v IAG.

In obiter remarks, however, McHugh JA interpreted “for the injured person” more broadly by finding that the treatment and care must be for the claimant’s benefit, rather than directly to the claimant’s person or exclusively for their benefit.

The distinction was important in this dispute because the attendant care services were directed to the Claimant’s pets but they were, more broadly, for the Claimant’s general benefit. He got to enjoy having his cats and he didn’t risk further injury by looking after them himself.

“Reasonableness”

Justice McHugh proceeded on the footing, agreed between the parties, that the question was whether the Claimant was reasonably able to perform the tasks without treatment or care, as opposed to whether the task itself was reasonable.

“Everyday Tasks”

In obiter remarks, his Honour observed that there were two ways of interpreting the words “…and includes (for example) personal assistance, nursing, home maintenance and domestic services” in the definition of “attendant care services“:

The words import into the natural meaning of “everyday tasks” activities which would not, ordinarily, be considered an “everyday task“. His Honour used the example of clearing the gutters of a three-storey house with the requirement to attach a harness to a point on the roof. That task would not ordinarily constitute an “everyday task“. But the concept of “home maintenance” in the definition may expand how “everyday task” is understood.

The words assist in understanding the meaning and scope of “everyday tasks” and, again, expand the ordinary meaning of that phrase. Using the same example, if clearing the gutters of a three-storey house is “home maintenance”, that would suggest a broader understanding of what constitutes an everyday task.

There have been a number of PIC decisions which proceed on the basis that the concept of “everyday tasks” operates to limit what constitutes an “attendant care service“.

My Case Notes on those decisions can be found in the links below:

Is House Painting an “Everyday Task”?

Can Preparing a House for Sale be an “Attendant Care Service”?

Are childcare services considered treatment and care or domestic services?

Walkies! When are Dog Walking Services Treatment & Care?

Can Treatment & Care be Found on the Uber App?

Who Ruled the Dogs Out? Review Panel Finds Pet Care Is Not “Treatment or Care”

Based on his Honour’s obiter remarks, however, it is possible that the words “…and includes (for example) personal assistance, nursing, home maintenance and domestic services” operate to expand the ordinary English meaning of “everyday tasks“. How that possible interpretation might be applied in practice is yet to be seen.

PJH

#21 – How Most at Fault Disputes are Assessed When the Insured is Not at Fault

Decision

Raad v QBE Insurance (Australia) Limited [2025] NSWPIC 598

Sixty-Second-Or-Less Read

A Claimant turns left onto a major thoroughfare from a side street. She fails to stop before making the turn and she fails to see the Insured driver approaching from her right in the kerbside lane.

Is the Claimant wholly or mostly at fault for her accident.

In Raad v QBE, a PIC Member found that the Claimant was 80% responsible for her accident and was, therefore, mostly at fault. In coming to this conclusion, the PIC Member found that the Insured did not breach the duty of care they owed the Claimant. The PIC Member, therefore, assessed the Claimant’s contributory negligence by reference to the extent that their standard of driving behaviour departed from the required standard of care.

Principles

✅ Pursuant to s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017, a Claimant is not entitled to ongoing statutory benefits, beyond 52 weeks, if they are wholly or mostly at fault for their accident.

✅ If the Insured driver did not breach the duty of care they owed the Claimant, the Claimant’s contributory negligence is measured by reference to the extent their driving departed from the required standard of care.

Facts

On 7 March 2024, the Claimant proceeded east on Osgathorpe Road at Gladesville. At the same time, the Insured was travelling north-west on Victoria Road in the lane closest to the kerb.

The Claimant looked both to her left and her right and saw no vehicles approaching. The Claimant proceeded to roll into the intersection, at 10 to 15 kph, and made a left hand turn onto Victoria Road.

The Insured was travelling below the speed limit, at 52 to 57 kph. Whilst the Insured was travelling in a dedicated bus lane, the bus lane was only operational until 7pm and the accident occurred after 9pm. The Insured was, therefore, lawfully using the bus lane at the time of the accident.

The front driver’s side of the Claimant’s vehicle collided with the front passenger side of the Insured vehicle.

The Insurer denied liability for ongoing statutory benefits beyond 52 weeks on the grounds that the Claimant was wholly or mostly at fault. That decision was confirmed on Internal Review and the Claimant lodged a Miscellaneous Assessment dispute in the Commission.

The Member’s Decision

The Member found the Claimant most-at-fault for the following reasons:

🟪 Where two vehicles are involved in an accident, contributory negligence is normally assessed by reference to the relative culpability of the two drivers, provided both drivers are culpable.

🟪 Whilst the Claimant did not have to establish that the Insured breached their duty of care in order to establish liability for ongoing statutory benefits, a finding must be made regarding the Insured’s breach, if any, in order to compare the relative culpability of the parties.

🟪 Given that the Insured was driving below the speed limit – and was not required to slow down every time they approached a side street – the Insured did not breach the duty of care they owed the Claimant.

🟪 In the absence of any breach by the Insured, the Claimant’s contributory negligence must be assessed by reference to the extent their standard of driving departed from the required standard of care.

🟪 The Claimant’s departure from the required standard of care was significant because she entered a major thoroughfare from a side street, without coming to a complete stop and without ensuring that there were no vehicles in the kerbside lane even though the Insured’s vehicle was there to be seen.

🟪 The Claimant’s recklessness warrants a finding of 80% contributory negligence.

Pete’s Perspective

The decision in Raad provides yet another example of how the Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272 is applied in practice.

The Member highlighted that relative culpability cannot be assessed without first determining whether the Insured breached the duty of care they owed to the Claimant.

If, however, the Insured did not breach any duty of care, the accident is then akin to a single vehicle accident given that only one driver was at fault. Relative culpability can not be compared when one party is not culpable.

In those circumstances, the Claimant’s contributory negligence is measured by reference to the extent their driving behaviour departed from the standard of care required of them.

PJH

#17 – Claimant’s Duty to Co-operate with the Insurer is Mandatory

Decision

AAI Limited t/as AAMI v Elias [2025] NSWPICMR 31; (8 October 2025)

Sixty-Second-Or-Less Read

An injured Claimant claims weekly statutory benefits. The documents he relies upon are riddled with inconsistencies. There are concerns he may have received undisclosed income post-accident. The Insurer requests further information and documents from the Claimant to verify his earnings and to verify that no part of his claim is fraudulent. The Insurer’s request is made pursuant to s 6.24 of the Motor Accident Injuries Act 2017 which mandates that the Claimant must co-operate with the Insurer by providing information and documents to assist the Insurer to verify the claim and ensure that no part of the claim is fraudulent.

Can the Claimant be compelled to provide the further information?

In AAMI v Elias, a Merit Review found that the Insurer’s request for further information was reasonable and that the Claimant had no reasonable excuse for non-compliance.

Principles

✅ Section 6.24 of the Motor Accident Injuries Act 2017 (MAIA) requires the Claimant to co-operate with the Insurer by providing information to assist the Insurer to verify the claim, or parts of the claim.

✅ The obligation in s 6.24 to co-operate with the Insurer is mandatory.

Facts

The Claimant was injured in a motor accident on 26 November 2024.

The Claimant alleged that he employed was a full-time manager and that he earned $1,500 per week.

The Insurer detected discrepancies in the payslips provided by the Claimant and was concerned that the Claimant may have received undisclosed income post-accident.

In order to verify the Claimant’s pre-accident and post-accident earnings, and to ensure that no part of the claim was fraudulent, the Insurer requested:

🟪 Unredacted personal bank statements.

🟪 A notice of assessment for the year prior to the MVA.

🟪 The Claimant’s superannuation statement.

The Claimant refused to provide the documents requested by the Insurer.

The Insurer sought a merit review as to whether the requested documents were reasonably required and whether the Claimant had a reasonable explanation for his failure to comply with the request.

The Merit Reviewer’s Decision

The Merit Reviewer found the Insurer’s request was reasonable and that the Claimant had no reasonable explanation for non-compliance, for the following reasons:

🟪 The Insurer is under an obligation to be satisfied that the claim is valid.

🟪 Pursuant to section 6.24 of MAIA, a Claimant is under a mandatory obligation to “co-operate fully” with the Insurer to assist the Insurer to discharge its obligation.

🟪 Given that a Claimant bears the onus of establishing a valid claim for statutory benefits, a Claimant fails to comply with their obligation under s 6.24 at their own peril.

🟪 The Insurer’s request that the Claimant co-operate by providing additional information and documents was reasonable because the documents provided by the Claimant were riddled with inconsistencies and there were genuine concerns regarding the validity of his claimed pre-accident and post-accident earnings.

🟪 The Claimant’s privacy concerns did not amount to a reasonable explanation for non-compliance with the Insurer’s request.

Pete’s Perspective

The decision in Elias confirms that s 6.24 of MAIA mandates that the Claimant must fully co-operate with the Insurer by providing relevant information and documents about the claim.

The obligation in s 6.24 is frequently confused with the obligation in s 6.25. The two sections, however, serve different purposes.

Section 6.25 only applies to a claim for damages. It obligates the Claimant to provide full particulars of their claim. The obligation exists even if the Insurer does not request compliance.

Section 6.24 applies to both a claim for damages and a claim for statutory benefits. It obligates the Claimant to co-operate with the Insurer by providing information and documents to help the Insurer satisfy itself that no part of the claim is fraudulent and to allow the insurer to assess liability and make an informed offer of settlement.

Importantly, the obligation in s 6.24 goes beyond the provision of particulars and extends to information and documents.

PJH

#16 – How is Relative Culpability Assessed When One Party Disobeys the Road Rules?

Decision

Singh v QBE Insurance (Australia) Limited [2025] NSWPIC 524

Sixty-Second-Or-Less Summary

A Claimant enters a multi-lane intersection against a red traffic light. The Insured, approaching from the opposite direction, makes a right hand turn across the Claimant’s path. The Insured has the benefit of a green arrow.

Is the Claimant wholly or mostly at fault for the accident?

In Singh v QBE, a PIC Member found that the Claimant’s relative culpability was 80% and the Insured’s relative culpability was 20%. The Insured was found to be partially responsible because he should have anticipated that not every road user would obey the road rules and modify his driving accordingly.

Principles

✅ Pursuant to s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017, Claimant is not entitled to ongoing statutory benefits if they are wholly or mostly at fault for their accident.

✅ In accidents involving more than one vehicle, an assessment of the Claimant’s contributory negligence calls for an assessment of the relative culpability of the parties.

✅ Where one party disobeys the road rules, the other party may still contribute to the accident because they should have anticipate that another road user may not obey the road rules.

Facts

On 1 June 2022, at approximately 6.30pm, the Claimant proceeded into a multi-lane intersection of the Northern Road and Elizabeth Drive, Luddenham. At the same time, the Insured entered the intersection from the opposite direction and attempted to make a right-hand turn across the Claimant’s path. A collision resulted.

The Insurer denied liability for ongoing statutory benefits on the grounds that the Claimant was wholly or mostly at fault because he entered the intersection against a red light. The Insurer’s liability determination was confirmed on Internal Review and the Claimant lodged a Miscellaneous Assessment matter in the Commission.

Based on the lay and expert evidence, the Member made the following factual findings:

🟪 The Claimant entered the intersection against a red light.

🟪 The Insured entered the intersection with the benefit of a green arrow.

🟪 The Claimant only became aware of the Insured’s vehicle a moment before the impact.

🟪 The Insured only became aware of the Claimant’s vehicle when he heard and felt the impact.

🟪 Both parties had their headlights illuminated.

🟪 The Claimant was travelling at 80 kph prior to the impact.

🟪 The Insured was travelling at 60 kph prior to the impact.

The Member’s Decision

The Member found that the Claimant was wholly or mostly at fault for the following reasons:

🟪 Pursuant to the Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272, in an accident involving two vehicles, the Claimant’s contributory negligence is assessed by reference to the relative culpability of the two drivers.

🟪 In this case, the Claimant’s relative culpability significantly outweighed the Insured’s relative culpability.

🟪 The Claimant contributed to the cause of the accident by entering the intersection against the red traffic light which faced him.

🟪 A reasonable road user in the Claimant’s position, however, must anticipate that not every driver will comply with the road rules and modify their driving accordingly.

🟪 The Insured contributed to the accident by failing to detect, prior to the impact, that the Claimant had entered the intersection.

🟪 A just and equitable apportionment of responsibility would be 80% to the Claimant and 20% to the Insured.

Pete’s Perspective

The decision in Singh applied the Supreme Court’s decision in Evic that assessing contributory negligence, in accidents involving more than one vehicle, requires an assessment of each party’s relative culpability.

Once the Member made a finding that it was the Claimant – and not the Insured – who entered the intersection against a red light, it was, perhaps, inevitable that the Member would find that the Claimant was wholly or mostly at fault.

It was interesting, however, to see that the Member found that the Insured was partially at fault because he should have anticipated that a road user, such as the Claimant, might disobey the road rules and modify their driving accordingly.

PJH

#14 – Single Vehicle Accidents – How Liability is Assessed Differently in Statutory Benefit and Common Law Claims

Decision

BVV v QBE Insurance (Australia) Limited [2025] NSWPIC 496; (23 September 2025)

Sixty-Second-Or-Less Read

A Claimant suffers an unexpected hypoglycaemic episode, whilst driving, and crashes into four cars. He successfully makes a claim for ongoing statutory benefits because he was not wholly or mostly at fault for his accident.

Can the Claimant recover damages under common law pursuant to the no-fault provisions in Part 5 of the Motor Accident Injuries Act 2017?

In BVV v QBE, a PIC Member found that s 5.4 precluded the Claimant – as a driver in a no-fault accident – from recovering damages.

Principles

✅ A driver who experiences an unexpected medical episode, whilst driving, might be able to recover ongoing statutory benefits, beyond 52 weeks, because they are not wholly or mostly at fault for the accident.

✅ Section 5.4 of the Motor Accident Injuries Act 2017 (MAIA), however, prevents the same driver from recovering damages under common law, pursuant to the no-fault provisions in Part 5, because they are the driver of the vehicle deemed to be at fault.

Facts

The Claimant was involved in a motor accident on 11 March 2024 on the Cumberland Highway. The accident was caused by a hypoglycaemic episode which resulted in him losing control of his vehicle and colliding with four stationary vehicles.

The Insured denied liability to pay the Claimant damages under common law and the Claimant lodged a damages dispute in the Commission.

Relevant Definitions

A “no-fault motor accident” is defined by s 5.1 of MAIA, as follows:

“no-fault motor accident means a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.”

Section 5.4 limits the ability of the driver in a no-fault accident to recover damages, as follows:

5.4   No recovery of damages for driver who caused accident

(1)  There is no entitlement to recover damages because of the operation of this Part in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver.

(2)  The death of or injury to a person is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if—

(a)  the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or

(b)  the act or omission was involuntary, or

(c)  the act or omission was not the sole or primary cause of the death or injury.

The Member’s Decision

The Member found that the Claimant was not entitled to Damages under Common Law, for the following reasons:

🟪 In the context of a claim for damages, “fault” means the tort of negligence.

🟪 The Claimant did not owe a duty of care to himself and his injuries were, therefore, not caused by any breach of duty of care.

🟪 Given that the accident was caused by an unexpected medical episode, and no other party was at fault, the accident was a no-fault accident within the meaning of s 5.1 of MAIA.

🟪 Section 5.4 of MAIA, however, prevents the Claimant, as the driver in a no-fault accident, from recovering damages.

Pete’s Perspective

The decision in BVV provides a useful case study of how liability in single vehicle motor accidents is assessed differently in statutory benefit and common law claims.

The PIC Member found, in a prior decision, that the Claimant was entitled to ongoing statutory benefits, beyond 52 weeks, because he was injured in a motor accident in NSW and he was not wholly or mostly at fault for his accident. The outcome may have been different if the Claimant had warning that he was at risk of suffering a hypoglycaemic episode whilst driving and decided to drive anyway, but the PIC Member made a factual finding that the episode was unexpected.

In this decision, the PIC Member found that the Claimant was not entitled to recover damages under common law because (a) his injuries were not caused by the fault of another owner or driver, and (b) section 5.4 precluded him, as the driver in a no-fault accident, from recovering damages.

These decisions illustrate that, for the most part, the only chance a driver in a single vehicle motor accident has of receiving compensation is in the statutory benefits arena.

My Case Note on the prior decision in BVV can he found here.

#12 – Injury Sustained on Bus not Sustained in a “Motor Accident”

Decision

Liebert v Allianz Australia Insurance Limited [2025] NSWPIC 458

Sixty-Second-or-Less Read

A Claimant is standing in the aisle of a bus. He helps another passenger retrieve an item from the luggage tray. He hyperextends his left arm and suffers a shoulder injury. Throughout this process, the bus is being driven in a normal fashion.

Is the Claimant entitled to statutory benefits?

In Liebert v Allianz, a PIC Member found that the Claimant was not injured in a “motor accident” because the way the bus was being driven was not a proximate cause of their injury. It followed that the Claimant was not entitled to any statutory benefits, even for the first 52 weeks.

Principles

✅ Pursuant to the definition of “motor accident” in section 1.4 of the Motor Accident Injuries Act 2017 (MAIA), an injury is not sustained in a motor accident unless the injury was “a result of and is caused (whether or not as a result of a defect in the vehicle) during” one of the four examples of “use or operation” listed in the definition.

✅ The words “caused during” connote a temporal connection between the use or operation of the vehicle and the injury.

✅ The words “a result of” connote a causal connection between the use or operation of the vehicle and the injury.

✅ To constitute a “motor accident“, pursuant to the definition in s 1.4, there must be both a temporal connection and a causal connection between the injury and the use or operation of the motor vehicle.

✅ An injury is not sustained in a “motor accident” if the motor vehicle merely provides the setting for the injury and the way the vehicle is being driven is not a proximate cause of the injury.

Facts

The Claimant suffered a left shoulder injury whilst riding a privately owned and operated bus on 3 April 2025.

The Insurer served a Liability Notice denying liability on the grounds the Claimant was not injured in a motor accident.

The PIC Member made the following factual findings:

🟪 The Claimant’s left arm was hyperextended or stretched whilst he was assisting a female passenger who left her bag on a luggage tray.

🟪 The CCTV demonstrated that the Claimant hurt his left shoulder during this process because it showed the Claimant holding and rubbing his shoulder.

🟪 The CCTV did not reveal any violent braking, harsh braking or sudden stopping.

Relevant Definitions

Section 1.4 of MAIA defines a “motor accident“, as follows:

“…an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—

(a)  the driving of the vehicle, or

(b)  a collision, or action taken to avoid a collision, with the vehicle, or

(c)  the vehicle’s running out of control, or

(d)  a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.

The Member’s Reasons

The Member concluded that the Claimant was not injured in a “motor accident“, for the following reasons:

🟪 The Claimant was involved in “…an incident or accident involving the use or operation of a motor vehicle…” as required by s 1.4 of MAIA given that he was riding a bus whilst the bus was being used to transport passengers.

🟪 The High Court held in Allianz Aust v GSF Aust [2005] HCA 26 that the words “ is a result of and is caused…during” involves two elements: (a) a temporal connection (ie: “caused during“), and (b) a causal relationship between the injury and one of the four examples of use or operation in the definition (ie: “a result of“).

🟪 In other words, there has to be a link between the injury and one of the four examples of “use or operation” in the definition of “motor accident”.

The Member found that in this dispute:

🟪 The bus was being driven normally so there was no connection between the injury and the driving of the bus.

🟪 There was no suggestion of a collision or any evidence of a near miss between the bus and another road user.

🟪 The bus was not running out of control.

🟪 The injury arose from the Claimant helpfully assisting a passenger retrieve an item she had left behind rather than by any dangerous situation caused by the driving of the bus.

It follows that the way the bus was being driven was not a proximate cause of the Claimant’s injury and the injury, therefore, was not caused by a “motor accident“, as defined by s 1.4.

Pete’s Perspective

Subject to limited exclusions, any person injured in a motor accident in NSW is entitled to statutory benefits for at least 52 weeks.

It is (perhaps) surprising, therefore, how few PIC decisions examine the scope of what constitutes a “motor accident”.

The decision in Liebert is important because it is one of the few decisions which examines how the High Court’s decision in Allianz v GSF applies to the statutory benefits regime in Part 3 of MAIA which doesn’t require a claimant to prove fault by an owner or driver.

The Member in Liebert confirmed that an injury is only sustained in a “motor accident” if the proximate cause of the injury is the driving of the vehicle, a collision (or near collision) with the vehicle, the vehicle’s running out of control or a dangerous situation created by the driving of the vehicle.

A “motor accident” is not the proximate cause of an injury if, as in this dispute, the motor vehicle merely provides the setting for the injury.

PJH