Tag: Liability

#38 – Due Inquiry & Search Conducted Before Scent Went Cold

Decision

Raad v Nominal Defendant by its agent Allianz Australia Insurance Limited [2026] NSWPIC 173

Sixty-Second-or-Less Read

A pedestrian is run down by a vehicle exiting a driveway. The offending driver leaves the scene without exchanging details. The Claimant says that he did not record the details of the offending vehicle, at the scene, because he was in pain. He reported the accident to the police the day after the accident and canvassed the businesses in the area for CCTV eleven days post-accident. Further steps were taken 18 months after the accident.

Has the Claimant conducted due inquiry and search into the identity of the offending vehicle?

In Raad v Nominal Defendant, a PIC Member found that the steps taken by the Claimant immediately after the accident, which included reporting the accident to the Police, constituted due inquiry and search even if subsequent steps, undertaken 18 months later, were undertaken after the scent had grown cold.

Principles

✅ Section 2.30 of the Motor Accident Injuries Act 2017 (MAIA) provides that the Nominal Defendant is not liable for death or injury caused by an unidentified vehicle unless the Claimant has conducted due inquiry and search into the identity of the offending vehicle.

✅ Due inquiry and search must be prompt and as thorough as the circumstances permit.

✅ Due inquiry and search must be conducted before the scent grows cold.

✅ The Claimant, however, is not required to take steps which are likely to be futile or purely ritualistic.

✅ Due inquiry and search may be conducted by another person or entity in the interests of the Claimant.

Facts

The Claimant was involved in a pedestrian accident on 6 February 2023. Whilst crossing Canterbury Road, Bankstown, a blue sedan exited a driveway and knocked him down.

The offending vehicle was either a Ford or a Holden. The offending driver exited his vehicle and asked whether the Claimant was alright, before departing the scene. No details were exchanged before the offending driver left.

At the time of the accident, the Claimant was taking a lunch break after attending some workplace training. The other trainees assisted him following the accident. The Claimant was subsequently diagnosed with a fractured right leg and other musculoskeletal injuries.

The Nominal Defendant denied the claim for statutory benefits on the grounds that the Claimant failed to conduct due inquiry and search into the identity of the offending vehicle, as required by section 2.30 of MAIA.

Due Inquiry and Search

The Claimant took the following steps to identify the offending vehicle:

📆 7 February 2023 – the Claimant reported the accident to Bankstown Police who conducted their own inquiries, including canvassing for CCTV footage of the accident.

📆 17 February 2023 – the Claimant sent emails to businesses adjacent to the accident site, requesting CCTV footage.

📆 25 September 2024 – the Claimant placed an advertisement in the Sydney Morning Herald requesting information from the public.

📆 September 2024 – the Claimant placed flyers around the accident site requesting information about the at-fault driver.

The Claimant also sought information from his employer regarding the identities of the other trainees who assisted him following the accident. His requests, however, were denied on privacy grounds. Once proceedings were commenced in the Personal Injury Commission, the Claimant sought to obtain that information via a Direction for Production.

The Member’s Decision

The Member concluded that the Claimant had conducted due inquiry and search for the following reasons:

🟪 The Claimant had an opportunity to photograph the offending vehicle at the scene or to otherwise record its details. A reasonable person in the Claimant’s position, however, may not have had the presence of mind, at the scene, to record the details of the offending vehicle given the pain they were experiencing immediately following the accident.

🟪 The Claimant reported the MVA to the Police the day after the accident and emailed local businesses, seeking relevant CCTV, within 11 days of the accident. These enquiries were appropriate and sufficiently prompt.

🟪 The steps conducted in September 2024 – over 18 months post-accident – were undertaken after the scent had gone cold.

My Perspective

The decision in Raad provides a useful summary of the principles which must be applied in assessing whether a claimant has conducted due inquiry and search into the identity of an offending vehicle.

Whilst the Member found that steps undertaken over 18 months post-accident were undertaken after the scent had gone cold, the Member appears to have accepted that the steps taken promptly – within the first 11 days post-accident – were sufficient to discharge the Claimant’s statutory obligation to conduct due inquiry and search. Those steps included reporting the accident to the Police the day following the accident.

PJH

#28 – Claimant Convicted of Negligent Driving Causing Death Denied Statutory Benefits

Decision

Alhussein v QBE Insurance (Australia) Limited [2026] NSWPIC 23

Sixty-Second-Or-Less Read

A Claimant drives his Ute into a causeway. Two passengers in the rear tray are swept away and tragically drown. The Claimant subsequently pleads guilty to two counts of negligent driving causing death.

Can the Claimant recover statutory benefits for the first 26 weeks even where he pleads guilty to serious driving offences well outside the 26-week period?

In Alhussein v QBE, a PIC Member concluded that s 3.37 of the Motor Accident Injuries Act 2017 prohibited the Claimant from recovering statutory benefits from the day he was charged with the serious driving offences, irrespective of when he was subsequently convicted.

Principles

✅ Section 3.37 of the Motor Accident Injuries Act 2017 prohibits the recovery of statutory benefits after the Claimant is charged with a serious driving offence (as defined by section 3.37(5))

✅ Subject to other statutory requirements, the Claimant’s entitlement to statutory benefits is only reinstated if the Claimant is subsequently acquitted of the serious driving charges or the proceedings against them are discontinued.

Facts

On 31 October 2022, the Claimant made a decision to drive his utility vehicle into a causeway. There were two passengers riding in the rear tray of his vehicle. Tragically, they were both drowned when the Claimant’s vehicle was swept into the water.

The Claimant subsequently pleaded guilty to two charges of negligent driving causing death.

In response to his own claim for statutory benefits, the Insurer issued a series of Liability Notices:

🟪 On 21 December 2022, the Insurer accepted liability for the first 26 weeks.

🟪 On 23 December 2022, having become aware of the police charges against the Claimant, the Insurer amended its Liability Notice to deny liability on the grounds that he had been charged with a serious driving offence.

🟪 On 25 June 2025, upon being informed by the Claimant that he had been acquitted of manslaughter and other charges, the insurer issued a further Liability Notice accepting liability for the first 26 weeks, but denying liability thereafter because the Claimant was wholly or mostly at fault.

🟪 On 17 July 2025, having become aware that the Claimant pleaded guilty to two charges of negligent driving causing death, the Insurer issued a further Liability Notice denying liability for statutory benefits on the grounds that the Claimant had been convicted of a serious driving offence

The Claimant lodged a Miscellaneous Assessment in the Commission challenging the Insurer’s July 2025 Liability Notice. The Claimant argue that his guilty plea occurred well after the first 26 weeks had passed and that the Insurer could not use the convictions to retrospectively extinguish his rights to statutory benefits for the first 26 weeks.

The Member’s Decision

The Member concluded that the Insurer was entitled to deny the Claimant statutory benefits, pursuant to s 3.37, of MAIA because the Claimant was convicted of a serious driving offence that was related to the motor accident.

Essentially, the Member reasoned that the series of Liability Notices issued by the Insurer did not change the fact that s 3.37 prohibited the recovery of statutory benefits when the Claimant was charged with serious driving offences and he was subsequently convicted for those offences.

The Member decided, however, that the Claimant was entitled to statutory benefits for the period between his late claim and the date he was charged with a serious driving offence.

My Perspective

The decision in Alhussein is interesting because the Member appears to have interpreted the word “after” in s s 3.37(1) to mean that a Claimant who commits a serious driving offence may only be denied statutory benefits for the period after they have been charged with the offence, rather than from the date of the accident.

It the Claimant is subsequently convicted, then the prohibition stands. If, however, the Claimant is acquitted of all serious driving charges, then their entitlement is reinstated, subject to whether they suffered a threshold injury and/or were wholly or mostly at fault for the accident.

PJH

#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

#18 – Bird Stike – Driver Left With Nobody to Sue

Decision

Mousawi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 557

Sixty-Second-Or-Less Summary

A bird crashes into the windscreen of a vehicle. The driver swerves and crashes into some parked cars.

Can the driver recover damages from the CTP insurer of the parked vehicles?

In Mousawi v IAG, a PIC Member found no causative use or operation by the owner of the parked vehicles. The PIC Member also found that s 5.4 of the MAIA prevented the driver from recovering damages under the no-fault provisions in Part 5 where the driver’s act or omission caused the accident, even if the act or omission was involuntary, did not amount to fault and was not the sole or primary cause of the accident. In this instance, the driver’s act of swerving, post-bird strike, disqualified them from recovering no-fault damages.

Principles

✅ Pursuant to section 1.4 of the Motor Accident Injuries Act 2017, the “use or operation” or a motor vehicle includes the parking of the vehicle.

✅ The time a vehicle has been parked is relevant to whether it continues to be “in use” at the time a motor accident occurs.

✅ Even if a parked vehicle remains “in use” at the time of a motor accident, its owner is not liable unless there is some fault in the way that the vehicle was parked.

✅ Pursuant to section 5.4 of MAIA, a driver is precluded from recovering damages, pursuant to the “no-fault” provisions in Part 5 of MAIA, if the accident was caused by some act or omission by that driver.

✅ The preclusion in s 5.4 apples even if the driver’s act or omission was involuntary, does not amount to fault and was not the sole or primary cause of the accident.

Facts

On 3 May 2021, the Claimant was driving in Auburn at a speed of approximately 45 kph. Suddenly a bird hit the windscreen of his Tarago. The Claimant turned the steering wheel to the left and collided with some parked cars which were parked parallel to the kerb.

The Claimant made a claim for damages against the Nominal Defendant on the following bases:

🟪 The parked vehicles into which she crashed were unregistered and uninsured on the day of this accident.

🟪 Her injuries were caused by fault in in the parking of the unregistered vehicles.

🟪 In the alternative, the Claimant alleged that she was injured in a no-fault accident, as defined by section 5.1  of MAIA, and it follows that the owner of the parked vehicles was deemed to be at fault by section 5.2 of MAIA.

The Nominal Defendant denied liability on the grounds that the Claimant was wholly responsible for the accident.

Factual Findings

The Member made the following key factual findings:

🟪 The vehicles had been parked in the same position for at least two weeks.

🟪 The vehicles were parked within the designated parking lane, parallel to kerb, close to and the gutter and, contrary to the Claimant’s submission, without protruding into the westbound lane of the road.

The Member’s Decision

The Member found that the Nominal Defendant was not liable for the following reasons:

Was the Claimant injured in a motor accident within the meaning of s 1.4 of MAIA?

There is no doubt that the Claimant was involved in a “motor accident” within the meaning of section 1.4 of MAIA given that:

🟪 The accident involved the use or operation of a motor vehicle that caused injury to the Claimant, and

🟪 The Claimant’s injury was “a result of and caused during the vehicle’s running out of control“.

Importantly, the definition of “motor accident” in s 1.4 does not include any reference to fault and does not limit itself to accidents involving registered vehicles.

Does the Claimant satisfy the gateway provisions in s 1.9 of MAIA?

The requirements of section 1.9 of MAIA are not met because:

🟪 There was no causal or temporal connection between the Claimant’s injury and the use or operation of the parked vehicle. The vehicles were parked some two weeks prior to the accident and were no longer being “used” when the accident occurred.

🟪 There was no fault by the owner of the parked vehicles in the manner those vehicles were parked. The vehicles were legally parked. They were positioned parallel with and close to the kerb. No part of the parked vehicles obstructed the westbound lane of the road.

Was the Claimant injured in a no-fault accident within the meaning of Part 5 of MAIA?

The no-fault provisions in Part 5 of MAIA do not aid the Claimant in establishing liability for multiple reasons, including:

🟪 Section 5.1 is not satisfied because the accident was not caused by any relevant use or operation by the owner of the parked vehicles.

🟪 The presumption in 5.3 does not arise because the accident was caused by the Claimant losing control of her vehicle after she moved the steering wheel to the left following the bird-strike.

🟪 Section 5.4 precludes the Claimant, as the driver of the vehicle, recovering damages where the accident is caused by the driver’s own act or omission. The preclusion applies even if the act or omission was involuntary, did not amount to fault and was not the sole or primary cause of the accident. In this case, the Claimant’s act of moving the steering wheel to the left, following the bird strike was an act which contributed to the accident. As such, s 5.4 was engaged.

Pete’s Perspective

The decision in Mousawi provides two useful reminders.

Firstly, where a driver crashes into a parked vehicle, it is extremely difficult for the driver to blame the owner of the parked vehicle for their injuries. This is particularly so if the evidence establishes that the vehicle has been in its parked position for a lengthy period of time, in which case it may no longer be “in use” at the time of the accident. Even more so if there is no evidence that there was any want of care in the way the vehicle was parked.

Secondly, drivers who contribute to their own accident are, for the most part, unable to recover damages pursuant to the “no-fault” provisions in Part 5 of MAIA.

It is worth remembering that the blameless accident scheme was first introduced into the Motor Accidents Compensation Act 1999 in response the tragedy which befell Sophie Delezio. In December 2003, Sophie was two-and-a-half-year-old girl. She was trapped under a burning vehicle for a prolonged period after an elderly driver suffered an unexpected medical episode and crashed into her childcare centre. The intention of the blameless accident / no-fault provisions is to protect the innocent victims of motor accidents, like Sophie Delizio, rather than the driver of the vehicle which caused their injuries.

Section 5.4 of MAIA executes that intention by making it clear that a driver is precluded from recovering damages, under Part 5, if they do the slightest thing wrong even if their act or omission is involuntary, even if their act or omission does not amount to fault and even if their act or omission is not the sole or primary cause of the accident. Any causative act or omission by the driver locks them out of Part 5.

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