Tag: Mostly At Fault

#60 – How Does Evic Apply to Passengers Injured on a Bus?

Decision

Blasco v Allianz Australia Insurance Limited [2026] NSWPIC 482

Sixty-Second-Or-Less Summary

An elderly Claimant, with mobility issues is sitting in one of the collapsible chairs on a public bus. She thinks she may have missed her stop, shifts in her seat and falls onto the floor of the bus.

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

In Blasco v Allianz, a PIC Member found that the Claimant departed from the standard of care required of a reasonable passenger with mobility issues by choosing an inappropriate seat and by attempting to stand whilst the bus was in motion rather than calling out to the driver or waiting for the next stop. The Member found that the driver did nothing wrong. The Member, therefore, found that the Claimant was wholly or mostly at fault.

Principles

✅ Pursuant to s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (MAIA), a claimant is not entitled to ongoing statutory benefits, beyond 52 weeks, if their contributory negligence exceeds 61%.

✅ In accidents involving more than one protagonist, the claimant’s contributory negligence is assessed by reference to the relative culpability of each protagonist.

✅ In accidents involving only one culpable party, contributory negligence is assessed by reference to how far the claimant’s conduct departed from the required standard of care.

Facts

On 9 October 2023, the Claimant was a passenger on a bus travelling in Surry Hills. She was 76 years of age and used a walking stick to mobilise.

The Claimant was seated in the first of the collapsible seats running along the driver’s side of the bus. The two collapsible seats next to her were flipped up into an upright position.

The driver of the bus checked the mirror which gave him a view down the bus before closing the doors and moving away from a bus stop. The bus accelerated from its stationary position (as it had to do to continue its journey) but the CCTV cameras indicated that the bus did not make any sudden or lurching movements.

The CCTV cameras depicted that the Claimant started moving in her seat, but that she remained seated.

The Claimant proceeded to slip off the edge of the seat

The Insurer denied liability for ongoing statutory benefits on the grounds that the Claimant was wholly or mostly at fault for her accident. That decision was affirmed on Internal Review. The Claimant lodged a Miscellaneous Assessment Application in the Commission to resolve the most-at-fault dispute.

The Member’s Decision

The Member found that the Claimant was mostly at fault for her accident.

In making this finding, the Member concluded that the Claimant departed from the standard of care required of her for the following reasons:

🟪 A reasonable person in the Claimant’s position, with knowledge of her mobility challenges, would have chosen a more suitable seat in the bus. Specifically, one of the seats that are perpendicular to the aisle and are fixed to the floor would have given the Claimant greater protection. That kind of seat also offers a structure in front of the seat which the Claimant could hold onto whilst standing or sitting.

🟪  A reasonable person in the Claimant’s position, who was not sure what stop they need to get off at, would have maintained a proper lookout for the bus stop.

🟪  A reasonable person in the Claimant’s position would have realised the bus was about to be set in motion when they saw the doors close and remained seated.

🟪  A reasonable person in the Claimant’s position, who realised they were about to miss their stop, would have called out to the driver and waited for him to open the doors or stop the bus before standing up.

🟪 A reasonable person in the Claimant’s position, who realised they had missed their stop, would not have tried to stand up without holding on to the bus for support or would have waited until the next stop.

The Member proceeded to consider whether the bus driver departed from the standard of care required of him and determined that he did not. In general terms, the Member decided that the bus driver was not required to keep a constant eye on a passenger with mobility issues and that no aspect of the driver’s control of the bus caused the Claimant to fall from her seat.

Having found that the Claimant was the only party who was culpable, the Member concluded that she was wholly or mostly at fault irrespective of which approach to assessing her contributory negligence was adopted:

🟪 If the relevant test was relative culpability, then she was 100% responsible and the bus driver was 0% responsible.

🟪 If the relevant test was the extent to which the Claimant departed from the required standard of care, then her departure would be measured at 75% given that her conduct was significant, but not in the worst case.

My Perspective

The decision in Blasco provides another application of the Supreme Court’s decision in Evic.

In Evic, the Supreme Court confirmed that the only issue in a most-at-fault dispute is the level of the claimant’s contributory negligence. The claimant does not have to prove want of care by the insured driver, but the insured driver’s want of care is relevant to the question of relative culpability. The claimant’s want of care must be compared to the insured driver’s want of care in order to assess the claimant’s contribution to the cause of the accident.

In multi-vehicle accidents, contributory negligence is assessed by reference to the relative culpability of the parties. When there is only one culpable party, contributory negligence is assessed by reference to the extent that the claimant’s conduct departed from the required standard.

This dispute was complex because there were two parties involved – the passenger and the driver – but the passenger was the only party to depart from the standard of care required of them.

The Member looked at the Claimant’s contributory negligence through both the relative culpability lens and the departure from the standard of care lens and found that the Claimant was mostly at fault on each basis.

PJH

#58 – How Most at Fault Disputes are Assessed When Only One Party is Culpable

Decision

Wallace v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 465

Sixty-Second-Or-Less Summary

A Claimant brings his motorcycle to a stop behind a stationary vehicle which has stopped for a legally parked car. The Claimant decides to merge to the lane to his right to go around the stationary vehicles, but collides with the rear passenger side of the Insured vehicle. The Insured was driving within the speed limit in their lane at all material times.

Is the Claimant wholly or mostly at fault?

In Wallace v IAG, a PIC Member determined that the Claimant failed to keep a proper lookout and that the Insured was not at fault in any way. The PIC Member proceeded to assess the Claimant’s departure from the required standard of care at 75% and found, therefore, that the Claimant was mostly at fault.

Principles

✅ Pursuant to s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (MAIA), a claimant is not entitled to ongoing statutory benefits, beyond 52 weeks, if their contributory negligence exceeds 61%.

✅ Where the claimant is the only party at fault – irrespective of the number of vehicles involved in the accident – contributory negligence is assessed by reference to how far the claimant’s driving departed from the required standard of care.

Facts

On 8 November 2024, the Claimant was riding a motorcycle south in lane one of City Road near Adamstown. He stopped his motorcycle behind a stationary blue vehicle. When the Claimant attempted to change lanes, however, there was a collision between his motorcycle and the Insured vehicle. The front of the Claimant’s motorcycle collided with the rear passenger side of the Insured vehicle.

The Member accepted that the Insured was driving within the speed limit and had been travelling within her lane at all material times.

The Insured denied liability for ongoing statutory benefits on the grounds that the Claimant was wholly or mostly at fault for his accident. That decision was affirmed on Internal Review and the Claimant lodged a Miscellaneous Assessment application in the Commission.

Member’s Decision

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

🟪 The Claimant was at fault because he either did not look for oncoming traffic, before changing lanes or, if he did not, it was no more than a cursory glance. If he had kept a proper lookout, he would have seen the Insured vehicle in lane two.

🟪 The Insured was not at fault given that she was maintaining a proper lookout and had been driving below the speed limit in lane two at all material times. She was not required to slow down. Even if she had, the accident may still have occurred given that the Claimant collided with the rear passenger side of her vehicle.

🟪 Given that the Claimant was the only culpable party, contributory negligence is measured by the extent to which the Claimant departed from the standard of care required of him. In the circumstances of this claim, a reasonable finding is 75%.

My Perspective

The decision in Wallace confirms how contributory negligence is assessed – in the context of a most at fault dispute – when the Claimant is the only party at fault.

The Supreme Court decision in Evic has changed the approach to how contributory negligence is assessed in most at fault disputes.

In summary:

🟪 Where more than one party is culpable, an assessment must be made of what both parties did wrong and place a percentage on their relative culpability.

🟪 In single vehicle accidents, however, relative culpability does not work because only one party is culpable. In those circumstances, contributory negligence is assessed by reference to how far the driver departed from the standard of care required of them. That departure might range from a momentary lapse of concentration (low percentage departure) to gross negligence (high percentage departure).

🟪 Which test applies turns on how many drivers were culpable not how many vehicles were involved in the accident. As such, the single vehicle approach still applies – as in this case – if there are two drivers involved in an accident but only the Claimant was at fault.

PJH

#56 – Overtaking Motorcyclist Most at Fault

Decision

Antoniou v Allianz Australia Insurance Limited [2026] NSWPIC 428

Sixty-Second-Or-Less Summary

The Claimant is riding his motorcycle in the lane closest to the median strip. His lane, however, is coming to an end, so he has to merge to the lane to his left. The Claimant accelerates to a speed exceeding the speed limit in order to overtake a taxi. He proceeds to change lanes before braking in the taxi’s path, causing a collision.

Is the Claimant wholly or mostly at fault?

In Antoniou v Allianz, a PIC Member found that both drivers departed from the required standard of care. The Member concluded, however, that the Claimant’s relative culpability exceeded that of the Insured and assessed the Claimant’s contributory negligence at 80%.

Principles

✅ A Claimant is not entitled to ongoing statutory benefits, beyond 52 weeks if their contribution to the cause of the accident exceeds 61%.

✅ In most-at-fault disputes, the only issue is whether the Claimant’s contributory negligence exceeds 61%.

✅ In multi-vehicle accidents, the Claimant’s contributory negligence is assessed by reference to the relative culpability of each vehicle involved in the accident.

Facts

On 24 May 2025, the Claimant was riding his motorcycle on Flinders Street near the intersection of Oxford Street in Surry Hills when he was involved in a motor accident with a taxi.

The Claimant was riding his motorcycle in the lane closest to the median strip and the Insured taxi was travelling in the lane to his left.

Importantly, the Claimant’s lane was coming to an end and it follows that he had to merge into the Insured taxi’s lane at some point in the immediate future

Dashcam footage from the Insured taxi demonstrated that it was travelling at 53 to 55 kph when the Claimant overtook the vehicle on its right, whilst still in the lane closest to the median strip.

As his lane ended, the Claimant pulled in front of the Insured taxi and braked.

The Insurer denied liability for ongoing statutory benefits on the grounds that the Claimant was wholly at fault for the accident. That decision was affirmed on Internal Review and the Claimant lodged a Miscellaneous Assessment in the Commission.

Member’s Decision

The Member found that the Claimant departed from the standard of care expected of him for the following reasons:

🟪 When faced with a lane which was ending, a reasonable person in the Claimant’s position would not accelerate in an attempt to overtake a vehicle travelling in the lane into which they wanted to merge. A reasonable person would fall back and merge behind the other vehicle.

🟪 Given that the speed limit was 50 kph and the Insured taxi was travelling at 53 to 55 kph, the Claimant had to breach the speed limit in order to overtake the Insured taxi.

🟪 There was insufficient room for the Claimant to brake safely after overtaking the Insured taxi and merging into its lane.

The Member proceeded to assess the Insured driver’s standard of driving and found a departure from the required standard for the following reasons:

🟪 The Insured should have been aware of the Claimant’s presence given that the vehicles had been travelling side by side for a period and the Claimant’s motorcycle would have been visible in the Insured taxi’s mirrors.

🟪 The Insured should have anticipated that the Claimant might increase his speed and try to overtake his vehicle.

🟪 Had the Insured noticed the Claimant riding his motorbike past his taxi, he would have had more time to react earlier than he did.

Whilst both parties were partially at fault, the Member concluded that the Claimant’s relative culpability outweighed the Insured’s relative culpability.

On that basis, the Member found that the Claimant was 80% responsible for the accident and, therefore, most at fault.

My Perspective

The decision in Antoniou represents another application of the Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272.

The Member applied the following process:

🟪 Start from the premise that the only issue is whether the Claimant’s contributory negligence exceeds 61%.

🟪 First, assess whether the Claimant’s driving behaviour departed from the required standard. (If there is no departure, that is the end of the matter.)

🟪 Second, once a finding had been made that the Claimant departed from the required standard, assess whether the Insured’s driving behaviour departed from the required standard.

🟪 Third, once a finding was made that both parties were at fault, place a percentage on each party’s relative culpability.

Based on her factual findings, the Member found that the Claimant was 80% responsible and, therefore, most at fault.

PJH

#52 – Standard of Care for Learner Drivers is Standard

Decision

Holmes v Allianz Australia Insurance Limited [2026] NSWPIC 389

Sixty-Second-Or-Less Summary

A motorcyclist is injured whilst trying to obtain their provisional licence. Whilst performing a quick stop-test, in wet and slippery conditions, the front wheel of the motorcycle locks and the motorcycle falls over.

Was the Claimant motorcyclist wholly or mostly at fault for their accident.

In Holmes v Allianz, a PIC Senior Member assessed the Claimant’s contributory negligence at 40% and, therefore, concluded that she as not wholly or mostly at fault. In coming to this finding, the Senior Member noted that the standard of care required of an inexperienced driver was no different from the standard of any other motorcyclist.

Principles

✅ In motor accidents where only one party is culpable, contributory negligence is measured by how far the driver departed from the required standard of care.

✅ The standard of care expected from an inexperienced driver is that of a reasonable driver, rather than a lower standard modified by their inexperience.

Facts

The Claimant was injured in a motor accident on 2 May 2025.

At the time of her accident, the Claimant held a motorcycle rider learner’s licence and was trying to obtain her provisional motorcycle rider’s licence. Whilst a novice on the motorcycle, the Claimant had held a driver’s licence for 45 years.

On the day of her accident, the Claimant rode her scooter with other riders for a period exceeding two hours. Most of this ride occurred in moderate to heavy rain.

After a lunch break, the Claimant told her instructor that she felt the road was dangerous and slippery. The instructor observed that the Claimant may have to ride in these conditions once she was fully licenced.

When the Claimant commenced the quick stop test, she reached a speed of 10 to 15 kph and applied her brakes. At this point the front wheel locked and she fell to her left.

The Senior Member’s Decision

The Senior Member found that the Claimant was 40% responsible for her accident and, therefore, not wholly or mostly at fault, for the following reasons:

🟪 In accidents where only one party is culpable, contributory negligence is assessed by reference to the extent the injured person’s conduct departed from the required standard of care – AAI Limited t/as GIO v Evic [2024] NSWSC 1272.

🟪 A motorist’s duty to exercise reasonable care, irrespective of experience, is always the same; namely, to conform to the legal standard of reasonable conduct in the light of the apparent risk – Imbree v McNeilly; McNeilly v Imbrue [2008] HCA 40.

🟪 The Claimant was required to complete a quick stop test in order to satisfy the motorcycle licencing requirements.

🟪 The Claimant faced a risk that she might lose control of her motorcycle if she applied the brakes with too much force on a wet and slippery road.

🟪 The Claimant was required to exercise reasonable care by applying the braking technique described in the handbook.

🟪 The Claimant failed to exercise reasonable care by applying the brakes of her motorcycle too harshly for the wet conditions.

🟪 A finding of 100% contributory negligence is reserved for the worst possible case – Davis v Swift [2014] NSWCA 458.

🟪 Given her departure from the standard of care required of a motorcycle rider in wet conditions, a just and equitable reduction is 40%.

My Perspective

The decision in Holmes represents another application of the Supreme Court’s Decision in Evic. The Senior Member faithfully followed Evic by assessing the Claimant’s contributory negligence by reference to the extent that her riding conduct departed from the required standard of care.

What makes the decision notable is the Senior Member’s finding – consistent with the High Court’s decision in Imbree – that the standard of care required of the Claimant was the same standard required of any other motorcycle rider, her inexperience notwithstanding.

PJH

#41 – Corner Marker Mostly at Fault on Motorcycle Club Run

Decision

Hernandez-Taylor v AAI Limited t/as GIO [2026] NSWPIC 208

Sixty-Second-or-Less Read

A motorcyclist is participating in an organised motorcycle club ride. Her role, as Corner Marker, is to park near a bend, with her indicator flashing, to guide fellow riders around the corner. After completing her role, the Claimant assumes that the Tail End Charlie will maintain his place at the rear of the pack and pulls out into his path, resulting in a collision.

Is the Claimant wholly or mostly at fault?

In Hernandez-Taylor v GIO, a PIC Member found that the Tail End Charlie was blameless and that the Claimant departed from the required standard by not looking over her shoulder and/or waving before pulling out onto the road. The Member found that the Claimant’s departure from the required standard of care should be measured at 80%.

Principles

✅ In most-at-fault disputes, where the accident involves multiple vehicles, the Claimant’s contributory negligence is normally assessed by reference to the relative culpability of each participant.

✅ Where, however, the Claimant is the only culpable party, contributory negligence is measured, akin to single vehicle accidents, by reference to their departure from the required standard of care.

✅ A motorcyclist is required to comply with the Road Rules and cannot assume that other participants in a motorcycle club ride will comply with the club rules for the event.

Background

The Claimant was injured in a motorbike accident on 19 May 2024 whilst participating in a Ducati Owners Club Ride.

The accident occurred whilst the Claimant was performing the role of Corner Marker. In that role, the Claimant was required to guide her fellow riders by sitting stationary in advance of a curve in the road with her indicator blinking. After completing her role, the Claimant pulled back onto the road and collided with a fellow rider’s motorbike.

The Insurer denied liability for ongoing statutory benefits, beyond 52 weeks, on the grounds that the Claimant was wholly or mostly at fault for their accident.

The Insurer’s liability determination was confirmed on internal review.

The Claimant lodged a Miscellaneous Assessment application in the Commission to resolve the dispute.

Findings of Fact

The Member made the following findings of fact:

🟪 The Claimant was fulfilling the role of “Corner Marker” during the ride.

🟪 Two other key participants in the ride were the Ride Leader and the Tail End Charlie.

🟪 Prior to the accident in question, the Tail End Charlie had – contrary to his role – ridden past the Claimant when she was performing her Corner Marker duties.

🟪 At the Arcadia Road intersection, the Ride Leader pointed to where he wanted the Claimant, as Corner Marker, to be positioned on the side of the road.

🟪 The Claimant pulled over to a position about five metres before the curve. Her right-hand indicator was on at all times to direct the riders who followed her.

🟪 The Claimant’s position was ahead of the point indicated by the Rider Leader.

🟪 The Tail End Charlie flashed his lights at least twice as he approached the Claimant’s stationary position on the left of the road.

🟪 The Tail End Charlie continued riding but likely slowed down as he approached the corner.

🟪 The Claimant looked in her mirror and saw the Tail End Charlie approaching.

🟪 The Claimant did not wave or provide any other right-hand signal as the Tail End Charlie approached.

🟪 The Claimant did not look before she pulled out on the road.

🟪 The Tail End Charlie was riding at about 20 kph as he approached the corner.

🟪 The Claimant pulled out in front of the Tail End Charlie.

The Member’s Decision

The Member found that the Claimant departed from the required standard of care for the following reasons:

🟪 The Claimant was on notice that the Tail End Charlie was not on the same page as her regarding the roles of the Corner Marker and the Tail End Charlie.

🟪 A reasonable person in the Claimant’s position would not have relied solely on her mirrors. A reasonable person would have turned to look behind her to evaluate whether it was safe to pull out onto the road.

🟪 A reasonable person in the Claimant’s position would have waved or otherwise indicated that she was going to pull out.

🟪 The Claimant was not entitled, as she argued, to rely on the Club Rules, which assume that the Tail End Charlie will maintain their position as the last rider in the group.

🟪 The Claimant was required to adhere to the Road Rules.

The Member found that the Tail End Charlie did not depart from the required standard of care for the following reasons:

🟪 In addition to negotiating the bend in the road, the Tail End Charlie had to monitor whether vehicles coming in the opposite direction might make a right-hand turn, across his path, into a side street.

🟪 Given that the Claimant, as Corner Marker, was required to activate her right-hand indicator to guide fellow riders, the Tail End Charlie could not take this as an indication that she was about to pull out onto the road.

🟪 The Claimant did not give the Tail End Charlie any other signal to indicate her intention to pull out onto the road.

🟪 By parking closer to the bend than the Ride Leader indicated, the Claimant deprived the Tail End Charlie the time and distance to take evasive action.

Having found that the Claimant was the only culpable party, the Member concluded that contributory negligence could not be measured by reference to the relative culpability of the parties.

Instead, the Member applied the method applicable to single vehicle accidents; namely, whether the extent to which the Claimant’s riding departed from the required standard of care.

The Member concluded that the degree of the Claimant’s departure was at least 80%.

My Perspective

The decision in Hernandez-Taylor is interesting for two reasons.

Firstly, it provides another example where a PIC Member has applied AAI Limited t/as GIO v Evic [2024] NSWSC 1272 and treated a multi-vehicle accident as a single vehicle accident because the Claimant was the only party at fault. Prior to Evic, if the Claimant was the only party at fault, a finding of 100% contributory negligence could be expected. Post-Evic, however, where the Claimant is the only party at fault, contributory negligence is measured by their departure from the required standard of care. The concept of relative culpability only applies where more than one party was at fault (as distinct from merely involved).

Secondly, the Member concluded that the Road Rules continue to apply even if there is a private understanding between the road-users – for example, via motorcycle club rules of etiquette – about how they might use the road. In this instance, the Club Rules assumed that the Tail End Charlie would always ride at the rear of the pack. That understanding, however, did not displace the Claimant’s obligation to check that there was time and space to pull out onto the road ahead of the Tail End Charlie’s motorcycle.

PJH

#39 – Driver Most at Fault for Aggressive Merging Manoeuvre

Decision

Contos v Allianz Australia Insurance Limited [2026] NSWPIC 187

Sixty-Second-or-Less Read

A Claimant pulls out from a side street and turns left onto a major arterial road. He accelerates and heads straight for the right lane with the intention of turning right at a nearby side street. The Insured merges from the left lane into the right lane at the same time that the Claimant leaves side street. A collision results.

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

In Contos v Allianz, a PIC Member found that the Claimant’s relatively culpability vastly outweighed the Insured’s minor culpability. The Member based that conclusion on a finding that the primary cause of the accident was the Claimant’s decision to execute an aggressive manoeuvre which involved merging directly into the right lane at speed.

Principles

✅ A Claimant is not entitled to ongoing statutory benefits, beyond 52 weeks if their contribution to the cause of the accident exceeds 61%.

✅ In most-at-fault disputes, the only issue is whether the Claimant’s contributory negligence exceeds 61%.

✅ In multi-vehicle accidents, the Claimant’s contributory negligence is assessed by reference to the relative culpability of each vehicle involved in the accident.

Background

On 4 December 2023, the Claimant was driving in Punchbowl. He came to a stop at the stem of a T-intersection before turning left onto Punchbowl Road. He immediately moved into the right lane because he intended making a right hand turn at Elliot Street. At around the same time, the Insured merged from the left lane on Punchbowl Road into the right lane and a collision resulted.

The Insurer denied liability beyond 52 weeks on the grounds that the Claimant was wholly or mostly at fault for the accident.

The Claimant lodged a Miscellaneous Assessment in the Personal Injury Commission to resolve the dispute.

Findings of Fact

The Member made the following findings of fact:

🟪 The Insured was initially travelling in the left lane of Punchbowl Road.

🟪 The Insured passed the Claimant’s vehicle whilst the Claimant was stationary in the side street.

🟪 The Claimant accelerated after turning left onto Punchbowl Road and was driving faster than the Insured (although neither party was speeding).

🟪 The Insured merged from the left lane into the right lane at the time that the Claimant started his turn onto Punchbowl Road.

🟪 The Insured checked before merging, but the Claimant was not yet behind him in Punchbowl Road.

🟪 The Claimant, after making his left-hand turn, manoeuvred straight into the right lane.

🟪 The Claimant’s vehicle collided with the Insured’s vehicle before the Insured had fully completed his merge into the right lane.

The Member’s Decision

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

🟪 In a most-at-fault dispute, the Claimant does not have to prove that the Insured was at fault.

🟪 The issue is whether the Claimant was guilty of contributory negligence because his driving departed from the requisite standard of care expected of him.

🟪 The Claimant’s driving did depart from the required standard because he failed to anticipate that a vehicle ahead of him on Punchbowl Road might merge into the right lane, because he failed to turn into the right lane before merging into the left lane when it was safe and because he accelerated harshly as he came out of the right hand turn from the side street.

🟪 The Insured’s driving departed from the required standard because he did not see the Claimant’s vehicle until the impact, which suggests that he was not as aware of his surroundings as he should have been.

🟪 The Claimant was more culpable than the Insured because his aggressive manoeuvre as he pulled out onto Punchbowl Road, thus depriving him of the opportunity to see the Insured’s vehicle ahead of him, outweighed the Insured’s minor culpability.

🟪 The Claimant was, therefore, 70% responsible for the accident and the Insured was 30% responsible.

My Perspective

The decision in Contos 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 applied the following process:

🟪 Decide what each party did wrong.

🟪 Compare each party’s relative culpability.

🟪 Place a percentage on that relative culpability.

Based on her factual findings, the Member found that the Claimant was 70% responsible and, therefore, most at fault.

PJH

#37 – Claimant Who Suffered an Unforeseen Medical Episode Not Wholly or Mostly at Fault

Decision

McManus v QBE Insurance (Australia) Limited [2026] NSWPIC 175

Sixty-Second-or-Less Read

A Claimant loses control of their vehicle on a gravel road whilst negotiating a bend. The Claimant argues that the accident was caused by his left arm locking-up due to left cubital tunnel syndrome.

Is the Claimant entitled to ongoing statutory benefits.

In McManus v QBE, a PIC Member accepted the Claimant’s explanation of his loss of control and found that he was not wholly or mostly at fault for his accident. It followed that he was entitled to ongoing statutory benefits.

Principles

✅ A Claimant is entitled to ongoing statutory benefits unless they suffered a threshold injury or they were wholly or mostly at fault for their accident.

✅ In wholly or most at fault disputes, the onus of proof is on the Insurer.

✅ A Claimant is not wholly or mostly at fault if their accident was caused by an unexpected medical episode.

Facts

On 25 January 2025, the Claimant was driving along Williwa Creek Road at Portland when he lost control and rolled his vehicle. The Claimant attributed his loss of control to pre-existing left cubital tunnel syndrome which caused his left arm and hand to lock-up whilst he was driving.

On Internal Review, the Insurer found that the medical evidence did not support the Claimant’s argument that his left cubital tunnel syndrome caused his loss of control. Rather, the Insurer concluded that the Claimant was wholly or mostly at fault for his accident because he failed to adjust his driving to negotiate a bend in the gravel road.

The Member’s Decision

The Member decided that the Claimant was not wholly or mostly at fault for the following reasons:

🟪 In order to be entitled to statutory benefits, the Claimant did not need to show that another party was responsible or culpable for their injury.

🟪 The Claimant is entitled to ongoing statutory benefits unless they are wholly or mostly at fault for their accident (or their only injuries are threshold injuries).

🟪 The onus is on the Insurer to demonstrate that the Claimant was wholly or mostly at fault.

🟪 On the evidence, the Claimant was travelling at 40 kph, before the accident, and he was driving in a cautious manner having regard to the gravel conditions and the presence of horses in the area.

🟪 On the evidence, the accident was wholly caused by the Claimant suffered an unforeseen medical episode.

My Perspective

The decision in McManus turned on its own facts given that the Member accepted the Claimant’s evidence regarding his medical condition and rejected the Insurer’s argument that the accident was caused by his speed.

Be that as it may, having made those factual findings, the Member applied the Supreme Court’s decision in Evic by concluding that the only issue was whether the Claimant was wholly or mostly at fault. There was no need to enquire into whether any other party was at fault.

Given the finding that the accident was caused by an unexpected medical episode, no fault could be attributed to the Claimant and it followed that he was neither wholly nor mostly at fault.

PJH

#35 – Assessing Relative Culpability in Multi-Vehicle Accidents

Decision

Solomon v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 150.

Sixty-Second-Or-Less Read

A goanna strays onto a country road. Driver C swerves onto the wrong side of the road to avoid injuring the monitor lizard. Driver B brings his vehicle to a halt to avoid colliding with vehicle C. The Claimant rides his motorcycle into the rear of Vehicle B.

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

In Solomon v IAG, a PIC Member weighed up the culpability of each of the three vehicles involved in the accident and concluded that the Claimant’s contribution was 60%. The Member therefore concluded that the Claimant was not wholly or mostly at fault.

Principles

✅ Pursuant to s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (MAIA), a claimant is not entitled to ongoing statutory benefits, beyond 52 weeks, if their contributory negligence exceeds 61%.

✅ In multi-vehicle accidents, contributory negligence is assessed by comparing the relative culpability of all drivers involved in the accident.

Facts

The Claimant was riding his motorcycle on Fosterton Road, in Fosterton, on 7 December 2023 when he was involved in a motor accident.

The Claimant was riding behind a Toyota Hilux towing a trailer (Vehicle B). An unidentified vehicle (Vehicle C) was travelling in the opposite direction.

The driver of Vehicle C swerved onto the wrong side of the road to avoid a goanna before continuing on their journey, without stopping.

The driver of Vehicle B stopped in order to avoid a collision with Vehicle C. The Claimant rode his motorcycle into the rear of Vehicle B.

The Member found, on the evidence, that:

🟪 Vehicle C would have collided with Vehicle B if the driver of Vehicle B had not slowed his vehicle and come to a halt.

🟪 The driver of Vehicle B had time to come to a complete stop, put his vehicle in park, activate his hazard lights and open the door of his vehicle before the Claimant’s motorcycle collided with the rear of his vehicle.

🟪 The Claimant was travelling between 30 and 40 metres behind Vehicle B at approximately 40 kph.

The Member’s Decision

The Member confirmed that they had to consider the relative culpability of all the drivers involved in the accident in order to assess the Claimant’s contribution to the accident.

The Member found that the Claimant was not wholly or mostly at fault for the following reasons:

🟪 The Claimant contributed to the accident by failing to maintain a safe distance, failing to keep a proper lookout and by failing to take evasive action.

🟪 The driver of Vehicle C contributed to the accident by failing to apply the brakes of their vehicle and remaining in their lane, rather than swerving into oncoming traffic, when they saw the goanna on the road ahead of them.

🟪 The driver of Vehicle B contributed to the accident by failing to move their vehicle off the road before stopping, rather than stopping in the Claimant’s path.

🟪 Weighing up the comparison of culpability, the Claimant’s departure from the required standard of care warrants a finding of 60% contributory negligence.

My Perspective

The decision in Solomon provides an example of how the Claimant’s contribution to an accident is assessed in multi-vehicle accidents.

The Member applied the decision of AAI Limited t/as GIO v Evic [2024] NSWSC 1272 and looked at each parties contribution to the cause of the accident. The Member proceeded to find the Claimant 60% responsible without attaching a percentage to the contribution made by Vehicle B and Vehicle C.

Compare that approach to the approach taken in Freitas v QBE Insurance (Australia) Limited [2025] NSWPIC 475 which involved a three-vehicle chain collision. In that matter, a different Member looked at each driver’s want of care and attached a percentage contribution to each party.

My full Case Note in Freitas can be accessed here.

PJH

#27 – Look Up From Your Phone! Pedestrian’s Contributory Negligence Measured at 100%.

Decision

Kojic v Insurance Australia Limited t/as NRMA Insurance [2026] NSWPIC 13

Sixty-Second-Or-Less Read

A pedestrian wants to cross a busy arterial road with six lanes. There is a pedestrian crossing 85 metres away, but he does not use it. After crossing three southbound lanes and two northbound lanes, the pedestrian enters the kerbside lane with his eyes focussed on his mobile phone. Had he looked, he would have seen the Insured vehicle travelling towards him.

Is the pedestrian wholly or mostly at fault for their accident?

In Kojic v IAG, a PIC Member concluded that the Insured’s driving did not depart from the required standard. In a salutary lesson to anybody addicted to their mobile phone, however, the PIC Member proceeded to find that the Claimant’s contributory negligence was in the worst possible case because, instead of maintaining a proper lookout for approaching vehicles, the pedestrian focussed, instead, upon his mobile device. The Member, therefore, measured contributory negligence at 100%.

Principals

✅ In multiparty accidents, where the Claimant is the only party at fault, the concept of relative culpability does not apply. Instead, contributory negligence is measured by the extent to which the Claimant departed from the required standard of care.

✅ A finding of 100% contributory negligence is reserved for “the worst possible” cases.

✅ A pedestrian crossing a busy six-lane arterial road, whilst looking at their mobile phone, falls into the worst possible case.

Facts

On 25 May 2024, the Claimant was run down whilst trying to cross Victoria Road, at Drummoyne, near the intersection with Osgathorpe Road.

The Insured denied liability for ongoing statutory benefits on the grounds that the Claimant was wholly or mostly at fault for his accident. That decision was confirmed on Internal Review. The Claimant lodged a Miscellaneous Assessment in the Commission.

The Member made the following findings of fact:

🟪 The Insured was heading north on Victoria Road at the time of the accident.

🟪 The Insured was travelling at approximately 50kph because she intended to turn left into a side street which lay 10 to 15 metres away and was slowing her vehicle in order to make the turn.

🟪 A traffic-light controlled intersection lay approximately 85 metres further to the north of the accident site.

🟪 The Claimant walked across the three south-bound lanes of Victoria Road, without incident, and stood for a period on the median strip.

🟪 There were stationary vehicles backed-up in lanes 2 and 3 northbound on Victoria Road.

🟪 After being waved through by an unknown driver, the Claimant walked between the stationary vehicles towards the western kerb of Victoria Road.

🟪 The Insured vehicle collided with the Claimant as the Claimant left lane 2 and entered lane 1.

🟪 The Claimant was looking at the mobile phone in his hand as he entered lane 1.

🟪 Whilst the Claimant looked both ways when he first started to cross Victoria Road and, again, when he stepped from the median strip, he did not look both ways when he left lane 1 and entered lane 2.

🟪 The Claimant emerged, without warning, from behind stationary vehicles into the path of the Claimant’s vehicle.

The Member’s Decision

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

The Claimant’s Conduct

The Member determined that the Claimant departed from the standard of care expected of him because a reasonable person in his position would have:

🟪 Used the pedestrian crossing which lay 85 metres away rather than cross a six-lane highway.

🟪 Exercised additional care because it was foreseeable that there might be vehicles in lane 1 wishing to turn left into the cross-street close to where he chose to cross.

🟪 Taken the act of being waved through as permission to only traverse the lane that vehicle occupied rather than all three northbound lanes.

🟪 Entered lane 1 without being distracted by their mobile phone.

🟪 Looked to their left before entering lane 1 and observed the approach of two vehicles.

The Insured’s Conduct

The Member determined that the Insured did not depart from the standard of care expected of her because she was driving at a reasonable speed and maintaining a proper lookout.

Degree of Contributory Negligence

The Member assessed contributory negligence at 100% on the following bases:

🟪 Whilst there were two parties involved in the accident, only one of them was culpable. It followed that relative culpability was not the correct way of assessing contributory negligence.

🟪 Given that the Claimant was the only party at fault, his contributory negligence must be assessed by the extent to which his conduct departed from the standard expected from a reasonable pedestrian.

🟪 A finding of 100% is reserved for the “worst possible” case of contributory negligence.

🟪 In this case, the Claimant’s conduct falls into the “worst possible” category because he entered lane 1 of a busy arterial road without looking left and whilst looking at his mobile phone.

My Perspective

The decision in Kojic provides another instructive example of how most-at-fault disputes are resolved post the Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272.

If the pedestrian is the only party at fault – and the driver was not at fault in any way – it is tempting to conclude that the pedestrian must, automatically, be wholly at fault. In that scenario they are, after all, the only party to the accident found to be at fault.

The Member in Kojic, however, has interpreted the Supreme Court’s decision in Evic to mean that the concept of relative culpability has no relevance when the Claimant is the only party at fault. Relative culpability cannot be compared when only one party is culpable.

When a pedestrian is the only party at fault, the pedestrian’s contributory negligence is measured by reference to the extent their conduct departed from the standard of care required of them.

In a salutary lesson to everybody addicted to their mobile devices in this modern world, the Member concluded that the Claimant’s focus on his mobile phone, rather than on the vehicles approaching him from his left, placed his want of care in the worst possible class. The Member, therefore, assessed contributory negligence at 100%.

It is important to understand, however, that the finding of 100% contributory negligence stemmed from the finding that the pedestrian’s want of care was in the worst class rather than from the fact that they were the only party at fault.

To see an example of a most-at-fault dispute where the only party at fault had their contributory negligence assessed at 80%, see my Case Note in  Raad v QBE Insurance (Australia) Limited [2025] NSWPIC 598

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

#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

#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

#13 – Evic Applied – How to Assess Contributory Negligence in a Chain Collision

Decision

Freitas v QBE Insurance (Australia) Limited [2025] NSWPIC 475

Sixty-Second-Or-Less Read

Vehicle A comes to a halt on the road. Vehicle A’s brake lights are not working which creates an emergency situation for the driver of Vehicle B. That driver, however, manages to avoid a collision. The Claimant is riding his motorbike behind Vehicle B. The Claimant tries to brake but collides with Vehicle B due to a combination of the wet conditions, the absence of ABS brakes and his failure to maintain a proper distance.

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

In Freitas v QBE, a PIC Member found that the Claimant and the driver of Vehicle A were equally responsible for the accident. The driver of Vehicle B was blameless. The Claimant’s contribution to the accident was, therefore, 50%. It followed that the Claimant was not wholly or mostly at fault.

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 their contributory negligence exceeds 61%.

✅ In multi-vehicle accidents, contributory negligence is assessed by comparing the relative culpability of all drivers involved in the accident.

Facts

The Claimant was injured in a motor accident on 2 May 2024 when his motor vehicle collided with the rear of the vehicle ahead of him.

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

Three vehicles, all travelling in the same direction, were involved in the accident, in the following order:

1️⃣ Vehicle A.

2️⃣ Vehicle B.

3️⃣ The Claimant’s Vehicle.

The PIC Member made the following findings of fact:

🟪 It had been drizzling on the morning of the accident and the road was wet.

🟪 The Claimant was riding his motorcycle at 40 kph.

🟪 Vehicle A came to a stop.

🟪 The driver of Vehicle B was faced with an emergency situation because the brake lights on Vehicle A were defective and did not illuminate.

🟪 The driver of Vehicle B braked and managed to avoid colliding with Vehicle A.

🟪 The Claimant also applied his brakes, but his rear wheel lost control due to the state of the wet road and because the motorbike did not have ABS brakes.

🟪 The Claimant’s motorbike collided with the rear of Vehicle B.

The Member’s Decision

The Member found that the Claimant was not wholly or mostly at fault, for the following reasons:

🟪 The Supreme Court decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272 applies to both single vehicle and multi-vehicle accidents.

🟪 In multi-vehicle accidents, the Claimant’s contributory negligence is assessed by comparing the relative culpability of each driver involved in the accident.

🟪 The driver of Vehicle A contributed to the cause of the accident by driving a vehicle which did not have effective brake lights.

🟪 The driver of Vehicle B did not contribute to the cause of the accident. He was confronted with an emergency situation, braked immediately and successfully avoided a collision with the vehicle ahead of him.

🟪 The Claimant contributed to the cause of his accident because he knew that the road was wet and that his motorbike did not have ABS brakes. As such, a reasonable person in his position would have left extra time and distance between his vehicle and the vehicle ahead.

🟪 The Claimant and the driver of Vehicle A were equally responsible for the accident.

🟪 The Claimant’s contributory negligence was, therefore, 50%.

Pete’s Perspective

The Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272 was something of a game-changer because it clarified that, in single vehicle motor accidents, the driver’s contributory negligence is assessed by reference to how far the Claimant’s driving conduct departed from the required standard of care.

The decision in Freitas, however, confirms that the impact of Evic is not limited to single vehicle accidents.

At paragraph 63 of her reasons, the PIC Member summarises the principles enunciated in Evic as follows:

“a.      an injured person’s entitlement to benefits does not require the claimant to prove fault and there is no distinction in the legislative scheme between single and multi-party accidents [55];

“b.      the phrase ‘wholly or mostly’ at fault is a composite phrase (not two separate concepts);

“c.      the phrase is addressed at the claimant’s contributory negligence [56] relevant to the accident (and not the injury) which “accommodates all types of motor accidents, including single vehicle accidents where the injured person is the owner driver” [57];

“d.      s 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of s 5R(2)(a) of the CL Act and the test of contributory negligence is “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person” [60];

“e.      where there is more than one motor vehicle involved, or the claimant is a pedestrian (and presumably a cyclist or other road user), the claimant’s contributory negligence is assessed by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk at [61];

“f.       in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply citing at [68] Axiak v Ingram and at [69] Davis v Swift two blameless accident cases from the previous motor accident insurance and compensation scheme, and

“g.      if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) requires an assessment of the degree of contributory negligence that is “just and equitable in the circumstances of the case” [73].“

As stated in point (e), in multi-vehicle accidents, the culpability of all parties to the accident must be apportioned in order to assess the claimant’s contributory negligence.

Whilst, in this dispute, the Member found that only the driver of Vehicle A and the Claimant contributed to the accident, it is not difficult to envisage a theoretical chain collision where three (or more) drivers all make a contribution to the cause of the accident. In that theoretical case, the contribution of each causative participant must be assessed and given a percentage contribution.

My full Case Note on Evic can be accessed here.

PJH

#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

#8 – When is a Finding of 100% Contributory Negligence Justified in a Single Vehicle Accident?

Decision

CMB v QBE Insurance (Australia) Limited [2025] NSWPIC 420

Principles

✅ In single vehicle accidents, a driver’s contributory negligence is measured by the extent they departed from the standard of care required of them to protect their own safety.

✅ A driver will only be found to be 100% responsible for the accident, and therefore wholly at fault, where their departure from the required standard of care is in the worst possible category.

Sixty-Second-or-Less Read

A Claimant is driving at approximately 80kph in a 60 zone. They lose control of their vehicle and collide with a telegraph pole. A PIC Member rejects their explanation that they had to swerve to avoid another vehicle.

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

In CMB v QBE,  a PIC Member found that the Claimant was not wholly at fault because their want of care did not fall into the worst possible case. The PIC Member did, however, find the Claimant’s departure from the required standard of care did warrant a finding of contributory negligence exceeding 61%. The Claimant was, therefore, mostly at fault and not entitled to ongoing statutory benefits.

Facts

The Claimant was injured in a motor accident on 23 August 2022. QBE denied liability for ongoing statutory benefits, beyond 52 weeks, because they determined that the Claimant was wholly at fault for his accident.

There was no dispute that the Claimant’s vehicle left the roadway and collided with a telegraph pole. The Insurer alleged that the accident was wholly caused by the Claimant’s want of care. The Claimant ultimately alleged that he lost control because a vehicle heading in the other direction came onto the wrong side of the road and he had to swerve to avoid a head-on collision. The matter was complicated, however, by the fact that the Claimant also alleged that he may have swerved to avoid a vehicle exiting from a driveway.

Determining what actually happened was complicated by the fact that the Claimant, at some point post-accident, was found to lack legal capacity. The Commission, however, had access to various witness accounts together with some CCTV of the accident.

The PIC Member ultimately made the following findings of fact.

🟪 Contrary to the Claimant’s claim, an oncoming vehicle did not veer into his path, causing him to swerve and loss control.

🟪 Also contrary to the Claimant’s claim, a vehicle did not exit from a driveway, causing him to swerve.

🟪 The Claimant was driving at approximately 80kph in a 60 zone.

The Member’s Decision

Having determined that the accident was a single vehicle accident, the PIC Member found that the Claimant was mostly at fault, for the following reasons:

🟪 Pursuant to the Supreme Court decision of AAI Limited t/as GIO v Evic [2024] NSWSC 1272:

🟪 The qualifiers “wholly or mostly” inform each other and are intended to address the same mischief, namely, contributory negligence.

🟪 Where there are two or more vehicles involved in the accident, an assessment of contributory negligence requires the decision maker to assess the relative culpability of each party.

🟪 In a single vehicle accident, however, where there is only one party involved, contributory negligence is assessed by looking at the extent to which the driver’s behaviour departed from the reasonable standard of care required of them to protect their own safety.

🟪 An injured person may be “wholly at fault”, consistent with the enacted law that permits a finding of 100% contributory negligence.

🟪 In Manley v Alexander [2005] HCA 79, the High Court stated that “…the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events…”.

🟪 A finding of 100% contributory negligence can be found where the departure from the standard of care is found to constitute “a worse possible case”.

🟪 Given the absence of alcohol or drugs, the circumstances in this dispute do not involve the worst possible case.

Ultimately, the PIC Member was not able to assign a percentage figure on the Claimant’s contributory negligence. Whilst not prepared to find 100% contributory negligence, the PIC Member ultimately certified that the Claimant’s contributory negligence exceeded 61% and that the Claimant was, therefore, mostly at fault.

Pete’s Perspective

The decision in CMB illustrates, once again, that a driver in a single vehicle motor accident is not wholly or mostly at fault merely because they were the only person involved in the accident.

As established by the Supreme Court in Evic, in single vehicle accidents, 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.

As we have seen in other PIC Decisions post-Evic, that departure might range from a momentary lapse of attention to gross negligence. The task for the Insurer, at first instance, and the PIC Member is to place a percentage on that departure.

The decision in CMB reminds us that a finding of 100% contributory negligence – or that the Claimant was wholly at fault – is reserved for a worst possible scenario. The PIC Member assumed a worst case might involve alcohol or drugs.

A finding of between 61% and 100% contributory negligence – or that the Claimant was mostly at fault – is still available if the Claimant’s departure from the required standard of care is significant but not in the worst case.

Whether the Claimant is found to be wholly at fault or mostly at fault, the outcome is still the same. They are not entitled to ongoing statutory benefits beyond 52 weeks.

Our 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

    PJH

    #7 – Bicyclist Found Wholly at Fault

    Decision

    Mitchell v Allianz Australia Insurance Limited [2025] NSWPIC 378

    Principles

    ✅ In most-at-fault disputes, the Insured carries the onus of proof.

    ✅ The sole issue is whether the Claimant’s contributory negligence exceeds 61%.

    ✅ Where two parties are involved, a comparison is required of each party’s relative culpability.

    Sixty-Second-Or-Less Read

    The Insured driver is travelling at approximately 40 to 45 kph on a busy suburban road towards a pedestrian island. He sees the Claimant on his bicycle seconds before the impact. The PIC Member accepts that the Claimant was trying to use the pedestrian island to cross the road.

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

    In Mitchell v Allianz, a PIC Member found that the Claimant was wholly responsible for his accident because he created an emergency situation in which the Insured could not have avoided the collision even with the exercise of reasonable care.

    Facts

    On 18 September 2024, the Claimant – an 80-year-old male – was riding his bicycle in Five Dock. He attempted to use a marked bicycle crossing in order to cross Lyons Road West when he was run down by the Insured vehicle. He sustained serious injuries including a fractured pelvis, a shattered right ankle and a broken femur which necessitated a hip replacement.

    A photograph depicted where the Insured vehicle came to a halt. The photograph confirmed that the Insured vehicle was within the westbound lane of Lyons Road West with its passenger-side tyre on the line which marked the southern boundary of the carriageway.

    The Insurer served a Liability Notice denying liability for ongoing statutory benefits beyond 52 weeks on the grounds that the Claimant was wholly or mostly at fault for the accident. That decision was affirmed on Internal Review.

    The Claimant lodged a Miscellaneous Assessment in the Commission to resolve the dispute.

    PIC Member’s Decision

    The PIC Member concluded that the Insurer had discharged its onus of proof that the Claimant was wholly or mostly at fault for the following reasons:

    🟪 The Insured driver was entitled to assume that the Claimant would see his vehicle and not begin to cross the carriageway until the Insured had passed.

    🟪 Whether the Claimant emerged onto the carriageway at high speed (as the Insured alleged) or if he was inching forward (as the Claimant alleged), the Claimant created an emergency situation by emerging onto the road into the path of the Insured vehicle.

    🟪 The Insured could not have avoided a collision with the Insured even with the exercise of reasonable care.

    Pete’s Perspective

    In coming to their conclusion, the PIC Member applied the Supreme Court decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272. The PIC Member summarised the principles emerging from Evic, at [14], as follows:

    “On 11 October 2024 in the decision of AAI Limited t/as GIO v Evic,[2] Justice Mitchelmore considered sections 3.11 and 3.28 and applied them to a single vehicle accident. In the course of her reasons, Justice Mitchelmore said the following:

    ◾ an injured person’s entitlement to benefits, including benefits after the first 52 weeks, does not require the claimant to prove fault (55);

    ◾ the phrase “wholly or mostly” at fault is a composite phrase (not two separate concepts of wholly at fault and mostly at fault) and is directed at the claimant’s contributory negligence (56) relevant to the accident (not the injury) (57);

    ◾ section 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of s 5R(2)(a) of the Civil Liability Act 2002 (CL Act). The test of contributory negligence in that section is “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person” (60);

    ◾ where there is more than one motor vehicle involved, or some other road user, the claimant’s contributory negligence is assessed by considering the apportionment culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk at (61);

    ◾ in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply and the question to be pose is whether the claimant acted as a reasonable person in their position would have acted, citing to blameless accident cases at (68) and (69); and

    ◾ if contributory negligence is found on the part of the claimant, then section 3.38(3)(c) requires an assessment of the degree of contributory negligence that is “just an equitable in the circumstances of the case” (73).”

    It is unclear, however, whether the PIC Member applied the fourth bullet (on the basis that there were two parties involved) or whether they applied the last two bullet points (on the basis that the Insured vehicle was the only vehicle involved and any fault by the Claimant was non-tortious because his bicycle was not capable of causing injury to the Insured). If the former, the assessment of contributory negligence was based on the relative culpability of the parties. If the latter, contributory negligence was assessed by reference to the extent the Claimant departed from the required standard of care.

    Either way, the PIC Member concluded that a “just and equitable” reduction for the Claimant’s want of care was 100% given the finding that the Claimant was wholly at fault.

    Our 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

    PJH

    #3 – Review Panel Wrong-Footed by Wingfoot

    Decision

    Insurance Australia Ltd trading as NRMA Insurance v Cahill [2025] NSWSC 828

    Principles

    ✅ A decision-maker fails to provide a proper path of reasoning if it states a conclusion without explaining how they came to that conclusion by reference to the evidence before them.

    ✅ A decision-maker denies a party procedural fairness if it decides a dispute on a basis not put by the parties without giving the parties a chance to be heard.

    Sixty-Second-Or-Less Summary

    A Review Panel finds a lumbar cartilage tear and concludes that the motor accident caused a non-threshold injury.

    The Insurer seeks Judicial Review in the Supreme Court.

    Is the Review Panel’s decision afflicted by administrative error?

    In IAG v Cahill, the Supreme Court found that the Review Panel failed to explain how it came to a random conclusion which was not addressed by either party and that the Review Panel denied the Insurer procedural fairness by not giving it a chance to address the random conclusion it proposed reaching.

    Facts

    The Claimant was injured in a motor accident on 9 July 2020.

    The Insurer subsequently determined that the Claimant was not entitled to ongoing statutory benefits (or common law damages) because the injury to this lumbar spine was a threshold injury.

    The threshold injury dispute proceeded to a PIC Medical Assessment. The original Medical Assessor determined that the accident did not cause any injury to the Claimant’s lumbar spine and that any lumbar complaints were caused by pre-existing multiple sclerosis.

    The Claimant successfully sought a referral to the Review Panel. The Review Panel disagreed with the original Medical Assessor and found that the accident caused a non-threshold injury to the lumbar spine based on a tear of the lumbar disc cartilage.

    The Insurer sought Judicial Review in the Supreme Court.

    The Supreme Court’s Decision

    Justice Adamson allowed the Insurer’s application for two reasons:

    🟪 Failure to Give Reasons – the Review Panel failed to include any information in its reasons to explain its finding that the accident caused a lumbar disc cartilage. As such, the Panel failed to meet the standard required by Wingfoot Australia Partners Pty Ltd v Kocak (2013) 252 CLR 480; [2013] HCA 43 because the Panel failed to set out the actual path of reasoning which led to its conclusion.

    🟪 Denial of Procedural Fairness – the Review Panel found a lumbar cartilage tear in circumstances where neither party presented any evidence or submissions with regard to the presence of a lumbar cartilage tear and neither party could have contemplated that the Review Panel would resolve the dispute on the grounds of a lumbar cartilage tear. The Panel denied the Insurer procedural fairness because it failed to alert the Insurer to its thinking and give the Insurer an opportunity to be heard on the cartilage tear issue.

    Pete’s Perspective

    The Supreme Court’s decision in Cahill confirms the high onus on a PIC Medical Assessor or a PIC Review Panel to give proper reasons for their decision. In this dispute, the Review Panel fell short of the required standard by making an apparently random decision without either explaining their thinking of giving the parties a chance to be heard on the random conclusion it reached.

    PJH

    #1 – Mostly at Fault? Can’t Get No (Reasonable) Satisfaction

    PIC Decision

    PXAYL v Insurance Australia Ltd t/as NRMA Insurance [2025] NSWPIC 324

    Principles

    ✅ In most-at-fault disputes, the onus is on the Insurer to demonstrate what happened and that the accident was caused, wholly or mostly, by the Claimant’s fault.

    ✅ Whilst the required standard is “reasonable satisfaction”, that crossbar is high given that the Claimant’s entitlement to ongoing statutory benefits will end if the Insurer satisfies the Commission that the Claimant was wholly or mostly at fault.

    Sixty-Second-Or-Less Summary

    The Claimant is driving along a major arterial road. She starts to merge into the kerbside lane to her left because she wants to make a left hand turn in the near future. At around the same time, the Insured enters the arterial road from a cross-street and enters the kerbside lane. The two vehicles collide. The Insurer determines that the Claimant was wholly or mostly at fault for her accident because she failed to maintain a proper lookout whilst changing lanes. The Claimant challenged that decision.

    Was the Claimant wholly or mostly at fault?

    The PIC Member found that the Claimant was not wholly or mostly at fault because the Insurer failed to demonstrate, to the Member’s reasonable satisfaction, that the Insured was already established in the kerbside lane before the Claimant started merging into that lane.

    Facts

    On 26 June 2024, at approximately 8.15am, the Claimant was driving in the middle of three lanes along The Northern Road, Glenmore Park. Her intention was to merge into the lane on her left because she wanted to make a left hand turn into Jamison Road.

    In the meantime, the Insured had entered The Northern Road from Garswood Road and entered the lane to the Claimant’s left.

    The Claimant started to merge into the lane to her left and the front left wheel of the Claimant’s vehicle collided with the front right bumper and wheelarch of the Insured vehicle.

    The Insurer served a Liability Notice denying liability for ongoing statutory benefits on the grounds that the accident was wholly or mostly caused by the Claimant’s fault.

    The Insurer alleged that the Claimant failed to maintain a proper lookout when merging to her left.

    The Claimant argued that the Insured was at fault because they failed to notice the Claimant merging into the kerbside lane when they entered The Northern Road from Garswood Road.

    Following an unsuccessful Internal Review, the Claimant lodged a Miscellaneous Assessment in the Personal Injury Commission.

    The Member’s Decision

    The Member determined that the Claimant was not wholly or mostly at fault for the following reasons:

    🟪 The onus is on the Insurer to prove that the accident was caused wholly or mostly by the Claimant’s fault.

    🟪 Whilst the standard is one of “reasonable satisfaction”, careful regard must be had to the nature, strength and limitations of the available evidence given that the consequences are serious. The Claimant will be disentitled from ongoing benefits.

    🟪 Clause 149(2) of the Road Rules 2014 provides that a driver moving from one line of traffic to another must give way to any vehicle already travelling in the destination lane. The rule only applies, however, if the Insured was, in fact, already occupying the destination lane when the Claimant began to merge.

    🟪 The geometry of the road and the damage profile to each vehicle was consistent with both vehicles entering the kerbside lane at roughly the same time.

    🟪 The evidence failed to establish that the Claimant’s version was implausible.

    🟪 In those circumstances, the Insurer failed to discharge its burden of demonstrating that the Claimant was wholly or mostly at fault.

    Pete’s Perspective

    The decision in PXAYL illustrates the challenges facing Insurers when the circumstances of an accident are ambiguous.

    Putting it bluntly, the Insurer fails to discharge its onus of proving that the Claimant was wholly or mostly at fault if it fails to demonstrate, through cogent evidence, how the accident occurred.

    PJH