Tag: Relative Culpability

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

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

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

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

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