Baram v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Baram v Allianz Australia Insurance Limited [2025] NSWPIC 431
CLAIMANT:	Kim Baram
INSURER:	Allianz Australia Insurance Limited
MEMBER:	David Ford
DATE OF DECISION:	25 August 2025
DATE OF AMENDMENT:	10 October 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28; claimant was riding his motorcycle when he lost control, crossed onto the incorrect side of the road, and sustained injuries; claimant alleged he was forced to take evasive action because unidentified motorcyclists had suddenly crossed over onto his side of the road and rode towards him; determined the said motorcyclists were not on the incorrect side of the road; statements of an independent witness who was riding his motorcycle behind the claimant confirmed the claimant had lost control of his motorcycle; Held – motor accident was caused wholly or mostly by the fault of the claimant; claimant entitled to payment of reasonable and necessary legal costs beyond the regulated amount of legal costs.
DETERMINATIONS MADE:	REPLACEMENT CERTIFICATE The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident was caused wholly or mostly by the fault of the injured person. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident was caused wholly or mostly by the fault of the injured person. 3. Effective date: This determination takes effect on 10 October 2025. 4. Legal costs: Both the claimant and the insurer are entitled to payment of reasonable and necessary legal costs beyond the regulated amount of legal costs 5. A brief statement of my reasons for this determination are attached to this certificate.

STATEMENT OF REASONS

INTRODUCTION

This is a dispute between Kim Baram (the claimant) and the insurer with respect to the payment of statutory benefits, pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).
The insurer undertook an internal review, and a statement of reasons is attached to the application form and is dated 21 April 2021.
The claimant seeks to challenge the determination.
On 6 January 2019, at approximately 10.00 am, the claimant was riding his motorcycle in a group of three other motorcyclists, Jonathan Ashwell, Leonard James Anderssen and George Eatock, in a southerly direction along Limpinwood Road at Tyalgum. It is submitted on behalf of the claimant, there was a group of unidentified motorcyclists who were travelling in a northerly direction along Limpinwood Road towards the claimant on the opposite side of the roadway. It then transpired, the unidentified motorcyclists suddenly crossed over onto his side of the road and rode towards him. Consequently, the claimant took evasive action and crossed over onto the incorrect side of the roadway. He lost control of his motorcycle, fell to the roadway, and sustained serious injuries,
The insurer, in their statement of reasons, considered the claimant wholly or mostly at fault, and after 26 weeks, the weekly payments under ss 3.11 and 3.28 will be ceased. The claimant submits he was neither wholly or mostly at fault in the motor accident and is entitled to a continuation of statutory benefits. He has now filed this application seeking a determination of the dispute with the insurer.

Documents Considered

I have considered the documents provided in the Application and in the Reply, dashcam footage taken by the driver of a motor vehicle, Mr Ivory Culbreath, who was driving his vehicle in a northerly direction along Limpinwood Road towards the scene of the accident. I also considered other documents which was subsequently lodged on the portal by both parties.

Legislative Framework

Entitlement to statutory benefits

The claimant's entitlement to benefits is contained within Part 3 of the MAI Act.
Under s 3.1 of the MAI Act, benefits are payable to almost all persons regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11(1)(a) and 3.28(1a), (at the date of this accident), an injured person was not entitled to statutory benefits beyond the first 26 weeks after the accident, if the motor accident was caused wholly or mostly by the fault of the injured person.
Whilst there is no definition of wholly at fault in the legislation, ss 3.11(2) and 3.28(2) provide a definition of the phrase mostly by the fault, which is if the claimant’s contributory negligence is assessed in accordance with s 3.38 of the MAI Act as greater than 61%.
Section 3.38 provides for the assessment of contributory negligence in accordance with the common law and the enacted law.

Hearing

The claimant lodged an application for Personal Injury Benefits dated 24 January 2019. On page 3, I note the following:
“Question. In your own words please describe (or draw) the motor vehicle accident you were involved in.
Answer. I have no memory of the accident, or even the day of the accident. I only remember waking up in hospital. I can only provide information from other witnesses who saw a part of what happened. It is thought my motorcycle may have had a suspension problem. My friend saw me quickly manoeuvre my motorcycle off the road, but as soon as my motorcycle touched the gravel my motorcycle flipped me off it and I hit a rock. I think I was unconscious. I was wearing full protective gear.”
Also, on page 3, I note the following:
“Question What is the registration number of the car you believe to be most at fault?
Answer 247HJ (my own).”
I refer to the Police report dated 24 April 2019, and I note on page 4 under the heading “Crash Summary Details” the following is recorded:
“About 10:30 am on Sunday 06/01/2019, VEH1 a black Suzuki motorcycle being ridden by DRV1 a 51-year-old male in a generally southern direction on Limpingwood Rd, Tyalgum has failed to negotiate a sweeping left hand bend on a downhill grade located about 1km from Tyalgum township. VEH 1 has crossed the roadway into the roadside gravel and struck a rock located off the road. DRV 1 was ejected from VEH 1 coming to rest off the road. VEH 1 required towing. DRV 1 was conveyed to hospital by road ambulance.”
One of the riders in the group Jonathan Ashwell was riding ahead of the claimant, but did not witness the accident. Unfortunately, Mr Ashwell is deceased, however shortly after the accident, he posted a report on social media which, inter alia, stated the following:
“We weren't speeding or scraping pegs, and we don't know the cause of the accident except cops said was a corner that had claimed lives before. Take care if you are riding in a group, give room to each other and remember even a low speed off (sic) could have devastating consequences. Don't push ur (sic) friends into riding outside their comfort zone.”
The claimant served three statements in his Application. The first statement is dated
4 July 2019, and I note the following paragraphs:
“35. The road where the accident occurred was Limpingwood Rd, I have been told that it happened about 500 metres south of Tyalgum. I have been on that road many times before. I know that road runs north to south in the direction that we were travelling. I don't know where the nearest side street is. I believe the town of Tyalgum was just a short distance away.
36. I have been told that I was on the left-hand bend, but I really can't say if I was or not. I really can't remember.
37. The road in the area where the collision occurred was in a rural area. Because I can't remember exactly what happened, I really can't specifically describe it but it is a winding road.
45.. All I remember from there is other motorcycles on the wrong side of the road and me taking evasive action and that's it. From there I remember waking up a couple of days later in hospital.
46. The other motorcycles were riding toward us but on my side of the road. We were at a bend, and they were coming across toward me and that's what I can remember. I know that I took some action, but that is my thought that I would have taken evasive action either way. I don't think I slammed on the brakes.
47. I believe from what I have been told by Police and where I have been told the bike ended up. I might have travelled to the other side of the road and the bike, and I stopped on the western side, but I can't even remember that.
49. At the time of the collision I have no memory of who was in front of me or if anyone was in front of me, or in fact who was behind me or where they were. We were still riding in a group of four riders
51. My memory as I have stated was waking up some days later in Tweed Heads Hospita.l I really don't know what day it was because I've been told by Claire that I was actually awake and conscious during my stay at hospital, but I don't remember that. I have been told that I had what they refer to as global amnesia. I have been told that it was about the Wednesday that I first started to realise what was going on.
55. I am unable to describe the motorbikes that came in the other direction that I have referred, in any detail but I do remember one of them was yellow and in my mind, there was more than one.
56. As a result of the accident and the injuries that I sustained, Claire submitted an online claim form to SIRA.
57. When Claire submitted the form because of my injuries, I was unable to tell her anything about the accident and she had spoken to Jim Anderrsen who told her that he thought that I may have had a suspension problem. Claire put that down on the form as a possible cause. Claire doesn't know anything about motorcycles, and she was grasping to give them information for the form that she had no knowledge of as she was feeling pressure to do so.
58. Jim Anderssen rides a BMW tourer, and he is of the mindset that all of the motorcycle manufacturers are inferior. He has a bias towards his brand. I really don't know why he suggested that it was a suspension problem.
60. I have looked at the bike in some detail and I'm sure that there is nothing wrong with the suspension. There has never been any problem with the suspension. Part of the appeal of the bike was the suspension and the way it handled.
61. I have been told today that the claim form also suggests that one of my friends told me that I manoeuvred my bike off the road. This is not my recollection as the claim form was prepared by Claire.
62. Claire actually put my bike number down on the claim form as the vehicle at fault, because she was pressured by the representative of SIRA on the phone to provide a registration number of a vehicle at fault, otherwise we could not move forward with our report. We have not been able to identify the registration number of the vehicles at fault.
63. At the time of the collision there was nothing blocking my vision that I recall. There were no distractions with the exception of the motorcycle that came from the other direction.
72. I believe from what I can remember the other riders or another rider that was coming in the opposite direction was responsible for the accident. I have taken that same corner many times in the past without any problems at all when I wrote into that corner on this day, I well knew what I have to do to get around it safely. Under normal circumstances I would not consider that corner to be dangerous.”
I refer to the further statement of the claimant dated 11 March 2021. This statement provides further information regarding his injuries and ongoing disabilities.
I also refer to the statement of the claimant dated 13 May 2025. This statement is in response to the statement of Leonard James Anderssen dated 9 May 2025 and I note the following paragraphs:
“2. I refer to my previous statements in relation to my motor vehicle accident on 6 January 2019. I make this additional statement in response to the statement of Leonard James Anderssen dated 9 May 2025.
3. At paragraph 8 of his statement Mr. Anderssen states that prior to the accident occurring I attempted to overtake John Ainsworth who was riding his motorcycle in front of mine. I refute that I attempted to overtake Mr Ainsworth prior to the accident occurring.
4. The accident occurred a short distance outside the town of Tyalgum and there is no reason why I would have attempted to overtake Mr Ainsworth in that location travelling at 60 km/h or less on a winding road. Mr Ainsworth usually rode his motorcycle ahead of me when we rode together, and I was fine for Mr Ainsworth to right ahead of me.
5. At paragraph 9 of the statement Mr. Anderrsen mentions moguls on the road. By the word Moguls I take that to mean a bump or hump on the road. I do not recall encountering any significant bump or bumps on the road in that area of the road prior to the accident occurring. The stretch of road where the accident occurred is the stretch of road that I have ridden on numerous times prior to the accident occurring and I was very familiar with that stretch of road.
6. At Paragraphs 10 and 11 of his statement Mr. Anderrsen states that prior to the accident occurring there were motorcycle riders travelling in the opposite direction wholly within their lane and that I veered in front of them and then into the spoon. I refute that I veered in front of the other riders travelling in the opposite direction.
7. As previously stated, the last memory I have of events preceding the accident is motorcycle riders travelling in the opposite direction to me encroaching into my lane in front of me, causing me to take an evasive manoeuvre and ride off onto the other side of the road.”
Mr Anderrsen provided a statement to the Police Officer who attended the scene of theaccident, and I note the following was recorded in the Police notebook:
“Riding group of four. Kim was second I was third. Kim hit a bump and dodge to avoid riders coming the other way. He crossed over the lines and hit the dirt on the other side then he hit a rock and crashed it. Then George came around the corner on his bike, locked his brakes and went across the road and hit a rock and cartwheeled off.”
Mr Anderrsen provided a further statement on 29 July 2023, and I note the following paragraphs:
“4. On the 6th of January I was in a group of three other motorcycle riders along Limpinwood Rd towards Tyalgum in the State of NSW.
5. I was the 3rd in the line of motorcycles
6. Kim Baram was in front of me and John Ainsworth was in front of Kim. George Eatock was well behind me.
7. As I was coming down the hill, I observed Kim attempt to overtake John and then pull back
8. There were moguls in the road and, as Kim pulled back, he hit one of the moguls that caused him to get him off his line and he crossed onto the incorrect side of the road.
10.. There were three motorcycles coming the other way, travelling on the opposite of the roadway wholly within their lane.
11. Kim veered onto their side of the road, in front of them, and into the spoon drain.
12. I pulled over to the left immediately as I ride a different bike to the others, a BMW with better braking.
13. I do not know where the three motorcycles coming the other way were when they went past me.
14.. When Kim crossed onto the incorrect side of the road it looked like as soon as he spotted the motorcycles coming the other way, he tried to avoid them it is not a very wide road.
15. When I stopped, I was looking for George. I quickly looked over my right shoulder and he was coming through.
16. When I saw him, he was locked up and went straight into the spoon drain.”
I also refer to the third statement of Mr Anderrsen dated 9 May 2025, and I note the following paragraphs:
“6. I was third in the line of motorcycles riders.
7. Kim Baram was in front of me and John Ainsworth was in front of Kim. George Eatock was well behind me.
8. As I was coming down the hill, I observed Kim attempt to overtake John and then pull back.
9. There were moguls in the in the road add as Kim pulled back, he hit one of the moguls and that caused him to get off his line and he crossed onto the incorrect side of the road.,
10., There were three motorcycles coming the other way, travelling on the opposite side of the roadway, wholly within their lane
11. Kim veered onto their side of the road in front of them and into the spoon drain.
12. I was able to pull over to the left immediately as I ride a different bike to the others a BMW with better breaking.
13. I do not know where the three motorcycle riders coming the other way were when they I went past me.
14. When Kim crossed onto the incorrect side of the road it looked like as soon as he spotted the motorcycles coming the other way, he tried to avoid them. It is not a very wide road.
15. When I stopped, I was looking for George. I quickly looked over my right shoulder and he was coming through.
16., When I saw him, he was locked up and went straight into the spoon drain.”
Mr George Eatock provided a statement to the Police dated 5 May 2019 and I note the following:
“Q, what happened?
A. I was travelling the last rider in a group of four, a short distance behind the other three riders. The group travelled around the corner, ahead of me. When I rounded the corner, I was faced with oncoming vehicles that had traversed on to my side of the road I saw another rider in my group had come off his motorcycle on the opposite side of the road. In that moment I felt I could either collide with the vehicles now heading towards me or follow the other rider off the road I decided to do the latter I was thrown from my motorbike as I went off the road
Q. Is there anything else you wish to tell me?
A. At the time of the accident, I was not sure why the traffic had crossed into my lane as I did not see how the other rider went off the road and crashed. Following the accident, I was told it was because the other rider had lost control of his motorcycle, and the oncoming vehicles swerved to avoid him.”
21. I refer to the statement of George Eatock 16 July 2019. This statement principally deals with the circumstances leading up to his accident. He was last in the line of the 4 motorcyclists as he came upon the accident scene involving the claimant. He lost control of his motorcycle, fell to the road and sustained serious injuries. I refer, to the following paragraphs,
“90. Please explain what happened in full detail. (What you first saw explain in detail what was happening in front of you and what action you took when you were braking/accelerating, where you steered to or were moved to etc)
A. I was last in line riding behind Jim Anderrsen, when I observed three motorcycles and specifically one being a Can Am Spyder, which is a three wheel motorcycle, in my lane riding directly towards me I took evasive action immediately and could see Kim’s bike off the road to the right, so I veered my bike towards Kim’s bike and believe I collided with the embankment. I had not seen Kim’s bike until I observed it on the side of the road to the right after taking evasive action.
91 Did you or any other rider lose control of your motorcycle?
A.   Yes, I took delivered evasive action to the right-hand side to avoid a head on collision. I can't comment for Kim.
92.    Are you able to explain where any oncoming vehicles were on the roadway in the moments before the accident
A, yes, they were in my lane driving directly towards me
93.    How many vehicles were there coming in the opposite direction?
A, 4
94.    Can you describe any of those vehicle’s type make or colour?
A.   One was I believe to be a small car but was later informed to be a Can Am Spyder motorcycle and two other motorcycles.”
I refer to the statement of Mr Ivory Culbreath dated 16 July 2019, and I have also viewed the dashcam footage taken from his motor vehicle. Mr Culbreath arrived at the scene of the accident after both the claimant and Mr Eatock had been dislodged from their motorcycles and lay injured at the side of the roadway. I agree with the submission made by the solicitor for the claimant, the statement of Mr Ivory Culbreath is of limited assistance to me in making my determination. The dashcam footage reveals the claimant had been involved in an accident. It does confirm there were three motorcyclists travelling ahead of Mr Culbreath prior to him arriving at the accident scene.

Claimant’s Submissions

Both parties included in their document bundle the report of Grant Johnston, Consulting Engineer, dated 23 April 2024. He has provided a comprehensive report and was instructed by Shine lawyers to prepare this report on behalf of George Eatock, not the claimant. He refers to the claimant as being a Second Defendant in proceedings commenced by Mr George Eatock.
On page 1 of his report, he states the following:
“The Plaintiff is alleged to have lost control and fallen from his motorcycle as a result of the interaction of the Second Defendant reportedly crossing to his incorrect side of the road and interacting with the second group of unidentified motorcycles which has then allegedly caused one or more of them to move towards their incorrect side of the road in avoiding the Second Defendant and as a consequence interfering with the path of the Plaintiff’s motorcycle.”
On page 21 of his report, he refers to the statement of Mr Leonard Anderrsen dated July 2023. I note Mr Anderrsen was present at the view of the incident location attended by Mr Johnston, his instructing solicitor, and George Eatock on 6 February 2023. As discussed above, this statement states the claimant, according to Mr Anderrsen, hit one of the moguls which caused him to get off his line and cross onto the incorrect side of the road. His statement refers to three motorcycles coming the other way but does not state these motorcycles were on the incorrect side of the road. In fact, Mr Anderrsen states the following in paragraph 14 of his statement:
“When Kim crossed onto the incorrect side of the road, it looked like as soon as he spotted the motorcycles coming the other way, he tried to avoid them. It is not a very wide road.”
I note the conclusion reached by Mr Johnston on page 55 of his report, where he states as follows:
“With regards to time motion / analysis, I would suggest that there is little doubt that the Second Defendant (Mr Baram) has lost some sort of directional control of his motorcycle prior to the Plaintiff. It is then clear that the two motorcycles following the Second Defendant have both responded to this loss of control with Mr. Anderrsen seemingly braking hard and pulling left as he has stopped by the time he reached the point of rest of the two motorcycles, suggesting the likelihood of hard braking on his part. The Plaintiff has seemingly been unable to brake and avoid, either the Second Defendant losing control, or Mr. Anderrsen also braking heavily in front of him or one or more unidentified opposing motorcycles that were either already on the wrong side of the centreline or may have swerved to avoid the Second Defendant.
In all of these circumstances, it would still be my opinion that the primary precipitator of this event was either an unidentified opposing motorcycle crossing the centreline as alleged and/ or, the Second Defendant losing directional control of his motorcycle. There may or may not have been some incidental involvement of Mr. Anderrsen braking or the unidentified motorcycle swerving.
Mr Baram suggests that his loss of directional control was due to one or more unidentified northbound motorcycles crossing into his path. The physical evidence can neither confirm or deny this allegation, but if it was true, in my opinion there would need to be an additional motorcycle or group of motorcycles a short distance ahead of the three motorcycles visible in the dashcam. I do not believe that any of these motorcycles are far enough up the road to have precipitated Mr Baram’s original loss of control. As previously noted, I do not concede that the first of these three motorcycles may or may not have contributed to Mr Eatock’s loss of control, but I do not suggest that it was possible this motorcycle could have contributed to Mr Baram’s loss of control.”
Mr Johnston has not been requested to consider the further statement made by Mr Anderrsen 9 May 2025.
I refer to the report from Nigel MacDonald dated 8 March 2022. On page i , he formed the following conclusions:
“1. There is no physical evidence to confirm or refute the presence and contribution of oncoming motorcycles (S) as claimed by the plaintiff
2. The motorcycles captured in the supplied dashcam footage did not cause the plaintiffs loss of control.
3. The physical evidence does not exclude the presence of a preceding group of motorcycles ahead of those captured in the dashcam footage.
4. Expert evidence cannot resolve whether or not unidentified northbound motorcycles contributed to or caused the subject accident.”
He has listed the documents provided to him by the solicitors for the claimant on page 2 of his report and I note there is no reference to the statement off Mr Anderrsen provided to the Police dated 6 January 2019 and furthermore, he has not subsequently been briefed with a report of Grant Johnson dated 23 April 2024 and the subsequent statement of Mr Anderrsen dated 29 July 2023. His conclusions on page 22, where he comments on the report of Mr Christopher Hall dated 30 March 2021 are as follow:
“6.11 I agree with Mr Hall that it is not possible using the physical evidence available to determine why the plaintiff lost control and fell.
6.12 I agree that Mr Eatock’s fall may have been as a response to the plaintiff’s fall and subsequent events as a result of that fall.
6.13 I agree with Mr Hall that an event to destabilise the plaintiff’s motorcycle within the curve such as a road undulation or an evasive action by the plaintiff could have been the cause of the incident, I found no evidence of road undulations at the site and there is no evidence of undulations in the material supplied
6.14 I agree that the plaintiff’s loss of control is not caused by the riders captured in the dashcam footage. That does not exclude the plaintiff’s loss of control being caused by a preceding motorcycle or group of motorcycles.”
The solicitors for the claimant provide a detailed submissions dated, initially 4 May 2021, and submissions dated 20 July 2025. It is submitted by counsel the insurer bears the onus of proof both evidentiary and legal, to establish the claimant was wholly or mostly at fault for causing the motor vehicle accident. I note the following submissions made by counsel:
“1. It is not apparent that the motorcyclists, who are depicted in the dashcam footage before the Member were the relevant unidentified motorcyclists,
2.. There is no cogent lay evidence that contradicts Mr Baram's version of events. Rather Mr. Baram’s evidence is consistent with such cogent evidence.
3.. Mr Jim Anderrsen's evidence ought not to be accepted. This is because, inter alia
i. His evidence contains recent invention that is not consistent with what he originally and contemporaneously reported.
ii A number of years have passed from the date of the accident and the version of events which the insurer relies upon was only provided years following the accident.
iii It is not accurate.”
It is further submitted the statement provided by Mr. Anderrsen to the Police at the scene of the accident, is markedly different to his subsequent statements, which it is submitted, demonstrates his more recent evidence ought not be accepted. Counsel further submits the version of events provided Mr Eatock are consistent with the claimant's statement to Police and his statement dated 16 July 2019.
I reject this submission, as when Mr Eatock was asked who it is at fault, he responded it was the three vehicles in his lane were at fault, which forced him to take evasive action and steer his motorcycle off the road. He was not referring to these three motorcyclists as being the cause of the claimant’s accident, but rather his own accident.

Insurer’s submissions

The insurer submits the accident was wholly or mostly the fault of the claimant. The solicitor for the insurer served three reports from Chris Hall, traffic accident investigator dated
30 March 2021, 8 November 2022 and 21 June 2024.
In the first report dated 30 March 2021 on page 3 of this report he concludes, inter alia, as follows:
“1.6 There is no available physical data upon which an estimate of the actual approach speeds of Mr Eatock and Mr Baram into the incident bend can be based.
1.12 The physical evidence is inconsistent with the claim that Mr Baram and then Mt Eatock had to take evasive action, because northbound riders were approaching the bend on the incorrect side of the roadway “
I note he was not provided with a copy the statement of Mr Anderrsen which was provided to the Police at the scene of the accident.
In the second report dated 8 November 2022, he has reviewed further documents which have been forwarded to him by his instructing solicitors, which are the NSW Ambulance records dated 28 October 2021, and the report of Nigel MacDonald dated 8 March 2022. The statement by Mr. Anderrsen to the Police, again, was not provided to him. On page 14 of his report, he concludes the following:
“7.2 The available evidence strongly supports a conclusion that an unidentified riding group which could have been responsible for the falls of both Mr Baram and Mr Eatock was not at the bend at the relevant time.”
In his third report dated 21 June 2024, he is provided further documentation by his instructing solicitors which is the report of Grant Johnston dated 23 April 2024, and the report of Tia Gaffney dated 28 August 2023 and further documentation regarding previous statements of the claimant and George Eatock. Once again, he was not provided with a copy of the statement of Mr. Anderrsen to Police nor was he provided with a copy of the statement of Mr Anderrsen dated 29 July 2023. On page 16 of his report, I note his conclusion:
“From my examination of the recent documents, I have concluded that there is nothing within those documents which would lead me to alter the opinions and conclusions set out in my previous reports dated 30 March 2021 and 8 November 2022.”
The solicitor for the insurer also served reports from Tia Gaffney, traffic engineer, dated 28 August 2023 and 25 September 2024. She was asked to provide an opinion on several matters including the speed of the motorbike on which the claimant was travelling and the insured motorbike prior to and at the time of the claimant swerving to avoid a collision and associated stopping distances times. In her report, she refers to the claimant as being George Eatock and the claimant in this matter to be the insured. On page 18 of her report, she considers the statement of Mr Anderrsen dated 29 July 2023 I note the following paragraphs:
“With respect to the contribution of the oncoming motorcycles to the incident occurrence, Mr. Anderrsen describes the following “ There were three motorcycles coming the other way ,Kim veered off to the side of the road in front of them and into the spoon drain , When Kim crossed onto the incorrect side of the road, it looked like as soon as he spotted the motorcycles coming the other way, he tried to avoid them. It is not a very wide road. “
I consider the statement of Mr. Anderrsen dated 29 July 2023 to be clear and unambiguous in his description of the accident. When he refers to the three motorcycles coming the other way, he clearly means they were on their correct side of the roadway. It is sufficient to say the attendance of Mr Anderrsen at the assessment conference was of assistance to me in determining this matter, which I will discuss in more detail in my Reasons.
The solicitor for the insurer also served a report from Dr Alex Falcon Senior Clinical Neuropsychologist dated 18 July 2023. I note he opines the following on page 3 of his report:
“Based on the reviewed medical records as detailed above, it is my opinion that Mr Baram does not possess the capacity to accurately recall the circumstance of the subject accident. As summarised above, all post injury records note that Mr Baram reported that he had no recollection of events leading up and following the accident. It is noted that he even reported no recall for the entire day. This is level of retrograde memory. also noting his loss of consciousness. GCS of 14 and also subsequent brief period of post traumatic amnesia consistent with his mild traumatic head injury. It is my clinical experience that retrograde amnesia post head injury does not recover in mild- moderate -severe traumatic brain injury populations.”
Given this, it is not reasonable to expect that Mr Baram’s previous consistently reported retrograde amnesia for events of the day and also leading up to the accident would return or recover. As such, it is my opinion that Mr Baram later reports of his recall for events surrounding the circumstances leading up to the accident, specifically that of seeing other motorcycles on his side of the road which would then cause him to crash, do not represent a reliable memory of the events surrounding the accident. Lastly, I note later reports where it is again confirmed that he had no recall of the circumstances leading up to the accident (again presenting variability and inconsistency in his reports).
The insurer submits the claimant lost control of his motorcycle, rode onto the incorrect side of the roadway, was thrown from his motorcycle and sustained injuries. As he crossed over onto the incorrect side of the roadway, the three motorcyclists coming from the opposite direction, were on the correct side of the roadway and no time, prior to the claimant losing control of his motorcycle were they on his side of the roadway. After the claimant began to lose control of his motorcycle, I determine the three motorcyclists may have attempted to avoid colliding with the claimant, by slowing down and moving on to the incorrect side of the roadway, but this manoeuvre took place after the claimant had lost control of his motorcycle, crossed over onto the incorrect side of the roadway, and was heading towards the spoon drain on the opposite side of the road.

REASONS

Was the claimant wholly at fault in causing the accident?

I refer to the decision of Member Cassidy in the matter of Ibrahim Custovic v Allianz Australia Insurance Limited. Member Cassidy discussed the approach to a dispute about fault in a statutory benefits claim and referred to ss 3.11 and 3.28 of the MAI Act and the case of AAI Limited t/as GIO v Evic [2024] NSWSC 1272. I note the following, commencing at paragraph 116:
“116. Justice Michelmore in Evic undertook the exercise in interpreting these sections and how they are to apply in a single motor vehicle accident. Mr Evic had mounted his motorcycle, and the foot peg got caught up between his boot and his riding pants as a result of which his motorbike fell to the left side, causing injuries to the claimant’s left lower leg. A Member of the Commission had determined that Mr Evic was not wholly or mostly at fault.”
In the course of her reasons, Justice Mitchelmore said the following:
“(a) an injured person's entitlement to benefits “does not depend on establishing the fault of a person. The injured person does not need to prove anyone was at fault for the motor accident, in order to obtain benefits under Part 3.”
(b), leaving aside any issue of threshold injury, statutory benefits continue or cease pursuant to ss. 3.11 and 3.28 if the injured person is wholly or mostly at fault.” The qualifiers wholly or mostly inform each other and are intended to address the same mischief, namely, contributory negligence.”
(c) ss 3.11 and 3.28 “are directed at the extent to which the injured person's failure to take reasonable care contributed to the motor accident”. That is the contributory negligence relevant to the accident (not the injury) and accommodates” all types of motor accidents including single vehicle accidents where the injured person is the owner driver.”
(d) s. 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of Division 8 of part 1A of the CL. Act. The test for negligence and contributory negligence is provided in s.5R (2) (a) of the CL Act. As” the standard of care required the person who suffered harm is that of a reasonable person in the position of that person.”
(e) where there is more than one motor vehicle involved, or the claimant is a pedestrian (and presumably a cyclist or other road user) s. 3.11 and. 3.28 accommodates an assessment of the claimant’s contributory negligence by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788.
(f) in a single vehicle motor accident in which the climate is the owner and driver, contributory negligence for the motor vehicle can still apply. Acknowledging the difficulty in assessing contributory negligence in a single accident case where there is no one to measure the claimant’s conduct against Justice Mitchelmore cites Axiak v Ingram [2012] NSWCA 311 and Davis v Swift [ 2014] NSWCA 458 and says, “the inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence.”
(g) the composite phrase in the legislation “caused wholly or mostly by the fault of the person” is “directed at an inquiry as to the injured person’s contributory negligence for the motor accident irrespective of the number of motor vehicles involved and how the claimant came to be injured” and
(h) if there is some contributory negligence found on the part of the claimant, then s.3.38(3)(c) directs the next step is to assess the degree of contributory negligence that is just and equitable in the circumstances of the case”.”
The claimant was questioned at the assessment conference and attended by AVL. Counsel for the insurer, on page 10 of the transcript asked the claimant the following question:
“Question “Well I am trying to ascertain what your memory is of the day of the accident? Not much?
Answer “. I’ve said that. I've said that like 3 times now.
On page 13 of the transcript, I note the following
Question “What was your last memory of the day of the accident?
Answer 4 riders in front of me that's it.”
The claimant was questioned as to whether, as at the date of the completion of the application for personal injury benefits, he had no memory of the accident or even the day of the accident. The claimant agreed this was the case. I note the following on page 26 of the transcript:
“Question And when did you and so you had no memory of the other motorcyclists who had been travelling in the opposite direction when you completed this claim form correct?
Answer I don't know. I was on bad drugs. I do not know.
On page 27 of the transcript, I note the following
Question So the first time you remembered that there were vehicles travelling on the opposite side in the opposite direction on the wrong side of the road, was around six to seven to eight weeks after the accident?
Answer Yeah as the memory of what occurred happened. I was in shock for probably 3 weeks when I didn't realise just how horrible it was.”
On page 31 of the transcript, I note the following:
“Question But you understood that by signing the claim form and lodging it with the insurance company, you were declaring that all of the information in the document was true and correct, you understood, that didn't you?”.
Answer Not really. I was off my head I keep telling you. You're just not listening; you just keep asking me the same question again and again and it's the same answer. I was off my head I was on drugs.”
Mr Anderrsen attended the Assessment Conference in person and was questioned by both counsels.
On page 46 of the transcript, he was questioned by Counsel for the insurer and, I note the following:
“Question Where was there any other group of motorcycles ahead of those motorcycle motorcycles coming the other way?
Answer Not, not that I saw at all.”
Mr Anderrsen was questioned at length by counsel for the claimant regarding the three statements provided by him and he was unshaken in his response that the information provided by him in those statements was true and correct. On page 68 of the transcript, I note the following:
“Question I put it to you that what you have recorded at paragraph 7 to 14 of your statement 2023 is inaccurate. What do you say to that?
Answer You can say what you want, that's what I wrote.
On page 69 of the transcript, I note the following
Question. Yes, now at paragraph 10 you said there were 3 motorcycles coming the other way travelling on the opposite side of the roadway wholly within their lane.
Answer Yes.”

I am not required to make a finding of fault, responsibility or culpability on the part of any other person. The claimant does not have to prove fault on the part of anyone to obtain statutory benefits. His benefits will cease if he was wholly or mostly at fault and as Justice Mitchelmore found this only requires a consideration of whether there is contributory negligence, and if so, the degree of it. As Member Cassidy stated in her reasons in the matter of Custovic, if the claimant’s contributory negligence is assessed at 100%, then the claimant is wholly at fault. If his contributory negligence is assessed at between 99% and 62%, he is mostly at fault. If the degree of his contributory negligence is less than 61%, then his weekly benefits are reduced accordingly.
I determine the claimant lost control his motorcycle as he entered the bend in Limpinwood Road, veered onto the incorrect of the road, was thrown from his motorcycle and sustained injuries. Prior to crossing over onto the incorrect side of the road, I determine there were three motorcyclists riding on their correct side of the roadway in a northerly direction, wholly within their lane. Their presence was not the cause of the claimant crossing over onto the incorrect side of the roadway.
I determine the information provided by Mr. Anderrsen in his three statements is correct and he was unshaken when questioned by Counsel for the insurer. I found him to be both candid and truthful when answering questions put to him by both counsels. He was riding his motorcycle directly behind the claimant. He always had an obstructed view of the claimant.
I further accept the claimant had no issue with the suspension of his motorcycle nor did the mogul or a bump on the road caused him to lose control of his motorcycle. I also note in the report of Nigel MacDonald dated 6 March 2022 where he states, “I found no evidence of road undulations at the site and there was no evidence of undulations in the material supplied.”
The claimant does have difficulties in recalling the circumstances leading up to his accident and I was assisted by the opinion of Dr Alex Falcon in his report dated 18 July 2023. However, I find the three statements of Mr. Anderson clear and unambiguous.
I therefore find the accident was caused wholly by the fault of the claimant.

Was the accident caused mostly by the fault of the claimant?

I have determined the accident was caused wholly by the fault of the claimant and accordingly, I determine the accident was caused mostly by the fault of the claimant.

Findings

I find the accident of 6 January 2019 was caused wholly by the fault of the claimant.
I find the accident of 6 January 2019 was caused mostly by the fault of the claimant.

COSTS AND DISBURSEMENTS

At the conclusion off the assessment conference, both parties
made an application for the recovery of their legal costs beyond the maximum amount allowed by the Motor Accident Injuries Regulation 2017. Part 8 of the MAI Act governs the award of legal costs in motor accident matters. The parties referred me to the Reasons of Member Castagnet in the matter of Chowdhury v AAI Limited t/as GIO [2025] NSWPIC 135. Counsel for the insurer also served submissions in support of this application for exceptional costs dated
20 July 2025.
The determination of the claimant’s application is governed by the provisions of s 8.10 of the MAI Act, which deals specifically with the recovery of costs incurred by a claimant in a claim for statutory benefits. The relevant provisions of s 8.10 are:
“(1.) A claimant for statutory benefits is ( subject to this section) entitled to recover from the insurer against whom the claim is made the reasonable and necessary legal costs, and other costs and expenses, incurred by the claimant in connection with the claim. Other costs and expenses include the cost of medical and other tests and reports.
(3). A claimant for statutory benefits is only entitled to recover from the insurer against whom the claim is made reasonable and necessary legal costs incurred by the claimant if payment of those costs is permitted by the regulations or the Commission.
(4). The Commission can permit payment of legal costs incurred by a claimant but only if satisfied that -
(a) the claimant is a person under legal incapacity or
(b) exceptional circumstances exist that justify payment legal costs incurred by the claimant.”
Counsel for the insurer submitted to be exceptional circumstances, the circumstances must be unusual or out of the ordinary, whether as result of qualitative or quantitative factors. The case need not be one that is unique, unprecedented, or very rare. The question is determined on the basis of the facts of the individual case: see San v Rumble (No 2) [2007 ]NSWCA 259 at [67]. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: see Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].
It is further submitted in this matter I should consider the nature of the factual circumstances in dispute, the requirement to issue Directions for Production to NSW Police, consideration of dash cam footage, the requirement for the claimant and lay witness to attend the assessment conference for questioning. The requirement for an in person hearing. Furthermore, it was reasonable for both parties to brief junior counsel.
I accept the submission exceptional circumstances exist for the Personal Injury Commission (the Commission) to permit payment of the claimant’s reasonable and necessary legal costs beyond the regulated amount. Pursuant to s 8.10 (4)(b) of the MAI Act, I permit the payment of the claimant’s reasonable and necessary legal costs incurred by the claimant in connection with the claim.
I further note the amount of legal costs to be paid to the claimant is determined by agreement with the insurer, failing such agreement ,the amount recoverable by the claimant is determined by an assessment by the Commission .This may be done by the claimant by filing an application for assessment under Schedule 2, cl (1)(aa) of the MAI Act.
The insurer sumits that its applications for legal costs is beyond the regulated amount and relies upon the provisions of s 8.3 (4) of the MAI Act.
Pursuant to s 8.3 (4) I permit the payment of the insurer’s solicitors and client legal costs reasonably incurred in relation to the claim, noting the insurer’s solicitors are not entitled to recover costs for legal service or matter that a court or cost assessor determines were unreasonably incurred.

CONCLUSION

My determination of the Miscellaneous Claim is as follows:
(a) for the purposes of s 3.11 of the Act, the motor accident was caused wholly by the fault of the claimant;
(b) for the purposes of s 3.28 of the Act, the motor accident was caused mostly by the fault of the claimant;
(c) Effective date: this determination takes effect on 10 October 2025, and
(d) Legal costs: Both the claimant and the insurer are entitled to payment of reasonable and necessary legal costs beyond the regulated amount of legal costs .

LEGISLATION

In making my decision I have considered the following legislation and guidelines:
(a) the MAI Act.
(b) Motor Accident Injuries Act Regulation 2017.
(c) Motor Accident Guidelines 2020, and
(d) Civil Liability Act 2002.

[2025] NSWPIC 431

25 August 2025