Cheng v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Cheng v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 566
CLAIMANT:	Andy Chiu Hung Cheng
INSURER:	Insurance Australia Limited t/as NRMA Insurance
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	21 October 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether accident caused wholly or mostly by the fault of the claimant for the purposes of sections 3.11 and 3.28; claimant collided with rear of stationary vehicle on motorway; speed limit 110km/h; hazard lights on stationary vehicle not activated; Podrebersek v Australian Iron & Steel Pty Ltd (Podrebersek), Axiak v Ingram, Allianz Australia Insurance Limited v Shuk, and AAI Limited t/as GIO v Evic discussed; Held – the claimant’s ability to perceive stationary vehicle obscured by vehicle in front; vehicle in front changed lanes suddenly; claimant applied brakes; claimant did not fail to exercise reasonable care in the circumstances; accident not caused wholly or mostly by the fault of the claimant; relative culpability cannot be assessed in accordance with Podrebersek unless there are at least two culpable parties.
DETERMINATIONS MADE:	CERTIFICATE 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident on 1 October 2023 was not caused wholly or mostly by the fault of Mr Cheng. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on 1 October 2023 was not caused wholly or mostly by the fault of Mr Cheng. 3. The insurer is to pay the claimant’s costs in the sum of $4,062.40 plus GST. 4. A statement of my reasons for this determination are attached to this certificate.

STATEMENT OF REASONS

BACKGROUND

Andy Chiu Hung Cheng (claimant) was injured in a motor vehicle accident on the Hume Motorway at Wilton on 1 October 2023 (accident). He subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer).
The insurer admitted liability for the first 52 weeks after the accident but denied liability thereafter on the basis that the accident was caused wholly by the claimant’s fault: ss 3.11 and 3.28 MAI Act.
The claimant disputes the accident was caused wholly or mostly by his fault and has referred the disputes under ss 3.11 and 3.28 to the Personal Injury Commission (Commission) for assessment. The disputes are miscellaneous claims assessment matters: Sch 2 cl 3(d) and (e) MAI Act.

CASE MANAGEMENT

Preliminary conferences were held on 7 July 2025, 22 August 2025 and 15 September 2025. The claimant was given leave to issue a direction for production on NSW Police and case management directions were made.
The proceedings were initially set down for hearing on 28 August 2025. The hearing was vacated because NSW Police had not produced documents in response to the direction for production served by the claimant. The hearing was set down for 17 October 2025 and proceeded at that time.

HEARING

The matter proceeded to hearing on 17 October 2025. No oral evidence was called. Some facts were agreed by the parties and are referred to later in these reasons. Oral submissions were made by each party.
There were a number of facts in dispute, including the following:
(a)    whether there was one or two vehicles in front of the claimant immediately before the accident;
(b)    the speed of the claimant’s vehicle at the time of the collision, and
(c)    when the claimant first became aware of the presence of a stationary vehicle in his lane and the distance between the claimant’s vehicle and the stationary vehicle at that time.
The insurer maintained that the accident was caused wholly by the claimant’s fault. The claimant’s case was that there was no fault on his part.

STATUTORY FRAMEWORK

An injured person is not entitled to statutory benefits under Part 3 of the MAI Act more than 52 weeks after the motor accident concerned if the accident was caused wholly or mostly by the fault of the person: ss 3.11(1)(a) and 3.28(1)(a).
A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident, as referred to in s 3.38, was greater than 61%: ss 3.11(2) and 3.28(2) of the MAI Act.
Sections 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 and are concerned with contributory negligence not for the injury, but for the motor accident, in a manner that accommodates all types of motor accidents: AAI Limited t/as GIO v Evic [2024] NSWSC 1272 (Evic) at [57] .
The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies: s 3.38(1).
If a finding of contributory negligence made in these proceedings, is to be assessed as a percentage that reflects what the Commission determines is just and equitable in the circumstances of the case, none of the circumstances referred to in s 3.38(2) being relevant, and there being no percentage fixed by the regulations: s 3.38(3)(c).
The enacted law includes Div 8 of Pt 1A of the Civil Liability Act 2002 (CL Act). Section 5R(1) of the CL Act provides that the principles that apply in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. Section 5R(2)(a) provides that, for that purpose, the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person.
The burden of proving the accident was caused wholly or mostly by the fault of the claimant lies with the insurer. It is for the insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that on all of the evidence, it can be concluded the accident was caused wholly or mostly by the fault of the claimant: Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 (Richards) at [45], [55] and [67].

REVIEW OF THE EVIDENCE

The evidence relied on by the parties is contained in a joint bundle filed on

9 October 2025. The evidence referred to by the parties in their written and oral submissions has been considered: rule 67D(2) Personal Injury Commission Rules.
Other than the claimant’s evidence, there is no evidence from any other witness to the relevant events.
The Emergency Department records include, relevantly, the following commentary in the admission summary:
“…[the claimant] presented on 01/10/23 to the Campbelltown Hospital ED following a MVA. He was said to have rear-ended a truck while moving at a speed of about 110km/hr. He was wearing a seat belt and the airbags deployed during the collision…”
The claimant gave a statement to police on 14 October 2023. The statement is recorded in the notebook of Probationary Constable Gilbody. Relevantly, the claimant stated:
“…About 3:30pm I left from Canberra to drive home. At 5:40pm I was driving on the [H]ume motorway doing 110. I was driving in the left lane. The car in front of me moved to the right. As soon as he moved I saw the silver [T]oyota [C]orolla in front of me …
I tried to brake but I couldn’t stop in time. I collided with the back left passenger side of the vehicle and their car spun around into the emergency lane. My car continued about 100m before stopped in the left lane.
I did not notice any hazard lights on the vehicle I hit…”
The claimant’s application for personal injury benefits dated 27 October 2023 contains the following version of the accident:
“There was another accident happened before my accident. Rego No. UUU66M & Rego No. EBC66B collided slightly. UUU66M was already parked in the emergency lane, but EBC66B was parked in the normal traffic lane at a 45-degree angle and did not have any emergency indicators on and put any hazard signs. I was driving in the normal traffic lane at 110km/h. When I saw the EBC66B, [I] have no time to braked [sic] and crashed into the rear left part of EBC66B at 110km/h. My car…went about 100 meters ahead before stopping.”
The claimant gave a statement to an investigator instructed by the insurer on 5 December 2023. Relevantly, he stated:
“[12]The accident scene was the Hume Highway at Wilton, and it is a major arterial roadway. The accident occurred about 2 kilometres north from the intersection of Picton Road. At the time of the accident the traffic flow was medium. The roadway is constructed of sealed bitumen and is in a good condition. There are two lanes, and the line markings are broken. The roadway runs in a general east to west direction, and it is level. The speed limit is 110 kilometres. At the scene of the accident there are no warning signs.
…
[16]About 5.40pm, I was travelling in an easterly direction on the Hume Highway at Wilton in the number one lane at a speed of 110 kilometres per hour. At the time the traffic flow was medium in the same direction. At the time it was day, and the weather conditions were fine, and the roadway was dry. I was wearing a seat belt. I was not using a mobile telephone. I did have the car radio on, and I was not distracted by anything.
[17]I was travelling along the roadway, and I was looking directly ahead. There was a vehicle travelling in front of my vehicle in the same lane about 150 metres ahead of me. I am not aware if there were vehicles travelling behind me. The vehicle in front of me suddenly changed into the number two lane. I continued to travel in the number one lane. I then saw a silver [Toyota] sedan…stationary and the rear of the vehicle was in the number one eastbound lane and the front of the vehicle was over the side of the roadway. This vehicle was a forty-five-degree angle to the roadway.
[18]When I saw this vehicle, my vehicle was about 40 metres away from it. I harshly braked and could not stop in time and the front of my vehicle then collided with the rear of the Toyota. After the impact my vehicle continued along the roadway for about 60 metres, and I stopped in the number one lane. I stayed seated in my vehicle..
…
[21]My vehicle sustained damage to the front, and it was towed from the scene. The other vehicles sustained damage..”
At [22] the claimant stated police had not taken any action against him. The records produced by police suggest that “action” was subsequently taken. At [23] the claimant stated that the cause of the accident was the “Toyota blocking [his] lane.”
A Police report dated 21 November 2023 records that the “incident’ was reported on

14 October 2023. The report records the time, date and incident location, together with the following “Crash Summary Details”:
“At 5:30pm vehicle 3 [a Toyota Corolla] stopped on the Hume Highway in the far left lane for an unknown reason. [V]ehicle 2 [a Renault Clio] that was behind them could not stop in time and collided with the rear of vehicle 3.
After colliding with vehicle 3, vehicle 2 moved off the road and onto the side of the road. Due to the crash two vehicles following swerved around them and out of the far left lane. Vehicle 1[the claimant’s vehicle, a Citroen Picasso] however did not see the crash and once the two vehicles moved out of the way vehicle 1 collided with the rear passengers side of vehicle 3 spinning it off the road making a seconds [sic] collision for this particular vehicle.”
The report records that unit 1, the claimant’s vehicle, was (in the opinion of police) responsible for the accident. The reasons for investigating police recording this finding are not disclosed in the report.
Documents were produced by NSW Police in response to a direction for production. In addition to the claimant’s statement recorded earlier, the documents produced include a COPS report in which the following extended narrative is provided:
“At 5:30pm driver 3 was driving northbound on the Hume [H]ighway just passed [sic] Picton [R]oad. The driver has stopped his vehicle on the far left lane on [sic] for an unknown reason. Due to this Vehicle 2 has failed to stop in time and collided with the rear of vehicle 3 spinning it slightly. Vehicle 2 then drove off to the side of the road to get out of the way from oncoming vehicles.
Driver 1 was further two cars behind when this happened. The two vehicles in front of driver 1 swerved out of the far left lane and then driver 1 saw vehicle 3 sitting in the lane he was driving in. Driver 1 tried to stop his vehicle but could not stop in time and collided with the rear passenger side of vehicle 3 forcing it to spin off the road.
Driver 1 pulled his vehicle over to the side of the road however was too injured to get out from the vehicle himself and waited for an ambulance before being moved.
Police and an ambulance attended the scene and helped the drivers exchange details however a report was not taken at the time due to belief it was not required at the time.
At 7:00pm on Saturday 14th of October 2023, driver 1 attended Narellan Police station to report the crash to get an event number for insurance under the belief he is not at any fault.
A report has been made on the 23/10/2023 after speaking with supervisors to gain advice on how to conduct the investigation.
Driver 1 has been notified that he will most likely be the driver at fault however at this stage Police must get driver versions from the remaining drivers before anything can be done as police are still unsure as to who is at fault.
This incident consists of two separate crashes and narratives will be adjusted once drivers have been spoken to…”
The report records that the claimant was issued with an infringement notice for the offence “[d]rive behind other vehicle too closely to stop safely”.

SUBMISSIONS

Claimant’s submissions

The claimant relies on written submissions dated 5 June 2025. At [4] – [6] the claimant addresses the facts he argues should be found. Among other matters, he submits that:
(a)    while driving on the M31 Hume Motorway he encountered the scene of an earlier collision between two other vehicles, one of which was stopped in the designated emergency lane and the other stationary in the same lane in which he was travelling;
(b)    the vehicle stationary in his lane had not engaged any indicator or hazard warning lights, nor were there any other warning signals or flares to alert approaching traffic;
(c)    he was driving at approximately the posted speed limit;
(d)    weather conditions were poor, with significant fog causing low visibility in the area;
(e)    as a result of the foggy conditions and the absence of any warning lights or indicators on the stationary vehicle, he was unable to perceive the stationary vehicle “in time”;
(f)    he braked and attempted to take evasive action when he saw the stationary vehicle, and
(g)    the front side of his vehicle collided with the side of the stationary vehicle.
The claimant submits he acted as a “reasonable driver under the circumstances”, that the primary cause of the collision was the unexpected presence of the vehicle stopped in the lane in which he was travelling, and that there was no “negligence” on his part. In the claimant’s submission, the accident was caused by the fault of the “other driver” and not “mostly by his fault”.
The claimant submits that there is no evidence he was inattentive or not watching the road and that he was “keeping a proper lookout”. He argues that he immediately reacted as soon as the other vehicle became visible. In his submission, the very fact he attempted braking and swerving upon noticing the stopped car demonstrates he was “keeping lookout”. The claimant argues that the hazard presented by the other driver was so sudden and unusual that even a diligent lookout afforded only “split seconds of reaction time”.
The claimant argues that a stationary car on a freeway lane is “an anomaly a reasonable driver would not anticipate during normal travel” and that his inability to avoid that hazard should not be equated with a failure to maintain a proper lookout on his part.
The claimant argues it was the other driver’s “dangerous and unlawful stop” that effectively eliminated the margin that any reasonable driver would ordinarily have to avoid an accident. In his submission, the insurer’s emphasis on theoretical stopping distance overlooks the fact that no amount of “prudent” distance would safely allow for a completely stationary obstruction on a freeway in the absence of prior warning.
In the claimant’s submission, his response was that of a reasonable driver under emergency conditions. The sudden presence of the stopped vehicle created an emergency scenario. In the claimant’s submission, he reacted “instantly and appropriately” by braking hard and attempting to avoid a collision. He relies on the “agony of the moment principle”; that a person confronted with a sudden emergency is not held to the same standard of precise judgment as one who has time to deliberate.
The claimant argues he did everything a reasonable driver could do in the moment and that his conduct was not blameworthy or the “predominant cause of the crash”. He submits that he did not breach his duty of care as a driver, that he was keeping a lookout, traveling at a safe speed and distance for the conditions, and reacted as “any cautious driver would have”. In his submission, the mere fact of a rear-end collision “does not automatically prove the following driver’s negligence, especially in these extraordinary circumstances.”
At [23] – [28] the claimant submits the accident was caused by the fault of the driver of the stationary vehicle. He argues that the vehicle was unlawfully stopped in a travel lane on a freeway in breach of road rule 177, that the driver did not activate hazard lights or place any warning devices to alert oncoming traffic, did not pull over to the shoulder or emergency stopping lane, and failed to mitigate the hazard created by the presence of the vehicle on the roadway.
In the claimant’s submission, the other driver’s negligent actions were the primary cause of the accident; but for the vehicle being stopped unlawfully in his path, the collision would not have occurred. In his submission, it was the presence of that stationary vehicle in a high-speed environment “that set the stage for disaster.” The accident was, in his submission, precipitated by the other driver’s “extraordinary and negligent conduct.” The claimant argues that liability for the accident rests “predominantly (if not entirely) with the other driver and that “at the very least, the other driver’s fault far exceeds any minor contributing negligence that could possibly be attributed to [him], meaning [he] cannot be considered ‘mostly at fault’ under the Act.” The claimant argues that his driving was “reasonable” and did not cause the accident.
At [30] – [34] the claimant refers to relevant “authorities” and submits that those cases “establish a clear principle directly applicable to [his] circumstances”; that a claimant who encounters an unforeseen, unilluminated hazard on the road is generally not considered wholly or mostly at fault for the ensuing collision.
In oral submissions, the claimant re-iterated his written submissions. He withdrew his submission that weather conditions were poor, with significant fog causing low visibility. He argued there was one vehicle in front of his, not two, that he did not have time to avoid the accident, and that the accident was not caused by his fault. If a finding to the contrary was made, he submitted the accident was caused by the fault of the driver of the Toyota, and the accident was not caused wholly or mostly by his fault.

Insurer’s submissions

The insurer relies on written submissions dated 26 June 2025, 11 September 2025 and

9 October 2025.

In its 26 June 2025 submissions the insurer refers to relevant evidence and submits the claimant was travelling in the left most lane on the Hume Highway motorway and at the same time, the insured driver was stationary in the same lane, following a crash with another vehicle. Reference is made to Vairy v Wyong Shire Council (2005) 223 CLR 422; [2005] HCA 62, Manley v Alexander (2005) 223 ALR 228; [2005] HCA 79, and Pennington v Norris (1956) 96 CLR 10.

In the insurer’s submission, the claimant failed to keep a proper lookout, failed to maintain a safe distance between his vehicle and the vehicle in front, and should have been put on notice by the vehicle suddenly changing lanes in front that there was a change of circumstances on the roadway.
The insurer submits the claimant continued to drive in the same lane without slowing down from 110km/hr. In the insurer’s submission the evidence indicates the vehicle travelling ahead of the claimant was able to avoid the stationary vehicle on the left lane.
The insurer argues that a reasonable person in the claimant’s circumstances ought to have “known the dangers of failing to exercise reasonable caution” and that “a reasonable person would have taken greater caution for their own safety by keeping a proper lookout for any changes of conditions and possible dangers on the roadway”. In the insurer’s submission, the claimant was wholly at fault for the accident.
In submissions dated 11 September 2025 the insurer restated its submission that the accident was caused wholly by the claimant’s fault. The insurer noted that two vehicles ahead of the claimant swerved around the vehicles involved in the earlier accident and argues the claimant should have been able to do so as well had he been exercising reasonable care.
The insurer argued the insured driver was not at fault for the accident, the claimant was “wholly at fault”, and the claim “should fail”.
The insurer submitted it is “inappropriate to assess this dispute by reference to the decision in Evic because the principle arising from that decision applies only to single vehicle accidents”. In the insurer’s submission, the proceedings involve a claim that the insured was at fault for the accident and in those circumstances, liability must be decided between the insured and the claimant, and apportioned if appropriate, rather than only assessing the extent to which the claimant’s conduct departed from the required standard of care in the manner adopted in Evic.
In further submissions dated 9 October 2025 the insurer again addressed Evic. In the insurer’s submission, paragraphs [61] and [73] in that decision illustrate that, because there were two vehicles involved in the accident, determining whether the accident was caused wholly by the claimant’s fault should not be undertaken by reference to the extent to which the claimant departed from the standard of care required of a reasonable person in his position, but rather by reference to the relative culpability of the drivers involved in the accident. The insurer refers to a number of decisions of the Commission and relies in particular on the approach taken in Eskander v QBE Insurance (Australia) Limited [2025] NSWPIC 211 (Eskander) at [83] – [84].
In the insurer’s submission, the nature of the enquiry will be different in multi-party accidents. The insurer submits, relying on Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788 (Shuk) and Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALR 529; [1985] HCA 34 (Podrebersek), that in a case involving multiple vehicles an apportionment of culpability is required, even if that apportionment is all to one of the parties, whereas in single vehicle motor accidents involving an owner driver “the Evic approach is taken” regarding departure from the required standard of care.
In the insurer’s submission, in circumstances where the claimant was driving at 110km/h with 150 metres of space between him and the vehicle in front, and where that vehicle was able to avoid the hazard on the roadway, he would have had five seconds or more from when that vehicle swerved to avoid the stationary vehicle ahead of him on the roadway in which to identify the hazard and take appropriate evasive action.
The insurer submits the claimant was wholly at fault for not keeping a proper lookout and taking appropriate evasive action, particularly where the history in the discharge referral indicates he was still travelling 110km/h at the time of impact.
There is, the insurer argues, no suggestion there were any bends in the road leading up to the accident which could have otherwise obscured the claimant’s view, or that he suffered from any condition or disability which would render his perception response time “worse than average”.
The insurer’s case is that the insured vehicle was situated stationary on the roadway because it had been impacted by another vehicle “well before” the claimant’s vehicle approached it.
The insurer submits that, in relation to the impact of the claimant’s vehicle with the insured vehicle, the claimant is wholly at fault.
The insurer argues that because the claim involves an allegation that the insured driver was at fault for the accident, liability must be decided between the insured driver and the claimant, and apportioned. In the insurer’s submission, the appropriate apportionment is 100% to the claimant and 0% to the insured driver.
In oral submissions the insurer argued there were two vehicles in front of the claimant’s vehicle, that he did not brake and was travelling at 110km/h when the collision occurred, that he failed to maintain a proper lookout and failed to keep a safe distance between his vehicle and the vehicle in front. The insurer submitted that the accident involving the Toyota and the Renault occurred an “appreciable period” before the subject accident.
The insurer also drew attention to what in its submission is a disparity in the claimant’s two statements with respect to when he first saw the Toyota. In this regard, reference was made to the claimant’s statement to police at [4] and his statement dated 5 December 2023 at [17].
The insurer argued that a finding should be made that the claimant saw, or should have seen, the Toyota when it was 150 metres in front of him and that he had ample opportunity to avoid the risk posed by the presence of the Toyota on the roadway in front of him.
The insurer maintained its submission that if it is found the accident was caused by the fault of the claimant and that no other driver was at fault, the accident was caused wholly by the claimant’s fault. In this regard, the insurer again argued the approach taken in Eskander at [83] – [84] is correct and should be adopted.

FINDINGS

It is convenient to refer to the vehicles involved in the two accidents as follows:
(a)    “the Citroen” – the claimant’s vehicle. Referred to as unit 1 in the police reports;
(b)    “the Renault” – the first vehicle that collided with the Toyota, referred to as unit 2 in the police reports, and
(c)    “the Toyota” – the vehicle stationary in the claimant’s lane of travel with which both the Renault and the claimant’s vehicle collided, referred to as unit 3 in the police reports.
The following facts were agreed by the parties at the hearing:
(a)    the accident occurred at approximately 5.40pm on 1 October 2023 on the Hume Motorway near Wilton;
(b)    the weather was fine and visibility was good;
(c)    the road was dry;
(d)    the speed limit was 110km/h;
(e)    the claimant was not driving above the speed limit;
(f)    the claimant was travelling in an easterly direction;
(g)    there were two traffic lanes for vehicles travelling in an easterly direction;
(h)    the Toyota was stationary in the same lane in which the claimant was travelling;
(i)    the Renault had earlier collided with the Toyota;
(j)    following that collision and before the subject accident the Renault had moved wholly off the roadway, and
(k)    the driver of the Toyota did not activate the hazard lights on his vehicle after the collision involving the Renault.
The agreed facts are consistent with and supported by the evidence before the Commission. I make findings in accordance with the agreed facts.
I find that when the collision involving the claimant’s vehicle occurred the Toyota was stationary partly on the roadway, the front of the vehicle being “over the side of the roadway”, with the rear of the vehicle being in the roadway at a 45-degree angle. In this regard I accept the evidence given by the claimant at [17] of his 5 December 2023 statement.
I find that the front of the claimant’s vehicle collided with the rear of the Toyota.
There is a dispute between the parties about whether there were one or two vehicles travelling ahead of the claimant in his lane of travel before the accident. The insurer submits there were two vehicles based on the narrative in the police report dated 21 November 2023, that refers to two vehicles swerving around the Toyota and the Renault, and the narrative in the COPS report produced under direction by NSW police that records:
“… Driver 1 was further two cars behind when this happened. The two vehicles in front of driver 1 swerved out of the far left lane…”
The insurer argues these narratives must have been based on what the claimant told police. I do not accept this submission. In his statement to police made on 14 October 2023 the claimant only referred to one vehicle in front of him, stating: “[t]he car in front of me moved to the right. As soon as he moved I saw the [Toyota]…”.
In the statement he gave the investigator on 5 December 2023, the claimant stated:
“There was a vehicle travelling in front of my vehicle in the same lane about 150 metres ahead of me. I am not aware if there were vehicles travelling behind me. The vehicle in front of me suddenly changed into the number two lane.”
On the two occasions he has given a statement the claimant referred to only one vehicle in front of him. I accept that evidence and find that there was one vehicle travelling ahead of the claimant in his lane of travel before the accident.
The evidence before the Commission does not allow a finding the be made with any specificity as to how long before the accident the collision between the Renault and the Toyota occurred. That having been said, I am satisfied the collision between the Renault and the Toyota did not occur immediately before the subject accident; the driver of the Renault had time to move their vehicle off the roadway after the collision with the Toyota.
On the evidence it is not possible to make a finding about whether the driver of the vehicle in front of the claimant saw that collision occur.
The evidence does not allow a finding to be made on the probabilities about whether the Toyota was stationary on the road before the Renault collided with it and, if so, why. Nor does the evidence allow findings to be made about how that collision occurred. It is not apparent from whom the description of that accident recorded in the COPS report was obtained.
I accept the claimant’s evidence that the vehicle in front of him “suddenly” changed lanes.
The insurer submits there is a conflict in the claimant’s evidence about precisely when he first saw the Toyota in the lane ahead of him. In his statement to police the claimant said:
“The car in front of me moved to the right. As soon as he moved I saw the silver [Toyota] in front of me…”
In his statement to the investigator the claimant stated:
“…[t]he vehicle in front of me suddenly changed into the number two lane. I continued to travel in the number one lane. I then saw a silver [Toyota] sedan…stationary…”
I am satisfied the distances referred to by the claimant in his statement to the investigator at [17] and [18] are estimates. That is clear from the claimant’s use of the word “about” in each paragraph with respect to the distances he refers to.
I am not satisfied that before the vehicle in front of the claimant changed lanes, the stationary Toyota was visible to the claimant. Further, I am not satisfied that a reasonable person in the claimant’s position would or should have been aware of the presence of the Toyota on the roadway, let alone that it was stationary, prior to the vehicle in front changing lanes. It is probable the claimant’s vision of the road ahead of him was obscured by the presence of the vehicle in front of him.
There is no evidence as to whether the vehicle in front of the claimant sped up or slowed down when it changed lanes. The claimant’s vehicle may have closed on that vehicle, reducing the distance between the two vehicles and between the claimant’s vehicle and the Toyota. There is no evidence as to how close that vehicle was to the Toyota when it changed lanes.
There is no expert evidence before the Commission about perception-reaction times. The time between when the vehicle in front of the claimant suddenly changed lanes and the collision between the claimant’s vehicle and the Toyota was, on the probabilities, a few seconds. The claimant was required to perceive and respond to the sudden change of lanes by the vehicle in front, the presence of the Toyota ahead of him and that the Toyota was stationary.
I accept the claimant’s evidence that he attempted to apply the brakes of his vehicle when he saw the Toyota. Although a finding about his speed at the time of the collision cannot be made with precision, having found the claimant’s vehicle was travelling at or about, but not in excessive of, 110km/h, and given my finding he applied the brakes, I am satisfied the claimant’s vehicle was traveling at a speed of less than 110km/h when it collided with the Toyota.

DETERMINATION

The dispute to be determined in these proceedings is whether for the purposes of ss 3.11 and 3.28 of the MAI Act the accident was caused wholly or mostly by the fault of the claimant. The claimant does not have to prove the accident was caused by the insured driver, although he may seek to do so in order to argue that, for example, in the event it is found the accident was caused by his fault, it was not caused wholly (or mostly) by his fault.
It is the insurer who has denied liability for the claim on the basis that the accident was caused wholly by the claimant’s fault. As recorded earlier, the onus rests with the insurer to lead evidence which not only establishes the basis of its decision but also persuades the Commission that on all of the evidence, it can be concluded the accident was caused wholly or mostly by the fault of the claimant: Richards.

Was the accident caused by the claimant’s fault?

There is no question that, as the driver of a motor vehicle, the claimant had a duty to take reasonable care for his safety (and the safety of other road users) having regard to all the circumstances of the case: Vairy v Wyong Shire Council [2005] HCA 62 (Vairy) McHugh J at [26]. The duty is always the same; to conform to the legal standard of reasonable conduct in the light of the apparent risk: Vairy at [25]. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. More often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path: Manley v Alexander [2005] HCA 79 per Gummow, Kirby, and Hayne JJ at [11].
The principles that apply in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. For that purpose, the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person: s 5R Civil Liability Act.
On the facts as I have found them, I am not satisfied the accident was caused by any failure on the part of the claimant to take reasonable care. Prior to the accident he was traveling within the speed limit. There was nothing about the prevailing conditions that required him, exercising reasonable care, to travel at a lower speed. A reasonable person in his position would not have been aware of the presence of the Toyota on the roadway, let alone that it was stationary, until after the vehicle in front of him suddenly changed lanes.
I find that, contrary to the insurer’s submission, when the claimant first saw the Toyota, he would not have appreciated it was stationary. A reasonable person in his position, driving on a motorway with a speed limit of 110km/h, in moderate traffic, would not have expected a stationary vehicle in the lane ahead of him. The hazard lights of the vehicle had not been activated. It would have taken time for the claimant to perceive the Toyota was stationary. This in turn reduced the time he had to respond to the presence of the vehicle on the roadway.
The claimant found himself in a situation which was not of his making. He did not have the opportunity for calm reflection. Once the claimant appreciated the Toyota was stationary, he reacted by applying the brakes of his vehicle. His response to the risk presented by the Toyota was reasonable, and consistent with the exercise by him of reasonable care in the circumstances.
It follows that I do not accept the insurer’s submission the claimant was not keeping a proper lookout.
The insurer argues that as the vehicle in front of the claimant was able to detect and respond to the risk posed by the Toyota, the claimant should have been able to do likewise, and his failure to do so supports a finding that he was not exercising reasonable care. I reject this submission. Unlike the claimant, the line of site of the driver of the vehicle in front of the claimant was not obscured by the presence of another vehicle. The opportunity for, and the time available to, the driver of that vehicle to perceive and respond to the presence of the Toyota was greater than the opportunity available to the claimant. For this reason, they were not in an analogous position.
The insurer also argues the claimant failed to exercise reasonable care because he failed to keep a safe distance behind vehicles in front of him. The submission is rejected. The evidence does not support a finding that the claimant was not keeping a safe distance between his vehicle and the vehicle in front of him that ultimately changed lanes.
As to the Toyota, the claimant was not, and could not, have been aware it was stationary on the roadway until the vehicle in front of him suddenly changed lanes. He did not have an opportunity to keep a safe distance between his vehicle and the stationary Toyota. Further, having become aware of the Toyota, the claimant would not immediately appreciated it was stationary.
I find that the accident was not caused by the claimant’s failure to exercise reasonable care.

Was the accident caused wholly or mostly by the claimant’s fault?

Given the findings I have made, it follows that, for the purposes of ss 3.11 and 3.28, the accident was not caused wholly or mostly by the fault of the claimant.
A finding about whether the accident was caused by the fault of the driver of the Toyota is not required. Had such a finding been necessary, I would have found in the affirmative. The driver of that vehicle knew or ought to have known there were other vehicles traveling behind them at high speed and that the perception and reaction time of the drivers of those vehicles in response to seeing a stationary vehicle in their lane of travel was limited. The exercise of reasonable care by the driver of that vehicle required, at a minimum, that they activate the hazard lights of the vehicle. In circumstances where the driver of the Renault had time following the collision to move the vehicle off the roadway, a reasonable person in the position of the driver of the Toyota had time to activate the hazard lights on their vehicle. Further, the driver of the Toyota should have moved the vehicle off the roadway as the driver of the Renault had. There is no evidence that he was unable to do so because of mechanical defect or the damage caused by the accident involving the Renault. In any event, as I have already said, given the findings that have been made, whether the accident was caused by the driver of the Toyota does not arise for determination.

The insurer’s Evic submissions

The insurer’s case that the accident was caused wholly by the fault of the claimant has been rejected. It is, however, appropriate to address the insurer’s submissions with respect to the application of Evic and its submission that in a case involving multiple vehicles an apportionment of culpability is required, even if that apportionment is all to one of the parties.
As Mitchelmore J made clear in Evic at [56], the focus of ss 3.11(1)(a) and 3.28(1)(a) is whether the motor accident was caused wholly or mostly by the fault of the injured person who is in receipt of statutory benefits. The qualifiers “wholly or mostly” inform each other and are intended to address the same mischief, namely, contributory negligence. Her Honour went on to say at [57] that:

“Considered in the particular statutory context for which Part 3 makes provision, 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. The sections (and s 3.36) use the word “fault” accompanied by a qualifying phrase (“wholly or mostly”) which clearly invokes contributory negligence. That is confirmed by the express reference, in subs (2), both to contributory negligence and s 3.38. Consistently with the balance of Part 3, the provisions are concerned with contributory negligence not for the injury, but for the motor accident, in a manner that accommodates all types of motor accidents, including single vehicle accidents where the injured person is the owner driver.”

Relevantly, s 3.38(1) states that the common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by that section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 52 weeks after the time of the motor accident.
If a finding of contributory negligence were made in these proceedings, it was to be assessed as a percentage that reflected what the Commission determined is just and equitable in the circumstances of the case, none of the circumstances referred to in s 3.38(2) being relevant, and there being no percentage fixed by the regulations: s 3.38(3)(c).
As recorded at [60] in Evic, the enacted law of contributory negligence includes Div 8 of

Pt 1A of the CL Act. Section 5R(1) provides that the principles that apply in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. Section 5R(2)(a) provides that, for that purpose, “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person”.
The insurer referred to and relied on Shuk, and the reference made to that decision in Evic at [61]. In Shuk it was found the accident concerned was caused by the fault of both the claimant, a pedestrian, and the driver of the vehicle that hit her. Because of those findings an apportionment of relative culpability was required. The reference to, and discussion about, Shuk in Evic must be read in light of these findings.
In Podrebersek Gibbs CJ, Mason, Wilson, Brennan and Deane JJ concluded that, in a normal case, contributory negligence requires an apportionment as between the plaintiff and defendant of their respective shares in the responsibility for the damage, and which involves the comparison both of culpability and of the relevant importance of the acts of the parties in causing that damage: Evic at [68].
The apportionment was required in Podrebersek because there had been a finding the accident in question was caused by both the negligence of the defendant and the contributory negligence of the plaintiff. Relative culpability cannot be assessed in accordance with Podrebersek if a motor accident was caused only by the fault of a claimant and no other person. It follows that I do not accept the insurer’s submission that, in an accident involving more than one vehicle, where it is found that the accident was caused by the fault of the claimant and not by the fault of another driver, Mitchelmore J’s construction of ss 3.11 and 3.28 requires an apportionment of the claimant’s culpable conduct and the non-culpable conduct of the other driver. Such a comparison does not involve an assessment of relative culpability, would involve a logically inconsistent approach, and produce a logically inconsistent outcome.
Contributory negligence must, however, be assessed by reference to something. Mitchelmore J accepted in Evic at [67] the submission that the words “wholly or mostly” do not require comparison of the acts of at least two parties. At [68] her Honour said that Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311 (Axiak) provided an example of how contributory negligence can be applied in the absence of a tortious defendant, and in that regard referred to the reasons of Tobias JA at [85]. Her Honour went on to say that both Axiak and Davis v Swift [2014] NSWCA 458; 69 MVR 375 illustrated the broader point, that the inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence.
Consistent with the reasoning of Mitchelmore J in Evic and Tobias JA in Axiak, in a case in which it has been found an accident involving a claimant and another driver was caused by the fault of the claimant but not the fault of the other driver, assessment of whether the accident was caused wholly or mostly by the fault of the claimant is to be undertaken by inquiring how far the claimant departed from the standard of care he or she was required to observe in the interests of his or her own safety. It does not involve, as submitted by the insurer, an assessment of culpability in accordance with Podrebersek and does not involve an apportionment of the claimant’s culpable conduct and the non-culpable conduct of the other driver.

COSTS

The claimant seeks an order for payment of his legal costs in accordance with the Motor Accident Injuries Regulation 2017 (NSW) “up to” the maximum amount (16 monetary units).
The parties agreed that there were two disputes, one under s 3.11 and the other under

s 3.28 and that the claimant was entitled to recover costs for each dispute at the maximum allowed under the regulations.
The insurer is to pay the claimant’s costs in the sum of $4,062.40 plus GST.

[2025] NSWPIC 566

21 October 2025