CMB v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	CMB v QBE Insurance (Australia) Limited [2025] NSWPIC 420
CLAIMANT:	CMB
INSURER:	QBE Insurance (Australia) Limited
SENIOR MEMBER:	Susan McTegg
DATE OF DECISION:	19 August 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28; claimant sustained injury when his vehicle veered off the road and collided with a telegraph pole which fell; claimant left the scene; claimant did not seek medical attention; Held – claimant’s evidence unreliable; claimant suffering from legal incapacity; claimant’s version of events not borne out by CCTV footage; evidence of witness two years after the accident as to unidentified vehicle exiting driveway causing claimant to swerve and lose control unreliable where witness conceded he was not sure what he saw and where not consistent with CCTV footage; claimant driving at excessive speed; as per AAI Limited t/as GIO v Evic claimant failed to take reasonable care in not controlling speed and direction of his vehicle; claimant not wholly at fault where no finding of 100% contributory negligence but contributory negligence greater than 61%; claimant mostly at fault.
DETERMINATIONS MADE:	CERTIFICATE *Issued under s 7.36 of the Motor Accident Injuries Act 2017* (the MAI Act)** The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 the motor accident was mostly caused by the fault of the injured person (the claimant). 2. For the purposes of s 3.28 the motor accident was mostly caused by the fault of the injured person (the claimant). 3. The insurer is to pay the claimant’s costs. A brief statement of my reasons for this determination are attached to this certificate.

STATEMENT OF REASONS

INTRODUCTION

This is a miscellaneous claims dispute pursuant to s 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).
[CMB] (the claimant) was driving a vehicle owned by Ms Abigail Legat on 23 August 2022 when he was involved in a motor vehicle accident and sustained injury (the accident).
On 30 January 2025 Ms Mary Chebat Legat was appointed as the appointed representative of the claimant, a person under legal incapacity.
QBE Insurance Australia Limited (the insurer) as agent for the Nominal Defendant is the relevant insurer liable to pay statutory benefits to the claimant under the MAI Act.
The claimant completed an Application for Personal Injury Benefits on 18 April 2024.
On 26 July 2024 the insurer declined liability for payment of statutory benefits following the first 26 weeks after the accident on the basis [CMB] was wholly at fault for the accident. It was also alleged the claimant had sustained a threshold injury.
The claimant sought an internal review of that decision and on 15 August 2024 the insurer determined the claimant was wholly or mostly at fault for the accident.
The claimant lodged an application in the Personal Injury Commission (Commission) on
22 May 2025 as to whether for the purposes of ss 3.11 and 3.28 of the MAI Act the motor accident was caused wholly or mostly by the fault of the claimant.
The dispute was initially referred to Member Ford and was subsequently reallocated to me.
During a preliminary conference on 4 August 2024 both parties agreed the dispute could be determined on the papers. In accordance with s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC 2, I consider that it is appropriate to determine this dispute on the papers. I am satisfied the evidence and submissions provided by the parties is sufficient to determine the dispute without an assessment conference.
There is also a dispute in respect of threshold injury which is yet to be determined.

EVIDENCE CONSIDERED

I have had regard to the following:
(a)    an indexed bundle of documents uploaded by the claimant on or about
22 May 2025 paginated from page 1 to 442;
(b)    an indexed bundle of documents uploaded by the insurer on or about
13 June 2025 paginated from page 1 to 342, and
(c)    CCTV footage (x 2) provided by Welding Guns of Australia Pty Ltd.

THE STATUTORY FRAMEWORK

At the time of the accident s 3.11 of the MAI Act provided:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if—
(a)the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were threshold injuries.
(2) 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 section 3.38) was greater than 61%.
Note.
Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault.”
At the time of the accident ss 3.28(1) and (2) of the MAI Act provided:
“(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a)the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b)the person’s only injuries resulting from the motor accident were threshold injuries.
(2) 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 section 3.38) was greater than 61%.”
As the time of the accident s 3.38 of the MAI Act provided:
“(1)    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 this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident.
(2)     A finding of contributory negligence must be made in the following cases—
(a)  - (e) …
(f)      in the case of any other conduct of the injured person that is prescribed by the regulations for the purposes of this section.
(3)     The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence--
(a)     if subsection (4) requires the statutory benefits be reduced by a fixed percentage--by that fixed percentage, or
(b)     by such percentage as the parties agree, or
(c)     in any other case--by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case.”
If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission.”
The enacted law includes s 5R of the Civil Liability Act 2002 (CLA) which sets out the principles that apply in determining the question of contributory negligence. Subsection 5R(2) provides the following:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether [CMB] is wholly or mostly at fault in respect of his weekly benefits (Schedule 2, cl 3(d)), whether he is wholly or mostly at fault in respect of his treatment and care benefits (Schedule 2, cl 3(e)) and whether statutory benefits should be reduced for the claimant’s contributory negligence (Schedule 2 cl 3(g)).

THE EVIDENCE

Fitness to drive reminder notice

A Fitness to drive reminder notice from Transport NSW dated 15 August 2022 required the claimant to provide a medical certificate by 5 September 2022 in relation to musculoskeletal chronic pain. The claimant was still legally entitled to drive at the date of accident.

Police records

Two different informants placed 000 calls at 5.14am on 23 August 2022.
The first call was made by Tran Nguyen. Constable Bourke reported it was broadcast as:
“one vehicle accident. … A red Honda Civic, which has collided with a power pole. Wires down nearly on the road. No arching or sparking. Pole number not known. Traffic is heavy, causing obstruction. Airbags deployed. No persons on scene. Near the vehicle of interest, ambos declined. Fluids leaking, no smoke or flames. No further information.”
The second call was made by John Pement. It was broadcast as follows:
“At least two cars involved. One car got airborne and has taken out power pole. Sparks seen but no fire now. Pole has come down on the footpath. Unknown whether wires went down. One person seen to get out of the vehicle. Unknown if anyone was in the other car. Unknown re injuries, but informant believes it was a bad hit, and possibly someone is injured. Unknown re fluids leaking. Informant is not there now. On the way to work. One vehicle was a black and red sports car, and the other vehicle was a dark coloured SUV.”
Police attended the scene at about 5.28am.
The COPS entry created by Constable Halilovic states:
“NARRATIVE
At 05:20, the 23rd of August 2022, vehicle 1 was travelling on lane 1 of 1 eastbound. The vehicle had collided with a power pole at the above location. The POI had left his vehicle and continued to leave the scene by foot. The result of the motor vehicle collision vehicle 1 had extensive damage to the front of the vehicle and the power pole was removed out of the ground, laying on the footpath exposing electrical wires.
At 05:37, the 23rd of August 2022, police had arrived to the above location regarding a motor vehicle collision. Prior to attending the scene, NSW Fire and Rescue have managed the oil/petrol spillage and contacted the power electrical company regarding the power lines. On visual inspection vehicle was deemed not drivable as the front engine of the vehicle was concaved inwards with the impact of the power pole.
Upon the search of the vehicle, a TAFE student card was located at the drivers seat in the name of [CMB].
Police conducted a canvass for CCTV and patrolled the surrounding streets for the POI. Nil find with CCTV. Nil find patrolling.
Police have organised a tow which included fingerprints and DNA.”[1]
[1] Insurer’s documents p 56.

Photographs of the claimant’s vehicle

Photographs of the claimant’s vehicle show major damage to the front of the vehicle.[2] There is no obvious damage to the rear of the vehicle or the passenger side of the vehicle other than the front quarter and the area near the wheel arch.
[2] Insurer’s documents p 178-215.

Claimant’s statement in Constable Bourke’s notebook

The claimant attended Bass Hill Police Station at 1.55pm the same day. The following signed statement was recorded in Senior Constable Bourke’s notebook:
“Q. Were you the driver of motor vehicle CZA10M, a red Honda Civic sedan, when it was involved in an accident with a power pole outside 112 Christina Road in Villawood at about 05:30 hours on the 23rd of August 2022?
A: Yes.
Q: Can you tell me what happened?
A. I remember driving on Christina Road in Villawood around that time. The last thing I remember is my right leg going numb and then I woke up at my friend’s house at Unit 1 of 6, Wrights Avenue in Berala. I did not take any medication prior to driving, and I did not consume any alcohol. My headlights and seatbelts were both on, and I was alone in the car.”[3]
[3] Insurer’s documents p 65.
On 23 August 2022 Senior Constable Bourke created the following narrative where ‘DR1’ is the claimant:
“At the above time and location (1400hrs 23/08/2022), DRl attended trying to find out where his car had been towed to. DRl complied with a form of demand nominating himself as the driver at the time of the collision. DRl told Police that he was driving on Christina Road in Villawood in an unknown direction. DRl then told Police he remembers his right leg going numb before blacking out and waking up at his home in Berala. DRl claims he has no memory of the crash or how he made it home.
DRl brought a fitness to drive notice with him. He told Police that he has been advised by doctors that he shouldn't be driving and that a fitness to drive assessment would be required to ensure he is fit to carry a drivers licence.
Form of demand and fitness to drive forms have been scanned and uploaded to the event for the OICS’ records.”

AAMI property damage report

At 4.07pm on 23 August 2022 AAMI’s property damage team were notified about the accident. Whilst it is not clear who the informant was the narrative suggests it was the claimant. It states:
“I JUST HIT A ELECTRICAL POST I WAS TURNING, AND A CAR WAS COMING FOR ME ON MY SIDE OF THE ROAD AND I HAVE SWERED AND HIT A ELECTRICAL POST IV POI: AIRBAGS / FRONT.”[4]
[4] Insurer’s documents p 139.

Application for personal injury benefits

The claimant initially completed an Application for personal injury benefits dated
23 December 2023 which incorrectly nominated the date of accident as 28 August 2022 with the accident occurring at approximately 4-5.00am in the Villawood area. In that form the claimant nominated the registration of the vehicle he was driving as most at fault for the accident, and he did not mention any involvement by an unidentified vehicle. The claimant also states he received hospital treatment following the accident although he nominates Yagoona Medical Centre as the hospital.
In the Application for personal injury benefits dated 18 April 2024 the claimant provided the following description of the accident:
“I had dropped the item to my friend at his house and I was returning to my home when the accident happened. I was driving along Christina Road. The speed limit in the area is 50kph, and I was not travelling faster 50kph. I can't remember how much traffic was around but Christina Road is often busy. There was a car coming towards me, it was a utility that was quite high. I can't really say how far away it was from me. The headlights of the utility were very bright coming towards me and he was trying to overtake someone.”[5]
[5] Insurer’s documents p 29.

Statement of claimant provided to investigator

In his statement dated 3 February 2024 provided to investigator Colleen Pont, the claimant stated:
31.   “14. At the time of the subject accident on 28 August 2022, I was not employed because I will still recovering from a workplace injury from 2017. I was still receiving Workcover benefits from GIO.
32.   17.   On Sunday 28 August 2022, at around 4am, I was involved in a single vehicle accident on Christine Road, in Villawood NSW.
33.   22.   At the time of the accident, I was in good health and not sick. I had had a workplace injury to my back in 2017 but was recovering well from that after surgery.
34.   23.   I was not suffering from any medical conditions that affected my driving.
35.   35.   I was driving along Christina Road. The speed limit in the area is 50kph, and I was not travelling faster 50kph. …
36.   36.   There was a car coming towards me, it was a utility that was quite high. I can't really say how far away it was from me. The headlights of the utility were very bright coming towards me and he was trying to overtake someone. But the car he was trying to overtake didn't seem to want him to do that, and the utility kept coming towards me, on my side of the road, with the very bright headlights in my eyes. My car was quite low compared to the high utility headlights and I felt numb because I was shocked, wondering what to do here. So I pulled my car away to the left, and then I hit a power pole.
37.   37.   I was in a lot of shock from what happened, and it is hard for me to remember the details. I remember some people coming to help me, … People helped me out of the car and they said they could take me to Auburn Hospital but I told them to take me home. I had hit my head and I was in a lot of pain and losing focus.
38.   44.   I went to the Yagoona Medical Centre and saw my GP later that same day. I was given pain medication … .
39.   45.   Later that day, I went to Chester Hill Police Station and gave them a report of the accident and how it happened.
40.   54.   I believe this accident was caused by the utility with the strong headlights and him trying to overtake the other car and coming onto my side of the road.…”[6]
[6] Claimant’s documents p 52.

Factual statement and merit of this claim document

The claimant provided a document titled “Factual statement and merit of this claim” dated
19 May 2024.[7]
[7] Claimant’s documents p 329.
[CMB] states he was not employed at the time of the accident because he was still recovering from a workplace injury in 2017. He states the vehicle was in very good condition at the time of the accident and had been regularly serviced. He states he was taking Maxigesic at that time for pain relief.
[CMB] states he was not travelling faster than the speed limit along Christina Road of 50kmph. He states:
44.   “38. There was a car coming towards me, it was a utility that was quite high. I can’t really say how far away it was from me. The headlights of the utility were very bright coming towards me and he was trying to overtake someone. But … the utility kept coming towards me, on my side of the road, with the very bright headlights in my eyes. … So I pulled my car away to the left, and then I hit a power pole.
45.   39.   … People helped me out of the car and they said they could take me to Auburn Hospital, but I told them to take me home. I had hit my head and I was in a lot of pain and losing focus.
46.   44.   I went to the Yagoona Medical Centre and saw my GP later that same day.”

Statement of John Pement

Mr Pement provided a statement dated 26 August 2024. He was on his way to work at about 5.00am on 23 August 2022. Adopting the numbering in his statement he states:
“8.As I was travelling west along Christina Road there were no other westbound vehicles travelling directly ahead of me. I had a clear and open view of the roadway ahead. There may have been some cars generally following me. I had my headlights on normal low beam and was travelling at about the speed limit of 60km/h. The weather was fine that morning and the road surface was dry. It was fully dark at that time of the morning. I think there are a couple of streetlights near the scene and I would say lighting in the area is average.
9.When I reached a point near the Go Kart Centre in Christina Road, just past Birmingham Avenue, I saw an oncoming vehicle heading east towards me. It was about 200 metres away. I can’t now say exactly where it was when I first saw it. I had just come around the slight right bend near the Go Kart Centre and it is then a long straight. There were no other eastbound vehicles directly in front or behind this car. It was the only car. I couldn’t tell what type of car it was at that stage, but it had its headlights on normal low beam. I later saw that it was a sedan, possibly dark coloured with a bit of red. It was in about the middle of its correct lane. I could tell straight away that it was travelling well in excess of the speed limit for the area. It is hard to estimate exactly, but I would guess it was travelling somewhere near 100km/h.
10.I continued east along the road and a moment or two later saw this oncoming red car go out of control. It spun around several times and went up into the air. I have never seen anything like it before. It went about 5 metres off the road in the air and collided with a power pole on the northern side of the road. I am not sure of the exact pole it hit now but looking at Google Maps I think it was near the business at 114 Christina Road. I was about 50 metres east of the pole it hit when I saw the accident happen. It all happened right in front of me. I think that it was the rear of the red car which hit the pole first. It was a very heavy impact.
11.Just a moment prior to hitting the pole I saw the red car go past a vehicle which came out of a driveway or road on the northern side of Christina Road. I can’t now be sure which driveway or road it came from. I reckon it was about 20 metres west of the pole that the red car hit. This vehicle was a pastel green coloured minivan. | think it had its headlights on normal. I think it was coming out of the driveway to turn left onto Christina Road and head east; however, I can’t be sure of this and did not see if it had an indicator on or not.
12. It was about the time that the oncoming red car passed this minivan that I saw the red car go out of control. I also heard an impact sound and thought that the front of the minivan, near the front driver's side, had clipped the mid passenger side of the red car. I can’t say how fast the minivan was travelling. It just looked like a normal slow speed to come out of a driveway or road. I would say the front half of the minivan was out on Christina Road and the back half was still in the driveway or road when the impact happened. The red car was in about the middle of its correct lane. It all happened very quickly and a moment later the red car was out of control and flying towards the power pole. I don’t recall seeing any other vehicles between myself and the red car at this time. There was definitely no westbound SUV or ute travelling in front of me which moved across the centre lines to the wrong side of the road and forced the red car to swerve left and hit the pole. As far as I was concerned, I felt the driver of the red car was at fault for the excessive speed he was travelling. He was flying.
13.I was in shock and slowed my car down. The red car came to rest in about the middle of the road near the centre lines facing west back towards the way from where it had come. The rear of the red car was roughly adjacent the pole it had hit. The pole came down onto the road. It came down at an angle (south-east) across the eastbound lane. The wires came down with the pole and I think another pole may have also fallen down although I can't now be sure. I remember seeing sparks from the wires. It was like an explosion. The pop and explosion seemed to go on for ages but in reality, it was probably about 10 seconds.
14.I slowed right down and pulled over to a stop at the left side of the road just before the pole. I was scared to keep going past the scene with the wires down. I then saw the driver of the red car get out of his car, through the driver’s door. He got out normally and just stood there with the driver’s door open. He was leaning on the roof of his car and started waving traffic past as if he was doing traffic control. This seemed a bit strange. I assumed based on the heavy impact that the driver was likely injured, however, I did not see any obvious sign of injury to him. … However, it was dark and he was partially obscured from my view by the open driver’s door. | reckon he sat in his car for about 30 seconds after the collision before getting out and standing up.
15.I was concerned that the driver may have been injured due to the heavy impact so I pulled up alongside him and put my driver’s window down. I said “Are you okay?”. He just nodded at me to indicate he was fine and motioned at me with his hands for me to move on. …. I did not see the driver of the red car walk away from his car during the short time I was there.
16.I then drove past the red car and stopped a bit further down the road. … I recall passing the minivan which had just stopped in the same position I had seen it collide with the red car, about half way out of the driveway or road it came out of. I think the driver was a female. I am not certain of this but I am about 80% sure it was a female. She may have also been Middle Eastern but I can’t now be sure or describe her further. …
17.One thing I noticed when I passed the minivan which seemed a bit strange was that I did not see any damage to the front of it. I thought based on the way the red car spun around and went in the air that it must have been a significant impact by the minivan to cause that. However, there was no damage to the front. Perhaps the damage was more to the front driver’s side which I could not really see from my position as I drove past it.
The minivan was still just facing straight out towards the road (south) and had not been pushed to an angle, which you might expect after being hit by the speeding red car. That also seemed a bit strange.
18.… figured that the situation probably required the Police, Fire Brigade and an ambulance so I called 000. They put me through to the Police. I told them what I had seen including the involvement of the minivan. I then left the scene and continued on my way to work….
20.After being asked detailed questions about this accident by Mr Hayes, I began to question whether an impact actually took place between the minivan and the red car. I can’t be certain of anything as it was 5am in the morning, it was dark, I was some distance away and it all happened very quickly. However, I remember believing at the time that an impact between the minivan and the red car had taken place and that is what I reported to Police when I called to report the accident.”

Mr Pement subsequently produced a text message he had sent to his partner on the morning of the accident. The message states:
“Hey Mandy hope your morning is going well. I witnessed the most insane car crash on the way to work this morning. One car was speeding, got clipped by a 4wheel drive pulling out and literal flew several meters in the air spinning aroun [sic]. While in the air it took down the powerlines and all came crashing into the street with little explosions. Was pretty intense never seen anything like it.”[8]
[8] Claimant’s documents p 180.

Statement of Tran Nguyen

The insurer’s investigator Carl Hayes spoke to Mr Nguyen by telephone on 28 August 2024.
Whilst a statement was prepared following the telephone interview with Mr Nguyen it has not been signed. I have set out his unverified evidence, but I do not propose to give it any weight where the statement has not been signed. In any event Mr Nguyen did not witness the accident and his evidence is not crucial.
Mr Nguyen said he was the first car in line as he approached the scene on Christina Road, Villawood. He said it was still dark, but he had a clear and open view of the road ahead. When he reached a point near the business premises at 112 Christina Road he saw a car, a red coloured sedan in the middle of the road, facing west. He saw a power pole had come down on the northern side of the road. He noted major damage to the front of the red car.
Mr Nguyen stopped and got out of his vehicle. He stated there was no one in the red car or near it. He said there was no one nearby and no bystanders or other persons present. He called 000 and reported the accident.

CCTV footage

Footage of the accident was obtained by the insurer’s investigator from Welding Guns of Australia, situate at 112 Christina Road, Villawood.
CCTV #1 is from a camera some 30m north of the scene. It faces south, towards the scene, and is date and time stamped “5.08.11am” on 23 August 2022. The footage shows the following:
55.   (a) 5.08.11 – Footage commences with an eastbound vehicle leaving the frame to far left of view;
56.   (b) 5.08.13 – A westbound vehicle is seen to enter the frame at the far-left view on its correct side of the roadway with headlights on normal low beam;
57.   (c)    5.08.13 – The first of three eastbound vehicles is observed to enter the frame from far right of view. All three vehicles then pass the scene in close proximity at a similar speed. All eastbound vehicles appear to pass the oncoming westbound vehicle without incident or deviation from their respective lanes or paths;
58.   (d) 5.08.21 – The westbound vehicle passes the last eastbound vehicle without incident appearing to hold its line in the westbound lane without any deviation across the centre line;
59.   (e) 5.08.23 – The first of two westbound vehicles enters the frame to far left of view;
60.   (f)    5.08.24 – The white coloured westbound vehicle passes the scene. It appears to be a station wagon or possible SUV/4WD. This vehicle is travelling at a similar speed to other vehicles;
61.   (g) 5.08.25 – The white coloured westbound vehicle leaves the frame to far right of view;
62.   (h) 5.08.26 – The headlights of the claimant’s vehicle enter the frame to the far right of view shining on the roadway;
63.   (i)     5.08.27 – The front of the claimant’s vehicle enters the frame to far right of view. The two eastbound vehicles travelling in close proximity are still a significant distance from the scene and appear to be holding their line on the correct side of the road at a similar speed to other approaching vehicles, with headlights on normal low beam. The claimant’s vehicle continues towards the pole in a straight line westbound at a speed which appears to be in excess of other vehicles passing the scene. white coloured westbound vehicle leaves the frame to far right of view;
64.   (j)     5.08.28 – The headlights of the claimant’s vehicle extinguish at what appears to be the moment of impact with the subject power pole;
65.   (k)    5.08.32 – An explosion can be seen as power lines come down onto the ground;
66.   (l)     5.08.35 – The first of the two westbound vehicles leaves the frame to far right view. The second westbound vehicle slows down and stops adjacent to the claimant’s vehicle;
67.   (m) 5.08.36 – Further sparks are seen to come from the fallen power lines, and
68.   (n) 5.09.06 – Two further westbound vehicles arrive at the scene and slow to a stop. Footage terminates.
CCTV #2 is positioned some 30 meters north of the scene. It faces south towards the scene. It captures a view west of the scene from a point immediately west of the power pole. The footage is date and time stamped commencing at 5.08.08am on 23 August 2022. The footage shows the following:
70.   (a)   5.08.08am – Footage commences showing a westbound vehicle not seen in CCTV #1 leaving the frame to right of view. It also shows the first of three eastbound vehicles enter the frame at right of view and pass the westbound vehicle without incident, suggesting that all vehicles are travelling on their correct side of the road and holding their line without deviation across the centre lines;
71.   (b)   5.08.18 – The last of the three westbound vehicles leaves the frame to far-left view;
72.   (c)   5.08.22 – The headlights of the claimant’s vehicle first come into the frame at the far right of view. The white coloured westbound vehicle enters the frame at far-left view;
73.   (d)   5.08.24 – An eastbound vehicle following the claimant’s vehicle comes into the frame at far-right view;
74.   (e)   5.08.25 – The white coloured westbound vehicle appears to pass the claimant’s oncoming vehicle without incident. The white coloured vehicle is not seen to deviate from its line or travel or cross onto the incorrect side of the road;
75.   (f)    5.08.27 – The claimant’s vehicle is seen to left view about to leave the frame. The streetlight then extinguishes, indicating the power pole being struck. At this time the white coloured westbound vehicle is seen to pass the eastbound vehicle which was following the claimant’s vehicle without apparent incident or their vehicle changing their lines or deviating;
76.   (g)   5.08.28 – Sparks are seen to come from the falling power lines;
77.   (h)   5.08.29 – A large explosion is observed from the falling power lines;
78.    (i)    5.08.31 – Sparks are seen to continue from the fallen power lines and the eastbound vehicle which was following the claimant’s car slows quickly to a stop. A further explosion and sparks occur. The first of the two westbound vehicles which passed the scene after the accident is seen to pass the eastbound vehicle which was following the claimant’s car and leave the frame to right of view;
79.   (j)     5.08.36 – The eastbound vehicle which was following the claimant’s car reverses back away from the fallen power lines, and
80.   (k)    5.08.44 – The footage terminates.

Evidence of Thomas Nyakeriga

Mr Thomas Nyakeriga provided a letter/statement addressed to Premier Compensation Lawyers dated 21 August 2024.[9]
[9] Claimant’s documents p 315
Mr Nyakeriga stated on 24 August 2022 a white woman called Nancy, and an Arab man named Syde took the claimant home after the accident. He reports the claimant was unaware of his surroundings. He stated he was on his way to work when he saw a red Honda Civil that had hit an electrical post opposite Leightonfield Station. He stated approximately seven people stopped; it was still dark and one of the guys said he would call the police.
Mr Nyakeriga said he knew the claimant from the Nigerian community, and he was the one who proposed taking the claimant home. He stated [CMB] was making sense of his surroundings when they got to Chester Hill a few blocks away from the accident. He reported he was complaining of his head, nose bleeding, back pain, foggy eyes and echo in his ears.
Mr Nyakeriga included the following statement reportedly from Nancy in his letter:
“The headlights of the utility were very bright and directed towards [CMB], ‘That car also would have hit me, and it was reasonable for [CMB] to drive away from that car because many of us would have died or harmed. [CMB] was a hero to us this morning, so I have agreed to make sure he gets home or to the hospital. The other driver run away before we took his details.”
The insurer’s investigator Carl Hayes in a report dated 28 February 2025 stated he sent a text to the listed phone number of Mr Nyakeriga on 14 February 2025. No response was received and on 26 February 2025 a call was made to that number and a message left on the answering service which had a male person identifying himself as “Thomas”. A further text was also sent to Mr Nyakeriga with no response.

Evidence of Keven Muthoni

On 20 January 2025 Mr Kevin Muthoni provided a letter addressed to Member Ford in which he stated:
“I remember on 23/08/2022 around 5:25 on my way to Fairfield, I came across around this area of 222 Waldron Road, Chester Hill New South Wales 2162 a mini green van that was damaged on the left side of its front side. An Arabic man was driving it. But after the round next to the Chester Fire station then the street lights were off.
I had spoken to [CMB] that morning cause had been able to identify his car because it had a blue disability sign for many months before the car accident when I reached next to the car accident. Most drivers had lights on and pointed to the damaged car of [CMB]. [CMB] was not at the scene when I got there.
I had driven this car before. I never suspected the green van until [CMB]’s family called me to ask me if I came across any damaged car on my way.”[10]
[10] Claimant’s documents p 272
The insurer’s investigator Carl Hayes reported he attempted to contact Mr Muthoni by email on 14 February 2025 and by telephone on 19 February 2025 when a message was left for Mr Muthoni to make contact. After send two further text messages Mr Hayes received an email from Mary Chebet enclosing a statement of Mr Ndu’ngu.
In a statement dated 26 February 2025 Mr Muthoni Ndu’ngu states he understood Mr Hayes had been asked by QBE to obtain a signed statement from his son Kevin Muthoni. However, he stated several weeks earlier his son had sustained a serious head injury leading to mental instability. [11]
[11] Claimant’s documents p 275

Statement of Alex Nelson

Mr Alex Nelson, a manager at Welding Guns of Australia Pty Ltd provided a statement to investigator Carl Hayes dated 27 February 2025 in which he verified the provenance of the CCTV footage downloaded from cameras which provide a view of the front yard of the premises of Welding Guns of Australia Pty Ltd including Christina Road.[12]
[12] Claimant’s documents p 278
Mr Nelson denies the CCTV footage was edited as apparently alleged by the claimant. He viewed the footage soon after the accident and again more recently and did not see any indication the footage had been tampered with or edited in any way. Mr Nelson states he did not know the person/s involved in the accident beforehand and had not had any dealings with them since. He stated he received an email from someone on behalf of the claimant alleging that the CCTV footage had been edited. He stated he had no reason to change the footage, where there is no benefit to his company. He confirmed that the footage provided to Mr Hayes by email on 22 August 2024 is the same original footage that he downloaded soon after the accident.
The investigator produced various screen shots taken from the CCTV footage recorded on CCTV cameras at Welding Guns Australia Limited.

The following image shows the claimant’s vehicle approximately five metres away from the power pole. The pole is illuminated by the claimant’s headlights. The time stamp shows 05:08:27.
[IMAGE UNABLE TO RENDER]

The following image shows the claimant’s vehicle about to impact the power pole. The time stamp shows 05:08:27.
[IMAGE UNABLE TO RENDER]

Expert report of Ms Tia Gaffney dated 10 February 2025

Ms Gaffney was retained by the insurer.[13] She is a mechanical engineer and accredited accident reconstructionist. She reviewed the CCTV footage and provided the following opinion:
[13] Insurer’s document p 82
(a)    the CCTV footage demonstrated that all vehicles apart from the claimant’s vehicle were traveling normally within their respective lanes. The footage does not corroborate an account where a westbound vehicle veers into the eastbound lane prior the claimant’s vehicle impact with the pole;
(b)    the footage of the westbound SUV that had the potential to drift into the eastbound lane in front of the claimant’s vehicle demonstrates a normal travel path, and there is no evidence of a path diversion by the white SUV travelling on approach to the claimant’s vehicle;
(c)    the headlights on the white SUV were of similar brightness to those on subsequent westbound vehicles and did not have “very bright headlights” as reported by the claimant;
(d)    the three eastbound vehicles that preceded the claimant’s vehicle generated headlight spans that do not light up the subject pole or adjacent nature strip. This suggests they were travelling normally within the eastbound lane.
(e)    the headlight span from the claimant’s vehicle begins to light up the pole and adjacent nature strip from a significant distance, because the front of the vehicle was directed toward the kerb and likely to the left of the eastbound lane. The footage ‘depicts the headlight span of the Honda traveling in the direction of the pole, suggesting that its path was diverted to the left of the eastbound lane prior to impact’;
(f)    the footage does not show a westbound vehicle veering into the eastbound (claimant’s) lane prior to the impact with the pole;
(g)    the speed of the three eastbound vehicles and the westbound SUV appeared to be in the vicinity of the 60km/h speed limit;
(h)    the speed of the claimant’s vehicle appeared to be in the vicinity of 80km/h when it impacted the pole, as it travelled a similar distance to the three eastbound vehicles over a shorter time interval. The damage to the utility pole, the significant damage to the front of the claimant’s vehicle and the motion of the vehicle
post-impact are all indicators that support the estimated 80km/h impact speed. The speed limit was 60km/h;
(i)    there are no other vehicles travelling eastbound or westbound that could have contacted or influenced the path of the claimant’s vehicle shown in the CCTV footage, and
(j)    the incident ‘occurred due to the high approach speed of the claimant’s vehicle in combination with the proximity of the pole to the road with elevated injury risk due to the non-frangible nature of the pole’.
Ms Gaffney calculated the claimant’s speed by using the CCTV footage to find the average speed between the points.
Ms Gaffney considered the statement of Mr Pement but relied on the objective evidence provided by the CCTV footage rather than the witness report provided more than two years post- accident.

Workers compensation claim

The claimant provided a statement dated 29 September 2022 in respect of his workers compensation claim arising out of an injury on 21 July 2017.
The claimant reported he underwent an L3/4 anterior interbody fusion on 19 November 2020 under the care of Dr Abraszko.
The claimant reported on 18 March 2022 his then lawyers Brydens sent a letter to GIO enclosing a report of Dr Abraszko dated 17 February 2022 where she assessed a 33% whole person impairment arising from impairments of the lumbar spine and scarring and bladder dysfunction.

Appeal Panel

An Appeal Panel comprising Member Marshall Douglas, Medical Assessor Chris Oates and Medical Assessor Neil Berry issued a decision dated 28 August 2023 in relation to a dispute as to permanent impairment arising out of the workplace injury on 21 July 2017.[14]
[14] Insurer’s documents
A medical examination was conducted by Medical Assessor Oates on 3 August 2023. He reported the claimant spoke excellent English. Medical Assessor Oates reported:
“He stated to have had no previous problems with the back and has had no subsequent injury or relevant condition develop”.
Medical Assessor Oates reported the claimant’s general health was very good. Significantly no mention was made of the motor vehicle accident on 23 August 2022.

Medical records

Dr Abdelgayoom of Yagoona Family Healthcare

On 6 September 2022 the claimant consulted Dr Abdelgayoom, general practitioner (GP) for a medical report and referral. The report recommended cancellation of the claimant’s driving licence and states:
“This is to certify that [CMB] is a patient of this surgery and suffers primary spinal cord injury and neurogenic Detrusor overactivity post an incident in 2017. Numbness (sic) and weakness of right leg persisted post-surgery. He is not safe to drive and cancellation of his drivring (sic) licence is recommended.”[15]
[15] Insurer’s documents p 260
The clinical records of Yagoona Family Healthcare document a consultation with Dr Abdelgayoom on 10 February 2024 when he reported the following injury:
“Had an accident on 23/08/2024, MVA
A car was trying to overtake another car, which moved to his lane, he tried to avoid that car, hence he hit the electrical post.
Police involved.
He was so traumatised to come for review then, however, he’s been coming to get pain killers script afterward.”[16]
[16] Insurer’s documents p 233
The clinical notes of Dr Abdelgayoom document consultations with the claimant on 14 occasions between the accident on 23 August 2022 and 10 February 2024 including a consultation on 6 September 2022 where no record has been made of the claimant’s involvement in the accident.
In a letter dated 30 July 2024 Dr Abdelgayoom stated:
‘This is to certify that Mr [CMB] is a patient of this surgery and [CMB] told me about the MVA happened in 2022 in this year 2024, when I wrote the letter to cancel his licence I haven’t had any information about the 2022 accident’.[17]
[17] Insurer’s documents p 230

Sava Tsolis, clinical psychologist

Clinical records of Mr Tsolis include an entry on 3 September 2022 when no mention is made of the accident. However, on 1 October 2022 Mr Tsolis records:
“01/10/2022 – [CMB] arrived punctually and well prepared for his session. … and [CMB]’s report that he was involved in an MVA on 23 August 2022. He stated that the vehicle that he was travelling in was forced to swerve due to an oncoming vehicle veering into his lane. As a consequence the vehicle [CMB] was travelling in then collided with a power pole with such force that the power pole fell onto the pedestrian footpath. [CMB] stated that he lost consciousness upon impact and had amnesia for approximately 15 minutes following the MVA. Reported significant depressive and anxious symptomology as a result. … .”[18]
[18] Claimant’s documents p 389
In a letter dated 22 March 2024 Mr Tsolis stated:
“[CMB] … had been a patient of mine since 2008.
[CMB] informed me that he had been involved in an MVA in August 2022. At that time, he had an ongoing Workers Compensation claim ongoing and I felt that lodging a further CTP claim at that time would be detrimental to his psychosocial functioning. As I did not feel that [CMB] had the attentional resources to cope with this further strain.
[CMB] acquiesced to my request and consequently did not lodge his CTP Claim till recently”.[19]
[19] Claimant’s documents p 379
In a report dated 3 May 2024 Mr Tsolis reported:
“Of particular concern to [CMB] both at the time of his assessment and throughout our therapeutic relationship since that time is ongoing cognitive impairment. He described having serious impairment in his attention, concentration and memory as well as bouts of confusion that did not appear to be present prior to his accident, according to [CMB]’s self-report. Whilst these deficits are often common sequelae of anxiety disorder, it is more probable that [CMB] has sustained some permanent brain injury as a result of his accident.
The nature of [CMB]’s level of cognitive impairment is a concern. Whilst anxiety may be able to account for at least part of his self-reported difficulties, it is clear that an injury has occurred to the brain that may also be able to explain this phenomenon.”[20]
[20] Claimant’s documents p 366

Following neuropsychological testing Mr Tsolis concluded:
“The results of [CMB]’s psychometric testing reveal that his overall level of intellectual capacity is well below that expected for a person of his age, and in fact, only higher than 0.1 percent of same age peers. His verbal capacity, non-verbal capacity, working memory and processing speed are consistently underdeveloped and are better than between 0.2 and 1 percent of the general population. Finally, his major depressive disorder, PTSD, worries and chronic pain provide cognitive interference by way of slowing processing speed and impairing attention and concentration. Furthermore, [CMB] seems to have a permanent or enduring mental and cognitive incapacity.”

Dr Angela Lam, Allianz Medical Healthcare Centre

On 7 March 2024 Dr Lam recorded the following history:
“Occurred on 23 August 2022
Was driving own car, travelling on straight road
Was quite dark at the time so headlights of surrounding cars were on
Noted that a car travelling on the opposite side of the road started to swerve towards him → Pt surmised that this car was attempting to overtake the one in front, as it was travelling quite fast
Pt saw oncoming headlights and swerved to his left → collided into a post
Lost consciousness, unsure for how long …”[21]

Dr Farhan Shahzad, occupational physician
[21] Insurer’s documents p 322

The claimant was assessed by Dr Shahzad at the request of his lawyers. In his report dated 28 March 2025 Dr Shahzad reported the following history:
“On 23 August 2022, [CMB] was involved in a motor vehicle accident while driving along Christina Road. At around 5:37 AM, he was travelling at a speed of less than 50 kph on a straight road at night with the headlights of a nearby car on. He noticed an oncoming vehicle swerving into his lane, swerved to his left to avoid collision, lost control and collided with a pole. He lost his consciousness and blacked out. He experienced memory loss for a few minutes up to 15 minutes and was disoriented afterward. As a result, he sustained multiple injuries to his head, neck, thoracic spine, lumbar spine (aggravation of previous injury), bilateral shoulders, bilateral ears and vision as well as PTSD, anxiety and depression.”[22]

Dr Jeff Bertucen, psychiatrist
[22] Claimant’s documents p 407

Dr Bertucen assessed the claimant at the request of his lawyers. He diagnosed chronic post-traumatic stress disorder and a severe chronic adjustment disorder with features of depressed mood and anxiety. In his report dated 8 April 2025 he reported the claimant was the sole occupant of a small sedan (Honda Civic) driving on a suburban street in the Villawood area. Dr Bertucen reported:
“He stated that at one point an oncoming car drifted into his lane, as a result of which he swerved to miss it and hit a roadside telegraph pole. Airbags deployed and the police and ambulance attended. He lost consciousness for an unspecified period and the Honda was written off. After being removed from the vehicle, he was advised to go to Auburn Hospital but was deterred by the long wait in the emergency department and attended his GP, Dr Angela Lam the next day.”[23]

SUBMISSIONS

[23] Claimant’s documents p 424

The insurer’s submissions

The insurer provided submissions dated 13 June 2025.
The insurer submits the statements made by the claimant on the day of the accident, the version contained in the property damage file, the version contained in the Application for Personal Injury Benefits and the version provided to the insurer’s investigator were made when the claimant had legal capacity. The insurer submits the claimant’s incapacity arose in or around late April 2024 based on the report of Mr Tsolis dated 3 May 2024.
The insurer notes that the version of events now relied upon by the claimant is as outlined in the claimant’s submissions dated 8 May 2025, that is, he saw a vehicle exiting a driveway on his left-hand side and to avoid a collision he swerved out of the way, lost control and collided with a telegraph pole.
The insurer submits this version was submitted well after Mr Tsolis reported the claimant did not have legal capacity on 3 May 2024. The insurer submits this version of events cannot be accepted.
The insurer submits I should make the following findings of fact:
(a)    the accident occurred on 23 August 2022 at around 5.00am;
(b)    the accident occurred outside of the premises of 112 Christina Road, Villawood,
(c)    the claimant was driving his vehicle in an easterly direction on Christina Road;
(d)    the claimant’s vehicle collided with a telegraph pole outside of 112 Christina Road;
(e)    at the time of the collision, the claimant’s vehicle was travelling in excess of the posted speed limit of 60km/hr. Ms Gaffney estimates his speed at 80km/hr in a 60km/hr zone;
(f)    CCTV footage of the accident does not show any other vehicle to be at fault or involved in the claimant’s accident;
(g)    based on the CCTV footage, the claimant’s report to the NSW Police Force and Dr Abdelgayoom’s recommended cancellation of the claimant’s driving licence on 6 September 2022, the most likely cause of the claimant’s accident was a medical episode, and
(h)    on the balance of probabilities, an unidentified vehicle was not involved in the accident. There is no negligence on the part of the Nominal Defendant. The claimant was travelling in excess of the speed limit and collided with a telegraph pole. He is wholly at fault for the accident.

Legal incapacity and the claimant’s evidence

The insurer submits whilst the claimant is currently suffering from a legal incapacity that does not mean the various histories of the accident provided by the claimant when he had capacity can be ignored.
The insurer submits I should be cautious about the claimant’s “new” version of how the accident occurred which is reliant on Mr Pement’s statement and where that version was not adopted until October 2024, five months after Mr Tsolis determined the claimant had legal incapacity. This submission is said to be consistent with s13(7) of the Evidence Act, 1995 which provides:
“Evidence that has been given by a witness does not become inadmissible merely because, before the witness finishes giving evidence, he or she dies or ceases to be competent to give evidence.”
It is submitted there was no question about the claimant’s legal capacity until the application for mandatory exemption was lodged based on the 3 May 2024 report of Mr Tsolis. The insurer submits prior to that time there is no suggestion of legal incapacity having regard to the following evidence:
(a)    a clinical note dated 3 September 2022 from Mr Sava Tsolis, psychologist stated that “[CMB] arrived punctually and well prepared for his session. He was engageable throughout the session. His mood was appropriate and reactive... [CMB] appeared to grasp all concepts presented to him. [CMB] appears to be making good use of strategies garnered in therapy to date. Homework for next session given based on content of today’s session.”
(b)    he represented himself as part of his long-running workers compensation claim. He did not require a tutor at any point between the date of the accident and the date of the Statement of Reasons given by the Worker’s Compensation Division on 28 August 2023.
(c)    on 3 August 2023, he attended a medical examination with Medical Assessor Oates, for the workers compensation claim, who stated he “spoke excellent English”, no interpreter was needed, he gave a comprehensive history, underwent a thorough examination and his general health was stated to be ‘very good’.

The evidence

The insurer notes the claimant submits the report of Ms Gaffney is inadmissible having regard to the decision of Makita v Sprowles [2001] NSWCA 305. The facts upon which an opinion is based should be proved by admissible evidence in order “to render the opinion of any value”. The insurer submits Makita v Sprowles does not establish a rule for inadmissibility but only goes to weight
The insurer submits the report of Ms Gaffney is admissible. The insurer submits the opinions expressed by Ms Gaffney were based on underlying objective facts and scientific calculations. She set out the reasoning process by which her opinions were formed.
The insurer submits Mr Pement’s recollection of events is unreliable and should be given little weight. He conceded he was uncertain of his recollection of events.
The insurer notes it was only after the investigators report including the statement of Mr Pement was provided to the claimant that he changed his version of events to allege it was an unidentified minivan at fault for the accident.
The insurer notes:
(a)    the CCTV footage does not show a vehicle coming out of a driveway on or near the accident scene;
(b)    the CCTV footage does not show the claimant’s headlights swerving to the right then to the left, trying to avoid a collision with a vehicle on his left;
(c)    Mr Pement told the MACS investigator the vehicle that clipped the claimant was a green minivan, however, later found a text message to his wife from the day of the accident stating a dark coloured SUV was involved;
(d)    there is no evidence of damage on the ‘mid passenger side of the red car’ (i.e. the claimant’s vehicle) where Mr Pement alleged the unidentified vehicle had ‘clipped’ it. No damage is depicted in the photographs of the claimant’s vehicle post-accident, taken by the police or in the AAMI property damage file;
(e)    Mr Pement reported that “One thing I noticed when I passed the minivan which seemed a bit strange was that I did not see any damage to the front of it. I thought based on the way the red car spun around and went in the air that it must have been a significant impact by the minivan to cause that. However, there was no damage to the front.”
(f)    Mr Pement has stated himself that he was uncertain about his recollection of events, and “began to question whether an impact actually took place between the minivan and the red car. I can’t be certain of anything as it was 5am in the morning, it was dark, I was some distance away and it all happened very quickly.”, and
(g)    Mr Pement stated that the claimant was “middle aged and Middle Eastern in appearance”. The claimant is of African descent.
Mr Pement was categorical there was no westbound SUV or ute travelling in front of him which moved across the centre line to the wrong side of the road forcing the claimant’s vehicle to swerve left and hit the pole. He also reported the claimant “was flying”.
The insurer submits the only reliable part of Mr Pement’s statement is that supported by CCTV footage and the expert evidence, that the claimant was travelling in excess of the speed limit at the time of the collision.

NSW Police Force

The insurer submits the contemporaneous account of the accident given to the police by the claimant is the most likely version of events. It is submitted no criticism can be levelled at the NSW Police Force where:
(a)    the claimant decamped the scene;
(b)    the claimant did not provide details of the involvement of another vehicle to the NSW Police Force as causing or contributing to the accident, and
(c)    the claimant told the NSW Police Force his leg went numb and provided a ‘Fitness to Drive’ medical notice.

Disclosure of the accident by the claimant

The insurer noted the claimant had a long running workers compensation claim at the time of the accident and he did not disclose the accident to the following:
(a)    GIO, the workers compensation insurer;
(b)    Dr Abdelgayoom, GP who he consulted on 6 September 2022;
(c)    Dr Angela Lam, GP;
(d)    his legal advisers at the time of the accident who were apparently Brydens, and
(e)    Medical Assessor Oates who assessed the claimant on behalf of the Medical Appeal Panel on 28 August 2023 and reported he stated he had no subsequent injury.
The claimant told Mr Tsolis about the accident in a consultation on 3 September 2022. Mr Tsolis advised the claimant at that time that lodging a further CTP claim would be detrimental to his psychosocial function.
The insurer notes an ambulance did not attend the scene of the accident, nor was one called. The claimant did not receive treatment at a hospital or at a medical centre.

The claimant’s submissions

The claimant provided submissions dated 8 May 2025.[24]
[24] Claimant’s documents.
The version of events now propounded by the claimant is that he was driving in an easterly direction on Christina Road and whilst driving he saw a vehicle exiting a driveway on his left-hand side causing him to swerve out of the way. As a result, he lost control of his vehicle and collided with the telegraph pole.
The claimant submits his evidence cannot be relied upon where he is an unreliable historian who is currently suffering from legal incapacity, having regard to the report of Mr Tsolis dated 3 May 2024.
The claimant notes John Pement witnessed the accident with an unobstructed view, and he is the only witness to the accident. It is submitted his evidence positively places another vehicle at the scene of the accident, a green minivan.
The claimant submits he cannot be considered wholly or mostly at fault based on the witness evidence of John Pement and the involvement of the minivan.
The claimant submits the expert report of Ms Gaffney provides very little opinion as to the cause of the accident and does not rule out the involvement of another vehicle, that is the minivan.

CONSIDERATION

Factual findings must be supported by logically probative evidence and any inferences drawn must be reasonably open on the facts.[25]
[25] Australian Broadcasting Tribunal v Bond (1990) CLR 321; [1990] HCA 33 at [367].
The insurer suggested following facts were not in dispute and the claimant did not disagree:
(a)    the accident occurred on 23 August 2022 at around 5.00am;
(b)    the accident occurred outside the premises of 112 Christina Road, Villawood;
(c)    the claimant was driving his vehicle in an easterly direction on Christina Road;
(d)    the claimant’s vehicle collided with a telegraph pole;
(e)    the collision caused the telegraph pole to fall onto the roadway;
(f)    CCTV footage provided by Welding Guns of Australia Pty Ltd, at 112 Christina Road, Villawood, shows the claimant’s vehicle immediately before and up to the time of impact with the telegraph pole.
(g)    John Pement is the only known witness to the accident, and
(h)    Tran Nguyen did not see the accident occur.

The reliability of the claimant evidence

The reliability of the claimant’s evidence is not determined by his legal incapacity, although that is a factor to be taken into consideration when determining whether any, and if so, how much weight should be given to his evidence.
The claimant now submits that his evidence cannot be relied upon where he is an unreliable historian suffering from a legal incapacity. The insurer submits the various histories provided by the claimant prior to 3 May 2024 should not be ignored where there was no suggestion of legal incapacity given the clinical records of Mr Tsolis, the claimant’s ability to represent himself in his workers compensation proceedings for a time and his presentation at the medical examination with Medical Assessor Oates on 3 August 2023.
The claimant has provided the following histories:
·        on 23 August 2022 at 1.55pm he told police he remembers his right leg going numb before blacking out;
·        in the notification to AAMI on 23 August 2022 he reportedly stated a car was coming for him on his side of the road causing him to swerve and hit an electrical pole;
·        on 1 October 2022 Mr Tsolis reported the claimant said a vehicle he was travelling in was forced to swerve due to an oncoming vehicle veering into his lane causing him to collide with a power pole;
·        in an Application for personal injury benefits dated 23 December 2023 he nominated the wrong date and nominated the vehicle he was driving as most at fault for the accident;
·        in his statement dated 3 February 2024 he reported the accident was caused by a utility with strong headlights trying to overtake and coming onto his side of the road causing him to pull his car to the left and hit a power pole;
·        on 10 February 2024 Dr Abdelgayoom reported a car was trying to overtake another car, which moved to his lane, he tried to avoid it and hit the electrical post;
·        on 7 March 2024 Dr Lam recorded a car travelling on the opposite side of the road started to swerve towards him, he surmised it was attempting to overtake the one in front and he swerved to the left and collided with a post;
·        in an Application for personal injury benefits dated 18 April 2024 he described a car coming towards him, a utility that was quite high with bright headlights trying to overtake someone;
·        in his document titled “Factual Statement and merit of this claim” dated 18 May 2024 the claimant reported a utility with bright headlights trying to overtake someone came towards him on his side of the road so he pulled his car to the left and hit a power pole;
·        on 18 March 2025 Dr Shahzad reported the claimant noticed an oncoming vehicle swerving into his lane, he swerved to the left, lost control and collided with a pole, and
·        on 8 April 2025 Dr Bertucen reported an oncoming car drifted into his lane, he swerved to miss it and hit a roadside telegraph pole.
Other than the version provided to Police on the day of the accident the claimant has consistently over several years and as recently as April this year stated he lost control when an oncoming vehicle swerved towards him causing him to lose control and collide with a telegraph pole.
Whilst I have some concerns about the reliability of the evidence of Mr Pement, his assertion that there were no other westbound vehicles travelling directly ahead of him is borne out by the CCTV footage.
Whilst I am cognisant of the need to use caution when considering photographic evidence, the CCTV footage shows clearly that there was no oncoming vehicle overtaking another vehicle which swerved into the claimant’s lane causing him to lose control of his vehicle.[26] I am satisfied as to the provenance of the CCTV footage having regard to the evidence of Alex Nelson.
[26] Blacktown City Council v Hocking [20098] NSWCA 144.
The claimant’s behaviour following the accident is odd, where Mr Pement suggests he saw the claimant get out of his vehicle about 30 seconds after the collision and lean on the roof of his car and wave traffic past. Whilst I do not discount the possibility his behaviour was due to a head injury having regard to the impact of the collision the extent of any head injury is uncertain where the claimant did not wait at the scene for either Police or Ambulance to attend but asked a passing driver, now nominated as Thomas Nyakeriga to drive him home. There is no evidence as to any Glasgow Coma Score following the accident and no evidence of any period of post-traumatic amnesia. Indeed, the claimant was apparently well enough to attend Bass Hill Police Station later the same day to ascertain the whereabouts of his car.
The claimant did not attend a hospital and nor did he attend his general practitioner, although in his statement dated 3 February 2024, he stated he consulted a GP at Yagoona Medical Centre
The medical records show the claimant attended Dr Abdelgayoom on 6 September 2022 in relation to the cancellation of his driving licence, but he did not disclose his involvement in the accident until 10 February 2024 some 18 months after the accident. It seems the claimant only disclosed his involvement in the accident to Mr Tsolis, psychologist and that was not until 1 October 2022 even though the claimant saw him on 3 September 2022.
Regardless of the claimant’s legal incapacity I consider his evidence to be unreliable.
It is clear from the CCTV footage and the evidence of Mr Pement that there was no utility with bright lights which veered onto his side of the road and caused him to collide with the telegraph pole. It is inconceivable that [CMB] would not have informed police about the presence of an oncoming vehicle when he attended Bass Hill Police Station the same day.

I discount the evidence of Nancy where her full name has not been disclosed, where there is no signed statement from her, where there is no cogent evidence as to where she was on the road or as to what she saw and where she did not provide a version of events to the police at the time. I find the evidence of Nancy to be contrived.

Facts in dispute

The following facts are in dispute:
(a)    whether an unidentified oncoming vehicle veered onto the claimant’s side of the road causing him to swerve and collide with the telegraph pole;
(b)    whether an unidentified vehicle exiting a driveway either collided with the claimant’s vehicle or caused the claimant’s vehicle to swerve and collide with the telegraph pole, and
(c)    whether the claimant was driving at an excessive speed.

Did an unidentified vehicle veer onto the claimant’s side of the road

The CCTV footage has been reviewed by the insurer’s expert witness Ms Tia Gaffney. In her report dated 10 February 2025 she reported the CCTV footage demonstrated that all vehicles other than the claimant were travelling within their respective lanes and does not support a version where a westbound vehicle veers into the eastbound lane prior to the claimant’s impact with the pole.
The westbound SUV demonstrated a normal travel path as it approached the claimant’s vehicle, and it did not have “very bright headlights” as reported by the claimant.
Ms Gaffney notes that the headlight span from the claimant’s vehicle begins to light up the pole and the adjacent nature strip from a significant distance suggesting its path was diverted to the left of the eastbound lane prior to impact. This differed from the headlight spans of the three eastbound vehicles which preceded the claimant’s vehicle, suggesting they maintained their path of travel within the eastbound lane.
Having regard to the unreliability of the claimant’s evidence and the expert evidence of Ms Gaffney I do not accept there was an unidentified oncoming vehicle which veered onto the claimant’s side of the road causing him to swerve and collide with the telegraph pole.

Did an unidentified vehicle exiting a driveway cause the claimant to swerve

The claimant, having regard to the presence of the CCTV footage now submits that the accident occurred when he was caused to swerve to avoid a vehicle exiting a driveway on his left-hand side as he drove along Christina Road. This version of events was only recently adopted by the claimant apparently when it became clear that the version of events described by the claimant was not borne out by the CCTV footage.
The difficulty with accepting this version of events is that it differs from the version provided by Mr Pement. Mr Pement in a statement provided two years after the accident stated he saw a green coloured minivan exiting a driveway about 20 metres west of the pole. He described hearing an impact sound and thought the front of the minivan had clipped the mid passenger side of the claimant’s car causing it to spin around several times and go up into the air before colliding with the telegraph pole, with the rear of the claimant’s car hitting the pole first.
However, the reliability of Mr Pement’s evidence is also in issue where:
(a)    there was no damage to the passenger side of the claimant’s car consistent with an impact with the front of the green minivan;
(b)    there was no damage to the rear of the claimant’s car consistent with the rear of the claimant’s car hitting the pole first;
(c)    Mr Pement described driving past the minivan and did not see any damage to the front of the van;
(d)    the version of events described by Mr Pement in his statement involving a green coloured minivan is inconsistent with the text message he sent to his partner shortly after the accident where he stated the claimant’s vehicle was clipped by a 4-wheel drive pulling out and his 000 call where Mr Pement reported the other vehicle was a dark coloured SUV;
(e)    the CCTV footage does not support a version of events consistent with his 000 call where Mr Pement reported the claimant’s car became airborne, with his text message to Mandy where he stated the claimant’s car literally flew several meters in the air spinning around and with his statement where he said the claimant’s car spun around and went in the air.
(f)    the CCTV footage does not support a version of events where the rear of the claimant’s vehicle hit the pole first.
(g)    Mr Pement, himself expressed doubt as to what he actually saw, questioning whether an impact actually took place between the minivan and the car given it was dark, it was 5am in the morning, it was some distance away and it all happened very quickly.
(h)    there is no other record verifying the involvement of an unidentified vehicle exiting a driveway onto Christina Road;
(i)    there is no evidence to establish the presence of a driveway onto Christina Road about 20 metres west of the telegraph pole; and
(j)    where the CCTV shows that the claimant’s vehicle travels towards the pole in a straight line, with no evidence of deviation caused by either a collision or the need to swerve to avoid a collision with a vehicle exiting a driveway onto Christina Road.
The claimant has sought to rely upon the letter of Mr Kevin Muthoni dated 20 January 2025. However, where that is not a contemporaneous record, it is difficult to believe that well over two years after the accident when asked by the claimant if he had come across a damaged green minivan Mr Muthoni is able to identify seeing such a vehicle on the day of the accident with damage on the left front side. I do not accept this occurred. In any event it is not clear from the evidence of Mr Pement whether he thought he saw a green minivan or a dark coloured SUV. It is also inexplicable that Mr Muthoni saw a green coloured minivan with damage on the left front side when there was no corresponding damage to the side of the claimant’s vehicle. I do not consider the account of Mr Muthoni to be credible.
The evidence supported by the expert opinion of Ms Gaffney does not support the presence of a vehicle allegedly exiting a driveway on Christina Road causing the claimant to swerve to avoid a collision where:
(a) the CCTV footage does not show a vehicle coming out of a driveway on or near the accident scene, and
(b) the CCTV footage does not show the claimant’s headlights swerving to the right then to the left, trying to avoid a collision with a vehicle on the left.
Given the inconsistencies and where even Mr Pement was not confident about what he saw at the time of the accident I am not prepared to find the claimant either collided with or swerved to avoid an unidentified vehicle exiting a driveway onto Christina Road 20 metres west of the telegraph pole, thereby causing the accident.

Whether the claimant was driving at an excessive speed

The claimant asserts the speed limit was 50kph and that was the speed he was travelling at the time of the accident. However, where I do not accept the reliability of the claimant’s evidence and where he has now abandoned a version of events involving an unidentified vehicle veering onto the incorrect side of the road and adopted a version of event where the accident was caused by the presence of an unidentified vehicle exiting a driveway onto Christina Road I am not prepared to accept he has any real recollection of what occurred. I do not accept the claimant’s evidence as to the speed he was travelling at the time of the accident.
Mr Pement stated the claimant was travelling well in excess of the speed limit for the area. Indeed, he stated the claimant was " flying”.
Having regard to my concerns about the reliability of Mr Pement’s evidence and noting his statement was provided two years after the accident I am not prepared to rely upon his evidence as to speed in the absence of corroborative evidence.
The insurer has relied upon the expert evidence of Ms Gaffney. She noted the relevant speed at the site of the accident was 60kmph.
In her report dated 10 February 2025 she was able to rely upon the CCTV footage to calculate the claimant’s average speed between two points. She noted the speed of the claimant’s vehicle appeared to be in the vicinity of 80kmph when it impacted the pole where it had travelled a similar distance to the three eastbound vehicles over a short time interval.
Ms Gaffney was also of the opinion that the damage to the utility pole, the significant damage to the front of the claimant’s vehicle and the motion of the vehicle post impact supported an estimated 80 kmph speed.
I accept that the claimant was travelling at an approximate speed of 80 kmph in a 60 kmph zone at the time of the accident.

WAS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT

There is no dispute [CMB] was injured in an accident involving the use or operation of a motor vehicle in accordance with s 1.4 of the MAI Act.
The burden of proof in establishing that the accident was caused mostly or wholly by the fault of the claimant rests with the insurer.
In AAI Limited t/as GIO v Evic Mitchelmore J held:
(a) sections 3.11 and 3.28 operate to cease the payment of statutory benefits to a person under Div 3.3 and 3.4, respectively, if one of the two conditions in subs (1) is satisfied. The focus of the condition, and the relevant enquiry, in paragraph (a) is whether the motor accident, as defined in s 1.4, was caused “wholly or mostly by the fault of the person”, being the injured person who is in receipt of the relevant benefits. The qualifiers “wholly or mostly” inform each other and are intended to address the same mischief, namely, contributory negligence;[27]
(b) where there is more than one motor vehicle involved in a motor accident, or where a motor accident involves a pedestrian, s 3.11 accommodates an assessment of the contributory negligence of the claimant as per Allianz Australia Insurance Limited v Shuk[28];
(c) 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. The sections (and s 3.36) use the word “fault” accompanied by a qualifying phrase (“wholly or mostly”) which clearly invokes contributory negligence. … 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;[29]
(d)    the words “wholly or mostly” do not require comparison of the acts of at least two parties;[30]
(e)    as per Axiak v Ingram[31] in the context of a blameless accident the concept of contributory negligence requires an assessment of the extent to which the plaintiff departed from the standard of care he or she is required to observe in the interests of his or her own safety;[32]
(f)    both Axiak[33] and Davis v Swift[34] illustrate that the inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence (in cases involving what is now known as a “no fault accident”);[35]
(g)    an injured person may be “wholly at fault”, consistently with the enacted law that permits a finding of 100% contributory negligence[36], and
(h) the exercise to which s 3.38(3)(c) is directed, namely, assessing what is just and equitable in the circumstances of the case, is one that could be carried out in respect of the conduct of an owner driver in the context of a single vehicle accident.[37]
[27] AAI Limited t/as GIO v Evic [2024] NSWSC 1271 at [56]
[28] Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788 and Evic at [61]
[29] Evic at [62]
[30] Evic at [67]
[31] Axiak v Ingram 920120 82 NSWLR 36; [2012] NSWCA 311
[32] Evic at [68]
[33] Axiak v Ingram 920120 82 NSWLR 36; [2012] NSWCA 311
[34] Davis v Swift [2014] NSWCA 458, 69 MVR 375
[35] Evic at [69]
[36] Evic at [70]
[37] Evic at [73]
Having concluded the accident was a single vehicle accident I am required to determine the extent to which the claimant’s failure to take reasonable care contributed to the accident.
The reasonable care duty was reiterated in Vairy v Wyong Shire Council.[38] The Court stated that the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care having regard to all the circumstances.
[38] Vairy v Wyong Shire Council [2005] HCA 62
In Manley v Alexander[39] the majority in the High Court stated at [12]:
“...the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events…”
[39] Manley v Alexander [2005] HCA 79
I have found that the claimant did not control the speed and direction of his vehicle given he was driving at an excessive speed at the time of the accident and that the path of his vehicle diverted to the left of the eastbound lane leading to impact with the telegraph pole.
Having found that the accident was caused by the failure of the claimant to take reasonable care the determination of contributory negligence under s 3.38(3)(c) of the MAI Act requires an assessment of what is just and reasonable in the circumstances.[40]
[40] Evic at [73]
In Serrao (by his Tutor Serrao) v Cornelius (No.2), a blameless accident case Sackville AJA considered what ameliorating factors were available to reject a submission that damages should be reduced by 100% for contributory negligence. He stated at [60]:
“In a blameless accident case, assuming Axiak v Ingram to be correctly decided, the reduction of damages awarded to a contributorily negligent plaintiff is not based on a comparison between the conduct of the plaintiff and that of the defendant. The question is how far the plaintiff has departed from the standard of care he or she is required to observe in the interests of his or her own safety.”[41]
[41] Serrao (by his Tutor Serrao) v Cornelius (No.2) [2016] NSWCA 231
A finding of 100% contributory negligence can be found where the departure from the standard of care is found to constitute “a worse possible case”. In the circumstances of this accident, notwithstanding my concern about the reliability of the claimant’s evidence I do not consider the accident was caused wholly by the fault of the claimant. There is no evidence of the claimant being either alcohol or drug affected at the time of the accident.
Arguably the ameliorating circumstances may include the claimant’s right leg going numb consistent with his report to police on the day of the accident and consistent with the report of Dr Abdelgayoom of 6 September 2022 who reported he suffered with numbness and weakness of the right leg post-surgery. On the other hand, the claimant was on notice of the forthcoming fitness to drive assessment relating to his musculoskeletal chronic pain and may have been aware of the risk associated with driving when he suffered with numbness and weakness of the right leg.
It is difficult to otherwise assess the claimant’s conduct in the absence of any hospital or other medical attendance following the accident. The assessment of contributory negligence is made more difficult by the unreliability of the claimant’s evidence and his lack of legal capacity.
However, I am satisfied the accident was caused mostly by the fault of the claimant where his contributory negligence or departure from the standard of care he was required to exercise in driving at an excessive speed and in failing to control the direction of his vehicle was greater than 61%.

CONCLUSION

For the purposes of s 3.11 of the MAI Act the claimant was mostly at fault for the accident.
For the purposes of s 3.28 of the MAI Act the claimant was mostly at fault for the accident.

COSTS

The claimant seeks the maximum regulated costs.
The insurer agrees the claimant is entitled to be awarded the maximum costs associated with two regulated miscellaneous claims assessments matters pursuant to s 3.11 and 3.28 of the MAI Act.
The claimant is entitled to recover the regulated costs of $1992 for each dispute in the total sum of $3,984 plus GST.

DE-IDENTIFICATION

I direct this decision be de-identified in accordance with rule 132 of the Personal Injury Commission Rules 2021 where the claimant is under a legal incapacity and having regard to the safety, health and wellbeing of the claimant.

[2025] NSWPIC 420

19 August 2025