Creary v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Creary v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 686
CLAIMANT:	Lincoln Creary
INSURER:	IAG Ltd t/as NRMA Insurance
MEMBER:	Terence O'Riain
DATE OF DECISION:	10 December 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant’s application for miscellaneous claims assessment of whether, under section 3.11, he was wholly or mostly at fault; parties’ questioned at hearing; conflicting versions of accident; claimant rode motorcycle in lane 1 of 4 approaching Pacific Highway intersection with insured driver in lane 2 in late afternoon traffic; claimant merged bike after indicating into lane 2 which he says he checked was clear and alleges insured collided with rear of bike causing injury; insured alleges claimant moved bike from lane 1 without warning; insured knew claimant was merging right; police and ambulance attended; eye witnesses were not questioned; no traffic infringement issued; insurer relies on expert report; Insurance Australia Limited t/as NRMA v Richards referred to in regards to onus of proof; Allianz Australia Insurance Limited v Shuk followed on assessing whether claimant’s conduct contributed to the accident; findings that both parties were consistent in evidence in all instances; expert relied on location of insured’s vehicle damage to support insured; member not satisfied expert report is persuasive; no submissions on expert report or contributory negligence; Held – insurer did not satisfy member that claimant departed from the standard of care; relative culpability and contributory negligence not assessed; claimant was not wholly or mostly at fault.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017 (MAI Act), the Commission’s assessment is: 1. For the purposes of s 3.11 of the MAI Act the motor accident was not wholly or mostly caused by the fault of the injured person (the claimant). 2. For the purposes of s 3.28 of the MAI Act the motor accident was not wholly or mostly caused by the fault of the injured person (the claimant). 3. The insurer pay the claimant’s exceptional costs, as agreed, or assessed. 4. The respondent’s solicitors are granted an uplift in the fees recoverable from the insurer.

REASONS

BACKGROUND

I assessed this matter on 18 October 2024. The insurer’s solicitor Alexandra Kyprianos instructed Sarah Warren of counsel. Lincoln Creary’s (the claimant) solicitor Sarah Starnovsky instructed Brendan Jones of counsel.
On 12 January 2023, the claimant sustained serious spinal injuries in a motor vehicle accident (the accident) when his motorcycle and the insured driver’s car came into contact at the M1 and Pennant Hills Road, Wahroonga intersection.
The insurer initially accepted liability for the claimant’s injuries under the Motor Accidents Injuries Act 2017 (MAI Act) and to pay the claimant’s treatment expenses and weekly payments for loss of earnings.
Mr Creary was unemployed at the time of the accident and receiving Centrelink benefits. Before the accident he was a painter. He had lost earlier employment due to a 2019 accident and had been homeless.
Mr Creary claimed statutory benefits when he filed an Application for Personal Injury Benefits 6 February 2023 in respect of injury sustained in the accident.[1]
[1] R4 of the insurer’s bundle, being the respondent. Documents are designated R.
After initially accepting liability for statutory benefits 5 October 2023 the insurer issued a further liability notice, in which the insurer declined liability for statutory benefits beyond 26 weeks post-accident. The decision was based on the claimant being wholly at fault.[2]
“We have declined your claim for personal injury benefits beyond 26 weeks because we consider you were wholly at fault for your motor vehicle accident and have sustained a non-threshold injury. This information is based on the available information which indicates you have failed to merge lanes safely, travelling into the path and colliding with a vehicle, which was consistently within its lane and did not merge at any time prior to the collision.”
[2] R6
The claimant applied for an internal review of that decision.
The insurer’s internal review decision dated 21 November 2023 affirmed the decision denying liability.[3]
“The evidence before me indicates that at around 4:30pm on 12 January 2023, you were riding your motorcycle, bearing registration KCS29, North in lane 1 of 4 on the M1 Motorway, at the intersection of Pennant Hills Road Wahroonga NSW when you attempted to merge into lane 2 of 4 and collided [sic] into the path of the Insured Driver who was already travelling in the same direction as you, in lane 2 of 4.
The evidence before me indicates that the version of events provided by the Insured Driver [and you] are conflicting in nature. However, I find that the images of the damage on the Insured Driver’s vehicle and the Property Damage letter corroborate and are consistent with the Insured Driver’s version in that you merged into lane 2 of 4 into the path of the Insured Driver, when it was unsafe to do so.
…
I find that you failed to exercise reasonable caution and failed to give way and keep a safe and proper lookout when you attempted to merge into lane 2 of 4 and collided [sic] directly into the path of the Insured Driver who was already travelling in the same direction as you, in lane 2 of 4.
Accordingly, I find you wholly at fault for the MVA and your injuries.”
[3] R7.
The claimant applied for a Miscellaneous Claims Assessment on 6 March 2023.
The miscellaneous claim is relevant to Mr Creary’s entitlement to statutory benefits under Part 3 of the MAI Act.
Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
Section 3.1 of the MAI Act states benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 26 weeks (as the legislation stated at the time of the subject accident) after the accident if the injured person only has threshold injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident.
As Mr Creary suffered spinal fractures in the collision the threshold injury issue is not disputed.
A motor accident is considered to be caused “mostly by the fault” of a person if their contributory negligence is assessed as greater than 61%.
If I find the accident was caused wholly or mostly by the fault of the claimant, he will not be entitled to ongoing payment of statutory weekly benefits or payment of treatment and care expenses under the MAI Act.
The parties agree that Schedule 2, cl 3 provides the Personal Injury Commission (Commission) with jurisdiction to determine whether Mr Creary is wholly or mostly at fault in respect of his treatment and care benefits (Schedule 2, cl 3(d) & (e)).
The parties agreed the insurer bears the onus of proving that the claimant was wholly or mostly at fault. This means the insurer must offer evidence to establish facts that prove that fault. The claimant does not need to prove anything beyond his involvement in the accident.[4]
[4] Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909.
Section 5R of the Civil Liability Act 2002 (CLA) applies to these proceedings, which requires a tribunal–when it is alleged, a harmed person contributed to that harm–to assess what precautions that person took to avoid being harmed. In this case the Commission must assess whether the claimant contributed to the subject accident by breaching his duty of care to himself.[5] This will result in whether a claimant was wholly or mostly at fault being apportioned as a per centage.
[5] Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788; 104 MVR 405
The parties provided the following joint statement of agreed facts:
“1.      The motor vehicle accident occurred on 12 January 2023 along Pennant Hills Road, Wahroonga at about 4:30pm.
2.       Both the claimant and the insured driver were travelling northbound.
3.       The weather conditions were ﬁne and dry.
4.       The speed limit on the relevant stretch of road was 70 kph at the time of the accident.
5.       The collision occurred in Lane 2 of 4.
6.       The police were unable to determine who was at fault for the accident.”
The insured driver and Mr Creary attended for questioning. From reading the submissions it appears that the claimant and insured driver’s credit is not impugned, but they give inconsistent versions of how the accident happened.
The claimant’s counsel questioned the insured driver first and then the insurer’s counsel questioned the claimant. I noted that the claimant’s counsel asked two questions in re-examination.

DOCUMENTS CONSIDERED

The parties provided evidence bundles dated 15 October 2024 for the insurer and 16 October 2024for the claimant.
(a)      NSW Ambulance Report;
(b)     NSW Police report plus extracts from notebooks and body cam video;
(c)      photographs of the accident scene with claimant’s motorcycle lying where it slid to after impact and the insured driver’s car pulled over to the right of lane two;
(d)     photos extracted from police body cam video;
(e)      Application for Personal Injury Benefits dated 6 February 2023;
(f)      photographs of damage to insured driver’s Mazda CX5 at smash repair shop;
(g)      insured driver’s statement dated 5 May 2023;
(h)     NRMA property damage insurer’s letter to claimant dated 14 June 2023 alleging claimant was at fault based on that car’s owners report;
(i)       AHC Investigations completed claimant’s questionnaire dated 26 June 2023 and answered on 6 November 2023;
(j)       AHC Investigations reports dated 29 June 2023 and 28 September 2023;
(k)      Attending police officer Constable Jack Renouf’s transcribed interview dated 20 September 2023;
(l)       insurer’s liability notice dated 5 October 2023;
(m)    Application for internal review dated 1 November 2023;
(n)     Certificate of Determination – Internal Review and reasons dated 21 November 2023;
(o)     Michael Griffiths (Road Safety Solutions) forensic engineers reports dated 19 April 2024 and 10 September 2024;
(p)     claimant’s statement dated 11 September 2024, and
(q)     joint statement of agreed facts.

The relevant law

This is a miscellaneous assessment under Schedule 2 (3), (d) and (e).
See appendix A for relevant law.

EVIDENCE

Application for personal injury benefits

In the Application for personal injury benefits dated 6 February 2023, the claimant provided the following description of the accident:
“I was riding in the far left lane. Put my (indicator) blinker on to move into the right hand lane, before merging into [the] right lane. I looked in my mirror on motorbike. Turned my head to check blind spot. No car was in view. I then proceeded to move into [the] right lane. I rode for another 3 – 5 seconds in [the] right lane – next momet [sic] I was on the ground.”

The claimant’s statements and recordings of his version of the accident

Members of Ambulance NSW attend the scene soon after the collision. The relevant case description notes: "OA Pt was motorbike riders [sic] and was travelling appro 60 – 70 km/h. Pt was struck from behind by a car and thrown from his bike. Pt slide(sic) for several metres and per bystanders rolled several times. Pt denies headstrike. PT ambulant postaccident…"
Although it does not say who provided this information, and the claimant gave evidence he did not remember what he said to the ambulance officers this note is probative. It was recorded contemporaneously, and it is not disputed that the officers had the chance to speak with the claimant and bystanders who saw at least the claimant rolling on the roadway while they examined and transported the claimant to hospital.
The police attending the accident wore body cameras, which provided almost contemporaneous photographs of the accident's aftermath.
Those photos show people in high visibility garments. The claimant's motorcycle is lying on its left side in lane number two, which is said to be its initial rest position after the insured's vehicle struck. The insured's vehicle is photographed moved further right out of lane number two onto a painted part of the road just past the pedestrian intersection.
There is a scrape mark which the forensic traffic expert retained by the insurer deduces is from the left side of the claimant's bike as it slid along the pavement after it was struck.
The scrape mark caused when the bike fell on its left side is squarely in the middle of lane two, which does not support the rider being positioned in the far left of the lane.
These photos were obtained via a direction for production from the New South Wales police and were referred to the insurer’s liability expert to comment on.
Soon after the accident the claimant attended Brisbane Water Police, where he provided the following version of the accident recorded in Constable Noble’s notebook on “7/2/23”:
“I was coming back home. I was going to take the old scenic highway. I was riding on Pennant Hills Road, and I was coming up to the big intersection where the highway is. I was going to change lanes. I saw cars turning into a side street, and looked in my mirror, and saw no cars there. After the intersection, I put on my indicator, checked my mirrors, looked over my shoulder, I changed to [the] lane on my right. When I was in the lane then, I felt a hit from behind. I don’t remember much at this point. I remember sitting up to have a cigarette, then police turning up, and breath testing me, and then going up to hospital at Westmead. Was travelling at 60 kilometres per hour and the weather was sunny.”
On 26 June 2023 AHC Investigators letter administered interrogatories to the claimant’s solicitors about the circumstances of the accident. The claimant’s solicitor replied by email on 6 November 2023 with answers pasted into the investigators letter as follows:
“1.      Please state in your own words, from memory, how the accident occurred?
A: I was travelling north on Pennant Hills Rd at Wahroonga in lane 1. I saw some traffic up ahead turning left and looked in my mirror and over my shoulder to change lanes. The lane was clear, and I indicated and changed into lane 2 just before or in middle of M1 intersection. I was traveling in lane 2 for approximately 5 seconds at approx 50-60kph when I was hit from behind. I was briefly knocked out and don’t remember much else. I saw my motorbike on the road and realised then that I was hit by a car.
2.       What time did the accident occur?
A: Approximately 4:30pm
3.       Where were you riding to at the time of the accident?
A: Home to Wyoming via the Old Pacific Highway. My bike is only a 125cc and can’t do the highway speeds…
14.      Compared to the position of the Motorway, when did you attempts to merge lanes?
A: I didn’t attempt to merge lanes. I had already merged lanes in or just before the M1 intersection.
15.      When you attempted to change lanes, what distance were you from the insured vehicle? Again, I had not attempted to change lanes, I had changed lanes which was clear of vehicles, so I do not know if the insured vehicle was behind me in lane 1 and changed lanes at same time, however they were not in that lane when I changed into lane 2.
16.     Did you observe the driver of that vehicle at all?
A: No
17.      Did you see what direction she was facing?
A: No
18.      What portion of the vehicle struck you?
A: Front left.
19.      To what part of your body was struck?
A: None. She hit my bike.
20.      As a result of that, what happened to you?
A: I crashed and hit my head on the road and was told I was unconscious for a minute or so.
What did you do immediately following the impact?
A: I was in shock and walked across the road. I sat down and couldn’t get up. Ambulance took me to hospital.
Were there any witnesses that you are aware of?
A: There were lots of witnesses, however I was taken away in an ambulance and couldn’t speak anybody.”
The insurer’s AHC investigation said the left turning lane Mr Creary was moving away from was 75m before the intersection.
The claimant recalled that the insured driver apologised and asked if he were okay. The insured driver recollects in her statement there was no “real conversation” between her and the claimant.
The claimant’s statement signed 9 October 2024 paragraph 8 says:
“On 12 January 2023, at approximately 4:30 PM, I was riding my motorbike in the far left lane of three lanes along Pennant Hills Road in Wahroonga. I was wearing a helmet at the time. I was travelling at a speed of 50 – 60 km/h. I put my blinker on to indicate that I was merging into the lane to my right (the middle lane) before merging. I looked into my mirror on a motorbike, turned my head to check my blind spot and noted there was no car in view. I then proceeded into the middle lane. I rode for another 3 to 5 seconds in the right lane before I was suddenly rear ended. I was airborne, knocked off the bike and pushed a few meters (sic) away. An ambulance attended the accident site shortly after, and I was subsequently taken to Westmead Hospital by ambulance. At the hospital, I was referred to Dr Gray, orthopaedic spinal surgeon, for opinion and management.”
The insurer’s investigator interviewed Constable Jack Renouf the officer in charge of investigating the accident. He was called to the accident site by radio immediately after the accident. He had the opportunity to make observations about the placement of the claimant and insured driver’s vehicle and assess who had breached the Road Rules 2014 (NSW). He decided not to issue a traffic infringement notice, because he could not discern who was at fault in the accident.
Despite the claimant and insured driver agreeing that witnesses may have seen the accident the police did not obtain any neutral witnesses’ statements.

Claimant’s oral evidence

The claimant’s evidence did not vary from his past statements. It was apparent that his memory was cloudy, but he did not present any relevant discrepancies when the insurer’s counsel questioned him. I note that the claimant suffered severe spinal injuries, which would require heavy medication. It is reasonable to hypothesise that could affect his recall.

Insured driver’s statements

The insured driver’s statement to investigators dated 5 May 2023.[6] She states that she was travelling behind the claimant’s motorcycle.
"I was travelling north on Pennant Hills Road in the second lane to the left. As you approach the M1 turn off, there are two lanes the turn right onto the M1 and two that go straight ahead. I was intending to go straight ahead… I was travelling about the speed limit or slightly under. There was a motorcycle in the left lane near the gutter. He was travelling in the same way as me and probably just in front of me. I may have been in his blind spot… As I got alongside the M1 turn off, the motorcycle, without warning, just turned right and rode into the front left of my car. I think he must have missed a turn to the M1 and attempted to cross all lanes of traffic. The impact was right near my front headlight. There were no indicators used before he made the turn… The bike fell to the left and forward a bit after the impact. The rider stood up and he was in front of me at that time.… After he moved out from the front of my car (I) pulled into the right lane and stop my car." (my emphasis)
[6] R8.
The insured driver’s version to the police was:
“I was in lane 2, at about 4:45, travelling north on Pennant Hills Road, crossed with Pacific Highway. The motorbike was on my left, and seemed he wanted to turn right, onto the Pacific Highway. He cut into my lane and hit the front left side of my vehicle. He came off the bike, and I pulled over, and he got up, and I called the police.… Fell to the left and forward a bit after the impact.” (my emphasis)
She told the police the claimant “stood up and he was in front of me at that time.”

She had her two children in the car.

Insured driver’s oral evidence

Ms Lear gave evidence about the mechanism of the accident consistent with her statements. After the claimant’s version was put to her, she maintained the claimant’s turned into her path without indicating.
Soon after the accident she called various hospitals and police station seeking information about the claimant’s condition.
It was put to her that this concern indicated a “guilty mind.” She denied that.
She said she had been aware of the claimant’s presence in the lane to the left of the one she was travelling in for a significant time.
She referred to her own credit saying words to the effect of “I am a good person, and I always try to tell the truth.” She repeated similar assertions.

Expert reports

As the parties offer such diverse versions of the accident the insurer instructed Michael Griffiths (Road Safety Solutions) to provide a forensic engineer’s report dated 19 April 2024 and a supplementary report dated 10 September 2024 to assist its case. Michael Griffiths is a recognised expert, qualified to provide expert opinion on crash dynamics and injury mechanisms.
The engineer comments in the later report that the claimant's and the insured's versions have not varied significantly in any of the source material.
The expert relies on the parties' statements referred to above, the property damage letter and photographs taken at the site and repair shop.
Road Safety Solutions first report dated 19 April 2024 comments:
“Photograph 4 – This is the only side on photo supplied depicting the front of the insured’s vehicle before removal of the bumper cover. The lack of damage to the front of the left front panel is more consistent with initial contact between the two vehicles coming from sideways motion of an object, in this case the motorbike, moving rightward into impact with the car, rather than the front of the car having initial impact with the rear of the bike.”
Paragraph 2.3 of the first report titled Reasoning and deduction states
“Based on the reasoning processes set out in the captions for Photograph 4, it is deduced that the pattern of damage appears to be more consistent with the bike initially having sideways contact with the car then, because of the greater speed of the car, some rearward compression occurring on the front of the front left mudguard panel.
However, it is possible the front components deflected elastically, then rebounded. Hence it is deduced that whilst, based on the damage pattern it may be more probable that the bike moved sideways into contact with the faster moving car, this is an assessment on probabilities, not an absolute determination.”(my emphasis)
At paragraph 4. 3 titled “Reasoning and deduction” he opines
“The physical evidence of the photographs depicting the damage to the front of the car, on the assumption that the car was travelling centrally in its lane, shows that the bike was travelling to the very left of the lane.
This is the most compelling evidence available to resolve the conflicting accounts. (my emphasis)
A safety conscious motorbike rider should have been travelling near the centre or to the right of the lane so as to provide a buffer from vehicles in the adjacent No. 1 Lane.
It would be both:
- most unusual for a bike which had been travelling in a lane for 5 seconds to be travelling on the extreme left of the lane, and
- unsafe road positioning for the bike to have been travelling in that position for 5 seconds,
given that he had first-hand awareness that there was traffic slowing ahead, and vehicles seeking to exit from the No. 1 Lane. His extreme leftward position meant that he had no buffering from other vehicles attempting to move from the No. 1 into the No. 2 Lane.”
He offers further information from the NSW Government’s Motorcycle Riders’ Handbook on safe buffering lane positions for motorbikes and other aspects of motorbike riding.
Paragraph 3.4 – reasoning and deduction
“Note that the on-scene photographs supplied show that the bike and the car ended up being beyond the intersection. This is deduced to be more consistent with the bike changing lanes within the intersection, rather than well before the intersection.
Note, this is an assessment based on probability, not an absolute determination.” (my emphasis)
Mr Griffiths also writes at paragraph 6.2 after acknowledging the competing theories of the accident mechanism:
“The physical evidence of the photographs depicting the damage to the front of the car, on the assumption that the car was travelling centrally in its lane, shows that the bike was travelling to the very left of the lane… This is the most compelling evidence available to resolve the conflicting accounts.” (my emphasis)
At paragraph 6.3 Mr Griffiths answers specific questions. He is asked to describe the likely collision dynamics based on the available evidence.
“The insured car driver says that the bike simply changed into the No.2 lane, which was travelling faster than the adjacent No.1 lane. The outcome of this was that the rear of the bike came into contact with the left front corner of the car.
The claimant says before changing lanes, he looked around and there was no car there. He then changed into the No.2 lane and the car came into impact the rear of his bike…
The alternative is that the bike rider simply didn’t look adequately, and that the car was there in the adjacent No. 2 lane.
In making this determination, what is known is that the bike rider reports that vehicles were turning off to the left and this was slowing down traffic, and his motivation for getting out of the No. 1 lane because there were slower vehicles ahead.
A possible outcome of this is that the writer had already been slowed down by these left turning vehicles.
The damage pattern to the front left corner of the car is more consistent with the car driver’s version than the rider’s version.
The extent of damage seen on the car is indicative of a moderate difference in velocities of the two vehicles, so that, if the rider had looked adequately, he should have seen the car.
In conclusion, by the deductive reasoning process set out here, the physical evidence of the location of the contact between the car and the motorbike on the extreme left front corner of the car indicates that the motorbike was on the very left of the lane when the contact between the two vehicles occurred, and the lack of an evident frontal component of damage where the damage commenced on the car, is more consistent with the motorbike moving sideways into contact with the car, so that initial contact occurred just to the rear of the left front corner of the car.
The most compelling evidence available to resolve the conflicting accounts is the physical evidence of the location of the damage to the extreme left of the front of the car, from which it is deduced that the motorbike was on the extreme left of the lane when the car came into impact with it…
In conclusion, it is deduced that it is more probable that the bike rider changed lanes without warning, and without checking adequately for vehicles already in the No. 2 lane.” (my emphasis)
Mr Griffiths opines that the rest position of each vehicle is consistent with the rider’s report the collision occurred approximately midway across the intersection. He also opines the rider caused the crash because he did not look adequately before changing lanes.
Finally, he opines the rider would have waited until the lane was clear if he had looked adequately. The insured driver could not have avoided impact with the bike if the insured driver’s version is accepted.
In Mr Griffiths’ later report dated 10 September 2024[7], he addresses police notebook extracts and on scene body cam footage. The notebook extracts did not add to the information already supplied, but the body cam vision provides additional information including:
(a) the bike’s rest position being on its left side in front of the insured car in the number two lane, and
(b) scrape mark from the bike commencing from the left of the photo, which is just beyond the intersection.
[7] R20.
He reports that the statements are contemporaneous, and each party has been consistent in putting their story to various agencies.

Insurer’s submissions

I have reviewed the insurer’s bundle and notes from the assessment conference.
The most recent submissions provided were dated 21 March 2024, in reply to the claimant’s miscellaneous assessment application. cannot discern any submissions on why I should accept the expert liability reports dated 19 April and 10 September 2024 as persuasive.
My recollection when I asked Ms Warren what weight I should give these reports is that I already had her submissions.
The insurer submits that the subject accident was caused wholly by the fault of Mr Creary.
The road condition or any other contributing factors did not contribute to the accident.
The insurer highlights the photographs of the positioning of the vehicles and the damage sustained to the insured driver’s vehicle [A6, Attachment 10 and pages 171-172 of the claimant’s application bundle] and submits that the most likely scenario consistent with the available evidence is that Mr Creary was attempting to merge into lane 2 from lane 1 when it was unsafe to do so.
Following Vairy v Wyong Shire Council [2005] HCA 34, 59 ALJR 492, a driver’s duty to other users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case.
Further, Rule 148 of the Road Rules 2014 (NSW) provides that a driver who is moving from one marked lane (whether or not the lane is ending) to another marked lane must give way to any vehicle travelling in the same direction as the driver in the marked lane to which the driver is moving. For this rule, “give way” means the driver must slow down and, if necessary, stop to avoid a collision.
The insurer says that Mr Creary breached his duty of care by failing to keep a proper lookout of, and to give way to, approaching vehicles in lane 2 of 4, prior to merging into lane 2 of 4. By failing to keep a proper lookout and to give way, Mr Creary performed an unsafe merge into lane 2 of 4 from lane 1 of 4 which resulted in the collision with the insured driver’s vehicle, which was already travelling in lane 2 of 4.
A reasonably prudent driver in the position of Mr Creary ought to have been able to keep a proper lookout, give way to approaching vehicles and merge when it was safe to do so, which would have avoided the accident that ensued.

Claimant’s submissions

The claimant submits on 6 March 2024 that in determining whether a claimant is wholly or mostly at fault an insurer is tasked with having regard to the whole of the evidence in a fair and measured way in effectively determining whether it has discharged its onus. It follows that this task is to have regard to the evidence as a whole and not merely prefer an account given by its insured unquestioningly.
Fundamental difficulties with the Internal Review Decision include that it erroneously relies upon what it has deemed as two critical pieces of evidence. A “Property Damage letter” and photographs of the insured vehicle taken at some stage after the accident when the vehicle has clearly been taken to some other location.
The letter referred to is a letter from NRMA (the same insurer determining this dispute) to the claimant dated 14 June 2023 concludes that the claimant was responsible for the damage to the insured vehicle. Difficulties with relying on this letter are obvious. The fact that the insurer’s property damage division determined the claimant to be at fault is not relevant and did not abrogate the insurer’s task pursuant to ss 3.11 and 3.28 of the MAI Act.
Difficulties associated with interpretation of photographs are well known and discussed in Blacktown City Council v Hocking (2008) Aust Torts Rep 81-956; [2008] NSWCA 144 at
[7]-[13] (Spigelman CJ), [167]-[171] (Tobias JA) and Goode v Angland (2017) 96 NSWLR 503; [2017] NSWCA 311 at [89]-[96] (Beazley P, Meagher and Leeming JJA agreeing). In essence photographs can be deceptive and mislead the trier of fact. Without acknowledging difficulties with the photographs, the insurer takes matters further to infer a mechanism of the accident. The claimant submits that this approach is inappropriate and without a proper basis. Factual findings must be supported by logically probative evidence: Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321; [1990] HCA 33 at [367].
The claimant observes that the photographs embedded in the insurer’s review decision are distinct from other photographs contained in the AHC Investigations report and submits that the insurer failed to discharge its onus in establishing that the claimant was wholly at fault (or mostly at fault) for the accident.
The claimant observes the following:
(a)   the claimant has provided a consistent account of his version of the accident, including that his motorcycle was struck from the rear after he had already established himself in the lane.
(b)   The insured driver concedes that she was aware of the presence of the claimant’s motorcycle ahead of her and told police that “he seemed he wanted to turn right” suggesting an awareness of the claimant’s intention to change lanes before he proceeded to do so.
(c)   The insured driver does not in any account given describe taking any evasive action.
The claimant submits there is no reliable evidence to suggest that the insured driver’s version of events should be preferred.

WAS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT

I note the agreed facts and adopt them as evidence in this decision.
The insurer only seeks that I make a finding that the claimant was wholly at fault. There are no submissions addressing contributory negligence. I must be satisfied there is sufficient evidence that allows me to feel actual persuasion that the claimant was wholly at fault.
The parties have provided lay evidence from the claimant and insured driver, first responders’ reports and notes and photos of the insured car’s damage in a smash repair shop and body cam. The AHC Investigations reports have provided overhead maps and on location photographs showing surrounding streets.
If I cannot decide whether the insured driver’s version of events is more probable than the claimant’s version, the insurer will not have discharged its onus in establishing the claimant was wholly fault.
The critical issue to determine is whether the claimant was wholly at fault is whether the insurer makes out its claim that Mr Creary moved into from lane 1 to lane 2 of 4 without looking or activating his right-hand indicator. The insurer disputes the claimant’s version, which has Mr Creary moving right from near the gutter in lane one without warning into lane two and into the side of Ms Lear’s car.
The insured driver provided a statement dated 5 May 2023, which does not diverge from the version I heard during the conference.
The claimant’s evidence has remained consistent too.
During the conference, the insured driver appealed to me to consider her credit. Neither Mr Creary nor Ms Lear gave me any reason to doubt their credibility. They were both straightforward in telling their versions.
I do not intend to make credit an element in deciding between their versions.
In the circumstances of this claim, the parties’ divergence of evidence about Mr Creary’s actions before moving into lane two, the equal credibility of the parties, the lack of disinterested witnesses or conclusions from first responders satisfying the onus of proof are significant barriers to satisfying the onus of proof.
The police who obtained both parties' statements soon after the accident, were unable to assess fault and issue traffic infringement notices because the only evidence were both drivers' statements, which conflicted.
The insurer relied on the NRMA property damage file to make its decision against Mr Creary to cease benefits.
Although the insurer’s internal review decision relied on the NRMA property damage conclusions and photos taken at the repair shop to affirm the insurer’s decision I do not propose to give any weight to the property damage decision apart from qualified consideration of the photographs taken at the repair shop included in the insurer’s bundle which was referred to in the insurer’s expert’s reports.
Forensic engineer Michael Griffiths’ reports dated 19 April 2024 and 10 September 2024, although not referred to in the claimant’s or insurer’s submissions are meant to assist the insurer to persuade me that its version is more probable.
| agree with the engineer’s comments in the later report that the claimant's and the insured's versions have not varied significantly in any of the source material. Each party’s internal consistency was maintained during questioning at the assessment conference.
Ultimately, Mr Griffiths relies on the damage location on the insured’s car to support his hypothesis that the claimant moved into lane two without warning.
In the comments on photograph 4 in his report dated 19 April 2024 he says the lack of damage to the front of the left front panel is more consistent with initial contact between the two vehicles coming from sideways motion of an object, in this case the motorbike.
He repeats at paragraph 2.3 of the same report that the pattern of damage appears more consistent with the bike initially having sideways contact with the car then going forward. He does not explain how that could happen.
He opines the car was going faster causing some rearward compression occurring on the front of the front left mudguard panel. He concedes though that the claimant’s version that he was hit squarely in the rear is possible, because the front components could deflect elastically, then rebound. He concluded that it cannot be absolutely determined.
At paragraph 3.4 of that report, he reasons that the on-scene photographs supplied show that the bike and the car ended up being beyond the intersection. While he “deduced” that was more consistent with the bike changing lanes within the intersection, rather than well before the intersection he again concludes it cannot be an “absolute determination.”
Mr Griffiths emphasises that Mr Creary was riding unsafely because he was riding extremely left of lane two. The first report provides several pages of attachment about rider safety position within lanes. That material referred to numerous situations, which were not relevant to this case.
In the second report the expert notes the body cam photos. Noting that I must consider photos cautiously it appears to me they show that the scrape mark for the claimant’s bike is squarely in or just to the right of the centre of lane two. The expert does not comment except to note the scrape mark location starts just beyond the intersection. I think he means before the intersection to the right of the photos.
The lack of analysis on the scrape mark and bike position is important. The bike falling and sliding into the centre of lane two does not fit Mr Griffiths’ theory that Mr Creary went into the side of Ms Lear’s car or was positioned to the extreme left of lane two when it came into contact with Ms Lear’s car.
The forensic engineer’s reports only address the damage to the insured’s car. There has been no analysis of the claimant’s bike to check if it had operative indicators or where the collision damage was located. Neither the police or the forensic engineer examined available closed-circuit television (CCTV), or video taken by other witnesses. There were no disinterested witnesses questioned at the scene, despite the police arriving swiftly and both witnesses stating people were assisting them.
Reading and re-reading Mr Griffiths’ reports and the references to positioning of the car’s damage being “the most compelling evidence available to resolve the conflicting accounts,” does not reassure me that he had access to enough evidence to make sense of the conflicting versions. Accordingly, those reports do not assist me.

The ambulance notes are more compelling because they are taken within minutes of the accident. The officer notes the claimant told him he was “hit from behind.” This records the claimant’s immediate impression. It also refers to bystanders telling the attending ambulance note taker they saw the claimant rolling over on the ground from the impact.
The insured’s evidence is that the claimant went into the side of her car near the front to the extreme left of lane two, which is less supportive of a hit from behind thrusting the bike ahead of her in lane two.

Did the claimant depart from the standard of care and if so, how?

The insurer has not satisfied me that the claimant departed from the standard of care expected of a reasonable person in his position for the following reasons.
The claimant consistently maintained a version of the accident where he is keeping a proper lookout and behaves as a reasonable person operating his motor bike in the conditions. He describes looking to his right and behind him, seeing it is safe to turn then indicating before moving to his right into lane two. He says he travels for three to five seconds then feels a force hit him in the rear of the bike.
Apart from being aware that Mr Creary may have intended to move right and the possible need to allow him to merge, Ms Lear’s conduct as she describes it does not support an allegation, she departed from the necessary standard of care either, but the insurer’s evidence does not rebut the claimant’s version.
The insured driver’s evidence and the expert reports are not sufficient to satisfy me that the claimant departed from the necessary standard of care or contributed to the accident at all.

Costs

The insurer seeks the Commission’s order under s 8.3 (4) of the MAI Act to permit its lawyers to recover legal costs for the services provided to the insurer, as well as the claimant’s costs for legal representatives incurred in connection with this miscellaneous assessment.[8]
[8] Sub-section 8.3(4) of the MAI Act provides:
“An Australian legal practitioner is not entitled to be paid or recover legal costs for any legal services provided to a party to a claim for statutory benefits (whether the claimant or the insurer) in connection with the claim unless payment of those legal costs is permitted by the regulations or the Commission.”
The insurer relies on AAI limited t/as GIO v Moon [2020] NSWSC 714 (Moon) at [128] in support of this application. Justice Wright’s comments confirmed s 8.3(4) empowers the decision making body to permit the insurer’s legal representatives to be paid legal costs in excess of the maximum legal costs permitted by the Motor Accident Injuries Regulations.
Although, this decision predated the Commission, I agree with the insurer’s submissions that it applies to proceedings in this tribunal’s Motor Accident Division. Member McTegg applied Moon in her decision in Grinter v CIC Allianz Insurance Limited [2024] NSWPIC 267 at [144] that each party may pay legal representatives beyond the regulated fee. Such orders were not dependant or reflective of the outcome.
I agree with Member McTegg’s comments that lawyers would not be prepared to undertake complex matters, including retaining counsel if they could not recover legal costs for such services, which exceed the regulated costs.
The dispute before me involved two diverse versions of how the accident happened. Once insurer had expert evidence, which in its estimation could have supported the insured driver’s version it was bound to maintain its position that the claimant was wholly at fault.
I agree with the insurer’s submissions this was a complex liability dispute which required a contested hearing with careful preparation and consultations, although I would not have found the insured owner’s input to be relevant to resolving the facts in issue.
The insurer bore the evidentiary burden to prove the claimant was at fault, so it would be unreasonable to permit its lawyers not to be paid in excess of the regulated amount.
I direct that the insurer’s legal representatives are entitled to recover reasonable legal costs from their client in connection with these proceedings.
The parties reached an agreement as to costs and consent to the following directions:
(a) the insurer pay the claimant’s exceptional costs, as agreed, or assessed, and
(b) the respondent’s solicitors be granted an uplift in the fees recoverable from the insurer.

CONCLUSION

Having decided the claimant did not depart from the reasonable standard of care, it follows that the claimant is not wholly or mostly at fault following ss 3.11 and 3.28 of the MAI Act.
It follows that where the claimant was not wholly or mostly at fault for the accident, he is entitled to payment of statutory benefits beyond the first 26 weeks after the accident in accordance with ss 3.11 and 3.28 of the MAI Act.

APPENDICES

Appendix A

Relevant law

MAI Act s 1.4 defines motor accident as follows:

“‘motor accident’” means an incident or accident involving the use or operation of a motor vehicle that caused the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—

(a) the driving of the vehicle, or

(b) a collision, or action taken to avoid a collision, with the vehicle, or

(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”

MAI Act Schedule 2 (3) The following matters are declared to be miscellaneous claims assessment matters for the purposes of Part 7—…

(d) whether for the purposes of section 3.11 (Cessation of weekly payments after 52 weeks to injured persons most at fault or with threshold injuries) the motor accident concerned was caused wholly or mostly by the fault of the injured person,

(e) whether for the purposes of section 3.28 (Cessation of statutory benefits after 52 weeks to injured adult persons most at fault or to injured persons with threshold injuries) or 3.36 (No statutory benefits for at-fault driver or owner if vehicle uninsured) the motor accident was caused wholly or mostly by the fault of the injured person…

Section 3.11 of the MAI Act states:

“(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 minor 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.”

Section 3.28 of the MAI Act states:
“(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 minor 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%.
(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.”

Section 3.38(1) of the MAI Act is in the following terms:
“(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.”

Section 3.38(3) of the MAI Act is in the following terms:
“(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.”

Section 5R of the Civil Liability Act 2002 (CLA) sets out the principles that apply in determining the question of contributory negligence. Section 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.”

[2024] NSWPIC 686

10 December 2024