Custovic v Allianz Australia Insurance Limited
[2024] NSWPIC 605
•29 October 2024
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Custovic v Allianz Australia Insurance Limited [2024] NSWPIC 605 |
| CLAIMANT: | Ibrahim Custovic |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 29 October 2024 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant’s application for assessment of whether he was wholly or mostly at fault under sections 3.11 and 3.28 and degree of contributory negligence under section 3.38; claimant riding registered motor bike on a fire trail in the Southern Highlands; claimant behind his friend who was familiar with the trail; claimant lost control of his motorbike and crashed into bush at the side of the trail and was seriously injured; claimant lost control when his motorbike hit a fallen tree across the trail; his friend did not collide with the tree; stopped and turned to warn the claimant; findings made were the tree was obscured from the claimant’s vision by a bump in the road; claimant was unfamiliar with the road but had ridden into the bush and was riding out and was aware of the presence of a fallen tree and bumps in the road generally; claimant travelling at between 20 and 40 kms per hour; claimant’s friend tried to warn the claimant; Held – claimant’s contributory negligence assessed at 75% and therefore he was wholly or mostly at fault; AAI Limited t/as GIO v Evic applied and followed; Allianz Australia Insurance Limited v Shuk, Axiak v Ingram, and Davis v Swift considered; costs allowed and assessed in the sum of $3,300. |
| DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. The degree of the claimant’s contributory negligence is assessed pursuant to s 3.38 of Motor Accident Injuries Act 2017 (the Act) at 75%. 2. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant. 3. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant. 4. The amount of the claimant’s costs in the matter is assessed at $3,300 inclusive of GST. |
STATEMENT OF REASONS
INTRODUCTION
On 24 September 2023, Ibrahim Custovic was riding his motorbike with a friend, on a fire trail near Yanderra and Yerrinbool in the Southern Highlands of New South Wales. Mr Custovic was very seriously injured when he lost control of his motorbike and collided with trees or scrub on the side of the fire trail. Mr Custovic made a claim for statutory benefits against Allianz the third-party insurer of his own motorbike under the Motor Accident Injuries Act 2017 (the MAI Act).
Two disputes arose in connection with Mr Custovic’s claim both of which were referred to the Personal Injury Commission (the Commission) at the same time for assessment and determination:
(a) a dispute about child-care under s 3.26[1], and
(b) a dispute about whether the claimant is wholly or mostly at fault for causing the accident pursuant to ss 3.11 and 3.28.[2]
[1] Proceedings numbered M93739/24-31-1.
[2] Proceedings numbered M93739/24-21-1.
The first dispute, which was a declared merit review matter was allocated to me as a Merit Reviewer but resolved without the need for determination under Division 7.5 of the MAI Act.
The remaining dispute is a miscellaneous claims assessment matter to be determined by me as a Member of the Commission under Division 7.7 of the MAI Act. While Allianz accepted liability to pay Mr Custovic statutory benefits for the first 12 months after the accident, Allianz has denied liability to pay ongoing statutory benefits. The insurer’s primary argument is that the claimant is wholly at fault and in the alternative that he is mostly at fault.
The claimant says that he is not wholly at fault. While he does concede there should be a finding of contributory negligence made against him, he says his contributory negligence should not be assessed at greater than 61% and therefore he is not mostly at fault.
I held a preliminary (tele) conference with the parties on 4 September 2024. Both parties said they had no further evidence to put before me and agreed the matter could be fairly determined on the papers. I set a timetable for final submissions and my determination of the matter on the papers.
On 14 October 2024, following the Supreme Court’s decision in AAI Limited t/as GIO v Evic,[3] the parties were contacted and given the opportunity to make further submissions, and a revised timetable was set for the delivery of these reasons.
LEGISLATIVE FRAMEWORK
[3] [2024] NSWSC 1272 (Evic).
Entitlement to statutory benefits
Mr Custovic’s entitlement to benefits is contained within 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. Mr Custovic was at the time of the accident and “earner” within the meaning of the legislation and has been receiving benefits for his lost earnings and his treatment and care.
Under s 3.1 of the MAI Act, benefits are payable to almost all persons regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11(1)(a) and 3.28(1)(a), an injured person is not entitled to statutory benefits beyond the first 52 weeks after the accident if the injured person has only threshold injuries (not an issue in this matter) or if “the motor accident was caused wholly or mostly by the fault of the [injured] person.”
While there is no definition of “wholly at fault” in the legislation, ss 3.11(2) and 3.28(2) provide a definition of the phrase “mostly by the fault” which is, if the claimant’s contributory negligence is assessed (in accordance with s 3.38 of the MAI Act) as greater than 61%.
Section 3.38 provides for the assessment of contributory negligence in accordance with “the common law and enacted law”.
Resolution of disputes about liability or fault
Dispute resolution in a statutory benefits claim is undertaken by merit reviewers, medical assessors and Members of the Commission.
The parties agreed that Schedule 2, cl 3 provides the Commission, constituted by a Member with jurisdiction to determine whether Mr Custovic is wholly or mostly at fault in respect of his weekly benefits (Schedule 2, cl 3(d)) and whether he is wholly or mostly at fault in respect of his treatment and care benefits (Schedule 2, cl 3(e)).
If the motor accident was not “caused wholly or mostly by the fault” of the claimant under s 3.38, but there is some contributory negligence assessed at 61% or less, then weekly benefits are reduced by the degree of the claimant’s contributory negligence. Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether ongoing weekly statutory benefits should be reduced for the claimant’s contributory negligence.
The Motor Accident Injuries Regulation 2017 (the Regulation) provides for legal costs in relation to each regulated miscellaneous claims assessment matters at 16 monetary units (currently the sum of $1,992) up to a maximum of 60 monetary units (currently $7,472).
SUBMISSIONS
Insurer’s decision making
On 17 October 2023 the insurer acknowledged receipt of the claim for statutory benefits on 24 September 2023 and accepted liability for the claim.[4]
[4] Page 26 of the claimant’s bundle.
On 18 December 2023, the insurer wrote to the claimant[5] advising that Allianz did not accept liability to pay for the claimant’s ongoing statutory benefits and that in Allianz’s view the claimant had no entitlement to damages. On 19 December 2024 the insurer sent another letter (by email) advising Mr Custovic’s his injuries were not threshold injuries but that he was “deemed” to be wholly at fault.[6]
[5] Page 34 of the claimant’s bundle – the letter is just over a page in length with 17 pages of attachments.
[6] Page 54 of the claimant’s bundle.
Application for internal review
Mr Custovic, at that time representing himself, sought an application for review saying:[7]
“I believe the evidence confirms I was not speeding (travelling 20 – 30 km/hr). I was keeping a proper lookout, and I reacted to what I saw ahead of me (the rider in front of me coming to a stop), so I slowed down to also stop and there was something other than me (an obstruction of a fallen tree covering the road) that caused the accident and caused me to lose control of my motorbike.”
[7] Page 57 of the claimant’s bundle.
Mr Custovic says there was:
“… an external causal event that caused the accident (hitting the obstruction – fallen tree. I only did not see the tree because it was so soon after the bend, and I was looking at the rider ahead of me coming to a stop.”
The claimant listed a number of the Commission’s published decisions that he says are similar or relevant to the circumstances of his accident. He says the hospital notes that say the accident was a high-speed accident is not evidence that came from him and therefore, “did not come from anyone that witnessed the event or investigated the accident scene.”
Insurer’s internal review
The insurer relies on the police report that states the weather was fine and the road was unsealed with a dry surface and the police conclusion that Mr Custovic was the “unit responsible.”
The insurer cites the investigator’s report and the claimant’s statement, at length, then cites the claimant’s application for review and his citation of the published decisions.
The insurer says the accident occurred as a result of the claimant’s failure to keep a proper lookout and exercise reasonable care [14] and that:
(a) while he says he was travelling at 20-30km, the Liverpool Hospital says it was a high-speed accident;
(b) he was riding with a friend who was leading the way;
(c) he was not familiar with the location, and it was the first time he had ridden in this location;
(d) he hit something in the middle of the road and lost control. He hit a tree fallen on the road which he had not seen when approaching the bend;
(e) the police photographs show the log;
(f) his friend was about 10 metres in front of him, and
(g) there were no other witnesses.
After dealing with the cases the insurer says that the claimant was not driving in a reasonable manner. The insurer says at [28] that “the provisions for no-fault accidents was removed from the [MAI Act] in November 2022, therefore the blameless provisions no longer apply to statutory benefits claims.” The insurer says the claimant’s actions alone were the sole cause of the motor accident.
Claimant’s original submissions
The claimant, at that time still representing himself, filed submissions with his Application for miscellaneous claims assessment. The submissions articulate the claimant’s arguments and cite decisions and legislation.
The claimant says he is not wholly at fault because there was something other than his riding that caused the accident (the fallen tree) and he refers to the police report that found “fault” due to the large branch on the road and a small hill [5]-[8]. He says he did not lose control of his motorbike until he had hit the tree [9] and that “fire roads are made for use as a road” and there should not have been an obstruction, and he should not have to expect there would be an obstruction [10]-[13].
He says at [17] he was not inexperienced and refers to my decision of Yankovich v AAI Limited t/as GIO[8] and distinguishes it from the facts and circumstances of his accident maintaining that it was the tree on the road that caused him to lose control [18]-[19].
[8] [2022] NSWPIC 137 (Yankovich).
The claimant then addresses the issue of speed noting he was not charged by police with a driving offence [21]. He refers at [22] to the triple zero call noting that according to Mr Nicholson he was travelling at no more than 40kmph which he says is a low speed. He says he was slowing down coming to a stop and that by the time he hit the fallen tree he was travelling at 20kmph [23]. He then says at [26]-[28] that the hospital notes are wrong and based on “hearsay evidence.” He says there was minimal damage to his motor-bike and if he had been travelling at high speed there would have been more damage [31].
Mr Custovic then submits that he was keeping a proper lookout and that as the rider behind, he did not have as much opportunity to see obstructions as the lead rider [33]. He says he saw Mr Nicholson coming to a stop and he slowed down intending to meet him at the stop [34]. He says at [36] he should not have to foresee everything that might happen in the vicinity of the motorbike or react to everything that might occur.
Mr Custovic says Allianz has led no evidence to suggest Mr Custovic lost control before he hit the fallen tree [37]-[38] and that he has no “greater duty of care” as the rider of a motor bike [40]. He says the standard of care is set in s 5R of the Civil Liability Act 2002 (the CL Act) as the “reasonable person” test.
The claimant says at [42] he was riding below the speed limit responding to the rider ahead and that he hit the fallen tree which he had not seen and lost control of his motorbike. He says a reasonable rider in the same position would have ridden the same way [43].
Finally, the claimant says at [43] Allianz has suggested Mr Nicholson rode over the tree without injury but that there is no evidence of this. He says Mr Nicholson did not ride over the fallen tree [44].
Insurer’s submissions
The insurer’s original submissions dated 31 July 2024 lodged with the reply say the claimant is wholly at fault because he lost control of his motor bike after hitting a tree [15].
The insurer quotes a passage from Yankovich where I said, “If there is something else that caused the accident, then the claimant cannot be ‘wholly’ at fault.” That was a case where the cause of the accident was the claimant’s unfamiliarity with motorcycles (she had only just got her license), the surroundings and the flickering of light between trees. The insurer says at [19] that the fallen tree branch “was part of the ordinary environment in which the claimant was riding,” that the claimant and his friend had been riding along the trail earlier and the claimant’s friend managed to stop his motorbike because of the presence of the fallen tree.
The insurer suggests at [20] looking at the situation of what would happen if the claimant’s loss of control had resulted in him colliding with an oncoming vehicle or pedestrian. The insurer says the claimant would be found to have breached a duty of care to the people in the oncoming vehicle or the pedestrian. That is correct and looking at an accident through the lens (or claim) of an innocent other driver or pedestrian, the claimant would likely be found negligent if his losing control caused an accident that caused them injury. However, the claimant does not owe a duty of care to himself.
Citing Yankovich at [21] where I suggested a non-tortious meaning of fault, that is “responsibility for the accident”, the insurer says I should be satisfied that the claimant’s accident occurred because Mr Custovic lost control and failed to keep a proper lookout.
While the insurer does not dispute the fallen tree was across the road, the insurer says at [22] that it was visible when the riders had ridden past it earlier in the day and that the claimant’s companion stopped his motorcycle before hitting the fallen tree.
The insurer cites at [23] Manley v Alexander[9] and says the claimant must take reasonable care and ride in a manner so that he could take reasonable steps and react. The insurer says at [24] the claimant’s friend reacted and stopped in time, but the claimant did not. The insurer refers to s 5R and 5S of the CL Act as “the enacted law” and says the reasonable person in the claimant’s position is his friend and the friend took reasonable care for his own safety and so should the claimant.
[9] [2005] HCA 79.
The insurer’s final submissions dated 2 October 2024 refer at [2] to there being no new evidence. The insurer submits:
(a) the claimant was riding on a fire trail which inherently contains hazards such as fallen, and he should have ridden in a manner and at a speed that enabled him to see and react to the hazard [3];
(b) the claimant’s submissions about there being no comparison between the two riders should be rejected and says both had been riding together for two hours and both should have been aware of the potential hazards. The insurer says the claimant’s riding companion saw the log and managed to stop before hitting the log and tried to warn the claimant and there is no explanation for the claimant’s loss of control other than his fault [4];
(c) the claimant had ridden past the log earlier in the day and even though he may not have been familiar with where he was and the proximity of the particular hazard, he was aware of the potential for hazards due to his riding. In addition, when negotiating a bend he should do so with safety [6];
(d) in accordance with Manley v Alexander the claimant “was required to take reasonable care and ride in a manner in which he knew what was happening in the vicinity of his vehicle and to take reasonable steps to react to same” [7], and
(e) the claimant’s riding companion observed and reacted to the environmental hazard and the same standard of care should apply to the claimant [8].
The insurer maintains its primary submission at [9] that the claimant is mostly at fault.
In relation to costs the insurer says the claimant has commenced proceedings seeking a determination pursuant to Schedule 2cl 3(e) that he is mostly at fault and should have the costs of only one application. Alternatively, the insurer says the claimant should not be awarded the maximum amount noting that the claimant retained solicitors at the time the teleconference was first booked and their involvement relates to the adjourned teleconference, the final submissions.
On 17 October 2024, the insurer’s solicitor uploaded a message to the portal stating that the insurer “adopts the position set out in the judgment of Evic, in particular, paragraphs 62 – 74 inclusive”.
Claimant’s final submissions
The claimant’s final submissions were provided by his legal representatives after the preliminary conference on 24 September 2024.
The claimant sets out the facts and says at [8] that the claimant was:
“… distracted by Mr Nicholson’s positioning on the trail, manoeuvred to the left to avoid him and in attempting to complete the bend, hit a log which was positioned across the width of the trail.”
The claimant submits at [10] that he was in control of the motorbike before he hit the log and that he only lost control after hitting the log [11].
The claimant submits at [12] that he was unfamiliar with the trail and at [13] that the police found the fire trail conditions and the log were at fault.
The claimant cites my decision in the case of Vanoostward v AAI Limited t/as GIO[10] wherein I found that fault, in a single vehicle accident should be given its ordinary meaning of “responsibility for the accident.” The claimant also refers to my decision in Yankovic where I found that a claimant cannot be wholly at fault where there is “something else that caused the accident.”
[10] [2023] NSWPIC 97.
The claimant says at [18] there was a log obstructing the fire trail causing a hazard to the claimant and to other riders. The claimant then says at [19] the fire trail was poorly maintained and that it is reasonable for the claimant to expect it would be free of substantial impediments. The claimant says at [20] due to the bend he lost sight of Mr Nicholson, was surprised to see him in front of him and stationary and gesturing with his hands.
The claimant submits at [21] that he did not have time to ensure he did not run into Mr Nicholson and “it was near impossible for the Claimant to detect and react to this hazard on such short notice.”
The claimant says at [22] his conduct should not be compared to the conduct of Mr Nicholson because Mr Nicholson was “extremely familiar with this fire trail and was riding ahead of the Claimant.” The claimant says he on the other hand was required to “closely monitor Mr Nicholson to avoid collision with Mr Nicholson and to ensure that he was following his direction correctly.”
The claimant says he cannot be wholly at fault. He then goes on to submit that he is not mostly at fault. He refers to s 5 of the CL Act and the definition of negligence as “the failure to exercise reasonable care and skill.” He says contributory negligence is assessed by apportioning the “degrees of culpability for the accident” based on the departure of the standard of care and the relative importance of the acts of the parties in causing the damage.
The claimant says the most important act was the poor maintenance of the fire trail and the presence of the log and that “but for this failure to maintain” there would have been no accident [28]. The claimant says the purpose of the fire trail is to allow unimpeded access to emergency vehicles and that the “large and dangerous hazard” being left on the trail is a “significant departure of the standard of care expected from those responsible for the trail.”
The claimant then says at [29] that Mr Nicholson stopping his motor bike in “immediate proximity to the claimant as he rounded the bend, in a fire trail not excessively wide, and by gesticulating in an attempt to get his attention” is the second most important act. The claimant says but for Mr Nicholson’s actions, the claimant would have been able to stop before he encountered the log or better navigate it. The claimant goes on to say Mr Nicholson’s actions were not those of a reasonable man because he “unnecessarily distracted the claimant” and that he “could have paused in a more suitable location to warn the Claimant of the impediment” of the log.
The claimant concedes at [30] there is some contributory negligence on his part because “if he was keeping a better look out, he may have been able to navigate the distraction of Mr Nicholson and the log.”
The claimant says to be exercising reasonable care he needs to be aware of what is happening in the vicinity and take steps to react [32]. The claimant says at [33] he was riding at a reasonable speed (20-30kmph) and that it was the conduct of Mr Nicholson and the hazardous log that resulted in the accident.
The claimant submits at [35] because there are two other causative factors, the claimant cannot be wholly of mostly at fault and that his contributory negligence cannot be assessed as greater than 25%.
The claimant made a claim for costs for each of the three disputes.
On 21 October 2024, in response to Evic, the claimant says that with reference to [73] of the decision, the claimant contributory negligence was not in excess of 25% and that this would be a “just and equitable outcome in the circumstances of this case” for the purposes of s 3.38(3)(c).
The claimant repeated that despite taking reasonable care, the accident still took place.
REVIEW OF THE EVIDENCE
Claim form and medical state
On 28 September 2023, the claimant’s wife completed the application for personal injury benefits.[11] She identifies the date, time and location of the accident and says:
“I am not sure exactly what happened or how it happened as he has not been able to tell me much yet.”
[11] Page 29 of the claimant’s bundle.
The claimant has provided Certificates of capacity and medical records suggesting he sustained a right open fracture of the femur which was complicated by a pneumothorax and pulmonary embolism.
The claimant has provided the discharge referral[12] dated 20 October 2023. The claimant had spent four weeks in hospital (including a period of time in intensive care) after being airlifted by helicopter from the scene. The hospital presenting problem is stated to be “high-speed motorbike accident.” the claimant was airlifted to Liverpool and was under the care of Chandra Dave, orthopaedic surgeon.
[12] Page 78 of the claimant’s bundle.
First responders
The claimant provided the audio call from triple zero. The call is about 30 minutes long and it is clear that the claimant was in difficulty and there are multiple references to him bleeding heavily and struggling with the pain. His friend Matthew Nicholson was with him for most of the time, leaving the scene twice in order to guide emergency services to the location.
At about 7.39 minutes into the call, Matthew is heard answering a question as to how the accident happened as follows:
“[he was going] about 30 – 40 kms. He went over a stump, fallen back and accelerated fast into a tree.”
Mr Nicholson gave a lot of assistance to the triple zero operator as to the location of the accident due to its remote location. There was some confusion as to where they had entered the fire trail and Mr Nicholson refers to them coming in from the Old Hume Highway, where there was a gate that was possibly locked. The operator reassured Mr Nicholson and the claimant that someone who could deal with the gate would be coming.
Later when Matthew had departed the scene to meet up with emergency services and guide them in, the claimant told the operator it was the first time he had ridden there, that the road was not smooth with lots of little bumps. He too refers to them having “ridden in” and ridden up to a lookout and that they were “coming back” from the lookout when the accident occurred.
The police spoke to the claimant, his wife and Matthew. The narrative[13] in the police report reads as follows:
“About 1030 on Sunday the 24th of September 2023, the Rider and Witness were riding within the mentioned fire trails for a couple of hours and initially went over a bump in the road where there was a log on the southern side which was visible to both riders at the Location.
About 1200 the riders returned the same route and the Witness whom is an experienced rider remembered the log was there but at this stage it was not visible as it was over the small bump. The Witness stopped just before the log to warn the Rider to which the Rider was unable to stop and went over the bump onto the log.
As a result, the Rider lost control and accelerated before hitting a rock and crashing in between 2 trees …”
[13] Page 4 of the claimant’s bundle.
The police narrative refers to photographs being taken, and the witness version of events being captured on body-worn camera[14] and that the claimant was wearing full protective gear and a helmet. It is also noted:
“Police also observed the bump and log in question which suggests that the version given by the Witness is true with the Witness adding that they were not travelling fast between 20 – 30 kilometres per hour prior to hitting the log.”
[14] The full police brief and body worn camera footage has not been provided by either party.
On 21 October 2023, the police obtained a statement from the claimant noting that the claimant was in hospital for over a month. The summary of that statement in the narrative is as follows:
“The [claimant] stated that he was riding at relatively low speed and upon going over a hill hit a large log and attempted to stop his trail bike. In doing so he advised that he lost control and went into a tree whilst doing a wheelie on the bike. He advised that this was caused to how large the log was until he hit the ground.
He could not advise Police the speed he was travelling but stated it was relatively low in 1st gear. He added that the Witness was stopped prior to this occurring with the POI slowing down after seeing the Witness but it was too late, this coincides with the Witness version provided at the scene.”
The conclusion drawn by the police as stated in the report was:[15]
“Police place fault of the accident onto the large tree branch which was covered and over a small hill. As a result of the POI hitting this log, he had lost control and held onto the throttle before crashing into the tree.
…
Fault of accident due to fire trail conditions mainly the large log located on road, not driver error.”
[15] Page 3 of the claimant’s bundle.
Police provided photographs which show the claimant’s motorbike in the bush off to the left of the fire trail some distance away from the fallen tree (page 10). The photograph on page 11 shows the ambulance parked alongside the bush and the fallen tree in the distance across the road. The photograph on page 13 clearly shows the fire trail and the fallen tree across the road and the road turning to the right after the tree (the curve would have been to the left as the claimant and Mr Nicholson approached). From the photographs there is daylight between the fallen tree and the road on the left-hand side of the photograph (where Mr Nicholson was) but not on the right side where the fallen tree appears lying on the road (where the claimant apparently was).
The photographs show the general nature of the bush – there are trees which look like they have been burned (black or dark limbs and no leaves) and other trees looking like they have not been burnt and yet others that are recovering from being burned. The fallen tree looks bare without any visible leaves on the part that is covering the road.
There are also four photographs of the claimant’s helmet. It is a dirt bike helmet with no visor (but goggles) and a long chin piece and with what appears to be air filtering and ventilation holes around the mouth and the nose.
The insurer had the accident investigated. The report from Allied Universal Compliance and Investigations is dated 27 November 2023. The author notes the claimant was to provide the investigator’s details to Mr Nicholson and that “despite several follow ups with the Claimant, we have had no contact from the other rider.”
Statements
The claimant gave a statement to the insurer’s investigator on 25 October 2023. In it he discloses:
(a) the accident occurred just before his 31st birthday [Q8];
(b) he bought the bike in July 2023 [Q24], but had 12 years of riding experience [Q25];
(c) they were heading back to Harley Street (Yanderra) [Q33];
(d) they had been riding for half an hour before the accident [Q34];
(e) he was not familiar with the road it was his first time there [Q44, 45];
(f) he had ridden in state forests before [Q54];
(g) he hit something in the middle of the road, he had slowed down because Matt was completely stopped, there was a corner “a slight bend” and Matt “came to a stop” and then he lost control [Q55];
(h) he understood what he hit was a tree, but he didn’t know that at the time [Q56];
(i) he can’t say what speed he was riding but it would have been a low speed [Q57];
(j) in answer to Q61 “Do you recall looking ahead just prior to the incident or were you looking around elsewhere?” The claimant says “I’m always conscious of like … obviously when you’re riding you want to be making sure whatever is in front of you that you don’t hit, whether it’s an animal or what not …I didn’t see it coming up to it and all of a sudden it was …”
(k) Matt was in front of him at a complete stop, “it could be ten metres in front” [Q62], and
(l) in answer to Q63? “Do you recall him signalling at all or waving his arms or anything of that nature to alert you”, the claimant said:
“No except he’s stopped which obviously meant – which I took – hence why I initially slowed down because he was at a complete stop; I’d never been there before so I was preparing to come to a complete stop myself to then continue to follow his way of the path.”
The claimant said he and Mr Nicholson had not spoken about the cause of the accident although Mr Nicholson had followed him up to see how he was doing. The claimant said he was in contact with Mr Nicholson’s partner and the interviewer requested Mr Custovic provide his details so a statement could be obtained.
The claimant signed a statement in these proceedings dated 24 June 2024.[16] In it he says:
[16] Page 116 of the claimant’s bundle. It appears he wrote this himself as he was not legally represented at this time.
(a) he had been dirt bike riding for about 12 years without serious accidents [7];
(b) the one he was riding on the day of his accident was not his first motorbike, but he purchased in on 20 July 2023 [10] and it is an endurance motorbike “designed specifically for the most well-known-of-road motorbike event, a 6-day race in bush terrain” [11];
(c) he obtained his learners permit in August 2023 which required a two-day practical course, theory test and assessment [13]. He had not needed a license to ride off road previously [14];
(d) he had ridden his new bike for about four hours at the time of the accident [15] having ridden it a couple of times in the streets, on his property and on fire roads in the northwest of Sydney [16];
(e) on the day of the accident, he had loaded his bike onto the back of a motor vehicle [20] and met up with Matthew [21]. He had told Matthew about a trip he was planning with friends the following week and Matthew offered to show him where he rides near Yanderra [22];
(f) the claimant had never ridden there so wanted to learn the area before the next week’s trip [23];
(g) there were diversions in the road, the bushland looked similar and the dirt on the roads was the same colour [24];
(h) the weather was good, and it was sunny and warm and dry “the terrain was a little rough and at times” and it was a good ride [25], and
(i) he wore protective gear, helmet, gloves and goggles [26].
In terms of the accident, he says:
“[27] In the lead up to the accident, I was coming up to a bend on a slight incline. I was slowing down as I was approaching the bend.
[28] As I was approaching the bend, I could see Matt on the right, at the bend. I noted Matt had stopped.
[29] Once I noted Matt had stopped, I started to brake gently.
[30] I was looking at Matt to the right of me, slightly in front as I was gearing down and coming into a stop. I noticed he was trying to say something, and I was trying to work out what it was but I could not hear him over the noise [of] the motorbikes. Generally, on rides in my experience, it is not uncommon for the lead rider to veer to one side and signal you to ride through. I thought at the time that’s what he might be haven suggesting.
[31] Then I hit something with my motorbike. I did not know what it was at the time because I do not recall seeing it before I hit it.
[32 The front wheel of my motorbike bounced up and over and when it landed, I was still on the motorbike but I lost grip of both sides of the handlebars.”
It is at that point the claimant lost control and thinks he “must have accidentally accelerated a little because I felt the front lift” [35].
Mr Nicholson gave a statement to his friend typed, signed and dated 12 July 2024. He says he met the claimant in early to mid-2023 through his partner. He says:
(a) throughout the ride he was in the lead and Mr Custovic was following [7] and that sometimes they would stop here and there to chat [8];
(b) there were a couple of fire roads and they drove around them that morning [9];
(c) he was approaching the bend in the road more to the right and as he came around it, “there was a fallen tree covering the road” [10] which was “not visible on approach”, but “blended with the road” and was “obscured by a dip in the road” [11];
(d) when he noticed the log he had only one to two metres and hit the brakes hard and just managed to stop in time but he still made contact with the tree and bounced back a bit [12];
(e) he could hear Mr Custovic coming closer [13] and saw him approach and slow down [14] and he tried to warn him [15], and
(f) as he approached, Mr Custovic was in the middle of the road, “no more than 40 kms per hour going down to a stop” and was one metre to the left when his motorbike hit the fallen tree and went over the tree with the claimant trying to keep control [16].
At the preliminary conference, I asked the claimant some questions about the photographs on pages 97 and 98 of the material he had provided. He said:
(a) he was riding in the direction of the camera;
(b) the fallen tree that is across the trail is the tree that he ran into as he came around the corner and up a hill;
(c) he was not sure whether he had ridden the trail (in the direction away from the camera) before. He and his friend had been riding for two hours criss-crossing the fire trails and he was not sure where they had ridden;
(d) he was not familiar with the area, and this was his first time riding there;
(e) he was following behind his friend Matt (who was the “lead” rider) the whole time because he was familiar with the area and had ridden there before;
(f) Matt had come around the corner, on the right-hand side of the trail and had stopped his motorbike with his front wheel against the tree;
(g) the road up was winding, and the claimant lost sight of Matt as he went first (in the lead) around the corner;
(h) as Mr Custovic came round the corner, he saw Matthew ahead on the right of the trail and he was stopped, and
(i) Mr Custovic swerved to the left, so he did not hit Matthew went over the log and lost control.
In answer to a question from his solicitor “Was Matt obscuring your vision of the log?” he said he swerved and stopped because he was reacting to seeing Matt and what he was doing, not the log. Mr Custovic said he was following Matt’s lead and riding in exactly the path Matthew rode, because he was leading the way.
FINDINGS OF FACT
There is no dispute as to the general mechanism of this accident. As the insurer says at [14] of its first submissions, “there is consistency [in] the accounts provided by the claimant, his riding companion and the police that [Mr Custovic] lost control of his motorcycle after hitting a tree which had fallen across the riding trail.”
In order to assess the involvement of anyone or anything else in this accident and evaluate the claimant’s departure from the standard of care, I must make findings as to the relevant facts. The courts have made it clear that factual findings must be supported by logical, probative evidence. Any inferences that are drawn must be reasonably open on the facts Australian Broadcasting Tribunal v Bond (1990) HCA 33 at [367].
What was the road like?
There is no dispute that the road was a gravel, fire trail. The photographs show it is in a very bushy area with no buildings or urban area in the vicinity.
The insurer’s investigator did not attend the location and there is no expert evidence.
The fallen tree has been referred to as a stump and a log. For consistency, I will refer to it as a fallen tree.
All of the photographs of the fallen tree are taken from the side where the ambulance was and where the claimant ended up. There is no photograph of the bend in the road showing the view as the claimant approached it, no photograph of the fallen tree from that side, and no clear photograph of the “bump” as documented by the police.
I accept the unchallenged photographic and documentary evidence of the police that:
(a) there was a fallen tree across the fire trail;
(b) there was a bump in the road, before the fallen tree, and
(c) the bump obscured the claimant’s vision of the fallen tree.
The statements suggest the claimant and Mr Nicholson may have had their motorbikes on the back of their motor cars. The records and the triple zero call suggests they may have parked their cars in Harley Street Yanderra. During the triple zero call there is reference by Mr Nicholson to a gate onto the fire trail and that it may have been locked and the operator advised that someone with keys to unlock the gate had been contacted. According to the audio call the “Firies” were the first on the scene. I note the police report thanks Wingecarribee State Emergency Service (SES), Yanderra and Bargo and RFS (Rural Fire Service) so it is likely they were the first to respond. There are no records from either entity and the police report does not refer to the gate. There is no evidence about the gate (locked or otherwise) from the claimant and Mr Nicholson in their statements.
There is no evidence about who owned the road (or the land around it) and whether the claimant and Mr Nicholson were permitted to ride on the fire trail. Finally, there is no evidence about who was responsible for maintaining the fire trail, what maintenance was done and how long the fallen tree may have been on the trail.
How familiar were the claimant and Mr Nicholson with the road?
The claimant’s evidence (question 54 for example) was that he had experience riding in state forests. Mr Custovic’s unchallenged evidence was that he had never ridden the trails in the Yanderra / Yerrinbool area before. Mr Nicholson on the other hand had ridden the trails before.
The claimant told the investigator they had been riding for 30 minutes before the accident, but he told me at the preliminary conference they had been riding for two hours. It appears from the police narrative (likely based on Mr Nicholson’s statement) they had been riding for a couple of hours.
Mr Custovic told the triple zero operator about the state of the road, but explained in his statement (and told me at the preliminary conference) he did not remember where they had ridden and whether they had ridden the road where the accident happened before.
The triple zero call includes the claimant explaining that they had ridden into the bush area and to a lookout, and they were riding back from the lookout when the accident occurred. This is consistent with the version in the police narrative that said the pair had ridden over the tree as they started their ride and then came to it from the opposite direction on their way back.
I accept that the claimant and Mr Nicholson had been riding for two hours not 30 minutes based on the claimant’s evidence at the preliminary conference which is consistent with the police records. I accept while Mr Nicholson was familiar with riding in the bush generally, he was unfamiliar with this particular road and the bush area through which they were riding. I accept he did not remember the presence of the fallen tree at the particular location where the accident occurred but was aware of the generally bumpy nature of the road.
How fast was the claimant travelling at the time of the accident?
Liverpool Hospital notes record it was a high-speed accident. The claimant has submitted that this should not be accepted as hospital staff were not present at the scene at the time of the accident.
There is no expert evidence as to speed.
It is of course clear that the claimant lost control after he hit the fallen tree. Mr Custovic thinks he accelerated accidentally and went into the upright trees and bushes at the side of the road. It may be that Mr Custovic hit the upright trees at high speed (which would be consistent with the hospital record) but, it is his speed before he hit the fallen tree that is relevant to the matters I have to determine.
Mr Nicholson told the triple zero operator the claimant was riding at 30-40kmph. The police report (based on Mr Nicholson’s statement on the day) revised that down to 20-30km. The claimant told the police a month after the accident he did not remember the speed he was travelling.
In the absence of any expert evidence, I accept the evidence of Mr Nicholson that the claimant was riding somewhere between 20-40kmph on approach to the fallen tree.
As the road was a fire trail, it is doubtful there was any applicable speed limit. Whether 20-40kmph is a low speed or a high speed is not the issue. Whether that speed was a reasonable speed in the circumstances is the issue and that will be dealt with later in these reasons.
What was Mr Nicholson doing?
There is no dispute that Mr Nicholson was the lead rider and had ridden on the trail before.
The police report suggests that Mr Nicholson told the police he stopped just before the log to warn Mr Custovic. The claimant says he saw Mr Nicholson stopped and that he was trying to say something, but he could not hear him.
Mr Nicholson says in his July 2024 statement he tried to get the claimant’s attention to warn him about the fallen tree, but he does not say how he tried to warn the claimant.
The submissions written by the claimant’s solicitor suggest Mr Nicholson was “gesticulating at the Claimant with his hands”,[17] but there is no evidence from Mr Custovic or Mr Nicholson in the police documents or their statements (or at the preliminary conference) to suggest there was any gesticulating or if there was, what sort of gestures were involved. Mr Custovic says in his statement it is common for lead riders to wave through following riders, but Mr Custovic does not say that Mr Nicholson gestured to him in any particular way to suggest that or that he waved him through. Mr Custovic’s answer to question 63 from the investigator denies Mr Nicholson was signalling or waving.
[17] Paragraph 7.
While there is evidence of the type of helmet the claimant was wearing (a dirt bike helmet with what appears to be a filtering device over and around the mouth and the nose), there is no evidence as to the type of helmet Mr Nicholson was wearing. If he was wearing a helmet similar to Mr Custovic’s, it is difficult to understand how Mr Custovic could form the opinion Mr Nicholson was trying to say something, because his mouth would appear to be hidden.
I accept that Mr Nicholson tried to warn the claimant. In the light of the claimant’s answer to question 63 I cannot make a finding that Mr Nicholson’s warning involved some form of hand movements or gestures.
Mr Nicholson appears to have told the police he had stopped before the log. In his statement given in July 2024, Mr Nicholson says he had only one or two metres to react to the presence of the fallen tree and hit the brakes hard and he said he just managed to stop in time but still made contact with the tree and “bounced back”. Mr Nicholson did not lose control of his bike as a result of the contact he made with the tree.
What did the claimant do?
Mr Nicholson was riding in the lead and Mr Custovic was riding behind him throughout the riding subject to them slowing down and stopping and chatting from time to time during the ride. Mr Custovic refers to Mr Nicholson being about 10 meters in front of him before the accident.
Mr Custovic told the police in October 2023 after the accident that Mr Nicholson had stopped. In his answer to question 63, Mr Custovic told the insurer’s investigator he had slowed down as a response to seeing Mr Nicholson stopped but he could not stop in time. In his statement from June 2024, the claimant confirms he saw Mr Nicholson stopped and that as a result he braked “gently”.
There is no expert evidence as to why Mr Nicholson hit the tree then “bounced back” and Mr Custovic did not. There is no expert evidence why the tree did not prevent Mr Custovic from moving forward, up and over it when that is not what happened to his friend. It may be the bump observed by the police is the explanation.
I accept the claimant rode into or over the bump and onto or into the fallen tree at which stage he lost control of his motorbike and moved forward hitting the trees ahead and to the side of the road.
CONSIDERATION OF THE ISSUES
What is the approach to a dispute about fault in a statutory benefits claim?
Sections 3.11 and 3.28 of the MAI Act are in similar terms. Section 3.11 says in respect of weekly statutory benefit as follows
(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 52 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person[18], 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%.
[18] Section 3.28(1)(a) adds the words “and the person is over 16 years of age at the time of the motor accident” to create an ongoing entitlement to statutory benefits for treatment and care expenses for children.
Justice Mitchelmore in Evic undertook the exercise of interpreting these sections and how they are to apply in a single vehicle accident. Mr Evic had mounted his motorcycle, and the foot peg got caught up between his boot and his riding pants as a result of which his motorbike fell to the left side causing injuries to the claimant’s left lower leg. A Member of the Commission had determined that Mr Evic was not wholly or mostly at fault.
In the course of her reasons, Justice Mitchelmore said the following:
(a) an injured person’s entitlement to benefits “does not depend on establishing the fault of a person … The injured person does not need to prove anyone was at fault for the motor accident, in order to obtain benefits under Part 3” [55];
(b) leaving aside any issue of threshold injury, statutory benefits continue or cease pursuant to ss 3.11 and 3.28 if the injured person is wholly or mostly at fault. “The qualifiers ‘wholly or mostly’ inform each other and are intended to address the same mischief, namely, contributory negligence” [56];
(c) ss 3.11 and 3.28 “are directed at the extent to which the injured person’s failure to take reasonable care contributed to the motor accident.” That is the contributory negligence relevant to the accident (not the injury) and accommodates “all types of motor accidents including single vehicle accidents where the injured person is the owner driver” [57];
(d) s 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of Division 8 of Part 1A of the CL Act. The test for negligence and contributory negligence is provided in s 5R(2)(a) of the CL Act as “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person” [60];
(e) where there is more than one motor vehicle involved, or the claimant is a pedestrian (and presumably a cyclist or other road user), s 3.11 and s 3.28 accommodates an assessment of the claimant’s contributory negligence by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk[19] at [61];
(f) in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply. Acknowledging the difficulty in assessing contributory negligence in a single accident case where there is no one to measure the claimant’s conduct against, Justice Mitchelmore at [68] cites Axiak v Ingram[20] and at [69] Davis v Swift[21] and says “the inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence” [69];
(g) the composite phrase in the legislation “caused wholly or mostly by the fault of the person” is “directed at an enquiry as to the injured person’s contributory negligence for the motor accident, irrespective of the number of motor vehicles involved and how the claimant came to be injured,” and
(h) if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) directs the next step is to assess the degree of contributory negligence that is “just and equitable in the circumstances of the case” [73].
[19] [2023] NSWSC 788.
[20] [2012] NSWCA 311 where contributory negligence for a reckless pedestrian in a no-fault (blameless) accident was assessed at 50%.
[21] [2014] NSWCA 458 where contributory negligence for another in a no-fault (blameless) accident was assessed at 80%.
Was someone other than Mr Custovic at fault?
Mr Custovic’s 24 July 2024 submissions raised issues as to the fault or culpability of:
(a) the entity responsible for maintaining the fire trail was free from obstacles such as fallen trees, and
(b) Mr Nicholson who should have not distracted the claimant and should have stopped in a better place.
The owner of the land and the entity responsible for the maintenance of the road has not been identified, the system of maintenance and inspection has not been determined and there is the suggestion there may have been a locked gate which presumably would be designed to prevent access onto the fire trail. Importantly, there is no evidence about how long the tree had been across the road. If the tree had fallen in the hours before the ride (as opposed to weeks or months before), there may be little or no culpability on the part of any entity which may be responsible for maintaining the fire trail.
The claimant then suggests Mr Nicholson may be responsible or culpable for stopping where he did (not in a “more suitable location”) and “gesticulating” which distracted the claimant. I have found above there is no evidence that Mr Nicholson was gesticulating as alleged in the submissions and in fact in his statement to investigators Mr Custovic denied any gestures were made at all. Mr Custovic has not in his submissions suggested where the more “suitable location” to stop would have been. The evidence of Mr Nicholson is that he saw the log, braked hard, hit the log and bounced back. In the timeframe (he was riding up to 10 metres ahead of the claimant and had one or two seconds to react) it is difficult to imagine he could have done anything else or moved anywhere else.
In my view there is no need to make a finding of fault, responsibility or culpability on the part of any other person. Mr Custovic was injured in a motor accident in New South Wales, he does not have to prove fault on the part of anyone to obtain statutory benefits. His benefits will however cease if he was wholly or mostly at fault and as Justice Mitchelmore found that requires only a consideration of whether there is contributory negligence and if so the degree of it. If the claimant’s contributory negligence is assessed at 100% then the claimant is wholly at fault. If his contributory negligence is assessed at between 99% and 62% he is mostly at fault. If the degree of his contributory negligence is less than 61%, then his weekly benefits are reduced accordingly.
Was Mr Custovic contributorily negligent?
At paragraph 30 of the submissions filed on 24 September 2024 the claimant concedes he was contributorily negligent because, “if he was keeping a better look out, he may have been able to navigate the distraction of Mr Nicholson and the log.” In the most recent submissions filed after the decision in Evic was brought to his attention, the claimant did not resile from that concession.
Mr Custovic concedes then that he did not act as a reasonable person in his position would have and therefore departed from the standard of care.
I accept that this is an appropriate concession. A reasonable person in the position of the claimant, riding in an unfamiliar bush setting on a fire trail would have, in my view, followed the lead of Mr Nicholson and, where he lost sight of Mr Nicholson, reduced his speed so as to enable him to stop quickly if necessary.
What is the degree of Mr Custovic’s contributory negligence?
Having conceded there is contributory negligence, I now have to determine the degree of that contributory negligence in accordance with s 3.38 of the MAI Act.
Mr Custovic’s 24 July 2024 submissions say contributory negligence is assessed by apportioning the degree of culpability and the relative importance of the acts of the claimant and other persons involved. The claimant then submits the most significant and culpable act was the failure to maintain the fire trail and remove the fallen tree and the next most significant and culpable acts were those of Mr Nicholson. The claimant says his departure from the standard of care should be assessed at 25%.
The insurer does not suggest a percentage.
The judgment in Evic makes it clear there is no relative culpability or relative importance to measure the claimant’s actions against in a single vehicle accident. I cannot therefore measure Mr Custovic’s actions against those of whoever maintained (or did not maintain) the road or Mr Nicholson.
Section 3.38(3)(a) in conjunction with s 3.38(4) provides that the regulations may fix a percentage and ss 3.38(3)(b) provides the parties may agree on the percentage. Neither of those two options apply.
Section 3.38(3)(c) then provides that the percentage of contributory negligence is determined by the Commission on the basis of what is just and equitable in the circumstances of the case.
In my view the conduct and actions of the claimant relevant to his departure from the standard of care of a reasonable person and therefore the assessment of the degree of his contributory negligence are:
(a) his familiarity with bush riding and the need to be on the lookout for things including animals and be able to stop suddenly if necessary;
(b) his unfamiliarity with the location and the road and therefore he had a need to keep a proper lookout and travel at a reasonable speed in the circumstances;
(c) he had ridden “in” with Mr Nicholson, and they were on the way “out” when the accident happened. While Mr Custovic may not have remembered the specific location of the fallen tree, he would have been aware there was a fallen tree somewhere on the ride and in any event he should have been keeping a lookout for fallen trees or other obstructions on the road;
(d) he was riding behind Mr Nicholson who was the leader and should have had him in his sights and if not, ridden at a speed that would have allowed him to stop suddenly if he needed to;
(e) Mr Nicholson took the curve or bend in the road on the right-hand side. If Mr Custovic had been following Mr Nicholson as the leader and done the same, he may have given himself more opportunity to see the fallen tree, and
(f) If Mr Custovic had been following Mr Nicholson and riding where he was riding with sufficient distance between them, he would have given himself more opportunity to react to what Mr Nicholson was doing and brake with sufficient time to stop before hitting Mr Nicholson or the tree.
Perhaps of more importance is that Mr Nicholson braked hard and stopped suddenly and did not lose control when he came upon the fallen tree which was, on his evidence one to two metres ahead of him. Mr Custovic said he braked gently and stopped slowly, hit the tree and lost control. Mr Custovic was travelling at a low speed but was not in my view travelling at a reasonable speed, that is slowly enough to be able to stop when the lead rider ahead of him had stopped.
In my view the degree of Mr Custovic’s contributory negligence should be assessed at 75%. While this may not be “just and equitable” in the eyes of Mr Custovic whose benefits will now cease, it is in my view in accordance with s 3.38, “just and equitable” in all the circumstances of this case on the basis of the evidence that has been presented to me.
It follows therefore that Mr Custovic is wholly or mostly at fault.
COSTS
The claimant seeks costs in accordance with the Regulation that is 16 monetary units for each of the three disputes that need to be determined under Schedule 2(3)(d), (e), and (g).
The claimant says he “had to prepare substantial materials to support his claim including extensive submissions to address the insurer’s complex findings with respect to liability.”
The insurer says that the claimant’s application only sought a determination of one dispute under Schedule 2(3)(e) and should be allowed only one fee. The insurer also submits that the claimant should not be awarded the maximum regulated fee because the claimant was self-represented until the first teleconference and his solicitor only lodged one set of submissions thereafter.
In my view, the claimant should have costs for each of the three miscellaneous claims assessment matters that I have had to assess and certify. The maximum amount is $1,992. I do not propose to allow the maximum amount for each of the three matters because there was a degree of overlap in relation to them all and the claimant’s solicitor only came into the disputes in the last two months and a substantial amount of work had already been done by the claimant himself gathering the evidence and referring to the cases and the legislation.
I will therefore allow the claimant $1,000 in costs for each of the three disputes to which Goods and Services Tax should be allowed making a total of $3,300.
3
6
0