Freitas v QBE Insurance (Australia) Limited
[2025] NSWPIC 475
•11 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Freitas v QBE Insurance (Australia) Limited [2025] NSWPIC 475 |
| CLAIMANT: | Leonardo De Souza Freitas |
| INSURER: | QBE Insurance (Australia) Limited |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 11 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; whether claimant wholly or mostly at fault; claimant riding motorbike when vehicle in front stopped suddenly due to the vehicle in front of it stopping with no brake lights; claimant braked but did not have ABS brakes and lost control of rear wheel (road was wet and slippery) before colliding with rear of vehicle in front; Held – claimant contributed to the accident by not adjusting the distance between him and the vehicle in front to take account of the wet weather; driver of van in front of the claimant did not contribute to the accident; driver of vehicle in front of the van did contribute to the accident by driving with defective brake lights; claimant’s contributory negligence assessed at 50%; claimant not wholly or mostly at fault; case of AAI Limited t/as GIO v Evic followed as to the approach to be taken in a dispute about wholly or mostly at fault. |
| DETERMINATIONS MADE: | CERTIFICATE OF DETERMINATION In accordance with Division 7.6 of the Motor Accident Injuries Act 2017 The Personal Injury Commission’s assessment is: 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 Act (MAI Act), the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. For the purposes of s 3.28 of the MAI Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 3. In accordance with s 3.38 of the MAI Act, the claimant’s weekly payments of statutory benefits are to be reduced by 50% on account of the claimant’s contributory negligence. A statement setting out the Commission’s reasons for the assessment is included with this certificate. |
STATEMENT OF REASONS
INTRODUCTION
Leonardo De Souza Freitas was involved in a motor accident on 2 May 2024. Mr De Souza Freitas was riding his motorcycle and ran into a van in front of him which had stopped suddenly. The male driver of the van said he stopped suddenly because the brake lights of the vehicle in front of him were not working. The claimant’s motorbike fell onto the claimant’s foot and the claimant sustained a fracture and ligament damage.
On or about 15 May 2024, Mr De Souza Freitas made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against QBE Insurance (Australia) Limited (QBE) the third-party insurer of the claimant’s own motor vehicle. QBE accepted the claim and commenced paying Mr De Souza Freitas his statutory benefits.
In a letter to the claimant dated 5 February 2025, QBE denied any liability to pay ongoing statutory benefits to Mr De Souza Freitas on the basis he was “wholly or mostly at fault”.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. QBE affirmed the original decision. Mr De Souza Freitas does not agree with the insurer’s decision and has referred the issue of whether he is wholly or mostly at fault to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings have been allocated to me.
LEGISLATIVE FRAMEWORK
Mr De Souza Freitas’ claim is for 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.
Under s 3.1 of the MAI Act 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 52 weeks 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.
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%.
Mr De Souza Freitas has been receiving statutory benefits for lost earnings and for treatment he has had for his injuries. The parties agree that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Mr De Souza Freitas 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 her treatment and care benefits (schedule 2, cl 3(e)).
If a motor accident is not caused “wholly or mostly” by the fault of the claimant under s 3.38, weekly benefits can be reduced by the degree of any contributory negligence found. Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether the claimant’s weekly statutory benefits should be reduced for his contributory negligence.
INSURER DECISION MAKING AND PARTIES’ SUBMISSIONS
Insurer’s original decision
In the liability notice of 5 February 2025,[1] the insurer alleged the claimant was wholly or mostly at fault because he failed to ride in a safe matter and in accordance with the prevailing conditions and he failed to maintain adequate control over his motor bike.
[1] Page 6 of the insurer’s reply bundle.
Claimant’s request for internal review
In an email dated 9 February 2025, the claimant refers to the police report which stated the accident was due to the wet weather and that the claimant’s motor bike slipped from under him. He says:
“… if it was not wet, I would not slip and not have an accident. The police also couldn’t check if there was any oil on the road which could increase the risk of slide.”
Insurer’s internal review
On 14 February 2025 the insurer affirmed its decision telling the claimant he was wholly or mostly at fault because he failed to ride in a same manner according to the prevailing conditions and failed to maintain adequate control of his motorcycle.
The insurer said:
(a) there is no evidence confirming the vehicle in front of the van did not have working brake lights and that this version of events is inconsistent with the Police report that he had made;
(b) there is conflicting evidence about whether he made contact with the van. While he mentions hitting the step at the back of the van in his claim form he did not tell the police about this;
(c) there is no evidence confirming oil on the road;
(d) the police report does mention the wet road surface;
(e) the police did not attend the accident scene and the report made by the police was based on the history given by the claimant eight days after the event;
(f) it is a driver’s responsibility to drive to the prevailing conditions, and
(g) the sole contributing factor causing the vehicle to lose balance and slip was the way in which the claimant was riding his vehicle.
The insurer says the claimant is in breach of the NSW Road Rules 2014 in failing to maintain proper control of his vehicle (rule 297(1)) and that he failed to maintain a safe distance (rule 126) from the vehicle in front.
The second liability notice and internal review
The insurer then obtained a factual report from Brooksight investigations and issued a second liability notice to the claimant dated 9 May 2025.[2] This notice affirmed the previous decision that he was wholly or mostly at fault but considered the claimant’s signed statement which recounted the conversation with the van driver about the brake lights on the vehicle in front of him.
[2] Page 39 of the insurer’s bundle.
In an email to the internal review team dated 7 June 2025[3] the claimant says:
“There is no evidence that I was at fault, the weather conditions was not good, could have [been] oil on the road that made my motorcycle tyres slid on the road when I braked it and made me lost the stability.
QBE is not considering all the aspect of my accident, such as the road was wet and could have oil on the road, and also have a very fragile argument to say that I was at fault.”
[3] Page 42 of the insurer’s bundle.
In the internal review decision dated 30 June 2025,[4] the insurer again advised the claimant that he was wholly or mostly at fault because he failed to ride safely in the prevailing conditions and did not maintain control of his motorbike.
[4] Page 43 of the insurer’s bundle.
The insurer says the police report nominated the claimant as the at-fault party. The insurer notes the claimant’s reference to oil on the road and says, “there is no evidence to support the presence of oil, and cannot accept this as a contributing factor.”
The insurer acknowledged that the road surface was wet but notes the police report does not mention the weather and attributes blame to the claimant.
The insurer says the claimant is in breach of the NSW Road Rules 2014 in failing to maintain proper control of his vehicle (rule 297(1)) and that he failed to maintain a safe distance (rule 126) from the vehicle in front.
Claimant’s submissions
Mr De Souza Freitas says in his application to the Commission that the accident occurred on a raining day, the road was wet and slippery and that there could have been oil on the road that caused his motorcycle tyres to lose contact with the road which in turn caused his motorbike to slide and led to the accident. He says:
“QBE is [alleging] that the police report does not mention oil on the road however it has been reported 8 days after my accident, so the police was not able to investigate the accident scene details as has been passed days after the event.
QBE also says I didn't mentioned if there was oil on the road before, I don't know if there was oil or not on the road, when you suffer an accident and hurt yourself you do not pay attention on all details but something made me slid on the road and it could be oil, so QBE cannot prove that there was not oil on the road that day.”
Insurer’s submissions
QBE, in the submissions lodged with the reply, after summarising the relevant events in the claim at [1] – [8]; citing the law at [9] – [12] and summarising the evidence at [13] – [23] says that:
(a) the claimant is wholly or mostly a fault due to his failure to follow a vehicle in front at a safe distance in accordance with rule 126 of the Road Rules;
(b) while the claimant says that the vehicle in front of him braked suddenly, the requirement to travel at a safe distance remains, and
(c) there is no substantiated evidence confirming oil or any other hazard on the road.
REVIEW OF THE EVIDENCE
Claim form
The claim form was signed as true and correct by the claimant on 15 May 2024[5]. He identified the date, date and time of the accident and provides this description:
“I was riding my motorcycle and the road was wet, a van suddenly braked in front of me (its driver told me the brake lights of the vehicle in front of him were not working), I braked my motorcycle but because of the road was wet my rear tyre slid causing a lost of control, I managed to reduce the speed as much as I could but I hit the step at the rear of the van between 5-10km/h, what made me lost balance, I fell off, and my motorcycle fell off on my left foot. There was no damage for anyone else.”
[5] Page 1 of the claimant’s bundle.
The claimant says he fractured his left foot and ruptured a ligament which required surgery. He says he was admitted to St George Private Hospital.
Police report
Police did not visit the scene of the accident. On 10 May 2025, the claimant attended St George Police station and Constable Buncombe from the St George Police Area Command took the report and created the document.
The police report refers to the accident as a “major traffic crash” occurring on Stoney Creek Road at Kingsgrove near the Smiths Avenue intersection. The accident was said to have occurred on a straight level stretch of road and that the prevailing weather was “raining” and the surface of the road was wet. It was said to be dark. The speed limit was documented as 60 kms per hour.
Only one person and one vehicle were identified, the claimant and his motorcycle. The narrative details of the accident are stated as:
“About 8:40pm on the 2nd of May 2024, DRI 1 was riding East Bound of Stoney Creek Road, Kingsgrove when a NK[6] vehicle braked in front of him. Due to the wet weather DRI 1's bike slipped from under him crushing his left foot.”
[6] Not known.
Claimant’s statement
The claimant gave a statement to QBE’s investigators[7]. Mr De Souza Freitas gave his birthdate, and I note he was 43 years of age at the time. He said:
[7] Page 14 of the claimant’s bundle.
(a) he first learned to ride a motorcycle in 2018 but ceased until recommencing riding in 2023 [11];
(b) he had no previous accident or claims [14] and had never made a claim for comprehensive insurance [15]. He disclosed one traffic infringement notice issued in 2023 when he driving a motor vehicle [16];
(c) he was riding his Harley Davidson motorcycle at the time [20] and it was in good condition with no defects [21] and he had ridden it many times [22] and had it serviced regularly [23];
(d) he was riding alone [25] wearing his glasses [26] and protective clothing including a helmet [27] and work safety boots;
(e) he was riding to work and left home at 7.30am [29];
(f) it was overcast but not raining and visibility was clear, the sun had risen and the roads were lit by daylight. He says he was riding with his headlights on [32];
(g) just before the accident it was sprinkling [33];
(h) there were two lanes of traffic in each direction [35];
(i) he was riding at around 40 kms per hour due to wet and heavy traffic [40]. He was in lane one of two traveling in the middle of the lane [41];
(j) he was riding behind a van and does not recall the distance but says he usually leaves a five second gap [42];
(k) when he was next to Smith Avenue, the van in front “suddenly and sharply braked, similar to an emergency brake” [43];
(l) Mr De Souza Freitas says he gradually pressed his front and rear brakes “so as not to skid” in the wet however his rear tyre began to skid immediately to the right [44]. He kept control of the handlebars and the front wheel, but his rear tyre skidded [45];
(m) he continued to brake (now braking harder) and he lost control of the front wheel which began to skid and he lost control of the bike [48];
(n) his front tyre collided with the metal step at the rear of the van at around 8 kms per hour. The speedometer stopped at the time of impact [49], and
(o) the impact caused him to lose balance, and he fell to the left while still on the motor bike [50] and the motorcycle and its gear box landed on his left foot [51].
After the collision the driver of the van stopped to help. The claimant got his foot out from under the motor bike and was able to walk, with a slight limp. There was no damage to the van and the driver helped the claimant move the motorcycle [55]. The driver offered to call an ambulance, but the claimant said no [56].
At paragraph 57 the claimant says:
“I had a conversation with the driver of the van. The van driver said words to the effect of ‘sorry, the guy in front of me, the brake lights of the car weren’t working, and I had to brake suddenly’”.
Mr De Souza Freitas did not get the license details of the van driver he said because the van was not damaged, and the driver left. He could not start his motorcycle and it was left for his mechanic to pick up. His pain increased in his left foot, and he rang his wife who collected him and took him to St George Hospital. He was admitted and had surgery including plates and screws, and he was discharged in a moon boot. He has had three separate surgeries.
The claimant provided the insurer with a marked up aerial photograph of the scene of the accident and photographs of the damage to his motorcycle.
The insurer’s investigators, Brooksight Investigations noted the van driver could not be identified and that there were no further investigations that could be undertaken. The investigator notes that the claimant did not mention oil on the road at the time the statement was given.
The claimant’s evidence at the preliminary conference
Mr Freitas said he had been in Australia for nine years and that he has been riding for 25 years. He said he had been riding motorcycles in Brazil but only got his motor bike license when he came to Australia.
The claimant confirmed he did take medication for high blood pressure, but it does not affect his alertness or the way he drives.
He confirmed he had been riding his motorcycle for two years, nearly every day. For the year before the accident, he was living at Narwee and his ride to work was about 12 to 13kms each way and before that, he lived in Liverpool and the ride to work was much longer, 25kms each way.
The claimant confirmed that the traffic was heavy on the day but it was moving. It was peak hour. He confirmed he was riding at about 40 kms/h and that he was travelling five seconds behind the vehicle in front.
He explained he was travelling in the middle of the lane which is recommended in training as the safest place to be, because it is further away from the vehicles in other lanes and he has a better view of what is going on and it gives him more time to avoid impacts or move around and away from vehicles merging into the lane.
He confirmed he was riding behind a van which had a step leading into it. He thought it was a painter’s van or a plumber’s van but he was not sure. He said the van he hit did not hit the vehicle in front of it. He confirmed the van in front “made a sudden and sharp brake and his brake lights came on” the driver told him that the vehicle in front’s brake lights were not working which was why he had to stop so suddenly.
The claimant said he hit the van at 8km/h and coming into contact with the van helped him stop. Mr De Souza Freitas explained that he lost control before he hit the van and that it takes more space to stop when you have not got control because you are trying to recover control of the bike as well as brake and you cannot brake sharply or it the loss of control gets worse.
Mr De Frietas said that motorbikes have back wheel brakes and front wheel brakes and in an emergency, you may have to use both. He said if you use the front brake only you are more likely to fall off (as the bike tips up) and that if you lose control of the front wheel and slide you will likely fall over straight away.
Mr De Souza Freitas said his motor bike did not have an anti-lock braking system (ABS brakes) and he explained that if it had that feature, the accident would not have happened because the ABS system would prevent the loss of control.
He said he did not hit the van in front hard, and the van was not damaged. He said he was about to stop when he hit the van. When the front wheel hit the van, the wheel turned in his direction and he fell sideways and the motorcycle fell with him onto his foot.
He was of the view there could have been oil on the road, not in terms of an oil spill, but an oily film that appears when the road is wet. He said if his wheel had not slipped, he would not have had the accident as he would have been able to maintain control of his motorbike and stop in time.
PROCEDURAL MATTERS
At the preliminary conference, I asked Mr De Souza Freitas whether he had a lawyer, had seen a lawyer or wanted to get a lawyer. He said he did not.
After Mr De Souza Freitas had given the additional evidence in answer to my questions, I asked Mr Ibanez whether the insurer had any questions to ask the claimant. Mr Ibanez said he did not and that the claimant’s evidence and the statement contained all the information the insurer relied on.
I asked whether any additional evidence was to be obtained, and the insurer said there was none, and Mr De Souza Freitas said he had no further evidence to put before me.
As Mr Ibanez was unaware of the decision of Justice Mitchelmore in AAI Limited t/as GIO v Evic[8] the insurer was given time to lodge further submissions.
[8] [2024] NSWSC 1272.
The insurer lodged further submissions which said:
(a) Evic may not apply as the claimant’s accident was not a single vehicle accident;
(b) if the claimant’s motorcycle collided with the rear of the van, then the claimant is wholly or mostly at fault;
(c) a reasonable motorcyclist in the position of the claimant would have anticipated the increased stopping distance required on a wet road and kept a greater distance from the vehicle in front to avoid a collision;
(d) the claimant has failed to ride to the prevailing conditions and has failed to maintain a safe distance, and
(e) the action of colliding with the rear step of the van was what caused the claimant to lose his balance.
FINDINGS OF FACT
In order to determine whether Mr De Souza Freitas is wholly or mostly at fault, I must first make findings as to the facts and circumstances surrounding the accident.
There are no independent witnesses to the accident. The insurer retained investigators, but the investigators were unable to ascertain the identity of the driver of the van or the vehicle in front of it.
The insurer took issue with what was not in the police report (the absence of any report of what the van driver said and the failure to complain about an oily or slippery road).
The police did not attend the accident scene and simply took a report from the claimant over a week after the accident. The police report contains inaccuracies for example it suggests the accident occurred at night when it was dark and not during the morning peak hour when it was light. The claimant gave evidence at the preliminary conference. English is clearly his second language. While I had some difficulties following what he was saying at times, I took the time to clarify what he was saying and am satisfied I understood what he was telling me. In the absence of evidence from the police officer who took the claimant’s statement and in the light of the errors in the police report, it may be that the police officer did not clearly understand what the claimant was telling him.
The police report includes a very brief narrative of the accident which can only have been written by the police officer on the basis of what the claimant told him. The police officer’s notebook, any written statement that was taken or body worn camera footage have not been put before me by the insurer. The other vehicles were not identified and the police took no action against the claimant, for example for any breach of the Road Rules. It may be that the brevity of the police report is a reflection of the fact there was to be no further involvement of the police.
For the above reasons I am not satisfied that the very brief report of the accident contained in the police report casts doubt on the reliability of the claimant’s evidence about what occurred and how the accident occurred.
The claimant provided a version of events in the claim form dated 15 May 2024. He includes in this version of events that the road was wet, what the van driver said, the slip of the rear tyre and the loss of control and the falling off the bike.
Mr De Souza Freitas provided further detail in his statement to the investigators. In his communication with the insurer Mr De Souza Freitas said that he may have slipped on oil. At the preliminary conference Mr De Souza Freitas explained that there was not an oil spill but that the road was slippery because it was wet and that the surface of the road was oily.
Mr De Souza Freitas’ evidence was not challenged by the insurer at the preliminary conference. The insurer had the opportunity to test Mr De Souza Freitas’ evidence.
I note that factual findings must be supported by logical and probative evidence. Any inferences that are drawn must be reasonably open on the facts[9]. I am satisfied on the evidence before me that:
(a) the accident occurred at around 8.00am in the morning, it was light, the road was wet and it was drizzling. I make these findings on the basis of the claimant’s unchallenged evidence as to the time and date of the accident. His description of the weather and state of the road has been consistent since he reported these things to the police;
(b) the claimant was riding his motor bike at 40 kms/h on the day when the vehicle in front stopped suddenly in an emergency braking type situation. I make this finding on the basis of the claimant’s unchallenged evidence and his consistent history of sudden braking given to the police, to the insurer, to the insurer’s investigators and to me;
(c) the vehicle in front of the van had defective brake lights. I make this finding on the basis of the claimant’s unchallenged and consistent evidence of what the van driver told him, which included in his claim form, reported to the insurer’s investigator and the evidence he gave to me. The driver of the van stopped to help the claimant move his bike and offered to call an ambulance. It appears reasonable to me that the van driver would offer an explanation to the claimant as to why he had to stop so suddenly. The explanation he gave was that the vehicle in front of him had defective brake lights. I am of the view that it is reasonable for me to draw an inference that the van driver had to stop suddenly as he had been given limited warning of what that other vehicle was doing due to the absence of its brake lights;
(d) on seeing the brakes of the van come on, the claimant applied his brakes carefully so as not to lose control, but his rear wheel lost control. His motor bike did not have ABS brakes. I make these findings on the basis of the claimant’s oral evidence and his written statement;
(e) the claimant’s rear wheel lost control due to the state of the wet road. I make this finding on the basis of the claimant’s evidence and my own experience and understanding that oil, grease, particles of rubber from tyres and dirt can accumulate on the road over time by the ordinary movement of traffic. When combined with rain, this makes roads slippery;
(f) the claimant had to fight to gain control of his bike which made braking in time difficult which led to his collision with the back of the van. I make this finding on the basis of the claimant’s oral evidence and his written statement, and
(g) the collision with the back of the van caused the motorcycle to fall to the left and on top of the claimant’s foot (there is no dispute about this).
APPROACH TO THE DETERMINATION OF THE DISPUTE
[9] See Australian Broadcasting Tribunal v Bond (1990) HCA 33 at [367].
What does the Act say?
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[10], 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%.” [emphasis added)]
[10] 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 AAI Limited t/as GIO v Evic[11] was required to interpret these sections in the circumstances of the rider of a motorbike, the foot peg of which, got caught up between Mr Evic’s boot and his riding pants. As a result, Mr Evic’s 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 injured in a single motor accident and could not be “at fault” (as in negligent) and therefore could not be wholly or mostly at fault[12] and was entitled to ongoing benefits.
[11] [2024] NSWSC 1272.
[12] See paragraph 26 which includes the relevant parts of the Member’s decision.
In the course of her reasons, Justice Mitchelmore said the following:
(a) an injured person’s entitlement to benefits does not require the claimant to prove fault and there is no distinction in the legislative scheme between single and multi-party accidents [55];
(b) the phrase ‘wholly or mostly’ at fault is a composite phrase (not two separate concepts);
(c) the phrase is addressed at the claimant’s contributory negligence [56] relevant to the accident (and not the injury) which “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 s 5R(2)(a) of the CL Act and the test of contributory negligence is “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), the claimant’s contributory negligence is assessed by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk[13] 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 citing at [68] Axiak v Ingram[14] and at [69] Davis v Swift[15] two blameless accident cases from the previous motor accident insurance and compensation scheme, and
(g) if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) requires an assessment of the degree of contributory negligence that is “just and equitable in the circumstances of the case” [73].
[13] [2023] NSWSC 788.
[14] [2012] NSWCA 311 where contributory negligence for a reckless pedestrian in a no-fault (blameless) accident was assessed at 50%.
[15] [2014] NSWCA 458 where contributory negligence for another in a no-fault (blameless) accident was assessed at 80%.
I reject the insurer’s submission that Evic may not apply to Mr De Souza Freitas’ claim because Evic involved a single vehicle accident. Justice Mitchelmore was interpreting the provisions of ss 3.11 and 3.28 and the meaning of the phrase “wholly or mostly at fault.” While she was considering those provisions in a single vehicle accident case, she said at various points throughout her decision that the meaning of that phrase accommodates all kinds of accidents regardless of the number of motor vehicles involved in the accident. See for example paragraphs [55], [57], [61] and [62].
It is also significant that while Justice Mitchelmore determined how contributory negligence is to be assessed in a single vehicle accident at [62] – [69], she also addressed how contributory negligence should be assessed under the MAI Act in accidents involving more than one road user at [61].
I accept therefore that the reasoning of Justice Mitchelmore guides me in how to determine the dispute about QBE’s liability for Mr De Souza Freitas’ statutory benefits. I propose therefore to proceed by determining:
(a) is there any contributory negligence on the part of Mr De Souza Freitas? This is to be determined by application of the test of the reasonable person in the position of the claimant, and
(b) if so, what is the degree of that contributory negligence. In assessing the degree of contributory negligence, I will need to compare the relative culpability of Mr De Souza Freitas with the culpability of the other drivers whose fault or negligence caused or contributed to the accident.
Who bears the onus of proof?
Insurance Australia Limited t/as NRMA v Richards[16] establishes that the onus of proof in satisfying me whether the claimant is “wholly or mostly at fault” lies with the insurer.
[16] [2023] NSWSC 909 at [45].
What is the relevance of the road rules?
The Court of Appeal in the case of Verryt v Schoupp [2015] NSWCA 128 made the following observation at [4]:
“Neither party referred to or relied upon any Australian Road Rule as relevant to the determination of any question of negligence and contributory negligence. That is perhaps explicable on the basis that the determination of what reasonable care requires in any given case is not resolved by asking whether the relevant conduct was or was not prohibited by one of those rules. Nevertheless, the fact that particular conduct is prohibited may in some cases be a factor pointing to the conclusion that reasonable care was not taken …” [emphasis added]
In other words, a breach of the Road Rules by the claimant does not determine whether the claimant is wholly or mostly at fault but does guide me in the decision-making process when considering whether any of the drivers involved in the accident departed from the required standard of care.
What is reasonable care?
I note the finding of the Court of Appeal in Mamo v Surace[17]. In that case the court was dealing with the issue of negligence on the part of a driver who collided with a cow on the roadway at night. The driver had been, for a couple of seconds before the collision, adjusting the CD player in the car. Justice McColl said at paragraph [60]:
“Accepting that the exercise of reasonable care required the respondent is to be able to control the vehicle so as to know what is happening in the vicinity of the vehicle so as to be able to take reasonable steps to react to those events (Manley v Alexander …) and does not, as Meagher JA pointed out in Marien v Gardiner, require the reasonable driver to be able to, in effect, foresee every event which might happen in the vicinity of the vehicle or, at all times, be in a position to react to everything which might occur.”
[17] (2014) 86 NSWLR 275.
The court’s finding at [96] was that reasonableness and not perfection is required.
THE ASSESSMENT OF CONTRIBUTORY NEGLIGENCE
Did Mr De Souza Freitas contribute to the cause of the accident?
I am satisfied that Mr De Souza Freitas did contribute to the accident for the following reasons:
(a) he knew the road was wet and it had started to rain again, and
(b) he knew he was riding a motorcycle without ABS brakes and that this meant he had to take extra care when stopping and braking so as not to lose control.
A reasonable motorcyclist knowing those two things would have anticipated that the road might have been slippery after rain and that it was possible he could lose control if he had to brake suddenly. A reasonable motorist would, in my view, have left extra time and distance between him and the vehicle in front in order to stop safely if it was necessary to do so. A reasonable motorist would appreciate that not all drivers of motor vehicles will drive safely at all times and that it is possible for there to be sudden events while riding a motor bike that require a rapid response.
What is the degree of the claimant’s contributory negligence?
There was more than one person involved in this accident, there were three:
(a) the claimant,
(b) the driver of the van in front of the claimant, and
(c) the driver of the vehicle in front of that.
As Justice Mitchelmore found at [61] in Evic where there is more than one vehicle, the degree of contributory negligence requires an assessment of the relative culpability of each of the drivers who caused or contributed to the accident.
The claimant reported that the driver of the vehicle he collided with braked suddenly because the vehicle in front of him braked suddenly and had no brake lights. The driver of the vehicle the claimant collided with was therefore confronted by an emergency situation but managed to stop in time. I am not satisfied that there was anything the van driver did or did not do that contributed to the cause of this accident. He was faced with the emergency of the vehicle in front stopping without warning and he braked suddenly avoiding a collision with the vehicle in front.
I have accepted the claimant’s evidence that the van driver told him that the vehicle in front had defective brake lights which gave him little warning and led to him braking suddenly and harshly. On the basis of that finding, I am satisfied the driver of that vehicle departed from the standard of care required. A reasonable driver would not drive a vehicle with defective brake lights.
I note Mr De Souza Freitas was not under the influence of any substance at the time he was driving, and he was not speeding. He was driving at peak hour in heavy traffic. He was driving in the centre of the lane which he described as the safest part of the lane. He was keeping a proper lookout and reacted as soon as he saw the brakes of the van in front come one. His accident occurred because he had to brake suddenly and in doing so, he lost control of his motor bike and took extra time and therefore extra distance to slow down and stop. The reason he had to brake suddenly was because of the emergency situation caused by the vehicle with defective brake lights.
In my view the two drivers that contributed to the cause of this accident, were equally culpable. I therefore assess the degree of the claimant’s contributory negligence at 50%.
CONCLUSION
As I have found the claimant did contribute to the cause of the accident and his contributory negligence should be assessed at 50%, it follows that he is not wholly or mostly at fault. His statutory benefits should therefore continue albeit with his weekly benefits being reduced.
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