Gray v QBE Insurance (Australia) Limited - [2025] NSWPIC 528

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Gray v QBE Insurance (Australia) Limited [2025] NSWPIC 528
CLAIMANT:	Luke Gray
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	David Ford
DATE OF DECISION:	7 October 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under sections 3.11 and 3.28; claimant was riding his motorcycle travelling behind the insured vehicle; claimant attempted to overtake the insured vehicle at the same time insured vehicle commenced to also change lanes; claimant took evasive action by applying his brakes suddenly resulting in a loss of control and collided with the kerb; claimant dislodged from his motorcycle and sustained serious injuries; fellow motorist operated a dashcam and the footage captured the entire incident; determined the claimant was not wholly or mostly fault determined the degree of the claimant’s contributory negligence assessed at 50%; Held – motor accident not caused wholly or mostly by the fault of the claimant; both the claimant and the insurer are entitled to payment of reasonable and necessary legal costs beyond the regulated amount of legal costs.
DETERMINATIONS MADE:	CERTIFICATE The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person. 3. Effective date: This determination takes effect on 7 October 2025. 4. Legal costs: Both the claimant and the insurer are entitled to payment of reasonable and necessary legal costs beyond the regulated amount of legal costs. 5. A brief statement of my reasons for this determination are attached to this certificate.

STATEMENT OF REASONS

INTRODUCTION

This is a dispute between Luke Gray (the claimant) and the insurer with respect to the payment of statutory benefits pursuant to ss.3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).
The insurer undertook an internal review, and a statement of reasons is attached to the application form and is dated 9 April 2025.
The claimant seeks to challenge the determination.
On 19 September 2024 at approximately 6:43pm the claimant was riding his motorcycle along Schofields Rd at Schofields. Schofields Rd is a two-lane road in both directions. Lane one is the kerbside lane and lane two is adjacent to the median strip. The claimant was travelling in lane two behind the insured motor vehicle.
It then transpired the claimant attempted to overtake the insured vehicle by moving into lane one when, it is submitted, the insured vehicle attempted to change from lane two into lane one, which caused the claimant to take evasive action by applying the brakes of his motorcycle. The claimant, in suddenly applying the brakes of his motorcycle, resulted in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] NSWPIC 528
Decision Date: 7 October 2025

CaseChat Overview and Summary

In the matter of Gray v QBE Insurance (Australia) Limited, the dispute arose from a motor accident that resulted in serious injuries to the claimant, who was riding a motorcycle at the time. The claimant sought compensation from the defendant, QBE Insurance (Australia) Limited, under the Motor Accidents Injuries Act 2017. The central issue was whether the accident was caused wholly or mostly by the fault of the claimant, which would have barred his claim under sections 3.11 and 3.28 of the Act. The claimant attempted to overtake the defendant's vehicle when it began to change lanes, resulting in him taking evasive action and subsequently losing control of his motorcycle, which led to the collision with the kerb and his subsequent injuries. The court had to determine the degree of contributory negligence on the part of the claimant.

The court examined the evidence, including dashcam footage from a fellow motorist that captured the entire incident. It was determined that the motor accident was not caused wholly or mostly by the fault of the claimant. The footage supported the claimant's version of events and demonstrated that the accident was the result of both the claimant's and the defendant's actions. The court assessed the claimant's contributory negligence at 50%, which did not bar his claim under the Act. The court concluded that the accident was not solely due to the claimant's fault and that both parties shared responsibility for the incident.

Following the determination, the court ruled that both the claimant and the insurer are entitled to payment of reasonable and necessary legal costs beyond the regulated amount of legal costs. The decision highlights the importance of dashcam footage in providing an objective account of motor accidents and underscores the need for a balanced assessment of contributory negligence in motor accident claims under the Motor Accidents Injuries Act 2017.

Orders