Gray v QBE Insurance (Australia) Limited

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 a loss of control and he collided with the kerb in lane1. He was dislodged from his motorcycle and sustained serious injuries.
There was a fellow motorist, Katie Meyers, travelling in lane one, initially ahead of the claimant and subsequently, behind the claimant, who was operating a dashcam, and the footage, I determine clearly captures the entire incident.
The dashcam was viewed several times at the assessment conference. The insured driver did not attend the assessment conference for the purposes of being questioned.
The insurer, in their statement of reasons, considered the claimant wholly or mostly at fault, and after 52 weeks, the weekly payments under ss 3.11 and 3.28 will be ceased. The claimant submits he was neither wholly or mostly at fault in the motor accident and is entitled to a continuation of statutory benefits. He has now filed this application seeking a determination of the dispute with the insurer.

Documents considered.

I have considered the documents provided in the Application and in the Reply, including the dashcam footage. I also considered other documents which were subsequently lodged on the portal by both parties.

LEGISLATIVE FRAMEWORK

Entitlement to statutory benefits.

The claimant's entitlement to benefits is contained within Part 3 of the MAI Act. 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(1a), an injured person is not entitled to statutory benefits beyond the first 52 weeks after the accident, if the motor accident was caused wholly or mostly by the fault of the injured person.
Whilst 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 the enacted law.

Claimant’s Submissions

The claimant lodged an Application for Personal Injury Benefits, dated 11 February 2025, in which he described the circumstances surrounding the accident as follows:
“Travelling with general flow of traffic I overtook one vehicle and as I merged back to the left lane, I saw a black Jeep starting to merge into my lane. I thought the Jeep was going to run me off the road and I remember braking so as to avoid a collision with the Jeep “.
The insurer bears the onus of proof, both evidentiary and legal, to establish the claimant was wholly or mostly at fault for causing the motor vehicle accident.
I refer to the Police report dated 8 October 2024, and I note the following under the heading ‘Crash Summary Details’ on page 5:
“Motorcycle KO165 drive westerly on Schofields Road and attempted to use the left lane vehicle to overtake vehicle J38. The rider of the motorcycle lost traction and fell off his motorcycle causing both legs to be broken.”
The report states on page 2 the speed limit for the road is 80kph. This is incorrect. It is clear from the dashcam footage the submissions from both parties, the correct speed limit is 70kph.
I refer to the statement of the claimant dated 7 July 2025, and I note the following paragraphs:
“8. After passing the intersection I recall travelling behind a black Jeep. A short time later the black jeep and I passed a car on our left. The black jeep continued in the right lane and after I cleared that car, I then changed into the kerbside lane.
9. Very shortly after entered the kerbside lane, I saw the Jeep brake suddenly and the Jeep started to move across into my lane. I immediately applied my brakes. I then have very little memory of what happened after that.
10. I remember being thrown off the bike and my legs hitting something and I could no longer remember feeling them.”
I refer to the submissions from the solicitor for the claimant dated 7 May 2025 and I note the following paragraphs:
“1. Mr Gray was operating a motorcycle along Schofields Rd. Schofields. Dashcam shows Mr Gray keeping with the flow of traffic Mr Gray’s indication to move to the left lane can be seen on dashcam footage at 8.43.44. As Mr Gray merges into the left lane, a black Jeep driven by Samreet Sekhon, suddenly brakes and begins to merge lanes in front of him. The Jeep crosses over the white line before moving back to its original lane. In an attempt to avoid a collision with the jeep, Mr Gray had to brake and subsequently lost control of his motorcycle resulting in it colliding with the kerb.
2. The dashcam confirms the circumstances wherein Mr Sekhon’s sudden attempt of lane merging necessitated Mr Gray’s evasive action.
3.. Constable Bill Hart confirms in his statement at paragraph A33,
“He (Mr Gray) just kept saying. “There was a black jeep. I thought he was going to run me off the road.”
This conversation took place with Mr Gray whilst he was still laying injured on the kerb.”

Insurer’s Submissions

The insurer submits the accident was wholly or mostly the fault of the claimant.
I refer to the submissions of the solicitor for the insurer, and particularly the submissions dated 3 August 2025. The insurer refers to the statement of Katie Meyers dated
15 November 2024. There is reference to the following paragraphs:
“14. On September 2024 I was driving along Schofields Rd in the left lane. I was travelling to the speed limit. I was driving from the direction of Rouse Hill Town Centre and was travelling home to Marsden Park.
15. I heard a motorcycle behind me, when I reached the top of the hill, and I saw a Ute drove past me in the right lane. When the ute was a little bit ahead, the motorcycle came up behind the ute and switched lanes to the left lane in front of me. I never saw the motorcycle use a blinker.
16. At the same time this happened, the ute then put on his blinker to switch lanes and start to move across to the left lane, however as soon as the driver noticed the motorcycle the ute move straight back into the right lane. The motorcycle saw the ute, went to merge into the left lane and started to move closer to the curb, however the motorcyclist went too close to the curb and hit the curb which resulted in the driver falling off the bike onto the footpath.”
The insurer submits the footage of the dashcam does not support the assertion made by the claimant that the insured vehicle started to merge into his lane in circumstances where the tyres of the left-hand side of the insured vehicle remained on the broken white lines on the middle of the road from 28 seconds to 30 seconds.
It is also submitted the footage does not support the assertion made by Ms Meyers that the insured vehicle moves back to lane 2 after it had started to move across to lane 1. It is submitted there was no sudden or unexpected movement made by the insured vehicle prior to the claimant losing control of his motorcycle. Further it is not obvious the insured driver engaged his blinker to switch lanes and start to move across to the left lane as reported by Ms Meyers.
The insurer submits the claimant failed to maintain proper control of his motorcycle and overreacted in the circumstances, as there is no evidence the insured driver made a sudden or unexpected movement to force the claimant to react in the manner he did. A reasonable person in position of the claimant would have been able to control the motorcycle and manoeuvred safely after changing lanes, if travelling within the speed limit, and in circumstances where there is no danger as there was no sudden or unexpected movement made by the insured driver travelling in the adjacent lane.
In summary it is submitted the accident was caused by the claimant travelling in excess of the speed limit and failing to maintain proper control of his motorcycle.

REASONS

Was the claimant wholly at fault in causing the accident?

I refer to the decision of Member Cassidy in the matter of Custovic v Allianz Australia Insurance Limited [2024] NSWPIC 605. Member Cassidy discussed the approach to a dispute about fault in a statutory benefits claim and referred to sections 3.11 and 3.28 of the MAI Act and the case of AAI Limited t/as GIO v Evic [2024] NSWSC 1272. I note the following, commencing at paragraph 116:
“116. Justice Michelmore in Evic undertook the exercise in interpreting these sections and how they are to apply in a single motor 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.
117. 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.”
(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.”
(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.”
(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 the person who suffered harm is that of a reasonable person in the position of that person.”
(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. 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 [2023] NSWSC 788.
(f) in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor vehicle 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 cites Axiak v Ingram [2012] NSWCA 311 and Davis v Swift [ 2014] NSWCA 458 and says, “the inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence.
(g) the composite phrase in the legislation “caused wholly or mostly by the fault of the person” is “directed at an inquiry 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.”
I am not required to make a finding of fault, responsibility or culpability on the part of any other person. The claimant does not have to prove fault on the part of anyone to obtain statutory benefits. His benefits will cease if he was wholly or mostly at fault and as Justice Mitchelmore found this only requires a consideration of whether there is contributory negligence, and if so, the degree of it. As Member Cassidy stated in her reasons in the matter of Custovic, 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.
I again, refer to the decision of Justice Mitchelmore in the case of Evic referred to in paragraph 21 above. It is not necessary for me to make a finding, responsibility or culpability of any other person. The claimant does not have to prove fault on the part of anyone to obtain statutory benefits.
I refer to the interview of Tara Dunn, an investigator engaged by the insurer, and Constable Bill Hart, dated 29 October 2024. The interview confirms the dashcam footage was provided to the police by Katie Meyers. Constable Bill Hart interviewed the insured driver and commencing on page 5, it is recorded as follows:
“Then I saw the car in front of me stop, so I put my left indicator on. Then I was in the middle of the lane then I saw him crashing on the side”.
On page 6 I note the following:
“Did you see the collision? no, he was behind me. How fast were you travelling? around 50 to 55 kilometres, according to the traffic. How fast was the motor vehicle travelling? Maybe double my speed. Maybe 80 kilometres. Did you check your mirrors before merging? Yeah, and then he's…”
I refer to page 8 of the interview. The insured driver states when he saw the car stopped in front of him, he gave indication to move to the left lane and then states he was in the middle of the two lanes and then he saw the claimant crashing on the side. He states on page 9 “I didn't see him before but... “
On page 10 of the interview, the police officer asked the insured driver did he check his mirrors before merging. The insured driver responded “yeah”. On page 13, Constable Bill Hart notes the insured driver did not cross over onto lane one, but rather the wheels of the insured vehicle go on to the white line. These are described as the unbroken lines dividing the two lanes.
On page 15, Constable Bill Hart confirms the insured driver activated his left blinker prior to the collision.
I refer to the transcript taken at the assessment conference and I note the following on page 15:
Counsel for the claimant:
“Would you accept at that point as you passed the dashcam vehicle that you are riding your motorcycle in excess of 80 kilometres per hour?
Claimant:
“I don't know the exact speed I was riding at, It would obviously be higher than 76 for the dashcam footage or dashcam vehicle was travelling at, but I don't know the exact speed.”
Counsel for the claimant:
“Yes, but you would accept that as a likelihood, wouldn't you, that it would be …”
Claimant:
“It could have potentially been 80.”
I refer to page 17 of the transcript:
“Claimant:
“I mean I think they're going from 70 to …I don't know what speed he slowed down to, but I would feel that would be quite dangerous, so I’d probably try evasive action so, yeah
Counsel for the claimant:
“Yes. So, the reason you couldn't stop safely behind the Ute is that you were travelling at an excessive speed, weren't you?”
I refer to page 18 of the transcript:
“Claimant:
“I mean, potentially but as I said, I don't think I would have been able to stop if I'm travelling at 70, I think I would have hit the back of the Jeep.”
Counsell for the claimant,
“Yes, but I'm asking travelling at 70, I'm asking at whatever speed you were travelling at, you could not stop safely behind the Jeep, could you? “
Claimant,
“I understand that what you're saying but I don't think that the extra 8 kilometres or whatever it may have been would have made a different in whether or not I could have stopped. If I was going 70, I don't think I could have been able to stop in time is what I'm saying.”
I note the following on page 20 of the transcript:
“Claimant:
“I didn't attempt to overtake the Jeep. I wasn't attempting to over the Jeep.”
Counsel for the claimant:
“You were attempting to change lanes? “
Claimant:
“I was attempting to change lanes, yes.”
Counsel for the claimant:
“Because you couldn't stop safely behind the Jeep?”
Claimant:
“I mean, potentially but I was moving to that lane regardless, yes.”
I note the following on page 21 of the transcript:
“Counsel for the claimant:
“Because you were travelling too fast?”
Claimant:
“I think you would do that at 70. That particular bike doesn't have ABS so I think attempting to stop at any speed if you were trying to do it quickly you would tend to lock the brakes.”
Counsel for the claimant:
“Having been aware of that problem, it would have been prudent for you to drive underneath the speed limit, wouldn't it?”
Claimant,
“Only potentially.”
Counsel for the claimant:
“In circumstances where you knew there was an issue with the braking mechanism of your motorcycle?”
Claimant:
“It's not an issue with the braking mechanism, I can still stop, it just doesn't have ABS so there's not that additional safety feature.”

I determine the claimant lost control of his motorcycle because the insured driver, who was travelling in front of him, applied the brakes of this vehicle, engaged his left indicator, moved his vehicle towards the kerbside lane, and the wheels of his vehicle went on to the unbroken lines. I accept in such circumstances; the claimant was correct to assume the insured driver would continue this manoeuvre and a collision between his motorcycle and the insured vehicle was a distinct possibility.
The claimant was therefore justified in taking emergency braking of his motorcycle to avoid a possible collision. The dashcam footage confirms the headlight of the claimant's motorcycle was on and he also activated his left indicator when he saw the insured driver had activated his brake lights and activated his left indicator.
I do not accept the statement of the insured driver that he did not see the claimant’s motorcycle in his mirrors before merging. If he had looked in those mirrors, he would have seen the claimant's motorcycle approaching from the rear, at speed, and in those circumstances, he would not have continued to merge into the kerbside lane until it was safe to do so.
I therefore find the accident was not caused wholly by the fault of the claimant.

Was the accident caused mostly by the fault of the claimant?

I was assisted in my determination not this matter by the questions posed to the claimant at the assessment conference and his responses as stated above. I determine because he was travelling at an excessive speed, he was compelled to heavily apply the brakes of his motorcycle, which caused the motorcycle to fishtail, resulting in him being dislodged and thrown onto the gutter.
I determined because of this excessive speed, in the circumstances ,the degree of his contributory negligence should be assessed at 50%..
Accordingly, I determine the claimant is not mostly at fault.

FINDINGS

I find the accident of 30 September 2025 was not caused wholly by the fault of the claimant.
I find the accident of 30 September 2025 was not caused mostly by the fault of the claimant.

COSTS

Both parties make an application for the recovery of their legal costs beyond the maximum amount allowed by the Motor Accident Injuries Regulation 2017 . In this dispute there was a need to draft and serve Direction for Production upon NSW Police and on NRMA Insurance, provision of detailed written submissions ,viewing dashcam footage, participation in two teleconferences, preparation in connection with the assessment hearing ,and a requirement to brief counsel.
I consider it that exceptional circumstances exist for the Commission to permit payment of the claimant’s reasonable and necessary legal costs beyond the regulated amount.
Pursuant to s. 8.10(4)(b) of the MAI Act ,I permit the payment of the claimant’s reasonable and necessary legal costs incurred by the claimant in connection with the claim.
The insurer submits that its application for legal costs is beyond the regulated amount and relies upon the provisions of s, 8.3 (4 )of the MAI Act.
Pursuant to s.8.3 (4) I permit the payment of the insurer's solicitor and client legal costs reasonably incurred in relation to the claim, noting the insurer’s solicitors are not entitled to recover costs for legal service or matter that a court or cost assessor determines were unreasonably incurred.

CONCLUSION

My determination of the miscellaneous claim is as follows:
(a) for the purposes of s 3.11 of the MAI Act, the motor accident was not caused wholly by the fault of the claimant;
(b) For the purposes of s 3.28 of the MAI Act, the motor accident was not caused mostly by the fault of the claimant;
(c) Effective date: this determination takes effect on 7 October 2025, and
(d) 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.

LEGISLATION

In making my decision I have considered the following legislation and guidelines:
(a) the MAI Act.
(b) Motor Accident Injuries Act Regulation 2017.
(c) Motor Accident Guidelines 2020, and
(d) Civil Liability Act 2002.

[2025] NSWPIC 528

7 October 2025