Hall v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Hall v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 617
CLAIMANT:	Craig Hall
INSURER:	Insurance Australia Limited t/as NRMA Insurance
SENIOR MEMBER:	Brett Williams
DATE OF DECISION:	17 November 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; fault dispute under section 3.11 and s 3.28; claimant was injured in a motor accident while riding his motorcycle on Putty Road, Colo; the insurer denied liability for the claim after 26 weeks on the basis that the accident was caused wholly by the fault of the claimant; insurer argued in the alternative that the accident was caused mostly by the fault of the claimant; collision between the claimant’s motorcycle and insured driver making a right hand turn; claimant attempting to overtake insured driver; where claimant thought the insured driver had pulled over to let him pass; where insured driver did not indicate intention to turn right until he commenced turning; Held – the accident was caused by the fault of both the claimant and the insured driver; claimant’s contributory negligence was not greater than 61%; the accident was caused neither wholly or mostly by the fault of the claimant; costs order under section 8.10(4)(b) made.
DETERMINATIONS MADE:	CERTIFICATE 1. For the purposes of s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on 27 November 2022 was not caused wholly by the fault of the claimant. 2. For the purposes of s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on 27 November 2022 was not caused mostly by the fault of the claimant.

STATEMENT OF REASONS

BACKGROUND

On 27 November 2022 Craig Hall (claimant) was injured in a motor accident on Putty Road, Colo (accident). He subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Insurance Australia Limited t/as NRMA Insurance (insurer).
On 14 March 2023 the insurer denied liability for the claim after 26 weeks on the basis that the accident was caused wholly by the fault of the claimant. The claimant disputed the insurer’s decision, and sought an internal review. On 26 May 2023 an internal reviewer affirmed the insurer’s decision, finding that the claimant was “wholly at fault in the motor vehicle accident”. The claimant subsequently commenced these proceedings. He disputes that the accident was caused by any fault on his part.
The notice in which the insurer denied liability for the claim only refers to s 3.28 of the MAI Act. The internal review decision refers to both s 3.11 and s 3.28. At the preliminary conference the parties confirmed that there were disputes about whether the accident was caused wholly by the fault of the claimant for the purposes of both s 3.11 and s 3.28. At the assessment hearing the insurer argued in the alternative that the accident was caused mostly by the fault of the claimant. These disputes are miscellaneous claims assessment matters: Sch 2 cl 3 (d) and (e) MAI Act.

LEGAL FRAMEWORK

An injured person is not entitled to statutory benefits more than 26 weeks[1] after the motor accident concerned if the motor accident was caused wholly or mostly by the fault of the person: s 3.11(1)(a) and s 3.28(1)(a) of the MAI Act.
[1] Given the date of the accident, the amendments to s 3.11 and s 3.28 made by the Motor Accident Injuries Amendment Act 2022 (Amendment Act) do not apply: s 2 Amendment Act.
For the purposes of s 3.11 and s 3.28 of the MAI Act, 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 s 3.38, was greater than 61%: s 3.11(2) and s 3.28(2).
The MAI Act defines “fault” as “negligence or any other tort”: s 1.4 MAI Act. The parties agreed that, for the purposes of s 3.11 and s 3.28, “fault” means a failure to exercise reasonable care and skill. This mirrors the definition of “negligence” in s 5 of the Civil Liability Act 2022 (Liability Act).
Arguably, Divisions 1-4 of Part 1A of the Liability Act apply to a determination of “fault” for the purposes of s 3.11 and s 3.28. Ms Gumbert submitted that the applicability of the Liability Act was not clear cut, and Mr McAuley did not articulate a concluded position with respect to that issue. Both parties argued that the question did not need to be resolved. The position of the parties was that the common law applied to the determination of fault for the purposes of s 3.11 and s 3.28 of the MAI Act. I agree.
The duty of the driver of a motor vehicle to users of the roadway is to take reasonable care for their safety having regard to all the circumstances of the case: Vairy v Wyong Shire Council [2005] HCA 62 (Vairy) per McHugh J at [26].[2] The duty is always the same: to conform to the legal standard of reasonable conduct in the light of the apparent risk: Vairy at [25]. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. More often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path: Manley v Alexander [2005] HCA 79 per Gummow, Kirby, and Hayne JJ at [11].
[2]
The parties agreed that, for the purposes of s 3.11 and s 3.28, whether the accident had been caused by the fault of either or both the claimant and Mr Baum (accepting that each of them owed a duty to take reasonable care for the safety of other road users) the matters to be determined are: what did the exercise of reasonable care demand in the circumstances, and whether there had been a failure to exercise reasonable care.
The question of whether there has been a breach of duty is to be addressed prospectively and by reference to what a reasonable driver in the circumstances would have done, if anything, by way of a response to any foreseeable risks of injury or sources of danger to other road users.
If I find that both the claimant and Mr Baum failed to exercise reasonable care and skill, and that the accident was caused by the fault of each of them, I will need to make a finding as to whether the contributory negligence of the claimant in relation to the accident was greater than 61%: s 3.11(2) and s 3.28(2) of the MAI Act.
As none of the circumstances referred to in s 3.38(2) are relevant, and there being no percentage fixed by the regulations, the claimant’s contributory negligence is (if relevant) to be determined on the basis of what is just and equitable in the circumstances of the case:

s 3.38(3)(c) of the MAI Act. This involves a comparison both of culpability, that is of the degree of departure from the standard of care of the reasonable person and of the relative importance of the acts of the parties in causing the accident. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination: Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 (Podrebersek).
The burden of proving that the accident was caused wholly or mostly by the fault of the claimant lies with the insurer. It is for the insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that on all of the evidence, it can be concluded that the accident was caused wholly or mostly by the fault of the claimant: Insurance Australia Limited t/asNRMA v Richards [2023] NSWSC 909 at [45] [55] and [67].

ASSESSMENT HEARING

The proceedings were listed for hearing on 30 October 2023. Mr Hall and Mr Scholtes gave oral evidence in person at the hearing. Mr Baum gave evidence by audio-visual link. Both parties made oral submissions. The evidence and submissions are addressed later in these reasons.

EVIDENCE

The documentary evidence relied on by the parties is contained in a joint bundle that was lodged in accordance with directions made at the preliminary conference. The parties have also lodged a statement of agreed facts. I have considered all this material.

The claimant’s evidence

On the day of the accident, Senior Constable Weekes took a brief version of event from the claimant at the scene. The statement is recorded in body-cam footage. Relevantly, the claimant stated that Mr Baum “pulled left”.
I have watched the footage in full. My impression is that the Senior Constable had formed a view about the circumstances of the accident and that the claimant was at fault before he spoke to any of the witnesses at the scene, and that his view firmed after obtaining a version of events from Mr Baum.
In his application for personal injury benefits dated 19 December 2022 (claim form) the claimant provided the following description of the accident:
“[Mr Baum]…was driving east on Putty Rd Colo. I was riding behind him. Mr Baum slowed, pulled slightly left and continued to slow. At NO time did he have any indicator on. As he pulled left and slowed I rode around him. Without warning he simultaneously pulled hard right, putting his indicator on as I was moving passed [sic] him. He collided with my bike as he turned hard right.”
The claimant provided a statement to the investigator instructed by the insurer dated

15 February 2023. He states that he is a regular rider, riding on average at least once a week. He has owned several motorcycles, and has undergone rider training, and undertaken a number of high speed driving courses including the highway patrol course with NSW police. The motorcycle he was riding at the time of the accident was “essentially brand new”. The statement records details of the ride the claimant had been on with a group of riders on the morning of the accident. He states that the weather was sunny and clear and the sealed bitumen road was dry. Visibility that day was “perfect”. At approximately 12.20pm he was riding in an easterly direction along Putty Road, Colo. The speed limit was 80kmph. He was travelling at 80kmph “for the most part”, until his group of six riders caught up with slower moving traffic. He was the lead rider. The slower moving traffic consisted of a car and a trailer, possibly a horse float, that was travelling at approximately 60kmph, and directly behind that vehicle and trailer was the Skoda involved in the accident. He states that he followed these vehicles “doing around 60km/h” for a few kilometres without incident.
The claimant states that “suddenly” he observed the Skoda reducing its speed and that it continued to reduce its speed as it travelled along Putty Road. He states that he made a “full assessment of [his] speed, the Skoda’s speed, the road conditions, the oncoming traffic as well as the gap between the white Skoda and the trailer increasing”. He states that the Skoda continued to slow even more, and “subtly” moved towards the left of the lane. His evidence is that “at no time at this point” as the Skoda began to reduce speed did the driver have an indicator activated. He states that he slowed as the Skoda slowed, keeping a gap of approximately 15-20m from the rear of the Skoda. The claimant states that the “actions of the driver of the white Skoda caused [him] to believe he had seen [him] as well as the several motorcycles behind him” and was allowing them to move past him as a slow travelling vehicle. At [32] the claimant provided his reasons for having formed this opinion. Those reasons include the location and the actions of the driver of the Skoda. He states that:
“…the greatest indicator that caused me to form my opinion was the fact that at no time from 60kmph to stationary or almost stationary did the driver of the white Skoda have a blinker/indicator on to signal his intention.”
The claimant states that approximately 20 to 30m from the point of impact, having “assessed all conditions”, he positioned his bike to the extreme right of the lane to perform an overtake on the “almost stationary/stationary white Skoda”. He states that he was at that time riding at a speed of approximately 20kmph. He maintained his position to the extreme right of the lane and began to accelerate towards the “clear right-hand side” with the intention of passing around the right side of the Skoda. He thought that “based upon all factors at that time” that this was a completely “safe and obvious manoeuvre.” He accelerated and maintained a clear line along Putty Road to the right of the Skoda. He states that:
“As I reached the rear right quarter panel of the white Skoda, without warning the white Skoda hooked 90 degrees turning hard-right straight into the front/left of my motorcycle. Simultaneous as in one movement of turning the steering wheel right, I saw his right indicator come on. I was right next to the white Skoda when he turned and put on his right indicator. I was doing what I believed to be around 60kph accelerating…”
The claimant states that the Skoda impacted into the left/front of his motorcycle causing him to lose control. He slid along the road for approximately 5–10m coming to a rest on the other side of the road. At the time of impact the Skoda was travelling at “less than 20kmph as it swung right”. Immediately prior to making a right turn the Skoda was either stationary or travelling no faster than 10kmph. The claimant states that he had no time to apply his brakes.
In the claimant’s opinion, the driver of the Skoda was “completely at fault” because he failed to signal his intention to turn right and turned directly into him without warning. The claimant states that the location of the accident was very familiar to him, having “ridden that piece of road numerous times in the last 20-years”. The claimant recounted a conversation with

Mr Baum after the accident in which Mr Baum stated “I’m so sorry I did not see you; I had my indicator on”. The claimant states that he heard Rudy Tshaut say “No you didn’t, you never had your blinker on at any time.” The statement records that the claimant said “Yes, your indicator came on at the same time as you turned hard right directly into me.” The statement includes a diagram of the accident completed by the claimant. The diagram places

Mr Baum’s vehicle to the left of the lane and the claimant between the vehicle and the white double lines in the middle of the road.
The claimant provided a supplementary statement dated 20 July 2023. The statement was provided after the claimant had seen Mr Baum’s statement. Among other things, the claimant states that at no time immediately prior to the accident or at the time of the accident did he lose sight of the Skoda driven by Mr Baum. He states that he was following the Skoda for “some time” prior to the accident, and that he adjusted his speed as the Skoda adjusted its speed. He states that he maintained a safe distance behind the Skoda, and that at all times he had full visibility of that vehicle several kilometres prior to the point of impact. In particular, he states that at all times before the accident he had full sight of the rear of the vehicle “where the right-hand indicator would have displayed”. When he made the decision to overtake the vehicle, no indicator was operating. He states that if a right-hand blinker was operating prior to the point of impact, he would not have proceeded to overtake the vehicle.
The claimant states that he only saw the right-hand blinker operating on the Skoda as it hit his motorcycle. The “hard hook turn of the [Skoda] was simultaneous with the right blinker/indicator coming on.” The claimant took issue with the version of events documented by Senior Constable Weekes, stating that it was “factually incorrect”. He states that he did not enter a blind corner where he was unable to safely stop in time as the Skoda was turning into a driveway. He also states that at no stage was he formally interviewed by police to provide his version of events.
At the assessment the claimant gave evidence that leading up to the accident he had been following a line of traffic for 3 to 5km, over a period of five to eight minutes. There was a slow moving vehicle ahead of him that he thought was towing a horse float or a camper trailer. That vehicle was travelling at about 60kmph. Behind that vehicle was a white Skoda. He denied that he had become impatient, and said that he was prepared to follow the slow moving traffic until it was safe to pass. He agreed that the stretch of road in the area leading to the accident scene is “bendy”, and he agreed that at the location of the accident there was one traffic lane in each direction and that there were two unbroken lines in the centre of the road. He also agreed that there was an Armco railing next to the left of the lane in which he was travelling.
The claimant was asked questions about the width of the lane in which he was travelling. He agreed that two vehicles could not travel next to each other in the lane. He thought there was room for a motorcycle to pass a car in the lane. It was put to the claimant that a motorcycle rider would have had to move onto the centre lines or across the centrelines to overtake a vehicle. His evidence was that it would be subject to the ability of the rider. He agreed that “under normal circumstances” a motorcycle rider is not permitted to cross an unbroken centre line to overtake another vehicle. He agreed that there was no overtaking lane at the point he decided to overtake the Skoda.
The claimant disputed that there was nowhere for a vehicle to pull off the road to the left at the point where the Skoda had slowed. His evidence was that, even given the presence of a guard rail, there was an area where a vehicle could move slightly to the left. His evidence was that there approximately a metre. He was not sure whether the vehicle was still within the traffic lane. He explained that he wasn’t focused on the left side of the vehicle, and that he was more focused on “the entirety of the scene”. His evidence was that he was managing his distance relative to the Skoda, and the potential hazard posed by the slower moving vehicle in front of the Skoda. He said that his focus was down the right-hand side of the Skoda. He was watching the back of the vehicle, and looking for oncoming traffic.
The claimant described a left-hand bend prior to the location of the collision. It was put to the claimant that he couldn’t see directly ahead of him for an extended distance while he was coming around the bend. His evidence was that it was a bend that “allows a fair level of distance”. His evidence was that the bend was not a blind bend, and that he never lost sight of the Skoda at any time. His evidence was that, as the Skoda slowed after moving through the bend, he also slowed the speed of his motorbike to match the Skoda’s change in speed. He said that he maintained a consistent gap between his motorbike and the Skoda. I accept the claimant’s evidence with respect to these matters.
The claimant’s evidence was that prior to deciding to overtake the Skoda, he assessed the entirety of the scene, assessed what was coming in the opposite direction, and the potential hazards with which he was faced. He was aware of the presence of the slow moving vehicle in front of the Skoda. As the Skoda slowed, the gap between the Skoda and the vehicle in front increased. His evidence was that the Skoda moved slightly to the left as the gap between it and that vehicle increased. The claimant’s evidence was that prior to overtaking the Skoda, he was traveling at “near zero” and that he accelerated to overtake the Skoda after it had moved to the left. Prior to commencing the overtaking manoeuvre, he had maintained a two second gap between himself and the Skoda. He estimated the distance as 10m.
The claimant agreed that having a vehicle on an 80kmph road slow to almost stationary was very unusual, “especially at that location”, and he disagreed that was not something that he would expect a vehicle to do if it were allowing him to overtake. He said that he was not in that location to overtake, and that it was only the circumstances created by Mr Baum’s vehicle that allowed him to overtake. He said he would not have done so if the vehicle “maintained even 40 kilometres an hour”. He agreed that the vehicle could not be pulling off to the left of the road because there was nowhere for it to go. He explained that it was not uncommon for a slower vehicle to stop and allow a motorcyclist to go past. He said that in circumstances where the vehicle had slowed, moved to the left, and not indicated, and where he had formed the opinion that it was safe to pass the vehicle, it was not unusual.

While the claimant’s evidence was that generally that stretch of the Putty Road was not a road that you overtake on, in his view there could be circumstances in which it was possible to overtake. His evidence was that, based on his assessment of the scene, it was not a risky manoeuvre.
The claimant’s evidence was that, while he was assessing the whole of the scene prior to deciding whether the overtake, his “absolute primary focus” was on the indicator of the Skoda. He disputed that the Skoda started to indicate right at the same time it started to slow, and that the right-hand indicator was activated well before the Skoda commenced a right-hand turn. He said that there was “no way on this planet” that he would have attempted a movement around the vehicle if the indicator had been activated. His evidence was that the Skoda was positioned “dead straight” and that it turned hard into his path when he was approaching the rear of the vehicle.
The claimant agreed that he did not know why the Skoda had stopped. While he agreed that pulling his motorcycle up was an option, it was not an option that was reasonably practicable given the circumstances. He also agreed that he could have slowed down and waited to see what the Skoda did.
The claimant’s evidence was that he was close to the centre lines when he was attempting to overtake. He was not sure whether he was on the centre line. While he believed that neither part of his bike or his body were over the centre lines at the time he was trying to overtake, he agreed that it was possible.
The claimant disputed that his motorcycle impacted with the rear of the Skoda; his position was that the impact was to the rear right side of the Skoda.
The claimant agreed that he had ridden on the Putty Road many times; it was a common ride. He was aware that people live along the Putty Road, that there were driveways on the Putty Road, and that some of the driveways were not visible. He agreed that one of the possibilities he would have been aware of at the time the accident occurred was that there might be a driveway he couldn’t see. On the basis that the Skoda did not have an indicator on to turn right, he disagreed that one of the things the Skoda was doing was trying to turn into a driveway. The claimant agreed that sometimes vehicles don’t put their indicators on, and that this was something that would have to be factored in when deciding whether or not it was safe to overtake. This was something that he would have been aware of at the time the accident occurred.

Mr Baum’s evidence

Mr Baum provided an account of the accident to Senior Constable Weekes at the scene. The account is recorded in body-cam footage recorded by the Senior Constable. Mr Baum told the Senior Constable that he had just been to the petrol station at Colo Heights, and that he was heading towards Windsor. He stated that he put his indicator on and that as he was pulling across to the drive a motorbike hit his vehicle. Mr Baum told the Senior Constable that he looked in his mirror, that it was a “blind bend”, and that “you can’t see anybody”. He stated that he couldn’t see any one behind him, that the claimant was overtaking him, and that he didn’t see him. He stated that he was travelling slowly, and that the claimant “wasn’t really going particularly fast”. The footage shows Mr Baum walking towards the entrance to the driveway, where he indicates the location of the driveway. He can be heard saying that he didn’t see anyone behind him. Mr Baum is shown walking towards the claimant, who can be seeing lying on the ground. An ambulance officer is seen attending to the claimant. There are three other men depicted in the footage, in addition to Mr Baum and the claimant.
Mr Baum provided a statement dated 23 January 2023. The statement records that he was driving his vehicle along Putty Road, Colo, towards Windsor. He states that he was travelling at about 5kmph as he was turning right. He states that he knew what speed he was travelling as he had pulled over to turn right into the driveway. Mr Baum stated that, at the time of the accident “the only traffic [he] recall[ed] was a group of motor cycles behind [him].” He states that:
“[34] Just prior to the accident, my intentions were to turn right into a common (shared) driveway to the farm; and I was indicating right to do so.
[35] In the last 25 metres prior to the collision I had slowed down in preparation to turn right (and I was indicating right prior to the right hand bend described above[3]).
…
[37] The accident occurred as I turned right into the driveway, the motor cycle came around the bend, and as I was about to cross the road (I had just commenced my turn) the motor cycle attempted to pass me (in a no passing zone) as he could not stop and had nowhere else to go. Aside from trying to pass me, I do not know what other evasive action he took.”
[3] This is a reference to paragraph [32] of his statement, in which he refers to “emerging from a right hand bend”.
Mr Baum states that when he was travelling at around 5kmph, the claimant may have been travelling at around 30-40 kmph, perhaps faster. At paragraph 53 Mr Baum stated:
“Post the accident, another of the motorcyclists who was riding with [the claimant] came over, they did not see the accident as they were behind the bend, one was a Registered Nurse and he attended to him. [The claimant] then came to and he told me that he did not see me turning right. He told me that he saw me indicating, and thought I was going further…”
The diagram of the accident scene prepared by Mr Baum positions his vehicle to the right of the lane, and indicates his intended path of travel into the driveway on the opposite side of the road.
Mr Baum also provided the following version of the accident to the property damage insurer:[4]
“I was turning right off The Putty Rd into a driveway leading to a farm when a motorbike rounded a blind bend and struck the rear of my car whilst attempting to overtake. The [m]otorbike over-taking notwithstanding a double white line. I had indicated I was turning right. I could not see the motorbike before I turned because of the blind bend behind me from which direction the motorbike came…”
[4] It is not clear on what date the version was provided by Mr Baum.
Mr Baum gave oral evidence that while he could not, with accuracy, confirm the dimensions of the lane, more than one car could not fit in the lane in which he had been travelling at the point of impact. He was not able to say what the distance was between the Armco railing and the left line of the lane. He said that he was not aware that there were motorcyclists travelling behind him. He was, however, aware that there were motorbikes at the petrol station he had just left at Colo. The petrol station was several kilometres from where the collision occurred.
Mr Baum’s evidence was that, in the period from leaving the petrol station until the point of the collision, he was not aware of motorcyclists behind him. He said he had looked in his rear view mirror, and that there were no motorbikes behind him as he went into the bend. He was taken to his statement, in which he stated that at the time of the accident the only traffic he recalled was a group of motorcycles behind him. His position was that the statement needed to be qualified by the oral evidence he had given. That is, he was referring to the motorcycles he had seen at the petrol station.
Mr Baum’s evidence was that he did not remember the motorbikes at the petrol station leaving behind him. He gave evidence that he knew they were going to, and that they were getting ready to leave when he left. His evidence was that that “was the only traffic [he] knew would be coming behind [him]”.
Mr Baum agreed that in the 25m or so prior to the collision he had slowed down in preparation to turn right. He also agreed that immediately prior to the collision he was travelling at approximately 5kmph, and had almost come to a standstill. He did not see the claimant’s motorcycle before he commenced a right-hand turn. He said where he had to turn right was immediately after the bend. Mr Baum’s evidence was that the roadway was a favourite for motorbikes, and that he had seen motorbikes on the road frequently. He agreed that he had also seen trucks. His evidence was that the first he saw of the claimant was when he hit the back of his vehicle. Mr Baum gave evidence that while he did look in his mirror, his greatest obligation was to make sure there was “nothing coming in front of [him] that he could crash into.” His evidence was that he looked in his mirror, but couldn’t say exactly when. He agreed that his recollection of events was better when he provided his written statement.
Mr Baum’s evidence was that he had stayed at the property several times, over three or four years, and did not normally go up to the petrol station. He normally approached the driveway from the other direction. He explained that that was one of the reasons he was travelling slower; he wanted to make sure he didn’t go past the entrance to the property and he wasn’t sure exactly where it was. He agreed that the entrance may appear disguised and was hard to identify. He disputed that it was not until the last moment that he identified the spot he had to turn right into. His evidence was that he knew where it was “within meters”. He also gave evidence that he slowed down before he went into the bend, as he knew the entrance was just after the bend. He agreed that the entrance was about 150m after the bend. He disagreed that he turned his vehicle slightly to the left. His evidence was that his vehicle was in the middle of the road. He agreed that it would be easy to drive past the entrance if driving too fast. His evidence was that he did not think he had his foot on the brakes, and he did not know if his brake lights would have been on. His evidence was that he “certainly had [his] foot off the accelerator, and was deliberately slowing down so that he could make the right-hand turn…”.
Mr Baum agreed that he was, prior to this collision, concentrating on locating the entrance to the property. He was travelling at 80kmph prior to the bend, slowed down before he entered the bend, and continued to slow down as he came closer to where he thought the entrance to the property was located. He said he was ready to stop if there were vehicles coming in the opposite direction. He agreed that the accident took him completely by surprise.

Mr Baum did not recall any vehicle travelling in front of his. He described being shocked and nervous after the accident.

Mr Scholtes’ evidence

Mr Scholtes provided a statement dated 15 February 2023. The statement records that at a point around halfway between the Colo Height petrol station and the Colo River, he witnessed a collision involving the claimant and a white Skoda. He states as follows:
“[12] At the time of the accident, I recall that the white Skoda in front of [the claimant] was following a car towing a horse float and both were travelling at well below the 80km/h sign-posted speed limit. As we came up behind the Skoda (I was around 15-20 metres behind [the claimant]) I saw the Skoda slow down and move slightly to the left, giving the impression the driver was aware of our presence behind him and making room for us to pass. As [the claimant] accelerated and moved slightly to the right to overtake the Skoda, I saw the Skoda’s brake lights illuminate, immediately followed by the right-hand turn indicator illuminating. At this point the front wheel and left handlebar area of [the claimant’s] motorcycle were positioned in the near vicinity of the rear driver’s side corner and near the centre of the roadway. Without warning, I saw the Skoda make an almost 45 degree right-hand turn into an angled dirt/gravel track on the right/West-bound side of Putty Road and collide its rear driver’s side quarter panel with the front wheel/left handlebar area of [the claimant’s] motorcycle.”
Mr Scholtes stated that the Skoda was travelling at less than 20kmph as it made the turn and the claimant was travelling in the vicinity of 60kmph. He states that after the accident he heard Mr Baum say to the claimant “I’m sorry, I’m sorry, I didn’t see you.” He states that:
“[32] The fact that the driver of the car changed his travel path (albeit slightly) to the left which looked like he was letting us pass, and he did not indicate the required 30 metres from turning, caused [the claimant] to believe that he was able to safely pass the car (on the right).”
Attached to his statement is a diagram depicting the collision. The diagram places the claimant partly on the centre dividing lines in the middle of the roadway, and the Skoda at an angle across the dividing lines, partly in the oncoming traffic lane and partly in the lane from which it had turned. The diagram depicts the impact occurring at the rear right of the Skoda.
Mr Scholtes provided a supplementary statement dated 19 June 2023. He states as follows at [3]:
“On the day of the accident, as the white Skoda, the motorcycle ahead of me, and my motorcycle went around the slight right-hand bend just before the accident, I had a clear view of the white Skoda and the motorcycle ahead of me, at all times going around the bend and then after the bend. I was able to observe the back of the white Skoda as the vehicles went around the bend and into the straight part of the roadway with an uninterrupted view of the rear right hand corner of the vehicle including its righthand blinker. I did not see a blinker light illuminate on the white Skoda until the point I indicated in the statement to the investigator at paragraph 12. I observed the right-hand blinker illuminate at the same time the white Skoda commenced its right-hand turn. Prior to that the white Skoda had not illuminated any blinker. It was after the white Skoda had moved to the left and the motorcycle had commenced to overtake the white Skoda that I observed the right-hand blinker light to illuminate.”
At [4] Mr Scholtes states that from the commencement of the safety rail on the left-hand side of the road to the point of impact, “it is approximately 40 to 50 metres of direct clear and uninterrupted view to the point of impact.” He states that the clear uninterrupted view commences prior to the start of the safety rail commencing on the left-hand side of the road”. His evidence is that the clear view of both sides of the road is about 150 to 200m before the road sweeps to the left.
In his oral evidence Mr Scholtes confirmed that on the day of the accident his was the second bike in the group, and he was riding 15-20m behind the claimant. As they were approaching the scene of the accident, the group had been following slow moving traffic for several kilometres. The traffic in front of their group consisted of a vehicle towing a horse float, and behind it a white Skoda. He thought he had been traveling at 60kmph. He “guesstimated” that the claimant was travelling about 15-20m behind the Skoda. Mr Scholtz agreed that he was 30-40m behind the Skoda.
Mr Scholtes also agreed that, at the point where the accident occurred, the Armco guard railing was positioned on the left hand side of his direction of travel, next to the marked lane. His evidence was that the railing was “within probably 300 mils of the white line on the road.” He agreed that the traffic lane was only wide enough for one car to be in it at a time. His evidence was that it would be a “hard push” for a car and a motorcycle to be in the lane side by side at the same time. He agreed that in order to overtake a vehicle at that point, it would be necessary to move either onto the centre lines or perhaps over the centre lines.
Mr Scholtes’ evidence was that after clearing the bend immediately prior to the location of the accident there was a clear view all the way down the road. From the point where he described as having cleared the bend to the point at which the accident occurred was between 150-200m. He said that he had the Skoda in his vision “the entire time”.
Mr Scholtes’ gave evidence that there came a point at which the Skoda slowed down to significantly less than 60kmph. It did not, however, become stationary at any point. He could not say how far before the point of impact the Skoda began to slow. He disagreed that when the Skoda slowed the right indicator was activated. His evidence was that the Skoda moved off its line slightly. He agreed that it still remained within the traffic lane. His evidence was that the Skoda was travelling down a slight incline, was maintaining a constant speed, and that there was nothing the car was doing in its movement that suggested to him that it was about to significantly slow down or change its path of travel. The slight deviation in the Skoda’s path of travel made him think that the driver had moved over slightly to let the motorcyclists pass.
Mr Scholtes’ evidence was that, at the time of the collision, the claimant’s motorcycle was positioned very close to the centre of the roadway, very close to the left unbroken line. He could not say whether either part of the bike or the claimant’s body was on the other side of the road prior to the collision. He agreed that the claimant’s motorcycle collided with the rear corner of the Skoda. He also agreed that it was not permissible to overtake on double unbroken lines. Despite this, Mr Scholtes’ evidence was that, had he been closer to the claimant when he commenced to overtake the Skoda, he would have engaged in the same manoeuvre.

Mr Tschaut’s evidence

The body worn camera footage captures a version of the accident provided by Mr Tschaut at the scene of the accident. That version is contained in the transcript of interview between

Mr Patterson and Senior Constable Weekes on 17 February 2023 as follows:
“Weekes…In your own words, what did you see happen?
TschautWe were bunched up, there were a few cars in front here. Then I was two bikes back from him, there was another bike in front of me. The car slowed down, you know he was slowing down going like everyone else and he moved to the left a little bit and then I couldn’t see a blinker and then the bike went around him, and the car turned into the driveway. I didn’t even know there was a driveway.
WeekesYeah so, he lives here so.
TschautYeah well, we have been up this road heaps of times but I have never seen anyone pull over like that and then as he turned in.
WeekesWell there is nowhere to pull over, you can’t move to the left.
TschautHe moved to the left a little bit.
WeekesBut you can’t there’s a car rail up there.
TschautYeah but the car went from where it was slightly took left and then turned in and that’s where the bike has collected him. Then they just together come into the driveway which what happens really, I wasn’t expecting with anyone to turn in…”
Mr Tschaut provided a statement dated 16 February 2023. The statement records that at about 12.20pm on 27 November 2022, he was riding towards Windsor along Colo Road, Putty. The speed limit was 80kmph. The claimant and Mr Scholtes were in front of him. In due course they caught up to slow traffic, which was travelling at around 40 km/h. The car in front of the claimant moved slightly to the left, and Mr Tschaut assumed he was making room for the claimant to pass him. As the claimant went to pass the car, the car “went to the right”, and the collision occurred. The accident happened at low speed and the motorcycle riders “would have been in around first gear”.
The traffic was light on the day of the accident until the riders caught up to the vehicles that were travelling in front of them. Mr Tschaut states that, just prior to the accident, it was the intention of the motorcycle riders to continue straight along the road. He states that in the last 25 metres prior to the collision the riders all slowed down to around 40 kmh. Their intention, due to the actions of the car driver, were to drive around the car as he had pulled slightly to the left. Mr Tschaut states that he did not see the Skoda indicating to turn right. As the claimant went to past the car, the car veered across the road on a 45 degree angle.

Mr Tschaut did not see any indicators on the car showing a right turn should have been anticipated. The claimant was hit in the middle of the road, and they both then travelled across the road to the shoulder, around 10 – 15 metres, and as they hit the rocky and grassy verge the claimant’s bike spun around 180 degrees and he went under his bike. Mr Tschaut states that he did not believe that the claimant had time to take any evasive action. At the point of impact the claimant would have been traveling around 20 – 30 kmh, and the car was travelling around the same speed.

Other evidence

A NSW police report dated 29 December 2020 contains a narrative in relation to the accident. The report records that the claimant was responsible for the accident and that Mr Baum was not responsible. The crash summary details appear to be largely based on Mr Baum’s version of events. The crash summary details include the following description of the scene:
“…[Mr Baum’s] driveway is on a blind bend on a downwards slope in an 80km/h area. His driveway is located after a set of winding bends and when driving in a south easterly direction it is almost unnoticeable. This section of roadway has one bitumen lane in each direction and is separated by double unbroken white centre lines..”
The crash summary states that, due to the conditions of the roadway, and the location of the accident, police were “unwilling” to take any further action. The summary records that police “deem the environment as a major contributing factor. NFPA”. I have inferred that “NFPA” means “no further police action”.
The material produced by NSW police in response to a direction for production includes a COPS Report that records details of the accident including time and location. The COPS Report contains a narrative that reflects Mr Baum’s version of the accident provided at the scene. It is also recorded in the COPS Report that:
“Rider 1 claimed it appeared Driver 2 had moved over to the left and he thought he was able to pass.
However upon inspection of the roadway the nearside of the roadway has a Armco railing directly next to the roadway opposite where his driveway is located and there is no room for any vehicles to move off the roadway.”
The COPS Report contains a “Crash Summary Details Description” that incorporates a summary of the narrative. The report confirms that police were unwilling to take further action.
The material from NSW police also contains photographs of Mr Baum’s vehicle and the claimant’s motorcycle.
The joint bundle includes a report addressed to the insurer from AHC Investigations dated

27 February 2023. Among other things, the report contains statements from the claimant,

Mr Baum, Mr Scholtes, and draft unsigned statements from Mr Tschaut and Mr Hesse. There are also scene sketches, vehicle damage diagrams, together with a transcript of interview with Senior Constable Weekes. The factual report includes photographs of the accident scene and the roadway leading up to the scene of the accident.
In his unsigned draft statement Mr Hesse stated that he was not present at the time of the accident, and that he arrived at the scene three to five minutes later.

SUBMISSIONS

Claimant’s submissions

The claimant’s written submissions dated 28 July 2023 refer to his evidence as to the circumstances in which the accident occurred. The submissions record that he was the lead rider among several other motorcycle riders travelling along Putty Road, Colo, and was positioned behind Mr Baum’s vehicle. He had been following Mr Baum’s vehicle for a period prior to the accident. The vehicle reduced its speed over that period. He observed the vehicle reduce its speed further and move to the left of the carriage way, leaving space on the carriage way for him to proceed. The submissions record that the claimant then proceeded to move past the vehicle, with a clear and unobstructed passage, and on the “correct” side of unbroken lines. As he moved to pass the vehicle, it suddenly commenced making a right-hand turn into his path causing the accident. The submissions record that the claimant had Mr Baum’s vehicle under observation “at all times” prior to the accident. His case is that the right hand blinker of the vehicle was not activated until the claimant’s motorcycle was “just of the rear” of the vehicle. His case is that the vehicle suddenly made a right-hand turn in front of him.
The claimant argues that the actions of Mr Baum could only be interpreted as an invitation for him to overtake. The claimant’s case is that Mr Baum was aware that there were motorcycles behind him. He argues that had Mr Baum indicated his intention to turn right sooner, he would not have proceeded to overtake him. The claimant submits that Mr Baum was looking for a blind driveway, and did not know where he needed to turn right until he found the driveway. It is argued that, on balance, it should be accepted that Mr Baum did not activate the right turn blinker until he commenced turning right. The claimant submits that if this finding is made he could not be wholly or mostly at fault for the accident. In his submission, the actions of Mr Baum leading up to the collision were the cause of the collision.
In oral submissions, Mr McAuley argued that if Mr Baum activated his indicator he did so at the last minute, as he made the right-hand turn. He submitted that Mr Baum’s evidence that he had activated his indicator earlier should not be accepted. He submitted that the accident was not caused by any fault on the claimant’s part. He argued that, given that there may have been trucks travelling behind the claimant, it was a “very big call” to say that he should have pulled up. Mr McAuley argued that sitting on the road stationary, at that location, was not a “good idea”. In his submission, the road was regularly travelled on by substantial vehicles, and coming to a stationary position on a downhill stretch had its own risks. It was also submitted that Mr Baum’s oral evidence about not being aware of motorcycles on the road behind him was not as reliable as the account recorded in his statement. It was argued that on two critical points, the activation of the indicator and the presence of motorcycles,

Mr Baum’s evidence was not reliable.
Mr McAuley argued that Mr Baum’s fault was that, knowing there were motorcycles behind him, he failed to activate his indicator at an appropriate time, and failed to satisfy himself that there wasn’t a vehicle behind him as he made a right-hand turn, in particular a motor cycle. In the event that a finding were made that the accident was caused by the fault of both the claimant and Mr Baum, it was argued that the claimant’s fault must be of a very minor degree.

Insurer’s submissions

The insurer relies on written submissions dated 21 August 2023. The submissions refer to versions of the accident provided by the claimant, Mr Baum and Mr Scholtes. The insurer’s case is that the claimant overtook Mr Baum’s vehicle on double unbroken lines when it was unsafe to do so. The insurer relies on Mr Baum’s evidence that he activated his right-hand indicator prior to entering the right-hand bend before the driveway he intended to enter. The insurer submits that the claimant was driving in an unsafe manner, misjudged the intentions of Mr Baum, and attempted to overtake when it was unsafe to do so. It argued that the claimant failed to keep a proper lookout and maintain a safe and sufficient distance between himself and Mr Baum’s vehicle. The insurer submitted that the evidence available indicates that the accident was caused wholly by the fault of the claimant.
In oral submissions Ms Gumbert argued that the question of whether the accident was caused wholly by the claimant’s fault turns on the finding made as to whether Mr Baum activated his right indicator and, if so, when. If Mr Baum’s evidence, that he activated his indicator well in advance of making a right-hand turn, is accepted, it was submitted that the evidence would support a finding that the accident was caused wholly by the claimant’s fault because it could not be said that Mr Baum departed from the duty he owed other road users.
Ms Gumbert argued that in activating his indicator well in advance of making a turn, looking to make sure there was nothing coming, and slowing before making the turn, Mr Baum did everything that could be expected in terms of a driver exercising reasonable care in the circumstances. She argued that Mr Baum was in a better position to recall when he activated the indicator, and that his evidence in relation to the indicator should be accepted.

Ms Gumbert submitted that Mr Hall’s evidence with respect to this issue should not be preferred as his attention was divided between looking ahead, and trying to make a judgement call about whether it was safe to overtake. She submitted that the claimant did not have his eyes fixed on the back of the Skoda at all times. In those circumstances, he may not have observed the first moment when the indicator came on.
It was argued that, if a finding is made that the indicator was not activated until much closer to the turn, the accident was caused mostly by the fault of the claimant, rather than wholly by his fault. It was conceded that, in those circumstances, there was some fault on the part of Mr Baum.
Ms Gumbert argued that the claim involved a rear-end collision, and that it would be unusual to find that the accident was caused by the front vehicle. I do not accept that characterisation of the accident. The insurer also relied on the following matters in support of its submission that the claimant’s failure to exercise reasonable care was greater than that of Mr Baum:
(a)    he knew from his prior experience riding on the Putty road that there were driveways and that some of them were concealed;
(b)    he knew that one of the reasons why a vehicle might be slowing or stopping on the road was to enter or exit a driveway;
(c)    he knew that there was no overtaking permitted at the point where the collision occurred;
(d)    he knew that there were double lines that he wasn’t permitted to cross;
(e)    he accepts that he came very close to, or onto, or potentially even cross the lines in order to undertake the manoeuvre;
(f)    it was a narrow winding road with limited visibility, and
(g)    it was, in all of the circumstances, an extremely risky manoeuvre to undertake as proved to be the case.
Ms Gumbert argued that the claimant didn’t know what Mr Baum was doing, and there was no way he could have known. Further, the claimant accepted that what was happening in front of him was unusual: the vehicle ahead of him was slowing almost to a stop, something the claimant accepted would not normally happen if a motorist was going to slow to let someone overtake. It was not, in the insurer’s submission, reasonable to assume in those circumstances that the vehicle was signalling for the motorcycles to pass. It was argued that a reasonable person in the claimant’s position would have formed the view that he did not know and could not know why the vehicle was slowing, and that it could be due to a number of things including: a hazard on the road, some sort of driver misfortune, and entering or exiting the road for a concealed driveway. As the claimant didn’t know he ought to have waited, and he could have waited; he had previously slowed almost to a stop. There was no reason, it was argued, why he couldn’t wait a few moments to see what this car was going to do.
In the insurer’s submission, a finding should be made that the relative culpability and causal potency of this accident weighs heavily towards the claimant. The insurer argued that the claimant’s contributory negligence should be assessed at 75%.
In reply, Ms Gumbert argued that even if Mr Baum knew that somewhere behind him were motorcyclists there was no reason that a reasonable driver in his position would assume they were going to perform an overtaking manoeuvre across double lines at that moment; that was not something a reasonable driver in Mr Baum’s position ought to have been able to foresee. His only error, if he made one at all, was that he didn’t signal his intention to turn right earlier.
Ms Gumbert initially argued that, while I cannot “formally” determine the claimant’s contributory negligence, that is make a finding not just whether it is greater than 61% but determine a specific percentage, it was open to me to give an opinion on the issue or make a finding. While the finding should not be included in the matters certified, a finding with respect to contributory negligence can be included in the reasons. She subsequently argued that I should make such a finding to limit potential disputation between the parties in relation to that question, and potentially avoid the need for the parties to make an application to the Commission to determine the percentage of the claimant’s contributory negligence.
Mr McAuley submitted that I should not make such a finding, as the only matters before me were whether the accident was caused wholly or mostly by the fault of the claimant for the purposes of s 3.11 and s 3.28. In those circumstances, he argued that the Commission should not make a finding about contributory negligence other than whether it is greater than 61%. Further, there was no “s 3.38 dispute”[5] before me, nor could there be as there had been no internal review conducted by the insurer as to that matter. In short, the claimant argued that I should answer the “statutory questions” and no more.

FINDINGS – BACKGROUND MATTERS AND THE CIRCUMSTANCES OF THE ACCIDENT

[5] See Sch 2 cl 3(g) MAI Act.

Findings about matters that are agreed or not in dispute

The following paragraphs reflect my findings as to background matters, the events that led-up to the accident, and events post-accident, with respect to which there is no dispute. The findings are supported by the evidence, and are consistent with the facts agreed between the parties.

Claimant’s driving history

Prior to the accident the claimant rode his motorcycle a couple of times each week. In the 12 months prior to the motor accident, the claimant had ridden the motorbike he was riding at the time of the accident regularly for recreational purposes. He had previously completed a number of driving and riding safety courses, together with a number of high-speed driving courses. At the time of the accident the claimant held a full motorcycle licence. He has held a driver licence since he was 16 years of age.

The claimant’s motorcycle

At the time of the accident the claimant was riding a black 2020 build/2021 model BMW S100R motorcycle, and was the registered owner of the motorcycle. The motorcycle was in a road-worthy condition, and had not been modified from the standard manufacturer’s specification. Prior to the accident the motorbike was regularly serviced. Shortly prior to the accident the claimant had purchased new front and rear tyres.

Other background matters

On the morning of the accident the claimant was engaged in a ride with a group of six riders. As part of the group, the claimant rode to Grey Gums, situated 60km along the Putty Road north of Windsor. The group of motorcyclists then rode back south from Grey Gums and stopped for fuel at the Colo Petrol Station. The claimant did not have a pillion passenger on board at the time of the accident. He was wearing Dainese riding boots, riding gloves, a helmet, riding jacket and jeans. The visor on the claimant’s helmet was clean. At the time of the accident the claimant was not affected by alcohol or non-medicinal drugs.
The weather was sunny and clear. The road was dry, and visibility was good. Immediately prior to the accident, the claimant was riding in a broadly easterly direction, towards Windsor, along the Putty Road at Colo. The speed limit on that segment of roadway was 80kmph. The claimant was travelling at 80kmph until he, and other members of the riding group, caught up to slow moving traffic. The claimant was the lead rider in the group. The slower moving traffic consisted of a car and trailer, possibly a horse float, that was travelling at approximately 60kmph. Behind the car and trailer, and immediately in front of the claimant, was a white Skoda driven by Mr Baum.
The Putty Road at the scene of the accident has one traffic lane in each direction. The lanes are separated by double white lines. The claimant was familiar with the road, having ridden on it numerous times over the past 20 years.
The claimant was riding his motorcycle behind the vehicle driven by Mr Baum. As he came towards the location of the driveway he intended to turn into, Mr Baum began to slow his vehicle, and continued to slow his vehicle. Immediately prior to commencing the right-hand turn, the Skoda was almost stationary, and was travelling at a speed of approximately 5kmph. Mr Baum did not see the claimant prior to the collision.

The accident and aftermath

The accident occurred at approximately 12:20 pm. The Skoda driven by Mr Baum and the claimant’s motorcycle collided. Initial impact involved the left handlebar of the claimant’s motorcycle. The claimant struggled with the motorcycle after the impact to keep it upright. He lost control of the motorcycle and fell directly next to the Skoda. The motorcycle slid along the road for approximately 5-10m, coming to rest in the dirt on the other side of the road. The Skoda pulled up after the collision on the right-hand side of the road in a bush track. The motorcycle had extensive impact and scrape damage down the left-hand side, and was written off after the accident. Police and Ambulance attended the accident scene. The claimant was taken by ambulance to Nepean Hospital.

Findings about disputed matters

I find that:
(a)    as he came out of the bend, approximately 150-200m from the point at which the collision occurred, the claimant kept a gap between his motorcycle and Mr Baum’s vehicle of between 15-20m;
(b)    as they came out of the bend the claimant and Mr Baum were travelling at a speed of approximately 60kmph;
(c)    after coming out of the bend, Mr Baum reduced the speed of his vehicle from 60kmph, and continued to reduce speed as he came closer to where he thought the entrance to the property was located;
(d)    the claimant reduced the speed at which he was travelling to mirror the reduction in speed of Mr Baum’s vehicle, and
(e)    immediately before he commenced making the right-hand turn, Mr Baum had reduced the speed of his vehicle to approximately 5kmph.
I accept the claimant’s evidence that the bend immediately before the accident scene was not a blind bend, and that he never lost sight of Mr Baum’s vehicle at any time. His evidence is supported by the evidence on Mr Scholtes. In this regard, Mr Scholtes’ evidence, that I accept, was that from the commencement of the safety rail on the left-hand side of the road (the Armco railing) there is approximately 40 to 50m of direct clear and uninterrupted view to the point of impact. Further, his evidence was that the clear uninterrupted view commenced prior to the start of the safety rail, and that there is a clear view of both sides of the road for approximately 150 to 200m before the road sweeps to the left.
I accept the claimant’s evidence that the distance from the point at which he came out of the bend to the accident scene is between 150-200m. His evidence in this regard is supported by the evidence of Mr Baum and Mr Scholtes.
Mr Baum’s evidence was that, on the day of the accident, he was less certain of the location of the entrance to the property as he did not usually approach it from the direction in which he was travelling (from Colo Heights). I find that it is more probable than not that he was concentrating on locating the entrance to the property and monitoring oncoming traffic, in anticipation of making a right-hand turn, after he came out of the bend. His evidence was that he was not aware of any traffic behind him. I do not accept his evidence that he activated his right-hand indicator as he negotiated the bend immediately prior to the location of the accident. I find that had the right hand indicator been activated, the claimant would have seen it. I consider it probable that Mr Scholtes would also have seen it. Mr Scholtes’ evidence was that from the point where he described as having cleared the bend to the point at which the accident occurred was between 150-200m, and that he had the Skoda in his vision “the entire time”.

I accept the claimant’s evidence that when he made a decision to overtake, and when he commenced overtaking, his “absolute primary focus” was on the indicator of the Skoda.
Further, I accept the claimant’s evidence that there was “no way on this planet” that he would have attempted a movement around the Skoda if the indicator had been activated. I find that it is improbable that, had the claimant seen the right-hand indicator of the Skoda activated prior to him commencing the overtaking manoeuvre, the claimant would have commenced an overtaking manoeuvre. I prefer the claimant’s evidence that, when he made the decision to overtake the vehicle, no indicator was operating. His evidence was that the indicator was activated at or about the time the Skoda commenced a right-hand turn. Given all these matters, I find that it is more probable than not that Mr Baum activated the right-hand indicator as he commenced making a right turn.
The claimant’s evidence was that he was not sure whether the Skoda was still within the marked traffic lane when it commenced turning right. He explained that he wasn’t focused on the left side of the Skoda, and that his focus was down the right-hand side of the Skoda. Mr Scholtes’ evidence was that the Skoda moved off its line slightly, but remained within the traffic lane. Mr Tschaut told Senior Constable Weekes at the scene that the Skoda “moved to the left a little bit”. Mr Baum disputed that he turned his vehicle slightly to the left. His evidence was that his vehicle was in the middle of the road.
I prefer the evidence of Mr Scholtes and Mr Tschaut in relation to this matter. In particular,

Mr Tschaut’s evidence about this matter has been consistent since he provided his account to Senior Constable Weekes at the scene of the accident. I find that, as it slowed and approached the position from which the right turn was made, the Skoda deviated from its line of travel, and moved slightly to the left of the lane while remaining fully in the marked traffic lane.
Mr Baum’s evidence is that he looked behind him before he turned right. He said at the scene that he did not see the claimant prior to the collision. In his statement at [33] he said that “[a]t the point of the accident, the only traffic I recall was a group of motorcycles behind me.” He qualified this evidence at the hearing, saying that he was referring to the motorcycles he saw at the petrol station, and that he was not aware of motorcycles travelling immediately behind him. If this were the case, I consider it more probable than not that he would have said so in his statement. It is clear that he checked his statement carefully; he made a number of handwritten alterations to it, including to paragraph 33.
I find that as he approached the entrance to the property, Mr Baum knew or ought to have known that there were motorcycles traveling behind him. I find that a reasonable person in his position would have looked behind them at least 100m before the position at which he made the right-hand turn, and would have seen the claimant’s motorcycle behind them if they had done so. I consider it probable that Mr Baum did not check for traffic behind him in the 100m prior to making the right-hand turn. My impression of the evidence is that as he approached the position where he thought the entrance to the property was located, Mr Baum was focused on looking for the entrance and oncoming traffic.
I find that approximately 20-30m from the point of impact, the claimant positioned his bike to the right of the lane to overtake the Skoda. The claimant’s evidence was that he was close to the centre lines when he was attempting to overtake the Skoda, and that he was not sure whether he was on the centre line. While he believed that neither part of his bike or his body were over the centre lines at the time he was trying to overtake, he agreed that it was possible. Mr Scholtes’ evidence, that I accept, was that it would be a “hard push” for a car and a motorcycle to be in the lane side by side at the same time. He agreed that in order to overtake a vehicle at that point it would be necessary to move either onto the centre lines or perhaps over the centre lines. I find that it is more probable than not that, as he approached the Skoda to overtake, the claimant moved his bike so that at least part of the bike and his body were over the double unbroken lines on the roadway. I find that at the time of the collision the claimant’s motorcycle was travelling at a speed of approximately 60kmph, the claimant having accelerated after he made the decision to overtake the Skoda.
The claimant disputed that his motorcycle impacted with the rear of the Skoda; his position was that the impact was to the rear right side of the Skoda. I am satisfied, that the first impact between the vehicles involved the left front of the claimant’s bike impacting with the rear right side panel of the Skoda, near the right rear light. This finding is supported by the evidence as to the damage to the Skoda, including the photographs.

FINDINGS – FAULT

Was the accident caused by the fault of the claimant?

I find that a reasonable person in the position of the claimant would not have attempted to overtake Mr Baum’s vehicle. The claimant was an experienced motorcyclist. He knew that on the Putty Road there were driveways and that some of them were concealed. He knew, or ought to have known, that one of the reasons a vehicle might be slowing or stopping on the road was to enter or exit a driveway. He knew that there was no overtaking permitted at the point where the collision occurred, and that there were double lines that he wasn’t permitted to cross. He crossed over the double white lines in the course of attempting to overtake Mr Baum’s vehicle. Despite having evaluated the scene, and formed a view that it was safe to overtake, he knew there was a risk associated with that manoeuvre.
Further, the claimant accepted that what was happening in front of him was unusual: the Skoda was slowing almost to a stop. The slight deviation of the Skoda was not, in my view, a reasonable basis upon which to assume that the driver was signalling for the motorcycles to pass.
I accept the insurer’s submission that a reasonable person in the claimant’s position would have formed the view that he did not know and could not know why the vehicle was slowing, and that it could be due to a number of things including: a hazard on the road, some sort of driver misfortune, or the vehicle exiting the road to enter a concealed driveway. A reasonable person in the claimant’s position would, and could, have waited to determine what the driver of the vehicle was going to do. The claimant had, after all, reduced his speed to match that of the Skoda up until the point at which he decided to overtake the Skoda. He was, therefore, travelling at approximately 5kmph before he commenced an overtaking manoeuvre, and could have brought his motorcycle to a complete stop.
While it was argued that there may have been trucks on the road behind him, there is no evidence that there were, in fact, trucks on the road. What the claimant knew was that there were five other motorcycles travelling behind him. It is unlikely that a truck had overtaken the other motorcycles. Further, given the evidence that there was a clear view from the bend in the road for 150-200m before the point at which Mr Baum’s vehicle made a right-hand turn, the motorcyclists behind the claimant had sufficient time and distance within which to safely slow their motorcycles so as not to collide with the claimant’s motorcycle. That being the case, bringing his motorcycle to a stop behind the Skoda, carried with it limited risk, and far less risk that attempting to overtake the Skoda.
While the claimant agreed that pulling his motorcycle up was an option, he did not think it was an option that was reasonably practicable given the circumstances. I do not agree. I find that a reasonable person in his position would have done just that.
Further, I find that a reasonable person in the claimant’s position would not have attempted to overtake the Skoda. I do not think that the view formed by the claimant, Mr Scholtes and Mr Tschaut, that the slowing of Mr Baum’s vehicle, and slight movement to the left of the lane, indicated his intention for them to overtake him, was reasonable in the circumstances. The simple fact is that none of them knew what Mr Baum was doing. What they all knew, however, was that overtaking was not permitted at that location. And they either knew or ought to have known that overtaking was not permitted at that location because of the risk associated with overtaking at that location. They were travelling on a roadway comprised of single lanes in each direction, with a speed limit of 80kmph, on a stretch of road that contained many bends. Further, while I accept that the claimant evaluated the scene before commencing an overtaking manoeuvre, I find that a reasonable person in his position would not, in the circumstances, have taken the risk associated with that manoeuvre.
I find that the claimant failed to exercise reasonable skill and care in the circumstances, that he was at fault, and that, but for his failure to take reasonable care, the accident would not have occurred. I find that the accident was caused by the fault of the claimant.

Was the accident caused by the fault of Mr Baum?

I have found that Mr Baum activated the right-hand indicator as he commenced making a right turn. I find that a reasonable person in the position of Mr Baum would either have known of the claimant’s presence behind him, or expected traffic to be behind him. I find that a reasonable person in Mr Baum’s position would have activated his right indicator at least

100m from the position at which he intended to make a right turn. His evidence was that he knew the position of the path into which he intended to turn “within meters”. A reasonable person in Mr Baum’s position would have known that:
(a)    he was reducing his speed significantly below the speed limit of 80kmph;
(b)    other motorists on that section of Putty Road would have been travelling at or about the speed limit as they came out of the bend;
(c)    other motorists coming out of the bend and along that section of Putty Road would, absent his right indicator being activated, not expect the vehicle ahead of them to be reducing its speed to the extent he had. Nor would they reasonably anticipate that the vehicle ahead of them was going to make a right hand turn at that location, and
(d)    in those circumstances, motorists travelling behind him should be made aware of his intention to turn right in time to allow them to adjust their speed so as to avoid a collision.
In short, a reasonable person in Mr Baum’s position would have known that they needed to activate their right-hand indicator at least 100m from the position at which he intended to make a right turn, so as to avoid a reasonably foreseeable risk of an accident.
I find that Mr Baum’s failure to activate his right turn indicator at least 100m before the point at which he made the right turn was a failure to exercise reasonable skill and care in the driving of his vehicle. It created a reasonably foreseeable risk of an accident occurring. But for his failure to exercise reasonable care, the accident would not have occurred. The claimant would not have attempted to overtake his vehicle if he had activated his right indicator.
I find that the accident was caused by the fault of Mr Baum.

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

Because I have found that the accident was caused by the fault of both the claimant and Mr Baum, it follows that the accident was not caused wholly by the fault of the claimant. I find that, for the purposes of s 3.11 and s 3.28, the accident was not caused wholly by the fault of the claimant.

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

As recorded earlier, for the purposes of both s 3.11 and s 3.28 of the MAI Act, the accident was caused mostly by the fault of the claimant if his contributory negligence in relation to the motor accident was greater than 61%.
The claimant’s contributory negligence is to be determined on the basis of what is just and equitable in the circumstances of the case. This involves a comparison both of culpability, that is of the degree of departure from the standard of care of the reasonable person and of the relative importance of the acts of the parties in causing the accident. It is the whole conduct of the claimant and Mr Baum in relation to the circumstances of the accident which must be subjected to comparative examination.
On the facts that I have found, I consider that the culpability of Mr Baum was probably greater than that of the claimant. If he had indicated his intention to turn right, as I have found he should have, the claimant would not have attempted to overtake his vehicle, and the accident would not have occurred. Further, the options open to the claimant, in the circumstances that I have found prevailed, were limited.
While I have found that a reasonable person in the position of the claimant would not have attempted to overtake Mr Baum’s vehicle, his decision to do so came about because Mr Baum failed to activate his right-turn indicator in sufficient time to put motorists behind him on notice that he intended to turn right. Activating his indicator was a simple step for him to take. In my assessment, his failure to do so was the most significant and potent factor that brought about the accident.
I am not satisfied that it is just an equitable to assess the claimant’s contributory negligence as being greater than 61%. That being the case, I find that the accident was not caused mostly by the fault of the claimant.
The insurer has argued that I should make an explicit finding, in percentage terms, as to the claimant’s contributory negligence. The claimant submits that I should confine myself to addressing the “statutory question”: whether the contributory negligence of the claimant in relation to the motor accident was greater than 61%.
I decline to make findings in addition to those that I have already made. The parties agree that I do not have a s 3.38 dispute before me. The disputes I am required to determine relate to the insurer’s decision to decline liability for the claim under s 3.11 and s 3.28 on the basis that, the accident was caused either wholly or mostly by the fault of the claimant.

COSTS

Submissions

The claimant seeks an order under s 8.10(4)(b) of the MAI Act. Mr McAuley submitted that these proceedings did not involve “an average liability dispute”. He argued that the fact that the proceedings had been dealt with in a careful analytical style demonstrated that the proceedings involved a “far from run-of-the-mill dispute”. He told me from the bar table that, among other things, the claimant’s legal representatives had attended the accident scene, and had a number of conferences.
Ms Gumbert submitted that exceptional circumstances do not exist. In her submission, the proceedings involved a very “run-of-the-mill liability dispute”. While the proceedings involved an oral hearing, and a number of witnesses were called, there was no expert evidence. Ms Gumbert submitted that the insurer obtained almost all the evidence that was used in the dispute by way of their factual investigation. In Ms Gumbert’s submission, the proceedings did not have any of the hallmarks of exceptional circumstances. She argued that costs should be allowed at the regulated rate for two disputes.

Determination

The Commission can permit payment of legal costs incurred by the claimant in connection with the proceedings if it is satisfied that exceptional circumstances exist that justify payment of those costs: s 8.10(4) MAI Act.
To be “exceptional circumstances” the circumstances must be unusual or out of the ordinary, whether as a result of qualitative or quantitative factors. The case need not be one that is unique, unprecedented, or very rare. The question is determined on the basis of the facts of the individual case: San v Rumble (No 2) [2007] NSWCA 259 at [67].
Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].
In AAI Ltd trading as GIO v Moon [2020] NSWSC 714, Wright J found that s 8.10(4) of the MAI Act can be seen as designed to deal with particular, unusual situations where the maximum costs fixed by the Regulations may not be adequate. Wright J held at [99] that:
“…other cases can be envisaged which are exceptional, because they involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant. These cases fall within s 8.10(4).”
I have concluded that the following matters, when taken together, constitute exceptional circumstances for the purposes of s 8.10(4)(b) of the MAI Act:
(a)    the factual matters in dispute;
(b)    the legal issues in dispute;
(c)    that the proceedings required an oral hearing that involved three witnesses being called and questioned, and
(d)    my assessment of the legal work undertaken in connection with the proceedings, including the preparation of statements and submissions.
True it is that by the time the matter came before me for hearing the matters in dispute had been significantly narrowed. In my assessment, however, that only came about as a result of the preparation undertaken by the parties during the course of the proceedings. That preparation included, among other things, and extensive schedule of agreed facts, that addressed some 93 separate matters. Further, both parties were represented by very experienced counsel, another reason why the proceedings were conducted so efficiently. This is not a matter that could have been determined on the papers, as many disputes under s 3.11 and s 3.28 are. All these considerations, when taken together, have led me to the conclusion that exceptional circumstances exist that justify payment of the claimant’s costs.
In these circumstances, the Commission permits the payment by the insurer of the reasonable and necessary legal costs incurred by the claimant in connection with these proceedings in accordance with s 8.10(4)(b) of the MAI Act.

[2023] NSWPIC 617

17 November 2023