Harris v Allianz Australia Insurance Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Harris v Allianz Australia Insurance Ltd [2025] NSWPIC 298
CLAIMANT:	Harris
INSURER:	Allianz Australia Insurance Ltd
MEMBER:	Shana Radnan
DATE OF DECISION:	26 June 2025
CATCHWORDS:	Motor Accident Injuries Act 2017; miscellaneous assessment matter; the claimant riding electric scooter along a suburban road; hit a bump/pothole distortion of bitumen at 20km; the scooter then throwing the claimant over the handlebars causing him to hit the roadway and slide a further 10-20 metres; single vehicle accident; insurer argued failure to keep a proper lookout; failure to take appropriate action to avoid a pothole; condition of roadway; whether the accident was caused wholly or mostly by the fault of the injured person (claimant) for the purposes of sections 3.11 and 3.28; Held – the motor accident was not caused wholly or mostly by the fault on the injured person.
DETERMINATIONS MADE:	1. For the purposes of ss 3.28 and 3.11 the motor accident was not caused wholly or mostly by the fault of the injured person. 2. Effective date: This determination takes effect on 26 June 2025. 3. Legal costs: The claimant was not legally represented - $Nil.

Reasons for Decision

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(e) of the Motor Accident Injuries Act 2017 (the Act), about a claim lodged by the injured claimant arising from a motor accident which occurred on 27 June 2024. The claim was lodged with the insurer on 12 July 2024.
The insurer issued a liability notice - Benefits up to 52 weeks on 29 July 2024. This document referred to the accident date as 25 June 2024 which I note was an error.
A further liability notice was issued in relation to benefits after 52 weeks on 28 October 2024. The insurer indicated in this document “we do not accept liability for payment of your statutory benefits beyond 52 weeks from the date of the accident”. The basis of denial of liability was stated,
“As you have been determined to have been wholly at fault for the accident that caused your injuries.”
How the decision was made was reasoned as follows:
“The Motor Accident Injuries Act 2017 (NSW) (Act) provides that statutory benefits will continue beyond 52 weeks after the date of accident if we determine you are not wholly or mostly at fault in the accident, and you have not sustained a “threshold injury”.
The Act requires us to decide:
1. If you were wholly or mostly at fault in the motor vehicle accident. You are wholly or mostly at fault if you are more than 61% to blame for the accident under the Act.
2. The percentage of your contributory negligence. This means how much your actions or omissions were to blame for causing the accident or your injuries.
3. If the injuries, you suffered because of the accident meet the definition of ‘threshold injury’ under the Act.
Using all the information you provided to us (as well as information provided by the other parties involved
in the accident and your recovery), we have determined:
·    You were mostly at fault in the accident.
·     We allege that you contributed to the accident and your injuries by 100%.
·     We acknowledge that your injury is not a ‘threshold injury’, however as you have been found wholly at fault your entitlements will cease under the Act.”
5.   The insurer’s explanation for the decision was as follows:
‘Based on the available information, you failed to maintain proper lookout and vigilance for potential hazards, especially considering your knowledge of the road conditions from frequent travel on this route. Furthermore, we do not believe you remained attentive when approaching the parked car. Given the alleged speed at which you were traveling on your scooter, you failed to steer your vehicle in a manner that would have allowed you to avoid the pothole. As such, you are found to be wholly at fault for the accident due to your failure to keep proper look out to the road and potential hazards, leading to the collision with the pothole which consequently, resulted in your injuries’.”
The consequence of this determination is the cessation of statutory benefits post 52 weeks and no entitlement to common law damages for non-economic loss or past and future economic loss.
Internal review of this decision was requested by the claimant on 3 March 2025. The insurer conducted a review of the decision and on 19 March 2025 affirmed the original decision that the claimant was wholly at fault and that statutory benefits will cease on 26 June 2025.
The claimant lodged with the Personal Injury Commission (Commission) an application for review.

Submissions of the claimant

The claimant submits that he bore no responsibility for the accident. He relied upon the conclusions of Senior Constable James Connolly that the bump/pothole and condition of the road was the reason for the accident and that he bore no blame.

Submissions of the insurer

The insurer provided written submissions as follows:
“15.   Sections 3.11 and 3.28 of the MAI Act are in similar terms. Section 3.11 says in respect of weekly statutory benefit as follows:
(1)     An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 52 weeks after the motor accident concerned if—
(a)     the motor accident was caused wholly or mostly by the fault of the person, or
(b)     the person’s only injuries resulting from the motor accident were threshold injuries.
(2)     A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
The insurer says the claimant was wholly at fault for the motor accident on the basis the evidence identifies he was familiar with the roadway, was aware that it was not well maintained and failed to keep a proper lookout to identify potential hazards resulting in him riding his scooter into a pothole and causing him to become unstable and fall from his scooter.
The insurer notes the evidence of the claimant that he travelled on that roadway in his car and on his scooter 3 – 4 times per week and that he had observed the bitumen road surface is in quite poor condition. There are numerous potholes and some loose gravel on the surface which I can only assume is present due to failed attempts at repairing the damaged surface in the past.
The insurer notes the evidence of the claimant that he had identified a vehicle parked on the left-hand side of the road and so he had moved to the right to pass it. The insurer submits in observing the vehicle on the left-hand side of the road, the claimant has then failed to then keep a proper lookout on the roadway to the right where the pothole was located and where he had steered his scooter towards.
The insurer notes the pothole would have been visible to the claimant as he approached, had he been keeping a proper lookout. The insurer notes the size of the pothole as described by Snr Constable Connolly and also as identified in the photograph included in the claimant’s newspaper article scooter rider pushes for compensation.
The insurer notes his evidence that I can’t say that I had seen the pothole that my scooter struck prior to the day of the accident. When I ride along Minorie Drive, I usually ride further to the left of the centre. I was on a different line the day of the accident due to the parked vehicle that I passed.
The insurer notes the claimant has not provided any evidence to suggest he was unable to observe the hazard on the roadway for any reason, simply that he steered slightly to the right, more towards the centre of the roadway to pass it. The next thing I remember was flying forward through the air, over the handlebars.
The insurer submits the evidence supports a finding the claimant failed to keep a proper lookout and failed to identify the pothole on the roadway and it was this failure that caused the motor accident. The insurer submits he failed take care for his own safety when riding on a scooter on a roadway which he was familiar with and was aware of its poor condition.
The insurer submits the evidence supports a finding the claimant was wholly at fault for the motor accident.
The insurer submits, in the alternative, the claimant would be found to be mostly at fault, therefore a finding of contributory negligence greater than 61%.
The insurer notes the reference to the way in which to approach consideration of contributory negligence in single vehicle accidents by Member Cassidy in Custovic v Allianz Australia Insurance Limited [2024] NSWPIC 605 wherein she noted the exercise undertaken by Justice Mitchelmore in GIO v Evic [2024] NSWSC 1272 when it was stated:
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.
Member Cassidy went onto state in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply. Acknowledging the difficulty in assessing contributory negligence in a single accident case where there is no one to measure the claimant’s conduct against, Justice Mitchelmore at [68] cites Axiak v Ingram and at [69] Davis v Swift and says ‘the inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence’.
Member Cassidy then stated [at 128] the Judgement in Evic makes it clear there is no relative culpability or relative importance to measure the claimant’s actions against in a single vehicle accident. I cannot therefore measure Mr Custovic’s actions against those of whoever maintained (or did not maintain) the road or
Mr Nicholson.
The insurer submits the same principles apply to the present case and says if the claimant is not found to be wholly at fault then, when considering his level of contributory negligence, the practice of relative culpability does not apply.
The insurer submits the claimant’s conduct and actions must be considered based on their departure from the standard of care of a reasonable person. The insurer submits the following considerations are relevant:
(a) The claimant was riding a motor scooter. An activity which carries with it a greater risk of suffering injury if involved in a motor accident given the lack of protection offered by a scooter as opposed to a vehicle.
(b) He was riding on a roadway which he was very familiar with and which he knew was in poor condition.
(c) He observed a vehicle parked on the left-hand side of the road and so moved his scooter towards the right but failed to keep a proper lookout on the roadway ahead so as to avoid the pothole on the roadway.
(d) He failed to observe the visible pothole on the roadway as he approached.
(e) He failed to take reasonable precautions to take care for his own safety.
29. The insurer submits on the basis of the evidence, and without consideration of any relative culpability which is not applicable in this case, he was mostly at fault with his contributory negligence exceeding 61%.”
The insurer maintained its position that the evidence supports a finding the claimant was wholly at fault for the motor accident or, in the alternative, that he was mostly at fault on the basis he failed to observe the visible pothole on the roadway as he approached and failed to take reasonable precautions to take care for his own safety.

The accident

The claimant was riding his 2021 yellow Lifan electric scooter along Minorie Drive in a westerly direction near the intersection of Wirrabilla Drive at Toormina, at a speed of approximately 20-30kmph. The scooter hit a bump / pothole which caused the claimant to go over the handlebars and slide further along the road for approximately 20m. He sustained injury in the accident.

Documents considered

I have considered the oral submissions, documents provided in the application and the reply as well as the further information contained in the NSW Police bodycam footage produced in the matter and final submissions from the parties.

Police report: [R6]

Police attended the scene. The description of the event was recorded as follows:
“On the above time and date the Driver was riding the Vehicle westbound on the Minorie Dr. The Vehicle has hit a pothole at low speed (estimated speed at 20-30km) which has caused the Driver to go over the handlebars and slid across the road for approximately 20 meters. The Driver was attended to by passerbyers who witnessed the incident and Police and Ambulance were contacted…Police arrived a short time later. The Driver had a compound fracture in his right arm. The Driver was breath tested, negative result. .
Based on the information from witnesses it appears that the accident was caused by the pothole and not by any actions of the Driver.”

Ambulance record [R8] reported

The case description recorded the following:
“C/T pt motorcycle accident. O/A pt is lying on grass by roadside with bystanders on scene. Per pt he has hit a large bump in road and lost control of bike, falling to road and then sliding approx 20-30m on tarred surface. Pt denies LOC. Pt has minor damage to front visor of helmet from sliding on road, Some injury to chin, Pt able to recall events.”

Investigations

An investigation was undertaken by Procare dated 26 November 2024 to prepare a factual report at the request of the insurer [R8]. Contained in this report is a diagram prepared at page 83 of the application bundle. The diagram depicts the location of the bump / pothole and its proximity to a parked vehicle.
The photographs taken for the purpose of the report was taken on 24 November 2024.

Police bodycam footage of the scene

Pursuant to a Notice to Produce NSW Police provided the bodycam footage identified as “n48153” taken by Constable on the day of the accident. I have viewed the footage a number of times and note the following from my observation of the contents:
(a)    in frames commencing at 27 June 2024 13:03:47 which shows the dappled shade from overhead trees across the roadway;
(b)    the bitumen from the direction the claimant was travelling was smooth;
(c)    the area where the claimant finished sliding some 10 - 20m ahead was in poorer condition to the area where the subject bump /pothole was, had significant patches and holes;
(d)    the particular “bump” referred to by the witnesses in the footage at the scene was inspected and it revealed a lip of bitumen relatively small in size and the difficulty in sighting if from a distance. When the witnesses were taking the constable to the location of the bump, at first instance it was not readily visible;
(e)    the commentary of the witnesses speaking to the constable opined that the small wheel base of the scooter seemed to catch on the lip and cause the scooter to lock up and the rider to be thrown over the handlebars;
(f)    one of the witnesses travelling behind the rider stated he was travelling 20kmph at the time he hit the pothole. When questioned by the constable “could I have been 30kmph”, he responded “no 20km/h I was directly behind him”;
(g)    at 13:03:57 the footage displays the subject “bump or pothole”;
(h)    the constable was seen taking photos with his mobile phone, and
(i)    these were produced in the report at page 3 of 4 (GIPAA-2024-0625868).

Claimant’s statement dated 12 November 2024

The statement of the claimant gave his description of events leading up to the incident:
“32.   I would say I use Minorie Drive both in my car and on the scooter 3 or 4 times per week. When riding the scooter, I like to ride to the left of the centre of the lane in which I’m travelling.
33.    As I approached the intersection of Wirrabilla Drive, I saw a vehicle parked adjacent to the left or southern kerb of Minorie Drive. I saw it well before I reached it and steered slightly to the right, more towards the center of the roadway to pass it.
34.    The next thing I remember was flying forward through the air, over the handlebars of the scooter. I can't remember actually impacting the road but from the severe grazing and bruising to my jaw, I believe I probably landed face first on the roadway.
35     I remember being tangled up with the scooter and sliding for what seemed like an eternity. When I came to a stop, still in the westbound lane, I felt what I would describe as being the worst pain I have ever experienced in my right arm. l was aware that l was still on the roadway so l crawled my way off the left side to get to relative safety
38.    I have no real recollection of my body impacting the road so I don't feel I could accurately rate its severity. I believe the injury to my right arm occurred due to the force of the front wheel of my scooter impacting a pothole and not when I landed on the road.
39.    I estimate the scooter and I slid along the road, down the hill at least 10 meters after the initial impact with the pothole.”

Statement of Senior Constable James Connolly dated 25 November 2024 taken for the Procare investigation

The following transcript was provided;
“8.     He confirmed that he attended the scene of the accident and identified the rider had collided with a pothole on the road. He stated it was surprisingly deep, and all of the witnesses – there was – like – four, or five, witnesses there, who were treating him, and they were all adamant that he did nothing wrong. He just got cleaned up by the pothole. The scooter does have quite small wheels. Possibly plays into it.
9.     He indicated he believed the pothole was ballpark, at least 10 centimetres deep.
10.    In relation to the speed of the claimant he stated my notes say that – just based off what the witnesses have told me – is estimated 20 – 30 kilometres. But, keep in mind, im hearing that from four, or five, people that were treating….they were adamant that he was just riding calmly, and normally and he hit the pothole and it just twisted his handlebars to the side and he went over the handlebars.
11.    The Snr Constable concluded, as a result of his investigations that he’s come over the ridge, hit the pothole, and gone over the handlebars, and slid for a – from what the witnesses tell me, close to 20 metres.
12.    In respect of the issue of fault for the accident he responded probably the pothole, the condition of the road.”

Legislation

In making my decision and conducting my review I have considered the following legislation       and guidelines:
·         the Act;
· Motor Accident Injuries Regulation 2017;
· Motor Accident Injuries Regulation 2017, and
·         Motor Accident Guidelines 2017.
An injured person is not entitled to statutory benefits more than 52 weeks 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.
The Act defines “fault” as “negligence or any other tort”: s 1.4 of the 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 2002.
Section 1.4 of the Act and s 3 of the Motor Accidents Compensation Act 1999 both define “motor accident” as accident involving the use or operation of a motor vehicle that causes death or injury to a person.

Case Law and interpretations

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]. 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].

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.
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].
Determination of fault only requires determination of the degree of the claimant’s contributory negligence by adopting the Axiak v Ingram 82 NSWLR36 approach, namely reference to the departure from the standard of care the claimant was required to take for their own safety.
The Supreme Court in AAI Limited t/as GIO v Evic & Ors [2024] NSWSC629 - Justice Mitchelmore made the following findings:
(a)    s 3.28 of Act use the word 'fault' accompanied by a qualifying phrase 'wholly or mostly' which clearly invokes contributory negligence. That is confirmed by the express references, in subs (2), both to contributory negligence and s 3.38;
(b)    consistently with the balance of Part 3 (which deals with statutory benefits), the provisions are concerned with contributory negligence not for the injury, but for the motor accident, in a manner that accommodates all types of motor accidents, including single vehicle accidents where the injured person is the owner driver;
(c)    the concept of contributory negligence is not only for a tortious purpose. Axiak is an example of how contributory negligence can be applied in the absence of a tortious defendant. The inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence, and
(d)    the focus is on the composite phrase 'caused wholly or mostly by the fault of the person', which can be read as directed at an enquiry as to the injured person’s contributory negligence for the motor accident, irrespective of the number of motor vehicles involved and how the claimant came to be injured. The point of difference lies in the nature of that enquiry where the injured person is an owner driver and only a single motor vehicle is involved.
The only issue to consider is whether the claimant was partially responsible for the accident and if so, the extent of his contributory negligence is to consider the extent that the claimant departed from the standard of care expected of them in the circumstances.
The Evic principle makes it clear that in single vehicle motor accident claims, a decision maker is only required to consider the extent of contributory negligence of the claimant for the accident without the need to assess any other party’s culpability.
In Vanoostwaard v AAI Limited t/as GIO [2023] NSWPIC 97 Member Cassidy has confirmed an earlier decision that in a ‘wholly or mostly at fault’ dispute involving a single vehicle only, ‘fault’ should be given its usual meaning of ‘responsibility for the accident’ rather than the meaning of fault as defined in s 1.4 of the Act to mean ‘negligence or any other tort’:
(a) Member Cassidy’s view that the word fault in ss 3.11(1) and 3.28(1) should be given its ordinary or usual meaning, which is ‘responsibility for the accident.’ This confirmed an earlier decision of Member Cassidy in Yankovich v AAI Limited t/as GIO [2022] NSWPIC 137, and
(b) the approach to be taken in single vehicle crashes to determine whether a claimant is wholly at fault, being to enquire as to whether anyone else or anything else was responsible for causing the accident. If there was someone or something else responsible, then the claimant would not be wholly at fault.
In Maggar v NRMA [2022] NSW PIC59 Commission’s Member Castagnet held claimant not wholly or mostly at fault; not riding recklessly or inattentively when negotiating the roundabout; road conditions not immediately visible. The factual scenario is similar to the current claim in that claimant in that matter was dislodged from scooter and hit bitumen with force in circumstances where the scooter slid on gravel/sand on rough, uneven patch of roadway at exit of roundabout.

Reasons

I have considered all the information contained in the application, reply and subsequent material provided by NSW Police, the written submissions and oral submissions made during the video-link preliminary conferences held.
The claimant was involved in a single vehicle collision on 27 June 2024 as recorded by the police report bearing event no E81989665. The accident occurred in daylight, the weather was fine, the road surface sealed and the condition of the road was dry.
There were a number of witnesses to the accident as contained in the bodycam footage. The general consensus was that the claimant’s small scooter wheels got caught by the bump / pothole on the road surface causing the claimant to become airborne and land on the roadway sliding a further 10-20m.
In particular a photograph contained in the insurer’s further submissions dated 22 May 2025 on page 2 appears to be a close up of the subject “bump / pothole” which depicts a shaded section of the road and dappled sunlight from trees across the whole lane. In the centre of the picture there appears be a dark patch of bitumen with a protruding lip where the sun shines across the top giving the appearance of it being somewhat flat.
There was some culpability on the part of the claimant in that he rode his scooter over the bump / pothole.
The conduct of the claimant is to be considered against the standard of care of a reasonable person. When considering such a standard I have regard to the conduct of a reasonable person in the position the claimant found himself in.
The claimant was travelling at approximately 20kmph. A witness travelling in his vehicle immediately behind the claimant confirmed the speed with reference to the speed he was doing in his vehicle and advised Senior Constable Connolly as noted in the bodycam footage.
The condition of the road upon view of the bodycam footage shows a smooth bitumen surface on the roadway in the immediately vicinity of the bump / pothole. The bump /pothole was not easily visible to those in the vicinity as noted in the bodycam footage. This hazard was also in a section of the road with dappled sunlight and this is also evident in the bodycam footage.
Noting the High Court case of Manley v Alexander [2005] HCA79; 80 ALRJR 413 at [12]:
“the reasonable care that a driver must exercise when driving a vehicle on the road requires that driver control the speed and directions of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in the time to take reasonable steps to react to those events.”
The claimant was travelling along the roadway at relatively low speed of approximately 20kmph. The condition of the road had a danger that was not readily visible and the fact that the claimant did not see it was not necessarily inattention on his part, but rather what appears to be a road condition where the danger was difficult to detect. A reasonable person in the same circumstances would have behaved in much the same manner.
I find that the conduct of the claimant in riding his scooter over the bump /pothole where the lip of the distorted bitumen was very difficult to observe was not negligence on the part of the claimant. Speed was not a factor. The claimant was travelling at 20kmph in a 50km zone. The claimant riding in the lane in the position marked in the Procare investigation diagram, was not an unreasonable line to take when riding on the roadway, he was within the lane.
Whilst it is accepted that a rider/driver should control the speed and direction of the vehicle in such a way as to know what is happening in the vicinity of the vehicle to take reasonable steps to react to those events and to pay attention to observable dangers in the vicinity, the test of conduct that a reasonable person in the position of the claimant cannot be make retrospectively.
Whilst one could submit “res ipsa loquitor” - the claimant ran over the hazard and the hazard should have been visible to the claimant. There is no evidence on the part of the insurer by expert analysis that the hazard was obvious when travelling in the direction the claimant did, and that the general condition of the road was such that the claimant should have been aware of the danger and steered to avoid it.
The insurer’s ground for submitting the claimant departed from the standard of care of a reasonable person was:
(a)    the claimant was riding a motor scooter. An activity which carries with it a greater risk of suffering injury if involved in a motor accident given the lack of protection offered by a scooter as opposed to a vehicle;
(b)    he was riding on a roadway which he was very familiar with and which he knew was in poor condition;
(c)    he observed a vehicle parked on the left-hand side of the road and so moved his scooter towards the right but failed to keep a proper lookout on the roadway ahead so as to avoid the pothole on the roadway;
(d)    he failed to observe the visible pothole on the roadway as he approached, and
(e)    he failed to take reasonable precautions to take care for his own safety.
The insurer bears the onus of proof and has not discharged the onus of demonstrating that the claimant was more than 61% responsible for the accident taking into consideration the condition of the road surface upon which the claimant travelled. The insurer has failed to adduce evidence that the claimant should have seen the danger and failed to do so. Being aware of the road conditions generally is not evidence that the bump/ pothole was visible to the claimant and should have been avoided by the claimant.
I accept the claimant’s evidence that he was watching the road in the direction he was travelling, he had viewed the parked vehicle and did not see the bump / pothole before the impact. There is no evidence before me from any expert to address whether such distortion of the road surface was visible from any distance.
Much that the insurer relied upon the general poor condition of the road, and the claimant’s regular riding in the area, the bodycam footage shows the area in proximity where the claimant came to rest, had significant potholes and obvious poor conditions of the bitumen surface. This was not the location of where the claimant struck the bump /pothole. The bump area was in a much better condition looking relatively smooth as seen in the police bodycam footage submitted.
The relevant test in single vehicle accidents is the extent to which the injured driver/ rider departed from the standard of care expected of reasonable person. I am not persuaded by the insurer’s submissions that the claimant failed to exercise reasonable care and skill in his operation of his motor scooter on the day in question. I do not consider that the actions of the claimant’s riding the scooter over the area which contained a small distortion of bitumen departed from the standard of care of a reasonable person. I rely on the claimant’s evidence he did not see the hazard and that the bodycam footage taken by Senior Constable Connolly depicts the bump/ pothole on the roadway was not easily visible from a distance and the conduct of the claimant did not depart from that of a reasonable person noting the difficulty in visibility of the hazard due to dappled sunlight and shadows, apparent in the bodycam footage.
I do not find in the claimant’s conduct of operating his scooter at approximately 20kmph, travelling along the roadway in the location of the lane he did, is any departure of reasonable conduct that warrants a finding of contributory negligence exceeding 61%.
I find that insurer’s determination of 28 October 2024 that the claimant was wholly at fault is incorrect. Similarly, I find that the alternate pleading of mostly at fault is incorrect. For the purposes of ss 3.28 and 3.11 the motor accident was not caused wholly or mostly by the fault of the injured person.

Conclusion
My determination of the Miscellaneous Claim is as follows:

For the purposes of ss 3.28 and 3.11 the motor accident was not caused wholly or mostly by the fault of the injured person.
Effective date: This determination takes effect on 26 June 2025.

[2025] NSWPIC 298

26 June 2025