Kahraman v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Kahraman v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 512
CLAIMANT:	David Kahraman
INSURER:	Insurance Australia Limited t/as NRMA Insurance
MEMBER:	Bridie Nolan
DATE OF DECISION:	26 September 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; statutory benefits after 52-weeks; whether motor accident was caused wholly or mostly by the fault of the injured person under sections 3.11 and 3.28; low-speed collision in a shopping centre carpark; both parties reversing simultaneously into adjacent bays; insured claimed to be stationary at time of impact; claimant asserted he checked for vehicles and was struck unexpectedly; reversing sensors on insured’s vehicle activated immediately prior to impact; physical damage consistent with both vehicles in motion; no CCTV or independent witnesses; insurer failed to establish that the claimant did not maintain a proper lookout or that the accident was caused wholly or mostly by the claimant’s fault; Held – insurer did not discharge burden of proof; claimant not wholly or mostly at fault; statutory benefits to continue beyond 52-weeks.
DETERMINATIONS MADE:	CERTIFICATE *Issued under s 7.36(4) of the Motor Accident Injuries Act 2017* and cl 7.497 of the Motor Accident Guidelines 1. For the purposes of Schedule 2, cl 3(d) and s 3.11, the motor accident was not caused wholly or mostly by the fault of the injured person. 2. For the purposes of Schedule 2, cl 3(e) and s 3.28, the motor accident was not caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 20 July 2024. 4. Costs: The claimant’s legal costs are fixed at $4,382.40 inclusive of GST**, in accordance with the Motor Accident Injuries Regulation 2017. 5. A brief statement of my reasons for this determination is attached to this certificate.

STATEMENT OF REASONS

INTRODUCTION

This is a Miscellaneous claims dispute within the meaning of Schedule 2, cls 3(d) and (e) of the Motor Accident Injuries Act 2017 (NSW) (MAI Act). The issue for determination, pursuant to ss 3.11 and 3.28 of the MAI Act, is whether the motor accident was caused wholly or mostly by the fault of the injured person, such that entitlement to statutory benefits beyond the first 52 weeks would be precluded.
The claimant, Mr David Kahraman, was involved in a motor vehicle accident on 20 July 2024 at the carpark of the Cranebrook Shopping Village, NSW. He was reversing his vehicle from a marked bay when a collision occurred with a Volkswagen Golf driven by the insured, who was reversing into the adjacent bay.
The impact was low speed. The claimant’s rear nearside bumper was damaged, while the insured’s vehicle sustained denting to the front passenger-side door. Both vehicles remained drivable, and no police report was made
The claimant lodged an Application for Personal Injury Benefits on 13 September 2024. In his description of the accident, he stated that he had checked his mirrors and surroundings before reversing and that the insured vehicle reversed into his path.
On 23 October 2024, issued a Liability Notice – Benefits up to 52 Weeks, accepting liability for the payment of statutory benefits in the first year after the accident.
On 20 June 2025, the insurer issued a Liability Notice – Benefits after 52 Weeks, determining that the claimant had contributed to the accident by 50%, and that statutory benefits would therefore cease after 52 weeks.
On 1 July 2025, the claimant requested an internal review of that decision. On 11 July 2025, the insurer issued an Internal Review Determination, substituting the earlier decision and finding the claimant wholly at fault for the accident, thereby disentitling him to statutory benefits beyond 52 weeks.
On 22 July 2025, the claimant lodged an Application for Miscellaneous Claims Assessment in the Personal Injury Commission seeking determination of the dispute as to whether the claimant was wholly or mostly at fault for the motor accident, and in consequence, whether statutory benefits beyond 52 weeks were precluded by operation of ss 3.11 and 3.28 of the MAI Act.
The material before the Commission includes the claimant’s application and submissions dated 22 July 2025, the insurer’s liability notices and internal review, the Quantumcorp investigation report dated 23 November 2024 (with statements from both parties and photographs of the vehicles and accident scene), and subsequent submissions exchanged between the parties.

Factual background

The motor accident occurred on 20 July 2024 at approximately 10.45am in the carpark of the Cranebrook Shopping Village.
The claimant was reversing his vehicle from a marked parking bay into the main thoroughfare of the carpark when a collision occurred with a vehicle being manoeuvred by the insured. The insured was in the process of reversing into the bay adjacent to that occupied by the claimant’s vehicle.
The claimant’s account, both in his application for benefits and in his signed statement of

14 October 2024, was that he had looked in his rear-view mirror and over his shoulder, saw no vehicles behind him, and commenced his reversing manoeuvre. Within a few seconds he heard a loud bang and realised a collision had taken place. He described the impact as involving his rear passenger bumper colliding with the front passenger door of the insured vehicle. He characterised the impact as relatively minor but sufficient to jolt his vehicle. The claimant stated that he did not see the insured vehicle because it was reversing from the opposite direction, and he had been looking to his rear left where traffic would ordinarily approach.
In her statement of 11 October 2024, the insured driver said she had entered the carpark and was reversing into a vacant bay beside the claimant’s vehicle. She asserted that her vehicle was either reversing slowly or had come to a stationary position when the rear of the claimant’s vehicle collided with her front passenger door. She referred to her reversing sensors activating immediately prior to the collision. She described the impact as minor, producing a quiet bump, with her car stationary at the time. She later clarified that the claimant’s vehicle “rested” against her passenger door after the collision.
The physical evidence supports that the claimant’s vehicle sustained damage to its rear passenger-side bumper, while the insured vehicle sustained damage to its front

passenger-side door.
These points of impact are consistent with the claimant reversing out of his bay and intersecting with the insured driver’s manoeuvre into the adjacent bay.
There is no police report of the incident, and no CCTV or independent eyewitness accounts were obtained despite inquiries made by the insurer’s investigators.
The parties exchanged details at the scene, but no emergency services attended.
The insurer initially determined contributory negligence of 50% and later, on internal review, substituted a finding that the claimant was wholly at fault, with the effect that statutory benefits beyond 52 weeks were declined. The claimant disputes that conclusion, submitting that both parties bore responsibility for the accident and that he cannot be properly described as wholly or mostly at fault.

Submissions

Claimant’s submissions

The claimant contends that he was neither wholly nor mostly at fault for the accident.
His position is that he took reasonable steps before reversing, including checking his mirrors and looking over his shoulder, and had no reason to anticipate that another vehicle would simultaneously reverse into the adjacent space from the opposite direction. He submits that his inability to see the insured driver was not due to any failure on his part, but rather the limitations inherent in simultaneously keeping lookout in both directions without the assistance of reversing sensors.
The claimant relies on the signed statement of 14 October 2024, in which he described the insured vehicle reversing into his path while he was already manoeuvring.
He emphasises that the point of impact — his rear bumper against the insured’s front passenger door — demonstrates that the insured was continuing her reversing manoeuvre at the time of collision.
The claimant further argues that the internal review decision failed to apply the same standard of care to both parties. In his submission, the insured driver was on notice of a risk, given that her reversing sensors were activated, yet she continued her manoeuvre.
The claimant contends that this demonstrates a greater foreseeability of risk on the part of the insured.
The claimant refers to authorities emphasising comparative assessment of departures from reasonable care. He cites Pennington v Norris [1956] HCA 26; 96 CLR 10 and Podbrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492 as requiring responsibility to be apportioned by reference to each party’s negligence. He also relies on Commission’s decisions such as AOF v QBE (2020) and APM v QBE (2020) in which Members found that where both drivers failed to observe each other or where responsibility could not be clearly assigned, the claimant was not found wholly or mostly at fault.

Insurer’s submissions

The insurer submits that the claimant was wholly at fault and that the decision of the internal reviewer should be upheld. Its case is that the accident occurred in the carpark of Cranebrook Shopping Village, a location demanding heightened care. The claimant was reversing into a thoroughfare, which carried an elevated duty to ensure the path was clear.
The insurer relies on the claimant’s own account that he reversed without detecting the insured’s vehicle, and contends that this demonstrates a failure to maintain proper lookout. It submits that the photographs of damage are consistent with the insured vehicle being stationary or nearly stationary when struck on the passenger-side door.
The insurer refers to reg 296(1) of the Road Rules 2014 (NSW), which prohibits reversing unless it can be done safely. It argues that the claimant’s actions contravened this requirement. It relies on authority including Derrick v Cheung [2001] HCA 48, Manley v Alexander [2005] HCA 79, and Vairy v Wyong Shire Council [2005] HCA 62 to support the proposition that a reasonable driver must maintain proper control, keep a safe lookout, and avoid foreseeable risks.
The insurer maintains that the insured driver exercised appropriate care by reversing cautiously with the assistance of sensors, and that her account of being stationary at impact should be accepted. It submits that the claimant failed to control his vehicle to avoid collision and that the evidence supports a finding of sole responsibility.
The insurer contends that no further evidence is required, that the dispute raises no factual issues necessitating oral hearing, and that the matter is capable of determination on the papers.
The relief sought is that the Commission determine the claimant not wholly or mostly at fault, with the consequence that statutory benefits continue beyond 52 weeks.

Consideration
Findings of fact

Having regard to the material before me I make the following findings of fact.
The motor accident occurred at approximately 10.45am on 26 June 2024 in the carpark of the Cranebrook Shopping Village.
The claimant had parked his vehicle in a marked bay. He commenced reversing out of the bay into the carpark thoroughfare. He states that before doing so he looked into his rear-view mirror and over his shoulder, saw no vehicles, and then proceeded.
At the same time, the insured driver had entered the carpark and was manoeuvring her vehicle in reverse towards the adjacent bay next to that occupied by the claimant’s car. She states that her reversing sensors were activated immediately prior to the collision, and that she was either moving slowly in reverse or had come to a stop when impact occurred.
The physical damage is consistent across both accounts. The claimant’s vehicle sustained damage to its rear passenger-side bumper, while the insured driver’s vehicle sustained damage to its front passenger-side door.
The geometry of the damage is consistent with both vehicles being in motion at the time of collision, each reversing from opposite directions towards the same space.
The claimant’s account that he did not see the insured vehicle is plausible given that his line of sight was directed over his left shoulder where he anticipated oncoming traffic. Conversely, the insured driver had the benefit of reversing sensors that were sounding, yet she continued her manoeuvre.
The evidence does not permit a conclusion that either vehicle was stationary at the time of impact. The probabilities favour a finding that both vehicles were reversing simultaneously and that their paths intersected.
The collision occurred at low speed, consistent with the carpark environment. Both drivers failed to perceive and avoid the other.
The issue for determination is whether the claimant was wholly or mostly at fault for the accident. That issue turns on whether, on all the evidence, the insurer has discharged the burden of proving that the accident was caused wholly or predominantly by the claimant’s fault. The standard is one of reasonable satisfaction, but the seriousness of the consequence, namely, disentitlement to all ongoing benefits, demands that the standard be applied with careful regard to the nature, strength and limitations of the evidence available. The correct allocation of that burden is not in doubt. 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 the evidence, it can be concluded that the accident was caused wholly (or mostly) by the claimant’s fault: Insurance Australia Ltd t/as NRMA v Richards [2023] NSWSC 909 at [45], [55]–[57], [67].
The critical question, therefore, is whether the claimant did or did not keep a proper lookout when reversing. The Road Rules provide that a driver must not reverse unless able to do so safely (reg 296(1)), which imports the obligation to observe, listen, and exercise judgment about whether the path is clear. The test is not of perfect foresight but of reasonable care in the circumstances.
The claimant says he looked in his rear-view mirror and over his left shoulder, saw no vehicles, and then reversed. He was focused on the direction from which oncoming traffic would usually appear in the carpark. By contrast, the insured driver was reversing into the adjacent bay. Her own account is internally inconsistent: she said she was reversing at the time of impact, yet also said she was stationary when struck, notwithstanding that her reversing sensors had activated. The physical damage — the claimant’s rear passenger bumper against the insured’s front passenger door — is consistent with both parties reversing, but it is incapable of resolving which vehicle was moving at impact.
The insured driver’s evidence does not persuade me that she was keeping a proper lookout. In her statement she claimed both that she was “proceeding to reverse” and that she was “stationary at the time of impact.” Those accounts are irreconcilable. More significantly, she acknowledged that her reversing sensors had activated immediately prior to the collision, yet she continued her manoeuvre. A proper lookout requires more than the act of glancing or reliance on technology: it requires responding reasonably to warnings that a collision risk is imminent. The photographs showing damage to the claimant’s rear bumper and the insured’s front passenger door are more consistent with both vehicles being in motion and with the insured failing to react to the sensor warning. On balance, I am not satisfied that the insured exercised reasonable care to avoid the hazard, and I find that she was not keeping a proper lookout in the sense required by reg 296(1) of the Road Rules 2014 (NSW).
The insurer’s case is that the claimant failed to maintain a proper lookout. But the difficulty is that the evidence does not permit that conclusion to be drawn with confidence. A “proper lookout” in this context would require awareness of the presence of vehicles approaching from behind and from adjacent bays, coupled with reasonable caution to pause or stop if risk presented. Yet the claimant could not look simultaneously in both directions, and he did not have the benefit of reversing sensors.
Could the claimant have avoided the accident had he looked differently? Perhaps, but that proposition remains speculative. There is no direct evidence that the insured’s vehicle was already in position or visible within his line of sight before he commenced reversing. Nor is there any objective evidence (such as CCTV or independent witnesses) to confirm that his vehicle encroached into the thoroughfare without reasonable care.
In these circumstances, I am not persuaded, to the requisite standard, that the claimant failed to keep a proper lookout. The evidence does not establish that the accident was caused wholly or mostly by his fault. At best, the materials support a finding that both parties bore some responsibility in failing to avoid a foreseeable collision. That is insufficient to disentitle the claimant under ss 3.11 and 3.28 of the Act.
Accordingly, I am not satisfied that the insurer has discharged the burden of proof.

Conclusion

For the purposes of Schedule 2, cl 3(d) and s 3.11 of the MAI Act, I find that the motor accident was not caused wholly or mostly by the fault of the injured person.
For the purposes of Schedule 2, cl 3(e) and s 3.28 of the MAI Act, I likewise find that the motor accident was not caused mostly by the fault of the injured person.
Accordingly, the insurer has not established a basis to cease payment of statutory benefits after 52 weeks.

Costs

Pursuant to the Motor Accident Injuries Regulation 2017, I allow costs at the regulated maximum for each relevant head of the Schedule:
(a) Schedule 2, cl 3(d): $1,992, and
(b) Schedule 2, cl 3(e): $1,992.
The total of $3,984 is allowed, together with GST of $398.40, producing a sum of $4,382.40.

[2025] NSWPIC 512

26 September 2025