Karim v Allianz Australia Insurance Limited
[2025] NSWPIC 481
•11 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Karim v Allianz Australia Insurance Limited [2025] NSWPIC 481 |
| CLAIMANT: | MD (aka Mohammod) Rezaul Karim |
| INSURER: | Allianz Insurance (Australia) Limited |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 11 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28; claimant sustained injury when he parked his car to pray on the grass verge and whilst exiting the vehicle moved backwards before hitting a tree injuring the claimant in the process; evidence supported a failure to engage the park position and handbrake of the vehicle; departure from the standard of care required of a person in the position of the claimant; Held – the claimant’s evidence and the comprehensive analysis of the operations and mode of the vehicle’s handbrake mechanism from an expert investigator; the claimant mostly at fault and contributory negligence greater than 61%. |
| DETERMINATIONS MADE: | CERTIFICATE 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the claimant was mostly at fault for the accident. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the claimant was mostly at fault for the accident. 3. There is no application for costs and disbursements. |
STATEMENT OF REASONS
INTRODUCTION
The claimant, Mr Rezaul Karim says he was injured in a motor vehicle accident on 10 April 2025.
At the time, he had been driving a taxi. He had delivered a passenger to Sydney Airport before deciding to take a rest on the side of the roadway.
Upon exiting the vehicle to pray, the car rolled backwards and hit a tree. During this motion, the claimant was injured.
Allianz Insurance (Australia) Limited (the insurer) is the relevant insurer liable to pay statutory benefits to the claimant under the Motor Accident Injuries Act 2017 (the MAI Act).
The claimant completed an Application for Personal Injury Benefits on or around 16 April 2025.
On 11 July 2025, the insurer declined liability for payment of statutory benefits following the first 26 weeks after the accident on the basis the claimant was wholly at fault for the accident.
The claimant sought an internal review of the decision and on 30 July 2025 the insurer determined the claimant was wholly or mostly at fault for the accident.
The claimant lodged a miscellaneous claims dispute pursuant to s 3.28 of the MAI Act.
During a preliminary conference, both parties agreed the dispute could be determined on the papers. I consider that it is appropriate to determine the dispute on the papers. I am satisfied the evidence and submissions provided by the parties are sufficient to determine the dispute without an assessment conference.
DOCUMENTS
I have had regard to the insurer’s submissions dated 20 August 2025 and the claimant’s application including an illegible form for benefits, a factual investigation and annexures including a statement and diagrams by the claimant, photographs of the scene, and copies of the internal review.
The claimant’s statement is included in the factual investigations report along with brief submissions by the claimant dated 30 July 2025.
STATUTORY FRAMEWORK
At the time of the accident s 3.11 of the MAI Act provided:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 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 enacted law includes s 5R of the Civil Liability Act 2022 (CLA) which sets out the principles that apply in determining the question of contributory negligence.
Sub section 5R(2) provides the following:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
FACTUAL EVIDENCE
The claimant is 59 years of age. He came to Australia from Bangladesh in 1995. He has been driving in this country since around 1996. He has driven taxis for around ten years.
At the time of the accident, the claimant was driving an automatic Toyota Camry Hybrid 2023 model (the vehicle), fitted with an electric handbrake. There are no issues with the roadworthiness of the vehicle.
It was around 7pm – 7.30pm on 10 April 2025. Mr Karim had delivered a passenger to Sydney Airport in the taxi he was driving. He proceeded to park for a rest and to pray in Cross Street, Pymble. This street is a residential street on a slight hill.
Mr Karim says in his statement, “I was coming out from the car after resting, the car was going down like a slope. I am holding the steering wheel so that the car doesn’t hit other people or cars. I was thinking if any car is coming, I was holding the steering wheel, so it doesn’t hit other car coming across my car. The car stopped when it hit a tree. By that time, it was going backwards, so I fell down straightaway on the street”.
And further “The reason why I got out of the car after resting was, it was prayer time, I pray and I can pray anywhere on the ground. So I think this because sunset, it is prayer time. So I think I can pray on the grass, there is grass there. I pray there I get out of the car, the car starts to go back”.
He fell down onto the street because he says the driver’s door was open which pushed him to the ground. He suggests in his statement that the vehicle has a brake on the parking brake, and he may have accidentally, hit something as he was exiting the vehicle which caused it to move backwards.
Allied Universal Compliance and Investigators were engaged by the insurer to interview Mr Karim and provide a comprehensive analysis of the vehicle, and its handbrake dated 18 June 2025.
The report provides the following explanations of the handbrake operations.
This vehicle is fitted with two options for a handbrake. One is an automatic mode which is activated when the gearstick is moved to the ‘Park’ position. It is only released if the gearstick is moved into the ‘Drive’ position.
The handbrake mode changes from automatic to manual mode by pressing the handbrake button down for three to four seconds. A message will appear on the dashboard alerting the driver of the manual mode. In manual mode, the handbrake will not activate or deactivate when the gearstick is moved to ‘Park’ or ‘Drive’.
When the handbrake is activated, a red P is illuminated on the dashboard.
The investigation report provides specifications of the 2023 Toyota Camry Hybrid Electronic Park Brake with photographs of the handbrake options and dashboard.
REVIEW OF THE EVIDENCE
Mr Karim is an experienced driver. He has been driving since 1996 and familiar with driving taxis for around ten years.
He has not been able to give a feasible explanation as to why the vehicle rolled backwards. His statement is conflicting which may be explained by the fact English is not his first language.
He says when he parked the vehicle, the motor was turned off. The car was stopped. It was in the parking position. He says “There is no electric handbrake, is it like a parking position, it’s called electric handbrake, I put it into Park. I think the car moved it happened because it’s a hilly area.”
Later in his statement at paragraph 34 he says, “I think the accident happened because the car has no handbrake.”
The only conclusion which can be drawn from the evidence is, Mr Karim did not engage the handbrake when he parked the vehicle.
The vehicle was fitted with two option modes for the use of a handbrake. Mr Karim did not activate either of these options which caused the vehicle to roll backwards causing him injuries.
Mr Karim relies on submissions and the material contained within his miscellaneous claims assessment. The submissions state: -
“The claimant parked his car and then the car rolled onto him and we submit that he [SIC] and acted reasonably in the circumstances.
And the injuries of the claimant arose out of the use of the motor vehicle.
We refer to the interpretations of section 3.11 and 3.28 of the MAI Act.
In this respect, the claimant relies upon Evic v AAMI Insurance NSWSC 1272 which states, that the party alleged to be at fault must be “wholly or mostly” at fault which invokes contributory negligence, and not only to be the actionable tort of negligence.
In the Evic principle, the member, is only required to consider the extent of the contributory negligence, of the claimant in the accident, without the need to assess any other party’s culpability.
In the circumstances, we submit that the claimant’s extent of contributory negligence is not more than 61% and therefore the claimant is deemed not to be at fault as the claimant did secure his vehicle and the claimant lost control of the motor vehicle but through no fault on his part.”
The insurer has issued submissions which break down the investigation report.
They submit the claimant knew or ought to have known whether the handbrake in the vehicle was activated. They add it was the claimant’s duty to take care of his own safety to ensure the handbrake was activated before exiting the vehicle.
Based on the evidence, the insurer argues the following findings of fact should be made: -
(a) There was no defect.
(b) The claimant was the driver of the vehicle.
(c) The accident was a single motor accident.
(d) In the use of the vehicle, the claimant failed to activate the handbrake before exiting the vehicle causing it to run out of control.
(e) The claimant only moved the gearstick to ‘Park’ and failed to check and activate the handbrake.
(f) That it is more likely than not the claimant’s hand pressed the handbrake button which deactivated the EPB.
(g) Before exiting the vehicle, the claimant failed to check the handbrake was activated by checking the red ‘P’ on the dashboard.
(h) Before exiting the vehicle, the claimant failed to check the red light illuminated on the handbrake button.
(i) The claimant failed to check the handbrake was activated whilst parked on a hill where it is foreseeable that the vehicle would likely to run out of control.
(j) The claimant failed to safely park the vehicle before exiting.
(k) The claimant failed to activate the handbrake before exiting the vehicle and which caused the vehicle to run out of control and cause a dangerous situation.
(l) When the vehicle was running out of control, the claimant failed to take care of his own safety and attempted to drive the out-of-control vehicle from an unsafe position outside the vehicle.
(m) The failure to activate the handbrake was the fault of the driver.
In the current circumstances and in light of the above factual findings, the insurer submits the claimant was wholly at fault for the accident and his contributory negligence was 100% and therefore, he was mostly at fault for the accident.
Submissions by both parties are not evidence. Submissions are a written form of advocacy and should refer to the evidence and argue the case referring to the applicable statue and any relevant case law.
WAS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT
There is no dispute Mr Karim was injured in an accident involving the use and operation of a motor vehicle in accordance with s 1.4 of the MAI Act.
The burden of proof in establishing that the accident was caused mostly or wholly by the fault of the claimant rests with the insurer. The investigation report assists in establishing cause.
In AAL Limited t/as GIO c Evic [2024] 1272, Mitchelmore J held:
(a) Sections 3.11 and 3.28 operate to cease the payment of statutory benefits to a person under Div 3.3 and 3.4 respectively, if one of the two conditions in subs (1) is satisfied. The focus of the condition, and the relevant enquiry, in paragraph (a) is whether the motor accident, as defined in s 1.4, was caused “wholly or mostly by the fault of the person”, being the injured person who is in receipt of the relevant benefits. The qualifiers “wholly and mostly” inform each other and are intended to address the same mischief, namely, contributory negligence.
The court discussed sections 3.11 and 3.28 where it is directed to the injured person’s failure to take reasonable care contributed to the accident including single vehicle accidents where the injured person is the owner driver.
Although this is a single vehicle accident, I am required to determine the extent to which the claimant’s failure to take reasonable care contributed to the accident.
The reasonable care duty was reiterated in Vairy v Wyong Shire Council [2005] HCA 62-225 CLR. The court stated that the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care having regard to all the circumstances.
I have found the claimant did not properly activate the handbrake in the vehicle he was driving. He also failed to ensure that the vehicle was in a safe gearbox mode such as in the ‘Park” position. If Mr Karim had moved the gearstick in the vehicle to the ‘Park’ position and activated the handbrake, either automatically or manually, the vehicle would not have moved when he exited the vehicle. A reasonable person would have ensured that the vehicle was in the Park position and activated the handbrake before exiting the vehicle.
Under s 3.38 (3)(c) of the MAI Act requires an assessment of what is just and reasonable in the circumstances. In these circumstances, Mr Karim had the responsibility of the control of the vehicle whilst stationery on a slope to ensure it did not move from the park position before exiting the vehicle.
Considering Mr Karim’s evidence and the comprehensive analysis of the operations and mode of the vehicles handbrake mechanism, I am satisfied the accident was caused mostly by the fault of the claimant where his contributory negligence of departure from the standard of care was required to exercise in failing to properly activate the correct mode of stationery gear mode and handbrake activation was greater than 61%
CONCLUSION
For the purposes of s 3.11 of the MAI Act the claimant was mostly at fault for the accident.
For the purposes of s 3.28 of the MAI Act the claimant was mostly at fault for the accident.
There is no application for costs.
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