Kennedy v AAI Limited t/as GIO
[2022] NSWPIC 342
•31 May 2022
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Kennedy v AAI Limited t/as GIO [2022] NSWPIC 342 |
| CLAIMANT: | Timothy Kennedy |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Belinda Cassidy |
| DATE OF DECISION: | 31 May 2022 |
| CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (2017 Act); application for statutory benefits; insurer’s denial of ongoing benefits under sections 3.11 and 3.28 of the 2017 Act on the basis that the Claimant was wholly or mostly at fault; Claimant owner and rider of only vehicle (motorcycle) involved; accident occurred in country NSW when rear wheel fell off motorcycle; Claimant was experienced motorcycle rider felt something wrong at front of bike and pulled over to investigate; pushed bike up the road then mounted bike and rode off accelerating slowly before being thrown from motor bike; rear wheel never found; three potential causes of rear wheel dislodging; failure to maintain, catastrophic failure or tyre-fitter failure; Held- Claimant not wholly at fault because no evidence of failure to maintain and other two potential causes due to someone else or something else; Claimant not mostly at fault because reasonable person in the position of the Claimant (experienced rider; 40 kms from nearest town) would attempt to investigate and diagnose problem before calling for help. |
| DETERMINATIONS MADE: | In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of section 3.11 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. For the purposes of section 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. |
STATEMENT OF REASONS
INTRODUCTION
On 27 September 2021, Timothy Kennedy was riding his BMW motorcycle from Hay towards Forbes. Shortly after turning into Sandy Creek Road from Pullabooka Road, he was thrown from his motor bike and injured.
On 30 October 2021, Mr Kennedy made a claim for personal injury benefits under the Motor Accident Injuries Act 2017 (MAI Act). As there was no other vehicle involved, Mr Kennedy made the claim with GIO, his own compulsory third party (CTP) insurer. GIO accepted the claim and commenced paying benefits to Mr Kennedy1.
On, 28 January 2022, GIO wrote to Mr Kennedy saying that he was wholly at fault in causing his accident and that pursuant to sections 3.11(1) and 3.28(1) of the MAI Act, liability to pay any benefits beyond the first 26 weeks after the accident was denied2. An internal review was sought and GIO affirmed its original decision on 8 March 20223.
The dispute between Mr Kennedy and GIO about whether Mr Kennedy was wholly at fault in causing his accident was referred by Mr Kennedy to the Personal Injury Commission (the Commission) for determination. The dispute was allocated to me for assessment.
I have held a preliminary teleconference in the matter on 18 May 2022. I took some brief evidence from the claimant and advised I would determine the matter on the information I have before me. The parties did not object to that course of action.
LEGISLATIVE FRAMEWORK
Liability for benefits beyond 26 weeks
The MAI Act provides a scheme of compulsory insurance for all NSW registered motor vehicles. It also provides a scheme of benefits and lump sum compensation for those killed or injured on NSW roads.
Part 3 of the MAI Act establishes a scheme of statutory income support and treatment
1 Mr Kennedy’s claim form is identified as document R2 in the insurer’s bundle of documents (the bundle). GIO’s first liability notice accepting the claim is dated 15 November 2021 and is identified as document R3 in the bundle.
2 GIO’s notice denying liability is identified as document R4 in the bundle.
3 The internal review decision is identified as document R5 in the bundle.
and care benefits for almost all4 persons killed or injured in a motor accident on NSW roads on or after 1 December 2017.
Statutory treatment and care benefits continue for life however statutory income support benefits only continue for two years after the accident unless a claim for damages is made in which case benefits are paid for up to five years after the accident5.
Statutory benefits are paid for the first 26 weeks if no one is at fault or even if the injured person is at fault6. However, after the first 26 weeks, the MAI Act says that an injured person is not entitled to benefits if they only have minor injuries7 or if “the motor accident was caused wholly or mostly by the fault of the person”8. The phrase “mostly at fault”’ requires a finding of contributory negligence on the part of the injured person of greater than 61%9.
It should be noted that Mr Kennedy sustained serious leg injuries10 in the accident and there is no issue at all about his injuries falling outside the definition of minor injuries in section 1.6 of the MAI Act.
While the insurer’s liability and internal review decisions raise only issues concerning whether Mr Kennedy was wholly at fault, the submissions filed by the insurer suggest that, in the alternative, an allegation is made that Mr Kennedy is mostly at fault.
Jurisdiction
As mentioned in paragraph 4, Mr Kennedy referred his dispute with GIO to the Commission for determination.
Schedule 2 to the MAI Act, clause 3 provides a list of miscellaneous claims assessments matters. Sub-clauses (d), (e) and (n) provide the Commission with power to determine the disputes about whether an accident was caused wholly by the fault of Mr Kennedy or mostly by the fault of Mr Kennedy.
4 There are some disentitling provisions. For example, if a person has a workers compensation claim (section 3.35) or they have been charged with or convicted of a serious driving offence (section 3.37) then no benefits are payable at all.
5 Section 3.12(2).
6 Section 3.1.
7 Within the definition of ‘minor injury’ contained in section 1.6.
8 Section 3.11(1) for weekly income support payments and section 3.28(1) for treatment and care benefits.
9 Section 3.11(2) and s 3.28(2).
10 Fractured fibula and comminuted fracture of the tibia at the left ankle.
REVIEW OF THE EVIDENCE
Claim form and early documents
Mr Kennedy does not have a lawyer. While he has lodged the application for miscellaneous claims assessment it is the insurer which has provided the bundle of documents that forms the written evidence in this matter.
The application for personal injury benefits11 indicates that the claimant is now 52 years of age and living in Hay. He is a civil engineer. He says the accident occurred on 27 September 2021 at about 2.00pm on Sandy Creek Road 500m west of the intersection with Pullabooka Road. He describes the accident as follows:
“On the morning of 27 September 2021, I departed Cootamundra on my BMW motorcycle and headed to Forbes via some back roads. Upon slowing down at the Pullabooka Rd / Sandy Ck Rd intersection I noticed a wobble coming from the front end of the motorcycle. I decided to stop and park-up the bike at the intersection to further investigate the cause of the wobble. I checked the tread of the tyre, air pressure and tightness of nuts holding the front wheel, all seemed fine. I then decided to push the bike without the motor engaged, noting no movement. I continued to head east along Sandy Ck Road to try to pinpoint the problem. I steadily accelerated the bike to approximately 70 km/h, with this increase in speed the wobble seemed to dissipate, then all of a sudden, I was thrown from the bike onto the road surface resulting in a leg injury. As I crawled back towards the bike a local farmer turned up and noted that my back wheel was missing.”
The police report12 records a narrative consistent with the claimant’s version of events from his claim form that is, the rider felt something wrong, stopped and checked the bike, continued for a short distance before the rear wheel fell off.
The road was described as straight, the surface sealed and dry and the weather fine. The speed limit is not noted although the insurer’s submissions (paragraph 4) suggest the speed limit was 100 km/h.
No police action was taken against Mr Kennedy.
The ambulance report13 simply notes the claimant said he was travelling at 70 km/h
11 Document R2, page 7 of the bundle.
12 Document R6, page 36 of the bundle.
13 Document R8, page 101 of the bundle.
when the rear wheel fell off.
The Orange Health Service records14 include details of Mr Kennedy’s stay (27 September to 12 October 2021) and his two operations (external fixation on 28 September and internal fixation on 8 October 2021). The claimant was discharged for follow up at the fracture clinic and with ongoing medications.
Insurer’s factual investigation
GIO retained an investigator, Darren Maynard from Brooksight Investigations, who has provided a report dated 25 February 202215.
Mr Maynard did not visit the accident scene although the investigator noted, “There are crop fields on either side of the road, one of which is probably still hiding the rear wheel, which apparently bounded off and has not yet been recovered”.
A statement was taken from the claimant and Mr Maynard obtained a statement from the locals who assisted the claimant as well as the rear tyre fitter and he undertook some research.
The various parts of this report will be considered in detail below.
The claimant’s statement16
The claimant’s statement was taken on 4 February 2022 in Cootamundra where he was staying with his parents. The main features of the statement are as follows:
(a)the claimant is single, 52 years of age and living in Hay where he is employed, as a civil engineer, by Transport New South Wales [18-20];
(b)before the accident he was an active sports motorcyclist including off road riding but had never had a major accident [21-22, 26];
(c)he obtained both his driver license and motorcycle rider license at the age of 17 and has driven both types of vehicles on urban and rural roads including loose dirt conditions [24];
(d)he has had some speeding offences but no driving convictions [25];
(e)he is an “avid” motorcyclist owning a number of motorbikes [28];
14 Document R9, page 108 of the bundle.
15 Document R7, page 41 of the bundle.
16 The claimant’s statement is found at page 48 of the bundle. The paragraph numbers are in square brackets.
(f)he purchased the BMW motorbike nine years ago and at [29] he describes it as follows:
“It is more related to an off-road machine than to the conventional road bike. It has high suspension, high ground clearance, spoked wheels and of course the horizontal opposed twin cylinders. It was fitted with “knobbly” tyres and front and rear disc brakes. It does not have ABS or any other drive features. It is rear wheel drive, driven from the engine, via the 6- speed manual transmission to a solid shaft with a hub fitted to the rear mono-shock single swing arm. This is known as the power lever. The rear wheel with tyre, is fitted to the hub, which is made of alloy, by four bolts.
These have a collar for flush mounting to the face of the wheel hub. If one is to remove these bolts, the rear wheel can be taken off the hub after allowing for the brake line to the calliper”;
(g)Mr Kennedy’s father was a retired mechanic, and together they serviced the motorcycle and kept it in good condition [32]:
(i)there were no major repairs;
(ii)the clutch was replaced “some years ago”;
(iii)a new drive shaft was fitted in 2018;
(iv)the back wheel was refitted using a torque wrench set to 105Nm for the rear four bolts, and
(v)Mr Kennedy “regularly checked the rear wheel hub for any cracks in the metal or other indications of metal fatigue”.
(h)in February 2020 Mr Kennedy needed a new rear tyre and took his bike to a business in Hay and ordered a new tyre. When he collected the motorcycle two or three days later, he did not inspect the work and rode 6
– 7,000 km on that tyre. He did not further inspect the rear wheel bolts [33];
(i)on 27 September 202117 Mr Kennedy left Cootamundra intending to stay near Forbes. He travelled on the back roads for the adventure [35];
(j)as he rode along the Pullabooka Road, he felt a “strange wobble in the front of the cycle”. He pulled over and inspected the front of the motorcycle. He was trying to find the cause and pushed the bike without the motor
17 The claimant says it was Tuesday, but the calendar suggests the 27th was a Monday.
going for a short distance but “could not detect any obvious fault”. Because there was dirt road ahead, he turned around and restarted the bike heading back the way he came along bitumen [38];
(k)he “gently accelerated” up to 60 or 70 km/h and “the wobble disappeared”. He continued on at 70 km/h when he was “high-sided” as the motorbike went out of control and he was thrown into the air over the handlebars [39];
(l)shortly after the accident a farmer arrived, called an ambulance and remarked that Mr Kennedy had no back wheel which was the first time he realised his rear wheel had dislodged [41];
(m)the farmer left as he had somewhere to go but he called his daughter who stayed with Mr Kennedy until the ambulance arrived. Her husband collected and stored the bike, and he was “aware that a number of unsuccessful search were carried out for the wheel, which remains missing. I believe it disappeared into a crop field” [43];
(n)he thought the fault was with the front of the bike but is “now aware that the rear wheel coming loose can cause a misdiagnosis”. At the time of the accident, he was wearing a helmet, full motocross armoured boots, leather padded gloves, padded motorcycle jacket and long pants [45], and
(o)his bike was recovered and taken back to his parent’s home and the rear wheel has been replaced by his father. The claimant’s father had inspected the face of the hub which shows no damage and there were no bolt parts other than a slither of thread. “I strongly suspect that the bolts have worked loose, then allowed [the] wheel to come free”. He suggests that “Had the bolts broken or … had the wheel hub fractured, some or all of the bolts would have remained …”
Mr Kennedy provided a sketch diagram18 and photographs of the motorbike after the accident, in a shed. This included one photograph of the hub showing the four bolt holes (page 71) and what appears to be three close ups showing the slither of thread from one of the bolts (pages 72-74). There are other photographs showing the motorcycle with its replacement wheel and tyre.
Interview Toole family
Mr Graham Toole was the son of the farmer who found Mr Kennedy after his accident.
18 At page 59 of the bundle.
He was interviewed over the phone on 11 February 2022. He says:
(a)Mr Kennedy was sitting on the side of the road and the bike was in the middle of the road;
(b)Mr Kennedy had mentioned the wobble and that he stopped to check but that the back wheel had fallen off;
(c)the claimant was wearing full motorcycle gear;
(d)he looked around and didn’t see the wheel or any wheel nuts or bits of metal “and we’ve had a good look since”. They thought the wheel might have bounced off into the crops and might have been found at harvest time which was “pretty soon”;
(e)he was concerned about the wheel causing damage to the harvester so “we’ve already told plenty of people about it”;
(f)he thought it looked like the wheel nuts had come off, and
(g)he said he would be in touch (with Brooksight) if the wheel turned up.
Mr Peter Toole was the farmer who came across Mr Kennedy. He does not add much other than to confirm the wheel was looked for, not found and people had been alerted to advise when the wheel was found. He confirmed that he and his son had a pretty good look but were unable to find any part of the wheel.
Ms Jody Toole confirmed the evidence of her husband and her father and says she did not notice debris on the road. Mr Kennedy had told her about the wobble and that he stopped and checked his bike before riding off again. She also confirmed that the rear wheel was gone, no one could find it and that she would tell Brooksight when the wheel turned up.
Interview with John Rosewarne
John Rosewarne is the person who fitted the tyres to the claimant’s motorbike. He was also interviewed by phone on 11 February 2022.
While the claimant only remembered one change of tyre (in February 2020), Mr Rosewarne, who presumably has records, says another tyre was fitted to the back of the bike in March 2021.
He says he uses a rattle gun to refit tyres. He says this will not let him overtighten the wheel bolts.
The investigator asked him, “Was that the process you used?” and the response was
“That’s what I would have done”.
He was asked whether he was confident the rear wheel bolts were “tight and correctly fitted” and he said “Absolutely. I’m always conscious of that. I don’t want a wheel coming off because of something I did”.
He thought the claimant had been in a couple of times after that but not for anything to do with the back wheel.
Investigator’s research
Mr Maynard rang Procycles (formerly Tom Byrne Motorcycles) which he identified as the “oldest BMW motorcycle dealer in Sydney” and spoke to the service manager (not named) who said that:
(a)he had never known of a rear wheel failure due to metal fatigue;
(b)he was aware of rear wheel failure due to human error, and
(c)“either the wheel bolts had been overtightened causing the alloy flange / hub to crack, or the wheel bolts have been insufficiently tightened and worked loose”.
Mr Maynard undertook an online search and discovered a recall of a later model BMW due to a single flange nut which appears to have caused a rear wheel to come off in an accident in 2005 in Spain. He could not find any record of a recall in USA or Australian records.
The investigator concludes that “it is possible that when and if the wheel is found evidence will show the cause of the wheel coming free”. He suggests there are three possible causes:
(a)metal fatigue;
(b)human error in fitting the bolts, or
(c)lack of maintenance or checking bolt tightness from time to time.
Mr Maynard appears to discount the first cause because he says that if the flange cracked and broke the metal would break away, but the bolts would remain intact. He considered it important that no fragments of metal (from the flange or hub) were found at the scene and there were no bolts found in the remaining wheel hub. He says that the slither of bolt thread remaining suggests that this particular bolt was the last connection before the wheel dislodged.
He also raises issues with the third cause noting that Mr Kennedy did not check the
bolt tensions from time to time but only inspected the hub for cracks. Mr Maynard notes that while the claimant remembered the February 2020 tyre change and said he rode 6,000 to 7,000 km after that, he did not remember the March 2021 tyre change. Mr Maynard speculates that “it is hard to accept that [the bolts] would have remained in place for such a distance which included extensive off-roading over rough terrain”. While a distance of 6,000 – 7,000km over 17 months from February 2020 to September 2021 seems a long time and a great distance, there is no evidence of the number of kilometres ridden in the six months from March to September 2021 and whether that involved for example “off-roading over rough terrain”.
The investigator notes that:
“…given [his] vast experience in such matters, it is not uncommon for human error to be the cause of loose wheel bolts / nuts. Fitting of bolts / nuts is a two- fold operation. Initially, the wheel is held up with one hand to align the first bolt hold while the other hand inserts the bolt into the hole and finger tightens it.
Then, in the case of bolts as opposed to wheel nuts, some jiggling is required to align the remaining three bolt holes. Finally, all four bolts are fitted “finger tight”. If the fitter is distracted away from the motorcycle, this can lead to a failure to complete the process of returning the motorcycle and properly tightening the bolts which, to the eye, appear to be intact.”
Mr Maynard records that the insurer gave him verbal advice “to include his findings and comments based on his extensive subject matter knowledge”.
Mr Kennedy’s evidence
At the teleconference on 18 May 2022, I asked Mr Kennedy some questions to provide some additional information to assist me determine the matter before me.
Mr Kennedy said that his father had travelled to the scene of the accident and looked for the wheel but had not found it. Mr Kennedy had made no further enquiries as to the whereabouts of the wheel.
Mr Kennedy confirmed the tyre change in March 2021 and that he had forgotten it.
I asked Mr Kennedy if he had undertaken any repairs to the back wheel after the tyre was replaced in 2021 and he said no. I asked if he had taken off the back wheel after the tyre was replaced in 2021 and he said no. He did say that he and his father replaced the whole of the front wheel in May 2021.
I asked the claimant to describe the wobble and he said it was not a serious wobble in that he was “not fighting the wobble” and that it was more of a shimmer or a shake. He
thought he could have picked up some dirt, mud, stone or stick on the front wheel which was causing an imbalance between the wheels / tyres. When he looked at the front wheel, he said he looked at the tread of the tyre and the wheel but could not see anything obvious. He said he did not look at the back wheel because he thought the issue was with the front of the bike and his attention was therefore drawn to that part of his bike.
Mr Kennedy said that he pushed the bike to see if he could feel the wobble and when he did not, he then got back on the bike to try to pin-point exactly what was wrong.
I asked him where the nearest town with a mechanic was, and he thought it was Grenfell which was 40 km away.
While he said he had a mobile phone on him, he said that he did not have to use it after the accident because Mr Toole came very soon after and it was Mr Toole who rang the ambulance. Mr Kennedy did not know whether he had signal or not because he did not use his phone at the scene before or after the accident.
When I asked Mr Kennedy what he thought caused the accident he said he could not put the blame on anyone without facts or evidence and he just did not know.
SUBMISSIONS
Mr Kennedy has not lodged submissions. I asked Mr Kennedy if he had considered retaining a lawyer and he said he had not.
Insurer decision-making
The insurer’s second liability notice19 relies on the police report and says:
“Based on this information, we believe that you contributed to the accident and / or your injury because not maintaining control of vehicle. As such, we have determined that you were ‘wholly at fault’ for the motor vehicle accident.”
The insurer’s internal review decision20 affirmed the above decision but for different reasons recognising the difficulty of maintaining control of a motorbike with only one wheel attached. The GIO officer who wrote the decision accepts that the insurer bears the onus of proving (to me) that Mr Kennedy was wholly or mostly at fault.
The decision says:
(a)the accident happened because the rear wheel came off the motorcycle
19 Dated 28 January 2022 – document R4 at page 16 of the bundle.
20 Document R5, page 23 of the bundle.
while it was being ridden;
(b)the cause of the rear wheel dislodging is not known and while Mr Kennedy suspects the cause was the bolts working loose “that’s a matter for expert opinion”;
(c)it is not possible for a motorbike to be controlled with a rear wheel missing;
(d)fault means negligence and determining fault requires a determination of whether there was a failure to exercise reasonable care and skill;
(e)the failure to inspect the rear wheel when pulled over was not negligent because it is not known whether a reasonable inspection would have revealed the issue (unknown) that caused the wheel to dislodge;
(f)a reasonable person exercising reasonable care and skill would not have taken the motorcycle for a test ride after feeling it wobble to a degree that he pulled over to inspect it;
(g)a reasonable person would not have continued to accelerate with a persisting wobble, and
(h)Mr Kennedy failed to exercise reasonable care and skill in the circumstances and was wholly at fault for the motor accident.
Insurer’s submissions to the Commission
The insurer says the issues for determination are whether the claimant is wholly at fault or whether he is mostly at fault.
After summarising the evidence, the insurer says:
(a)the claimant was the owner and driver;
(b)there is no evidence to suggest the rear tyre change in March 2021 was not performed correctly;
(c)the claimant says the nuts worked themselves loose however that cannot be determined without the wheel being recovered;
(d)the claimant had warning that something was wrong, he was aware of a possible defect and stopped which was the prudent thing to do;
(e)however, the claimant was wholly at fault because:
(i) he rode the bike when it was unsafe;
(ii) he failed to control the motorcycle so as to avoid an accident;
(iii) he failed to take any or any reasonable care for his own safety, and
(iv) he failed to take any or any reasonable care to avoid injury.
(f)the insurer surmises that if the claimant had inspected the rear tyre he may have identified that the bolts were loose and tightened them (if that is how the wheel came to come off the bike);
(g)the insurer says the claimant was not at fault for failing to diagnose the defect (he was not qualified) but he is at fault for getting on the bike and riding at speed while performing a “test ride”, and
(h)the cause of the accident was the claimant’s decision to ride his bike with a defect and accelerate to 70km/h. It was reckless for him to do that, and a reasonably prudent driver would have appreciated the risk of riding a bike with a possible defect.
The insurer submits in the alternative that if the claimant was not wholly at fault his contributory negligence should be assessed at more than 61%.
After Mr Kennedy’s evidence at the teleconference, Mr Izzard suggested that the claimant could have called his father which may have led to him checking the back wheel, or that he could have walked to a house or property nearby or waited for someone to drive by and assist him diagnose the problem with the motorcycle.
CONSIDERATION OF THE ISSUES
Evaluation of the evidence
There was no challenge by either party to any of the statements obtained by the investigator.
The evidence of the Toole family confirms that searches were made of the immediate vicinity of the accident for the wheel and that it could not be found and that there were no fragments of metal or bolts on the roadway.
The evidence of the tyre fitter is of his usual practice. He says he would have used a rattle gun and he is conscious of checking wheel bolts are tight and correctly fitted. The statement however is not definitive as to the fitting of Mr Kennedy’s rear tyre in March 2021. That is not surprising. While Mr Rosewarne is confident of his processes, he would, in my view, be hard pressed to remember exactly what he did on a particular day with a particular motorcycle almost a year before he spoke with Mr Maynard.
The evidence of Mr Maynard as to his research and his views of the cause of the accident was not challenged by the self-represented claimant however there is no
information provided about Mr Maynard’s expertise. He may be a motorcycle rider and enthusiast with many years of riding experience but there is nothing to suggest he is a mechanical engineer or has any qualifications to give expert evidence about the cause of the rear wheel failure.
Mr Kennedy is a civil engineer and is also not a mechanical engineer. His opinion as to the cause of the rear wheel failure is also not expert evidence.
The absence of the rear wheel is concerning bearing in mind the insurer’s concession that it bears the onus of satisfying me Mr Kennedy is wholly or mostly at fault. While Mr Maynard made phone calls, he did not visit the scene of the accident and search for the wheel himself. While he spoke with the Toole family and left his number with them in case they found the wheel, there is no evidence that Mr Maynard followed them up, for example by calling or visiting at the end of harvest which was only a short time after the interviews were conducted.
Mr Kennedy’s father apparently visited the scene of the accident and retrieved the damaged motorbike from the Toole family. Mr Kennedy says he has not made further enquiries. Clearly if Mr Kennedy is to take any action against anyone for common law damages, finding the wheel and ascertaining the precise cause of the wheel failure will be a priority for him.
What was the cause of the accident?
There is no dispute between the parties that the rear wheel fell off, and it is this that led to the claimant falling or being thrown from the motor bike and sustaining injury.
While the insurer submits that the cause of the accident was the claimant riding his motorbike knowing there was a defect. In my view, the cause of the accident was the defect itself or to put it neutrally, the problem with the rear wheel. Obviously if there had been no problem with the rear wheel, this accident and the claimant’s injuries would not have occurred.
While there is no expert evidence about what was causing the “wobble” or evidence to connect the “wobble” with the rear wheel failure, the insurer’s submissions are predicated on the basis that the “wobble” was an indication of the rear wheel problem and common sense suggests the two were linked.
While the insurer says in its submissions that Mr Kennedy was wholly at fault for getting back on his bike after stopping to investigate the “wobble” and then going for a test ride, this in my view goes to his contribution, if any, to the accident and therefore the question of whether he is mostly at fault but not to the issue of whether the
accident was caused wholly by his own fault.
It is trite to say it, but the wheels of cars and motor bikes do not and should not simply fall off. I agree with the insurer’s investigator that there are three possible explanations for why the rear wheel fell off as follows:
(a)the claimant failed to maintain his own motorcycle;
(b)when the rear tyre was changed and the rear wheel reassembled, there was some human error on the part of the tyre fitters who performed that job or some mechanical error in their equipment, or
(c)there was some catastrophic failure of a part of the rear wheel assembly.
Did Mr Kennedy fail to maintain his motorcycle?
If Mr Kennedy did not properly maintain his vehicle and this is what caused the rear wheel to fall off, then as its owner and driver, it is likely I would find him wholly at fault.
There is however no evidence that Mr Kennedy failed to maintain his motorcycle. He had the motorcycle for nine years. His unchallenged evidence was that he and his father (a retired mechanic) serviced the machine together. He had replaced the clutch and fitted a new drive shaft. He had the rear tyre professionally changed twice in the one and a half years before the accident and he regularly checked the hub for any cracks or signs of metal fatigue. He said at the telephone conference there had been no other work done to the rear of the bike between the rear tyre change in March 2021 and the accident although he acknowledged that in May 2021, he replaced the whole of the front wheel.
Should Mr Kennedy have checked the wheel nuts / bolts from time to time? It is difficult to answer this question in the absence of expert evidence. If the wheel nuts / bolts can come loose when a motorbike is ridden over rough terrain, or over long distances, then perhaps the claimant should have checked them periodically. But if wheel nuts or bolts are, once properly tightened, designed to stay properly tightened then there would appear to be no reason to check them between tyre changes.
The insurer has not satisfied me that the claimant did not properly maintain his motorcycle.
Did anyone else or anything cause this accident?
If someone (other than the claimant) or something else caused this accident then, in my view, the claimant cannot be considered wholly at fault.
If the cause of the rear wheel failure was the tyre fitter’s failure to, for example,
properly secure all the bolts, then the claimant cannot be wholly at fault because there is someone else responsible or someone else to blame for causing the accident.
If the cause of the rear wheel failure was a catastrophic failure of a critical part of the motorbike, then again, the claimant cannot be wholly at fault because it would appear that nothing he did or did not do caused the part to fail.
Having excluded the claimant from any failure to maintain his own motorcycle, the remaining two possible causes (tyre fitting or the failure of a critical part) suggest the claimant cannot be wholly at fault because either someone else (the tyre fitter) or something else (the failed part) caused the accident.
Was Mr Kennedy wholly at fault?
Without expert mechanical evidence it is difficult to determine whether the rear wheel failure was caused by the tyre fitting or some catastrophic mechanical failure.
Mr Maynard appears to lean towards the tyre fitting.
In my view I do not need to determine which of the two was the cause of the rear wheel failure because it is not necessary for the ultimate outcome. For either cause, Mr Kennedy would not be wholly at fault.
Is the claimant mostly at fault?
Whether the claimant is mostly at fault requires a determination of whether there was any contributory negligence on his part and if so whether the degree of that contributory negligence is greater than 61%.
Determining whether there is any contributory negligence at all requires a consideration of the Civil Liability Act 2002, in particular section 5R. The test is an objective one being the standard of care of a reasonable person in the claimant’s position taking into account what the claimant knew or ought to have known at the time. The test is not to be applied with the benefit of hindsight.
When there are two people whose actions contributed to the cause of the accident the relative culpability of each is assessed and then the claimant’s damages or benefits would be reduced accordingly21. In a single vehicle no-fault or blameless accident, the courts suggest looking at the claimant’s departure from the standard of care he or she is required to observe in the interest of his or her own safety22 and then again reducing damages or benefits.
21 Podrebersek v Australian Iron & Steel Pty Limited [1985] HCA 34.
22 Axiak v Ingram [2012] NSWCA 311 and Davis v Swift [2014] NSWCA 458.
The insurer says in its submissions [at 20] that stopping the bike when the problem was first identified was reasonable and prudent. The insurer suggests [at 22] that if the claimant had inspected the rear tyre, he may have identified the bolts were loose and he could then have tightened them. There is no evidence that he had the tools to do so and of course there is no evidence that loose bolts caused the failure of the rear wheel in the first place.
The insurer submits that the claimant was not to blame for failing to diagnose the problem recognising that Mr Kennedy was not qualified to make that diagnosis. The claimant felt the “wobble” in the front of the bike and focussed his investigations on that part of his bike. As the claimant was not qualified (as the insurer concedes) it appears to be reasonable that he focus on the front of the bike and not its rear.
The insurer’s submissions focus on the claimant’s actions in getting back on his motorcycle and going for a test ride in circumstances where he was aware there was a problem with the motorbike. The insurer suggests the claimant should have been aware of a significant risk of injury, should have obtained a qualified mechanical opinion and should not have accelerated to 70 km/h.
The insurer also suggested at the preliminary conference that the claimant could have asked for help in the neighbouring properties, rung his father for help or waited for a passing motorist.
Mr Kennedy’s evidence was he felt a shimmer or shake and not a violent wobble that he had to fight. It is reasonable in my view for Mr Kennedy to have thought the problem was minor and to have pulled over and attempted to rectify the problem himself.
Mr Kennedy was 40 km from the nearest town and a potential mechanic or tyre shop. While there is evidence that Mr Toole had mobile phone reception because he rang the ambulance, there is no evidence that Mr Kennedy had mobile phone reception although it is reasonable to assume that he did. If he did have reception then ringing for help from where he was, was a possibility but the time and delay and possible cost of someone coming out from Grenfell to Mr Kennedy suggests it was reasonable for Mr Kennedy to first try and resolve the problem himself.
It is reasonable, in my view, to assume that there was at least one farm in the vicinity (Mr Toole’s) and therefore some likelihood of obtaining assistance but whether
Mr Kennedy would have been able to obtain mechanical diagnostic assistance is not known. Again, in my view it was reasonable, bearing in mind his remote location, for Mr Kennedy to first try and resolve the problem himself.
There is no evidence about Mr Kennedy senior’s availability on the day and whether he would have been able to take his son’s call or diagnose the problem over the phone. Again, in my view, it was reasonable in the circumstances of this case for Mr Kennedy, a 51 year old experienced motorcyclist, to have tried to diagnose and fix what he suspected was a minor problem himself.
What Mr Kennedy did to try and diagnose the problem with his motorcycle was to stop, pull over and check his bike. He then pushed his vehicle for a while and then turned around and started off slowly. He sped up over time to 70 km/h in a 100 km/h zone. In my view that was reasonable action to take in the circumstances of the case and particularly bearing in mind the distance to the closest town.
Finally, it should be said that without mechanical expert evidence as to the cause of the rear wheel failure, it is impossible to determine whether Mr Kennedy would have been able to diagnose the problem by looking at the rear wheel or whether, whatever the problem was, his father could have diagnosed it over the phone.
CONCLUSION
I am not satisfied that Mr Kennedy was wholly at fault because, of the three options for the cause of the rear wheel failure, the two most likely (failure of the tyre fitting or failure of a critical part of the motor bike) suggest fault on the part of someone or something other than the claimant.
I am also not satisfied that Mr Kennedy is guilty of any contributory negligence. He was an experienced motorcycle rider 40 km from the nearest town, he had noticed what he considered to be a minor problem with the front of the bike and he was investigating the cause of that minor problem at the time of his accident. In the particular circumstances of this case, I am of the view that a reasonable person in the position of the claimant would have done what Mr Kennedy did, that is try to identify the problem with his motor bike and fix it.
It therefore follows that Mr Kennedy’s accident was not caused wholly or mostly by his fault and that he is therefore entitled to continuing statutory benefits.
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