Maddison v Allianz Australia Insurance Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Maddison v Allianz Australia Insurance Limited [2024] NSWPIC 112
CLAIMANT:	Jake Maddison
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Maurice Castagnet
DATE OF DECISION:	11 March 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the motor accident was a no-fault accident for the purposes of Part 5; where the claimant was injured when he was riding his motorcycle at around midnight on his way to work and he struck some pieces of wooden logs that lay across the roadway; res ipsa loquitur; claimant not at fault; no inferences of fault on the part of some other person could be drawn that would go beyond speculation; Held – this is a no-fault accident.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission’s assessment is: 1. For the purposes of Part 5 of the Act, the motor accident the subject of these proceedings is a no-fault accident within the meaning of s 5.1 of the Act. 2. The amount of the claimant’s costs in the matter is $2,110.90 inclusive of GST.

STATEMENT OF REASONS

Issued under s 7.36(5) of the Motor Accident Injuries Act 2017

INTRODUCTION

This matter concerns a Miscellaneous Claim assessment made by the claimant, Jake Maddison, under Schedule 2, cl (3) (g1) of the Motor Accident Injuries Act 2017 (the MAI Act).
According to Schedule 2, cl 3 (g1), the Personal Injury Commission (Commission) has jurisdiction for the purposes of Part 7 of the MAI Act (Dispute Resolution) to determine whether for the purposes of Part 5 (Recovery for no-fault motor accidents), a motor accident is a no-fault motor accident.

BACKGROUND

The claimant is a 31-year-old man who was injured in a motor accident that occurred at either just before midnight on 24 January 2022 or just after midnight on 25 January 2022. The claimant was riding his motorcycle on Appin Road, Appin NSW when he struck some pieces of timber that laid across the roadway. It was dark and the claimant’s motorcycle headlight was on. He was on his way to work at the Appin Bakery.
The claimant subsequently made a claim for statutory benefits. In his personal injury claim form, the claimant described the circumstances of the accident as follows:
“Whilst riding to work I hit wooden planks/logs that had been deliberately placed across the road by local teenagers. It was almost midnight and the street lights are very dim and I did not see the wood that was placed between the concrete islands near the Appin Primary School which left me with no alternative other than to attempt to ride over the wood as there was not sufficient time to emergency break. This resulted in me coming off the motorcycle and being injured.”[1]
[1] Page 83 of the claimant’s bundle.
On 1 March 2022, the insurer accepted liability for statutory benefits to the claimant for the first 26 weeks. On 18 May 2022, the insurer accepted liability for statutory benefits beyond 26 weeks.
In its liability notice of 18 May 2022, the insurer advised the claimant that he was not at fault at all in the accident in the following terms:
“You advised in your claim form that you were driving along Appin Road, Appin heading to work when you had hit wooden planks that had been placed on the road. You advised that you were unable to swerve and when you have hit these planks of wood, this resulted in you falling off your bike causing injuries to yourself… A factual was referred to Lee Kelly investigations and [sic] statement was obtained from yourself which [sic] and [sic] witness which confirmed the above. Based on the information currently available to us, we consider that the balance of evidence confirms that you are not at fault in [sic] accident. We further confirm you were not contributorily negligent.”[2]
[2] Page 13 of the insurer’s bundle.
The insurer also determined that the claimant did not sustain a non-threshold injury which paved the way for the claimant to pursue a common law damages claim.
The claimant lodged such a claim on 3 May 2023. On this occasion, the insurer denied liability on the basis that there was no fault by the insured owner (the claimant) and that s 5.4 of the MAI Act precludes a no-fault claim of the driver (the claimant) who caused the accident.
On 7 August 2023, the claimant asked the insurer to reconsider its decision on the basis that the claimant did not cause the accident for the purposes of Part 5 of the MAI Act (Recovery for no-fault motor accidents).
On 31 August 2023, the insurer advised the claimant that its original decision was maintained because for the purposes of s 5.4 of the MAI Act an act or omission of the claimant did in fact cause the accident.
On 4 September 2023, the claimant again asked the insurer to reconsider its position which the insurer declined to do.
In submissions to the Commission on 11 October 2023, the insurer indicated that payment of statutory benefits was ongoing.

The preliminary conference

In his original submissions to the Commission, the claimant referred to his application as one “challenging the insurer’s denial of liability in his common law damages claim”. In its original submissions in reply, the insurer maintained its denial of liability on the basis that, ‘an act or omission’ of the claimant pursuant to s 5.4 of the MAI Act, did in fact cause the accident.
During discussions at the preliminary conference, (having noted that the claimant’s claim for damages was on already on foot) I raised with the parties ~~whether the application~~ it would be more appropriate for the question of liability to be determined as part of the claimant’s common law claim in the claims assessment process under Part 7, Division 7.6.
Both parties expressed their wish to proceed with the matter and that the parameters of my determination may be confined to making a finding as to whether the accident is a ‘no-fault accident’ within the meaning of s 5.1 of the MAI Act. On other words, I am not required to make any finding on the issue of liability for the claim and my determination need not address the issues raised by s 5.4 of the MAI (which was the basis of the insurer’s denial of liability).
Both parties requested an opportunity to make further submissions on the issues as confined, before I proceeded to make my decision. The request was granted and both parties have made those submissions.
Further, the parties agreed that I could proceed to make my determination on the papers.
I am satisfied that there is sufficient information before me to determine the dispute on the papers, within the agreed parameters.

The claimant’s submissions

The facts in Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89 [3]are very similar to those in this case. In Connaughton the claimant was driving a truck when a roadside tree fell and struck the truck's cabin which then ran out of control. Norton DCJ SC (as her Honour then was) found at [71]:
"On the facts as I have found them the plaintiff did not cause this accident. His driving on the road was no more than a background fact which explains no more than why he was in a position where he could be struck by a tree. Thus the driving of the plaintiff was nothing more than "the mere occasion of the injury."
[3] It is to be noted the no-fault provisions considered in that case (and Whitfield) were under s 7E of the Motor Accident Compensation Act 1999. So far as this matter is concerned those provisions were materially similar to the provisions under s 5.4 of the MAI Act.
Norton SC DCJ also held that single vehicle accidents are not excluded from the blameless accident (no-fault) provisions where:
" ...there was no act or omission on behalf of the plaintiff, either voluntary or involuntary, which can be said to have caused the accident. I do not accept that the words (of the section) mean that drivers in single vehicle accidents are deemed to have caused that accident." (at [73]).
Subsequent cases have also held that in single vehicle accidents as long as the driver did not contribute to the accident in any way then the claimant is entitled to succeed. See for example Whifield v Melenewycz [2016] NSWCA 235.[4]
[4] See also footnote 3.
On 31 August 2023, the insurer issued a further liability notice in which they noted the authorities of Connaughton and Whitfield but maintained their denial of liability on the basis that s 5.4 of the MAI Act applied to prevent the claimant from claiming under the no-fault accident provisions.
The claimant submits that s 5.4 of the MAI Act has no application in the present case because the claimant did not by any act or omission on his part, cause the accident. Rather, as was found to be the case in Connaughton, the claimant's act of driving was a merely a background fact which simply provided the context for the accident which eventuated when the claimant hit the pieces of timber that had been lying on the road. In other words the driving (riding) is "nothing more than "the mere occasion of the injury" and does not constitute an act or omission for the purposes of s 5.4 even as expanded or defined in sub-s 5.4(2).
The claimant therefore seeks a determination that this accident was not caused by any act or omission on his part. Rather it was caused by the person or persons unidentified who placed the timber logs on the road. Consequently, the claimant did not by any act or omission on his part cause the accident and therefore s 5.4 has no application, and the no-fault accident provisions of Part 5 apply.
In this case, there is a statement from a witness, Brodie Deans who says that the timber was placed on the road by "some kids".[5] Mr Deans knows this because he happened to see some timber himself in the same vicinity very shortly before the claimant's accident. In answer to question 8 in that same statement he said that he was on his way home from work at about 20 to 12. This puts his observations at about 10 to 15 minutes before the claimant's accident.
[5] Answer to question 9 at page 69 of the claimant's bundle.
In answer to question 9 Mr Deans states:
"I seen a, see a log on the road so I pulled over, pulled over to the left hand side near the school there. Um, I heard some kids where [sic] laughing, see at least two running across to ah, skate park. Got in me car, drove home and then my colleague on the way back from dropping me off had seen cars there, seemed to be an accident." (emphasis added).
In answer to question 11[6] Mr Deans describes the log as being about 1m long and about 100 mm round.
[6] Page 69 of the claimant's bundle.
At this point it should be observed that the claimant has photographs of the timber which are found at pages 74 and 76 of the claimant's bundle. In the claimant’s view, the pieces of timber are relatively short and narrow and capable of being lifted as Mr Deans describes by "some kids".
After removing the timber Mr Deans got in his car and drove home and it would seem very shortly thereafter the incident occurred.
In these circumstances, the claimant relies on the no-fault provisions and formally avers that the motor accident, the subject of his claim, was a no-fault motor accident within the meaning of s 5.1 of the MAI Act and therefore relies upon the statutory presumption in s 5.3 which, following such averment, effectively deems the accident, in the absence of evidence to the contrary, to be no-fault.
In these circumstances, the onus is on the insurer to satisfy the Member that the presumption is rebutted and this was in fact not a no-fault accident.
In this regard, the insurer contends that the presumption is rebutted by evidence that the accident was caused by the fault of another person, namely the unidentified "kids" who were responsible for placing the logs on the roadway.
The claimant notes that “fault” is defined in s 1.4 of the MAI Act to mean “negligence or any other tort” and that this definition imports the provisions of Part 1A of the Civil Liability Act 2002 which deals with negligence and in particular, the provisions of s 5B, 5C and 5D of the Act.
The claimant says that the critical issue here is the absence of any evidence as to the age of the "kids" who placed the objects on the roadway. As the insurer correctly states in its earlier submissions:
"The person(s) who were responsible for placing the wooden posts across the roadway have not been identified. Witnesses suggests [sic] that those who placed the posts may have been children, however their age is not confirmed by witnesses or Police."
In this regard, the insurer has quite rightly disregarded the reference in the statement of David Camilleri beginning at page 37 of the claimant's bundle where in answer to question 19 on page 39 he stated:
"Seen the timber on the road. He pulled over um, removed the timber off the road and noticed four, four young, youngish kids or like he described them in between fifteen and eighteen years old"
It is clear from Mr Camilleri’s evidence that he is not referring to any direct observation he made but rather to observations made by Mr Deans. Mr Deans' evidence is that page 68 of the young persons as "some kids" and does not give any estimate of age.[7]
[7] Pages 68 ff of the claimant’s bundle.
In the circumstances, the insurer is driven to rely on inference only. It submits that the children would have had to be old enough to move the wooden logs. So much may be accepted. But this does not really take the enquiry very far because it is clear from all the evidence there was more than one child involved such that two or more could have assisted to carry the posts and, in any event, from the photographs it is clear that the logs were not particularly long or particularly large and therefore not particularly heavy and could have been carried and placed on the roadway by relatively young children. In that regard, the claimant notes that in answer to question 13 of his statement, Mr Deans says that the logs were light enough for him to throw it off the road where it landed near the school fence.[8]
[8] Page 69 of the claimant’s bundle.
The insurer refers to McHale v Watson [1966] HCA 13; (1966) 115 CLR 199 which is a well-known case in which the High Court found that the 12-year old defendant who had been playing with a dart which accidentally struck another child, was not liable.
The insurer concludes by conceding (properly in our submission) that there may be children so young that they may not have comprehended the risk. But it goes on to state (without any evidence to support it), that in this case because the children were clearly capable of moving the wooden logs they must have been of an age where they could comprehend the risk and therefore be liable at law in negligence.
The claimant submits that the evidence falls well short of establishing that proposition and as it is the insurer's onus, the presumption prevails and therefore the claimant has made good his contention that this is a no-fault accident.
The insurer also relies on s 5.4 to contend that the accident concerned was caused by an act or omission of the claimant. It is submitted that as that provision has been interpreted in Whitfield and Connaughton, the riding of the motorcycle by the claimant here was nothing more than the "mere occasion of the injury" or a background fact to the accident itself.
Indeed, at paragraph 48 of its submissions the insurer acknowledges that the claimant's driving (riding) needs to be more than a "mere background fact with no interventional act or omission of the claimant having caused the accident".
However, at paragraph 49 of its submissions the insurer seeks to distinguish this case from Whitfield and Connaughton on the basis that in those cases there was no room for intervention by the plaintiffs given the sudden appearance of a kangaroo and falling tree respectively. It is submitted with respect that the decision in Whitfield in particular cannot be so neatly distinguished as the sudden appearance of the kangaroo in that case was in many respects similar to the sudden appearance of the wood on the road in this case. Indeed, if anything the sudden appearance of wood across the roadway would be less expected than the sudden appearance of a kangaroo in the country setting in Whitfield. In this case there is the added factor that the incident occurred at night.
Despite this, the insurer contends that the wooden posts across the roadway would have become visible to the claimant gradually as would have any other stationary hazard. However, the insurer concedes that there is no direct evidence of that fact and here again they rely on inference.
At paragraph 53 of its submissions the insurer takes issue with this assertion and relies on the fact that another driver Mr Deans came across the wooden posts shortly before the claimant's accident. The insurer relies on the fact that Mr Deans was able to stop before the posts and take them off the road. However, it does not necessarily follow that because Mr Deans saw the posts that the claimant ought to have done so. For one thing Mr Deans was driving a car whereas the claimant was riding a motorcycle. Mr Deans therefore had the benefit of two headlights whereas the claimant had a single headlight. Secondly
Mr Deans was travelling in a northerly direction whereas the claimant was travelling in the opposite direction which would have put them on opposite sides of the road. As the Member would be well aware this can make a considerable difference to matters of perception particularly at night. If the Member consults the photograph at page 6 of the claimant's bundle he will see that there are a number of tall trees growing adjacent to the roadway on the southbound side which is to say the side of the road that the claimant was riding on whereas the aspect on the northbound side of the road is completely open.
In these circumstances it is submitted that Mr Deans would clearly have had a greater opportunity to perceive the obstacle on his side of the road as he drove along than the claimant would have had on the opposite side of the road as he rode along.

The insurer’s submissions

The insurer says that the motor accident is not a no-fault accident because other persons were at fault. Section 5.1 is therefore not satisfied.
The acts or omissions of the claimant 'caused' the accident for the purposes of s 5.4, so that the operation of his vehicle was more than a mere background fact to the accident.
The claimant has not challenged the insurer’s submission that if the people who placed the obstacles on the road were at “fault” as defined by 1.4 of the MAI Act, then the accident is not a no-fault accident. Indeed, if other persons are at “fault” as is the case here, the motor accident cannot be a no-fault accident pursuant to s 5.1.
The claimant has instead argued that the critical issue is that the age of the perpetrators has not been proven by the insurer to rebut the s 5.3 presumption.
The insurer submits that inquiry into the age of the perpetrators is unnecessary because:
(a) the doctrine of res ipsa loquitur applies to establish negligence, and
(b) even if it were proven that the perpetrators were not liable for damages due to their age, they have still committed a tort.
In any event, the insurer submits that the s 5.3 presumption has been rebutted, and on the balance of probabilities, it is highly likely that the perpetrators were old enough to be liable for damages.

Res Ipsa Loquitur

The insurer submits that res ipsa loquitur establishes negligence as the cause of the accident.
As stated in Insurance Australia Limited v Richards [2023] NSWSC 909, the doctrine of res ipsa loquitur permits negligence to be inferred from an unexplained fact (see [99] – [103]). The doctrine is accepted as Australian law including use in the statutory motor accident scheme (see [78] and [99]).
The doctrine can be used by a plaintiff to infer negligence inherently in respect of accidents of a kind which ordinarily do not occur without negligence.

Schmidt AJ in Richards provided the following example:
“As explained in Schellenberg[9] at [73], when a car runs off the road, that fact alone and unexplained, provides some evidence of negligence. So, it must logically follow, does a car crossing the road and hitting an oncoming vehicle, if unexplained.”[10]
[9] Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18.
[10] At [102].
In the present matter, the fact that the wooden logs were crossing the carriageway provides evidence of negligence.
While the parties have inferred from the evidence that people organised the wooden logs in that fashion, that fact ultimately remains unexplained, and so too does the age of any such perpetrators, save for the evidence of Mr Deans.
The insurer points out that the only available indication as to how the logs came to be placed across the road comes from a witness, Mr Deans, who states that he saw some “kids” and removed the wooden logs from the road. This occurred prior to the accident and is not direct evidence as to how the wooden log came to be placed on the road before the claimant’s accident or by whom.
It could be that perpetrators other than those seen by Mr Deans placed wooden logs across the road before the claimant’s accident. There is no evidence regarding the perpetrators that placed the wooden logs before the claimant’s accident other than the extrapolation that they must have been the same people.
It is the insurer’s submission that, the evidence does not displace the res ipsa loquitur indication of negligence, and it must be concluded that the wooden logs were placed across the roadway negligently.

Tortfeasors

Regardless of the age of the perpetrators, the insurer submits that they have still performed a tort even if they would not be liable for damages (although the insurer maintains that the perpetrators would most likely be liable in this matter).
“Fault” for the present purpose is defined as “negligence or any other tort” in s 1.4 of the MAI Act. Section 5 of the Civil Liability Act 2002 defines negligence as “failure to exercise reasonable care and skill” (although intentional acts are excluded from that Act). In the view of the insurer, there is nothing in those definitions which would require subjective consideration of the age of the perpetrators for it to be determined that a tortious act has been performed. Whether a person is liable for damages arising from that tort, such as that considered in McHale v Watson, is not necessary for the present purpose under s 5.1.
In the present matter, an act has been committed which was lacking in reasonable care and skill, and which interfered with the claimant’s person. So much can be considered a tort. The insurer submits that it is unnecessary to look further and assess whether the tortfeasor would be liable for damages.
Accordingly, the insurer submits that a tort has been committed so that the accident is not no-fault under s 5.1.

Age of perpetrators

For the avoidance of doubt, the insurer maintains that the perpetrators would nevertheless be found liable in tort.
The claimant has submitted that the evidence falls well short of establishing that the age of the perpetrators would deem them liable in negligence so that the presumption in s 5.3 prevails.
The insurer disagrees.
Section 5.3 states that an averment made by the claimant that the accident is no-fault is evidence of that fact in absence of evidence to the contrary. The insurer has gone to great lengths to obtain evidence and has discharged the onus to prove that other people placed obstacles over the road.
As to whether the age of the perpetrators extinguishes their liability, that is to be fairly assessed by the Member on the balance of probabilities without any presumption.
It is the insurer’s submission that balance falls well on the side of the perpetrators being of sufficient age to understand and appreciate the risk of placing obstacles across a roadway.
The insurer previously relied upon McHale v Watson to support the proposition that children can be held liable in tort. The claimant has conveniently outlined the facts of that case which differ significantly from the facts here. In the present matter, the perpetrators intentionally placed obstacles on a roadway. The risk of a collision was likely and foreseeable.
The insurer submits that in these circumstances, liability would commence at a relatively young age. Minors typically come to appreciate the risks associated with roadways and motor vehicles quite early in life through the teachings of their parents and educators. This includes comprehension of the risk of road injury to themselves and others. This includes comprehension of the obvious risk that placing obstacles on a roadway would knowingly cause damage or injury.
The claimant has submitted that the wooden logs were not particularly long or heavy and could have been carried by “relatively young children”. Again, the insurer submits that “relatively young children” could indeed be liable in tort in this matter. The claimant’s submission therefore does not assist in that inquiry, and the insurer maintains that the strength, skill, and organisation necessary to place the obstacles across the width of the roadway supports that the perpetrators were old enough to appreciate the risk of their actions.
In speculating as to the perpetrators’ age, the claimant has only drawn upon the statement of Mr Deans that the perpetrators were “kids”. The claimant’s submissions do not answer the question of why the perpetrators would be so young as to escape liability anticipated in McHale v Watson, nor do the claimant’s submissions exclude that they were indeed old enough to be liable.
Accordingly, the insurer submits that on the balance of the available evidence, the perpetrators would not escape tortious liability because of their age.
The insurer submits that s 5B(1) of the Civil Liability Act 2002 is persuasive that the perpetrators would still be tortiously negligent even if it was not considered intentional because, even if they were of a young age, they knew or ought to have known of the risk which was not insignificant.
The insurer accordingly submits that other people were at “fault” for the accident as that term is defined in MAI Act (being negligence or any other tort), and the subject accident is accordingly not a no-fault accident under s 5.1.

CONSIDERATION

The relevant legislation

Section 1.4(1) of the MAI Act defines “fault” as negligence or any other tort.
In s 5 of the Civil Liability Act 2002, negligence is defined as meaning “failure to exercise reasonable care and skill”.
For the purpose of this dispute, it is convenient to set out the provisions of Part 5 of the MAI Act in full:
“Part 5 Recovery for no-fault motor accidents
5.1 Definition of “no-fault motor accident” (cf s 7A MACA)
In this Part—
no-fault motor accident means a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.
5.2 Liability in case of no-fault motor accident (cf s 7B MACA)
(1)   The death of or injury to a person that results from a no-fault motor accident involving a motor vehicle that has motor accident insurance cover for the accident (within the meaning of section 1.10) is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.
(2)   If the no-fault motor accident involved more than one motor vehicle that has motor accident insurance cover for the accident (within the meaning of section 1.10), the death or injury is deemed to have been caused by the fault of the owner or driver of each of those motor vehicles in the use or operation of the vehicle.
5.3 Presumption that motor accident is no-fault (cf s 7C MACA)
(3)   In proceedings on a claim for damages in respect of the death of or injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a no-fault motor accident is evidence of that fact in the absence of evidence to the contrary.
(4)   (Repealed)
5.4 No recovery of damages for driver who caused accident (cf s 7E MACA)
(5)   There is no entitlement to recover damages because of the operation of this Part in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver
(6)   The death of or injury to a person is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if—
(a)the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or
(b)the act or omission was involuntary, or
(c)the act or omission was not the sole or primary cause of the death or injury.
5.5 Contributory negligence (cf s 7F MACA)
This Part does not prevent the reduction of damages by reason of the contributory negligence of the deceased or injured person.
5.6 Recovery of contribution to damages from person actually at fault (cf s 7G MACA)
(7)   A person whose liability for damages in respect of the death of or injury to a person results from the person being deemed under this Part to be a person whose fault caused the death or injury is entitled to recover contribution in respect of that liability from a person (whether or not the driver of a motor vehicle) whose fault actually caused the death or injury.
(8)   To avoid doubt, this section is intended to operate when a person is deemed to be the person at fault for causing a death or injury occasioned by a motor accident even though the accident itself is a no-fault motor accident.
Note—
The definition of no-fault motor accident in section 5.1 is focused on the fault for causing a motor accident rather than the fault for causing death or injury occasioned by the accident.
5.7 No recovery by Nominal Defendant unless owner or driver actually at fault (cf s 7H MACA)
The Nominal Defendant is not entitled to recover any amount under section 2.37 (Recovery from owner or driver) from the owner or driver of a motor vehicle in respect of amounts properly paid by the Nominal Defendant in connection with the operation of this Part unless the motor accident concerned was actually caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.
5.8 Other entitlements not affected (cf s 7I MACA)
This Part does not affect any entitlement to damages apart from this Part.”

Discussion

As previously indicated, the issue in dispute between the parties is confined to whether the motor accident is a no-fault accident within the meaning of s 5.1 of the MAI Act.
First, I note that there is no evidence from the insurer to the contrary or indeed any submissions that the accident did not occur as described by the claimant.
I accept the claimant’s evidence as to the circumstances of the accident. There was nothing in the circumstances of the accident to suggest that the claimant was behaving recklessly or inattentively or that he failed to exercise due care.
I find that the accident was caused by the presence of a wooden log or logs on the road. It was not caused by any act or omission of the claimant.
The claimant has averred that the accident was a no-fault accident. Section 5.3 provides that the averment is evidence of the fact in the absence of evidence to the contrary.
The insurer relies upon the presence of wooden logs on the road as evidence to the contrary. Although the insurer suggests that the wooden logs were “placed” on the road, there is no probative evidence of how the wooden logs came to be on the road.
Evidence that children could be heard laughing in the vicinity of the accident some time before the accident is not evidence that can be given any weight.
The insurer relies upon the doctrine of res ipsa loquitur, that is, a process of inferential reasoning to the effect that wooden logs would ordinarily not be found on the road in the absence of negligence. The doctrine of res ipsa loquitur does no more than furnish a presumption of fact.[11]
[11] Fitzpatrick v Walter E Cooper Pty Ltd (1935) 54 CLR 200 per Dixon J.
The insurer in effect seeks to meet the presumption in s 5.3 with a counter presumption to the effect that the presence of wooden logs on the road is some evidence of fault in another person.
There are a number of cases about accidents caused by the presence on the road of unexpected objects.
It is clear from the case law that no general inference arises simply from the fact that an object is present on the road. Each matter had been determined on the basis of particular facts and circumstances of the accident: see Nominal Defendant v Genn [2004] NSWCA 306 (piece of metal on road); Johnson v Nominal Defendant [2003] NSWCA 153 (diesel slick on road); Holberts Oyster Supplies Pty Ltd. v Stephenson [2014] NSWSC 425 (wheel on road), Seward v Transport Accident Commission [2022] VSC 137 (oil or diesel on road); and Incorporated Nominal Defendant v Knowles [1987] VR 138 (piece of milled timber on road).
The Commission is entitled to draw inferences from even slim circumstantial facts that exist so long as that goes beyond speculation.[12]
[12] Progressive Recycling Pty Ltd. v Eversham [2003] NSWCA 268 at [7] per Young CJ in Eq.
The insurer’s case is that some unidentified person or persons were somehow responsible for the presence of logs on the road so as to come within the words “by the fault of any other person” in s 5.1.
Neither party can show how the logs came to be on the roadway at the time of the accident. There are no inferences that can be drawn that go beyond speculation. In my view it is not possible to draw an inference of fault on the part of some other person.
It follows that I find that the accident is a no-fault accident within the meaning of s 5.1.

COSTS

There is no reason why the claimant should not be allowed his legal costs in the regulated amount prescribed by the Motor Accident Injuries Regulation 2017 (the Regulation) which is $1,919 plus GST.
There are no other costs applications before me.
Accordingly, I allow the claimant’s costs in the regulated amount of $2,111.90 inclusive of GST.

[2024] NSWPIC 112

11 March 2024