Marley v Insurance Australia Limited t/as NRMA Insurance
[2023] NSWPIC 83
•6 March 2023
| CERTIFICATE OF DETERMINATION OF MEMBER | |
Citation: | Marley v Insurance Australia Limited t/as NRMA Insurance [2023] NSWPIC 83 |
| Claimant: | Glen Francis Marley |
| insurer: | Insurance Australia Limited t/as NRMA Insurance |
| Member: | Terence Stern OAM |
| DATE OF DECISION: | 6 March 2023 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act2017; miscellaneous claims assessment; whether the motor accident was caused wholly or mostly by the fault of the claimant under section 3.28; whether the claimant was riding his motorcycle at an excessive speed for the road conditions; whether the rider was keeping a proper look out; whether negligence or error of judgement; whether benefits should cease under sections 3.11 and 3.28; Rabay v Bristow, Daskalopoulos v Health Care Complaints Commission; Manley v Alexander; Wilson v Allianz Insurance Limited; Anderson v Insurance Australia Limited t/as NRMA Insurance; Ferrell v Insurance Australia Limited t/as NRMA Insurance and Podrebersek v Australian Iron and Steel referred to. |
| determinations made: | Certificate of Determination of Member 1. I find that the Claimant was, for the purposes of s 3.28, neither mostly nor wholly at fault. 2. It is not necessary for me to determine any degree of negligence on the part of Mr Marley, other than to say, if there was any negligence, it was well under 61 percent. |
STATEMENT OF REASONS
INTRODUCTION
The Claimant, Glen Francis Marley (‘Mr Marley’) provided a statement on 20 December 2022. This introduction is taken from that statement, and to the extent reproduced in the Introduction, is uncontroversial.
Mr Marley was born in March 1966 [1].
He had been riding motorcycles “constantly” since he obtained his licence at sixteen years and nine months. At the time of the accident, he was riding a 2019 BMW GS, a motorcycle designed to be ridden on both sealed and unsealed roads [3].
The motorcycle was in “as new” condition [4]. After buying it, he had it serviced and fitted new, quality, Michelin tyres.
Since purchase, Mr Marley had travelled, at most, about 5,000 kilometres. It has had no mechanical issues or faults.
At the time of the accident Mr Marley was riding with four other men travelling from Gundagai, South of the Murray River, along the Murray River to Wentworth, North to Menindee Lakes and Broken Hill, along the Darling River to Luth, then back home [6].
The Accident
On 7 April 2022, Mr Marley, and his companions rode from Pooncarie to Menindee. Two of the riders, including Mr Marley, rode on a different route to the rest [10], and they all met up at Menindee for a short break, and then travelled North, up Menindee Road. The riders spread out, leaving a 300 metre to 400 metre gap, to maintain visibility and to avoid inhaling dust or having dust clog up the filters [11].
10. After they had been riding for about two to three kilometres along the Main Weir Road, Mr Marley rode around a slight sweeping bend, to the right, and over a slight ridge. He states he was riding to the left of the road, at 70-80 km/h. Approaching the lake, he hit a deep patch of soft sand which, he alleges, looked no different from the surrounding unsealed road. The sand, he says, caused his motorcycle to move or “wobble” side-to-side. He lost control and the front wheel dug into a deep ridge of sand, causing the handlebars to jolt violently, sideways, to the left. He was thrown over the handlebars [12].
11. He landed diagonally with his arms held out in front of him.
12. He says he heard his back break and felt immediate pain.
13. Mr Marley sustained multiple injuries and claims to be entitled to payment of Statutory Benefits under Pt 3 of the Motor Accidents Injuries Act 2017 (the ‘MAIA Act’).
The Insurer’s Position
Jurisdiction
14. The Insurer claims that Mr Marley is not entitled to receipt of ongoing Statutory Benefits, after 26 weeks from the accident, on the basis that he was wholly, or mostly at fault for causing the accident.
15. Schedule 2 clauses 3 (d), (e) and (m), provide the jurisdiction to determine whether the accident was caused wholly or mostly by the fault of Mr Marley.
Fault
16. Section 1.4 of the MAIA Act, defines fault as:
“Fault means negligence or any other tort.”
17. Further:
“Motor Accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person, where the death or injury is the result of and is caused…. During:
i.The driving of a vehicle, or
ii.A collision, or action to avoid the collision, with a vehicle, or
iii.The vehicle’s running out of control, or
iv.A dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with a vehicle, or the vehicle’s running out of control.”
The timeline
18. This timeline is drawn from submission made for the Claimant on 27 January 2023:
7 April 2022 The Accident.
26 June 2022 Claim for Statutory Benefits.
11 July 2022 Acceptance of liability and payment of benefits for the first 26 weeks.
20 September 2022 NRMA denies liability for further payments of Statutory Benefits, on the basis that Mr Marley was wholly at fault.
27 September 2022 Requests internal review.
11 October 2022 NRMA affirms decision.
18 October 2022 Proceedings commenced in the PIC.
15 November 2022 Teleconference. Parties agree that the decision should be made on the Papers.
Internal Review
19. The Insurer referred to the Motorcycle Riders Handbook and the decision in Vairy v Wyong Shire Council [2005] HCA 34.
20. The internal reviewer found that Mr Marley ought to have taken into account the road surface and failed to do so and found the Claimant to be wholly at fault.
THE EVIDENCE
Statement of Glen Francis Marley 20 December 2022
21. I briefly summarise Mr Marley’s Statement.
[23] On I May 2022, drove back to Menindee to retrieve the motorcycle. Had a conversation with Sam. He said the section of road where I had crashed had been graded and rolled the afternoon after the crash.
[24] Afterwards, return to investigate the crash site. The road had been graded and rolled and was nowhere near as sandy as it was at the time of the accident. Could easily find crash site… There was plastic parts and debris from the motorcycle. …Walking to the point of the accident, noticed that ridges of soft sand were forming by the action of cars and caravans turning sharply on and off Main Weir Road, to take a shortcut to access camping spots.
[25] Not summarised - opinion of Mr Marley.
[26] Denies speed was a contributing factor. Companions (and I) were riding below the speed limit in between 70 and 80 kph. When Mr Marley hit a deep patch of sand, prior to his accident, he responded by maintaining a constant throttle speed and shifting his weight backwards. These are basic safety techniques for riding on sand (Mr Marley provided references to articles with respect to riding safely on sand).
Statement of Garth Steggles 20 December 2022
22. I briefly summarise the statement.
Was travelling with Mr Marley and three other riders on 7 April 2022 outside of Menindee.
All had turned off Menindee Road onto Main Weir Road, a dirt road.
All riding a good safe distance from each other in single file and under the speed limit, as the road was quite sandy and rutted. All the bikes were designed for sealed and unsealed roads. The condition of this road was very sandy and rutted.
We had travelled about four or five kilometres.
I was in front of Glen.
When I got to him, he was off the bike and laying on the roadway.
The condition of the road that day was difficult to ride. An experienced motorcycle rider and it required more than the normal concentration and riding ability.
Statement of David Rhodes 13 December 2022
23. I briefly summarise the statement.
[1] Riding large adventure motorcycles for the last 20 years.
[3] On 7 April we split into two groups and went over separate tracks before meeting up at Menindee.
[4] Two of the riders were out in front, and Glen Marley was following. I was behind Glen and Mark Sierant was the tail rider. I was riding at approximately 70 – 80 kph and following the dust stream.
[5] The road was corrugated and there were large areas of loose sand. I had to concentrate on where I was going due to the very poor condition of the road. I rounded a slight bend and saw that Glen had fallen from his motorcycle. It had only just happened as we were only 300 – 400m apart from one another, due to the very dusty conditions.
Statement of Anthony Nicholls 22 December 2022
24. I briefly summarise the statement.
[1] Riding with Glen for about 20 years. He is a very experienced and competent rider.
[4] The road (Main Weir Road) was well used by vehicle traffic. The surface was very loose. Soft sand had built up into large corrugations and ridges across the road.
[5] In my opinion (i.e., read: it appeared that) it had been sometime since the road had been graded [the witness can say what he observed, and this conclusion does not offend any rule of evidence].
[7] Based on Glen’s motorcycle tracks, it was my observation that the bike had entered some very deep and soft sand, had tracked from one side to the other, then had gone sideways and threw him from the seat.
[8] Glen is a very capable rider.
Statement of Mark Sierant 16 January 2023
25. I briefly summarise the statement.
26. All the group were riding adventure touring bikes that can traverse both tar and dirt roads. The country was dry and dusty. Riders in the group spread out. On the morning of the third day (after a snack at about 10:45 am) I was the last rider in the group and we used a system where the rider in front of you waited on a corner, so you knew which turn to make. This allowed us to space out and ride separately. We also had our helmet voice communication systems. David was waiting for me to turn onto Main Weir Road, and I proceeded, following behind David for about 3 km. After I had crested a small rise, I could see Glen had crashed. The road over the crest was badly corrugated with soft blown sand in drifts. Towards the left side of the road, this was a rapid change in the road’s condition. The ride up to this point, was hard, compact dirt. Slowing down was difficult, with both corrugations and sand. From the wheel marks on the road, I could see Glen had hit a patch of deep, soft sand. The tracks were clear, with the front wheel marks on the road, swinging left and right at high frequency, whilst the back wheel tracks held a straight line.
David Rope, an investigator retained by the Insurer, interviewed Senior Constable Aaron Bensch, on 25 August 2022
27. I briefly summarise the record of interview, to the extent that it is relevant and admissible.
[A6] On arrival, saw Mr Marley down, off the road, on an embankment. Saw the motorbike a few metres away.
[A8] The rider had a bit of amnesia. Didn’t ask him very many questions.
[A9] At least four other riders.
[A18] Did not appear intoxicated.
[A29] The road condition was quite corrugated and parts in poor condition due to recent rainfall. Lots of tourists and caravans use that road as well.
[A30] I believe he’s hit some corrugation, lost control, and ended up on the ground.
[A34] He was wearing full protection.
[A38] 100 km speed limit.
[A40] 80 km/h would not have been unsuitable.
[A41] He wouldn’t have known the road and corrugation on the road. Main Weir Road does appear that it could be a good road. As you come around the bend, I think that’s where the corrugation was.
[A43] Vision would’ve been a contributing factor.
[A44] I’ve driven up that road many times.
[A49] Member of the Police for nearly 47 years.
28. COPS Police Report not reproduced - adds nothing.
SUBMISSIONS
Submissions for the Claimant
29. I briefly summarise the submissions for the Claimant, by reference to paragraph number:
The Police Report refers to the crash summary details at page four as to Mr Marley losing control in a deep section of sand.
Refers to the Claimant’s statement:
“Hit a patch of deep, soft sand on this road, at around 70 kph.”
Refers to the statement to the factual investigator:
“All of a sudden, I hit a patch of soft sand, which caused me to shake violently, and subsequently threw me over the handlebars.”
Refers to Mr Marley’s statement of 20 December 2022 at [12]:
“… The front wheel dug into a deep ridge of sand, causing the handlebars to jolt violently sideways to the left. I was immediately thrown over the handlebars…”
In his statement of 20 December 2022, the Claimant returned to the scene on 1 May 2022. He observed that ridges of sand had formed on the road by actions of cars and caravans turning Sharpley off Main Weir Road, to access nearby camping sites on the lake.
Refers to videos made at the time of the accident. The video shows a stretch of sand built up at the side of the road. The surrounding road in both directions appears to be harder, compact earth, compared to the section of the road where the accident occurred.
Refers to Senior Constable Bensch, who believed that Mr Marley had hit some corrugation, lost control…
He continued… it does appear that it’s a … it could be a good road. And as you come around the bend, that’s where the corrugation was.
Refers to statement of Mark Sierant, the last rider in the group:
“As I crested a small rise, I realised I could see Glen had crashed and David was getting off his bike to assist Glen. The road over the crest was badly corrugated with soft blown sand in drifts towards the left side of the road, this was a rapid change in the road conditions. The road up to this point, on Weir Road was hard and compact dirt, slowing down was difficult with both corrugations and sand.
Mr Sierant continued:
“I could see that Glen had hit a passage of deep, soft sand, that made the front wheel violently slap the handlebars against the fuel tank. The tracks were clear, with a front wheel skewing left and right at high frequency, while the back wheel track held a straight line.”
Another rider, Anthony Nicholls stated at [7]:
“His bike had entered some very deep and soft sand, had tracked from one side to the other, and then gone sideways and threw him from the seat.”
The Submission continues that the accident was caused by the sand build-up on the side of the road, at the location where Main Weir Road approached the Lake.
The cause of the accident was the Claimant losing control and the cause of that was the presence of a deep patch of sand.
The submission refers to Anderson v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 564 at [59].
Refers to whether there was any contributory negligence and, if so, whether it was more than 61 percent.
Refers to Section 5R, Civil Liability Act 2002. Standard to be applied is that a reasonable person in the position of Mr Marley, on the basis of what he knew, or ought to have known at the time.
The Claimant states that his speed was 70 to 80 kph, i.e., below the speed limit.
The Insurer concedes that the Claimant was travelling below the speed limit but alleges that the road surface had deteriorated, and the Claimant ought to have responded by reducing his speed.
The Claimant’s evidence is that he, and his riding companions, had found that 70 to 80 kph was a safe speed for the road conditions.
The deep patch of sand was sudden and not clearly visible from the surrounding road.
The Claimant was driving at an appropriate speed for the road conditions. He kept a safe distance between himself and the other riders. He hit a deep patch of sand, he could not see as he rounded a crest and a small bend.
Submission refers to the decision of Derrick v Cheung [2001] HCA 46.
Mr Marley responded appropriately to the wobble.
He refers to the safety techniques for riding on sand.
[50-1] Refers to decisions in Anderson, Ferrell, and Wilson.
The Claimant submits that he was neither wholly nor mostly at fault and is therefore entitled to a continuation of statutory benefits beyond the first 26 weeks.
Insurer’s Submissions 7 November 2022
30. I briefly summarise the Insurer’s submissions:
a)Not much dispute about the circumstances of the accident.
b)The reliability of the Claimant’s recollection may have been questionable, as he was amnesic.
c)Accepted by the Police and the Claimant that the road was a heavily corrugated sand, unsealed road. Speed limit was 100 kph and the Claimant concedes he was travelling at 70 to 80 kph.
d)The Claimant was trying to correct a wobble in his wheel when he hit a patch of sand.
e)Some evidence that there had been four main motorcycle accidents in the general area, but no evidence as to where (as requested, I have given this evidence no weight).
f)The question is whether the accident was caused by the fault of the Claimant, in not riding to the conditions of the road surface. The obvious difficulty for the Claimant is four other motorcycles were with him, both behind and in front, and they were able to safely negotiate the road.
g)The Claimant had ridden on the road surface for some distance, and his motorcycle was wobbling. He tried to correct that before he lost control. This points to the Claimant travelling at an excessive speed on road that was in poor condition. The sudden loss of control points to excessive speed, particularly where the two motorcycles in front did not lose control.
h)The Submission refers to three cases in the PIC.
i)Although those decisions turn on individual facts, the Insurer submits that all of the circumstances attribute the cause of the accident to the Claimant or failing to drive an appropriate speed for the conditions.
j)Submits that the accident was caused wholly or mostly by the fault of the Claimant.
Insurer’s Further Submissions 6 February 2023
31. I briefly summarise the submissions:
a)The fundamental difficulty for the Claimant is the claim that the soft sand, in the video taken by Anthony Nicholls, is visible and there is no reason why the Claimant ought to have chosen that path. Mr Nicholls did not, and the Claimant being aware of the difficult road surface ought to have followed the path of the riders who had successfully navigated the path ahead. It is difficult to explain why he would have been so close to the left of the road.
b)Unclear the extent to which the dust stream from the riders in front was impeding his vision. If it was impeding his vision, the speed of 70 kph was plainly excessive.
c)Mr Rhodes points out that he had observed loose sand before the accident and that he was having to concentrate hard as to the manner in which he road.
d)Mr Steggles also points out that the conditions were difficult, so he concentrated more.
e)Mr Sierant is alone in suggesting a drastic change in road conditions over the crest.
f)The Member should find that the accident was caused by the Claimant driving too closely to the left side of the road, where it was apparent the road surface was impacted by loose sand. If the Claimant did not see because of the dust, he should have waited for the dust to clear.
g)Many road surfaces are less than ideal. It is why a driver must proceed carefully and according to the conditions.
h)The Claimant’s concentration does appear to have been less than that of Mr Nicholls, Mr Steggles, and Mr Rhodes, all of whom, successfully navigated the road.
i)The fact that three riders, who had identified soft sand, were able to successfully navigate the road, points to the accident being caused by an error from the rider (the submission bears 6 February 2022, but reads 6 February 2023).
CASE LAW
32. In Manley v Alexander [2005] HCA 79, Gummow, Kirby, and Hayne JJ, who were in the majority, held at [12]:
“But the reasonable care that a river must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events.”
33. In Ferrell v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 505, Member Belinda Cassidy on 6 October 2022, decided a case involving gravel on the road.
34. The Member accepted, as a matter of fact, that speed was not a factor, that there was loose gravel on the road, relating to repairs and patches on the road, and that the rider lost control when his bike hit the loose gravel, which he had not seen in time.
35. Member Cassidy referred to Section 5R of the Civil Liability Act 2002 and the objective test, which is applied. She referred to Mamo v Surace [2014] NSWCA 58, and to Manley v Alexander, to the effect that the obligation to be able to control the vehicle so as to know what is happening in the vicinity of the vehicle, and so as to be able to take reasonable steps to react to those events (Manley v Alexander) does not require the reasonable driver to be able to foresee every event that might happen in the vicinity of the vehicle, or at all times to be in a position to react to everything which might occur. She noted at [72] that reasonableness, and not perfection, was required. She found that Mr Ferrell was riding at a speed below the speed limit. In a split second he had come upon loose gravel, which he did not know was there, and did not see before losing control of his vehicle. In her view, a reasonable person in the position of Mr Ferrell would have ridden in the same way and there was no contributory negligence on his part.
36. In Wilson v Allianz Insurance Limited [2021] NSWPIC 396, a decision of Member Susan McTegg, the wheel of the motorcycle the Claimant was riding was caught in a rut and the Claimant was thrown from the motorcycle. The Member found that the motorcyclist was riding cautiously, and the rut was not clearly visible.
37. The Member stated at [25]:
“There is no evidence to counter the evidence of the Claimant. He was an experienced rider with a good riding record. His bike was new and mechanically sound. He undertook what he described as a ‘checkpoint’ before riding the bike. He states that he was riding cautiously… He rode more carefully that his friend and hung back to avoid his dust.”
38. The Member continued at [26]:
“… The ‘track looked brilliant’ and he had no reason to believe ‘just around the corner in that little bit of grass there was a big crater.’ Further… no reason to think that there was a hole or rut because the track up to that point had been very good…”
39. The Member referred to Podrebersek v Australian Iron and Steel [1985] HCA 34 at [10]. The Member found at [34], even though she was satisfied that the riding of the Claimant contributed to the accident, his negligence was simply mere inadvertence. She was satisfied that the Claimant was riding carefully and exercising the caution expected of a reasonable person in the position of the Claimant. She did not find that his negligence was more than 61 percent, but rather, was in the region of 20 percent.
40. In Anderson v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 564, another decision of Member Cassidy, the Claimant was driving a car and lost control due to a pothole. She was travelling at a speed limit of 60 kph, merged from one lane to another, had not noticed the pothole because the car in front had been covering it.
41. Member Cassidy examined whether the Claimant was wholly at fault at [57] – [62].
42. She said at [59]:
“In an accident where there is no other driver whose use or operation of the vehicle caused the accident, the starting point in determining whether the Claimant is wholly at fault, might be asking whether there was anything, other than the way the Claimant was driving, that caused the accident. If there is something else that caused the accident… the Claimant cannot be wholly at fault.”
43. Member Cassidy continued at [62]:
“Of course, the accident occurred on a man-made surface (the road) and the cause of the accident was a defect in that man-made surface to the road, for which she was not responsible.”
44. Member Cassidy examined whether that Claimant had failed to drive safely and took into account that she was driving within the speed limit.
45. She considered of the Claimant in that case, that she was keeping a proper look at and rejected the argument from the Insurer that she failed to control her vehicle. She decided the case in favour of that Claimant, that she was neither wholly nor mostly at fault.
46. In Maggar v NRMA [2022] NSWPIC 59, Member Maurice Castagnet dealt with a fact situation where the rider of a motorcycle, spun on gravel/sand, on a rough and uneven patch of roadway and the exit of a roundabout. He was dislodged from the scooter and hit the bitumen with full force. The road conditions were not immediately visible to the Claimant.
47. In that case the Insurer had submitted that the police, who had inspected the roadway the day after the accident, had not noticed anything that could have caused the scooter to slide out of control. They did, however, notice a tiny bit of loose gravel, which was typical of roadways [27].
48. The Member found at [58] that on the balance of probabilities, the Claimant was dislodged from his scooter as he negotiated the right-hand turn in the roundabout because of the rough, uneven patch on the roadway, containing loose gravel and/or sand.
49. The Member referred at [39] to the evidence consistent with that finding. He found, for the purposes of s 3.28 of the MAIA Act, that the Claimant was not at fault.
Negligence or error of judgement
50. In a decision of the New South Wales Court of Appeal in Daskalopoulos v Health Care Complaints Commission [2002] NSWCA 200, Hodgson JA considered whether the conduct in question amounted to “conduct that demonstrates a lack of adequate knowledge, skill, judgement or care.” He said at [59]:
“I think the conduct could be characterised fairly as an error of judgment; but that does not necessarily mean that it “demonstrates” either “a lack of adequate … judgment” or any of the other alternatives I have mentioned. Persons who do not lack “adequate judgment” do from time to time make errors of judgment. On the whole, I am not comfortably satisfied that the appellant's error of judgment in this case demonstrated a lack of adequate knowledge, skill, judgment or care.”
51. Although this decision was in the context of an appeal from a decision in respect of disciplinary proceedings, it is relevant in the discussion of the difference between the tort of negligence and error of judgement, which is not tortious conduct.
52. In Rabay v Bristow [2005] NSWCA 199, McColl JA said at [56]:
“It is trite that in considering the issue of contributory negligence, the common law distinguishes between an error of judgment and a blameworthy want of due care: Sungravure Pty Ltd v Meani [1964] HCA 16; (1964) 110 CLR 24 at 37 per Windeyer J; Vial v Housing Commission of New South Wales [1976] 1 NSWLR 388 at 392 per Glass JA (with whom Moffitt P agreed); see also Mahoney JA at 397.”
53. McColl JA continued at [57]:
“As the primary judge found, the respondent had no alternative route through which to deliver his employer's goods. Unlike the appellant in Thompson, who was aware of the risk inherent in moving the large bins, the respondent was focussing on manoeuvring the pallet jack through the door and, through what in my view can be characterised as an error of judgment, did not advert to the presence of the metal bracket. His inadvertence did not amount to blameworthy negligence on his part.”
CONSIDERATION
54. The Insurer argues that the accident was caused by the fault of the rider in not riding to the conditions of the road surface, in particular that:
“The obvious difficulty for the Claimant is four other motorcyclists were with him, both behind and in front, and they were able to safely negotiate the road.”
55. The Insurer’s submission continues:
“The Claimant had ridden on the road surface for some distance, and his motorcycle was wobbling. He tried to correct that before he lost control. This points to the Claimant travelling, at an excessive speed, on road that was in poor condition. The sudden loss of control points to excessive speed, particularly where the two motorcyclists in front did not lose control.”
56. The Insurer argues that in all the circumstances, the cause of the accident was attributed to the Claimant for failure to drive at an appropriate speed for the conditions.
57. Furthermore, the Insurer, in the submissions of 6 February 2023, argues that the fundamental difficulty for the Claimant was that, as can be seen from the video taken by Anthony Nicholls, soft sand was visible and there was no reason why the Claimant ought to have chosen that path. Mr Nicholls did not, and the Claimant being aware of the difficult road surface, ought to have followed the Path of the riders who had successfully navigated the road ahead.
58. The evidence established that Mr Marley was clearly an experienced rider, who was riding at a speed which he considered, as did the other riders in his group, appropriate for the conditions. The speed was well within the speed limit.
59. The evidence establishes that the motorbike was in good condition, well maintained and appropriate in the circumstances of unsealed, public road.
60. The motorbike was, according to the evidence, designed for both on road and off-road conditions.
61. The Claimant states that he rode around a slight sweeping bend, and over a slight ridge. He was riding to the left of the road, when he hit a deep patch of soft sand, which looked no different from the surrounding unsealed road. He lost control.
62. The Insurer makes much of Mr Marely riding towards the left-hand side of the road. He was keeping a proper lookout and, when he committed to that decision, he was not to know that he was going to encounter a soft surface, into which, in effect, the front tyre of the bike would sink. He immediately took the appropriate action, which was to move his weight to the rear. He did not apply the brakes and he did everything he knew, as an experienced rider, to maintain control of his vehicle, but he failed.
63. While there may have been an error of judgement on his part, this was not negligence.
64. As previously noted, there was a considerable distance for safety reasons between each rider of about 300 – 400 metres. The fact that Mr Marley did not follow the line of the other riders, and the fact that they did not encounter the difficulty that he encountered does not constitute an act or omission which amounts to negligence.
65. I find that the Claimant was, for the purposes of s 3.28, neither mostly nor wholly at fault.
66. It is not necessary for me to determine any degree of negligence on the part of Mr Marley, other than to say, if there was any negligence, it was well under 61 percent.
LEGAL COSTS
67. The Submission for Mr Marley claims legal costs.
68. Schedule 1(2)(e) of the Motor Accident Injuries Regulation 2017 designates a dispute about the cessation of statutory benefits under s 3.28 of the Act as a Regulated Miscellaneous Assessment matter, which attracts a regulated fee of up to sixteen monetary units (currently $1,800.43).
69. This was a somewhat difficult case and justifies regulated costs at $1,800.43 + GST, giving $1,980.53.
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