McDonough v Youi Pty Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	McDonough v Youi Pty Limited [2024] NSWPIC 445
CLAIMANT:	Adam Charles McDonough
INSURER:	Youi Pty Limited
MEMBER:	Belinda Cassidy
DATE OF DECISION:	19 August 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment following insurer’s decision to deny liability on the basis claimant wholly or mostly at fault; claimant riding motorbike at night when he saw stationary traffic ahead, braked, and lost control; claimant did not know what caused him to lose control but thought there may have been oil or diesel on the road; no evidence from witnesses or emergency services as to presence of oil on the road; both parties provided expert reports; matter determined on the papers; findings of fact as to where the claimant braked and how he braked, distance he and his motorcycle slid on the road, and his speed; Held – Member satisfied the road surface was contaminated, therefore, claimant could not be wholly at fault; claimant contributed to the accident due to his speed; claimant mostly at fault.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused mostly by the fault of the claimant. 2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused mostly by the fault of the claimant.

STATEMENT OF REASONS

INTRODUCTION

General background to the dispute

Adam McDonough was involved in a motor accident on 19 July 2021. Mr McDonough was riding his motor bike to work, it was 8:00pm, dark and cold. He says he passed through one intersection looked ahead to the next intersection and saw vehicles stationary at that intersection. He braked and lost control of his motorbike, coming off and sliding along the road.
Mr McDonough was wearing full protective gear and lucky to have avoided serious injuries. He sustained no fractures or dislocations but was bruised and injured his lower back.
On or about 4 August 2021, Mr McDonough made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against Youi, the insurer of Mr McDonough’s motorcycle.
The insurer has denied liability for ongoing statutory benefits on the basis Youi believes
Mr McDonough was wholly or mostly at fault for causing his accident.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. Youi affirmed its decision and on 27 February 2024 Mr McDonough referred the issue of whether he was wholly or mostly at fault to the Personal Injury Commission (Commission) for assessment in accordance with Division 7.6 of the MAI Act.
The proceedings have been allocated to me.

Procedural issues

I held a preliminary conference on 27 March 2024. Mr McDonough was present, and Mr Hunt represented the insurer.
Mr McDonough raised issues with the insurer’s decision making. I advised I had no power to deal with complaints about insurers and referred him to the State Insurance Regulatory Authority (SIRA).
Mr McDonough was aware that he did not know exactly what caused the accident but said that there must have been something on the road because he is a safe driver who has never had a significant accident. He said he had difficulties investigating the claim:
(a)    he had retained lawyers at the beginning but does not think they conducted investigations into the cause of the accident;
(b)    his wife had taken photographs at the scene of the accident, but her phone was damaged and only one photograph survived, and
(c)    he thought Youi would investigate the cause of the accident, but they did not.
Mr McDonough confirmed that he was not alleging a mechanical failure of his motorbike.
Mr McDonough had suggested that there was oil on the road. He said there was no puddle of oil on the road that he could see, but the photo he had showed oil spots on the road. I said that whether those oil spots on the road caused the accident was a matter for expert opinion. Mr McDonough said that the fire brigade attended the scene and, when I asked why, he said it was because people were concerned about the oil on the road. If that was oil on the road that caused the crash (as opposed to oil on the road after the crash) then that would be evidence Mr McDonough might want to rely on.
Mr McDonough asked for time to try and obtain some additional evidence and the proceedings were adjourned.
A second preliminary conference was held on 27 May 2024. The insurer had provided hospital notes and Fire and Rescue services had provided documents. These were discussed. Mr McDonough said he wanted to get an expert but that he had difficulty getting one. Mr Hunt was asked whether the insurer would fund it and he said he would obtain instructions from his client. Mr Hunt indicated that the insurer had retained its own expert. The matter was again deferred.
A third preliminary conference was conducted on 2 August 2024. I confirmed receipt of the experts reports provided by both parties and determined I would decide the matter on the documentary evidence and oral evidence from Mr McDonough.

LEGISLATIVE FRAMEWORK

The claim that is before me is a claim for statutory benefits under Part 3 of the MAI Act.
Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
Under s 3.1 of the MAI Act, benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of that vehicle and even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 26 weeks[1] after the accident if the injured person only has threshold injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident.
[1] Mr McDonough’s accident occurred before 1 April 2023 when the 26 week period was extended to 52 weeks by an amendment to the legislation which only applies to accidents after 1 April 2023.
A motor accident is considered to be caused “mostly by the fault” of a person if their contributory negligence is assessed as greater than 61%.
Schedule 2, cl 3 to the MAI Act provides the Commission with jurisdiction to determine whether Mr McDonough is wholly or mostly at fault in respect of his weekly benefits (Schedule 2, cl 3(d)) and whether he is wholly or mostly at fault in respect of his treatment and care benefits (Schedule 2, cl 3(e)).
If the motor accident was not caused “wholly or mostly” by the fault of the claimant under s 3.38, weekly benefits are to be reduced by the degree of any contributory negligence. Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether statutory benefit should be reduced for the claimant’s contributory negligence.

SUBMISSIONS

Insurer’s liability decisions

The insurer has issued three liability notices as follows:
(a)    15 November 2021 denying liability on the grounds the claimant sustained only minor (now threshold) injuries;
(b)    24 August 2022 denying liability because the claimant had only threshold[2] injuries and also because the insurer said the claimant was wholly or mostly at fault, and
(c)    12 May 2023 denying liability on the basis Mr McDonough was wholly or mostly at fault.
[2] At the time this notice was issued, the legislation adopted the terminology of a “minor injury”. Following amendments which came into effect on 1 April 2023 the terminology was changed to “threshold” injury. For simplicity I have used the terminology of “threshold injury” in these reasons.
The claimant says, in the application form lodged with the Commission that he requested an internal review of the 24 August 2022 liability decision which was done by the insurer on

30 September 2022.
The third liability notice was issued after Mr McDonough’s injuries had been assessed by Medical Assessor Kenna and Medical Assessor Sidorov. The former found the claimant’s physical injury (a lumbar spine or lower back injury) was a soft tissue and therefore threshold injury, the latter found the claimant’s psychological injuries (including a major depressive disorder) were not threshold injuries.

CLAIMANT’S LETTER OF 20 JANUARY 2024

The claimant wrote to the insurer on 20 January 2024. He advised the insurer that he wanted to proceed with his claim and that he is no longer represented by Shine Lawyers. Much of what is in this letter is relevant to other matters (insurer complaints and medical disputes).
Of relevance to the issues that I have to decide, Mr McDonough says:
(a)    he is now 41 years of age. Before the accident he had worked as a professional truck driver for 20 years and had been riding motorbikes for over 25 years [4]-[5];
(b)    he denied any previous motor bike accidents [7];
(c)    he is separated from his wife and lives in a campervan [10]-[15];
(d)    since the accident he has had mental health issues, his weight has increased, and he is in pain [16]-[19];
(e)    on the night of the accident he was riding to work, and it was slightly foggy [20];
(f)    he was wearing his safety gear (helmet, goggles and clothing) [21];
(g)    he was travelling at or below the speed limit “I was doing the mandatory speed limit if not slower” [23];
(h)    he approached the lights which were green and proceeded to ride when he saw traffic stopped ahead and he braked. He skidded and locked [24];
(i)    it was as if the bike was on ice and he tumbled a couple of times landing on the ground and he may have hit the back of a car, “I’m a bit vague as the incident happened so quick” [25];
(j)    an Ambulance arrived and he was taken to the hospital [26], his wife arranged a tow truck [27] and the claimant was discharged the next day [29];
(k)    he thought the insurance company would interview him and investigate the accident [52] but they did not, and
(l) he provided photographs of the accident and the condition of the road to his lawyers who sent them to Youi. He says, “this road was frequented by large trucks and roads [and] always had oil or diesel spills” and again he thought the insurer would investigate this but they did not [56].
From the bottom of the fourth page in this letter the claimant complains that Youi did not investigate the claim. At the top of the fifth page the claimant refers to his long history as a professional driver with “zero major accidents” and expressed dissatisfaction with the insurer’s decision.
Mr McDonough then says from his “non-expert investigation and using some of the crash data online, I believe the roads / location had to do with my bike crash.” He says “Snarl and ABS accident data” suggests there have been many crashes where this accident occurred.
He also says is “not sure if the vehicle wheel locking /skidding was mechanical or just not gathering traction.”
He says he was not speeding, was not charged with negligence and no-one has ever asked him how the accident happened.
He provided photographs:
(a)    one, at page 10, taken on the night of the accident shows his motorbike up against the back of a prime mover in the kerbside lane. There are spots visible on the road surface of the next lane;
(b)    in other photographs on page 10, taken during the day at some time after the accident show “markings and residue on the roads” going back a kilometre and forward a kilometre. He says, “I would suggest looking at police database for crashes that occurred around the same time”, and
(c)    an aerial photograph on the top of page 11 and the commentary below it says that he “applied the brakes at the point marked [in green] before the bus stop.” He says this is when he braked and skidded and locked and slid, and he is “100% confident and sure” that he applied his brakes “well before the accident less than 45 metres from the first set of lights at John Morphett and Tyrone Place” intersection. He says he had “more than enough space to brake 245 – 250 metres” which he appears to be saying is the distance to where he needed to stop.

Insurer’s response

On 26 February 2024, the insurer’s Senior Case Manager, Ms Mulheron sent an email to the claimant referring to the letter and photographs sent by the claimant on 20 January 2024. She notes that Mr McDonough alleges that he lost control because of the state of the road surface or presence of oil on the road. Ms Mulheron said that the photographs show spots of oil but not an oil slick or puddle of sufficient quantity to cause a motorbike to lose traction. She advised Mr McDonough that Youi maintained its denial of liability.

Claimant’s submissions with the application

Mr McDonough lodged an application form with the Commission on 28 February 2024.
The application refers to the minor injury decision and dispute and then says:
“I was represented by Sine Lawyers during this time, the exchange of documents was between Youi and Shine, I wasn’t aware of many things that Youi claimed. I have provided evidence, but I wasn’t interviewed, nor was there any root cause analysis just a letter saying insufficient evidence. Covid lockdowns and restrictions were totally ignored, which I believe is unfair for me as an individual.”
Mr McDonough attached to the application form a copy of his letter to Youi dated

24 January 2024 and Youi’s response of 26 February 2024.

INSURER’S SUBMISSIONS LODGED WITH THE REPLY

The insurer’s submissions are dated 18 March 2024.
Youi points at [5] to the version of events in the claim form where the claimant says he “saw the lights were green at a glance but as I neared the intersection the whole three lanes had vehicles stationary and the lights were red.”
The insurer then refers at [6] to the police report which suggests the speed limit was 80kmph and that is the speed he was travelling. The claimant is reported to have believed he had a green light but all the cars in all the lanes had stopped. The claimant is said to have applied his brakes, the tyres locked up causing the motor bike to skid and the claimant went over the handlebars landing on the road.
The insurer submits at [7] - [9] that the police report indicates that the scene was not visited, and that the accident was reported on 28 July 2021 by the claimant and that this version of events therefore comes from the claimant after the accident by which time the claimant had time to think about the accident and “give a full and accurate account to the Police”.
The insurer says at [10 e] that both the claim form and the report to the police describes the claimant applying his brakes in order to avoid colliding with the stationary vehicles and then losing control. The insurer submits at [10 f] that the claimant does not mention either to the police or in his claim form that the road was slippery.
Youi says at [11]:
“The Insurer submits that the description of the accident provided by the Claimant, both in his [claim form] and to the Police, demonstrates that the accident was wholly caused by his own inattention and by placing himself in a position where he had to brake harshly to bring his motorcycle to an urgent halt.”
After detailing the liability notices at [12] and summarising the claimant’s 24 January 2024 letter at [13] and [14], the insurer says at [15] and [16]:
(a)    the slippery road account should be “viewed with caution” as it was not mentioned in his claim form or to the police;
(b)    the claim form refers to a split second decision to hit the brakes and the police report refers to the brakes locking which is consistent with the claim form but not consistent with the brakes having no effect because the road was slippery;
(c)    the photographs show dripping of oil on the road “which may be typical” of roads in the area but “a long way short of the kind of oil slick” that could cause an accident, and
(d)    even if the road surface contributed to the loss of control the “overwhelming cause of the accident” was Mr McDonough’s inattention to the vehicles ahead which caused him to brake sharply and lose control.
The insurer says from [17] – [20] that the accident was caused by the claimant’s failure to keep a proper lookout and monitor the status of the traffic at the lights. He put himself in the position of having to brake harshly to void an impact.
The insurer says at [21] – [27] in the alternative that if the state of the road contributed to the accident, the claimant would be mostly at fault. Youi says he “left himself to the mercy of the road surface by placing himself in a position where he had to brake harshly and rely on the integrity of the road, together with the integrity of his brakes, to bring his vehicle to a halt before he collided with the vehicles ahead.”
The insurer says the claimant was not travelling in a line of traffic when an unexpected external force caused him to lose control. Youi says, what caused him to lose control the insurer says was his inattention to the vehicles ahead and his need to brake harshly.
The insurer lodged revised submissions on 20 March 2024 after receiving the police officer’s statement. This includes the following:
(a)    a police investigation did not take place as it was a single vehicle accident [9];
(b)    there were no other accidents reported in the area in the 24 hours before and after the accident [10];
(c)    there was one other job reported to police by Ambulance but there were no details available [11], and
(d) the police officer thought oil on the road was a possibility but if there was a “proper oil spill” an agency would have been called out to clean it up [12].
The insurer says at [16] that the evidence “falls well short of establishing” that the claimant’s loss of control of his motorbike was caused by an oil spill and relies on the police officer’s evidence and says if there was a spill:
(a) it would have been identified and an agency would have been notified to clean it up, and
(b) there would have been other accidents.
The insurer says at [19] that neither of these two things happened.

Claimant’s response

On 24 March 2024, the claimant responded to the submissions from the insurer’s solicitors. He said:
(a)    the police officer was interviewed three years after the accident and would have limited recall;
(b)    the police officer had thought police may not have attended the scene whereas the Ambulance report suggests police were asked to attend and they were at the scene;
(c)    the photographs show there were oil spill stains on the road;
(d)    his wife misrepresented what he had said on the claim form and English is not her first language, and
(e)    fire and rescue attended.
Mr McDonough says he bought his motorbike in October 2020 it was a 2000 model. There had been a previous recall for a variety of defects, but the date of the recall is not clear.

REVIEW OF THE EVIDENCE

First responders and hospital records

Ambulance

An Ambulance report is found at page 22 of the Westmead Hospital notes, and it says:
“Motorcyclist travelling at a high-speed and lost control at the intersection skidding just at the rear-end of a stationary truck at the traffic lights. The patient stated that he was travelling at a high-speed along Erskine Park Road and when he saw the truck and tried to brake, lost control and skid sideways stopping at the rear-end of the truck.”
The Ambulance records suggest police and Fire and Rescue were requested to attend but were not in attendance when the Ambulance was at the scene.

Fire and Rescue

Fire and Rescue provided documents in answer to a direction noting the accident was a single motorcycle into a parked truck “required for assistance with clean up please”. The documents suggest the actions required were to “remove oil / fuel from roadway” and this was done using “loose absorbent materials – Bag 1”.

There are said to be no records of any other accidents in the area.
The insurer’s investigator made contact with St Marys Fire Station and in the report of

27 May 2024 state “There are no records to indicate if the oil and fuel spill was caused by this accident or was there previously.”

Police

The police report is dated 19 August 2021. This document was created by Constable Stoneman of Nepean police area command after a report on 28 July 2021 at 2:30pm.
The intersection where the accident occurred was identified as Lenore Drive and Templar Road at Erskine Park. The speed limit was said to be 80km. It says that the scene was not visited. The claimant’s vehicle was said to be the only vehicle involved and its details are recorded. The pre-crash speed was stated to be 80km.
The insurer’s investigator obtained a statement from Constable Stoneman on

10 March 2024. He admits that, as the accident was two and a half years ago so his memory is hazy, but he has refreshed his memory from the event number:
(a)    he made an error as to the date of the accident (19 July 2021 not 19 June as stated in the report) [A7];
(b)    he took the report when the claimant attended the station on 28 July 2021 [A8];
(c)    it was not in the public interest to issue an infringement [A8];
(d)    the claimant told him [A30]:
“I was riding east on Lenore Drive. The traffic lights at Templar Road appeared to be green. I was doing the speed limit. I got closer. I saw a truck and two cars in a line stopped at the intersection. I have squeezed the brakes where I have skidded, and I realised I wasn’t able to stop. The bike continued to skid where I have flipped over the handlebars and did a few rolls. The bike has skidded off towards the gutter. I landed on the road and have gone and laid on the footpath”;
(e)    the claimant said he was riding at “Approximately 80 kilometres an hour”, wearing a helmet and with his lights on;
(f)    the officer asked him, “Was there anything on the road that could have caused you to skid?” He said, “Possible oil or diesel as it is a road heavily used by trucks, and my bike skidded like it was on ice”, and
(g)    Constable Stoneman looked up his system for the day before and after the accident and found no other collisions day before or day after. There was a report from Ambulance to the police about an accident in the area but that the police did not attend [A32].

Hospital

The claimant was taken to Westmead Hospital after the accident. The notes from Westmead Hospital include the following:
(a)    at page 11 there is reference to a “high speed motorbike collision”;
(b)    at page 14 of the notes is a note “M-MBC approx 80 – 100 kmph as per patient (as per CDA possible 160 kmph). Stationary car and truck in front of him lost control trying to swerve”;
(c)    at page 32 of the hospital notes is an emergency nursing assessment noting the accident was a motor bike accident, “approx 100 kmph saw stopped truck could not brake in time”;
(d)    a note at page 34 says, “Patient has been brought in by Ambulance from a public road. Motorcycle crash with rider sliding into a lorry impacting his back. Per paramedics, patient was travelling at 160 – 180 kmph at the time of the accident, although the patient disputes this and states he was travelling at around 100 kmph”;
(e)    a further note at page 35 says, “Further history from patient obtained. States he was travelling towards a junction and was taken by surprise by a lorry obstructing this junction. He reports braking hard and describes a high-speed wobble before low slide and sliding towards the truck impacting the vehicle with the right side of his back”, and
(f)    at page 37, is a note “given patient’s description of accident, this was a high-speed incident, more in favour of a speed in the region of 160 – 180 rather than 100 kmph”.

The claimant’s evidence

Mr McDonough’s claim form was signed by him as true and correct and dated

4 August 2021.
The version of events in the claim form is as follows:
“I was riding to work on my motorbike, which is my usual route of way into work. The weather was a bit damp, cold and slight foggy but otherwise fine. At this particular intersection I saw the light were green at a glance, but as I neared the intersection the whole three lanes had vehicles stationary and the lights were red. Split second thinking I applied brakes and skidded and then was flung from the bike which sent me sprawling that’s all I can remember.”
Added to page 3 of the claim form is this note:
“The intersection is a bit tricky as its lights are not very well positioned.”
At the first preliminary conference the claimant said he does not know exactly what caused the accident but says there must have been something on the road because he is a safe driver who has never had a significant accident. He said he approached the first intersection, looked down to check his speed then after he passed through the first intersection, he braked because of the traffic up ahead at the second intersection and his bike suddenly slid out from under him.
At the second preliminary conference, Mr McDonough vehemently denied travelling at 160 – 180kmph and said he would be dead if he had been travelling that fast. He also disputed travelling at 100kmph and says I should not accept anything reported in the hospital notes because he was in so much agony, he would not know what he was saying. He also said he was in shock. He says he remembers glancing down at the speedometer on his bike before the accident and says he was travelling at 80kmph.
At the third preliminary conference I took Mr McDonough through my understanding of his evidence, and he confirmed:
(a)    he was travelling at or under the speed limit;
(b)    the traffic lights at John Morphett and Tyrone place were green and he rode through that intersection;
(c)    the lights up ahead at the Templar Street intersection were green, but vehicles were still stationary at the lights;
(d)    there was a single line of vehicles stationary at the intersection;
(e)    when he saw the vehicles stopped, he braked normally;
(f)    his brakes locked, he lost control of his bike and he and it slid along the road coming to rest at behind a truck;
(g)    he did not see or notice anything on the road, but he was taken by surprise and says he lost control because of something on the road. He says he must have ridden through a patch or puddle of oil on the road;
(h)    he relies on Gilmores who describe the road as contaminated and says the oil does not have to be all over the road, and
(i)    he refers to the Anderson Hall report and says there was nothing leaking from his bike (brake fluid or oil) after the accident.
Mr McDonough confirmed that the photograph of his bike and the truck showed oil spots but that it was not these spots that caused the accident because he had lost control and come off his bike further up the road.

Ms Wati’s evidence

The claimant relies on a letter from Angiline Wati dated 23 March 2024. She is married to, but separated from, the claimant. She says at [4] that English is not her first language and at [5] that she has had help from friends and family writing the letter.
Ms Wati was not a witness to the accident but its aftermath. She said she received a call at about 8:00pm and got there 10 minutes later. Her partner was on the ground and the Ambulance arrived almost as she did.
Because of COVID-19 she was not allowed near the paramedics, and she waited for police and fire service to arrive. She waited for 20 minutes for the police and fire brigade but then left before they arrived, driving her mother and daughter home before going to the hospital.
She details the claimant’s discharge from hospital and his treatment at home. She says she was given the claim form when Mr McDonough left hospital and on 23 July 2021 she contacted Shine lawyers. They asked for more details and photos which she gave them.
Ms Wati says she completed the claim form because her husband could not write properly and she “accidently put ‘red light’ in it”. She confirms Mr McDonough signed the claim form.
Ms Wati drove her husband to Penrith Police station to make a report. “I understood Fire Services were at the scene after the accident and by the time police reached the scene, the scene was cleaned up.”
Ms Wati complains about the claimant’s treatment by the insurer and Shine Lawyers. She also notes:
(a)    the bike was never taken for review and was disposed of after two months;
(b)    the road where the accident happened gets re-sealed regularly;
(c)    there are lots of accidents on this road, and
(d)    her husband is not an unsafe rider, and she believes he is not at fault.
In her email to Shine Layers on 23 July 2021 attached to her statement she says:
“Adam told me, but I will need him to confirm, that he was riding to work there was a bend he saw the lights been green at John Morphett Road, he continued riding and after passing the bus stop there were vehicles in each lane of the road. Adam braked and he skidded and slid and then let go of the bike which sent him and the bike sprawling.”

Other histories

Medical Assessor Kenna took a history from the claimant (recorded at section 10 of his decision dated 6 April 2023) which says:
“He was on the way to work on the night shift. He was riding his motorbike. It was wet as it had been raining. As he came to an intersection, due to the wet conditions, his front wheel went out from under him. He subsequently slid, went over the top of his bike, and subsequently hit the back of a car.”
Medical Assessor Sidorov took a history from the claimant (recorded at section 10 of his decision dated 8 May 2023) as follows:
“He stated that he realised the traffic in front of him was stopped so he applied the brakes. He stated that the bike just slid under him. He stated that it was possibly because the road was slippery or there was an oil spill. He stated that he went over the handlebars of the motorbike.”

Expert reports

Anderson Hall - for the insurer

Dr Robert Anderson of Anderson Hall completed a report for the insurer dated 24 June 2024. He says at 2.1 he is a consultant in accident reconstruction, injury causation and biomechanics. He notes at 3.1 that he had nine documents including the claim form, the police report, the claimant’s letter of 20 January 2024, the police officers record of interview, Ms Wati’s letter, the claimant’s statement of 24 March 2024 and the Westmead Hospital notes.
After summarising the claimant’s version of events at [4] and his belief that he lost control of his bike because of oil or diesel on the road surface, Dr Anderson sets out at [6] the evidence.
He then says:[3]
(a)    the photograph of the bike against the truck identifies the point of the collision as 9.5m from the holding line at the Lenore Drive and Templar Road intersection [7.1 (1)];
(b)    an aerial image of the intersection taken on 7 August 2021 shows evidence of a fluid spill and that the stain may relate to oil and fuel from the claimant’s motorcycle [7.2 (1)];
(c)    the spill is not relevant because the loss of control and sliding of the motorcycle happened further west and aerial imagery shows no spill in that direction [7.3 (1)];
(d)    the claimant had provided photographs after the event showing oil spot stains and says these deposits extended a kilometre in each direction and the aerial photographs show the location of these stains are not where the claimant lost control [7.1(2) and 7.2(2)];
(e)    the StreetView aerial images “appear unremarkable and clear of significant contamination with oil spots sparsely distributed” [7.3(2)], and
(f)    he says at [7.4] “In my assessment, the spotting and stains shown by the Claimant are unlikely to be representative of the road surface where he lost control.” Dr Anderson doubts that spotting would cause the loss of control or that the friction of the road surface would be affected.
[3] Dr Anderson has two paragraphs numbered 7.1, 7.2 and 7.3 I have added (1) and (2) to identify which one I am referring to.
Dr Anderson says:
(a)    the distance for a motorcycle to slide from 80kmph to rest would be 63m [8.2];
(b)    the claimant is likely to have come off his bike about 30 – 50m from the point where the bike came to rest;
(c)    the claimant had suggested he lost control near the bus stop 204m before the point of collision which would suggest a slide distance of 145m from the time the claimant came off his bike which would mean a speed of at least 120kmph [8.4];
(d)    a speed of either 80 or 120kmph is likely [8.5], and
(e)    the evidence does not directly establish what caused the claimant to lose control but says that it is unlikely due to the state of the road. He notes that “Generally, motorcycle loss of control is often initiated after incorrect (abrupt) brake application in combination with excessive speed” [8.6].
He states his opinions at [9] as:
(a) the higher speed of 120kmph is consistent with the claimant losing control near the bus stop which is where he says it occurred and this high speed would also partly explain his loss of control [9.1], and
(b) evidence does not support theory oil or diesel on the road caused brakes to lock and bike to skid and the Fire Brigade’s response was at the point of collision or rest and not at the point where the loss of control is said to occur [9.2].

Gilmore Engineers for the claimant

Mr Kieren Petty and Dr Raymond Hope of Gilmore Engineers prepared a report dated 8 July 2024 for the claimant.[4] They list at [4] the tasks they were asked to perform:
(a)    read and review the supplied briefing information;
(b)    assessment of the motorcycle stopping behaviour with oil on the road at three speeds (60kmph, 80kmph, and 100kmph);
(c)    provide expert opinion on the behaviour of a stopping motorcycle if oil coated the road surface;
(d)    provide any other considerations that could have led the motorcycle to lose control;
(e)    provide expert opinion on Adam McDonough’s description of events, and
(f)    provide commentary on the McCabes “Insurer’s Submissions – Miscellaneous Assessment” document.
[4] For ease of reference, I will refer to the report as the Gilmore report.
They list at [2] the seven documents they have. They did not have the Westmead Hospital notes. They had photographs of the motorbike after the accident. It does not appear they had the report of Dr Anderson.
The Gilmore report says at [9] that it is assumed that the claimant’ wheels locked when the brakes were engaged causing the tyres to skid on the road surface.
The stopping distances at three different speeds on a normal and oily surface were set out at [12] on the basis of a normal road surface and a contaminated road surface:
(a)    at 60kmph, the stopping distance on a normal road surface would be 15.8 to 20.3m and on a contaminated road surface 47.4 – 236m;
(b)    at 80kmph the stopping distance would be 27.9 – 35.9m (normal) and 83.7 – 420m (contaminated), and
(c)    at 100kmph the stopping distance would be 43.8 – 56.3m (normal) and 131.3 – 656m (contaminated).
The Gilmore report says at [13] that “oil on the road surface can lead to instability, loss of balance and crashes for motorists, particularly motorcycles.” The oil reduces the friction between the tyres and the road reducing the brake force required to lock up the wheels and cause the tyres to skid [14]. The report also says that oil from a contaminated road can transfer to the tyres, reducing grip. The contaminated surface does not need to be large [15].
The authors of the report consider other road surface conditions such as bitumen bleeding or polished aggregate or humidity [17] and [18]. They also canvass the possibility of the brake pad becoming detached from the backing plate (the reason for the year 2000 recall) but doubt this due to the age of the motorcycle [19] and [20].
The Gilmore report then considers the claimant’s description of events, noting at 21 there are multiple accounts. They cite: the police constable’s record of the claimant’s report; the claim form and the 20 January 2024 letter. The report says:
(a)    the damage to the motorcycle is consistent with the bike falling and sliding on the road [28];
(b)    there is no evidence of an impact between the motorcycle and another vehicle [29];
(c)    a motorcycle when upright should come to a stop in a shorter distance then if sliding along the road on its side. Had the road not been contaminated at the time the claimant applied his brakes he should have had sufficient distance to stop [31], and
(d) the tyres appeared to be in good condition [32].
The authors provide the opinion that:
“… given the final resting location of the Motorcycle, it is likely that the Claimant applied the brakes with sufficient space to safely stop … it is likely the Claimant would have stopped before hitting the stationary vehicles … had the road been uncontaminated.”
The authors then engage with the issue of the oil on the road. They say they have no evidence of a clean-up [37]. They say that oil spills often occur in the middle of the lane which does not cause a problem for motorists as cars and trucks straddle the middle of the road [38]. A minor to medium oil spill could have occurred and was not reported due to its location and size [40]. Driving or riding over an oil spill is unlikely to cause an accident, what does cause the accident is when braking occurs or a steering manoeuvre [42d].
The authors say there is no evidence to support the assumption of there being an emergency situation before the brakes were engaged and there is no evidence the claimant had to brake harshly [45] and [54]. They say at [57]:
“In my opinion, the presence of an oil or diesel spill on the road is a significantly more likely reason for the Motorcycle skidding and losing control under braking than simply harsh braking on an uncontaminated road.”
The report then engages at length with the insurer’s submissions and says at [71]:
“In my opinion, the evidence supports that this is a case where the Claimant was travelling along and tried to slow down at sufficient distance to prepare to stop for the stationary vehicles ahead. In my opinion, contamination on the road is the most likely ‘unexpected external factor’ that initiated the loss of control of the Motorcycle.”

CONSIDERATION OF THE ISSUES

I must make findings about the facts and circumstances surrounding this accident. Factual findings must be supported by logical probative evidence. Any inferences that I draw must be reasonably open on the established facts Australian Broadcasting Tribunal v Bond (1990) HCA 33 at [367]. Once the findings have been made, I must then apply them to the law, that is ss 3.11 and 3.28 of the MAI Act.
Acting Justice Schmidt in Insurance Australia Limited t/as NRMA v Richards[5] determined that the onus (or burden) of proof lies with the insurer to establish that the claimant does not have an entitlement to ongoing statutory benefits because they are either wholly or mostly at fault. In other words, it is the insurer that must satisfy me that the claimant’s fault wholly or mostly caused the accident[6] based on the established facts.

FINDINGS OF FACT

[5] [2023] NSWSC 909.

[6] See for example paragraph 30, 39 and 67.

Agreed facts

The parties do not appear to be in dispute about any of the following matters relevant to the determination of faut:
(a)    the accident occurred on 19 July 2021 at about 8.00pm;
(b)    it was dark at the time of the accident;
(c)    Mr McDonough was riding his motor bike on Lenore Drive at Erskine Park;
(d)    the accident occurred after the lights at the intersection of Lenore Drive with John Morphett Place (to the north) and Tyrone Place (to the south) and before the intersection of Templar Road;
(e)    the speed limit was 80kmph;
(f)    Mr McDonough was riding with his headlights on and wearing protective gear;
(g)    Mr McDonough was riding to work and this was his usual route;
(h)    Mr McDonough saw vehicles up ahead stationary at the Templar Road intersection and braked;
(i)    he lost control of his motorbike and fell, and
(j)    the fall caused him injury.

What is not agreed is:
(a)    what evidence should be accepted;
(b)    where he first applied the brakes;
(c)    how he applied the brakes;
(d)    whether there was oil or some other contamination on the road surface, and
(e)    his speed.
I will deal each of those in turn. I will for the remainder of these reasons refer to the two relevant intersections as follows:
(a) Lenore Drive with John Morphett Place and Tyrone Place is the first intersection, and
(b) Lenore Drive with Templar Road is the second intersection.

What evidence should be accepted

I am satisfied that police did not attend the scene of the accident. I make this finding on the basis of the record of interview with Constable Stoneman and the evidence of Ms Wati who was there at the scene about 10 minutes after the accident and left 20 minutes later before police and Fire and Rescue attended.
Mr McDonough has provided a great deal of information and has been co-operative with me at the three preliminary conferences. At paragraph 25 of his 20 January 2024 letter to the insurer he said he was vague about the details and at the first preliminary conference he said he did not really know how his accident happened. I accept that Mr McDonough was doing his best to give a truthful account to me of how his accident happened.

Where the claimant first applied the brakes

In the email to Shine Lawyers on 23 July 2021, the claimant’s wife reported that after passing the bus stop her husband saw the stationary vehicles and braked. Mr McDonough said in his 20 January 2024 letter that he braked, at around the location of the bus stop shortly after the first intersection. There is no evidence from any eye witness to contradict that assertion.
The claimant seems to suggest in his 20 January 2024 letter that he had 245 – 250m from the first intersection to the second intersection and that the distance from the first intersection to the bus stop was 45m suggesting he traversed less than 200m from where he said he applied the brakes to where he and his bike came to rest.
The Gilmore report does not include any evidence as to distance.
Dr Anderson however says that the distance from the bus stop to the point of collision was 204m. Dr Anderson says it was 9.5m from the holding line for traffic at the second intersection back to where the claimant’s bike came to rest.
On the basis of Mr McDonough’s evidence, I am satisfied that he braked at the location of the bus stop just after the John Morphett and Tyrone Place intersection about 195m (204m – 9.5m) from the back of the line of traffic.

How did the claimant apply the brakes

There is no dispute that Mr McDonough applied the brakes and then lost control of his motorbike. He said at the third preliminary conference that he braked normally.
In the Westmead Hospital notes at page 35 is a “further history” obtained by the claimant “he reports braking hard and describes a high-speed wobble”. Page 32 of the Westmead Hospital notes say he “could not brake in time.”
Mr McDonough told the police on 28 July 2021 that he “squeezed the brakes”. This suggests the claimant applied the brakes normally or at least not harshly.
The authors of the Gilmore report did not have the Westmead Hospital notes and therefore did not have the possibility of the claimant “braking hard” to consider. The claimant did not deny that he said he braked hard but says I should not give any weight to anything he said at the hospital because he was in so much pain.
The claimant says he braked, at around the bus stop which Dr Anderson says (and I accept) is about 204m from the line of traffic. With that distance ahead of him, and noting the Gilmore Report’s table of stopping distances, there would be no need for any harsh, hard or emergency braking. The claimant had plenty of time as he himself has said to come to a stop without hitting the vehicles stationary at the intersection.
I therefore accept Mr McDonough’s evidence that he braked normally at around the location of the bus stop when he noticed the stationary vehicles up ahead.

Whether there was oil or some other contamination on the road surface

Mr McDonough told the police, a week after the accident when asked if there was anything on the road, that there was possibly “oil or diesel as it is a road heavily used by trucks, and my bike skidded like it was on ice”. The claimant has consistently referred to his loss of control and the bike skidding on ice
There are no witnesses to confirm the presence of a contamination such as an oil or diesel spill near the bus stop where the claimant said he lost control. Police did not attend and view any oil spill and Fire and Rescue cleaned up something, somewhere with a bag of material, but there is no certainty as to what they cleaned up or where.
The authors of the Gilmore Report did not visit the scene of the accident. Dr Anderson also does not appear to have visited the scene. Three years after the accident it is unlikely in my view that the road surface would resemble the state of the road surface on the night of the accident and therefore visiting the scene would not add anything to the experts’ opinions.
The authors of the Gilmore report refer to oil spillages being not uncommon [13], they refute the assumption that if there was an oil spill someone would have been charged with cleaning it up [37], the absence of other reported accidents [42] and state where oil spills are usually found (in the middle of the lane) [38]. The authors state at [16] and [39] that oil spills do not need to be large to cause a motor cyclist difficulty.
The authors of the Gilmore report say, at [37] that there is no evidence whether an agency did or did not go and clean up an oil spill. They do not appear to have been provided with the Fire and Rescue documents.
The authors of the Gilmore report had a copy of the photograph of the claimant’s motorbike where it came to rest. They had other photographs of the motorbike itself but did not engage with the photographs the claimant attached to his 20 January 2024 letter showing the roadway near where the accident happened. They also did not examine aerial photographs such as those considered by Dr Anderson.
Dr Anderson did consider the other photographs and aerial photographs taken 18 days after the accident (7 August 2021). His expert evidence was there was a stain on the road that may have been caused by the collision but that the other photographs provided by the claimant were not of areas where the claimant may have lost control (near the bus shelter). He said the aerial photograph of where the claimant said he lost control appeared to be contamination-free [7.2(2)]. Dr Anderson acknowledges that the aerial photographs were not contemporary to the date of the collision [7.3(2)].
I am not satisfied on the evidence before me that there was an oil spill in terms of a patch or puddle on the road. I make this finding based on the absence of reports of an oil spill to Fire and Rescue (documents which Gilmores did not have), the absence of other accidents on the day before or after the accident and the fact that Mr McDonough did not see anything on the roadway at the time he braked and lost control of his motorbike.
Mr McDonough suggests the accident occurred due to the road being contaminated. He says that not based on anything he saw or observed on the night of the accident but based on how he says his bike behaved (the road was like ice). I accept this evidence as to how his bike behaved and note he made a complaint to the police within 10 days of the accident and surmised there was something on the road. I also note that Mr McDonough is an experienced driver and motorcyclist and that there is no evidence of a mechanical defect. I also accept that there was some substance on the road because I accept the evidence of

Mr McDonough’s expert that a contaminated road is not uncommon and that there does not need to be a large amount of oil on the road to cause difficulty for a motorbike.
I am therefore satisfied that there was something on the road surface that led to Mr McDonough losing control of his motorbike.

The claimant’s speed

Ambulance records from the day of the accident state the claimant was travelling at “high-speed” and they report again that “the patient states that he was travelling at high-speed”. That evidence is unhelpful as there is no actual speed stated. Ambulance personnel did not of course witness the accident or see the claimant riding his motor-cycle in order to judge the speed.
There is no evidence from any witness to the accident as to the speed of the claimant’s motorbike before the claimant braked.
Hospital records repeat the allegation of “high-speed” and there are reports of “80-100 kms per patient”, “patient disputes [ambulance estimate of 160 – 180] and states he was travelling at around 100 kmph”. The claimant says I should not accept what is recorded in the hospital notes as he was in shock and in so much pain, he would not know what he was saying. I certainly do not accept the ambulance suggestion of 160 – 180kmph.
The claimant says in his letter of 20 January 2024 that he was driving at our below the speed limit. He told the police on 28 July 2021 that he was travelling at about 80kmph. He told me at the first preliminary conference that he looked down at his speedometer as he approached the first intersection to check his speed and at the second preliminary conference, he said he glanced down at the speedometer before the accident and says he was travelling at 80kmph.
The claimant’s reports of his speed to the hospital and to the police and to me are inconsistent and therefore, in the absence of any independent witnesses I will look to what the experts say.
The authors of the Gilmore Report were not asked to assess the claimant’s speed [4] and in the list of essential elements of the accident [25] did not include a reference to the speed of the motorcycle. The report considers other aspects of the road, the weather and mechanical defect at [4.1] and [4.2] but the authors do not consider whether speed was a factor. Speed was also not mentioned in any of the opinions stated at the conclusion of the report.
Dr Anderson on the other hand did consider what speed the claimant was travelling. He calculated that if the claimant lost control of his motorbike near the bus stop, his bike slid on the road surface for 145m [8.2] before coming to rest which suggests a “very high speed” of at least 120kmph. Dr Anderson says a speed of 120kmph is more consistent with where the claimant says he braked and lost control.
Dr Anderson’s evidence suggests that, if the claimant had been riding his motorbike at 80kmph when he lost control and fell from his bike, that his bike would have slid for a much shorter distance before coming to rest. He suggests a distance of about 63m. That distance would not be consistent with the claimant’s evidence that he braked normally and lost control at the bus stop.
The claimant’s stated speed of 80 kmph is based on the claimant looking down at his speedometer as he approached the first intersection. As he would then have had to cover the distance of the intersection and then the distance to the bus stop (the latter estimated by

Mr McDonough at 45m) there was time, and distance for him to accelerate beyond 80 kmph. I am not satisfied that he was travelling at 80kmph at the time he braked and lost control near the bus stop.
I have accepted what Mr McDonough has said, that he braked at about the level of the bus stop, and I have also accepted his evidence that he braked normally. Having made those findings, the only evidence as to his speed that is consistent with that evidence is the expert opinion of Dr Anderson that he was travelling at least 120kmph.

CONSIDERATION OF THE ISSUES

Was the claimant wholly or mostly at fault?

Mr McDonough said at the first preliminary conference he was not sure what caused the accident, but relied on his past good driving record and absence of significant accidents to say it could not be him. He subsequently conceded the accident was not caused by any mechanical fault relevant to a previous recall of a part on his vehicle.
I have accepted that there was a substance on the road that Mr McDonough did not see which caused him to lose control when he braked. Having made that finding then

Mr McDonough cannot be wholly at fault in causing his accident.

Is Mr McDonough mostly at fault?

Sections 3.11(2) and 3.28(2) of the MAI Act state that a person is mostly at fault in an accident if there is contributory negligence on their part and if that contributory negligence is assessed at more than 61%.
Contributory negligence is assessed in accordance with s 3.38 of the MAI Act. That section refers to “the common law and enacted law”. The common law is a reference to the cases decided by judges and the reference to the enacted law includes the Civil Liability Act 2002. Section 5R of that Act specifically provides that the standard to be applied in determining contributory negligence is that of a reasonable person in the position of the plaintiff on the basis of what that person knew or ought to have known at the time of the accident.
Dr Anderson says in his report at [9.1.1] that high speed would partly explain the claimant’s loss of control. I am satisfied on the basis of the finding I have made as to the claimant’s speed that there must be a finding of contributory negligence made against Mr McDonough. A reasonable person in the position of the claimant would not speed at all, or would not speed 40kmph over the speed limit.
In a case where there are two people involved, for example two cars colliding, the degree of contributory negligence is determined by apportioning responsibility between the two drivers. In a case such as the claimant’s, where there is only one person involved, the case of Davis v Swift[7] says at [51] that contributory negligence is determined by “reference to the extent to which the [claimant’s] conduct failed to conform with the standard of care expected of a person in [the claimant’s] position”.
[7] [2014] NSWCA 458.
The claimant was riding to work, he says it was his usual route, he would therefore have been familiar with the environment. He says in his 20 January 2024 letter that it is an industrial area frequented by heavy vehicles and always had oil or diesel spills. The claimant was therefore aware of the possibility of oil or diesel spills in the area. He has also said in his letter it was slightly foggy. In his claim form he said it was a bit damp and slightly foggy. Foggy conditions would affect a motorist or motorcycle rider’s visibility of the road ahead.
In my view a person in the claimant’s position would not have driven above the speed limit where he was driving and in the prevailing conditions. Any chance of the claimant spotting a substance on the road at night when it was a bit foggy were greatly diminished by the speed I have found he was riding. The standard of care to be expected of a person riding at night in foggy conditions in an industrial area where it was possible there would be substances on the road would, in my view, be to riding at or below the speed limit.
In my view the claimant’s contributory negligence should be assessed at 80%.

CONCLUSION

If I had not found the presence of a substance on the road, I would have had to find the claimant was wholly at fault. Having found there was a substance on the road and having accepted the claimant’s version of events that he braked at around the point of the bus stop and braked normally; I have had to accept the unchallenged expert evidence of Dr Anderson as to the claimant’s likely speed at the time he braked and lost control.
Mr McDonough is, on the evidence before me, mostly at fault in causing his accident.

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Citations

McDonough v Youi Pty Limited [2024] NSWPIC 445

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Davis v Swift [2014] NSWCA 458

[2024] NSWPIC 445

19 August 2024