Pxayl v Insurance Australia Ltd t/as NRMA Insurance
[2025] NSWPIC 324
•7 July 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | PXAYL v Insurance Australia Ltd t/as NRMA Insurance [2025] NSWPIC 324 |
CLAIMANT: | PXAYL (a pseudonym) |
INSURER: | Insurance Australia Ltd t/as NRMA Insurance |
MEMBER: | Bridie Nolan |
DATE OF DECISION: | 7 July 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); miscellaneous claims assessment; dispute concerning insurer’s determination to cease statutory benefits after 52 weeks under sections 3.11 and 3.28 of the MAI Act; insurer alleged claimant was wholly or mostly at fault for collision while merging lanes; claimant contended accident caused by insured driver failing to yield after entering from side street; competing versions of events supported by limited and inconsistent evidence; insurer relied on regulation 148(2) of the Road Rules 2014 and independent witness statement; physical damage pattern and road geometry inconsistent with insurer’s account; witness statement found unreliable and uncorroborated; insured driver failed to see claimant’s vehicle prior to impact, raising inference of inadequate lookout; claimant’s account found plausible and consistent with damage and scene; insurer failed to discharge burden of proof; Held – accident not caused wholly or mostly by the claimant; statutory benefits beyond 52 weeks not precluded. |
DETERMINATIONS MADE: | CERTIFICATE OF MISCELLANEOUS CLAIM Issued under Division 7.6 Subdivision of the Motor Accident Injuries Act 2017 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017, the motor accident on 26 June 2024 was not caused wholly by the fault of the claimant. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017, the motor accident on 26 June 2024 was not caused wholly by the fault of the claimant. |
STATEMENT OF REASONS
INTRODUCTION
The claimant applies for the determination of a miscellaneous claims assessment pursuant to Schedule 2, cll 3(d) and 3(e) of the Motor Accident Injuries Act 2017 (NSW) (the MAI Act), in relation to the insurer’s decision to decline statutory benefits beyond 52 weeks following a determination that the claimant was wholly at fault for the motor vehicle accident (the accident) which occurred on 26 June 2024.
The accident occurred at approximately 8.15am on The Northern Road, Glenmore Park, just north of the intersection with Garswood Road. At the time of the accident, the claimant, was travelling in the middle lane (lane 2) of a three-lane northbound carriageway and was intending to merge into the left lane (lane 1) in preparation to turn left at Jamison Road further along. The insured vehicle, a grey Kia Seltos driven by the insured driver, had entered The Northern Road from Garswood Road, turning left and crossing a bus lane before entering lane 1. A collision occurred between the front-left wheel of the claimant’s vehicle and the front-right bumper and wheel arch of the insured vehicle.
On 11 July 2024, the insurer accepted liability for statutory benefits up to 52 weeks. On
11 March 2025, the insurer issued a Liability Notice – Benefits After 52 Weeks, advising that the claimant was wholly at fault for the accident and that benefits would cease in accordance with s 3.28 of the MAI Act. That decision was affirmed on internal review on 31 March 2025.
The insurer based its decision on the application of reg 148(2) of the Road Rules 2014, asserting that the claimant had failed to give way while changing lanes. The insurer relied on statements made by both drivers, a third-party witness, the nature and location of vehicle damage, and the absence of contrary evidence suggesting fault on the part of the insured driver.
The claimant lodged an application for the determination of a miscellaneous claims dispute to the Personal Injury Commission (Commission) on 29 April 2025 disputing the insurer’s determination. She submits that the collision occurred due to the insured driver failing to keep a proper lookout and to yield when merging into The Northern Road from Garswood Road. She further submits that the physical damage to the vehicles, the sequence of the collision, the geometry of the road, and the presence of sun glare support her version of events. She disputes the reliability of the sole witness relied upon by the insurer, asserting that he lacked line of sight and had a potential connection to the insured driver.
The insurer maintains its position that the claimant was wholly at fault, contending that the insured vehicle was already established in lane 1 and that the claimant failed to give way when changing lanes, in contravention of rule 148(2) of the Road Rules 2014 (NSW). The insurer relies on the insured driver’s statement and the account of the independent witness (the witness), to support its determination.
MATERIAL BEFORE ME
Factual Investigation Report – M&A Investigations (25 July 2024)
The insurer commissioned a factual investigation which was completed on 25 July 2024 by M&A Investigations. The report includes signed statements from each of the parties involved in the collision and from one purported eyewitness, as well as photographic, diagrammatic, and ancillary documentary material.
The claimant’s statement, dated 9 July 2024, sets out her recollection of the events leading up to and following the collision. She stated that she had been travelling in lane 2 of The Northern Road for some time and had come to a stop or near stop due to heavy traffic. She indicated her intention to merge left, checked her mirrors and blind spot, and began to merge when a vehicle emerging from Garswood Road turned left and crossed into lane 1. She described the collision as involving her front-left wheel and stated that the impact caused her vehicle to be pushed back into lane 2. She denied being at fault and stated that the other driver appeared not to have seen her. She also recounted interaction with the other driver following the accident and later social media contact that she found unwelcome.
The insured driver’s statement, also dated 9 July 2024, states that she exited Garswood Road, crossed the bus lane, and travelled 20 to 30m in lane 1 before the collision occurred. She described the traffic as heavy, estimated her speed at no more than 20 kmph, and stated that she did not see the impact but heard it. She maintained that she had right of way and that her vehicle had been established in lane 1 prior to the claimant’s attempted merge.
A witness provided a statement on 12 July 2024. He reported that he was travelling in lane 1 several vehicles behind the point of collision. He claimed to observe the Volkswagen twice attempt to merge into lane 1 and stated that, on the second occasion, the vehicle did so without indicating and collided with the insured vehicle. He described the contact as soft and said he saw the left front tyre of the Volkswagen contact the right front tyre of the Kia.
The investigation file includes four sets of photographs: damage to the claimant’s vehicle (including a visibly distorted front-left wheel and guard), damage to the insured vehicle (limited to the front-right bumper and panel), images of the road geometry and line markings near the intersection, and overhead and satellite images with annotated paths. The diagrams illustrate the investigator’s reconstruction of the vehicle movements and place the collision within the short stretch of road between Garswood Road and the nearby service road. Screenshots of messages between the insured driver and the witness show that the insured driver sought witnesses via Facebook shortly after the incident and that the witness responded by offering his assistance. The vehicle rented by the insured driver was a 2023 Kia Seltos leased from Hertz. The report notes the pre-existing condition of the vehicle and confirms it was returned following the accident.
The investigation concludes that the claimant was at fault for failing to give way when changing lanes. No independent expert reconstruction appears to have been undertaken. The conclusions drawn are based on the statements obtained and the physical damage observed.
Police Event Report – Event No. E175359102 (5 July 2024)
The police event report, dated 5 July 2024, confirms that the collision occurred on 26 June 2024 between two registered motor vehicles on The Northern Road, Glenmore Park. The location is described as a straight, sealed, dry road surface, with no traffic lights at the relevant intersection. The incident was classified as a minor traffic crash.
The report records the claimant as having been involved in a “lane change” manoeuvre at the time of the accident. The report notes that no traffic offences were issued and no parties were breath-tested. The claimant’s vehicle required towing from the scene. Medical treatment was not administered at the time of the accident but was sought in the days following.
No formal attribution of fault is made within the report. There is no indication that police attended the scene contemporaneously, and the report appears to be based on information provided by the involved parties via the community portal. No sketches, measurements, or crash scene diagrams are included.
SUBMISSIONS
Claimant’s submissions on liability
The claimant submits that the collision occurred as a result of the insured driver failing to observe her vehicle during an unsafe and premature merge onto The Northern Road from Garswood Road. She contends that, contrary to the insurer’s assertion, her own vehicle was already partially occupying the left lane (lane 1) when the insured vehicle entered that lane and struck the front-left wheel of her car.
The claimant states that she had been travelling northbound in lane 2 for some time in slow-moving peak-hour traffic. Upon approaching the Garswood Road intersection, she intended to position herself in the left lane in order to later turn into Jamison Road. She describes checking her mirrors and blind spot, activating her left indicator, and commencing a cautious merge into lane 1. As she was doing so, the insured vehicle exited Garswood Road, crossed the adjacent bus lane, and entered lane 1. The claimant states that the insured driver failed to observe her vehicle and made contact with the front-left wheel of the Volkswagen, pushing it back toward lane 2. She describes the impact as having disabled her steering and necessitated a tow.
She submits that the pattern and concentration of vehicle damage supports her account. In particular, she points to the absence of longitudinal scraping or side-panel contact, and the localised damage to her front-left wheel and guard, which she submits is inconsistent with the narrative that she veered across and struck a vehicle already travelling beside her. She argues that the location and nature of the damage better supports the inference that the insured vehicle made contact with her while she was already partway into the lane.
She further submits that the short length of road between Garswood Road and the point at which both vehicles turned into a service road—no more than two to three car lengths—makes it unlikely that the insured vehicle could have travelled “20 to 30 metres” in lane 1 as claimed. She contends that the insured driver’s estimate is unreliable and likely overstated. She also notes that the insured vehicle would have had to cross a solid white line after the bus lane to enter lane 1, which she submits indicates that the merge was not undertaken at a lawful or appropriate location.
The claimant draws attention to the road markings at the intersection and contends that the insured vehicle, having emerged from a give-way controlled side street, was obliged to yield to any vehicle already on The Northern Road, including vehicles merging into lane 1. She submits that the driver of the insured vehicle failed to do so, and that this failure to observe surrounding traffic was the direct cause of the accident.
The claimant disputes the credibility and reliability of the witness. She submits that his account is inconsistent with the physical evidence, internally contradictory, and unlikely to be accurate given his reported position several cars back in bumper-to-bumper traffic and his admission that he was on a phone call at the time. She points to a discrepancy between his formal statement and a message sent to the insured driver shortly after the accident, in which he referred to her having been struck “at the back,” which she submits is inconsistent with the actual point of contact. She contends that these inconsistencies undermine any suggestion that the witness had a clear or accurate view of the relevant movements.
In response to the insurer’s reliance on reg 148(2) of the Road Rules 2014, the claimant submits that the provision does not apply unless the insured vehicle was already travelling in the lane at the time of the attempted merge. She argues that, in circumstances where both vehicles were converging toward lane 1 from different directions at approximately the same time, and in the absence of clear evidence that the insured vehicle was fully established in that lane, the rule does not impose fault on her.
She also submits that the insured driver’s own statement—particularly the remark that she “heard the impact” but did not see it—indicates a failure to maintain an adequate lookout. She contends that the position of the sun at the time of day (low in the sky, with Garswood Road facing east) may have contributed to impaired visibility and the insured driver’s failure to notice her vehicle.
Taken together, the claimant submits that the available evidence does not support a finding that she was wholly or mostly at fault. Rather, she contends that the evidence is at least equivocal and, at most, supportive of her position that the insured vehicle entered lane 1 without yielding to a vehicle already merging. She argues that the insurer has not discharged the burden of proof required under s 3.28 of the Act, and that any residual uncertainty must be resolved against the party bearing that onus.
Insurer’s submissions on liability
The insurer submits that the claimant was wholly at fault for the collision which occurred on 26 June 2024, and that she is therefore not entitled to statutory benefits beyond the first 52 weeks under ss 3.11 and 3.28 of the MAI Act. The insurer relies on the application of reg 148(2) of the Road Rules 2014, which provides that a driver who is moving from one line of traffic to another must give way to any vehicle travelling in the line of traffic being entered.
The insurer contends that, at the time of the collision, the insured vehicle had already completed its left turn from Garswood Road, crossed the bus lane, and was lawfully travelling in lane 1 of The Northern Road. It is submitted that the insured driver had travelled a distance of 20 to 30m in lane 1 before the accident occurred. The insurer argues that this constitutes “establishment” in the lane for the purposes of reg 148(2), and that the claimant was therefore required to give way when attempting to merge from lane 2. The insurer submits that the claimant failed to do so and caused the collision by executing a lane change when it was not safe to do so.
The insurer relies on the statement of the insured driver, who described the traffic as heavy and her speed as no more than 20 kmph. The insured driver stated that she did not see the claimant’s vehicle prior to the collision and only became aware of the impact upon hearing it. She later observed that the front-right corner of her vehicle had been struck. It is submitted that the insured driver was proceeding cautiously and was unaware of any vehicle attempting to enter the lane from the right.
In support of its position, the insurer also relies on the statement of the witness, who was travelling in lane 1 approximately three to four vehicles behind the point of impact. The witness reported that he observed the claimant’s vehicle make two attempts to merge left. He described the second attempt as occurring without the use of an indicator and resulting in a soft collision between the front-left tyre of the claimant’s vehicle and the front-right corner of the insured vehicle. The insurer submits that this evidence supports its contention that the claimant initiated the movement that led to the collision and failed to maintain awareness of traffic in the lane she was entering.
The insurer further points to the photographs of vehicle damage included in the factual investigation report. It submits that the location of the damage—to the front-left corner of the Volkswagen and the front-right corner of the Kia—is consistent with an angled side impact caused by the claimant merging left into a space that was already occupied. It argues that the absence of damage along the length of either vehicle supports the view that the insured vehicle was not simultaneously merging or encroaching from another lane, but was instead travelling directly ahead in lane 1 when struck by the claimant’s vehicle.
The insurer maintains that there is no credible evidence suggesting the insured driver acted improperly or failed to keep a proper lookout. It submits that the insured driver’s account is internally consistent and corroborated by the damage patterns and the independent witness statement.
The insurer submits that the claimant failed to meet that standard by not identifying the presence of a vehicle already occupying the lane into which she intended to merge.
In response to the claimant’s suggestion that the insured vehicle was not established in lane 1, the insurer submits that the insured driver had completed her turn, crossed the bus lane, and was proceeding along lane 1 in a predictable and lawful manner. It contends that the proximity of the service road to the intersection does not preclude the insured vehicle having been established in lane 1, and that the claimant’s reliance on distance estimates or sun glare is speculative and unsupported by objective evidence.
The insurer argues that the claimant’s actions were the sole cause of the collision and that her conduct amounts to either total fault or contributory negligence exceeding the 61% threshold required to disqualify her from continued benefits under s 3.28(2) of the MAI Act.
REASONS
The issue for determination is whether the claimant was wholly or mostly at fault for the accident which occurred on 26 June 2024, such that she is disentitled to statutory benefits after the first 52 weeks pursuant to ss 3.11 and 3.28 of the MAI Act. That issue turns on whether, on all the evidence, the insurer has discharged the burden of proving that the accident was caused wholly or predominantly by the claimant’s fault. The standard is one of reasonable satisfaction, but the seriousness of the consequence, namely, disentitlement to all ongoing benefits, demands that the standard be applied with careful regard to the nature, strength and limitations of the evidence available. The correct allocation of that burden is not in doubt. It is for the insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that, on all the evidence, it can be concluded that the accident was caused wholly (or mostly) by the claimant’s fault: Insurance Australia Ltd t/as NRMA v Richards [2023] NSWSC 909 at [45], [55] - [57] and [67].
The insurer relies on reg 148(2) of the Road Rules 2014, which provides that a driver moving from one line of traffic to another must give way to any vehicle already travelling in the line of traffic being entered. The application of that rule presupposes that the vehicle in the destination lane was in fact already occupying that lane, or was established in it at the relevant time. The question of whether the insured vehicle was so established is not answered by assertion. It must be determined on the facts.
The insured driver stated that she had turned left from Garswood Road, crossed the bus lane, and travelled 20 to 30m along lane 1 before the collision. That estimate is not supported by any objective measurement, nor is it reconcilable with the geometry of the road as depicted in the photographic and diagrammatic evidence. The entire stretch of The Northern Road between the Garswood Road intersection and the point at which both vehicles pulled into a nearby service road is unlikely to exceed 15m. No independent investigation or forensic survey was conducted to establish distances or speeds. The submission that the insured vehicle was clearly “established” in the lane for the purposes of reg 148(2) is not borne out by the physical setting.
Nor does the pattern of vehicle damage support the insurer’s narrative. The claimant’s vehicle sustained concentrated damage to the front-left wheel and quarter panel. The insured vehicle sustained damage to its front-right bumper and wheel arch. There is no evidence of scraping, shearing, or damage running along the sides of either vehicle. There is no suggestion of damage to the rear of the insured vehicle. That pattern is inconsistent with a collision caused by a vehicle veering across the path of an already-travelling vehicle. The nature of the impact is more consistent with an angled entry or convergence - one which may have occurred simultaneously, or in close succession, with neither driver fully appreciating the position of the other. That possibility is not excluded by the evidence and must be accounted for.
The insured driver gave evidence that she did not see the claimant’s vehicle before the impact, but heard the collision occur. She later stated that the claimant had not indicated. That observation cannot be reconciled with the earlier admission that she had not seen the vehicle at all. The proposition that a vehicle was struck without being seen, in broad daylight, on a straight road, raises the inference that the insured driver did not conduct a full visual scan of the lane she was entering. The claimant’s submission that sun glare may have impaired visibility for a driver turning eastward at 8.15am in June is not speculative. It is supported by the geography and direction of the road. It is also consistent with the insured driver’s failure to observe a vehicle that, on the insurer’s case, was occupying an adjacent lane and merging slowly into the lane she was entering.
The insurer’s reliance on the witness’ evidence does not improve its position. The witness claimed to be three to four vehicles behind the insured driver at the time of the incident. He stated that the claimant made two merging attempts, and that the second occurred without indication. However, his statement is compromised by several factors. First, he was on a phone call at the time. Second, he claimed to observe fine details of contact location between tyre and wheel arch from several vehicles back in traffic. Third, a message sent by him to the insured driver shortly after the accident, via Facebook, described the claimant as having hit “the back” of the insured vehicle. That description is irreconcilable with the location of the damage and with the version subsequently given in his formal statement. Fourth, his identification as a witness followed a post made publicly by the insured driver after the collision, and the claimant has produced some evidence suggesting a prior professional association between the witness and the insured driver. I do not disregard the evidence entirely, but in the absence of corroboration and in light of its inconsistencies and provenance, it cannot be treated as a reliable or independent basis for a finding of sole or predominant fault.
The insurer’s submissions draw upon well-known authorities on the standard of care required of drivers. Those authorities are not in dispute. Each affirms the principle that a driver must take reasonable care in all the circumstances and must be alert to hazards on the road. But the correct application of those authorities is fact-dependent. They do not resolve the question of who was at fault in this case. They do not displace the burden borne by the insurer, nor do they entitle the Commission to make a finding of predominant fault where the factual basis for doing so remains unclear.
The evidence does not support the requisite standard of reasonable satisfaction that the insured vehicle was already travelling in lane 1 when the claimant began her merge. Nor does it exclude the real probability that both vehicles entered the same lane at or about the same time from different directions. The sequence is inherently ambiguous, and that ambiguity is compounded by inconsistencies in the witness’ evidence, a lack of contemporaneous observation by the insured driver, and the absence of independent reconstruction.
The claimant’s account is not demonstrably incorrect. It is plausible. It is consistent with the damage profile. It accords with the configuration of the road, and it is not displaced by any other source of evidence that compels a contrary finding.
In such circumstances, the insurer has not discharged its burden. It has not led evidence sufficient to persuade the Commission that, on all the evidence, it can be reasonably satisfied that the claimant was wholly or mostly at fault for the accident within the meaning of ss 3.11(2) and 3.28(2).
CONCLUSION
For the reasons herein stated I am reasonably satisfied that:
(a) for the purposes of s 3.11 of the MAI Act, the motor accident on 26 June 2024 was not caused wholly by the fault of the claimant, and
(b) for the purposes of s 3.28 of the MAI Act, the motor accident on 26 June 2024 was not caused wholly by the fault of the claimant.
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