Richards v Insurance Australia Limited t/as NRMA Insurance (No 2)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Richards v Insurance Australia Limited t/as NRMA Insurance (No 2) [2024] NSWPIC 252
CLAIMANT:	Wendy Richards
INSURER:	Insurance Australia Limited t/as NRMA Insurance
SENIOR MEMBER:	Williams
DATE OF DECISION:	15 May 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; statutory benefits claim; whether accident caused wholly by the fault of the claimant for the purposes of section 3.11 and section 3.28; where claimant’s vehicle, without warning, veered to the right, crossed the centreline, and collided with another vehicle; claimant had no recollection of the accident or circumstances leading to it; insurer relied on res ipsa loquitur to support an inference that the accident was caused by the claimant’s fault; evidence of habit and practice relied on by the claimant; whether inadvertence is fault; reliance by insurer on estoppel; whether costs order under section 8.10(4)(b) should be made; reference to Insurance Australia Limited t/as NRMA v Richards, Schellenberg v Tunnel Holdings Pty Ltd, Joy v Phillips, Mills & Co Ltd, Eichstaedt v Lahrs, Lahrs v Eichsteadt, Connor v Blacktown District Hospital, WorkCover Authority (NSW) v Billpat Holdings Pty Ltd, Acatincai v Insurance Commission of Western Australia, Elayoubi v Zipser, R v Gordon (No 4), Phelan v Melbourne Health, Gooley v NSW Rural Assistance Authority (No3), and Pell v The Queen, Davis v Swift, Australian Broadcasting Tribunal v Bond, Sungravure Pty Ltd v Meani, Medida Pty Ltd v Tobin, Aardvark Security Services Pty Ltd v Ruszkowski, Paul Perry Horse Training Pty Ltd v Harker, Davis v Bunn, Luxton v Vines, Anchor Products Limited v Hedges, AAI Ltd trading as GIO v Moon, San v Rumble (No 2), Ho v Professional Services Review Committee; Held – res ipsa loquitor arose for consideration; what occurred was sufficiently unusual to raise a probability that the course of the claimant’s vehicle is to be accounted for by some failure in due care; inference drawn that the claimant’s vehicle veering to the right was a result of her failing to exercise reasonable skill and care in the control and management of her vehicle; the claimant’s failure to exercise reasonable skill and care was causative of the accident; for the purposes of section 3.11 and section 3.28 the accident was caused wholly by the fault of the claimant; exceptional circumstances exist that justify payment of legal costs incurred by the claimant.
DETERMINATIONS MADE:	CERTIFICATE 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident on 21 July 2020 was 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 21 July 2020 was caused wholly by the fault of the claimant.

STATEMENT OF REASONS

BACKGROUND

These proceedings involve disputes between Wendy Richards (claimant) and Insurance Australia Limited t/as NRMA Insurance (insurer) about whether for the purposes of s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017 (MAI Act) a motor vehicle accident on 21 July 2020 was caused wholly by the fault of the claimant.
The disputes were determined by Member Nolan on 14 December 2022.¹ On 3 August 2023 Schmidt AJ set aside the Member’s decision, and remitted it to the Personal Injury Commission (Commission) for determination by a different Member according to law: Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 (Richards). The proceedings were subsequently referred to me for determination.

PROCEDURAL HISTORY

On 8 August 2023 and 17 October 2023 I made directions for the provision of a joint bundle and written submissions. At a preliminary conference held on 14 November 2023, the parties confirmed that they did not seek to call any oral evidence, nor question any witness. The parties confirmed that they each only relied on documentary evidence. Further directions were made. Among other things, the insurer was directed to lodge with the Commission a revised joint bundle that only included documents relevant to the matters in dispute. The matter was listed on 23 February 2024 for the purposes of hearing oral arguments only.
Because objection was taken by the claimant to the insurer relying on a report of Professor Thomas dated 8 February 2019, I listed the matter on 30 November 2023 to deal with the objection. That listing was subsequently vacated, the insurer having notified the Commission in writing on 24 November 2023 that it no longer relied on Professor Thomas’ report.
Various directions were made following the hearing on 23 February 2023, including for the provision of further submissions and a bundle of authorities. The last of this material, the bundle of authorities, was provided to the Commission on 29 April 2024.

LEGAL FRAMEWORK

The claimant is not entitled to statutory benefits more than 26 weeks² after the motor accident concerned if the motor accident was caused wholly or mostly by her fault: s 3.11(1)(a) and s 3.28(1)(a) of the MAI Act. The insurer’s case is that the accident was

¹ Richards v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 721.

² Given the date of the accident, the amendments to s 3.11 and s 3.28 made by the Motor Accident Injuries Amendment Act 2022 (Amendment Act) do not apply: s 2 Amendment Act.

caused wholly by the fault of the claimant.

In my view (and the parties agree), for the purposes of s 3.11 and s 3.28, “fault” means a failure to exercise reasonable care and skill. This mirrors the definition of “negligence” in s 5 of the Civil Liability Act 2022 (CL Act).
The driver of a motor vehicle is required to take reasonable care having regard to all the circumstances: Vairy v Wyong Shire Council [2005] HCA 62 (Vairy) per McHugh J at [26]. The duty is always the same: to conform to the legal standard of reasonable conduct in the light of the apparent risk: Vairy at [25]. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. More often than not, that will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path: Manley v Alexander [2005] HCA 79 per Gummow, Kirby, and Hayne JJ at [11].
The burden of proving that the accident was caused wholly or mostly by the fault of the claimant lies with the insurer. 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 of the evidence, it can be concluded that the accident was caused wholly (or mostly) by the fault of the claimant: Richards at [45] [55] and [67].

ASSESSMENT

The proceedings were listed for assessment on 23 February 2024. No oral evidence was called. Facts that had been the subject of a statement of agreed facts were refined. Those facts, and the submissions made by the parties, are addressed later in these reasons.
Ms Gumbert, of counsel, confirmed that the insurer’s case was that the accident was caused wholly by the fault of the claimant, and that it did not submit, in the alternative, that the accident was caused mostly by her fault.
Ms Gumbert confirmed that the insurer no longer argued that an inference can be drawn that the claimant experienced a micro-sleep, and that this was the cause of her vehicle crossing over the centre lines and colliding with Ms Tadrosse’s vehicle. Further, it was confirmed that the insurer no longer relied on the opinion of Professor Thomas, evidence that was relied on in the proceedings before both Member Nolan and Schmidt AJ.
Finally, Ms Gumbert confirmed that the insurer relied solely on its “res ipsa loquitor case”.
Mr Hallion, of counsel, confirmed that the claimant did not dispute that her vehicle crossed the centre line of New Line Road into the path of the vehicle being driven by Ms Tadrosse.
The parties agreed that if it is found that the accident was caused by the fault of the claimant

and nobody else, it followed that the accident was caused wholly by the fault of the claimant.

THE ESTOPPEL SUBMISSION

The insurer argued that various findings made by Schmidt AJ in Richards gave rise to an issue estoppel (estoppel submission), referring to Tomlinson v Ramsey Food Processing Pty Limited [2015] HCA 28 (Tomlinson) at 22.
The assessment was the first occasion on which the insurer raised the estoppel submission. The submission should have been, but was not, addressed in its written submissions. The insurer was granted leave to make the submissions, and the claimant given an opportunity to make submissions in reply.
Following the assessment the Commission sought confirmation from the insurer as to whether it maintained its reliance on the estoppel submission. If so, the insurer was directed to lodge written submissions addressing that issue, and the claimant was given an opportunity to respond.
In written submissions received by the Commission on 4 March 2024, the insurer confirmed that it relied on the estoppel submission, and argued that the relevant paragraphs and findings in Richards that gave rise to an issue estoppel were at [107] and [130].
The insurer submitted that the “ultimate facts” found by Schmidt AJ went to the following essential elements of whether the claimant was wholly at fault:
(a)whether the actions of the claimant driving into the opposite lane of traffic gives rise to an inference of negligence (Richards at [107]), and
(b)whether there is evidence to support a finding that the claimant was not negligent, because an inference can be drawn that she was forced to respond to an external factor in the agony of the moment (Richards at [130]).
In oral submissions, Mr Hallion argued that Schmidt AJ’s decision did not involve fact-finding in respect of the accident; it was an “administrative intervention” as to whether there had been error in Member Nolan’s decision. He argued that Schmidt AJ was not asked to determine the merits of the case, and that her Honour’s role was not to determine the facts. I agree with this submission.
In her written submissions dated 11 March 2024, the claimant argued that Schmidt AJ “was never asked to make any binding determination on any fact or issue, nor did the judge purport to specifically stating her role was not to substitute her decision for the decision maker[‘s]”. She also argues that the facts and law before the Commission were not before Schmidt AJ and raise different issues.

The claimant argued that, to the extent that estoppel has any application, it operates against the insurer conceding that her actions were due to inadvertence which can be contributory negligence. This argument is developed further in her written submissions at [11] and [14]- [15].
This last submission is rejected. In her oral submissions, Ms Gumbert said this:³
“MS GUMBERT: Member, can I just reply to one point. The evidence says nothing either way about whether there was distraction. It’s not - it’s not correct to say the evidence sort of supports it, that there was no distraction. Who knows. That’s the whole point. There might’ve been distraction, there might’ve been momentary inadvertence, there might’ve been momentary carelessness. The evidence doesn’t say anything about that and that’s the whole point...”
The insurer did not make a representation, nor did it make a concession, that the accident was caused by a momentary lapse of concentration or inadvertence on the part of the claimant. The insurer’s case is that the cause of the claimant’s vehicle moving from its lane of travel, across the centre lines, and into the path of Ms Tadrosse’s vehicle, is unknown, and that in those circumstances, res ipsa loquitur may be relied on.
I was not referred to any authority by the insurer in support of its submission that findings by the Supreme Court in proceedings brought under s 69 of the Supreme Court Act 1970 gave rise to an issue estoppel.
The court in Richards did not make findings on ultimate facts; the Court was undertaking a “judicial review” of Member Nolan’s decision, on the grounds that there was an error of law on the face of the record and jurisdictional error warranting that the Member’s decision be set aside, and that there had been a constructive failure to exercise jurisdiction: Richards at [7]. The proceedings before the Court did not involve an appeal with respect to which s 75A of the Supreme Court Act applied. As recorded in Richards at [132], the Court was not sitting on appeal from Member Nolan’s decision. The orders of the Court were that:
(a)The member’s decision is set aside, and
(b)The matter is remitted to the Personal Injury Commission for determination by a different member according to law.
Finally, the evidence and submissions relied on by the parties in these proceedings was, in material ways, different to that relied on before both Member Nolan and Schmidt AJ.
For all these reasons I am not persuaded that the findings of Schmidt AJ give rise to an issue

³ Transcript page 93 at [15]-[25].

estoppel, as submitted by the insurer.

The insurer argued, in the alternative, that Schmidt AJ’s “findings” are a “legal direction” to the Commission as to how the law must be applied, and when the evidence is the same, the Commission does not have any scope for making a finding that is different to the findings Schmidt AJ made. In this regard, the insurer argued that Schmidt AJ made the following “findings”:
(a)the insurer is entitled to rely on the doctrine of res ipsa loquitor;
(b)the accident is of a kind that does not normally occur without negligence;
(c)there is therefore an inference that the accident occurred due to negligence;
(d)the inference may be displaced or rebutted by other evidence;
(e)there is no other logically probative evidence that would support an inference that the accident occurred for a reason other than negligence, and
(f)the claimant’s “agony of the moment” case is based on no evidence. This, it is argued, is a finding on a matter of law and is binding.
The insurer submitted that while the claimant’s case based on the oil spill was not dealt with by the Supreme Court, and could hypothetically give rise to an inference, on the facts there is no logically probative evidence to support an inference that the accident occurred due to oil on the road. The insurer submits the oil spillage on the road is very likely to have been from the accident, and was not present prior to the accident.
The insurer’s submission that the evidence has not changed “at all” since Schmidt AJ’s findings is not correct; the insurer no longer relies on the opinion of Professor Thomas. Nor does the insurer rely on a submission that an inference can be drawn that the claimant experienced a micro-sleep, and that this was the cause of her vehicle crossing over the centre lines and colliding with Ms Tadrosse’s vehicle. The evidence of Professor Thomas, and the insurer’s micro-sleep submission, were significant planks in the case it ran before both Member Nolan and Schmidt AJ. The case run before me did not include this evidence, nor did it include this submission.
Further, in these proceedings the claimant advances a case based on her habit and practice that was not advanced in the prior proceedings. I am required to make factual determinations on the evidence before me.

REVIEW OF THE EVIDENCE

The body of evidence relied on by the parties in the proceedings before me is not identical to that relied on before both Member Nolan and Schmidt AJ. Other than the body worn camera

footage, all the evidence relied on by the parties is contained in a joint bundle that was lodged in accordance with the directions made on 14 November 2023⁴ (joint bundle). This was confirmed by the parties at the assessment.

In addition to the documentary evidence, the parties rely on body worn camera footage produced by NSW police. The footage records interviews with Ms Tadrosse and Mr Frost at the scene of the accident.
I have read and considered all the documentary evidence, and have viewed and listened to the body worn camera footage.

The claimant’s evidence

Senior Constable Olesen’s notebook contains a version of events provided to her by the claimant on 13 August 2020, 23 days after the accident. The notebook entry records that on 21 July 2020 at about 7.45pm the claimant was driving a Honda Jazz vehicle in a southerly direction on New Line Rd, Dural. In response to being asked what happened, it is recorded that she stated “I don’t know. I have no recollection.” The notebook contains the following exchange:
“QDo you agree you stated earlier you believed you might have had a mirco sleep, due to the medication you were taking?
A         yes
Q        Were you allowed to drive while being on this medication? A           yes doctor didn’t say I couldn’t.
Q        What was the ~~mediatio~~ medication?
A         Champix to give up smoking.
Q        How fast were you travelling prior to the accident?
ANot fast. I am not a speeding driver. I would have just come out of mcdonalds.
Q        What were the traffic conditions like at the time? A I have no idea. I have no recollection at all.
Q        Were you wearing a seatbelt? A           yep I always wear a seatbelt.

⁴ The bundle is dated 24 November 2024 and comprises 299 pages in total, including the index.

Q What was the weather conditions at the time?
AI have no recollection. I have no recollection of the accident or the whole day.

…
Q Is there anything else you wish to tell me? A No I cant remember anything.
…
QWill you now sign my notebook as a true and accurate record of our conversation?

A yes.”

The claimant thereafter signed and dated the entry recorded in the Senior Constable’s notebook.
An application for personal injury benefits dated 30 July 2020, lodged on the claimant’s behalf, was completed by Arielle Nudd.⁵ The application records the time, date, and location of the accident, and states “unsure” where asked to provide a description of the accident.
There is a draft unsigned statement dated 23 February 2021. The statement records at [5] that on 12 January 2021 the claimant participated in an interview with Ms Arida;⁶ that during the interview notes were obtained; and that a statement would be “formed”. I am satisfied that the unsigned statement records what the claimant told Ms Arida when she interviewed her on 12 January 2021.
The draft statement records that the claimant “cannot provide circumstantial information relating to the motor vehicle collision”, that she had no recollection of the collision events prior to impact, upon impact and after impact. The statement also records a number of other matters, including that the claimant had been involved in another collision in 2019, was receiving weekly payments from Allianz, and received the disability support pension. The statement at [12] describes the roadway on New Line Road, and records that the traffic along the roadway “is always heavy”. The statement records that she: had approximately 34 years of driving experience; that she suffered severe injuries as a result of the collision; and that the injuries had affected her physically and mentally. Details of treatment are also provided. At [23] the statement records:

⁵ I infer that this is the claimant’s daughter: see claimant’s statement dated 4 April 2022 at [3].

⁶ An investigator retained by the insurer.

“Whilst being a patient in Westmead Hospital police officers attended and spoke with me regarding the collision. I was under strong medication and wasn’t in a good state. I cannot advise whether or not a statement was obtained. At that point of time, I was in a neck brace. I do not believe the information obtained from the officers to be accurate. I wasn’t in the right state of mind to converse about the collision.”

In the report from quantumcorp dated 10 August 2021 it is recorded that the claimant’s draft statement was sent to the claimant’s solicitor, and that the investigators were subsequently informed that the claimant “will not be providing a statement, as she doesn’t remember the collision”.
The claimant has provided a statement dated 4 April 2022. That statement also records that she has no recollection of the accident or the day of the accident. The claimant states that she had been involved in a previous accident in June 2019, and that the accident:
“[11]… had the effect on my driving and has made me cautious in my driving habits and practice. In particular I make sure that I have no distractions while driving and do not listen to the radio or play music, take or make telephone calls and avoid anything which could distract or have my attentions taken from the road.”
She states at [12] that, given the circumstances in which that accident occurred, she is:
“…very concerned about other vehicles crossing the road as happened to me and so I ensure there is as much space between me and the oncoming traffic as possible by always allowing a space cushion to allow for a response to emergencies and hazards.”
At [18] the claimant states that while she “cannot for certain deny” that she suffered a micro- sleep, she:
“…had never experienced any side effects before or since from the use of Champix and this is just one possibility amongst many other possibilities which I refer to in this statement.”
She goes on to state that she: had never been warned about the possibility of a micro-sleep as a result of taking Champix; had not been warned not to drive; had not had any forewarning to suggest drowsiness or impairment during driving; had not had a “microsleep episode” before or since the accident although she continued using the medication “and always without incident”. She did not experience any symptoms from the Champix.
The claimant states that the evening before the accident she was at home, and went to bed at her usual time of 9.30pm. She awoke the next morning at her usual waking time, 7am. She was excited and planning for family events in the coming days. Prior to the accident she was travelling south from Kenthurst to Balmain to meet her father, who had recently been

diagnosed with terminal cancer.

The claimant states that she is very familiar with the stretch of New Line Road on which the accident occurred, and travelled on that road on a daily basis. She states that proceeding south on New Line Road, as she was, there is “a wide area of open space before the road goes down on [the] side of which dense bush forestation abuts the road”. She states that when the accident occurred there was, on the driver’s side, an acreage on which animals were kept and grazed. She also describes the area (based on photographs of the location) as being both “heavily forested and or open fenced farmland where animals are held”.
She states that:
“[41]…It is known to regular users of the road that wildlife and farm animals can stray onto the road and that care must be taken when using for the risk of wildlife or those animals coming on the road…”
The claimant states that bush that extends up to the road is the habitat for many native animals, including wombats, together with feral animals such as foxes and dogs, and that she has:
“…observed over the years wildlife and other both feral and domesticated animals appear from out of adjoining bush and farms along the road and on occasions try to cross the road. I have also observed dead animals on the side of the road which have been killed while crossing….”
She has, however:
“ …never had to take any evasive action or emergency brake due to the hazard of wildlife or an animal crossing my path but I have seen it situations where it could have happened in daylight.”
The claimant states, having assessed the different accounts of what was observed about her vehicle prior to the collision, that those accounts are consistent with her reacting to the emergence into her path of an animal from the bush or a farm. She states at [48]-[49]:
“My usual habit and practice drawn from my 38 years of driving would be in the agony of the moment to brake heavily if the hazard was at a distance to allow me to avoid it and if appearing suddenly in front to instinctively take evasive action to avoid a collision and limit the risk to the vehicles behind and oncoming traffic. I always ensure that I have a space cushion which because of having been injured in June 2019 I am usually overly cautious and protective against a hazard appearing on the road.
It is my belief that when my vehicle swerved as it has been reported by the witnesses

suddenly and radically then it would have been in response to an emergency and my reaction having regard to my habit and practice is consistent only with there being the presence of something crossing my path on the road.”

The claimant states that the vehicle she was driving when the accident occurred was “sound and in good mechanical order”. She states that since the accident, the vehicle has been the subject of a number of safety recalls, none of which “deal with steering”. The recalls have caused her to believe that the vehicle was “not as safe as [she] expected it to be” and that there may have been other mechanical defects not as yet identified. She goes on to address concerns that she had in relation to mechanical safety of the vehicle, and states that the vehicle was not the subject of inspection or assessment after the accident, and that she had lost the opportunity to have the vehicle examined for defects, including the failure of the airbags. She states that she didn’t know what happened to the vehicle after the accident, and that it was disposed of without her knowledge or permission.
The claimant states that her belief was that a defect in the vehicle provided the most reasonable explanation for the reported sudden loss of control and movement to the right of her vehicle. At [114]-[115], the claimant states:
“My belief in the probability of a mechanical defect is consistent with the recall history of the vehicle. Not that there has been any specific recall for a mechanical failure but consistent with a new vehicle that has a series of issues and the likelihood of more to follow but not yet found.
Leading up the MVA there was nothing in the operation of the vehicle which indicated to me a fault from something that I could see or hear. If there had been then my usual habit and practice would’ve been to take it to the dealer or my mechanic as I had become since June 2019 very cautious about driving and risk.”
The claimant’s statement addresses various safety features in the vehicle that she says were designed to avoid driver distraction and reduce the risk of accidents. She states that it was not her habit to take or make calls while driving, nor has it been her practice to listen to the radio or music while driving, nor use the vehicle’s sat nav system when travelling to a destination she was familiar with (as she was on the day of the accident). She also states that she drives with the driver’s side window wound down. She states that as a result of this “foreign things”, such as insects, can get in the car; on one occasion she found a tarantula. She states at [84] that:
“When I [was] aware of something has entered into the n [sic] the cabin my habit and practice is always to pull over immediately to the side of the road where I can and clear the vehicle of whatever has entered into it before recommencing my journey. This I

believe is what I would have done had I been aware of something in the cabin while I was driving.”

The claimant states that the accounts of the accident provided by witnesses are consistent with her:
“…being placed in a position of peril and having to act in the agony of the moment either to avoid something or due to me being startled possibly by something have [sic] entered the vehicle or me becoming aware of something in the vehicle which caused my [sic] to respond spontaneously and instinctively to the hazard.”
The claimant states that it was unlikely that she had been trying to light a cigarette as she had stopped smoking in order to have surgery. At [89]-[94] the claimant addresses the possibility that she was not wearing a seatbelt. While she does not remember, her evidence is that it was her “usual habit and practice” to wear a seatbelt, and that it “is more probable that was the case on the night”.
The statement also addresses a suggestion that the claimant had a history of mental illness, and that the accident was a suicide attempt; a suggestion that she refutes.
The claimant’s statement addresses the possibility of the road being contaminated, and at [119]-[126] addresses the possibility that she had had a microsleep, and provides further details about her experience taking Champix.
At [127]-[150] the claimant addresses Ms Tadrosse’s evidence, together with aspects of Mr Frost’s evidence as it is said to relate to Ms Tadrosse’s driving prior to the collision.
In the penultimate paragraph of her statement, the claimant states:
“[154]On reflection it is my belief that the MVA may have been due to a microsleep and that I had not been told I couldn’t drive. It seems more likely that the police accepted this as the cause of the MVA and that is why there was no investigation of the MVA or examination of the vehicle as there was nothing to investigate.”
I have considered the annexures referred to in the claimant’s statement, that include photographs of the accident location, screen shots, medical records, and Road User Handbook.

Ms Tadrosse’s evidence

There is body worn camera footage of Ms Tadrosse’s interview by police at the scene of the accident. She confirmed that she was the driver of a vehicle involved in the accident. When asked how fast she was going, she responded “60”, and said that she was going “home”.

When asked what happened, she responded “I had a car accident”, and when asked whether she knew which direction the other car was travelling, she responded: “I assume the other direction because to me it was a head-on”.

When asked whether she was in her lane, she responded: “As far as I’m aware, yes”. She stated that she was in “the left lane”.
Constable Daley’s notebook records Ms Tadrosse’s statement that: “All I remember was a car out of nowhere head on happened so fast”.
A more comprehensive version of events from Ms Tadrosse is recorded in Senior Constable Olesen’s notebook. The account contained in the notebook, that is signed by Ms Tadrosse to indicate her agreement that it is “true and accurate”, was recorded at 10.25pm on the evening of the accident.
The notebook records that, in response to being asked what happened, Ms Tadrosse stated:
“I was on my way home, all of a sudden I saw lights coming at me. [N]ext thing I remember was the impact…”
The notebook records that: Ms Tadrosse was travelling in the left lane, at 60kmph; traffic was “medium”; there was nothing obstructing her vision; she had not drunk any alcohol prior to the accident, and was not on any medication that may have affected her driving. She stated that she didn’t know what she did when she saw the lights. Weather conditions were recorded as being “good”.
Ms Tadrosse also gave a statement to an investigator retained by the insurer dated
7 September 2020. The statement records that she had been driving for approximately five years, had not had her license suspended or disqualified, and that she had not recently been involved in major motor vehicles collisions “deemed at fault”. She had owned the vehicle she was driving when the accident occurred since 2019. No modifications had been made to enhance the vehicle’s mechanics. The vehicle was, prior to the accident, in “excellent condition”.
She states that prior to the accident she had activated the vehicle’s headlights. There were no obstructions on New Line Road that would have affected her vision. She states at [19] that:
“Along New Line Road, Dural NSW the stretch of roadway is clearly visible as there are multiple streetlight posts situated along the kerbside. At the time of the collision the streetlight posts were activated. There was a sufficient amount of lighting along the roadway. Therefore, I do not believe that lighting was a factor in the cause of the collision.”

She states that she is “extremely familiar with the roadway of New Line Road…as this is a daily route to arrive and depart from my work premises”. Her evidence is that “[t]he roadway quality is of good condition as there is no loose gravel”.
Ms Tadrosse states that, prior to the collision, she was travelling along New Line Road, and had passed through the intersection with Hastings Road. She then merged in to the left lane. She goes on to state:
“At this point I was travelling approximately 60km/h in lane one of two. I was travelling in a northerly direction. My first sighting of the Honda Jazz was just prior to impact, I would describe the distance to be extremely short. However, I cannot determine the distance with metres. I also cannot advise the driver’s behaviour utilising the 50m, 25m and 10m scale provided. I cannot advise the speed the other driver was travelling prior to impact. I cannot advise the lane position of the Honda Jazz. I also cannot advise
whether or not the driver was distracted by an electronical device being a mobile phone or navigation.”
She states that she has limited memory of the collision, as the incident “occurred in a matter of seconds”. She states:
“[34]Approaching the intersection of Sebastian Drive and Newline Road, Dural NSW. From my recollection of events I was in lane one of two travelling at a speed of approximately 60km/h. Approximately 150 metres prior to entering the intersection I recall headlights directed towards my way of travel. The headlights were directed from the south bound lane. This vehicle then struck the front offside area with great force.
[35]I was unable to take evasive action as I had no reaction time. Therefore, I couldn’t steer my vehicle into another direction and wasn’t unable [sic] to apply my brakes within that short period of time. The Honda Jazz collided against the Mitsubishi ASX with speed. I cannot advise whether or not I have applied the brakes and had the vehicle stationary seconds prior to the impact.
[36]I cannot advise whether or not the other driver involved attempted to take evasive action in terms of braking and steering the vehicle into another direction.”
Ms Tadrosse states that a NSW Fire and Rescue team arrived at the scene first, and that an ambulance arrived shortly after, and checked her welfare. Ambulance personnel then “travelled towards the other driver…”. She recalled being asked questions by Senior Constable Olesen at the scene, that no statement was taken at that time, and that a statement was taken from her by the Senior Constable some hours later at hospital.

Mr Smith’s evidence

Constable Daley’s notebook⁷ simply records Mr Smith’s details and that he “Saw white cars spine [sic]”. I infer that “spine” should read “spin”.
Mr Smith gave a statement to the insurer’s investigator dated 24 March 2021. He states that he was a front passenger in a vehicle being driven by Mr Broughill that was following a small white five door hatch in a southbound direction on New Line Road. I pause here to note that Mr Broughill stated that he was in the passenger seat of the vehicle.⁸ Neither party has submitted that this anomaly is of significance.
Mr Smith states at [5]:
“There was no unusual behaviour from the vehicle travelling in front. Prior to the collision I did not notice the vehicle swerving. I believe the driver was travelling at a normal speed. In terms of normal, I would describe this as the driver maintaining a safe distance and was travelling according to the speed limit.”
He states that when he briefly looked down at his phone, he heard an impact, looked up, and saw the white vehicle spinning. He did not witness “the first point of impact”. He thought that it was:
“…evident that the smaller white vehicle, travelling in front of us had crossed the lines and merged into oncoming traffic. This judgement comes from observing her vehicle spinning. The other vehicle travelling northbound remained in their lane until impact was made.”
The impact was towards the front corner, rather than head on. He describes the movement of both vehicles following the collision, and states that he, Mr Broughill, and two other males, approached the smaller white vehicle. He states at [16]:
“Timothy [Broughill] was able to open the driver door and we observed the female to be underneath the dashboard area. The top half of her body fell out and I had grabbed her shoulders and neck area to provide support. I could feel the bones in her right shoulder and arm were shattered. I remained in this position for approximately 90 minutes, until the emergency services stabilised the vehicle and the driver, to enable safe removal to the ambulance. From my perspective, I do not believe it is likely that the seat belt was worn. I observed the seat belt to be intact and along the side of the vehicle. We did not

⁷ Joint bundle page 291.

⁸ See his version of events recorded in the police notebook found in the joint bundle at page 207. While his name has been obscured in black, it can be seen on close examination. See also his version of events recorded in the file note dated 2 October 2020.

have to cut the female out of any straps”.

Mr Smith stated that he assisted the NSW Fire and Rescue team and paramedics remove the driver from the car. He states that the other driver was a “young female and was seated along the side of the roadway, beside her vehicle”. He states that Mr Broughill remarked that the vehicle travelling in front “had suddenly merged into the opposing lane impacting the oncoming vehicle”.

Mr Broughill’s evidence

Tim Broughill witnessed the accident. Senior Constable Olesen’s notebook records that he provided the following version of events:
“Driving down Hill newline Road with a small white car in front of us. I was in the passenger seat. I noticed the little white car started swerving into the oncoming traffic and I witnessed it collide with another white SUV car.
Both cars started spinning and myself and driver went to help.”
A file note prepared by Ms Arida, an investigator, records that she spoke to Mr Broughill on 2 October 2020. The file note records that Mr Broughill was a passenger in a vehicle travelling on New Line Road in the southbound lane, behind the Honda Jazz in lane one of one. They had not been following the Honda Jazz for long. The file note goes on to record that:
“The driver behaviour of the Honda Jazz appeared to be normal. There was no swerving prior to the collision.
In regard to the speed limit, he cannot remember the exact details. However, he described the driver (Honda Jazz) to be travelling at the given speed.
The other vehicle involved was travelling in a northerly direction along New Line Road, Dural NSW. This vehicle was positioned in the lane closest to the double lines and the opposing traffic.
The Honda Jazz was travelling along the southbound lane travelling towards a decline. Then the vehicle unexpectedly made a sharp turn and merged into the opposing traffic. As a result, the Honda Jazz collided with the other vehicle travelling north.”
The note records that Mr Broughill rendered assistance and checked on the welfare of both drivers, and remained at the scene for 1.5-2 hours.
I accept that the file note is an accurate record of what Mr Broughill told Ms Arida.

Mr Frost’s evidence

There is body worn camera footage of Mr Frost’s interview by police at the scene of the accident. Mr Frost told police that he was heading north, and was approximately 15m behind the car in front (Ms Tadrosse’s vehicle). He did not see the other car coming. He states that he was “pretty sure” the vehicle he was following “was in her lane”, and that as the accident happened “she was in front of me”, and he was “right in the middle” of the right lane. He stated that the other vehicle (the claimant’s vehicle) “crossed over”. His vehicle was travelling at “60, 62” at the time. The vehicle in front “wasn’t pulling away” from him or slowing down. He and the driver of another vehicle stopped after the accident. He states that they tried to “pull her out…we couldn’t”, and that the other driver “went to her and lied her down”. I am satisfied that the driver they tried to “pull out” was the claimant. Mr Frost was pointing to the claimant’s vehicle when he made that statement. Further, this finding is consistent with his account recorded in the file note discussed below, that I accept.

A file note prepared by Ms Arida dated 22 March 2021 records that she spoke to Mr Frost by telephone that day. The file note records that:
(a)he was travelling northbound along New Line Road in the lane closest to the “opposing traffic”;
(b)there were two parties involved; a young female (that I infer was Ms Tadrosse) and another woman (the claimant);
(c)he was travelling behind the young female, who was also in the same lane as he was travelling;
(d)the other woman was travelling southbound;
(e)the collision occurred where the southbound lanes merge from two to one lane;
(f)he described the driving behaviour of the young female as “normal”. When asked to elaborate, he stated that whilst travelling behind her there was no swerving or driving issues;
(g)prior to the collision and upon impact the young female’s vehicle remained in lane two of two;
(h)he observed the vehicle travelling southbound crossing over the double lines and impacting the young female’s vehicle;
(i)he described the woman as having “suddenly swerved into the opposing lane”, impacting the front offside corner of the other vehicle;
(j)he could not advise the driving behaviour of the other driver prior to the collision.

He recalled another witness telling him that “all of a sudden the vehicle veered or swerved and went out of the lane”;
(k)he saw both vehicles spin and come to rest;
(l)he observed the young female exiting her vehicle;
(m)he and two others “approached the woman’s vehicle”; the woman was screaming, and he observed her to be “wrenched”⁹ in the area below the steering wheel;
(n)there was oil spilling onto the roadway;
(o)he phoned police, ambulance and NSW Fire and Rescue. Emergency services arrived at the scene and “took control” of the incident;
(p)he stated that he didn’t know the reason why the woman merged into oncoming traffic, and noted that there was no wildlife along the roadway which would have caused the driver to swerve, and

(q) he did not believe speed was a contributing factor.

A report from quantumcorp dated 4 January 2022 records that, while Mr Frost declined to provide a statement, he agreed to review the file note dated 22 March 2021, and that following review of the file note, sent an email to the investigators noting some amendments. The email referred to is an email from Mr Frost to Greg Coles dated 21 December 2021. The email states:
“[t]his is all true and correct. Some tweaks however as it hasn’t been written down correctly.”
The email goes on to clarify the position of the claimant’s vehicle on the road, and confirms in this regard that it was “facing the opposite direction as to which it had come from…it was facing North…”.
Mr Frost also clarified that the claimant was “’wedged’ as in she was jammed in…” the area below the steering wheel, not “wrenched”.
Finally, Mr Frost states that reference to “oil spilling on the roadway” recorded in the file note, should be a reference to “liquid” as he did not test if it was oil. He concludes his email by stating “[a]ll else is accurate and correct in my view”.
I am satisfied that Mr Frost carefully considered the file note created by Ms Arida on 22 March 2021 and, subject to the “tweaks” he referred to in his email, it is an accurate

⁹ Note the correction referred to below in Mr Frost’s email of 21 December 2021; it should read “wedged”.

account of his recollection of the matters referred to. I am not persuaded, as submitted by the claimant, that Mr Frost had “ste[pped] in to become an advocate”. I am satisfied that he is an independent witness.

Mr Perton’s evidence

Craig Perton was a witness to the accident. A file note dated 18 March 2021, recorded by Ms Arida following a telephone conversation with Mr Perton, records his recollection of events. I am satisfied that the file note is an accurate record of what Mr Perton told Ms Arida on 18 March 2021.
Mr Perton was travelling northbound along New Line Road in lane one of two. Traffic density was “moderate”. There was a young female driver travelling northbound. She was “travelling according to the roadway conditions in terms of speed”. The vehicle was not positioned far from other motorists and was travelling at the speed of surrounding traffic. The collision occurred “in a matter of seconds”. He did not observe the point of impact, was unable to determine which vehicle had merged across the opposing traffic, and could not describe the driving behaviour of the vehicle travelling southbound.
The file note records that Mr Perton immediately pulled over to render assistance, that he approached the driver’s side door, and that “the young female” was conscious. He opened the door to help release the “young female”. He did not approach the other vehicle as there were “a number of individuals surrounding that area”. Once the young female was released, he assisted her to the side of the roadway and laid her on the ground. The other driver was trapped in the vehicle. Emergency services subsequently attended the scene.
While the file note records that Mr Perton provided a brief statement to police at the scene, other than his details on page 69-70 of Constable Daley’s notebook,¹⁰ I have not been referred to, nor have I identified, any version of the accident provided by him that is recorded in the police note books.

Senior Constable Olesen’s evidence

There is a transcript of interview between Ms Arida and Senior Constable Olesen dated
22 September 2020. The Senior Constable confirmed that she carried out the investigations into the accident, and expressed her opinion as to what had occurred.¹¹
The transcript records the following exchange:

“Q55 …Were all persons wearing their seatbelts?

¹⁰ Joint bundle pages 218-219.

¹¹ See A35 in the transcript.

A55The driver two was – driver one, I’m not a hundred percent sure of, as when I spoke to – because I was – the fire brigade – the ambos, and one of the witnesses – the witness got to her first, advised me that she didn’t actually have to unclick the seatbelt off [the claimant].

Q56 Okay.Yes.Okay.

A56 It was already unclicked…

Q57 Okay.

A57- - - which, again when you hear that in the same when I spoke to the firies, and ambos. None of them had to actually cut the seatbelt, it was already up.”

The following exchange is recorded:

“Q78 ... Were there any distractions to either party prior to the collision?

A78 So, after speaking to driver one — Q79 Yeah.
A79— she advised me she - under caution, as well, she could possibly have had a micro sleep due to the medication that she was - given to her by a doctor, which is a possible side effect, which was to get off nicotine.

Q80 Yep - yep.
A80And, she said that, that could have cost - that would have been a possibility that she could have had a micro sleep. And, she’s certainly not ruling it out.”

The Senior Constable refers to oil leaks from both cars, and that the “fluids of the vehicle had come out”. As to the rest positions of the vehicle following the collision, she stated:

“Q86 Okay. And, if you can describe the final resting position of the vehicles?

A86So, as I say vehicle one, is in the southerly - in a southbound lane, facing in a northerly direction, partly facing towards - like facing towards - the front end facing towards, the north bound lane, but so the back end is facing like a wall there, or like there’s construction happening but I think that’s sort of just would be up and behind.”

She states that “…Wendy couldn’t get out. She was still in the car when I got there. And Jodie was laying on the ground…”.
The transcript also records Senior Constable Olesen reading the witness statements from

her notebooks. She described the accident scene as being “all lit up”, a reference to lighting on the roadway. While it was night time, it was “pretty bright”. She stated that the roadway conditions were “good. They were dry”. There were no potholes or loose gravel.

The Senior Constable, at A144 in the transcript, explains why she deemed the claimant to be “at fault” for the accident. Despite this conclusion, she used her discretion not to issue a traffic infringement. Neither alcohol nor drugs were factors in the accident. Blood alcohol tests had returned negative for both drivers.
I have noted the corrections made to the transcript by Ms Arida in a “Transcription Review” dated 29 September 2020.

Other evidence

I have considered the NSW Police records (including site diagram and photographs taken at the scene), the NSW Ambulance report, Westmead hospital notes, and quantumcorp investigation reports. I will address relevant aspects of this evidence in the findings that follow.

The claimant’s evidence of practice and habit – overview and discussion

Forceful and comprehensive submissions, both written and oral, have been made by the claimant’s legal representatives with respect to inferences and findings that should be drawn from her evidence as to her practice and habit. It is argued that the law presumes a continuance in the state of a person’s conduct and mind until the contrary is shown, and that this presumption went unrebutted. It is argued that on the evidence of the independent witnesses the inference to be drawn is that the claimant would have continued driving in a careful manner but for an intervening event.
It is submitted that a critical distinction between the present proceedings and those considered by Schmidt JA in Richards is that the circumstantial evidence of the claimant’s usual habit and practice is relied upon as probative and evidence of the fact of her conduct at the time of the accident. This evidence, it is argued, is not conjecture and is given as evidence of the asserted fact to support the drawing of an inference which on the balance of probabilities is inconsistent with fault.
The claimant submits her evidence of habit is corroborated by witnesses travelling behind her, who observed that she was driving within the speed limit of 60kmph, at normal speed, did not observe any unusual behaviour, and that she was maintaining a safe distance before her vehicle suddenly pulled to the right.
The claimant’s evidence that she is in the habit of careful driving is relied on, as is her evidence that the 2019 accident had made her cautious in her driving habits and practice.

The claimant also relies on her evidence that she: makes sure she has no distractions while driving; does not listen to the radio or play music, take or make telephone calls while driving; and that she avoids “anything which could distract or have [her] attentions taken from the road”. She argues that her evidence in this regard is corroborated by the evidence of the witnesses traveling behind her before the accident.

The claimant argues that her evidence of past travel and familiarity with the road satisfies the preconditions “laid down in Wigmore for admissibility namely ‘numerous enough to base an inference of systematic conduct’ and ‘occurred under substantially similar circumstances’”.
In oral submissions, the insurer did not dispute that the claimant’s habit and practice is to be a careful driver. However, the insurer argued that what cannot be done is make findings that this evidence is capable of supporting an inference that she was not negligent in the occurrence of the accident.
The claimant relies on a number of authorities in support of her submissions: Joy v Phillips, Mills & Co Ltd [1916] 1 KB 849, Eichstaedt v Lahrs [1960] Qd R 48, Lahrs v Eichsteadt (1961) Qd R 457, Connor v Blacktown District Hospital [1971] 1 NSWLR 713, WorkCover Authority (NSW) v Billpat Holdings Pty Ltd (1995) 11 NSWCCR 565, Acatincai v Insurance Commission of Western Australia [2003] WASCA 39, Elayoubi v Zipser [2008] NSWCA 335,
R v Gordon (No 4) [2016] NSWSC 312, Phelan v Melbourne Health (2019) VSCA 205 BC 201909301, Gooley v NSW Rural Assistance Authority (No3) [2019] NSWSC 1314, and Pell v The Queen (2020) [2020] HCA 12.
In Eichsteadt, Townley J stated that:
“It must be borne in mind that what is sought to be established is not a general disposition to exercise care in riding or managing a bicycle but a habit to perform a particular action in a particular place in a particular manner and by such evidence tend to establish that the particular action was performed in the particular manner in that place on the relevant occasion.”¹²
The evidence in Eichsteadt came from a witness who had seen the injured plaintiff walk his bike down a hill on a number of occasions. The evidence was found to be admissible, and an inference drawn from it. The was an appeal to the High Court, where it was held that the evidence as to “habit” was admissible.
In R v Gordon, Campbell J said this:
“[15] …Evidence of a witness that “I believe I did this because I always do it”, is of

¹² Emphasis added.

its nature inscrutable and, therefore, difficult to test. In my view the proper approach is that of Asprey JA…which essentially treats evidence of practice as a species of circumstantial evidence. Evidence of practice lays a foundation for an inference that the practice was followed on a particular day. That is the proper basis of its admissibility. This seems to have been the approach adopted by Priestly JA, in [Billpat Holdings] where his Honour referred to “circumstantial evidence, including the worker’s statement of his habit of using seat belts, which supported an inference that he probably was wearing the seat belt at the relevant time.”

Phelan was a medical negligence case. It was held that evidence as to usual practice is both admissible and, on occasions, can be decisive. The relevance and admissibility of such evidence was said to be of “long standing pedigree”. The “pedigree” referred to included Joy, Eichstaedt, and Connor.
Elayoubi was also a medical negligence case involving evidence of “usual practice”. In that case it was held by Basten JA (Allsop P and Beazley JA agreeing) that:
“[86]… Evidence of usual practice may be of assistance in circumstances where mechanical steps or routine tasks are in issue and the witness who supposedly undertook the task on a particular occasion has no recollection of the occasion. The weight to be given to such evidence will depend upon the possibility or likelihood of departure from such practice. However, the present case was not concerned with a mechanical step or routine task: it was concerned with a quite unusual procedure in professional practice. Nor was the task itself in any sense mechanical: rather, it involved conveying important medical information to a patient in a hospital ward.”
Acatincai involved a motor accident. Evidence of the deceased driver’s widow with respect to his driving, including with respect to a particular corner, was held to be clearly admissible.
Gooley involved the evidence of a banker with respect to his usual practice as to matters he would have disclosed to customers, in circumstances where he had little, if any, recollection of particular dealings with particular customers. It was held that the evidence of usual practice was admissible, and that a court can be invited to draw an inference from that evidence. Whether the court draws the inference depended on how compelling the evidence makes it.
Pell dealt with religious ritual and practice. The High Court observed at [93] that evidence of a person’s habit or practice of acting in a particular way to establish that the person acted in that way on a specific occasion may have considerable probative value.

In Neville v Lam (No 3) [2014] NSWSC 607, Beech-Jones J said at [106], with respect to evidence of usual practice, that “[o]ne difficulty with such assertions is that they are hard to scrutinise”, a difficulty referred to by Campbell J in Gordon.
What the cases make clear is that evidence of habit and usual practice is admissible, and may be of assistance, in circumstances where mechanical steps or routine tasks are in issue and the witness who supposedly undertook the task on a particular occasion has no recollection of the occasion. The weight to be given to such evidence will depend upon the possibility or likelihood of departure from such practice. The evidence lays a foundation for an inference that the practice was followed on a particular occasion. The weight to be given to the evidence needs to be assessed on a case by case basis.
The presumption of continuance is no more than a convenient way of describing a process of logic or reasoning involving the drawing of inferences from established facts.¹³
Some of the claimant’s evidence addresses her general disposition to exercise care while driving, and is of a different character to the evidence of habit admitted in Eichsteadt. The evidence she gives in her statement at [11], that she is cautious in her driving, is an example. It is not evidence that she had a habit to perform a particular action in a particular place in a particular manner.
There is evidence that prior to the accident the claimant was driving in a manner consistent with her disposition to exercise care. However, something occurred that caused her vehicle to act as it did. Whether the accident was caused by her fault is a matter to be determined on the whole of the evidence. I give the claimant’s evidence as to her general disposition to exercise care while driving limited weight.
Specific aspects of the claimant’s evidence about her habit and practice are addressed later in these reasons.

FINDINGS - FACTS

Agreed facts

Critical facts relevant to the resolution of the proceedings were agreed between the parties at the assessment. I make the following findings that are agreed and supported by the evidence:
(a)at approximately 7.25pm on 21 July 2020 the claimant was driving a white Honda Jazz in a southerly direction on New Line Road, Dural;
(b)on the same date and time Ms Tadrosse was driving a white Mitsubishi ASX

¹³ JD Heydon, Cross on Evidence (LexisNexis, 14^th ed, 2024).

station wagon in a northerly direction on New Line Road, Dural;

(c)each vehicle was travelling within the speed limit of 60kmph;
(d)at the location of the accident there was:
(i) 1 lane for vehicles travelling in a southerly direction, and
(ii) 2 lanes for vehicles travelling in a northerly direction;
(e)immediately before the collision each driver was travelling in the lane closest to the centre line;
(f)the vehicle driven by the claimant veered to the right, crossed the centreline, and collided with the vehicle driven by Ms Tadrosse;
(g)the vehicles collided approximately 150m south from Sebastian Road;
(h)the weather at the time of the accident was fine, and
(i)the claimant has no recollection of the accident or the events leading up to the accident.

Road conditions and lighting

I find that New Line Road in both directions was sealed, and that when the accident occurred the road was dry.
I am satisfied, on balance, that while the accident occurred at night and there was no natural light, there was street lighting at the location of the collision. In this regard, I accept as accurate the finding recorded in the police report that street lighting was on. Further, in the body worn camera footage of Mr Frost’s interview at the scene, and in some of the photographs taken by NSW Police, illuminated street lighting can be clearly seen. I accept Senior Constable Olesen’s evidence, recorded in the transcript of interview with
Ms Arida, that the location of the collision was “pretty bright” and “all lit up”. I also accept Ms Tadrosse’s evidence that there was lighting along the roadway.

The claimant’s driving prior to the collision

Mr Smith and Mr Broughill were travelling behind the claimant’s vehicle in a southerly direction on New Line Road. Mr Smith states that prior to the collision there was no unusual behaviour from the vehicle travelling in front; he did not notice the vehicle swerving; he believed that the driver was maintaining a safe distance, and was travelling according to the speed limit. Mr Smith did not, however, see the collision, having briefly looked down at his phone.

Mr Broughill’s account, provided to police at the scene, was that he noticed the claimant’s

vehicle start to swerve into the oncoming traffic. He told an investigator on 2 October 2020 that they had not been following the claimant’s vehicle for long. He stated that the driver behaviour “appeared to be normal”, that there was no swerving prior to the collision, and that the vehicle unexpectedly made a sharp turn and merged into the opposing traffic.

The evidence of Mr Smith and Mr Broughill satisfies me that prior to veering to the right, and crossing the centreline, the claimant was traveling at a speed of not more than the 60kmph limit, and had not been driving erratically.

Headlights

I find that the headlights on the vehicles driven by Ms Tadrosse and the claimant were illuminated immediately before the accident. Ms Tadrosse’s evidence, as recorded by police on the evening of the accident, was that she saw “lights coming at [her]”. The lights she was referring to were the headlights on the claimant’s vehicle. In her statement dated
7 September 2020, Ms Tadrosse stated that she had activated her headlights as it was night- time. I accept her evidence in this regard. Finally, neither party has argued that the headlights on the vehicles involved in the accident were not illuminated.

Ms Tadrosse’s vehicle

I find that when the collision occurred, Ms Tadrosse’s vehicle was wholly in the northbound lane closest to the centre line. The claimant does not submit otherwise, and there is no evidence that has been drawn to my attention that would support a contrary finding.

Impact and rest position of the vehicles

I find that, after veering to the right and crossing the centreline on New Line Road, the front driver’s side of the claimant’s vehicle collided with the front driver’s side of Ms Tadrosse’s vehicle. This finding is supported by the damage to the vehicles depicted in the photographic evidence and the evidence of the witnesses, including Mr Smith.¹⁴
The police report includes a site diagram completed by Senior Constable Olesen on
9 August 2020.¹⁵ I am satisfied that the diagram is an accurate depiction of the Senior Constable’s observations, made at the accident scene, of the approximate position of the vehicles when the collision occurred and the position at which each vehicle came to a rest after the accident. As to this last matter, I consider that, having attended the accident scene shortly after the collision, and having seen the position of each vehicle on New Line Road, Senior Constable Olesen’s depiction of the rest positions of the vehicles in the diagram is

¹⁴ Statement of Geoffrey Smith dated 24 March 2012 at [21] and [22].

¹⁵ Joint Bundle page 221.

accurate.

On the basis of:
(a)the diagram prepared by Senior Constable Olesen;
(b)Senior Constable Olesen’s evidence that the claimant’s vehicle came to a rest in the southbound lane facing in a northerly direction¹⁶;
(c)the photographs taken at the scene by police;
(d)Mr Frost’s evidence that the claimant’s vehicle was positioned approximately 70m away from Hastings Road facing the opposite direction, and
(e)Mr Smith’s evidence that “the smaller white vehicle spun and became positioned towards the centre of the roadway, facing north”.¹⁷
I find that after the collision the claimant’s vehicle came to rest in the southbound lane, facing in a northerly direction.
I accept Mr Smith’s evidence that, after it spun and became positioned towards the centre of the roadway facing north, the claimant’s vehicle was in a position some metres from the point where the collision occurred.¹⁸
The evidence, including the diagram prepared by Senior Constable Olesen, supports a finding that the vehicle driven by Ms Tadrosse came to rest on the verge to the left of the traffic lanes for vehicles travelling in a northerly direction on New Line Road. In this regard, Mr Frost recalled that her vehicle was “positioned off the roadway”.

The oil or other liquid on the road

The parties agreed that there was oil on New Line Road. The insurer’s case was that it is overwhelmingly likely that:
(a)given the position of the oil on the road;
(b)a very significant accident had occurred;
(c)there is no evidence that would suggest that the claimant’s driving was consistent with skidding or slowing on oil on the road, and
(d)the oil on the road “was from the accident”, and was not on the road prior to the accident.

¹⁶ Transcript of interview between Angelese Arida and Senior Constable Olesen dated 22 September 2020 at A86.

¹⁷ Statement of Geoffrey Smith dated 24 March 2012 at [13].
¹⁸ Statement of Geoffrey Smith dated 24 March 2012 at [13].

In the insurer’s submission, the oil was located south of the impact point, near the rest position of the claimant’s vehicle.
The claimant’s case is that an inference could be drawn that there was oil on the road prior to the collision, and that the presence of the oil may explain why her vehicle crossed onto the other side of the road. The claimant submitted that the oil may be as a result of the collision, or it may be “something else”, that it “goes into the possibilities”, and cannot be discounted.
The joint bundle includes a number of photographs taken at the accident scene. I am conscious that care must be taken when using photographs which are tendered in evidence in factual inquiries. Each case will depend on the particular photograph and the particular purpose for which it is sought to be deployed: Taitoko v R [2020] NSWCCA 43 at [81]. In Herne Investments (NSW) Pty Ltd v Don Watson Pty Ltd [2016] NSWCA 72, Sackville AJA said at [42]:
“The authorities warn that care must be taken in relying on photographic evidence, bearing in mind that photographs are not always easy to interpret for forensic purposes. [See Port Macquarie Hastings Council v Mooney [2014] NSWCA 156; 201 LGERA 314 at [47] (Sackville AJA, Emmett JA and Simpson J agreeing), and authorities cited there]. Most of these warnings have been given in relation to photographs taken after the relevant events have occurred. Photographs taken or videos filmed contemporaneously with the relevant events may provide cogent evidence that enables a court to resolve disputed factual issues. The probative value of the contemporaneous evidence of this kind will, however, depend on the nature and quality of the photograph or video evidence and the issues which need to be resolved.”
Mr Hallion drew my attention to the photographs on pages 167 and 174 of the joint bundle. A clearer version of the photograph on page 174 is found on page 240. I drew the attention of both counsel to the photographs on pages 169 (also at page 235), 222 and 223 of the joint bundle.
The NSW Police Force COPS report records that police attended the accident scene from
7.39pm until 9.39pm on 21 July 2020. I accept that the COPS report is accurate in this regard. I am satisfied that the photographs to which I have earlier referred were taken at the scene by a member of NSW Police at some time during the period that police were in attendance at the accident scene. I am satisfied that these photographs are of sufficient quality and resolution to make the findings that follow.
I am satisfied, and I find, that each of the photographs to which I have earlier referred depict the claimant’s vehicle in the position it came to rest after the accident. In this regard, I am satisfied that the word “JAZZ” can be seen on the grill/front bonnet of the vehicle depicted on

page 223.

I am satisfied that:
(a)the photographs on pages 222, 223, 232, 235, and 240 clearly depict liquid on the road;
(b)the liquid on the road seen in the photograph on pages 222, 223, 232, is directly in front of the claimant’s vehicle;
(c)the photographs on pages 235 and 237 show the liquid present on the southbound lane in front of the claimant’s vehicle stretching across the lane in an arc to the first of two marked centre lines and into the northbound lane, and
(d)the photographs on pages 235 and 237 depict a dark stain from the liquid that covers an area from the driver’s side of the claimant’s vehicle across the two dividing lines on New Line Road, and onto the other side of the road.
Given that the claimant’s vehicle came to rest in the southbound lane, facing in a northerly direction, at a different position on New Line Road to where the collision occurred, and given the proximity of the liquid on the road to the front of the claimant’s vehicle, I am satisfied, on balance, that the source of the liquid on the road that is depicted in the photographs to which I have referred, was the claimant’s vehicle, and that the claimant’s vehicle leaked the liquid onto the road following, and as a result of, the collision. I find that the liquid depicted on the road in the photographs to which I have earlier referred was the “fluid” referred to in the COPS report and the “liquid” referred to by Mr Frost.
Additionally, there is a photograph of Ms Tadrosse’s vehicle on page 227 of the bundle. There is a dark patch on the road proximate to the driver’s side front wheel and bumper. The patch appears to be liquid. The proximity of the liquid to the engine of the vehicle leads me to find, on balance, that the source of the liquid was Ms Tadrosse’s vehicle, and that the liquid emanated from her vehicle consequent upon the collision.
Mr Frost told an investigator on 22 March 2021 that he thought there was oil spilling onto the roadway.¹⁹ Mr Frost subsequently sought to correct his version of events in this regard,²⁰ noting that the substance on the road “was a liquid”, and that he “didn’t test it was oil”.
The parties agree that there was oil on the road. The COPS report records that there was “fluid leaking” at the scene. In her interview with the investigator instructed by the insurer,²¹ Senior Constable Olesen stated that “there [were] oil leaks from both cars”. Given the

¹⁹ File note of the telephone conversation between Ms Arida and Mr Frost on 22 March 2021.

²⁰ Email from Mr Frost to Greg Coles dated 21 December 2021.
²¹ Transcript of interview between Ms Arida and Senior Constable Olesen dated 22 September 2020 at A83.

evidence to which I have referred, I consider it more probable than not that the liquid on the road depicted in the photographs is oil. If I am wrong, and the liquid was not oil, I am nonetheless satisfied that the liquid emanated from the two vehicles involved in the accident.

There is no probative evidence that supports a finding, on the balance of probabilities, that there was oil or other liquid on New Line Road in the southbound lane before the accident.
The overwhelming inference is, and I find, that the oil on New Line Road was a result of the accident. That being the case, I am not persuaded that the oil on New Line Road was in any way causative of the accident.

Was the claimant wearing a seat belt prior to the accident?

The “Case Description” in the Ambulance Electronic Medical Record relating to the claimant states, relevantly, “Hx pt²² unrestrained driver of compact vehicle involved in head on collision at high speed”. The COPS report records, as it relates to the claimant, that a seat belt was “not worn”.
The claimant addresses the COPS report entry in her statement from [89]-[94]. Among other things, she states that: it is instinctive for her to put on the seatbelt whenever she gets into the car; that she believes seatbelts are life-saving; that her opinion in this regard stems, at least in part, from a “near death experience” as a result of a motor accident in June 2019. She states that her “habit and custom” was to wear a seatbelt, and that “it would be [an] exceptional situation for me not to”. She states that she did not consider that:
“there was anything exceptional about the trip that would cause [her] not to wear a seat belt and it is more likely [she] had released the seat belt in order to release [herself].”
In addition to providing evidence as to her habit and custom, the claimant proposes an alternative explanation for the reports that she was not wearing a seat belt; that someone else had released the seat belt prior to Mr Frost arriving. This explanation is not supported by the evidence.
Mr Frost stated that he and two others “approached [the claimant’s] vehicle. The [claimant] was screaming, and [he] observed her to be “wedged” in the area below the steering wheel”.²³ I accept his evidence in this regard.
In his statement dated 24 March 2021, Mr Smith stated that he, Mr Frost, and two others approached the claimant’s vehicle, having stopped to render assistance immediately after

²² I have inferred that “Hx” is shorthand for “History”, and “pt” shorthand for “patient”.

²³ File note of telephone conversation between Ms Arida and Mr Frost dated 22 March 2021. See also amendments made by Mr Frost in an email dated 21 December 2021, in which Mr Frost stated that the word “wrenched” should be replaced with “wedged”, “as in she was jammed in”.

witnessing the accident. He goes on to state that:
“[16]Timothy [Broughill] was able to open the driver door and we observed the female to be underneath the dashboard area. The top half of her body fell out and I had grabbed her shoulders and neck area to provide support.
I could feel the bones in her right shoulder and arm were shattered. I remained in this position for approximately 90 minutes, until the emergency services stabilised the vehicle and the driver, to enable safe removal to the ambulance. From my perspective, I do not believe it is likely that the seat belt was worn. I observed the seat belt to be intact and along the side of the vehicle. We did not have to cut the female out of any straps.”

I find that Messrs Frost, Smith and Broughill were the first people to reach the claimant after the accident. The evidence does not support a finding that someone else, including the claimant, had released the seatbelt prior to them arriving at her vehicle.
I accept Mr Smith’s evidence that when he and others first attended the claimant’s vehicle he observed the seatbelt to be intact and along the side. I consider it improbable that the claimant released her seatbelt prior to Messrs Frost, Smith and Broughill arriving at her vehicle shortly after the accident occurred. Further, I consider it unlikely that, had she been wearing a seat belt, the claimant would have been found wedged in the area below the
steering wheel. While it may have been the claimant’s habit and custom to wear a seat belt, I draw an inference from Mr Smith’s evidence that the claimant was not wearing a seatbelt when the accident occurred.
In her statement, the claimant refers to her vehicle having been the subject of a number of recalls since the accident for safety defects involving the seatbelt. She does not argue, however, that any such defect explains Mr Smith’s evidence that the seatbelt was intact and along the side of the vehicle. I am not persuaded that a defect in the seatbelt explains the position in which it was found by Mr Smith.

Was there an animal or other hazard on the road?

The claimant argues that the most likely possibility that explains the accident is that she encountered an obstacle or hazard, probably wildlife, feral or domesticated animal straying on to the road. The claimant argues that it is logical on the probative evidence that the only inference to be drawn is that she encountered some unexpected hazard that caused her to pull to the right.
She submits that relevant facts are established through the independent witnesses, in particular Mr Frost, and her evidence of her habit of careful driving, motivation and usual

practice.

The insurer argues that the claimant’s evidence, based on her usual driving habit and practice, is not reliable and should be given little weight. The insurer submits there is no logical or probative evidence from which it could be inferred that the claimant encountered some unexpected hazard such as wildlife on the road that caused her to veer suddenly across the centrelines, causing the collision.
The claimant points to the evidence that she was driving as a “reasonable driver” until her vehicle was observed to be pulled to the right without warning.
The claimant’s evidence, that I accept, is that when the accident occurred there was, on the driver’s side, an acreage on which animals were kept and grazed. She also describes the area, based on photographs of the location, as being both “heavily forested and or open fenced farmland where animals are held”. Her evidence is that she has observed over the years wildlife and other animals appear from adjoining bush and farms along the road and on occasions try to cross the road. The claimant states that: she has observed dead animals on the side of the road which have been killed while crossing; when driving she is always “extra careful” and aware of the risk; and that since the 2019 accident she is “usually overly cautious and protective against a hazard appearing on the road.”
At [45] the claimant states that she has never had to take any evasive action or emergency brake due to the hazard of wildlife or an animal crossing her path but had seen situations where it could have happened in daylight.
At [47] of her statement, the claimant states that she “cannot say with certainty” that she may have reacted to a hazard in her path, and expands on what she would have done in response to a hazard on the road, based on her “usual habit and practice”. The claimant
states at [49] that it is her “belief” that when her vehicle swerved it would have been in response to an emergency, and that her reaction, having regard to her habit and practice, is consistent only with there being the presence of something crossing her path on the road. I accept that this may be the claimant’s belief.
The claimant argues at [3.73] of her written submissions dated 11 April 2024 that, to appear probable the habit and practice (a) should be numerous enough to base an inference of systematic conduct and (b) should have occurred under substantially similar circumstances, so as to be naturally accountable for by a system only, and not as casual recurrences. Neither of these criterion are satisfied given the claimant’s evidence that she has never had to take evasive action or emergency brake while driving due to the hazard of wildlife or an animal crossing her path.

It is difficult to understand how an individual can be said to have developed a habit and practice with respect to a set of circumstances they have never encountered. I am not persuaded that the claimant had an established “habit and practice” with respect to how she would respond to an animal crossing her path while she was driving.
The claimant has made submissions addressing the evidence of Mr Frost, and to which I have had regard. Mr Frost’s evidence relevant to this subject matter was recorded by the investigator in a file note dated 22 March 2021, with respect to which Mr Frost agreed, subject to the “tweaks” made in his 21 December 2021 email, is accurate and correct. Mr Frost stated that he:
“…doesn’t know the reason why the [claimant] merged into oncoming traffic. He noted there was no wildlife along the roadway which would have caused the driver to swerve.”
I accept Mr Frost’s evidence. He was not, as submitted by the claimant, an advocate. I am satisfied that Mr Frost’s evidence supports a finding that he did not see any wildlife on New Line Road before or after the accident. Further, had he seen any other type of animal, I infer that he would have said so.
The claimant’s evidence, discussed earlier, that describes the area abutting the road (including bush that extends up to the road) and her observations of animals, alive and dead, on the side of the road, raise as a possibility the presence of an animal on the road immediately before the accident. There is also the evidence, that I have accepted, about the manner of the claimant’s driving before her vehicle veered to the right. I am not, however, satisfied that this evidence elevates the possibility that there was an animal or other hazard on the road to a probability.

I am not satisfied there is probative evidence that supports a finding on the balance of probabilities that there was an animal or other hazard on the road. Mr Frost, the only witness to address the matter, did not see any wildlife.
Having found that the evidence does not support a finding that there was an animal or hazard on the road, I reject the claimant’s submission that her vehicle veered to the right as a result of her acting in the agony of the moment.

Was there a mechanical defect in the claimant’s vehicle?

The claimant argues that it is possible the accident was caused by a defect in her vehicle. Her statement addresses her concerns in this regard, together with her concerns that the vehicle was not appropriately inspected after the accident, either at the request of the police, the insurer, or on her behalf.

While stating that, after the accident she was very concerned about the mechanical safety of the vehicle, her evidence is that none of the safety defects to which the recalls have referred “deal with steering”. She also stated at [114] that her belief in the probability of a mechanical defect is “consistent with the recall history of the vehicle”, and continued “[n]ot that there has been any specific recall for mechanical failure…”.
The claimant’s evidence is that at the time of the accident her vehicle was “near new”, and that as far as she was aware it was sound and in good mechanical order. There is no evidence that the claimant had identified a problem with the steering, or any other defect prior to the accident. In this regard, she stated that:
“[115]Leading up [to] the MVA there was nothing in the operation of the vehicle which indicated to me a fault from something that I could see or hear. If there had been then my usual habit and practice would’ve been to take it to the dealer or my mechanic as I had become since June 2019 very cautious about driving and risk.”
There is no probative evidence that supports a finding on the balance of probabilities that there was, at the time of the accident, a defect in the claimant’s vehicle that resulted in it veering to the right into the path of the vehicle being driven by Ms Tadrosse.

Was the accident caused by an attempt by the claimant to commit suicide?

I accept the claimant’s evidence that she was positive about getting her life back on track following surgery, and that she was looking forward to attending both an annual remembrance for her grandfather’s birthday and her youngest daughter’s birthday. I am not satisfied, on the balance of probabilities, that the accident was caused by an attempt by the claimant to commit suicide.

Did the claimant have a micro-sleep?

While neither party submits that the accident was a result of the claimant having a micro- sleep, I consider it possible that she did, and that this was a possible cause of the accident. I am not, however, satisfied that the possibility that the claimant had a micro-sleep rises to a probability. There is no expert evidence to support such a finding. The claimant raised the possibility with police as an explanation for what happened in circumstances where she had no memory of the accident or events leading up to the accident. While she stated that she “cannot for certain deny” that she suffered a microsleep, this concession is consistent with her evidence that she has no recollection of the accident or the events leading to it. The claimant also stated that she had no recollection of having a micro-sleep, and that she had not experienced a microsleep either before or after the accident. I accept her evidence in this

regard.

Was the claimant making calls, listening to music, or using the sat nav?

The claimant’s evidence is that it was not her habit and practise when driving to take or make calls. She did not have a recollection of receiving any calls. I accept her evidence about these matters. I also accept her evidence that it has never been her practice to listen to the radio or music when driving, and that she did not use the sat nav system in the vehicle when travelling to familiar destinations, as she was when the accident occurred.

Was the claimant smoking?

While possible, I am not satisfied that it is probable that the claimant was smoking when the accident occurred. I accept that the claimant commenced taking Champix to assist her stop smoking and “it was working”.

Did something enter the claimant’s vehicle?

The claimant explains in her statement that she drives with her window down, and that a “further factor” that comes from driving with the window down is that “foreign things” can enter the car which are unexpected. She states that her usual habit and custom is to check the vehicle for anything that may have entered through the window. She explains that this is because she found a tarantula in the vehicle on one occasion after she had commenced driving. To avoid this from happening, she gives the vehicle a “look over”.
The claimant’s evidence is that when she is aware that something has entered into the cabin of her vehicle, her habit and practice is to pull over immediately to the side of the road and clear the vehicle of whatever has entered into it before recommencing her journey. This is what she believed she would have done had she been aware of something in the cabin while she was driving. She goes on to state that:
“I do not recall this action but can say based on my past habit and practice, driving experience, training and knowledge would be consistent with me being placed in a position of peril and having to act in the agony of the moment to either avoid something or due to me being startled possibly by something have [sic] entered the vehicle or me becoming aware of something in the vehicle which caused me to respond spontaneously and instinctively to the hazard.”
While it is possible that something such as an insect had entered the claimant’s vehicle, there is no probative evidence that elevates the possibility to a probability. The claimant’s evidence is that her habit and practice in circumstances such as this is to pull over immediately to the side of the road and clear the vehicle. That is not what happened here; her vehicle veered to the right into oncoming traffic. The behaviour of her vehicle is not

consistent with her stated habit and practice. The claimant’s habit and practice does not support an inference, on the balance of probabilities, that this is what occurred.

FAULT

Was the accident caused by the fault of Ms Tadrosse?

Neither party argues that the accident was caused by the fault of Ms Tadrosse. Mr Perton, who was travelling behind Ms Tadrosse, told the investigator on 18 March 2021 that she was “travelling according to the roadway conditions in terms of speed”, and that her vehicle was not positioned far from other motorists.
Mr Frost, who was travelling approximately 15m behind Ms Tadrosse, told police at the scene that she was “right in the middle” of the right hand lane, that he was travelling at “60, 62” at the time, and she wasn’t pulling away from him. Mr Frost told the investigator on 22 March 2021 that Ms Tadrosse’s driving behaviour was “normal”. When asked to elaborate, he stated that whilst travelling behind her there was no swerving or driving issues. Prior to the collision her vehicle remained in lane two of two.
I accept the evidence of both Mr Perton and Mr Frost with respect to their observations of Ms Tadrosse prior to the accident. The claimant’s vehicle veered to the right, across the centrelines and collided with Ms Tadrosse’s vehicle. There is no probative evidence to support a finding that the accident was caused by any failure to exercise reasonable skill and care on the part of Ms Tadrosse. I find that the accident was not caused by her fault.

Was the accident caused by the fault of the claimant?

The insurer no longer relies on a “micro-sleep case”, a case it relied on before both Member Nolan and Schmidt AJ. The insurer solely relies on res ipsa loquitor to support a finding that the accident was caused wholly by the fault of the claimant. It argues that there must be an inference of negligence drawn from the mere fact that an accident occurred, and an injury was sustained.
In the insurer’s submission, the circumstances of the accident satisfy all three requirements for the doctrine of res ipsa loquitor to apply and for a presumption of fault to arise against the claimant because:
(a)there is no identifiable or acceptable explanation for the motor accident;
(b)the accident was of a kind that would not ordinarily occur without negligence on the driver’s part, and
(c)the vehicle that caused the accident was under the sole control of the driver alleged to be at fault.

There is, the insurer argues, no evidence capable of rebutting that presumption.
The insurer submits that driving a vehicle across the centre lines of a roadway directly into oncoming traffic is an occurrence that does not ordinarily occur without negligence. That being the case, the insurer submits that the claimant is wholly at fault for the accident.
The claimant argues that in order for an inference of fault to be drawn, it must be found that she, an experienced driver, drove inexplicably to the right into the oncoming lane. Such behaviour, it is argued, would be entirely irrational and inconsistent on the totality of the evidence forming the foundation for the inference. That is both speculative and unlikely in her submission. It is submitted that logic and common sense operate to rebut an inference being drawn where the evidence of a driver’s apparent inexplicable conduct can only be made explicable by inferring that the driver was acting entirely irrationally and inconsistently with what is known of the driver’s habit, usual practice, motive, and state of mind. It is argued that the observations of the claimant’s driving immediately before the accident, that she drove at a safe speed and distance from other vehicles and not erratically, does not support an adverse inference of irrationality. She argues that a more persuasive inference is that of an inevitable accident.
The claimant submits that the insurer has not established a prima facie case, as on the evidence there is no absence of explanation for the vehicle pulling to the right which would support an inference that the facts are only consistent with fault. She argues that the common law in the defence of inevitable accident recognises that an accident of itself does not give rise to a presumption of fault, and refers to Whitfield v Mellenewycz [2006] NSWCA 235 at [28] (that contains a reference to Davis v Swift [2014] NSWCA 458 at [34]-[35]). These proceedings, in contrast with the circumstances referred to in Davis, do not involve a catastrophic failure of a component of the vehicle, nor do they involve an incident on or in the vicinity of the roadway, such as an animal running on to the roadway.
The claimant argues that the insurer does not identify any principle that mandates that an inference of negligence must be drawn in all cases where a vehicle is observed to swerve into oncoming traffic in circumstances where competing possibilities are established on the evidence.
Ultimately, whether the accident was caused by the fault of the claimant is a matter to be determined by the Commission on the balance of probabilities. Factual findings that underpin the determination must be supported by logically probative evidence: Australian Broadcasting Tribunal v Bond [1990] HCA 33 at 367.
During the course of oral submissions, an issue arose with respect to whether “momentary inadvertence” could constitute fault. The claimant subsequently lodged, with leave, written

submissions addressing that issue dated 2 April 2024.

The claimant argues that momentary inadvertence does not constitute negligence, that a finding that there was momentary inadvertence “further displaces and forecloses any res ipsa loquitor inference”, and that inadvertence explains the change of direction and displaces an inference of fault. The claimant points to Sungravure Pty Ltd v Meani,²⁴ a case in which it was said that “momentary inattention or some temporary inadvertence to danger, some lapse of attention, some taking of a risk or other departure may not be fault for the purposes of contributory negligence”.
It is argued by the claimant that the direct evidence, blended with the “unchallenged and uncontroverted” indirect evidence of the claimant’s habit and practice, provides a logical and rational explanation for the accident absent fault.
A number of decisions to which the claimant has referred relate to a repealed provision in the
Workers Compensation Act 1987 (s 10(1A))²⁵. While in some ways similar in operation to s 3.11 and s 3.28, that provision uses different statutory language.
The insurer submits that there is no evidence as to the actual cause of the accident, and there is no evidence upon which to draw an inference that the accident occurred for any particular reason (including any particular reason that is not consistent with negligence).
I have already found that the insurer did not make a representation or concession that the accident was caused by a momentary lapse of concentration or inadvertence on the part of the claimant. The insurer’s case is that the cause of the claimant’s vehicle moving from its lane of travel, across the centre lines, and into the path of Ms Tadrosse’s vehicle, is unknown, and that in those circumstances, res ipsa loquitur may be relied on.
Part of the challenge with terms such as “inadvertence”, “mere inadvertence”, “temporary inadvertence”, and “momentary inadvertence”, is that to give them meaning, the acts and/or omissions they are being used to characterise need to be identified. Absent that context, the terms are of limited assistance in determining whether an accident was caused wholly or mostly by the fault of a person for the purposes of ss 3.11 and 3.28 of the MAI Act.
These are matters addressed by Windeyer J in Sungravure, where he said:
“There is obviously no objection to describing conduct which briefly falls short of the highest standard of care as inadvertent; and, if it does not amount in all the
circumstances to negligence it is not negligence…But, whereas the law knows what is

²⁴ [1964] HCA 15 per Windeyer J.

²⁵ Medida Pty Ltd v Tobin [1995] NSWCA 289, Aardvark Security Services Pty Ltd v Ruszkowski (1993) 13 NSWCCR 1.

meant by negligence, it has no precise definition of inadvertence which would make it a distinct legal concept…And the field is one in which the use of abstract words, imprecise and undefined, descriptive of states of mind, is never helpful and can be misleading…
…Moreover, in ordinary parlance, a thoughtless act when a reasonably prudent man would take thought, an inadvertent act when he should be vigilant, an act done in forgetfulness of something that if he were careful he would not overlook, may amount to negligence on his part. What Lord Wright said was that mere thoughtlessness or inadvertence is not necessarily negligence. That is indisputable.”

His Honour also said, in the same case:
“Negligence is, in every case, a question of fact. In no case can the answer to the question be found in words, however eloquent, uttered by judges, however eminent, about the facts of some other case…”
In Paul Perry Horse Training Pty Ltd v Harker (1996) 23 MVR 61 at [64] Cole JA (Sheller and Powell JJA agreeing) stated that temporary inadvertence may be either consistent or inconsistent with negligence; it depends on the circumstances. His Honour went on to say that:
“… if temporary inadvertence is being considered, such inadvertence will be inconsistent with negligence only where it is “excusable in the circumstances’.”
It is possible that the accident was caused by an act or omission on the part of the claimant that could be characterised as inadvertence. Any such inadvertence may be either consistent or inconsistent with a failure to exercise reasonable care and skill on her part. As there is no evidence explaining why the claimant’s vehicle veered right, the question remains: should an inference be drawn that the movement of the vehicle to the right was caused by the claimant’s failure to exercise reasonable skill and care?

Res ipsa loquitor

Res ipsa loquitor is not a distinct, substantive rule of law, but an application of an inferential reasoning process: Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 (Schellenberg) per Gleeson CJ and McHugh J at [22]. At [24], their Honours explained that:
“…while res ipsa loquitur may ameliorate the difficulties that arise from a lack of evidence as to the specific cause of an accident, the inference to which it gives rise is merely a conclusion that is derived by the trier of fact from all the circumstances of the occurrence. When it applies, the trier of fact may conclude that the defendant has been negligent although the plaintiff has not particularised a specific claim in negligence or

adduced evidence of the cause of the accident. But it does nothing more…”

The parties agreed at the assessment that Schmidt AJ at [102]-[105] of her reasons in Richards set out the legal framework that the Commission was required to apply in relation to res ipsa loquitor, and submitted that Schellenberg did not need to be addressed other than to the extent that Schmidt AJ incorporated that decision into her reasoning. It is appropriate, in these circumstances, to set out her Honour’s reasons at [102]-[105] in full:
“[102]While the burden of proof does not alter, the doctrine may permit negligence to be inferred from a fact which is unexplained, in this case, as the member found, what caused Mrs Richards to drive into oncoming traffic as she did.
As explained in Schellenberg at [73], when a car runs off the road, that fact alone and unexplained, provides some evidence of negligence. So, it must logically follow, does a car crossing the road and hitting an oncoming vehicle, if unexplained.
[103]Whether negligence is proven in a particular case still, however, depends on how clearly and convincingly the unexplained fact speaks of negligence in the particular circumstances: Anchor Products Limited v Hedges (1966) 115 CLR 493; [1966] HCA 70 at 500. This is what the member had to consider in this case.
[104]The application of the doctrine to circumstantial facts, where direct evidence of negligence is lacking, may call for explanation or rebuttal. But all of the circumstances and evidence must still be taken into account and considered as a whole, when arriving at a conclusion that there was negligence: Schellenberg at [24].
[105]Further, as there discussed at [25], res ipsa loquitur may be relied on even though particular acts or omissions of negligence are alleged, provided that the tribunal of fact concludes that:
‘1. there is an ‘absence of explanation’ of the occurrence that caused the injury;
2. the occurrence was of such a kind that it does not ordinarily occur without negligence; and
3. the instrument or agency that caused the injury was under the control of the defendant’.”

Having considered the whole of the evidence, I find that there is an absence of explanation for the claimant’s vehicle veering to the right, crossing the centreline, and colliding with the vehicle driven by Ms Tadrosse.
I am satisfied that a vehicle veering to the right, across the centre lines of a roadway, into oncoming traffic is an occurrence that does not ordinarily occur in the absence of a failure to exercise reasonable skill and care.
I find that the vehicle that caused the accident was under the control of the claimant. She was the driver of the vehicle. There was no one else in the vehicle at the time of the accident.
Given the foregoing findings, res ipsa loquitor arises for consideration.

Consideration

The claimant’s case is that the most probable cause of the accident is that of wildlife or other animal straying onto the road and if any inference is to be drawn it is that the incident was an inevitable accident devoid of fault. She argues that she acted in the agony of the moment, and that explains why her vehicle veered to the right. This submission is rejected. There is no factual basis to support it on the balance of probabilities.

The claimant further submits that the Commission is not compelled to draw any inference or speculate on the possibilities as to which way the balance of probabilities incline where a party has not discharged the burden of proof, and that the element of causation will not be satisfied where it is “quite impossible to reconstruct from any materials the manner in which the accident occurred and where that can only be done by conjecture but where a number of conjectures is open, equally plausible”: Luxton v Vines (1952) 85 CLR at [359].
In Schellenberg, Kirby J said of res ipsa loquitur:
“[87]Some writers have criticised the maxim as an "illegitimate offspring of a chance remark". Others have complained that it is "a chameleon" which "seems to change its colour to suit whatever branch of facts it currently sits on". Still others have noted that, in certain situations, the facts will "merely whisper negligence" whilst in others they will "shout it aloud". Unfortunately, the alleged shout often sounds different to different judicial ears… (citations omitted)”
That the “shout” sounds different to different ears was recognised by Schmidt AJ in Richards, when she said at [116]:
“It may be that in so approaching the determination of this issue, the member might have come to the same conclusion about whether the insurer had met the onus which

fell upon it. But given the state of the evidence in relation to what was in issue, the insurer was entitled to rely on the doctrine and the member had to consider what conclusion its application led to, when all of the circumstances and relevant evidence were taken into account as a whole, as they had to be.”

In Davis v Bunn, a case to which the claimant referred in her submissions, Dixon J stated at 260:
“…It is not invariably true that the occurrence of an accident occasioned by a vehicle in the highway cannot in itself supply sufficient evidence of negligence — Ellor v Selfridge, (1930) 46 T.L.R 236; Halliwell v Venables, Mercovitch v Mullaney, (1934) ALR 311. But compare Galbraith v Busch, 267 N.Y. 231. In the present case, unless and until the cause of the vehicle's change of direction was explained, I think mere proof that it suddenly swerved from one side of the road to the other, and hit the plaintiff's stationary car, would constitute sufficient evidence of negligence. It is true that such a thing is consistent with more than one cause not implying negligence. For example, the driver might have fainted, or the steering gear have failed through no fault of the defendant. But such unavoidable events are sufficiently unusual to raise a
probability that the erratic course of the vehicle is to be accounted for by some failure in due care, whether in its management on the roadway or in the maintenance of its mechanical efficiency. In the absence of all explanation, the probability would be high enough to justify an inference in the plaintiff's favour.”
Whether negligence is proven in a particular case depends on how clearly and convincingly the unexplained fact speaks of negligence in the particular circumstances: Anchor Products Limited v Hedges [1966] HCA 70 at 500.
The accident occurred at night, on a stretch of road that was illuminated by street lights. The weather was fine, the road dry and uncontaminated by oil or other substance. The claimant was familiar with that section of New Line Road, having driven on it on numerous occasions. Prior to the accident the claimant was observed to be driving at a safe speed and distance from other vehicles and not erratically. There was no defect in her vehicle, and no wildlife or other animal on the road. Nor was there an insect in the cabin of the claimant’s vehicle. The claimant’s vehicle, without warning, veered to the right, crossed the centreline, and collided with the vehicle driven by Ms Tadrosse. Ms Tadrosse was driving within her lane, with her lights illuminated, within the speed limit.
While possible that the claimant’s vehicle suddenly veering into Ms Tadrosse’s path may be consistent with a cause not implying fault on her part, on my findings such a cause does not rise above a possibility.

What occurred was sufficiently unusual to raise a probability that the course of the claimant’s vehicle is to be accounted for by some failure in due care, and was consistent with her having failed to pay attention to her driving shortly before the collision.
Having considered the evidence as a whole, including the claimant’s evidence as to her habit of careful driving, I have reached an actual sense of persuasion, on the balance of probabilities, that it is appropriate to draw an inference that the claimant’s vehicle veering to the right was a result of her failing to exercise reasonable skill and care in the control and management of her vehicle.
The claimant’s failure to exercise reasonable skill and care was causative of the accident. But for that failure, the accident would not have occurred.
I find that for the purposes of s 3.11 and s 3.28 the accident was caused wholly by the fault of the claimant.

COSTS

The claimant makes an application for costs pursuant to s 8.10(4)(b) of the MAI Act. There are, she submits, exceptional circumstances because the proceedings involve determination of matters that are novel and unique. The insurer argues that the costs order sought should not be made.
Section 8.10(4)(b) of the MAI Act gives the Commission a discretion to permit payment of legal costs incurred by a claimant but only if satisfied that exceptional circumstances exist that justify payment of those costs. Success is not a prerequisite to the claimant recovering costs from the insurer: AAI Ltd trading as GIO v Moon [2020] NSWSC 714 at [82].
To be “exceptional circumstances” the circumstances must be unusual or out of the ordinary, whether as a result of qualitative or quantitative factors. The case need not be one that is unique, unprecedented, or very rare. The question is determined on the basis of the facts of the individual case: San v Rumble (No 2) [2007] NSWCA 259 at [67]. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].
I am satisfied that, for the purposes of s 8.10(4)(b) of the MAI Act, exceptional circumstances exist that justify payment of legal costs incurred by the claimant in connection with these proceedings. This is a unique case because of both the factual and legal issues that arose for consideration. The claimant’s “habit and practice” case, and the insurer’s res ipsa loquitor case were in themselves unusual and complex. Comprehensive written submissions were

provided by the parties, including submissions that addressed estoppel and “inadvertence”. While no witnesses were called, the matter was listed for assessment to hear oral arguments. For these reasons, the Commission permits payment of the reasonable and necessary legal costs incurred by the claimant in connection with the proceedings. The insurer is to pay the claimant’s costs as agreed or assessed.

[2024] NSWPIC 252

15 May 2024