Ross v AAI Limited t/as GIO
[2025] NSWPIC 465
•9 September 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Ross v AAI Limited t/as GIO [2025] NSWPIC 465 |
| CLAIMANT: | Ronald Ross |
| INSURER: | AAI Limited t/as GIO |
| MEMBER: | Elyse White |
| DATE OF DECISION: | 9 September 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether claimant wholly or mostly at fault; sections 3.11 and 3.28; claimant sustained injury when a new rear motor bike tyre lost traction; claimant alleged could have been contamination on the road surface; no evidence of contamination; no evidence new tyre had been correctly scuffed/scrubbed; Held – claimant’s evidence insufficient to establish any road contamination; common knowledge new bike tyres slippery and until correctly prepared can lose traction; claimant mostly at fault and contributory negligence greater than 61%. |
| DETERMINATIONS MADE: | CERTIFICATE 1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017, the claimant was mostly at fault for the accident. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017, the claimant was mostly at fault for the accident. |
STATEMENT OF REASONS
INTRODUCTION
The claimant Mr Roland Ross was riding his motorcycle after picking it up from a dealer at Artarmon, a suburb in Sydney, on 25 July 2024. He says he was injured when the back tyre on the motor bike lost traction on the roadway. The bike landed on his right knee causing injury.
Mr Ross lodged an Application for Personal Injury Benefits around 3 July 2024 seeking payment of statutory benefits which was initially accepted by the insurer AAI Limited t/as GIO (insurer).
After receiving further information regarding liability, the insurer re-assessed his entitlements to statutory benefits which ceased after 24 July 2025.
The insurer submits the claimant failed to exercise reasonable care and skill in the operation of his motorbike and was contributory negligent to the degree that he was wholly or mostly at fault for the accident.
In response, Mr Ross lodged an application for an internal review of the insurer’s decision. A Certificate of Determination was issued by the insurer on 6 June 2025 which affirmed the reviewable decision.
Mr Ross does not accept the insurer’s determination and filed in the Personal Injury Commission (Commission) an Application for a miscellaneous claims dispute pursuant to
s 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).
The application has been referred to me for determination of liability and contributory negligence of the accident when Mr Ross lost control of his motorcycle causing injury.
BACKGROUND
Mr Ross is about to turn 71 years old. He revealed he is a very experienced motor bike rider.
According to Mr Ross, he had attended a motor bike dealership to collect his bike which had been fitted with a new rear tyre. He approached the intersection of Whiting and Clarendon Streets, Artarmon. He says he brought his bike to a stop at the stop sign.
After stopping, he says he gently engaged the clutch to proceed in a right turn through the intersection. He confirms at no time did he apply excessive power. He says the engine was running at little more than an idle.
As described by Mr Ross, as he proceeded through the intersection his rear wheel simply lost complete traction resulting in his motorcycle falling to the right and onto his right knee. He says there was no time to take any corrective action.
Mr Ross told me he had never dropped a road bike before this incident. He said there is no way a modern motorcycle with an experienced rider would lose control of the bike without some other reason. He repeated what is in his statement that, his launch after stopping, was gentle and slow after he had considered the stop sign.
He strongly rejects the insurer’s denial of liability and the case quoted in their submissions suggesting that the facts of this case can be compared to that of NRMA v Richards [2023] NSWSC 909 (Richards).
He sets out a number of factors that could contribute to such an event which include the road surface because there is a waste transfer station close by the location of the incident. He submits contaminates leak from trucks delivering to the waste station which would cause the rear wheel of a motor bike to lose traction.
A further submission relied on by Mr Ross which he says could have contributed to this incident is the new rear tyre which can be slippery. Apparently, a test ride by the dealer to ‘scuff’ the surface over a two-to-three-kilometre distance, should have minimised any lack of traction effect.
As such, Mr Ross submits that these possible contributory factors are sufficient to prove his assertion that he was not at fault.
The insurer submits that a reasonable and prudent driver/rider in the position of the claimant would most likely have avoided the accident. As such, I should find Mr Ross’ contributory negligence amounts to over 61% and therefore he was mostly at fault, if not wholly at fault for the accident.
DOCUMENTS CONSIDERED
The documents considered include the claimant’s nine-page application including a Table of Contents, correspondence from the insurer, the certificate of determination, statement of reasons of the internal review and outcome and impacts of decision together with the statement by Mr Ross.
The insurer relies on their submissions and documents lodged in reply dated 30 July 2025. Their material is set out in the schedule of documents consisting of 74 pages.
Following the preliminary teleconference at which time I invited the parties to make either, further written submissions with evidence or oral submissions at the teleconference, the claimant lodged a further additional three-page submission.
Both parties agreed that this dispute could be determined on the papers. In accordance with s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC 2,
I consider that it is appropriate to determine this dispute on the papers. I am satisfied the evidence and submissions provided by the parties is sufficient to determine the dispute without an assessment conference.
THE STATUTORY FRAMEWORK
At the time of the accident s 3.11 of the MAI Act provided:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if:
(a)the motor accident was caused wholly or mostly by the fault of the person, or
(b)the person’s only injuries resulting from the motor accident were threshold injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
The enacted law includes s 5R of the Civil Liability Act 2022 (CLA) which sets out the principles that apply in determining the question of contributory negligence.
Sub section 5R(2) provides the following:
(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and
(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.
PRELIMINARY TELECONFERENCE
On 19 August 2025, a preliminary conference was held with the claimant and the insurer’s representative via MS Teams.
I indicated to the parties that I had read the material lodged on the portal. The insurer’s representative enquired if I had reviewed their material. I confirmed I had but to ensure I had all the documents and/or evidence, that I would list the material in the preliminary report to give both parties an opportunity to rectify any anomalies.
In response, Mr Ross lodged his additional submission which also, replies to the insurer’s submissions which he highlighted in red.
I asked the parties if they required an in-person or via video hearing. Mr Ross confirmed, he was ready to make further oral submissions which he did. The insurer confirmed the determination should proceed on the papers and that a hearing was not necessary as I had all the evidence, correspondence and submissions relied on both parties. Mr Ross agreed.
REVIEW OF THE EVIDENCE
Mr Ross is an experienced motor bike rider. His personal injury claim records over 40 years of riding motor bikes on the roadway. He told me he has never “dropped a road bike.” He says there is no way a modern motor bike with an experienced rider would lose control without some reason.
He had only a short time before the accident, collected his 2021 Triumph from a local dealership. His statements, submissions and reports in the records provided, reveal he had a new tyre fitted by the dealer. He says he believes that a test rider “scuffed” the new tyre for two to three km. He agrees in his statement that new bike tyres can be a little slippery. Nevertheless, he says the test rider’s scruff should have minimised the slippery effect.
In his statement, Mr Ross suggests a further ground which could have contributed to the tyre losing traction, is contamination on the road surface from trucks which frequent the area travelling to and from a waste management station.
I asked Mr Ross at the preliminary conference if he had any evidence of his allegation of roadway contamination. He told me when he hit the roadway, he was in a lot of pain.
He said the ambulance station was around the corner from the accident scene. He believes a bystander called them as they arrived within minutes. A gentleman moved his bike. He said he was in no position to gather evidence.
In his additional submission lodged after the preliminary conference, he sets out reasons why he has been unable to provide evidence such as no witnesses; the accident occurred due to loss of traction on the back tyre which caused an abrupt and unrecoverable “low side crash” causing injury.
He objects to the insurer’s submission that his evidence is conflicting, self-serving and equivocal. He argues that “…my evidence is factual and is certainly not conflicting…”
As to why he did not gather evidence at the scene, he says he was in considerable pain, and the ambulance officers administered pain relief which had an adverse effect on his mental state. Afterwards, he says he has little recollection of any of the events that followed the accident as he remained on strong medication leading up to surgery.
Mr Ross responds to the insurer’s suggestion he failed to exercise reasonable care and skill in the operation of his motorbike, and that he was contributory negligent to the degree that he was wholly or mostly at fault for the accident.
His response to each point has been cut and pasted below.
“GIO submits that the Member would therefore be satisfied on the current evidence that the claimant failed to exercise reasonable care and skill in his operation of his motorbike (GIO v Evic (2024) NSWSC 1272), and was contributorily negligent to the degree that he was wholly or mostly at fault for the motor accident, on the following grounds: • The claimant failed to maintain control of his motorbike when executing the right-hand turn at low speed; My actions in initiating the turn were completely normal, careful and executed with a high degree of skill, the total loss of traction and subsequent fall were unpredictable • The claimant failed to take any or any reasonable care for his own safety; This is clearly untrue, my actions were executed carefully and thoughtfully, without any rush or excessive acceleration – indeed it was a slow and cautious turn. • The claimant failed to avoid injury to himself; The motorcycle caused the injury, I did not. How the bike fell was not in my control. • If the claimant’s assertion that his motorbike slipped on oil or debris is accepted, the claimant also: oFailed to perceive and avoid the oil or debris on the roadway; The contact patch of a motorcycle tyre at rest, is not more than the area of a playing card. It is unreasonable to expect a rider to see a small amount of debris or contaminant on the roadway, sufficient to cause loss of traction when riden over. oFailed to drive to the conditions of the roadway; To the contrary, I took what I could see of the road conditions into account when moving of in a very cautious and controlled manner. oRode his motorbike over the oil or debris on the roadway; Possibly, but as discussed above it is unreasonable to expect a rider to observe every stone or patch of oil on a well-used and patched road surface, especially while concentrating on controlling the motorcycle. oFailed to take any evasive action to avoid the oil or debris on the roadway; I refer to my comments above oFailed to take any, or any reasonable care for his own safety.”
This is completely untrue; I took every available action to take care of myself – both active and passive. I have described my cautious actions in executing the turn above. I also wore a thick leather jacket, including body armour, a high quality full face helmet, thick armoured gloves, Kevlar lined motorcycle pants and motorcycle boots. Indeed, I did not have a scratch on me, regrettably the force of a 200kg motorcycle was in excess of the knee protection worn.” [SIC]
In conclusion, Mr Ross submits he was not at fault and that the loss of traction and subsequent fall of the bike were unforeseeable and outside his control.
He points out that he had no possibility of collecting any evidence, physical or photographic due to his subsequent care and treatment. He says having researched the case of Richards relied on by the insurer has no relevance to his accident.
CONSIDERATION OF THE ISSUES
Reviewing Mr Ross’s version of events, his first contact is with the ambulance officers. The medical records by these officers can be found in the insurer’s documents commencing at around page 42. Their case description amongst other facts state that Mr Ross told them after stopping at the stop sign, he turned right at low speed when his bike with a new tyre slid out from underneath him.
His next description of the circumstances of the accident was his report to hospital staff at Royal North Shore Hospital. The clinical note records “…new tyre on motorbike, bike slid out from under him at low speed going down on low side…”
Mr Ross reported the accident to the police and gave the following crash summary details to the officer. Event reference 82407869 –
“At 10.15 on Thursday 25 July, a lone male motorcycle rider was travelling in a northerly direction on Clarendon Street ARTARMON. At the intersection of Clarendon Street and Whiting Street there is a stop sign which the rider stopped at. The rider then proceeded at 10 km/hr to make a right turn onto Whiting Street. The rider turned right, and due to a brand-new tyre which had just been installed, the bike slipped from underneath him and the bike landed on the right knee of the rider causing it to become dislocated.”
On or around July 2024, Mr Ross completed a Personal Injury Claim Form. At paragraph 3 he describes the accident in these words, “After stopping at stop sign proceeded turn [Sic] right into Clarendon. Rear wheel (new tyre) slid out – motorbike fell on my right knee.”
Dr Dimitri Papadimitriou wrote to Mr Ross’s general practitioner (GP), Dr Geoffrey Walker on 1 August 2024. He confirmed he had treated Mr Ross at Royal North Shore Hospital after he was brought by ambulance to the hospital with a history of a road traffic accident as a motorcyclist.
It is not until Mr Ross presented his application for a miscellaneous claims dispute, does he make a statement dated 21 July 2025 where he suggests the road surface could have contributed to the accident.
There is no evidence of the surface of the roadway at the time of the accident.
I accept Mr Ross was injured when his bike fell onto his right knee. However, submissions are not evidence. Submissions are a written form of advocacy and should refer to the evidence and argue the case referring to the applicable statue and any relevant case law.
I gave Mr Ross every opportunity to submit evidence of the road surface. His additional submissions do not advance his case.
What is clear, the accident was caused by the rear tyre losing traction. Mr Ross acknowledges a new tyre surface can be slippery. An experienced bike rider should be aware of this risk. Although Mr Ross says he believed the tyre surface had been scrubbed for 2 to 3km, it is general knowledge that new tyres usually carry a warning to scrub in for the first 10 to20 km to not only remove the release agents on the surface but to allow the tyre to properly seat on the rim.
With his experience riding motorcycles on the roadway, Mr Ross knew or ought to have known the risk of riding on new tyres which have not been properly prepared for use. At no time does he confirm that the new trye was scrubbed or scuffed at all. At best he says he believed the dealer may have scuffed the new tyre for up to three km. There is no evidence he checked with the dealer if any preparation of the new tyre had been completed.
WAS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT
There is no dispute Mr Ross was injured in an accident involving the use and operation of a motor vehicle in accordance with s 1.4 of the MAI Act.
The burden of proof in establishing that the accident was caused mostly or wholly by the fault of the claimant rests with the insurer.
In AAL Limited t/as GIO c Evic [2024] 1272, Mitchelmore J held:
(a) Sections 3.11 and 3.28 operate to cease the payment of statutory benefits to a person under Div 3.3 and 3.4 respectively, if one of the two conditions in subs (1) is satisfied. The focus of the condition, and the relevant enquiry, in paragraph (a) is whether the motor accident, as defined in s 1.4, was caused “wholly or mostly by the fault of the person”, being the injured person who is in receipt of the relevant benefits. The qualifiers “wholly and mostly” inform each other and are intended to address the same mischief, namely, contributory negligence.
The court discussed ss 3.11 and 3.28 where it is directed to the injured person’s failure to take reasonable care contributed to the accident including single vehicle accidents where the injured person is the owner driver.
Although this is a single vehicle accident, I am required to determine the extent to which the claimant’s failure to take reasonable care contributed to the accident.
The reasonable care duty was reiterated in Vairy v Wyong Shire Council [2005] HCA 62-225 CLR. The court stated that the duty of the driver of a motor vehicle to users of the roadway is to take reasonable care having regard to all the circumstances.
I have found the claimant did not control the speed and direction of his bike given the risks of turning a corner on a new rear wheel tyre in such a way that the rider knew or ought to have known that loss of traction was imminent.
There is no evidence to support Mr Ross’ submissions the road surface may have contributed to the loss of traction. As such, I find the accident was caused by the failure of
Mr Ross to take reasonable care. Under s 3.38(3)9c) of the MAI Act requires an assessment of what is just and reasonable in the circumstances.
Considering Mr Ross’s version of the events as he reported to the ambulance officers, hospital staff and his treating surgeon, and descriptions on his claim form, I am satisfied the accident was caused mostly by the fault of the claimant where his contributory negligence of departure from the standard of care was required to exercise in driving at a speed in the circumstances of a new tyre and in failing to control his bike was greater than 61%.
CONCLUSION
For the purposes of s 3.11 of the MAI Act the claimant was mostly at fault for the accident.
For the purposes of s 3.28 of the MAI Act the claimant was mostly at fault for the accident.
There is no application for costs.
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