Thomas v QBE Insurance (Australia) Limited

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Thomas v QBE Insurance (Australia) Limited [2025] NSWPIC 289
CLAIMANT:	Thomas
INSURER:	QBE Insurance (Australia) Limited
MEMBER:	Belinda Cassidy
DATE OF DECISION:	23 June 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; insurer’s denial of liability for ongoing benefits under sections 3.11 and 3.28; claimant’s application under Schedule 2(3)(d) and (e); single vehicle accident; claimant had no memory of the accident; possibilities raised by insurer considered included seizures, sleep apnoea, speed, and animal on the roadway; assessment on the papers; claimant self-represented; Held – manner of driving caused the accident; claimant contributed to cause of accident; claimant’s departure from standard of care not the most extreme and did not justify 100% deduction; contributory negligence assessed at 30%; cases cited; AAI Limited t/as GIO v Evic as to approach to single vehicle accident fault disputes; Australian Broadcasting Tribunal v Bond, and Insurance Australia Limited t/as NRMA v Richards followed as to inferences and application of res ipsa loquitor; Axiak v Ingram, Davis v Swift, and Serrao (by his Tutor Serrao) v Cornelius (No 2) followed regarding assessment of contributory negligence in single vehicle accident cases.
DETERMINATIONS MADE:	CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant. 2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant.

STATEMENT OF REASONS

INTRODUCTION

Tyson Thomas was involved in a motor accident on 20 March 2024. While the drivers of other vehicles stopped to render assistance to Mr Thomas, no other vehicle was involved in the accident. Mr Thomas was seriously injured and sustained multiple hip and right arm fractures.
On or about 3 April 2024, Mr Thomas made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) with QBE the third-party insurer of Mr Thomas’ own vehicle.
On 11 July 2024 the insurer issued a liability notice to Mr Thomas denying liability to pay ongoing statutory benefits to him on the basis he was “wholly or mostly at fault”.

Mr Thomas sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. On 21 August 2024, QBE affirmed the decision.
Mr Thomas has referred the issue of whether he is wholly or mostly at fault to the Personal Injury Commission (Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings have been allocated to me. I have held three preliminary conferences in the matter. At the last conference, on 16 June 2025 Mr Thomas indicated he had no further evidence and Mr Campbell declined the offer of the opportunity to put on any further evidence or submissions.
I note that s 52(3) of the Personal Injury Commission Act 2020 (the PIC Act) provides that:
“If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing.”
Having considered the oral evidence provided by Mr Thomas during the course of the proceedings, the documentary evidence provided by both parties, and noting the submissions made, I am of the view that a just, quick and cost effective resolution of the current proceedings can be achieved without an assessment conference or formal hearing.

LEGISLATIVE FRAMEWORK

Mr Thomas’ claim is a claim for statutory benefits under Part 3 of the MAI Act. Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4. Mr Thomas was an “earner” within the meaning of the legislation and is entitled to weekly income replacement benefits as well as treatment and care benefits.
Under s 3.1 of the MAI Act, benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident. However pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 52 weeks after the accident if:
(a) the injured person only has threshold injuries (within the definition in s 1.6). With multiple fractures, Mr Thomas’ injuries are clearly not threshold injuries, or
(b) if the injured person was “wholly or mostly at fault” for causing the accident. While there is no definition of wholly at fault, a motor accident is considered to be caused “mostly by the fault” of a person if the degree of their contributory negligence is assessed as greater than 61%.
In his application form lodged with the Commission the claimant has ticked the box indicating the dispute is about a “no fault accident – cl 3(g1)”. While this dispute type is a miscellaneous claims assessment matter it relates to Part 5 of the MAI Act and applies to a lump sum damages claim and not Mr Thomas’ statutory benefits claim. At the first preliminary conference I explained that ` Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Mr Thomas is wholly or mostly at fault in respect of his weekly benefits (schedule 2, cl 3(d)) and whether he is wholly or mostly at fault in respect of his treatment and care benefits (schedule 2, cl 3(e)).

INSURER’S DECISION MAKING AND SUBMISSIONS

Liability notices

On 11 July 2024 the insurer denied liability saying:
(a) the claimant was “wholly or mostly at fault” for the accident based on the police report, and
(b) the accident was not a “no fault” accident.
QBE gave further reasons citing the police report and stating that Mr Thomas was wholly at fault “due to fatigue” and that a witness confirms the circumstances of the accident. The insurer said that “QBE conclude that you did not drive to the conditions of the road or weather.” QBE then repeated that the claimant was “wholly at fault” before saying it has determined he was “wholly or mostly at fault.”
On 21 August 2024 QBE undertook its internal review, affirming the original decision saying:
(a)    there is no evidence of a seizure causing the accident;
(b)    there were conflicting statements about the involvement of an animal;
(c)    the claimant has no recollection of the accident, and
(d)    “I find on the balance of probabilities that your driving was the sole contributing factor thus causing your vehicle to veer to the wrong side of the road and collide with an embankment. It was confirmed by a witness at the scene and by NSW Police that you oversteered your vehicle whilst navigating a bend.”
The insurer alleged a breach of rule 297(1) of the NSW Road Rules 2014 in that Mr Thomas failed to control his vehicle and that he is therefore wholly or mostly at fault.

Claimant’s submissions

Mr Thomas wrote to the insurer on 29 July 2024 seeking an internal review saying:
(a)    he has no recollection of the accident or how it occurred;
(b)    he was cleared of “any wrongdoing” by the police “with no charges against me”;
(c)    he was diagnosed with seizures after the accident and is taking medication for this condition;
(d)    there is no evidence of him driving recklessly, and
(e)    there is no “evidence of any reasonable explanation as to why the accident occurred.”

Insurer’s submissions to the Commission

The insurer submits at [1.1] that the accident occurred at “high-speed” but otherwise cites the facts and circumstances of the accident and these proceedings that are not in dispute.
The insurer refers to ss 3.11 and 3.28, the definition of mostly at fault and the relevance of the Civil Liability Act 2002 and the standard of care applicable to the driver of a motor vehicle. The insurer cites s 5.1 of the MAI Act which relates to no-fault accident however it is not clear why as that section only applies to claims for damages not statutory benefits.
The insurer refers at [3] to the various possibilities as to how this accident occurred and at [4] refers to the outstanding medical evidence.
The insurer then submits:
(a)    that there is no corroborative evidence of an animal on the road or that an animal on the road was the cause of the accident [5.4];
(b)    that the contemporaneous medical evidence does not suggest the claimant suffered a seizure at the time of the accident [5.29];
(c)    that the medical evidence supports a finding that the claimant had a pre-accident diagnosis of severe obstructive sleep apnoea [5.45];
(d)    there is no design or signage issue that contributed to the accident [5.48];
(e)    that on the balance of probabilities, “the claimant’s driving whilst fatigued, on a background of severe obstructive sleep apnoea was the sole contributing factor” which caused the accident, and
(f)    the claimant has departed from the standard of care expected of a reasonable person in his position by driving a car while fatigued.
The insurer says the claimant is therefore wholly or mostly at fault for the motor accident.

REVIEW OF THE EVIDENCE

Claim form and the claimant’s evidence

Claim form

The claimant lodged an online application for personal injury benefits[1] (the claim form). In it he says, “Lost control and rolled due to animal jumping out in front of me and scaring me. Came to with ambulance and police everywhere and serious injuries and mental health concerns.”
[1] Page 17 of the claimant’s bundle.

Claimant’s statement

Mr Thomas gave a statement to the insurer’s investigator on 24 June 2024.[2] He says:
[2] Page 122 of the claimant’s bundle.
(a)    he has had a license since he was 17 (he was then 32 years of age) and that he lost it “a few times for traffic offences” the most recent of which was for drink driving a few years earlier for which he had an interlock device fitted to the car;
(b)    he had a couple of previous accident the last one about three years ago when he ran into the back of another car;
(c)    he had owned the 2006 Hyundai Getz for 12 months. It was not insured but was in good condition, was serviced regularly and the windscreen was clear and unobstructed;
(d)    the accident occurred at 4.30pm and he has little memory of how it occurred;
(e)    he did not know the precise location of the accident and said there was one lane for traffic in each direction and the speed limit was 80 kmph. He said the road was sealed and in good condition and that he drove that road daily;
(f)    he drove to work and started at 7.45am and left at 4.00pm, he does not remember anything after crossing the Stockton Bridge but says he was planning on going to the gym and his gym gear was in the car;
(g)    he said in his claim form that an animal caused the accident, but he is not certain about this because “it is all just a blur” and his memory is not good. He does not remember the police being there;
(h)    his next memory is after the accident and being seen by ambulance officers at hospital and he says he does not remember seeing or speaking with police at the scene;
(i)    he said he had seven hours sleep the night before and does not recall feeling tired. He says he has never been diagnosed with a condition that might have caused a blackout;
(j)    he was issued with an infringement notice for negligent driving which he is paying back in instalments;
(k)    he had nothing intoxicating to drink for 24 hours, and
(l)    he was not on his mobile phone and there was nothing distracting him.

Claimant’s evidence at the preliminary conferences

I asked Mr Thomas at the preliminary conference:
(a)    whether an animal on the road caused his accident – he confirmed that he had no recollection of the lead up to the accident and his first memory is waking up in hospital;
(b)    whether he had any seizures before the accident – he confirmed he had none. I asked him about the conflicting entries in the hospital records and confirmed he had no seizures and no funny turns before the accident and not until a month after the accident;
(c)    he had been diagnosed with sleep apnoea before the accident, but he had been cleared to drive because his wakefulness was fine. He said to get his truck license he had to do a sleep test yearly. He said he had never had CPAP because he gave up drinking and improved and he did not need it;
(d)    he denied ever falling asleep at the wheel or having a microsleep;
(e)    he said he worked at the time of the accident driving a forklift and filling orders in a warehouse. He said he worked every day, Monday to Friday and went to the gym every day after work and was in bed every night by about 9.00pm. He said he did some cardio at the gym, but it was mainly weight work;
(f)    he denied feeling tired and said he was fine when he left work. He said the accident occurred about 15 minutes after he left work;
(g)    he said his license was important to him. He said there was limited public transport and without his licence he would be unable to get to work – he had been working in this job for only a few months;
(h)    he said the road was wet at the time of the accident, but it was not raining;
(i)    Mr Thomas said he had been diagnosed with anxiety for four years and was on medication and had no side effects, and
(j)    I asked him about the condition of his vehicle and its tyres, and he said the car was in good condition and tyres were fine.

Ambulance, hospital and early general practitioner’s records

The ambulance report[3] gives a case description as follows:
(a)    it was a single vehicle car accident;
(b)    the claimant’s vehicle had gone down an embankment and was wedged against a tree and that he hit the tree at about 80 kmph;
(c)    there was major deformation to the vehicle;
(d)    the claimant was wearing his seatbelt (bystanders undid it as it was choking the claimant);
(e)    the claimant was confused and agitated and “head injury, unsure if loss of consciousness, some repetitive questioning and nil recollection of MVA”;
(f)    police assisted at the scene along with paramedics and an off-duty fire officer, and
(g)    vital signs were monitored at 5.05, 5.50 and 6.25pm with an initial Glasgow Coma Scale (GCS)[4] of 14 rising to 15.
[3] Page 25 of the claimant’s bundle.
[4] An indicator of head injury and brain injury – 15 out of 15 is normal.
The hospital discharge summary[5] records the claimant was admitted on 20 March 2024 and was discharged on 25 March 2024. The notes say the accident was a high-speed “car vs tree” accident at 80 kmph. The claimant was said to be “amnesic to events.” The claimant’s injuries were stated to be hip fractures (surgically fixed), comminuted moderately displaced fractures of the right radius (surgically fixed) and ulna and abdominal haematoma.
[5] Page 32 of the claimant’s bundle.
On 25 April 2024 the claimant attended hospital again after having had a seizure the night before and another in the morning. The discharge summary[6] records two seizures at home with Mr Thomas having bitten his tongue. He was incontinent and had post-ictal drowsiness and confusion. The claimant’s injured hip had dislocated which was treated with further surgery. Mr Thomas was discharged with no driving for six months and non-weight bearing.
[6] Page 41 of the claimant’s bundle.
The claimant provided records from the Bay Medical Group.[7] On 28 March 2024 Mr Thomas saw Dr Wahab seeking pain killers, Endone and Celebrex. He asked the doctor to help with getting his heavy vehicle driver license. When obstructive sleep apnoea was raised, he stormed out.
[7] Page 47 of the claimant’s bundle.
On 3 April 2024, Mr Thomas attended again for removal of his sutures by a nurse and he then saw Dr Vo. He talked about the accident saying he was on his way back from work when a:
“Kangaroo jumped on the road, swerved into ditch and rolled car into tree, denies any sleepiness or loss of concentration.”
Dr Vo attended to the claim form paperwork. Mr Thomas reported his pain was significant and he was given further medication. Mr Thomas also requested clearance for driving and it was noted he had “severe OSA, normal MWT” and that in light of the accident he needed a specialist review.
The referral to Dr Myat on 3 April 2024[8] was for opinion and further ongoing management for review of obstructive sleep apnoea. In the certificate, Dr Myat issued,[9] the doctor said the claimant has sleep apnoea, but it is well controlled, and he is fit to drive. Mr Thomas was certified fit for a conditional license.
[8] Page 76 of the claimant’s bundle.
[9] Page 77 of the claimant’s bundle.
On 24 April 2024 the claimant’s pain was improving, and Dr Vo records he was weaned off Endone. It was noted he was seeing Dr Myat, sleep physician on 22 May 2025.

Police records and documents

The NSW Police records[10] indicate that:
(a)    between 4.40pm and 4.43pm three calls were received about a person trapped in a motor vehicle and that file and ambulance had been informed [page 10];
(b)    the incident created at 4.50pm was “Car has crashed over 2 lanes at speed and hit a tree and then [rolled]. Person of interest has a fully broken arm that is floppy – patient is conscious but not coherent and still trapped” [page 11];
(c)    three witnesses were identified, one of whom was Mr Hunter [page 12];
(d)    the speed limit was 80 kmph, the road was wet and it was overcast [page 12], and
(e)    the pre-crash speed of the claimant’s car was said to be 100 [page 16].
[10] Both the insurer (page 10) and the claimant (page 103) included in their bundle police records. The numbers in square brackets are the page numbers of this bundle or the other bundles.
In a third bundle of documents the case report complied by the officer in charge is provided.[11]
[11] A separate 17 page bundle of police documents produced under the Government information (Public Access) Act 2009 (the GIPA bundle).
The police narrative is as follows:[12]
“About 2:00pm on Wednesday the 27th of March 2024 … the [Officer in charge (OIC)], … attended [the claimant’s home] in relation to obtaining a version of the incident from THOMAS. Police arrived and activated their BWV and introduced themselves.
The OIC asked THOMAS his version of events in relation to the collision. THOMAS stated that he left his workplace at Kooragang Island before driving home. Due to the impact of the collision, his memory was faded. THOMAS recalls driving over Stockton Bridge then recalls seeing the Newcastle Airport and cannot recall what happened after that.
THOMAS stated that he cannot drink alcohol as he has an interlock system affixed to the vehicle. THOMAS could not recall his speed at the time but does not believe he was speeding. The OIC informed him of the details of the collision in an attempt to prompt his memory but he could not recall any details.”
[12] Page 5 of the GIPA bundle.
A further narrative[13] includes this:
“Witnesses informed police that VEH 1 approached the sweeping left hand turn at speed when it over steered and crossed into the path of oncoming vehicles travelling westbound.”
[13] Page 7 of the GIPA bundle.
It is also noted that one of the first persons on scene was an off duty police officer who rendered assistance and “briefed arriving police as to the circumstances”,[14] there was a negative blood test result, and the claimant was issued with an infringement notice – negligent driving (no death or grievous bodily harm).
[14] Page 7 of the GIPA bundle.
The insurer retained investigators who took a statement from Senior Constable Saba at the Nelson Bay Police Station on 23 May 2024. He says:
(a)    he was the officer in charge (OIC);
(b)    Mr Thomas was travelling east;
(c)    the Senior Constable agreed with the investigator that “the vehicle has basically failed to take that bend”;
(d)
he arrived at the scene at about 5.00pm and there were people there helping the claimant as his car had run down an embankment and it would appear

Mr Thomas was slipping towards the passenger seat;
(e)    the claimant gave a statement by body worn camera;
(f)    according to the Senior Constable the claimant said he left work and was travelling home. He “doesn’t recall the full nature of the incident to me. Just stated that he – he’d blacked out and …. Come to rest on the side, there”;
(g)    he spoke to the claimant again when Mr Thomas was at home after discharge from hospital but no further statement was taken;
(h)    he could not find the claimant’s mobile phone in the vehicle and did not believe that would have been a contributing factor;
(i)    there was a witness called Mr Stewart who also gave a statement on body worn camera and told the Senior Constable that the claimant failed to navigate the bend and came straight across the road and rolled a number of times. Mr Stewart was travelling in the opposite direction and was behind another vehicle whose path the claimant had travelled across;
(j)    the road was wet as it had been raining but it was not raining at the time and it was dusk. It started raining again when he was at the scene;
(k)    the claimant was wearing a seat belt;
(l)    the speed limit is about 80 kmph. He said he saw no sign of excessive speed and there were no skid marks;
(m)     the claimant is reported to have said he was up early that morning, had gone to the gym and then to work and “he indicated fatigue was an issue”:
(n)    the police officer was asked about contributing factors and the officer said “I believe just fatigue”, and
(o)    the claimant was issued with an infringement notice for negligent driving.

The police officer read out the narrative of the accident which was relevantly:
“Witnesses informed police that vehicle one approached the sweeping left-hand turn, when it oversteered, and crossed into the path of oncoming vehicles travelling westbound.”
This version differs to the version in the police records in that there is no reference to

Mr Thomas travelling “at speed”.
Photographs have been provided which appear to be taken by the police. The claimant’s vehicle is a red Hyundai Getz. There is significant front and driver’s side deformation damage, airbags can be seen as deployed and there is blood and smashed glass. One of the scene photographs shows yellow and black chevron alignment markers on the side of the road where the claimant crashed.

Insurer’s investigator’s report

The insurer retained Brooksight investigations to enquire into the accident. Attached to the first report was a copy of the police officer’s statement.
The witness, Mr Hunter was contacted but he declined to make a statement saying he did not actually see the vehicle cross to the incorrect side of the road but he stopped to provide assistance.
Dashboard camera footage from the investigator was provided showing the wide sweeping curve of the road and 12 black on yellow chevron markers around the curve. The road has one lane in each direction and there is a wildlife sign (koala) on the left side of the road.
The claimant’s statement was attached to a second report.

Bay Medical group – medical history

On 23 November 2019 the claimant attended on Dr Ehlers for a social anxiety disorder. He sought medication was physically very healthy, nervous and with normal cognition. The claimant was intending to travel to Thailand and work.
On 9 September 2020 he attended Dr Ehlers for insomnia and personal reasons.
An attendance on 30 October 2020 concerned problems with social anxiety bad when in small groups – no problems with strangers, Lexapro has helped a bit. He was keen to see a counsellor (referral to Mrs Richars and Mr Kraft) under a mental health plan and Diazepam given.
On 8 February 2021 the claimant reported having a new girlfriend and “everything [was] overwhelming” melatonin was working. He was counselled regarding sleep hygiene and relaxation and was advised to call 000 or go to hospital if there was a crisis. On

25 February 2021 anxiety and insomnia issues were again the topic of the attendance.
On 29 April 2021 he was referred for a sleep study as his partner was said to be unable to sleep due to his snoring. On 12 May 2021 he said he waked 10 times a night. On

24 May 2021 he had the sleep study which revealed “severe obstructive sleep apnoea and “needs urgent attention as truck driver” and a referral to a sleep physician was provided (Professor Nelsey, Dr Arnold and Dr Ambrogetti). On 26 May 2021 Dr Biplap amended the referral and advised the claimant not to drive until he had seen the sleep specialist.
On 21 July 2021 the claimant was seen by Dr Biplap for anxiety and tiredness and the claimant was again advised not to drive. The claimant had not been taking his escitalopram for a long time.
On 3 December 2021 Dr Biplab received a call from John Hunter Hospital about the claimant’s left ring finger. The claimant had discharged himself against medical advice and the doctor was concerned and requested Dr Biplab encourage the claimant to reattend. The claimant saw Dr Biplab on 6 December 2021 and had gone back to hospital and was seen again on 10 and 17 December 2021. It was noted that the claimant was not taking the injury seriously.
On 23 December 2021 Mr Thomas attended for social anxiety again and medication was prescribed.
On 3 March 2022 the claimant saw Dr Biplab for the purposes of his driver license upgrading from HR (Heavy Rigid) to MC (multi-combination – highest type). The claimant was myopic, sleep apnoea (needed specialist clearance) anxiety disorder, he had high BMI and recent finger injury.
On 31 March 2022 “long discussion of not taking the sleep apnoea seriously – he did not even try to go and see sleep specialist or optometrist. Advised he may lose his licence and lose his job.” By May 2022 the claimant was back at work tolerating light duties with the finger and on 4 May 2022 was certified fit for pre-injury duties.
On 20 June 2022 Dr Biplab writes:
“Tyson is a gentleman who has severe anxiety disorder. He has social phobia specially when it comes to the treatment part. Recently he had a work cover accident and there was lots of trouble to manage him in hospital. He is a heavy vehicle driver with HC driving licence. He needs clearance to continue driving safely from the mental health Point of view.”
On 14 November 2022 Dr Biplab records:
“Presented for Clearance RTA.
Severe OSA: seen specialist - Trial of CPAP could not tolerate - Now referred to ENT for corrective surgery - Passed MWT - cleared by Sleep Physician Dr Tun Myat on 02/11/22.
Seeing Emma Richardson Psychologist for anxiety disorder. As per Emma Anxiety is not affecting his driving. Need correspondence sent to me.
O/E All clinical exam unremarkable
Plan - Print out of RTA form 3/3/22 given to the patient. No psychiatrist review was recommended.”
On 22 November 2022 the claimant attended Dr Vo and advised he needed a letter to the RTA which had advised him he needed to see psychiatrist and not a psychologist. The claimant reported his anxiety was well managed currently and he does not want medications. He was in a new relationship and very happy. He had seen a psychologist and respiratory specialist who had cleared him for driving.
On 6 December 2022 the claimant attended for further issues regarding his driving, he had failed a drug screening test (for Diazepam) but passed two subsequent tests.
On 7 June 2023 the claimant visited Dr Vo seeking a letter for the purposes of a job interview as to why Valium was prescribed. Mr Thomas told Dr Vo he used it once a month due to severe social anxiety.
In a referral to Dr Myat dated 27 July 2023[15] the claimant’s past medical history is said to include a social anxiety disorder (from 2020) and a compensation claim for a fourth finger amputation (in 2021). The purpose of this referral was for a driving assessment.
[15] Page 9 of the insurer’s bundle.
On 29 July 2023 the claimant saw Dr Vo as the claimant had lost his license due exceeding his demerit points. He had therefore cancelled the sleep review (presumably with Dr Myat) and needed a Centrelink MC saying he was unable to work in retail. On 1 November 2023 he advised Dr Vo he had lost his license due to driving under the influence and speeding but sought referral to sleep physician as he was hopeful of getting his license back. In a further referral dated 1 November 2023 the medications of Pristiq and Sertraline are mentioned.[16]
[16] Page 14 of the insurer’s bundle.
Dr Vo recorded on 21 December 2023:
“Social anxiety, hot flushing when going on dates.
On Pristiq, previously on Sertraline. Slightly better on Pristiq.
Diazepam use prn intermittently before dates - script given for 10 tabs.
Severe OSA however no daytime sleepiness. Cancelled Dr Myat review - not driving trucks anymore due to interlock and DUI. Just on a regular C license.
Discussed [alcohol] abstinence.”
On 11 January 2024 the claimant reported that since having the alcohol interlock device attached in July 2023, he had consumed no alcohol. On 23 February 2024 Dr Vo records the claimant was downgrading his license, had seen Dr Myat but was unable to tolerate the CPAP machine but his wakefulness test was normal and he had no daytime sleepiness.

Dr Myat’s records

Dr Myat wrote to Dr Biplab on 21 June 2022 giving this history:
(a)    when he first arrived in the Hunter region, he reported significant anxiety living away from home and his parents;
(b)    he consumed a lot of alcohol at the time, which contributed to his poor sleep and fatigue;
(c)    he had a diagnostic sleep study last year due to reported loud snoring and fatigue, and
(d)    this showed severe obstructive sleep apnoea with oxygen desaturation. He attributed the result to previous alcohol usage.
The claimant was well, not fatigued or anxious and had a new job and was settled in the region. He denied any daytime sleepiness and reported sleeping well. While he still snored, his partner was not bothered by it. Dr Myat arranged for a repeat sleep test.
On 7 July 2022 after the further sleep test the claimant was diagnosed with very severe obstructive sleep apnoea and “I have explained the sleep study results, cardiometabolic complications and legal obligations of driving with untreated obstructive sleep apnoea. I have advised him of notifying the condition to the RMS”.
The claimant had injured his back and did not want to trial CPAP but Dr Myat arranged for him to have a wakefulness test to assess daytime vigilance.
On 2 November 2022, Dr Myat reports the claimant could not tolerate CPAP and surgery was discussed and the claimant was referred to a surgeon. In the letter to Dr Biplab, the claimant was said to have a wakefulness score of 39.1 minutes, and a urine test was positive for Benzodiazepine and cannabis. Dr Myat says the wakefulness test was normal. The claimant says he used CBD oil purchased from an online shop to relax his muscles but rarely uses it and that Valium was used to treat anxiety;
“Tyson denies of daytime sleepiness or falling asleep behind the wheel; his MWT test was normal. As such, I've taken the liberty of completing RMS fitness to drive for his commercial driver’s licence.”
Dr Myat saw the claimant on 6 November 2024 and said “he appeared to have a syncope episode and MVA, possibly due to seizure, for ongoing assessment.” He noted the claimant was under neurological review and organised for a repeat sleep study and wakefulness test.
Dr Myat conducted a further sleep study on 21 May 2025 with nearly eight hours of sleep and a total sleep time of 2 hrs and 16 minutes. Sleep efficiency was said to be poor. Snoring was recorded and the maintenance of wakefulness test was 40 minutes. Dr Myat concluded the claimant had poor quality sleep with moderate obstructive sleep apnoea but that he was able to maintain full alertness during the day. Dr Myat certified the claimant fit for an unconditional private and commercial driver license.

Dr Bleasel, neurologist

Dr Bleasel provided a report to the claimant and Dr Vo. The claimant said he had no recollection of the accident, was not intoxicated and was driving home from work and subsequently developed seizures.
The seizures happened after Mr Thomas was discharged, and he did not remember them. The claimant denied any other events.
There was no history of epilepsy in his family and not head injuries of central nervous system infections. He had a normal MRI after the accident. Dr Bleasel remarks that “it is suspicious that he may have had a seizure causing the accident, although we do not have any clear evidence of that”. He considered the ambulance report from the accident and noted the claimant had no memory of being confused or at the scene “which is suspicious of a seizure causing the accident” but noted also that no seizures were seen or reported at the scene or while in hospital after that.
Dr Bleasel noted the history from the neurology team in hospital who interviewed the family and confirmed no history or funny event in the past but “might terrors and difficulty sleeping”.
In a second report dated 12 May 2024 Dr Bleasel notes there have been no further seizures for a year. He records the claimant does not drink, has a diagnosis of sleep apnoea but is fit, normal weight, does not drink, works out at a gym and walks most days. He suggested the claimant was fit for a conditional license for a regular car and is to see him at the end of the year.

THE APPROACH TO DISPUTES ABOUT FAULT IN STATUTORY BENEFITS CLAIMS

Sections 3.11 and 3.28 of the MAI Act are in similar terms. Section 3.11 says in respect of weekly statutory benefit as follows:
“(1) An injured person is not entitled to weekly payments of statutory benefits under this Division … more than 52 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person[17], 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%.”
[17] Section 3.28(1)(a) adds the words “and the person is over 16 years of age at the time of the motor accident” to create an ongoing entitlement to statutory benefits for treatment and care expenses for children.
Justice Mitchelmore in AAI Limited t/as GIO v Evic[18] interpreted these sections and applied them to the circumstances of a single vehicle accident. In the course of her reasons, Justice Mitchelmore said the following:
(a) an injured person’s entitlement to benefits “does not depend on establishing the fault of a person …” A claimant does not need to prove anyone was at fault, in order to obtain benefits (including ongoing benefits) under Part 3 [55];
(b) leaving aside threshold injury issues, statutory benefits continue or cease pursuant to ss 3.11 and 3.28 if the injured person is wholly or mostly at fault. “The qualifiers ‘wholly or mostly’ inform each other and are intended to address the same mischief, namely, contributory negligence” [56];
(c) ss 3.11 and 3.28 “are directed at the extent to which the injured person’s failure to take reasonable care contributed to the motor accident.” That is the contributory negligence relevant to the accident (not the injury) and accommodates “all types of motor accidents including single vehicle accidents where the injured person is the owner driver” [57];
(d) s 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of Division 8 of Part 1A of the Civil Liability Act 2002 s 5R(2)(a) which provides the test for negligence or contributory negligence is “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person” [60], and
(e) if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) directs the next step is to assess the degree of contributory negligence that is “just and equitable in the circumstances of the case” [73].
[18] [2024] NSWSC 1272 (Evic).
Therefore, the starting point is to make findings of fact about what Mr Thomas did or did not do and then determine whether he departed from the standard of a care of a reasonable person in his position.
The factual findings I must make must be supported by logically probative evidence as the High Court said in Australian Broadcasting Tribunal v Bond[19] and any inferences drawn must be reasonably open on the facts.
[19] (1990) 170 CLR 321; [1990] HCA 33 at 367.
Justice Schmidt in Insurance Australia Limited t/as NRMA v Richards[20] (Richards) dealt with the doctrine of res ipsa loquitor and inferences of negligence or fault. Mr Thomas, who has not been legally represented throughout these proceedings would not be expected to be aware of this doctrine and the insurer’s representative (who might have been aware of it) in this case did not refer to it. Res ipsa loquitor translates from the Latin and means “the thing speaks for itself”. Justice Schmidt explains it as follows:
“[101] … Res ipsa loquitor is not a distinct, substantive rule of law, but an inferential reasoning process, applied where the plaintiff bears the onus of proof in relation to alleged negligence … In this case it was the insurer who had to prove fault, a concept which under this statutory scheme encompasses negligence and so was, accordingly, also entitled to rely on this inferential reasoning process.”
[20] [2023] NSWSC 909 at [45] (Richards).
In the Richards case, the injured person was the only occupant of her vehicle and drove onto the wrong side of the road, colliding with another car. She had no memory of what happened and could not therefore give evidence of what caused the accident. Her Honour said at [113]:
“Even though there was no evidence of what had actually caused Ms Richards to veer as she did into the path of the oncoming vehicle, that did not preclude a finding that she was wholly or mostly at fault for the accident. In resolving that dispute, both the result of the application of the [res ipsa] doctrine and what all of the relevant circumstantial facts and evidence established, considered as a whole, had to be taken into account by the member in coming to a conclusion about whether the insurer had met the burden of proof which fell upon it.”
The case of Richards also establishes (at [22]) that the onus of proof in satisfying me whether the claimant is “wholly or mostly at fault” lies with the insurer.

CONSIDERATION OF THE ISSUES

Findings of fact

There is no dispute that the claimant lost control of his vehicle as he was going around a sweeping left hand bend on Nelson Bay Road and that his vehicle travelled onto the incorrect side of the road and down an embankment. There is however no clear cause of what caused the claimant to lose control of his vehicle.
Having considered the information and evidence presented, I am satisfied:
(a)    that the accident was not caused by any mechanical failure or issue with the claimant’s tyres – I make this finding on the basis of the claimant’s evidence that his car (and the tyres) were in roadworthy condition, the police records do not suggest there was an issue and the insurer has not presented any evidence to the contrary;
(b)    the road design or signage did not contribute to the accident. I make this finding on the evidence that the police report does not suggest the state of the road was a factor. There was a sweeping left hand bend, but that bend was signed by the many chevron alignment markers on the opposite side of the road to where the claimant was travelling;
(c)    the claimant was not affected by drugs or alcohol. The insurer has led no evidence to suggest otherwise, and the police report indicates blood test was negative;
(d)    the claimant was not on his mobile phone or otherwise distracted. The claimant’s unchallenged evidence from his statement was to this effect and the insurer has not presented any evidence to the contrary. The officer in charge had been unable to locate a mobile phone in the vehicle and therefore did not believe that was an issue;
(e)    the accident was not caused by an animal on the roadway. While the claimant originally said an animal may have caused the accident he has since resiled from that evidence. He explained that he had no memory and could not say what caused the accident and therefore cannot say with any certainty that it was an animal. I note the presence of a koala crossing sign at around the location of the accident, but the police report does not include any suggestion of an animal from the claimant or any of the witnesses, and
(f)    the accident was not caused by, or as a result of, the claimant having a seizure. While Dr Bleasel, a neurologist and Dr Myat, a sleep physician considered the claimant may have had a medical episode, Mr Myat did not have all the material and Dr Bleasel acknowledges, having considered the ambulance and hospital records and the claimant’s family history that there is no evidence of there being a seizure. The insurer had led no medical evidence to suggest the accident was caused by a seizure and in fact submits the claimant did not have a seizure leading up to the accident.

Was the accident caused by fatigue?

The insurer’s submissions suggest that “the claimant’s driving whilst fatigued, on a background of severe obstructive sleep apnoea was the sole contributing factor” which caused the accident.
The insurer relies on the 2022 diagnosis of sleep apnoea by Dr Myat and the police officer’s conclusion from his statement to investigators.

The claimant’s medical records indicate issues with sleep as far back as 9 September 2020 (insomnia) and 29 April 2021 (snoring disturbing his partner). In 2022 the claimant was diagnosed by Dr Myat in July 2022 with severe sleep apnoea and a wakefulness test was arranged. In November 2022 Dr Myat cleared the claimant to drive because his wakefulness test was normal. At that time the claimant denied daytime sleepiness or falling asleep behind the wheel.
The insurer relies on the police officer’s statement to its investigator who in turn relies on his body worn camera interview. The police officer thought the claimant worked at a scrap metal yard, recalled that the claimant said he had been up early that morning, going to the gym and then going to work and “he indicated fatigue was an issue”. I note that the claimant was not working in a scrap metal yard but was a storeman at Hammersley Products a cleaning products supplier and that the claimant was on his way to the gym and had not been to the gym that morning.
The interview with the police officer does not include a transcript of the body worn camera interview with the claimant at the scene and no copy of the body worn camera footage has been provided to me. There is no mention of fatigue in the police narrative or final report. The statement that Senior Constable Saba gave to the investigator appears to have been given from his memory supplemented by the report. Noting the inaccuracies about the claimant’s employment and his attendance at the gym, and the absence of any contemporaneous documented evidence of fatigue, I do not accept the police officer’s opinion that fatigue was to blame.
The ambulance officer’s report that the claimant was confused and the police records suggesting he was incoherent suggests that any evidence the claimant gave at the scene would be unreliable in any event.
The claimant has given evidence in his statement and to me that he was not tired and he was not fatigued. I accept that evidence.
I am not satisfied on the balance of probabilities that the claimant was fatigued in the moments before the accident or that fatigue was the cause of the claimant’s accident.

Did the claimant’s driving cause the accident?

Mr Thomas said to the insurer in his application for internal review that he was cleared of “any wrongdoing” by the police. This is not quite correct. While the claimant was not charged with a serious driving offence or other criminal matter, he was given an infringement notice for negligent driving. While he could have contested the notice, he did not and chose to pay the fine.
A finding by the police that the claimant was driving negligently is evidence, but I am not bound by that finding. The police action does not determine whether the claimant is “wholly or mostly at fault” for the purposes of the MAI Act.
A vehicle veering onto the wrong side of the road is, as Justice Schmidt said in Richards, at [102] something that “logically … does not typically occur without negligence.”

Was the claimant speeding?

The parties agree the speed limit was 80kmph and there is no evidence of a speed advisory sign suggesting that speed limited should be adjusted for the curve.
The insurer’s submissions lodged at the Commission says the claimant was travelling at “high speed”. One version of the police narrative reports that witnesses say the claimant was travelling “at speed” the other does not. While the police have said in one part of their report that the claimant’s speed was 100 kmph there is no indication of where (or from whom) this evidence about speed came from, and whether that speed was the speed the claimant was driving before he lost control of his car or after.
Mr Stewart who was the only witness to give a statement to the police said he did not see the accident and what caused the claimant to lose control, just what happened to the vehicle after it lost control. If he did not see Mr Thomas’ vehicle before it lost control, I do not accept that he would have been in a position to give evidence about its speed before he saw it.
The claimant told me he has no recollection of the accident which is consistent with the history he gave to ambulance officers, hospital personnel, the police and the insurer’s investigator. Mr Thomas is said to have told the police officer after he was discharged that he did not recall his speed but did not believe he was speeding. The police officer said there were no skid marks, and he did not believe speed was a factor.
Mr Thomas had lost his license once before in 2022 for driving under the influence and for speeding. He told me his license was important to him and that he would have been unable to get to work without it which indicates he may not have been likely to be careless as to his speed.
On the basis of the evidence before me, I am not satisfied on the balance of probabilities that the claimant was driving at a speed greater than the speed limit. In the absence of any expert evidence, I am not prepared to make a finding as to the precise speed of the claimant’s vehicle at the time of the accident.

What other aspects of Mr Thomas’ driving are relevant?

The parties agree that while it was not raining at the time of the accident, the road was wet.
I am of the view that it is a reasonable inference to draw that a wet road can be slippery and that the presence of a wet road requires additional attention to be paid to the manner of driving and that the speed of the vehicle should be adjusted to below the posted speed limit.
The police narrative suggests that witnesses informed police the claimant “oversteered” crossing onto the incorrect side of the road and then down the embankment. As I understand the concept, oversteering of vehicles occurs when the rear wheels of a vehicle lose grip on the road (often due to the condition of the road) and the vehicle steers into a corner more (harder, tighter or firmer) than is expected. While it is not clear who gave the evidence about oversteering and what their experience was in forming that opinion, I accept that the trajectory of the claimant’s vehicle, as depicted in the police diagram supports a finding that the claimant did oversteer his vehicle which led to it veering across the road and down the embankment.

IS THE CLAIMANT WHOLLY OR MOSTLY AT FAULT

Did Mr Thomas contribute to the cause of the accident?

The standard of care expected by Mr Thomas, as imposed by the Civil Liability Act 2002, is that of a reasonable person in his position. If I find that he failed to meet that standard of care, then I must make a finding of contributory negligence against him.
As Mr Thomas said in his application for internal review there is no “reasonable explanation as to why the accident occurred.” A vehicle veering onto the wrong side of the road is, as Justice Schmidt said in Richards, at [102] something that “logically … does not typically occur without negligence.” There is no evidence of any defect in Mr Thomas’ vehicle. There was no mechanical or brake failure or bald tyres. Having excluded these and a number of other possibilities raised by the parties and the evidence, in my view I can draw an inference that it was the way in which Mr Thomas was driving his motor vehicle that caused his accident.
I am of the view that in the way he was driving, Mr Thomas did fail to meet the standard of care expected of him. Mr Thomas was familiar with the road having driven to and from work along that road for several months. He would have been aware of the sweeping bend. He knew it had been raining, and that the road was wet. In my view a reasonable person in his position would have adjusted the manner in which they usually drove the corner including the speed in order to safely navigate the sweeping bend.
I am therefore of the view that Mr Thomas did contribute to the cause of his accident and that he did breach the standard of care and therefore there must be a finding of contributory negligence made against him.

What is the degree of Mr Thomas’ contribution?

In Evic, Justice Mitchelmore said that where there is more than one protagonist involved in a motor accident, contributory negligence is assessed by apportioning the culpability of each as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk.[21]Justice Mitchelmore also said that in a single vehicle motor accident, contributory negligence can still apply. Acknowledging the difficulty in assessing contributory negligence in a single accident case where there is no one to measure the claimant’s conduct against, Justice Mitchelmore at [68] said “the inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence” and she cited two cases from the previous compensation scheme, Axiak v Ingram[22] and at [69] Davis v Swift.[23]
[21] [2023] NSWSC 788.
[22] [2012] NSWCA 311 (Axiak).
[23] [2014] NSWCA 458 (Davis).
In Axiak, the 14-year-old claimant had run out from behind a bus into a car travelling carefully at or below the speed limit. The degree of her contributory negligence was determined at 50%.
In Davis a pedestrian standing on a median strip stepped backwards without looking into the path of traffic. The Judge in that case said at [52] “in the range of possible departures from that standard of care, the appellant's conduct is not an example of a worst possible case” and assessed the claimant’s contributory negligence at 80%.
In Serrao (by his Tutor Serrao) v Cornelius (No 2)[24] the Court of Appeal considered a similar provision to s 3.38 of the MAI Act and what the fair and equitable reduction for contributory negligence was on the part of an intoxicated pedestrian walking along the side of the road, in dark clothing in the early hours of the morning. The Court found a series of ameliorating factors provided “a sound basis for rejecting the respondent’s submission that the appellant’s damages should be reduced by 100 per cent”. The degree of that claimant’s departure from the standard of care was found to be 50%.
[24] (No.2) [2016] NSWCA 231 (Serrao).
Mr Thomas has given me no submissions as to the degree of his contribution although he did say to the insurer when seeking internal review there was no evidence of him “driving recklessly”. The insurer has also not given me any suggestion as to a particular percentage submitting that the claimant is wholly (100% contributory negligence) or mostly (greater than 61%) at fault.
I am of the view that the claimant’s departure from the standard of care is not significant. As per Davis, in considering the “range of possible departures” his is not “an example of a worst possible case” and, following Serrao, there are a number of reasons why his contributory negligence should be assessed at less 100%:
(a)    he was not intoxicated or affected by drugs;
(b)    he was not using his mobile phone or otherwise distracted;
(c)    he was not driving against medical advice in respect of a medical or sleep related condition;
(d)    he was not driving a vehicle with mechanical defects;
(e)    I have found he was not speeding in excess of the speed limit;
(f)    I have found he was not fatigued, and
(g)    the road surface was wet.
In simple terms, Mr Thomas failed to take a sweeping left hand bend in the wet and as a result lost control of his motor vehicle.
In my view the degree of his departure from the standard of care is 30% and therefore in circumstances of Mr Thomas’ case, the just and equitable degree of his contributory negligence is 30%.

CONCLUSION

As I have found the degree of Mr Thomas’ contributory negligence is 30% which is of course not greater than 61% it follows therefore that the accident on 20 March 2024 was not caused wholly or mostly by the fault of Mr Thomas.

[2025] NSWPIC 289

23 June 2025