CERTIFICATE OF DETERMINATION OF MEMBER  	

Citation:	 
Paton v Insurance Australia Limited t/as NRMA Insurance [2022] NSWPIC 460	
		
Claimant:	Chad Paton	
		
insurer:	Insurance Australia Limited t/as NRMA Insurance	
		
Member:	Stephen Boyd-Boland	
		
DATE OF DECISION:	15 August 2022	
		
CATCHWORDS:	MOTOR ACCIDENTS -  Miscellaneous claims assessment matter; whether for the purposes of sections 3.11 and 3.38 of the Motor Accident Injuries Act 2017 the motor accident concerned was caused by the fault of another person; whether the insurer is entitled to cease statutory benefits payable in respect of the motor vehicle accident; two vehicle incident, no collision between the two vehicles; claimant forced to brake suddenly; claimant momentarily distracted; Podrebersek v Australian Iron and Steel Pty Ltd considered; Held — the accident was caused wholly by the fault of the claimant. 
	
determinations made:	Issued under section 7.36(4) of the Motor Accident Injuries Act 2017 and clause 7.497 of the Motor Accident Guideline.
The findings of the assessment of this dispute are as follows:
1.	For the purposes of section 3.11 the motor accident was caused wholly by the fault of the injured person.
2.	For the purposes of section 3.28 the motor accident was caused wholly by the fault of the injured person.
3.	Effective Date: This determination takes effect on 15 August 2022. 
4.	Legal Costs: No order as to cost.	

Reasons for Decision
Issued under section 7.36(5) of the Motor Accident Injuries Act 2017
Background
This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d) and Schedule 2(3)(e) of the Motor Accident Injuries Act 2017, about whether the motor accident concerned was caused by the fault of another person and whether the Insurer may cease statutory benefits for treatment and care expenses as the motor accident concerned was caused mostly by the fault of the injured person.
1.	There is a dispute between Chad Patton and the Insurer in respect of whether;
a.	for the purpose of section 3.11 of the Act the motor accident concerned was caused by the fault of another person with the provisions of Schedule 2 clause (3)(d) of the Act; and
b.	for the purpose of 3.28 of the Act, the Insurer may cease statutory benefits for treatment and care expenses as the motor accident concerned was caused mostly by the fault of the injured person with the provisions of Schedule 2 clause (3)(e) of the Act; and potentially
c.	for the purpose of 3.38 of the Act, the Insurer is entitled to reduce statutory benefits payable for contributory negligence with the provisions of Schedule 2 clause (3)(g) of the Act.
2.	The claimant asserts that he sustained injuries as a result of an incident on 6 January 2021.
3.	On 7 May 2021 the Insurer made a determination that the Claimant was wholly at fault. The issues relate to the specific circumstances of the motor accident.
4.	The Claimant then sought an internal review of the decision on or about 13 May 2021.
5.	On 8 June 2021 the Insurer confirmed its earlier determination.
6.	The dispute relates to the specific circumstances of the motor accident as well as a legal analysis of those circumstances. 
7.	On or about 26 June 2021 the Claimant lodged a Dispute Resolution Service Application form.
8.	On or about 2 July 2021 the Insurer lodged a Dispute Resolution Service Reply.
9.	A Teleconferences was conducted on 23 September 2021, the Claimant represented himself but there were difficulties communicating. 
10.	A further Teleconferences was conducted on 11 October 2021, the Claimant did not attend. 
11.	There was a Teleconferences on 15 June 2022 the Claimant attended and there were directions that the Claimant provide any statement or further submissions by 13 July 2022.
12.	There was a Teleconferences on 15 July 2022 and the Claimant did not attend. The Claimant had not provided any statement or further submissions by 13 July 2022. The Claimant was provided with the opportunity to provide any statement or further submissions by 29 July 2022. It was noted that following that a determination would be made on the papers.
13.	The Claimant did not provide any statement or further submissions by 29 July 2022.
14.	As at 15 August 2022 the Claimant had not provided any statement or further submissions and not made any contact with the Commission to explain the failure to do so.
Documents considered
15.	I have considered the documents provided in the application and the reply and any further information provided by the parties.
16.	The parties had confirmed that the documents to be relied upon consisted of an Application, A1, A2 and A3 and a Reply and R1.
Submissions
17.	The Claimant did not provide written submissions.
18.	The Claimant was given the opportunity to do so on multiple occasions.
19.	The Insurer's submissions were set out in the written submissions dated 2 July 2021.
20.	The Insurer maintains that the Claimant was wholly at fault.
REASONS
The Assessment
21.	An Assessment was undertaken on the papers.
22.	In the application the Claimant makes reference to income payments and treatment expenses.
23.	I accept that pursuant to Schedule 2(3)(d), (e) and (g) there are disputes in respect of sections 3.11, 3.28 and potentially 3.38.
24.	The Claimant’s Application for Personal Injury Benefits dated 12 January 2021 provides “Didn’t hit anyone else, locked up and slide out…see attached pages”.
25.	The additional pages include:
“ …  I look down on my instruments to check my speed there looked to be a spider on my instrument cluster when I look back up I notice the two cars in front of me was slowing down rapidly I then started to slow down and not sure what happen if I’d hit a patch oil on the road but my front wheel locked up and the bikes slide out from under me…”.
26.	The Application for Internal Review notes:
“ …  I didn’t hit anyone and believe if my wheel didn’t lock up and the bike slide out from under me I would not of hit anyone and I wouldn’t be in this predicament…It was a freak accident completely out of my control I was travelling a safe distance behind the cars in front I look down for a split second to check my speed my instruments there was a spider on my instruments when I looked back up the car in front of the car in front of him sopped rapidly which caused them to emergency stop which caused me to put my brakes on and being on a big motorcycle with a small contact patch on the road it didn’t take much for my front tire to skid out from under me if my tire didn’t slide out from under me I would’ve stopped there wouldn’t of been any incident ”.
27.	An email dated 19 May 2021 includes:
“The bit where it says I was travelling too fast and too close is not something that I ever said and My rear wheel never slid out it has nothing to do with my rear brakes what happen was I was travelling along at a safe distance I looked down to check my instruments noticed a spider I then looked up to follow traffic again and realise the two cars in front of me has rapidly stopped for no reason that I’m aware of I then applied my front brakes to slow down the next thing I knew my font wheel locked up and slid out from under me doesn’t take much small bump in the road in the small contact patch of the tire can lose traction on the road which cause the brakes to lock up and the bike went out with me with it if my bike at ABS I believe the incident would never happened as I would’ve stopped and I would never of hit the car that was in front of me anyway”.
28.	Mr Chad Paton provided a signed Statement on 10 February 2021 provides:
a.	At paragraph 12 “The Suzuki M109 Boulevard was serviced prior to the purchase in 2019. The servicing requirements for this motorbike is every 12 months. I was planning to schedule an appointment for servicing and maintenance however the accident occurred”;
b.	At paragraph 18 “The visibility along Wattle Street, Dobroyd Point NSW was clear, and I had no obstructions to my vison. There was no sunstrike directed to my way of travel. As the accident occurred during the daytime, there was natural lighting. There were no issues with the lighting during my travels”;
c.	At paragraph 22 “The roadway condition along Wattle Street, Dobroyd Point NSW is of average quality. I cannot recall whether or not there were potholes or loose gravel along the roadway surface.”;
d.	At paragraph 23 “I cannot comment on whether or not the roadways condition contributed to the collision”;
e.	At paragraph 31 “I noticed an insect on my front instrument. I looked down towards the instrument and was also checking my speed. It was a quick glance, however by the time I looked up towards the roadway. I noticed the Mitsubishi Outlander reducing speed at a rapid pace. I wasn’t able to observe the other vehicle in front. I cannot advise the reason behind the first vehicle coming to a sudden stop, as I couldn’t see that far ahead”;
f.	At paragraph 33 “The front wheel of the Suzuki M109 Boulevard locked. At this point of time, it felt like the wheel was instantly locked. I attempted to keep steering the Suzuki M109 Boulevard in a straight direction. The wheel pulled towards the left side and the Suzuki M109 Boulevard dropped onto the roadway. The left side of the Suzuki M109 Boulevard made contact to the ground”;
g.	At paragraph 63 “I cannot advise the cause of the collision. The locking on the front wheel contributed to the collision, however I can’t advise the reason behind the locking. There are unknown variables.”.
29.	Daniel Coughlin described the motor vehicle accident in his email dated 12 May 2021;
“We were the vehicle ahead of the motor cycle. I was driving. My wife Sarah was front passenger. Our two kids were in the back seat. We were travelling south along City West Link. Traffic was medium-heavy. The basic info is I had to brake quite suddenly, as a utility in front of me was braking quite hard. I checked the rear view mirror and saw the motor cycle rider (Chad) apply he brake on the handlebar of the cycle. I saw the cycle tip over and start to slide in my rear view mirror. I believe Chads helmet made contact with the concrete barrier on the eastern side of the south bound lanes. I tried to keep moving forward so that the ride wouldn’t also collide with us. When the rider and bike stopped sliding, I stopped our car. There was no collision between the bike, rider or our car…”.
30.	I have considered the various other documents setting out the detail of the circumstances of the accident and find them to be generally consistent with the evidence of Daniel Coughlin and the evidence of Chad Patton.
31.	I accept that on 6 January 2021, the claimant was involved in an incident. 
32.	I accept the evidence of Daniel Coughlin in relation to the circumstances of the incident.
33.	I accept the evidence of the Claimant, Chad Patton, in relation to the circumstances of the incident.
34.	The evidence of Daniel Coughlin is, in my view, generally consistent with the evidence of Chad Patton. To the extent to which there is any conflict between the evidence of Daniel Coughlin and the evidence of Chad Patton, I prefer the evidence of Daniel Coughlin.
35.	I accept that at some point there was a need for the traffic, including the Insured Driver to brake promptly. There is no evidence to the effect that the Insured Driver was negligent in relation to this.
36.	I accept that at or about that time, the Claimant was not looking at the road ahead but was looking at the instruments and was momentarily distracted by an object on or near those instruments.
37.	After the momentary distraction the Claimant looked up and then needed to brake suddenly and heavily.
38.	In braking heavily, the Claimant’s brakes locked, and he lost control of his vehicle.
39.	I do not accept that there is any evidence of negligence on the part of the Insured driver.
40.	The facts established are consistent with an incident occurring requiring prompt braking, the Claimant being momentarily distracted, and as a result of that not being able to safely stop his vehicle as a consequence of having been momentarily distracted.
Legislative framework and approach
41.	Section 3.11 provides:
3.11 Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks
(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 minor 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%. 
42.	Section 3.28 provides:
3.28 Cessation of statutory benefits after 26 weeks to injured adult persons with minor injuries
(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred 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 and the person was over 16 years of age at the time of the motor accident, or 
(b) the person's only injuries resulting from the motor accident were minor 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%. 
43.	Section 3.11(1)(a) and 3.28(1)(a) contemplate two circumstances, where "the motor accident was caused wholly … by the fault of the person” or where "the motor accident was caused …  mostly by the fault of the person”.
44.	In the circumstances of “mostly at fault” within the terms of Section 3.11(1)(a) and 3.28(1)(a) then by virtue of Section 3.11(2) and 3.28(2) consideration of contributory negligence is required within the terms of Section 3.38.
45.	It is the Insurer who is seeking to assert the application of Sections 3.11 and Sections 3.28 and the onus rests on the Insurer.
46.	Section 1.4 of the Act includes definitions, specifically "fault" means negligence or any other tort. 
47.	The reference in sections 3.11, 3.28 and 3.38 to “motor accidents” then enlivens Section 3B(2)(a) of the CLA which expressly provides that Divisions 1 to 4 and 8 of Part 1A of the CLA apply. 
48.	In my view in a two-vehicle accident, I would find one driver to be wholly at fault if there was no negligence on the part of the other driver.
49.	If I find negligence on the part of the other driver, the driver is not wholly at fault.
50.	The assessment involves a comparison of both the Claimant's and the Insured Driver's culpability (in the sense of the degree of departure from the standard of care of a reasonable person) and the relative importance of the act of the parties in causing the damage: see e.g. Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494. In that case the judgment of the Court provides:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
51.	Having found no evidence that the Insured driver was negligent, I find that within the terms of s 3.11 the motor accident was caused wholly by the fault of the person, the Claimant.
52.	Having found no evidence that the Insured driver was negligent, I find that within the terms of s 3.28 the motor accident was caused wholly by the fault of the person, the Claimant.
53.	Having found the accident was caused wholly by the fault of the person, the Claimant, there is no need to consider issues in relation to s 3.38.
Costs
54.	The Claimant represented himself. 
55.	I make no order as to costs.
Legislation
56.	In making my decision I have considered the following legislation and guidelines:
• 	the Act; 
• 	Motor Accident Injuries Regulation 2017; 
• 	Motor Accident Guidelines, and
•	the Civil Liability Act 2002