In accordance with Division 7.6 of the Motor Accident Injuries Act 2017

1. in accordance with s 3.38 of the Motor Accident Injuries Act 2017, the claimant's weekly payments of statutory benefits are to be reduced by 20% on account of the claimant's contributory negligence, and
2. the claimant's weekly benefits are to be reduced only from 52 weeks after the accident.

A statement setting out the Commission's reasons for the assessment is included with this certificate.

1. On 23 March 2025, Rashed Ahamed was involved in a motor accident. He was driving his ride share vehicle when he collided with a police vehicle at a roundabout.
2. On or about 23 March 2025, Mr Ahamed made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against QBE Insurance (Australia) Limited (QBE), the third-party insurer of the motor vehicle Mr Ahamed believes caused the accident.
3. The insurer accepted the claim and paid Mr Ahamed his statutory benefits. On 4 July 2025 QBE wrote to Mr Ahamed informing him of two decisions:

(a) QBE denied liability for ongoing benefits after 23 March 2026 on the basis Mr Ahamed's only injuries sustained in the accident were threshold injuries within the meaning of the MAI Act, and

(b) QBE alleged the claimant was partly responsible for the accident and assessed his contributory negligence at 50% which would apply to his weekly statutory benefits paid after 23 March 2026.

1. The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. On 8 July 2025 the insurer affirmed the decision about threshold injury but amended its decision concerning contributory negligence reducing to 20% the allegation of contributory negligence. The claimant does not agree with both decisions and on

12 August 2025 referred the two disputes to the Personal Injury Commission (the Commission) for assessment and determination. 2. The claimant's dispute about whether his injuries are threshold injuries or not has been allocated to Medical Assessor Fitzsimons to assess and she is examining the claimant on

1 December 2025. 3. The dispute about contributory negligence has been allocated to me for assessment.

1. Mr Ahamed has made 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.
2. 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 the injured person only has threshold injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident.
3. Under s 3.38(1), weekly benefits after the first 52 weeks are reduced by the degree of the injured person's contributory negligence. The MAI Act prescribes at s 3.38(2) a finding of contributory negligence in certain circumstances (such as not wearing a seat belt) otherwise the presence of contributory negligence is determined by application of the common (judge made) law and enacted law (law made by parliament).
4. The MAI Act at s 3.38(4) allows for the mandating of a percentage reduction for certain conduct in the Motor Accident Regulation[1] otherwise is, unless agreed by the parties, determined by the Commission as whatever is "just and equitable in the circumstances of the case.
5. Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether statutory benefit should be reduced for the claimant's contributory negligence.

1. The claimant's application for assessment identifies three matters in dispute declared as miscellaneous claims assessments matters in Schedule 2 of the MAI Act as follows:

(a) accident caused by the fault of another person - Cl 3(d);

(b) no fault accident - cl 3(g1), and

(c) reduction for contributory negligence cl 3(g).

1. While his application lists three separate disputes there is no dispute about fault on the part of the police officer and for that reason Mr Ahamed's accident is not a no-fault accident. The only dispute that can be (and has been) referred for assessment is the contributory negligence dispute.
2. Mr Ahamed indicates the date of internal review (1 August 2025) and provides brief details of the internal review decision. He says that the original decision was set aside, and the insurer substituted a decision alleging contributory negligence at 20%. The claimant advised there is a related threshold injury dispute lodged for the purposes of a medical assessment.
3. In his application for internal review, Mr Ahamed says he disagrees that he contributed to the accident saying the "other vehicle came from my left side suddenly not a head on approach."
4. At the preliminary conference, Mr Ahamed said that because the police officer crossed onto the incorrect side of the road and approached the intersection from Mr Ahamed's left and not his right he had no chance to see the police vehicle and could not avoid the accident.

1. The insurer's original liability decision alleged 50% contributory negligence on the basis that Mr Ahamed "contributed to the accident by failing to heed an approaching police vehicle which was at all material times displaying flashing blue or red lights and sounding an alarm." The insurer says this is a breach of rule 79 of the NSW Road Rules 2014 (the Road Rules).
2. In the internal review decision, after citing the evidence from both the claimant and the police, the insurer cites the following Road Rules:

(a) Rule 78 which says drivers must not move into the path of an approaching police vehicle with lights and or siren activated;

(b) Rule 79 which says that drivers must give way to police vehicles with lights and or siren activated;

(c) Rule 114 - the driver entering a roundabout must give way to "any vehicle in the roundabout", and

(d) Rule 306 - the rules do not apply to persons driving a police vehicle if the police driver is taking reasonable care, and it is reasonable that the rule should not apply and if the vehicle is moving with the lights or siren activated.

1. While the insurer conceded the police driver did not take reasonable care when entering the roundabout and was at fault, the insurer said that Mr Ahamed:

"... did not exercise reasonable care or maintain sufficient vigilance when approaching and then entering the roundabout, particularly given the close proximity and presence of emergency vehicles with lights and sirens activated."

1. The insurer was of the view the claimant had an opportunity to stop when the lights of the police vehicle were first seen and to therefore avoid a collision. The insurer suggests it was "challenging" for the claimant to have anticipated the police car would be driven into the roundabout on the wrong side and for that reason reduced the allegation of contributory negligence from 50% to 20%.
2. In the submissions lodged by the insurer, QBE:

(a) acknowledges that the police vehicle entered the roundabout on the wrong side of the road and the driver did not take reasonable care;

(b) says the claimant was aware there were police operations in the area and should have been aware of the possibility of other police vehicles travelling at speed in the area;

(c) submits the claimant had sufficient time to observe the presence of the vehicle;

(d) argues the claimant was not keeping a proper lookout and should have slowed down and stopped before entering the roundabout, and

(e) cites the decision of the High Court in Sibley v Kais[2] in terms of the responsibilities of drivers on entering intersections.

1. I held a preliminary conference with the parties by MS Teams on 8 September 2025. I asked Mr Ahamed whether he had spoken to a lawyer or whether he wanted to speak with a lawyer. He said he had not engaged a lawyer and did not want to.
2. I confirmed with the parties that I was considering the dispute about contributory negligence only. I noted that the claimant had referred for medical assessment the injuries to his head (neck and shoulder), left hand (tingling and numb) and right wrist. I noted that the claim form and internal review application suggested the claimant had mental health issues. The claimant said he had issues at the beginning after the accident but not anymore.
3. I explained to both parties that in cases about fault and contributory negligence one or both of the parties would often obtain expert evidence in particular evidence about how photographs or film should be interpreted.
4. Mr Ahamed said he did not want to obtain any additional evidence. Mr Chatfield advised that the insurer was not intending to call any further evidence and was content for me to issue my decision based on my viewing and interpretation of the dashcam footage. The claimant also agreed that I should consider the film and apply my own experience to its interpretation.

1. The claimant lodged his application for personal injury benefits (claim form) online and describes the accident as follows:

"I was driving on Todman Avenue towards Anzac Parade from South Dowling Street around 2.00 am on 23/03/2025. When I arrived on roundabout corner of Todman avenue & Kensington Road, suddenly one police car ... came from Kensington Road wrong side from my left side & stopped in front of car & hit my front side of my car ... For this sudden hit I was injured my right-hand, wrist, shoulder & neck & damage my vehicle. Police called tow truck & sent my damage vehicle to holding yard..."

1. Mr Ahamed gave a statement to the insurer's investigator. He says:

(a) he is 38 years of age [11];

(b) he was driving a new vehicle [18];

(c) he was driving on Todman Road which he said was straight with a single lane in each direction [22];

(d) he says the accident involved a "fully marked police vehicle" [25] and the red and blue light were flashing but he "did not hear any siren" [26];

(e) he is very familiar with the road and travels along it a lot [31];

(f) he saw the other two police vehicles approaching with their red and blue lights on [37] and slowed down to about 20km/h as he approached the roundabout and by that time the police cars were "well passed me" [38];

(g) he entered the roundabout looking to his right and seeing no other vehicles in or approaching the roundabout from the right [39];

(h) he suddenly saw the police car on his left on the incorrect side of the road saying:

"I only saw that vehicle just prior to the moment of impact as it passed very quickly from my left to right into the roundabout and just as I entered the roundabout."

(i) he had no time to brake [41], and

(j) he estimated the speed of the police vehicle was 60 km per hour [42].

1. The claimant also said airbags did not deploy in his vehicle. He said the passenger left the scene after the impact and his vehicle was towed away.
2. Mr Ahamed says in this statement:

"The driver of the police vehicle was clearly at fault. He was on the wrong side of the road and entered the roundabout without checking to his right to see my vehicle entering. The police at the scene acknowledged their fault."

1. The claimant gave evidence at the preliminary conference in answer to my questions:

(a) he has been in Australia since 2005 and has been driving vehicles in Australia since 2013;

(b) he has been overseas on and off since coming to this country and came back in December 2024 and started driving again after that;

(c) he has been driving a taxi since 2013 and has been doing ride share (Uber and Didi) since 2017 or 2018;

(d) he knew about the rules concerning roundabouts to slow down and give way to traffic already in the roundabout. He said he only had to give way "to my right";

(e) he knew about the rules requiring him to slow down when there are emergency vehicles close by. He said "to 40 kms/h";

(f) when he saw the two police cars in Todman Avenue he slowed down;

(g) when he got to the roundabout he did not see or hear anything on his right side and moved into the roundabout;

(h) he did not see or hear the police car coming from his left, it "came from nowhere";

(i) his dash camera is not on the dashboard but on the windscreen, next to the rear-view mirror on the passenger side possibly a little bit higher than his eyes, and

(j) he is very familiar with Todman Avenue which is flat and straight. He agreed that Kensington Road was a bit downhill towards the roundabout.

1. The Police report is dated 27 March 2025 and was created by Constable Thomson of the South Sydney Police Area Command. The narrative details are said to be:

"VEH 1 [the police vehicle] was travelling Southbound on Kensington Road x Todman Avenue, and VEH 2 [the claimant's] was travelling Eastbound on Todman Avenue x Kensington Road. Both vehicles entered the roundabout ... with VEH 1 changing into the opposite direction lane prior to entering, and VEH 2 believed to be travelling in lane 2 of 2. At this time, VEH 1 front offside bumper contacted the front bumper of VEH2. VEH 1 sustained damage to the right mirror, panel damage to the front offside bumper and minor scratching to the front offside door. VEH 2 sustained damages to the front bumper. Both vehicles were able to still be driven, however VEH 2 was towed from the scene."

1. The time of the accident was stated to be 2.00am and the weather conditions were light traffic, sealed roads, street lighting on, find weather but the road slightly wet. No one was said to be injured in either car.
2. The investigating sergeant (who attended the scene) was interviewed by the insurer's investigator. He said:

(a) there was another officer in the car with the Constable who was driving [21];

(b) the Constable was attempting to join the pursuit that was already in progress [31];

(c) the Constable was demoted from a silver to bronze pursuit driver and no other action was taken [61], and

(d) he asked at the scene and the claimant said he was alright, and no one was injured [41] - [43].

1. The Constable was also interviewed by the insurer's investigator and said:

(a) he acknowledged an urgent pursuit call, and he went to assist [13];

(b) he saw what he believed to be the vehicle of interest "pass in front of me" on Todman Avenue [13];

(c) he travelled onto the wrong side of the road entering the roundabout from the wrong side and collided with the claimant's vehicle [13] and [32];

(d) he thinks he was travelling at 50 kms per hour but he does not recall the specific or exact speed [33];

(e) he had his lights and siren activated at the time [34], and

(f) he said he first saw the claimant's vehicle "pretty much on impact" [65].

1. The police officer says that he enquired about the claimant's health and the passenger in his car and both were fine. He says he offered them an ambulance but that the claimant said he was not hurt. The claimant had complained of right wrist pain and the constable encouraged him to go see his GP.

1. The insurer's investigator has provided a satellite image of the intersection which shows these features:

(a) Kensington Road has one lane for traffic in each direction (plus a parking lane on each side of the road);

(b) on each side of the roundabout, on the northern and southern side of Kensington Road there is a triangular road feature with white lines around it dividing the two lanes. There are broken white lines on the left-hand lane of each side of Kensington Road which is the give way line;

(c) Todman Avenue has one lane for parked cars and two lanes for traffic in each direction before and after the intersection with Kensington Road;

(d) the two lanes of Todman Avenue heading east are divided by a solid while line stretching for a few car lengths and there is also a triangular road feature surrounded by white lines dividing the two eastbound lanes of Todman Avenue from the two westbound lanes leading up to the roundabout;

(e) on the north-western side of the intersection (to the left of the claimant to the right of the police officer) there is a house with a front garden and the garden is surrounded by a raised white fence on top of a small wall, and

(f) in front of that house there is a shaped garden bed with a hedge on the left of the claimant and right of the police car which marks the end of the parking lane in Todman Avenue.

1. The dashcam footage commences with the claimant's vehicle being driven down Todman Avenue on a straight stretch of road approaching green lights at the intersection with what I understand to be Lenthall Street. After the lights, Todman Avenue bends to the left, the next intersection is Balfour Road (no lights, no roundabout) and the flashing red and blue lights of two police cars can be seen in the distance.
2. The claimant continues on past Balfour Road and three vehicles pass the claimant, the first is a taxi and then a police sedan followed by a paddy wagon both with their lights on. The police vehicles have the red and blue lights on the roof flashing and sirens activated. The lights are seen before the sirens can be heard.
3. In its internal review decision, QBE had identified the following time frames from the time stamp on the footage)

(a) 02:01:38 two police vehicles with activated lights and sirens can be seen travelling west on Todman Avenue;

(b) 02:01:50 the lights of the single (third) police vehicle are seen coming down Kensington Road, and

(c) 02:01:52 the collision occurs in the roundabout.

1. Having viewed the footage and stopped it at various points I agree with these time frames and add to that as follows:

(a) as the time stamp clicks over to 02:01:50, the second police vehicle a paddy wagon, can be seen exiting the roundabout and is on the right-hand side of the claimant's vehicle. There are no other cars behind this police car, and nothing can be seen on the left in Kensington Road;

(b) the claimant continues to approach the roundabout and with the time stamp still showing 02:01:50 Mr Ahamed appears to be about one or two car lengths before the roundabout and the flashing lights of another police car can be seen over a fence to the claimant's left;

(c) as the time stamp clicks over to 02:01:51 two thirds of the police car can be seen. It has "cut the corner" before the triangular lane divider in Kensington Road and is on the wrong side of Kensington Road about a car length before the roundabout;

(d) as the time stamp clicks over to 02:01:52 the police car is in the roundabout to the left of the claimant's vehicle which is also in the roundabout and the impact is imminent, and

(e) the impact occurs and the claimant's car stops immediately whereas the insured vehicle travels on but is forced on top of the concrete part of the roundabout before moving out of view.

1. QBE says there should be a finding of contributory negligence, and the degree of contributory negligence should be assessed at 20%. The claimant says there should be no contributory negligence at all. I am therefore required to determine:

(a) whether there is any contributory negligence on the part of the claimant, and

(b) if so, the degree of that contributory negligence.

"The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies ... to weekly payments of statutory benefits ..."

1. The "enacted law" includes s 3.38(2) of the MAI which provides for the mandatory finding of contributory negligence in certain circumstances none of which apply in this case. The "enacted law" also includes provisions of the Civil Liability Act 2002 which provides at 5R that the standard of contributory negligence is that of a reasonable person in the position of the claimant based on what the claimant knew or ought to have known at the time.
2. The onus of proof in establishing contributory negligence lies with the insurer.

1. In order to assess contributory negligence, I must first make findings of fact as to the circumstances of this accident. Factual findings must be supported by logical and probative evidence. Any inferences drawn must be reasonably open on the facts see Australian Broadcasting Tribunal v Bond.[3]
2. Both parties rely on the CCTV footage. I am aware of the warnings issued by appellate courts in cases such as Blacktown City Council v Hocking[4] as to how photographs (which in my view would include CCTV footage) are to be used in the absence of expert evidence. There is no expert evidence in this case, and I am not an accident reconstruction expert however both parties have agreed that I should view the footage and draw my own conclusions from it.
3. I am satisfied as to the following:

(a) the police officer was driving at up to 60km/h as he entered the intersection (this evidence has not been challenged);

(b) the police car had its lights and siren activated (visible and audible to me on the CCTV footage);

(c) the police officer moved onto the incorrect side of Kensington Road and entered the roundabout going the wrong way (conceded by the insurer and viewed on the CCTV footage);

(d) the claimant was driving at about 20km/h as he approached the intersection (this evidence has not been challenged);

(e) the police car was visible to the claimant for approximately two seconds. I make this finding on the basis that the claimant's dashcam is at a similar level to the claimant's eye level and affords a similar view of what the claimant could have seen had he been looking and I have considered the time stamp on the footage;

(f) the claimant would have been visible to the police officer for the same or similar period of time;

(g) the claimant did not slow down significantly before entering the roundabout. The footage appears to show that the claimant slows as he sees the approaching police vehicles coming towards him along Todman Avenue and while the vehicle continues towards the roundabout possibly losing speed Mr Ahamed does not significantly alter his speed as he approached the roundabout, and

(h) the claimant did not look to his left before entering the roundabout. I make this finding on the basis the claimant gave no evidence about looking to his left and only gave evidence about looking to his right. He did not see (or hear) the police vehicle before impact which is consistent with him not looking to the left because the police vehicle was there to be seen if only for a short time.

Is there any contributory negligence on the part of Mr Ahamed?

1. The insurer points to several breaches of the Road Rules by Mr Ahamed. The Court of Appeal in the case of Verryt v Schoupp[5] made the following observation at [4]:

"Neither party referred to or relied upon any Australian Road Rule as relevant to the determination of any question of negligence and contributory negligence. That is perhaps explicable on the basis that the determination of what reasonable care requires in any given case is not resolved by asking whether the relevant conduct was or was not prohibited by one of those rules. Nevertheless, the fact that particular conduct is prohibited may in some cases be a factor pointing to the conclusion that reasonable care was not taken..."

1. While the Road Rules permit a police officer to disobey those rules, police officers are still required to take reasonable care, and the insurer has decided that the police officer in the current case has not taken reasonable care. The claimant may have breached rules 78 and 79 but the police chose not to take action against him.
2. The insurer cited the High Court decision in Sibley v Cais. That decision proposes that drivers cannot expect all other road users to obey the road rules, all of the time and that care must be taken on entering an intersection even with a green light or right of way.
3. In Manley v Alexander[6] the High Court said that:

"... the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events."

1. The insurer in its submissions argues that the claimant failed to keep a proper lookout, that he had the opportunity to see the approaching police vehicle and take action to avoid the collision and should have seen the approaching police vehicle and stopped before entering the roundabout.
2. I am of the view that the claimant's actions did contribute to the accident for the following reasons:

(a) the claimant said that he did not see or hear the police vehicle before the impact in circumstances where the police vehicle could be heard and was then there to be seen, and

(b) the claimant did not look to his left, in the direction of the siren and the lights and only looked to the right, looking for vehicles entering the roundabout from his right.

1. The claimant gave no evidence of looking to his left for vehicles approaching the roundabout from his left. He said he only looked to the right. He said he was aware of the Road Rules and thought he only had to give way to vehicles on his right. The rule relating to roundabouts cited by the insurer does not require a driver to only give way to vehicles on the right but to all vehicles in the roundabout. The High Court cases to which I have referred suggests drivers have to be aware of what is happening in the vicinity of their vehicles, including breaches of the Road Rules and be prepared for untoward events which may occur.
2. In my view a reasonable person in the position of the claimant:

(a) should have been alive to the possibility of there being other police vehicles in the vicinity;

(b) should have slowed down further before entering the intersection, and

(c) should have looked both left and right before entering the intersection.

1. I am satisfied that the claimant was not keeping a proper look out and that this failure to keep a proper look out contributed to the cause of the accident. Had the claimant looked left he would have had the opportunity to hear and then see the police vehicle before he did and in time to take action to avoid the collision.

What is the degree of the claimant's contributory negligence?

1. In assessing the degree of the claimant's contributory negligence, the conduct of Mr Ahamed and the police officer should be compared. One of the leading cases is Podrebersek v Australian Iron & Steel Pty Ltd[7] which talks about "a comparison both of culpability...and of the relative importance of the acts of the parties in causing the damage."
2. The insurer admits its insured was at fault and caused the claimant's accident. The relevant aspect of the police officer's driving includes:

(a) he had his lights and siren activated;

(b) he was not the primary person responding to an emergency but was joining two other police vehicles already in the pursuit of a suspect vehicle;

(c) he was travelling at between 50km/h (his evidence) and 60km/h (the claimant's evidence);

(d) he was on the incorrect side of Kensington Road heading towards a roundabout, and

(e) he was heading into Todman Avenue which is a more major road with two lanes of traffic in each direction.

1. The insurer has rightly conceded that the police officer is the predominantly culpable party.
2. Mr Ahamed had slowed down for the first two police cars and was not speeding towards the roundabout travelling at only 20km/h but he did not slow down enough. The claimant says he did not see or hear the police car before the collision. The claimant did not look left but only looked right. He did not look carefully enough before entering the roundabout and was not aware of all that was going on in the vicinity.
3. In my view the claimant's contribution to this accident is clearly not as great as that of the police officer but it was still a more than minimal contribution. I am of the view that the claimant's contributory negligence should be assessed at 20%.

1. Having determined that the claimant contributed to his accident and that the degree of his contribution should be assessed at 20%, the amount of Mr Ahamed's statutory benefits should be reduced. However, I note the reduction will not come into effect until

23 March 2026 on the first anniversary of the accident. This will of course depend upon his statutory benefits continuing in any event which in turn is dependent on the outcome of the threshold injury dispute.

[1] The Regulation does not specify any mandatory reduction for any circumstances at this time.

[2] [1967] HCA 43.

[3] (1990) HCA 33 at [367].

[4] [2008] NSWCA 144.

[5] [2015] NSWCA 128.

[6] [2005] HCA 79 as per Gummow Kirby and Hayne at [12].

[7] [1985] HCA 34 see [10].