1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident on

6 October 2023 was not caused wholly or mostly by the fault of Mr Ahmadi. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on

6 October 2023 was not caused wholly or mostly by the fault of Mr Ahmadi. 3. A statement of my reasons for this determination is attached to this certificate.

1. Abolfazl Ahmadi (claimant) was injured in a motor vehicle accident at Merrylands on

6 October 2023 (accident). There were two vehicles involved in the accident, one driven by the claimant and the other by Golnaz Bazdar. The vehicle driven by Ms Bazdar was insured by Allianz Australia Insurance Limited (insurer). 2. Following the accident, the claimant made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on the insurer. On 6 March 2024 liability to pay statutory benefits after 52 weeks was denied by the insurer on the basis that, for the purposes of ss 3.11 and 3.28 of the MAI Act, the accident was caused wholly by the claimant's fault. The insurer's decision was affirmed by an internal reviewer on 10 October 2024. 3. The claimant disputes that the accident was caused wholly by his fault. He commenced these proceedings against the insurer on 6 June 2025. The disputes to be determined by the Personal Injury Commission (Commission) are miscellaneous claims assessment matters: Sch 2 cl 3(d) and (e).

1. Preliminary conferences were held on 3 July 2025 and 14 August 2025. Case management directions were made and are recorded in the conference reports. The parties were directed to file a joint hearing bundle. A hearing date was appointed in circumstances where the claimant submitted the proceedings were not suitable to be determined on the papers.
2. The proceedings were listed for hearing by AVL on 5 November 2025. At that time reasons were given for leave being granted to the insurer to rely on the documents the subject of two applications to lodge additional documents.
3. The evidence included two audio recordings produced by NSW Police. The first recording related to a call made to Police on the day of the accident and the second to a call to Police on 11 October 2023.
4. The hearing did not proceed in circumstances where: the parties sought to rely on what was said in the calls; the audio was unclear in parts and may have been the subject of dispute; the claimant was to be questioned about the calls; it was determined transcripts of the calls were required before the claimant gave evidence. Directions were made for transcripts of the calls to be filed prior to the resumed hearing.

1. The hearing resumed by AVL on 10 December 2025. The parties agreed the transcript of the two calls to Police that had been filed were accurate. The claimant gave evidence and was cross examined. Both parties made oral submissions.
2. The claimant sought, and was given, leave to file written submissions addressing costs. He was directed to do so on or before 15 December 2025. The insurer was directed to file any submissions in reply by 18 December 2025.

1. The claimant is not entitled to statutory benefits under Part 3 of the MAI Act more than 52 weeks after the accident if the accident was caused wholly or mostly by his fault: ss 3.11(1)(a) and 3.28(1)(a).
2. Sections 3.11(1)(a) and 3.28(1)(a) are directed at the extent to which an injured person's failure to take reasonable care contributed to the accident and are concerned with contributory negligence not for the injury, but for the accident: AAI Limited t/as GIO v Evic [2024] NSWSC 1272 (Evic) at [57].
3. The burden of proving the accident was caused wholly or mostly by the fault of the claimant lies with the insurer. It is for the insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that on all of the evidence, it can be concluded the accident was caused wholly or mostly by the fault of the claimant: Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 at [45], [55] and [67].
4. 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 s 3.38, was greater than 61%: ss 3.11(2) and 3.28(2) of the MAI Act.
5. The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies: s 3.38(1). If a finding of contributory negligence is made, it is to be assessed as a percentage that reflects what the Commission determines is just and equitable in the circumstances of the case, none of the circumstances referred to in s 3.38(2) being relevant, and there being no percentage fixed by the regulations: s 3.38(3)(c).
6. The enacted law includes Div 8 of Pt 1A of the Civil Liability Act 2002 (CL Act). Section 5R(1) of the CL Act provides that the principles that apply in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. For that purpose, the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person: s 5R(2)(a) CL Act.

1. The documentary evidence relied on by the parties is contained in the hearing bundle filed by the insurer on 31 October 2025. The bundle includes the material that was the subject of the insurer's two applications to lodge additional documents. The parties also rely on the audio recordings of two calls made to Police and transcripts of those calls. In addition to the documentary evidence the claimant gave oral evidence and was cross examined.

1. The earliest version of the accident provided by the claimant was in a call made to the Police Emergency Line shortly after the accident occurred. Relevantly, the transcript of the call records as follows:

"ABOLFAZL AHMADI: It's a two car accident. She come - she come from the some Street towards Merrylands Road and I was going straight to Merrylands Road. So she hit my car. She hit my car.

ABOLFAZL AHMADI: Yeah, she hit my car from front to the back side..."

1. When the claimant called the Police Assistance Line on 11 October 2023 he said, relevantly:

"ABOLFAZL AHMADI: And I get - and I get back a street, she come through, I guess, that was Rubina Street in Merrylands Road. So she crossed the street towards Merrylands Road without stopping."

1. The transcript also records the following exchanges between the claimant and the operator:

"ABOLFAZL AHMADI: So like she crossed the road and come towards - to me, yes, from the back part.

POLICE ASSISTANCE LINE OPERATOR: Okay. So I just want to confirm, so you were travelling on Merrylands Road?

POLICE ASSISTANCE LINE OPERATOR: Travelling east?

ABOLFAZL AHMADI: Yes. Second - the - the line in the second line towards to

POLICE ASSISTANCE LINE OPERATOR: Okay. Yes. So what happened? So has she come out of a street and smashed into you or something?

ABOLFAZL AHMADI: Yeah. She just drive from the other side the road, and she just drive - she want to like turn right to the - like a - she want to come to the Merryland Road, go towards the east.

ABOLFAZL AHMADI: So she just crossed the roads from the other line, come to this line.

ABOLFAZL AHMADI: From the other side of the street, you know what I mean? Not next to me, from the far away, you know.

ABOLFAZL AHMADI: Just - yeah, because the road was maybe a little clear from the other side. So just want to take the chance quickly. She told me maybe she can manage, come maybe behind me or (indistinct) yeah. And then she couldn't, yeah.

POLICE ASSISTANCE LINE OPERATOR: Yes. I can see the intersection there. So I've got Rubina Street, as you said, on Merrylands. That sort of intersection. So that's where she has turned out and then she has got you.

1. Later in the transcript there is the following exchange in which the claimant described the point of impact on his vehicle:

"POLICE ASSISTANCE LINE OPERATOR: ... You were travelling east on Merrylands Road. So tell me a little bit about where she has hit you. Where has she hit you?

ABOLFAZL AHMADI: At the - the drive side, the drive side. My car is the back door - back door top of -

ABOLFAZL AHMADI: Yes, top of the rim and bumper.

POLICE ASSISTANCE LINE OPERATOR: Okay. So she has hit you with her - the front end of her car.

1. The transcript subsequently records the claimant stating that the other vehicle hit the "back half" of his vehicle and that he saw the damage to the other vehicle located on the left, passenger side, "front bumper".
2. Finally, the transcript contains this exchange:

"POLICE ASSISTANCE LINE OPERATOR: Okay. Yes. So I'm just going to add in her vehicle was not towed. She was turning right on to Merrylands Road and she has hit you from - she has hit the passenger rear - no, the driver's rear side with her front left end.

ABOLFAZL AHMADI: Yes, driver's side, yes. Exactly."

1. In his application for personal injury benefits dated 6 December 2023, the claimant provided the following description of the accident:

"I was driving down Merrylands Road, when the driver at fault came out from Rubina Street and t-boned my car."

1. On or about 10 September 2024 the claimant provided the following version of the accident to Budget Direct:

"I was travelling from the Cumberland Highway direction and going East on Merrylands Road going about 55 kms an hour in the right side lane when a dark silver Hyundai Sante [sic] Fe came down Rubina Rd (a side street) and made a right turn into Merrylands Rd and right into my car. The female driver did not check first and came right into me. It was my right of way. There were just the 2 vehicles involved. This was clearly the other driver's fault as I was moving on the main road with right of way and she turned too quickly from side road without checking..."

1. On 15 September 2024 the claimant provided the following description of the accident[1]:

"I was travelling east on Merrylands Road ... in the right lane at approx 55 kms per hour, when unexpectedly the driver side of my vehicle, toward the rear, was struck by another vehicle. The vehicle, a dark silver Hyundai Santa Fe, had turned right onto Merrylands Road from Ruth Street. It appeared to me that the driver did not check sufficiently for cross traffic and simply did not see my vehicle. Immediately after the collision, I saw in my rearview mirror that the female driver of the Hyundai indicated for us to pull over; we drove a short distance and turned left onto Burnett St, where we stopped to check the vehicles. The Hyundai had damage to its front bumper bar on the left side. She immediately began harassing and intimidating me, accusing me of being at fault...

Note: In my original accident report, I mistakenly stated that the Hyundai had turned right from Rubina St when the accident happened I wrote down the wrong street name from [G]oogle maps, as I was stressed due to the accident."

1. A diagram prepared by the claimant on 15 September 2024[2] depicts his vehicle travelling in an easterly direction on Merrylands Road wholly in the right-hand lane, another vehicle slightly ahead of him in the left-hand lane, and Ms Bazdar's vehicle on a slight angle entering the right-hand lane on Merrylands Road from Ruth Street. The front left side of Ms Bazdar's vehicle is depicted colliding with the rear right side of the claimant's vehicle.
2. The claimant gave a statement dated 7 February 2025. Relevantly, he stated:

"[6] On 6 October 2023 I was travelling east along Merrylands Road. I was in the right lane approaching the intersection of Fowler Road.

[8] As I was approaching the intersection of Fowler Road, suddenly and without warning my vehicle was struck on the right rear quarter panel by a vehicle that has exited a side street.

[9] I was initially mistaken and thought that the side street was Rubina Street upon review I now believe the street to have been Ruth Street.

[10] The impact was sudden and came out of the blue. I was shocked..."

1. The claimant described events following the accident, including that he provided his comprehensive insurer, Budget Direct, with a version of the accident. He also stated that Ms Bazdar's statement is "incorrect and a fabrication of the events that occurred".
2. The claimant gave oral evidence and was cross examined at the hearing on

10 December 2025. His evidence was given with the assistance of an interpreter. 3. In response to questions asked by Mr Eirth, the claimant gave evidence that a solicitor assisted him complete the claim form. He later confirmed he had the benefit of an interpreter to complete that document. He did not see the vehicle driven by Ms Bazdar prior to the collision. He recalled that as he drove along Merrylands Road he felt "very strong shaking" and his car was "moved" as a result of the collision.

1. Ms Allen questioned the claimant about the description of the accident recorded in the claim form, in particular the reference to his vehicle being "t-boned". The claimant's evidence was that he didn't say "t-boned"; he said the other vehicle hit the back of the vehicle he was driving and that he felt the "shaking and the moving of the car".
2. The claimant's evidence was that as he approached Ruth St he had been travelling in the right-hand lane for "a fairly long time from the top of Merrylands Road" and that he "was going down the same lane on the right lane."
3. The claimant gave evidence that he was traveling at a speed of 50km/h. He said, "there was a large distance", "maybe 150 metres - I don't know exactly", to the lights ahead at the intersection of Merrylands Rd and Fowler Rd/Burnett St. After the accident he slowed his vehicle down. He looked in the mirror and saw the other driver pointing. Both he and the other driver turned left into Burnett St and stopped their vehicles.
4. The claimant's evidence was that prior to the collision he was heading towards Merrylands station to pick up passengers. The station was located some 2 ½ to 3km away from the accident scene.
5. The claimant also gave evidence that there was a car to his left, "a little behind", at the time the collision occurred. In response to a question about whether, when he initially felt the impact, he had gone past the intersection of Ruth St, the claimant responded that he "was not paying attention" and said "I was just driving something hit me and I slowed my car down."

1. The call to the Police Emergency Line on the day of the accident involved both the claimant and Ms Bazdar. Although she did not provide a description of the accident while on that call, it is clear Ms Bazdar disagreed with the version of the accident provided to the operator by the claimant and that she considered him to be at fault for the accident. The following exchanges recorded in the transcript of the call illustrate the point:

"GOLNAZ BAZDAR: Please, I have been assaulted in my street. I come in my street, I come into Merrylands Road.

POLICE PHONE OPERATOR: Okay. We don't determine who is at fault...

GOLNAZ BAZDAR: (Indistinct) please can you come?

POLICE PHONE OPERATOR: So, yes, I can send - I will definitely send police out to your location, okay. I can hear you.

GOLNAZ BAZDAR: Can you come? Can you come? He is lying.

POLICE PHONE OPERATOR: Slow down. Police do not determine who is at fault.

GOLNAZ BAZDAR: Never ever I didn't get the accident. I didn't anything. I (indistinct)...

POLICE PHONE OPERATOR: I need details of both vehicles, ma'am.

GOLNAZ BAZDAR: I give you for him, not my fault...

ABOLFAZL AHMADI: I give everything. You give me your details I give my details. That's it. You give your driver's licence -

1. On 23 October 2023 Ms Bazdar provided her property damage insurer with a diagram depicting the accident. Under the diagram she recorded the following description of the accident:

"I was driving my car...strait ahead in the right lane at Merrylands RD and the other party ... came into my lane and hit my car from left-hand front his car was damaged right-hand middle."

1. Ms Bazdar gave a statement dated 23 January 2024. Relevantly, the statement records as follows:

"[29] ...The accident occurred very close to my home on Merrylands Road travelling east between Ruth Street and Fowler Road. The speed limit is 60 kilometres per hour. There are two lanes eastbound and I was in the right lane...

[35] I left my driveway and drove north a short distance on Ruth Street to Merrylands Road and I stopped to give way to traffic on Merrylands Road for two to three minutes. I was wanting to turn right. I usually have to wait for the lights to turn red at Fowler Road so I can turn out of my street. After a few minutes I was able to turn right out of my street. There were no cars to my right side on Merrylands Road. To my left there was [t]raffic at a distance from me on Merrylands Road. They were far away near the traffic lights a few hundred metres to my left.

[36] I turned out of my street. I turned right and turned into lane 2 of 2, the right lane. I was travelling slowly as I was traveling slow to the traffic lights were green. I drove slowly as there was traffic in front of me and there was by this time a car behind me. I was travelling about 45 to 50 km/h.

[37] Suddenly a red Toyota Camry came from my left side, from the left lane at speed and cut across the front of my car. The red car glances across the front passenger side wheel of my car and then came to a stop in front of me. It seemed he was in a hurry to get into the lane in front of me, he just jumped in front of me. The lights turned red in front of us and he came to a stop. I felt if the lights had not changed he would not have stopped.

[39] The male person got out of his car and came to me and started blaming me. He did not want to [ex]change drivers' licence so I called Police. He was saying the accident was my fault and did not want to exchange details.

[40] Police came and made him exchange details...

[41] My car had minor damage to the front left side. I drove from the scene and continued to go shopping. The red Toyota had minor damage to the rear left side wheel arch area and the male driver of that vehicle drove from the scene.

[42] I did not t bone the other car. The red Toyota was in lane 1 of 2 and trued [sic] to cut in front of me in lane 2 and hit my car."

1. Ms Bazdar stated that at the time of the collision it was fine and sunny, that the road was dry and visibility was good. Her evidence is that the roadway was well lit with natural light, and that the traffic was light. In her opinion the conditions did not contribute to the collision. She stated that the force of the accident was, on a scale of one to ten, a two.

1. The diagram provided by the claimant[3] depicts the collision occurring when his vehicle was in the right-hand lane on Merrylands Road. Ms Bazdar's vehicle is depicted turning right into Merrylands Rd from Ruth St. The point of impact is the rear driver's side of the claimant's vehicle and the front left side of Ms Bazdar's vehicle.

1. Ms Bazdar has provided two diagrams depicting the accident. The diagram prepared on

23 October 2023 depicts her vehicle wholly in the right -hand lane and the claimant's vehicle entering her lane from the left lane. Both vehicles are depicted in close proximity to the intersection of Merrylands Rd. Ruth St is not depicted in the diagram. Ms Bazdar's vehicle is wholly in the right lane. The claimant's vehicle is partly in the left lane and partly in the right lane, with the point of impact at the front left of her vehicle and the rear drivers side of the claimant's vehicle. 2. The second diagram prepared by Ms Bazdar is dated 23 January 2024. In that diagram Ms Bazdar's vehicle is wholly in the right lane and the claimant's wholly in the left lane. The path of the claimant's vehicle from the left lane to the right lane is indicated with an arrow. 3. The photographs of the claimant's vehicle depict damage to the rear driver's side of the vehicle, proximate to the wheel arch. Photographs of Ms Bazdar's vehicle appear to show damage to the front left of her vehicle. 4. While I am satisfied the photographic evidence is of sufficient quality to allow me to make findings about the location of damage to the vehicles, I am not satisfied the photographs enable me to make findings about the accident dynamics.

1. The claimant relies on undated written submissions. His case is that:

(a) prior to the accident he was travelling in an easterly direction along Merrylands Road, Merrylands, in the right lane approaching the intersection of Fowler Road;

(b) he had driven the route on many occasions;

(c) as he was approaching the intersection of Fowler Road a vehicle collided with the rear right quarter panel of his vehicle;

(d) the driver of the other vehicle had exited from Ruth Street and had failed to keep a proper lookout;

(e) at all material times he was driving along Merrylands Road in the right lane "obeying the road rules", and

(f) the damage to his vehicle is consistent with his version of the accident.

1. The claimant submits Ms Bazdar was wholly at fault for the accident because she did not keep a proper lookout and failed to make a right turn safely.

1. In brief submissions dated 24 October 2025 the claimant argued the insurer's submission that Ms Bazdar's version is more consistent with the objective photographic evidence is not open in the absence of expert opinion.
2. In oral submissions Mr Eirth argued the claimant had given consistent versions of the accident and his evidence should be accepted. He submitted that the claimant's evidence should be given greater weight to that of Ms Bazdar because it had been tested in cross examination. In Mr Eirth's submission, the damage profile to the vehicles was consistent with the version of events given by the claimant.
3. Mr Eirth argued that while the claimant had not seen the other vehicle prior to feeling the impact of the collision, he had been consistent in his evidence that the rear right of his vehicle had been hit. In his submission, the damage to both vehicles was consistent with the claimant's version of events. Mr Eirth submitted that the insurer had not made out its case that the accident was caused wholly or mostly by the fault of the claimant.

1. The insurer relies on written submissions dated 27 June 2025. The insurer's case is that:

(a) Ms Bazdar entered Merrylands Road from Ruth Street;

(b) prior to entering Merrylands Road Ms Bazdar gave way to vehicles on Merrylands Road;

(c) there were no cars to Ms Bazdar's right side on Merrylands Road. To her left there was traffic at a distance from her on Merrylands Road near the traffic lights a few hundred metres to her left;

(d) Ms Bazdar turned right from Ruth Street into lane two of two (the right-hand lane) on Merrylands Road. She was travelling slowly as there was traffic in front of her, and by that time, a car behind;

(e) Ms Bazdar's speed was approximately 45 - 50km/h;

(f) the claimant came from Ms Bazdar's left side in the left lane, and cut across the front of Ms Bazdar's vehicle, glancing across the front passenger side wheel and then coming to a stop in front of her, and

(g) the accident occurred due to the fault of the claimant.

1. The insurer relies on Ms Bazdar's evidence that: "it seemed [the claimant] was in a hurry to get into the lane in front of me, he just jumped in front of me. The lights turned red in front of us and he came to a stop" and that "I did not T bone the other car. The red Toyota was in lane 1 of 2 and tried to cut in front of me in lane 2 and hit my car."

1. The insurer submits that Ms Bazdar's version is more consistent with the objective photographic evidence and that the damage seen to the claimant's vehicle is consistent with a glancing swipe, as opposed to a blunt force T-bone impact, as alleged by the claimant.
2. The insurer argues Ms Bazdar's account of the claimant's vehicle coming to stop, after the lights turned green, indicates the collision did not occur within the intersection of Ruth Street and Merrylands Road as asserted by the claimant, but rather, wholly within Merrylands Road.
3. The insurer relies on Ms Bazdar's evidence that she was wholly within the right lane, travelling at a speed of 45 - 50 km/h, when the claimant cut across her path.
4. In oral submissions, Ms Allen argued that the damage to the vehicles was inconsistent with the claimant's version of events and more consistent with Ms Bazdar's version. She argued it was difficult to reconcile the damage to the rear wheel arch of the claimant's vehicle with his account. In Ms Allen's submission, the damage to the claimant's vehicle was not consistent with Ms Bazdar's vehicle entering his lane.
5. The insurer also argued that the speed at which the two vehicles were travelling, together with the damage to the vehicles, supported Ms Bazdar's version of events and was inconsistent with the claimant's version.
6. The insurer's case was that the claimant's vehicle merged from the left lane into the right lane and into the path of Ms Bazdar's vehicle. In the insurer's submission the collision occurred closer to the intersection of Merrylands Road and Fowler Road/Burnett Street.
7. Ms Allen argued that Ms Bazdar had provided consistent accounts of the accident and that her evidence should be accepted.

1. The accident occurred at or about 8 am on 6 October 2023. Weather conditions were fine, and the road was dry. There is no dispute that when the accident occurred the claimant was traveling in an easterly direction on Merrylands Road. Nor is there a dispute that for vehicles traveling in that direction on Merrylands Road there were two traffic lanes. The speed limit on Merrylands Road was 60km/h. Neither party argues the other was travelling in excess of the speed limit.
2. There is no dispute that prior to the collision Ms Bazdar had proceeded from Ruth Street onto Merrylands Rd. There is, however, a dispute about the position of her vehicle on the roadway when the accident occurred.

1. There is also a dispute about the position of the claimant's vehicle on Merrylands Rd, in particular whether his vehicle was in the right lane when the collision occurred or whether he moved from the left into the right lane and in doing so caused the collision.
2. The insurer placed significant emphasis on the claimant's use of the term "T-boned" in his claim form to describe the accident and submitted he had changed his story in that in oral evidence he said the accident was not a "T-bone" collision. I do not accept this submission. The version of the accident provided in the claim form is brief when compared with the other versions of the accident given by the claimant. He did not use the term "T-boned" on either of the two occasions he spoke to the Police operator. Nor did he use the term in the versions of the accident he gave the property damage insurer on 10 and 15 September 2024. Further, it is not what he described in his statement dated 7 February 2025, not what he said in his oral evidence, and is not consistent with the diagram he provided on 15 September 2024.
3. I am satisfied the term "T-boned" was used by the claimant in the claim form as a short-hand way of describing the accident. He did not use it as a term of art. I am not satisfied on the probabilities that the claimant has changed his version of events.
4. As submitted by Mr Eirth, in critical respects the versions of the accident provided by the claimant have been consistent. Of particular significance, he has consistently stated that prior to the collision he was in the right-hand lane on Merrylands Rd travelling east. The claimant's evidence has been tested in cross examination. Ms Bazdar's evidence has not. I accept the claimant's evidence with respect to the following matters:

(a) when the accident occurred he was traveling to Merrylands Station to collect passengers;

(b) the distance from the location of the accident to Merrylands Station was 2 ½ - 3 km;

(c) prior to the accident he had been travelling in the right-hand lane for "a fairly long time from the top of Merrylands Rd";

(d) at the time of the collision, he was travelling in the right-hand lane on Merrylands Rd at a speed of approximately 50km/h;

(e) he felt "very strong shaking" and his car was "moved" as a result of the collision, and

(f) he did not see the vehicle driven by Ms Bazdar prior to the collision.

1. While I accept the claimant's evidence there was a vehicle in the left-hand lane, I consider it more likely than not that vehicle was ahead of his vehicle as depicted in the diagram he prepared on 15 September 2024. The diagram was prepared earlier in time and is likely to be more accurate than the oral evidence he gave over two years after the accident.
2. I do not apprehend there to be a dispute about the location of the damage to the vehicles involved in the accident. The photographs in evidence depict damage to the rear driver's side of the claimant's vehicle and the front passenger's side of Ms Bazdar's vehicle. I am not satisfied the damage to the vehicles is inconsistent with Ms Bazdar's vehicle colliding with the rear of the claimant's vehicle.
3. I find on the probabilities that:

(a) the accident occurred as Ms Bazdar was turning right from Ruth Street into Merrylands Road;

(b) in the course of turning into Merrylands Road the front left side of Ms Bazdar's vehicle collided with the rear driver's side of the claimant's vehicle proximate to the wheel arch, and

(c) when the collision occurred the claimant's vehicle was travelling in the right-hand lane on Merrylands Rd.

1. During the course of oral submissions, the insurer acknowledged that its case that the accident was caused wholly or mostly by the fault of the claimant hinged on the claimant being in the left lane and moving from that lane into the path of Ms Bazdar's vehicle in the right-hand lane. It follows from the findings I have made that the insurer's case is rejected.
2. The insurer has not established on the balance of probabilities that the accident was caused wholly or mostly by the fault of the claimant. I find that for the purposes of ss 3.11(1)(a) and 3.28(1)(a) the accident was not caused wholly or mostly by the fault of the claimant.

1. The claimant makes an application for costs under s 8.10(4)(b) of the MAI Act. By that provision, the Commission can permit payment of legal costs incurred by a claimant but only if satisfied that exceptional circumstances exist that justify payment of legal costs incurred by the claimant.

1. In support of his costs application the claimant relies on written submissions dated

15 December 2025. At [3] - [8] the claimant refers to background matters and the legal work undertaken to challenge the insurer's denial of liability. He refers to and relies on AAI Ltd trading as GIO v Moon [2020] NSWSC 714 (Moon). The claimant argues that the following matters support the costs order sought being made:

(a) there was a significant factual dispute with respect to the circumstances in which the accident occurred;

(b) extensive preparation was required including: review of an investigator's report obtained by the insurer, review of transcripts relating to recordings of calls to the Police Emergency Line, review of property damage files, conferences involving the claimant and his legal representatives, the preparation of a statement and detailed written submissions, and

(c) counsel was retained to represent the claimant at the hearing at which he (the claimant) gave evidence and was cross examined.

1. The insurer opposes the claimant's costs application. In written submissions dated

18 December 2025 the insurer argued that none of the tasks identified by the claimant in his submissions, whether viewed individually or cumulatively, constitute exceptional circumstances within the meaning of s 8.10(4)(b). 2. The insurer submits that:

(a) the review of documentation relevant to the dispute, including the factual investigation, the NSW Police material and the property damage documentation is "routine and expected in a dispute such as this";

(b) recent decisions of the Commission confirm that the analysis and extraction of relevant information from police material does not of itself constitute "exceptionality" and that such work was within the contemplation of the legislature when the regulated cost framework was introduced;

(c) there is nothing in the work undertaken by the claimant's lawyers that is unusually technical, voluminous or novel;

(d) the drafting of a statement is a foundational aspect of legal representation in a dispute such as this and that taking detailed instructions, drafting witness statements and refining evidence for use in proceedings is "a core function assumed within the regulated costs";

(e) attendance at an "AVL hearing" is expressly contemplated by the Commission's procedures, and

(f) the hearing did not involve any unusual procedural steps, extended duration or issues of a kind not routinely encountered by the Commission.

1. In the insurer's submission the regulated costs provisions represent a deliberate policy choice to limit costs in motor accident claims and that to allow exceptional costs in this claim would significantly dilute that policy.

1. To be "exceptional circumstances" the circumstances must be unusual or out of the ordinary, whether as a result of qualitative or quantitative factors. The case need not be unique, unprecedented, or very rare. The question is determined on the basis of the facts of the individual case: San v Rumble (No 2) [2007] NSWCA 259 at [67].
2. Exceptional circumstances can include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually of no particular significance, when taken together are seen as exceptional: Ho v Professional Services Review Committee No 295 [2007] FCA 388 at [26].
3. In Moon Wright J said that s 8.10(4) is designed to deal with particular, unusual situations where the maximum costs fixed by the Regulations may not be adequate. Wright J held at [99] that:

"...other cases can be envisaged which are exceptional, because they involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant. These cases fall within s 8.10(4)."

1. I have taken into consideration the factual matters in dispute, the legal issues in dispute, my assessment of the legal work undertaken in connection with the proceedings, the written submissions filed by the parties and the various listings before the Commission. I am not satisfied exceptional circumstances exist that justify payment of legal costs incurred by the claimant. The critical factual matters in dispute were within a narrow compass as were the legal issues. Neither the factual nor legal issues were complex. The material relied on by the parties was not voluminous. The claimant's written submissions addressing the substantive issues are brief, comprising a little over two pages. The claimant's statement is just over two pages in length and addresses both the circumstances of the accident and his injuries. The hearing on 10 December 2025 took a little over 1 ½ hours.

1. The insurer is to pay the claimant's reasonable and necessary legal costs in accordance with the Regulations. There are two disputes, one relating to the denial under s 3.11 and the other to the denial under s 3.28. Each dispute is a miscellaneous claims assessment matter.
2. I am satisfied the claimant's reasonable and necessary costs in each dispute should be assessed at the maximum allowed by the Regulations, $2,031 plus GST. The insurer is to pay the claimant's legal costs in the sum of $4,062 plus GST.