MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; single-vehicle collision; whether accident was caused wholly or mostly by the fault of the injured person under sections 3.11 and 3.28; claimant swerved to avoid two rabbits while driving in a semi-rural area, lost control, and collided with a tree; insurer alleged claimant failed to take reasonable care by not braking and was wholly at fault; claimant argued evasive action was instinctive and road surface contributed to loss of control; "agony of the moment" principle considered; no evidence of speeding, distraction, impairment, or mechanical failure; no charges laid by police; Held - claimant's conduct did not amount to a substantial departure from reasonable care; accident not caused wholly or mostly by claimant's fault; statutory benefits to continue beyond 52-weeks.

Issued under s 7.36(4) of the Motor Accident Injuries Act 2017 and cl 7.497 of the Motor Accident Guidelines

1. For the purposes of Schedule 2, cl 3(d) and s 3.11 of the Motor Accident Injuries Act 2017 (MAI Act), the motor accident was not caused wholly or mostly by the fault of the injured person.
2. For the purposes of Schedule 2, cl 3(e) and s 3.28 of the MAI Act, the motor accident was not caused mostly by the fault of the injured person.
3. Effective Date: This determination takes effect on 2 February 2025.
4. Legal costs: The claimant's legal costs are fixed at $4,382.40 inclusive of GST, in accordance with the Motor Accident Injuries Regulation 2017.
5. A brief statement of my reasons for this determination is attached to this certificate.

1. This is a dispute about a miscellaneous claims assessment matter under the Motor Accident Injuries Act 2017 (MAI Act), Schedule 2, cll 3(d) and (e), as to whether, for the purposes of ss 3.11 and 3.28 of the MAI Act, a motor accident was caused wholly or mostly by the fault of the injured person.
2. On 2 February 2025, the claimant, Ms Rahma Al Semary, was involved in a single-vehicle motor accident on Fifteenth Avenue, Kemps Creek, near its intersection with Ramsay Road. The vehicle, a Toyota Corolla, left the roadway, entered a storm water drain, and collided with a tree.
3. On 3 April 2025, the claimant lodged an application for personal injury benefits, accompanied by a certificate of capacity dated 2 April 2025
4. The insurer issued a liability notice on 1 May 2025 accepting liability for statutory benefits for the first 52 weeks.
5. On 1 July 2025, the insurer issued a further notice declining liability for benefits beyond 52 weeks, on the basis that the claimant was wholly at fault.
6. The claimant sought an internal review of that decision on 2 July 2025. On 23 July 2025 the insurer affirmed its decision. The present application to the Personal Injury Commission (Commission) was thereafter lodged by the claimant's legal representatives.

1. In an Application for Personal Injury Benefits, lodged on 3 April 2025, accompanied by a certificate of capacity dated 2 April 2025, the claimant stated: "I was driving in 80 km zone roughly going around 60 km when I seen 2 rabbits crossing the RD, I swerved & went into the tree. Everything happen so quickly!!"
2. The claimant provided a signed statement dated 30 April 2025. She described travelling along Fifteenth Avenue at approximately 65 kmph in daylight, a speed below the posted 80 kmph limit. She said that two small white rabbits hopped into the middle of the roadway a short distance before the intersection with Ramsay Road. Her instinctive reaction was to swerve to the left. Seeing a fence and house on her left, she swerved again to the right, but on gravel lost control of the vehicle. She described her vehicle travelling out of control into a ditch and striking a tree. She noted that all airbags deployed and that her vehicle came to rest nose down against the tree in the drainage depression. She prepared a hand-drawn sketch of the accident to illustrate her recollection, including the path of travel and the point of impact. In that statement she also remarked that the road was in "average" condition, with gravel and potholes, and opined that the state of the road may have contributed.
3. The insurer engaged Quantumcorp Investigations, who produced two reports. The Interim Report dated 6 May 2025 annexed:

(a) a transcript of interview with the attending police officer, Senior Constable Derek Carter, conducted on 2 May 2025;

(b) a schedule of photographs taken of the roadway and accident location;

(c) scale diagrams and measurements of the scene;

(d) The Investigation Report dated 20 May 2025 annexed;

(e) the claimant's signed statement and sketch;

(f) a copy of her driver's licence;

(g) a review of the transcript of Senior Constable Carter's interview, and

(h) a running sheet of investigative steps.

1. The police material comprises a Crash Summary Report dated 4 April 2025, which recorded that the claimant swerved left in a bid to miss two rabbits, entered the shoulder, and collided with a tree.
2. In the transcribed interview of 2 May 2025, Senior Constable Carter said that he attended the scene with another officer, by which time the claimant had been conveyed to Liverpool Hospital by ambulance. He took photographs of the scene and later interviewed the claimant at hospital, with body-worn video operating. The claimant there confirmed she had been travelling at about 60 kmph in an 80 kmph zone, was not speeding, was not distracted, and swerved to avoid two rabbits. She said she was wearing a seatbelt.
3. The officer recorded that he observed no dead rabbits on the road but accepted that their presence was possible given the semi-rural setting. He described the vehicle as having entered a ditch about 1m deep before striking a tree, and coming to rest at an angle. He noted no visible skid marks, but explained that the uneven surface and poor lighting conditions made them difficult to discern. He confirmed that blood samples taken from the claimant returned negative for alcohol and that there was no evidence of drug use.
4. Senior Constable Carter stated his assessment that the claimant was at fault because she swerved for an animal, causing her vehicle to leave the carriageway. He did not issue an infringement or lay any charge, explaining that he regarded the matter as a minor collision.
5. The photographic record prepared by Quantumcorp includes a series of images taken on

26 April 2025. These depict the approach to the collision site from 50, 25 and 10m; the tree with which the vehicle collided; and the surrounding verge and storm water drain. 6. The scene measurements and diagrams prepared by Quantumcorp depict the configuration of Fifteenth Avenue, the location of the collision approximately 50-75m west of Ramsay Road, the straight and level alignment of the roadway, the width of the carriageway, the position of the tree, and the depth of the drain (about 1m). 7. The medical references appear within the police and investigation material. Ambulance officers attended the scene and conveyed the claimant to Liverpool Hospital. In her interview with Quantumcorp, the claimant said she lost consciousness briefly at the scene, bled from her head, and suffered bruises and scratches. She complained of shoulder and back pain and reported that she was continuing treatment with her general practitioner.

1. I understand from a forensic distillation of what the claimant has already said in her materials, the following are framed as the arguments naturally available to her in this dispute.
2. It is submitted that the accident was not caused wholly or mostly by her fault. The claimant points to her consistent accounts, both in her application of 3 April 2025 and her signed statement of 30 April 2025, that she was travelling below the speed limit, was not impaired or distracted, and encountered two rabbits crossing the roadway. She submits that her evasive action was instinctive, that the presence of animals on semi-rural roads is a recognised hazard. She also relies on her evidence that the surface of Fifteenth Avenue was in "average" condition, with gravel and potholes, and that those conditions contributed to her loss of control.
3. The claimant submits that there is no evidence of excessive speed, intoxication, fatigue, distraction or other culpable conduct. She notes that the attending police officer did not lay any charge or issue any infringement, and that the insurer itself accepted initial liability for benefits up to 52 weeks. She contends that the threshold for disentitlement beyond 52 weeks is high: the insurer must establish that she was "mostly" at fault. Even if her manoeuvre is considered less than optimal, that does not suffice to meet the statutory threshold.

1. On behalf of the insurer, it is submitted that the accident was caused wholly by the claimant's fault. The insurer emphasises that the accident involved no other vehicle, no obstruction, and no mechanical defect. It submits that the only operative cause was the claimant's decision to swerve rather than brake or reduce speed. It relies on the view expressed by Senior Constable Carter, both in his body-worn interview and in his transcribed interview of

2 May 2025, that the claimant was at fault because she swerved for an animal, causing the vehicle to leave the carriageway and collide with a tree. 2. The insurer contends that the presence of animals on a semi-rural roadway was foreseeable, and that a reasonable driver would have exercised greater vigilance and reduced speed, particularly when approaching the intersection with Ramsay Road. It highlights that the investigating officer located the collision about 75m from the intersection, and submits that the claimant should have been preparing to turn and adjusting her speed accordingly. It argues that her admitted failure to brake or otherwise reduce speed constitutes a significant departure from the standard of care. 3. In support of its position the insurer cites authority. It relies on Manley v Alexander (2005) 223 CLR 95 (Manley), where the High Court emphasised that a driver must control the speed and direction of the vehicle in such a way as to be able to respond reasonably to events in the vicinity. It also refers to AAI Ltd t/as GIO v Evic [2024] NSWSC 1272 (Evic), where Mitchelmore J held that ss 3.11 and 3.28 of the MAI Act are directed at the degree to which an injured person's failure to take reasonable care contributed to the motor accident, and that contributory negligence in this context is concerned with causation of the accident rather than of the injury. The insurer submits that, when assessed against those standards, the claimant's conduct amounted to a significant and causative failure to exercise reasonable care.

1. The question for determination is whether, for the purposes of ss 3.11 and 3.28 of the MAI Act the motor accident was caused wholly or mostly by the fault of the claimant.
2. The statutory phrase "wholly or mostly by the fault of the person" has been considered by the Supreme Court in Evic. Mitchelmore JA held that the phrase directs attention to the extent to which the injured person's failure to take reasonable care contributed to the occurrence of the motor accident. Her Honour rejected the view that "fault" is confined to actionable negligence in tort and confirmed that contributory negligence can be assessed even in single-vehicle accidents involving the owner-driver.
3. The inquiry is not whether the driver could sue himself in negligence, but whether his conduct departed from the standard of reasonable self-care so as to amount to contributory negligence of a degree sufficient to meet the statutory threshold.
4. Applying that framework, the insurer bears the onus of proving that the claimant failed to take reasonable care for her own safety in a way that materially contributed to the accident, and that the extent of that departure was such that she should be regarded as "mostly at fault". That requires more than an error of judgment; it requires a substantial departure from the standard of the reasonable driver.
5. The evidence establishes that the claimant was driving below the speed limit along a straight, level, semi-rural section of Fifteenth Avenue. She was confronted with two rabbits darting across the roadway. Her instinctive reaction was to swerve left, after which her vehicle entered the gravel verge and drainage depression, and collided with a tree. The police confirmed that there was no evidence of speeding, intoxication, distraction, or mechanical defect. No infringement or charge was issued.
6. The insurer submits that the claimant's response was unreasonable. It points to the absence of braking or speed reduction and contends that the reasonable driver would not have swerved to avoid small animals, but would have maintained control by slowing or braking. It characterises her manoeuvre as a significant departure from reasonable care, amounting to being wholly or mostly at fault. In support, it cites Manley, where the High Court observed that the reasonable driver must maintain sufficient control to respond to foreseeable events.
7. The claimant does not rely on legal authority but maintains that she acted instinctively and reasonably when confronted with a sudden hazard. She emphasises that she was travelling below the speed limit, that the road surface was uneven with gravel and potholes, and that she was not impaired, fatigued, or distracted. She points to the absence of charges or findings of misconduct by police and contends that her reaction cannot be equated with fault sufficient to extinguish her entitlement to benefits.
8. Although not expressly raised in submissions, the facts squarely engage what is described in the cases as the "agony of the moment" principle. I raised this proposition with the parties at the preliminary conference. Neither party sought to put on further submissions.
9. The "agony of the moment" principle is not a distinct rule but an application of the ordinary standard of negligence. As Street CJ explained in Leishman v Thomas (1957) 75 WN (NSW) 173 at 175, conduct must be judged against the circumstances confronting the driver, not with hindsight. A driver compelled to act instantly in an unforeseen emergency is not to be judged negligent because calmer reflection might suggest a different choice. Likewise, in Abdallah v Newton (1998) 28 MVR 364 at 366, the Court of Appeal held that an instinctive response to an immediate threat, even though it resulted in collision, was nonetheless consistent with the standard of the reasonable driver.
10. In the present statutory context, the principle remains relevant in characterising the claimant's conduct. She was suddenly confronted with animals darting across a semi-rural roadway. Her decision to swerve, though imperfect in hindsight, was instinctive. To describe that reaction as "wholly" or "mostly" her fault is to ignore the very circumstances which deprived her of calm reflection and required an immediate response.
11. Applying those principles, I am not satisfied that the claimant's reaction was outside the bounds of reasonable care. She was driving lawfully at a modest speed when suddenly confronted with two animals. Faced with an immediate decision, she swerved. The fact that this manoeuvre proved unfortunate, leading to her vehicle leaving the roadway, is a matter of hindsight. It does not transform an instinctive, human response to a sudden hazard into culpable fault.
12. Nor does the absence of braking establish fault. The law does not demand the optimal reaction but only that the reaction not be clearly unreasonable. There is no evidence that braking would certainly have avoided the hazard or the accident. There is no evidence that she was inattentive or reckless. The insurer's submission amounts to substituting hindsight for the objective standard by which reasonable care is measured: Cook v Cook [1986] HCA 73; (1986) 162 CLR 376; Marien v Gardiner [2013] NSWCA 396; 66 MVR 1 at [33] (Meagher JA). The standard of care is not to be judged with the benefit of hindsight but rather by "looking forward from a time before the occurrence of the injury giving rise to the claim": Vairy v Wyong Shire Council [2005] HCA 62; 223 CLR 422 at [105] and [124] (Hayne J).
13. On the totality of the evidence, I am not satisfied that the claimant's conduct amounted to contributory negligence of such gravity as to render her wholly or mostly at fault. Even if one could characterise her swerve as an error of judgment, it was an error in the agony of the moment. It cannot be said to constitute a failure to take reasonable care for her own safety sufficient to meet the 61% threshold that marks the statutory definition of "mostly at fault".
14. The insurer has not discharged its onus: cf. Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909. I find that the motor accident was not caused wholly or mostly by the fault of the claimant.

1. For the purposes of Schedule 2, cl 3(d) of the MAI Act, I am not satisfied that the motor accident was caused wholly or mostly by the fault of the claimant. The insurer may not rely on s 3.11 of the Act to cease weekly payments after 52 weeks.
2. For the purposes of Schedule 2, cl 3(e) of the Act, I am not satisfied that the motor accident was caused wholly or mostly by the fault of the claimant. The insurer may not rely on s 3.28 of the Act to cease treatment and care expenses after 52 weeks.
3. It follows that the claimant is entitled to continuation of statutory benefits beyond 52 weeks.

1. This dispute involved the assessment of two miscellaneous claims matters under Schedule 2, cl 3(d) and cl 3(e) of the Act.
2. Pursuant to the Motor Accident Injuries Regulation 2017, the claimant is entitled to regulated costs for two miscellaneous disputes.
3. I therefore fix the claimant's costs in the sum of $4,382.40 inclusive of GST.