In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Personal Injury Commission's assessment is:

1. for the purposes of Division 3.4 and s 3.28 of the Act, the motor accident the subject of these proceedings was not caused wholly or mostly by the fault of the claimant, and
2. because Mr Butler is not represented, he has no entitlement to legal costs.

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

1. On 16 February 2025 Michael Butler was riding his motorbike south on the Putty Road when he was involved in a motor accident. The brief circumstances of the accident are described by Mr Butler in his claim form as follows:

"I was travelling along the Putty Road and hit a pothole."

1. Mr Butler sustained injuries to his leg and arm including fractures, grazes and bruises. On or about 20 February 2025, Mr Butler made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against GIO the insurer of

Mr Butler's own motor bike. 2. On 27 November 2025 the insurer issued a notice to Mr Butler denying liability to pay ongoing statutory benefits to him on the basis he was "mostly at fault" for the accident. The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act and on 18 December 2025, the insurer issued a decision restating its position. 3. On 16 January 2026, the claimant referred the issue of fault to the Personal Injury Commission (the Commission). The proceedings were allocated to me for assessment and determination in accordance with Division 7.6 of the MAI Act

1. The claim that is before me is a claim for statutory benefits under Part 3 of the MAI Act. Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4. As Mr Butler was retired at the time of the accident, he makes no claim for weekly benefits, and his claim is limited to treatment and care benefits.
2. Under s 3.1 of the MAI Act benefits are payable regardless of whether there is, or is not, 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 s 3.28,[1] 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. As Mr Butler sustained fractures to his leg and arm in the accident there is no dispute about the nature of his injuries, they are quite clearly non-threshold injuries.
3. There is no definition of "wholly at fault" in the legislation but a motor accident is considered to be caused "mostly by the fault" of a person if their contributory negligence is assessed as greater than 61%.[2]

1. Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Mr Butler is wholly or mostly at fault in respect of his treatment and care benefits (schedule 2, cl 3(e)).

1. On 27 November 2025 GIO wrote to the claimant informing him that in the insurer's view he was mostly at fault, because GIO's assessment of contributory negligence was 80%. The insurer alleged the claimant departed from the requisite standard of care because he:

(a) failed to ride to the conditions;

(b) was on notice of irregular surfaces or potholes;

(c) failed to keep a proper lookout for hazards on the roadway;

(d) failed to heed Mike Howie's warning as to presence of a hazard on the roadway;

(e) failed to reduce his speed;

(f) rode over the pothole;

(g) failed to take evasive action or otherwise avoid a collision with the pothole;

(h) having hit the pothole, failed to maintain control of his motorcycle;

(i) with 40 years of experience and given the risks of riding over a pothole, failed to control the speed and direction of motorbike so as to avoid the pothole, and

(j) used and operated his motorcycle in such a way that he knew or ought to have known that a loss of control of his motorcycle was imminent.

1. The insurer referred to the cases of AAI Limited t/as GIO v Evic[3] and Harris v Allianz.[4]

1. On 14 December 2025 the claimant requested an internal review submitting:

(a) the primary or proximate cause of the accident was the presence of a significant pothole and that there was a legal duty on the part of road authority to maintain the road and their failure to do so created a hazard;

(b) his actions were a reaction to what existed and not the primary cause;

(c) he was taking care and was riding 20 km under the speed limit;

(d) he was riding on a curve which is a riding task that divides the rider's attention which made instantaneous reactions to road surface defects more difficult;

(e) he was sober and wearing appropriate safety gear;

(f) Mike Howie's warning was ambiguous and could have indicated a pothole, gravel, wildlife or anything. It was a general warning, and

(g) he had only one second to react and execute a complex physical avoidance manoeuvre at 80 kmph.

1. Mr Butler submits that the insurer's allegation of 80% contributory negligence is unfair and at most should be 50% "and likely significantly less."

1. On 18 December 2025 GIO completed its internal review. After reciting all of the evidence in the matter, under the heading "were you wholly or mostly at fault", the insurer:

(a) acknowledges the consistent accounts of the claimant and Mr Howie;

(b) cites a passage from the High Court case of Manley v Alexander;[5]

(c) accepts the presence of the pothole;

(d) says "there is no indication that the curvature of the roadway or any conditions would have impacted or obstructed the view of the pothole";

(e) relies on the fact that Mr Howie travelled past the pothole without incident and gestured to alert Mr Butler to its presence, and

(f) his failure to keep a proper lookout and ride to the prevailing road conditions was the primary cause.

1. The insurer confirmed its decision that the claimant was mostly at fault and that the assessment of 80% contributory negligence was justified.

1. In his application form lodged with the Commission, Mr Butler:

(a) referred to the police who had considered him not at fault and that the pothole was the direct cause of the accident and he was not negligent;

(b) says he was riding 20 km below the speed limit;

(c) the warning from the other rider was ambiguous and non-specific;

(d) the cited case law supports a finding that the road conditions, rather than his action was "the greater cause of the accident", and

(e) he says:

"I feel [the insurer] did not adequately take into account that the primary cause of the accident was the poorly maintained road, not rider error."

1. The insurer's lawyers refer to the claim form [3], the police report (which says Mr Butler was riding at 80 kmph) [4], the ambulance records which suggest he was riding at 100 kmph [5] and the statements from the claimant and Mr Howie [6] - [7]. The insurer says that

Mr Howie's statement is consistent with the claimant's statement. 2. The insurer notes at [8] that Mr Howie confirms in his statement that he alerted the claimant to the presence of "the large gash on the road" by pointing to it with his left hand. 3. Mr Howie called emergency services [9]. Police spoke to Mr Howie at the scene [11] and at paragraph 41 of the police officer's statement, she said that the road had been in that state for years [12]. She said she spoke with Mr Howie who told him Mr Butler had ridden straight into the damaged roadway which he thinks caused him to lose control [13]. 4. The insurer submits at [15]:

"... that the claimant was mostly at fault for the motor accident on the basis the evidence identifies he was aware of the hazardous nature of the road after seeing Mr Howie's motorcycle strike a pothole prior to the subject collision, he failed to keep a proper lookout to identify potential hazards in circumstances where Mr Howie was able to identify the hazard and pointed it out to him, and as he failed to avoid riding over the damaged road in circumstances where the 'scar' in the roadway appears to be no more than 10cm in width at its widest point as demonstrated by the ... photograph."

1. The insurer further submitted at [16] that the most contemporaneous account of speed is in the ambulance incident detail report where the caller making the emergency call said the claimant was riding at 100 kmph. The insurer says there is an inference Mr Howie provided this information because he was the one who called emergency services. The insurer says that, having seen Mr Howie strike a pothole and his pannier bag open, the claimant should have reduced his speed.
2. The insurer refers at [18] to the decision of Custovic v Allianz Australia Insurance Limited,[7] (one of my decisions) where I cited Evic and noted that contributory negligence in a single motor vehicle accident can still apply and I said at [128] "I cannot therefore measure

Mr Custovic's actions against those of whoever maintained (or did not maintain) the road or [the other rider he was riding with on the day]." The insurer submits at [21] that "the principle of relative culpability does not apply." 3. The insurer restates at [22] what it says is the claimant's departure from the requisite standard of care, that is:

(a) the claimant failed to keep a proper lookout for hazards on the roadway;

(b) the claimant failed to heed Mr Howie's warning as to the presence of a hazard on the roadway;

(c) the claimant failed to take evasive action or otherwise avoid a collision with the pothole;

(d) the claimant failed to maintain control of his motorcycle;

(e) the claimant was aware of the presence of potholes/hazards on the roadway as before the accident, he observed Mr Howie's motorcycle strike a pothole 'with such force that his pannier bag opened, and he lifted off the seat of his bike';

(f) the claimant failed to drive at a speed safe for the conditions of the road;

(g) the claimant was experienced with riding motorcycles and the need to be on the lookout for damage on the road, and

(h) the claimant ought to have been keeping a safe distance behind Mr Howie, to allow him to stop suddenly if he needed to.

1. The insurer maintains at [23] that the claimant was mostly at fault with his contributory negligence greater than 61%.
2. The insurer submits at [25] that the claimant should provide a statement as to how many occasions he driven on the Putty Road and that otherwise the dispute should be determined on the papers.

1. The proceedings were allocated to me on 19 January 2026 with an original preliminary conference scheduled for 9 February 2026. At the request of the claimant, I deferred that preliminary conference as Mr Butler sought the opportunity to engage a solicitor.
2. Mr Butler did not engage a solicitor, and I held a teleconference with the claimant and,

Mr Crampton, a representative of the insurer on 25 February 2026. 3. The insurer requested an assessment on the papers. I advised the claimant that while that is the usual procedure in most cases, as Mr Butler was present, I wished to ask him some questions to supplement the documentary material and ensure I had an understanding of the facts and circumstances of the accident and the arguments he has made. 4. The claimant gave evidence in answer to my questions, and the insurer was afforded an opportunity to question the claimant. 5. At the conclusion of the questioning, Mr Butler confirmed his arguments from the submissions and the insurer's representative did not make any further submissions.

1. There is in the insurer's bundle a copy of the ambulance incident detail report which contains details of the emergency call that was made and the timing of varies responses.
2. The first call was taken at 3.46pm from a mobile phone number which has not been disclosed. The claimant was said to be a 40-year-old male who was conscious and breathing having come off a motorbike. At 3.52am is a note that the claimant was travelling at 100 kmph and that the injuries included the left arm and left knee. At 3.56pm is a note "motorbike front wheel hip pothole and [patient] came off".

1. Mr Butler will soon turn 58 years of age. He was at the time of the accident 56 years of age.
2. Mr Butler gave a statement to the insurer's investigators on 23 April 2025 saying:

(a) he did not complete a sketch of the accident scene "as I do not recall visually recalling the accident occurring" [13];

(b) he did not take photographs of the accident scene or his motorbike as he was incapacitated [17];

(c) he was not charged or fined by police and did not speak with them [18];

(d) he was, at the time of the accident, returning from a meeting at Karuah of the Military Brotherhood Military Motorcycle Club (MBMMC).[8] The meeting had finished and he was returning home to Sydney [19] - [20];

(e) another rider, Mike Howie riding with him about 40m ahead [22] and [25];

(f) they were travelling south at about 80 kmph on the Putty Road and it was about 3.30pm and the weather was fine and clear [23] and [24];

(g) the road was one lane each way and sealed [26];

(h) before his accident, "I observed Mike's motorcycle impact with an unlevel part of the road, and he impacted the mound with such force that his pannier bag opened, and he lifted off the seat of his bike" [27];

(i) he drew Mike's attention to the open pannier bag on the right-hand side, Mike acknowledged it and tried to close the lid [28] - [30];

(j) Mr Butler dropped back and moved to the left-hand side which increased the gap between him and Mike [31] and [31], and

(k) "I then recall Mike pointing to the road on the left-hand side and I do not recall anything after that".

1. The police report says the speed limit on the road is 100 kmph and that the claimant was riding at 80 kmph. The crash description is as follows:

"Whilst negotiating a slight right-hand bend in the roadway the front wheel of unit one has gone through a pothole, causing unit one to lose control and fall onto its left side, sliding on the roadway. No other vehicles or objects involved."

1. On 31 October 2025, one of the attending police officers gave a statement to the insurer's investigator saying at [26]:

"I observed the roadway, I spoke to the rider the injured party was riding with, and he's brought to my attention the pothole on the road, we'll call it pothole on the road but it may have been road damage that had just degraded over time but it was a long narrow like a wedge out of the road."

1. The police officer reports she did interview Mike Howie who is said to have stated at [38]:

"He saw the damaged roadway, and he said he actually indicated to it with his hands, but didn't, the other gentleman has just ridden straight, his front tyre entered it and then I think that's caused him to lose control."

1. At [50] she says, "I deemed that the roadway was the cause of the collision".
2. A statement was taken from Mike Howie by the insurer's investigator on 14 October 2025. In it he says:

(a) they were travelling south at 80 km;

(b) his motorbike impacted an unlevel part of the road and one of his panniers opened, Mr Butler caught his attention to it, and he attempted to close the lid;

(c) he alerted the claimant to the large gash in the road by pointing to it "with my left hand", and

(d) he rode through a right-hand bend, then a left-hand bend and saw Mr Butler was no longer following him. He turned his bike around, rode back and found him.

Evidence from the claimant at the assessment conference

1. Mr Butler said that the MBMMC was a club comprising members of the army, navy and air force as well as first responders. There were also "Sierra members" who were not members of the defence force themselves, but who supported the club. The club was a form of "support group" for those with a shared interest in motorbike riding. Mr Butler said he had been in the Army for 15 years and had seen active service in East Timor. He said the club had been in existence for more than 10 years and in his time with the club, he is not aware of any ex-servicemen members of the club who had lost their lives through suicide.
2. He explained that he had ridden up to Karuah the day of the accident to attend a meeting of the MBMMC to elect a leader for a nationwide event, "Round up 26". He had been elected as the chair or president of this, and he was very honoured and proud of his achievement. The meeting was held at the Karuah RSL.
3. Mr Butler said he had not had an alcoholic drink or taken drugs and was not tired. He had a meal (chicken schnitzel) after the meeting and spent time talking to people. He was wearing a full-face helmet, gloves and leathers lined with Kevlar.
4. I asked Mr Butler about the record in the ambulance notes from the caller who rang emergency services, I referred to the alleged speed of 100 kmph and that the insurer had said I could draw an inference that the speed must have been provided by Mr Howie because he was the one who made the call. I asked Mr Butler did he tell Mr Howie how fast he was going and he said no. I asked Mr Butler if he told the ambulance personnel how fast he was going and he said no. He said he was going at 80 kmph and that this was the speed Mike Howie and other witnesses had told the police (which he believed had been recorded on body camera) and this was the speed he said in the statement.
5. The accident occurred at about 3.30pm on 16 February 2025. He agreed that there were trees on either side of the road and that these trees cast shadows on the road. He said otherwise the road was straight and clear and clean, nothing to be concerned about.
6. Mr Butler said he had been on the Putty Road before. He did not remember whether he had ridden up the Putty Road to Karuah or not. He said he often heads up north on one road and comes back another way rather than going up and back the same way. He thought the last time he had ridden the Putty Road was six to eight months before, if not longer. He thought he may have ridden on the Putty Road five to seven times in the last 10 years.
7. The insurer asked the claimant about the meeting in Karuah. He said this was the first meeting at Karuah he had ever been to, and that usually (99% of the time) meetings are held online. Club events and rides are held in person.
8. I asked Mr Butler about the pannier incident. Mr Butler explained that Mike Howie had slowed down because of riding into or through the bump, so Mr Butler had caught up to him without having to increase his speed. Mr Butler pointed to the pannier which Mr Howie fixed and closed while still riding. Mr Butler had then dropped back by reducing his speed to a slower speed to get back into formation.
9. Mr Butler said that part of standard operating procedures when riding with other motorcycles was to ride in a staggered formation not directly behind one another (or next to each other) but with one in front and one behind with one to the left and one to the right. This afforded riders behind other riders a greater view of the roadway and the road surface ahead. It also gave riders more room (and time) to avoid running into riders ahead if anything goes wrong.
10. I asked Mr Butler to explain about riding a motorcycle around a curve. He explained that a curve has an entry, apex and exit - he said you sit back before entering a curve and look at the way the road is shaped and line up your ride. You then lean your body slightly and push your handlebars gently and the bike then travels in the intended direction in a gentle and smooth way. He said you have to take a corner by moving, at the entrance to the curve, to the outside of the lane to get a full look at the curve. So, on a right-hand curve as this was, he would move to the outside or far left to ensure he could see where the curve was heading and line up his turn.
11. I asked Mr Butler to demonstrate Mr Howie's gesture. He pointed his left index finger up and to the side explaining that Mr Howie did this while holding onto the handlebars with both hands. He said some people will point with their foot, some people will take their hand off the handlebars, but that Mr Howie gestured with his finger. Mr Butler said he did not see a gesture (in terms of movement of the finger) he simply saw Mr Howie's index finger pointing and the second he saw that, he said "it was instant" and he was off his bike and did not remember anything else until he woke up on the side of the road in extreme pain.
12. He said Mr Howie was riding more to the middle of the lane while he was fixing his paniers, on the correct side of the road and that he had caught up with him on the right before dropping back and moving to the left.
13. Mr Butler said he had been riding for 20 years and had never had an accident. He said he had done an advanced riding course at Eastern Creek, he does pre and post ride checks all the time for the club to keep bikes safe (checking tyre pressure etc). He said his gear cost a "couple of thousand bucks" and he has family to which he wants to return home safely.
14. Mr Crampton asked the claimant about precisely where he was riding. After I shared on screen a copy of the photograph showing the road surface with the pothole, it became clear that Mr Howie had pointed or gestured to his left as he rode past the 10 cm wide "scar" or "gash" which was more to the middle of the road. Mr Howie therefore was riding on the right-hand side of the lane across the rough part of the road surface but at no stage did Mr Howie cross the lines to the other side of the road. He appears to have been heading to the left-hand side of the road to take the curve.

1. Mr Butler confirmed that he was riding more to the right beside Mr Howie during the pannier incident and then had dropped back by reducing his speed and was preparing to move to the left-hand side of the road to take the curve when the accident happened. He said he was

1. The insurer has provided four photographs which were apparently taken by Mr Howie.
2. I am aware of the warnings issued by appellate courts in cases such as Blacktown City Council v Hocking[9] as to how photographs are to be used in the absence of expert evidence. There is no expert evidence in the current proceedings.
3. What has been called a pothole is not what might normally be considered a pothole in terms of a rounded hole and a sunken bottom or depression in the road. What caused Mr Butler to come to grief is basically a rectangular patch of bitumen with a thinner gash which was apparently about a metre long and 10 cm wide through which a different light, sandy colour substrate can be seen. The gash is towards the middle of the road, and the remainder of the patch to the right and abutting the double white lines could be described as a crazed or crackled dark bitumen with lighter substrate visible in the crazing and cracks.
4. There is no expert evidence as to the visibility of the gash in the road and the uneven road surface. I have viewed the photographs carefully.
5. All of the photographs show a bush location with trees on either side of the road with some branches over parts of the road and shadows cast by the trees onto the road surface which has a patchy, mottled look. Mr Butler agreed this was the case.
6. There is no photograph that shows the view Mr Butler may have had on his approach to the pothole, but there are two photographs which show the view of the pothole from the other side. There is however no evidence about how far away the person was when they were taking those photographs. With the shadows on the road, it is not clear to me from these two photographs that the gash in the road could be easily seen from any great distance.
7. Mr Butler and Mr Howie have given evidence about a bump or mound in the road at some time before the accident and in a different location on the Putty Road. Apart from that

Mr Butler said the road was clean and clear. 8. In terms of the pothole or gash in the road, the police officer who attended the scene said the road had been like that for a while and took steps to notify the responsible authority about it. 9. On the basis of all of the evidence about the road I am satisfied that the Putty Road was generally in a good state with occasional hazards on it such as the mound that caused

Mr Howie's pannier to open and the gash which caused Mr Butler's accident.

1. I am not satisfied that Mr Butler was riding at 100 kmph. The ambulance records suggest the caller to emergency services reported Mr Butler's speed as 100 kmph and the insurer suggests that it was Mr Howie who had rung emergency services. Mr Butler said in his evidence that there were other drivers (including a caravan driver) behind him. It is not known whether they made independent calls to 000 and reported this speed. There was a clear error in whoever made the call in that the claimant is described as being 40 when he was in fact 56 years of age.
2. Mr Butler said in his evidence that he did not tell the ambulance officers how fast he was going and he did not tell Mr Howie how fast he was going. The insurer says it can be assumed that 100 kmph was Mr Howie's estimate of the claimant's speed. Obviously, the ambulance officers did not witness the accident and were not in a position to judge the speed of Mr Butler. But Mr Howie also did not see the accident. In his statement he said he had made two turns before realising his friend was not behind him and turned back to discover

Mr Butler had come to grief. It is unclear how he would have been in a position to estimate Mr Butler's speed. I do not therefore accept that Mr Butler was riding at 100 kmph immediately before the accident. 3. I am satisfied Mr Butler was riding at no more than 80 kmph. I make this finding on the basis of his evidence and the evidence of Mr Howie. 4. Mr Howie says at the time of the accident he was riding at 80 kmph. The claimant's oral evidence was that this was the speed he was riding at. His evidence also was that he had fallen back after the Panier incident behind Mr Howie (by slowing down) which raises the possibility that Mr Butler was riding at a speed slower than 80 kmph immediately before his accident.

1. Having found the two riders were riding at 80 kmph, Mr Howie and Mr Butler would travel 22.22 metres per second.[10]
2. The claimant says he was riding 40 metres behind his friend which at 80 kmph suggests a time difference between them of about 1.8 seconds. As the distance between the two riders was not challenged, I accept that they were riding 1.8 seconds apart.

1. I am satisfied that Mr Howie's "gesture" involved raising his index finger while maintaining a hold of the left-hand handlebar of his motorcycle. I make this finding on the basis of the evidence provided by Mr Butler at the preliminary conference. Having both hands on the handlebars would be consistent with Mr Howie needing to maintain control of his motor bike having gone over a significant bump and his pannier coming open.
2. I do not accept Mr Howie gestured with his whole hand and that the gesture he made was a subtle gesture which did not involve a more obvious gesture such as waving his hand. Reaction time
3. While there is no expert evidence before me as to the standard time a reasonable person would take to react to a stimulus such as a gesture from a fellow motorbike rider,

Mr Crampton said at the preliminary conference that it was his understanding of the literature that the reaction time of an average person on seeing an event was 1 to 1.5 seconds. 4. On 27 February 2026 after I referred Mr Crampton to the NSW Government's safe driving website, he agreed that 1.5 seconds is the appropriate standard reaction time and I am satisfied this is appropriate. This is consistent with Mr Butler's evidence that as soon as he noticed Mr Howie's finger, the accident happened.

1. Mr Butler could not recall whether he had ridden up north earlier in the day along the Putty Road or whether they had ridden up a different way. He said his usual practice was to ride up one way and come back a different way. Even if he did ride up and back on the Putty Road, he would have been riding in a different lane on the morning ride.
2. I accept his evidence that he had not been to a meeting at Karuah before and I accept that he had ridden on the Putty Road five to seven time in the previous 10 years the last time six to eight months earlier. I am therefore satisfied that he knew the road but was not particularly familiar with it.

The general approach to wholly or mostly at fault decision-making

1. Section 3.28 of the MAI Act says in respect of treatment and care benefits:

"(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 52 weeks after the motor accident concerned if -

(a) the motor accident was caused wholly or mostly by the fault of the person[11], ...

(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%."

1. Justice Mitchelmore in Evic interpreted that section and provided a framework for the consideration of wholly or mostly at fault disputes. In the course of her reasons, Justice Mitchelmore said the following:

(a) an injured person's entitlement to benefits "does not depend on establishing the fault of a person ... The injured person does not need to prove anyone was at fault for the motor accident, in order to obtain benefits under Part 3" [55];

(b) leaving aside any issue of threshold injury, statutory benefits continue or cease pursuant to ss 3.11 and 3.28 depends on whether the injured person is wholly or mostly at fault. This is one concept not two separate concepts of 'wholly at fault' or 'mostly at fault'. She said, "The qualifiers 'wholly or mostly' inform each other and are intended to address the same mischief, namely, contributory negligence" [56];

(c) sections 3.11 and 3.28 "are directed at the extent to which the injured person's failure to take reasonable care contributed to the motor accident." That is the contributory negligence relevant to the accident (not the injury) and accommodates "all types of motor accidents including single vehicle accidents where the injured person is the owner driver" [57];

(d) section 3.38 requires the enacted law of contributory negligence to be applied which includes the provisions of Division 8 of Part 1A of the Civil Liability Act 2002 (CL Act) [60];

(e) where there is more than one motor vehicle involved, or the claimant is a pedestrian, ss 3.11 and 3.28 accommodates an assessment of the claimant's contributory negligence by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk[12] at [61];

(f) in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply. Justice Mitchelmore at [68] cites Axiak v Ingram[13] and at [69] Davis v Swift[14] and says "the inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence" [69];

(g) the composite phrase in the legislation "caused wholly or mostly by the fault of the person" is "directed at an enquiry as to the injured person's contributory negligence for the motor accident, irrespective of the number of motor vehicles involved and how the claimant came to be injured," and

(h) if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) directs the next step is to assess the degree of contributory negligence that is "just and equitable in the circumstances of the case" [73]. The CL Act includes a provision enabling a finding of 100% contributory negligence.[15]

1. The police officers who attended the scene of the accident did not witness the accident. The police report is a document based on information provided to the police by those involved in the accident, witnesses and their own investigations. It is completed for the purposes of recording an event and determining whether criminal action is to be taken against a person. The findings in the police report are not binding on me and do not determine the issue of "fault" in a motor accident claim. However, the police have indicated they spoke to witnesses (including Mr Howie) before coming to the conclusion about fault. The police attributed responsibility for the accident to the pothole and, according to the interview with the attending officer, took steps to alert the relevant road authority.
2. While the Putty Road may have been in disrepair, I have no jurisdiction to determine negligence or otherwise on the authority responsible for the road and any repairs done to it. I therefore cannot make a finding of relative culpability as between Mr Butler and the road authority.
3. As there is no other owner or driver of a motor vehicle involved in the accident, the claimant's contributory negligence, if there is any, should be assessed as a single vehicle accident in the way Justice Mitchelmore has set out in paragraph 74(f) above.

Did Mr Butler depart from the requisite standard of care?

1. The test for negligence and contributory negligence is provided in s 5R(2)(a) of the CL Act as follows:

"the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person."

1. The insurer's allegations fall into several categories each of which will be dealt with in turn.

Was there a failure to keep a proper lookout for hazards on, or damage to the roadway?

1. The insurer relied on a High Court decision of Manley v Alexander.[16] The Court of Appeal in Mamo v Surace[17] was dealing with a question of the breach of duty on the part of a driver who collided with a cow on the roadway at night. The driver had, for a period of a couple of seconds before hand, been adjusting the audio system in the car. Justice McColl said at [60]:

"Accepting that the exercise of reasonable care required the respondent to be able to control the vehicle so as to know what is happening in the vicinity of the vehicle so as to be able to take reasonable steps to react to those events (Manley v Alexander) does not, as Meagher JA pointed out in Marien v Gardiner, require the reasonable driver to be able to, in effect, foresee every event which might happen in the vicinity of the vehicle or, at all times, be in a position to react to everything which might occur."

1. The Court's finding at [96] was that reasonableness and not perfection is required in keeping a proper lookout.
2. The photographs suggest there were shadows on the road, caused by the bush on either side of the road which would have, in my view, made appreciating defects in the road surface difficult. I also not this was not a "standard" round pothole but a long thin gash in the bitumen with a rough patch to the side over which Mr Howie had successfully ridden.
3. While the photographs of the gash in the road from someone standing close to it suggest it was an obvious hazard at that range, there are no photographs of what Mr Butler's view would have been like as he approached and no expert evidence to suggest what the visibility of this gash 40, 20 or 10m away might have been.
4. The claimant had seen the pannier incident and taken action. He saw the subtle gesture made by Mr Howie's left finger which suggests he was keeping a lookout. He was also looking at the road and what was ahead namely the curve coming up which required additional and particular attention to navigate.
5. I am not satisfied, on the evidence before me, that the claimant failed to keep a proper lookout.
6. The claimant was aware of a previous problem in the road, because Mr Howie had gone over it and the pannier came open but there is no evidence that the road was riddled with potholes and other hazards and the claimant's evidence was that it was clear. I am also satisfied the claimant knew the road but was not overly familiar with it having ridden on it five to seven times in the previous 10 years.

Was there a failure to heed the warning of Mr Howie

1. I have found that Mr Howie made a subtle gesture by lifting his index finger and possibly pointing. He did not remove his hand from the handlebars or make an exaggerated response (such as waving his hand). Mr Butler did not notice the gesture itself (the pointing of the finger) only that the finger was raised and pointed.
2. Mr Butler gave evidence that this gesture could have meant anything. It could have been interpreted as a warning of danger or as an alert to look at a nice view. I agree with his submission that this gesture did not mean to watch out for anything specific or particular like the pothole in the road. Had Mr Howie taken his left hand off the handlebar and pointed down with this finger and hand I might have found differently, but that is not the evidence.
3. Mr Butler saw the raised finger, he saw Mr Howie's attempt to notify him of something. Whether he had time to "heed" that warning and do something in response depends on the time he had to react to it.
4. At 80 kmph, a vehicle will cover about 22 m in one second. If Mr Butler was riding

40 m behind Mr Howie, Mr Butler had two seconds after Mr Howie rode through the pothole before he would be riding through the same pothole. Mr Howie would have taken time to react to the stimulus of riding over the pothole and recognising it as a potential hazard before raising his finger. 5. Mr Butler's time to react to the stimulus of the pointed finger would have involved noticing the gesture or finger and then scanning the road and surrounds to see what Mr Howie was alerting him to, all at the same time as negotiating an upcoming bend. 6. I am not satisfied that Mr Butler failed to heed the warning of Mr Howie. He had seen the warning but did not have sufficient time to react to it.

Was there a failure to take evasive action or maintain control?

1. The claimant said he noticed Mr Howie's finger raised and the next second he was off his bike and recalled nothing further. On the basis of my finding of the time taken to cover the

40 m gap between the two riders, the likely time for Mr Howie to react to what he had just ridden over and the likely time for Mr Butler to react to Mr Howie's gesture I am not satisfied the claimant had time to take evasive action and avoid the pothole. 2. The claimant was not riding directly behind Mr Howie but was riding in staggered formation, therefore he did not ride in the precise path Mr Howie did. While Mr Howie may have been able to maintain control of his motorbike over the rough road he had gone over, Mr Butler could not on that part of the road that he had gone over. 3. There is no expert or other evidence before me to suggest that Mr Butler should have been able to maintain control of his motorbike after he hit the gash in the road and I therefore reject this argument from the insurer.

Was there a failure to drive at a safe speed?

1. There is no expert or other evidence to suggest what was a safe speed for the conditions.
2. I note the police evidence that the speed limit was 100 kmph and Mr Butler's evidence that he was riding at least 20 km below that. There has been one previous incident on the road (the pannier incident) not others, and in my view riding 20 kmph below the speed limit in the absence of evidence as to the state of the rest of the road is a reasonable speed.

Was there a failure to drive at a safe distance?

1. The insurer has also alleged that the claimant should have been keeping a safe distance behind Mr Howie. On 27 February 2026, Mr Crampton submitted that the claimant should have left a three second gap between himself and the motor bike ahead or possibly second seconds noting the conditions of the road "which would have enabled him to heed Mr Howes' warning and avoid the pothole."
2. I note that the advice on the relevant website which Mr Crampton was referring to concerns motor vehicles in particular motor cars which occupy most of a lane in a road. Mr Butler was riding 40 metres behind Mr Howie in a staggered formation which Mr Butler explained allowed him a better view of what was ahead of him. There is no expert evidence as to what a safe distance would be between two motorbikes riding in formation. There is no submission from the insurer to suggest that riding in formation is more or less safe than riding directly behind.
3. Mr Butler's evidence was that having got closer to Mr Howie (because Mr Howie slowed down after the pannier incident) he was then dropping back (by slowing down) in order to fall into the previous staggered formation. As has been said earlier, the pothole varied in that there was the gash and then the crazed or cracked bitumen. Riding in a staggered formation it is likely Mr Howie rode through a different part of the pothole to the part Mr Butler rode over.
4. I am not satisfied that in the circumstances of the immediate aftermath of the pannier incident that the distance between the two motor bikes constituted a departure from the requisite standard of care. I also note that the longer the distance between the two motor bikes the less likely it may have been for Mr Butler to notice the subtle gesture from Mr Howie.

Is there any departure from the standard of care of a reasonable motorbike rider?

1. I am not satisfied that the claimant departed from the expected standard of care in any of the ways the insurer has alleged.
2. In my view on the evidence before me, a reasonable person in the position of the claimant would have ridden at or below the speed limit on the Putty Road which is what Mr Butler did. In my view a reasonable person would have reduced speed after the pannier incident which is what the claimant did. In my view a reasonable person would have noticed the finger pointing by Mr Howie, which the claimant did, and then if there was time after noticing the finger and identifying the hazard, would have taken action to avoid the hazard. I am not however satisfied on the evidence presented to me that a reasonable person in the position of the claimant would have had sufficient time to take any action to avoid the pothole.
3. I accept the claimant's argument which is supported by the opinion of the police, that the real cause of the claimant's accident was the pothole, of which the claimant had insufficient notice. I am not satisfied that there was anything in the way in which the claimant was riding his motorcycle that contributed to the accident. Reasonable driving not perfection is required.

1. As I am not satisfied that the claimant did not depart from the standard of care expected of him in the circumstances, it follows therefore that there is no contributory negligence and he is not wholly or mostly at fault.

[1] And s 3.11 when there is a claim for weekly benefits.

[3] [2024] NSWSC 1272.

[4] [2025] NSWPIC 298.

[5] [2005] HCA 79 at [12].

[6] The references in square brackets are to the paragraph numbers in the insurer's submissions.

[7] [2024] NSWPIC 605.

[8] According to its website the MBMMC is a "Trii Service Military Motorcycle Club comprising serving and ex-serving Australian Defence Force (ADF) and Commonwealth Forces members, their families, friends and support riders. We are an Australia-wide club and our mission is to support Club members, Veterans and ex-service members and their families for the next thirty years."

[9] [2008] NSWCA 144.

[10] 80km x 1,000 metres = 80,000 metres. One hour has 3,600 seconds. 80,000 metres ÷ 3,seconds = 22.22 metres per second.

[11] Section 3.28(1)(a) adds the words "and the person is over 16 years of age at the time of the motor accident" to create an ongoing entitlement to statutory benefits for treatment and care expenses for children.

[12] [2023] NSWSC 788.

[13] [2012] NSWCA 311 where contributory negligence for a reckless pedestrian in a no-fault (blameless) accident was assessed at 50%.

[14] [2014] NSWCA 458 where contributory negligence for another in a no-fault (blameless) accident was assessed at 80%.

[16] [2005] HCA 79; (2005) 80 ALJR 413 (at [12] per Gummow, Kirby and Hayne JJ).

[17] [2014] NSWCA 58.