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

1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant.
2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant.
3. The amount of the claimant's costs in the matter is $4,382.40 inclusive of GST.

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

1. Amanda Eskander was involved in a motor accident on 24 November 2023 at about 3.20pm. There is no dispute that Ms Eskander was the driver of a car that collided with the rear of another car on the M2 Freeway. What is disputed is how the other car came to be in front of Ms Eskander and in what lane the two vehicles were in when the collision occurred.
2. Ms Eskander made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) against QBE, the third-party insurer of the motor vehicle that she collided with.
3. While the claim was accepted and statutory benefits were paid for the first 52 weeks after the accident, QBE later denied liability to pay ongoing statutory benefits to the claimant on the basis she was "wholly or mostly at fault". The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. On 6 December 2024 the insurer affirmed that decision.
4. Ms Eskander referred the issue of whether she is wholly or mostly at fault to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
5. The proceedings have been allocated to me. I have held two preliminary conferences in the matter and at the last, set a timetable for assessment of the dispute on the papers.

1. Ms Eskander's claim for statutory benefits was made under Part 3 of the MAI Act. Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4.
2. Under s 3.1 of the MAI Act, benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle, and even if the injured person's fault caused the motor accident. However pursuant to ss 3.11(1) and 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.
3. While there is no definition of "wholly at fault", a motor accident is caused "mostly by the fault" of a person if their contributory negligence is assessed as greater than 61%[1].
4. The parties agree that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Ms Eskander is wholly or mostly at fault in respect of her weekly benefits (Schedule 2, cl 3(d)) and whether she is wholly or mostly at fault in respect of her treatment and care benefits (Schedule 2, cl 3(e)).

1. On 29 May 2024, QBE wrote to Ms Eskander declining liability to pay ongoing statutory benefits advising:

(a) the claimant has "not been deemed wholly at fault";

(b) QBE's insured driver "breached their duty of care";

(c) the accident was not a no-fault accident, and

(d) the claimant had sustained a non-threshold injury.

1. Despite asserting the claimant was not wholly at fault, the insurer then alleges the claimant was wholly at fault for failing to keep a proper lookout, failing to drive to the prevailing conditions and for running into the rear of the insured vehicle contrary to Rule 126 of the NSW Road Rules 2014 (the Road Rules). Despite alleging the claimant was "wholly at fault" the insurer goes on to say, "you have contributed to your injury by greater than 61%" and that, as a result, her statutory benefits would cease. This liability notice is not very clear.
2. On 6 December 2024 a representative of QBE conducted an internal review of the decision finding the claimant "wholly or mostly at fault". QBE says:

(a) their driver was able to stop to avoid a collision with the vehicle in front;

(b) the claimant did not keep a safe distance between her and the QBE insured vehicle in breach of the Road Rules, and

(c) the claimant failed to keep a proper lookout.

(a) the insured was wholly at fault for performing an unsafe lane change and failing to give way to the claimant in the middle lane and there to be seen [1.3];

(b) the claimant provides submissions which set out her version of events [2.1] and says that in the weeks after the accident she experienced memory difficulties and confusion and "she was extremely amnesic to the accident details and still has difficulty recalling some details of the accident";

(a) Ms Eskander cites the version of events in the claim form and says at [2.4] that "regrettably" she did not include in her claim form that the insured pulled into her lane and says at the time she filled in her form she "was still heavily concussed and confused" and was "incredibly amnesic";

(b) the claimant recites the insured's statement and alleges at [2.7] that it may not be in the insured's own words, and he may have been assisted or coached;

(c) the claimant submits at [2.8] and [2.9] that it is "convenient" there were no witnesses, that the insured's statement is self-serving but that the unknown lay witness who confronted the insured likely saw the accident and who was at fault which was why she reacted as she did;

(d) the claimant at [2.10] recited the police version of events but takes no issue with it and at [2.11] the ambulance records saying she was "in a delirious state of extreme shock and confusion", and

(e) the claimant cites at [2.12] the hospital records and notes the accident was said to be a four-car collision but makes not further submissions.

1. The claimant refers at [2.13] - [2.18] to the photographs and says:

(a) the damage to the vehicles supports the claimant's evidence that the collision occurred while the insured driver was attempting to merge into the middle lane, while the claimant remained squarely in the middle lane prior to the collision, and

(b) the damage to the respective vehicles is inconsistent with the insured's sketch of the collision that depicts a square on collision.

1. At [4.4] the claimant says she "still struggles to recall some details of the accident (particularly events immediately following the collision" she has a sound recollection that she was in the middle lane, the insured pulled into her lane from the right at low speed, she had no time to swerve or otherwise avoid the collision, she was still in the middle lane when she regained consciousness and the unknown witness approached the claimant from the left lane while still in her vehicle.
2. The claimant submits at [4.7] that the insured has breach Road Rule 148 merging unsafely. The claimant relies on Manley v Alexander[3] (Manley) saying that the insured was required to pay equal attention to the road ahead of him and what was happening to the sides. She says at [4.9] that she was there to be seen, and he has not observed before merging into her lane.
3. The claimant submits at [4.11] matters relating to the relative speeds of the claimant and the insured, the distance travelled, the damage to the vehicles and the evidence of the insured. She is critical of the insured's evidence saying:

(a) if the insured got out and went to the claimant, he has omitted to say she was still in the middle lane, and

(b) while he was braking heavily, he was able to watch his rear vision mirror to notice the claimant's vehicle and the claimant three car lengths behind which suggests he was not paying attention to the road and not the imminent hazard ahead of him. She suggests "this level of reported detail represents the insured's attempt to manufacture" a version of events.

1. At [4.12] the claimant says the insured's version is farfetched and at [4.13] that it is more likely the insured was attempting to avoid a hazard in front of him when he made a sudden lane change. At [4.14] she notes the insured says he pulled over and stopped 20m away and that the "incredibly short distance" suggests he was travelling at a very slow speed which is in keeping with the claimant's account that he appeared stationary after pulling into her lane.
2. The claimant says at [4.15] that the unknown "witness" likely saw the accident which is why she was yelling (which is conceded by the insured) at the insured. The claimant says at [4.16] that the diagram drawn by the insured does not show him swerving. The claimant also says the insurer withheld photographs and did not produce them until after several requests.
3. The claimant acknowledges at [4.18] that the ambulance and hospital records do not corroborate her version of events but says she was "heavily concussed" and in a state of "severe shock" and "extremely amnesic" to the accident and could barely recall any details. She suggests these records be given little weight as a result.
4. The claimant finally submits at [4.19] that her version of events should be preferred to that in the insured's.

1. The insurer restates at [9] Rule 126 of the Road Rules and notes at [11] the claimant has not addressed this in her submissions. The insurer says at [15] that the primary cause of the accident was that the claimant was travelling too close to a vehicle in front of her.
2. The insurer says:

(a) the case of Manley is equally as relevant to the claimant [16];

(b) that the claimant explains the differences in the version of events given by her is a medical one (concussion and state of distress) but that there is no medical evidence to support it [19(b)];

(c) the insured did not change lanes and was never stationary but applied his brakes in response to a hazard in front of him [19(e)], and

(d) the identity of the witness is not known, and limited weight can be given to evidence involving that person [19(f)].

1. The insurer said that additional evidence from the police is required [19(g)] and the property damage file may provide additional information [19(h)].
2. The insurer at [21] takes issue with criticism levelled at it and the insured driver by the claimant and says:

(a) there is no evidence that the driver was "coached";

(b) no inference can be drawn from the unidentified witnesses' behaviour;

(c) the photographs were omitted in error, were subsequently provided and relied on in the liability letter of 29 May 2024, the internal review decision of

6 December 2024 and in the current matter;

(d) the insurer concedes the damage is greater on the right front of the claimant's vehicle but that there is damage to the left and the left rear of the insured's vehicle but;

(e) the claimant's evidence that the insured was driving in the far right lane is "completely at odds" with the insured driver's statement and diagram;

(f) the submissions that the insured made an aggressive and unsafe lane change is not consistent with the weight of the evidence, and

(g) there is no evidence he was changing lanes and therefore no evidence of him breaching the Road Rules.

1. On 16 April 2025, the insurer provided supplementary submissions upon receipt of the claimant's statement. The insurer maintained at [3] the insured driver did not change lanes and the cause of the accident was the claimant's failure to keep a safe distance from his vehicle.
2. The insurer refers at [4] to the police documents in particular the police officer's diagram of the accident showing both vehicles in lane 1 of 3 and there is no suggestion of a lane change.
3. The insurer also submits at [5] the insured's property damage insurer determined the claimant was at fault.

1. A preliminary conference was conducted by MS Teams on 10 February 2025 and a report issued to the parties.
2. I drew the parties' attention to the decision of AAI Limited t/as GIO v Evic[4] and advised that I intended to approach the issue of the assessment of fault and liability as established by that decision.
3. During discussions, the claimant's representative advised:

(a) that the claimant did not concede any contributory negligence. I was advised that she says (as was stated in the submissions) that QBE's driver merged into her lane suddenly and as a result she ran into him, and he is totally at fault;

(b) that the photographs referred to in submissions as the "photographs of the accident scene" are not in fact photographs of the actual scene, but photographs of the damage done to the two vehicles;

(c) the submissions refer to damage to the front right side of the claimant's vehicle and no damage on the left side, the claimant's representative confirmed there was no damage to the side of the vehicle per se but to the front of the vehicle on the right side, similarly the damage to the insured vehicle was to the left side of the rear of the vehicle and not the left side of the vehicle itself, and

(d) the damage to the vehicles is not consistent with the square on collision depicted in the insured driver's sketch.

1. I queried whether an accident reconstruction expert would be called and requested a statement from the claimant providing evidence in support of her submissions.
2. The insurer sought ambulance and police records along with property damage documents and third-party directions were issued.
3. At the second preliminary conference which was conducted by MS Teams on 31 March 2025, the claimant's solicitor advised the claimant had prepared a statement, but it was not yet signed and had not been served on the insurer. The claimant's representative confirmed no expert would be retained, that the statement would be served when signed and that there was no further evidence. The insurer's representative wished to provide further submissions once the statement had been received.
4. Both parties submitted that the dispute should be assessed on the papers. I was of the view that the matter could be fairly assessed on the papers and a timetable was set.
5. The claimant served and uploaded her statement. The insurer provided short final submissions. No further documents and no further submissions were provided by the claimant.

1. The claim form which appears to have been completed by Ms Eskander in her own handwriting is signed as true and correct is dated 28 November 2023.[5] In it she says:

"Driving home from work on the M2 a car in front [of] me stopped suddenly at 100 km/h. I had nowhere to go but into him. I was concussed, hitting my head on the steering wheel and windscreen breaking. The driver at fault ran to me saying "I'm sorry I didn't mean to brake so fast."

(a) trauma;

(b) head and neck injuries;

(c) concussion;

(d) torn ligaments in hand and wrist, and

(e) constant pain in back of head.

1. Ms Eskander says she was taken to Ryde Hospital and discharged later that day. She indicates she had pre-existing gastrointestinal tract / gut illness and had seen her specialist on 3 November 2023.

Emergency services and hospital records and reports

1. The police report is dated 5 December 2023.[6] It notes:

(a) the accident occurred on the freeway;

(b) the road was straight level the weather was fine and the surface wet;

(c) the speed limit was 100km;

(d) the claimant was driving a black station wagon with a pre-accident speed of 80km;

(e) the claimant's vehicle had damage to the front and bonnet;

(f) the insured was driving a grey station wagon driving at 100km before the accident, and

(g) the insured vehicle had damage to the rear.

1. The crash summary details are succinctly stated as follows:

"At 15.45 on 24 November 2023, VEH2 applied their brakes to avoid a vehicle in front of them and in doing so has caused VEH 1 to make contact with VEH 2. Both VEHs were travelling westbound on M2 Motorway at 80 - 100 km."

1. Police records produced in answer to a direction for production note that ambulance, fire and rescue and transport managements were informed.
2. The full narrative details record that vehicle 2 (the insured) was driving on the M2 when he applied his brakes to avoid the vehicle in front who had "slammed their brakes on". While doing this vehicle 1 (the claimant) has collided with vehicle 2 at about 80 - 100km. Vehicle 1 airbags have deployed, and both vehicles have come to a stop in the far-left lane.
3. When police arrived, the insured driver was out of the vehicle, but the claimant was still in the vehicle. The police collected details from both drivers and the insured was breath tested (negative reading).
4. The attending officer's notebook adds little additional information. There is however (at page 18) a diagram drawn of the scene of the accident. This diagram has vehicle 1 behind vehicle 2 and both in the far-left hand lane.
5. Both vehicles were towed.
6. The ambulance report[7] states that the call came through at 3.43pm and that ambulance personnel were at the scene at 3.52pm and the claimant was loaded at that time and Ryde Hospital was reached at 4.09pm. In the light of the claimant's submissions about her state of mind and health following the accident, the full case circumstances are set out below:[8]

"[Call to] 28 [year old female], [motor vehicle accident complains of left-hand side] wrist pain. [On attendance] patient seated in car, visibly distressed. Bystanders on scene. Two car pile-up. Patient has collided with another car nose-to-tail. Patient extremely distressed on scene. Immediate patient contact made, nil code 9. Patient denies [cervical] spine pain/tenderness. Patient assisted out of vehicle, self-extricated with assistance of paramedics. Patient moved onto ambulance stretcher and loaded into back of ambulance. [history] as per patient: Patient was driving down motorway at approximately 80 km/h when the cars in front of hers braked suddenly, patient was decelerating when she collided with tail of another car. Both airbags deployed. Nil cabin intrusion. Patient states she hit her head on airbag when it deployed.

[On examination] Nil ABC issues, head to toe assess; Nil haematomas / lacerations to head. Nil facial or dental trauma. Patient denies c-spine pain tenderness. Patient denies spinal pain. Nil rib pain. Nil sternal pain. Abdo soft, non-tender. Nil pelvic pain. Patient states she has moderate pain to L wrist, nil obvious deformity. Other long bones intact. Patient also complains of pain to sternocleidomastoid muscle. Patient moving head freely. Nil sensory deficits. Patient complains of headache and nausea. PEARL, size 4. Nil [loss of consciousness]. Patient has full recollection of events. Patient normotensive, normocardiac, afebrile. Lung sounds clear. ECG - NSR. All other obs BTF. NKA, Nil [past history]. Mx patient given 3ml methoxyflurane [green whistle] to good effect. Patient states pain down from severe to 4/10. Attempted to place sling on arm however patient states nil comfort provided from sling. Patient did not meet T1 criteria. Proceeded under minor trauma to Ryde Hospital. Patient reassured and transported during transport to Ryde."

1. The claimant's Glasgow Coma Scale (GSC) assessment was 15 out of 15 at 4.00pm and at 4.30pm. The notes of the secondary survey note nausea was present, but no vomiting and the claimant complained of a headache and dizziness.
2. The ambulance records produced in answer to the insurer's direction include an attendance on the insured. He refused a full assessment and denied any neck pain and had good range of movement with equal and reactive pupils. He was advised to seek medical attention if any symptoms arose.
3. The hospital discharge summary[9] noted a past medical history of irritable bowel syndrome (IBS) and that the claimant was being "worked up for coeliac disease". The hospital has a history as follows:

Brief LOC then remembers passerby waking her up and informing her of accident

Ambulance had to assist in extrication from vehicle due to leg spasm ? shock

In ambulance was diaphoretic [excessive sweating] with jerking whole body movements and chattering jaw

1. The claimant gave a statement to insurer's investigator on 18 December 2023[10] saying:

(a) she does not recall what the weather conditions were like;

(b) she remembers getting onto the M2, it was fairly empty and traffic was flowing;

(c) she was in the middle lane and "all I remember is that all of a sudden there was a car just pulled up in front of me. It wasn't moving it was stationary";

(d) she remembers that there were cars on the left and trucks to her right and she had no choice but to slam on her brakes to try and avoid the car in front;

(e) she does not recall hitting the car, she cannot say how far from it she was when she first saw it, she says "I remember being just shocked by driving and seeing the stationary car in front of me. I don't remember anything after that until I was woken up by a lady";

(f) she says she remembers seeing no car in front of her;

(g) she says the car in front had "driven off the left side" and that the lady who helped her "parked him in so he couldn't go anywhere";

(h) she said the driver came to the window apologised and said "All my god, I didn't' mean to, are you okay";

(i) she said paramedics and police officers carried her out of the car;

(j) she said she saw her general practitioner (GP) the next day who told her she could not work because of a concussion because "I had been knocked out";

(k) she rang the police and asked about traffic cameras, but there none, and the police never took a statement from her. The police said when they arrived at the scene "there were only two cars at the scene";

(l) she rang QBE's insured driver on 25 November 2023 and asked him what had happened, and he said "I'm so sorry I stopped to not hit the guy in front of me. I hit the brakes and swerved left, and you couldn't react in time unfortunately and hit my rear", and

(m) "In my belief the accident was caused by a car that suddenly came into my lane doing 100 km/h."

1. The claimant provided photographs. The first photograph shows her car at what appears to be a smash repair or car storage facility. There is significant deformation damage to the front of the car, more on the right (driver's) side than the left. The interior shot shows both front airbags deployed. A third photograph shows the rear of QBE's insured vehicle with significant deformation damage with more on the left (passenger) side.

1. The claimant gave a statement to her solicitors dated 29 March 2025. She says:

(a) she was on her way home from work driving on the M2 in lane 2 at about

100kmph;

(b) the insured suddenly pulled into her lane from the right lane at very slow speed and it looked like he was stationary;

(c) he was partly in her lane immediately before the collision, she remembers there were cars in front of him in lane 3;

(d) she could not swerve because of the cars to her left and trucks to her right, she was unable to stop as she approached the rear of his car and as was partially into her lane;

(e) she did not recall the actual impact and says she was "rendered unconscious";

(f) she says when she came to, she was still in the middle lane and person in the left hand lane pulled up to her window and yelled out to her, and she "kept talking and reassuring me that I was going to be OK", the lady told her not to move and she would get the driver and she heard him yell out to him;

(g) the insured got out and approached her window and started apologising and then called the ambulance;

(h) she says "I began to drift in and out of consciousness while waiting for emergency services. Once police and paramedics responded to the scene I was still in extreme shock and began shivering and vomiting uncontrollably";

(i) she says several people helped her out of the car and "I could not feel most of my body and I thought that I could be paralysed", and

(j) she has no recollection of discussing the accident with police, paramedics or hospital staff and can barely recall her admission.

1. QBE's insured gave a statement to the insurer's investigator[11] and he says:

(a) the accident occurred on the M2 heading west and the traffic was medium and flowing at the time;

(b) the weather was fine, and the road was dry;

(c) he says he was in the far left lane and there were cars in front of him:

"The car in front of me hit their brakes suddenly, I saw the brake lights come on. I would have been four or five car lengths behind the car in front. I would have been going 90 - 100 kmph. I slammed my brakes on and swerved to left slightly. I checked my rear vision mirror, and I saw a car behind me, maybe three car lengths behind my car I thought to myself, she is going to nail me. The car behind me has then impacted the rear of my car. I was still moving at the time and slowing down. The car that braked in front of my car kept driving. I did not impact with that vehicle. The impact from the car behind me pushed my car forward";

(d) he drove maybe 20m, pulled over off the side of the road and stopped to make sure he was OK. He says another driver pulled in behind him and was yelling at him and she then drove off;

(e) he says he went to the claimant and asked her how she was, and she could not feel her arms or legs and she said she was bleeding everywhere "I think she was in hysterics";

(f) he asked her for her details, but says she refused to give them;

(g) he says, "no witnesses ... stopped at the scene that told me they saw the incident happen", and

(h) ambulance arrived first, then the police.

1. The insured drew a diagram of the accident scene. He has drawn three lanes (left, middle and right) and has three shapes drawn. There is a square (the car in from of him), a smaller square labelled "me" and a larger rectangle labelled "Amanda". Both these shapes are not square to each other overlapping to some extent.
2. The property damage file shows that the insurance company sought recovery from the claimant of $9,032.36 being the value of the car as it was a write off. There is no other information in the file that gives me any assistance.
3. Photographs of the insured vehicle shows more damage on the left-hand (passenger) side of the bumper and rear door of the station wagon.

1. The claimant says in her most recent statement she has no recollection of what she said to the police, the ambulance or the hospital on the day of the accident. The claimant submits that because of her injuries and mental state any evidence she did give to them is unreliable. She refers to being heavily concussed, delirious, in severe shock and extremely amnesic of the accident.
2. The claimant in her handwritten claim form completed four days after the accident refers to the car in front stopping suddenly (not merging from lane 3 into her lane). The claimant says at that time she was still heavily concussed and confused and amnesic.
3. The claimant provides no medical evidence to support these submissions. There is no record from the claimant's GP or any of her treating doctors to support the claimant's state of consciousness and confusion either at the hospital or in the four days after the accident when she submitted her claim form.
4. In her most recent statement, the claimant said that she began to drift in and out of consciousness while waiting for emergency services. The claimant on the other hand recalls the details of a conversation through the window with the lady driver in the next lane and saw and heard her conversing with the insured. The ambulance personnel do not record any loss of consciousness, and one page of the hospital records note a "brief" loss of consciousness before the witness and the claimant attended to her. In her most recent statement, the claimant says after police and ambulance turned up, she was shivering and vomiting uncontrollably. While the ambulance records support the claimant's report of shivering, they do not record uncontrolled vomiting, and they specifically record no vomiting. I also note the ambulance report records, a 15 out of 15 GCS at 4.00pm and again at 4.30pm. The GCS is a common scale used to indicate the level of consciousness after a brain injury and a result of 15 indicates no loss of consciousness.
5. While the claimant has repeatedly said she was shocked, delirious, confused and amnesic there is limited contemporary evidence that supports this. The insured says she was hysterical. The police report her speed, which must have been provided by her at the scene as there were no witnesses that stopped to speak to police. The ambulance officers took a history from her, which is coherent and consistent with the insured driver's statements and there is no mention in her 18 December 2023 statement of being delirious, confused or amnesic of any details, other than the moments before and the actual impact.
6. In the claimant's 18 December 2023 statement given to the insurer's investigator, the claimant says she believed the accident was caused by a car that suddenly came into her lane at a speed of 100kmph. In her 29 March 2025 statement, the claimant says a vehicle suddenly came into her lane at a very slow speed.
7. The claimant's most recent statement is inconsistent with the history given in the claim form and to the ambulance personnel as to where the insured vehicle was before the collision. It is inconsistent with the insured's evidence and sketch and the sketch drawn by police. The two statements are inconsistent with each other in terms of the reported speed of the insured vehicle. For these reasons, I do not accept the claimant's most recent statement as a true recollection of the actual events leading up to the accident.

1. The High Court has made it clear that factual findings made by a judge or tribunal must be supported by logical probative evidence. Any inferences that are drawn must be reasonably open on the facts Australian Broadcasting Tribunal v Bond.[12] I do not consider it reasonable to infer anything from the conduct of the alleged witness. It is purely speculative what she may have seen.
2. I am aware of the warnings issued by appellate courts in cases such as Blacktown City Council v Hocking [2008] NSWCA 144 as to how photographs are to be used in the absence of expert evidence. I do not accept the claimant's submissions that the photographs support the claimant's version of events over the insurer's. That is, as was explained to the parties at both the first and second preliminary conference, a matter for expert evidence.
3. I do not accept the claimant's submissions as to the speed of the insured's vehicle and the distance it covered after the insured was hit and he moved to the left shoulder of the road. This is a matter for expert evidence.
4. The evidence of the ambulance personnel in completing their report and the police officers in completing theirs has not been challenged. The police arrived some time after the accident and at that stage there were only two vehicles, the claimant's and the insured's vehicle. The reporting police officer drew a sketch of the accident.
5. The hospital discharge summary states the accident was a four-car accident, but I only have two out of nine pages of that discharge summary and no other hospital notes in evidence. That note (about four cars) may be an error or it reflects the claimant's state of mind at the time. It is also possible that the "four-car accident" is the claimant's memory of there being her car, the insured vehicle, the vehicle in front of him and possibly another in front of that. Without the whole of the hospital records, I do not consider it appropriate to make any finding based on this incomplete record.
6. The insurer's evidence has not been tested by examination and cross examination. The same can of course be said about the claimant's evidence. In those circumstances, I must look to the other evidence for confirmation and clarification of their versions of events.

1. I am satisfied on the evidence as to the following matters:

(a) the accident occurred during daylight, on a straight stretch of the M2 where the speed limit was 100 kmph. I make this finding on the basis that neither party has disputed it in their submissions and the police report has documented it;

(b) the claimant was driving at 80kmph. I make this finding based on the police report and the claimant's stated speed given to ambulance personnel. This is more contemporaneous evidence than her claim form and her statement from March 2025 in which she says she was driving at 100kmph;

(c) the insured was driving at 100kmph when he first saw the vehicle ahead of him. I make this finding based on his evidence which is consistent with the police report;

(d) both the insured and the claimant were driving in the same lane. I make this finding on the basis of the insured's evidence in his statement and the claimant's version of events provided in her claim form and her statement to the insurer's investigator of seeing a vehicle in the lane in front of her;

(e) the accident occurred in the far-left hand lane of three lanes. I make this finding on the basis of the insured's evidence which is supported by the police report and in particular the diagram of the two vehicles in the far-left hand lane, and

(f) a vehicle ahead of the insured's vehicle stopped suddenly. I make this finding on the basis of the insured's evidence to the police (their report that the vehicle in front "slammed" on their brakes), what the insured is reported to have said to the claimant on 25 November 2023 and the insured's statement to the investigator.

1. I do not accept the claimant's evidence in her most recent statement that the insured suddenly and without warning merged into her lane from the far-right lane at a very slow speed. I do not accept that she could not give an accurate history to ambulance officers, or that she was not aware of what she herself was writing in her claim form. Her claim form says a car stopped suddenly in front of her. Her statement to the insurer's investigator says there was a car suddenly pulled up in front of her. The first evidence of the insured merging into her lane from the far-right lane came with her submissions and then her statement in March 2025. While I accept the evidence of the claimant is her honestly held belief, I find that she is mistaken as to the location of the insured's vehicle and its movements in the moment's leading up to the accident.

1. In the course of her reasons in the Evic case, Justice Mitchelmore said:

(a) the phrase 'wholly or mostly' in ss 3.11 and 3.28 of the MAI Act is a composite phrase (not two concepts), and is addressed towards the claimant's contributory negligence [56] relevant to the accident (not the injury) [57], and

(b) section 3.38, and the assessment of contributory negligence requires the enacted law of contributory negligence to be applied including s 5R(2)(a) of the Civil Liability Act 2002 and that the test of contributory negligence is "the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person" [60].

1. Both the claimant and the insurer referred to the Road Rules. Rule 126 says:

"A driver must drive a sufficient distance behind a vehicle travelling in front of the driver so the driver can, if necessary, stop safely to avoid a collision with the vehicle."

1. A breach of the Road Rules is not determinative of the matter. The Court of Appeal in Verryt v Schoupp[13] made the following observation at [4]:

"... the determination of what reasonable care requires in any given case is not resolved by asking whether the relevant conduct was or was not prohibited by one of those rules. Nevertheless, the fact that particular conduct is prohibited may in some cases be a factor pointing to the conclusion that reasonable care was not taken..."

1. Both the claimant and the insurer cited the decision of Manley in particular this passage at [12]:

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

1. Every case must be decided on its own facts. I am satisfied on the facts that I have found that the claimant contributed to the accident because she was not keeping a proper lookout, and she did not see the insured vehicle in time to stop safely. The claimant said in her statement to the investigator that, "all of a sudden there was a car just pulled up in front of me" and "I remember being just shocked by driving and seeing the stationary car in front of me". Ms Eskander was travelling at a slower speed that the insured. She was on the M2 Freeway a three lane Motorway. The road was straight, it was daylight, and the QBE insured vehicle was there ahead of her to be seen. The claimant (on her evidence) was aware of cars to her left and trucks to her right. There were other vehicles on the road including the one ahead of the insured that had stopped suddenly in front of the insured. A reasonable person in the position of the claimant would have been more aware of what was going on around her and, on a Motorway (where the speed was 100 kmph), more vigilant in terms of what was in front of her. A reasonable person in her position would have seen the cars in front, seen them brake suddenly and been able to react in time.
2. In my view the claimant also contributed to the accident because she ran into the rear of the insured vehicle. The insured, whose evidence I have accepted, says there were vehicles stopped ahead of him. He had to "slam" on his breaks and stop suddenly to avoid colliding with the vehicle in front which he did. The claimant saw the insured stopped, or nearly stopped and did the same (breaking heavily) but she could not stop in time. This suggests that in conjunction with her failure to observe the insured's presence on the roadway, the claimant was travelling too close to the insured to stop in time.
3. A reasonable person in the position of the claimant would have maintained a sufficient distance from the vehicle ahead of her in order to stop safely should the need arise. In my view the claimant has failed to exercise the standard of care required for her own safety.
4. The claimant is therefore contributorily negligent in respect of the cause of the accident.

Did the insured breach his duty to the claimant?

1. Justice Mitchelmore said in Evic at [61], where there is more than one motor vehicle involved in the accident the claimant's contributory negligence is assessed by considering the proportionate culpability of each.
2. His honour Justice Basten said at [32] of Allianz Australia Insurance Limited v Shuk:[14]

"Without a proper finding as to breach of duty, the proportionate culpability of each cannot be assessed."

1. Ms Eskander does not have to prove that QBE's insured breached his duty of care to her in order for her to be entitled to ongoing benefits. However, I must make a finding about whether he did breach his duty of care, in order to establish whether there is any culpability on his part. This enables me to then assess his culpability relative to the claimant's and it forms the basis for the assessment of Ms Eskander's degree of contributory negligence.
2. I am not satisfied that the insured driver breached his duty of care to Ms Eskander. I have accepted his evidence that the vehicle in front of him stopped suddenly. He reacted to that, and he stopped his own vehicle suddenly without causing a collision with the vehicle in front of him. He was keeping a proper lookout and travelling at a safe distance from the vehicle in front. There was nothing he could have done to avoid the claimant running into him. In my view, a reasonable person in his position would have acted in the same way and could not have done anything to avoid a collision.

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

1. As I have found that the claimant has departed from the standard of care of a reasonable person in her position, and she is contributorily negligence, s 3.38(3)(c) requires an assessment of the degree of contributory negligence that is "just and equitable in the circumstances of the case" (Evic at [73]).
2. As was recognised in Evic, there are two approaches to the assessment of the degree contributory negligence:

(a) when two vehicles are involved in an accident (or the accident involves a pedestrian or cyclist and a motor vehicle) the relative culpability of the two protagonists must be considered, as has been the case since Podrebersek v Australian Iron and Steel Pty Ltd,[15] or

(b) when there is only one vehicle it must be considered how far the claimant has departed from the standard of care required in the interests of her own safety which is the approach taken in the blameless accident cases such as Axiak v Ingram.[16]

1. In my view this is an accident in which two vehicles were "involved". I must therefore consider the culpability of the QBE insured driver and compare it with the culpability of the claimant. On the basis of the findings I have made on the evidence put before me, I am not satisfied that there is any fault or culpability on the part of the insured driver which means that the insured driver was 0% culpable and the claimant is 100% culpable. It follows therefore that on that basis, the accident was caused wholly by Ms Eskander's fault within the meaning of ss 3.11(1)(a) and 3.28(1)(a).
2. Are the circumstances of this accident akin to a single vehicle accident? Because of the finding there was no fault or culpability on the part of the insured driver, the "involvement" of his car could be considered as the object that the claimant collided with (just like a telegraph pole, tree or fence might be if she had run off the road). If I am to disregard the involvement of the insured and consider only the claimant's departure from the standard of care required in the interests of her own safety, I am of the view that her "conduct is not an example of a worst possible case" as was the claimant in Davis v Swift.[17] I would not therefore assess her departure from the standard of care at 100% but I would still find her contributory negligence greater than 61% and Ms Eskander would be mostly at fault.

1. As I have found the claimant's contributory negligence is 100% and that is greater than 61%, it follows that Ms Eskander's motor accident was caused "wholly or mostly" by her fault.

1. The claimant seeks legal costs of the matter, and the insurer has not opposed an order for costs. Sections 7.37 and 7.42 empowers the Commission to assess costs when assessing the dispute.

1. The claimant seeks costs on the exceptional basis under s 8.10(4) of the MAI Act on the basis she sustained "very significant injuries" which will have a lifelong effect, there may be a face to face hearing and there are complex issues requiring lengthy submissions.
2. I am not satisfied that there are exceptional circumstances. There is no medical evidence as to the nature and extent of the claimant's injuries, disabilities and impairments and there has been no hearing as the parties sought an assessment on the papers. In my view the issues in this case were not complex. There were two factual disputes - in what lane were the two vehicles in, and how did the insured get to be in front of the claimant. There was no expert evidence provided, no medical evidence and a supplementary statement from the claimant. No hearing was held, and counsel was not briefed. Since the Evic case, disputes about wholly or mostly at fault have reduced in complexity as the interpretation of the provisions appear now settled.
3. Therefore, as there are no exceptional circumstances, Ms Eskander's costs should be assessed on the basis of the regulated fees. I have been provided with no details of disbursements.
4. The claimant has been receiving benefits under Divisions 3.3 and 3.4 and disputes have arisen as declared under Schedule 2(3)(d) and (e). The claimant is, in my view entitled to costs of those two disputes. Each of the declared matters is a regulated miscellaneous claims assessment matter and each attracts a maximum of 16 monetary units or $1,992 in accordance with Schedule 1, Part 1(3) of the Motor Accident Injuries Regulation 2017 (the Regulation). Bearing in mind the amount of work undertaken in this matter (two preliminary conferences and the drafting of submissions) I am of the view that the maximum legal costs should be awarded. To this should be added an amount for Goods and Services Tax.[18]

[2] The references in square brackets are to the paragraph number in the submissions which are found at page 2 of the claimant's bundle.

[3] [2005] HCA 79.

[4] [2024] NSWSC 1272 (Evic).

[5] Page 15 of the claimant's initial bundle.

[6] Page 39 of the claimant's initial bundle.

[7] Page 66 of the claimant's initial bundle.

[8] The ambulance record is full of obvious abbreviations. These have been expanded in square brackets.

[9] The summary provided by the claimant includes two out of nine pages. While two requests were made for the full discharge summary, it has not been provided.

[10] Page 52 of the claimant's initial bundle.

[11] Page 60 of the claimant's initial bundle.

[12] (1990) HCA 33 at [367].

[13] [2015] NSWCA 128 at [4]

[14] [2023] NSWSC 788.

[15] [1985] HCA 34.

[16] [2012] NSWCA 311.

[17] [2014] NSWCA 458 at [52]

[18] Regulation 35.