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

1. For the purposes of sections 3.11 and 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.
2. Due to the findings made in this decision and in accordance with section 3.38 of the Act, the claimant's weekly payments of statutory benefits are to be reduced by 50% on account of the claimant's contributory negligence.
3. The insurer is permitted to costs beyond the sums provided for in the regulation in accordance with s 8.3(4) of the Act.
4. The claimant is permitted to recover costs from the insurer beyond the sums provided for in the regulation in accordance with s 8.10(3) of the Act.

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

1. [ETU] was involved in a motor accident on 18 November 2023. He was, at the time 45 years of age. The accident occurred on a fire trail at the Louee Enduro & Motocross Complex (Louee) at Lue in the Mudgee and Rylstone area. [ETU] was riding a motorbike which collided with another motorbike ridden by [CNC].
   1. On or about 26 November 2023, [ETU] made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against AAI Limited t/as AAMI the third-party insurer of [CNC]'s motorcycle.
   2. On 26 August 2024 the insurer issued a liability notice to [ETU] denying any liability to pay ongoing statutory benefits on the basis he was "wholly or mostly at fault".
   3. [ETU] sought an internal review of that decision in accordance with Division 7.3 of the MAI Act and on 9 October 2024, the insurer affirmed that decision in the internal review.
   4. [ETU] referred the issue of whether he is wholly or mostly at fault to the Personal Injury Commission (Commission) for assessment in accordance with Division 7.6 of the MAI Act. The proceedings were allocated to me to determine.

1. [ETU]'s claim for statutory benefits is 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. [ETU], as an "earner" in accordance with the statute is entitled to claim both types of benefits.
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. There are however limits and restrictions on benefits. One of these is that pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 52 weeks after the accident if the injured person only has threshold injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident. [ETU] sustained a fractured sternum which is not a threshold injury.

1. Disputes in relation to claims for statutory benefits can be dealt with by Merit Reviewers, Medical Assessors and Members of the Commission. There are 47 dispute types listed in Schedule 2 of the MAI Act which declares some of these to be merit review matters, others to be medical assessment matters and more as miscellaneous claims assessment matters.
2. Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether [ETU] is wholly or mostly at fault in respect of his weekly benefits (Schedule 2, cl 3(d)) and whether he is wholly or mostly at fault in respect of his treatment and care benefits (Schedule 2, cl 3(e)).
3. If the motor accident was not caused "wholly or mostly" by the fault of the claimant but there is some contributory negligence, under s 3.38, weekly benefits are reduced by the degree of any contributory negligence. Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether statutory benefit should be reduced for the claimant's contributory negligence.

1. [ETU]'s entitlement to ongoing statutory benefits depends on him being "wholly or mostly at fault." While there is no definition of "wholly" at fault, 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%.[1]
2. Justice Mitchelmore in AAI Limited t/as GIO v Evic[2] considered the phrase "wholly or mostly at fault" in a single vehicle (motorcycle) accident. Mr Evic had mounted his motorcycle, and the foot peg was caught between his boot and his riding pants, as a result of which the motorbike fell causing injuries to Mr Evic's left lower leg. A Member of the Commission determined that Mr Evic was not wholly or mostly at fault because "fault" meant the tort of negligence and that required there to be a duty of care owed and breached. As Mr Evic did not owe himself a duty of care, the Member found he could not be in breach of any duty and therefore could not be negligent or at fault (wholly or mostly).
3. In the course of her reasons, Justice Mitchelmore said the following:

(a) an injured person's entitlement to statutory benefits does not require that person to prove fault [55];

(b) the phrase "wholly or mostly" is a composite phrase (not two concepts);

(c) the phrase is addressed towards the claimant's contributory negligence [56] relevant to the accident (not the injury) [57];

(d) section 3.38 requires the enacted law of contributory negligence to be applied which includes the provisions of s 5R(2)(a) of the Civil Liability Act 2002. The test of contributory negligence therein is the departure from the standard of care being "that of a reasonable person in the position of [the claimant / plaintiff]" [60];

(e) where there is more than one motor vehicle involved in the accident, or the claimant is a pedestrian (and presumably a cyclist or other road user), the claimant's contributory negligence is assessed by considering the apportionment of culpability between the protagonists as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk[3] at [61],[4] and

(f) if there is some contributory negligence found on the part of the claimant, then 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" [73].

INSURER'S DECISION MAKING AND PARTIES' SUBMISSIONS

1. The insurer initially denied liability because it was of the view the injury did not occur in the accident or that the accident did not occur in the way the claimant said it did. The insurer also denied liability on the basis the claimant was wholly or mostly at fault. At the hearing the insurer abandoned the first allegation but maintained the second. Other allegations and issues in dispute were also abandoned at the hearing, for example the reason for the claimant leaving the Louee premises. There is therefore no need in these reasons to deal at any great length with the submissions concerning those matters and they will be referred to as the "secondary" issues and matters.
2. On 26 August 2024, AAMI wrote to the claimant denying liability saying he was wholly or mostly at fault because he deliberately collided with the insured motor bike as it was overtaking; he was riding in a dangerous and reckless manner, and he failed to take any or any reasonable care for his own safety or for the safety of the insured rider.
3. In support of his request for an internal review the claimant provided a 12-page document to the insurer dated 23 September 2024.[5]
4. AAMI's internal review was undertaken on 9 October 2024 and affirmed the decision saying the claimant was wholly at fault. The internal reviewer acknowledges there were conflicting versions of events but says he is "inclined to accept" the insured's version of events on the basis [CNC] said he did not fall off his bike and there was no injury to him or damage to his bike which meant his version of events was more likely.

1. The submissions lodged with the application state:

(a) that the insured had the obligation to pass the claimant in a safe manner and did not do so passing on the left contrary to the general road rules;

(b) that the insured misinterpreted the sign of a slight move to the right as permission to overtake and he says in his statement he would have used hand signals to signal permission;

(c) the claimant says he was wearing a full-face helmet, and it would be impossible for the insured driver to form the opinion he was swerving on purpose, and

(d) the insured driver's motorbike was registered so it must have had a horn, and the horn should have been used to alert him to the insured's presence behind him.

1. The claimant says the evidence concerning the other activities of the claimant (no longer in issue) should be disregarded as it is hearsay.

1. The insurer notes that there is a dispute as to the time and date of the accident.
2. The insurer says the claimant deliberately collided with the insured motor bike, was riding recklessly and dangerously and failed to take any care or any reasonable care for his own safety.
3. The insurer says the claimant's son's statement should not be accepted as the son is

13 years of age, the statement is unsigned, and it is not clear who typed it.

1. The insurer provided extensive submissions dated 5 August 2025. After summarising the evidence provided, the insurer says:

(a) the weight of evidence supports key aspects of [CNC]'s version of events and the aftermath rather than the claimant's;

(b) the claimant describes in his statement how riding fire trails and tracks is difficult yet says that "passing on the left is simply absurd" which it is not, and

(c) the claimant has "cast aspersions" on the insured on the basis of "speculation".

1. The insurer says contributory negligence must be found because:

(a) section 3.38(2)(e) mandates a finding of contributory negligence where the defence of volenti non fit injuria (volenti) "would have been available" but for s 4.18;

(b) section 4.18(1) provides that if volenti would have applied to defeat a claim it is now a matter for the reduction of benefits, and

(c) section 4.18(2) provides that volenti is a complete defence in circumstances where the vehicle is motor racing and that is defined as including an organised motor sports event.

1. The insurer made several submissions concerning fault on the part of its insured. The insurer says that if volenti is available as a complete defence, there is no fault (negligence or other tort) on the part of the insured driver because there is no duty of care owed by the driver to the claimant. The claimant having voluntarily assumed the risk of harm would necessarily be wholly at fault. Volenti should apply because the claimant signed a waiver which outlined the "numerous risks and dangers" that riders might be exposed to including the riding behaviours of other riders.
2. The insurer submitted the claimant rode deliberately at [CNC] which was reckless, dangerous and he failed to take any reasonable care for himself and [CNC].
3. The insurer says the claimant is wholly at fault because of volenti which applies because:

(a) he was participating in an organised motor sports event;

(b) he signed a waiver and was aware of the risks in riding at the premises;

(c) he assumed the risk of injury (that other riders may ride with lack of skill), and

(d) as the High Court in Imbree v McNeilly[6] said "a plaintiff voluntarily assumed the risk ... is readily seen as equivalent to concluding the defendant owed that plaintiff no duty of care".

1. In terms of whether the claimant is mostly at fault the insurer says that if there was some causative fault on the part of [CNC], volenti would still have work to do given that the accident occurred in the bush in circumstances where the claimant had voluntarily assumed the precise risk that he says resulted in his injuries.

1. The claimant says he did not know the insured was there, he did not know he was going to overtake him, and he is supported in his evidence by his son [DEZ]. If the claimant's son's evidence is accepted, he submits the insured's evidence must be rejected.
2. The claimant says there are logical reasons why his version of events should be accepted. The claimant says he was riding behind a group of slower riders with his son behind him when the insured attempted to overtake him on the left-hand side without warning. The claimant did not know he was there, did not hear "revs", the insured did not indicate or sound his horn. He was not expecting anyone to be there. The insured did not ensure it was safe or was recklessly indifferent to the claimant's "consent" to overtake:

"Logically, that seems more likely, given intentionally attacking someone with a motorbike, and then immediately constructing a fabricated version and enlisting your son to perpetuate it, seems incredibly unlikely (and illegal)."

1. The claimant says his son's evidence should be accepted. The claimant says the contemporaneous record (his report to Louee, the hospital and to the police) is consistent with his version of events. The contemporaneous report from [CNC] in the Louee records does not mention a "shove" or "swerve", a "hard swerve" or "ram" and he only reported to Louee that he "noticed" the claimant had fallen off.
2. The claimant also deals with the other evidence, in particular that the three witnesses the insured rider spoke to after the accident did not witness the accident and says they have given statements long after the accident and that the "roostering incident" they have reported is a case of mistaken identity.
3. The claimant took issue with the evidence in the material from Louee about the secondary issues saying Mr Combes is wrong about why the claimant left and the claimant's son did not attend the nurse to seek medical attention.
4. The claimant addresses various aspects of the insured's evidence and submits:

(a) the insured was not cautious and did not pass when it was clear and safe, the move to the right could mean anything including what the claimant says as hazards on the trail;

(b) the insured says the claimant's son was in front of him when the claimant and his son both deny this;

(c) even if the insured did rev his motor bike the claimant was wearing a helmet, was riding ahead of him and the insured could not be sure the claimant had heard him;

(d) the insured made multiple mistakes in his statement such as assuming the claimant's bike was not registered, and

(e) that, "it seems that over the passage of time, and following numerous conversations with other people, the defendant has moved significantly away from his initial version provided to" Louee.

1. The claimant says that at best the accident occurred due to a miscommunication, at best the insured decided to pass hard on the left thinking the claimant agreed to this by moving to the right and he submits, "even if there was a miscommunication, it was entirely of the [insured's own creation".
2. The claimant says concerning volenti that:

(a) sections 3.38(2(e) and 4.18 apply to an award of damages;

(b) there is doubt volenti exists when it is the negligence of a defendant causing harm;

(c) it only applies when a person consents to the risk and that mere knowledge of the risk is not enough. The waiver signed by the claimant was not a consent but is a general risk warning in respect of the Louee operations;

(d) the waiver is not a consent to a particular act and does not say it exculpates insured owners or drivers under the MAI Act, and

(e) the claimant was not motor racing.

1. The insurer confirms it does not press any of the matters raised about subsequent events other than the "push" and the "roostering incident".
2. The insurer submits that the claimant's evidence is not reliable for the following reasons:

(a) the claimant's 23 September 2024 statement says the claimant was not wearing glasses [2.5] but said on 16 January 2025 he could not see the claimant's face as he was wearing a full-face helmet and the claimant agreed at the hearing the earlier statement was misleading [2.6];

(b) the claimant said on 23 September 2024 that he believed he passed out and on 16 January 2025 refers to coming to his senses [2.8] yet the triage record at Rylstone Hospital expressly records no loss of consciousness as does the claimant's general partitioner's (GP) note on 20 September 2023 [2.9];

(c) the claimant said on 23 September 2024 and on 16 January 2025 that he sat on the ground for 10 minutes. This is contradicted by the Rylstone Hospital note which has the claimant getting up straightaway. The insurer submits the history in the hospital note must have come from the claimant [2.11];

(d) the claimant said in his January 2025 statement he did not hear the insured "rev" his bike and on 23 September 2024 he said it would be impossible to hear the insured behind him [2.12]. The claimant conceded at the hearing he heard something behind him and would have been able to hear the insured revving his motor bike from behind but then says the insured did not "rev" because he did not hear it [2.15], and

(e) the claimant was confused as to Ted and Tom Combes in his statement of

16 January 2025 despite being on notice at that time that all dealings had been with Ted and not Tom.

1. The insurer submits that the claimant's son's evidence should be disregarded due to his young age, and because he is not an independent witness. The insurer notes at [2.18] that the claimant said he always rode behind his son (because of dirt and dust and so he could see him) whereas his son said his father always rode in front of him. The insurer says at [2.19] the placement of the two riders was a matter of central importance to the case and his evidence on that point is wrong and this undermines the reliability of his evidence as a whole.
2. The insurer concedes that there is an issue of the reliability of the insured's evidence noting at [2.23] that he conceded his memory had faded with time and for example his concession that the roostering incident may have involved another rider. But the insurer says the critical aspects of his version "accord with logic" such as revving his bike to alert the rider ahead of his presence [2.23]. The insurer says at [2.24] I should accept that there was adequate room to overtake on the left and that the claimant swerved to the left and pushed the insured after the accident.
3. The insurer states Ted Combes' evidence is relevant as to the induction, the arrangements generally and the activities that normally occur on the property.
4. The insurer submits at [3.2] that I should make the following findings of fact:

(a) the claimant's son was riding ahead in accordance with the claimant's usual practice;

(b) before passing the claimant on the left the insured revved his bike which would have been heard by the claimant;

(c) the claimant moved to his right so there was adequate room to pass on the left;

(d) as he passed [CNC], the claimant intentionally moved back to the left so that a collision occurred. While the movement was intentional the contact may have been accidental;

(e) the claimant fell but got straight up;

(f) the insured was propelled to the left but did not come off his bike;

(g) words were exchanged and the claimant pushed the insured, and

(h) the insured departed concerned for his safety.

1. The insurer suggests at [3.3] there is logic in the incident occurring in this way as the claimant had strong views on riding "etiquette" and that any overtaking should occur on the right.
2. The insurer submits at [4.3] that if the above factual findings are made then the cause of the accident was the claimant's deliberate and aggressive move towards the insured and he is wholly or mostly at fault.
3. The insurer submits at [4.5] that the defence of volenti as set out in s 4.18(2) of the MAI Act applies to defeat a claim for damages and to render the claimant wholly or mostly at fault because there is no fault on the part of the insured because there is no duty of care.
4. The insurer says the claimant's signing of the Louee waiver is express consent to the risk that materialised namely the possibility of injury caused by other riders.
5. The insurer submits at [4.9] that if s 4.18(2) is not available, ss 4.18(1) and 3.38(2)(e) apply the principle of volenti in any event. The insurer says at [4.13] these two provisions require a mandatory finding of contributory negligence to be made where the doctrine of volenti applies.
6. The insurer submits at [4.15] that in considering the relative culpability of the insured and the claimant, that the insured's culpability is minimal if not non-existent. The insurer says the insured has ridden his offroad motorcycle in a matter that was "expected, predictable and common place" in an off-road setting. By contrast says the insurer at [4.17] the claimant knew accepted and assumed the very risk of harm that materialised. "His relative culpability lies in this voluntary decision to knowingly accept that risk."
7. The insurer submits at [4.18] that even if volenti did not apply the relative culpability of the insured was minimal or non-existent [4.19].
8. The insurer says at [4.20]:

"This is because he was engaged in a recreational/offroad/sporting activity and all he did (even on the claimant's version) was make an error of judgment in the heat of participating in that recreational pursuit."

1. The claimant's culpability was to participate voluntarily in a sporting pursuit which carried an obvious risk, and he did not take the step of fitting rear vision mirrors to his bike which he conceded would have been safer.
2. The insurer says at [4.25] that the insured should not be held to the same standard of care as a normal road user.

1. The claimant submits at [5] that I would not be satisfied to the requisite standard that the roostering incident occurred or involved the claimant and that the insurer has invited me to prefer the claimant's evidence as to the date and time of the accident.
2. The claimant also submits:

(a) the claimant was honest and reliable and his evidence should be accepted [7];

(b) the claimant's evidence may have been mistaken on some matters although the treating doctors may also have mistaken what was said or obtained a history from other sources such as the ambulance [8]. I note there is no evidence of the claimant being taken anywhere by ambulance. He walked into the Rylstone Hospital;

(c) the insurer has enhanced the minor inconsistencies suggesting dishonesty [11];

(d) the claimant's son's evidence was not challenged [12], and

(e) the insurer's submission that the claimant intentionally moved aggressively towards the insured should be rejected on the basis it is illogical and against the evidence of "multiple witnesses" 14].

1. The claimant submits at [15] that his evidence was the accident occurred at about 10.30am on Saturday, he believed it was proper "etiquette" that riders would overtake on the right when it was safe; that the process of overtaking would involve revving or using the horn and then a hand gesture or signal from the rider to be overtaken. The claimant says his son was riding ahead of him, he overtook his son as they approached some slower riders and signalled to his son to slow down. The accident occurred halfway into the trail. The claimant had removed his mirrors and had to "use his instincts when riding to know what was behind him and would look over his shoulder when there was a noise that required his attention."
2. The claimant submits that he was not expecting to be overtaken, he did not hear a horn or revving, he did not see any indicators, he did not look over his shoulder, he did not move to the right slightly, thereby implying the claimant was free to overtake, and he did not intentionally try to stop [CNC] from overtaking him and did not consent to being overtaken on the left.
3. The claimant submits that he did not push [CNC] and did not do the roostering incident.
4. The claimant says at [16] his son's evidence should be accepted although he was mistaken in saying he always rode behind his father. He submits at [21] that there is no doubt the claimant's son was behind and he was an eyewitness to what occurred and provided a statement, gave evidence and was not cross examined [23]. The claimant submits the central features of [CNC]'s evidence (the deliberate swerve) cannot be corroborated [29].
5. The claimant submits at [32] - [47] that the evidence of Mr Ted Combes including the "investigation" should be accepted as it was written carefully after speaking with Tracy (the nurse) and Peter Combes.
6. The claimant submits at [48] - the evidence of [CNC] should not be accepted at [48] - [69].
7. The claimant notes [CNC] has discussed his evidence multiple times after the accident with multiple people, accepted his memory has deteriorated over time and first had to recall the accident in mid-April 2024. His first report the claimant says is "self-serving, defensive and not contemporaneous". The claimant notes there is no mention of the claimant looking over his left shoulder, moving to the right or having implicit consent to overtake.
8. The claimant submits [CNC] said that revving his engine could have meant multiple things and looking over his shoulder did not mean the claimant could have seen [CNC]. He submits "using an indicator would have, or could have, got the attention of a rider in front" and that the claimant moving to the right did not indicate it was permissible to overtake and it would have been safer for him to wait.
9. The claimant submits the roostering incident involved someone else and that the swerving incident has been a reconstruction in the insured's own mind.
10. The claimant suggests it is significant that [CNC] did not report the matter to the police or report the alleged assault (deliberate swerve).
11. In terms of contributory negligence the claimant submits at [70]:

(a) there is no contributory negligence and that [CNC] was at fault (and wholly at fault);

(b) volenti does not apply, the "heading" suggests it falls within the statutory benefits "section" but the "section" refers to damages and that is what it is limited to;

(c) this was not an organised "event" with riders coming and going as they please and there was no event and there was no racing;

(d) the waiver is evidence of the claimant waiving his rights against the property owners and occupiers;

(e) the claimant did not consent to the risk of injury;

(f) the insurer has the onus on all issues, and

(g) contributory negligence should not be found although if it is it should be nil.

1. The claimant attended Rylstone Hospital at about 3.30pm on 19 November 2023 and was seen by Nurse Blunt (there being no doctor at the hospital at that time).
2. She has a history of the claimant riding a motorbike the day before when he was hit by another motorbike falling off sideways, hitting his head and right shoulder. The record suggests the accident occurred at 40kmph. The report continues:

"No LOC [loss of consciousness] states was winded, got up straight away. Has grazes on back of right shoulder, elbow and forearm. Was wearing helmet and body armour at the time."

1. The claimant reported pain in his shoulder and outer chest but was able to take deep breaths with some pain. The nurse rang a doctor (at Mudgee) and was given a form for an X-ray to rule out any damage but the claimant said he needed to drive back to Sydney. He declined to have his wife come and get them. He was given Panadeine Forte for pain.

1. A police report was made on 19 November 2023 at 5.00pm.[7] It includes the following information:

(a) the accident is described as "minor motorcycle accident - Louee Enduro and MotorCross complex";

(b) the date of the accident is said to be 18 November 2023 at 10.30am, and

(c) the injuries are stated to be "grazes to right arm, torso, possible hairline fracture to right shoulder requires CT Scan."

"... the Louee Enduro & Motorcross Complex is situated on Walkers Lane, Lue and attracts hundreds of riders during weekends/holidays and is public land. The venue requires all riders to sign a waiver exonerating the owners of any responsibility should riders receive any injuries. The complex provides accommodation and camping facilities, along with toilets, showers, kiosk, bike wash bay and a workshop. The complex spans over 10,000 acres with around 150 kilometres of Enduro Trails for all levels of riding skills from beginner to expert. There are also Motorcross Tracks, Grassed Tracks and a PeeWee[8] area."

"... the P/R [person reporting] [ETU] was riding his CRF 450 motorcycle on a single trail blue trail (easy) before the mid gate with his son. At the time the P/R was travelling at a speed of between 40 - 50 kmph. As they were riding along the trail a KTM 300 motorcycle has passed the P/R and upon doing so has hit him causing both riders to fall off. As a result, the P/R exchanged words with the male KTM 300 rider where he stated he was just passing before hopping back onto his motorcycle riding off. From the accident the P/R sustained grazes to his right arm, torso and had soreness to his right shoulder. On Sunday 19th November 2023 the P/R attended Rylstone Hospital where he received treatment along with an x-ray on his right shoulder which was inconclusive. As a result, he was informed he would require a CT scan for a possible hairline fracture. No further action required incident occurred in private property. Record made at the request of the P/R."

1. Senior Constable Turnbull provided a statement to the insurer's investigators dated

28 May 2025. He confirms he did not attend the scene and that the claimant reported the incident to police on 19 November 2023. He read out the narrative of events. The interviewer noted there was no reference in the statement to an impact between the motorbikes, which the officer confirmed, but then said "they collided. They've hit ..." 2. The police officer said he made no further enquiries but possibly may have undertaken a follow-up with the claimant, but he appeared most unsure about this. He was also asked whether he had made enquiries with the owners of Louee and he said he did and that he determined that the incident had taken place and was told by the operators that the claimant had been asked to leave the premises.

1. On 20 November 2023 the claimant attended Dr Makarious due to a "motor bike accident". He refers to a fall off his motor bike with body armour on and that he was seen on the weekend "at Mudgee Hospital" but had "no head trauma or LOC."
2. The doctor noted the hospital was unable to do an X-ray and referred the claimant for

1. The claim form was lodged digitally on 26 November 2023.[9] The claimant identifies the accident as occurring on 18 November 2023 at 10.30am. At question 20 the claimant identifies the location of the accident as the "East of the back gate of fire trail at Louee Station."
2. The description of the accident is as follows:

"While traveling on a single lane trail, there were slow riders in front of me, including adults and children with no room to overtake safety. While riding behind this traffic another rider tried to pass myself with him colliding into my side and forcing myself to crash into an embankment. This rider also came off his bike."

1. The claimant identifies the vehicle at fault as KTF77 and says "No details as rider fled the scene without exchanging details. Reported to police."
2. The claimant identified his injuries as "chest, right shoulder, right arm, back and head. Graze and bruise on left hip." He says he was seen at the Rylstone Emergency Department (discharged 19 November 2023) and his local GP, is on medication (strong pain relief and anti-inflammatories) and needs scans performed.
3. The claimant provided details of his employer and wage rate and says he had never made a motor accidents claim before and had no previous relevant injuries or conditions.
4. There are four medical documents scanned and attached to the claim form which cannot be read but which do not appear to be relevant.

1. [CNC] completed an accident report form on 13 May 2024, six months after the event. He nominates the accident as happening on 10 November 2023 at 3.00pm when he was riding and he gave this version of events:

"[I was riding along] a dirt trail slowly. As there was a child in front. I followed at rear for about 7 min. Then revved my bike to notify rider in front. Which then I passed on left. Kept doing that eventually to 2nd last rider I did the same. Slowly passing hard on left curb of bush just on the trail. I watched the rider as I was passing. Then he looked at me and swerved hard sending him off and me into the bush. He fell flat. When I asked are you OK. He came up and pushed me and started going off. No one was hurt."

1. The insured rider nominated the claimant as the person at fault because "he purposely swerved at me".
2. Attached to that form was some additional information provided by [CNC] as follows:

(a) he recounted the same version of travelling behind a slow group and his overtaking manoeuvre;

(b) he said he rides a two-stroke bike which is louder than a four stroke and revved before they moved over and he passed on the left;

(c) he "sat on the rear rider for a while and had revved his bike a few times and appeared not to have noticed" and "didn't allow me to pass like a normal person just makes more room to be safer";

(d) after four minutes he began to pass hard on the left on the "burn of the track" on the edge of the bush;

(e) as he came along-side the claimant he was about a good 1.5m from him and "I was watching him as I was slowly passing";

(f) he was nearly passed the claimant when he "swerved hard at me" when they were in a straight section;

(g) [CNC] was pushed further into the bush but remained on his bike;

(h) the claimant clipped [CNC]'s bike and fell flat on his chest;

(i) the claimant got up straight away and pushed [CNC] and words were spoken;

(j) [CNC] did not want to escalate things, so he left;

(k) the claimant and the group continued riding behind him, and everything was OK;

(l) further down the track there is a gate to the exit which needs to be opened and closed. As he was first there, he opened it and saw the claimant's group coming so kept it open. As the group rode through, "the same guy floored his bike throwing up rocks at me as he flew past";

(m) staff then spoke to him after the claimant had reported it, and

(n) [CNC] says in this document he spoke to Mr Ted Combes who checked the dates and confirmed both the claimant and [CNC] had been there at the same time and that he was informed about the incident by his brother. Ted Combes was of the view the accident happened on the Friday and that the claimant had been involved in another incident on Saturday that may have caused injury, and the secondary incidents were also mentioned.

1. The insurer engaged Verifact to undertake investigations into the accident. A report from

Mr Monjed of that organisation dated 9 August 2024 has been provided by the insurer. He says:

(a) a request to interview the claimant was declined by his lawyers, and

(b) the insured rider was interviewed, and no other witnesses were identified.

1. Mr Monjed also says that enquiries were made with Mr Ted Combes the manager of the Louee complex but no formal statement was taken from him. He was aware of an incident (which he said occurred in the afternoon of 17 November 2023) but said there was no incident report completed by the claimant. Mr Combes said the claimant had been asked to leave the premises.
2. The investigator's report includes photographs of the insured's motor bike which has number plate affixed to it. It is orange, has a headlight and what appears to be small round mirrors attached to each handlebar.
3. [BWL] sent an email to the insurer on 20 March 2025. He did not witness the accident but says he witnessed the roostering incident:

"... while we were at the gate talking the guy that [CNC] had the incident with came through the gate and roostered up riding like an idiot, spraying us with rocks and dirt."

1. [BWL] expresses an opinion on the claimant's injuries which I have not taken into account.
2. [FEM] also sent the insurer an email on 20 March 2025 he says [CNC] told him about the incident, said he did not fall off and that "at the last gate" there had been a roostering incident involving the claimant and the insured witnessed [BWL]. He says that the insured reported the incident to Mr Ted Combes and saw Mr Ted Combes on the Sunday.
3. [GCS] contacted the insurer and sent a document dated 21 March 2025. He recalled a conversation with [CNC] and either [BWL] or [FEM] after [CNC] had finished his ride. He says he was told about the accident and the aftermath and the roostering incident witnessed by [BWL].
4. Mr Monjed provided another report dated 5 June 2025. Mr Combes had declined to be interviewed but:

(a) provided a copy of the claimant's signed waiver, and

(b) provided an email he had sent to the claimant on 8 November 2024.

1. Mr Monjed also took a statement from [BWL] and the police officer.
2. The claimant provided dashcam footage that shows the rural scene, the various tents and motor bikes can be seen in the distance on the trail.

1. A direction for production was issued to Louee and a document headed "compliance information: [ETU]" was provided. This document says that the information in it was provided "through discussions and interviews between [the claimant, the insured] and complex staff":

(a) the claimant and [CNC] were at the premises, were given a risk warning and signed a waiver on 17 November 2023;

(b) both riders "presented themselves" to centre staff about an altercation on the fire trail;

(c) medical reports are written at the complex if someone is referred to hospital by staff or they are taken to hospital by their own vehicle or ambulance at the time of injury;

(d) the claimant presented for a "small abrasion" and reported he had been purposely run into and had fallen off. No medical report was written;

(e) [CNC] presented and reported his version of the incident which was that he had decided to overtake the father and son as they were traveling slowly and "he then noticed that the father had fallen off his motorcycle" and after checking him he was confronted and accused of causing the accident. No statement was written as the accident was deemed "as miscommunication by both parties" and no serious injuries had been sustained;

(f) there was another incident believed to be Sunday when the claimant's son presented to medical staff and no report was written about that as no injury was sustained, and

(g) the claimant left of his own accord on Sunday and there was a report of an incident involving him as he was leaving.

1. Louee management also provided a copy of the email to [ETU] dated 8 November 2024. This email confirms the claimant attended the premises from 17 to 19 November 2023, there is no written record of injury and that "discussions with complex staff" confirmed "from their observations and recollections" there was no serious injury.
2. A copy of the waiver was provided which says:

"Motorcycle riding is dangerous and when you engage in the sport and enter this property you are exposed to numerous risks and dangers. Lue Station is a large property and the property owners do not guarantee that any hazards will be removed or advised. Therefore, you are advised to take extreme caution during any activity carried out in relation to Motorcycle riding on this property. You may be injured or even killed, your machinery or equipment may be damaged, lost, stolen or destroyed, other riders on this property may ride dangerously, with lack of skill and may break the property rules, the tracks may be hazardous, there are rocks, tree stumps, fallen timber and trees, gullies, hills, jumps, ruts and bumps, livestock, including sheep and cattle, wire and steel fences and gates, wildlife and many other hazards and they and many other dangers are so numerous that there may not be warning signs indicating those dangers and they may vary without warning or predictability and that there may be no adequate facilities for treatment or transport for you if you are injured. Furthermore, the property owners do not have any public risk insurance for any activities involving motorcycles on this property and advise that under no circumstances will any financial assistance be made to you for loss or damage to you or your property."

1. This was completed by the claimant himself on 24 September 2024. The claimant says:

(a) the accident occurred on Saturday 18 November 2023;

(b) his son was riding directly behind him; the trail was narrow, and there was no room to overtake the slow riders who were ahead;

(c) he caught a glimpse in his peripheral vision of another motorbike to his left which made contact with his motorbike, trying to overtake him and he lost balance, veered to the right "crashing into a rock embankment";

(d) he believed he "passed out due to the accident". While still on the ground he saw the insured ahead of him and to the left getting back on his motorbike and after [ETU] asked him what he did and why and getting a response [ETU] says the insured rode off;

(e) his son stopped to assist and after sitting for 10 minutes they got back on their motorcycles and headed back, straight to the administration building;

(f) when he got back, he said he spoke with Tom Combes and gave him the details of what had happened, and he then went to the nurse. She suggested he go to a doctor and said that Tom would investigate the incident;

(g) he rested where he had camped and the nurse came to see him again;

(h) at 10.00am the next morning (Sunday) he went back to see the nurse after which he and his son packed up and left the site;

(i) he went to the hospital then to the police to make a statement, and

(j) he camped at Rylstone Caravan Park on 20 November 2024.

1. The claimant provided a diagram of the placement of the vehicles on the trail. The claimant drew four vehicles ahead of him. Vehicles one and two were together but staggered across the path (one on the left and ahead of two which was behind and to the right) as were vehicles three and four. The claimant was depicted as riding in the middle of the trail with his son behind him (also in the middle of the trail) and the insured on the far left of the trail in between the claimant and his son.
2. The claimant provided a short statement from his son.
3. The claimant said he had no contact with Ted Combes and only spoke to one of the owners Mr Tom Combes and the first aid nurse. He denied being removed from the premises and the other allegations made against him in the insurer's decision. He also provided a map of the Louee complex.

1. [DEZ] provided a statement dated 19 September 2024. He says:

(a) he was riding on the blue trail around mid-morning;

(b) his father was in front of him and they were stuck behind slow riders;

(c) a rider behind him swerved around him nearly colliding with him and nearly knocking him off his motor bike;

(d) that same rider tried to get around his father and there was a collision;

(e) both riders fell off their bikes with his father falling onto rocks and the other rider falling into the bushes;

(f) his father yelled at the other rider;

(g) [DEZ] helped his father get the bike off him and the other rider rode off, and

(h) they took a break then headed off to the complex where his father spoke to "Tom" and saw the first aid lady.

1. On 14 July 2025 [DEZ] signed and wrote a short statement saying he did not attend the medical centre and was not given any medical treatment.

1. [ETU] gave a statement which is in the claimant's bundle. It is not signed or dated but the claimant's index nominates it as being dated 16 October 2024.
2. The focus of this statement is the claimant's injuries, losses and claim for damages.
3. In respect of the circumstances of the accident it says little not covered by the later statement or the claimant's evidence.
4. On 16 January 2025 [ETU] gave a lengthy statement:

(a) he outlines his experience in riding motor bikes and his riding record [4] - [7] as well as the age and experience of his son [8];

(b) he had been to Louee on four previous occasions [9], had never had a problem or accident [10] and on each occasion had spoken to Tom Combes [11]. He is familiar with the trails [12];

(c) he says there is "etiquette" when riding trails and that you should stick to the left as you would according to the road rules [13];

(d) he arrived at Louee on 17 November, checked in and set up [14] - [15];

(e) the trails are all one way and the trail they rode on was the "blue fire trail" and it was quiet with only 50 riders [16] - 18];

(f) the accident occurred at about 10.30am. The trail is 24km long and 3-5m wide when they came up behind four riders riding at a slow speed of 30-40km. There were two parents and two children and they were riding almost abreast blocking the trail. The claimant and his son held back planning to pass them when it was safe or ride to the end of the trail. [DEZ] was riding behind his father. The trails require swerving and manoeuvring to avoid hazards and a bike never travels in a straight line [19];

(g) the claimant had not seen the insured until he saw him in his peripheral vision a fraction of a second before the collision. [CNC] was attempting to pass on the left. He did not hear a rev, he did not hear a horn, there was no warning. As [CNC] attempted to pass the two motorbikes collided causing the claimant to swerve right and hit an embankment and he and his bike fell over [20];

(h) "when I came to my senses" he says he saw the insured getting back on his bike and he said nothing so the claimant yelled at him "he then got on his bike and took off". The claimant says he took his registration number [20];

(i) he denies that moving to the right would indicate to the rider behind it was OK to overtake on the left saying he would have moved to the left to allow the rider to overtake on the right [20];

(j) after the accident he had immediate pain in his right shoulder, right ribs and neck and that it was painful to breathe. His son helped him get the bike off him and he sat on the ground for 10 minutes after which he got back on his bike, and they rode "slowly and gently" back to the administration building and told Tom Combes what had happened and gave him the registration number of the bike and was told to see the nurse which he did [22];

(k) after that he went back to the campsite and did not ride further although his son rode on some short trails around the campsite [23];

(l) he said the nurse saw him again at 5.00pm at the campsite and said they had been unable to find the at fault motorbike. She suggested he seek medical attention as the claimant was in pain, but he did not due to having to pack up the camp. At 9.00am the next day he went back to the nurse, and he told her he was going to the hospital later that day [24];

(m) he and his son packed up and went to Rylstone Hospital where there was no

X-ray and then they went to the police station [25], and

(n) he denied the allegations made against him [28] which have now been retracted by the insurer.

1. In relation to [CNC]'s statement, the claimant raises the following issues with it:

(a) [CNC] is only a provisional rider and doubts his experience;

(b) [CNC] did not know when the accident happened and may have been involved in another incident which he has confused;

(c) the claimant's bike was registered, and he had number plates on;

(d) it is "bizarre" to wait for riders to move to the right;

(e) there was only one rider behind the claimant and that was his son;

(f) if he moved to the right, it was because of the trail;

(g) denies the deliberate manoeuvre and says he did not swerve;

(h) he denies landing on his chest on the trail but says he ran into an embankment;

(i) he denies swearing at the insured rider and pushing him and denies the roostering incident;

(j) the accident did not happen in the afternoon, and

(k) he speculates on the cause of the accident suggesting the insured may have turned his bike towards the claimant's and collided with him due to something on the trail.

1. A statement with [CNC] was taken on 21 May 2024. He says:

(a) he has held a driver licence for 35 years and has been riding dirt bikes for about 12 years [9] - [10];

(b) he wears spectacles but has no medical or physical conditions that affect his driving [11] - [12];

(c) he has never lost his license, has not been charged with a traffic matter and never made a CTP claim although he was involved in a rear-end collision about 10 years ago where no one was hurt [14] - [16];

(d) the motorbike he was riding was a 2015 model which he had for four years and it has dirt tyres and had not been modified [18] - [21];

(e) he thought the accident occurred on Friday 17 November 2023. He says it did not result in an impact to the motor bike or fall off the motorbike [28];

(f) he was with a group of 28 friends saying in onsite accommodation [33] - [34];

(g) they had been riding from midday to about 5.00pm and all motorbikes were locked in a container at 5.30pm;

(h) there are five motocross tracks and a fire trail and they have a variety of grading for different riding experiences [38] - [39];

(i) on arrival you check in, pay your fee and sign a waiver. There is a daily rate and a safety briefing and once that is done you get access onto the property [40]-[42];

(j) he was on his own, wearing safety gear, had been riding for several hours but had breaks and rest periods;

(k) it was about 3.00pm and he had been on the fire trail for minutes behind a further rider and he could see in the distance a number of riders behind "what look like a child" on a small motorbike;

(l) his bike is two stroke engine and "revs really loud" and when he was behind the group he revved his bike a few times until the last rider turned in my direction; the group was in the middle and he waited for them to move to the right and he passed on the left. He remained in second gear and repeated this behaviour for the other riders to move to the right;

(m) he got to the front and the claimant and his son were ahead of him riding in alignment in the middle of the trail [66];

(n) the adult was wearing safety gear including armour [67];

(o) [CNC] moved up and revved his bike a couple of times and the claimant looked over his left shoulder [70] but no eye contact was made [71]. The claimant moved slightly to the right side which [CNC] says, "implies I could pass" and he continued in second gear at about 30km [73];

(p) as he passed the claimant's bike and was "hugging the left edge". He was adjacent to the claimant "and I could see him as he swerved towards me, it was done on purpose." [74]. There was no need to do that as he was not going to hit the child on the bike in front [75];

(q) the claimant then "swerved into me" making contact with the right side of the [CNC]'s bike and leg and pushed him to the left side and off the fire trail [76]; [CNC] stopped and stayed on his bike [77];

(r) the claimant on the other hand bounced back to the right side and collapsed on his chest, landing on the actual trail not on any part of an embankment [78];

(s) the claimant became abusive was swearing and yelling at [CNC] [80] - [82];

(t) the claimant did not appear injured, he got back on the track and rode away [83];

(u) as he came to a gate on the trail he opened the gate to let the others through (including the claimant) who manoeuvred his bike in such as wat as to spray gravel and dirt (this is apparently called roostering);

(v) at the end of the day one of the "General Hands" referred to an incident which [CNC] confirmed [89], and

(w) after the investigator first made contact with him, [CNC] contacted the Manager of the complex who told him the incident happened on 17 November 2023 and he was told about the secondary incidents [94].

1. At some stage, [CNC] responded to the claimant's information saying the claimant's statement and the statement of his son were not true and:

(a) the reference to Tom Combes is incorrect;

(b) he is wrong when he says the trail is hazardous as it is a blue trail for beginners;

(c) the claimant has spoken to Ted about the incident at least twice since the date of the accident in separate visits, and three times on the phone, and

(d) he refers to the secondary incidents and what he had been told by Ted.

1. [BWL]'s statement is dated 9 April 2025 gives details of the complex, the friendship with [CNC] and the arrangements for the trip on the November 2023 weekend. He says:

(a) there is a one-off induction and waiver talk with Ted Combes on arrival [18] and [21];

(b) there is a main gate which you enter and then five tracks are available [22];

(c) he thought the incident was in the afternoon or lunchtime [26] and he was taking a break near a gate and [CNC] approached [27];

(d) [CNC] reported the incident involving the claimant and he had said it was a "targeted attack" [28] - [29];

(e) [CNC] reported he did not fall off and the claimant shoved him [35];

(f) when the claimant and a group went past, [CNC] pointed out the claimant [38] and the claimant had another verbal go at [CNC] and "then accelerated quite rapidly - showering us with rocks and dirt" [39], and

(g) the incident occurred in a remote section of the trails, and he was about a kilometre away waiting for [CNC] to catch-up.

1. [ETU] said he had arrived at Louee on the Friday 17 November 2023. He said he was given an induction. He had to complete a form, sign the waiver and hand them over. He had been there before so was given a shorter version of the induction. He was inducted by the younger Mr Combes, who he now knows as Ted. He said no one had ever told him who was who.
2. When riding on the road he said you are obliged to follow the road rules. When you are on a private road, there is an etiquette which is not written down but which is understood by people who ride as a courtesy. He agreed there was nothing in the induction or on the back of the map about etiquette. He said when you are riding on motorcross circuits and going over jumps or when you are in a race or a competition it is "first in" implying there are no rules or etiquette in those situations.
3. He described the different tracks, green (beginners), blue then black (very experienced climbing over things). The rules are that if you have a child you must ride with your child. [DEZ] was, at the time 12 and very experienced. He races and has been through riding training and has a national race licence.
4. The track varies in width from 3 to 5m and from handlebar to handlebar bikes are about 1.2-1.6m. He said the trail has bush on either side, like riding through a fire trail with bush or trees, rocks, boulders on the sides.
5. He said the blue trail where the accident happened is 20-23km long and the accident was just before halfway.
6. Before the accident he was riding with [DEZ] in front so he could see what he was doing. When he came across the slow riders, [ETU] said he waited until it was wider, sounded his horn and moved to the front ahead of [DEZ] (overtaking on the right) and indicated to him to slow down which he did by holding his left arm down in a patting type motion.
7. He said he went in front to slow [DEZ] down, because he was not sure what he might do and he intended to overtake the slow group in due course but because they were staggered he just sat behind them.
8. He said that there was no one else behind him (other than [CNC] and [DEZ]).
9. [ETU] said his bike was registered and had a horn (button on the left handlebar) which meant he did not need to take his hand off the handle bar to use it. He said while he had mirrors for the bike he did not have mirrors on that day. He had taken them off due to being in the bush and they come into contact with the vegetation on the trails.
10. [ETU] said when riding he usually turns his head around to see what is going on behind him and that he "might get an instinct of someone being there" for example if there is loud revving. He said he could hear things although it was muffled with the helmet and the padding. He said with his helmet on, he can hear a horn. He explained that he had "nobbly" tyres on his bike (for the dirt road) and that if he rode on the road those tyres would make a noisy sound. On the dirt tracks they all make a sound louder than normal tyres on a paved road.
11. I asked him how he would have alerted the riders ahead before he overtook. He said he would sit behind them, beep his horn and wait for acknowledgment by a hand gesture or something and make sure they and the children they were supervising were aware of

him and it was ok to overtake. 12. [ETU] was asked several times but said he did not hear a horn or a revving from

[CNC] behind him. 13. The claimant said that after he collided, he fell and saw [CNC] mounting his bike "throwing his leg over" and standing up and [ETU] said he assumed he fell but admitted he did not see [CNC] falling. 14. When he was mounting the bike, the claimant said (while he was still on the ground underneath his bike) that he yelled out to [CNC] asking what he thought he was doing and [CNC] said he was overtaking and he drove off. [ETU] said he was still trapped under his bike when the insured driver rode off. 15. The claimant said [CNC]'s voice was muffled a bit by the helmet and [ETU] said he did not take the helmet off then or in the 10 minutes that he sat there after the accident.

[ETU] said that in that time no one else rode past. [ETU] said he had the presence of mind to memorise [CNC]'s bike registration number as he rode off. 16. The claimant said there are gates on the property (cattle gates) and that the accident happened before the second last gate which was open. He said there was no one standing around and that it had been left open (in breach of rules) and that [DEZ] shut it. [ETU] said that he and his son kept riding and got to the next gate, the last gate. It was closed and there was no one there. [DEZ] opened it and shut it and they went back to base. 17. The claimant said he spoke to the young Mr Combes who he now knows as Ted. He was then sent to the medical lady in the administration building. He saw her again at 5.00pm when she came to him at the campsite and then he saw her again the next day. [ETU] said he saw her three times in all. 18. The claimant confirmed his estimate that the accident occurred at 10.30am as he got back to base at 11.00am. The claimant referred to Mr Ted Combes being present after the accident and on the Sunday. 19. I asked him about his suggestion in his statements that he knocked out he said he was not sure everything happened very quickly but he thinks he was. He said he did not get up off the ground straight away and he had to get assistance from his son to get the bike off him. He said the history taken by the hospital was wrong regarding there being no loss of consciousness and of him getting up straight away. He said, "they didn't want the whole story and just asked me what happened". He said they did not ask him if he lost consciousness. 20. The claimant said he has never seen [CNC] before or after the accident. 21. The claimant said the premises open at 8.30am but there are no bikes on the trail before 9.00am and that closing time was 5.00pm. He said he thought he and his son got up at about 9.00am and they warmed up on an easy trail then went back to the caravan then decided to ride the blue trail. 22. In answer to questions from Mr Parker, the claimant said:

(a) he had ridden the blue trail before on this trip on Friday and he had been on dozens of trail like this. He was asked whether he had seen people overtake on the left and he said "not that often. People keep to the centre of track, gives you a bit more room if something is on the trail. Usually they keep riding and pull over to the left";

(b) he had no mirrors and so he would only notice things behind if he looked or heard a noise like a horn. He said even though he was following [DEZ], every once in a while he would look behind him just to check what was happening and see if something was coming. He clarified this and said he would turn to look if he "hears an instinct";

(c) [ETU] said, "I don't remember turning and seeing him". He only recalled seeing him in his peripheral vision with his helmet and googles as he was pulling along on the inside;

(d) he agreed with Mr Parker that in order for someone to overtake he was relying on some indication from the person behind. The claimant again said he did not notice the insured behind me and that he only saw him in his peripheral vision as he was overtaking;

(e) in response to the suggestion [CNC] was sitting behind him for four minutes he said, "I didn't know he was behind me". [ETU] said in answer to the suggestion from [CNC] that he had revved his engine, he said "I didn't hear it". In answer to the suggestion, he looked over his left shoulder, [ETU] said that was incorrect. In answer to the suggestion that he moved to the right by 50cm - he said he could not say it was a deliberate move, but his bike may have moved because it came across something on the trail, and

(f) in answer to the suggestion by [CNC] who said that [ETU] "didn't allow me to pass like a normal person" he repeated "I didn't know he was there".

1. In answer to questions posed by Mr Wilson the claimant said:

(a) usually his son rides ahead for safety reasons so [ETU] can keep an eye on him. The claimant said that in the light of the slow group riding in a staggered formation he was concerned his son may not overtake safely so he put him behind to manage him. The claimant agreed he had discussions with his son about these sorts of situations and had worked out a process between them including the gesture which meant to slow down;

(b) the claimant said he did not see or hear [CNC] at any stage but that he heard something behind him. He said he heard a noise which was not a "full on rev" just a "brrrr" being a normal engine sound which he thought may have been from his son's bike. When asked whether he could have looked over his shoulder to check what it was, he said he could not because he was "concentrating on the bikes in front of me";

(c) it was put to him that he had seen [CNC] and was aware of his presence before the overtaking and he said "no, incorrect";

(d) [ETU] agreed that [CNC] was riding a two-stroke motor bike which was, particularly loud. [ETU] however said his four-stroke bike was louder than that because it had an after-market special exhaust fitted. He was asked whether he could easily hear a two-stroke motorbike behind him, and he said, "with a helmet on not necessarily";

(e) [ETU] did not recall what he said to the nurse at Rylstone Hospital or what she asked him but agreed what she had recorded must have come from what he said. He said several times that he did not know whether he had lost consciousness or not but had assumed he did because he does not recall seeing [CNC] fall off his bike and only saw him getting on his bike;

(f) the claimant did not agree that moving to the right was a sign for [CNC] to overtake and that if he moved to the right it was because of something on the trail. He said he did not know [CNC] was there, and if he had known, he would have given him a sign (he gave a forward motion gesture with his arm and hand), and

(g) it was put to him that he knew [CNC] was there, he did not want him overtaking him but begrudgingly allowed him to overtake. The claimant denied this. It was put to him that he wanted to give [CNC] a fright because he had strong views on how "absurd" it was to overtake on the left. [ETU] denied this.

1. It was put to [ETU] that he signed the waiver and took on the risk that people would ride dangerously, recklessly and that he could be killed or injured and his property damaged. The claimant said he was aware of the risk and was aware there have been accidents on the track but said that there were people enforcing the rules on the track.
2. Other things were put to the claimant including:

(a) it was suggested he did not sit on the ground for 10 minutes but he got up straight away, had a verbal altercation with the insured and that [ETU] pushed [CNC]. The claimant denied this. It was put to him that at the hospital it is recorded that he "got up straight away" and he agreed that if that is what was recorded he could have said it, and

(b) the claimant was taken to his January 2025 when he said he could not see whether [CNC] was wearing glasses or not but that in his September 2024 statement he said "it was witnessed he was not wearing glasses". The claimant agreed that this was wrong and misleading.

1. The claimant was asked about when he went to the GP in November 2020. [ETU] said the only thing the hospital gave him was a certificate of attendance. I read out to him the GP's note which recorded "no head trauma, no loss of consciousness" but the claimant said he was not asked questions about this. He said this was a mistake and he could not understand where that had come from. While he was not sure he thought he had gone to the doctor on his own although his wife drove him and sat in the car. He noted another mistake in that the GP had recorded "Mudgee" as the hospital where he attended. He said that confusion may have come from him because he remembered the nurse at Rylstone rang a doctor at Mudgee and the GP "picked up on Mudgee".
2. In answer to a question from Mr Wilson, [ETU] confirmed that moving slightly to the right is something he did at the time. [ETU] was asked when he first noticed the noise from behind him (the "brrrr" normal engine sound) and he said a minute or two before. But he said there was nothing alarming, nothing like a rev and that if he had heard a rev he would have looked behind him.

1. [DEZ] said that he typed up his statement on a computer at home. No one told him what to put in it and he was explaining what he had seen.
2. He confirmed he had been to Louee three or four times before. He was on this occasion riding a smaller bike, not as powerful as his father's. He said he was with his dad, and no one else. He said he was allowed to go on the motocross circuit on his own without his dad.
3. He said there were no other riders behind him.
4. After the incident he said he helped his dad to pick up the bike and they sat for 10 minutes and no one took their helmets off. He said his dad did not push the other guy who just rode off. He said when they rode off there was one gate that was open and another gate. He got off his bike and opened this gate to get back to the camp. He did not see a group of people at that gate and he denied the roostering incident.
5. [DEZ] said he never went to the nurse only his dad.
6. He said his dad was riding in front, and that his dad always rode in front and he was always behind.
7. After the accident he said they went back to the main complex and spoke to one of the people there and his father had first aid. He was not sure how many times his dad saw the first aid lady.
8. When challenged he said his memory of the accident was good. He did not know the other type of bike and does not remember what colour it was. He said the other guy fell off his bike and he denied riding in front of his father on the day.

1. Ted Combes explained that his parents, Tom and Susan own Louee Station and that he leases the land he uses from them and manages the motor sport area.
2. The map the claimant had provided is the one given to participants. He said every person gets an induction but repeat visitors who have been there within 12 months do not get a repeat induction, but they are reminded of the rules. He delivers the induction and goes through the rules.
3. Everyone is given a map which has a guide to the tracks, and on the back of the map are the rules and a copy of the waiver. He agreed there were "rules" and guidance given. He explained there are gates because it is a working sheep and cattle property and stock need to be moved. He says the gates also provide people riding in a group with somewhere to meet.
4. He said the tracks and trails are one way and there is no speed limit. There is however a speed limit in the carpark and access lane way which is walking speed.
5. One of the rules is that children have to be accompanied by an adult on the trails - the motorcross tracks can be seen from the car park and children do not need to be accompanied on that part of the premises.
6. Mr Combes said that Louee is only open from Friday to Sunday and in the first week of school holidays and on public holidays. He says people can book online and there are accommodation and camping.
7. He said there are no limits placed on the number of people on any particular trail or at the complex generally. Mr Combes said he has someone present who has first aid qualifications which gives confidence to customers. He said he was there on the Friday and did the induction. He was not there for the rest of the weekend, but his brother Peter and the nurse Tracy were present. He said he had conversations with both of them after the incident and after the claim was made and he has recorded things since the claim was made. There are no records of the incident or first aid from the weekend itself.
8. In answering the claimant's questions, he said:

(a) some rules are strict and some of them not so strict (e.g. take water on the trails);

(b) if someone deliberately rode at someone else would that be grounds to be asked to leave the premises, but he would need evidence or witnesses to do that;

(c) this is the first time anything like this has happened in terms of a claim but there have been a number of accidents on the premises usually involving one person some time two;

(d) he had spoken to Tracy and Peter and had discussions with his father. He said he had spoken to [CNC] not long after the accident and thought there had been a call around May 2024 but not spoken to him sense;

(e) [CNC] visited a couple of months ago but they had no discussions about the case or the claim, and

(f) he did not check with Tracey and Peter before he sent the information to the Commission.

1. He said there was a back gate at the top of the property. It is part of the one trail, the fire trail but there are a number of trails that join the trail before or after the back gate e.g. the Saw Pit trail and the Rock Garden trail.

1. [CNC] said that he visited Louee at least once or twice a year. He said that he always gets at least a basic briefing including an explanation of the track conditions and that Ted Combes delivers these.
2. On the weekend he was with his son and daughter and on the day of this accident he was riding the blue trail. He said it is not a baby or beginners trail but it is not hard and that it is the main trail that everyone rides on. At the start he was riding with his group then moved off on his own.
3. He said the width of the trial is 3 to 5m and the majority of the fire trail is 5m wide so that vehicles can get in. He said the other tracks are thinner. He thought his bike was 450-500cm wide.
4. I asked him what he would do If he wanted to overtake someone and he said he would wait for the trail to widen then sit 5-10m back (to avoid dust) and when the driver ahead is aware of you generally, they move over. If they do not move over, you just wait. He said he would rev the bike to get attention and that he has no horn on his bike. He said his bike is loud. He said he had mirrors, little mirrors but rear-view mirrors none the less.
5. He said when he collided with [ETU], he did not come off his bike. He was pushed into the bush braked and stopped, still standing on his bike. He saw the claimant off the bike right hand side down on his chest. Then ask how he was, got straight up, walked over and shoved me, nearly knocked me off the bike.
6. [CNC] explained that he overtook on the left. He went "hard" on the verge where it is a clear scrubby section but not as smooth as the trail. He said there were at least three riders behind him that he had overtaken.
7. After the accident he said he kept riding and drove off and that everyone has to exit at the back gate. It was then he explained that the back gate marked on the map at the top of the map is not the back gate that he was referring to which is the gate everyone goes through to enter the common ground and office area. He was not sure exactly where the accident had occurred and thought it was earlier than where the claimant had indicated it was on the map.
8. [CNC] confirmed that the first time he had to think about the accident was when he completed the accident report for the insurance company six months after the accident. But he said this was not the first time he had discussed the incident and he had discussed it with friends on the day after the roostering incident and with the Combes' family members Peter, Ted and Tom.
9. [CNC] accepted that memories fade over time and his is not the best. He accepted that sometimes when talking to others, memories can get tainted.

1. The claimant's 23 September 2024 statement refers to the insured as the "accused" and the claimant's opinion as his "verdict" and there is a reference to the "motives" and behaviours of the insured. This document is somewhat emotive and adversarial. This is perhaps understandable as at this stage the claimant had not legal representation and the insurer had denied liability not just because of the fault issue but because the insurer alleged the claimant had not been injured at all in the incident involving [CNC].
2. There is evidence of exaggeration by the claimant in his statements including the nature of the injuries (for example whether he lost consciousness or not) and the circumstances of the accident (whether he could see [CNC] was wearing glasses or not).
3. The inconsistencies include the naming of the Louee personnel. While the claimant had been advised Ted was the person running the Louee trails, the claimant continued referring to him as Tom in his written documentation. At the assessment conference the claimant said that it was Ted who had seen him after the accident (as well as Ted who had delivered the induction) when Ted was not there after the induction, and it was likely Peter Combes who he had seen. The claimant's statement is also inconsistent with the hospital records (in relation to whether the claimant got up straight away).
4. Despite these issues, I generally accept the reliability of the claimant's evidence. While there are some inconsistencies and a degree of exaggeration at the time of the September 2024 "statement" to the insurer, the claimant's version of core events to staff at Louee, the hospital, police and his doctor were consistent with each other and consistent with the evidence he gave at the assessment conference.

1. [DEZ] is a 12-year-old boy whose evidence was, because of this, not challenged to any great extent by the insurer. His evidence was consistent with that of his father save for the evidence about whether his father usually rode in front or behind.
2. I am of the view that [DEZ]'s evidence should be approached with caution due to his age and this significant inconsistency.

1. [CNC]'s evidence is not contemporaneous. The first time [CNC] had to "put pen to paper" about the incident was in May 2024, six months after the accident. [CNC] had been spoken to on site after the accident, but nothing further became of that until after

[ETU] made his claim. 2. [CNC] says he did not fall from his bike, his bike was not damaged, and he was not injured. In those circumstances it may be understandable that he does not recall the finer details of what happened on the day. He conceded he had spoken about the event multiple times with his friends and the Louee staff. He had been told about the secondary matters which may also have affected his memory. He himself conceded his memory was not great and accepted that memories can get tainted over time. He was wrong about the date, wrong about the time, unclear about the location of the accident and accepts he may be wrong about the "roostering incident." 3. I therefore have difficulty in accepting his evidence where it differs from the other evidence.

1. Mr Combes' evidence concerning the induction on the Friday and the general arrangements and facilities of the Louee grounds is accepted.
2. The bulk of the "investigation" report provided by Mr Combes to the Commission concerning what happened after the accident is no longer in issue due to the insurer withdrawing some of its allegations. The material concerning the reporting of the accident is accepted as evidence but is given little weight as it was completed by someone who was not there and did not speak directly to the claimant or [CNC].

1. Three of the claimant's riding companions have given statements or sent messages to the insurer. None of them saw the accident, one of them witnessed the incident and all of them have reported their recollection of a conversation that had occurred well over a year before.
2. I do not accept their evidence as reliable as in my view their evidence is tainted by time and the discussions they have had with [CNC].

(a) the accident occurred on Saturday, 18 November at about 10.30am. I make this finding on the basis of the evidence of the claimant and his son, the contemporaneous records and the records from Louee;

(b) the accident occurred on the Louee premises at about half-way around the blue trail. The general area of the accident is not disputed. I am not of the view that I need to make a specific finding about precisely where on the trail the accident occurred;

(c) [ETU] was riding a four-stroke motorbike which had a bigger and noisier engine than his son's bike or [CNC]'s two stroke motorbike. [ETU] had a different exhaust system installed aftermarket which created more noise than a standard exhaust. [CNC] had mirrors but no horn on his motor bike. [ETU] had a horn but had removed his mirrors. I make these findings based on the uncontested evidence of both riders at the assessment conference and in their statements;

(d) the claimant was wearing a padded helmet which muffled sound and affected what he could hear. This helmet also restricted his peripheral vision. I make this finding on his evidence at the assessment conference;

(e) the claimant was riding ahead of his son. I make this finding based on the claimant's evidence (including what he said in his claim form) and the evidence of his son. I do not accept [CNC]'s evidence that he had been overtaking other motor bikes before coming upon the claimant and his son. The report compiled by Louee confirms an incident took place and refers to a single overtaking exercise by [CNC] not the multiple instances of overtaking he referred to in his accident report form completed six months later. Noting that both parties have given evidence of other bikes being in the near vicinity, if

[CNC]'s version is accepted then the riders of those other bikes he says he had overtaken would likely have seen the incident or at best what happened after it and if so it is illogical that none of them stopped to render assistance or report the incident themselves. It is in my view likely that [CNC] was, six months after the event, mistaken as to the placement of the other motor bikes. It is, in my view more logical for the other motorbikes to be ahead of the claimant and his son and to have been unaware of what was happening behind them which explains why none of them stopped to help [ETU] and his son;

(f) the claimant was riding in the middle of the trail. I make this finding based on the claimant's diagram submitted to the insurer and the totality of his evidence about the placement of the vehicles on the trail;

(g) the claimant's motor bike moved to the right. [CNC] says it did and [ETU] says it could have. I accept [ETU]'s evidence that he did not move deliberately to the right because of an intentional steering action on his part. As he explained in his statement and in his evidence, on a fire trail with a rough surface, the motor bike does not travel in a straight line but moves and changes course of its own volition as a result of contact with stones, rocks or uneven parts of the trail;

(h) [CNC] had overtaken [DEZ]. While I have rejected [CNC]'s evidence of overtaking multiple vehicles before attempting to overtake [ETU] I make this finding on the basis of [DEZ]'s written statement and because I have accepted that [DEZ] was behind his father;

(i) [CNC] was attempting to pass the claimant on the left in an undertaking manoeuvre when a collision occurred between the two motorbikes. This is not disputed. I accept [CNC]'s evidence that he was riding at the very far left of the trail;

(j) [CNC] revved the engine of his motorcycle. [CNC] could not be shaken on the fact that he revved. [DEZ] does not mention the revving either when he was overtaken or when [CNC] tried to overtake his father. I make this finding on the basis of his evidence which was not challenged and which I accept that he had no horn. If he had no horn it is logical that he took some action to attract the attention of the motorbikes ahead;

(k) [ETU]'s evidence was that he did not know [CNC] was behind him because he did not hear him. While I have accepted [CNC] revved his engine before overtaking, [ETU]'s failure to hear it may be because he revved before overtaking [DEZ] but did not rev again before overtaking [ETU]. It may also be that he did not hear it because he was wearing a helmet which muffled the sound and because [ETU] had a motor bike with a much louder exhaust which drowned out the sound. In the absence of any expert evidence about the sounds and the helmet I will simply accept the evidence that [ETU] did not hear the revving;

(l) [ETU] did not look behind him at any time and did not see [CNC] until he had commenced overtaking the claimant and was moving along side [ETU]'s motor bike. I make this finding on the basis that I accept [ETU]'s evidence on this point. He was cross-examined on this point but could not be shaken. [ETU] maintained he never saw [CNC] until he saw him in his peripheral vision just before the impact;

(m) the impact between the two motorbikes was unintended. I do not accept

[CNC]'s evidence that the claimant deliberately swerved at him. I make this finding on the basis that according to both riders the accident happened very quickly. I accept the claimant's submissions that it would be illogical for [ETU] to deliberately swerve his vehicle into another when he is riding in full view of his son and on the basis of a fleeting interaction between him and [CNC], and

(n) the claimant fell and was injured as a result of the collision.

1. I do not accept the suggestion that [CNC] fell off his bike. The claimant's evidence that he did was based on an assumption when he was in a state of shock. [DEZ]'s evidence was, because of his age untested. I find it difficult to accept that [DEZ] whose father had fallen against an embankment would have been focussed on what was happening to the other rider who was a stranger. [CNC]'s evidence is that he was not injured, and his bike was not damaged. He made no report of the incident to Louee personnel about any damage to his person or his property. That is evidence in my view consistent with him not falling.
2. It is not disputed that the claimant and [CNC] had words after the incident, but I do not accept the evidence that [CNC] was pushed by [ETU]. I make this finding primarily on the basis that neither [DEZ] nor [ETU] say it occurred. There is also nothing in the Louee investigation document to suggest it. If [CNC] had been pushed or assaulted by

[ETU], I would have expected [CNC] to have said something about it to Louee personnel and for there then to have been mentioned in the Louee notes compiled by

Mr Combe after conversations with his brother and the first aid nurse. 3. I do not accept [ETU]'s evidence that he lay on the ground for any significant period of time. I make this finding on the basis of the hospital note which must have been written based on a history given by the claimant. The more logical scenario (in relation to the push) when considering the evidence of [DEZ], [ETU] and [CNC] is that [DEZ] stopped his bike and went to help his father while [CNC] was stabilising himself and his bike and returning to the trail from the bush. In that time [ETU] had got up (as he reported to the hospital "straight away") with help from his son and [CNC] assumed he was alright and left the scene. 4. I do not accept the roostering incident involved the claimant. There is doubt about the location of the incident and [CNC] himself conceded he was not certain it was the same person.

1. As was said earlier, the approach I have to take to the determination of the dispute is to follow the framework provided for in Evic. Whether the claimant is wholly or mostly at fault concerns the claimant's contributory negligence. Therefore, I am required to determine:

(a) is there any contributory negligence on the part of the claimant;

(b) what is the degree of the contributory negligence, and

(c) if the degree is assessed at 62% - 100% the claimant is wholly or mostly at fault.

1. In considering the first issue, that is whether there is any contributory negligence at all, the facts and circumstances of this case requires a consideration of s 3.38(2)(e) and the following three things:

(a) does s 4.18(2) apply to mandate a finding of contributory negligence?

(b) does s 4.18(1) apply to mandate a finding of contributory negligence?, and

(c) does contributory negligence apply in any event?

1. Both parties lodged submissions after the assessment conference which have dealt with these issues. The parties have not drawn my attention to any cases concerning the application of s 4.18 of the MAI Act and my own enquiries suggest there have been no decisions from any decision maker in the Commission on the application of that section.

Preliminary matter - how does s 3.38(2)(e) operate?

1. At common law, in a claim for damages based on the tort of negligence, a finding of any degree of contributory negligence used to entirely defeat the claim. With the passing of the Law Reform (Miscellaneous Provision) Act 1965, contributory negligence became a matter which reduced, but did not eliminate damages. There were however several defences available which if pleaded and proved could entirely defeat a claim for damages for example joint illegal enterprise or the voluntary assumption of risk (volenti).
2. The claimant's pre and post hearing submissions suggest volenti does not apply because it is a principle which only applies to claims for damages.
3. [ETU]'s claim is not a claim for damages but a claim for statutory benefits made under

Part 3 of the MAI Act. His claim is subject to the provisions in that part. Sections 3.11(2) and 3.28(2) define what "mostly at fault" means by referring to contributory negligence "as referred to in section 3.38". Section 3.38(1) provides that contributory negligence "applies ... to weekly payments of statutory benefits". 4. The provisions of s 3.38 concerning contributory negligence apply to reduce weekly statutory benefits however the provisions also apply in ss 3.11 and 3.28 as the mechanism by which all statutory benefits cease. This is consistent with Justice Mitchelmore's decision in Evic (see for example [56], [57] and [59]). 5. In assessing contributory negligence s 3.38(1) requires me to consider "the common law and enacted law as to contributory negligence that applies to an award of damages." 6. The "enacted law" clearly applies to any other provisions of the MAI Act but would also apply to the provisions of any other Act that are imported into it including the Civil Liability Act 2002 (see Evic at [60]). 7. Section 3.38(2) provides a series of circumstances or situations where "a finding of contributory negligence must be made" (emphasis added) including at (e):

"where the defence of volenti non fit injuria would have been available, but for section 4.18 in proceedings for an award of damages."

1. Section 3.38(2)(e) therefore imports into Chapter 3 a section from Chapter 4 that is s 4.18.

Does s 4.18(2) apply to mandate a finding of contributory negligence?

1. In a damages claim, s 4.18(1) "modifies" the common law defence of volenti saying it is not available as a complete defence to a claim, but where it "would otherwise have been available" it operates to reduce damages "on the presumption that the injured person ... was negligent in failing to take sufficient care for his or her own safety." In other words, volenti (if proved) operates as a presumed ground of contributory negligence to reduce damages but not eliminate damages.
2. Section 4.18 (2) on the other hand permits the defence (if proved) to defeat a claim for damages if the motor accident involves a motor vehicle engaged in "motor racing" where the claim is made by the driver or passenger other than a passenger who lacks the capacity to consent. A vehicle is said to be engaged in motor racing if it is participating in an "organised motor sports event" or illegal street racing.[10]
3. Section 4.18(2) does not concern a circumstance where the defence has been removed or taken away but provides specific circumstances where volenti is permitted or allowed to operate as a complete defence.
4. Section 3.38(2)(e) only requires a mandatory finding of contributory negligence in a statutory benefits claim "where the defence of volenti non fit injuria would have been available, but for section 4.18 in proceedings for an award of damages" (emphasis added). In my view the words, "would have been available" and "but for section 4.18" clearly bring in claims caught by s 4.18(1) but not s 4.18(2). In the former the defence is now prohibited. It would have been available but is no longer available. In the latter the defence is created by the statute and "is available".
5. If I am wrong and s 4.18(2) is imported into s 3.38 and therefore requires a mandatory finding of contributory negligence to be made if a motor vehicle is engaged in motor racing, I do not accept that [ETU] was engaged in "motor racing" for the following reasons:

(a) trail bike endurance and motorcross riding is a sport;

(b) the motor bike riding at Louee is organised. There are rules, conditions and waivers but what occurred during the weekend of 17-19 November 2023 was not an event. Louee may be an organised motor sports venue but the riding that occurred on the weekend I am concerned with was not an organised motor sports event, and

(c) there was no element of a race or a competition in what was being conducted at Louee. Attendees were not racing or competing amongst themselves or racing or competing against themselves in terms of beating a previous personal best time.

Does s 4.18(1) apply to mandate a finding of contributory negligence?

1. The words of s 3.38(2)(e) "would have been available, but for section 4.18" suggest that if the circumstances of the claim were such that volenti would have applied in a damages claim, volenti is to be applied in a statutory benefits claim, and a mandatory finding of contributory negligence must be made. This requires a consideration of whether volenti would apply in a damages claim made by [ETU] against [CNC].
2. In Nicol v Whiteoak & Anor (no 2) [2011] NSWSC 1486, Justice Adamson summarised what the defence of volenti is, and when it is available as follows:

"[88] In order to establish this defence, the first defendant must prove the following three matters: first, that the plaintiff knew of the factual circumstances that were dangerous; secondly, that the plaintiff knew that these circumstances constituted a danger and that she was cognisant of the nature and extent of that danger; and thirdly, that she freely and voluntarily decided to risk that danger ...

[89] In Carey v Lake Macquarie City Council [2007] NSWCA 4, McClellan CJ at CL, after summarising the authorities, put the integers of the defence that the defendant is required to prove in the following terms, at [85]:

1. That the plaintiff perceived the existence of the danger;

3. That he or she freely and voluntarily agreed to accept the risk."

1. There is, in evidence, the waiver document which the claimant signed on the day before the accident. When signed, this document operates to exculpate the owners and occupiers of Louee from any liability to [ETU] for any damage he may sustain as a result of anything Louee personnel may have done. I agree with the claimant that this document, when signed, does not exculpate [CNC] or his insurer from liability. However, the contents of the waiver document are evidence of the sorts of dangers the claimant might face on the property and the risk he takes when participating in riding with others on the Louee premises. These include:

(a) that motorcycle riding is dangerous;

(b) there may be hazards;

(c) extreme caution during activities is advised;

(d) he may be injured or killed, and his motor bike may be damaged or destroyed;

(e) other riders may ride dangerously, with lack of skill and may break the rules, and

(f) the dangers may vary without warning or predictability.

1. [ETU] signed this waiver and demonstrated at the hearing that he knew what it said and understood it. He also gave evidence that he took his mirrors off because of the trees and shrubs that may be impeding his passage. He gave evidence of the rough nature of the tracks and said there are rocks and boulders and embankments on the sides of the track, that the nature of the track itself can cause the motorbike to change direction. [ETU] and [CNC] gave evidence of the width of the tracks and the width of their motorbikes and painted a clear picture of the activities at Louee.
2. Mr Combes gave evidence about other accidents and [ETU] gave evidence that he knew there had been other accidents on the trails and that other riders may not have licenses or may be beginners and he knew that the rules of the road did not apply. He gave evidence about what he believed to be the "etiquette" of riding on bush tracks but accepted these were unwritten. He was asked and conceded that it was possible for riders to overtake on the left, but it was more usual for them to overtake on the right.
3. With the knowledge and understanding of all of these dangers and associated risks he freely and voluntarily took his motorbike onto the trails to ride with his son in a facility that enabled an unlimited number of other persons to ride with them over 150km of bush trails.
4. I am satisfied that in a damages claim, the complete defence of volenti would have been available, but is no longer available by operation of s 4.18(1). It would therefore be open to reduce [ETU]'s damages, not because of anything he actively did or did not do to contribute to the accident but simply because of the fact he was voluntarily participating in a dangerous and risky activity.
5. Having made that finding, because of s 3.38(3)(e) there must be a mandatory finding of contributory negligence against the claimant. The principle of volenti and s 3.38(3)(e) does not operate to extinguish [ETU]'s claim for statutory benefits. That would be a matter for provisions such as ss 3.35, 3.36, and 3.37 but it does operate to reduce his weekly statutory benefits and form the basis of the decision about whether he is "wholly or mostly at fault".
6. If I am wrong and the three elements of the defence of volenti are not made out, then in my view there should be a finding of contributory negligence made against the claimant in any event for the reasons set out below.

Does contributory negligence apply in any event?

1. The words of s 3.38(1) require the common law and enacted law to be applied. While

sub-section (2) mandates a finding of contributory negligence in certain cases, s 3.38(5) provides that a finding can be made "on any other ground." 2. The test for negligence and contributory negligence is provided for in s 5R(2)(a) of the Civil Liability Act 2002 as "the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person" (see Evic at [60]). 3. I accept the insurer's submissions that the ordinary standard of a motorist on a public road is not the standard that should be applied in this case. The standard of care in the circumstances of this matter is that of a reasonable person in the position of the claimant, that is someone riding a motorbike on an unpaved fire trail with other like-minded motorbike riders. 4. While overtaking on the left is permitted on a public road by the NSW Road Rules, it is only in certain specific cases (such as when a vehicle is turning right and it is safe to do so[11]). While the claimant may have had a view in his mind that there is an etiquette about overtaking on the right he had experienced left hand overtaking and was aware of the possibility. 5. In my view the claimant has departed from the standard, and a reasonable person in his position would have:

(a) not removed the mirrors from his motorbike or, as [CNC] had done, fitted smaller mirrors to enable him to see what was behind him;

(b) been more aware of his surroundings and the possibility of other motorbikes behind him and not focussing solely on the slow riders in front of him. This is particularly so as he had removed his mirrors depriving him of the chance of seeing motor bikes behind him and he was wearing a helmet which muffled sounds and he was riding a louder than usual motor bike due to its engine capacity and after-market exhaust, and

(c) kept a proper lookout by glancing back on occasions in particular with his son riding behind him, and in particular glanced behind him when he heard a noise and not assumed it was his son's bike.

1. I am therefore satisfied that the claimant did contribute to the cause of the accident.

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

1. Where there is more than one motor vehicle involved in the accident, the claimant's contributory negligence is assessed by considering the claimant's culpability relative to the other culpable drivers as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk[12] (see Evic at [61]).
2. In order to assess this "relative culpability" I must therefore make a finding as to whether

[CNC] was culpable, that is whether he departed from the standard of care required of him. 3. I accept the claimant's submission that an overtaking manoeuvre on a 3m to 5m wide fire trail when motor bikes are about 1m wide from handlebar to handlebar is risky in the context of the generally risky nature of the activities provided for by Louee. 4. In my view [CNC] departed from the standard of care and that a reasonable person in his condition would have:

(a) waited to overtake until he had more room noting that the width of the track varies and on his own admission, he was riding hard on the left to get around;

(b) overtaken on the right not the left as this is the more usual method of overtaking at least on public roads;

(c) having decided to overtake on the left he should have taken additional care to ensure it was safe for him to do so noting he was riding hard on the left which left him little room for error when the track was uneven and there was bush at the side of the road, and

(d) waited for a sign from the claimant (such as a hand gesture) that he was sure it was OK to overtake.

1. If there is contributory negligence found on the part of the claimant, then 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" (see Evic at [73]).
2. Taking into account the above factors and on the basis that both [CNC] and [ETU] were riding on a private fire trail where the usual road rules do not apply, I consider them to be equal contributors to the cause of this accident.
3. I find therefore [ETU]'s contributory negligence to be 50%. As this is not greater than 61% it follows that [ETU] is not wholly or mostly at fault within the meaning of ss 3.11 and 3.28.

1. Costs were briefly discussed at the assessment conference:

(a) the insurer made an application for costs beyond the regulated sum in accordance with s 8.3(4), and

(b) the claimant made an application for costs beyond the regulated sum in accordance with s 8.10 on the basis there are exceptional circumstances that warrant it.

1. I agree that the insurer's costs should be allowed on the unregulated basis. The quantum of those costs is a matter between the insurer and the insurer's legal representatives.
2. The insurer agreed that there were exceptional circumstances that warranted the claimant's costs being allowed on the unregulated basis. Having considered the nature and circumstances of this accident, the novel issue as to the application of s 3.38(2)(e) and s 4.18 and the secondary issues which were pursued until the assessment conference, that the claim is one which warrants the claimant recovering costs beyond those in the regulation.
3. Neither party has provided submissions as to the quantum of those costs. In the circumstances, and noting Schedule 2(1)(aa) of the Act empowers a merit review to assess costs in the absence of any agreement, I will not defer this matter further and will make no order as to amount of costs to be awarded.

1. In his post-accident submissions, the claimant requested that no evidence about the secondary matters be included "as there is potential for members of the public to read the decision and form an uninformed view of the claimant on those matters."
2. While I have included details of the evidence of this incident in the reasons, I have formed the view that these reasons should be de-identified pursuant to r 132 of the Personal Injury Commission Rules 2021 because of the age of the claimant's son. I therefore direct that the following be de-identified:

(a) the claimant's name;

(b) the claimant's son's name;

(c) the insured's name, and

(d) the witnesses' names.

[2] [2024] NSWSC 1272.

[3] [2023] NSWSC 788.

[4] In a single vehicle motor accident in which the claimant is the owner and driver, Justice Mitchelmore found that contributory negligence for the motor accident can still apply and the question to be posed is whether the claimant acted as a reasonable person in their position would have acted citing at [68] Axiak v Ingram and at [69] Davis v Swift two blameless accident cases.

[5] Page 43 of the claimant's bundle. A summary of this document occurs later in these reasons and has been considered as a "statement" from the claimant.

[6] [2008] HCA 40.

[8] A "PeeWee" is a very small low powered motor bike designed for children.

[9] Page 1 of the insurer's bundle. There is another copy of this at page 15 with additional details.

[10] This is a serious driving offence in accordance with s 115 of the Road Transport Act 2013.

[11] See Regulation 141 of the NSW Road Rules 2014.

[12] [2023] NSWSC 788.