Miscellaneous Claim made which is a reviewable decision under Schedule 2 (3) 6.13 (3) of the Motor Accident Injuries Act 2017 and a Miscellaneous Claim made pursuant to Schedule 2 cl 3 (e) of the Personal Injury Commission Rules 2021, a dispute concerning whether the person is wholly or mostly at fault

The findings of the assessment of this dispute are as follows:

1. For the purposes of section 3.11 I find that the motor accident was not caused wholly or mostly by the fault of the claimant.
2. I find the claimant to be contributory negligent in respect of this matter in the amount of 40%.

A statement of my reasons for this decision is attached to this certificate.

1. Erin Hokianga (the claimant) is a 39-year-old woman who was injured in a motor vehicle accident on 29 October 2024. The claimant was driving in a westerly direction along Botany Road at Matraville when she collided with the insured vehicle which was turning right into Bumborah Point Road from Botany Road across the direction of travel of the claimant. The insurer, Insurance Australia Limited t/as NRMA, has denied liability on the part of its insured. The insurer contends that the claimant drove through the intersection against a red light. The claimant states that she drove through the intersection with an orange light facing her as she entered the intersection and that the insured vehicle, a prime mover, was driving contrary to a traffic control signal or otherwise failed to make a right hand turn with safety.
2. On 14 October 2025 directions were issued to the parties to upload any further submissions upon which they seek to rely and thereafter an assessment conference was scheduled for

6 November 2025. 3. The insurer sought further time to upload an accident reconstruction report and, at the insurer's request, the assessment conference was rescheduled to 18 November 2025. 4. At the assessment conference the claimant was questioned extensively as to all the circumstances of events leading up to the motor vehicle accident and matters and contentions were put to her including that the accident was caused entirely through her own fault by her driving through a red light. 5. When the matter was set down the expectation was that the insured driver would similarly be in attendance and available to be questioned in respect to his recollections of the circumstances of the accident. This was not possible as the insured driver has gone overseas and he has not responded to the attempts to contact him nor avail himself of the Teams link sent to him which would have allowed him to be questioned in respect of his statement and his recollection of the events leading up to the accident. This has greatly prejudiced and disadvantage the claimant in seeking to establish negligence on the part of the insured driver as the claimant has not been given the opportunity to test his evidence through questioning. 6. Accordingly, the matter proceeded with only the claimant being able to give evidence personally at the assessment conference.

1. The claimant submitted that the accident was caused by the fault of the driver of the insured vehicle, a Volvo semi-trailer prime mover towing an empty trailer. That is, this vehicle in making a right hand turn from Botany Road into Bumborah Point Road caused the accident. The claimant submits that she was driving from east to west on Botany Road, and submits that she was driving through an intersection lawfully and in accordance with a traffic control signal which, upon her arrival at the intersection, had turned from green to orange, was struck by the insured vehicle which was the driving contrary to a red traffic control signal or, in any event, had failed to make a right hand turn with safety.
2. It is noteworthy that at the assessment conference the claimant conceded that, as she did not see the insured vehicle until she was less than 5 metres from it, and that there could be a finding of contributory negligence on her part as a consequence of her inattention to the traffic around her. The claimant was speaking with her partner at the time of the collision through her mobile phone which was fixed to a cradle on the dashboard of her car and not being held by the claimant.
3. The insurer submitted that the finding ought to be that the claimant was wholly at fault for the accident. This was put to her on the basis that as the insured driver stated that he only began to move through the intersection, after being stationary, when the traffic control signals facing him had turned to green. That is both a green circle and a green arrow allowing him to turn right into Bumborah Road. On the basis of this statement the insurer contends that the claimant drove through a red light and so was wholly at fault as the insured driver was driving in accordance with a traffic control signal and the claimant was driving through a red light.

1. As was noted the claimant stated in the teleconference report as both the claimant and the insured driver gave contradictory statements as to the circumstances of the accident. That being so an assessment conference ought to be conducted in this matter to allow each part to ask questions of the opposing party or otherwise present their arguments in a manner which may enable the implicit findings of credit, credibility and recollection to be made. The claimant presented herself for cross examination and accordingly is appropriate to deal with the evidence of the claimant to determine whether or not any adverse findings of credit, credulity or credibility ought to be made in respect to her version of events.
2. I accept her version of events. The claimant gave clear evidence of her recollections and did not seek to embellish or argue her version of events. She was forthright when asked why she didn't see the insured truck before the intersection and conceded that this could be considered an error on her part.
3. She has always stated that when she approached the intersection, she saw that she had a green light facing her. She has no recollection of any other vehicles, other than the insured vehicle, being in the vicinity of the side of the collision. In my view that claimant is a witness of truth and I accept the version of the events noting, in particular, that there was no contrary version given other than in the unsigned statement of the insured driver.

1. The material contains an unsigned statement of Onkar Singh Parmar (the insured driver) taken by Mitchell Hatch by telephone on Monday 23 December 2024. He states, that after being stationary at the intersection for about one minute the traffic control signals facing him turned green, both a green circle and arrow. He states he then proceeded to move into the intersection to turn right, could not see any other vehicle vehicles coming towards him, could not see any lights and then:

"As the front of the vehicle I was driving, nearly entered into Bombora point Road, I saw a vehicle coming towards me. I didn't know what type it was. I felt a big bang on the left-hand side of the truck I was driving."

"I did not have any time to avoid the collision as I was well into the intersection, nearly entering Bumborah point Road."

1. That is the only relevant part of the insured driver's statement as to the circumstances leading up to the accident. He goes on to identify a witness to the accident, Rani, and note his mobile phone number. He states:

1. There is no statement from Rabi, no reason why the insurer's investigator did not obtain a statement from Rabi nor any other information other than in respect to the accident.
2. His statement seems to contain a contradiction. At paragraph 66 of his statement, he says:

"The name of the other driver was Erin, I do not know the surname.. We did exchange details at the scene. The tow truck driver exchange details between us."

"I did not speak to the other driver at the scene. The other driver was holding her chest and complaining of pain from the seatbelt and steering wheel."

1. As I have stated above the claimant did not attend at the assessment conference. The possible inconsistencies in respect to his statement could not be put to him. Whilst I accept that, if he was travelling in accordance with a green arrow, and had moved almost completely through the intersection in accordance with a green arrow, the claimant herself must have been approaching the intersection and facing a red traffic control signal. This can be taken from the material which identifies and confirms the light sequencing controlling traffic at the intersection.
2. The material also confirms that, had both the claimant and the insured driver been facing a green circle then each could have been moving through the intersection in accordance with the traffic control signal subject to the insured driver's obligation that he gave way to traffic on the right. That is, he ought not make a right hand turn through the intersection, even with a green circle, unless it was safe to do so.
3. Noting these findings of fact, and, most significantly, the non-attendance of the insured driver at the assessment conference, I accept the claimant's version of events and, consequently, I find the insured driver to have been negligent in the manner in which he drove his vehicle. At the assessment conference the insurer submitted that were a finding of negligence on the part of its insured to be made that the claimant contributed to the accident by the manner in which she drove her vehicle. That is the insurer has alleged contributory negligence on the claimant.

1. The claimant was forthright in acknowledging that she did not see the insured truck until it was too late to take evasive action. In the investigation and interview between Mitchell Hatch and Constable Kiseloski taken on January 2025 claimant is reported to have said to Constable Kiseloski that she said the light facing her was orange.

"As I got to the middle of the intersection, I saw him. I slammed My brakes on and I guess I swerved we just went together".

1. In his signed statement dated 16 December 2024 the claimant said, at paragraph 48,

"As I got to Bumborah Point Road, I saw a maroon colour object in my front window. I did not know what it was at the time."

1. The report of road safety solutions dated 6 November 2025 contains diagrams and photographs of the scene of the accident. What is clear is that the claimant had an unobstructed view of the intersection as she approached it. For her to have only seen the insured vehicle, noting it was a large truck towing a trailer, can only mean that the claimant was driving inattentively. Had she been carefully focused on the road to her front then she ought to have seen the insured vehicle well before she was in the intersection. Whether it was because the claimant had completed a day's work and was starting a relatively long drive home or whether it was because she was having a conversation with her partner what is clear is that to have only seen the insured truck, which was moving across her path, when it was only a few metres away supports the contention of the insurer that the claimant did not drive in a careful and attentive manner. Had she done so it is possible she would have either been able to slow down or take evasive action to avoid the collision by herself turning left into Bumborah Point Road.
2. Whilst I find that the accident was primarily and mostly caused by the insured driver failing to make a right hand turn with safety, I find that the claimant herself has contributed to the accident by driving without sufficient awareness of her surroundings and at a speed at which she was unable to come to a stop when she needed to. I can share the claimant contributory negligence today although, as I have set out above, most of the responsibility for the accident in occurring lies with the insured driver.
3. I assess contributory negligence on the part of the claimant at 40%.

1. My determination of the Miscellaneous claim is as follows:
2. For the purpose of s 3.11 of the Motor Accidents Injury Act 2017 the motor vehicle accident was not caused wholly or mostly by the claimant.
3. In all the circumstances I find the claimant to be 40% contributory negligent in respect to all the circumstances as to the accident.

1. In making my decision I have considered the following legislation and guidelines:
   • Motor Accidents Injury Act 2017 (NSW), and
   • Motor Accident Injuries Regulation 2017.