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

1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person.
2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident was not caused wholly or mostly by the fault of the injured person.
3. Effective date: This determination takes effect on 16 September 2025.
4. Legal costs: The amount of the claimant's costs assessed in accordance with the Motor Accident Injuries Act Regulation 2017 is assessed at the maximaum regulated fee.
5. A brief statement of my reasons for this determination are attached to this certificate.

1. This is a dispute between David Hyland (the claimant) and the insurer with respect to the payment of statutory benefits, pursuant to ss 3.11 and 3.28 of the Motor Accident Injuries Act 2017 (the Act).
2. The insurer undertook an internal review, and a statement of reasons is attached to the application form and is dated 3 April 2025.
3. The claimant seeks to challenge the determination.
4. On 24 August 2024, at approximately 12.30pm, the claimant together with two motorcycle riders, Christopher Shervey and Alan Wilson, were riding their motorcycles along Horseshoe Rd, at Kalang. Horseshoe Rd is a dirt road. The purpose of the ride was to participate in an adventure bike festival being held in Dorrigo.
5. Chris Shervey was the lead rider, followed by Alan Wilson, with the claimant riding at the rear. It then transpired there was a tree/log (the obstacle), lying over the roadway ahead of the group. Christopher Shervey safely rode over the obstacle. At the assessment conference the claimant stated he was riding approximately three to four metres behind Alan Wilson at a speed of 55km per hour. He said the recommended speed limit for the subject Road was 60km per hour. He first saw the obstacle when he was two metres away from it and he immediately decelerated his bike.
6. However, Alan Wilson who was riding in front of the claimant, rode over the obstacle and caused it to bounce up from the road to a height of approximately one to two feet. Because of the obstacle bouncing upwards, this resulted in the claimant losing control of his motorcycle as he attempted to navigate across it. He was dislodged from his motorcycle, and fell to the ground, sustaining serious injuries
7. The insurer, in their statement of reasons, considered the claimant wholly or mostly at fault, and after 52 weeks, the weekly payments under ss 3.11 and 3.28 will be ceased. The claimant submits he was neither wholly or mostly at fault in the motor accident and is entitled to a continuation of statutory benefits. He has now filed this application seeking a determination of the dispute with the insurer.

1. I have considered the documents provided in the Application and in the Reply. I also considered other documents which were subsequently lodged on the portal by both parties.

1. The claimant's entitlement to benefits is contained within Part 3 of Motor Accident Injuries Act 2017 (the MAI Act). Under s 3.1 of the MAI Act, benefits are payable to almost all persons, regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person's fault caused the motor accident. However, pursuant to ss 3.11 (1)(a) and 3.28(1a), an injured person is not entitled to statutory benefits beyond the first 52 weeks after the accident, if the motor accident was caused wholly or mostly by the fault of the injured person.
2. Whilst there is no definition of wholly at fault in the legislation, ss 3.11 (2) and 3.28 (2) provide a definition of the phrase mostly by the fault, which is if the claimant's contributory negligence is assessed in accordance with s 3.38 of the MAI Act as greater than 61%.
3. Section 3.38 provides for the assessment of contributory negligence in accordance with the common law and the enacted law.

1. The claimant lodged an Application for Personal Injury Benefits in which he described the circumstances surrounding the accident as follows:

"I was riding up a hill. There was a downed tree not visible due to the terrain. My friend riding with me in another motorcycle struck the tree first causing it to bounce causing me to collide with the tree. My friend also failed to warn me of the hazard once he observed the fallen tree."

1. The insurer bears the onus of proof, both evidentiary and legal, to establish the claimant was wholly or mostly at fault for causing the motor vehicle accident.
2. I refer to the police report dated 13 January 2025, and I note the following under the heading 'Crash Summary Details' on page 3:

"The BMW GS1200 road over a tree log which, lifted up and caused the KTM 2TEXC to collide into it. The rider of the KTM 2TEXC fell off the motorbike bike and sustained a torn shoulder, fractured left leg and bruising in the upper rib cage and right hip."

The report states on page 2 the speed limit for the road is 50kmph.

1. I refer to the statement of the claimant dated 20 May 2025, and I note the following paragraphs:

"7. The weather on the day was dry and the surface of the road was loose and dusty. There had been significant weather activity in the area in the weeks prior, including storms which had left behind branches, leaf litter, and other debris on the road.

8. In the lead up to the accident, I was riding in close formation with Alan and Chris. We have known each other for several years and regularly ride together. All three of us are confident and experienced riders accustomed to navigating both sealed and unsealed roads.

10. Roughly 5 minutes before the accident, Chris had taken the lead and was riding approximately 100 metres ahead, Alan followed, but I was directly behind him.

11. At this stage we were riding with caution, standing on our foot pegs, to better manage the uneven terrain. We are also monitoring the road carefully and keeping a lookout for hazards and obstacles. I also positioned myself slightly to Alan's right to avoid the dust being thrown up by his rear wheel. I maintained a safe following distance.

12 The left side of the road at the accident site borded an embankment, then the road itself was gently inclined. I observed Alan began to veer slightly right and I instinctively followed his lead. A tree had fallen diagonally across the road, partially obscured by the embankment and the dust in the air. Due to the conditions my visibility of the fallen tree was limited until I was quite close to it.

13 Alan identified the log and lightened the front wheel of his motorcycle as he passed over the tree, a standard technique used to clear small obstacles. However, the rear wheel of the BMW 1200c, a large powerful bike, with an advanced suspension system, made firm contact with the log, pushing it downwards. The resulting pressure caused the opposite end of the log to lift into the air by approximately 1 to 2 feet.

14 By the time I had clear visibility of the log, the raised portion had already bounced upward. I had no ability to brake, veer or take evasive action. I was travelling at an estimated speed of 50 to 60 km/ph. The airborne log struck the front wheel of my motorcycle with considerable force. The impact felt as if I had hit a solid wall. The log was approximately 8 to 9 cm thick.

15. Had the log not been ridden over by Alan and bounced, I would have attempted to apply the same technique I had used successfully on numerous previous occasions, namely, lifting the front wheel slightly to clear the obstacle as Alan did.

16. The force of the impact stopped my front wheel instantly causing me to be thrown over the handlebars. I was flung approximately 2 metres forward. My motorcycle snapped the log in two and continued to slide approximately 1 to 1.5 metres ahead. Despite the pain, I remained conscious.

26. During my stay in hospital, both Alan and Chris were in contact with me. Alan expressed concerns that he felt upset and guilty, acknowledging that despite his actions not being deliberate, acknowledging that his actions caused my accident.

29. In early September, I informed Alan that I intended to lodge a CTP claim and required his vehicle's registration number. Alan was initially hesitant to provide the information and explained that he wished to speak with his insurer first.

30. On 10 September, during a phone conversation, Alan expressed concerns that a detailed and accurate report of the incident might affect his insurance premiums.

31. I told him that he would not be personally liable and explained that truthful disclosure was essential for continuation of my entitlements beyond 52 weeks under the CTP scheme.

32. I made it very clear that I was not suggesting or encouraging him to alter or omit any detail regarding the accident. On 12 September, Alan provided me with his registration number. Following that, we did not have further communication until I was advised he had provided a statement to Procare.

34. I have reviewed the statements provided by Alan and Chris to ProCare.

36. I consider Alan's act of riding over the log directly caused it to bounce into the air and it was this motion, that led to my front wheel colliding with it. There was no physical contact between our motorcycles but Alan's interaction with the log was the direct and proximate cause of my accident.

38. In response to paragraph 48, respectfully disagree with the assertion that this activity should be classified as a 'high-risk sport.' We were travelling on a clearly marked unsealed road which I would classify as low to moderate risk.

40. Furthermore, on the morning of the ride, I expressly told Alan and Chris that I wanted a relaxed. easy pace ride. I stated that I wanted to 'take it easy' and 'do nothing dangerous whatsoever.' This is exactly what we undertook in the ride where I had my accident.

41. In response to paragraph 51, I again stress that I do not imagine Alan acted intentionally to cause harm, but I do consider that he was negligent in riding his motorcycle over the log that caused my accident. It remains the direct mechanical cause of the incident and my injuries.

43. In response to paragraph 67, while it is true that there was no direct contact between our bikes, I maintain at Alan 's election to ride over the log was the direct cause of the impact that led to my injuries. Had Alan warned me, I would have been able to slow, wait or ride over the log without issue."

1. I refer to the statement of Alan Wilson died 6 November 2024, and I note the following paragraphs:

"35 I was riding along and totally in control of my bike I would estimate my speed was between 25km and 40km per hour.

1. As I was riding along there was a slight crest, I got over the crest and as I got over the crest there was a branch across the entire width of the fire trail. I would estimate the diameter to me (sic) approximately 100mm.
2. I was able to ride over the top of the branch and continued on without incident.

67. I am struggling to understand how claim can be lodged against my CTP green slip when there was no incident between the two bikes. This will have an effect on my future policies."

1. I also refer to the statement of Christopher Shervey dated 22 November 2024. Mr Shervey did not witness the accident. He expressed the view this was just a freak accident. He was also of the opinion the claimant is a very experienced rider. He further stated Alan Wilson would not have had sufficient time to alert the claimant of the pending hazard.

18. The insurer submits the accident was wholly or mostly the fault of the claimant.

1. I refer to the internal review decision dated 3 April 2025, and I note the following on page 3 under the heading "My Findings:"

"8. I have reviewed the evidence before me, and I am satisfied that you are wholly at fault in this circumstance for the following reasons:

• I acknowledge that you are an experienced rider.
• Your unfamiliarity with the location and the road/trail therefore you had a need to keep a proper lookout and travel at a reasonable speed in the circumstances.
• I acknowledge that the fallen tree/ branch was not visible to you on approach to the crest and you report that you were not notified by the two riders in front. However, you are responsible for your driving and your actions.
• I highlight that the two riders in front of you were able to navigate through the fallen tree branch on the other side of the crest.
• In addition, riding in an area that you have rode before and participating in high -risk sports often assume a certain level of risk, maintaining control of your bike, riding to the conditions and being aware of your surroundings are key responsibilities."

20. I refer to submissions of the solicitor for the insurer dated 8 July 2025 note the following paragraphs

"24. The insurer relies upon the statements of the insured motorcycle rider Alan Wilson and his companion Chris Shelvey as summarised above. Their evidence establishes they were riding at a safe speed and within a safe distance of their respective motorcycles such that they did not lose control of their vehicles despite being confronted with a fallen tree over the roadway.

25. The insurer disputes that accident was caused due to Alan Wilson riding over the log laying over the roadway Rather the insurer submits the accident occurred due to the claimant riding at an excessive speed in the circumstances, and too close in distance to Alan Wilson's motorcycle.

27. At paragraph 35 of his statement, the claimant admits that all three riders responded to the circumstances appropriately and that there was little else that could have been done to avoid the accident .However, he goes on to state that Alan Wilson's interaction with the log was the direct and proximate cause of the accident and that whilst Alan Wilson did not act intentionally to cause harm ,he considered he was negligent in riding the motorcycle over the log.

28 With respect the fact that Alan Wilson successfully and without incident, managed to follow the lead rider Chris and ride over the long without falling from his motorcycle supports the insurer submission that he was not negligent.

29. At paragraph 4 of the claimant's submissions, it is asserted "This clarified that the claimant would have been able to ride over the log had he been riding far ahead of the Alan, like Chris". This admission indicates that, had the claimant been riding in the position of either Alan or Chris, he would have ridden over the log. It is therefore not clear the basis upon which the claimant contends the actions of Wilson were negligent.

30. The insurer submits the above statement, and submissions support the position that:

... (a) The fact Alan Wilson wrote over the log does not establish negligence.

(b) It was the proximity at which the claimant was travelling to the rear of Alan Wilson's motorcycle that was the cause of the accident as he had insufficient time to observe and react to the hazard on the roadway.

31. Consequently, the insurer submits there was nothing in Wilson's riding which could amount to negligence or to be found to be the cause of the accident. The insurer therefore submits the claimant's submission Alan Wilson was negligent for riding over the log should be rejected.

32. Further, as is evident from the evidence of both Alan Wilson and Chris Shervey, they both managed to traverse the log without incident. It is notable that Alan Wilson estimated his speed to be between 20 -40 kmph whereas the claimant advised NSW ambulance personnel and Coffs Harbour Hospital he was travelling at approximately

70 kmph and in his statement estimated his speed to be 50-60 km/ph. The insurer submits that given the signed speed limit for the area was 50 km/ph and that there was limited visibility and obstructions on the roadway, the speed at which the claimant was travelling was excessive in the circumstances.

33. It is apparent from the claimant's statement and submissions that the accident occurred due to the claimant having insufficient time to observe and react to the presence of the log and the movement of same when Wilson road over it. The insurer submits had the claimant been travelling at a lesser speed and at a greater distance from Wilson's motorcycle, he would have had more opportunity to take evasive action and to avoid the hazard or successfully negotiate the log as the two lead riders had managed to do so.

34. The insurer submits the cause of the accident was not that Alan Wilson road over the log or failed to warn the claimant of the presence of the log, but rather, that in the circumstances the claimant was riding too quickly to take evasive action and in too close proximity to Alan Wilson's bike to avoid collision with the log.

37. In circumstances where the claimant's riding companions observed and reacted to the environmental hazard, the insurer submits the same standard of care was required by the claimant.

38. Further the insurer submits there was no duty for Alan Wilson to warn the claimant of the fallen tree and furthermore, there was no opportunity for him to do so given the proximity at which the claimant was travelling to Wilson's motorcycle.

44. Whilst the insurer's primary submission is that the claimant was wholly at fault, if that submission is not accepted, the insurer submits in the alternative that the claimant was mostly at fault."

Was the claimant wholly at fault in causing the accident?

1. I refer to the decision of Member Cassidy in the matter of Ibrahim Custovic v Allianz Australia Insurance Limited. Member Cassidy discussed the approach to a dispute about fault in a statutory benefits claim and referred to sections 3.11 and 3.28 of the MAI Act and the case of AAI Limited t/as GIO v Evic [2024] NSWSC 1272. I note the following, commencing at paragraph 116:

"116. Justice Michelmore in Evic undertook the exercise in interpreting these sections and how they are to apply in a single motor vehicle accident. Mr Evic had mounted his motorcycle, and the foot peg got caught up between his boot and his riding pants as a result of which his motorbike fell to the left side, causing injuries to the claimant's left lower leg. A Member of the Commission had determined that Mr Evic was not wholly or mostly at fault.

117. In the course of her reasons, Justice Mitchelmore said the following:

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

(b) leaving aside any issue of threshold injury, statutory benefits continue or cease pursuant to ss. 3.11 and 3.28 if the injured person is wholly or mostly at fault." The qualifiers wholly or mostly inform each other and are intended to address the same mischief, namely, contributory negligence."

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

(d) s 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of Division 8 of part 1A of the CL. Act. The test for negligence and contributory negligence is provided in s 5R (2) (a) of the CL Act. As the standard of care required the person who suffered harm is that of a reasonable person in the position of that person."

(e) where there is more than one motor vehicle involved, or the claimant is a pedestrian (and presumably a cyclist or other road user) s 3.11 and. 3.28 accommodates an assessment of the claimant's contributory negligence by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788.

(f) in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor vehicle can still apply. Acknowledging the difficulty in assessing contributory negligence in a single accident case where there is no one to measure the claimant's conduct against Justice Mitchelmore cites Axiak v Ingram [2012] NSWCA 311 and Davis v Swift [ 2014] NSWCA 458 and says, "the inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence.

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

(h) if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) directs the next step is to assess the degree of contributory negligence that is just and equitable in the circumstances of the case."

1. I am not required to make a finding of fault, responsibility or culpability on the part of any other person. The claimant does not have to prove fault on the part of anyone to obtain statutory benefits. His benefits will cease if he was wholly or mostly at fault and as Justice Mitchelmore found this only requires a consideration of whether there is contributory negligence, and if so, the degree of it. As Member Cassidy stated in her reasons in the matter of Custovic, if the claimant's contributory negligence is assessed at 100%, then the claimant is wholly at fault. If his contributory negligence is assessed at between 99% and 62%, he is mostly at fault. If the degree of his contributory negligence is less than 61%, then his weekly benefits are reduced accordingly.
2. The insurer, in its submissions in paragraph 19 above and the solicitor for the insurer in paragraph 20 above, have juxtaposed the issue as to whether the claimant was wholly or mostly at fault in the subject accident. I again, refer to the decision of Justice Mitchelmore in the case of AAI Limited t/as Gio v Evic referred to in paragraph 21 above. It is not necessary for me to make a finding, responsibility or culpability of any other person. The claimant does not have to prove fault on the part of anyone to obtain statutory benefits.
3. I determine the claimant lost control of his motorcycle because Alan Wilson, who was riding in front of the him , rode over the obstacle and caused it to bounce upwards from the road to a height of approximately one to two feet and because of the obstacle bouncing upwards, this caused the claimant to lose control of his motorcycle as he attempted to navigate across it.
4. In such circumstances, I determine the motor accident was not caused wholly by the fault of the claimant.
5. The solicitor for the insurer submitted in their primary submission, the claimant was wholly at fault, and if this is not accepted, then in the alternative, submitted the claimant was mostly at fault. This issue needs to be determined as to whether there is contributory negligence, and if so, the degree of it.
6. I therefore find the accident was not caused wholly by the fault of the claimant.

Was the accident caused mostly by the fault of the claimant?

1. I find the claimant had limited opportunity to avoid the obstacle which was partly due to his own actions. The solicitor for the claimant submitted there should be no finding of contributory negligence. The insurer has submitted I should find contributory negligence at 61% or greater.

29. The claimant in his statement concedes there had been significant weather activity in the area in the weeks prior, including storms, which had left behind branches, leaf litter and other debris on the road. The police report records the speed limit for the road is 50kmph. The NSW ambulance and the hospital has recorded the claimant travelling at approximately 70kmph. I accept the claimant's statement at the assessment conference, that when speaking to first responders and also when he was at the hospital, he had been injected with morphine,and he was not fully coherent.

1. I accept the claimant, when question at the assessment conference, was travelling at 55kmph shortly prior to his accident and he also thought the speed limit for the road was 60kmph..
2. The claimant submitted he was maintaining a safe following distance, however, he stated the obstacle was partly obscured by the embankment and the dust in the air. This caused his visibility of the obstacle to be limited until he was quite close to it. Immediately prior to colliding with the obstacle ,he was riding approximately three to four meters behind Alan Wilson at a speed of 55kmph.
3. I determine the claimant was travelling too close behind Alan Wilson and riding at an excessive speed, having regard to the condition of the road, limited visibility, and the possibility of fallen debris ,such as branches and trees lying on the roadway because of the recent storm activity. If the claimant had been travelling at a greater distance behind Alan Wilson and at a slower speed, he may have been able to take proper evasive action in order to avoid colliding with the obstacle.
4. I determine the a degree of the claimant/s contribututory negligence should be assessed at 25%.
5. Accordingly, I determine the claimant is not mostly at fault.

1. I find the accident of 24 August 2024 was not caused wholly by the fault of the claimant.
2. I find the accident of 24 August 2024 was not caused mostly by the fault of the claimant.

1. The amount of the claimant's costs assessed in accordance with the Motor Accident Injuries Act Regulation 2017 is assessed at the maximum regulated fee.

1. My determination of the miscellaneous claim is as follows:

(a) for the purposes of s 3.11 of the Act, the motor accident was not caused wholly by the fault of the claimant;

(b) For the purposes of s 3.28 of the Act, the motor accident was not caused mostly by the fault of the claimant;

(c) Effective date: this determination takes effect on 16 September 2025, and

(d) Legal costs. The amount of the claimant's costs assessed in accordance with the Motor Accident Injuries Act Regulation 2017 is assessed at the maximum regulated fee.

39. In making my decision I have considered the following legislation and guidelines:

(a) the Act.

(b) Motor Accident Injuries Act Regulation 2017.

(c) Motor Accident Guidelines 2020, and

(d) Civil Liability Act 2002.