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 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 caused wholly or mostly by the fault of the injured person.
3. Effective date: This determination takes effect on 24 November 2025.
4. Legal costs: The claimant is self represented and therefore, no amount is awarded for legal costs.
5. A brief statement of my reasons for this determination are attached to this certificate.

1. This is a dispute between Malena Marin (the claimant) and Insurance Australia Limited t/as NRMA (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 24 April 2025.
3. The claimant seeks to challenge the determination.
4. On 13 May 2024 at approximately 3.30pm the claimant was the sole occupant and the driver of her motor vehicle, which was parked at the Mortdale Public Parking area at the intersection of Cook Street and Cook Lane at Mortdale.
5. It then transpired the claimant attempted to drive her vehicle out of the car park, but in doing so, did not engage the vehicle in reverse gear but rather the vehicle was placed in drive. The claimant accelerated the vehicle, which resulted in the vehicle mounting the kerb in Cook Lane and colliding with a telegraph pole resulting in her sustaining injuries.
6. 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 she was neither wholly or mostly at fault in the motor accident and is entitled to a continuation of statutory benefits. She 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 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, dated 14 May 2024, in which she described the circumstances surrounding the accident as follows:

"I Malena Marin was the driver and only person in the car mentioned above. I got in the car put, the seat belt on set the gears and noticed the car did not respond. Then I accelerated not really realising there were low cement stoppers in front. I lost control of the car, went to a second low stopper and crashing and head on with an electricity pole. Fire Brigade, Police tow truck attended the site in Mortdale. I was taken to St George Hospital leaving my husband to deal with the wreck."

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. The claimant also lodged on the portal a statement dated 29 April 2025 in which, inter alia, she stated the following:

"As I declared to you and your company from the beginning is that I could have had a medical episode, a blackout, a panic attack, a nervous breakdown.

The hospital could not specify what could have happened to me, neither the doctor. As previously declared, the accident happened within seconds and because of the circumstances and can only recall very little of it."

1. The insurer submits the accident was wholly or mostly the fault of the claimant.
2. I refer to the submissions of the insurer, and particularly the submissions dated 29 July 2025.

"11. The claimant provided a statement to the Quantumcorp, investigator, on 24 July 2025 relevantly, the claimant stated the following,

* I had return to my car from doing some shopping at Chemist Warehouse

* I was walking to my car, and I saw the space in front of my car was empty. In my mind I thought it was possible to drive through the gap.

* I entered my car and put my shopping bags on the passenger seat. I put my seat belt up.

* I put my foot on the accelerator, but the car did not move for a few seconds.

* I cannot remember if I had put the handbrake down.

* I thought maybe I put the car in drive, and I looked to see what gear I was in.

* I cannot remember if I did anything, but my right foot was on the accelerator.

* My car hit 3 separate concrete stoppers and through a garden.

* My car came to rest approximately 3 lengths of a car about 12m from where I had parked my car to where it was stopped by a telegraph pole.

* The impact of my car hitting a telegraph pole brought down the NBN wires.

* I do not remember too much about the accident because it happened so quickly, and I was in shock.

* Where I had parked my car originally was not busy.

* I did not have time to take any evasive action it all happened so quickly."

"1. The insurer submits the claimant was wholly at fault for the subject MVA.

2. The insurer highlights there was no mechanical defect with the vehicle. The weather was fine, the road dry, it was daytime. The claimant was operating the vehicle. There was no other occupant. There was no other vehicle or person involved."

1. The insurer further submits the claimant was wholly at fault for the following reasons:

"1. The claimant noted there was an empty car space in front of her parked vehicle, and in her mind, she thought it was possible to drive through the gap and exit the car park onto Cook St via Cook Lane.

2. The claimant recalled pressing the accelerator and the car not moving and then suddenly moving forward really quickly when the subject MVA occurred

3. The insurer submits the claimant's statement she put the car in reverse is inconsistent with an intention to drive forward across the empty car spot onto Cook Lane.

4. The insurer submits the delay in the vehicle moving, despite pressing the accelerator, is consistent with the cement stoppers preventing the vehicle to move. Once the vehicle overcame the restriction,o it lurched over the cement stopper in the parking spot, the one in front, and the curb before hitting the telegraph pole.

5. The insurer submits the claimant failed to exercise reasonable caution and care, did not maintain a proper lookout, and did not proceed with the proper care that would have avoided the collision."

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 ss 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. Her benefits will cease if she 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%, she is mostly at fault. If the degree of her contributory negligence is less than 61%, then her weekly benefits are reduced accordingly.
2. I again, refer to the decision of Justice Mitchelmore in the case of Evic referred to in paragraph 18 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. At the assessment conference I explained to the claimant the insurer was alleging she was wholly at fault for the accident. On page 4 of the transcript, I asked the claimant the following question:

Member "Would you like at this stage, to say why you are not wholly at fault in respect to this accident."

Claimant "Because I didn't know what happened. All I know is I put the car in reverse, and it didn't reverse it didn't reverse."

1. On page 21 of the transcript, the representative of the insurer, Mr Gil asked the following question:

Mr Gil "Are these not your words to our investigator?"

Claimant "I was walking to my car, and I saw the space in front of my car was empty in my mind, I thought it was possible to drive through the gap."

Mr Gil "So is that accurate? Do you remember noticing the spot in front of your vehicle being empty and thinking I can drive straight through the car?"

Claimant ". Yeah, I notice it but I didn't, I didn't, it's not related to what happened I didn't intend because the car just went."

Mr Gil "But you thought it would be possible to drive forward?"

1. On pages 24 and 25 of the transcript, I note the following:

Claimant "I was walking to my car, and I saw this space in front of my car was empty in my mind I thought it was possible to drive through the gap."

Member "What Mr Gil put into you is that, that you would not be the correct thing to do because there is a concrete stopper in front of you."

Member "So did you have the intention then of going over the concrete stopper?

Claimant ". But I didn't have when I was in the car...

Member "The car, the car did go over the concrete stopper didn't it it went forward into the Telegraph pole. That's in your own words the car went forward, didn't it?

1. On page 32 of the transcript, I note the following:

Mr Gil "No, how hard you press the accelerator, was it gentle was it 50% was it fully onto the floor

Claimant "Sorry, to end up where I ended up, it must have pressed forward."

1. I also stated to the claimant at the assessment conference that if she did suffer a medical episode at the time of the accident as stated in her further statement dated 29 April 2025, then there would have been a record of her experiencing such a medical episode in the ambulance report and or in the clinical notes of St George Hospital. There is no such complaint by her of sustaining a medical episode at the time of her accident in such records. The first occasion upon which such a complaint has been made is in her said statement.
2. The ambulance report records, always, she had a Glasgow coma scale (GCS) of 15/15.
3. I determine the claimant did not engage the reverse gear of her vehicle but rather put the gearbox into drive gear. There are no complaints made by the claimant in her statement or her record of interview with the investigator that she had a previous problem with the gearbox or instances where the car has slipped out of gear. There was no investigation of the car and no request by her to ascertain whether there was something wrong with the gearbox.
4. I determined the reason why the claimant's vehicle went forward, instead of reverse, was because the action of the claimant alone caused the vehicle to go forward and collide with the telegraph pole and as a consequence, she sustained her injuries.
5. I therefore find the accident was caused wholly by the fault of the claimant.

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

1. I have determined the accident was caused wholly by the fault of the claimant and accordingly I determined the accident was caused mostly by the fault of the claimant.
2. Accordingly, I determine the claimant is mostly at fault.

1. I find the accident of 13 May 2024 was caused wholly by the fault of the claimant.
2. I find the accident of 13 May 2024 was caused mostly by the fault of the claimant.

1. The claimant is self represented and therefore, no amount is awarded for legal costs.

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 caused wholly by the fault of the claimant;

(b) for the purposes of s 3.28 of the Act, the motor accident was caused mostly by the fault of the claimant, and

(c) Effective date: this determination takes effect on 24 November 2025.

1. 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.