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 23 March 2026.
4. Legal costs: the claimant is self represented and therefore is not entitled to legal costs.
5. A brief statement of my reasons for this determination are attached to this certificate.

1. This is a dispute between Michael McManus (the claimant) and QBE Insurance (Australia) Limited (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 MAI Act).
2. The insurer undertook an internal review, and a statement of reasons is attached to the Reply form and is dated 1 September 2025.
3. The claimant seeks to challenge the determination.
4. On 25 January 2025 at approximately 6.30pm the claimant was driving his motor vehicle along Williwa Creek Road at Portland. Williwa Creek Road is a gravel road and allows traffic to flow in each direction. According to the police report dated 26 February 2025, the speed limit for the road is 50kmph. The claimant lodged on the portal a video taken by him, depicting the road surface and also the video commenced some distance away from the scene of the accident and continued up until the accident site.
5. The claimant lodged an Application for Personal Injury Benefits (Application) dated 29 January 2025 and, in answer to his description regarding the motor vehicle accident, the claimant stated the following,

"I had just left a family reunion at 6:30 PM on Williwaa Creek Rd Portland in HW and I was by myself. The road is unsealed, uneven dirt road with loose gravel and ditches. I had a medical episode with my left arm and hand, and I have left cubital tunnel syndrome. My arm (sic) locked up in hand. I started to lose control. I tried to correct the vehicle, and I rolled my vehicle. The rescue firefighters, paramedics and police attended. I had to be cut from the vehicle and was flown by toll helicopter to Westmead Hospital Sydney NSW".

1. In the internal review decision dated 1 September 2025, I note the following on page 7 under the heading "Conclusion":.

"Having reviewed the available information, I find there is insufficient medical evidence to support that a medical episode related to your pre-existing cubital tunnel syndrome was the cause of the motor vehicle accident. While I have carefully considered your account of losing control due to your arm: locking up. This explanation is not supported by your treating medical providers. No clinical evidence has been provided by your General Practitioner, Hospital or ambulance records to substantiate that your condition could have led to the accident as described.

In the absence of such medical justification, I cannot conclude that the accident resulted from an uncontrollable medical episode.

Based on NSW Police reporting and on the balance of probabilities, it appears you failed to maintain control of your vehicle while navigating a bend and did not adjust to the prevailing road conditions. Police also noted that speed was likely a contributing factor accordingly, I find you wholly or mostly at fault for the motor vehicle accident on 25 January 2025."

1. At the initial assessment conference on 19 November 2025, as the conference progressed during questioning, the claimant stated there were two motor vehicles directly behind his vehicle, containing several relatives of his, at the time of the accident. These persons, the claimant believed could provide information regarding the circumstances surrounding his accident which may be of assistance to his claim. In such circumstances, I advised both parties, it was necessary to postpone the assessment conference to allow statements to be obtained by an investigator from these individuals. Subsequently the insurer arranged for an investigator to obtain a written statement from the claimant's mother, Susan McManus.
2. The insurer served a statement from Susan McManus dated 16 December 2025.
3. 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 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 provided the insurer with a statement 18 March 2025. I note the following paragraphs"

"17. Since 2018 I was first diagnosed with Cubital Tunnel Syndrome in my left elbow and more recently in my right elbow. This is a nerve condition and without warning, my arms can look up in a L shape, with the fingers in my hand also locking up. Since I'm left dominant (sic) I must be careful not to overload either arm.

1. 18. I am booked in to have surgery on my left elbow to undergo a left pronator/lacertus fibrosis and open carpal tunnel release, under the care of Dr Xuan Ye. Hopefully this stops my elbow and hands locking up.

1. 24. I arrived at Portland around 11:00am and met my extended family at a field on Wiliwa Creek Rd, Portland. This road is made up of gravel and allows traffic to flow in each direction. There are no speed signs, but having a guess, it would have a 60kph speed limit. In saying that because it's a gravel road, and not bitumen, you wouldn't do any more than 40kph- 50kph tops. There are also horses that roam free that can walk across the road when you're driving so you must be extra careful.

1. 26. I was driving along Williwa Creek Rd for about 5-10 minutes with no issues I would have been driving about 40kph as there are ditches and embankments on either side of the gravel road, not to mention horses that could be crossing.
2. 27. As I was about 100 metres from the left hand bend, my left elbow seized which also caused my left hand to squeeze and lock onto the steering wheel .As I attempted to pull my hand off, I pulled the steering wheel to the left, which caused the rear of the car to begin to fish tail .I eventually freed my left hand from the steering wheel with the car travelling towards the right.
3. 28. I had to tap my brakes but the rear the car was sliding from right to left. My car hit the embankment on the right of the road, and on doing so, I turned the steering wheel to the left. The car shot across to the other side of the road near a storm water drain. I tried to miss the storm water drain and turn the steering wheel to the right. My car went across the other side of the road and hit the embankment. My left elbow hit the windscreen, while my elbow was locked. This caused my car to tip over onto the passenger side of my car, where it came to rest. My car stopped off the road, on the northeastern side.

1. I have spoken to the family that were also travelling behind me on the road; however, they never witnessed the accident. I'm unaware of any other witnesses."
2. I refer to the report of Dr Brett Gooley dated 1 February 2024. Dr Gooley is the claimant's treating general practitioner In his report, he confirms the claimant in March 2018 was diagnosed as suffering from left cubital tunnel syndrome.
3. Brooksight Investigations, on behalf of the insurer, provided a report dated 16 January 2026. On page 2 of the report I note the following:

"Susan McManus stated they were travelling southbound along Williwa Creek Rd which she described as a gravel road with no road markings and poor condition containing numerous large ditches.

Susan McManus stated that when they are approximately 500 metres from the reunion site, they observed the claimant's vehicle overturned on its passenger side, with the passenger side doors flat on the roadway. She recalled the rear of the claimant's vehicle being close to the embankment on the right side of the roadway and observed a large cloud of dirt at the scene."

1. I note the following paragraphs from the statement of Susan McManus dated 16 December 2025:

"31. I asked Michael how the accident happened, to which, he said words to the effect of 'I was driving along, and I hit a ditch, I knocked over the metal post, I was heading into the creek and I veered over to the other side of the road, my arm locked up and I went up the embankment and the next thing I know the car was on its side.'

1. 32. I know Michael had a pre-existing condition which affected both of his arms. I do not recall the specific condition; however, I know that Michael has had issues with his arms prior to the accident. I knew Michael could not lift heavy objects. Michael was able to drive regularly

1. 43. I believe Michael experienced a medical episode while driving. I believe his right arm locked up while he was driving which caused him to lose control of the vehicle."
2. 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.

1. The insurer submits the accident was wholly or mostly the fault of the claimant.
2. Brookside investigations interviewed the investigating police officer, Senior Constable Connor Legge at Lithgow Police Station on Friday 16 May 2025, inter alia, I note the following on page 2 of the investigators report:

"Constable Legge states sometime later the claimant attended his local police station and was interviewed ,the interview was recorded on body worn video which was not available at the time of interview, the claimant stated that while driving he suffered from pre-existing medical condition as carpal tunnel syndrome which causes the muscles in his left arm and hand to seize effectively locking his left arm at a 90° angle causing his hand to clench around the steering wheel. Which has then allegedly, according to him, made him lose control the vehicle which is what's led him to go off the road, hit the ditch and that's what flipped his car, is what he told the police."

1. I note the following on page 2 of the statement, being a record of interview between the investigator and Senior Constable Legge:

"None the family members had actually seen the incident but then spoke to them about what they were doing out there today and that's-they'd come around the corner from where he had driven off from and then found him like that. Due to him complaining of his neck injury. I didn't really get to speak to him on the day because he obviously got pulled out of the car and put straight in an ambulance and taken to hospital. So again, I obviously spoke with family members and got a rough idea of what had happened."

1. I further note the following statement by the Senior Constable on Page 7 of the statement:

"Question, Can you think of anything else that might assist the insurer with their assessment of this claim

Answer I don't think so, like I said he passed all the testing like, for drug and alcohol that was passed when his blood was taken back at the hospital. He gave his version which is that he does have, like he does have, as in regard to his medical history, like he does have a medical history. So, like I said I can't you know, disprove his claim that he had a medical incident in regard to his carpal tunnel. That is possible. But like I said I do believe, in my opinion, that speed would have been a factor, but I can't say whether that was the cause of the incident."

Was the claimant wholly at fault in causing the accident?

1. I refer to the decision of Member Cassidy in the matter of Custovic v Allianz Australia Insurance Limited [2024] NSWPIC 605. 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 [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.

1. 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. I again, refer to the decision of Justice Mitchelmore in the case of 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. At the assessment conference a transcript was taken. I refer to page 13 as follows:

Ms McManus "Sorry, yes, his arm locked up at that present moment when he hit the ditch because he, that's what I meant to say. He said he hit, my arm locked up. I hit the ditch, and I was heading towards the creek, and I veered over to the other side of the road my sorry my explanation is not clear."

Member "OK all right and it is your statement, is it correct that you did not have any conversations with any of the first responders in that regard as to how the accident happened, is that correct?

Mr McManus The bloke who was in the vehicle with me for up to 80 minutes I spoke with him first and he asked me what had happened. I explained to him what had happened, but no statement was taken from him.

Member When you say explained to him what happened, what did you say to him?

Mr McManus, He asked me what had actually occurred, and I explained to him that I the road thing uneven at the time and hitting a ditch caused me to, my arm to lock up, then to lose control of the vehicle. He asked how I ended up on the other side of the road, I explained to him that I was heading for a creek, and I didn't want to drown so I put myself on the other side of the road which then ripped off my fuel lines and so forth from underneath my car."

Member, And your right arm? There were no issues with that, correct.

Mr McManus My right arm was tight, but I was trying to maintain control of the vehicle and trying to hang on to the vehicle

Member OK. Mr Ibanez, is there something arising from that?

Member And since this accident and because of the seriousness of this accident, you are now going to try and seek medical treatment to alleviate that condition, is that correct?

Mr McManus, I've already had that done, your Honour.

1. I note in the internal review decision of the insurer dated 1 September 2025, the insurer was not in possession of the report of Dr Gooley dated 1 February 2024. As stated above, this report confirms, prior to the accident, the claimant was suffering from cubital tunnel syndrome since March 2018.
2. I again refer to the statement of the claimant dated 13 February 2025 and in particular I note the following paragraphs:

"14. Every 12 months I receive a letter from Roads and Maritime Service in relation to a Fitness to Drive Request Notice. I have undertaken this process for approximately 10 years. The current medical conditions listed on the fitness to drive are, First seizure, post-traumatic stress disorder, anxiety, Sleep apnoea and a Personality disorder.

1. I am required to attend my local GP which is Dr Brett Gooley from the Blue Cross Health Precinct, located at 4/322 Kingsgrove Road, Kingsgrove, NSW 2208. My doctor is extremely tough and sometimes sends me to my epilepsy doctor or sleep apnoea doctor to obtain a clearance from them. Once my doctor is satisfied that I'm safe to drive, he completes (sic) the paperwork online. I undergo this process every 12 months.
2. I have not been involved in any other accidents as the driver."
3. At the time of the accident, the claimant was not required by Dr Gooley to disclose the cubital tunnel syndrome in response to the Fitness to Drive Request Notice. Subsequently, the claimant has had surgery to remedy his cubital tunnel syndrome which affects both his elbows.
4. I note Susan McManus, at the assessment conference, on page 16 of the transcript confirmed the claimant was cleared for driving by his doctor. I found Susan McManus a truthful witness and I accept her evidence as to the information provided by the claimant to her at the scene of the accident, that his left elbow seized, which caused his left arm to lock onto the steering wheel, which then resulted in him losing control of his vehicle on the gravel road. Susan McManus did state she thought it was his right arm, rather than the left arm, however, I determined this different recollection on her part does not alter the fact the claimant at the scene of the accident complained to her of suffering this medical episode.
5. I also accept the evidence of the claimant, and I found him to be truthful and candid when answering questions put to him by myself. Mr Ibanez, on behalf of the insurer, did not question the claimant at the assessment conference, but rather relied upon the documentation and submissions lodged on the portal by the insurer.
6. I accept the claimant was travelling at a low speed, at 40kmph, on this gravel road and I further find, prior to suffering this medical episode, he was driving in a cautious manner, having regard to the condition of the road and his familiarity with the surrounding area and the presence of horses in the area.
7. I note in both the ambulance report and in the discharge summary from Westmead Hospital there is no mention of a medical episode involving a cubital tunnel syndrome, and in such circumstances, I accept the insurer had some doubts regarding the veracity of the claimant's complaint that he had suffered a medical episode. However, I accept he did inform his mother and the first responder, who was in the vehicle with him at the scene of the accident, that such a medical episode had occurred. The medical episode suffered by the claimant was both unexpected and unforeseen.
8. The insurer bears the onus of proof but not satisfied me, on the information currently before the Personal Injury Commission (Commission), the claimant was wholly at fault.

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

1. As stated above, I determined the medical episode suffered by the claimant was both unexpected and unforeseen. I accept the claimant was travelling at a low speed, at 40kmph, on this gravel road and I further find prior to suffering this medical episode he was driving in a cautious manner having regard to the condition of the road and his familiarity with the surrounding area and the presence of horses in the area,
2. I further accept he did he informed his mother and the first responder that's such a medical episode had occurred.
3. Accordingly, I determined the claimant is not mostly at fault,

1. I find the accident of 25 January 2025 was not caused wholly by the fault of the claimant.
2. I find the accident of 25 January 2025 was not caused mostly by the fault of the claimant.

1. The claimant is self represented and therefore is not entitled to legal costs..

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

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

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

(c) effective date: this determination takes effect on 23 March 2026, and

(d) legal costs: the claimant is self represented and therefore is not entitled to legal costs.

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

(a) the MAI Act.

(b) Motor Accident Injuries Act Regulation 2017.

(c) Motor Accident Guidelines 2020, and

(d) Civil Liability Act 2002.