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

1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant.
2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant.

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

1. Lindsey Mellor-Langham was involved in a motor accident in the morning of 12 March 2024. She was driving to work in a rural or semi-rural area between Murwillumbah and the far north coast of New South Wales when she lost control of her car as she came round a bend in the road. She collided with a truck coming the other way and her car rebounded into the fence of one of the neighbouring properties.
2. Ms Mellor-Langham sustained serious injuries including multiple fractures to her right leg (fractured femur, broken patella and broken toe), two fractured ankles, and a degloving injury to her right arm. On or about 22 March 2024, Ms Mellor-Langham made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against QBE which is the insurer of Ms Mellor-Langham's vehicle.
3. QBE accepted the claim and has paid Ms Mellor-Langham statutory benefits for her treatment and lost wages.
4. The insurer issued a liability notice to the claimant on 12 December 2024 denying any liability to pay statutory benefits beyond the first 52 weeks after the accident, on the basis Ms Mellor-Langham was "wholly or mostly at fault". The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. In a decision dated 14 January 2025 the insurer affirmed its decision again asserting the claimant was "wholly or mostly at fault".
5. Ms Mellor-Langham referred the issue of whether she is wholly or mostly at fault to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
6. The proceedings have been allocated to me. I held two preliminary conferences with the parties and took evidence from the claimant on both occasions.

1. Statutory benefits payable under Part 3 of the MAI Act include weekly income replacement benefits pursuant to Division 3.3 and treatment and care benefits pursuant to Division 3.4.
2. Under section 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. However pursuant to sections 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 section 1.6) or if the injured person was wholly or mostly at fault for causing the accident. There is no issue in this case about the claimant's injuries. With multiple fractures, Ms Mellor-Langham has multiple non-threshold injuries. Therefore, if she is found not to be wholly or mostly at fault, her statutory benefits will continue.
3. While there is no definition of "wholly at fault" in sections 3.11 and 3.28, 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%.
4. Schedule 2, clauses 3(d) and (e) provide the Commission with power to determine whether

Ms Mellor-Langham is wholly or mostly at fault.[1]

INSURER'S DECISIONS, PARTIES' SUBMISSIONS AND PROCEDURAL MATTERS

1. The insurer's notice denying liability for benefits after 52 weeks[2] says:

"I have determined that you were wholly or mostly at fault for the accident as we have considered the accident circumstances and maintain that you are wholly at fault for the subject accident for failing to drive to the prevailing road conditions and failing to maintain control of your vehicle."

1. Ms Mellor-Langham requested an internal review by email dated 30 December 2024 on the basis that she required more surgery which would put her out of work for longer and she needed physiotherapy. She wanted the 52-week period extended "if possible".
2. The insurer's internal review was dated 14 January 2025. QBE's reasons for denying the claimant's ongoing entitlements include the following:

(a) in the claim form the claimant identified her own vehicle as the "most at fault" vehicle;

(b) the ambulance report describes the corner where the accident occurred as a "blind corner";

(c) police and ambulance describe the road surface as wet;

(d) the insurer notes the claimant was issued with a fine by the police, but the insurer did not have a copy of it or details of whether it was paid or disputed;

(e) the claimant had suggested there was an oily film on the road. The insurer said:

(i) there was no indication the oil came from another vehicle which would "suggest negligence by another";

(ii) noted that police and ambulance do not refer to oil on the road, and

(iii) that "your description of an oily film is more likely a consequence of the rain encountering the road's surface",

(f) the claimant was not in control of her vehicle leading up to the accident which is a breach of the New South Wales Road Rule 297(1).

1. The insurer says the claimant was wholly or mostly at fault stating:

"I find on the balance of probabilities that you did not drive to the prevailing wet weather road conditions whilst navigating the bend thus causing your vehicle to veer to the wrong side of the road and collide with another vehicle and a fence."

1. The claimant did not file submissions with her application for assessment but did indicate in the application form that she now had the documentation the insurer did not have that is the infringement notice and the correspondence with the police in relation to it.
2. Ms Mellor-Langham included in her bundle an email she sent to the insurer's internal review team on 6 January 2025 which includes the following information:

(a) she acknowledges she was fined by police but that they told her "I wasn't doing anything dangerous" and that she was fined because "whoever is above him...said he had to fine me";

(b) the police officer "showed me how to fight the fine";

(c) there have been 15 accidents in 18 years at the same spot where her accident took place, and

(d) she was not speeding and that there was a bit of water and oil slick on the road.

1. The insurer says at [17] that there is no evidence of an oily film on the roadway and that neither police nor ambulance refer to oil on the roadway.
2. The insurer says at [18] the evidence supports a finding that the claimant failed to operate her vehicle to the prevailing conditions while navigating a bend at 65kmph and that as a result she crossed onto the incorrect side of the road and collided with an oncoming truck.

1. Ms Mellor-Langham agreed that there was no fault on the part of the driver of the truck that her vehicle collided with.
2. I asked Ms Mellor-Langham a few questions about the speed she was driving and referred to the footage and photographs of various signs before where her accident occurred. I asked her whether those signs were there at the time of the accident or whether they had been installed after her accident, but she did not know. I gave her the example of a decision concerning road design and signage[3] and suggested she may wish to make enquiries about when the signage was erected.
3. The claimant also said she has spoken to a lawyer but was told she would have to pay costs if she lost. I drew her attention to provisions in the MAI Act concerning who pays costs for disputes in a statutory benefits claim and deferred my determination to enable the claimant to consider her position.

1. The claimant said she had tried to get a lawyer to assist her but was unable to find anyone to take her case.
2. The claimant had no further evidence or information about when the signage was installed. I discussed with the parties that the photographs taken on the day of the accident by QBE's insured show the black and gold chevron alignment marker signs. These were in place along the curve of the road on the opposite side of the road to the claimant's path of travel, but which would have been visible to her as she drove into the corner. I also provided the parties with copies of a Google image of the road showing the speed advisory sign in place and that this image suggested it was captured by Google in October 2022. The parties did not dispute the date or the location of the photograph and I have proceeded on the basis that the signage present on the day of the accident included the speed advisory sign and the chevron alignment markers.
3. The insurer advised it had requested a report from its investigators which had not yet been received due to delays interviewing the police officer. Directions were issued to the insurer to serve the report, and a timetable was set for the provision of these reasons.
4. On 1 May 2025 the claimant contacted the Commission to advise she had received the final Brooksight report. She made further comments about her case which have been considered.

1. The claimant provided a copy of the ambulance report which includes the following information about the damage to the claimant's car:

"Small hatchback into fence with damage to multiple wheels, major deformity to bonnet with intrusion into cab, greater than 30 cms. [Patient] trapped by compression in front driver seat by [bilateral] thighs. Air bag deployment."

1. The report also notes that an ambulance officer was making the scene safe as it occurred on a blind corner, the road surface was wet, and police had not yet arrived.
2. The ambulance had attended before 7.00am and the claimant was extricated and taken by air ambulance to Gold Coast Hospital.
3. The claimant also provided a copy of the police report completed by Senior Constable Rimmer of the Tweed/Byron Highway Patrol. The report includes the following information:

(a) the accident occurred on Clothiers Creek Road which is a local road;

(b) the road was sealed, level but curved;

(c) the weather was overcast, and the road surface was wet;

(d) there was natural light (dawn);

(e) the speed limit was said to be 65kmph;

(f) the claimant's vehicle was noted as a Honda Jazz sedan 2008 model and the claimant was said to be driving at 65kmph, and

(g) the other vehicle was noted to be a Mercedes "motor-cycle" although later it was described as a "heavy rigid truck" which sustained damage to its bonnet and was also travelling at 65kmph.

"As driver one [the claimant] approached the 30-degree bend on Clothiers Creek Road ... driver one lost control of vehicle one, in doing so, vehicle one crossed onto the incorrect side of the road and collided with vehicle 2."

(a) the penalty notice issued by the police for "negligent driving (no death or grievous bodily harm)" in the sum of $514;

(b) a screen shot from her phone showing she has no demerit points;

(c) a request for review of the fine which was made to the police due to her good driving record, that she was not doing anything wrong and that she has gone through so much with her injuries, and

(d) a letter from NSW revenue dated 30 May 2024 at the conclusion of the investigations saying the fine still applies:

"We acknowledge your comments that you did not do anything wrong. The issuing officer considered the circumstances such as road, weather and traffic conditions, together with statements that were made and decided it was appropriate to issue a fine."

1. The claimant has provided a copy of a certificate of fitness completed by Dr Dawson which was dated 11 March 2025. The claimant was said to be unfit for any form of work. It is noted the claimant was under the care of specialists and having rehabilitation including physiotherapy. She had surgery on 18 December 2024 to remove hardware in the leg and was having counselling. The claimant was said to be struggling and was in "considerable mental health distress".
2. The claimant provided a letter from her physiotherapist following the final treatment session (due to the claim being closed). While the physio acknowledged improvement in Ms Mellor-Langham's condition, she noted the claimant had not made a complete recovery and she had functional limitations which would affect her employment. She noted the claimant had been given a home exercise program but being "cut off from her current treatment services will have a significant impairment to her overall function and abilities".
3. The claimant advised the Commission that she is due to have further surgery to her leg on 22 May 2025. She has also advised the Commission that the lack of financial support including financial support concerned with her treatment is affecting her mental health.

1. The claimant provided on 19 March 2025 a screen shot from her phone which says:

We have lived here at [xxx][4] Clothiers Creek Rd for 18 years and in that time, there have been numerous accidents out the front of our home. (We are not sure how many). We know the road and particularly that corner where the accident ... occurred is dangerous. We have made the council aware of this in the past. Kind regards [xxx]."

1. It was that evidence that prompted me to ask the claimant to make enquiries as to when that signage had been installed. I was concerned that if the signage had been erected after the claimant's accident in response to the accident that might be evidence of a substantial contributing factor to the cause of the accident.
2. Brooksight Investigations provided a report to the insurer dated 29 April 2025.
3. The report includes a statement provided by the truck driver taken on 22 March 2025.[5]
4. He says he is an experienced truck and motor car driver. He says the accident occurred at dawn or the approach to daylight. He was driving a new and unregistered truck which was being delivered. The truck was towed from the scene due to damage to its front. The airbags did not go off.
5. The driver says he was travelling at 65kmph and that Ms Mellor-Langham's car came across onto his side of the road and caused the accident.
6. He could not estimate the speed of the claimant's car and that "I never saw the other car involved until a millisecond prior to impact and I never even had time to brake".
7. He refers to a photograph and a gouge mark in the road where he says was the point of impact. He had taken other photos.
8. He says he was approaching a right-hand bend and the other car was coming out of a left bend.
9. He says the weather was overcast and while it had been drizzling earlier the rain had stopped but the road was still wet. He also says:

"The road was a sealed tarred road and there were no obstructions on the road, no fallen trees and or any debris where this happened as clearly shown in my scene photos.

I did not see any oil and or liquids or any large amount of leaves on the roadway near where this accident occurred that may have contributed to the Claimant losing control of her vehicle. Again, this is clear through the photos I have provided."

1. He says his truck leaked radiator fluid after the impact.
2. He was shocked because the claimant's car had come out of nowhere. He said after the accident he got out of his vehicle, someone came to check on him and two people from the houses went to the claimant.
3. He says the cause of the accident was the claimant losing control of her vehicle when rounding the bend and she came onto his side of the road and hit the front of his truck.
4. The insurer's investigator also interviewed Senior Constable Rimmer on 17 April 2025. The transcript of the interview includes these details:

(a) the Constable has been a police officer for eight years and on highway patrol for four;

(b) the speed limit on Clothiers Creek Road was 80kmph;

(c) the accident occurred on a corner with a house on the left and another house and garages on the right;

(d) the area is a rural farm area;

(e) the road was wet;

(f) the impact between the vehicle occurred on the truck's side of the road and he "was pretty much stopped perfectly on the road";

(g) he read out his report (as stated in the police report document);

(h) he took a statement from the claimant on 11 May 2024 (two months after the accident);

(i) he examined the claimant's car after the accident, and it appeared to be roadworthy;

(j) he thought there were no speed advisory signs;

(k) the investigator suggested to the police officer (at question 119) that he had spoken to the neighbours and been told "there's been a few accidents down there" and the police officer agreed with that, and

(l) the police officer says (at 143) that he "sort of worded her up" telling her she was going to get a ticket because the police handbook says he has to give her a ticket, but that she should write in "to maybe get off it."

1. The insurer's investigator asked the police officer how he thought the accident took place and from question 149 on he says:

"I could clearly see the point of impact was on the incorrect side of the road [149];

And, obviously because of the weather conditions. She is familiar with the area [150];

... the conclusion being that she's gone on the wrong side of the road. Whether that is due to speed, or whether she wasn't driving to the conditions, or she was speeding, and so hence the neg drive ticket.[153]

And probably the road, the actual - the position of the road. Obviously that sort of - bit of a - because it is a bit of a tight dog - well it's not that tight but it's a bit of a dog leg in the road. [157]"

1. Photograph 1, shows the black and yellow speed advisory sign in three parts:

(a) the left-hand curve is shown at the top;

(b) 35 kmph is underneath that, and

(c) at the bottom is a red and white sign that says, "reduce speed".

1. That sign is said to be 140m before the impact.
2. The Brooksight investigator took two short videos from a dashboard camera. One showed the approach to where the accident occurred from the position of the truck driver and the other was the claimant's view. In addition to the speed advisory sign there were three or four black and yellow chevron alignment markers on the opposite side of the road spaced around the curve and which appeared clearly visible.
3. There are several photographs provided by the truck driver:

(a) Photograph 1 shows the wet road, double white lines and on the right a chevron alignment marker sign;

(b) Photograph 4 shows the lane the claimant was travelling in and there is virtually no leaf matter on the road that I can see;

(c) Photograph 5 shows the claimant's car in the fence further down the road and the truck and there are almost no leaves on the road between the two vehicles;

(d) Photograph 6 shows the back of the truck and the side of the road where the claimant had come from. While there are some leaves on the road, there are not many leaves;

(e) Photograph 10 shows the road with the lights from ambulance reflecting off the road surface;

(f) Photograph 12 shows a view looking east showing what appear to be small puddles of water near the double white lines and patches of what appears to be smoother possibly patched asphalt on the southern side of the road;

(g) Photographs 14 and 15 show a gouge mark in the road which the other driver says is the point of impact between the two vehicles. It is on the truck driver's side of the road, not the claimant's side, and

(h) Photographs 19 and 20 show the claimant's tyres.

1. The brief circumstances of the accident as set out in Ms Mellor-Langham's 22 March 2024 claim form are as follows:

"Heading towards the coast, along Clothiers Creek Road. The road was wet from recent rain, oily film on road. Taking a corner, the car slid or skidded to the other side of the road, into the oncoming truck. On impact the car was pushed across the road, into a fence."

1. The claimant's evidence to the police officer on 11 May 2024[6] was that:

"I was driving my car on Clothiers Creek Road towards Casuarina. I was going around a left-hand ben near the tea farms when I lost control of my vehicle ... it felt like my car had - I fish-tailed a little bit before I slid across, onto the other side of the road."

1. Ms Mellor-Langham said the road "was wet and I could see an oil-like film on the road". She says she was driving at 60 - 65kmph.
2. In an email to QBE on 6 January 2025 the claimant said:

"Even though I was done for at fault, the cop / highway patrol said to me I wasn't doing any thing dangerous and the only reason I got the at fault was [because of] whoever is above him ... said he had to fine me. He even showed me how to fight the fine.

There's been 15 accidents in 18 years in the exact spot mine was in.

There was a bit of water and oil slick on the road."

1. At the first preliminary conference, Ms Mellor-Langham clarified a few things:

(a) she made no allegation of any fault on the part of the truck driver. He just happened to be there and there was nothing he that caused or contributed to the accident;

(b) she does not say there was an oil spill on the road, but there was an oily film on the road as result of rain and possibly leaf debris;

(c) the police report said she was driving at 65kmph. She did not think her speed was that high and she thought she was driving more like 60kmph, but she was not entirely sure;

(d) the police report that says the speed limit on the road is 65kmph is likely incorrect as the speed limit is 80kmph, and

(e) she knows this because she is familiar with the road and drives it almost every day.

1. At the second preliminary conference, Ms Mellor-Langham said:

(a) she was not speeding, she was driving under the 80kmph speed limit;

(b) she was driving a roadworthy car which she services regularly;

(c) she checks the tyres;

(d) she did not intend to lose control of her car, it was an accident;

(e) there was an oily film and leaf matter on the road, and

(f) the neighbours have reported the road can be like ice when it's wet and they have to walk on it.

1. In an email to the Commission dated 2 May 2025, the claimant said:

"I myself saw an oil film on the road in the split second before the accident. I ask that you please take that into consideration as I've said I saw the film from the start, and I still stand by that."

1. The claimant concedes that she lost control of her vehicle as she rounded the corner and that is what caused her accident.
2. In explaining why she lost control, Ms Mellor-Langham has raised a number of issues with the insurer in her request for an internal review. She raised these and other issues at the two preliminary conferences held with me and she has made further points in several messages sent to the Commission. All of her arguments can be summarised as follows:

(a) she did not intend to have an accident;

(b) she was driving within the speed limit;

(c) she was driving a roadworthy car, and the property damage insurer paid her claim;

(d) she was fined by the police but with reluctance from the constable and only because his superior made him do it;

(e) there was an oily film on the road combined with rain that had fallen earlier which caused the road to be slippery;

(f) there was leaf matter on the road surface which also may have caused the road to be slippery, and

(g) there had been other accidents at the same place and the residents have said the road is slippery to walk across.

1. The decision in Insurance Australia Limited t/as NRMA v Richards[7] establishes that the onus of proof, in satisfying me whether the claimant is "wholly or mostly at fault", lies with the insurer.
2. Ms Mellor-Langham was asked questions during the preliminary conferences, and she has answered them in a forthright manner. She has been co-operative and helpful throughout. She was clearly emotional at times and struggled to understand the legislation and some of the insurer's actions.
3. The claimant has represented herself in these proceedings and she has limited knowledge of the legislation and the processes and procedures of the Commission. I have therefore given her some latitude in the way she has presented her case. For example, the material provided by the neighbour was provided as a screen shot from a message sent on a telephone and was not in a formal signed statement or statutory declaration. However, as this evidence is consistent with the insurer's own investigator's enquiries, I have accepted it.
4. I am required to make a decision based on logical and probative evidence. I am required to follow the law written in the legislation (the MAI Act) and the guidance of the courts. The High Court has made it clear that any inferences that a decision maker draws must be reasonably open to them on the facts (Australian Broadcasting Tribunal v Bond).[8] The claimant's evidence about the oily film or sheen on the road and the slipperiness of the road is, in my view one of these such inferences. There is no expert evidence led by the insurer about the state of the road however the insurer suggested in its internal review decision that the oily film on the road was likely to be the result of the interaction of rain on the road's surface. This accords with my own years of experience as a driver.
5. The insurer has provided photographs including those taken by the other driver on the day of the accident. Appellate courts in cases such as Blacktown City Council v Hocking [2008] NSWCA 144 have issued warnings to first instance decision makers as to how photographs are to be used in the absence of expert evidence. In the absence of any expert evidence, I have considered the photographs and what they show in making my decision, in particular in relation to the subject of leaf matter or debris on the road.

(a) the accident occurred on 12 March 2024 at about 6.30am. It had been raining earlier but it was not raining at the time of the accident. These findings are made based on the claimant's claim form, the police records and the evidence the claimant gave at the preliminary conferences;

(b) there have been other accidents on this part of the road. This finding is made on the basis of the evidence obtained by the claimant from a long-term resident of one property near where the accident occurred. This is supported by the information obtained by the insurer's investigator. The claimant said in an email to the insurer that there had been 15 previous accidents in 18 years. The claimant has provided no evidence to support this number of accidents at the precise location. In the absence of any evidence about these other accidents I am not prepared to draw an inference and find that the way the road was built or designed had anything to do with the accident;

(c) the claimant was driving a roadworthy car. I make this finding on the basis of the claimant's evidence, the opinion of the police officer and in the absence of any expert or other evidence from the insurer to suggest otherwise;

(d) there may have been some leaf matter on the road at the time of the accident but there was no significant leaf or other debris on the road. I make this finding on the basis of the evidence of the truck driver and the photographs he has taken from the day of the accident;

(e) there was an oily film on the road but not an oil spill. The claimant's evidence has been consistent on this point. She stated in her claim form there was an oily film on the road, she told the insurer this in an email, she gave a statement to the police that mentions it and she told me about it at both of the preliminary conferences;

(f) the road was slippery - Ms Mellor-Langham has said the road was slippery and that was what caused her to lose control of her car. The insurer has led no evidence lay or expert to the contrary;

(g) the claimant saw the oily film on the road in the moments before she lost control of her car. I make that finding on the basis of the claimant's 2 May 2025 message to the Commission;

(h) the speed limit along Clothiers Creek Road was 80kmph. This finding is made on the basis of the claimant's evidence, the insurer's investigation report and the police officer's evidence;

(i) there was a speed advisory sign about 140m before the corner where the accident occurred and that this sign was in place at the time of the accident. I make this finding based on the investigator's film and photograph and the date stamp on the google map photo which was put to the parties but not challenged;

(j) the curve in the road where the accident happened was not a gentle curve in the road but was a blind or dog leg corner. I make this finding on the basis of the ambulance and police evidence, the photographs and because there were three or four Chevron alignment markers in place at the time highlighting the angle of the curve. The insurer's investigator's video and the truck driver's photographs from the day of the accident also show the degree of the curve;

(k) the claimant was driving at 60 - 65km as she drove into the corner before the accident occurred. This finding is made on the basis of the claimant's evidence about her speed which has not been challenged by the insurer, and

(l) there was nothing the truck driver did that caused or contributed to the accident.

What is the approach to a dispute about fault in a statutory benefits claim?

1. Sections 3.11 and 3.28 of the MAI Act are in similar terms. Section 3.11 says in respect of weekly statutory benefit:

"(1) An injured person is not entitled to statutory benefits ... for treatment and care expenses incurred more than 52 weeks after the motor accident concerned if -

(a) the motor accident was caused wholly or mostly by the fault of the person[9], ...

(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%."

1. The claimant has submitted that while she was charged with negligent driving by the police, the police said she had not done anything really dangerous, that she was charged because the police manual said she had to be charge and that she was given advice about how to fight the charge. The action taken by police is evidence in this case, but the police action taken does not determine whether Ms Mellor-Langham is wholly or mostly at fault under the MAI Act.
2. The claimant has submitted that her property damage insurer paid out the claim she made against it. In my experience the policy of insurance relevant to a property damage claim is in very different terms to the statutory[10] third party personal injury (Greenslip) policy of insurance issued by QBE. Any decision made by the property damage insurer is evidence in this case but does not determine whether Ms Mellor-Langham is wholly or mostly at fault under the MAI Act.
3. Justice Mitchelmore in AAI Limited t/as GIO v Evic[11] considered sections 3.11 and 3.28. As a decision of a Judge of the Supreme Court of NSW I am bound to follow the principles established by that decision which can be summarised as follows:

(a) an injured person's entitlement to benefits "does not depend on establishing the fault of a person ..." An injured person such as Ms Mellor-Langham therefore does not need to prove anyone else was negligent or at fault for the motor accident, in order to obtain benefits under Part 3 [55];

(b) statutory benefits cease pursuant to sections 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 ... contributory negligence". Ms Mellor-Langham's benefits will continue if she is not wholly or mostly at fault but cannot continue if she is [56];

(c) sections 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 cause of the accident and accommodates "all types of motor accidents including single vehicle accidents where the injured person is the owner driver" [57];

(d) section 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of the Civil Liability Act 2002. The test for negligence and contributory negligence in section 5R(2)(a) of that Act is "the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person" [60];

(e) where there is more than one motor vehicle involved, sections 3.11 and 3.28 requires the claimant's contributory negligence to be determined by apportioning the culpability or responsibility between the two drivers. In this case there is no culpability or responsibility on the part of the truck driver, he just happened to be in the path of Ms Mellor-Langham's car after she lost control of it, and

(f) in a single vehicle motor accident in which the claimant is both the owner and driver, contributory negligence for the motor accident can still apply. Because there is no one to measure the claimant's conduct against, contributory negligence is assessed by considering the degree of Ms Mellor-Langham's departure from the standard of care they are required to observe in the interests of their own safety.

(a) whether Ms Mellor-Langham has contributed to the cause of the accident. I do that by deciding whether she has departed from the standard of care identified in point (d) of the paragraph above, that is whether she has acted as a reasonable person in her position would have acted, and

(b) if I find there is some contribution from her to the cause of the accident then I have to determine the degree of her contribution. In deciding this I must consider how far she has departed from that standard of care.

Has the claimant contributed to the cause of the accident?

1. Ms Mellor-Langham says she did not intend to have an accident on 12 March 2024. While some people do deliberately cause accidents intending to harm either themselves or others, most accidents are simply that, accidents, often caused by a minor slip or omission and sometimes caused by gross negligence or extreme recklessness.
2. There is no dispute that the accident occurred because the claimant lost control of her own car as she went round a corner. Why she lost control of her car has to be determined.
3. Ms Mellor-Langham was driving a roadworthy car and there is no evidence from the insurer to suggest the state of her car had anything to do with this accident.
4. Ms Mellor-Langham was driving on a road which had a left-hand curve, described by the ambulance officers as a blind corner and by the police officer as a 30-degree curve or a dog leg curve.
5. The claimant was driving on a wet road after rain and there was an oily film on the road which she had seen moments before she lost control.
6. There was no significant leaf matter on the roadway or debris that has contributed to the accident. Even if there was significant leaf matter on the road, I cannot draw an inference that this would have had something to do with the accident. That would require expert opinion to satisfy me that leaf matter on a road which may result in the road being "like ice" for a person crossing, would also cause issues for a two-tonne motor vehicle.
7. I have found that there was an oily sheen or film on the road following recent rain which is the reason the claimant says she lost control and which the insurer says is the likely cause of her accident. The insurer has led no expert evidence to the contrary and I am satisfied on the claimant's evidence that the road was slippery, and this is contributed to her losing control.
8. The claimant was driving within the overall speed limit (80kmph) however at 60 - 65kmph, she was not driving according to the speed advisory sign (35kmph) which was the speed recommended by road authorities for the safe navigation of the curve. I am satisfied that the claimant's speed has contributed to her losing control of her motor vehicle.
9. I am therefore satisfied that the manner of Ms Mellor-Langham's driving combined with the state of the road (slippery and wet) contributed to the cause of the accident.

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

1. A speed advisory sign is not a speed limit sign. It is a recommended maximum speed at which a motorist can safely drive through a curve, bend or crest in the road. It provides a suggested speed for average motor cars driving in good conditions. If there are adverse conditions such as rain or water on the road, fog or smoke in the air, safe driving suggests an even lower speed.
2. The 35kmph speed advisory sign on Clothiers Road was accompanied by a warning sign in red and white to "reduce speed".
3. The claimant was, on her own evidence, driving below the speed limit but driving above the recommended speed and in poor conditions (a wet road). Ms Mellor-Langham lost control because in my view she was not driving at an appropriate speed for the prevailing conditions. In my view a reasonable person in the position of the claimant, would have navigated the corner on Clothiers Creek Road at the recommended speed of 35kmph and probably less because of the condition of the road (wet). A reasonable person in the position of the claimant would not have driven around that corner on that day with a wet road at 60 - 65 kmph.
4. It follows then that the claimant has departed from the standard of care she should have observed in order to ensure her own safety.
5. Having driven at a speed which was too fast for the corner, the claimant deprived herself of the opportunity of seeing the oily film or sheen on the road in time to take precautions such as adjusting her speed accordingly.
6. What is the degree of Ms Mellor-Langham's departure from the standard of care? Most of the court decisions that provide guidance on the assessment of contributory negligence involve situations where there are two contributing parties such as the drivers of two motor vehicles at an intersection. The assessment of contributory negligence, where there is only one contributing party, has occurred in a handful of cases under the previous compensation scheme. The 14-year-old claimant ran out from behind a bus into the side of a car driving below the speed limit had his damages reduced by 50%.[12] A person acting reasonably who stepped backwards off a median strip without looking into the path of a motor vehicle being driven at or below the speed limit was assessed at 80%.[13] The intoxicated pedestrian walking along the left side of an unlit road late at night (with traffic coming from behind him) had his damages reduced by 50%.[14]
7. While I accept there was no wilfulness in the manner Ms Mellor-Langham drove, she has contributed to her accident to a significant degree. In my view the claimant's contributory negligence should be assessed at 70%.

1. As I have found the claimant contributed to her accident and the degree of her contribution is 70%, it follows therefore that she is mostly at fault and her statutory benefits should cease in accordance with sections 3.11 and 3.28 of the legislation.

[1] Schedule 2, cl 3(d) applies to weekly benefits and Schedule 2, cl 3(e) concerns treatment and care benefits.

[2] The notice was sent by email and is undated.

[3] MacMahon v Insurance Australia Limited t/as NRMA Insurance [2021] NSWPIC 427.

[4] The street number and name of the person provided this information was given but for privacy reasons it is not necessary to include them in these reasons.

[5] While his name and details are known, for privacy reasons, there is no necessity to include his details in these reasons.

[6] Read out and transcribed in the Brooksight Investigations report.

[7] [2023] NSWSC 909 at [45].

[8] (1990) HCA 33 at [367].

[9] Section 3.28(1)(a) adds the words "and the person is over 16 years of age at the time of the motor accident" to create an ongoing entitlement to statutory benefits for treatment and care expenses for children.

[10] See section 2.3 of the MAI Act for the terms of the policy.

[11] [2024] NSWSC 1272.

[12] Axiak by her next friend Anixak v Ingram [2012] NSWCA 311. The age of the claimant was a factor in the finding of the degree of her contributory negligence.

[13] Davis v Swift [2014] NSWCA 458.

[14] Serrao (by his tutor Serrao) v Cornelius [2016] NSWCA 231. There were mitigating factors including that the claimant had ordered a taxi which had not turned up and he had "no choice" but to walk.