1. For the purposes of s 3.11 of the Motor Accident Injuries Act 2017 the motor accident on

5 July 2024 was not caused wholly or mostly by the fault of Mr Newell. 2. For the purposes of s 3.28 of the Motor Accident Injuries Act 2017 the motor accident on

5 July 2024 was not caused wholly or mostly by the fault of Mr Newell. 3. A statement of my reasons for this determination is attached to this certificate.

1. Robert Newell (claimant) was injured in a single vehicle motor accident at Cooranbong on

5 July 2024 (accident). He subsequently made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on Allianz Australia Insurance Limited (insurer). 2. Liability for the first 52 weeks after the accident was admitted. The insurer denied liability thereafter on the basis that the accident was caused wholly by the claimant's fault: ss 3.11(1)(a) and 3.28(1)(a) MAI Act. 3. The claimant disputes the accident was caused wholly or mostly by his fault and has referred the dispute to the Personal Injury Commission (Commission) for assessment. The dispute encompasses two discrete disputes, each of which is a miscellaneous claims assessment matter: Sch 2 cl 3(d) and (e) MAI Act.

1. At the preliminary conference held on 1 July 2025 the claimant was given leave to issue a direction for production on NSW Police. On 15 September 2025 the parties were directed to file a joint bundle and updated submissions. The parties agreed the proceedings could be determined on the papers.

1. Having considered both s 52 of the Personal Injury Commission Act 2020 (PIC Act) and Procedural Direction PIC2, I have concluded the proceedings can be determined on the papers. I am satisfied that sufficient information is available to allow me to determine the proceedings without holding a formal hearing.

1. An injured person is not entitled to statutory benefits under Part 3 of the MAI Act more than 52 weeks after the motor accident concerned if the accident was caused wholly or mostly by the fault of the person: ss 3.11(1)(a) and 3.28(1)(a).
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 s 3.38, was greater than 61%: ss 3.11(2) and 3.28(2) of the MAI Act.
3. 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 and are concerned with contributory negligence not for the injury, but for the motor accident, in a manner that accommodates all types of motor accidents: AAI Limited t/as GIO v Evic [2024] NSWSC 1272 (Evic) at [57].
4. The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies: s 3.38(1).
5. If a finding of contributory negligence is made, it is to be assessed as a percentage that reflects what the Commission determines is just and equitable in the circumstances of the case, none of the circumstances referred to in s 3.38(2) being relevant, and there being no percentage fixed by the regulations: s 3.38(3)(c).
6. The enacted law includes Div 8 of Pt 1A of the Civil Liability Act 2002 (CL Act). Section 5R(1) of the CL Act provides that the principles that apply in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. Section 5R(2)(a) provides that, for that purpose, the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person.
7. The burden of proving the accident was caused wholly or mostly by the fault of the claimant lies with the insurer. It is for the insurer to lead evidence which not only establishes the basis of its decision in relation to the claimed statutory benefits, but also persuades the Commission that on all of the evidence, it can be concluded the accident was caused wholly or mostly by the fault of the claimant: Insurance Australia Limited t/as NRMA v Richards [2023] NSWSC 909 (Richards) at [45], [55] and [67].

1. The evidence relied on by the parties is contained in a joint bundle filed on 30 September 2025.

1. NSW Ambulance personnel attended the scene of the accident at 6:15am, prior to police arriving. The ambulance report dated 5 July 2024 includes a "case description" that describes the scene and the claimant's presentation. The report does not contain any details about the circumstances in which the accident occurred, merely referring to "MVA car v tree".

1. The claimant was admitted to John Hunter Hospital at 7:42am on 5 July 2024. The hospital records document the claimant's injuries and treatment. There are references in the notes to the claimant travelling at 90kmph[1] and 100 kmph[2]. Other than the references to speed and the claimant's vehicle hitting a tree, there are no details recorded about the circumstances in which the accident occurred.

1. NSW Police have produced documents in response to a direction for production. The material produced includes Senior Constable Jenkins' notebook and the COPS report. The narrative in the COPS report, created by Senior Constable Jenkins, includes the following:

"[The claimant]...drove...in a northerly direction upon Freemans Drive Cooranbong.

This section of Freemans Drive runs in a north to south direction divided by double white lines. It is clearly sign-posted 90kmph zone.

Driver 1 whilst travelling at a speed of about 85kmph has left the roadway and collided with a large tree causing damage to the front end of the motor vehicle. The force of the collision has caused the rear windscreen of the hatch door to smash.

Witness Bradley COOK travelling behind DRIVER 1 stated that speed was not an issue. Witness states that DRIVER 1 did swerve earlier along the roadway however the witness believes that he had swerved to miss a pot hole."

1. An entry in the COPS report created on 4 August 2024 contains the version of the accident given by the claimant that day. The report records it is anticipated no further police action will be taken against the claimant in relation to the accident.
2. The report includes a site diagram depicting the path of the claimant's vehicle from the roadway into a tree.
3. The police report dated 15 August 2024 contains a condensed version of the COPS report, including the narrative.

1. In his application for personal injury benefits (claim form) dated 15 July 2024 the claimant provided the following description of the accident:

"In the morning approx. 5:55 am, the accident happened quickly. I went into a tree but believe a kangaroo was involved."

1. The claimant gave the following version of the accident to Senior Constable Jenkins on 4 August 2024:

"...Newell states that he has limited memory of the collision stating he remembers travelling along Freeman's Drive on his way to work as he usually does. He recalls a flash of a large kangaroo and that everything just went black. He does not recall any other details..."

1. On 2 September 2024 the claimant was interviewed by an investigator instructed by the insurer. Relevantly, the claimant stated:

(a) he has been driving since 1981;

(b) he has not had any accidents in the 20 years he has been in Australia;

(c) prior to the accident he did not have any injuries or illnesses and was "a healthy guy";

(d) he was "fine to drive on that day" and had "no physical defects";

(e) he wears prescription glasses and was wearing them at the time of the accident;

(f) he has not been convicted of a driving offence and has not had his license suspended or cancelled;

(g) he had not consumed drugs or alcohol in the 24 hours before the accident, and

(h) the vehicle he was driving at the time of the accident "was in really good condition".

1. The claimant stated the accident occurred at approximately 5.55am about 3km north of Cooranbong on Freemans Drive. He was heading north towards Kurri Kurri on his way to work. The accident occurred on a straight stretch of road after a left-hand bend, after he had been driving for approximately 10 minutes before the accident occurred.
2. On the morning of the accident the claimant had woken up at 4.30am. He had a coffee and breakfast. He has the same routine every morning. He had been driving the same route to work since 2008.

1. The claimant described the events immediately before the accident as follows:

"...to the best of my knowledge the weather was good. It wasn't raining. The roads were slightly damp. A little bit misty. That part of the section of road it is unlighted. You can get dazzled by cars coming down from the opposite direction which you normally do so you don't look ahead, you just look directly at the road, until you get to the top of the hill. I saw a flash from my right hand side and it looked like a roo and the next thing I know I was just into a tree which I don't remember hitting. And I woke up in the ICU..."

1. The claimant stated that he thought the flash he saw was from a moving object and that he was "pretty sure it's a big roo". The claimant agreed the area is "quite rural" and that it was "heavy bushland". He had seen kangaroos in that area before but "not as big as this fellow".
2. The claimant also stated that he would normally see wallabies on the side of the road and "a lot of road kill along that road". He had previously experienced a wallaby running into the front of his car "on the same road but another fifteen kilometres further up."
3. The claimant told the investigator that he thought he had hit the kangaroo he saw; he remembered hearing a "large bang". He had no recollection of events after colliding with the kangaroo until he woke in hospital. He did not recall a vehicle travelling behind him before the accident but did remember there being two vehicles a kilometre and a half in front of him.
4. The claimant stated the sign-posted speed limit was 90kmph and that he had set his cruise control to 87kmph. He recalled it being dark and that it wasn't raining. He was relying on his headlight to illuminate the road. It was misty but the visibility was good.

1. The claimant gave a statement dated 27 May 2025. He stated he was not formally interviewed by police in relation to the accident. He spoke to Senior Constable Jenkins by telephone whilst in Toronto Private Hospital. The call was short in duration. No details of what was discussed are provided. The claimant confirms he was interviewed by an investigator appointed by the insurer on 2 September 2024.
2. The claimant states the accident occurred when he was driving on Freemans Drive on his way to work. He knew the road well, having travelled the same route at least five days a week since 2008.
3. The claimant states his usual routine is to go to bed no later than 8.30pm. He wakes at 4.30am. He leaves home between 5.40am - 5.45am. He starts work at 6.30am. The trip is 34km and he usually arrives at work at least 10 - 15 minutes before his shift commences.

1. The claimant states that before leaving for work he has breakfast and a cup of coffee. He states that his role involves attendance at a mine site. He is not able to enter the site if he is fatigued or under the influence of drugs or alcohol. Because of this he ensured he had adequate rest before working. He had never had any fatigue related accidents and has never fallen asleep behind the wheel of a car. He has no criminal convictions.
2. The claimant states the speed limit at the location of the accident is 90kmph, not 80kmph as stated by Senior Constable Jenkins. He states he was travelling below the speed limit when the accident occurred.
3. The claimant described the drive on the morning of the accident as being "very dark"; it was overcast, had just finished raining, and there are no streetlights. Residential properties are scattered along that part of the road and sit some distance from the roadway. There are no footpaths, and fencing is not obvious from the road.
4. The claimant did not recall seeing the lights of any vehicle travelling in the opposite direction before the accident. He states there are signs alerting drivers to the presence of potholes.
5. The claimant states that on rare occasions he has seen animals and that "[o]n this trip is more common to see larger kangaroos in Brunkerville and Mulbring which is further into the trip towards Kurri Kurri."
6. The claimant's vehicle had "not long" before the accident been serviced. It was well maintained and mechanically sound. He states that the windscreen was clear and did not have any chips or cracks. His view of the road was completely clear. When driving to work he usually has the news playing on low. He was not on the hands-free phone or using headphones. His window wasn't down due to the weather. He was not smoking. His focus was "on the trip and getting to work." He was not using a navigation system.
7. The claimant states the only medication he regularly takes is for blood pressure. He has been taking the medication since approximately 2018 and has not experienced any side effects. He concluded by stating: "I cannot say with exact certainty the cause of the accident."

1. Mr Cook was travelling behind the claimant's vehicle. His account of the accident, provided at the scene to Senior Constable Jenkins, was recorded on the Senior Constable's body worn camera. I have watched and listened to the footage on a number of occasions.

1. The parties have provided an agreed transcribed version of Mr Cook's account. I am satisfied the transcript is accurate. Relevantly, the transcript records the following exchanges between Mr Cook and Senior Constable Jenkins:

BC[4]: Um, basically he had a bit of a wobble coming through the s's down there towards Cooranbong

JJ: So he's going, going north? No. Going this way? Right.

JJ: Alright. And yeah, not driving stupid apart from a bit of a wobble back there?

BC: Yeah well as I said more than likely dodged a pot hole.

BC: Then went straight off the road straight at it.

BC: And probably wasn't speeding. I know youse are gonna do your own measurements but I reckon he was only doing on 80.

JJ: Yeah well his speedo's clocked at 85 so ah, yeah.

BC: Inaudible. You always accelerate coming up the hill.

JJ: No worries yeah he's probably fallen asleep or who knows?

1. There is a transcript of interview between an investigator instructed by the insurer and Senior Constable Jenkins on 21 January 2025. It emerges from the transcript that the Senior Constable has been a member of the NSW Police for 22 years. The majority of his duties have involved traffic enforcement. He has had extensive experience investigating motor accidents and was involved in investigating this accident. When he arrived at the scene Ambulance personnel were already in attendance and attempting to remove the claimant from his vehicle. There were a "number of firies as well". He assisted with the extraction of the claimant from the vehicle, a task he described as "delicate".
2. Senior Constable Jenkins confirmed he spoke to Mr Cook at the scene. The brief version he provided was recorded on body worn camera footage. He also spoke to Mr Cook on the phone some time later. There were no other statements obtained at the scene. The Senior Constable stated "[i]t's a pretty isolated area out there."
3. The transcript of interview includes a transcribed version of the interview between the Senior Constable and Mr Cook at the scene. Senior Constable Jenkins read onto the transcript the version of the accident provided by the claimant on 4 August 2024.
4. The transcript contains the following exchange:

"Q 88 ...And so if we go back to the actual scene, what physical evidence was located there? Obviously the vehicle into the tree. Was there anything else that would indicate that there was [an] animal or intervention or anything along the road?

1. ...it is a bushland area...so it is possible...that an animal did cross in front of him.

Q 90 But there was no direct evidence of that at the scene?

1. No. There was no...evidence..., as such...I know it is known as an area where there are a lot of kangaroos and...

1. ...wildlife that do cross...we've had problems in the past in relation to that...I recall the road being very, I guess, slimy."

1. The Senior Constable went on to explain that the road was slippery underfoot as a result of either or both dew and rain. He did not observe oil or "anything like that" on the roadway. He states that Mr Cook did not refer to animals on the roadway.
2. The Senior Constable also addressed the claimant's direction of travel, confirming he was travelling in a northerly direction towards "Kurri, Cessnock".[5]
3. The claimant's blood sample produced a negative result. He was not tested for drugs as drugs weren't suspected. The Senior Constable was not aware of any medical condition that would have affected the claimant's ability to drive. The claimant's driving history "wasn't extensive" and involved "a couple of speeding fines over the years". The tires on the vehicle were inspected and "were all good". He described the claimant's vehicle as being "a write-off". The front and back windscreens were smashed. Both airbags deployed.
4. Senior Constable Jenkins stated there were no houses nearby and most of the houses on the road are "well back" from the roadway. The area was "quite dark". He did not note any skid marks on the road. In response to being asked whether any part of the vehicle "played, contributed in any way to the collision at all" the Senior Constable responded "no. I don't think so. No." He observed that it was a "relatively new car". He did not think the road surface was a contributing factor "if you are doing the speed limit". The speed limit was 80kmph. The speedo on the claimant's vehicle had stopped at 85kmph. The Senior Constable agreed that speedometers typically stop at the time of impact "on a modern vehicle" and that this indicated the car was travelling at that speed at the time of impact.
5. In response to the question "based on your findings, what is your understanding of what actually happened?" the Senior Constable responded:

"..I believe he's possibly...you're only guessing but it, it's possible that he's fallen asleep given that it was early in the hours of the morning...it's possible that the animal did run out in front of him..."

1. While he agreed that he was "only guessing" the Senior Constable also agreed these explanations were the likely explanations as to what caused the accident.[6] He confirmed the claimant was not charged.

1. The investigation report contains photographs of the accident scene, including photographs depicting the claimant's vehicle where it came to rest and damage to the vehicle. The airbags can be seen to have deployed. There is significant damage to the front of the vehicle.
2. There are also photographs of the scene taken during daylight. Photographs 5, 6 and 12 in the "Photographic schedule" show the approximate accident location. Photographs 7, 8 and 9 (and subsequent photographs) show the tree with which the claimant's vehicle collided.
3. A rough sketch prepared by the claimant on 2 September 2024 indicates the approximate point on Freemans Drive where the accident occurred. The investigators report also contains drawings and photographs depicting the accident scene.

1. The insurer relies on written submissions dated 23 October 2025. At [1] and later at [11], [13] and [15] the insurer refers to various matters addressed in Evic. At [2] the insurer states the issue for determination is:

"did the claimant contribute to the cause of the accident and, if so, the extent to which the claimant departed from the standard of care of the reasonable person based on what she [sic] knew or ought to have known as set by s 5R(2)(a) of the Civil Liability Act"

1. Later at [13] the insurer distilled the dispute as follows: "the key issue for determination, consistent with Evic, is whether the claimant failed to exercise reasonable care, and if so, to what extent?"
2. The insurer's submissions record that it relies on the evidence and reasons set out in the internal review certificate dated 30 April 2025. With respect to the evidence, the internal review certificate refers to:

(a) the description of the accident in the claim form;

(b) the narrative in the ambulance report dated 5 July 2024;

(c) certificates of fitness, records from John Hunter Hospital and Toronto Private Hospital;

(d) the narrative in the police report dated 16 August 2024;

(e) the "factual investigation";

(f) the record of interview between the claimant and an investigator, and

(g) the record of interview between Senior Constable Jenkins and an investigator.

1. Neither the certificates of fitness nor the records from Toronto Private Hospital referred to by the internal reviewer are included in the joint bundle.
2. The internal reviewer found the claimant was "wholly at fault" for the accident. The internal reviewer referred to Mr Cook's evidence that the claimant "has a bit of a wobble coming through the S's" and the absence of any reference to a kangaroo or other animal. The internal reviewer also referred to Senior Constable Jenkins' opinion that it was possible the claimant "could have fallen asleep or that an animal has come onto the roadway" and was unable to rule both possibilities out. After referring to Hossain v Mirdha [2015] NSWDC 108 (Hossain) the internal reviewer found that it was the claimant's action of swerving which caused the collision with the tree and that his actions "culminated in having caused the accident". Those findings having been made the internal reviewer determined the claimant was "wholly at fault for the accident for the purposes of the Act."
3. It is convenient to record here that the reference to Hossain was not apposite. The Judge in that case was not concerned with whether the accident in question was caused by the fault of Mr Hossain but whether, for the purposes of s 7E of the Motor Accidents Compensation Act 1999, the motor accident concerned was caused by an act or omission by him.
4. In the insurer's submission:

(a) there is no evidence of the involvement of any other vehicle;

(b) there was no involvement of any other thing;

(c) the accident occurred due to the claimant's loss of control of the vehicle, "as witnessed by [Mr] Cook", and

(d) an inference should be drawn that the accident was caused by the claimant's fault.

1. With respect to the inference of fault it argues should be drawn, the insurer relies on the "principle of res ipsa loquitur" and in this regard refers to Richards.
2. The insurer argues that whilst the claimant believes a kangaroo may have been involved, there is no evidence to this effect. The insurer submits that "[t]he NSW Police officer noted the absence of direct involvement of a kangaroo and noted there was no carcass at the scene". It argues that the independent witness (Mr Cook), travelling in the opposite direction to the claimant's vehicle, made no reference to the presence of a kangaroo and observed the claimant's vehicle to "wobble" coming through the "S" bends down towards Cooranbong.

1. In the insurer's submission, the observation of the vehicle "wobbling" is not consistent with an avoidance manoeuvre to avoid the presence of a kangaroo but is consistent with the loss of control of the vehicle.
2. The insurer's case is that, in the absence of any cause other than the claimant's negligence, it must be found that he failed to exercise reasonable care and that, in those circumstances, a finding of 100% contributory negligence is permissible.
3. The insurer's submissions record that:

"if in the same set of circumstances, other than that the claimant's loss of control resulted in him colliding with an oncoming vehicle or pedestrian, the claimant's failure to maintain his vehicle would result in him being found to be wholly at fault for the collision. It is the insurer's submission that they [sic] same result should apply when having regard to his culpability for the subject accident."

1. It is therefore submitted that a finding the claimant is "100% at fault" is permissible and "consistent with the legislative intent and is especially relevant in a single-vehicle accident where the claimant's conduct alone caused the accident".
2. The insurer submits that in the absence of fault of any other party, and by application of the "principles" set out in Richards and Evic, the claimant was wholly or mostly at fault for the accident.

1. The claimant relies on written submissions dated 14 November 2025. The claimant submits the accident was not caused by his conduct but rather the presence of a large kangaroo on the roadway. He argues there should be "no deduction for contributory negligence" as the evidence "does not support a departure from the standard of care". Like the insurer, the claimant refers to both Evic and Richards.
2. The claimant argues that:

(a) the cause of the accident was a kangaroo hitting the side of the vehicle he was driving causing him to leave the roadway and hit a tree;

(b) the inconsistent evidence regarding the direction in which Mr Cook was travelling should be considered when weighing his evidence "especially noting the evidence of [Mr] Cook cannot be tested";

(c) he cannot recall swerving on the roadway as reported by Mr Cook;

(d) the accident occurred on a straight stretch of the road not a bend;

(e) there are no potholes visible in the photos of the accident site;

(f) if it is determined he did swerve for a pothole, it was prior to and unrelated to the accident; these are two separate events and there is no evidence the swerving for the pothole resulted in the accident;

(g) there are a number of possible explanations for the accident, none of which is evidence of his failure to exercise reasonable care;

(h) the road was slippery;

(i) he was not speeding, and

(j) there is no evidence he fell asleep.

1. In the claimant's submission the insurer has not established the cause of the accident. There are, he argues, a wide range of assertions made as to the cause of the accident, all of which are speculative and lack the evidence required to prove to the requisite civil standard that he was wholly or mostly at fault for the accident.
2. The claimant argues the insurer has not discharged the onus it carries to establish the accident was caused wholly or mostly by his fault. He also argues there should be no finding of contributory negligence given the factual circumstances and the lack of evidence that he contributed to the cause of the accident and that he "breached the standard of care."

1. Factual findings that underpin the determination must be supported by logically probative evidence: Australian Broadcasting Tribunal v Bond [1990] HCA 33 at 367. In Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [55] McDougall J (McColl and Bell JJA agreeing) addressed the approach to be adopted in the resolution of disputed questions of fact as follows:

"(1) A finding that a fact exists (or existed) requires that the evidence induce, in the mind of the fact-finder, an actual persuasion that the fact does (or at the relevant time did) exist;

(2) Where on the whole of the evidence such a feeling of actual persuasion is induced, so that the fact-finder finds that the probabilities of the fact's existence are greater than the possibilities of its non-existence, the burden of proof on the balance of probabilities may be satisfied;

(3) Where circumstantial evidence is relied upon, it is not in general necessary that all reasonable hypotheses consistent with the non-existence of a fact, or inconsistent with its existence, be excluded before the fact can be found; and

(4) A rational choice between competing hypotheses, informed by a sense of actual persuasion in favour of the choice made, will support a finding, on the balance of probabilities, as to the existence of the fact in issue."

1. With these principles in mind, I make the following findings:

(a) on the morning of the accident the claimant woke up at approximately 4.30am and followed his usual routine; he had a coffee and breakfast before leaving home;

(b) the claimant left home at some time between 5.40am and 5.45am;

(c) the claimant had been driving for about 10 minutes before the accident occurred;

(d) the accident occurred at or about 5.55am approximately 3km north of Cooranbong on Freemans Drive;

(e) immediately before the accident the claimant was heading north towards Kurri Kurri on his way to work. He had driven the same route to work since 2008;

(f) the headlights on the claimant's vehicle were illuminated;

(g) the accident occurred on a straight stretch of road after a left-hand bend;

(h) the sign posted speed limit at the location of the accident was 90kmph;

(i) the claimant was travelling at approximately 85kmph when the accident occurred;

(j) at the location of the accident there was one traffic lane in each direction;

(k) the accident scene was dark, with no natural or street lighting illuminating the road, and was surrounded by bushland;

(l) earlier in the morning it had rained;

(m) it was not raining when the accident occurred;

(n) the roadway was slippery due to the earlier rain;

(o) the immediate vicinity of the accident scene was sparsely populated. What homes there are in the area are located some distance from the roadway. There are no footpaths, and fencing is not obvious from the road;

(p) on previous occasions while traveling along Freemans Drive the claimant had seen animals, both dead and alive, including kangaroos and wallabies;

(q) on one occasion prior to the accident a wallaby collided with the claimant's vehicle;

(r) there were no mechanical defects in the claimant's vehicle. The tyres were in good condition;

(s) prior to the accident the claimant had never had any fatigue related accidents and had never fallen asleep behind the wheel of a car;

(t) at the time of the accident the claimant did not have any medical conditions or illnesses that affected his driving and was not taking any medication that affected his driving;

(u) there were potholes on the surface of the roadway;

(v) prior to the accident the claimant's vehicle "had a bit of a wobble". This was a result of action taken by the claimant to avoid a pothole, and

(w) the claimant's vehicle left the roadway and collided with a tree.

1. I am not satisfied the steps taken by the claimant to avoid a pothole was causative of the accident. The "wobble" did not result in his vehicle leaving the roadway.
2. I am not satisfied on the balance of probabilities the claimant lost consciousness or fell asleep before the accident. He had never done so before. He had followed his usual morning routine, adopted over many years. He went to bed and woke up at times consistent with his usual practice. He had breakfast and a coffee. He followed a route to work he had travelled over many years.
3. There was no evidence of a dead or injured kangaroo or other animal found at the accident scene. The extent to which a search was undertaken by police for evidence of this nature is not known. Mr Cook did not see a kangaroo or other animal. However, for the following reasons I am satisfied on the balance of probabilities a kangaroo ran onto the roadway:

(a) The accident occurred at approximately 5:55am.

(b) The accident scene was dark, with no natural or street lighting illuminating the road.

(c) The area was surrounded by bushland and sparsely populated.

(d) The location of the accident "is known as an area where there are a lot of kangaroos".

(e) There had been "problems in the past" with respect to wildlife crossing in that area.

(f) On previous occasions while traveling along Freemans Drive the claimant had seen animals, both dead and alive, including wallabies and kangaroos. On one occasion a wallaby collided with his vehicle.

(g) I accept the claimant's evidence about the involvement of a kangaroo. In his claim form dated 15 July 2024, 10 days after the accident, the claimant stated he "believe[d] a kangaroo was involved". He told police a month after the accident that he recalled "a flash of a large kangaroo". He told the insurer's investigator on 2 September 2024 that he "saw a flash from [his] right hand side and it looked like a roo".

(h) Senior Constable Jenkins, an experienced police officer, told the insurer's investigator it was possible an animal had run in front of the claimant.

1. I am satisfied, and I find, that the claimant reacted to avoid the kangaroo, and in doing so his vehicle ran off the road and collided with a tree.
2. The insurer was entitled to rely on res ipsa loquitur to make out its case that the accident was caused wholly or mostly by the fault of the claimant. However, I have found the cause of the accident was the claimant attempting to avoid a kangaroo on the roadway. The cause of the accident has been proved; there is no "absence of explanation". Accordingly, the principle of res ipsa loquitur could play no part in the proceedings: Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; [2000] HCA 18 per Gleeson CJ and McHugh J at [27].

1. As the driver of a motor vehicle the claimant had a duty to take reasonable care for his safety having regard to all the circumstances.[7] The duty is always the same; to conform to the legal standard of reasonable conduct in the light of the apparent risk.[8]
2. Driving requires reasonable attention to all that is happening on and near the roadway that may present a source of danger. That will require simultaneous attention to, and consideration of, a number of different features of what is already, or may later come to be, ahead of the vehicle's path.[9]
3. The claimant was an experienced driver, knew the road well, and knew there was a possibility that there would be animals on the road.

1. Some drivers confronted with the same circumstances would not have attempted to avoid the kangaroo. Others would have reacted as the claimant did.
2. The claimant did not have the opportunity for calm reflection; he was confronted with an unexpected hazard not of his own making and reacted to the hazard. A reasonable person, confronted with the same circumstances, may have reacted in the same way. I am not satisfied the insurer has established on the balance of probabilities that the claimant failed to exercise reasonable care in the circumstances.
3. It follows that for the purposes of ss 3.11 and 3.28 the accident was not caused wholly or mostly by the fault of the claimant.

1. The claimant submits there were two disputes, one relating to s 3.11 and the other to s 3.28, and he is entitled to recover costs for each dispute at the maximum allowable under the Motor Accident Injuries Regulation 2017: $4,062.40 plus GST. He also claims the sum of $111.20 for the conduct money paid to NSW Police.
2. I agree there are two disputes. I am satisfied the claimant's reasonable and necessary costs in connection with the disputes are $4,062 plus GST. The insurer is to pay the claimant's costs in that amount together with the sum of $111.20 for disbursements.

[1] Discharge referral - joint bundle page 157.

[5] See Q 107 - Q 114 and corresponding answers.

[7] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 McHugh J at [26].

[8] Vairy v Wyong Shire Council [2005] HCA 62; (2005) 223 CLR 422 at [25].

[9] Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 at [11].