In accordance with Division 7.6 of the Motor Accident Injuries Act 2017

1. for the purposes of s 3.11 of the Motor Accident Injuries Act 2017 (MAI 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 MAI Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant, and
3. the amount of the claimant's costs in the matter is $4,468.20 inclusive of GST.

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

1. Ms Raad was involved in a motor accident on 7 March 2024. The claimant was waiting at the intersection of Osgathorpe Road and Victoria Road at Gladesville. She turned left into Victoria Road and a collision occurred with the insured vehicle which was travelling in a bus lane (the lane closest to the kerb).
2. On or about 15 March 2024, Ms Raad made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against QBE Insurance (Australia) Limited, the third-party insurer of the motor vehicle travelling straight in Victoria Road.
3. On 26 September 2024 the insurer issued a notice to the claimant denying any liability to pay ongoing statutory benefits to the claimant on the basis she was "wholly or mostly at fault".
4. The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. The insurer affirmed its decision.
5. The claimant has 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.

1. Ms Raad's claim for statutory benefits is made under Part 3 of the MAI Act. Statutory benefits to be paid include, for "earners" weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and for all, treatment and care benefits pursuant to Division 3.4.
2. Under s 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 ss 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 of that phrase in s 1.6) or if the injured person was "wholly or mostly" at fault for causing the accident.
3. There is no definition of wholly at fault, but a motor accident is considered to be caused "mostly by the fault" of a person if the degree of their contributory negligence is assessed at greater than 61%.
4. The claim form completed by the claimant indicates she was not employed at the time of the accident. I was advised by the claimant on 21 October 2025 that the claimant was an "earner" but that no weekly statutory benefits were paid.
5. Schedule 2, cls 3(d) and (e) provides the Commission with jurisdiction to determine whether Ms Raad is wholly or mostly at fault in respect of her weekly benefits and treatment and care benefits.

1. The insured vehicle was driving in a bus lane - the kerb side third lane on Victoria Road.
2. The claimant was driving on a side street and says she looked to ensure the road was clear before turning onto Victoria Road [4.2] and that the reason she did not see the insured vehicle was because it was travelling at excessive speed or driving erratically.
3. The claimant submits the insured vehicle merged into the bus lane (from lane 2) shortly before the accident [4.3].
4. The claimant relies on a witness statement from Mr Malo saying the insured vehicle merged into the bus lane shortly before the accident [4.5].
5. The claimant says she was partially on the road when the insured vehicle collided with her [4.7] and that the driver's actions including his speed and improper lane changes significantly contributed to the collision [4.10].
6. The claimant seeks costs.

1. The insurer provides commentary on the dashcam footage noting it shows the insured vehicle proceeding down the bus lane, braking heavily and then out of shot collides with something. The insurer says the dashcam does not show a last minute lane change.
2. The insurer says the damage to the claimant's vehicle suggests it had not travelled far into the bus lane at the time of impact. The insurer says the direction of the claimant's vehicle after the collision is a function of the impact and forces involved rather than the direction she was facing at the time.
3. The insurer says the diagram in the claim form is not accurate. The insurer says the police report (based on the claimant's report only) is not correct.
4. The insurer refers to the insured's statement and again relies on the dash cam.

1. At the first teleconference (on 31 January 2025), after discussing the relevant law and the approach to be undertaken, the parties agreed to the assessment being deferred as they wished to discuss the prospect of a joint expert report.
2. At the second teleconference (28 February 2025), I was advised the claimant conceded there should be some contributory negligence (but no more than 35%) whereas the insurer alleged the claimant was more than 61% contributorily negligent. As there was no agreement about a joint expert a further teleconference was scheduled for 28 April 2025. That teleconference was rescheduled as the parties agreed to obtain an expert and the expert's report took some time to prepare.
3. At the third and final teleconference (29 September 2025) the parties agreed to a timetable, both asked for the assessment to be done on the papers.

1. The insurer lodged final submissions dated 10 October 2025. The insurer submits:

(a) the report of Ms Gaffney supports a finding that the claimant failed to give way, she was not established in lane 1 at the time of the accident and that the claimant failed to keep a lookout for vehicles coming from her right before entering lane 1;

(b) following Evic, an analysis of the claimant's contributory negligence is required and the insurer says the degree of the claimant's negligence is greater than 61%;

(c) the claimant's vehicle was not completely straight as she said in her claim form;

(d) the claimant's visibility down Victoria Road to her right might have been impacted but would have been at the time she entered the lane. It is the claimant's responsibility to proceed and safely enter the lane;

(e) the claimant's failure to come to a complete stop might explain why she did not see the insured;

(f) the claimant has likely made an incorrect assumption that there would be no vehicles in the bus lane, and

(g) the insured was not speeding.

"While the issue to be determined by the Member, following Evic, is the contributory negligence of the claimant, the insurer submits that the above comment regarding the insured driver's circumstances is relevant insofar as it contributes to an understanding of the situation created by the claimant's actions. It is submitted that the claimant proceeded to enter a lane of traffic without looking to her right, without bringing her vehicle to a stop in circumstances of potentially obscured visibility. It is submitted that the claimant appears to have made erroneous assumptions when deciding to begin to enter lane 1, rather than ensuring it was actually safe to merge."

1. The insurer says the claimant is wholly or mostly at fault.

1. The claimant notes the insurer's submissions and reliance on the joint report but says at [2.2] that if the report is read as a whole there is "shared responsibility" between the two drivers saying:

(a) the claimant notes that the view of both drivers was partially compromised by the trees at the roadside and the lighting conditions and they could both see each other less then two seconds before impact [2.3(a)];

(b) the insured was driving at 52-57 km/h but if the insured had been driving at 50 km/h the accident could have been avoided [2.3(b)];

(c) the claimant entered the roadway at 10 - 15 km/h per hour while she may not have come to a complete stop, the speed she was driving was consistent with a "cautious approach" [2.3(c)];

(d) the claimant's vehicle struck the insured's vehicle but the claimant did not strike the third vehicle [2.3(d)];

(e) neither driver had sufficient time once they saw each other to take evasive action [2.4(a)] The claimant disputes the insurer's submission she should have seen the insured saying the insured was not visible until it was 20 metres away [2.4(b)];

(f) even though the claimant did not stop she was proceeding slowly as a "rolling entry" into the late which is not negligence sufficient to establish a mostly at fault finding [2.4(c)], and

(g) the insured was travelling close to 60 km/h in a bus lane while the adjacent lanes were congested and stopped which was unsafe and materially contributed to the accident [2.4(d)].

1. The claimant submitted that, "given the obstructed visibility, short reaction time and relative conduct the claimant's actions fall far short of ... being 'mostly at fault'" [2.4(e)] and that a finding of 40% contributory negligence is appropriate [2.5].

1. The claim form was signed by Ms Raad and dated 15 March 2024. She says the accident occurred at 9.20pm.
2. The claimant drew a diagram showing her car fully in Victoria Road and parallel to the kerb with the insured vehicle sharing the lane next to her vehicle and also parallel to the kerb in Victoria Road.
3. The claimant nominated her injures as "whiplash, eyes, right face and jaw pain, right back, shoulder pain (nerve damage). Hands still shaking." She also added a further description later on in the form:

"I was shaking right after the accident and I had a migraine then I started feeling the body aches. I took painkillers but then my doctor advised me not take too much because it might affect the test results."

1. She says she was not taken to hospital. Ms Raad also indicates she was a self-employed beautician at the time of the accident.

"Unit 2 (the claimant) was traveling east on Osgathorpe Road towards Victoria Road. Due to heavy traffic, unit 2 has turned onto the bus lane and was stationary positioned half between Victoria Road and Osgathorpe Road. Unit 3 was also stationary in traffic to the right of unit 2, in lane 2 of 3. Unit 1 was travelling in lane 1 of 3 in the bus lane towards unit 2 and unit 3. Due to unknown reasons, unit 1 has not seen unit 2 until very close and did not have enough time to stop."

1. This version appears to be based on a report made by the claimant to the police "for insurance purposes". Police did not attend the scene of the accident and there is no suggestion they interviewed the insured or any witnesses.

1. Ms Raad provided a statement to the insurer's investigators on 14 May 2024.

(a) she said she was receiving Centrelink benefits at the time of the accident in between working [9];

(b) she had a Western Australian license having moved to New South Wales in October 2023 [10];

(c) the claimant was driving a 2016 silver Mercedes 250 Sport which she bought in 2019 and she had been driving it for five years. She had no insurance because it had been insured in WA and the insurance was cancelled when she moved to NSW. She had not got around to insuring it [16];

(d) her car was in good condition and had been serviced just before she moved states [17] - [18];

(e) her mobile phone was in the side of the door and she was not using it and was not distracted [22];

(f) she was travelling from home to a gym [28] and had been driving for 10 minutes and knows the road well [29];

(g) she was driving in Osgathorpe Road and there was no stop sign at Victoria Road "but you need to stop and check for traffic on your left before pulling out" [30];

(h) she saw traffic stopped in two lanes of Victoria Street and she could see the lights ahead were red but there were no cars in the bus lane [31];

(i) she was intending to turn into the bus lane and looked to the right and did not see anything coming so pulled out [32];

(j) she says when she pulled out into Victoria Road her car was "completely straight" when her car was hit [35]. She did not see the Corolla until right before the accident and she did not have time to do anything to avoid the accident [35];

(k) she sat in her car in shock and the insured got out of her car and said, "I'm so sorry this is my fault, I have insurance, I will claim for you" [36];

(l) the driver of the black Mazda that was also hit had dashcam footage [39] and another man stopped to help [40];

(m) the police arrived and she was not breath tested [46]. She went to Ryde police station to report the accident on the advice of friends [55]. She has not had a ticket from the police [56];

(n) her airbags did not deploy [49];

(o) 24 hours after the accident she developed headaches, neck pain, shoulder pain and blurry vision [50], and

(p) she says the insured did not give her a claim number and she had to find the CTP insurer herself [57].

1. The claimant relies on a statement from a male witness dated 23 May 2024 given to Procare, the insurer's investigator. In it he says:

(a) he was travelling about 20 metres behind a black Mazda in lane 2 [6];

(b) he was slowing down along with other traffic as the lights ahead on Victoria Road were red [7];

(c) he saw a silver Mercedes come out of Osgathorpe Road trying to merge into Victoria Road [8] and it was three quarters into Victoria Road when the impact happened [9];

(d) the Toyota Corolla was driving in lane 1:

"... coming up at speed, I would not say it was speeding, but it was travelling faster than the other cars on Victoria Road. But that may have just been because we were all going slower because of the red traffic lights."

(e) the front of the Mercedes hit the Corolla which bounced back and into a black 4-wheel drive vehicle.

1. The witness said he remained at the scene providing assistance and confirms the police did not take a statement from him.

1. A statement from the insured was taken by Procare on 24 May 2024 which says:

(a) she was driving her mother's car [11] and was alone [15];

(b) the car was serviced and in good condition [12];

(c) it was night-time and it was clear with no rain [18];

(d) she had been at work at Broadway Shopping Centre [20];

(e) the speed limit was 60 kmph [21];

(f) she was returning home and had travelled down Parramatta Road, onto the Anzac Bridge and then to Victoria Road and had been driving for about 30 minutes and was familiar with the road [22] - [24];

(g) her mobile phone was in her bag [16], she was concentrating and not distracted [25];

(h) traffic was medium and her headlights were on low beam [26];

(i) the lights were red at the Westminster Road intersection but changed to green as she was driving [27] and she was in the bus lane but that is for buses only from 3 to 7pm [28];

(j) as she reached Osgathorpe Road a silver car pulled out of the street into her lane [29];

(k) she was driving at 60 kmph 'or just under' [29];

(l) the car was about five metres in front of her when she first saw it coming out and she had little time to react but braked hard. She could not pull into the right lane because there were other cars there [30];

(m) the front driver's side of the other car hit her car on the passenger wheel area of her car [31] and she was pushed into another car in the right lane [32];

(n) when she got out of the car, the claimant told her she was at fault and that she the claimant did not have insurance [35];

(o) the insured was in shock and said the claimant immediately got out of the car and was walking around and did not complain of injury. She observed the claimant climb up into the cabin of the tow truck without difficulty [40];

(p) police attended and asked her what happened, and the insured was not breath tested [42] - [43];

(q) the insured's airbags did not deploy [48], and

(r) she did not receive any infringement notice [49] and her property damage insurer was NRMA and they have not required her to pay an excess as they considered the claimant at fault [53].

1. Photographs of the claimant's car show significant damage to the driver's side front of the car but no damage beyond the front wheel back on the driver's side.
2. A photograph of the insured's car shows damage to the driver's side rear where it was hit by the third car. A photograph of the two cars on impact shows the claimant's car parallel to Victoria Road and the claimant's car partly in the second lane at an angle into the first lane.
3. There is about three minutes of rear facing dash cam footage from the black Mazda that the insured hit after being hit by the claimant. This shows:

(a) the black Mazda was travelling in lane two throughout;

(b) the Mazda is driving at up to 53 km/h before slowing down to stop;

(c) the insured braked hard (the sound of braking can be heard and the dust/smoke can be seen), and

(d) the insured remained in her car for the 30 seconds of film before it cuts out, and

(e) in that time the claimant gets out of her door, opens the rear door and retrieves something from the car then she walks away from the car to the other side of Osgathorpe Avenue, and

(f) the claimant does not in this 30 seconds appear to approach the insured's car or the insured.

1. The Procare report shows the bus lane was an afternoon peak hour bus lane.

1. Ms Gaffney prepared a report about the collision at the request of both parties which is dated 9 September 2025.
2. Ms Gaffney says at point 1 of the executive summary she has considered the dashcam footage, the damage to the cars and the points where the vehicles came to rest which are visible in the photographs. She says:

(a) the claimant's vehicle was not completely straight, and the collision mechanics do not support a sideswipe type impact as depicted in the claim form;

(b) the claimant had said she did not see the insured until just before the collision and suggests there may be some roadside objects (a light pole and planted trees) that could have impacted her vision or that the claimant was further west on Osgathorpe Road and she "did not likely come to a complete stop prior to entering Victoria Road";

(c) the insured's car intruded into the claimant's path for about 1.69 seconds;

(d) the dashcam does not support the claimant being in lane 1 before impact and "the compendium of evidence suggests that the Claimant entered lane 1 less than two second prior to the impact when the insured was less than 20 m away;

(e) the insured approached the collision at about 52 - 57 km/h per hour and braked heavily with an impact speed of between 38 - 41 km/h;

(f) the insured likely saw the claimant's vehicle and braked within 1.1 seconds;

(g) "The author's analysis of time and distance suggests with a high degree of certainty that [the claimant] did not stop prior to turning left into Victoria Road" and that the speed she turned was at about 10 - 15 km/h, and

(h) due to the visibility issue "a driver is required to effectively creep out" before turning into Victoria Road "until a clear line of sight is established."

1. Ms Gaffney discusses the relevant road rules noting that the claimant was required to give way to vehicles approaching from her right. She says that the insured was permitted to overtake the stationary or slow traffic in lanes two or three because she had a clear view of the road ahead, was on a muti-lane road and because the traffic next to her was stopped.
2. She does say at 9.8.1 that "although the road rules permit this type of overtaking, it is feasible that [the insured] could have lowered her approach speed in the given circumstances.

(a) the claimant was driving east on Osgathorpe Road, the insured was driving north-northwest on Victoria Road, Osgathorpe Road is a two lane side street and Victoria Road is a major thoroughfare with three lanes in each direction of travel. I make these findings based on the photographs, the dash cam footage, the factual investigations and the expert's report;

(b) the accident occurred at about 9.20pm and it was dark (this is not disputed by either party);

(c) there was a building (Dan Murphy's liquor hop), small trees and poles on the eastern side of Victoria Road before the intersection with Osgathorpe Road (this is also not disputed by either party and clearly shown in the photographs in the expert's report);

(d) the claimant looked to her left and saw red traffic lights but no vehicles in the bus lane. She looked right before she got to the intersection and saw no vehicles coming. I make this finding on the basis of the claimant's statement at paragraphs 31 and 32;

(e) the claimant failed to give way at the intersection entering Victoria Road at a "rolling" or slow speed (around 10 - 15 km/h per hour). I make this finding on the basis of the expert's report. In addition, the claimant's statement provided on 14 May 2024 does not mention whether she stopped or not and the claimant has not introduced into evidence any updated statement in response to the expert's report;

(f) the insured was driving below the speed limit at between 52 and 57 km/h per hour in the first lane, the kerbside lane of Victoria Road. I make this finding on the basis of the expert's report;

(g) the kerbside lane was a bus lane but only during the time 3.00pm to 7.00pm. The insured was therefore lawfully in the bus lane at the time of the accident. This is not disputed by either party and accords with the photographs and factual investigations undertaken by the insurer;

(h) the collision occurred in the kerbside lane of Victoria Road between the front driver's side of the claimant's vehicle and the front passenger side of the insured's vehicle and the impact caused the claimant's vehicle to impact the car in front of her and in the second (middle) lane, and

(i) while the claimant's vehicle came to rest parallel (or close to parallel) to the kerb, the collision did not occur with the claimant's vehicle wholly in lane one. I make this finding on the basis of the expert's report, the statement of the insured, the statement of the witness and the photographs which show the vehicles at rest after they had stopped moving.

1. I am not satisfied that the insured admitted fault on her part at the scene of the accident. The part of the claimant's statement that suggests she did I do not accept. The dash cam footage suggests the insured's version of events after the accident is the more accurate version. The insured was shocked and remained in her vehicle for the duration of the 30 seconds of video. The claimant on the other hand gets out of her car, retrieves something from the back seat of her car and walks away from the two cars. The claimant did not remain in her car with the insured coming to her as is suggested in paragraph 36 of her statement. The footage does not show any communication between the claimant and the insured at that time.

The approach to "wholly or mostly at fault" disputes

1. Sections 3.11 and 3.28(1) provide that "an injured person is not entitled to ... [statutory benefits] ... 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, or

(b) the person's only injuries resulting from the motor accident were threshold injuries.

1. Section 3.11(2) and 3.28(2) provide that "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%."
2. Justice Mitchelmore in AAI Limited t/as GIO v Evic[1] considered these sections and provided a framework for the resolution of these statutory benefits disputes disputes. In the course of her reasons, Justice Mitchelmore said the following:

(a) an injured person's entitlement to benefits does not require the claimant to prove fault [55];

(b) the phrase 'wholly or mostly' is a composite phrase (not two concepts of wholly at fault or mostly at fault);

(c) the phrase is addressed to the claimant's contributory negligence" [56] relevant to the accident (not the injury) [57];

(d) section 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of s 5R(2)(a) of the CL Act and the test of contributory negligence 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, or the claimant is a pedestrian (and presumably a cyclist or other road user), the claimant's contributory negligence is assessed by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk[2] at [61];

(f) in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply and the question to be posed is whether the claimant acted as a reasonable person in their position would have acted citing at [68] Axiak v Ingram[3] and at [69] Davis v Swift[4] two blameless accident cases, and

(g) if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) requires an assessment of the degree of contributory negligence that is "just and equitable in the circumstances of the case" [73] and could be assessed between 0% and 100%.

1. Ms Raad has conceded there should be a finding of contributory negligence found against her. In my view, based on the evidence that is a proper concession to make.

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

1. The claimant submits her contributory negligence should be assed at 40%. The insurer says it should be greater than 61%.
2. There were two vehicles involved in the accident. As Justice Mitchelmore suggested in Evic, in assessing contributory negligence the relative culpability of the two vehicles must be considered. Justice Basten said in Allianz Australia Insurance Limited v Shuk[5] at [32]:

"Without a proper finding as to breach of duty, the proportionate culpability of each cannot be assessed."

1. I must therefore make an enquiry into whether the insured was at fault and breached her duty of care to the claimant not because such a finding is needed to establish the claimant's entitlement to ongoing benefits but in order to undertake the comparative analysis required by Evic at [61] to determine Ms Raad's contributory negligence. If there is no breach of duty on the part of the insured then contributory negligence is assessed by the second method (identified at [67] and [68]) which is the degree of the departure from the standard of care expected of a reasonable person.

Did the insured breach her duty of care to the claimant?

1. The standard of care applicable to the insured as the driver of a motor vehicle on a public road is that of a reasonable person in the defendant's position. It is not foreseeable that a vehicle would suddenly emerge having failed to give way in a side street. There was no substantial risk of an accident occurring in those circumstances.
2. While I accept that there was a building, trees and poles that, in addition to it being dark, meant the insured had limited visibility into Osgathorpe Road I do not accept that a reasonable person driving at night on a major road in Sydney has to reduce their speed approaching each and every side street in order to avoid a risk that was not obvious. I accept that had the claimant been stationary at the Osgathorpe intersection, a reasonable person might have had the opportunity to see the stationary vehicle and reduce their speed slightly in case the car pulled out, but this is not such a case as I am not satisfied that the claimant actually came to a stop at the intersection. She proceeded into the intersection reducing the time available to the insured to see her and take action to avoid the collision.
3. I reject the claimant's suggestion in her original submissions that the insured was travelling at excessive speed or driving erratically. Based largely on the joint expert's report, I have found that she was at all times driving under the speed limit.
4. I also reject the claimant's submission that the insured made an improper lane change shortly before the accident. The insured was driving in a bus lane when it was lawful to do so.
5. I reject the claimant's final submission that travelling close to, but not over, the speed limit while there was traffic stationary in the adjacent lanes was unsafe. The claimant was lawfully in the bus lane and the insured does not have to remain in a stationary lane of traffic if there is an option of moving into and travelling in a lane without traffic in it.
6. In my view, in accordance with the above reasons, the insured driver has not breached her duty of care to the claimant.

Did the claimant depart from the standard of care of a reasonable person?

1. Having made the finding there is therefore no culpability on the part of the insured driver. The question to be asked and answered according to Evic is whether the claimant acted as a reasonable person in their position would have acted.
2. In my view the claimant's departure from the standard of care is significant for the following reasons:

(a) she was in the side street seeking to move into a major road. A reasonable person in her position would have taken care before moving into Victoria Road;

(b) she had limited visibility due to the placement of the building on the corner and the trees and poles on the footpath. She knew the area well and should have taken a good look to the right before moving onto Victoria Road;

(c) the insured vehicle was there to be seen had she stopped and taken a proper look, and

(d) she merged into Victoria Road without stopping completely and edging out beyond the line of the building and to take a proper look.

1. I reject the claimant's submission that she made a "cautious approach" to the intersection. A cautious approach in my view would have involved stopped completely to ensure there was no other vehicle in the lane, before turning onto a three-lane major road.

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

1. In assessing the claimant's contributory negligence in the absence of a culpable insured driver (or defendant), in Davis v Swift Justice Meagher said at [52] "however, in the range of possible departures from that standard of care, the appellant's conduct is not an example of a worst possible case" and in Serrao (by his Tutor Serrao) v Cornelius (No.2)[6] Justice Sackville referred at [64] to "several ameliorating factors." In the former contributory negligence was assessed at 80% and in the latter 50%.
2. While Ms Raad was not under the influence of alcohol or illicit substances and was not travelling at speed, she was reckless in the way she drove (not coming to a complete stop) and careless in the way she looked (not observing the insured vehicle).
3. In my view an appropriate reduction reflecting her departure from the standard of care expected is 80%.

1. As I have found the claimant's contributory negligence to be 80%, it follows that there must be a finding that she is wholly or mostly at fault.
2. The claimant seeks costs beyond the amounts provided for in the Motor Accident Injuries Regulation 2017 on the basis there are "exceptional circumstances" within the meaning of s 8.10(4). The claimant refers to AAI Limited t/as GIO v Moon[7] and suggests exceptional circumstances means "unusual situations". The full sentence of that part of Justice Wright's judgment is at [97] and says: "When regard is had to s 8.10(4), the ... power to permit payment of legal costs can be seen as designed to deal with particular, unusual situations where the maximum costs fixed by the regulations may not be adequate." After dealing with claims involving persons under a legal disability his Honour went on to say:

"In addition, other cases can be envisaged which are exceptional, because they involve an unusual degree of factual or legal complexity or for some other reason, and this requires the incurring of more substantial legal costs by a claimant."

1. The claimant submits the exceptional circumstances involve the fault dispute, the denial of liability by the insurer, the need for an accident reconstruction expert, the consideration of disputed matters, submissions and the other steps undertaken.
2. The insurer opposes the application for costs on an unregulated basis on the basis there are no exceptional circumstances.
3. I am not satisfied that exceptional circumstances exist in the claim warranting departure from the regulated sum. This was a claim involving a denial of fault where there was dash cam footage, photographs and statements concerning the factual circumstances of the accident. The statements were obtained by the insurer. The expert's report was a joint expert's report.
4. The claimant conceded early on there was contributory negligence but argued the degree of her contributory negligence. This eliminated a contentious issue. The engagement of an expert was due to the claimant's evidence that the insured was driving at speed and made an unexpected lane change into her lane neither of those arguments was made out.
5. There was an application made to the Commission, a reply, three preliminary conferences but no assessment conference or hearing.
6. The claimant is entitled to two regulated sums, on the basis there are disputes under Schedule 2 clauses (d) and (e). In my view this is a reasonable sum for the totality of the work undertaken by the claimant's solicitor and the claimant should be awarded the maximum for each which is 16 monetary units.
7. The regulated monetary sum per unit is, as of 1 October 2025, the sum of $126.95. The amount for the claimant's reasonable costs is therefore assessed as $2,031[8] to which goods and services tax should be added. The claimant is entitled to two of these sums on the basis that there were two miscellaneous claims assessment matters to be determined.
8. The claimant has not made a claim for any disbursements. It is not entirely clear whether the insurer has paid for the joint experts report or whether the insurer and the claimant have each paid half. In my view the joint report assisted me greatly and the insurer should pay whatever portion the claimant may have paid in addition to the portion it may have paid.
9. Having rejected the claimant's application I do not propose to make an order for the insurer to be awarded costs beyond the regulated sum under s 8.4(3). The insurer's solicitor, is, like the claimant's solicitor entitled to the costs of two miscellaneous claims assessment matters.

[1] [2024] NSWSC 1272.

[2] [2023] NSWSC 788.

[3] [2012] NSWCA 311 where contributory negligence for a reckless pedestrian in a no-fault (blameless) accident was assessed at 50%.

[4] [2014] NSWCA 458 where contributory negligence for another in a no-fault (blameless) accident was assessed at 80%.

[5] [2023] NSWSC 788.

[6] [2016] NSWCA 231

[7] [2020] NSWSC 714.

[8] Schedule 3(3) provides for the rounding up or down after the monetary unit calculation is made.