Issued under s 7.36 of the Motor Accident Injuries Act 2017 (the MAI Act)

The findings of the assessment of this dispute are as follows:

1. For the purposes of s 3.11 the motor accident was mostly caused by the fault of the injured person (the claimant).
2. For the purposes of s 3.28 the motor accident was mostly caused by the fault of the injured person (the claimant).

A brief statement of my reasons for this determination is attached to this certificate.

1. This is a miscellaneous claims dispute pursuant to s 3.28 of the Motor Accident Injuries Act 2017 (the MAI Act).
2. Ms Alexia Diana Daniele Saadouni (the claimant) was riding her motor scooter in Sydney on 1 January 2024 when she was involved in an accident causing her to sustain injury (the accident).
3. Allianz Australia Insurance Limited (the insurer) is the relevant insurer liable to pay statutory benefits to the claimant under the MAI Act.
4. The claimant completed an Application for Personal Injury Benefits on 2 February 2024.
5. On 9 July 2024 the insurer declined liability for payment of statutory benefits following the first 52 weeks after the accident on the basis Ms Saadouni was wholly at fault for the accident.
6. On 16 January 2025 the claimant sought an internal review of that decision and on

5 February 2025 the insurer affirmed the determination that the claimant was wholly at fault for the accident. 7. The claimant lodged an application in the Personal Injury Commission (Commission) which was registered on 21 October 2025 as to whether for the purposes of ss 3.11 and 3.28 of the MAI Act the motor accident was caused wholly or mostly by the fault of the claimant. 8. That dispute was referred to me for determination.

1. The matter was listed for a preliminary conference on 17 November 2025. Ms Saadouni appeared in person and Ms Frances Allen of Moray & Agnew appeared for the insurer.
2. I informed the parties I had received the bundle of documents lodged by Ms Saadouni and the bundle of documents lodged by Ms Allen on behalf of the insurer. I ask Ms Saadouni if she had seen the insurer's bundle. She said yes. I drew her attention to the insurer's submissions where it was suggested there was some inconsistency between her statements and asked if she wished to provide any further evidence. Ms Saadouni indicated she had used A1 to assist with her statements where English is not her first language. She also stated she was very traumatised by the accident.
3. I explained that the matter could proceed in two ways. I could determine the matter based on the documents already provided (called a determination on the papers) or I could list the matter for an assessment conference (a small hearing) where she could give further evidence about what occurred through MS teams. I explained she could have an interpreter available to make it easier for her. Ms Saadouni took offence at the suggestion that she required an interpreter. I indicated that whilst her spoken English was very good, I suggested an interpreter be available to assist her if necessary, having regard to the difficulty she said she had experienced in providing her statements.
4. Ms Saadouni indicated she would like a hearing, and the matter was listed for an assessment conference on 3 December 2025.

1. On 3 December 2025 the matter proceeded to assessment by videoconference.

Ms Saadouni appeared in person and Ms Allen appeared for the insurer. A French interpreter Ms Barbara Dias-Fiegal, NAATI accredited No. CPN2WH075 was available to assist Ms Saadouni where necessary. The insured driver Mr Zhen Zao also attended. 2. There was some difficulty with the parties accessing the Teams link at the outset including the interpreter. Ms Saadouni was concerned at the delay noting she was in France where it was late at night. 3. Initially, Ms Saadouni queried the ability of the interpreter to speak French. Ms Dias-Fiegal was not able to produce her NAATI credentials immediately and Ms Saadouni objected to the matter proceeding in the absence of proof of her accreditation. After a short delay Ms Dias-Fiegal retrieved her NAATI credential from another room. She displayed it to the parties in the Teams conference and provided details of her NAATI number. Having provided proof of her qualifications as a NAATI accredited interpreter no further objections were raised by Ms Saadouni and the matter proceeded. Even though she was a competent English speaker Ms Saadouni utilised the services of Ms Dias-Fiegal extensively throughout the assessment. 4. Ms Saadouni also objected to the presence of Mr Zao, the insured driver. She stated she was not informed he would be present, and she did not want to speak to him. I explained as the insured driver he was a witness, and the insurer was entitled to have him attend. Ultimately, Ms Saadouni indicated she wished to hear from him and indeed, she asked him some questions.

(a) an indexed bundle of documents uploaded by the claimant to the portal on

6 October 2025 paginated from page 1 to 115 (claimant's documents), and

(b) an indexed bundle of documents uploaded by the insurer to the portal on

7 November 2025 paginated from page 1 to 51 (insurer's documents).

1. At the time of the accident s 3.11 of the MAI Act provided:

"(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 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.

(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%.

Section 3.38 provides for a reduction of statutory benefits after 26 weeks for contributory negligence of the person not mostly at fault."

1. At the time of the accident ss 3.28(1) and (2) of the MAI Act provided:

"(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if -

(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or

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

(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. As the time of the accident s 3.38 of the MAI Act provided:

"(1) The common law and enacted law as to contributory negligence that applies to an award of damages in respect of a motor accident applies (except as provided by this section) to weekly payments of statutory benefits for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the time of the motor accident.

(2) A finding of contributory negligence must be made in the following cases -

(f) in the case of any other conduct of the injured person that is prescribed by the regulations for the purposes of this section.

(3) The weekly payments of statutory benefits payable in respect of a motor accident are to be reduced on account of contributory negligence--

(a) if subsection (4) requires the statutory benefits be reduced by a fixed percentage--by that fixed percentage, or

(b) by such percentage as the parties agree, or

(c) in any other case--by such percentage as the Commission determines (for the reasons stated) is just and equitable in the circumstances of the case."

If there is a dispute about the percentage of the reduction on account of contributory negligence, the insurer is required to make the weekly payments with the reduction the insurer considers appropriate pending the determination of the dispute by the Commission."

1. The enacted law includes s 5R of the Civil Liability Act 2002 (CLA) which sets out the principles that apply in determining the question of contributory negligence. Sub-section 5R(2) provides the following:

(a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and

(b) the matter is to be determined on the basis of what that person knew or ought to have known at the time.

1. Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether

Ms Saadouni was wholly or mostly at fault in respect of her entitlement to weekly benefits (Schedule 2, cl 3(d)), her entitlement to treatment and care benefits (Schedule 2, cl 3(e)) and whether statutory benefits should be reduced for her contributory negligence (Schedule 2 cl 3(g)).

1. In the Application for personal injury benefits dated 2 February 2024 Ms Saadouni said the accident occurred on Market Street between Pitt Street and George Street in the Sydney CBD.
2. Ms Saadouni provided the following diagram and description of the accident and the injuries she received:

1. Police attended the scene of the accident. The police report dated 15 January 2024 identifies the site of the accident as Market Street, 10m west of Elizabeth Street, the intersecting street.
2. The police report identifies the claimant, the rider of a motorbike as driver 1, the Nissan Station Wagon driven by Zhen Zao as driver 2 and the Lexus station wagon driven by Elias Habelrich as driver 3.[1] It provides the following crash summary details:

"At about 12:00 pm on Monday 01/01/2024 driver 1 was riding west on market street towards Castlereagh street in the middle lane. Driver two was driving next to driver 1 in the left lane and driver 3 was in front of driver 1 in the middle lane. Driver 1 collided with the drivers side front end of driver 2's car in the left lane, causing driver 1 to then bump off the car, back into the middle lane and hit the rear end passenger side of driver 3's car. Driver 1 sustained minor injuries to her left foot and lower leg. Driver 1 and driver 2 have conflicting versions and driver 3 didn't see what happened."

1. Ms Saadouni provided a statement dated 15 January 2025 for the internal review.[2] She provides the following details of the incident on 1 January 2024:

"I was riding my motorcycle at approximately 40 km/hr due to the traffic conditions in my lane, coming from Potts Point. I was driving on the left lane. Given the traffic on my left, I could not have positioned myself in the middle lane at the time. While proceeding on my lane the driver of a Nissan vehicle (license plate: YJQ97B) suddenly drove into me, pushing my motorcycle against another vehicle, identified as "Driver 3" in the police report.

The impact caused me to lose control, and the Nissan driver continued to push my motorcycle further into the outer lane. In the process, my shoes were left behind as I struggled to remove myself from the dangerous situation. The Nissan's actions forced me to extract myself from the motorcycle and escape further injury, but I was ultimately pushed against another car.

As a result of the collision, I landed in front of the Nissan YJQ97B, as depicted in the attached photographs and drawings. I was unable to stand up immediately and bystanders had to assist me in moving to a safer position on the side. The Nissan driver only stopped driving because people on the street began shouting and signalling them to halt."

1. In the application form completed by Ms Saadouni for the internal review dated

"I was not filtering during the car accident as per the picture and the witness document. The police report could not determine who was at fault. Plus I could not have been filtering since the driver 3 did not see what happened as I was already in the left lane and the Nissan's driver completely drove into me. In Mr Zhao statement, everything is said is repeating the investigator suggestions. Mr Zhao kept saying I hit the other car but the other car had no damages."[3]

1. Ms Saadouni provided a statement dated 10 September 2025 as part of her letter to the Commission.[4] She stated:

"On the day of the incident, I was riding my motorbike in front of Westfield Sydney, between Castlereagh Street and Pitt Street. At that location, there are three lanes moving in the same direction. I was in the left lane, which was about to merge, and I was preparing to move into the middle lane. Due to heavy and slow traffic, I had not yet put on my indicator. At that moment, a Lexus attempted to pass me on the right. While doing so, I suddenly felt an impact on my legs. Fearing I would be crushed, I pushed my motorbike to extract myself. The vehicle continued moving forward until bystanders shouted for the driver to stop.

It is clear to me that the driver was distracted, most likely on his phone. This would explain why he failed to notice me."

1. Ms Saadouni provided the following photographs of the vehicles in situ following the accident:

1. Ms Saadouni was questioned about the location of the accident. Even though it was suggested to her that the photographs of her scooter in situ between the Nissan vehicle and the Lexus vehicle show the accident occurred in Market Street, between Elizabeth and Castlereagh Street she was adamant it occurred between Castlereagh Street and Pitt Street, near the entrance to Myers. Ms Saadouni indicated that whilst there were photographs available, she did not necessarily agree with them.
2. Ms Saadouni stated she turned into Market Steet maintaining her position in the left lane. She stated her lane was about to finish so she intended to put her indicator on to turn right but she had not started to move to the right because of the presence of traffic in that lane. She said all of sudden she felt a wheel coming onto her leg. She said that was not supposed to happen because she was still in her lane. She said her reflex action was to push her scooter when all of a sudden, she felt the Nissan vehicle. Ms Saadouni said she was on the ground and the Nissan kept on going. She said the Nissan stopped because everyone started shouting.
3. When asked if the Nissan was beside her in the lane or whether she was in front of the Nissan Ms Saadouni said the Nissan came from behind. Ms Saadouni was asked how she could explain the small dent on the driver's door behind the wheel arch of the Nissan given she said the Nissan was behind her. Ms Saadouni suggested it probably occurred when she pushed the scooter away.
4. Ms Saadouni was adamant that she was not filtering, stating she would not filter into a lane that was going nowhere. When asked how there was room for the Nissan to come up beside her vehicle if she remained within her lane Ms Saadouni said "that is the question". She did not know the answer, although she suggested the only reason it was possible was because the traffic was very slow, at about 20 kmph.
5. Ms Saadouni said she did not know Emad, he simply happened to be on the scene, and he took the photographs.
6. I asked Ms Saadouni about her statement dated 10 September 2025 in which she stated a Lexus attempted to pass her on the right and in doing so, she felt an impact on her legs.

Ms Saadouni said she did not understand the issue where the Lexus has attempted to pass her on the right. Ms Saadouni suggested the referral to the dent on the side wheel of the Lexus which appeared in that statement was probably a typo. 7. In response to questioning from Ms Allen and noting that it all happened very quickly

Ms Saadouni was unclear whether the initial impact was between the Nissan and her leg or between the Nissan and her scooter although she ultimately concluded the initial impact was with the scooter which caused her to lose balance before it touched her leg. 8. Ms Saadouni said at the time of impact she was on the right side of the left lane. She again stated she needed to merge because her lane was going to disappear. Ms Saadouni's attention was drawn to photograph 4 (see below). However, she was not prepared to concede that her evidence that the lanes were going to merge was incorrect. When it was suggested, there was no merging of the lanes for another two or three blocks Ms Saadouni responded, "no two blocks". 9. Ms Saadouni stated after the impact the Nissan continued and did not stop until others yelled at him to stop. Ms Saadouni was referred to photograph 4 but refused to concede the Nissan had not remained in motion given it had stopped behind her scooter.

1. Photographs 1, 2 and 3 contained in the report do not depict the location of the accident.
2. Photograph 4 shown below was reportedly furnished by the insured driver depicting the vehicles including the motorcycle immediately following the accident:

1. Photograph 5 below depicts damage to the insured vehicle, the Nissan:

Record of interview between Paul Horton, investigator and Zhen Yao

1. The report includes the record of a telephone interview between Mr Horton and Mr Zao on

5 June 2024 in respect of the accident.[5] 2. Mr Zao was born in China but was comfortable with the interview being conducted in English. He described himself as a very experienced driver with a clear driving record. At the time of the accident, he was driving a new Nissan X-trail. He had been driving for less than one hour at the time of the accident and had not consumed any drugs or alcohol before the accident. Mr Zao was wearing a seatbelt at the time. He was accompanied by a passenger who has now returned to China. 3. Adopting the numbering contained in the record of interview the following relevant paragraphs were reported:

"Q50. ... Just in your own words in as much detail as you can, can you tell me what happened?

1. Oh, yeah. Um, I was driving around the Market Street, ah, from Elizabeth Street towards Castlereagh Street which I meant to ah, drive along then turn left towards Castlereagh Street. I was driving on the very left lane of the Market Street and suddenly I was hit on the right side which is my driver side door from the right.

1. ... ah, and I noticed that's a, it's a motorbike and ah, and then its bumped to another car in the front ...

1. ... ah, in our lane. I, I ??? (voice distortion) started to impact the rider of the motorbike ...

1. ... um, and the driver of the other car in the middle lane called the Police and ambulance ...

Q 60 So, was it a case where you know sometimes how the motorbikes they filter in between the lanes, was that what was happening with the motorbike? It was kind of going in between the cars?

1. Oh, the motorbike's basically ... cause it's just a sudden, a split second ...

1. ... and, I heard someone, something hit my driver side of the door and it bump into the front bar and then bump into another car in the middle lane and, and I immediately stop it and that's, that's where the photo and video I shown it to you ??? (mumbling).

Q 76. So, were you stopped at the time of the accident? ... Were you flowing or were you stopped or going slow?

Q 77. Yeah. Okay. Yeah. So, it sound to me it sounds like she was kind of lane filtering. Would that be accurate? Going in between cars:

Q 78 Like you know how the motorbikes or the scooters kind of filter in between the cars so they go in between you know, the cars and the dividing line and she may have overbalanced. Does that sound about right?

1. Yeah. I, I don't want to guestimate or whatever. I'm just trying ...

1. ... to say the facts 'cause what I realised was she hit me on the driver side door and scratch, there's a scratch, dents there, over there as well ...

1. ... and her ... she lost balance and ah, and she's tried to ... you know I think she hit another car which is in the middle and stopped. So, both of the cars stopped ...

1. ... and it stopped in the, in the middle and fell over and that's ...

1. Mr Zhen Zao reported he was driving along Market Street when the claimant's scooter (which he described as a motorbike) bumped his driver's door from his right and then bumped into another car in front in the middle lane causing the claimant to fall. Mr Zao said he stopped his car immediately and checked the rider of the scooter. He stated the driver of the other car from the middle lane called the police and ambulance. Mr Zao said the impact was in Market Street between Elizabeth and Castlereagh Streets. He estimated his speed was probably about 30 kmph. Mr Zao said he was not distracted, he was not using his telephone, and he was actually taking a guest to the airport. Mr Zao said he was wholly within the left lane because he needed to turn onto Castlereagh Street.
2. When asked if he saw the motorbike in front of him at the time he turned into Market Street, Mr Zao stated he didn't see her at all until she bumped into his car. He said the first thing he heard was a scratch on the right side of the driver's seat, then a bumping of the motorbike with his car. Mr Zao was asked whether it was possible Ms Saadouni was in his blindspot. Mr Yao thought it was unlikely because he had been driving for a long time without any accident, he was driving on the very left side of the street, and he was driving really slowly.

1. A statement signed by Ehmad (no surname) dated 10 January 2024 states he is a barber at Westfield Sydney.[6] Ehmad states:

"I witnessed the entire incident during my lunch break on January 1, 2024. From my vantage point, I saw the Nissan vehicle with license plate YJQ97B driving aggressively and appearing to be inattentive. The driver collided with the motorcycle and continued pushing it into another car without stopping. The motorcyclist was forced off their vehicle and onto the road due to the Nissan actions.

It was evident to me that the Nissan driver only stopped because people on the street began shouting and signalling for them to halt. Based on what I observed, the Nissan's driver drove into Alexia's motorcycle, KTD26."

1. Ms Saadouni sustained a partial-thickness tear to her plantar Lisfranc ligament, and she also complained of neck stiffness and lower back pain.
2. On 3 April 2024 she underwent surgery under the care of Dr Gordon Slater, orthopaedic surgeon by way of left foot stabilisation of Lisfranc joints, PRP midfoot stabilisation surgery.[7]
3. The claimant came under the care of Mr Sasha Roshan, orthopaedic surgeon. In December 2024 the claimant underwent removal of the internal fixation devices.[8] On 14 February 2025 he reported she had restored near normal function in the left foot although she still reported a degree of residual inflammation and swelling. He recommended further rehabilitation and strengthening activities.
4. Ms Saadouni subsequently moved to France where she underwent thermal treatment.[9]

1. The claimant's submissions are contained in her statement dated 10 September 2025.
2. She submits the police report was not written until 14 days after the accident which raised questions about the accuracy and reliability of the report. She also notes factual errors in the report by the Allianz appointed investigator, in particular, the photographs of Market Street which do not depict where the accident occurred. She asserts that the accident occurred in front of Westfield between Castlereagh and Pitt Streets.
3. Ms Saadouni submits the assertion that she had been "filtering" traffic does not explain the injuries to her legs or the dent on the side wheel of the Lexus. She submits the physical evidence supports her version of events.
4. Ms Saadouni submits the handling of the matter by Allianz has had an adverse emotional impact upon her. In addition, the accident has had a profound financial and personal impact. Ms Saadouni states she was unable to maintain her job as a hairdresser because she was no longer able to cope with the demands of long shifts on her feet. She was also pregnant meaning she had to cope with a pregnancy with a painful foot, an inability to perform her job and the ultimate loss of employment.

1. The insurer provided submissions dated 7 November 2025. The insurer notes the claimant and the insured driver provide differing versions of events.
2. The accident occurred in Market Street, Sydney. The insured driver asserts the claimant was riding her motorcycle between two cars when the collision occurred. The insured driver asserts the claimant's motorcycle impacted with the front driver's side of his vehicle, a Nissan station wagon before impacting with a Lexus vehicle driven by Elias Habelrich.

Mr Habelrich did not see either collision. 3. Having regard to the decision of Mitchelmore J in AAI Ltd t/as GIO v Evic the insurer submits the issue for determination is as follows:

(a) 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 knew or ought to have known as set by s 5R(2)(a) of the CLA;

(b) what is the insured's culpability, determined by considering whether he breached his duty of care to the claimant as a fellow road user. While the claimant does not have to prove breach of duty of care on the part of the insured driver to establish an entitlement to ongoing benefits, Shuk requires a finding to establish whether there is any culpability on the part of the driver to determine the degree of that culpability relative to the claimant's culpability,[10] and

(c) if the claimant has contributed to the cause of this accident, then what is the degree of her contributory negligence?

1. The insurer submits a contemporaneous photographs of the accident scene provided by the claimant shows the insured vehicle and the Lexus within their lanes and the claimant's motorcycle in between the lanes and the vehicles.
2. The insurer submits there is no reliable evidence that the insured vehicle failed to stay in its lane or was manoeuvred in a way that led to it colliding with the claimant. The insurer submits this is consistent with the claimant's statement.
3. The insurer submits the claimant has provided inconsistent versions of events as follows:

(a) In the Application for personal injury benefits the claimant reported:

"The driver with Nissan car run into me and crashed the motorbike between the 2 cars";

(b) In the letter for internal review the claimant stated:

"I was driving on the left lane. ... While proceeding on my lane, the driver of a Nissan vehicle (license plate YJQ97B) suddenly drove into me, pushing my motorcycle against another vehicle, ... the impact caused me to lose control and the Nissan driver continued to push my motorcycle further into the outer lane. ... The Nissan's actions forced me to extract myself from the motorcycle and escape further injury, but I was ultimately pushed against another car";

(c) in the letter to the Commission the claimant indicated she believed the driver of the Lexus was at fault: She stated:

"I was in the left lane, which was about to merge, and I was preparing to move into the middle lane. Due to heavy and slow traffic, I had not yet put on my indicator At that moment, A Lexus attempted to pass me on the right. While doing so, I suddenly felt an impact on my legs. Fearing I would be crushed, I pushed my motorbike to extract myself. The vehicle continued moving forward until bystanders shouted for the driver to stop", and

(d) in the application form completed by the claimant for the internal review dated

15 January 2025 the claimant states she did not collide with the third vehicle stating:

"I was not filtering during the car accident.... I was already in the left lane and Nissan's driver completely drove into me. ... Mr Zhao kept saying I hit the other car but the other car had no damages".

1. The insurer submits the claimant's versions of events are inconsistent and therefore unreliable. Further the inconsistent versions do not accord with the contemporaneous photograph. The insurer submits the evidence indicates that the claimant rode her motorcycle in an unsafe manner and collided with the insured driver's vehicle, as she was travelling between two lanes - illegally lane filtering.
2. Further, the insurer submits if the claimant is found to be not wholly at fault, the evidence supports a conclusion that she was mostly at fault, her contributory negligence being greater than 61%.

1. Factual findings must be supported by logically probative evidence and any inferences drawn must be reasonably open on the facts.[11]
2. The following facts were not in dispute:

(a) the accident occurred on 1 January 2024 at about 12.00pm;

(b) the weather was fine;

(c) at the site of the collision Market Street was a one way street with three lanes;

(d) at the time of the accident the claimant was riding her motor scooter KTD26;

(e) at the time of the accident the insured driver, Zhen Zao was driving a Nissan X-trail YJQ97B in the left lane;

(f) at the time of the accident Elias Habelrich was driving a Lexus station wagon HTD400 in the middle lane;

(g) Mr Habelrich did not see the collision.

(h) at the time of the accident the traffic was moving slowly, according to the claimant at about 20 kmph and according to Mr Zao at about 30 kmph, and

(i) as a result of a collision the claimant sustained injury to her left foot for which she underwent surgery on 3 April 2024.

1. Ms Saadouni alleged the accident occurred in Market Street Sydney, between Castlereagh Street and Pitt Street near the entrance to Myers, although I note in the Application for personal injury benefits the claimant said the accident occurred between Pitt Street and George Street in the Sydney CBD.
2. Mr Yao's evidence was that the accident occurred on Market Street between Elizabeth Street and Castlereagh Street, Sydney.
3. The second photograph of the scooter in situ following the accident which appears at paragraph 23 above shows that the accident occurred in Market Street, between Elizabeth Street (where St James Station can be seen) and Castlereagh Street, Sydney. This is consistent with the police report, noting police attended the scene following the accident.
4. I find the accident occurred in Market Street between Elizabeth Street and Castlereagh Street Sydney consistent with the evidence of Mr Zao, with the police report and with the photographs.

Whether the left lane was about to end requiring the claimant to merge into the middle lane

1. Ms Saadouni was adamant that she was in the left lane but intended to merge into the middle lane because her lane was about to end.
2. When questioned at the assessment conference and shown photograph 4 from the investigators report which appears at paragraph 35 above Ms Saadouni was not prepared to concede that her evidence that the left lane was going to disappear was incorrect, although ultimately, she conceded it may not have been for two blocks.
3. Consistently with what can be observed of Market Street in photograph 4 and as a matter of common knowledge I find there was no need for Ms Saadouni to merge into the middle lane because the left lane was about to end. Indeed, the left lane continues for at least two further blocks.

Whether the Nissan only stopped because bystanders yelled at him to do so

1. Ms Saadouni was adamant that the Nissan continued moving until bystanders shouted at him to stop.
2. Ms Saadouni relies upon a statement of Ehmad of Ehmad's Barber. Unfortunately, the statement of Ehmad is not signed, it does not include his full name and address and is extremely brief. His statement does not address the following:
   • the location of the accident;
   • details of the position of the vehicles on the road at the time of the accident;
   • details of the surrounding traffic;
   • details as to the estimated speed of the vehicles and the surrounding traffic;
   • details of the lane configuration at the accident site;
   • where his vantage point was at the time he asserts he witnessed the accident, and
   • details of the impact between the scooter and the Nissan vehicle.
3. Accordingly, I do not propose to give any weight to Ehmad's statement.
4. In his statement Mr Zao said he immediately stopped when he saw Ms Saadouni fall from the scooter. He stated he got out of his car and checked on Ms Saadouni while the driver of the Lexus called the police and ambulance.
5. I have no doubt bystanders who witnessed the collision yelled at the vehicles to stop and that Ms Saadouni would have heard those calls. However, it is clear from the photographic evidence that the Nissan vehicle stopped in the near vicinity of the scooter. Having regard to both the photographic evidence and the evidence of Mr Zao I find that he stopped his vehicle following the accident and not merely in response to calls from bystanders.

The location of the scooter on the road immediately prior to the collision

1. This is the crux of the dispute. Ms Saadouni insists she was travelling on the right side of the left lane closest to the kerb and the Nissan came from behind.
2. Mr Zao did not see the claimant before the collision and said he did not see the scooter driving in the left-hand lane in front of him and indeed, he described it as "clear in front".
3. Mr Zao described the damage sustained to the Nissan as a scratch and dent to the driver's side door. Whilst I am cognisant of the need to use caution when considering photographic evidence, the photograph of the Nissan clearly shows damage to the driver's door behind the wheel arch.[12] The damage shown in that photograph is consistent with the evidence of Mr Zao. It is difficult to understand how the only damage sustained to the Nissan was to the driver's door if Ms Saadouni was riding her scooter in the left lane in front of the Nissan. If Ms Saadouni was riding in front of the Nissan and the Nissan collided with the scooter from the rear it was more likely any damage to the Nissan would have been to the front of the vehicle. However, the only damage to the Nissan was to the driver's door.
4. Ms Saadouni suggested Mr Yao may have been on his telephone at the time of the accident and whilst he conceded he did not see the scooter, he was adamant he was not on his phone and was not distracted.
5. I had an opportunity to assess Ms Saadouni and Mr Zao when they were questioned at the assessment conference. Ms Saadouni was argumentative and not prepared to make any concessions even where it was clear on the photographic evidence that her version was inaccurate. Her evidence was inaccurate as to where in Market Street the accident occurred and as to the need to merge into the middle lane because the left lane was about to end. Mr Zao gave his evidence dispassionately and, in my view, honestly. Indeed, when the investigator attempted to encourage him to conclude that Ms Saadouni was lane filtering at the time of the accident, he stated he did not want to guestimate. I prefer the evidence of Mr Zao.
6. The two photographs of the vehicles in situ at paragraph 22 above show both the Nissan and the Lexus travelling squarely in their lanes. The position of the scooter is not consistent with a collision occurring from behind as alleged by Ms Saadouni.
7. I have already concluded the left lane was not about to end and there was no need to merge into the middle lane and do not accept Ms Saadouni's bike was positioned to the right-hand side of the lane because she was waiting to change lane.
8. My concern about the accuracy of Ms Saadouni's version of events is highlighted by the inconsistencies which are apparent between the version of events in the Application for personal injury benefits dated 2 February 2024, in the letter for internal review dated

15 January 2025 and in the letter to the Commission dated 10 September 2025. 9. The position of the scooter on the road is consistent with a version of events where the claimant came from behind on her scooter, and in attempting to lane filter between the vehicles bumped the Nissan, resulting in the scratch and dent to the door, and then as she pushed forward she lost balance, knocked the Lexus and her bike fell to the ground. I am also satisfied that this conclusion is consistent with the diagram provided by Ms Saadouni in the Application for personal injury benefits as to how the accident occurred as depicted in paragraph 17 above.

1. There is no dispute Ms Saadouni was injured in an accident involving the use or operation of a motor vehicle in accordance with s 1.4 of the MAI Act.
2. The burden of proof in establishing that the accident was caused mostly or wholly by the fault of the claimant rests with the insurer.
3. In AAI Limited t/as GIO v Evic Mitchelmore J held:

(a) sections 3.11 and 3.28 operate to cease the payment of statutory benefits to a person under Div 3.3 and 3.4, respectively, if one of the two conditions in subs (1) is satisfied. The focus of the condition, and the relevant enquiry, in paragraph (a) is whether the motor accident, as defined in s 1.4, was caused "wholly or mostly by the fault of the person", being the injured person who is in receipt of the relevant benefits. The qualifiers "wholly or mostly" inform each other and are intended to address the same mischief, namely, contributory negligence;[13]

(b) where there is more than one motor vehicle involved in a motor accident, or where a motor accident involves a pedestrian, s 3.11 accommodates an assessment of the contributory negligence of the claimant as per Allianz Australia Insurance Limited v Shuk[14];

(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. The sections (and s 3.36) use the word "fault" accompanied by a qualifying phrase ("wholly or mostly") which clearly invokes contributory negligence. ... the provisions are concerned with contributory negligence not for the injury, but for the motor accident, in a manner that accommodates all types of motor accidents, including single vehicle accidents where the injured person is the owner driver;[15]

(d) the words "wholly or mostly" do not require comparison of the acts of at least two parties;[16]

(e) as per Axiak v Ingram[17] in the context of a blameless accident the concept of contributory negligence requires an assessment of the extent to which the plaintiff departed from the standard of care he or she is required to observe in the interests of his or her own safety;[18]

(f) both Axiak[19] and Davis v Swift[20] illustrate that the inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence (in cases involving what is now known as a "no fault accident");[21]

(g) an injured person may be "wholly at fault", consistently with the enacted law that permits a finding of 100% contributory negligence,[22] and

(h) the exercise to which s 3.38(3)(c) is directed, namely, assessing what is just and equitable in the circumstances of the case, is one that could be carried out in respect of the conduct of an owner driver in the context of a single vehicle accident.[23]

1. In Manley v Alexander[24] the majority in the High Court stated at [12]:

"...the reasonable care that a driver must exercise when driving a vehicle on the road requires that the driver control the speed and direction of the vehicle in such a way that the driver may know what is happening in the vicinity of the vehicle in time to take reasonable steps to react to those events..."

1. I find that Ms Saadouni's failure to take reasonable care contributed to the accident where I find she was filtering between the lanes and in doing so her scooter collided with the Nissan vehicle which caused her to become unbalanced and lose control causing the motor accident.
2. However, it is clear from the decision in Manley negligence by another does not extinguish the insured driver's obligation to exercise a degree of care in the circumstances. In accordance with Shuk I am required to determine whether the insured driver breached his duty of care to the claimant as a fellow road user and if so, to determine the degree of his culpability relative to the claimant's culpability.
3. Mr Zao, the insured driver conceded he did not see the claimant before the accident.
4. I find had Mr Zao been keeping a proper lookout he should have observed the claimant's scooter coming up behind him. Ms Allen submitted the failure of the insured driver to see the scooter was not causative of the accident. However, I find that had he been aware of the presence of the scooter on the road, Mr Zao may have been able to take evasive action by moving further to the left which may have avoided the collision and that his failure to keep a proper lookout constitutes a breach of his duty of care to the claimant as a fellow road user.
5. Therefore, I do not find Ms Saadouni to be wholly at fault.
6. However, I am satisfied Ms Saadouni did contribute to the cause of the accident and that her contribution to the accident was much greater than that of the insured driver. The risk of harm was foreseeable and a reasonable person in her position ought to have exercised reasonable care for her own safety by not filtering between the traffic, by keeping a proper lookout and by riding her scooter safely in the left lane of traffic behind the insured vehicle.
7. Having found that the accident was caused by the failure of the claimant to take reasonable care the determination of contributory negligence under s 3.38(3)(c) of the MAI Act requires an assessment of what is just and reasonable in the circumstances.[25]
8. What is the degree of that contributory negligence, keeping in mind that a finding of contributory negligence greater than 61% means that the claimant was mostly at fault?
9. In Podrebersek v Australian Iron and Steel[26] the High Court at [10] stated:

"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage ...and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case."

1. I find that the degree of departure from the standard of care of Ms Saadouni by reason of her failure to ride safely, to keep a proper lookout and to avoid colliding with the insured vehicle was significant. Weighing up the comparison of culpability as per Podrebersek I am satisfied that the degree of departure from the standard of the reasonable person displayed by Ms Saadouni in the circumstances would amount to a finding of contributory negligence of 80%.
2. I find Ms Saadouni was mostly at fault in that her contributory negligence was greater than 61%.

1. For the purposes of s 3.11 of the MAI Act the claimant was mostly at fault for the accident.

For the purposes of s 3.28 of the MAI Act the claimant was mostly at fault for the accident.

[10] Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788.

[11] Australian Broadcasting Tribunal v Bond (1990) CLR 321; [1990] HCA 33 at [367].

[12] Blacktown City Council v Hocking [20098] NSWCA 144.

[13] AAI Limited t/as GIO v Evic [2024] NSWSC 1271 at [56].

[14] Allianz Australia Insurance Limited v Shuk [2023] NSWSC 788 and Evic at [61].

[17] Axiak v Ingram 920120 82 NSWLR 36; [2012] NSWCA 311.

[19] Axiak v Ingram 920120 82 NSWLR 36; [2012] NSWCA 311.

[20] Davis v Swift [2014] NSWCA 458, 69 MVR 375.

[24] Manley v Alexander [2005] HCA 79.

[26] [1985] HCA 34; (1985) 59 ALR 529.