In Brief
- In most-at-fault disputes, the onus is on the Insurer to satisfy the Member that the accident was wholly or mostly caused by the Claimant's want of care.
- The Insurer may fail to discharge that onus if there are other explanations for how the accident occurred, which are just as likely as the accident being explained by the Claimant's want of care.
Facts
The Personal Injury Commission (PIC) published its decision in Sheeran v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 274 on 27 June 2025.
On 12 December 2023 the Claimant was driving home along Scenic Drive at Budgewoi after visiting a friend. During the journey, the Claimant crossed over double white lines and entered the lane for opposing traffic. His vehicle collided with a RAV4 and a Hino truck travelling in the opposite direction.
The accident occurred during the day. The weather was fine. The road was dry. Visibility was good. The Claimant knew the route well. Neither speed nor alcohol were factors.
The Claimant had no memory of the moments leading up to the accident and did not know why he crossed onto the wrong side of the road.
The Insurer determined that the accident was wholly caused by the Claimant's failure to properly control his vehicle. The Insurer, therefore denied that the Claimant was entitled to ongoing statutory benefits beyond 52 weeks.
That decision was confirmed on Internal Review. The Claimant lodged an Application for Miscellaneous Assessment in the Commission.
The Member's Decision
The Member found that the Claimant was not wholly or mostly at fault for the accident for the following reasons:
1. Given the unusual circumstances of the accident, it was possible that the accident was caused by the Claimant's want of care.
2. The Member, however, did not feel an actual sense of persuasion that the Claimant's want of care caused the accident.
3. There were other possible explanations for the accident which were equally possible, including:
- The absence of medical evidence, notwithstanding, it was possible that the Claimant suffered an unexpected medical episode, particularly given that there was some evidence that his head was slumped when his vehicle crossed to the wrong side of the road.
- It was also possible that the Claimant experienced a "micro-sleep" which was also consistent with the evidence that his head was slumped when the vehicle crossed to the wrong side of the road.
4. Given the above, the Insurer failed to discharge its onus of demonstrating that the accident was wholly or mostly caused by the Claimant's want of care.
Why This Case is Important
The decision in Sheeran – together with last week's pick of PIC decisions (BVV v IAG) – reminds us that relying on the concept of res ipsa loquitor is fraught with difficulty.
As explained by Schmidt AJ in Richards from [101] to [105], res ipsa loquitor is an inferential reasoning process which allows a decision-maker to infer that a party was negligent where an accident, of the kind in question, would not ordinarily occur without negligence. Whilst that inferential reasoning process is available to a claimant trying to establish negligence or an insurer endeavouring to demonstrate contributory negligence, the outcome is far from automatic. The party relying on res ipsa loquitor must still persuade the decision-maker, through evidence and submissions, that an inference of negligence / contributory negligence should be drawn.
In Sheeran, the Member was not persuaded that it was more likely than not that the Claimant's want of care caused his vehicle to stray onto the wrong side of the road where other, equally possible, explanations existed.
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