In Brief
- In single vehicle accidents, a driver's contributory negligence is measured by the extent they departed from the standard of care required of them to protect their own safety.
- A driver will only be found to be 100% responsible for the accident, and therefore wholly at fault, where their departure from the required standard of care is in the worst possible category.
Facts
The Personal Injury Commission (PIC) published its decision in CMB v QBE Insurance (Australia) Limited [2025] NSWPIC 420 on 29 August 2025.
The Claimant was injured in a motor accident on 23 August 2022. QBE denied liability for ongoing statutory benefits, beyond 52 weeks, because they determined that the Claimant was wholly at fault for his accident.
There was no dispute that the Claimant's vehicle left the roadway and collided with a telegraph pole. The Insurer alleged that the accident was wholly caused by the Claimant's want of care. The Claimant ultimately alleged that he lost control because a vehicle heading in the other direction came onto the wrong side of the road and he had to swerve to avoid a head-on collision. The matter was complicated, however, by the fact that the Claimant also alleged that he may have swerved to avoid a vehicle exiting from a driveway.
Determining what actually happened was complicated by the fact that the Claimant, at some point post-accident, was found to lack legal capacity. The Commission, however, had access to various witness accounts together with some CCTV of the accident.
The PIC Member ultimately made the following findings of fact.
- Contrary to the Claimant's claim, an oncoming vehicle did not veer into his path, causing him to swerve and loss control.
- Also contrary to the Claimant's claim, a vehicle did not exit from a driveway, causing him to swerve.
- The Claimant was driving at approximately 80kph in a 60 zone.
The Member's Decision
Having determined that the accident was a single vehicle accident, the PIC Member found that the Claimant was mostly at fault, for the following reasons:
1. Pursuant to the Supreme Court decision of AAI Limited t/as GIO v Evic [2024] NSWSC 1272:
- The qualifiers "wholly or mostly" inform each other and are intended to address the same mischief, namely, contributory negligence.
- Where there are two or more vehicles involved in the accident, an assessment of contributory negligence requires the decision maker to assess the relative culpability of each party.
- In a single vehicle accident, however, where there is only one party involved, contributory negligence is assessed by looking at the extent to which the driver's behaviour departed from the reasonable standard of care required of them to protect their own safety.
- An injured person may be "wholly at fault", consistent with the enacted law that permits a finding of 100% contributory negligence.
2. In Manley v Alexander [2005] HCA 79, the High Court stated that "...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...".
3. A finding of 100% contributory negligence can be found where the departure from the standard of care is found to constitute "a worse possible case".
4. Given the absence of alcohol or drugs, the circumstances in this dispute do not involve the worst possible case.
Ultimately, the PIC Member was not able to assign a percentage figure on the Claimant's contributory negligence. Whilst not prepared to find 100% contributory negligence, the PIC Member ultimately certified that the Claimant's contributory negligence exceeded 61% and that the Claimant was, therefore, mostly at fault.
Why This Case is Important
The decision in CMB illustrates, once again, that a driver in a single vehicle motor accident is not wholly or mostly at fault merely because they were the only person involved in the accident.
As established by the Supreme Court in Evic, in single vehicle accidents, contributory negligence is assessed by measuring the extent to which the Claimant's driving behaviour departed from the standard of care required of them to protect their own safety.
As we have seen in other PIC Decisions post-Evic, that departure might range from a momentary lapse of attention to gross negligence. The task for the Insurer, at first instance, and the PIC Member is to place a percentage on that departure.
The decision in CMB reminds us that a finding of 100% contributory negligence – or that the Claimant was wholly at fault – is reserved for a worst possible scenario. The PIC Member assumed a worst case might involve alcohol or drugs.
A finding of between 61% and 100% contributory negligence – or that the Claimant was mostly at fault – is still available if the Claimant's departure from the required standard of care is significant but not in the worst case.
Whether the Claimant is found to be wholly at fault or mostly at fault, the outcome is still the same. They are not entitled to ongoing statutory benefits beyond 52 weeks.
Our Case Note on Evic can be found here.
To explore other claims where PIC Members have applied Evic:
- Evic Applied – Assessing Contributory Negligence in Single Vehicle Accidents
- Evic Rides Again – Driver in Single Vehicle Accident Not Mostly at Fault
- Slippery When Wet – When an Unsafe Speed Means You're Livin' on a Prayer
- Bicyclist Found Wholly at Fault
If you would like to discuss this case note, please don't hesitate to get in touch with CTP Practice Group Leader Peter Hunt today.
Additional McCabes Resources
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