How most At Fault disputes are assessed when the insured is not at fault

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Claimant loses benefits >52 weeks if mostly at fault, with negligence judged by how far their driving fell below the required standard when the insured wasn't at fault.

Australia Litigation, Mediation & Arbitration

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In Brief

Pursuant to s 3.11 and s 3.28 of theMotor Accident Injuries Act 2017, a Claimant is not entitled to ongoing statutory benefits, beyond 52 weeks, if they are wholly or mostly at fault for their accident.
If the Insured driver did not breach the duty of care they owed the Claimant, the Claimant's contributory negligence is measured by reference to the extent their driving departed from the required standard of care.

Facts

The Personal Injury Commission (PIC) published its decision in Raad v QBE Insurance (Australia) Limited [2025] NSWPIC 598 on 21 November 2025.

On 7 March 2024, the Claimant proceeded east on Osgathorpe Road at Gladesville. At the same time, the Insured was travelling north-west on Victoria Road in the lane closest to the kerb.

The Claimant looked both to her left and her right and saw no vehicles approaching. The Claimant proceeded to roll into the intersection, at 10 to 15 kph, and made a left hand turn onto Victoria Road.

The Insured was travelling below the speed limit, at 52 to 57 kph. Whilst the Insured was travelling in a dedicated bus lane, the bus lane was only operational until 7pm and the accident occurred after 9pm. The Insured was, therefore, lawfully using the bus lane at the time of the accident.

The front driver's side of the Claimant's vehicle collided with the front passenger side of the Insured vehicle.

The Insurer denied liability for ongoing statutory benefits beyond 52 weeks on the grounds that the Claimant was wholly or mostly at fault. That decision was confirmed on Internal Review and the Claimant lodged a Miscellaneous Assessment dispute in the Commission.

The Member's Decision

The Member found the Claimant most-at-fault for the following reasons:

Where two vehicles are involved in an accident, contributory negligence is normally assessed by reference to the relative culpability of the two drivers, provided both drivers are culpable.
Whilst the Claimant did not have to establish that the Insured breached their duty of care in order to establish liability for ongoing statutory benefits, a finding must be made regarding the Insured's breach, if any, in order to compare the relative culpability of the parties.
Given that the Insured was driving below the speed limit - and was not required to slow down every time they approached a side street - the Insured did not breach the duty of care they owed the Claimant.
In the absence of any breach by the Insured, the Claimant's contributory negligence must be assessed by reference to the extent their standard of driving departed from the required standard of care.
The Claimant's departure from the required standard of care was significant because she entered a major thoroughfare from a side street, without coming to a complete stop and without ensuring that there were no vehicles in the kerbside lane even though the Insured's vehicle was there to be seen.
The Claimant's recklessness warrants a finding of 80% contributory negligence.

Why This Case is Important

The decision in Raad provides yet another example of how the Supreme Court's decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272 is applied in practice.

The Member highlighted that relative culpability cannot be assessed without first determining whether the Insured breached the duty of care they owed to the Claimant.

If, however, the Insured did not breach any duty of care, the accident is then akin to a single vehicle accident given that only one driver was at fault. Relative culpability can not be compared when one party is not culpable.

In those circumstances, the Claimant's contributory negligence is measured by reference to the extent their driving behaviour departed from the standard of care required of them.

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.

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