In Brief
- In most-at-fault disputes, the onus is on the Insurer to demonstrate what happened and that the accident was caused, wholly or mostly, by the Claimant's fault.
- Whilst the required standard is "reasonable satisfaction", that crossbar is high given that the Claimant's entitlement to ongoing statutory benefits will end if the Insurer satisfies the Commission that the Claimant was wholly or mostly at fault.
Facts
The PIC published its decision in PXAYL v Insurance Australia Ltd t/as NRMA Insurance [2025] NSWPIC 324 on 18 July 2025.
On 26 June 2024, at approximately 8.15am, the Claimant was driving in the middle of three lanes along The Northern Road, Glenmore Park. Her intention was to merge into the lane on her left because she wanted to make a left hand turn into Jamison Road.
In the meantime, the Insured had entered The Northern Road from Garswood Road and entered the lane to the Claimant's left.
The Claimant started to merge into the lane to her left and the front left wheel of the Claimant's vehicle collided with the front right bumper and wheelarch of the Insured vehicle.
The Insurer served a Liability Notice denying liability for ongoing statutory benefits on the grounds that the accident was wholly or mostly caused by the Claimant's fault.
The Insurer alleged that the Claimant failed to maintain a proper lookout when merging to her left.
The Claimant argued that the Insured was at fault because they failed to notice the Claimant merging into the kerbside lane when they entered The Northern Road from Garswood Road.
Following an unsuccessful Internal Review, the Claimant lodged a Miscellaneous Assessment in the Personal Injury Commission.
The Member's Decision
The Member determined that the Claimant was not wholly or mostly at fault for the following reasons:
- The onus is on the Insurer to prove that the accident was caused wholly or mostly by the Claimant's fault.
- Whilst the standard is one of "reasonable satisfaction", careful regard must be had to the nature, strength and limitations of the available evidence given that the consequences are serious. The Claimant will be disentitled from ongoing benefits.
- Clause 149(2) of the Road Rules 2014 provides that a driver moving from one line of traffic to another must give way to any vehicle already travelling in the destination lane. The rule only applies, however, if the Insured was, in fact, already occupying the destination lane when the Claimant began to merge.
- The geometry of the road and the damage profile to each vehicle was consistent with both vehicles entering the kerbside lane at roughly the same time.
- The evidence failed to establish that the Claimant's version was implausible.
- In those circumstances, the Insurer failed to discharge its burden of demonstrating that the Claimant was wholly or mostly at fault.
Why This Case is Important
The decision in PXAYL illustrates the challenges facing Insurers when the circumstances of an accident are ambiguous.
Putting it bluntly, the Insurer fails to discharge its onus of proving that the Claimant was wholly or mostly at fault if it fails to demonstrate, through cogent evidence, how the accident occurred.
If you would like to discuss this case note, please don't hesitate to get in touch with CTP Insurance Principal Peter Hunt today.
Additional McCabes Resources
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