Same but Different? Liability in Statutory Benefits versus Liability in a Claim for Damages

In Brief

• Liability in a statutory benefits claim is assessed differently from how liability is assessed in a claim for common law damages.
• In a statutory benefits claim, the Claimant is entitled to ongoing benefits unless the Insurer demonstrates that the Claimant was wholly or mostly at fault for the accident (ie: more than 61% responsible).
• In a common law damages claim, the Claimant is only entitled to damages if they demonstrate that the Insured was negligent or that they were injured in a No-Fault Accident as defined by section 5.1 of the Motor Accident Injuries Act 2017 (MAIA).
• The words “fault of any other person” in the definition of a No-Fault Accident do not include any fault by the Claimant.
• If the Claimant was injured in a No-Fault Accident, their contributory negligence is assessed by reference to the extent they departed from the standard of care expected of them in the circumstances.

Facts

The PIC published its decisions in Macdonald v Allianz Australia Insurance Limited [2025] NSWPIC 284 and Macdonald v Allianz Australia Insurance Limited (No 2) [2025] NSWPIC 291 on 4 July 2025.

On 10 September 2021, the Claimant was riding his bicycle in Jamberoo. He came to the intersection of Jerrara Road and Jamberoo Road when a collision occurred with a bus.

The intersection was a “T” intersection with Jerrara Road forming the stem of the “T” and Jamberoo Road forming the horizontal. The intersection was controlled by a Give Way sign and a broken white line for traffic entering Jamberoo Road.

The Claimant rode his bicycle along Jerrara Road, towards the intersection with Jamberoo Road. The Insured bus was approaching the Claimant, along Jamberoo Road, from the Claimant’s right.

As a consequence of his injuries, the Claimant had no recollection of the accident. He alleged he was an experienced and cautious bike rider and that it was not in his nature to disobey a Give Way sign and ride into the path of an oncoming bus.

The Insured bus driver stated that he saw the Claimant approaching the intersection and that the Claimant increased his pace and rode his bicycle into his path.

The Insurer denied liability for both ongoing statutory benefits and common law damages on the grounds that the accident was wholly caused by the Claimant’s want of care.

The Member’s Decision– Most at Fault Dispute

The Member found that the Claimant was wholly or mostly at fault for the accident for the following reasons:

• Whilst the Claimant was, undoubtedly, an experienced and cautious bike rider, he was not quarantined from making an error of judgment.
• The Claimant most likely saw the oncoming bus but misjudged whether he had time and space to enter the intersection.
• The Insured bus driver was not at fault because he was entitled to assume that the Claimant would obey the Give Way sign and allow the bus to pass before entering the intersection.
• Any error of judgment made by the Insured bus driver, in reacting to the presence of the Claimant’s bicycle in his path, was in the agony of the moment and did not amount to negligence.

Given that the accident was caused mostly by the Claimant’s fault, he was not entitled to ongoing statutory benefits beyond 52 weeks.

The Member’s Decision– Damages Dispute

In the Damages dispute, the Member upheld her decision that the Insured bus driver did not breach the duty of care he owed the Claimant.

The Member found, however, that the Claimant was entitled to damages because he was injured in a No-Fault Accidentwithin the meaning of Part 5 of MAIA. The Member came to the conclusion that Part 5 applied for the following reasons:

• Section 5.1 of MAIA defines a “no-fault motor accident” as “a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person“.
• As a bicyclist, the Claimant does not fall within “the owner of driver of any motor vehicle in the in the accident…”.
• Pursuant to the leading authority of Axiak v Ingram [2012] NSWCA 311 at [66], the words “any other person” cannot include the Claimant.
• Pursuant to section 5.2 of MAIA, therefore, the accident was deemed to have been caused by the fault of the driver of the Insured bus.

The Member observed that in No-Fault Accident claims, contributory negligence is assessed by reference to the extent the Claimant departed from the standard of care required to protect their own safety. The Member proceeded to measure the Claimant’s contributory negligence at 75% for the following reasons:

• The Claimant entered Jamberoo Road against a Give Way sign.
• The Claimant failed to maintain a proper lookout.
• On the Claimant’s own case, he probably saw the Insured bus but misjudged the distance.
• There was no evidence that the bus was travelling at excessive speed.

The Member therefore concluded that the Insurer was liable to the Claimant for damages under the No-Fault Accidentprovisions in Part 5 but reduced those damages by 75% for the Claimant’s contributory negligence.

Why This Case is Important 

The two decisions in Macdonald provide a useful example of the different factors which are at play when assessing liability in a statutory benefits claim and a claim for common law damages.

In this case, the Claimant was not entitled to ongoing statutory benefits because they were found to be most-at-fault for their accident. They were, however, entitled to common law damages because they established they were injured in a No-Fault Accident, albeit heavily discounted for their contributory negligence.

It is worth remembering, in this regard, that the No-Fault Accident provisions in Part 5 of MAIA have no application to the statutory benefits regime in Part 3 – AAI Limited v Singh [2019] NSWSC 1300 at [25].

In different circumstances, a hypothetical Claimant might be entitled to ongoing statutory benefits because they were not wholly or mostly at fault, but they may have no entitlement to common law damages because they have nobody to sue. This scenario arises, for example, where the Claimant is the driver in a single vehicle accident and the accident resulted from a momentary lapse which did not render the Claimant most-at-fault.

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

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner