Driver Most-at-Fault for Aggressive Merging Manoeuvre

In Brief

• A Claimant is not entitled to ongoing statutory benefits, beyond 52 weeks if their contribution to the cause of the accident exceeds 61%.
• In most-at-fault disputes, the only issue is whether the Claimant’s contributory negligence exceeds 61%.
• In multi-vehicle accidents, the Claimant’s contributory negligence is assessed by reference to the relative culpability of each vehicle involved in the accident.

Background

The decision in Contos v Allianz Australia Insurance Limited [2026] NSWPIC 187  was delivered on 2 April 2026 and published on 17 April 2026.

On 4 December 2023, the Claimant was driving in Punchbowl. He came to a stop at the stem of a T-intersection before turning left onto Punchbowl Road. He immediately moved into the right lane because he intended making a right hand turn at Elliot Street. At around the same time, the Insured merged from the left lane on Punchbowl Road into the right lane and a collision resulted.

The Insurer denied liability beyond 52 weeks on the grounds that the Claimant was wholly or mostly at fault for the accident.

The Claimant lodged a Miscellaneous Assessment in the Personal Injury Commission to resolve the dispute.

Findings of Fact

The Member made the following findings of fact:

• The Insured was initially travelling in the left lane of Punchbowl Road.
• The Insured passed the Claimant’s vehicle whilst the Claimant was stationary in the side street.
• The Claimant accelerated after turning right onto Punchbowl Road and was driving faster than the Insured (although neither party was speeding).
• The Insured merged from the left lane into the right lane at the time that the Claimant started his turn onto Punchbowl Road.
• The Insured checked before merging, but the Claimant was not yet behind him in Punchbowl Road.
• The Claimant, after making his right-hand turn, manoeuvred straight into the right lane.
• The Claimant’s vehicle collided with the Insured’s vehicle before the Insured had fully completed his merge into the right lane.

The Member’s Decision

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

• In a most-at-fault dispute, the Claimant does not have to prove that the Insured was at fault.
• The issue is whether the Claimant was guilty of contributory negligence because his driving departed from the requisite standard of care expected of him.
• The Claimant’s driving did depart from the required standard because he failed to anticipate that a vehicle ahead of him on Punchbowl Road might merge into the right lane, because he failed to turn into the right lane before merging into the left lane when it was safe and because he accelerated harshly as he came out of the right hand turn from the side street.
• The Insured’s driving departed from the required standard because he did not see the Claimant’s vehicle until the impact, which suggests that he was not as aware of his surroundings as he should have been.
• The Claimant was more culpable than the Insured because his aggressive manoeuvre as he pulled out onto Punchbowl Road, thus depriving him of the opportunity to see the Insured’s vehicle ahead of him, outweighed the Insured’s minor culpability.
• The Claimant was, therefore, 70% responsible for the accident and the Insured was 30% responsible..

Why This Case is Important

The decision in Contos 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 applied the following process:

• Decide what each party did wrong.
• Compare each party’s relative culpability.
• Place a percentage on that relative culpability.

Based on her factual findings, the Member found that the Claimant was 70% responsible and, therefore, most at fault.