Evic Applied – How to Assess Contributory Negligence in a Chain Collision

In Brief

• Pursuant to s 3.11 and s 3.28 of the Motor Accident Injuries Act 2017, a claimant is not entitled to ongoing statutory benefits, beyond 52 weeks, if their contributory negligence exceeds 61%.
• In multi-vehicle accidents, contributory negligence is assessed by comparing the relative culpability of all drivers involved in the accident.

Facts

The Personal Injury Commission (PIC) published its decision in Freitas v QBE Insurance (Australia) Limited [2025] NSWPIC 475 on 26 September 2025.

The Claimant was injured in a motor accident on 2 May 2024 when his motor vehicle collided with the rear of the vehicle ahead of him.

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

Three vehicles, all travelling in the same direction, were involved in the accident, in the following order:

• Vehicle A.
• Vehicle B.
• The Claimant’s Vehicle.

The PIC Member made the following findings of fact:

• It had been drizzling on the morning of the accident and the road was wet.
• The Claimant was riding his motorcycle at 40 kph.
• Vehicle A came to a stop.
• The driver of Vehicle B was faced with an emergency situation because the brake lights on Vehicle A were defective and did not illuminate.
• The driver of Vehicle B braked and managed to avoid colliding with Vehicle A.
• The Claimant also applied his brakes, but his rear wheel lost control due to the state of the wet road and because the motorbike did not have ABS brakes.
• The Claimant’s motorbike collided with the rear of Vehicle B.

The Member’s Decision

The Member found that the Claimant was not wholly or mostly at fault, for the following reasons:

• The Supreme Court decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272 applies to both single vehicle and multi-vehicle accidents.
• In multi-vehicle accidents, the Claimant’s contributory negligence is assessed by comparing the relative culpability of each driver involved in the accident.
• The driver of Vehicle A contributed to the cause of the accident by driving a vehicle which did not have effective brake lights.
• The driver of Vehicle B did not contribute to the cause of the accident. He was confronted with an emergency situation, braked immediately and successfully avoided a collision with the vehicle ahead of him.
• The Claimant contributed to the cause of his accident because he knew that the road was wet and that his motorbike did not have ABS brakes. As such, a reasonable person in his position would have left extra time and distance between his vehicle and the vehicle ahead.
• The Claimant and the driver of Vehicle A were equally responsible for the accident.
• The Claimant’s contributory negligence was, therefore, 50%

Why This Case is Important 

The Supreme Court’s decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272 was something of a game-changer because it clarified that, in single vehicle motor accidents, the driver’s contributory negligence is assessed by reference to how far the Claimant’s driving conduct departed from the required standard of care.

The decision in Freitas, however, confirms that the impact of Evic is not limited to single vehicle accidents.

At paragraph 63 of her reasons, the PIC Member summarises the principles enunciated in Evic as follows:

1. an injured person’s entitlement to benefits does not require the claimant to prove fault and there is no distinction in the legislative scheme between single and multi-party accidents [55];
2. the phrase ‘wholly or mostly’ at fault is a composite phrase (not two separate concepts);
3. the phrase is addressed at the claimant’s contributory negligence [56] relevant to the accident (and not the injury) which “accommodates all types of motor accidents, including single vehicle accidents where the injured person is the owner driver” [57];
4. s 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of s 5R(2)(a) of the CL Act and the test of contributory negligence is “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person” [60];
5. where there is more than one motor vehicle involved, or the claimant is a pedestrian (and presumably a cyclist or other road user), the claimant’s contributory negligence is assessed by considering the apportionment of culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk at [61];
6. in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply citing at [68] Axiak v Ingram and at [69] Davis v Swift two blameless accident cases from the previous motor accident insurance and compensation scheme, and
7. if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) requires an assessment of the degree of contributory negligence that is “just and equitable in the circumstances of the case” [73].

 As stated in point (e), in multi-vehicle accidents, the culpability of all parties to the accident must be apportioned in order to assess the claimant’s contributory negligence.

Whilst, in this dispute, the Member found that only the driver of Vehicle A and the Claimant contributed to the accident, it is not difficult to envisage a theoretical chain collision where three (or more) drivers all make a contribution to the cause of the accident. In that theoretical case, the contribution of each causative participant must be assessed and given a percentage contribution.

Our full case note on Evic can be accessed here.

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

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