Expert Evidence Required to Explain Risk of Hypoglycaemic Episode

In Brief

• In most-at-fault disputes, there is no onus on the Claimant to demonstrate that they were not at fault.
• The onus is on the Insurer, in most-at-fault disputes to demonstrate that the Claimant was more than 61% responsible for their accident.
• A decision-maker’s findings must be supported by logically probative evidence and inferences can only be drawn if they are inferences reasonably open on the facts.
• Where the Claimant’s accident is caused by a medical episode, an Insurer should obtain expert evidence about the medical episode together with the warning signs which the Claimant should have observed before they decided to start their journey or to continue their journey.

Facts

The Personal Injury Commission (PIC) published its decision in BVV v QBE Insurance (Australia) Limited [2025] NSWPIC 158 on 20 June 2025.

The Claimant was involved in a motor accident on 11 March 2024 on the Cumberland Highway. The accident was caused by a medical episode which resulted in him losing control of his vehicle and colliding with four stationary vehicles.

In summary:

• The accident was caused by the Claimant experiencing a hypoglycaemic episode.
• The Claimant had diabetes for at least 10 to 15 years before the accident.
• The Claimant was aware of the risks associated with having diabetes and driving.
• The Claimant had previously experienced glycaemic symptoms after fasting in January 2024.
• The Claimant, however, had no previous glycaemic episodes whilst driving and had never lost consciousness after fasting.
• The Claimant had jellybeans and other snacks in his bag on the day of his accident.

The Insurer denied liability for ongoing statutory benefits on the grounds that the Claimant was wholly or mostly at fault for the accident. That decision was affirmed on Internal Review.

The Claimant lodged an Application for Miscellaneous Assessment.

The Member’s Decision

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

• In accordance with GIO v Evic, the Claimant does not have to prove that they were not at fault. The onus is on the Insurer to demonstrate that the Claimant was more than 61% responsible for the accident.
• The Insurer provided no evidence that the Claimant experienced previous similar hypoglycaemic episodes or that he was familiar with the hypoglycaemic symptoms he experienced before getting into the car.
• The Insurer served no expert medical evidence to support a finding that the Claimant was, in fact, experiencing hypoglycaemic symptoms at the time he entered the vehicle or that he was unfit to drive.
• The Insurer served no expert medical evidence about whether the Claimant was experiencing reduced hypo awareness and whether he had any warning about the impending severe episode.

Why This Case is Important 

It is well established that an Insurer can rely upon the concept of res ipsa loquitor to establish that a Claimant was wholly or mostly at fault – see Insurance Australia Limited t/as NRMA v Richards.

As explained in Richards from [101] to [105], res ipsa loquitor is an inferential reasoning process which allows a decision-maker to infer that a party was negligent where an accident, of the kind in question, would not ordinarily occur without negligence. In Richards, the question was whether the Claimant’s contributory negligence could be inferred on the basis that a car does not normally travel onto the incorrect side of the road and collide with an oncoming vehicle without negligence by the driver.

As explained in Earle-Joyce v AAMI, however, a finding of negligence based on the application of res ipsa loquitor does not necessarily result in a finding that the Claimant was wholly or mostly at fault. In the absence of direct evidence of what happened, the Claimant’s inferred contributory negligence could land anywhere on the spectrum from a momentary lapse of attention to gross negligence.

In this claim, the Member was not willing to infer, without expert evidence, that the Claimant was suffering hypoglycaemic symptoms at the time he decided to drive or that he should have recognised that a major episode was likely to occur whilst he was driving.

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