All Australian jurisdictions have introduced no-fault insurance for motor vehicle accidents.  Under the old common law system to get compensation from a motor vehicle accident an injured person had to prove that someone else was at fault.  This led to long court cases focused on fault rather than the needs of the injured person.   But the risk of injury is a risk we all carry and a risk we accept for the benefit of modern transport (we could reduce the road toll to zero by not having roads or cars, but it’s not a price we’re prepared to pay).   Further we all contribute to the cost of insurance through compulsory third party insurance premiums.  So rather than spend a lot of time and money trying to apportion blame, we now give everyone who is injured in an accident some compensation provided they meet thresholds as to the seriousness of their injuries.  And it is still the case that the amount of compensation can be different if you can prove fault.

In O’Connor v QBE Insurance (Australia) Limited [2025] NSWPIC 197.  Ms O’Conner was injured in a collision with a police vehicle being driven on ‘urgent duty’ with its red/blue lights on, but no siren.  Member Cassidy, sitting as the NSW Personal Injury Commission said (at [7]-[8]):

Statutory benefits include weekly income replacement type benefits … and treatment and care benefits … As Ms O’Connor was an “earner” within the meaning of the Act and has been injured, she is entitled to both weekly benefits and treatment and care benefits.

… [B]enefits are payable … even if the injured person’s fault caused the motor accident. However … an injured person is not entitled to statutory benefits beyond the first 26 weeks after the accident if the injured person …  was wholly or mostly at fault for causing the accident.

The issue for the Commission was ‘Was Ms O’Connor ‘wholly or mostly at fault…’’?

What happened?

Ms O’Connor was driving to her home outside of Dubbo, NSW. According to the insurer (at [27]):

(a)    the claimant was travelling out of Dubbo on a two-lane road;

(b)    a police vehicle was travelling behind her;

(c)    its warning lights were activated in response to a non-pursuit job;

(d)    the road conditions were wet;

(e)    the police car was travelling at but not above the speed limit;

(f)    the claimant indicated to the left;

(g)    the police moved to the right to overtake;

(h)    the claimant turned right in front of the police vehicle’s path, and

(i)    the vehicles collided.

The claimant claimed there was no negligence on her part.  She argued (at [34]-[35]):

… a reasonable person in the position of the claimant would have been scanning the road in front of her particularly as she was intending to turn right in front on oncoming traffic and further submits:

(a)    the police were responding to a job but not “an active emergency pursuit”;

(b)    the police did not activate their sirens;

(c)    the police did not slow down at any stage to overtake in a safe manner;

(d)    the police vehicle was travelling at between 100 – 110kmph on the driver’s evidence, and

(e)    the claimant was travelling at 80kmph.

The claimant submits the insured driver could have:

(a)    activated the sirens;

(b)    flashed the police vehicle’s headlights, or

(c)    slowed the vehicle to safely undertake an overtaking manoeuvre.

In statements to paramedics, hospital staff and police on the night, the claimant admitted seeing the red/blue lights behind her but thought they were some distance away. By the time the matter came before the Commission she said that all she saw (at [76]) was

… a “silhouette” way back in town… She explained what she meant by a silhouette was something reflecting off something else. But she said it was:

“Certainly not a vehicle and not the headlights … just a silhouette of a red and blue flick against a building or something. Way back in town.”

She was asked about this evidence and said (at 83]):

“[the police] weren’t behind me as I went down the country road. Not on the road I turned on. I looked left and right. There was no one there and no, no visible light or cars or headlights or anything. When I went down the six metre hill and then proceeded to turn across, there was nothing, nothing at all.”

The problem with evidence like this is that it is clearly wrong.  The police were there, they collided with her as she turned right across their path.  It cannot be true that they were not there, all that can be true is that she did not see them and that is an obvious problem for anyone claiming the accident was not their fault.

The claimant argued that the Commission should not accept the things she was reported to have said on the night of the accident given the traumatic nature of the event.  Member Cassidy noted that the paramedic and hospital records recorded no loss of consciousness, that Ms O’Conner had a Glasgow Coma Scale of 15 and she was able to recall the events.  The versions given that night were consistent with the reports given by the police officers in the vehicle (see [95]-[100]).  Member Cassidy accepted that what she said on the night reflected her best account of events.   The Commission found that the following facts had been established (at [101]):

…

(i)  the claimant was aware of the police vehicle behind her – the claimant’s statement does not mention the police car at all. The evidence at the assessment conference of seeing a “silhouette” back in town and a “red and blue flick … way back in town” is not consistent with the history recorded in the 10.09pm progress note from Dubbo Hospital that Ms O’Conner had “seen police lights flashing in rear view mirror” and the history given to Dr Stephenson at 10.35pm that she “saw police in rear vision mirror on horizon – flashing lights”. The evidence at the assessment conference is also not consistent with the statement she gave to the police in the hospital at 10.30pm that she “saw red and blue lights … coming behind me along my back”, and

(j)    the claimant did not look before she turned – Ms O’Connor said at the assessment conference she looked in her mirrors to see if there was anything behind her or overtaking her because “I always use my mirrors”. While I accept the evidence of the claimant is her honestly held belief, I find that she is mistaken. The road was straight, the photographs suggest there was nothing to interfere with her ability to see a car with at least headlights on approaching from behind and there is no expert evidence to suggest they could not be seen. She cannot have looked in her mirrors because, according to her evidence she did not see anything, no headlights, no flashing lights and no car behind her when the police car driven by Constable Newman was in fact there and was there to be seen.

Were the police negligent?

At [104] Member Cassidy said (emphasis added):

The evidence of Sergeant Moore is that the two constables were responding to a lawful police emergency and were heading to assist other police officers who were in another vehicle pursuing a car with more than one person in the car… While the two officers were not themselves pursuing the suspect car the claimant suggests their “emergency” was of a lesser severity than the officers at the front line of the pursuit. I am of the view their emergency was nevertheless serious and not trivial police business. Cases such as Logar v Ambulance Service of NSW* acknowledge that there is a social utility of emergency vehicles having right of way and while they are exempt from the road rules when in pursuit or on urgent matters, they are not excused from liability should an accident occur.

* Logar v Ambulance Service of NSW is discussed in my post – Appeal arising from NSW Ambulance collision (October 25, 2017).

Member Cassidy said (at [106]-[110]):

Constable Newman was driving at 100 – 110kmph when he came upon the claimant driving at 80kmph and slowing down and indicating left. It was, in my view, reasonable for a person in the position of Constable Newman to commence overtaking the claimant in order to get past her and get on his way to support his colleagues.

Constable Newman was driving along a country road at night with his headlights on and warning lights (reds and blues) activated. I do not consider that a reasonable person in the position of Constable Newman should have taken into account the possibility that the claimant may not have seen him.

I do not consider a reasonable person in the position of Constable Newman should have anticipated that the claimant would, having first indicated that she was going to pull over to the left, change her mind and turn right without looking in her mirrors first.

I reject the claimant’s argument that the police officer should have slowed his vehicle to safely undertake an overtaking manoeuvre. With respect the claimant was, on her evidence, driving 20 kms below the speed limit and slowing down in order to find a safe place to telephone her son. The overtaking manoeuvre was undertaken by the police to move ahead of a slower moving vehicle.

In my view there is a departure from the standard of care on the part of Constable Newman. The photographs of the scene of the accident show a much smaller shoulder on the left-hand side of the road compared to the right and while the claimant had indicated left, I have found she had not moved to the left. A reasonable police officer in my view would have taken some additional precaution before commencing to overtake.

Constable Newman’s culpability in my view lies in him not doing something more to alert the claimant to his presence on the roadway before he commenced his overtaking manoeuvre, such as flashing his headlights, sounding his horn or momentarily activating his siren (assuming he was permitted to do that).

At [118] she said:

In my view the culpability on the part of Constable Newman is much less than the claimant’s. In my view his contribution is in the order of 20% and a just and equitable assessment of the degree of the claimant’s contributory negligence is 80%.

A finding of contributory negligence by the claimant in excess of 61% means that the accident was ‘mostly’ her fault ([9]) and she was therefore not entitled to ongoing statutory compensation benefits.

Discussion

This case is not a legal precedent. It is not a binding decision about the law, nor is it by a court high in the judicial hierarchy.  It is however an interesting example of the processes that now apply.

Those that might be concerned about a finding of 20% contribution by Constable Newmant, it should be noted this does not mean that he is personally liable to pay 20% of the damages that Ms O’Connor received or in fact any amount. The liability is covered by the CTP insurer, in this case QBE.   

The Commission said (at [102]-[103]):

… where there is more than one motor vehicle involved in the accident the claimant’s contributory negligence is assessed by considering the apportionment of culpability of each. His honour Justice Basten said at paragraph [32] of Allianz Australia Insurance Limited v Shuk [[2023] NSWSC 788]:

“Without a proper finding as to breach of duty, the proportionate culpability of each cannot be assessed.”

Ms O’Connor does not have to prove Constable Newman breached his duty of care and that he was negligent or at fault for causing her accident to be entitled to ongoing benefits. However, a finding about whether Constable Newman was at fault or was negligent needs to be made in order to establish whether there is any culpability on his part, for the purposes of then assessing his culpability relative to the claimant’s. This then enables an assessment of the degree of Ms O’Connor’s contributory negligence. 

The Commission therefore had to consider the action of both drivers and ask what if anything else could either have reasonably done to reduce the risk of collision.  Given the legislation here, whether the constable’s contribution had been assessed at 0 or 39% the outcome would have been the same.  

Nor is the finding at all relevant to any decision that might be made about the issue of traffic infringements.  The criminal law tests are different and require proof beyond reasonable doubt.  A finding by the PIC that Constable Newman was ‘20%’ responsible would be irrelevant if anyone was thinking whether the constable should be given a ticket.

What it does show is that the ‘reasonable person’ in the law of negligence is not the average or normal or understandable person. The reasonable person is a legal fiction, a person who is always calm, considers all the risks and thinks about what can be done to mitigate them.  The reasonable person in constable Newman’s position would (according to the presiding member) have understood that although Ms O’Connor indicated left, there was little room for her to pull over where she was and therefore recognised she might do something else, and with little trouble, or no undue cost or inconvenience, he could have done more to be sure she knew he was passing such as sounding his horn or siren. It sounds trivial and it is.  A finding of 80% contribution by Ms O’Connor meant that she was ‘mostly’ responsible for the accident.

What is important is the statement (at [104]) that:

… there is a social utility of emergency vehicles having right of way and while they are exempt from the road rules when in pursuit or on urgent matters, they are not excused from liability should an accident occur.

Liability for an accident will be determined by the principles of negligence law and what is ‘reasonable’ in all the circumstances.  What is reasonable for the driver of an emergency vehicle may be quite different to what is ‘reasonable’ for the driver of any other vehicle given their statutory exemption from the road rules, the statutory obligation on other drivers to make way and the social utility of their actions.  For example the driver in Logar was acting reasonably as the driver of an emergency vehicle carefully crossing multiple lanes of traffic against a red light; conduct that would never be a reasonable manoeuvre by any other driver, but there is still a need to take ‘reasonable care’.  Reasonable care is judged against the standard of the hypothetical reasonable person but liability is determined by the legislation – in this case the Motor Accident Injuries Act 2017 (NSW).

In this case Ms O’Connor was entitled to the no-fault statutory benefits for the first 26 weeks. The finding that she was ‘mostly’ at fault meant that her entitlment did not extend beyond that and there is no further liability attaching to either QBE, NSW Police nor Constable Newman.

This blog is made possible with generous financial support from (in alphabetical order) the Australasian College of Paramedicine, the Australian Paramedics Association (NSW), the Australian Paramedics Association (Qld), Natural Hazards Research Australia, NSW Rural Fire Service Association and the NSW SES Volunteers Association. I am responsible for the content in this post including any errors or omissions. Any opinions expressed are mine, and do not necessarily reflect the opinion or understanding of the donors.

This blog is a general discussion of legal principles only.  It is not legal advice. Do not rely on the information here to make decisions regarding your legal position or to make decisions that affect your legal rights or responsibilities. For advice on your particular circumstances always consult an admitted legal practitioner in your state or territory.