Marcella v NRMA: fault when leaving a parked position

On 1 May 2024, Regina Angie Marcella was involved in a collision on O'Connell Street at Monterey in Sydney. Her Mini had been parked outside a florist. The other vehicle, a Mitsubishi driven by Mr Gordon, was travelling along the street when contact occurred between the front driver's side of the Mini and the rear passenger side of the Mitsubishi.

Ms Marcella lodged a statutory benefits claim on 3 May 2024. NRMA accepted the claim on 23 May 2024. On 14 January 2025, however, the insurer issued a further liability notice denying ongoing statutory benefits on the basis that she was wholly or mostly at fault.

An internal-review request was made on 14 August 2025. NRMA refused to undertake the review because it was late, and the fault dispute then proceeded to the Personal Injury Commission. The Commission was asked to determine the weekly-payment and treatment-and-care issues declared under Schedule 2 of the Motor Accident Injuries Act 2017.

Ms Marcella had also made a separate common law damages claim. NRMA denied that its insured driver was at fault. That damages claim formed part of the procedural background but was not the claim finally determined by this PIC certificate.

The claimant's initial claim form described her as stationary and preparing to drive away from the parallel parking space. A later statement said the engine was running, the right indicator was activated and she had checked her surroundings, but the vehicle remained stationary. At the assessment conference, she could not remember whether the car had started moving before impact.

The insured driver said he was travelling along O'Connell Street and that the Mini moved out as he passed it, striking the rear passenger side of his vehicle. He did not see the Mini begin moving because the point of contact was behind his driving position.

The early records were important. Ambulance officers recorded a history of the claimant pulling out, while the police material described her as beginning to pull out. The Member did not treat those entries in isolation, but considered them with the claimant's memory, the vehicle positions, the physical damage and the expert evidence.

Importantly, the Member did not make an adverse reliability finding merely because Ms Marcella had a memory gap, was nervous or may not have understood some questions. The reasons expressly recognised those matters. The movement finding came from the combined evidence rather than a general attack on her credibility.

Both parties relied on accident-reconstruction experts. The insurer's expert, Dr McIntosh, considered that the damage was consistent with the Mini moving sideways from the parking space and striking the Mitsubishi as it travelled straight ahead. He found no objective basis for excessive speed and considered there was nothing the insured driver could reasonably have done to avoid the impact.

The claimant's expert, Mr Johnston, considered the Mini was stationary or moving only minimally and relied substantially on a visible fluid trail to place the impact within the parking area. He expressed the view that the Mitsubishi was travelling too close to the parked vehicles.

The Member preferred Dr McIntosh's damage analysis. The fluid-trail opinion depended on assumptions about where the Mini came to rest and where impact occurred. Those assumptions did not sufficiently account for gaps in the photographic set, the vehicle's possible post-impact rotation, the fact that the Mini was later moved and re-parked, other debris, and the insured driver's evidence about the Mitsubishi's path after impact.

The decision is a practical reminder that expert labels do not replace the underlying evidence. A reconstruction report should state which photographs were available, whether either vehicle moved after impact, what physical measurements were taken, and which facts are assumed rather than proved.

The Member was not satisfied that the Mini remained stationary. The early histories, angled post-accident position and damage to the Mini's front driver side and the Mitsubishi's rear passenger side supported the conclusion that the claimant was pulling out from the parking space when contact occurred.

The claimant alleged that the insured vehicle was speeding. She had not seen it before impact and therefore could not estimate its speed. Neither expert identified objective evidence of excessive speed. The Member found that the insured driver was not travelling above the applicable speed limit.

The allegation that the Mitsubishi travelled too close to the parked cars was also rejected. The fluid-trail reasoning was not accepted, the insured driver denied travelling too close, and the lack of damage to either wing mirror supported the insurer's reconstruction evidence.

The claimant had failed to keep a proper lookout and moved into the lane when it was unsafe. The passing vehicle was there to be seen. The Member found no culpable act or omission by the insured driver and assessed the claimant's contributory negligence at 100%.

Section 3.1 of the Act makes initial statutory benefits available without requiring an injured person to prove another driver's fault. Different consequences arise after 52 weeks. Under sections 3.11 and 3.28, weekly payments and treatment-and-care benefits can cease where the motor accident was caused wholly or mostly by the injured person's fault. Section 3.28 provides that a person is mostly at fault where their contributory negligence in relation to the accident is greater than 61%.

The Member applied the approach explained by the Supreme Court in AAI Limited t/as GIO v Evic [2024] NSWSC 1272. The expression "wholly or mostly at fault" is approached through contributory negligence in relation to the accident. The decision-maker considers the reasonable-person standard, whether the claimant departed from it, whether the insured driver also departed from the required standard, and any just and equitable apportionment of responsibility.

Marcella therefore did not turn simply on the fact that the claimant was leaving a parking space or may have breached a road rule. The Member made findings about both drivers' conduct and then compared their culpability. Because no culpability was found against the insured driver, the claimant was held wholly or mostly at fault.

The certificate determined the fault questions that affected ongoing statutory benefits under sections 3.11 and 3.28. It did not retrospectively convert the initial fault-independent benefits claim into a damages claim, and it did not suggest that the insurer's original acceptance of statutory benefits was legally mistaken.

A common law damages claim is separate. It requires its own liability, causation, loss, procedural and time-limit analysis. The reasons recorded that NRMA had denied fault in the separate damages claim, but the Member did not make a final damages assessment or determine compensation value in this statutory-benefits dispute.

The distinction matters when reading a PIC certificate. A finding can have immediate consequences for weekly payments or treatment expenses without resolving every issue that might arise in a damages claim. The exact decision and the order sought should be identified before deciding what review or further evidence is required.

The Member also permitted both sides to recover costs beyond the regulated amounts because the matter involved an assessment conference, counsel, competing experts and substantial production work. That exceptional, case-specific order should not be read as automatic recovery of all legal costs in another PIC matter.

Marcella does not establish that a driver moving from a parking space is always wholly or mostly at fault. A passing driver may be speeding, distracted, crossing into the parking lane, failing to react to a visible hazard or otherwise culpable. Dashcam, CCTV, witnesses and a sound reconstruction may produce a materially different result.

The decision does not make early medical or police histories infallible. Such records may contain shorthand, assumptions or misunderstandings. Their weight depends on who provided the history, when it was recorded and how it fits with the objective evidence. Here, the histories were considered with the photographs and damage rather than used alone.

Nor does the decision mean fluid trails are never useful. The problem was the reliability of the particular assumptions and incomplete evidence used to interpret this trail. Physical traces can be valuable where the source, timing, vehicle movements and full photographic context are established.

Finally, this is a decision of one PIC Member on its own facts. It is useful for understanding the statutory approach and evidence analysis, but it is not a substitute for applying the current Act and evidence to another accident.

A parked-position fault dispute should be prepared as an evidence problem, not reduced to competing assertions that one vehicle was stationary and the other was speeding. The most useful file usually includes:

• the insurer liability notice and the precise reasons given for alleging wholly or mostly at fault
• the statutory benefits claim form and every early description given to police, ambulance officers and property insurers
• wide and close photographs showing the road, parking lane, vehicle positions, damage and debris
• dashcam, CCTV and independent witness evidence obtained before it is lost
• repair assessments and photographs showing the direction and height of damage to both vehicles
• a plan marking the point of impact, resting positions and any movement of either vehicle after impact
• an explanation of who moved a vehicle after the collision and why, because later movement can affect reconstruction evidence
• expert reports that identify every factual assumption, photograph and measurement used
• the internal-review request, insurer response and any PIC directions or filing correspondence

If memory is incomplete, say so accurately. Do not try to fill a gap by guessing. Instead, identify which objective records can answer the movement, position, speed and avoidability questions. If an expert is instructed, the brief should include the complete photographic set and any evidence about post-impact movement.

When an insurer issues an adverse liability notice, separate the issues: the accident facts, the legal test, the benefits affected, the internal-review history and any separate damages claim. Review and PIC requirements can depend on the exact decision and dates, so the letter should be checked promptly.