AAU v GIO Ltd

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	AAU v GIO Ltd [2021] NSWPIC 127
APPLICANT:	AAU
RESPONDENT:	GIO Ltd
Member:	Mr Stephen Boyd-Boland
DATE OF DECISION:	14 May 2021
CATCHWORDS:	MOTOR ACCIDENTS- Miscellaneous claims; whether the motor accident was caused mostly by the fault of the claimant under sections 3.11, 3.28 and 3.38 of the Motor Accident Injuries Act 2017; ebike; wholly or mostly at fault; changing lanes; both vehicles were the first vehicles stopped at the lights; collision; both vehicles moved off together; cyclist hit by car from behind; Held-claimant did not give way to Insured Driver; claimant wholly at fault.
Determinations made:	1. For the purposes of section 3.11 the motor accident was not caused by the fault of another person. 2. For the purposes of section 3.28 the motor accident was caused mostly by the fault of the injured person. 3. Effective Date: This determination takes effect on 14 May 2021. 4. Legal Costs: The amount of the Claimant’s costs assessed have not been determined.

Reasons for Decision

Issued under section 7.36(5) of the Motor Accident Injuries Act 2017

Background

This determination relates to a Miscellaneous Claim, which is a reviewable decision under Schedule 2(3)(d), (e) and (g) of the Motor Accident Injuries Act 2017 (the Act), about fault and contributory negligence.

There is a dispute between AAU (the Claimant) and GIO (the Insurer) in respect of whether;

(a) for the purpose of section 3.11 of the Act the motor accident concerned was caused by the fault of another person with the provisions of Schedule 2 clause (3)(d) of the Act; and/or

(b) for the purpose of section 3.28 of the Act, the Insurer may cease statutory benefits for treatment and care expenses as the motor accident concerned was caused mostly by the fault of the injured person with the provisions of Schedule 2 clause (3)(e) of the Act, and/or

(c) for the purpose of section 3.38 of the Act, the Insurer is entitled to reduce statutory benefits payable for contributory negligence with the provisions of Schedule 2 clause (3)(g) of the Act.
It is not disputed that on 21 February 2020 at about 20.30 the Claimant, whilst driving an ebike, was involved in a motor accident with motor vehicle registration XXXXX X driven by the Insured Driver on King Street, Newtown at or about the intersection with Wilson Street. The circumstances of the accident are at issue.
The Claimant completed an Application for personal injury benefits form on 28 February 2020.
On 29 May 2020 the Insurer sent to the Claimant a liability notice noting that for the purposes of section 3.11 and section 3.28 the Claimant was NOT "wholly or mostly at fault".
On 9 July 2020 the Insurer made a determination that the Claimant was "wholly or mostly at fault" for the motor accident.
On 14 July 2020 the Claimant sought a review of the decision.
On 30 July 2020 the Insurer affirmed its earlier determination.
On or about 30 July 2020 the Claimant lodged a Dispute Resolution Service Application form.
On or about 21 August 2020 the Insurer lodged a Dispute Resolution Service Reply.
Teleconferences were conducted on 15 September 2020, 4 November 2020, 2 December 2020, 27 January 2021 and 3 March 2021.
During this period the Claimant obtained a report from Nigel McDonald dated 16 December 2020 (the McDonald Report).
The Insurer in response obtained a report from Glen Urquhart dated 16 February 2021 (the Urquhart Report).
The matter was then listed for an Assessment Conference on 22 March 2021.
The Assessment Conference took place on 22 March 2021.

Documents considered

I have considered the documents provided in the application and the reply and any further information provided by the parties.

Submissions

The Claimant's submissions were to the effect that the version of events put forward by the Claimant should be preferred over the version of events put forward by the Insured driver.
The Claimant submitted that the Claimant was hit directly from behind and that from this it should be accepted that both vehicles were stationary at some point and the Claimant got in front of the Insured driver because the Insured driver remained stationary for a period of time.
The Claimant submitted that various aspects of the statement from the Insured Driver were supportive of the version of events put forward by the Claimant.
The submission was to the effect that it should be accepted that the Claimant had signalled the intention to change lanes, checked that there was a sufficient space to change lanes and had completed the process of changing lanes before she was hit from behind.
That the Claimant contended that she had completed her change of lanes manoeuvre consistent with Regulation 148(1) of the Road Rules 2014 (NSW).
The Claimant maintained that in those circumstances the accident was wholly the fault of the Insured Driver.
The Insurer maintained the Claimant was in the process of changing lanes, the Claimant had not exercised the care required, there had not been sufficient space to merge and the Claimant had not complied with the relevant road rules.
That the Claimant has breached Regulation 148(1) of the Road Rules 2014 (NSW).
Counsel for the Insurer referred me to Draca v Silva [2012] NSWCA 312.
The Insurer maintained that in those circumstances the accident was wholly the fault of the Claimant.

Legislation

In making my decision I have considered the following legislation and guidelines:
• the Act;
• Motor Accident Injuries Regulation 2017;
• Motor Accident Guidelines, and
• Road Rules 2014 (NSW).

REASONS

The Assessment Conference

An Assessment Conference took place by way of a video conference via Microsoft Teams on 22 March 2021.
The matter proceeded without either of the parties calling evidence from the Claimant or the Insured Driver and proceeded by way of submissions.
Not having the benefit of oral evidence from the Claimant and the Insured Driver created difficulties in piecing together the circumstances of the accident. The Claimant had not provided a comprehensive statement and the factual circumstances needed to be determined from various documents and from the two expert reports.
The parties agree that the dispute relates to sections 3.11, 3.28 and 3.38. I accept that pursuant to Schedule 2(3)(d), (e) and (g) there are disputes in respect of sections 3.11, 3.28 and 3.38.
Having considered the submissions of the parties I will address the various factual issues under the following headings:
(a)    The scene of the accident;
(b)    The location of the vehicles when stopped at the lights;
(c)    The vehicles moving off;
(d)    The Claimant moving from one marked lane to another marked lane;
(e)    The point of contact in the collision, and
(f)    The accident scene following the collision.
On all of the information available to me it is clear that there is:
(a)    no substantive dispute in relation to "the scene of the accident";

(b)    some dispute in relation to "the location of the vehicles when stopped at the lights";

(c)    significant dispute in relation to "the vehicles moving off" and "the Claimant moving from one marked lane to another marked lane", and

(d)    no substantive dispute about either "the point of contact in the collision" and "the accident scene following the collision".
The issue arises in relation to what occurred with "the vehicles moving off" and with "the Claimant moving from one marked lane to another marked lane".

The scene of the accident

The accident occurred in Newtown, on King Street in the lanes travelling in a south westerly direction near where Wilson Street meets King Street.
There were vehicles parked in the kerbside lane (lane 1) on the far side of the intersection.
The Expert retained by the Claimant, Nigel McDonald, in his report (the McDonald Report) included a diagram referred to as Figure 2 and described as "Site plan showing likely travel from start position to rest for Defendant's vehicle and rest position for Plaintiff”.
Figure 2 from the McDonald Report is extracted below

The expert retained by the Insurer Glen Urquhart included a photo with some dimensions on page 10 of the McDonald Report and described as Figure 1.
The general layout of the area is not disputed.
The expert retained by the Claimant Nigel McDonald in his report included a diagram referred to as Figure 3 and described as "Enlarged portion of Figure 2".
Figure 3 from the McDonald Report is extracted below.

The figure was prepared by the Claimant’s expert based on the material available including the police records.
A similar diagram was used the Insurer's expert and was set out as Figure 2 of the report at page 19.

The location of the vehicles when stopped at the lights

There is no clear evidence as to position of either vehicle within their respective lanes at the initial stopped position at the traffic light.
The Figures prepared by the Claimant’s expert, at the stopped position, put the Claimant on the edge of Lane 1 and in close proximity to lane 2. There is no evidence to that effect.
The Figures prepared by the Claimant’s expert, at the stopped position put the Insured driver in the middle of Lane 2, there is no evidence to that effect.
The Claimant's Application for Personal Injury Benefits form notes "I was riding my bicycle on Newtown, waiting in the traffic light to turn green. I was in the left lane … ".
The Claimant's Application for Personal Injury Benefits form provides "I was riding my bicycle on Newtown, waiting in the traffic light to turn green. I was in the left lane …”.
The Claimant's Application for Internal Review form (typed version) provides "… King Street, Newtown, was stopped at the traffic lights at the intersection of Wilson Street, waiting in the traffic light to turn green …".
The Claimants expert Nigel McDonald at paragraph 7.3 notes "I am instructed that the Plaintiff reports each vehicle was the second in line in their respective lanes".
The Insured Driver provided a Statement;
"14. I was in the lane nearest the centre lines and stopped at the intersection at a red traffic signal. I intended to continue straight ahead south down King Street towards Marrickville. I became aware of a female on a bicycle stopping next to my car on our left in the kerbside lane. She was riding alone. It just looked like a normal bicycle. I can't now say if it had a light on the front or any reflectors. There is a bit of lighting from nearby shops and streetlights. I would say the lighting in the area was average.
15. I was stationary for about 30 seconds and was the first car in line. The bicycle next to me was first in line. It was busy and there were vehicles behind us. There were vehicles ahead of us parked at the eastern kerb but way on the other side of the intersection.”
The version of events provided by Nigel McDonald is not consistent with the Claimant’s earlier versions.
The Insured Driver's evidence was that he was the first vehicle stopped at the lights.
On the material available to me I consider it more likely that both vehicles were the first vehicles stopped at the lights.
On this point I prefer the evidence of the Insured Driver to that of the Claimant.
In all of the circumstances the evidence of the Insured Driver is more consistent with the description of the events recorded by the Police.
Had there been a vehicle in front of both the Claimant's vehicle and the Insured Driver's vehicle, the dynamics of the acceleration of the front vehicles and their merging into the single lane ahead of the Claimant and the Insured Driver would make the circumstances of the incident a lot more complicated.
Each of the Claimant and the Insured Driver would have to have been aware of the acceleration of the vehicles ahead of them and the merging of these vehicles ahead of them.
It would be reasonable to expect that either the Claimant or the Insured Driver would have made some reference to the vehicles in front of them moving off at the green light.
The absence of any such reference and the inconsistency in the version of events provided by the Claimant makes it difficult to accept the versions proffered by the Claimant.
I find that both vehicles were the first vehicles stopped at the lights.
As noted earlier, there is no clear evidence as to position of either vehicle within their respective lanes at the initial stopped position at the traffic light. Without the benefit of evidence from the Claimant or the Insured driver it is not possible to reach a concluded view.

The point of contact in the collision

The McDonald Report provides:
“An image of the Defendant's vehicle shows what is described as "minor damage it sustained to the lower front part of the bumper bar." The accompanying image shows what appears to be scuffing - as would occur from a black rubber tyre - against the base of the front nearside corner of the front bumper cover. The approximate area on the vehicle is as illustrated in Figure 1 (as extracted below).”

The Insurer's expert includes a photo of the vehicle which I accept is consistent with the point described by the Claimant's expert.
It is described as "a couple of scratches to the front passenger side corner."
COPS Event narrative provides "… the front nearside of vehicle 2 collided with the rear of vehicle 1".
The Claimant reports she was struck from behind by the Insured Driver's vehicle.
The Insured Driver reports the "front passenger corner of my car hit the back right of the bike."
I accept that the front left hand side of the Insured's vehicle (as detailed in the Figure above) made contact with the rear tyre of the Claimant's bicycle.
Again, there is less certainty in respect of at what position on the road relative to the lane markings the collision occurred. Without the benefit of evidence form the Claimant or the Insured driver it is not possible to reach a concluded view.

The accident scene following the collision

The Claimant's Application for Internal Review form (typed version) provides " Please note that she was later lying in the middle of the lane she changed."
The Insured Driver’s Statement:
“18. … The bike rider fell down to the roadway right where the impact happened. I stopped straight away on impact. I got out of my car and went to help the rider.”
The Expert retained by the Claimant, Nigel McDonald, in his report included a diagram.
I note that the Expert retained by the Insurer, Glen Urquhart, included a photo with some dimensions on page 10 of the Report described as Figure 1.
From both diagrams, it is clear that following the collision the Insured car is wholly within lane 2. The Claimants bicycle appears to be on the edge of both lanes and the Clamant appears to be in Lane 1.
The Claimants expert, Nigel McDonald, provides at paragraph 7.12:
"Police report the Defendant's vehicle came to rest in lane 2 with the rear half over the marked pedestrian crossing, equating to a travel distance of around five metres from having been stationary for the red traffic signal. The Police report the Plaintiff was lying on the roadway approximately one metre south of the crossing with her head to the north, and about one metre away from the Defendant's vehicle. The bicycle was between the Defendant and the Plaintiff."

The Claimants expert Nigel McDonald provides at paragraph 7.15;
"Based on the Police reported stopping position of the Defendant's vehicle, it appears the Defendant's vehicle either moved approximately nine metres from having been waiting first in line for the traffic signals to change up to rest post impact, or around 15 metres (being 9 metres plus a distance to allow for a car length and space between vehicles)."

I did not accept that there was a vehicle in front of either the Claimant or the Insured Driver and as a result, the distance of 9 metres travel is the relevant estimate provided by Nigel McDonald.
I do note that in that calculation at paragraph 7.15 Nigel McDonald adopts a distance of a "car length and space between the vehicles" as distance of "6 Metres".
Again, there is less certainty in respect of at what position on the road relative to the lane markings the collision occurred. Without the benefit of evidence form the Claimant or the Insured driver it is not possible to reach a concluded view.
There was no evidence to the effect that the Insured Driver was not wholly within lane 2 following the collision.

The vehicles moving off

The Ambulance records:
"Pt reports was changing lanes at a red light, and as the light turned green a car took off from stopped and struck the rear of pts bicycle causing her to fall off. Pt recalls fall, nil LOC but states happened to quickly to know exactly how she fell …".
The Claimant's Application for Internal Review form (typed version) provides "… as the lights turned green, she proceeded along and wanted to change lanes.”
The Claimant's Application for Internal Review form (typed version with handwriting) provides "… as the lights turned green, she proceeded along and wanted to change lanes. She had turned her head and saw that the car behind was stopped.”
The Claimant did not give evidence and there is no explanation provided in relation to the changes made in The Claimant's Application for Internal Review form (typed version with handwriting) and The Claimant's Application for Internal Review form (typed version).
The Insured Driver’s statement:
“16. The traffic light facing me turned green and I moved off normally. I did not speed off. The bicycle rider got slightly ahead of me as we moved off from the lights. We moved off together. She did not go until the green light came on. She was sitting on her seat and was not standing up and riding.”
There does not appear to be any issue that the Claimant moved off when the light turned green.
There is some factual dispute as to whether the Insured Driver moved off when the light changed or whether for some period, he remained stopped.
To the extent that such an assertion is or was made it is inconsistent with other versions given by the Claimant.
There may have been some explanation for the inconsistency, but the Claimant did not offer it and did not give evidence.
On this aspect I prefer the evidence of the Insured Driver to that of the Claimant.
I do not accept the assertion, to the extent that it is made, that the Insured Driver may have remained stopped at the lights for any period after the light changed.
I accept that as the light turned green both vehicles moved off together.
There was no evidence to the effect that the Insured Driver was not wholly within lane 2 at all times.
I find that that the Insured Driver was wholly within lane 2 at all times.
Again, there is less certainty in respect of the path taken by the Claimant on the road, relative to the lane markings, as the vehicles moved off.
There is no evidence to the effect that the Insured driver moved out of lane 2 at any time, as a normal motor vehicle it was within the lane, however, a narrow vehicle such a bicycle can move about more within its lane.
The Ambulance records suggest the Claimant " …was changing lanes at a red light".
Without the benefit of evidence form the Claimant or the Insured Driver it is not possible to reach a concluded view about the path taken by the Claimant as the bike moved off.
Both of the experts provide some comment on the possible acceleration of the two vehicles.
The Claimant’s expert notes at paragraph 7.24:
“Beck reports most bicycle riders have a maximum acceleration of about 0.10 to 0.15g from a standing start. That rate of acceleration is similar to, or less than, a 'normal' rate of acceleration as reported by Fricke.”
The Claimants expert notes at paragraph 7.26:
“The Plaintiff is reported to have been on an electric bicycle and it may be that the power was on and assisted the Plaintiff accelerate at a faster than typical rate.”
On the expert evidence it would seem quite possible that the Claimant may have initially accelerated slightly more quickly than the Insured Driver.

The Insured Driver was aware of the Claimant's presence beside his vehicle whilst stopped at the red signal.
The Claimant started to move off after the signal changed to green.
The Insured Driver "moved off normally" when the signal changed to green.
The Insured Driver states the Claimant moved off after the signal changed to green and remained seated on her bicycle.
For the reasons I have set out above I prefer the version of events given by the Insured Driver to that of the Claimant, to the extent that they are inconsistent.
I accept that at some point of time the Claimant’s vehicle got slightly ahead of the Insured Driver as they moved off from the lights.

The Claimant moving from one marked lane to another marked lane

The Ambulance records:
"Pt reports was changing lanes at a red light, and as the light turned green a car took off from stopped and struck the rear of pts bicycle causing her to fall off. Pt recalls fall, nil LOC but states happened to quickly to know exactly how she fell …"
Senior Constable Martin's interview "The rider of vehicle 1 stated to police that she believed she had sufficient space to merge into lane 2 from lane 1."
The Claimant's Application for Personal Injury Benefits form:
"… then the light changed to green. I started to go and because of I wanted to change the lane to the right, I look back, I saw a proper space because the car behind me was stopped, I did the sign (lift right hand), so I changed the lane when suddenly I was hitten [sic] by the vehicle from the back."
The Claimant's Application for Internal Review form (typed version) provides:
"… as the lights turned green, she proceeded along and wanted to change lanes. She turned her head and saw the nearest side car to her was far enough back to change lanes ‚ … the Claimant used her right hand to signal her intention to changes lanes as well as looked back to assure her lane change, so she changed lanes when she was hit from behind ‚ … the claimant approximates 1 or 1 1/2 car lengths in front of the other drive ‚ …"
The Claimant's Application for Internal Review form (typed version with handwriting) provides:
" … as the lights turned green, she proceeded along and wanted to change lanes. She had turned her head and saw that the car behind was stopped. … the Claimant used her right hand to signal her intention to changes lanes when she was hit from behind by the vehicle at fault. The claimant approximates 1 or 2 car lengths in front of the other drive … "
The Hospital Records include:
"Bicycle accident with head strike … Cyclist hit by car from behind … Was in pushbike vs car accident, went forwards over handlebars and landed on hands/knees/face … BIBA post cyclist vs car. Pt states was hit from behind by car of unknown speed this pm. Cyclists, struck by car from behind … Cyclist, pulling away from lights, hit from behind by car - knocked off bike …”
The COPS Event Entry narrative provided "The driver of vehicle 2 stated that the rider of vehicle 1 suddenly merged front of the vehicle causing the collision”.
The Insured Driver’s statement:
“16. Suddenly the bicycle rider moved to the right into my lane. I had no idea that she was going to merge right. I did not see her raise her right arm as if she was indicating she intended to turn or merge right. There was no indicator or other device on the bicycle flashing. The bicycle rider got slightly ahead of me as we moved off from the lights. …
17.    As the bicycle rider merged to her right into my lane, the front passenger corner of my car hit the back right of the bike. We had both only travelled a short distance, just past the pedestrian crossing, so about 10 metres from where we had been stopped at the red light.
18.    I was in the middle of my lane when the impact happened so the bike rider had come across well into my lane before the impact happened. It all happened very quickly and I did not have any time to hit my brakes, swerve or avoid a collision. I was only going at about 30km/h when the accident happened. The impact was only minor. If 1 is minor and 10 is major, I would say the force of the impact was about a 3 or 4 out of 10. The bike rider fell down to the roadway right where the impact happened. I stopped straight away on impact. I got out of my car and went to help the rider.
19.    I saw that the rider was clearly injured. Her mouth was bleeding and she had injured her left leg. I recall she was wearing a helmet at the time. I think she was dressed in dark blue coloured clothing …”
I have accepted that at some point in time the Claimant’s vehicle got slightly ahead of the Insured Driver after they moved off from the lights.
The Claimant reports she signalled to change lanes by raising her right arm.
There is no evidence as to the nature of this "signal" given by the Claimant.
It is not clear if she asserts that she raised her full right arm from her shoulder horizontal to the ground or if she raised part of her right arm, it is not known for what period of time this "signal" was made.
The Insured Driver states he did not see the Claimant indicate to move across into lane 2.
Without greater detail of the purported "signal" that was made it is very difficult to reach any concluded view as to whether the signal was made and if, in the circumstances the signal was a reasonable or appropriate signal.
In these circumstances it is very difficult to reach any concluded view about the failure of the Insured Driver to observe the "signal".
I accept that the Insured Driver did not see any signal suggesting a change of lane.
I do not accept that the failure of the Insured Driver to observe the signal of the Claimant is evidence of a want of care on his part.
The Claimant states she looked back and saw a gap ahead of the Insured Driver.
There is some uncertainty as to on how many occasions the Claimant turned to look at the location of the Insured.
The Claimant's Application for Internal Review form (typed version) mentions turning to see the distance and then looking back. It is unclear if it is asserted that the Claimant looked back once or twice.
The Claimants expert at paragraph 7.16 noted that "… the vehicle would also have stopped within the nine or 15 metres which, from 18 to 24 km/h, would require a braking distance of one to two metres".
Again, if we accept the shorter distance, the braking distance is at the lower end of the calculation, being 1 metre.
From the calculations of the Claimant’s expert, this would mean a travel distance between the stopped position and the point of impact of about 8 metres.
The Claimants expert at paragraph 7.17 noted "At a normal rate of acceleration, a vehicle could be expected to attain a speed of around 15 km/h and then also brake to a stop within a distance of nine metres. To accelerated up to 15 km/h and stop within nine metres would take around 4.3 seconds".
Given the finding previously made, the distance of 9.670 metres (two times the length of the Insured Driver’s vehicle) is longer than the likely distance travelled before the collision, estimated to be 8 metres.
Given my earlier findings I do not accept that at any time, the "gap" could have been two car lengths.
Given my earlier findings it is very difficult to accept that at any time, the "gap" could have been 1 1/2 car lengths or about 7.2525 metres. This would mean that the Claimant had travelled 7.2525 metres in front of the Insured Driver and that within the time taken for the Claimant to travel the distance of less than a metre the Insured Driver had covered that distance and collided with the Claimant.
Given my earlier findings it is very difficult to accept that at any time, the "gap" could have been 1 car length or about or 4.835 metres. This would mean that the Claimant had travelled or 4.835 metres in front of the Insured Driver and that within the time taken for the Claimant to travel the distance of about 3.2 metres the Insured Driver had covered that distance and collided with the claimant.
In these circumstances, I do not accept that at any point the "gap" could have been one and a half to two car lengths.
In these circumstances, it may be possible that at some point the "gap" could have been one car length.
Whilst I accept that it could be possible, in this regard I prefer the evidence of the Insured Driver to that of the Claimant.
I do not accept that at any time the "gap" could have been in the range of one to two car lengths.
As noted earlier, I accepted that at some point of time the Claimant’s vehicle got slightly ahead of the Insured Driver.
Without greater detail of the purported "gap" it is very difficult to reach the conclusion that there was a sufficient gap.
At some point in time, the Claimant attempts to change lanes.
The Insured Driver states the Claimant got slightly ahead of him and moved across into lane 2.
The evidence of both the Claimant and the Insured Driver to the effect that the Claimant "got ahead of the (the insured Driver)" or "saw a gap" is consistent with the Claimant having accelerated at a slightly quicker rate than the Insured Driver.
This evidence is not consistent with the Insured Driver having reached the speed estimated by the Insured Driver.
All of this would seem to be consistent with the comments of the Claimant’s expert at paragraph 7.17:
"At a normal rate of acceleration, a vehicle could be expected to attain a speed of around 15 km/h and then also brake to a stop within a distance of nine metres. To accelerated up to 15 km/h and stop within nine metres would take around 4.3 seconds".
All of this would seem to be consistent with the comments of the Insurer's expert on page 20 at about line 17:
"It is unlikely the Insured Driver attained the self-reported speed of about 30 kph at impact. In the author's opinion, the Insured Driver was likely travelling at a speed around 10 to 13 kph when he applied emergency brakes."
This seems to be most consistent with the relative acceleration of the vehicles, the possibility of the Claimant getting ahead of the Insured Driver and the distance from the traffic light to the stopped vehicles post-accident.
I do not accept that there is any clear and reliable evidence to the effect that the Insured Driver was travelling at a speed that was excessive in the circumstances.
The evidence is not consistent with the Insured Driver accelerating at a higher than normal rate of acceleration.
Again, accepting the start position, not disputed by the parties and the position of both vehicles after the collision, and the description of both the Claimant and the Insured Driver, it would seem most likely that the relative acceleration of the vehicles was similar.
In these circumstances, it is possible that, as described by both the Claimant and the Insured Driver that the Claimant "saw a gap" or "got slightly ahead".
Given the expert evidence in relation to the acceleration, particularly the relative acceleration of the vehicles, it seems highly unlikely that there was at any time any "significant gap".
All of the available evidence is consistent with both vehicles having accelerated at similar rates.
Whilst I accept that the Claimant may have seen a "gap" on this issue I prefer the evidence of the Insured Driver to the effect that the " … bicycle rider got slightly ahead of me …".
I do not have any clear and reliable evidence in relation to the time between when the Claimant looked to see where the Insured Driver was behind her and the time of the collision.
I do not have any clear and reliable evidence in relation to the time between when the Claimant signalled to change lanes, the nature of that “signal” and the time of the collision.
At some point in time the two vehicles collided.
What is clear is that by the time of the collision, the Claimant had only got so far into lane 2 that the point of contact between the Insured Driver’s vehicle and the rear of the Claimant’s bike was with the left front of the Insured Driver’s car.
It is clear that the "gap" (to the extent that it can be accepted that such a "gap" existed) was such that the Claimant had not got very far into Lane 2 when the collision with the left front corner of the Insured Vehicle occurred

Legislative framework and approach

Section 3.11 provides:
“3.11 Cessation of weekly payments to injured persons most at fault or with minor injuries after 26 weeks
(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if-
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person's only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
Section 3.28 provides:
“3.28 Cessation of statutory benefits after 26 weeks to injured adult persons with minor injuries
(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if-
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person's only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
Sections 3.11(1)(a) and 3.28(1)(a) contemplate two circumstances, where "the motor accident was caused wholly … by the fault of the person" or where "the motor accident was caused … mostly by the fault of the person".
In the circumstances of "mostly at fault" within the terms of sections 3.11(1)(a) and 3.28(1)(a) then by virtue of sections 3.11(2) and 3.28(2) consideration of contributory negligence is required within the terms of section 3.38.
In my view in a two vehicle accident I would find one driver to be wholly at fault if there was no negligence on the part of the other driver.
If I find negligence on the part of the other driver, the driver is not wholly at fault.
If I find primary negligence on the part of the other driver then in determining whether the Claimant was mostly at fault I should consider whether there is any contributory negligence at all on the part of the Claimant and if there is the degree of that contributory negligence.
If the degree of contributory negligence is greater than 61% then, by virtue of sections 3.11(2) and 3.28(2), the Claimant would be considered mostly at fault.
The issues to be resolved are:
(a)    Was the Claimant wholly at fault?
(b)    Is there any contributory negligence on the part of the Claimant?
(c)    If so, what is the extent of the contributory negligence on the part of the Claimant?

Was the Claimant wholly at fault?

The assessment involves a comparison of both the Claimant's and the Insured Driver's culpability (in the sense of the degree of departure from the standard of care of a reasonable person) and the relative importance of the act of the parties in causing the damage: see eg. Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492 at 494. In that case the judgment of the Court provides:
"The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, i.e. of the degree of departure from the standard of care of the reasonable man ... and of the relative importance of the acts of the parties in causing the damage... It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination."
Both the Claimant and the Insurer accepted that section 148(1) of the Road Rules 2014 NSW may have application. The Claimant maintained that the Claimant had successfully completed the lane change and the Insurer asserts that the accident occurred during the lane change.
Section 148(1) states the following:
"A driver who is moving from one marked lane (whether or not the lane is ending) to another marked lane must give way to any vehicle travelling in the same direction as the driver in the marked lane to which the driver is moving".
In AIV v NRMA Insurance (Claims Assessment) [2020] NSWSIRADRS 23 Assessor Ceballos considered a matter involving the application of section 148(1) of the Road Rules 2014. There was a factual dispute in respect of the circumstances of the accident.
In AIV v NRMA Insurance (Claims Assessment) [2020] NSWSIRADRS 23 (AIV V NRMA) Assessor Ceballos found that the Claimant’s vehicle was not in front of the vehicle with which it collided and found that the other vehicle was in front of the Claimant’s vehicle.
Assessor Ceballos noted:
“In Draca v Silva [2012] NSWCA 312, the Court of Appeal held that, when changing lanes, a driver is not expected to be a 'mind reader' and is 'entitled to assume that any vehicle wishing to move from lane 1 to the adjoining lane would do so safely when there was a sufficient gap in the line of traffic to enable him or her to do so' [at 61].”
In Draca v Silva [2012] NSWCA 312, (Draca) the Court of Appeal set out the specific relevant facts at 10:
" … the primary judge found that at about that time, the appellant saw the respondent's truck behind him in lane 2 and considered that he could make the move into that lane safely and end up in front of the truck. He estimated the gap available to him to be something in the region of three metres between the rear of his vehicle and the front of the truck. He then commenced to cross to the right but when the driver's side of his vehicle had reached the left hand side of lane 2 he collided with the near side of the rear of the respondent's truck."
In Draca the relevant road rule considered was r 148(1) of the Australian Road Rules (the ARR) which provided as follows:
"A driver on a multi-lane road who is moving from one marked lane (whether or not the lane is ending) to another marked lane must give way to any vehicle travelling in the same direction as the driver in the marked lane to which the driver is moving.”
One of the issues in Draca was whether another road rule (Rule 149) that drew a distinction in circumstances where " … any part of the vehicle is ahead of the driver's vehicle " applied.
In Draca The Court of Appeal noted at 52:’
"But even if the appellant's vehicle was some three metres in front of the truck when the former commenced to move out of lane 1, the appellant's case depended, as his counsel acknowledged, on the following propositions. First, the respondent knew that lane 1 was a merging lane and was therefore going to terminate; secondly, he ought to have observed the fact that the appellant had activated his right hand indicator on; thirdly, the respondent should therefore have anticipated that the appellant would need to move into lane 2 before he came to the end of lane 1; and fourthly, he was under a duty or obligation to slow down to permit him to do so safely and his failure to do so was a breach of his duty of care."
I do note that was not how the Claimant’s counsel put the argument in this case.
In Draca the Court of Appeal continued at 52:
"Not only was the respondent not under the duty referred to but Rule 148(1) of the ARR mandated the appellant to give way, not the respondent. There is nothing in the principles in Manley relied on by the appellant which required the respondent to respond to the appellant's need to move lanes by slowing down and giving way to him." (emphasis added).
Given the findings that I have made, I find that the Claimant did not comply with the requirements of section 148(1) when "moving from one marked lane (whether or not the lane is ending) to another marked lane" in that the Claimant did not give way to the Insured Driver.

I do not find that there was any negligence on the part of the Insured Driver.
I find that in the circumstances of this accident, the Claimant was wholly at fault.
Within the terms of section 3.11(a) the motor accident was caused wholly or mostly by the fault of the person, being the Claimant.
Within the terms of section 3.28(a) the motor accident was caused wholly or mostly by the fault of the person, being the Claimant.
Having reached the conclusion that the Claimant was wholly at fault there is no application of section 3.38.

Costs

The parties sought the opportunity to address the costs issues following the determination.
At this time, I make no order as to costs.

Stephen Boyd-Boland

Member (Motor Accidents Division)

Personal Injury Commission

[2021] NSWPIC 127

14 May 2021