Bizannes v AAI Limited t/as GIO

CERTIFICATE OF DETERMINATION OF MEMBER
Citation:	Bizannes v AAI Limited t/as GIO [2023] NSWPIC 135
Claimant:	Tom Bizannes
insurer:	AAI Limited t/as GIO
SENIOR Member:	Brett Williams
DATE OF DECISION:	29 March 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; claimant suffered injury while alighting from a bus at a bus stop; whether for the purposes of section 3.1 the injury resulted from a motor accident in this State; consideration of sections 1.9, 1.4 and 3.1; whether inference can be drawn as to reason for actions of passenger in front of claimant where there was a gap of between two to four feet between the stairs of the bus and the curb; Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness, McLennan v Nominal Defendant, State of New South Wales v Fuller-Lyons, Nominal Defendant v Hawkins, Leach v The Nominal Defendant and Toll Pty Ltd v Harradine applied; Held – where it was found that the bus had been parked at an angle to the curb, and that the distance between the bottom step of the bus and the curb was between two to four feet, and having regard to the apparent logic of events, inference drawn that the passenger in front of the claimant stopped on the bottom step of the bus as he was alighting, and stepped back, because he perceived the gap between the step and the curb and needed to judge the distance between either the step and the road or the step and the curb, before alighting from the bus; the effective cause of the incident was a combination of the position in which the bus had been brought to a stop and the actions of the passenger when confronted with the gap; one proximate cause of the injury was the driving of the bus; injury was a result of both the driving of the bus and a dangerous situation caused by the driving of the bus; the injury was caused during both the driving of the bus and a dangerous situation caused by the driving of the bus; the injury fell within the terms of section 1.9 and resulted from a “motor accident”; having established that his injury results from a motor accident in this State, the claimant is entitled to statutory benefits under Part 3; section 3.1(1) has been satisfied.
determinations made:	Certificate The findings of the assessment of this dispute are as follows: 1. For the purposes of s 3.1 of the Motor Accident Injuries Act 2017 the injury to the claimant's left ankle on 8 May 2019 resulted from a motor accident in this State.

REASONS FOR DECISION

BACKGROUND

Tom Bizannes suffered an injury to his left ankle on 8 May 2019 when he was alighting from a bus at Central Station (injury). He subsequently made a claim for personal injury benefits (statutory benefits) under part 3 of the Motor Accident Injuries Act 2017 (the MAI Act) on AAI Limited t/as GIO (insurer) with respect to the injury (claim).
Although the insurer initially accepted liability for the claim[1], it subsequently denied liability to pay statutory benefits on the basis that the incident on 8 May 2019 fell outside the definition of “motor accident” in the MAI Act. That decision was affirmed by an internal reviewer on 13 May 2022[2].
[1] Liability Notice – benefits up to 26 weeks dated 23 December 2019.
[2] Internal review certificate of determination and statement of reasons dated 13 May 2022.
These proceedings were commenced by Mr Bizannes on 16 May 2022. The dispute before me is about whether for the purposes of s 3.1 the injury suffered by
Mr Bizannes on 8 May 2019 has resulted from a motor accident in this State. The dispute is a miscellaneous claims assessment matter within the terms of Sch 2 cl 3(b) of the MAI Act.
Some time has passed since the proceedings were commenced. This has come about in circumstances where Mr Bizannes sought an opportunity to secure legal representation. Ultimately, he was not able to do so, and has represented himself in the proceedings.

STATUTORY FRAMEWORK

Section 1.9 is the gateway provision to the MAI Act. The provisions of the MAI Act do not apply unless that section is satisfied. The section is in the following terms:
“1.9   General restrictions on application of Act
(1) This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a)  the driving of the vehicle, or
(b)  a collision, or action taken to avoid a collision, with the vehicle, or
(c)  the vehicle’s running out of control, or
(d)  a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.
(2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents.”
Mr Bizannes claims statutory benefits under part 3 of the MAI Act. Section 3.1 is the governing provision for payments of statutory benefits, and is in the following terms:
“3.1   Statutory benefits payable in respect of death or injury resulting from motor accident
(1) If the death of or injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the death or injury as provided by this Part.
(2) Statutory benefits are payable (except as otherwise provided by this Part)—
(a)  whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, or
(b)  even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable.”
The term “motor accident” is defined in s 1.4 of the MAI Act as follows:
“motor accident means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a)    the driving of the vehicle, or
(b)    a collision, or action taken to avoid a collision, with the vehicle, or
(c)    the vehicle’s running out of control, or
(d)    a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.”

PRELIMINARY CONFERENCES

On 23 June 2022 I conducted a preliminary conference with the parties. At that time,
Mr Bizannes explained the circumstances in which the accident occurred. Given the issues that arose in the proceedings, including the need to satisfy the relevant statutory tests, Mr Bizannes told me that he wanted to be legally represented in the proceedings. I listed the matter for a further preliminary conference on 22 August 2022 to allow him an opportunity to obtain legal representation.
On 16 August 2022 the Commission received a message from a firm of solicitors stating that they had been instructed in the matter. The solicitors requested that the scheduled preliminary conference be stood over for two months. There being no objection from the insurer, the preliminary conference was vacated and set down in October 2022. On 11 October 2022 the lawyers advised the Commission that they no longer acted for Mr Bizannes. Mr Bizannes asked for the preliminary conference to be moved to a later date so he could take further steps to secure legal representation. In these circumstances the preliminary conference on 11 October 2022 was vacated. Mr Bizannes asked that the preliminary conference be listed in late January 2023. The proceedings were subsequently listed for a preliminary conference on 20 February 2023.
On 20 February 2023 a further preliminary conference was held. At that time I made directions for the provision of a joint bundle of documents and submissions, and listed the proceedings for hearing on 22 March 2023.

EVIDENCE

The parties rely on a joint bundle of documents prepared by the insurer. At the hearing, Mr Bizannes confirmed that the joint bundle contained all the documentary evidence he relies on in the proceedings.
An email from Service NSW to Mr Bizannes dated 20 May 2019[3] includes, under the heading “Original Message”, the following account of the accident provided by
Mr Bizannes:
“Broke Fibula on Wednesday 8^th May 2019 at Central Station just before 6am. Was getting off bus at back and because guy in front stepped back i missed the step and fell long way into gutter crunching my ankle and lower leg badly. Bus 393 at 5.36am from anzac pde/fischer st to central.”
[3] Email from [email protected] sent 20 May 2019 at 2.22pm.
The joint bundle includes State Transit electronic case notes. The notes record that the case was opened on 31 July 2019. Under the heading “Description Information”, the following is recorded:
“Caller states that his ankle was broken on the bus service on 08/05/82019 [sic].
Caller states that on 08/05/2019 he starts around 1736 from Anzac Pde at Fischer St Kingsford (Stop ID 203251) heading to Central Station Stand G. Caller states that he is not very sure with the Bus route Number. Caller states it should be 393 or 395.
Caller states that when he was about to alight the service the bus moved and he is half way to get off the service when his ankle was broken. Caller states that he visited his doctor to scan and found that his ankle was broken. Caller states that he later send the details about the incident to claim for the cost…”
The notes record that the bus in question was identified from Mr Bizannes’ Opal card statement. In this regard, it is recorded that “PTIPS indicates bus 1314 passed customer’s location at 1736”.
The joint bundle includes a NSW Transport Accident/Incident report form dated 6 August 2019. The report was prepared by an employee of NSW Transport. The report refers to an accident involving Mr Bizannes that occurred on 8 May 2019. The report records that the route number of the bus involved in the incident was “393”. At 32, the report records that “[c]aller complains ankle b.ckn when alighting bus”. There are no witness details provided. It is recorded in the report that “[d]ue to late notice from passenger, there is no CCTV footage”.
A certificate of capacity dated 14 November 2019, completed by Dr Chang, records a diagnosis of a left fibula fracture. The certificate records that Mr Bizannes “[s]prained and injured left ankle while stepping off bus on the way to work”. It is recorded that the injury is consistent with the description of the cause.
In his application for personal injury benefits dated 24 November 2019 (claim form)
Mr Bizannes recorded that the accident occurred at 5.36am on 8 May 2019. The claim form records that the accident occurred at “Central Station, Chalmers St, Stand G [n]ear Devonshire St Surry Hills NSW”. Mr Bizannes provided the following account of the accident in the claim form:
“Stepping off the back of the bus my foot connected with the man in front and this caused me to slip straight down into the gutter with quite a force and a twist of my ankle. The bus went on and I limped to work thinking I had just sprained my ankle and knowing that my Optus [sic] card registered my movements. A visit to the doctor near work confirmed my ankle was fractured/broken.”
In an email to Allianz insurance[4] dated 29 October 2021, Mr Bizannes stated:
“Re our phone call today
You stated that there is no public liability if the bus wasn’t parked properly and didn’t lower itself. So we will speak with the CTP guys again. We still firmly believe the bus had a duty of care to make sure everyone gets off a bus safely That also implies taking care if someone falls that the distance is reduced as much as possible. I state this because I did not fall onto the footpath but into the gutter instead. A longer and more injury causing distance.”
[4] The public liability insurer of the State Transit Authority.
I infer from this that on or before 29 October 2021 Mr Bizannes provided Allianz with a history of the incident that included the bus not having been parked in close proximity to the curb.
In an email to the insurer on 12 May 2022, Mr Bizannes stated, relevantly, as follows:
“As stated in my prior application for personal injury benefits, I slipped off the bus into the gutter. This is the main issue, that I didn’t slip onto the footpath because the bus wasn’t parked close enough to the curb.
At the time of the accident there were works being done for the light rail, which meant the bus was stopping a little further back than normal.
And the place where I was being let off, was a major stop (more than half the bus gets off there). So the bus driver should have aligned the bus better so that any fall wouldn’t cause more than a minor injury.
The bus driver should have been even more careful considering how many people get off at that stop.
So the extra distance of the fall contributed to the extent of the injury.
Yes I did connect my foot with the man’s foot in front, but he didn’t trip me, more that I had to step back and slipped on the step during that process.
The bus company said they inspected the bus but didn’t let me pop in to take a photo and have subsequently got rid of the bus.
The fall was quite a long fall into the gutter and most likely if the bus was closer, I might have just sprained an ankle or just had a few grazes…”
In an email to the insurer dated 13 May 2022, Mr Bizannes stated
“…The fact is I fell off the bus. That is the one and only point to clarify in this CTP claim. My injury occurred due to me falling off the bus whilst alighting…”
An email from Mr Bizzanes to the insurer dated 16 May 2022, records, relevantly:
“…I missed the step and fell long way into gutter crunching my ankle and lower leg badly…
What does this mean?
I slipped on the bus whilst it was dropping me off.
To clarify, the step wasn’t the final step on the bus.
That is why I wanted the photos to show there were a few steps going down
unlike the more modern buses which step straight out onto the footpath.
The KEY WORD is slipped…”
Written submissions Mr Bizannes lodged with the Commission on 10 January 2023[5] record, relevantly, as follows:
[5] Pages 47 – 51 of the joint bundle.
“… When alighting from the bus at the middle doors, at Central Station the accident occurred.
The bus was fully packed with people both sitting and standing and I was standing along with others. In other words, the bus was crowded.
The bus pulled into the bus stop leaving a large gap of between 2 to 4 feet …
The middle door opened and the man in front of me started to get off. He suddenly jerked back instead of stepping off the bus.
*We now assume he jerked back because he couldn’t take a normal step due to the gap and had to get ready to jump the gap to get off the bus.
His foot touching mine, causing me to try to step back to the step behind me. But there was no place behind to put my put[6] [sic] properly on the step behind me as the guy behind was also pressing forward. This ended in me placing my foot only half on the step behind me. The edges of the step weren’t designed to provide enough friction to prevent me from slipping (noting the shoes I wore (and still wear) have reasonable grip being rubber soled). I ended up slipping down the bus steps and the front of my foot slammed into the gutter.
** the best way to describe this was that the crowd was moving forward to get off the bus and the man in front of me, by jerking back caused the fiasco whereby I slipped although it was as if I was tripped because my foot couldn’t be placed properly on the step.
Note: The gutter abruptly stopped me as compared with if I had landed on the footpath, then my foot would have continued going forward (thus not impacting at the injury causing angle) …
…
My estimate of the gap was between 60cm to 120cm. (2 to 4 feet)…
Because my shoes are about 30cm in length so even a foot and a half would have been enough for my foot to land on the footpath, but for me to hit the curb where it meets the road so abruptly, 60cm to 120cm would have been the necessary distance for this injury.
Plus the guy in front of me had to jump (which is why he moved back to get ready for the jump, so a 2 to 4 feet gap would have been the distance that would have required this.
…
What distance? We are stating between 2 to 4 feet with my estimate of the gap being 3 feet and a bit based on the average stride length and what would have made the guy in front jerk to get more length to jump?
…”
[6] I have assumed that this was intended to be “foot”.

HEARING

The proceedings were listed for hearing on 22 March 2023. Mr Bruce represented the insurer and Mr Bizannes represented himself. At the commencement of the hearing I sought to narrow the matters in dispute. In this regard, Mr Bruce confirmed the insurer agreed that:
a.    Mr Bizannes suffered an injury to his left ankle when he alighted from a bus on 8 May 2019;
b. the bus is a motor vehicle for the purposes of the MAI Act;
c.     the injury was caused during the driving of the bus;
d.    if the Commission finds that the injury is a result of the driving of the bus, in circumstances where it is agreed that it occurred during the driving of the bus, the injury resulted from the use or operation of the bus;
e. if the Commission finds that s 1.9 of the MAI Act has been satisfied, the injury results from a “motor accident”, as defined in the MAI Act, and s 3.1 of the MAI Act is satisfied, and
f. in those circumstances, Mr Bizannes would be entitled to statutory benefits under part 3 of the MAI Act.
The insurer agreed that the critical matter to be determined is whether the injury to Mr Bizannes left ankle is a result of either the driving of the bus or a dangerous situation caused by the driving of the bus (or both). Mr Bizannes agreed, although his focus was on a dangerous situation caused by the driving of the bus.
I confirmed that, given the matters in dispute, I was not required to determine whether there was any “fault” on the part of the owner or driver of the bus, fault not being a relevant consideration under s 1.9, the definition of “motor accident’ or s 3.1(1).
Both parties made oral submissions at the hearing. The submissions are summarised later in these reasons.

Mr Bizannes’ oral evidence

Mr Bizannes provided an account of the incident at the hearing. He confirmed that on the morning of 8 May 2019, he caught a bus at approximately 5.16am from a bus stop located on ANZAC Parade. He confirmed that the trip took approximately 20 minutes, and that his Opal card statement records that he “tapped off” at Central Station at 5.36am. He confirmed that the bus stopped at Stand G on Chalmers Street. His recollection in relation to these matters was aided by what he recorded in the claim form. His evidence was that the bus was crowded and “at capacity”. He was standing for the entire trip. Immediately before he alighted the bus he was standing near the middle door, second from the door. I accept his evidence about all these matters.
Mr Bizannes gave evidence that the lighting “wasn’t too bad”, and that there was good street lighting at the bus stop. He said that when the bus door opened the passenger “jerks back into” him, and that this in turn resulted in him stepping back. It was then that he slipped. He said that the passenger in front of him “forced [him] to go backwards”, and that the passenger behind him was moving forwards, and that as a result he “didn’t have much room to manoeuvre”, and that’s why he slipped. Mr Bizannes could not recall how many steps there were leading to the door of the bus, although he thought there were two. He thought that he was in the middle of the steps. His evidence was that he was about to step on the bottom step when the incident occurred. He explained that he slid out of the bus and fell on to the gutter. He said that the gap between the bus and the curb was big enough to accommodate his body falling on the road. He said that the gap was “big”. He estimated that the gap between the bottom step and the curb was between two and four feet. His ankle hit the corner where the gutter met the road.

As to the position of the bus at the bus stop, Mr Bizannes’ evidence was that it was “skewed at an angle”. He agreed that the bus wasn’t flush with the curb. His evidence was that the bus “wouldn’t have been parallel to the curb”.
Mr Bizannes said that he “tapped off” before he descended the stairs. I accept this evidence. His evidence, that I accept, was that the Opal card reader was on the top of the stairs. He could not recall if the passenger in from of him tapped off.
Mr Bizannes’ evidence was that the passenger in front of him didn’t turn around after he stepped back, and before he alighted the bus, and that when he slipped from the bus, the passenger was “clear”. He also gave evidence that the passenger in front of him was “straight off the bus”. I accept this evidence.
Mr Bizannes said that the passenger in front of him “jumped clear”. When asked to confirm whether he saw the passenger “jump clear” he responded “yes, yes, I would have”.
In response to questions from Mr Bruce, Mr Bizannes gave evidence that when the bus came to a stop at Stand G, the passenger in front of him was at the door of the bus. I accept this evidence.
Mr Bizannes clarified that, in terms of the passenger jumping to get off the bus, he was “assuming he did”, and that he “did not see”. I do not accept that Mr Bizannes saw the passenger in front of him jump off the bus; I find that he has made an assumption about this.
He also gave evidence that, when the passenger stepped back, he pushed into
Mr Bizannes’ stomach. He later stated that the passenger in front of him “pushed back into him really hard”. I accept his evidence that the passenger in front of him stepped back; it is consistent with the account recorded in the email dated 20 May 2019. I am not, however, satisfied that the passenger pushed back into his stomach. I consider it more probable than not that one of Mr Bizannes’ feet came into contact with the back of one of the passenger’s feet, as recorded in the claim form.

SUBMISSIONS

Mr Bizannes’ submissions

Mr Bizannes has provided detailed written submissions in support of his claim. Some of the matters addressed in his submissions go to issues that do not arise in these proceedings, such as fault and negligence. This is not a criticism, rather I make this observation to explain why I have not addressed all the matters he has canvassed in his submissions.
In submissions lodged with the Commission on 10 January 2023, Mr Bizannes argued that the accident required a combination of circumstances to occur. Those circumstances were: bad parking; an older more dangerously designed bus; a crowded bus; an irresponsible bus driver; and him being the second person to exit the doorway. Mr Bizannes submits that if the bus had been parked properly, his injury would have been minor. He argues that the person in front of him would not have jerked back as he would have been able to step out of the bus easily. He submits that the bus had been parked dangerously.
Mr Bizannes argues that whilst his slipping on the bus steps was caused by the movement of passengers, the initial starting cause was the dangerous gap created by the bus driver causing the passenger in front of him to move backwards to try and jump the gap. He argues that his injury was also due to the dangerous gap, as a “normal slip off the bus, if parked properly” would not have caused a major injury. Thus, he argues, the accident and his injury were caused by dangerous parking by the bus driver.
In submissions lodged with the Commission on 14 February 2023,[7] Mr Bizannes explained that he was not familiar at all with the way CTP works. It is for this reason that he says the initial descriptions of the accident he provided were limited, and focused on “the slipping part, not the causation part”.
[7] Pages 52 – 55 of the joint bundle.
Mr Bizannes submits that there was a very straightforward indirect cause of the accident - the dangerous parking by the bus driver caused the passenger in front of him to jerk back making him step back. Additionally, the passenger behind him didn’t allow him to put his foot down behind him properly, as he was going forward. In those circumstances, Mr Bizannes argues that his foot wasn’t placed in the middle of the step but rather more to the front of it, resulting in him slipping. He argues that the circumstances of the accident fall within the “dangerous situation” limb of the definition of “motor accident”. The dangerous situation was the distance from the curb that the driver had brought the bus to a stop.
Mr Bizannes submits that the way the bus had been parked was the cause of the accident and injury. The submissions include a summary of the Heavy Vehicle Driver Handbook, the text of ss 1.4, 1.9, and 3.1 of the MAI Act, sections found in parts 4 and 6 of the MAI Act, together with provisions from the Motor Accidents Act1988 and the Motor Accidents Compensation Act1999.
Mr Bizannes has also lodged a summary of cases and other information he relies on, as referred to in the index of cases he has provided.
Further written submissions were lodged by Mr Bizannes on 13 March 2023.[8] The submissions contain a mix of arguments and evidence. Mr Bizannes argues that, but for the dangerous situation created by the bus driver by stopping so far from the curb,
[8] AD 11.
he would not have suffered a major injury. He argues that the actions of the passenger in front of him who caused him to fall could only be contributed to by the dangerous gap.
Mr Bizannes argues that his left ankle injury resulted from a motor accident, and that he is entitled to statutory benefits.
In his oral submissions at the hearing, Mr Bizannes argued that his injury was caused by the use of the bus. He submitted that the injury was caused by two factors; the actions of the passenger in front and the dangerous gap created by the manner in which the bus had been parked at the bus stop. He argued that the actions of the passenger in front of him occurred because of the dangerous gap, and that had the bus been parked “normally” he would not have broken his ankle. He argued that “everything resulted from the dangerous parking”.

Insurer’s submissions

The insurer relies on written submissions dated 15 June 2022, 17 February 2023, and 3 March 2023.
The insurer’s 15 June 2022 submissions record that the question to be determined in these proceedings is whether Mr Bizannes’ injury occurred in circumstances which meet the definition of a motor accident under the MAI Act. The insurer submits, by reference to the definition of “motor accident”, that the incident can only be considered a motor accident if the injury occurred as a result of one (or a combination of) any of the following:
a.    the driving of the vehicle, or
b.    a collision, or action taken to avoid a collision, with the vehicle, or
c.     the vehicle’s running out of control, or
d.    a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.
The insurer argues that the essence of the accounts given by Mr Bizannes is that as he was getting off the bus, his foot engaged with the foot of another passenger ahead of him, who was also in the process of alighting from the bus. It was that engagement, it is submitted, that precipitated him to lose his footing on the step of the bus and fall to the road.
The insurer submits that there is no feature of the incident described by Mr Bizannes that could bring the incident within the definition of a motor accident. In the insurer’s submission, his fall was caused by the engagement of his foot with another passenger who was leaving the bus ahead of him. It is argued that no feature of the driving of the bus, or any other chapeau of the definition of “motor accident”, is relevant to the occurrence of the fall.
The insurer submits the claim does not satisfy the requirements of ss 1.4, 1.9 and 3.1 of the MAI Act, and that the CTP policy does not respond to the claim.
In its submissions of 17 February 2023 the insurer argues that the accounts of the accident Mr Bizannes has provided cannot be accepted as reliable accounts as to the circumstances of the incident, and should be treated with extreme caution and given little weight having regard to the inconsistencies present, and the evolving nature of the detail provided in each subsequent account of the incident. The insurer otherwise maintains that the incident does not satisfy the definition of a “motor accident” for the reasons outlined in its earlier submissions. The insurer’s submissions contain various versions of the accident,[9] that are said to support its submissions in relation to the
[9] As recorded in the STA file note dated 31 July 2019, the STA accident/incident report form dated
reliability of Mr Bizannes’ accounts of the incident.
The insurer’s submissions dated 3 March 2023 record that, with respect to the definition of “motor accident” found in s 1.4 of the MAI Act:
a. It is not disputed that:
i.Mr Bizannes was injured in an incident, or
ii.that the incident occurred during the use or operation of the vehicle.
b. It is disputed that Mr Bizannes was injured because of the use or operation of the vehicle, and in particular it is disputed the incident occurred because of (a) to (d) in the definition of “motor accident” contained in s 1.4 of the MAI Act.
With reference to Zengin v Insurance Commission of Western Australia [2020] VSC 237 (Zengin), the insurer submits that, if the Commission accepts:
a. that the bus was parked in an unsafe manner, and
b. that the unidentified passenger in front of the claimant stepped back because the bus was parked in an unsafe manner
Zengin supports the contention Mr Bizannes was injured in a motor accident.
The insurer argues that Mr Bizannes’ allegation that an unidentified passenger stepped back as a result of and because of the manner in which the bus was parked is mere conjecture. The insurer submits that there are other explanations for the actions of the unidentified passenger. The insurer argues that, in circumstances where there are a number of possible reasons for the alleged actions of the unidentified passenger, the Commission is left to speculate and, in those circumstances, the insurer submits causation is not made out.
The insurer argues that Mr Bizannes has the onus of proving causation, and refers to a number of authorities in support of its submission that, in circumstances where the Commission is faced only with conjecture as to the reason for the alleged actions of the unidentified passenger in front of Mr Bizannes, the Commission ought to find that
Mr Bizannes has failed to establish the accident occurred as a result of the use or operation of the bus, and during one of the activities enumerated in sub-paragraphs (a) to (d) of s 1.4.
At the hearing, the insurer argued that Mr Bizannes’ injury was not a result of either the driving of the bus or a dangerous situation caused by the driving of the bus. In the insurer’s submission, the injury was a result of Mr Bizannes coming into contact with the passenger in front of him.
The insurer also argued that Mr Bizannes has given differing versions of the accident over time, and that he had made assumptions about what the passenger in front of him did. In the insurer’s submission, there were a number of possible explanations for why the passenger in front of Mr Bizannes stepped back, including to “tap off”.
The insurer also submits that there is no evidence that if the bus had stopped closer to the bus stop the same injury would not have occurred.
The insurer argued that the term “is a result of” means “because”, and the test was not satisfied on the facts. While the insurer agreed that there can be multiple causes of an injury, in the circumstances of this case, there were not multiple causes; there was a single cause that did not involve the parking of the bus. The injury, in the insurer’s submission, was a result of the actions of the passenger in front of Mr Bizannes.

DETERMINATION

In its written submissions, the insurer argued that the versions of the incident provided by Mr Bizannes cannot be accepted as reliable, should be treated with extreme caution and given little weight. These submissions were echoed in the insurer’s oral submissions at the hearing. Among other things, the insurer pointed to the evidence given by Mr Bizannes at the hearing that the passenger in front of him jerked back, and pushed into Mr Bizannes’ stomach. This evidence, the insurer argued, was not consistent with the earlier accounts of the incident provided by Mr Bizannes.
I accept that some aspects of the versions of the incident provided by Mr Bizannes have differed over time. An example of this is his evidence that the passenger in front of him jerked back and pushed into his stomach. This version is not contained in the email of 20 May 2019 or his claim form. The claim form records that Mr Bizannes’ “foot connected with the man in front”. If the passenger in front of him had “pushed into his stomach”, I would have expected that history to have been recorded in either or both of the claim form and the version contained in the 20 May 2019 email.
Nonetheless, the overall impression I formed of Mr Bizannes was that he was doing his best to recall events that occurred nearly four years ago. I did not form the impression that he was tailoring his evidence or that he was not doing his best to provide an honest and accurate account of the events. I did not find him to be an unreliable witness. He made appropriate concessions, including that he did not see the passenger in front of him jump from or off the bus. His description of the incident has remained broadly consistent: he injured his left ankle when alighting from a bus because a passenger in front of him stepped back, resulting in him slipping off the bus and onto the road.
While the more contemporaneous accounts of the incident provided by Mr Bizannes do not contain some of the detail that he has subsequently provided, such as the gap between the bottom stair of the bus and the curb, in my assessment this reflects his lack of appreciation of the significance of the detail with respect to whether the incident falls within the terms of the MAI Act. He said as much in his submissions.[10] I do not consider that this diminishes the reliability of his evidence.
[10] Submissions at page 52 of the joint bundle.
I make the following findings:
a.    On 8 May 2019 at approximately 5.16am Mr Bizannes boarded a 393 bus on ANZAC Parade, Kingsford.
b.    The bus was crowded, and Mr Bizannes was standing for the entire trip.
c.     At approximately 5.36am the bus stopped at Stand G located on Chalmers Street at Central Station.
d.    Immediately before he alighted the bus Mr Bizannes was standing near the middle door, second from the door.
e.    There were Opal card readers located at the top of the stairs leading to the middle door.
f.     Mr Bizannes “tapped off” his Opal card before descending the stairs of the bus.
g.    Before Mr Bizannes commenced descending the stairs of the bus, the middle bus door had opened.
h.    When the bus came to a stop at Stand G, the passenger in front of Mr Bizannes was standing at the middle door of the bus.
i.     As Mr Bizannes was descending the stairs, and was about to step on the bottom step, the passenger in front of him stopped on the bottom step and stepped back.
j.     The front of one of Mr Bizannes feet came into contact with the back of one of the feet of the passenger in front of him as the passenger stopped and stepped back from the bottom step.
k.     As a result of the passenger in front of him stepping back, Mr Bizannes stepped back.
l.     Because the passenger behind him was moving forward to alight the bus,
Mr Bizannes did not have much room to manoeuvre.
m.   Mr Bizannes missed the step behind him and fell off the bus and into the gutter.
n.    The passenger in front of Mr Bizannes did not turn around after he stopped and stepped back, and before he alighted the bus.
o.    As a result of the fall Mr Bizannes suffered an injury to his left ankle.
Mr Bizannes’ evidence is that when the bus came to a stop at Stand G, it was not parallel with the curb. His evidence is that the bus was at an angle, and was “skewed”. I accept his evidence in this regard.
I also accept Mr Bizannes’ evidence that there was a gap of between two and four feet between the bottom step of the middle bus door and the curb.
Accordingly, I find that the bus came to a stop at Stand G on an angle, and that as a result, there was a gap of between two to four feet between the bottom step of the middle door of the bus and the curb.
The insurer argues that Mr Bizannes’ explanation for why the passenger in front of him stepped back is mere conjecture. The insurer submits that there are other explanations for the actions of the passenger, including that they needed to “tap off” the bus or that they had forgotten something on the bus.
The insurer submits that in circumstances where there are a number of possible reasons for the alleged actions of the unidentified passenger, the Commission is left to speculate, and in those circumstances causation is not made out. The insurer relies on Flounders v Millar [2007] NSWCA 328, in particular what was said by Ipp JA at [35] – [36], and cases referred to in that decision.
The insurer argues that in circumstances where the Commission is faced only with conjecture as to the reason for the alleged actions of the unidentified passenger in front of Mr Bizannes, the Commission ought to find Mr Bizannes has failed to establish the accident occurred as a result of the use or operation of the bus, and during one of the activities enumerated in sub paragraphs (a) to (d) of s 1.4 (and 1.9(1)).
In Seltsam Pty Limited v McGuiness; James Hardie & Coy Pty Limited v McGuiness [2000] NSWCA 29 (Seltsam), Spigelman CJ (Davies AJA agreeing) held at [80] that the common law test of balance of probabilities is not satisfied by evidence which fails to do more than establish a possibility. The Chief Justice held at [84] that:
“It is often difficult to distinguish between permissible inference and conjecture. Characterisation of a reasoning process as one or the other occurs on a continuum in which there is no bright line division. Nevertheless, the distinction exists.”
In Seltsam at [87], Spigelman CJ referred to the following frequently cited passage from Lord Wright’s decision in Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 at 169-170:
“Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases the other facts can be inferred with as much practical certainty, as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.”
The test is whether, on the basis of the primary facts, it is reasonable to draw the inference: Seltsam at [88].
A court (and the Commission) is not authorised to choose between guesses, where the possibilities are not unlimited, on the ground that one guess seems more likely than another or the others. The facts proved must form a reasonable basis for a definite conclusion affirmatively drawn of the truth of which the tribunal of fact may reasonably be satisfied: McLennan v Nominal Defendant [2014] NSWCA 332 at [86] per Emmett JA. Inferences are reasonable deductions from proven facts. They are to be distinguished from mere conjecture, although the dividing line will often be difficult to identify: State of New South Wales v Fuller-Lyons [2014] NSWCA 424 at [30].
Given that I have found that the Opal card readers were at the top of the stairs, the passenger in front of Mr Bizannes would need to have turned around to tap off if he had, as I have found, stopped on the bottom of the stairs. Mr Bizannes’ evidence, that I accept, is that the passenger in front of him didn’t turn around after he stopped and stepped back, and before he alighted the bus. Accordingly, the explanation that he stopped and stepped back to tap off is neither likely nor probable. Indeed, I consider the explanation to be unlikely.

As to the possibility that the passenger stopped to pick up something that he had left behind, as he was standing at the door when the bus came to a stop, I consider it improbable that he had left something behind somewhere else on the bus. Further, if this was his intention, I would have expected the passenger to turn around, towards the direction from which Mr Bizannes was proceeding. I consider that this possibility is not supported by the evidence that the passenger didn’t turn around after he stopped on the bottom step.
In these circumstances, neither of the alternative explanations posited by the insurer for the actions of the passenger in front of Mr Bizannes are probable, or accord with the apparent logic of the facts that I have found.
In circumstances where I have found that the bus had parked at an angle to the curb, and that the distance between the bottom step of the bus and the curb was between two to four feet, and having regard to the apparent logic of events, I draw an inference that the passenger in front of Mr Bizannes stopped on the bottom step of the bus as he was alighting, and stepped back, because he perceived the gap between the step and the curb and needed to judge the distance between either the step and the road or the step and the curb, before alighting from the bus.
In my view, it cannot be said that either of the reasons for the actions taken by the passenger in front of Mr Bizannes posited by the insurer give rise to conflicting inferences of an equal degree of probability or plausibility, when considered against the inference I have drawn as to the reasons for his actions.
While much of the focus of the dispute between the parties has been on the definition of “motor accident” in the MAI Act, the appropriate starting point is the gateway to the MAI Act that is found in s 1.9 of the Act. That provision states, relevantly, that the MAI Act applies in respect of injury to a person that results from the use or operation of a motor vehicle only if the injury is a result of and is caused during:
a. the driving of the vehicle, or
b. a collision, or action taken to avoid a collision, with the vehicle, or

c. the vehicle’s running out of control, or
d. a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control.

There is no suggestion that Mr Bizannes’ injury resulted from a collision, or action taken to avoid a collision, with the bus, or the bus running out of control. Thus, with respect to s 1.9, the critical issue in dispute is whether the injury is a result of either the driving of the bus or a dangerous situation caused by the driving of the bus.
In determining whether the injury suffered by Mr Bizannes resulted from the use or operation of a motor vehicle and whether the injury is a result of the driving of the bus or a dangerous situation caused by the driving of the bus, I am concerned with determining the proximate cause of the injury.
There can be more than one proximate cause: Nominal Defendant v Hawkins [2011] NSWCA 93 at [33] and [68], Leach v The Nominal Defendant [2014] NSWCA 257 at [55] and Toll Pty Ltd v Harradine [2016] NSWCA 374 at [96].
I am satisfied, and I find, that the effective cause of the incident was a combination of the position in which the bus had been brought to a stop at Central station and the actions of the passenger in front of Mr Bizannes when confronted with the gap between the bottom step of the bus and the curb. In these circumstances, I find that one proximate cause of the injury was the driving of the bus.
The insurer agrees, and I find, that the injury suffered by Mr Bizannes was caused during the driving of the bus; it occurred when the bus had been brought to a stop at a bus stop while the bus was being driven.
The insurer agreed that, if the Commission finds that the injury is a result of the driving of the bus, in circumstances where it is agreed that it occurred during the driving of the bus, the injury resulted from the use or operation of the bus.
I find that the injury resulted from the use or operation of the bus because it was sustained within the period during which the driving of the vehicle was taking place and because of the way in which the bus had been driven, namely the parking of the bus. The injury was a consequence of, and by reason of, the driving of the bus.
I am also satisfied that Mr Bizannes’ injury was a result of a dangerous situation caused by the driving of the bus. I find that the position at which the bus was brought to a stop, at an angle and two to four feet from the curb, was a “situation” within s 1.9(1)(d) of the MAI Act. The situation was caused by the way in which the bus driver had brought the bus to a stop at the bus stop, and existed at the time Mr Bizannes suffered his injury.
Mr Bizannes relies on the Transport for NSW Heavy Vehicle Drivers Handbook, with respect to which reference is made in his submissions, and a link provided to the complete document. At page 43 of the Handbook, directions are provided to bus drivers in relation to stopping at a bus stop. Those directions include: to stop parallel with the curb and stop within 300mm from the curb. I infer that these directions are provided to bus drivers with the aim of minimising the risk of injury to passengers alighting from a bus, that risk increasing the further from the curb a bus is brought to a stop for the purposes of allowing passengers to alight.
Looked at prospectively, there was a dangerous situation because the driver allowed passengers to alight from the bus from the middle door when the bottom step was two to four feet from the curb. This in turn meant that the distance a passenger alighting from the middle door had to traverse was both wider and deeper, giving rise to a heightened risk of passengers falling or slipping as they alighted from the bus. This dangerous situation, was, on the facts I have found, caused by the driving of the bus.
I consider it more probable than not that the passenger in front of Mr Bizannes appreciated the risk presented by the distance between the bottom step and the curb, and the bottom step and the road, and in response stopped and stepped back to make a judgment about the distance he had to traverse, and then alighted from the bus. In the process, he came into contact with Mr Bizannes, with the result being that Mr Bizannes slipped and suffered an injury to his left ankle. The proximate cause of the injury was a combination of these factors. That being the case, the injury was a result of a dangerous situation caused by the driving of the bus.
On my findings, Mr Bizannes has established that his injury:
a.    results from the use or operation of a motor vehicle;
b.    is a result of both the driving of the vehicle and a dangerous situation caused by the driving of the vehicle, and
c.    was caused during both the driving of the vehicle and a dangerous situation caused by the driving of the vehicle.
Accordingly, Mr Bizannes has established that his injury comes within the terms of s 1.9 of the MAI Act.
The insurer agrees, and I find, that having established that the injury comes within the terms of s 1.9, the injury results from a “motor accident”, as that term is defined in s 1.4 of the MAI Act.
Having established that his injury on 8 May 2019 results from a motor accident in this State, Mr Bizannes is entitled to statutory benefits under part 3 of the MAI Act, s 3.1(1) having been satisfied.

6 August 2019, the application for personal injury benefits form dated 24 November 2019, and emails from Mr Bizannes to the insurer dated 12 May 2022, 13 May 2022 and 16 May 2022.

[2023] NSWPIC 135

29 March 2023