CFD v AAI Limited t/as AAMI

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	CFD v AAI Limited t/as AAMI [2023] NSWPIC 592
CLAIMANT:	CFD
INSURER:	AAI Limited t/as AAMI on behalf of the Nominal Defendant
SENIOR MEMBER:	B Williams
DATE OF DECISION:	8 November 2023
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; whether for the purposes of section 3.1 the injury suffered by CFD resulted from a motor accident in this State; whether bike involved in incident was a “motor vehicle” as defined; whether section 1.9 is engaged; whether incident was a “motor accident”; Held – the bike involved in the incident was not a “motor vehicle”; definition of “motor accident” not met; injury was a result of being pushed by a pedestrian; neither section 1.9 or section 3.1 engaged.
DETERMINATIONS MADE:	CERTIFICATE For the purposes of section 3.1 of the Motor Accident Injuries Act 2017 the injury suffered by CFD on 29 July 2022 has not resulted from a motor accident in this State.

STATEMENT OF REASONS

BACKGROUND

CFD has made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAI Act) on the Nominal Defendant. AAI Limited t/as AAMI act on behalf of the Nominal Defendant. The claim arises from an incident that occurred as CFD was riding an “e-bike” through Prince Alfred Park, Surry Hills, in the early hours of 29 July 2022 (incident). Other than CFD’s bike, there were no other vehicles involved in the incident.
The Nominal Defendant denied liability for CFD’s claim. In a decision dated 2 February 2023, an internal reviewer determined that the bike involved in the incident was not a “motor vehicle” as defined by the MAI Act, and that the injuries CFD suffered due to the incident did not result from a “motor accident” as that term is defined in the MAI Act. Given those findings, the internal reviewer determined that CFD was not entitled to weekly payments of statutory benefits under s 3.1 of the MAI Act.
CFD, who is self-represented, commenced these proceedings. She disputes the Nominal Defendant’s denial of her claim for statutory benefits under the MAI Act. The dispute is a miscellaneous assessment matter: Sch 2 cl 3(b) MAI Act.
For the reasons that follow, I have determined that, for the purposes of s 3.1 of the MAI Act, the injuries suffered by CFD on 29 July 2022 were not the result of a motor accident in this State. Underpinning my determination are findings that:
(a)    The bike involved in the incident was not a “motor vehicle”;
(b)    The definition of “motor accident” has not been satisfied;
(c)    Section 1.9 is not engaged, and
(d) Section 3.1 is not engaged.

PROCEDUAL HISTORY

A number of preliminary and case management conferences were conducted in the proceedings. The conference reports record the procedural history, including the directions made at the conferences. CFD was assisted by a Korean interpreter at the conferences and the assessment hearings.
The proceedings were listed for assessment on 20 July 2023. The assessment did not conclude and was listed, part-heard, on 9 August 2023.
I listed the proceedings for a case management conference on 28 July 2023 to establish whether CFD sought further time to obtain legal representation. CFD confirmed that she wished to do so. I informed the parties that, having regard to the matters in dispute, if CFD was able to secure legal representation in the proceedings, I proposed to make a costs order under s 8.10(4)(b) of the MAI Act. The part-heard assessment listed on 9 August 2023 was vacated and the matter listed for a case management conference on 18 August 2023. That listing was rescheduled to 31 August 2023. On that occasion, CFD told me that she would like additional time to secure legal representation.
The proceedings were listed again for case management on 17 October 2023. CFD confirmed that she had been unable to secure legal representation and that she would continue to be self-represented in the proceedings. The proceedings were listed for assessment, part-heard, on 27 October 2023 by MS Teams. The assessment hearing concluded at that time.
CFD gave evidence on both 20 July 2023 and 27 October 2023. Relevant aspects of her evidence are addressed in the reasons that follow. Both CFD and Mr Wilson, on behalf of the Nominal Defendant, made oral submissions. During the course of submissions on 27 October 2023, CFD raised for the first time the existence of footage of a friend riding what she said was the bike involved in the incident. The Nominal Defendant objected to the footage being relied on by CFD in the proceedings. I explained to CFD that if she sought to rely on the footage in these proceedings the matter would not conclude that day. This was because the Nominal Defendant would be given time to consider the footage, and would then be given the opportunity to ask her questions about, and make submissions with respect to, the footage. CFD confirmed that she did not seek to rely on the footage, and that she wanted the matter finalised. That being the case I was not required to rule on whether CFD could rely on the footage.

DOCUMENTARY EVIDENCE

The Nominal Defendant prepared a joint bundle of documents. In addition to this material, CFD relies on a screen shot dated 22 April 2022 and brief video footage of an e-bike. The Nominal Defendant relies on an email from CFD to Suncorp dated 8 May 2023. CFD also provided further material after the assessment on 20 July 2023. That material has been consolidated into a further bundle prepared by the Nominal Defendant. I have read and considered all the material relied on by the parties.

STATUTORY FRAMEWORK

Section 1.9 is the gateway provision to the MAI Act. The MAI Act does 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.”
CFD 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.”
Section 1.4 of the MAI Act states that “motor vehicle” means a motor vehicle or trailer within the meaning of the Road Transport Act 2013.
Section 4 of the Road Transport Act 2013 (Transport Act) defines "motor vehicle" as a vehicle that is built to be propelled by a motor that forms part of the vehicle. The definition of “vehicle” is also found in s 4, and is in the following terms:
“vehicle” means--
(a) any description of vehicle on wheels (including a light rail vehicle) but not including any other vehicle used on a railway or tramway, or
(b) any description of tracked vehicle (such as a bulldozer), or any description of vehicle that moves on revolving runners inside endless tracks, that is not used exclusively on a railway or tramway, or
(c) any other description of vehicle prescribed by the statutory rules.
The statutory rules are the regulations and rules made under the Transport Act. Rule 15 of the Road Rules states:
“15 What is a vehicle
A vehicle includes—
(a) a motor vehicle, trailer and tram, and
(b) a bicycle, and
(c) an animal-drawn vehicle, and an animal that is being ridden or drawing a vehicle, and
(d) a combination, and
(e) a motorised wheelchair that can travel at over 10 kilometres per hour (on level ground), and
(f) an electric skateboard, unless a person is driving the electric skateboard in the circumstances set out in rule 228–1,
but does not include another kind of wheelchair, a train, or a wheeled recreational device or wheeled toy.
Note 1—
Various terms mentioned in this rule are defined in the Dictionary.
Note 2—
This rule is not uniform with the corresponding rule 15 of the Australian Road Rules.”
Schedule 1, Part 2 cl 15 of the Road Transport (Vehicle Registration) Regulation 2017 is in the following terms:
“15 Power-assisted pedal cycles and electrically power-assisted bicycles
The registration provisions do not apply to a registrable vehicle that is—
(a) a power-assisted pedal cycle within the meaning of vehicle standards, as amended from time to time, determined under the Road Vehicle Standards Act, section 12 other than 1 that has an internal combustion engine or engines, or
Note—
Power-assisted pedal cycle is defined in the Vehicle Standard (Australian Design Rule – Definitions and Vehicle Categories) 2005 determined under the Road Vehicle Standards Act, section 12. The definition of power-assisted pedal cycle includes electrically power-assisted cycles, within the meaning of that Standard.
(b) an electrically power-assisted bicycle that has a maximum continued rated power of 500 watts, if the power output—
(i) progressively reduces as the bicycle’s speed increases above 6 kilometres per hour, and
(ii) is cut off when—
(A) the bicycle reaches a speed of 25 kilometres per hour, or
(B) the rider of the bicycle stops pedalling and the speed is more than 6 kilometres per hour.”
“Power-assisted pedal cycle” is defined in The Vehicle Standard (Australian Design Rule – Definitions and Vehicle Categories) 2005 (Cth) (Standard) as follows:
“POWER-ASSISTED PEDAL CYCLE - means a vehicle, designed to be propelled through a mechanism primarily using human power, that:
(a) meets the following criteria:
(i) is equipped with one or more auxiliary propulsion electric motors with a combined maximum power output not exceeding 200 watts;
(ii) cannot be propelled exclusively by the motor or motors;
(iii) has a tare mass (including batteries) of less than 50 kg;
(iv) has a height-adjustable seat; or
(b) is an electrically power-assisted cycle;
but does not include a vehicle that has an internal combustion engine.”
“Electrically power-assisted cycle” (EPAC) is defined in the Standard as:
“ELECTRICALLY POWER-ASSISTED CYCLE (EPAC) - means an electrically-powered pedal cycle with a maximum continuous rated power of 250W, of which the output is:
(a) progressively reduced as the cycle’s travel speed increases above 6 km/h; and
(b) cut off, where:
(i) the cycle reaches a speed of 25 km/h; or
(ii) the cyclist is not pedalling and the travel speed exceeds 6km/h.”
As can be seen from the foregoing, for s 1.9 to be engaged, CFD must establish (among other things) that her injuries result from the use or operation of a “motor vehicle”, a term defined in the MAI Act. Likewise, because s 3.1 requires that her injuries result from a “motor accident”, as that term is defined, she must also establish that the incident involved the use or operation of a “motor vehicle”. In short, CFD must prove, on balance, that the bike involved in the incident was a “motor vehicle”. It is to that issue, and related matters, that I will now turn.

THE BIKE

Brand of the bike

CFD’s case is that the bike she was using when the incident occurred was a Quanbao brand bike. The Nominal Defendant disputes that the brand of the bike has been established.
It is evident that CFD was not initially sure what brand or model of bike she had been riding when the incident occurred, nor the specifications of the bike. CFD gave evidence, that I accept, that she rented the bike. She also provided a rental agreement for the bike, described in the agreement as a “Black 20inch Ebike”, dated 5 November 2021.
The evidence includes screen shots of various conversations between CFD and others on messaging apps about the bike. It appears from those messages, and I find, that sometime after the incident, CFD returned the bike to the individual from whom she had hired it, and the bike was subsequently sold[1]. The messages also contain discussions about the brand of the bike. It appears that it was initially thought the bike was a “VINXS” branded bike. Subsequent messages refer to a Quanbao brand bike.
[1] Message from C Dalal dated 12 February 2023 [JB 14].
The Nominal Defendant’s internal review decision refers to CFD having sent an email dated 6 January 2023 that included a hyperlink to a “vinxs-electric-cargo-bike”. What appears to be the same hyperlink is included in a message thread contained in the joint bundle.[2]
[2] JB 18.
The joint bundle includes two photographs of a bike.[3] CFD has also provided footage that she says depicts the bike, together with a further, unmarked, version of a still shot taken from the footage. A screen shot provided by CFD records that the footage was recorded on

2 April 2022 at 9:56:51pm. During the course of oral submissions on 27 October 2023

Mr Wilson confirmed that the Nominal Defendant did not dispute the accuracy of the date and time the footage was recorded.
[3] JB 19 and JB 79.
The first photograph of the bike contained in the joint bundle is part of a thread of messages. As I understand it, the photograph depicts the subject bike when it had been taken by CFD to be repaired. The photograph is taken from the rear of the bike. No branding or letters can be seen on the bike.
The second photograph in the joint bundle is a still shot of the footage of the bike that CFD relies on. On the photograph a red circle has been drawn around letters on the frame of the bike, and the word “Quanbao” superimposed on the photograph in black. CFD has also provided a second, unmarked, version of this photograph. In that version, the lettering on the frame is clearer that in the version in the joint bundle. CFD’s evidence is that the footage of the bike was taken on the Manly Ferry. Her evidence, that I accept, is that the footage and the still photographs depict the bike involved in the incident.
In the footage and the still photographs letters can be seen on the frame of the bike. Some of the letters are wholly or partially obscured. CFD’s case is that the letters are “QUANBAO”.
The Nominal Defendant’s case is that CFD has not established either the brand or specifications of the bike. In terms of the markings on the frame of the bike, the Nominal Defendant’s position was that the bottom letter was an “O” or a zero on its side, and that the preceding letter could be an “A”. The Nominal Defendant did not otherwise make any concessions about the letters (or numbers) on the frame of the bike.
I am mindful of the caution that must be taken when using photographs and footage tendered in evidence in factual inquiries, and that each case will depend on the particular photograph and the particular purpose for which it is sought to be deployed[4]. With these considerations in mind, I am comfortably satisfied that the letters “BAO” can be clearly seen on the frame of the bike in both the footage and the unmarked still photograph of the footage. The letter “B” is red, and the letters “A” and “O” are in white. Further, I consider it probable that, while partially obscured, the letter that precedes the letter “B” is the letter “N”. The letters that precede the letter “N” cannot be clearly seen. However, on balance, I infer that what is obscured are the letters “QUA”, and that the word on the frame of the bike is “QUANBAO”. In drawing this inference, I am satisfied that Quanbao is a brand that manufactures bikes. The probabilities, in my assessment, fall in favour of a finding that the bike depicted in the footage and still photograph was a Quanbao brand bike.
[4] Aerolink Air Services Pty Ltd v Bankstown Airport Ltd [2022] NSWSC 587 at [25].
I find that the bike depicted in the footage is the bike CFD was riding when the incident occurred. I find that the bike involved in the incident was a “Quanbao” brand bike.

Configuration and operation of the bike

CFD gave oral evidence about how the bike worked. She described using the pedals to operate the bike. The bike had an adjustable seat. Her evidence was that there were brakes on each handle, and a throttle on the right handle. She applied the throttle when moving off at intersections to increase the speed of the bike. She also used the throttle to increase speed while going up hills, or to pick up speed generally. She said: “If I want to operate the bike I have to peddle it”. I accept her evidence about these matters.
By reference to the bike depicted in the footage, CFD explained that the black box under the seat was the battery for the motor. I accept this evidence.
CFD was asked whether the motor on the bike activated after it reached a certain speed. She explained that it was “not that type of bike”; if she wanted to use the motor, she would apply the throttle. She said that at low speeds the bike did not require peddling for the throttle to operate, and that the throttle would also be used to increase speed while she was pedalling the bike. I accept CFD’s evidence about these matters, including that the bike had a throttle.
As far as CFD was concerned, the bike was lawful and legal. Her evidence was that the bike did not need to be registered, and she did not need a licence to ride it. She wore a bike helmet, as opposed to a motorbike helmet, when operating the bike. CFD confirmed that she did not know, or have, the exact specifications of the bike, a matter I confirmed with her on 20 July 2023 and 27 October 2023. She thought that the bike was powered by a motor of either 200 or 250 watts. She could not say which. My impression of her evidence in this regard is that it is the result of enquiries she made after the accident, and with an eye to what she had been told about the legal requirements for an e-bike in Australia.[5] I am not satisfied that CFD was in a position to give reliable evidence about the power of the motor.
[5] See message from Cyrus Dalal dated 12 February 2023 at JB 16.
CFD’s evidence, that I accept, was that the motor was located at the rear wheel of the bike near the axle, and that it was attached to the rear wheel.
The Nominal Defendant argues that the technical specifications of the bike have not been proved. I accept this submission. The Nominal Defendant did, however, accept that there was no suggestion the bike was “an illegal bike”.
The Nominal Defendant did not concede that the motor on the bike “formed part of the [bike]”. The Nominal Defendant submitted that it was unclear whether the motor was put on the bike at the time of, or after, it was manufactured.

Having regard to the evidence I have accepted, I make the following findings about the operation and configuration of the bike at the time the incident occurred:
(a)    The bike had an adjustable seat;
(b)    Pedals were used to operate the bike;
(c)    There was a battery located under the seat of the bike;
(d)    There were brakes on each handle;
(e)    There was a throttle located on the right handle of the bike;
(f)    A motor was attached to the rear wheel of the bike near the axle;
(g)    The motor was powered by the battery located under the seat;
(h)    The motor was activated by the throttle, and
(i)    The throttle was used to increase speed while the bike was being pedalled, including when moving off at intersections and going up hills.
Other than the findings made above, I am not satisfied that the evidence allows me to make findings, on the balance of probabilities, with respect to the power of the motor and the maximum speed of the bike when the motor was engaged. Further, I am not satisfied that the evidence allows me to make findings, on the balance of probabilities, about when the motor was attached to the bike, the means by which it was attached to the bike, and whether it was attached to the bike at the time it was built or subsequently. Nor does the evidence allow me to make findings about when the throttle and battery were affixed to the bike, and what, if any, modifications were made to the bike after it had been sold by the manufacturer. This is of particular relevance in circumstances where the bike appears to have passed through a number of hands between when it was built and when it was lent on hire to CFD.
Finally, I am not satisfied that the facts I have found allow me to make a finding as to whether the bike is power assisted pedal cycle or electrically power-assisted cycle, as those terms are defined in the Standard.

WAS THE BIKE A MOTOR VEHICLE?

As recorded earlier in these reasons, to bring her claim within the terms of both s 1.9 and s 3.1 of the MAI Act, CFD must prove, on balance, that the bike involved in the incident was a “motor vehicle”.
In order to fall within the definition of “motor vehicle” for the purposes of the MAI Act, CFD must establish that the bike was a vehicle built to be propelled by a motor that forms part of the vehicle: Section 1.4 MAI Act and s 4 of the Traffic Act.
The Nominal Defendant does not dispute that the bike was a “vehicle”. I find that the bike was a “vehicle” as defined by s 4 of the Traffic Act; it was a vehicle on wheels.
There is no dispute between the parties that the bike did not require registration, and in this sense was not registrable. Further, there is no dispute that CFD did not require a licence to ride the bike.
The Nominal Defendant does, however, dispute that the bike was a “motor vehicle”. The Nominal Defendant argues that the bike is not a motorcycle, a motor scooter or a moped. It submits that while it may have had a throttle, that is not its defining feature.
The Nominal Defendant submits that the available evidence makes it plain that the bicycle’s primary method of propulsion emanated from human power in the form of pedalling rather than an auxiliary electric power output motor. It submitted that the motor is present to help the rider in circumstances such as going uphill or riding into a headwind. In the Nominal Defendant’s submission, human propulsion remained paramount in the operation of the bike.
The Nominal Defendant refers to, and relies on, Matheson v DPP (NSW) [2008] NSWSC 550 at [54], and argues that the size, shape, weight, run distance, motor power, structure and appearance of the bicycle all support its submission that the bike is not a “motor vehicle”. The Nominal Defendant acknowledges that the question for determination in Matheson was “somewhat different” to the questions that arise in these proceedings.
The Nominal Defendant also argues that there are legitimate and valid policy reasons as to why the Commission would find that the bike does not meet the definition of motor vehicle in this case. It is argued that finding that an e-bike, which does not require registration or a licence to operate on a road or road-related area, is a “motor vehicle” would open the New South Wales CTP scheme up to coverage that was not intended by the legislature. In the circumstances, it is argued that there is an obvious risk of the cost of premiums significantly increasing to account for injuries caused by the use or operation of power assisted pedal cycles and/or electrically power assisted cycles, contrary to s 1.3(2)(d) of the MAI Act.
In oral submissions, the Nominal Defendant argued that there was nothing in the second reading speech to suggest that e-bikes were intended to be covered by the scheme. In the Nominal Defendant’s submission, if the intention was that they would be covered, some mention of that would be expected in the second reading speech. Reference was also made to “scheme-wide ramifications” of e-bikes being covered by the MAI Act.
The Nominal Defendant argued that CFD’s bike was used in a way that would typically be expected of a bicycle: there was human power used and there was peddling. It was further argued that, while the throttle was used, the majority of the time the bike was used with the pedals operating. The Nominal Defendant also pointed to CFD’s evidence that she used a bike helmet, not a motorbike helmet, that she was not dressed in “leathers”, and did not wear protective gear or boots. In the Nominal Defendant’s submission, the bike was being used in a way that was consistent with it being a bike.
The Nominal Defendant argued that the bike retained the inherent qualities of a bicycle, and could always be pedal operated, whereas it could not always be motor operated. The Nominal Defendant did not dispute that, in certain circumstances, the bike could be propelled by the motor. The Nominal Defendant argued that, whether the bike was a pedal operated e-bike or a throttle operated e-bike, it remained a bicycle; it had all the inherent features of a bicycle, and the pedalling remained paramount.
The definition of “motor vehicle” focuses attention on the intended operation of the vehicle in question at the time it was built. In this case, the question is: was the bike built to be propelled by a motor that forms part of the bike? The definition is not concerned with the operation of the vehicle after modifications have subsequently been made to it by someone other than the manufacturer, where those modifications alter the manner in which the vehicle operates, and where the manufacturer neither intended nor anticipated that such modifications would be made when the vehicle was built.
I have found that at the time the incident occurred, a motor was attached to the rear wheel of the bike near the axle, that there was a battery under the seat, and that the motor was engaged by a throttle located on the right handle of the bike. However, as previously recorded, I am not satisfied that the evidence supports a finding about when the motor, throttle, and battery were attached to the bike, whether at the time it was built or subsequently, or whether modifications were made to the bike after it was sold by the manufacturer. In the absence of evidence about these matters, I am not persuaded, on balance, that the bike was built to be propelled by a motor that forms part of the bike.
I am not satisfied, on the balance of probabilities, that the bike is a “motor vehicle” as defined by and for the purposes of the MAI Act. That being the case, I find that for the purposes of s 1.9 of the MAI Act CFD’s injuries did not result from the use or operation of a motor vehicle. The MAI Act, therefore, does not apply. This finding on its own would prevent CFD from recovering statutory benefits under the MAI Act. For completeness, I will also address s 3.1.
Section 3.1 states, relevantly, that if injury to a person results from a motor accident in this State, statutory benefits are payable. For s 3.1 to be engaged, there must be a “motor accident”. For the purposes of the MAI Act, “motor accident” means, relevantly, an incident or accident involving the use or operation of a motor vehicle that causes injury. Because I have found that the bike was not a “motor vehicle”, the definition of “motor accident” cannot be satisfied. Consequently, I find that s 3.1 is not engaged, and CFD is not entitled to statutory benefits under the MAI Act.

FURTHER REASONS WHY STATUTORY BENEFITS ARE NOT PAYABLE

There are additional reasons why the definition of “motor accident’ is not satisfied, and why neither s 1.9 or s 3.1 are engaged. To provide context for the findings that follow, it is necessary to canvas the evidence relating to the circumstances of the incident.

Versions of the incident

There is a NSW Police Force COPS report dated 21 August 2022 (COPS Report). The report contains a number of narratives of the incident. A narrative dated 29 July 2022 records relevantly as follows:
“At the above T/D, [6] police attended the LOC[7] in relation to a report of two males, only described as 20’s dressed in all black, who had thrown a rock at the VIC, who was making deliveries on her electric bicycle at the time. This has caused her to fall off her bicycle.
Speaking to the VIC, she stated that they did NOT throw rocks at her, only that they jumped out onto the footpath, in [sic] which she lost control and fell off. SH14 consulted on scene, insufficient evidence to cover proofs of assault exist…
…VIC spoken to who did not report any injuries…”

[6] 0400 29/7/2022.

[7] Prince Alfred Park.

The COPS Report contains an entry created on 20 August 2022 that records as follows:
“At the above time and date[8] the VIC attended the above LOC[9] and attempted to elaborate on the incident reported three weeks earlier. The VIC explained the incident and further elaborated in the below email, sent the same evening:
“Thank you for today officer
I have add [sic] more details what happened that day with suspect description
In the report I said to 000 they only jumped on the footpath that’s not true.
When the suspect and I first time saw on the bit of distance each other, somehow I feel want to bit turn around to left side of them just passing through, the suspect definitely saw I turned my bike bit left side that I’m trying to avoid. He could let me go.
But the suspect clearly had a intention to harassing me, he block my way and show off his face close to me and whether I try to avoid to the left or right side, he was keep followed me show off his face close to my face again, suddenly he push me with his shoulder. I lost balance same time hit the street light and fall down from bike.
He had a black short hair and wearing black rider style jacket.
His friend has similar hight [sic] and weight, both has slim body types.
After I hang off the 000. 3 of police officer attend the scene. I tell them the same story what was happened, that’s why I don’t understand why police report everything different what I said…”
[8] 1800 20/08/2022.
[9] “SHPS” (Surry Hills Police Station).
The COPS Report states that:
“The VIC further provided police with photos of injuries.
The VIC was advised that due to it being three weeks later, and no POIs were located that same evening, that it was increasingly unlikely that the offenders will be found. The VIC understood this and solely wanted an updated report for insurance purposes.”
There is an email from CFD to Chief Inspector Brown at NSW police dated 4 August 2022, that states relevantly:
“…I had an unexpected attack last Friday.
I was riding bike on the way home and two boys was walking against me.
I noticed that left side of boy’s motion’s feels like trying to moking [sic] me.
I turn my bike little bit left side and try to just passing to go home.
Even he saw I was trying to avoid them, the boy approach me show off his face close to me and try to fun of me and he just push me with his shoulder.
I loose [SIC] my balance, fall down from bike and the boy and his friend laughed together run away…”
Later in the email, CFD states “I was feel, have I done enough to tried to warning them before that boy was push me.” She later states:
“[b]ut I fall down from bike, Ive got multiple injured I had to off my work…
Pushing Someone riding bike or try to make moking [sic] or fun, feels seriously death threats to me.
They didn’t consider me as human being, I was just moving toy to them…”
In an email to police dated 25 October 2022, CFD stated (among other things):
“I never stated the offender only jumped out, I have stated repeatedly the offender push me and run away.”
The Joint bundle includes a photograph of the path on which the incident occurred. The pole CFD says she struck can be seen to the left of the photograph. The pole is located in the grass, not on the path. I cannot judge the distance from the photograph.
CFD lodged an application for personal injury benefits dated 10 November 2022 (claim form). She provided the following description of the incident in the claim form:
“I was riding e-bike middle of Prince Alfred Park in the foothpath [sic], near basketball court to central station way. 2 of young caucasian male was walk against my direction to Cleveland st way. We saw each other I turned my bike little bit left side, just trying go through to on my way on. But left side of male apprached [sic] me suddenly, block my way and show off his face close to me.
I was kind of frozen, and try to avoid, the offender keep follow my face whether I try to turn my bike, and suddenly he pushed me with his shoulder my right arm, My bike had a[n] accelerator on my right handle bar, it make run accelerator, my bike bounce off to pole. My bike hit the pole on my right side of body and I fall down from bike. The offender laugh together with his friend and run away to Cleveland st way. I called 000 after police attendant at scene after I report my injury to police with email. Police was not able to find offenders.”
There is a message from CFD in the Joint Bundle[10] that includes the following statement:
“…I did not ask to change the report from assault to accident; I reported both assault and accident. The offender’s assault caused the accident, but the police do not want to make any other criminal charges. Despite the serious criminal matter, I cannot receive any benefits from victim support or CTP. The police only focus on my bike’s illegal specifications, even though they have no proof, and do not care about serious road criminal activity…”
[10] Page 78.
In a message to “Cyrus” dated 12 February 2023, CFD stated, among other things, that “[m]y case was assault”.
On 8 May 2023, CFD sent an email to Suncorp in which she stated, relevantly, as follows:
“Hi, I'm sending again that my bike was electrically power assistant bike not peddle assistant bike.
That why police didn't want to give me a motor vehicle accident report.
The reason peddle assistant bike was not safe in road, when stopped in traffic control line, specially traffic control line was located in up hill point, it's very dangerous when traffic lights are change, and I have to depart immediately when cars are behind. Peddle assistant bike hard to depart immediately as car's expectation speeds are not that law speed.
In the manual that peddle assistant bike must peddle when motor reach the some over speed. Which is my bike wasn't that brand either, if AAMI check all of my screenshot from bike trade shop and rental owner, I wouldn't spend my time explain again here.
But throttle activated motor bike doesn't need to require high strength or not
dangerous in the traffic road when rider have to depart with other cars vehicle.
Without throttle activated motor bike I won't able to make enough income.
Throttle only E bike have speed limit with 250w motor.
That's why police only focus my bike was illegal or not and didn't consider
seriousness criminal charges of the offender.
Even police never questioned about my bike or didn't have proof of illegal
specifications when police attended at scene. Police never write down my statement
at the scene that my bike was hit the pole, they just make fake report one the first
page. Second page was made after my complaint.
I had to use throttle activated motor bike for my courier, I never warned by police
for over speed or without peddling.
I've only use the throttle when I need to depart from traffic control line, up hill riding
with peddle assistant.
I have stated to Internal reviewer Shawn when he asked me that time I was peddle
or not, I said I wasn't peddling at all as the offender constantly block my way and all
I can do was just try to avoid and maintain balance not to fall.
As I mentioned previous email if I was peddling at that time, my bike would not
bounce off to pole, just fall down to ground when offender hit me.
It's impossible without throttle accelerated to motor and hit pole that fast.
Please read again my email.
…”
I have considered the Notices of Decision of the Commissioner of Victims Rights dated

4 October 2022 and 30 November 2022. The October 2022 decision records that “[p]reviously it has been established that CFD was the victim of an act of violence and found to be eligible for victims support.” The decision records that an additional claim for financial support had been approved.
The 30 November 2022 decision records that it had previously been established that CFD was the victim of an act of violence and found eligible for victims support. Reference is made to the payment by AIG Australia of a “Workplace Assault Benefit”. CFD’s “additional” claim for financial support was not approved. The decision states at [11]:
“The psychological injuries were sustained as a direct result of harassment and assault of CFD by the alleged offenders and the physical injuries were sustained as a result of CFD falling off her electric bike. As the physical injuries were sustained when CFD fell off her electric bike, which is a motorised vehicle, it is considered to be a motor incident and is therefore an exception to eligibility for victims support.”
In her oral evidence CFD stated that on the morning of the incident she had been working as a food delivery rider. Her last delivery was just after 3am, and she was returning home. As she was riding on the path through Prince Albert Park she was approached by two young men. She thought that they were mocking her. She described making eye contact with one of the young men. She also described trying to avoid the young men on the path. She thought that they knew she was trying to avoid them. She said that one of the young men “came after [her]”. Her evidence was that on two occasions one of the young men followed her movement on the bike. She thought that the incident was racially motivated. One of the two boys came into contact with her right shoulder. CFD said that she was not sure whether she was pushed, but thought that she had definitely been bumped. She was not sure whether the bike was still moving when she was bumped or pushed, and she was not sure whether she activated the throttle as a result of the bump/push as the incident occurred very quickly. She thought she was about a meter from the pole before she was bumped. She explained that she was holding the handle of the bike when one of the young men came into contact with her. She described losing balance after the contact. She thought that the bike was not moving when the contact occurred.
CFD was asked whether she understood the difference between a bump and a push. She said she did. She was taken to the police report that recorded her describing being “pushed”. At one point she said that she was not sure how to differentiate between whether she had been pushed or bumped. She said she knew how she felt.
CFD’s evidence was that one of the young men bumped her on her right side and that the bike then moved to her left. She said that the bump caused the bike to change direction and lose balance. The right handle of the bike came into contact with the pole, as did her head. She explained that after the bike fell, her right knee was stuck between the pedal and the pole. She said that she didn’t expect the young man to bump her. She thought that she may have started the throttle. She said that when her head made contact with the pole the young men laughed and ran away. CFD described feeling humiliated by the experience. She also described being overwhelmed when the incident occurred, and that the incident happened very fast. She felt that the young men did not treat her like a human. Her explanation for why the bike struck the pole was that the accelerator had been activated by the throttle. She thought that was the only “scientific” explanation. She postulated that her hand had rolled the right handle, on which the throttle was located.

On 27 October 2023 CFD stated that as a result of the impact with the pole, her bike helmet had a 10cm crack in it. She said that the bike moved at a very high speed and that there was something wrong with the bike.
CFD’s case is that the incident was “an out of control accident by the offender which was the throttle accelerated when the offender hit [her]”.[11] In written submissions[12] CFD recorded that she was using a limited speed e-bike on a designated cycling road within a public park. She argued that the accident occurred because the motor was activated when the “offender” hit her. She argues that “[t]he offender's actions against [her] were serious and life threatening, particularly the collision caused by the offender. The offender intentionally blocked [her] path and hit [her] with his arms.”
[11] Claimant’s application to the Commission dated 25 May 2023.
[12] Pages 120 and 121 in the Joint Bundle.
CFD argues that:
“[t]here is no logical explanation other than a collision at high speed with the pole. The offender blocked my vision, and I could only see the offender's smiling face. It is impossible for me to cause such a motor collision with the pole myself. I was not traveling at high speed, and no one would intentionally crash into a pole which located outside of footpath, 1-2 meters ahead of the rider unless under the influence of drugs or other issues.”
The Nominal Defendant’s case is that CFD was pushed by one of the young men in the park, that the push caused the collision between the bike and the pole, and that the best description of what occurred is not a “motor accident” but a battery. The Nominal Defendant argues that the fact CFD was riding a bike is incidental to what occurred, and that the push was the material cause of the injury. While the temporal component of the test in s 1.9 was met, in the Nominal Defendant’s submission, the causation component was not. The fact that CFD was “driving” the bike was, in the Nominal Defendant’s submission, neither a proximate nor material cause of her injury. The injury was the result of a battery, a criminal offence.

Findings – the incident

Whilst in her claim form dated 19 November 2022, and in subsequent versions of the incident she has provided, CFD referred to the involvement of the throttle on the bike, the throttle was not referred to in her email to Chief Inspector Brown on 4 August 2022. In that email, CFD stated, “…he just push me with his shoulder. I loose [sic] my balance, fall down from bike..” Likewise, the involvement of the throttle was not mentioned in the email CFD sent to police on 20 August 2022. In that email, CFD stated “…suddenly he push me with his shoulder. I lost balance same time hit the street light and fall down from bike…”.
I find that it is more probable than not that had she activated or applied the throttle on the bike as a result of being pushed, CFD would have said so in the written accounts of the incident she provided to police on 4 August 2022 and 20 August 2022. Further, I am comfortably satisfied that if the throttle was in anyway a factor in the incident, CFD would have said so in those emails. I consider it probable that the involvement of the throttle has been introduced into the versions she has subsequently provided as a result of CFD re-constructing events.
I find that the versions of the incident CFD provided to police on 4 August 2022 and 20 August 2022 are more reliable than the subsequent versions CFD has provided, both in writing and in oral evidence. In arriving at this finding, I have taken into consideration that English is not CFD’s primary language, and that she required an interpreter during the course of these proceedings. However, I am satisfied on the evidence before me that she has the ability to communicate effectively in written English. Her emails to police contain detailed accounts of the incident. She has also provided submissions and arguments in writing to the Nominal Defendant and the Commission. I am satisfied that the absence of any reference to the involvement of the throttle in her emails dated 4 August 2022 and 20 August 2022 is not the result of any limitation in her ability to communicate in written English.
I am not persuaded, on balance, that CFD activated or engaged the throttle on the bike after she was pushed by one of the young men in the park.
I make the following findings in relation to the incident:
(a)    At approximately 3.00am on 29 July 2022 CFD was riding on a path through Prince Albert Park;
(b)    As she rode along the path CFD observed two young men moving towards her;
(c)    As the young men moved towards her, CFD manoeuvred her bike at least once, and probably twice, in an attempt to avoid them;
(d)    One of the young men followed CFD’s movements as she took steps to avoid him, and blocked CFD’s path;
(e)    As she tried to pass the young men, the young man who had followed her movements and blocked her path pushed her;
(f)    At the time CFD was pushed, her bike was moving slowly, but had not come to a stop, and
(g)    As a result of being pushed CFD lost her balance, hit a street light and fell to the ground.
I have found that, prior to pushing CFD, one of the young men followed her movements as she took steps to avoid him, and blocked CFD’s path. I infer from this behaviour that the young man pushed CFD intentionally. Had I found that this individual “bumped” CFD, I would have inferred that the “bump” was intentional for the same reasons.
Finally, the medical evidence in the joint bundle satisfies me, on balance, that CFD suffered injury as a result of the incident.

Returning to s 1.9, s 3.1, and the definition of “motor accident”

The purpose of s 1.9 is to identify the circumstances in which the MAI Act applies to injuries sustained in connection with a motor vehicle. The provision identifies the limited scope of the Act by reference to three criteria which must be satisfied with respect to the particular injury, namely,
(i)    a causal link (“results from”) between the injury and the use or operation of a motor vehicle;
(ii)    a causal link (“is a result of”) between the injury and one of four specified circumstances, and
(iii)   a temporal requirement that the injury is caused “during” one of four specified circumstances.
The causation requirements involve identifying the proximate or direct cause of the injuries. In Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257 McColl JA held (referring to Allianz Australia Insurance Limited v GSF Australia Pty Limited [2005] HCA 26 at [102]) that guidance for what constitutes the proximate cause of injuries is to be found in insurance law. In this regard, her Honour held as follows at [53] – [54][13]:
“[53]In the law of insurance the words "proximate cause" and "direct cause" came to be used interchangeably… In that context, "the proximate or direct cause of an injury" is not "a cause of the cause, or the mere occasion of the injury"…
[54]… The qualities of reality, predominance and efficiency of a cause prevail over proximity in time in determining what cause or causes are proximate. Hence the proximate or direct cause is described as the 'dominant' cause ... 'that which is proximate in efficiency' and 'the real effective cause.”
[13] Citations omitted.
In its written submissions, the Nominal Defendant argued that even if CFD satisfies the definition of “motor vehicle”, the Commission would not be satisfied that she has also established that the incident was a “motor accident”. The Nominal Defendant argues that while the evidence is such that CFD was using or operating an e-bike at the time of the incident, not all of the factual permutations give rise to a finding that the injury resulted from such use or operation. It is argued that it is open to the Commission to find that the use or operation of the bike was incidental to injury rather than the cause, or a material cause, of injury. I accept this submission.
On the facts as I have found them, I am satisfied, on balance, that the injuries suffered by CFD were the result of CFD being deliberately pushed by one of the young men in Prince Alfred Park. As a result of being pushed, CFD lost her balance, hit a street light and fell to the ground, suffering injury. The push was the dominant cause or that which was proximate in efficiency and the real effective cause of her injuries[14].
[14] Leach v The Nominal Defendant (QBE Insurance (Australia) Ltd) [2014] NSWCA 257 per McColl JA at [73].
I find that CFD’s injuries did not result from the use or operation of a motor vehicle. Nor were her injuries a result of one of the four specified circumstances referred to in s 1.9(1) of the MAI Act. CFD’s riding of the bike was neither a proximate nor direct cause of her injuries. Her injuries were not a result of her riding of the bike. Likewise, her injuries were not the result of a dangerous situation caused by the riding of the bike.
For the same reasons, I find that the injuries suffered by CFD were not caused by the use or operation of a vehicle. Nor were her injuries a result of one of the four specified circumstances referred to in the definition of “motor accident". The definition of “motor accident” is not satisfied. As CFD’s injuries did not result from a “motor accident”, s 3.1 of the MAI Act cannot be engaged.

NOMINAL DEFENDANT ISSUES

The Nominal Defendant has made submissions that address s 1.10 and s 2.29 of the MAI Act. The Nominal Defendant’s position was that the matters it has raised in relation to these provisions do not arise for consideration if CFD does not establish that the incident was a “motor accident”. Given the findings I have made with respect to s 1.9 , s 3.1, and the definition of “motor accident”, I do not propose to address the Nominal Defendant’s submissions with respect to s 1.10 and s 2.29.

COSTS

The Nominal Defendant sought an order under s 8.3(4) of the MAI Act permitting it to pay its lawyers’ costs in connection with the proceedings. CFD was given an opportunity to respond to the Nominal Defendant’s costs application and did not wish to do so.

I am satisfied that, given the issues in dispute and the conduct of the proceedings, that it is appropriate for the Commission to permit the Nominal Defendant to pay its lawyers’ reasonable and necessary legal costs incurred in connection with the proceedings, including counsel’s fees.

[2023] NSWPIC 592

8 November 2023