Macdonald v Allianz Australia Insurance Limited
[2025] NSWPIC 284
•19 June 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
CITATION: | Macdonald v Allianz Australia Insurance Limited [2025] NSWPIC 284 |
CLAIMANT: | Macdonald |
INSURER: | Allianz Australia Insurance Limited |
MEMBER: | Elizabeth Medland |
DATE OF DECISION: | 19 June 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; miscellaneous claims assessment; whether the claimant was mostly or wholly at fault pursuant to sections 3.11 and 3.28; claimant a bicycle rider who collided with a bus; claimant has no recollection of the collision on account of his significant injuries; Held – claimant wholly or mostly at fault for the accident; entered the intersection against give way requirement into the path of the insured bus. |
DETERMINATIONS MADE: | CERTIFICATE In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is: 1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused mostly or wholly by the fault of the claimant. 2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused mostly or wholly by the fault of the claimant. 3. The amount of the claimant’s costs in the matter is $3,984 plus GST. |
STATEMENT OF REASONS
INTRODUCTION
On 10 September 2021 Mr John MacDonald (the claimant) suffered injury as a result of a motor accident. The claimant was riding his bicycle when a collision occurred with a bus at the intersection of Jerrara Road and Jamberoo Road, Jamberoo.
The claimant subsequently lodged an application for personal injury benefits (claim form) with Allianz Australia Insurance Limited (insurer), the compulsory third party (CTP) insurer of the bus. The insurer is liable to attend to payment of statutory benefits in accordance with the provisions of the Motor Accident Injuries Act 2017 (MAI Act).
In addition, a claim for damages has been lodged with the insurer. However, this decision relates to the statutory benefits claim only.
A dispute has arisen between the parties as to whether the claimant is mostly at fault in respect of the accident for the purposes of ss 3.11 and 3.28 of the MAI Act.
An application has been lodged with the Personal Injury Commission (Commission) on behalf of the claimant, seeking a determination of the dispute.
I held a teleconference with the parties on 4 October 2024 and it was determined that an assessment conference was required. The assessment conference took place via videolink on 28 February 2025.
The assessment conference held was in respect both the statutory benefits claim and the common law damages claim, where liability is in dispute.
This determination is in respect of the statutory benefits claim only. A separate decision will be issued in respect of the liability dispute relevant to the damages claim.
LEGISLATIVE FRAMEWORK
Section 3.11 of the MAI Act provides as follows:
(1) An injured person is not entitled to weekly payments of statutory benefits under this Division for any period of loss of earnings or earning capacity that occurs more than 26 weeks after the motor accident concerned if-
(a) the motor accident was caused wholly or mostly by the fault of the person, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
Section 3.28 of the MAI Act provides as follows:
(1) An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned if—
(a) the motor accident was caused wholly or mostly by the fault of the person and the person was over 16 years of age at the time of the motor accident, or
(b) the person’s only injuries resulting from the motor accident were minor injuries.
(2) A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.
(3) Despite subsection (1), statutory benefits under this Division for treatment and care expenses incurred more than 26 weeks after the motor accident concerned are payable in respect of minor injuries if the Motor Accident Guidelines authorise their payment. The payment for those expenses may be so authorised if the treatment or care will improve the recovery of the injured person, the insurer delayed approval for the treatment and care expenses or in other appropriate circumstances.
Pursuant to Schedule 2 clause (3)(d) & (e) of the MAI Act, a dispute relating to section 3.11 and 3.28 are declared as miscellaneous claims assessment matters for the purpose of Part 7 of the MAI Act.
Section 7.42 of the MAI Act provides that a dispute as to a miscellaneous claims assessment matter can be referred to the Commission for assessment.
DOCUMENTATION
I made directions requiring the parties to lodge bundles of all documents relied upon. I have considered all the material lodged in such bundles, in addition to the material lodged by the claimant as part of an application to lodge additional documents on 26 February 2025.
SUMMARY OF EVIDENCE
The accident occurred at the intersection of Jerrara Road and Jamberoo Road, Jambaroo. The intersection is a “T” intersection with Jerrara road joining Jamberoo road. The intersection is marked with a “give way” sign and a broken white line for traffic entering Jamberoo road. The area could be described as rural with surrounding areas being open and grassed with little other vegetation across from the intersection. However, from the west there are a number of trees on approach to the intersection that “shortens” the view of approaching traffic on Jerrara road. The roadway is generally flat along the relevant section of Jambaroo Road.
The insured driver was travelling in a westerly direction, being to the right of the claimant at the intersection with Jerrara road.
Claimant’s statement
The claimant has no recollection of the accident itself, on account of the injuries sustained.
He has provided a statement dated 1 September 2024. He confirms therein that he has no recollection of the accident “whatsoever”. However, following the accident after speaking with his wife, health team and reading the NSW Police report and other evidence that has been gathered as part of this dispute, he has “pieced together what happened that day.”
The claimant states that he has been an avid cyclist for a long period of time and describes himself as a cautious cyclist. He states: “riding my bike is something I take seriously, and I would never put myself in unnecessary danger. I am one of those cyclists that is always riding in the bicycle lane when one is available.”
It is confirmed the claimant is familiar with the roads and terrain, and that he would be well aware that turning right would mean riding slightly up the hill. He states that as such he would not have turned right from Jarrara Road onto Jamberoo road unless that he was certain that he had enough time to ride across Jamberoo Road.
He states:
“the proposition that I would recklessly speed up and pull out onto Jamberoo Road practically in front of an oncoming bus just as I saw the bus entering the intersection simply doesn’t add up. That’s not who I am. I would commence my turn only if I thought it was safe for me to do so. I harbour no illusions about being a superior cyclist in his prime who would take unnecessary risks. I’ve always been careful on the road and the accusation feels presumptuous. It doesn’t match up with how I handle myself on the road or in general.”
The statement includes hypothetical analysis of where the claimant would have ended up after the collision, on the insured driver’s evidence. For instance, the claimant states that he ended up in the ditch on the side of the road, and had the driver’s version been true, the force of the impact would have pushed him and his bike in the opposite direction. The claimant goes on to state:
“When I look at the Police photographs of the bus stopped in the middle of the intersection after the impact, it’s clear that the bus is well over on the wrong side of the road. Given that the bus crossed lanes and ended up on the opposite side of Jamberoo Road, which I had likely turned into, and seeing where my bicycle landed after the impact, the only conclusion I can draw is that the driver only saw me as he entered the bend and then in panic overcorrected the bus onto the opposite side of the road and into me.
Whether or not he was driving too fast, or cutting the corner is unknown to me, but it is clear that he veered onto my side of the road – probably in panic and hit me. If the bus driver had stayed in his own lane, he wouldn’t have crashed into me. Even being as critical of myself as possible, I can’t accept his claim that I recklessly pulled onto the road when he was just 30 metres away.
The notion that I might have thought I could somehow outrun a bus coming down the hill from my right is simply contradictory to my nature, and it’s not something I would try.”
Insured driver statement
Mr Peter Chebatte provided a statement to the insurer’s investigators dated 16 December 2021.
Mr Chebatte states that he was driving the insured bus after dropping a school student earlier. He was travelling west on Jamberoo Road and was travelling at “only between 55 and 60 km/hour on approach to the intersection.” He had no passengers on the bus.
He states from paragraph 22 of his statement:
“As I was descending down the hill on approach to the intersection I noticed a cyclist on Jerrara Road approaching Jamberoo Road. It is hard to say how fast he was going. I noted that it appeared that he was slowing down as he was coming to the end of the roadway to the intersection, but then it looked like he changed his mind just before the markings for the Give Way sign on the road and started speeding up.
He started pulling out onto Jamberoo Road as I was just about to enter the intersection. I slammed on the brakes and veered to the right dramatically in an attempt to avoid him the momentum of his speed pushed him forward and that’s when he made contact with the bus..
He hit the front left of the bus. The bus is not fitted with an additional bull bar. He flew up and hit the windscreen as well, breaking it. He then landed on the right hand side of the road on the roadway and just lay there. The bus came to a stop before we ran over him.”
Mr Chebatte confirms that he was not issued an infringement notice by police and confirmed that he provided a version of events to an attending police officer.
NSW Police material
Despite mention of a bodyworn camera being utilised when the police took a version of events from the insured driver, no such footage or transcription is before me. It also appears that any such evidence was also not available to Mr Keramidas, the insurer’s liability expert.
The Police report lists the claimant as being held responsible. It records a pre crash speed of 40km/h and damage to the front of the vehicle. The crash summary details are provided as follows:
“At 1540 Hrs on the 10th September 2021 The rider of a bicycle was travelling north along Jerrara Road Jamberoo. The driver of a bus was travelling west along Jamberoo road. As both the bicycle and the bus approached the intersection, the bicycle proceeded past a giveway sign which was clearly displayed and into the path of the bus. The bus attempted evasive action however collided with the bicycle causing the bicycle rider to become dislodged.”
Photographs of the scene of the accident have the insured bus stationary in front of Jerrara Road on the right hand side of the road (ie, the incorrect side of the road). The claimant appears to have landed several metres directly in front of the bus, with his bicycle situated to the right of the bus on the grass verge.
“Businsure” motor vehicle accident claim form
This document is dated 13 September 2021 and is signed by Kim Duffy, who I understand to be an employee of the insured driver’s employer – Kiama Coaches Pty Ltd. The description of the accident is as follows:
“Bus was traveling west along Jamberoo Road and cyclist was coming from Jerrara Avenue and pulled out in front of the bus to head east. The driver heavily applied the brakes but was unable to avoid a collision with the cyclist. The cyclist was taken by ambulance to Jamberoo Oval and then air lifted to St George Hospital. There is one lane in each direction and the driver was not using signals as he was continuing on the same road.”
Other evidence
Photographs that evidently formed part of a factual investigation report demonstrate minor damage to the left side of the front bumper bar of the bus, and a cracks covering a large area of the windscreen
The claimant relies on a “letter of support” of Wayne Sergeant dated 19 September 2024. Mr Sergeant explains that he has known the claimant for over 30 years. He describes the claimant as a careful rider, who he has ridden with countless times. He states that the claimant is one of the most careful riders he knows.
Mr Sergeant states that he seriously doubts the version of events that the claimant entered the roadway in front of a bus. He notes that the area where the accident occurred has drivers tending to speed and that cyclists are always extra careful when riding on or near there.
A similar letter of support is provided by a Mr Alan Onions. Mr Onions confirms having known the claimant for a number of decades and has ridden with the claimant on quite a few bike rides. He describes the claimant as an incredibly safe and cautious rider. He finds it very hard to believe that the claimant would have entered an intersection in front of a bus coming downhill.
Liability expert report – William Keramidas & Associates – William Keramidas dated 13 February 2025
In the report addressed to the insurer’s legal representatives, Mr Keramidas concludes that the insured bus was travelling at or below the curve advisory speed of 55km/h. Further, the claimant is likely to have entered the intersection from Jerrara Road intending to turn right when the insured bus was at a range of 45 metres or less from the middle of the intersection. He was likely to have entered at an average speed of 18 to 22 km/h as he entered the intersection through to impact some 14.5 metres after crossing the give way lines.
Mr Keramidas stated:
“The bus driver perceived the entry of the claimant into the intersection and is expected to have had a perception and response time of 1.4 to 1.9 seconds, after which he attempted a combination of emergency braking (causing the tyre to skid) and an evasive manoeuvre to the right. At the time of formulating that response the claimant is still likely to have been to the left of the bus.
An impact occurred between the right side of the bicycle and rider with the passenger to middle portion of the front of the bus. This impact was within the westbound portion of Jamberoo Road.
The claimant was projected about 13 metres from impact to rest in the same alignment as the attitude of the bus at impact. The bus stopped partially straddling the centre-line with the forward section of the bus in the eastbound lane about 6.8 metres short of the claimant’s rest position.”
Mr Keramidas further concludes that the claimant had a sight line of the insured bus, within 15 metres of the give way lines at the intersection, in excess of 150 metres.
In answer to a query as to what was open to a reasonable driver to have done in the circumstances, Mr Keramidas states that without hindsight there is nothing more that could have done other than brake and steer when he did.
The Police material does not include measurements of the accident scene. Mr Keramidas has reconstructed the accident site and reached his measurements on the basis of police photographs at the scene and aerial images of the area.
Following mathematical analysis with the benefit of resting position measurements, Mr Keramidas concludes that the impact speed of the insured vehicle was around 32km/h. Further, with reference to the visible skidding distance of the insured vehicle from the photographs, the start of the skid speed of the bus would have been 41 km/h. However, it is noted that the insured vehicle likely had been braking prior to the skid before it had sufficient energy to heat the tyre to start leaving skid marks. Taking that into account, the speed of the bus before braking is estimated to be 50km/h.
Mr Keramidas notes that a speed advisory sign for the bend that precedes the intersection is 55km/h.
With reference to the line of trees on approach to the intersection, Mr Keramidas concludes that the insured driver’s visibility was around 15 metres on approach.
Mr Keramidas finds:
“the bus would have been, at most 45 metres from the POI [point of impact], based on the longest PRT [perception response time] of 1.9 seconds at a nominal speed of 50km/h as well as a maximum likely braking distance (including pre-skid initiation) of 18.5 metres.
Further, Mr Keramidas goes on to conclude, in respect of the insured driver’s perspective of the accident:
“from the bus driver’s perspective, it appears he approached the right-hand bend in accordance (or slightly slower) than the curve advisory sign. On seeing the cyclist approaching the intersection and slowing, it would have understandable that he would not have immediately initiated emergency braking or steering. Once the claimant entered the intersection the driver attempted a combination of braking and an evasive swerve to the right. At that instance the driver is likely to have formed the view that at braking and steering to the right was the best course of action (part-way through his PRT), and in the agony of the moment, the claimant is likely to have been to the left of the bus. It would be counterintuitive to swerve left in such circumstances without the benefit of hindsight.”
ASSESSMENT CONFERENCE
The claimant confirmed that he has no recollection of the accident. He described the route he was taking the morning of the accident as his “regular ride”.
He again described himself as a careful rider and one that does not take unnecessary risks. The claimant was asked whether he had considered that he had made a mistake or a miscalculation. He stated that he has crossed the subject intersection hundreds of times. When it was put to him by Mr Nesbeth that he could not say one way or the other whether he made a mistake, the claimant confirmed that he could not. He did, however, state that he could not recall a time where he had a lapse of judgment when it came to riding his bicycle.
The claimant confirmed that since the accident he has tried to piece together what had occurred. He also confirmed that once reaching the intersection he would have had a good view of oncoming traffic. He also confirmed that if making a right hand turn at the intersection that there is a flat area of road before it becomes to become a hill. The claimant did not accept that he would have accelerated into the intersection.
The claimant appeared as an honest witness, and I gained the impression that he made a clear effort to answer the questions put to him in a truthful manner.
The insured driver, Mr Chebatte, also gave evidence. He described his speed as being between 55 and 60 when driving along Jambaroo road. He stated that he recalled seeing the claimant heading towards the intersection and that he came out from the give way sign. He states that when he saw the claimant come out, he slammed on the brakes and veered to the right.
Mr Chebatte stated that he was descending down the hill and was on the flat area of the road when he noticed the claimant. He noted that the claimant was “peddling away” and that he “paused” and that it looked as if he was going to stop but then noticed that he started speeding up again and kept on going thus coming out of Jerrara Road onto Jamberoo Road.
Mr Chebatte confirmed that he was travelling on a timetable and was on time.
Mr Renshaw appearing on behalf of the claimant, asked the insured driver whether he spoke to the Police at the scene and asked whether he was asked what speed he was doing and what he would have told police. Mr Chebatte answered that he would have said he was travelling at the speed limit. Although later in his evidence he stated that he was travelling at a safe speed of 55 to 60 km/h and the speed limit was 80km/h.
Mr Chebatte was asked whether he wrote up an incident report when he returned to his employer’s depot and he confirmed that he did as part of the protocol. Mr Renshaw then took the claimant to the Businsure form that is described above. I note that the report appears to have been completed by a Ms Duffy rather than the claimant himself given that her name and signature is included at the conclusion of the document. Nonetheless, Mr Chebatte was asked to confirm that there is nothing within the commentary in that form that says that he saw the claimant slow down. Mr Chebatte stated that if that is what is written there then that is what is written.
The insured driver was asked to confirm how far away the claimant was when he first noticed him. He answered that he was concentrating on the road and could not recall, noting that it was several years ago.
He confirmed that he did not consider himself to be at fault in the accident and that he was following the road rules. He stated that it did not cross his mind that the claimant would enter the intersection until he began to enter.
In addition, Mr Chebatte stated that he was slowing down on approach to the intersection after going down the incline in the road and that he had his foot hovering over the brake. He stated that he did so because after going down the hill there is a bend that is quite sharp and that he needed to take a bus around that corner quite slowly.
SUBMISSIONS
The claimant’s submissions
The claimant submits in written submissions that the insured driver, as a professional driver and familiar with the area, should have been aware of the claimant’s intention to enter the intersection and continue with his travel.
It is asserted that it is unlikely that the claimant’s action of entering the intersection were so abrupt or sudden as to create an emergency situation. It is suggested that the claimant, as a bike rider would not have been in a position to suddenly dart out in front of the insured bus or create an unexpected hazard.
The submissions note that the only objective evidence available are the police photographs which depict the insured vehicle at a compete stop somewhere in the middle of the wide intersection and on the opposite side of the road. It is suggested that the claimant’s bicycle situated on the grass on the right of the roadway ahead of the bus challenges the insured driver’s version of events.
It is submitted that the insured driver’s version of events must not be accepted at face value and should be measured against the physical evidence as illustrated in the police photographs.
The claimant rejects the insurer’s reliance on an ‘agony of the moment defence’ that relies on cashes such as Stuart v Walsh [2012] NSWCA 186 (Stuart) and Leishman v Thomas (1957) 75 WN (NSW) 173 (Leishman). The claimant submits that the cases can be distinguished to the subject one, where the claimant was cycling across a T intersection on a rural in circumstances where the insured had seen the claimant, was familiar with the area and ought to have known that there are cyclists in the area. It is asserted that it is not open to him to allege that he was confronted with a sudden and unexpected emergency and that he had to act without the opportunity for calm reflection.
The submissions concede that a finding of contributory negligence is appropriate but not at the level of 100% asserted by the insurer. Reference is made to Section 5R of the Civil Liability Act 2001 (CL Act) and s 4.17 of the MAI Act, and the concept of relative culpability as set out in the case of Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34 (Podrebersek). It is submitted, that based on the asserted failure of the insured driver to take due care while driving in an area known to be frequented by cyclists, the insured is more liable.
The claimant submits that a finding of contributory negligence in the amount of 25% to 30% is an appropriate finding.
The insurer’s submissions
The insurer disputes the claimant’s suggestion that the insurer an “unfair advantage” due to the fact the claimant cannot recall the accident. The insurer submits the insured’s evidence is consistent with the objective evidence.
It is submitted by the insurer that the claimant’s contentions are not made out on the evidence and ought to be rejected entirely. It is noted that the claimant’s version is nothing more than an unsupported reconstruction of events, where he is not qualified to do so.
The insurer submits: “…the actions of the insured driver support the submission that the insured was keeping a proper lookout and reacted to an emergency situation which was caused entirely by the claimant’s actions.”
The case of Stuart v Walsh [2012] is referred to where the Court of Appeal found that the actions of a defendant where he was confronted with the plaintiff moving out of a breakdown lane, were reasonable in light of the risk created and the steering to the right, if deemed the wrong thing to do in hindsight, was an error of judgement made “in the agony of the moment.”
The insurer submits that the claimant should be found to be wholly at fault for the accident and the defendant was not negligent in the circumstances.
FINDINGS
Having observed the claimant give evidence, I find him to be an honest witness that made a clear effort to answer questions in a forthright and truthful manner. However, the fact is, he does not recall the accident and accordingly his evidence is not of particular assistance in determining the circumstances of the accident.
What can be ascertained from the evidence, including that of the claimant, is that based on his usual route of travel on his bicycle, there is no issue that the accident happened in a situation where the claimant was travelling in a northerly direction along Jerrara Road towards the intersection with Jamberoo Road. There is also no controversy that the insured driver was travelling west along Jamberoo Road.
There is also no controversy between the parties that the subject intersection is a “T” intersection, with “give way” signage for those travelling along Jerrara Road wishing to enter Jamberoo road.
On the evidence there is no reasonable basis to suggest that the insured was travelling at an excessive speed. I find that he was travelling at a reasonable speed on approach to the intersection.
In addition, contrary to submissions made to me, the insured driver was entitled to assume that a cyclist approaching the intersection would obey the road rules and give way to oncoming traffic before he joined Jamberoo road. To suggest that the insured driver should have slowed when he sighted the claimant, even though he had clear right of way, is effectively the application of impermissible hindsight reasoning.
I accept that the insured driver’s actions were reasonable in the circumstances, on the basis that the evidence establishes that the insured driver took evasive action at the moment he saw the claimant enter the intersection. Whether the insured should have veered in a different direction or not, does not, on my findings, mean that he is liable in the emergency situation that he found himself in. I accept the insurer’s suggestion of an agony of the moment defence. It may well be true that the insured driver should have expected that cyclists would be in the area, that expectation need not extend to any reasonable likelihood that a cyclist would enter a roadway into the path of his vehicle against a give way requirement.
Whilst submissions have been made that I make findings as to the actions of the insured driver on the basis of the position of the claimant and the vehicle, I do not consider these assertions have merit in the absence of supportive expert evidence.
The thrust of the claimant’s case is essentially that he is a cautious and experienced cyclist who would not have entered the intersection in front of a bus as described by the insured driver.
I have no doubt as to the sincerity of the claimant’s assertions in this regard. I accept that it is his honest belief that he would not have entered the intersection as described. The issue is, that the objective evidence leaves no other reasonable conclusion to be made. I accept the fact that the claimant is customarily cautious in his cycling activities, however, that does not translate to an absolute quarantine from a mistake being made.
There is no other plausible explanation on the evidence before me, that explains the accident occurring other than it involving the claimant entering the roadway, against the give way requirement, into the path of the insured vehicle.
It follows, therefore that the claimant is mostly or wholly at fault for the accident. That is he is more than 61% contributorily negligent.
COSTS
I have found against the claimant. However, that does not preclude me from awarding costs in his favour. As miscellaneous claims disputes, I award the maximum regulated amount for each dispute (Schedule 2, cl 3(d) & (e)). I therefore award legal costs to the claimant in the amount of $3,984 plus GST.
0
2
0