Macdonald v Allianz Australia Insurance Limited (No 2)

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Macdonald v Allianz Australia Insurance Limited (No 2) [2025] NSWPIC 291
CLAIMANT:	Macdonald
INSURER:	Allianz Australia Insurance Limited
MEMBER:	Elizabeth Medland
DATE OF DECISION:	24 June 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; damages assessment; liability denied; assessment of both liability and quantum; claimant a bicycle rider who collided with a bus; claimant has no recollection of the collision on account of his significant injuries; statutory benefits miscellaneous claims dispute that was heard concurrently found the claimant was wholly or mostly at fault; submissions requested on application of Part 5 “no-fault accident” provisions to the claim; Held – insured did not breach his duty of care; entered the intersection against give way requirement into the path of the insured bus; Part 5 applies; contributory negligence assessed at 75%; damages awarded at $186,277.83 plus costs; cases considered; Axiak v Ingram, Davis v Swift, and Nominal Defendant v Dowedeit.
DETERMINATIONS MADE:	1. Part 5 of the Act applies to assessment of the claim. 2. On the issue of contributory negligence, the claimant’s damages are to be reduced by 75% on account of the claimant’s contributory negligence. 3. The amoutn of the damages awarded for the claim is $186,277.83. 4. The insurer is entitled to a credit of $2,364.00 paid as weekly payments of statutory benefits to the claimant. 5. The insurer to pay the claimant’s costs as agreed or assessed in accordance with the Motor Accident Injuries Regulation 2017.

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. This is the subject of this determination.
A further 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. That dispute is the subject of a separate determination.
An application has been lodged with the Personal Injury Commission (Commission) on behalf of the claimant, seeking assessment of the claim for damages, including a liability determination.
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 to both the statutory benefits claim and the common law damages claim, where liability is in dispute.

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. Finally, following the assessment conference I requested further written submissions from the parties. Those submissions have also been considered.

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 Jerrara 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 40kmph and damage to the front of the vehicle. The crash summary details are provided as follows:
“At 1540 Hrs on the 10^th 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 55kmph. 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 45m or less from the middle of the intersection. He was likely to have entered at an average speed of 18 to 22 kmph as he entered the intersection through to impact some 14.5m 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 15m of the give way lines at the intersection, in excess of 150m.
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 32 kmph. 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 kmph. 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 50kmph.
Mr Keramidas notes that a speed advisory sign for the bend that precedes the intersection is 55kmph.
With reference to the line of trees on approach to the intersection, Mr Keramidas concludes that the insured driver’s visibility was around 15m 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 kmph and 60 kmph 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 kmph and the speed limit was 80kmph.
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 complete 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 s 5R of the Civil Liability Act 2002 (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 had 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] NSWCA 186 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.
On the evidence I find that the insured driver did not breach his duty of care to the claimant. I do not consider the insured driver to be liable for the accident.

NO-FAULT ACCIDENT

Following the assessment conference, I requested written submissions from the parties dealing with Part 5 of the MAI Act that deals with recovery for no-fault motor accidents.
Section 5.1 of the MAI Act defines a no-fault motor accident as being: “…a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.”
In a claim for damages, if injury results from a no-fault motor accident, it is deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.
Section 5.5 provides that Part 5 of the MAI Act does not prevent the reduction of damages by reason of damages by reason of the contributory negligence of the deceased or injured person.
For all relevant purposes, Part 5 of the MAI Act reflects the “blameless accident provisions” contained within Part 1.2 of the Motor Accidents Compensation Act 1999 (MAC Act). Those provisions were the subject of a decision of the Court of Appeal in the case of Axiak v Ingram [2012] NSWCA 311 (Axiak). A Special Leave application to the High Court was subsequently refused.
In Axiak, it was found that the “…and not caused by the fault of any other person” (as contained in s 5.1 of the MAI Act) refers to the tortious conduct of persons other than the plaintiff.
Axiak involved a child plaintiff who, after leaving a school bus, ran across a road and was struck by another vehicle travelling in the opposite direction. At first instance the plaintiff did not succeed in her claim with the trial judge finding the vehicle to not be at fault. She succeeded on appeal with the Court of Appeal finding the blameless accident provisions applied and made a finding of contributory negligence of 50%.
The Court found in Axiak, per Tobias JA, that the assessment of contributory negligence is applied with reference to the extent to which the plaintiff departed from the standard of care imposed in taking care for his or her own safety.
Axiak was followed by the Court of Appeal in the matter of Davis v Swift [2014] NSWCA 458. At first instance, 100% contributory negligence was found in respect of a pedestrian plaintiff. The Court of Appeal overturned the trial Judge’s finding in respect of contributory negligence. The Court confirmed that the blameless accident provisions of the MAC Act applied, and the claimant’s damages were reduced by 80% on account of contributory negligence. Adamson J dissented, who indicated that 100% contributory negligence was appropriate.
The test as established by Axiak was again applied by the Court of Appeal in the case of Nominal Defendant v Dowedeit [2016] NSWCA 332 (Dowedeit). Mr Dowedeit gave a history that he remembered going outside from his apartment and walked onto the street to avoid a row of rubbish bins and felt a “powerful surge” backwards. He was later found laying on the road near the kerb but had no other memories. He sued the Nominal Defendant on account of an allegation that he was struck by an unidentified vehicle. He relied on the blameless accident provisions of the MAC Act as an alternative. At the District Court it was found that the most likely cause of the accident was him being struck by a vehicle, rather than other alternative scenarios advanced. The trial judge reduced damages by 50% on account of contributory negligence.
The decision was appealed by the defendant. In the leading judgment, Gleeson JA, accepted that on the balance of probabilities the claimant was struck by a vehicle. The blameless accident provisions were applied and the test to consider how far the person departed from the standard of care required to be observed in the interests of their own safety is appropriate, as applied in Axiak. The Court found that a 50% finding for contributory negligence in circumstances where the claimant walked onto a relatively quiet street, without first having looked to make sure that it was safe to do so while it was becoming dark was within the appropriate range.

Submissions

In written submissions the claimant’s representatives assert that I would find the insured driver breached his duty of care. However, in the event that I found that he did not the claimant relies on the no-fault provisions of the MAI Act. The submissions provide:
“Based on the claimant’s evidence on the balance of probabilities it is open to Member to accept that had he seen that the insured motor vehicle was close to him or that he could not safely navigate across the intersection he would have stopped and avoided injury (cf Pennington v Norris (1956) 96 CLR). The finding that he would not have attempted to cross the intersection unless he was of the view that he had sufficient time to do so safely is consistent with the evidence in the matter. Thus, if the accident is found to have likely resulted from his failure to adequately assess the distance or the speed of the insured vehicle when entering the intersection, it should be accepted that the claimant’s conduct of departure from the standard of care he is required to observe in the interest of his own safety when entering the intersection. The level of that departure from the standard should be lessened to some degree that his departure would have been most likely inadvertent and not intentional.
In the present case, the Member is of the view that the claimant failed to exercise due care for his own safety, having regard to his evidence it is submitted that his behaviour or conduct would not involve a significant departure from the standard of care expected of him in the circumstances, and that his level of contributory negligence if any should be assessed at 20-35%.”
The insurer, in written submissions dated 5 May 2025, confirms the primary position that the claimant is wholly at fault for the subject accident and that his damages claim is thus extinguished.
In addition, it is submitted that Part 5 of the MAI Act – the “no-fault accident provisions” – do not apply to the subject accident. In this regard, the insurer refers to the case of Hollis v Vabu Pty Ltd [1999] NSWCA 334 where at [33] the Court found a rider of a bicycle on a public road owes a duty of care to other road users. The insurer submits: “in circumstances where a cyclist can be guilty of the tort of negligence, and where the cyclist’s conduct is the sole cause of his injuries, the insurer submits there is no right to claim under the no-fault provision.”
The insurer notes that in failing to give way, the claimant was in breach of Rule 71(2) of the Road Rules 2014 which provides: “the driver must give way to any vehicle or pedestrian at or near the give way sign or give way line”. The insurer submits that failure to comply with this rule translates to the claimant not exhibiting reasonable care.

Findings on “no-fault”

I note the insurer’s submission that Part 5 of the MAI Act does not apply, effectively due to the fact that a bicycle rider can be guilty of the tort of negligence. I do not disagree with the suggestion that a bicycle rider can be found to be negligent.
However, the insurer’s submissions do not grapple with the wording of the provision of Part 5, and also do not address the Court of Appeal’s findings in Axiak, nor subsequent cases such as Davis v Swift and Dowadeit.
Whilst the abovementioned cases involve pedestrians, for the purposes of s 5.1 of the MAI Act, it cannot be said that a bicycle rider is the “driver of any motor vehicle involved in the accident”. Pursuant to s 1.4 of the MAI Act: “motor vehicle means a motor vehicle or trailer within the meaning of the Road Transport Act 2013.” Section 4 of said Act defines motor vehicle to be: “a vehicle that is built to be propelled by a motor that forms part of the vehicle.”
The claimant’s bicycle cannot be said to be propelled by a motor. It is propelled by the rider.
Having established that the claimant is not a driver of a motor vehicle in the subject accident, and noting that it has been established by Axiak that the words “any other person” cannot include the claimant, I find that the no-fault accident provisions apply to the subject claim.
In applying the test of to what how far the claimant departed from the standard of care required to be observed in the interests of his own safety, as noted above I have found that the claimant entered Jambaroo Road against a give way sign, and into the path of an oncoming vehicle. This amounts to a breach of r 71(2) of the Road Rules. Inherent in that finding is the fact that the claimant failed to keep a proper lookout.
The claimant’s submissions suggest that I find that the likelihood is that the claimant observed the insured vehicle and simply misjudged the distances. It would appear that it is suggested that the claimant did not fail to observe the insured vehicle at all.
The evidence establishes that the subject intersection involves a semi rural road, that had no other traffic other than the claimant and the insured vehicle at the relevant time. I have already found that there was no excessive speed of the insured involved in the circumstances.
The unchallenged evidence of Mr Keramidas in his report, is that “within 15 metres of the give way lines, the visibility available to the claimant was in excess of 150 metres along the approach of the bus.”
In circumstances where the accident occurred during the day time, when it was not raining, with no other traffic, and with ample line of sight available, I find it unlikely that the claimant failed to observe the insured vehicle at all. On such basis, the most likely scenario involves the claimant misjudging the distances and timing to safely enter the intersection.
On such basis, and considering to what degree the claimant departed from the standard of care in observing his own safety, I consider a finding of 75% contributory negligence to be appropriate.

DAMAGES

The claimant is 66 years of age, turning 67 at the end of this year. At the date of the accident, he was 62 years of age.
At the time of the motor accident, the claimant had been retired from his earlier employment as a primary school teacher, and was employed as a part-time causal lecturer and tutor in the education faculty of the University of Wollongong. Whilst the claimant did return to some employment after the accident to a limited degree, he eventually ceased work in March 2022 and has not worked since.
The accident caused significant injuries to the claimant. From the scene of the accident the claimant was transported to Shell Harbour Hospital via ambulance. Emergency resuscitation was performed and once stabilised he was transferred to St George Hospital via helicopter.
He underwent multiple surgeries in response to the following findings:
·        complex pelvic ring fracture;
·        intrapelvic bleeding;
·        multiple rib fractures;
·        left sided haemophneumothroax;
·        clavicular fracture, and
·        displaced left L1 transverse process fracture and multiple contusions and abrasions.
The extent of the claimant’s injuries and initial medical response is best summarised by

Dr Bodel in his report dated 2 May 2024, as follows:
“He was intubated and ventilated. He required an intercostal drain on the left side of the chest wall because all twelve ribs on that side were fractured and the lung had collapsed. With this initial resuscitation his airway was controlled and his oxygen saturation levels improved.
The next major problem was the need to control the massive intrapelvic bleeding. This was done by the interventional radiologists inserting a coil (embolization) to control the bleeding in the pelvis. By the time the bleeding was controlled he had a severe loss of blood and was anaemic requiring a massive blood transfusion.
His radiological survey confirmed twelve rib fractures on the left, the 4^th rib on the right, a minimally displaced transverse process fracture in the lumbar spine and a very complex series of fractures involving the pelvic ring. The pelvic fractures include a central fracture/disclocation of the right hip.
The pelvic ring fractures were stabilised under the care of Dr Robert Molnar on the 14.09.2021. This was a difficult surgical procedure requiring three malleable plates and multiple screws as well as two cannulated screws across the right sacroiliac joint and one single screw in the top of the ring of the ilium on the right side of the pelvis.
I note in the hospital record that the reconstruction of the hip joint on the right side was incomplete because of the severe comminution of the acetabulum. Postoperatively it was recorded that he will need a total hip replacement within a relatively short period of time.
He was an inpatient in hospital until 22.09.2021. He was later transferred home to the care of his local doctor with continuing physiotherapy, analgesic medication, hydrotherapy and exercise.
He also had follow up treatment with Dr Molnar. The hip replacement was done on the right side on 16.02.2022, about five months after the injury. This has been very helpful and has improved mobility generally and decreased his pain levels in that region.”

In his written statement of 1 September 2024, the claimant describes his recovery as a “rollercoaster” that comes with a lot of mental pressure and tension. In addition, he noted that his rehabilitation was very slow and painful as he had not worked unattended for a period of at least six months after the accident, having to basically learn how to walk again. The claimant notes that from St George Hospital he was transferred to Shellharbour Private Hospital for a further 14 days for inpatient rehabilitation.
In terms of the impact on his life, the claimant describes being lucky to have had an extensive and varied career in education for more than 40 years. He notes that prior to his role with the University that he held at the time of the accident, he was the principal of Shellharbour Public School from 2009-2019, having served as the assistant principal from 2003.
He describes those roles bringing him much joy in a professional and personal sense. He states: “I valued being an active member of my community and contributing to its betterment, and this was the lesson I aimed to pass on to my many students during my time as a principal and lecturer.”
The claimant states that given his role as an educator was so important to him, he had no intention of “slowing down”, with no intention to retire anytime soon due to him always being fit and healthy.

Non-economic loss

The insurer has conceded that the claimant exceeds the non-economic loss threshold of 10% whole person impairment.
The insurer has not included any medical evidence in the bundle of documents relied upon.
In submissions in support of a claim of $435,000 for non-economic loss it is submitted as follows:
“Prior to the accident, the claimant was fit and healthy for his stated age. He was an active cyclist and he enjoyed exercising whenever possible. He was a very keen and a diligent cyclist.
The injuries sustained by the claimant in tis frightening accident have left him with serious physical impairment and ongoing and psychiatric and functional restrictions. He feels that the accident and the consequences of the accident had [sic] devastated his ability to engage in leisure, recreation and social activities that he enjoyed prior to the motor vehicle accident, decreasing his overal [sic] enjoyment of life.”
It is further submitted that the claimant will likely require a revision total hip replacement in the next 10 years. Further, the claimant feels a loss due to his inability to engage in previous activities including his employment to “fulfill his perceived expectations of himself as an employee. This is even more so amplified by the claimant’s strong work ethics and commitment and a sense of responsibility towards his employer and the general community.”
The claimant is described as devastated due to his inability to engage in his professional and academic pursuits.
Having regard to the claimant’s age, the severe injuries suffered and the ongoing disabilities and detachment from pre-accident lifestyle and professional pursuits, I consider a significant award of non-economic loss is appropriate. As noted above, the claimant submits a figure of $435,000. The insurer suggests a figure of not more than $300,000 is an appropriate award.
As noted above, I found the claimant to be an impressive and honest witness. I have no doubt as to the sincerity of the claimant’s evidence as to impact the accident related injuries have had on his life to date. The claimant has made a good recovery from significant injuries, however, will continue to be impacted by ongoing disabilities into the future. I award an amount of $400,000 for non-economic loss.

Past economic loss

As noted above, at the time of the motor accident the claimant was employed as a part-time lecturer and tutor at the University of Wollongong. The hours and earnings varied from week to week, with an hourly rate of $54.95. Pay material suggests earnings between $538 net per week (10 hours) to $1,192 net per week (21 hours).
The claimant asserts that it was his intention, but for the accident, to secure a more permanent role with the University and increase his earnings with a focus on research, publication and access to academic grants.
The claimant is said to have been optimistic he would make a full recovery and be able to return to work. On 25 November 2021 the claimant was offered a part time contractual position with the University for a Lecturer Level B, Step 04 position which attracts a full time salary of between $113,607 and $147,743 per annum.
The claimant, taking into account his injuries says that he expected to cope with part time hours of 14 hours per week. He returned back to work on 31 January 2022 and was working from home noting that Autumn semester not due to start on campus until March 2022.
The claimant submits that he struggled with the workload on account of his injuries. In addition, he had scheduled sick leave from 18 February 2022 to 17 March 2022 on account of the hip replacement surgery. The claimant’s evidence is that he struggled with the workload on account of his ongoing disabilities. The recovery from the hip surgery is described as painful and slow and the claimant struggled with his limitations on a daily basis. It is submitted that the claimant eventually accepted the reality that he was unable to fulfill the inherent tasks of the role and he therefore relinquished his role in March 2022.
Noting the above claimed facts, a claim in the amount of $108,500 is advanced calculated as follows:
“…the claimant would have been earning at least annual base salary of $113,000 (gross) as a Lecturer Level B, Step 0;.4 , or net weekly wage of $1,662 from 21 January 2022 to date and continuing if he was not injured in the accident.
Accepting that the claimant would have worked in a part time capacity of approximately 14 to 21 hours per week, the past economic loss is allowed at $664.80 from 2 March 2022 to date.
Based on the pre-injury average weekly earnings of approximately $538 net per week from 11 September 2021 to 30 January 2022, and at $664.80 from @ March 2022 to date, the past economic loss is calculated as follows:
·     Period 1 – DOA to 31 January 2022 (commencement of Contract Level B position), 20 week x $538 = $10,760
·     Period 2 – 3 March 2022 – to date claimed at $664.80 per week net (131 weeks with exclusion of several weeks of paid employment) equates to $87,000
·     Subtotal past economic loss =$97,760
·     Superannuation is claimed at 11% ($10,750) to a total of $108,500.”
In written submissions the insurer notes the claimant’s 2021 taxation return reflects earnings of $24,140. The insurer notes that the claimant’s GP records confirm the claimant as retired and that he had obtained some university work, with a note that the claimant “take a day to prepare a 2 hour tutorial”.
The insurer submits the 2021 taxation return is the best basis for calculation of past economic loss given the claimant’s hours and part time nature of his work are variable. The insurer calculates past economic loss as follows:
11 September 2021 to 31 January 2022 at $450 per week                $9,000
3 March 2022 to date at $450 per week   $58,950
TOTAL:  $67,950
Superannuation:  $6,500
With the insurer submitting a total figure of $75,000 as appropriate.
At the assessment conference the claimant was questioned about his work history and plans. He confirmed that he retired from his position as principal halfway through 2019 and the following year he became a part time lecturer/tutor. He confirmed under questioning that his plan was to “slow down” from being full time employed.
The claimant was questioned about his GP records that note that he was “stressed with work” in June 2018. The claimant gave evidence that he loved his job as a principal and he enjoyed it, but it was a large public school which brought about stressors. He confirmed that his hope had always been to get another academic position, and he therefore took a position at the university. He confirms he was working around 8 to 10 hours per week at the time of the accident and he enjoyed other leisure activities. However, the claimant also gave evidence that he would have happily continued on the 0.4 contract that came after the accident, but also would have been happy on 0.6 contract working three days a week. He also said that if a 1.0 position was offered he would have happily taken that as well.
As to the question as to how long he would have continued in such a role, but for the accident, the claimant gave, what I thought to be a forthright answer of, that he was not sure but would “certainly” have worked for another three years at least, as a minimum. In this regard, he confirmed that his three year contract would have ended at the end of 2024, and he would have expected that to be renewed and would have happily taken that and see where it leads. He stated that he was looking forward to extending and that it is a lot easier to do that once you are a faculty member than when you are not.
The claimant was questioned on whether he needed to work from a financial perspective, and Mr Renshaw for the claimant objected to this line of questioning. At this juncture I asked the claimant after retiring from the Department of Education, what was the main driver for him to continuing to work thereafter. The claimant answered that he loved academic work and it was an opportunity and one he was looking forward to. He stated that the fact that he would be paid for doing the work was a bonus he enjoyed. He confirmed that if he was not working he would be financially secure, noting that his wife still works.
I then asked him specifically what his intentions were for his future working life, if the accident had not occurred. He stated that he would have continued on the 0.4, two day contract and would have hoped that would continue and would have happily have done it at a higher level, and would have happily have done it on a full time basis if the vacancy arose.
In terms of assessment of past economic loss, the claimant’s pre accident earnings were variable. I accept the figure adopted by the claimant of $538 net per week which reflects 10 hours a week, which corresponds with the history in the GP records. I note the insurer’s submissions referencing the 2021 taxation return, however, I prefer reliance on more contemporaneous payslips.
I accept the claimant’s evidence as to his intentions for ongoing employment, but for the accident. That is, that he would have continued his contract that he obtained in 2021 for the duration of the contract (being, end of 2024) and that he would have in all likelihood continued beyond such contract period. The written submissions do not take into account the conclusion of the three year contract at the end of 2024.
I also accept the claimant’s figure of earnings of $664.80 from January 2022 to date, on the basis of his contract he accepted after the accident. I note that the insurer’s submissions do not take this subsequent contract (obtained in 2021) into account in their calculations.
Whilst the contract period is three years, I accept the claimant’s evidence that he would have continued working beyond such contract period, if given the opportunity. The evidence establishes with sufficiently that the claimant is well regarded in the academic field and I consider it likely that he would have been given, and taken up, the opportunity to extend the contract or otherwise take up a similar contract. He gave evidence that he would happily have worked additional hours, even up to full-time. On the evidence it is not clear what the likelihood of increase hours would have been. Accordingly, I have assessed economic loss on the basis that the earnings would have likely stayed steady beyond the initial contract end date.
I also accept that on account of the accident related injuries, which are significant on any view, render the claimant unable to continue employment in any capacity. The insurer has not served any medical evidence that would contradict the view of Dr Bodel that the claimant would not be able to return to paid employment. Moreover, I accept the claimant’s evidence that he would most certainly have continued to work, however, he found himself unable to cope on account of his ongoing disabilities.
I therefore, calculate past economic loss as follows:
·     11 September 2021 to 31 January 2022 at $538 per week (20 weeks) $10,760
·     3 March 2022 to date at $664.80 (172 weeks)   $114,345.60
·     SUBTOTAL   $125,105.60
·     Super  $13,761.62
·     TOTAL   $138,867.22

Future economic loss

A claim for future economic loss is made of $273,500, on the basis of earnings of $685 net per week until age 75, noting that the claimant would be entitled to annual wage increases. This totals $240,500 utilising the 10 year multiplier and a deduction of 15% for vicissitudes, plus superannuation calculated at $33,000 (rounded down and claimed at 13.75%).
An alternative buffer claim is made of $270,000.
The insurer in response, notes the claimants age (66) and that economic loss should be confirmed to not more than 2.5 years based on pre-accident earnings of $450 net per week, which totals $46,971 taking into account 15% for vicissitudes.
As noted above, I accept the claimant’s evidence that he would continue working beyond the contract that was due to conclude at the end of 2024. I also accept that he would have worked for a number of years, despite him reaching retirement age, given his very clear interest and enjoyment he derived from his work. I accept the claimant’s work was a significant part of his feelings of self worth and accordingly accept that he would have continued working well beyond retirement age of 67, even though there was no apparent financial need to do so. Indeed, the claimant considered his wages as a bonus, given the enjoyment and fulfilment he gained from his employment. I also consider it likely that whilst the contract would have ended in 2024, he would be most likely have been offered ongoing work on account of the untested evidence that he is very well regarded in his field of work. It is not possible to predict precisely what his earnings would have been, however, I accept that would have been at least commensurate to the earnings he earned from January 2022 to March 2022, with an increase on account of wage increases. I therefore accept the figure of $685 net per week which roughly reflects a 3% increase. I allow such an amount for a further seven years (when the claimant would be 73 years of age). Utilising the 5% tables and a 15% deduction for vicissitudes this equates to $180,000 (rounded up).
I allow an amount of $26,244 for future loss of superannuation (14.58%).

Future miscellaneous expenses

The claimant advances a claim of a $30,000 buffer to account for travel costs to and from medical treatment, increased cost in insurance premiums, costs related to accommodation or travel. It is submitted he would be no longer able to fly in economy on account of his injuries.
The claim is advanced without any specific medical evidence that supports the claim.
I allow no amount.

Interest

In the most recent written submissions, a claim for interest is advanced pursuant to s 4.16 of the MAI Act.
The claimant submits that the insurer was provided with sufficient information that would have enabled a proper assessment of the claim since 6 September 2024.
I consider in the circumstances of a legitimate liability dispute that it was not unreasonable for the insurer to not make an offer of settlement (noting that I am not aware either way whether any offer of settlement was made). Furthermore, the no fault accident provisions were not relied upon until after the assessment conference when the issue was raised by myself. Accordingly, I decline to award interest.

Weekly statutory benefits paid

The parties have confirmed that an amount of $2,364.00 has been paid by the insurer as weekly statutory benefits. No amount of taxation was paid in respect of such amount.

SUMMARY OF DAMAGES

I award damages to the claimant as follows:
·     Non-economic loss:   $400,000
·     Past economic loss:   $125,105.60
·     Past superannuation:  $13,761.72
·     Future economic loss:  $180,000
·     Future superannuation:  $26,244
·     SUBTOTAL:  $745,111.32
·     Less 75% for contributory negligence          $558,833.49
·     TOTAL damages awarded  $186,277.83

COSTS

Costs are awarded to the claimant as agreed or assessed in accordance with the Motor Accident Injuries Regulation 2017.

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[2025] NSWPIC 291

24 June 2025