Mitchell v Allianz Australia Insurance Limited
[2025] NSWPIC 378
•6 August 2025
| CERTIFICATE OF DETERMINATION OF MEMBER | |
| CITATION: | Mitchell v Allianz Australia Insurance Limited [2025] NSWPIC 378 |
| CLAIMANT: | Robert Maxwell Mitchell |
| INSURER: | Allianz Australia Insurance Limited |
| MEMBER: | Gary Patterson |
| DATE OF DECISION: | 6 August 2025 |
CATCHWORDS: | MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claim for statutory benefits; insurer denied ongoing benefits on the basis the claimant wholly or mostly at fault; claimant riding a bicycle when struck by the insured vehicle whilst claimant crossing road at marked crossing for cyclists; nothing the insured driver could reasonably have done in the agony of the moment to prevent the collision; AAI Limited t/as GIO v Evic cited regarding approach to fault disputes in statutory benefits; Stuart v Walsh cited regarding response to emergency situation created by the claimant; insurer discharged its onus in proving that the claimant was wholly at fault for the subject accident; Held – for the purposes of sections 3.11 and 3.28 the motor accident the subject of these proceedings was caused wholly by the fault of the claimant. |
| DETERMINATIONS MADE: | MISCELLANEOUS CLAIMS ASSESSMENT CERTIFICATE issued in accordance with section 7.36 of the Motor Accident Injuries Act 2017 and clause 7.36 of the Motor Accident Guidelines Determination of a matter declared under Scheule 3, clauses (d) and (e) of the Motor Accident Injuries Act 2017 to be a miscellaneous claims assessment matter In accordance with Division 6 of the Motor Accident Injuries Act 2017 (MAI Act) , the Personal Injury Commission’s assessment is: For the purposes of section 3.11 of the MAI Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant.1. For the purposes of section 3.28 of the MAI Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant.2. As the claimant was self-represented, there is no order as to costs.3. |
STATEMENT OF REASONS
INTRODUCTION
The claimant is an 80-year-old male who suffered injuries on 18 September 2024 when his bicycle was struck by the insured vehicle on Lyons Road West in Concord at the location of a marked bicycle crossing just as the road curves to become Crane Street.
On 30 January 2025, the insurer issued a liability notice denying the liability for benefits after 52 weeks. The claimant sought internal review of the decision which was affirmed. The insurer alleges that the claimant was wholly or mostly at fault for the subject accident.
The claimant says that he sustained the following injuries in the motor accident:
· Fractured pelvis
· Shattered right ankle
· Broken femur leading to a hip replacement
The claimant was hospitalised and in rehabilitation for about three weeks after the accident. He says that, fortunately, he has made a good recovery from his injuries, with some residual hip problems.
The claimant is a retired gentleman who was not working at the time of the accident. He was a keen bicyclist and was a member of a social bicycling club. He has not ridden his bicycle since the accident.
The claimant says that there were no actual witnesses to the accident although people quickly gathered afterwards.
The claimant says that his motivation in bringing the claim is to obtain a proper determination of responsibility for the accident.
I disclosed to the parties that I am well familiar with the accident scene as I pass through it frequently. Neither party objected to my assessing the claim furnished with that extraneous knowledge.
After the proceedings were allocated to me, I held a preliminary conference on 8 April 2025 last and subsequently conducted a remote hearing via MS Teams on 9 July 2025 last at which both Mr Mitchell and the insured driver were questioned. The claim otherwise has been assessed on the papers with the parties’ consent.
LEGISLATIVE FRAMEWORK
Statutory Provisions
Mr Mitchell’s claim for statutory benefits is made under Part 3 of the MAI Act. Statutory benefits payable include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4. Mr Mitchell was retired and not in receipt of earnings at the time of the accident.
Under section 3.1 of the MAI Act, benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if the injured person’s fault caused the motor accident.
While the scheme of statutory benefits is predominantly a no-fault scheme, there are several limits and restrictions. For the purposes of the current proceedings, sections 3.11 and 3.28 of the MAI Act are relevant and are in similar terms. Section 3.11 says in respect of weekly statutory benefits 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 fifty-two (52) weeks after the motor accident concerned if:
·the motor accident was caused wholly or mostly by the fault of the person[1] or
·the persons only injuries resulting from the motor accident were threshold injuries.
(2) The 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 of the MAI Act) was greater than 61%.”
[1] Section 3.28(1)(a) adds the word “and the person is over 16 years of age at the time of the motor accident” to create an ongoing entitlement to statutory benefits for treatment and care expenses for children
The parties agreed at the first preliminary conference that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Mr Mitchell is wholly or mostly at fault in respect of his weekly benefits (Schedule 2, cl 3(d)) and whether he is wholly or mostly at fault in respect of his treatment and care benefits (Schedule 2, cl 3(3)).
If the motor accident was not caused “wholly or mostly” by the fault of Mr Mitchell under section 3.38, weekly benefits are reduced by the degree of his contributory negligence. Schedule 2, cl 3(g), provides the Commission with jurisdiction to determine whether weekly statutory benefits should be reduced for Mr Mitchell’s contributory negligence.
Relevant Case Law
On 11 October 2024 in the decision of AAI Limited t/as GIO v Evic,[2] Justice Mitchelmore considered sections 3.11 and 3.28 and applied them to a single vehicle accident. In the course of her reasons, Justice Mitchelmore said the following:
[2] [2024] NSWSC 1272
· an injured person’s entitlement to benefits, including benefits after the first 52 weeks, does not require the claimant to prove fault (55);
· the phrase “wholly or mostly” at fault is a composite phrase (not two separate concepts of wholly at fault and mostly at fault) and is directed at the claimant’s contributory negligence (56) relevant to the accident (not the injury) (57);
· section 3.38 requires the enacted law of contributory negligence to be applied and includes the provisions of s 5R(2)(a) of the Civil Liability Act 2002 (CL Act). The test of contributory negligence in that section is “the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person” (60);
· where there is more than one motor vehicle involved, or some other road user, the claimant’s contributory negligence is assessed by considering the apportionment culpability as stated by Basten AJ in Allianz Australia Insurance Limited v Shuk[3] at (61);
· in a single vehicle motor accident in which the claimant is the owner and driver, contributory negligence for the motor accident can still apply and the question to be pose is whether the claimant acted as a reasonable person in their position would have acted, citing to blameless accident cases[4] at (68) and (69); and
· if contributory negligence is found on the part of the claimant, then section 3.38(3)(c) requires an assessment of the degree of contributory negligence that is “just an equitable in the circumstances of the case” (73).
DECISIONS, SUBMISSIONS AND PROCEDURAL MATTERS
[3] [2023] NSWSC 788
[4] Akiak v Ingram [2012] NSWCA 311 where contributory negligence for a reckless pedestrian was assessed at 50%. Davis v Swift [2014] NSWCA 458 where contributory negligence for a pedestrian who stepped backwards of a median strip was assessed at 80%
Allianz Liability Decision
Allianz wrote to Mr Mitchell on 30 January 2025 denying liability to pay Mr Mitchell any benefits beyond 17 September 2025 (52 weeks from the date of the subject accident) on the basis that Mr Mitchell was wholly at fault for the motor accident.
Claimant’s Internal Review
Mr Mitchell wrote to the insurer on or about 22 February 2025 saying:
“I note firstly that Police and Ambulance (whose statements have been quoted informing a conclusion regarding fault) did not witness the accident, and Police have not at any time sought my description of events, in spite of my request for them to do so. They are thus, essentially, unable to report anything other than the description given by the vehicle driver.
The reliability of the driver’s explanation is questionable, given the following words from a text message he sent to me three days after the accident:
“….. please be aware that in Australia, as a pedestrian, if you are at fault in an accident, you generally cannot claim against the driver’s CTP insurance for your injuries. Your own insurance would need to cover any person expenses and damage to my car.”
This is clearly wrong, but appears to be a pre-empted attempt to implant the idea that I was wholly to blame.
Importantly, I was not in the Lyons Road cycle lane as alleged by the internal reviewer, and I did not ride across the road. As I have done many times at this crossing, I did ride from the Southern Creek side cycle trail and across the footpath and gutter-crossing, but stopped at the edge of the marked westbound cycle lane in preparation for crossing the road.
My implicit assumption was that any drivers would pay full attention to staying well within the marked traffic lane and avoiding drifting into the marked cycle lane (where I was hit and where I also landed after bouncing several times) near a sign-posted and arrow-marked crossing.
Note particularly this photograph of the accident scene showing me (right side paralysed) laying in the cycle lane, and the vehicle still overlapping the cycle lane. The point of impact was near the island visible on the passenger side of the vehicle.
Cyclists use cycle lanes on the reasonable assumption that drivers (who are not always visible to cyclists) will keep a look out for them and drive within the marked traffic lane.
If a driver doesn’t do that, and makes contact with a cyclist as a result, then the driver must, logically, have contributed to any resulting accident.
If cycle and vehicle lanes, sign posts and markers have no significance, why bother to create them?
The accident in which I was injured could have been avoided if the driver had taken note of the crossing signs and arrow markers, and kept his vehicle well within the main traffic lane, thus avoiding contact with me and my bike, clearly visible to vehicular traffic for at least 100 meters before the point of impact.
My “contribution” was to (reasonably) assume drivers would, indeed, keep a good look out, take note of warning signs, and would drive well within the main traffic lane.
On this basis, the driver’s failure to avoid drifting into the cycle lane, in spite of full visibility and warning of “crossing ahead”, was a significant contribution to the accident.”
Insurer’s Internal Review
On 20 February 2025, after receiving a request for an internal review, Allianz conducted its internal review about fault. The internal reviewer referred to the claimant’s statement, the statement of the insured driver and his Police interview and then said:
· “Having considered the totality of the evidence, I am of the view that the most probable and logical circumstances of the accident are as follows:
You were riding on the cycle lane along Lyons Road West and proceeded to attempt to cross the road to continue on your cycle. When you proceeded to enter the roadway, the front of your bike collided with the front passenger side of the insured vehicle.
· I have considered your actions, and I am of the view that you have failed to exercise reasonable care and caution when entering the roadway.
· The Police confirmed that you did not have right of way ….. In particular, Police outlined it was a pedestrian island and not a marked pedestrian crossing.
· The Police have held you at fault for not looking. No further action such as impingement notice was issued due to your injuries;
· I am of the view that a reasonable person in the same situation would have stopped and checked for vehicles on the road, particularly, when proceeding to cross at a pedestrian island. I am therefore of the view you have failed to take sufficient care in crossing the roadway and have not entered when it was safe to do so.
· As a result, I am satisfied that you were wholly at fault for the subject accident.”
CLAIMANT’S DOCUMENTARY EVIDENCE
The claimant relied upon the following material:
· Application for personal injury benefits dated 11 October 2024.
· Response to Internal Review Decision (see previously).
INSURER’S DOCUMENTARY EVIDENCE
The insurer relied upon the following material:
· Claimant’s application for personal injury benefits dated 11 October 2024 including description and sketch of accident.
· M&A Factual Investigation report dated 13 November 2024 which includes the following material:
Mr Mitchell’s signed statement;
Signed statement of insured driver;
Transcript of Police interview with the insured driver;
Property damage file dated 8 November 2024 with photographs of damage to the insured vehicle;
NSW Ambulance report dated 18 September 2024, and
Further statement by insured driver dated 26 May 2025.
CLAIMANT’S SUBMISSIONS
In addition to his Response to Internal Review Decision (above), Mr Mitchell made the following further submissions:
· Response to Legal Representation dated 29 March 2025.
“By now, I presume, all concerned would have read my initial response to the Internal (but NOT independent) review, which was based almost entirely on opinions and the statements which excluded my input and made many assumptions.
I hope this “independent” review with the Commission will be characterised by fairness and objective truth leading to genuine comprehension of the circumstances and a clearly informed judgment of what was reasonable and lawful in the circumstances.
I place no credence in a conclusion drawn on the basis of demonstrably wrong descriptions of my behaviour by people who have already offered gratuitous but wrong advice of my liability and whose knowledge of the actual accident is based mainly on the information and impressions provided by only the vehicle driver.
Attempting now to ascertain any further detailed information from any other casual passer-by more than six months after the event seems of little worth.
The photograph included in my response does indeed show where I came to a stop after being hit, NOT where I was moved to by bystanders. The first “bystander” on the scene was a retired ambulance officer who instructed me forcefully not to move and told others not to move me. He connected with the Ambulance service and, when they arrived, they used their specially-designed stretcher to move me from the pavement into the vehicle.
Based on the landing position pictured, simple physics supports the conclusion that the point of impact was in the cycle lane adjacent to the island visible in the photograph.
The vehicle location shown in the picture is considerably past the point of impact, on the passenger side of the vehicle and aligned with the very visible gutter crossing, leading from the creek-side cycle path. This, and the vehicle location overlapping the cycle lane, are clearly shown in the sketch provided with the Police report.
The aerial view provided in my initial report accurately shows the road/path/lane configuration at the scene, in particular showing how the cycle lane is wider at the point of impact, than where the vehicle stopped.
Given that NSW Road Rules state that:
1.Cyclists must use a marked lane unless impracticable to do so.
2.Drivers are not to routinely drive in bicycle lanes.
3.These rules are to minimise the risk of collisions between cyclists and vehicles.
It seems very clear that a prudent person would assume that I, as a cyclist, should be able to wait safely in a bicycle lane before crossing a main thoroughfare, as has been my practice at this location for 25 years. I did not, and have never ridden “straight across the road at high speed”.
It is also difficult to accept that a driver keeping a good lookout approaching a clearly visible sign posted crossing would not see a cyclist moving from the cycle path into the cycle lane well before reaching the crossing and thus keep clear.
I would also make the point that from the marked cycle lane, it is possible to see approaching vehicles which are moving within the main traffic lane, but anything which overlaps or is in the cycle lane is not so easily seen without a more significant sideways head movement. It is similar to looking down a road way whilst standing on the kerb thus footpath traffic can be easily missed.
I failed to see any useful analogy with the cases quoted, other than to highlight the prudent person argument. If there was a sudden emergency here, it was because the driver was imprudent in keeping watch for contingencies which might occur beyond the immediate forward vicinity of his vehicle. While neither the insured nor the claimant left home that day with the intention of causing distress and injury, it remains my view that the driver’s failure to keep a safe lookout ahead of his vehicle and to stay well-clear of the cycle lane, where the major contributing factors to this accident and to my resulting injuries.
· Response to drivers’ signed statement of 15/5/2025.
“The insured’s identification of the particular indentation as the result of the collision is noted.
In the context of the Police assessment of debris as “a bit of plastic” and damage as I “….not a lot, just a little”, assertion of any more significant damage must have a reason from more diligent loss assessment, and, in any case, seems irrelevant to an assessment of fault.
The most useful conclusion following from the alleged pedal indentation is the relevant positions of bike, ryder and vehicle.
It follows that the impact between the vehicle and myself occurred on the passenger side/front of the vehicle. The rear hub of the stationary bike would have been approximately 60cms behind the pedal, and my right leg was between the vehicle and the bike, behind the pedal and slightly forward of the bike seat. The bike remained between my legs (which bear the scars) as bounced/hopped to my left before collapsing.
My pictured landing location after the collision resulted from this impact, which occurred in the wider section of the cycle lane, at its intersection with the creek-side cycle path adjacent to the island visible in the photograph, as recorded in the multiple depictions in the insurer’s submissions.
As implied by the case precedent referenced by the insurer, the pictured vehicle position suggests that the driver, in (the agony of the moment), instinctively veered right towards the main thoroughfare while travelling the significant stopping distance required for this large vehicle.”
· Insurer’s submissions dated 18 March 2025.
The insurer made written submissions as follows:
·It appears from the claimant’s response to the internal review decision that he now asserts that he did not enter the roadway and that the collision occurred due to the insured vehicle “drifting into the marked cycle lane” where he was hit and landed after bouncing several times.
·The insurer submits this account should be rejected as it is entirely inconsistent with all of the objective evidence and with the claimant’s own statement, to the effect that he had been waiting for a break in traffic on the main carriage way and when he believed there was no nearby traffic on the carriage way, he began to move forward at which point he observed a vehicle immediately to his right.
·The insurer notes the above account is consistent with the insured’s description of the circumstances of the accident and, more importantly, consistent with the objective evidence.
·Contained in the claimant’s application is a photograph taken at the scene of the accident, showing the insured vehicle to be in situ. The insured vehicle appears to be positioned on the white line separating the cycle way from the roadway. Accordingly, it is submitted that the claimant’s account of the insured vehicle veering into the cycle way would not be accepted.
·In addition to the above, as can be observed from the above photograph and the photographs of damage to the insured vehicle, the point of impact and damage occurred just off centre of the insured vehicle (black mark on lower bumper bar).
·The insured driver will give evidence that the damage seen occurred in circumstances where the claimant’s bicycle pedal pierced the bumper bar, causing the damage seen on the lower edge of the bumper bar. Furthermore, the impact caused the claimant to land on the bonnet of the insured vehicle and thereafter, to come to rest on the roadway.
·The insurer submits it would not be accepted that the positioning of the claimant seen in the cycle lane was his rest position, but rather where he was taken by the insured and bystanders after the collision.
·Accordingly, it is the insurer’s submission that the claimant’s most recent version, to the effect that the incident occurred in the cycle way, would be rejected entirely as it is inconsistent with the following:
(a)his prior versions of the circumstances of the accident;
(b)the insured driver’s version of the accident;
(c)the NSW Police conclusion as to how the accident occurred; and
(d)the objective photographic evidence which shows the insured vehicle rest position wholly or substantially within the roadway and damage to the front off-centre of the bumper bar depicting the point of impact.
·With respect to the rest position of the insured vehicle abutting the white line between the roadway and the cycle way, the insurer notes the insured’s evidence to the effect that when he first observed the claimant, he immediately applied his vehicle brakes which caused his vehicle to slide and slow down. Accordingly, the rest position depicts the position on the roadway after the insured took a case of action and approximately 1 metre after the point of impact. The insurer submits the rest position of the insured vehicle is consistent with the following:
(a)he is keeping a proper lookout;
(b)his reacting to the danger that was presented by the claimant entering the roadway; and
(c)his taking evasive action to avoid the collision and minimise injuries sustained to the claimant;
·The insurer submits the conclusions contended for by the claimant are not made out on the evidence and ought to be rejected entirely.
·It is the insurer’s submission 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 action.
·The insurer observes the facts of the subject case bear similarities to the Court of Appeal decision of Stuart v Walsh [2012] NSWCA 186 (Stuart) in which the Court held that, in circumstances where Stuart was confronted with Walsh moving out of the breakdown lane, his response was reasonable in light of the risk created by Walsh.
·The Court of Appeal stated that Stuart did not have the opportunity for calm reflection. Whilst with the benefit of hindsight, he ought to have stayed in the left lane, the Court stated that if steering to the right was, in hindsight the wrong thing to do, it was an error of judgment made “in the agony of the moment.”.
·In Leishman v Thomas[5] Street CJ set out the longstanding principle of agony of the moment:
[5] [1957] 75 WN (NSW) 173
“This so called principle of acting in the “agony of the moment” is merely an application of the ordinary rule to ascertain whether or not the conduct of any party has been negligent by looking to all of the surrounding circumstances and ascertaining whether the defendant behaved in such a fashion as a reasonably prudent man, in the light of the circumstances, would not have behaved.”.
·In Stuart Tobias AJA stated that the fact that Walsh’s conduct brought about a sudden emergency, in the circumstances, it would be unreasonable to criticise Stuart for doing what he did.
·The insurer submits the subject facts are analogies and that the actions of the insured driver were in response to the emergency situation created by the claimant.
·In those circumstance, the claimant was wholly at fault for the collision and the insured driver was not negligent in the circumstances. Alternatively, the claimant was contributorily negligent to the extent of 100%.
·The insurer submits the Commission would benefit from a statement from the independent witness and reserves its position to rely upon a statement if it is able to be obtained prior to the matter proceeding.
REVIEW OF THE EVIDENCE
Claimant’s Evidence
In his statement made on 8 November 2024, the claimant said as follows:
“32. I was positioned at the edge of the marked cycle lane, waiting for a brake in the traffic on the main carriage way. When I believed there was no nearby traffic on the main carriage way, I began to move forward, but, as I started to move, I became aware of a vehicle immediately to my right (i.e. at 90° to my direction. This vehicle collided with me, throwing me to my left, where I landed on the road several metres away, approximately one arm’s length from the kerb. I clearly remember the distance, as I was attempting to drag myself off the pave surface towards the kerb.
34. Twenty metres prior to the accident, I was travelling at 10kms/h on the cycle way in Concord. There were no vehicles travelling in front or behind me.
35. I recall seeing in my peripheral vision at the moment of impact, the vehicle hit into my thigh and I bounced twice to my left and fell onto the roadway.
36. I do not recall the speed limit the vehicle was travelling; however, I believe he would have been going the speed limit as (otherwise) I would have been more seriously injured.
37. The other vehicle came to rest at the same position that he collided into me. My bicycle came to rest approximately 5 metres away from me.
38. There was no evasive action.
47. My bicycle only sustained minor damage.”
In his oral evidence, the claimant said as follows:
· The insured vehicle came to rest very close to the position of impact.
· Prior to entering the roadway, the claimant was positioned at the edge of the marked cycle lane, closest to the carriage way, waiting for a break in the traffic.
· Immediately before the time of impact, the claimant had begun to move forward very slowly. He was inching forward as he pushed on his right pedal.
· Before doing so, he looked to the right, but doesn’t believe he saw anything in the main carriage way. He did not see anything in the cycle way until immediately before the car struck him.
· The claimant denied the insured driver’s allegation that he travelled at high speed across the roadway.
· The claimant agrees he did not dismount his bike and he reached the end of the cycle path.
· The claimant says he rode out of the north/south cycle way to the edge of the road and stopped on the edge of the main carriage way before crossing.
· He said that he remained astride his bicycle, his right foot on the pedal, his left foot on the ground.
· He denied that he entered the carriage way abruptly whilst still riding.
· The claimant said that Lyons Road West begins to veer left immediately after the crossing/point of impact, which was in the wider section of the cycle way, adjacent to the traffic island.
· The claimant refuted the insured driver’s contention that the point of impact was in the middle of the carriage way.
· The claimant maintained that the photographic evidence of damage to the car, indicating that the impact occurred centrally, was consistent with the car travelling in the cycle way.
· The claimant conceded that, upon his version of events, the insured vehicle must have been travelling in the cycle way for the whole time and distance, from the driver’s first observing the claimant, to the point of impact.
· The claimant conceded that the point where the car came to rest was compatible with it travelling straight in an east/west direction.
· The claimant said that he was not moved off the roadway until the ex-paramedic arrived.
Insured Driver’s Evidence
The insured driver gave evidence to the following effect:
· He was travelling at a speed of between 40 and 45 kms/h along Lyons Road West in an east/west direction. He was on his way to his next work appointment.
· He was looking straight ahead, was not using a mobile phone and was not distracted by anything else, as he was proceeding.
· He saw the claimant at the last couple of seconds prior to the impact. He applied the brakes as soon he observed the claimant suddenly emerging into the carriage way at high speed. His vehicle slid in a straight line to the point of impact and came to rest about one metre from it.
· The claimant landed in the middle of the carriage way.
· An ex-paramedic arrived about ten minutes later. He and the insured driver moved the claimant from the middle of the carriage way to the cycle way.
FINDINGS OF FACT
In making an assessment, findings of fact must be made, and those factual findings must be supported by logical and probative evidence as presented by the parties. Any inferences drawn, must be reasonably open on the facts.
It is common ground that there was an independent witness to the accident whose evidence was not obtained by either party. It is not known if that person was interviewed by Police nor if he has been contacted. In those circumstances, I draw no inference against either party for failure to adduce that evidence.
Having considered all of the documentary evidence, the parties’ oral evidence, my own knowledge of the accident scene and its surrounds, as well as the parties’ submissions, I make the following findings of fact:
(a) The insured driver was traveling within the speed limit and keeping a proper lookout as he approached the cycle way crossing where the accident occurred.
(b) The impact with the claimant occurred in the carriage way, as asserted by the insured driver, and not in the cycle way, as asserted by the claimant. In making that finding, I have regard to the photograph depicting where the insured vehicle came to a halt, the claimant’s concession that the insured vehicle was travelling straight in an east/west direction at the time of impact, and the photographic evidence depicting the location of damage to the vehicle. I observe that the front passenger-side tyre of the vehicle appears to be on the line-marked southern boundary of the carriageway.
(c) If the claimant was halted on the verge of the carriage way, as he asserts, and was observed in that position by the insured driver, as the claimant asserts he should have been, then I am satisfied that the insured driver was entitled to assume that the claimant would not begin to cross the carriage way, until the way was clear.
(d) Whether the claimant emerged onto the carriage way at high speed, as the insured driver asserts, or he was inching forward, as the claimant asserts, I am satisfied that he created an emergency situation, which the insured driver was unable to prevent, by reasonable means. That is because the claimant should not have begun to cross the carriage way until it was safe to do so.
(e) I reject the claimant’s evidence that the insured vehicle was travelling in the cycle way, prior to the impact, for whatever reason. As there is a metal sign permanently placed on the side of the roadway, and other objects in the cycle way, that evidence does not have the ring of truth about it. I accept the insured driver’s evidence that, at all relevant times, he was travelling in the carriage way, as he was required to do.
(f) I am satisfied that, contrary to his evidence, the claimant did not keep a proper lookout to see if there were vehicles approaching from his right, before beginning to cross the carriage way. The physical damage to the insured vehicle and the road geometry is inconsistent with the claimant’s account.
(g) The claimant’s failure to see the approaching vehicle prior to impact raises the inference of inadequate lookout. I find that the insured driver’s account is plausible and consistent with damage and the accident scene.
(h) I don’t doubt the claimant’s credibility and accept that he subjectively believes his version of events. However, I find that his evidence does not withstand objective scrutiny. It is fortunate that, according to the claimant, he has made a good recovery from his injuries.
CONCLUSION
For the reasons stated, I am satisfied that the claimant was wholly responsible for the subject accident. The insurer has discharged its burden of proof.
COSTS AND DISBURSEMENTS
As the claimant was self-represented, no costs were claimed.
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