Saunders v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Saunders v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 395
CLAIMANT:	Paula Saunders
INSURER:	Insurance Australia Limited t/as NRMA Insurance as agent for the Nominal Defendant
MEMBER:	Belinda Cassidy
DATE OF DECISION:	25 July 2024
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017 (MAI Act); whether claimant wholly or mostly at fault for the purposes of terminating statutory benefits 52 weeks after the accident; claimant riding bicycle to work close to gutter; claimant alleged yellow car was driving within 10 cm of her right hand on the handlebar; claimant concerned as to her safety and attempted to get off the road by turning sharp left into a driveway; lost control on the two-inch lip between surface of road and surface of driveway; claimant fell and fractured wrist; claimant made claim against Nominal Defendant on basis yellow car was unidentified; insurer accepted presence of yellow car on the road in the vicinity of the claimant and admitted due enquiry and search had been undertaken; insurer denied liability for ongoing statutory benefits on basis claimant was wholly at fault; no submissions on contributory negligence from insurer and no submissions on costs; no challenge to evidence that yellow car was riding too close to the claimant; rule 144(1) of Road Rules 2014 referred to; Hossain v Mirdha and Nominal Defendant v Hawkins followed; Held – manner of driving yellow car caused claimant to take evasive action which caused the claimant to lose control of her bike; but for how the yellow car was driven, the accident would not have occurred; claimant not wholly at fault; no contributory negligence found.
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 not caused wholly or mostly 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 not caused wholly or mostly by the fault of the claimant. 3. The amount of the claimant’s costs in the matter is $4,221.80 inclusive of GST.

STATEMENT OF REASONS

INTRODUCTION

Paula Saunders was involved in a motor accident at about 8.20 in the morning of
31 May 2023. Ms Saunders was riding her bicycle on her way to work along Parry Street in Newcastle. She lost control of her bicycle when she moved up a driveway towards the footpath. She said she did this to get out of the way of a small yellow car driving too close to her bicycle.
The identity of the small yellow car has not been established.[1]
[1] Ms Saunder’s statutory declaration referred to in paragraph 48 below provides a lot of detail about the driver who stopped after the accident. The driver was said to be young and female with long straight dark hair.
On or about 28 July 2023, Ms Saunders made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act) with the Nominal Defendant. On 31 July 2023, NRMA advised the claimant it had been appointed as agent for the Nominal Defendant.
On 14 August 2023 the Nominal Defendant accepted liability to pay statutory benefits for the first 52 weeks after the accident. On 31 October 2023 the Nominal Defendant denied liability to pay statutory benefits beyond the first 52 weeks on the basis the claimant was wholly or mostly at fault.
The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. On 14 November 2023, the insurer affirmed its decision.
The claimant has referred the issue of whether she is wholly or mostly at fault to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
The proceedings have been allocated to me. I held a preliminary teleconference on 5 June 2024 with the legal representatives of the two parties.

LEGISLATIVE FRAMEWORK

General provisions

The claim that is before me is a claim for statutory benefits under Part 3 of the MAI Act. That Act establishes a scheme for the compulsory insurance of motor vehicles registered to operate on the roads of New South Wales and a scheme for the payment of benefits and compensation to persons injured in motor accidents in New South Wales.
Statutory benefits 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.
Under s 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. However pursuant to ss 3.11 and 3.28, an injured person is not entitled to statutory benefits beyond the first 52 weeks after the accident if the injured person only has threshold injuries (within the definition in s 1.6) or if the injured person was wholly or mostly at fault for causing the accident.
The phase “wholly or mostly at fault” appears to involve two separate concepts:
(a) whether a claimant is wholly at fault, and
(b) whether a claimant is mostly at fault.
There is no definition of “wholly at fault”, but a motor accident is considered to be caused “mostly by the fault” of a person if they contributed to the cause of the accident and their contributory negligence is assessed as greater than 61%.[2]
[2] Section 3.11(4) and s 3.28(4).

Dispute resolution

Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Ms Saunders is wholly or mostly at fault in respect of her weekly benefits (Schedule 2, cl 3(d)) and whether she is wholly or mostly at fault in respect of her treatment and care benefits (Schedule 2, cl 3(e)).
If the motor accident was not caused “wholly or mostly” by the fault of the claimant, but the claimant contributed to the accident, then under s 3.38, weekly benefits are reduced by the degree of any contributory negligence. Schedule 2, cl 3(g) provides the Commission with jurisdiction to determine whether statutory benefit should be reduced for the claimant’s contributory negligence.

SUBMISSIONS AND PROCEDURAL MATTERS

Insurer’s decision making

In its liability notice of 14 August 2023, the insurer accepted Ms Saunders’ accident was a motor accident within the definition of s 1.4 and the insurer has accepted that due enquiry and search had occurred. Ms Baladi for NRMA confirmed at the preliminary teleconference that the insurer accepted the presence of the small yellow car on the road in the vicinity of the claimant on her bicycle at the time of the accident.
In its original decision of 31 October 2023, NRMA said:
“You were wholly or mostly at fault for your motor vehicle accident. The reasons for this decision are that the unknown vehicle has not caused or contributed to the injuries you unfortunately sustained.”
In the internal review decision of 14 November 2023, NRMA says the claimant is “wholly / mostly at fault in the motor vehicle accident.” NRMA says at [21] Ms Saunders was the “sole relevant cause of the harm that you suffered.”
NRMA alleged at [21] that the claimant’s negligence or fault involved the following:
(a)    failing to safely manoeuvre and control her bicycle;
(b)    failing to exercise due and proper care;
(c)    failure to ride in a safe manner;
(d)    failure to keep her bicycle under and or any proper control;
(e)    rode her bicycle in a dangerous manner, and
(f)    as a cyclist she was in a vulnerable position she should have taken greater care for her own safety.
NRMA’s internal review also says at [24]:
“You performed an act that was the cause of the collision. Your response to the events on the road was causative and, on the evidence available, you lost control due to your act of swerving into the driveway which caused your bicycle to fall to the ground. On the evidence available you lost control due to your action of swerving into the driveway.”

Insurer’s original submissions

The insurer sets out at [3]-[9] the procedural background to the current dispute and then at [10] summarises the circumstances of the accident and the evidence at [11]-[18].
The insurer says at [19] that s 5B and 5D of the Civil Liability Act 2002 (CL Act) applies in determining negligence. For the unidentified driver’s act or omissions to be causative, they must have been “a necessary condition of the occurrence of the harm” but that it was the claimant’s negligence which was the sole cause of her accident and injury.
The insurer also says at [19] that the standard of care is prescribed in s 5R of the CL Act, being what a reasonable person would have done on the basis of what the person knew or ought to have known at the time.
The insurer refers at [20] to the fact that the evidence suggests the claimant took “evasive action” by swerving into a driveway and says at [21] “the claimant’s actions were the sole cause of the harm she suffered.” The insurer says at [22] that it was the claimant’s actions that put her “in a position of vulnerability.”
The insurer refers at [23] to the case of Hossain v Mirdha[3] and says:
“… a Plaintiff who had swerved his vehicle to avoid hitting a dog crossing the road resulting in a collision with a parked truck was held to have been causally implicated in the accident if not the sole or primary cause.”
[3] [2015] NSWDC 108 (Hossain).
The insurer’s submissions appear to allege that the claimant is wholly at fault and that there is no contributory negligence at all, let alone contributory negligence of more than 61%.

Claimant’s original submissions

The claimant says at [12] that at the time of the accident an unidentified yellow car drove about 10cm from the claimant’s right handlebar which caused her to take evasive action and turn sharply into a driveway to avoid being hit by the yellow car. Ms Saunders says at [13] this is why she lost control of her bike.
The claimant lists the documents considered by the insurer at [16] and notes at [17] that the primary documents are Ms Saunders’ statutory declaration, the police report and the insurer’s investigation report.
The claimant acknowledges at [18] the circumstances of the accident are based on her report and at [19] that there are no witnesses or other evidence. The claimant says at [20] and [23] that the police accepted the claimant’s version of events and believed the car to be a contributing factor.
The claimant submits at [25] that the driver of the unidentified vehicle was negligent because they:
(a)    failed to keep a proper lookout for the claimant as a road user;
(b)    failed to drive safely;
(c)    failed to avoid placing the claimant in a position of peril, and
(d) breached Rule 144-1 of the Road Rules 2014 (the Road Rules) by not driving at a safe distance from the claimant.
The claimant distinguishes at [26] the decision in Hossain on the basis it relates to a claimant swerving his vehicle to avoid an animal on the road and then hitting a parked car. The claimant says at [27] and [28] that the cause of her loss of control was the action of the driver of the unidentified vehicle in breaching the road rules.
The claimant maintains there is no evidence of her fault and sought costs pursuant to Schedule 1, Part 1, cls 3(2)(d) and (e) of the Motor Accident Injuries Regulation 2017 (the Regulation).

Preliminary conference

NRMA’s internal review decision said that the claimant “performed an act that was the cause of the collision” (emphasis added) and identified that the cause of the claimant losing control of her bicycle was “because you swerved.” As NRMA did not appear to have considered the actions of the unidentified driver there was a discussion at the preliminary teleconference what NRMA understood was the reason for the claimant swerving her bicycle. Ms Baladi said that the cause of the swerve appeared to have been so the claimant could avoid the unidentified motor vehicle. Ms Baladi agreed that the driver of the unidentified motor vehicle owed Ms Saunders a duty of care, and that by driving too close to the cyclist the driver of the yellow car may have breached that duty of care. There was then discussion about whether, if the driver of the yellow car had breached her duty of care, that might indicate the driver of the car was at fault and if that was the case then the claimant could not be wholly at fault. Ms Baladi however was unwilling to make any concessions or address the argument and said she needed to seek instructions.
Ms Baladi noted that the claimant also had a duty of care. This is correct and if there had been an accident and the driver of the yellow car had been injured due to the claimant’s breach of duty of care, that is something the relevant insurer would have to consider in making any liability decision in respect of the yellow car driver’s claim. All road users owe a duty of care to other road users, but they do not owe a duty of care to themselves which can be breached and lead to an actionable claim in negligence against themselves.[4]
[4] See Whitfield v Melenewycz [2016] NSWCA 235 at [31] in particular.
There was then discussed that if the insurer admitted fault on the part of the unidentified vehicle, there may still be a dispute about whether there is any contributory negligence on the part of Ms Saunders and if so whether that contributory negligence is more than 61% (so as to terminate her statutory benefits) or less that 61% in order to reduce the amount of her weekly statutory benefits.
In assessing whether there is any contributory negligence at all, it was noted that this required consideration of s 5R of the CL Act and a determination of whether a reasonable person in the position of the claimant would have acted as Ms Saunders did. In considering that, the concept of the “agony of the moment” may have been relevant. If there is any contributory negligence then, in considering the degree of contributory negligence, it was noted that the test is that of the relative culpability of the unidentified vehicle’s driver and the claimant and responsibility would then be apportioned between them.
Ms Baladi advised she would need to seek instructions from the case officer at NRMA and that NRMA may want to issue a fresh liability notice or make further submissions.
The parties agreed that it would be appropriate for me to proceed to assess the dispute on the papers, without holding a further teleconference or hearing.
Directions were issued to the parties for submissions on costs and final submissions on the substantive issues.

Further communication from the insurer

On 24 June 2024 the Commission received a message from the insurer as follows:
“I refer to the Directions made in the Preliminary Conference Report dated 5 June 2024. Apologies for the delay, I can now confirm that the Insurer maintains its position that the claimant is wholly at fault.”

Further submissions from the claimant

The claimant lodged further submissions on 28 June 2024.
Ms Saunders maintains at [6] that it is the driver of the yellow car that has breached their duty of care and not the claimant. The claimant says at [7] that the yellow car, in driving too close to the claimant was an act which caused the claimant to fall from her bicycle and sustain and injury. The claimant after citing Hawkins says at [9] that:
“it is submitted that the driver of the unknown yellow car, in breach of their duty of care, was at fault and therefore the claimant cannot be ‘wholly at fault’.”
The claimant then submits in respect of contributory negligence and “mostly at fault” that:
(a)    the insurer does not provide any evidence or submissions as to contributory negligence [11];
(b)    the insurer bears the onus of proof that there was negligence [12];
(c)    the claimant’s evidence is unchallenged [13];
(d)    the claimant was “pinned” between the yellow car and the gutter and decided to take action which was a decision made “in the agony of the moment” [14];
(e)    the claimant’s response was a reasonable response to the position she found herself in [17], and
(f)    there is no contributory negligence.
In terms of costs the claimant seeks the regulated fee of $1,920 for three separate disputes under Schedule 2, cl 3(2)(d), (e) and (g).

EVIDENCE REVIEW

As there is no dispute as to the factual circumstances of this accident, I do not propose to recite at length the evidence put before me concerning liability and fault. A large amount of medical evidence has also been provided however as this evidence is not relevant to the matters I have to decide, I will not refer to it at all.
The claimant’s application for personal injury benefits (claim form) was dated 21 July 2023. Attached to it was a typewritten description of the accident which says where she was riding and that she was close to the kerb near an intersection when she noticed the yellow side mirror of a car about 10cm away from her right hand and she says:
“I then noticed the canary yellow vehicle (potentially a Toyota Yaris or Suzuki Swift) was travelling along beside me very closely and I decided to move off the road because I became scared that I would get hit.
I looked for a driveway and the next driveway that came up I attempted to go up however as I was pinned in quite close to the gutter, I had to go over the driveway on a sharp angle and there was about a two-inch rise on the concrete driveway where it met the road.
My bicycle tyre hit the rise and I went over one side of the handlebars onto the concrete footpath.
I sat up after the impact and was immediately aware of pain in my right hand/wrist and left knee.”
The claimant notes that her right wrist was “shattered and broken” and that she had surgery to have a metal plate and pins inserted. She provides additional details of the injuries and treatment.
According to the map attached to the claim form, Ms Saunders was heading along Parry Street, had passed the intersection with Denison Street and was approaching the intersection with West Street. The lights at the West Street intersection can be seen in one of the photographs in the insurer’s investigator’s report.
The claimant provided a 15-page statutory declaration dated 28 July 2023 in support of her claim (which was made late). She provides details of her employment (senior engagements and complaints officer) and duties (90% data entry).
Ms Saunders says she was in good health, had a previous touch football injury but had never had a personal injury claim before the accident.
Ms Saunders said she was riding to work, on her own e-bike, wearing a helmet. She provides extraordinary detail about her thoughts and her actions but essentially provides a version consistent with her claim form. After Ms Saunders became aware of the presence of the yellow vehicle she says:
“[37] It felt as though if I stayed where I was, the vehicle was going to hit me. I had nowhere to go.
[38] I could see a driveway was coming up very close, so I did a quick assessment and thought, ‘I'll just duck up this driveway onto the footpath, and I'll be out of that car's way, and all will be well.’
[39] So, I did go to go up, but because I was pinned in so close, I had to go up on quite a sharp angle on the driveway, but also the driveway had a couple of inch rise from the road, so I actually could see the accident all happening, like it was in slow motion.”
The statement continues with significant detail about her treatment, her post accident employment, her explanation for delay and her attempts to identify the vehicle.
The claimant gave a statement to the insurer’s investigator on 10 August 2023. The claimant says at [15] she was riding at 10-15 km close to the gutter when she became aware of the car, and it was “really close”. She looked to her right and saw the yellow side mirror about 10cm from her right hand, looked further and saw the vehicle.
Ms Saunders said at [19] she was shocked and turned back and scanned to see what her options were. She was scared and concerned and felt she had to get out of the situation. She describes at [21] being “hemmed into the gutter” by the yellow car.

Ms Saunders says at [22] that her only option was turning at a sharp angle into the driveway to her left with [23] a “two-inch lip” that she had to get over but that her tyre skidded along the lip out of control.
Ms Hattersley, a co-worker with the claimant provided a statement to the insurer’s investigator. She referred to the claimant arriving at the office after the accident distressed and in shock holding her right hand and arm. Ms Saunders told Ms Hattersley she had an accident. Ms Hattersley said she ran “up the gutter because [a car] was very close to her and she had to take evasive action.” Ms Hattersley took the claimant to hospital.
The claimant reported the accident to the police on 17 July 2023. Senior Constable Jago created the report. She noted the speed limit was 60km and that the road was straight, level and the weather was fine and dry. She noted however that she did not visit the scene. As a result, the crash summary details were clearly based on the information provided by the claimant.
NRMA’s investigator’s interviewed Senior Constable Jago. She says at [Q13] she has subsequently been to the scene and looked for CCTV. She later confirmed at [Q25] that the claimant was the only person she spoke to. She read out at [Q23] the complete report she made which includes the following:
“There was no collision with the yellow hatchback, however, it allegedly passed within the allowable one metre clearance of bicycles ... The vehicle was a contributing factor to the collision of the rider and the ground … there would be no issue with the yellow hatchback travelling in this lane, should it have stayed within – outside of the one metre safe distance from the bicycles.”
The claimant provided an excerpt from the Road Rules which at 144-1 says:
“(1) The driver of a motor vehicle driving past to the right of a bicycle that is travelling on a road in the same direction as the motor vehicle must pass the bicycle at a safe distance from the bicycle.”
A safe distance is defined in sub-section (2) as one metre if the speed limit is not more than 60km or 1.5 metres if the speed limit is more than 60km. The distance is measured from the furthest left side of the vehicle and the furthest right side of the bicycle.

CONSIDERATION OF THE ISSUES

What is in dispute?

The insurer’s submissions lodged with the reply were confirmed in the message from the insurer on 24 June 2024. The insurer alleges that the claimant’s accident was caused wholly by her own fault. The insurer makes no allegation in the alternative of the claimant being mostly at fault and provides no submissions as to the assessment of contributory negligence.
The only matter for me to determine therefore is what caused the claimant’s accident and whether that cause was the fault of the claimant and no one or nothing else.

Findings of fact relevant to causation

The insurer does not dispute that the accident happened and accepts that the yellow car was present on the roadway in the vicinity of the claimant at the time of the accident.
There is no evidence from the driver of the unidentified yellow car. There is no evidence from any independent witness to the accident.
The only evidence there is about how this accident occurred, is the unchallenged evidence from the claimant as contained in her claim form, her statutory declaration and her statement to the insurer’s investigator. On the basis of that evidence, I make the following findings:
(a)    the claimant was riding her e-bike along Parry Street in Newcastle;
(b)    she was riding at 10-15km in the left-hand lane close to the gutter;
(c)    she was approaching a light controlled intersection;
(d)    there was a yellow car travelling in the same direction as the claimant in the same lane;
(e)    that car drove alongside the claimant on her bicycle;
(f)    shortly before the accident, the wing mirror of the yellow car was about 10cm from the claimant’s hand on the handlebars;
(g)    in response to the presence of the yellow car, the claimant took evasive action to avoid the yellow car, and
(h)    the claimant drove up onto a driveway and lost control of her bicycle, fell and was injured.
While I do not have any photographs of Ms Saunders’ bike, having observed bikes (including e-bikes) parked on the street or left on the footpath, it is my understanding that the furthest point of a bicycle would be the end of the handlebars. I am therefore satisfied that shortly before the accident, the furthest left point of the yellow car was no more than 10cm from the furthest right point of the claimant’s bicycle.

What caused the claimant’s accident?

The insurer does not dispute that the claimant’s injuries were caused when she fell from her bike after losing control of it as she executed a left-hand manoeuvre onto a driveway.
The insurer however denies that the unidentified driver caused the accident. The insurer says the only causative action in relation to the accident was the action of the claimant.
Section 5D(1) of the CL Act says that for me to determine that the unidentified driver’s negligence caused the claimant’s injuries I must find that, “the negligence was a necessary condition of the occurrence of the harm” and that it is appropriate for the scope of the unidentified driver’s negligence to extend to the claimant’s injuries. Dealing with the scope of the liability, the driver was driving a car on a public road which, and that car, while unidentified, is covered by the Nominal Defendant which is funded by the compulsory third party scheme and the cost shared by insurers and the premium paying public. It is appropriate for liability to be extended to the unidentified driver in those circumstances.
As to whether the negligence was a necessary condition of the harm, the insurer has relied on the decision of Elkhaim DCJ (as he then was) in Hossain. That was a case involving the “blameless accident” provisions of the Motor Accidents Compensation Act 1999. The driver of a taxi was injured when he swerved to avoid a dog that had run out onto the road. As a result, he collided with a stationary truck and was injured. Judge Elkhaim said in that case:
“[13] The defendant submitted that there can be more than one cause of an accident. In support of this submission, I was referred to the decision of the New South Wales Court of Appeal in Nominal Defendant v Hawkins [2011] NSWCA 93, in particular at paragraphs 33 and 69.
[14] On the basis that there could be more than one cause of an accident the defendant went on to submit that the act of the driver in steering the motor vehicle to avoid the dog, and thereby colliding with the stationary truck, was an act of causation in itself, notwithstanding that the dog running onto the road was also a cause of the accident, probably even the primary cause.
…
[29] … the act of steering the vehicle away from the dog was an act of the driver and it was an act that was a cause of the injury to him. It was not the sole or the primary cause but nevertheless was an act which caused his vehicle to collide with the truck. Suffice to say here that it is assumed in my decision, derived from the Statement of Agreed Facts, that the taxi would not have collided with the truck if the driver had continued straight along the road without trying to avoid the dog by adjusting his direction of travel [emphasis added].”
The case concerned the interpretation of s 7E which provided that the blameless accident (no fault) provisions did not apply to a driver “if the motor accident concerned was caused by an act or omission of that driver.”
NRMA has said in [23] of its original submissions that Mr Hossain was found to be “causally implicated in the accident if not the sole or primary cause” of it. With respect, that is not what the learned Judge said. Judge Elkhaim found Mr Hossain was not entitled to damages because his act of swerving was one of the acts that caused the accident and he said at [29] that Mr Hossain’s swerving “was not the sole or primary cause”. The sole or primary cause of Mr Hossain’s accident was the dog darting onto the road.
In Ms Saunder’s case, while she is in a similar position to Mr Hossain, she swerved to preserve herself while Mr Hossain swerved to preserve the dog. There is however little similarity between the actions of the darting albeit presumably domesticated animal and the deliberate actions of the unidentified person driving her motor vehicle too close to the claimant on her bicycle.
Judge Elkhaim referred to the Court of Appeal decision of Nominal Defendant v Hawkins.[5] That was a case involving a projectile that had been thrown at a bicyclist from a moving, unidentified car.
[5] [2011] NSWCA 93.
Justice Hodgson in that case said at [34]:
“… to manoeuvre a motor vehicle, with the intention that the actual manoeuvring of the vehicle (say) by cutting in on a cyclist or unreasonably crowding a cyclist so as to harass and/or intimidate the cyclist and thereby to cause the cyclist to crash and be injured, would in my opinion clearly be fault in the use and operation of the vehicle causing the injury, and the injury would be a result of the driving of the vehicle, within the meaning of the definition of ‘injury’ in the MAC Act.” [emphasis added]
Justice Sackville said at [69]:
“The plurality in Allianz also said (at [102])) that the definition of injury looks to ‘notions of proximate cause’ found in insurance law (compare McHugh J's criticism of the use of ‘proximate cause’ as a criterion (at [54])). It can be seen from the judgment of Allsop P in McCarthy v St Paul International Insurance Co Ltd [2007] FCAFC 28, that the authorities have accepted that there can be more than one proximate cause of an event for the purposes of insurance law. His Honour gave as examples cases in which there were two causes of a loss which were ‘concurrent and interdependent in the sense that neither would have caused the loss without the other’ (at [97]).”
Ms Saunders’ accident occurred because she lost control of her bicycle as she moved off the roadway and mounted a driveway. In my view the evidence supports a finding that she mounted the driveway to avoid the yellow car travelling close to her on the roadway. There were therefore two causes “concurrent and interdependent” – her riding of the bicycle and the unidentified driver’s driving of the vehicle. Had the unidentified driver not been driving the way she was driving (close to the claimant in the same lane), the claimant would not have driven up onto the driveway and lost control of her bicycle.
I am satisfied that but for the actions of the driver the claimant would not have needed to take the evasive action that led to her losing control of her bicycle and this accident would not have happened.

Was the unidentified driver at fault?

Fault is defined in s 1.4 of the MAI Act as “negligence or any other tort.” There is no other relevant tort applicable to the facts and circumstances of this matter. Section 5 of the CL Act defines negligence as “a failure to exercise reasonable care and skill.”
I have found on the basis of the unchallenged evidence from the claimant that the furthest point of the unidentified yellow car (the edge of its wing mirror) was no more than 10cm from the furthest point of the claimant’s bicycle (the end of the handlebar).
As 10cm is less than one metre, I am satisfied that the driver of the unidentified vehicle was likely in breach of the road rules at the time. The driver of the yellow car was driving too close to the claimant, she was crowding, hemming in or pinning the claimant against the kerb and caused a dangerous situation requiring a response from the claimant.
While the insurer says at [22] of its submissions that the claimant’s actions put herself in a position of vulnerability, the driver of the unidentified vehicle put the claimant in a position of vulnerability and exposed her to the potential of a collision between the wing mirror and the handlebar.
In my view the driver of the unidentified vehicle failed to exercise reasonable care and skill and drive in a safe manner and at a safe distance from the claimant and was therefore negligent in the manner of her driving.

CONCLUSION

Is the claimant wholly at fault?

In an accident involving two protagonists such as this claimant and the unidentified driver of the yellow car, if there is some fault on the part of one of them, then the other cannot be found to be wholly at fault.
As I have found that the driver of the unidentified yellow vehicle was negligent, she must therefore be considered primarily at fault. As the driver was at fault, the claimant cannot be wholly at fault.

Is there any contributory negligence?

I have received no submissions from the insurer on the issue of whether there is any contributory negligence at all on the part of the claimant and, if so, the degree of that contributory negligence.
In my view a reasonable person in the position of the claimant, riding near the gutter on a bicycle with a vehicle within 10cm away from her right hand and handlebar would have taken precautions to avoid an accident with the vehicle. The claimant says she was pinned or hemmed in by the yellow car. It was reasonable for the claimant to be fearful of a possible collision with the yellow car because of its proximity to her and also because of the upcoming intersection. The claimant was required to make a split-second decision and one of the options was to get up onto the footpath and away from the car on the roadway. The claimant did that by attempting to mount the two-inch lip of the driveway and in doing so came to grief.
I am not satisfied that there is any contributory negligence on the part of the claimant.

Assessment of costs

The claimant seeks costs in respect of the proceedings. The claimant originally sought the costs of two disputes but now seeks the regulated sum for each of the three declared claims assessment matters in Schedule 2(3)(d), (e) and (g) of the MAI Act. While the claimant submits the available costs for each dispute is $1,920, I note the sum of costs available is actually $1,919 (16 monetary units multiplied by the current monetary unit of $119.96 rounded to the nearest dollar in accordance with Schedule 3(3) of the Regulation).
The insurer has not provided me with any submissions in respect of costs or indicated that they agree with the claimant’s submission.
The insurer’s submissions in support of the reply as confirmed in June 2024 required the only question for me to determine was whether the claimant was wholly at fault. As a result, I did not have to consider s 3.38 of the MAI Act and the issue of contributory negligence. However, the insurer’s original decision and its internal review decision required the claimant to address both primary negligence and contributory negligence. The claimant’s submissions did not specifically address contributory negligence and while the claimant’s final submissions did address the issue of contributory negligence this was after the insurer had confirmed that the only issue was primary negligence or fault.
In my view the claimant should be permitted to recover the costs of the two disputes only (MAI Act Schedule 2(3)(d) and (e)). The claimant’s submissions are extensive and the claimant’s solicitor’s attendance at the preliminary conference was necessary and helpful. In my view the maximum sum allowed by the Regulation should be allowed, which is the sum of $3,838 plus GST.

[2024] NSWPIC 395

25 July 2024