CERTIFICATE OF DETERMINATION OF MEMBER  	
	
Citation:	Allianz Australia Insurance Limited v Al Diwana [2024] NSWPIC 614	
		
Claimant:	Faris Danial Eshaq Al Diwana	
		
insurer:	Allianz Australia Insurance Limited	
		
Member:	Belinda Cassidy	
		
DATE OF DECISION:	4 November 2024	
		
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; claimant’s application for miscellaneous claims assessment of whether, under section 3.11, he was wholly or mostly at fault; claimant rode bicycle onto pedestrian crossing in heavy traffic; insured motor vehicle rolled onto pedestrian crossing and collision occurred; parties agreed to on the papers assessment; Insurance Australia Limited t/as NRMA v Richards referred to in regards to onus of proof; AAI Limited t/as GIO v Evic followed with respect to approach to determining whether claimant wholly or mostly at fault; Allianz Australia Insurance Limited v Shuk followed in regards to apportionment of culpability; findings made that both claimant and insured riding or driving no more than 10 kmph; claimant knew traffic was banked up and knew insured was there; member not satisfied claimant stopped before crossing and that front of insured vehicle hit the claimant’s front wheel; Held – claimant departed from the standard of care; insured driver breached her duty of care; relative culpability assessed equally; as claimant’s contributory negligence was assessed at 50% he was not wholly or mostly at fault.
	
determinations made:	CERTIFICATE
In accordance with Division 7.6 of the Motor Accident Injuries Act 2017, the Commission’s assessment is:
1.	As referred to in s 3.38 of the Act, the claimant’s contributory negligence is assessed at 50%.
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 $2,191.20 inclusive of GST.

STATEMENT OF REASONS
Introduction
Background to the dispute
1.	Faris Al Diwana was involved in a motor accident on 25 April 2023. He was riding a bicycle on Luxford Road, Mount Druitt and rode across a pedestrian crossing when he was hit by a motor car and fell over.
2.	Mr Al Diwana says he injured his head, left leg and lower back in the accident and developed a psychological injury following the accident. On or about 24 November 2023, Mr Al Diwana made a claim for statutory benefits under the Motor Accident Injuries Act 2017 (the MAI Act). The claim was made against Allianz the third-party insurer of the motor vehicle Mr Al Diwana says caused the accident.
3.	On 23 February 2024, the insurer wrote a letter to the claimant entitled “Liability decision – benefits after 52 weeks from accident date”. Allianz told Mr Al Diwana that Allianz has assessed his claim and decided not to accept payment for his statutory benefits because the claim was made late and advised him it had rejected the claim because Allianz considers he was wholly at fault and his injuries were threshold injuries.
4.	The claimant sought an internal review of that decision in accordance with Division 7.3 of the MAI Act. On 11 April 2024 a decision was issued by Allianz affirming its original decision that according to Allianz Mr Al Diwana was wholly at fault.
5.	On 29 May 2024, the claimant referred the issue of whether he was 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.
6.	The proceedings have been allocated to me. I conducted a preliminary (telephone) conference on 26 June 2024, requested additional documents and set a timetable for the assessment of the dispute on the papers. The timetable was varied at an additional preliminary (telephone) conference on 23 August 2024.
Insurer’s decision-making
7.	The insurer has written other letters to the claimant about his claim for statutory benefits:
(a)	on 1 December 2023 the insurer requested a full and satisfactory explanation for the delay in lodging the claim as it was made more than three months after the date of the accident, and
(b)	on 18 December 2023 the insurer issued a liability notice to the claimant denying any liability to pay ongoing statutory benefits to the claimant on the basis that:
(i)	the claim was late, and no explanation had been provided;
(ii)	the claimant was wholly at fault, and
(iii)	the claimant’s injuries were threshold injuries.
8.	The claimant provided an explanation for the delay in lodging the claim form and provided a statement to the insurer on or about 13 March 2024. The internal review decision of 
11 April 2024 (referred to in 4 above) does not mention the late claim. Ms Allen for the insurer confirmed at the second preliminary conference that the claimant’s explanation had been accepted and there was no longer a dispute between the parties about the late claim.
9.	A dispute about threshold injury has been referred to the Commission for medical assessment but has not yet been determined.
Legislative Framework
10.	The claim that is before me is Mr Al Diwana’s claim for statutory benefits under Part 3 of the MAI Act. 
11.	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.
12.	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. 
13.	A motor accident is considered to be caused “mostly by the fault” of a person if their contributory negligence is assessed as greater than 61%.
14.	The parties agree that Schedule 2, cl 3 provides the Commission with jurisdiction to determine whether Mr Al Diwana is wholly or mostly at fault in respect of his treatment and care benefits (Schedule 2, cl 3(e)).
15.	As Mr Al Diwana was not working at the time of the accident and was not therefore an “earner” he has no entitlement to weekly benefits and therefore there is no dispute under Schedule 2, cl 3(d) or Schedule 2, cl 3(g). 
Submissions
Claimant’s submissions
16.	The claimant has provided submissions dated 24 May 2024 dealing with both the threshold injury dispute and the liability dispute. The submissions in relation to the medical dispute will not be canvassed here.
17.	The claimant notes at 5.1 that the insurer relies on the police records and a statement from its insured and submits at 5.2 and 5.3 that the police officer who completed the report did not witness the accident and because of the claimant’s limited English skills, the version of events recorded in the police report is of limited value.
18.	The claimant submits at 5.4 that none of the pages of the insured’s statement have been signed and that the details of the insured have been redacted and therefore the claimant cannot verify that it was the insured who completed the statement.
19.	The claimant submits at 5.5 that the documents the insurer relies on are not contemporaneous or independent and cannot be relied upon.
20.	In terms of the substance of the matter, the claimant says:
(a)	the driver had an obligation to look out for pedestrians and to not queue across the pedestrian crossing [5.6];
(b)	the insured had a prior history of traffic offences [5.7];
(c)	if traffic was queued, the insured driver should not have blocked the pedestrian crossing, and
(d)	even if the claimant had failed to dismount and walk across the crossing, the insured “initiated the necessary conditions for the collision, rather than the Claimant.” [5.8].
Insurer’s submissions
21.	The insurer in its original submissions summarises the evidence and then outlines the legal principles as stated by Meagher JA in Marien v Gardiner (2013) NSWCA 396:
(a)	the driver of a motor vehicle owes a duty to other users of the road (including pedestrians) to take reasonable care for their safety having regard to the circumstances of the particular case;
(b)	the standard of ‘reasonable care’ is an objective and impersonal one;
(c)	whether there is a breach of that duty is addressed prospectively by reference to what a reasonable driver in the position of the insured would have done;
(d)	the test is not approached by asking if alternative conduct could have produced a different outcome, and
(e)	a driver is not required to know or predict every event or be in a position to react to everything which may happen in the vicinity.
22.	The insurer says it is not clear but that the claimant appears to have been travelling in the same direction as the insured then moved onto the footpath and crossed the pedestrian crossing and that riding a bicycle on a pedestrian crossing is a breach of the road rules [5].
23.	The insurer says that:
“a combination of the claimant’s actions, including illegally riding his bicycle on the pedestrian footpath and entering the pedestrian crossing without stopping to get off his bike, check that it was safe to cross … and to walk across the crossing, was the sole and primary cause of the claimant’s injuries.”
24.	The insurer appears to be arguing the claimant is wholly at fault but in the second paragraph of the submissions under the heading “background” appears to submit in the alternative that the claimant is mostly at fault.
Preliminary conferences 
25.	There was no appearance on 26 June 2024 at the first preliminary conference by the claimant or his representative. Ms Allen appeared for the insurer.
26.	After confirming that the insurer was arguing that the claimant was wholly at fault or in the alternative mostly at fault, I indicated there was additional documentation and information I required:
(a)	a further statement from the claimant with any photographs of his bike and a sketch plan of the accident;
(b)	a copy of the claimant’s original statement;
(c)	the insurer’s liability notice dated 23 February 2024, and
(d)	further information from the insured driver including her dashboard camera (dash cam) footage, photographs and a signed statement from her.
27.	Additional material was provided.
28.	At the second preliminary conference on 23 August 2024, the insurer confirmed there was no late claim issue. The issue of costs was addressed. The claimant’s solicitor said that he marked up the aerial photograph but had made an error. Directions were issued for the hospital notes, police records and final submissions from the parties.
Final submissions
29.	The claimant’s final submissions dated 10 October 2024 argue:
(a)	there were two vehicles stationary at the pedestrian crossing one in each of the two lanes [2];
(b)	the claimant did not hit the side of the insured’s vehicle but he was in front of the vehicle at the time which I supported by the body cam footage [3];
(c)	the claimant’s bicycle is in full view and clearly shows bends to both tyres [4], and
(d)	the views of the bicycle confirm the claimant’s evidence that the insured driver ran over both tyres which contradicts her evidence that he ran into her [5].
Insurer’s final submissions
30.	The insurer filed final submissions dated 22 October 2024 and says:
(a)	while there was only minor damage to the claimant’s rear wheel, the more significant damage is to the front wheel and that there was “a bit of damage I think to the bottom left” of the insured vehicle supported by the photographs [3];
(b)	it accepts the claimant’s diagram and his direction of travel [5], and
(c)	the evidence supports the impact to the insured vehicle was to the left front and that the claimant was wholly or mostly at fault.
Review of the Evidence
Claim form and claim documents
31.	Mr Al Diwani’s claim form discloses:
(a)	he was 65 at the time of the accident and is now 66;
(b)	he has never made a motor accident claim before and had no relevant medical conditions or previous injuries or accidents;
(c)	the accident occurred at about 1.30pm on 25 April 2023;
(d)	the driver of the vehicle that hit him accidentally hit the accelerator, and then hit him causing him to fall over;
(e)	he was taken by ambulance to Westmead Hospital, and
(f)	he was not employed at the time of the accident and was in receipt of Job Seeker Centrelink benefits.
32.	Dr Hanna completed the certificate of fitness and capacity on 19 October 2023. He diagnosed “post-traumatic stress disorder, knee and back pain with radiation to lower legs and radiculopathy”. Dr Hanna says the claimant first attended on 17 April 2023 and there are no pre-existing relevant factors. He says that the claimant would need treatment for six months including “psychiatrist, psychologist, physiotherapy, surgeon as required”. He certified the claimant had no capacity for work.
33.	A further certificate of fitness was dated 21 March 2024 with Dr Hanna noting:
“Ongoing lower back pain and knee pain, 
Worsening headaches – regular analgesia and imaging referral, 
Worsening mood / depression / anxiety – psychologist referral provided.”
Claimant’s statements
34.	The claimant provided a statement dated 13 March 2024 in support of his late claim. Relevantly to the current dispute he says:
(a)	he arrived in Australia in 2016, moved to Sydney in 2020 and he speaks no English;
(b)	he was wearing “an accredited bike helmet”;
(c)	the at fault vehicle was stationary but as he proceeded across the second half of the crossing, “the vehicle accidentally accelerated and hit me”. He said he fell over;
(d)	he made a mistake on the claim form about the date of the accident (he thought it was 25 April 2023);
(e)	he injured his back, knees, head, neck and both shoulders;
(f)	he saw his general practitioner (GP), Dr Meriam Hanna on 17 April 2023 and he was referred to a psychologist and psychiatrist and she recommended he see a lawyer. He did not know he was entitled to make a claim;
(g)	on 24 April 2023 Dr Hanna rang the driver and spoke with her in English;
(h)	on 8 May 2023 he saw Dr Hanna again and he thinks Dr Hanna contacted the driver again and they spoke in English, and
(i)	on 22 May 2023 he saw Dr Hanna again and she repeated her advice for him to see a lawyer.
35.	Mr Al Diwana gave a second statement dated 2 August 2024 and says:
(a)	he was familiar with the area having travelled there on a daily basis [7];
(b)	he was riding his bike at no more than 10 kmph across the crossing on Luxford Road after leaving his home to do some shopping;
(c)	he crossed from the Semana Street side (of Luxford Road) to the direction of the Mount Druitt Public School (the other side of Luxford Road) [10];
(d)	traffic was busy with a queue of traffic “banked up” leading to the crossing [11];
(e)	he was hit by the insured and fell over. He says the insured ran over both wheels of his bicycle and damaged the rims of the wheels. He says the impact was from the front of her vehicle into the side of his bicycle [12];
(f)	he had little opportunity to communicate with the driver “as soon as an ambulance arrived, I was taken to hospital straight away” [16], and
(g)	he did not collect his bike or take a photo of it but says it was “significantly damaged” and that he believed the driver had gone over both wheels [17].
36.	On 9 October 2024, Mr Al Diwana marked up an aerial photograph of the scene indicating:
(a)	he left his home and rode in a westerly direction along Luxford Road towards Belmore Road on the northern side of the road [10];
(b)	the claimant appears to have been riding on the footpath;
(c)	he crossed Belmore Avenue, riding across the pedestrian crossing to the Western side of the road. That pedestrian crossing appears to be further back from the intersection and roundabout that the one where the accident happened;
(d)	he came around the corner on the footpath and rode across the pedestrian crossing in Luxford Road. This pedestrian crossing appears to be closer to the corner than the other crossing;
(e)	there was a vehicle stopped at the pedestrian crossing in the left lane, and
(f)	the insured driver was next to that stationary vehicle in the second lane.
Ambulance and hospital
37.	The call to emergency services was received at 1.16pm on Saturday 15 April 2023.
38.	The Ambulance reports the claimant was a cyclist wearing a helmet which was not damaged. It was said he did not speak English, and that a crowd of friends and family were present. Ambulance confirm he was difficult to assess. It was reported that Mr Al Diwana was hit on the left side and fell to the right and had right hip pain, right leg pain and left sided neck pain. On examination he was alert and appeared oriented, speaking Arabic in full sentences. His Glasgow Coma Scale (GCS) was 15 and neurologically he was normal.
39.	Westmead Hospital notes include the discharge summary. The claimant was admitted at 2.50pm and discharged at close to 10.00pm on the day of the accident. He was investigated with multiple scans but there was no sign of injury. There were incidental unrelated findings in the liver and thyroid. Paracetamol and ibuprofen were recommended for pain relief.
40.	The history given was of the claimant riding his bike across a crossing when his front tyre was hit by a car at 20 kmph and he fell off.
41.	The Emergency Department records note the claimant’s sons were translating and that he was riding his pushbike when the front wheel was hit by a car travelling at 20 – 30 kmph and that the, “Bike [was] significantly deformed. Patient fell off sideways. Wearing helmet, helmet intact, nil LOC, remembers all events”.
Police
42.	The police report notes the accident occurred on a main road, the weather was fine, and it was daylight and dry. The crash summary details were:
“… vehicle 2 … was stationary at the pedestrian crossing at the roundabout on Luxford x Belmore Road, Mount Druitt, in traffic … While the traffic had moved vehicle 2 started moving forward when the bicyclist who started riding his bike along the roadway via the crossing has ran [sic] into the front passenger’s side of the vehicle as the vehicle started moving forward at slow speed.”
43.	Police have provided records in answer to a direction for production. These include:
(a)	the name of the informant who rang at 1.17pm, the mobile phone number of the informant and that the information had driven away [page 7];
(b)	the insured driver’s statement was given to the police later at the station [page 9];
(c)	the insured driver had been driving for seven years and eight months;
(d)	there were difficulties with communication due to the presence of the claimant’s family and the police were unable to obtain a statement from him [page 10];
(e)	the claimant’s next of kin confirmed at around 10.15 pm on the day of the accident that “the bicyclist did not have any injuries however he would see his doctor in the coming days”. The next of kin advised police he would be speaking to a lawyer and wanted the green slip details of the driver [page 10];
(f)	the police contacted the next of kin to have the claimant attend the police station and provide a version of events however he did not attend [page 11], and
(g)	the police diagram drawn on 17 April 2023 is consistent with the claimant’s marked up photograph but has the point of impact on the very front passenger side “corner” of the car [page 24].
44.	A statement from the insured driver is recorded in the police officer’s notebook (page 20) and was taken on 27 April 2023. She says:
“I was coming up to the pedestrian crossing. I was going very, very slow as there a bit of traffic. My nose of my car would have been in the middle of the pedestrian crossing not even 10 kmph. I looked both way before proceeding and he hit the side of the passenger right where the side mirror of the car is.
I slammed the foot on my brake. He was up on his bike while he was looking at me then he fell over.
Straight away I got out of the car and put it in park. I kept trying to talk to him to help and call someone but all he kept saying was ‘teach you a lesson’.”
45.	In answer to a question about her speed, the driver then says no more than 15 kmph probably 10 kmph as “I had just taken off.”
46.	In answer to a question about when she had first seen him, she said “when he had hit my car.”
47.	In answer to a question about damage to her car she said there was none, but that before the accident there was damage to “the front bumper and scratch on the front side but he did not damage.”
48.	The driver also said, “I have dashcam footage which I can provide you which is from the front and can see him hit my car.”
49.	The police took three photographs of the insured driver’s car (before she had given her statement and therefore before they knew about the previous damage). The first is a photo of the back of the car and the other two are of the front of the car showing damage to the bumper bar on the very front passenger side corner of the car. There is no photograph of the side of the car where the driver says the claimant impacted her car.
50.	The body worn camera (body cam) footage shows the bicycle on the ground. The voice of the male police officer suggests a photograph was taken of the bike by the female police officer, but it has not been provided. The video footage suggests both wheels of the claimant’s bicycle apparently damaged. It is difficult to see which wheel is worse. The insured driver does not appear to be present at this time and three other persons are present talking with, and assisting the claimant. The police officer appears to be frustrated with the time it was taking for the claimant (and the people with him) to decide whether he would be taken to hospital by the ambulance or taken home or to the hospital with his family.
51.	When the claimant decided to go in the ambulance, the police officer queried whether a member of his family should go to, to help with translation however the ambulance personnel advised that would not be necessary as the hospital has translators available.
Procare report, statements from police and insured
52.	Allianz engaged Procare to investigate the accident and a copy of the report dated 
31 January 2024 has been provided. It includes the following:
(a)	the insured may have had dash-cam footage but cannot now retrieve it;
(b)	the claimant declined to provide a statement, so a questionnaire was provided but this has not been completed;
(c)	the police officer has been interviewed;
(d)	no witnesses were identified, and
(e)	photographs were taken of the scene.
53.	The photographs of the scene show the corner where the accident occurred (photographs 3 and 15 in particular). There is a house on the corner in an elevated position and there is a fence around that house and a garden with no tall trees but some shrubs. The fence is both brick and metal railings. There is a foot path around the boundary of the house and its garden. 
54.	The insured provided a statement on 24 February 2024 which was signed and dated. She was 24 at the time she wrote the statement. She said at [7] – [9] has had two previous accidents and two traffic offences in 2016 when on her red “P” plates.
55.	At the time of the accident, she was driving a red Kia Station wagon that was relatively new with no mechanical issues [10] – [11].
56.	She was driving east in Luxton Road near Belmore Avenue and had to slow down and stop due to traffic in front of her waiting to get into the roundabout [13]. She describes the traffic as “bumper to bumper.” As the cars in front of her moved forwards she moved ahead by removing her foot from the brake until there was just one car in front of her. She says the car in front of her had its rear end on the crossing and she moved forward [14].
57.	She says she approached the crossing and looked left. There was no one waiting to cross. She said “suddenly, the left front wheel of my car was impact by a bike rider.” She assumed he was travelling East and had been at the back of her vehicle because she had not seen him [16].
58.	She says that the claimant’s three sons arrived and were aggressive and that the police requested she leave the scene and attend the station to give a statement later [21]. She says the claimant’s bicycle had a “slightly bent front wheel” and that she was hardly moving when the accident occurred [24]. She says after the accident she was called “multiple times by the doctor caring for the bike rider” who sought personal information which she refused to provide [26].
59.	The insured gave a further short statement dated 24 July 2024. She says:
(a)	she was travelling in the centre of two lanes, closest to the median strip [4];
(b)	before she crossed the pedestrian crossing, she looked left and there was no one waiting and that the vehicle to her left proceeded across the crossing [5];
(c)	“At that point, I had just entered the pedestrian crossing and estimate that the front of my bonnet and wheels were positioned across the beginning of the crossing”; 
(d)	she was travelling “exceptionally slowly” due to the traffic [6]; 
(e)	she had taken her foot of the brake and was rolling forward slowly when she felt an impact from the left-hand side of her vehicle [6];
(f)	she stopped immediately and was half-way across the crossing with one third of her car on the crossing [8] and [9], and
(g)	her vehicle sustained very minor damage to the passenger side behind the front passenger wheel which is so faint it cannot be seen on photographs [10].
60.	She details the attempts she has made to download the dashcam footage but says she has been unable to do so [11].
61.	Leading Senior Constable David Grocholsky provided a statement on 12 January 2024 to the insurer’s investigator. In it he says at [10] he turned up about seven minutes after the call was logged. At [12] he explains the circumstances of the accident:
(a)	the claimant was lying in the gutter and his bike was on the footpath;
(b)	the front wheel of the bike was “slightly twisted”;
(c)	the driver was trying to provide assistance, the claimant was being difficult saying “you are going to pay”;
(d)	the driver had phoned a friend who spoke Arabic and got him to talk to the claimant, but the claimant kept repeating the phrase “you are going to pay”;
(e)	the traffic was bumper to bumper and there was a major hold up at the roundabout;
(f)	the driver was partly onto the crossing as was the rear of the car in front of her;
(g)	three of the claimant’s sons arrived and they were “very aggressive, constantly making demands and their behaviour was somewhat threatening” and he asked the driver to leave the scene and return to the station to make a statement;
(h)	the claimant was difficult with the Ambulance personnel;
(i)	the ambulance officer noted the claimant had a superficial graze on his right leg was taken to hospital and discharged;
(j)	the driver attended on 27 April 2023 and made a statement, and
(k)	the claimant did not attend.
62.	The police officer’s conclusion is reported as follows:
“Based on the evidence before me, the bike rider, whilst still mounted, had attempted to cross the pedestrian crossing between the two cars in the queue, waiting to enter the roundabout. Since the cars would have been hardly moving, and the damage I saw to the front wheel, he would have hit the car on the front LHS at reasonable speed. I saw no damage to the vehicle ...”
FINDINGS OF FACT
The approach to be taken
63.	Section 3.28 of the MAI Act is as follows:
“(1) 	An injured person is not entitled to statutory benefits under this Division for treatment and care expenses incurred more than 52 weeks after the motor accident concerned if—
(a) 	the motor accident was caused wholly or mostly by the fault of the person …, or
(b) 	the person’s only injuries resulting from the motor accident were threshold injuries.
(2) 	A motor accident was caused mostly by the fault of a person if the contributory negligence of the person in relation to the motor accident (as referred to in section 3.38) was greater than 61%.”
64.	Insurance Australia Limited t/as NRMA v Richards establishes that the onus of proof in satisfying me whether the claimant is “wholly or mostly at fault” lies with the insurer. 
65.	Justice Mitchelmore in the recent decision of AAI Limited t/as GIO v Evic, undertook the exercise of interpreting these sections and how they are to apply in a single vehicle accident. 
66.	In the course of her reasons, Justice Mitchelmore said the following:
(a)	an injured person’s entitlement to benefits “does not depend on establishing the fault of a person … The injured person does not need to prove anyone was at fault for the motor accident, in order to obtain benefits under Part 3” [55];
(b)	leaving aside any issue of threshold injury, statutory benefits continue or cease pursuant to ss 3.11 and 3.28 if the injured person is wholly or mostly at fault. “The qualifiers ‘wholly or mostly’ inform each other and are intended to address the same mischief, namely, contributory negligence” [56];
(c)	sections 3.11 and 3.28 “are directed at the extent to which the injured person’s failure to take reasonable care contributed to the motor accident.” That is the contributory negligence relevant to the accident (not the injury) and accommodates “all types of motor accidents including single vehicle accidents where the injured person is the owner driver” [57];
(d)	section 3.38 requires the enacted law of contributory negligence to be applied and includes the test for negligence and contributory negligence as set out in s 5R(2)(a) of the Civil Liability Act 2002 which 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];
(e)	where there is more than one motor vehicle involved, or the claimant is a pedestrian her Honour noted that s 3.11 and s 3.28 accommodates an assessment of the claimant’s contributory negligence by the usual method of the apportionment of culpability between the two protagonists as per Podrebersek v Australian Iron and Steel Pty Limited and as applied by Basten AJ in Allianz Australia Insurance Limited v Shuk at [61];
(f)	in a single vehicle motor accident, contributory negligence for the motor accident can still apply and “the inability to balance relative culpability and causal responsibility does not preclude an assessment of contributory negligence” [69];
(g)	the composite phrase in the legislation “caused wholly or mostly by the fault of the person” is “directed at an enquiry as to the injured person’s contributory negligence for the motor accident, irrespective of the number of motor vehicles involved and how the claimant came to be injured,” and
(h)	if there is some contributory negligence found on the part of the claimant, then s 3.38(3)(c) directs the next step is to assess the degree of contributory negligence that is “just and equitable in the circumstances of the case” [73].
67.	As the current claim involves two persons (Allianz’s insured and Mr Al Diwana) the approach to assessing whether Mr Al Diwana is “wholly or mostly at fault” is in my view to be approached by:
(a)	determining whether the claimant departed from the standard of care of a reasonable person in the position of the claimant, and if so how;
(b)	if I am satisfied that the claimant did depart from the standard of care, then did the insured driver depart from the standard of care and if so how, and
(c)	the claimant’s contribution to the cause of the accident is assessed by comparing the relevant culpability of the claimant and the insured driver. 
68.	In order to evaluate the claimant’s departure from the standard of care of the reasonable person and determine whether the insured driver departed from the standard of care she owed to the claimant, I must make findings as to the relevant facts. As Basten JA said in Shuk at [32] “Without a proper finding as to breach of duty, the proportionate culpability of each cannot be assessed....”
Findings of fact
69.	The courts have made it clear that factual findings must be supported by logical, probative evidence. Any inferences that are drawn must be reasonably open on the facts Australian Broadcasting Tribunal v Bond.
70.	There is no dispute between the parties as to the following facts:
(a)	there was a lot of traffic. The claimant refers to it being banked up and the insured refers to it being “bumper to bumper”;
(b)	the claimant rode his bicycle across a pedestrian crossing;
(c)	the insured driver was stationary at that pedestrian crossing in the right-hand lane of two lanes;
(d)	the claimant approached from her left, and
(e)	there was a collision, and the claimant fell to the ground.
71.	The claimant has taken issue with the absence of the insured’s dash cam footage. The claimant offered to show it to the police and tried to download it for the insurer’s investigator but could not. I accept her evidence on this point and do not draw any inference from her failure to provide the dash cam footage. The driver’s statement to the police suggests she had looked at it and that it showed the claimant’s bicycle hitting her car. In the absence of specific and direct evidence from her about this, I do not propose to use that part of her statement to the police as evidence of how this accident occurred.
72.	The claimant has submitted that the insured driver’s prior traffic record is relevant. I am aware of the provisions of the Evidence Act 1995 concerning the admission of propensity and tendency evidence. I am not bound to apply the rules of evidence. I do not accept that a person with a nearly eight year driving record and two accidents and two traffic offences in 2016 while on her red “P”s has a disposition to drive in a particular way and certainly not without further evidence as to where she drives and how often. 
How fast were the claimant and the insured travelling?
73.	The uncontested evidence of the claimant is he was riding at no more than 10 kmph across the crossing.
74.	The insured driver’s evidence is that she was driving at no more than 10 kmph having taken her foot off the brake when the car in front of her began moving and she was rolling forward.
75.	The claimant’s claim form and statement suggest the insured driver “accidentally hit the accelerator”. The insured driver has not given evidence to that effect and the claimant could not have seen her hit the accelerator. In my view this evidence from the claimant is his opinion or guess as to what she did. I do not accept that the insured accidentally hit the accelerator and that she had taken her foot off the brake and was rolling forward.
76.	In the absence of expert evidence as to speed, I accept the evidence of speed given by the claimant and the insured driver. Noting that both the claimant and the insured driver have said in their statements that there was heavy traffic a speed of up to 10 kmph appears likely.
Who was keeping a proper lookout?
77.	The insured told the police and the investigator that she looked but did not see the claimant. There is no expert evidence which would assist me in assessing the insured’s ability to see the claimant as he approached on his bicycle at a fast than walking pace around a corner.
78.	Mr Al Diwana knew the traffic was heavy and “banked up” at the crossing and his marked-up photograph shows he was aware there were two vehicles stationary at the pedestrian crossing.
79.	He said in his first statement that he was aware the insured vehicle was stationary at the crossing. I am satisfied on the basis of that evidence that the claimant could see the insured.
80.	At 10 kmph, the claimant on a bicycle is travelling faster than a person on foot. The insured driver said she was not expecting to encounter a bicyclist on the pedestrian crossing and the speed of the claimant may be relevant to why she did not see him before impact.
81.	At no stage in any of the statements or evidence given by the claimant does he mention stopping before riding onto the crossing. He says he was riding at no more than 10kmph and rode onto the crossing. I do not accept he could be riding on the crossing at up to 10 kmph if he had completely stopped before riding onto the crossing. In my view I consider it reasonable to draw an inference that the claimant came around the corner at no more than 10 kmph and, having seen the built-up traffic drove straight onto the pedestrian crossing without stopping.
Who hit who and what caused this accident?
82.	I accept that the photographs taken by the police of the insured vehicle show damage to the front bumper bar and a scratch on the passenger side corner of that bumper bar. However, on the basis of the content of the police notebook and the driver’s statement that this damage was pre-existing I do not accept that this damage was caused by the accident. I do not accept any of the police evidence about damage to the insured vehicle again on the basis that the damage they were aware of appears to be pre-existing.
83.	I accept that there was damage to the claimant’s bicycle and that there was damage to both the front and the rear wheel on the basis of the vision from the body-cam footage. 
84.	The claimant suggests that the insured driver ran over both wheels of his bicycle. In my view, the damage to the claimant’s bicycle could have been caused by it impacting the side of the insured vehicle or it could also have been inflicted by the insured vehicle hitting the front part of it. The damage to the rear could have been caused by an impact with the vehicle or it could have been caused when the claimant fell. If, as the claimant suggests, the insured hit the claimant front on, knocked the claimant sideways and then rode over the bicycle, the insured would likely have run over some part of the claimant’s body and there is no evidence of that. 
85.	Appellate courts in cases such as Blacktown City Council v Hocking have issued warnings to first instance decision makers as to how photographs are to be used in the absence of expert evidence. In the absence of expert evidence in this case, I am of the view I cannot draw an inference as to precisely how all of the damage to the bicycle occurred.
86.	In my view the best evidence of the actual collision is contained within the hospital notes. There, in two places is a history taken (with one of the claimant’s sons translating) that the claimant’s front tyre or front wheel was hit by a car. 
87.	On the basis of that history and the statements of both the claimant and the insured driver, I am satisfied that:
(a)	the claimant rode onto the crossing without stopping;
(b)	the insured vehicle hit the claimant’s front wheel at low speed which caused the claimant to fall over;
(c)	at the time of the collision, the claimant was on the crossing partly into the second lane but not fully in the lane and not fully in front of the insured vehicle, and
(d)	the insured vehicle was half way across the crossing with the front third of her vehicle on the crossing.
CONSIDERATION OF THE ISSUES
Did the claimant depart from the standard of care and if so how?
88.	The insurer submits, and the claimant does not dispute it, that it is against the road rules to ride a bicycle across a pedestrian crossing. In Vukovic v Rizk then President of the Court of Appeal, Justice Kirby said this about pedestrian crossings:
“The obligation of the regulation in respect of a marked foot crossing is for the driver of the motor vehicle to lessen speed or stop the vehicle to allow a pedestrian to pass in front of the vehicle. The regulation assumes that the pedestrian is “walking upon”, not running over the crossing. Furthermore, it is designed to protect pedestrians who are and remain within the pedestrian crossing. That is why the crossing is marked. It is a pedestrian’s sanctuary. The sanctuary may not be rigid. It may extend a little beyond the actual markings on the road. But the regulation does not exist to protect pedestrians who depart from the crossing darting across a busy highway running into the side of vehicles which have left the crossing and are proceeding on a road where drivers can expect that pedestrians will take some care for their own safety.”
89.	In my view the claimant has departed from the standard of care expected of a reasonable person in his position for the following reasons:
(a)	a reasonable person would not have ridden around a corner and across the crossing without having stopped to check it was safe to cross, and
(b)	a reasonable person having observed there was heavy traffic and two vehicles stopped at the pedestrian crossing would have taken extra care to ensure it was safe before crossing the road.
90.	While a pedestrian crossing may be a sanctuary for pedestrians, it is not a sanctuary surrounded by an impenetrable forcefield. Those using a pedestrian crossing cannot expect that all drivers at all times will respect the boundaries of the sanctuary and users of pedestrian crossings should take care to ensure it is safe before leaving the kerb. In my view a reasonable person in the position of the claimant would have dismounted before crossing the road and would not have ridden across the crossing.
Did the insured driver depart from the standard of care and if so how?
91.	In my view the insured driver has departed from the standard of a care expected of a reasonable person in her position and breached her duty of care to the claimant for the following reasons:
(a)	a reasonable person driving a car in bumper to bumper traffic would have taken extra care when approaching a pedestrian crossing particular with a car to her left and a car in front, and
(b)	a reasonable person would not have moved onto the pedestrian crossing in the circumstances.
What is the degree of the claimant’s contributory negligence? 
92.	As has been said above, the claimant’s contribution to the cause of the accident is assessed by comparing the relevant culpability of the claimant and the insured driver. 
93.	In my view the claimant and the insured driver are equally responsible. The driver of the car was approaching the crossing, took her foot off the brake and moved slowly forward in traffic when the claimant must have been on, or closely to, the crossing. However, the claimant should not have been riding on the crossing and shows have at least stopped before crossing the road.
conclusion
94.	Having decided the claimant was contributorily negligent and the degree of his contributory negligence is 50%, it follows that the claimant is not wholly or mostly at fault.
95.	The claimant sought costs on both the regulated basis and with an additional $3,500 on the exceptional costs basis pursuant to s 8.10 of the MAI Act.
96.	This matter is not an exceptional matter. It was a relatively straightforward dispute about fault. The claimant’s solicitor has dealt with the internal review, completed the application form, drafted submissions and additional submissions. But the claimant’s solicitor failed to attend the first preliminary conference and marked up the first aerial photograph making an error in the process and both of these things somewhat prolonged the proceedings.
97.	I am not satisfied exceptional costs should be awarded and allow the sum permitted by the Motor Accident Injuries Regulation 2017 for the declared miscellaneous claims assessment matter under Schedule 2, cl 3(e) of the MAI Act. This is the sum of 16 monetary units which is the sum of $1,992, to which should be added an amount for GST.