Bicyclist Found Wholly at Fault

In Brief

• In most-at-fault disputes, the Insured carries the onus of proof.
• The sole issue is whether the Claimant’s contributory negligence exceeds 61%.
• Where two parties are involved, a comparison is required of each party’s relative culpability.

Facts

The Personal Injury Commission (PIC) published its decision in Mitchell v Allianz Australia Insurance Limited [2025] NSWPIC 378 on 22 August 2025.

On 18 September 2024, the Claimant – an 80-year-old male – was riding his bicycle in Five Dock. He attempted to use a marked bicycle crossing in order to cross Lyons Road West when he was run down by the Insured vehicle. He sustained serious injuries including a fractured pelvis, a shattered right ankle and a broken femur which necessitated a hip replacement.

A photograph depicted where the Insured vehicle came to a halt. The photograph confirmed that the Insured vehicle was within the westbound lane of Lyons Road West with its passenger-side tyre on the line which marked the southern boundary of the carriageway.

The Insurer served a Liability Notice denying liability for ongoing statutory benefits beyond 52 weeks on the grounds that the Claimant was wholly or mostly at fault for the accident. That decision was affirmed on Internal Review.

The Claimant lodged a Miscellaneous Assessment in the Commission to resolve the dispute.

The Member’s Decision

The PIC Member concluded that the Insurer had discharged its onus of proof that the Claimant was wholly or mostly at fault for the following reasons:

• The Insured driver was entitled to assume that the Claimant would see his vehicle and not begin to cross the carriageway until the Insured had passed.
• Whether the Claimant emerged onto the carriageway at high speed (as the Insured alleged) or if he was inching forward (as the Claimant alleged), the Claimant created an emergency situation by emerging onto the road into the path of the Insured vehicle.
• The Insured could not have avoided a collision with the Insured even with the exercise of reasonable care.

Why This Case is Important

In coming to their conclusion, the PIC Member applied the Supreme Court decision in AAI Limited t/as GIO v Evic [2024] NSWSC 1272. The PIC Member summarised the principles emerging from Evic, at [14], as follows:

“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:

• 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 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 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).”

It is unclear, however, whether the PIC Member applied the fourth bullet (on the basis that there were two parties involved) or whether they applied the last two bullet points (on the basis that the Insured vehicle was the only vehicle involved and any fault by the Claimant was non-tortious because his bicycle was not capable of causing injury to the Insured). If the former, the assessment of contributory negligence was based on the relative culpability of the parties. If the latter, contributory negligence was assessed by reference to the extent the Claimant departed from the required standard of care.

Either way, the PIC Member concluded that a “just and equitable” reduction for the Claimant’s want of care was 100% given the finding that the Claimant was wholly at fault.

Our Case Note on Evic can be found here.

To explore other claims where PIC Members have applied Evic:

• Evic Applied – Assessing Contributory Negligence in Single Vehicle Accidents
• Evic Rides Again – Driver in Single Vehicle Accident Not Mostly at Fault
• Slippery When Wet – When an Unsafe Speed Means You’re Livin’ on a Prayer

If you would like to discuss this case note, please don’t hesitate to get in touch with CTP Practice Group Leader Peter Hunt today.

Additional McCabes Resources

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner