E-Bike Rider not injured in “motor accident”: CFD v AAI Limited t/as AAMI [2023] NSWPIC 592

In Brief

• A vehicle is not a motor vehicle unless it was built with the intention of being propelled by a motor which forms part of the vehicle.
• In assessing whether a vehicle is a motor vehicle the focus is on the intention of the manufacturer, at the time the vehicle was built, and not on subsequent modifications made by somebody other than the manufacturer.

Facts

The Personal Injury Commission released its decision in CFD v AAI Limited t/as AAMI [2023] NSWPIC 592 on 17 November 2023.

The Claimant was riding an e-bike through Prince Alfred Park in Surry Hills. She suffered injury when she was deliberately pushed, causing her to lose control and collide with a streetlight.

Given that her e-bike was neither registered nor insured, the Claimant sought statutory benefits from the Nominal Defendant.

At the time of the accident, a motor was attached to the rear wheel of the Claimant’s e-bike, near the axle. There was a battery under the seat. The motor was engaged by a throttle located on the right handle of the bike.

The evidence was unclear, however, whether the motor, throttle and battery were attached to bike at the time of manufacture or whether they were added at a later date.

To operate the bike, the Claimant used the motor to commence movement, to increase speed and to ride up hills. The predominant source of power, however, was the Claimant operating the pedals.

PIC Member’s Reasons

Issues

The PIC Member was called upon to determine two issues:

• Was the Claimant’s e-bike a “motor vehicle” within the meaning of s 1.4 of the Motor Accident Injuries Act 2017 (MAIA)?
• Was the Claimant’s injured sustained in a “motor accident” within the meaning of s 1.4 of MAIA?

Motor Vehicle

The PIC Member determined that the Claimant’s e-bike was not a “motor vehicle” because:

• Section 1.4 of MAIA states that “motor vehicle” means “a motor vehicle or trailer within the meaning of the Road Transport Act 2013” (RTA).
• Section 4 of the RTA defines “motor vehicle” to mean “a vehicle that is built to be propelled by a motor that forms part of the vehicle“.
• The definition of “motor vehicle” focuses attention on the intended operation of the vehicle at the time it was built. The definition is not concerned with the operation of the vehicle after modifications have been subsequently made by somebody other than the manufacturer.
• The evidence did not establish that the e-bike in question was propelled by a motor at the time of manufacture.

Motor Accident

The PIC Member also determined that the Claimant was not injured in a motor accident, even if the e-bike was a motor vehicle, because:

• The definition of “motor accident” in s 1.9 of MAIA limits the scope of the CTP coverage by mandating three requirements:
  • There must be a causal link (“results from“) between the injury and the use or operation of a motor vehicle.
  • There must be a causal link (“is a result of“) between the injury and one of the four specified circumstances in the definition.
  • There must be a temporal link that the injury is caused “during” one of the four specified circumstances in the definition
• The Claimant’s injuries were caused by somebody deliberately pushing her as she rode her e-bike.
• The push was the dominate cause of the Claimant’s injuries.
• The Claimant’s injuries did not result from any relevant use or operation of the e-bike.

The PIC Member, therefore, concluded that the Nominal Defendant was not liable to pay the Claimant statutory benefits.

Key Learnings

The decision in CFD v AAI Limited t/as AAMI [2023] NSWPIC 592 makes it clear that CTP insurers are not liable for injuries caused by vehicles which were not intended to be propelled by a motor which forms part of the body of the vehicle at the time that the vehicle was built. Subsequent modifications, by somebody other than the manufacturer, do not transform the vehicle into a motor vehicle. When injury is caused by a vehicle such as a motorised bike, it is critical to obtain evidence of whether the motor was originally attached to the bike when the bike was manufactured or whether the motor was subsequently added.

The decision in CFD v AAI Limited t/as AAMI [2023] NSWPIC 592, however, leaves unanswered an important question. If the evidence established that the motor was attached to the bike by the manufacturer when it was built, would a finding have been made that it was a “motor vehicle”? Would such a finding have been made even though the predominate source of power remained a rider depressing the pedals?

The decision in CFD v AAI Limited t/as AAMI [2023] NSWPIC 592 is also a useful reminder for insurers that the mere involvement of a motor vehicle does not render the injury a motor accident. There still has to be some causal connection between the use or operation of the motor vehicle and the Claimant’s injury. In this claim, the proximate cause of the Claimant’s injury was her being pushed over by an assailant. The riding of the bike merely provided the setting for the injury.

If you have a query relating to any of the information in this case note, or would like to discuss a similar matter of your own, please don’t hesitate to get in touch with CTP Insurance Principal Peter Hunt today.