The Personal Injury Commission released its decision in CFD v AAI Limited t/as AAMI  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.
The PIC Member was called upon to determine two issues:
The PIC Member determined that the Claimant’s e-bike was not a “motor vehicle” because:
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 PIC Member, therefore, concluded that the Nominal Defendant was not liable to pay the Claimant statutory benefits.
The decision in CFD v AAI Limited t/as AAMI  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  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  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.
The NSW Supreme Court of Appeal has recently delivered its judgment in the decision of Bondi Beach Foods Pty Ltd v Chadwick  NSWCA.
On 1 November 2023, the High Court allowed an appeal from the NSW Court of Appeal (NSWCA). The High Court disagreed with the previous Court of Appeal decision and held that an order to permanently stay proceedings is only to be exercised in exceptional cases, and in this case concerning child sexual abuse, there were no such exceptional circumstances.