On 8 November 2023, the Personal Injury Commission (PIC) decided that the E-bike being used by CFD ("the Claimant") did not satisfy the definition of a "motor vehicle" under section 1.4 of the Motor Accident Injuries Act 2017 ("MAIA") and section 4 of the Road Transport Act 2013 ("RTA"). PIC Senior Member Williams also decided that the Claimant was not involved in a "motor accident" for the purposes of section 1.9 of the MAIA. For both reasons the Senior Member concluded that the Claimant was not entitled to statutory benefits under section 3.1 of the MAIA.
BACKGROUND
On 29 July 2022, the Claimant was riding her E-bike on a path through Prince Albert Park in Surry Hills when two men started moving towards her. As the Claimant manoeuvred her bike to pass the men, one of the men followed the Claimant and blocked her path. The man pushed the Claimant and since the bike was not yet stationary, the Claimant lost her balance, hit a streetlight and fell to the ground 1.
On 2 February 2023, the AAMI on behalf of the Nominal Defendant relied on section 3.1 of the MAIA to deny liability for the Claimant's claim for statutory benefits. Section 3.1 provides that "if death of or injury to a person results from a motor accident in this state, statutory benefits are payable in respect of the death or injury."2
AAMI determined that the Claimant was not entitled to statutory benefits on the basis that the bike was not a "motor vehicle" and the injuries sustained by the Claimant were not a result of a "motor accident."
The Claimant commenced proceedings in the PIC to dispute the decision of AAMI and PIC Senior Member Brett Williams was required to determine if the injuries suffered by the Claimant resulted from a motor accident which would entitle her to statutory benefits under section 3.1 of the MAIA.
For the Claimant to be successful in overturning the decision of AAMI, she had to establish that the incident involved the use or operation of a "motor vehicle" and that her injuries resulted from a "motor accident."3
What is a motor vehicle?
A motor vehicle is defined in section 1.4 of the MAIA as "a motor vehicle or trailer within the meaning of the Road Transport Act 2013."4
The RTA defines a motor vehicle "as a vehicle that is built to be propelled by a motor that forms part of the vehicle."5
What is a "motor accident"?
Under section 1.4 of the MAIA, a "motor accident" is defined to mean:
"An incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during –
- The driving of a vehicle; or
- A collision, or action taken to avoid a collision, with the vehicle; or
- The vehicle's running out of control; or
- A dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control." 6
PIC MEMBER DECISION
Was the E-bike considered a "motor vehicle"?
Accordingly for the E-bike to be considered a "motor vehicle" under section 1.4 of the MAIA, the bike must have been a vehicle built to be propelled by a motor that forms part of the vehicle.
Senior Member Williams held that the definition of "motor vehicle" focused on the intended operation of the vehicle in question at the time the vehicle was built. The operation of the vehicle after modifications were undertaken by someone other than the manufacturer was not relevant 7.
At the time of the incident, a motor was attached to the back wheel of the Claimant's E-bike near the axle which was engaged by a throttle located on the right handle of the bike. There was also a battery under the seat 8. Despite the existence of a motor and battery which are ordinarily features that would satisfy the definition of a "motor vehicle", there was no evidence to determine if these features were present at the time the vehicle was built or if modifications were made to the bike after being sold by the manufacturer 9.
The Claimant gave evidence that she primarily used the pedals to operate the bike and only applied the throttle when moving off at intersections to increase the speed of the bike and to increase speed when going up hills 10. The Claimant also stated that she needed to apply the throttle if she wanted to use the motor.
On this basis, Senior Member Williams was not satisfied that the E-bike was a "motor vehicle" in accordance with the MAIA as the Claimant's pedalling was the primary source of power and there was no evidence to establish that the bike was built to be propelled by the motor. As a result, it was held that the Claimant's injuries did not result from a "motor accident" as required by section 3.1 of the MAIA given she did not use or operate a "motor vehicle" so the MAIA does not apply so as to entitle the Claimant to statutory benefits.
If the E-bike was considered to be a "motor vehicle", was the Claimant injured in a "motor accident"?
The Senior Member then deliberated on whether the circumstances of the accident constituted a "motor accident" if he had found that the E-bike was a "motor vehicle".
Under section 1.9, the MAIA only applies to injuries sustained in connection with a "motor vehicle" where the injury is a result of and is caused during:
- The driving of a vehicle; or
- A collision, or action taken to avoid a collision, with the vehicle; or
- The vehicle's running out of control; or
- A dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control 11.
Senior Member Williams held that the Claimant's injuries did not result from the use or operation of a motor vehicle and her injuries were not caused by one of the above circumstances specified in section 1.9 12. This is because the Claimant lost her balance, fell off the bike and hit the street light as a result of being deliberately pushed by the man in Prince Alfred Park. Without the deliberate push, the Claimant would not have suffered injury.
On this basis, Senior Member Williams held that the Claimant's injuries were not a result of a "motor accident" in accordance with section 1.9 as the Claimant's riding of the bike was not a direct cause of her injuries, the injuries did not arise from her riding the bike and her injuries were not a result of a dangerous situation caused by the bike even if it was determined to be a motor vehicle.
Overall the Senior Member found that the Claimant was not entitled to statutory benefits both because the E-bike was not a "motor vehicle" and she was not injured in a "motor accident".
KEY TAKEAWAYS
This decision clarifies that when determining whether a vehicle such as an E-bike satisfies the definition of a "motor vehicle," there must be evidence which shows that the vehicle had been intended to be propelled by a motor at the time the vehicle was built. If a future Claimant wishes to contend that a particular E-bike or similar vehicle is a "motor vehicle" then he or she will need to provide evidence of what was intended to be the means of propulsion of such vehicle at the time of manufacture.
Footnotes
1 CFD v AAI Limited t/as AAMI [2023]
NSWPIC 592 ("CFD"), [82].
2 Motor Accident Injuries Act 2017
("MAIA"), s 3.1.
3 CFD (n 1), [20].
4 MAIA (n 2), s 1.4.
5 Road Transport Act 2013, s
4.
6 MAIA (n 2), s 1.4.
7 CFD (n 1), [53].
8 Ibid, [54].
9 See ibid.
10 Ibid, [32].
11 MAIA (n 2), s 1.9.
12 CFD (n 1), [89].
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.