This article discusses a recent decision by the Personal Injury Commission (“the Commission”) in the case of Zhang v Insurance Australia Limited t/as NRMA Insurance [2024] NSWPIC 404 (“Zhang v NRMA [2024]”). The case explores the complexities involved in attributing fault in motor vehicle accidents – particularly, those involving cyclists.
Background
On 1 May 2023, Ms Zixin Zhang, a cyclist, was involved in an accident on Parramatta Road, Camperdown, during the morning peak hour. Ms Zhang had been riding her bicycle in the left-hand lane of three lanes (Lane 1). When a bus slowed in front of her, Ms Zhang moved into the middle lane (Lane 2). It is disputed as to what exactly occurred next. Ms Zhang claims that she was then hit from behind by a vehicle driven by Ms Allen; however, Ms Allen claims that Ms Zhang actually collided with the left-hand side of her vehicle when initially changing lanes from Lane 1 to Lane 2.
The accident resulted in injuries to Ms Zhang, who subsequently filed a claim for statutory benefits under the Motor Accident Injuries Act 2017 (MAIA) against NRMA, Ms Allen’s CTP insurer.
Initially, NRMA accepted the claim and provided Ms Zhang with statutory benefits (payments for time off work and medical treatment). However, on 19 January 2024, NRMA issued a notice denying ongoing benefits on the basis that Ms Zhang was “wholly or mostly at fault” for the accident. This decision meant that Ms Zhang would lose her ongoing entitlement to statutory benefits and no longer be eligible to lodge a common law damages claim (whereby compensation can be claimed for the more intangible impacts of an injury, like pain and suffering).
Ms Zhang disputed NRMA’s decision and sought an internal review. NRMA ultimately upheld and maintained its original decision. Ms Zhang then referred the matter to the Commission for dispute resolution.
Key Issues in Dispute
The core issue in this case was whether Ms Zhang was wholly or mostly at fault for the accident.
Ms Zhang argued that she was riding in Lane 2 when Ms Allen’s vehicle struck her from behind. She argued that Ms Allen was wholly at fault for failing to keep a proper lookout and not maintaining a safe distance. Conversely, Ms Allen claimed that Ms Zhang suddenly moved from Lane 1 to Lane 2 without indicating or checking for oncoming traffic, leading to Ms Zhang colliding with the left-hand side of Ms Allen’s vehicle.
The evidence presented included photographs of the damage to Ms Allen’s vehicle and Ms Zhang’s bicycle, as well as the parties’ descriptions of the accident. However, there were no witness statements or expert reports to support either version of events.
Findings and Decision
After reviewing the evidence, the Commission found that Ms Zhang was wholly at fault for the accident. The key findings were as follows:
- Ms Zhang moved from Lane 1 to Lane 2 without indicating or checking for oncoming traffic.
- Ms Allen was driving at a slow speed (10-15 km/h) in heavy traffic and was keeping a proper lookout.
- The damage to Ms Allen’s vehicle was consistent with Ms Zhang’s bicycle colliding with the side of the car, not Ms Allen’s vehicle colliding with the rear of Ms Zhang’s bicycle, as Ms Zhang had claimed.
The Commission determined that Ms Zhang’s actions—moving into another lane without proper caution—were the primary cause of the accident. As a result, Zhang was found wholly at fault, and her entitlement to ongoing statutory benefits was extinguished.
Conclusion
This case underscores the challenges in establishing liability in motor vehicle accidents, particularly when reliable and probative evidence is limited. For those involved in similar accidents, it is crucial to gather as much evidence as possible, including witness statements, photographs, and expert opinions, to support your case.
We recommend to all people injured in road accidents that they seek specialist legal advice, to ensure that:
- They put their best foot forward;
- their case is well prepared; and
- their claim has the very best prospects of success.
DISCLAIMER
This article reflects the current law at the time of publication. It is intended for informational purposes only and does not constitute legal advice. The actual decisions in each case are summarised for general understanding. For specific legal guidance in relation to your situation, please consult with a qualified legal professional.
