Allianz Australia has won a judicial review of a NSW Personal Injury Commission (PIC) determination which apportioned more blame to its insured driver than the pedestrian who walked into the driver’s path.

The NSW Supreme Court heard that on March 5, 2021, pedestrian Shuveccha Shuk got off a bus in Smith St, Parramatta, walked to the rear and stepped off the kerb. The Allianz insured driver hit the brakes, stopping at Ms Shuk’s feet. She sustained a significant injury to her foot and ankle.

The Motor Accident Injuries Act provides for payment of statutory benefits for loss of earnings and medical expenses for people injured in motor vehicle accidents for a period of 26 weeks after the accident on a no fault basis.

There was no dispute that Ms Shuk was entitled to the payment, paid by third party insurer Allianz under provisions of the act.

But Allianz baulked at a PIC member’s decision that the payment should be extended beyond the 26 weeks.

Under the Act, weekly payments to injured people most at fault or with minor injuries stop after 26 weeks. The accident is deemed to have been caused “wholly or mostly by the fault of the person” if the contributary negligence of the person in relation to the motor accident is greater than 61%.

PIC determined that Ms Shuk’s contributory negligence was 25% and not 61%, meaning she was entitled to payments beyond 26 weeks.

The PIC member said having viewed CCTV footage on “countless occasions” they were satisfied Ms Shuk was visible to the driver. The member also suggested that the driver should have been driving slower in a built-up pedestrian area.

The court heard there were “conflicts in the evidence which the member neither noted nor resolved”.

“Both independent witnesses recounted that there were two buses in the inside lane, one about three metres behind the claimant’s bus, and that the claimant walked between them. The CCTV footage suggested otherwise.”

There was contested evidence as to the timing and position of a second bus behind the one Ms Shuk left and how and if that affected the driver’s ability to see her step out from the kerb earlier.

Justice John Basten referred to the member’s “bald statements” as to what speed the driver should have been travelling without naming an appropriate speed.

“Without a proper finding as to breach of duty, the proportionate culpability of each cannot be assessed. The insurer was correct in asserting that the member failed in a material respect to apply the correct legal principle.”

In a July 7 decision, Justice Basten ruled that there were errors of law identified and the decision of the PIC from December 21, 2022, must be set aside. The matter must return to the PIC to be heard by a different member.

The full ruling can be read here.