1. On 8 March 2020, Ms Lemac was injured when she fell from her bike while riding in the South Melbourne Market car park. The carpark is bounded by Coventry Street to the south and York Street to the north. She was riding in a service lane at the side of the car park, heading to York Street. She fell just after riding over a speed hump and next to a CitiPower sub-station.
2. Ms Lemac cannot explain how she came to fall from her bike. Her evidence is that after she had fallen, she saw the back of a vehicle some distance ahead of her, but could not and cannot recall any details about that vehicle. She recalls an adult couple with young children to her right.
3. No one helped Ms Lemac. The couple may not have been aware she had fallen.
4. Ms Lemac lay on the ground and then moved to the side of the footpath. She described being in pain and in shock. She pushed her bike back to her home, with great difficulty, over some kilometres. When home, she telephoned her son. He advised her to call an ambulance to take her to hospital. She travelled to the Alfred Hospital by taxi. She did not want to use an ambulance that may have been needed by someone else.
5. At the hospital Ms Lemac was seen in the emergency department. On 9 March 2020, she was discharged .
6. Ms Lemac sustained serious injuries when she fell. These included bilateral hairline fractures of the radius head, bilateral soft tissue injuries to wrists, abrasion of her right hip and thigh, abrasion to her left knee and pain on the right side of her neck.
7. On 12 March 2020, Ms Lemac saw her general practitioner and on 12 July 2020, made a report to Victoria Police.
8. On 15 July 2020, Ms Lemac made a claim to TAC for compensation.
9. On 20 November 2020, TAC denied Ms Lemac's claim, not satisfied that the incident had been directly caused by the driving of a motor vehicle. Ms Lemac sought an informal review of that decision, which on 30 August 2021 gave the same result.
10. On 9 November 2021, she applied to VCAT.

1. Ms Lemac's main contention is that she would not have fallen from her bike for no reason. Some event or thing must have caused her to fall. While she does not remember how the accident happened, she is adamant that when she was on the ground, she saw a car some distance ahead of her at the York Street exit from the car park. She cannot identify the car by registration number, make and model or colour. She was unable to make any observations about the driver of the car or its passengers, or whether it contained any passengers. Nevertheless, Ms Lemac believes that a vehicle was involved in some way. She concludes that in the absence of any other explanation for her fall, it must have been a car that caused her to fall. She explained that a car may have come from her right, travelling next to the sub-station and entered the laneway in which she was riding, by turning right into the laneway.
2. She speculates that a car may have startled her or possibly "clipped" her bike.
3. In assisting Ms Lemac, Mr Peters made the point that, people just don't fall off their bikes and TAC has not given any reasons why she fell. Mr Peters said Ms Lemac was disadvantaged by the fact that no independent person witnessed her fall, and no one came forward to help. He made this point particularly concerning the couple.
4. Mr Peters stressed that Ms Lemac is completely honest and has consistently said she saw a car ahead of her when she was lying on the ground. There must be a cause for Ms Lemac to fall from her bike because 'statistically' people just don't fall off their bikes. The only cause for her to fall would be the car that Ms Lemac saw.

1. The TAC submitted that if Ms Lemac had seen a car in front of her as she described, that does not mean the car was involved in her fall. Her evidence about the cause of her fall was purely speculative.
2. Under cross-examination Ms Lemac agreed that the first written recording of the presence of a car as she has described it, was in her compensation claim to TAC. She agreed that none of the earlier written reports from the Alfred Hospital emergency department, the discharge report from the hospital, the notes of her own doctor and her police report, record her as mentioning the presence of the car.
3. TAC submitted that Ms Lemac:

a) bears the onus of proof and could not satisfy VCAT, on the balance of probabilities, that her fall was directly caused by a motor vehicle; > > b) was, significantly, unable to definitely state what caused her to fall from her bike. Her evidence about seeing a car some distance in front of her immediately after having fallen from her bike does not satisfy the standard of proof; and > > c) had not produced any statistical evidence to support her assertion, made through Mr Peters, that statistically riders do not just fall off their bikes. In the absence of such evidence, it was a matter of speculation as to why riders fall from their bikes.

4. TAC did not question Ms Lemac's honesty but submitted, she is an unreliable witness.

1. Ms Lemac's entitlement to compensation for a transport accident depends on the Transport Accident Act 1986 (Vic) (the Act) which provides that a person who is injured as a result of a transport accident is entitled to compensation in accordance with this Act.[1]
2. A "transport accident" is defined as an incident directly caused by the driving of a motor car. [2]
3. For completeness, it is noted that the Act also deals with transport accidents involving bicycles, expanding the definition of transport accident to include incidents involving bicycles and stationary motor vehicles, or bicycles and the opening doors of motor vehicles. [3]
4. Importantly, an injury resulting from a transport accident must be an injury directly caused by the driving of a motor car.[4]
5. A person claiming compensation under the Act bears the onus of proving their claim.[5]

1. Ms Lemac's application is dismissed.
2. On 8 March 2020 she fell from her bike and sustained the injuries as claimed. However, that is not enough to entitle Ms Lemac to receive compensation from the TAC.
3. First, section 35 of the Act requires that Ms Lemac's injuries must be as "a result of a transport accident". In other words, Ms Lemac's entitlement to compensation depends upon there being a "transport accident" as defined by the Act.
4. Secondly, section 3(1) of the Act defines "transport accident" as meaning an incident which was directly caused by the driving of a motor car or motor vehicle. This means that Ms Lemac must show that a motor car or motor vehicle was the direct cause of the incident which caused her to suffer the injuries.
5. Ms Lemac has not been able to do this.
6. Ms Lemac was honest and completely open about the fact that she cannot recall the precise circumstances of the incident. The best she can offer is her surmise about the involvement of a motor car which she saw ahead of her after she had fallen and was lying on the ground. She is unable to provide any information which would help identify that motor car. She is unable to specifically claim that the motor car she saw knocked her from her bike but speculates that the car may have knocked her from her bike, or it may have startled her and caused her to fall from her bike. Ms Lemac simply offers these as possibilities for what she considers to be logical alternative explanations of how she may have fallen from her bike but is unable to positively choose from them.
7. Ms Lemac is inviting me to draw the same inference that she draws.
8. To summarise the law on what inferences I can draw and can rely on: first, any inference must be established by evidence. Secondly, the process of reasoning must constitute a valid inference. It cannot rely on speculation or guesswork. Thirdly, the conclusion must be the more probable inference from those facts. The inference drawn must reasonably be more likely than any competing inference. Fourthly, I must give effect to the totality of the established facts.[6]
9. This means that before I can draw any inference, I must be satisfied about what facts do exist and what the facts are on which I can base any inference. If I am not satisfied about what the facts are, I cannot proceed to the second, third and fourth steps which the law requires before I can draw any inferences.
10. An essential fact required by the Act is that the incident was "directly caused by the driving of a motor car". Ms Lemac has not proven that her fall from her bike was directly caused by a motor car.
11. I am not satisfied that the evidence required to draw an inference or to apply the requirements of the Act exists, namely that it was the driving of a motor car which caused Ms Lemac to fall from her bike and to suffer her injuries. There was nothing put to me which proves on the balance of probabilities that a car caused Ms Lemac to fall from her bike.
12. As to Mr Peters saying that TAC has not given any alternative reasons why Ms Lemac fell off her bike, TAC does not have to give any reasons why Ms Lemac fell from her bike. Ms Lemac must prove her case.
13. Mr Peters also said that "people do not just fall off their bikes". He went further and claimed that "statistics" supported the fact that "people do not just fall off their bikes", and claimed this was a "statistical fact". Mr Peters did not provide proof of those statistics.
14. Mr Peters also submitted that the only other cause for Ms Lemac to fall from her bike would be the car which she saw when she was lying on the ground.
15. Simply pointing to a car in the vicinity of where Ms Lemac fell does not meet the requirements of the Act. She must prove the car she saw directly caused an incident which caused her injuries. If Ms Lemac did not bear the onus, the result would be the same.
16. While I view Ms Lemac and Mr Peters as honest people of good character, they have failed to persuade me that Ms Lemac's injuries were directly caused by a motor car.
17. Ms Lemac's case does not allow the Tribunal to draw the necessary inference that a motor vehicle was involved in her accident. It follows that there is not enough evidence for Ms Lemac to have an entitlement under the scheme.
18. Therefore, TAC's decision under review is affirmed.

[1] S 35 of the Transport Accident Act 1986 (Vic) (the Act).

[6] See Simmonds-Thatcher v Kamari [2021] VSCA 133 at [72], citing Masters Home Improvement Pty ltd v North East Solution Pty Ltd [2017] VSCA 88; (2017) 372 ALR 440, 446 at [101].