In accordance with Division 7.6 of the Motor Accident Injuries Act 2017

1. For the purposes of s 3.1 of the Motor Accident Injuries Act 2017, the injury to

Mr Liebert on 3 April 2025 did not result from a motor accident in New South Wales. 2. By operation of s 1.9, the provisions of the Motor Accident Injuries Act 2017 do not apply to the incident involving Mr Liebert on a bus on 3 April 2025.

A statement setting out the Commission's reasons for the assessment is included with this certificate.

1. Rombout Jacob Christian Liebert says he injured his left shoulder on a privately owned and operated (but public) bus on 3 April 2025.
2. On 9 May 2025, after making enquiries with the bus company,[1] Mr Liebert made a claim with Allianz, the third-party insurer of the bus.
3. On 12 June 2025 Allianz issued a liability notice to Mr Liebert denying the claim, on the basis that his left shoulder injury did not result from a "motor accident" within the statutory definition.
4. The claimant sought an internal review of that decision in accordance with Division 7.3 of the Motor Accident Injuries Act 2017 (the MAI Act). On 26 June 2025, the insurer completed the internal review affirming its original decision. Mr Liebert then referred the issue of whether he was injured in a motor accident to the Personal Injury Commission (the Commission) for assessment and determination in accordance with Division 7.6 of the MAI Act.
5. The proceedings have been allocated to me. I held a preliminary conference with the parties on 19 August 2025.

1. Mr Liebert's claim is a claim for statutory benefits under Part 3 of the MAI Act. Statutory benefits include weekly income replacement type benefits pursuant to Division 3.3 of the MAI Act and treatment and care benefits pursuant to Division 3.4. It is not clear whether

Mr Liebert was an "earner" at the time of the accident and whether he is entitled to weekly benefits however it is clear that he has had treatment to his left shoulder and he says he needs further treatment. 2. Section 3.1 of the MAI Act provides for the entitlement to statutory benefits as follows:

"(1) If ... injury to a person results from a motor accident in this State, statutory benefits are payable in respect of the ... injury as provided by this Part.

(2) Statutory benefits are payable (except as otherwise provided by this Part) -

(a) whether or not the motor accident was caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, or

(b) even if the motor accident was caused by the fault of the person to whom the statutory benefits are payable."

1. Under s 3.1(2) of the MAI Act, benefits are payable regardless of whether there is fault on the part of the owner or driver of a motor vehicle in the use or operation of the vehicle and even if it is the injured person whose fault caused the motor accident. However, for the claimant to recover any benefits at all, he must establish under s 3.1(1) that his injury "results from a motor accident".
2. The insurer's submissions refer to s 1.9 of the MAI Act which says:

"(1) This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during -

(a) the driving of the vehicle, or

(b) a collision, or action taken to avoid a collision, with the vehicle, or

(c) the vehicle's running out of control, or

(d) 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.

(2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents."

1. The Commission has the power to determine disputes that arise under the MAI Act in accordance with s 24 of the Personal Injury Commission Act 2020 (the PIC Act) and Part 7 of the MAI Act. Part 7 provides for the assessment of medical disputes and claims disputes. Schedule 2 of the MAI Act declares certain matters to be miscellaneous claims assessments matters including the following:

"(b) whether for the purposes of section 3.1 (Statutory benefits payable in respect of ... injury resulting from motor accident) the ... injury to a person has resulted from a motor accident in this State."

1. Schedule 2 also includes the following "catch-all" provision which declares the following as a miscellaneous claims assessment matter:

"(n) any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule."

1. The statutory definition of "motor accident" in s 1.4 of the MAI is as follows:

"motor accident means 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 -

(a) the driving of the vehicle, or

(b) a collision, or action taken to avoid a collision, with the vehicle, or

(c) the vehicle's running out of control, or

(d) 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."

1. While the phrase "motor accident" might conjure up an image of a crash or collision between two motor vehicles, the MAI Act contains a definition of a motor accident which is wider than that. The insurer must apply this definition when considering whether to pay statutory benefits to the claimant and I am also required to consider that definition when determining a dispute about whether statutory benefits are payable. The definition in the MAI Act, and similar definitions in previous Acts have been considered by the Courts and I must also follow and apply the law as interpreted by those cases when making the current decision.

1. The insurer's original liability notice of 12 June 2025[2] says that the claimant's "injury did not result from a motor vehicle accident." The insurer says the injury was not caused by the driving of the bus or by any action of the driver of the bus and denies liability.
2. In an email dated 12 June 2025,[3] the claimant:

(a) reserves his "rights under law";

(b) seeks a copy of the closed circuit television (CCTV) footage in the bus, and

(c) alleges that due to the bus driver's negligence he needs to claim the cost of the initial general practitioner consultation and ultrasound of his shoulder.

1. On 15 June 2025 the claimant wrote to the insurer:[4]

(a) identifying where in the footage the injury occurred;

(b) saying that the lady he was helping was pushed forwards;

(c) referring to the nature of the braking of the bus saying "the level of harshness of the braking" is not relevant;

(d) expresses concern this matter is not being handled as a public liability claim but is being handled as a motor accident claim;

(e) appeals "most strongly" for the insurer to pay for his costs associated with his personal injury, and

(f) raises issues with the accuracy of information provided by the insurer's case managers to him.

1. The insurer's internal review decision comprises 13 pages and a number of attachments.[5]
2. After citing the relevant legislation, the insurer quotes from the claim form and then provides an analysis of the CCTV footage. The insurer then extracts information from the medical records and recites communication from the claimant.
3. The insurer then deals at [15] - [16] with the issue of "use or operation" of the bus and refers to two High Court cases. The insurer says at [14] and at [17] that one of the sub-sections of s 1.9 of the MAI Act must apply for benefits to be payable and deals at [18] with the "driving" of the vehicle. The insurer accepts at [22] that Mr Liebert was on the bus at the time the insurer says the driving of the bus has not caused the twisting of the shoulder or injury to the shoulder.
4. The insurer says at [31] that the injuries were not caused by any of the criteria listed in

s 1.9 and that the bus did not brake violently causing the injury. The insurer also notes that the footage shows the claimant twisting his left shoulder behind him to retrieve his mobile phone and return it to his pocket as well as placing his backpack on his back and twisting.

1. Mr Liebert says that on 3 April 2025 he was travelling on a CDC Bus and, while helping another passenger and holding on to the bus, "the braking of the bus caused my left shoulder to be hyperextended causing significant pain."
2. The claimant says he reported the accident to CDC on 4 April 2025 and made his claim. He says he has had an ultrasound, has been referred to an orthopaedic surgeon, has had an MRI and some physiotherapy.
3. He says:

"Whether the accident is or is not considered a road accident under the Motor Accident Injuries Act 2017 NSW, is in essence not relevant to me, the issue is that I sustained an injury while being transported on a government run bus."

1. The claimant identifies the "exact moment" of his injury which was when he "leant forward to help the other passenger" and that it was through the braking of the bus he bent slightly forward thus pulling his shoulder.
2. He disputes the insurer's assertion that the braking of the bus was not hard and takes issue with the speed of the bus and notes that when the bus was stationary the speed of 11kmph was still showing on the film. He refers to media discussions about harsh braking and he has had a conversation with another bus driver about how buses are driven.

1. The insurer says at [1] - [4] there is an issue about whether the Commission has power to determine a dispute about whether the injury results from a motor accident as it is the insurer's primary submission that the MAI Act does not apply. The insurer refers to Schedule 2(3)(b) and (n) and does not expand this argument further.
2. Allianz refers at [7] to the claim form and at [8] and [9] to the footage of the event and says at [12] that the dispute is limited to whether the claimant sustained an injury in a motor accident and says at [13] that the circumstances of the injury do not bring the incident within the definition in the MAI Act.
3. The insurer cites at [14] the s 1.4 definition of motor accident and at [15] s 1.9 and says at [16] - [18] for the claim to fall within the scope of the policy and the Act:

(a) there must be an injury, and

(b) the injury must be a result of and caused ... during (a) the driving of the vehicle.

1. The insurer refers at [20] to the case of Allianz Australia Insurance Limited v GSF Australia Proprietary Limited (GSF)[6] and says that in accordance with this decision there must be both a temporal and causal connection for an injury to come within the definition:

"For an injury to be caught by the Act, it was held that it was necessary that it be both caused by one of the actions referred to in the definition of 'injury' as it then stood, such as the driving of the vehicle (the causation requirement) and that it be caused 'during' the driving of the vehicle (the temporal requirement)."

1. Allianz also says at [25] that the decision of Justices Gummow, Hayne and Heydon in GSF refers to the concept of "proximate cause". The insurer says that the proximate cause of the claimant's injury had nothing to do with the driving of the vehicle and occurred when he offered to help the other passenger and reached out to the bag she had left behind on her seat. The insurer says at [26] that the claimant's injury was not "as a result" of any of the four circumstances set out in s 1.9.

1. The parties attended a preliminary conference on 19 August 2025. The insurer was represented by Ms Allen and the claimant represented himself. He was asked whether he had engaged a lawyer or wished to consult a lawyer, but he said he did not.
2. The insurer was asked whether it was agreed that the claimant had sustained some form of injury on the bus, but Ms Allen advised she did not have instructions from her client to make that concession. Ms Allen subsequently (on 26 August 2025) advised that the insurer conceded the claimant has sustained some form of injury but denies that it occurred as a result of the alleged "accident" noting the claimant had a "longstanding supraspinatus tear."
3. Mr Liebert said that he had assumed his claim against the bus company would be a public liability type claim. After explaining the history of the motor accident compensation and insurance schemes in this state I explained I was only able to deal with the claim made by him against the owner or driver of the bus under the MAI Act.
4. The insurer was requested to provide the evidence referred to in its internal review decision and on 20 August 2025 a copy of the internal review with its attachments was provided.
5. I informed the parties that in cases like this, I understood that the onus of proof lay with the claimant, and I told the claimant that in cases like his there would be medical and possibly biomechanical expert evidence as to the mechanism of the accident and the causal relationship between the accident or incident to the injury.
6. I indicated to the parties I had watched the CCTV footage from the bus in order to better understand the mechanism of the alleged injury and asked the parties whether they wished to obtain any additional evidence including expert evidence as to the interpretation of that footage. Neither party wished to obtain additional evidence and were content with me viewing the footage and interpreting it myself.
7. Neither party sought an in-person hearing. Section 52(3) of the PIC Act provides that:

"If the Commission is satisfied that sufficient information has been supplied to it in connection with proceedings, the Commission may exercise functions under this Act and enabling legislation without holding any conference or formal hearing."

1. Having considered the documentary evidence provided by both parties and noting the submissions from the representatives of both parties, I determined that a just, quick and cost-effective resolution of the current proceedings could be achieved without having to hold an assessment conference or formal hearing.

1. Mr Liebert confirmed at the preliminary conference, receipt of the insurer's submissions. He said he had done some research and had read the case of GSF. He was aware that the case required there to be a direct causal link between the injury and the driving of the bus itself and not just a temporal connection between the injury and the driving.
2. Mr Liebert emphasised that it was the harsh braking of the bus as it was being driven that caused his injury which is a motor accident within the meaning of the legislation.
3. On 1 September 2025 two messages from the claimant were relayed to me. In the first the claimant says:

"The Ultrasound Report may refer to longer term tears, but given my age it would be reasonable to expect a certain amount of wear in an over 60 year old person. I will separately send the MRI report taken later as a result of the referral by the surgeon,

Dr. Marcus Chia which goes into more detail and does not refer to any long-term tear."

1. In the second message the claimant referred to being out of the country but that he has now submitted a copy of the MRI report. He summarises his position as follows:

(a) he hyperextended his shoulder at 8.53.16am causing trauma to his left shoulder;

(b) the speed counter is not calibrated and is inaccurate showing speed when the bus is visibly stationary;

(c) while the insurer concedes injury it disputes the tear in his shoulder was caused by the accident;

(d) in terms of the case of GSF referred to by the insurer, there is a direct causal link between the use of the bus and his injury, and

(e) he does not claim loss of earnings asking for his medical expenses to be paid.

1. Mr Liebert's claim form was signed and dated 9 May 2025.
2. He provides the date and time and reference number from the bus company. He identified the bus number and route. He describes the accident as follows:

"I was helping another passenger who had left a bag on the bus seat retrieve her bag and as I did so the bus braked violently. I was holding on to the edge of a bag tray to stabilise myself while the bus was moving and as the driver braked violently, I twisted my shoulder. There was significant pain initially, which decreased a little but came back later and has become chronic pain since then.

The next day I submitted the details of this to CDC NSW who found the webcam footage to support my claim."

1. Mr Liebert refers later in the form to the reasons why the claim was not made within 28 days of the accident. He says he had assumed it was a public transport service and assumed his claim was a public liability claim and submitted a claim with CDC. He then says:

"Once the insurer was known and I had contacted them, they sent this form and a CTP claim form, which in my opinion does not completely cover this kind of incident given this was not a vehicle crash or a vehicle driving into me but negligent driving by a public servant under whose responsibility I was."

1. Mr Liebert says he did not have treatment at hospital, and he denies any previous motor accident claims and denies pre-existing relevant injuries and condition. He left blank the section of the form concerning employment.

1. Dr Chen completed the first certificate of capacity and fitness on 6 May 2025. He notes the date of the accident and says the claimant first saw him on 9 April 2024 (six days after the accident). He diagnosed "left shoulder pain secondary to full thickness tear of supraspinatus". He described the relationship of the accident to the injury as "was holding onto rail in bus and hyperextended when went to help someone." Dr Chen says there is no pre-existing factor of relevance. His management plan was for simple analgesia and referral to a shoulder surgeon and physiotherapy.
2. On 14 April 2025 the claimant had an X-ray and ultrasound of his left shoulder and upper arm due to a week of worsening left shoulder pain. This revealed biceps tendinopathy, subscapularis tendinopathy and a supraspinatus full-thickness tear (full or partial) which is also described as "longstanding".
3. On 6 May 2025 the claimant was referred to an orthopaedic surgeon for opinion and management of the left shoulder injury and on 3 June 2025, Dr Chia, orthopaedic surgeon wrote to Dr Chen. The claimant gave Dr Chia a history of him holding onto a rail when the bus "stopped suddenly" and he hyperextended his shoulder. Dr Chia requested an MRI and arranged a further review.
4. Dr Chen has provided his notes from the date of the accident. The 6 May 2025 entry suggests the claimant had previous surgery to his right shoulder (with Dr Young) but he denied any previous injury to his left shoulder.
5. The claimant had an MRI of his left shoulder on 11 June 2025 the report of which noted many pathologies in the shoulder including:

(a) a full-thickness, near full-width tear of the supraspinatus with a partial thickness articular surface component;

(b) a partial-thickness intrasubstance tear of the superior subscapularis;

(c) mild-medial subluxation of the long head of biceps tendon;

(d) there was no significant atrophy of the supra or infraspinatus;

(e) a moderate level of bursal effusion, and

(f) degenerative changes in the acromioclavicular joint and moderate joint effusion with synovitis.

Claimant's evidence at the preliminary conference

1. Mr Liebert submitted that there was a direct causal link between the driving of the bus and his injury.
2. Mr Liebert talked about the incident on the bus and said:

(a) the manner of driving through the whole of the trip (including before what is shown on the footage) was not normal and was harsher than normal;

(b) he had travelled on a bus with that driver before and had not experienced that sort of driving before;

(c) he did not complain at the time because he had travelled with that driver before and it appears he did not want to get the driver into trouble;

(d) he was holding on to the bus with his left hand and helping the lady (who had left her bag behind) with his right hand when the bus braked;

(e) the braking was hard;

(f) this caused his left arm to hyperextend which caused his left shoulder injury including significant pain;

(g) the lady he was helping was short and was moving forward and the passengers on the seat did not move about in their seats because they were in their seats, and

(h) the speed indicator on the film is unreliable evidence because for example when the vehicle is stationary at (8.53.16am) the bus is shown to be still travelling at

17 kmph.

1. I have watched the footage several times. In the absence of expert evidence concerning the footage I have watched it:

(a) looking at the claimant;

(b) watching the various people on the bus;

(c) observing the hanging handles/holders affixed to the rails at the roof of the bus;

(d) focusing on the views out the windows and what this shows about the movement of the bus, and

(e) concentrating on the speed imprint on the bottom left of the screen.

1. The footage provided to me starts at 8.53.06am. The footage comes from a camera at the front of the bus looking down the bus. The bus driver is sitting on the left-hand side of the screen (the right-hand side of the bus) and part of his left shoulder and seatbelt (over his left shoulder) can be seen. There is a woman sitting on a seat next to the opal card reader on the left-hand side of the bus near the front door and behind her there is a tray for luggage. There is a rail on top of that tray going around that tray. There appear to be seats on either side of the aisle facing inward. These appear to be seats that can be put up to allow for wheelchairs or prams. There is then a two-seater seat on each side of the bus before the centre doors which are on the left-hand side of the bus. There is a man with headphones on sitting on the left-hand two-seater seat and a woman in a white top sitting on the right side of the bus. There are other seats further back in the bus.
2. The claimant is sitting on the fold up seats on the left-hand side of the bus, next to the tray. His left arm is resting along the top of the rail around the tray perpendicular to the aisle.
3. When the footage starts, a woman can be seen wearing black and carrying two supermarket cooler bags one over each shoulder. It appears she has come from the right-hand side parallel seating area opposite the claimant. She has a brown handbag around her neck. She is wearing a face mask and holding in her right hand what appears to be her opal card.
4. At about 8.53.10am the standing woman in black looks to her right to where she was sitting. She is holding onto the top rail of the tray parallel to the aisle. She continues looking and the claimant can be seen getting to his feet, holding on to the rail around the tray with his left hand and gesturing to the seat with his right hand.
5. At around 8.53.13am, the woman in black turns to retrieve something and the claimant is now off his feet and standing towards the middle of the aisle. He is still holding onto the tray with his left hand and reaching over to the seat where the woman had been sitting. At this point the woman in black is not holding onto anything and is standing facing the right-hand side of the bus. You can see her body swaying slightly from side to side and that at this point the bus is still moving.
6. At 8.53.16am the woman in black can be seen with a third supermarket cooler bag on her arm. The claimant is behind her standing up facing the front of the bus and his left hand is still on the top rail of the tray.
7. In the next three seconds, the woman in black moves backwards slightly as she turns to the front. She then moves forward and gets off the bus. She is not at this this time hanging onto any part of the bus. The claimant turns and sits back down, all the while having his left hand holding on to the top rail of the tray.
8. At about 8.53.22am the claimant can be seen with his right arm across his chest holding on to his left elbow and at 8.53.24am he is seen with his right arm clutching his left shoulder.
9. After that:

(a) at about 8.53.27am he uses his left hand to adjust his hat;

(b) at about 8.53.35am he leans to the right and uses his left arm to reach behind him;

(c) at about 8.54.01am he reaches his left arm across his chest, moves his right up toward the left elbow and performs a stretch of his left arm / shoulder / back for three or four seconds;

(d) at about 8.55.16am he leans to the right again and uses his left arm to reach behind him and he retrieves his mobile phone from his back pocket;

(e) at about 8.56.02am he leans to the right again and used his left arm to reach behind and return his mobile phone to his back pocket;

(f) at about 8.56.10am the claimant repeats the stretch of his left arm / shoulder / back, and

(g) at 8.56.57am the claimant picks up his backpack on the seat to his right and while still sitting at about 8.57.10am he reaches behind to put his backpack over his right and then his left shoulder. It is after this at about 8.57.17am that the claimant gets off the bus.

1. It is clear that there is a time lag of between before the speed of the bus registers on the screen. For example, at 8.53.35am the bus is seen to be taking off slowly and moving when the speed on the film shows 0 kmph. The first speed registered is 6 kmph at 8.53.45am. Similarly, in the point made by the claimant, the bus is seen to be stopped at 8.53.17am yet the speed shown suggests the bus is still moving at 11 kmph with 0 kmph first appearing two seconds later. There are other instances in the film which demonstrate this time lag between movement of the bus and that movement registering on the speedometer.
2. At no stage in the film, before the woman that the claimant has helped gets off the bus, does the speed of the bus exceed 33 kmph. From the commencement of the video to the time the claimant gets off the bus the speeds of the bus are registered at 33 kmph to 31, 26, 25, 22, 21,17,11, 6 and 0. At no stage does the speed increase.
3. In the time the claimant gets to his feet to help the woman, to the time he has helped her with the bag she left behind:

(a) the bus can be seen slowing to a stop;

(b) the woman sitting in the seat behind the opal card can be seen swaying from side to side with the movement of the bus, as are other passengers on the bus. These are small, regular movements;

(c) the bus driver (and his seatbelt) is seen to move slightly up and down in his seat and with slight swaying, and

(d) the triangular handles hanging from the rail near the roof of the bus are seen to sway from side to side.

1. The insurer says by virtue of s 1.9 of the MAI Act that the Act does not apply and queries whether the Commission has the jurisdiction to determine a dispute about whether the MAI Act applies or not.
2. The dispute that exists between Allianz and Mr Liebert is a dispute that falls squarely within Schedule 2(3)(b) that is whether Mr Liebert's injury "has resulted from a motor accident in this State." If the answer to that question is yes, then because of s 1.9 the provisions of the Act apply and Mr Liebert has an entitlement to benefits under s 3.1. If the answer to the question is no, then Mr Liebert has no entitlement to benefits and the provisions of the Act do not apply.
3. The Commission has clearly been given power under Schedule 2(3)(b) to determine whether a person is entitled to statutory benefits, that is:

(a) whether a person has sustained an injury;

(b) whether that injury resulted from a motor accident, and

(c) whether that motor accident occurred in New South Wales.

1. In my view, the scope of the dispute provided for in Schedule 2(3)(b) is not limited to determining the location of the accident for example whether an accident occurred in Albury (NSW) or Wodonga (Victoria). In Mr Liebert's case there is no issue about the location of the accident, he was riding a bus in Sydney at the time.
2. There is also no dispute raised by the insurer about the claimant having an injury. The medical evidence is clear he has significant pathology in his left shoulder. The insurer however denies the claimant was injured in the incident on the bus and that the pathology in the claimant's left shoulder could not have been caused by the incident on the bus. Schedule 2(3)(b) appears to provide the Commission with power to determine whether a person has sustained an injury. That does not require me, in my view, to determine the precise nature of the injury. I need simply be satisfied that the claimant sustained an injury as alleged be it significant, minor or even transitory.
3. What is clearly in dispute between the parties is whether that injury resulted from a "motor accident" within the statutory definition.
4. If I am wrong as to the scope of Schedule 2(3)(b), then Schedule 2(3)(n) also includes the following "catch-all" provision which declares the following as a miscellaneous claims assessment matter:

"any issue of liability for a claim, or part of a claim, for statutory benefits not otherwise specified in this Schedule."

1. Determining whether Allianz has any liability for Mr Liebert's statutory benefits claim would, in my view, clearly fall within the (n) dispute.
2. Mr Liebert has made a claim under the MAI Act against Allianz and Allianz has denied that claim under s 3.1. In determining the dispute that has arisen between Mr Liebert and Allianz under s 3.1, I will be determining the same issue that arises under s 1.9 that is whether

Mr Liebert's injury results from the use of operation of a motor vehicle and was a result of and was caused during the driving of the bus. In determining the current dispute, I will therefore be determining whether the provisions of the MAI Act apply.

1. I must make findings of fact concerning the manner of the driving of the bus, what the claimant did or did not do and in doing so I must consider the evidence. The cases say that factual findings must be supported by logical and probative evidence. Any inferences drawn in respect of evidence must be reasonably open on the facts.[7]
2. The claimant relies on medical evidence supporting an injury to his shoulder. The insurer concedes he sustained some form of injury on the bus but denies the full thickness tears and other features were caused by any accident on the bus and that any injury on the bus was not a motor accident within the definition.
3. The claimant gave oral evidence at the preliminary conference about the movement of the bus and what he did and how he came to be injured.
4. Both parties rely on the CCTV footage. I am aware of the warnings issued by appellate courts in cases such as Blacktown City Council v Hocking[8] as to how photographs (which would in my view also include CCTV footage) are to be used in the absence of expert evidence. I am not an engineer or a biomechanical expert but there is no such expert evidence, and the parties were happy with me reviewing the footage. In my view the footage is excellent and gives me a good understanding of what happened on the bus.

1. I accept the claimant's evidence that at 08:53:16am his left arm was in a hyperextended or stretched position while he was assisting a woman. This finding is supported by the CCTV footage. The claimant can be seen with his left hand holding on to the rail behind him while he reaches ahead of him with his right hand and arm across the aisle of the bus to help the woman who has left a bag behind on her seat.
2. I am satisfied that the claimant hurt his left shoulder in this incident. I make this finding on the basis of the claimant's evidence and the CCTV footage that shows the claimant holding and rubbing his shoulder at about 08:53.24am.
3. After this incident, the bus slows to a stop before the woman gets off. I am not satisfied there is any violet braking (as alleged by the claimant in his claim form), any hard or harsh braking (as alleged at the preliminary conference) or sudden stopping (the history given to Dr Chia) of the bus. I make this particular finding on the basis of the following features of the CCTV footage:

(a) the seated woman at the front sways from side to side but not front to back which would be expected if there was sudden braking movement;

(b) the man with the black shirt and the woman in the white top do not appear to move front to back as the bus stops and they remain seated;

(c) a young woman towards the rear of the bus gets out of her seat and moves while the bus is in motion. She does not appear to suddenly move and does not appear to be holding on before the bus stops;

(d) the woman the claimant has helped is not holding on to the bus and does not lose her footing as she moves down the bus to the front door;

(e) the handrails move side to side but do not sway front to back or in any way violently or suddenly;

(f) the scenery outside the windows moves past smoothly with no sign of any sudden movement, and

(g) the speed of the bus as shown imprinted on the film starts at 33 kmph and reduces with no acceleration. While I am not an expert there is nothing in the recorded speed that suggests a sudden stopping.

1. I am not satisfied that the evidence from the CCTV footage supports a finding that the bus driver braked sharply, violently or suddenly.

1. The definition of "motor accident" in s 1.4 is:

"... an incident or accident involving the use or operation of a motor vehicle ..."

1. There is no doubt that Mr Liebert was involved in an incident or accident while riding the bus and while the bus was being used to transport passengers to and from their destination.
2. The definition then requires that incident or accident to have:

1. I have accepted the evidence from Mr Liebert which is supported by the CCTV footage that something did happen on the bus to his left shoulder while he was riding the bus. But the definition in s 1.4 requires more than just an injury occurring on a bus (or in a vehicle) while the bus (or vehicle) is being used.
2. The definition goes on to require that:

" ...the ... injury is a result of and is caused ... during -

(a) the driving of the vehicle, or

(b) a collision, or action taken to avoid a collision, with the vehicle, or

(c) the vehicle's running out of control, or

(d) 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."

1. The High Court in GSF dealt with the previous legislation that is the Motor Accidents Compensation Act 1999. That had a definition of "injury" that required there to be an injury and fault. The definition of injury required the injury to be "caused in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during the driving of the vehicle."
2. As explained by the High Court in GSF the definition of "injury" required there to be more than just a temporal connection between the injury and the driving of the bus (that is the "caused during" element). There must also be a causal relationship between the injury and the driving of the bus being the "caused as a result of" one of the four events (such as driving). Caused as a result of means caused because of or caused due to. There has to be a link between the manner of the vehicle being driven and the injury.
3. Justices Gummow, Hayne and Heydon explained that there can be several causes of an accident or injury but that one of the four events that must be the proximate cause of the injury.
4. While the definition I am considering is the definition of "motor accident" the words and phrases are similar. The GSF case is therefore a case which I must consider and apply.[9]
5. There have been no cases brought to my attention from the Supreme Court or Court of Appeal in NSW interpreting "motor accident" as it appears in the MAI Act, however, I am aware of the following decisions in the Commission which have adopted the GSF approach.
6. In Hamilton v CIC Allianz Insurance Limited[10] a Member of the Commission was determining a dispute where the claimant fell over on a bus. The Member found the proximate cause of the claimant's injury (he slipped on the liquid while riding the bus) was not the driving of the bus but the presence of the liquid and that therefore the claimant was not injured in a motor accident.
7. In Bizannes v AAI Limited t/as GIO[11] a person was injured getting off a bus after it was stopped and where there was a gap of two to four feet between the bus and the kerb. The Member in that case found the accident was a motor accident and that the proximate cause of the claimant's injury was the driving of the bus (and where it was stopped) and the dangerous situation caused by where it was stopped.
8. In Mr Liebert's case there is no suggestion of a collision or any evidence of a near miss between the bus and another road user and the bus was not running out of control. Of the four examples of actions listed in the definition this leaves two, "the driving of the vehicle" and a "dangerous situation caused by the driving of the vehicle."
9. I have closely examined the CCTV footage, and I have found that there was nothing sudden or violent in the way the bus was being driven. The bus appears to have been driven normally, slowing down steadily at the time the claimant says he was injured. I am not therefore satisfied that the way in which the bus was being driven was the cause of

Mr Liebert's injury. 10. I am also not satisfied there was a dangerous situation caused by the driving of the bus. The situation which led to the claimant's injury involved a passenger leaving something behind and the claimant helpfully assisting her to retrieve it. That was not a dangerous situation, and it was not caused by the driving of the bus. 11. I am satisfied that the proximate cause of the claimant's injury was the claimant reaching out and helping the other passenger. I am not satisfied that the proximate cause of the claimant's injury was the way in which the bus was being driven while the claimant was providing that assistance.

1. It follows therefore that while I have found Mr Liebert was injured on the bus, he was not injured on the bus in an incident or accident that satisfies the definition of a motor accident within the meaning of the MAI Act.
2. He is therefore not entitled to statutory benefits under Part 3 of the MAI Act. In addition, in accordance with s 1.9, none of the provisions of the MAI Act apply.

[1] CDC NSW part of the ComfortDelGro Corporation Australia.

[2] Page 43 of the insurer's bundle of documents.

[3] Referred to at page 9 of the insurer's internal review decision.

[4] Referred to at page 10 of the insurer's internal review decision.

[6] [2005] HCA 26.

[7] See Australian Broadcasting Tribunal v Bond (1990) HCA 33 at [367].

[8] [2008] NSWCA 144.

[9] GSF and the proximate cause concept has been followed in cases such as Nominal Defendant v Hawkins [2011] NSWCA 93, Leach v The Nominal Defendant [2014] NSWCA 257and Toll Pty Ltd v Harradine [2016] NSWCA 374.

[10] [2023] NSWPIC 580.

[11] [2023] NSWPIC 135.