For the reasons stated, I am satisfied that the claimant was wholly responsible for the subject accident. The insurer has discharged its burden of proof.

As the claimant was self-represented, no costs were claimed.

[1] Section 3.28(1)(a) adds the word "and the person is over 16 years of age at the time of the motor accident" to create an ongoing entitlement to statutory benefits for treatment and care expenses for children

[4] Akiak v Ingram [2012] NSWCA 311 where contributory negligence for a reckless pedestrian was assessed at 50%. Davis v Swift [2014] NSWCA 458 where contributory negligence for a pedestrian who stepped backwards of a median strip was assessed at 80%

Accident Injuries Act 2017

Mitchell v Allianz Australia Insurance Limited [2025] NSWPIC 378; (6 August 2025)

The insurer submits the conclusions contended for by the claimant are not made out on the evidence and ought to be rejected entirely.
It is the insurer's submission the actions of the insured driver support the submission that the insured was keeping a proper lookout and reacted to an emergency situation which was caused entirely by the claimant's action.
The insurer observes the facts of the subject case bear similarities to the Court of Appeal decision of Stuart v Walsh [2012] NSWCA 186 (Stuart) in which the Court held that, in circumstances where Stuart was confronted with Walsh moving out of the breakdown lane, his response was reasonable in light of the risk created by Walsh.
The Court of Appeal stated that Stuart did not have the opportunity for calm reflection. Whilst with the benefit of hindsight, he ought to have stayed in the left lane, the Court stated that if steering to the right was, in hindsight the wrong thing to do, it was an error of judgment made "in the agony of the moment.".
In Leishman v Thomas[5] Street CJ set out the longstanding principle of agony of the moment:

Mitchell v Allianz Australia Insurance Limited [2025] NSWPIC 378;

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Mitchell v Allianz Australia Insurance Limited [2025] NSWPIC 378; (6 August 2025)