In accordance with Division 7.6 of the Motor Accident Injuries Act 2017 (the Act), the Personal Injury Commission's assessment is:

1. For the purposes of s 3.11 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant.
2. For the purposes of s 3.28 of the Act, the motor accident the subject of these proceedings was caused wholly or mostly by the fault of the claimant.
3. The amount of the claimant's costs in the matter is $4,468.20 inclusive of GST.

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

1. The claimant, Ms Soung Hi Park, sustained injuries in a motor vehicle accident that occurred on 13 June 2024 in Flora Street, Arncliffe. She had parked her vehicle outside 14 Flora Street and exited the vehicle with the intention of crossing the road. Shortly thereafter she was struck by a passing vehicle, which travelled along Flora Street at the time of the incident. The impact occurred to the claimant's left foot and caused her to fall to the ground.
2. Following the accident the claimant was transported to St George Hospital where imaging confirmed a fracture of the base of the fifth metatarsal of the left foot. She also reported a range of other symptoms including pain affecting the right knee, elbow, hip and shoulder, together with psychological sequelae arising from the incident.
3. The claimant subsequently made a statutory benefits claim under the Motor Accident Injuries Act 2017 (NSW) (the MAI Act). On 23 December 2024 the insurer, Allianz Australia Insurance Limited, issued a liability notice determining that the claimant was wholly at fault for the accident and that statutory benefits would therefore cease after 52 weeks from the date of accident.
4. The claimant sought internal review of that decision. By determination dated 9 September 2025 the insurer affirmed the original decision and maintained the finding that the claimant was wholly responsible for the accident.
5. The present proceedings arise from the claimant's application to the Personal Injury Commission (Commission) for a miscellaneous claims assessment pursuant to Schedule 2(3)(e) of the MAI Act. The dispute concerns whether the claimant was wholly or mostly at fault for the motor accident, which determination bears directly upon her entitlement to statutory benefits beyond the initial 52-week period.
6. The matter proceeded to an oral assessment conference conducted by the Commission via MS Teams. At that conference the insured driver gave oral evidence and was cross-examined, and the parties supplemented their written submissions with oral submissions addressing the evidence.

1. The material before the Commission comprised the documentary evidence contained in the parties' bundles, together with the oral evidence of the insured driver given at the assessment conference and the submissions of the parties.
2. The claimant relied upon her application for personal injury benefits and subsequent written submissions together with supporting material including the police report, ambulance report, hospital records from St George Public Hospital, clinical notes and imaging reports, and the statement of an independent eyewitness.
3. In her claim form the claimant described the accident as occurring shortly after she had parked her vehicle outside 14 Flora Street, Arncliffe. She stated that she stepped out and stood in front of her car intending to cross the street. She said that she looked to her left for approaching traffic and then heard a horn from her right. Before she had an opportunity to look in that direction, a vehicle passed close to her and ran over her left foot, causing her to fall to the roadway.
4. The police report records that at approximately 3.45 pm on 13 June 2024 a pedestrian was crossing Flora Street, Arncliffe, when a Citroën C5 travelling east along the street contacted the pedestrian and ran over her left foot. The report notes that the driver sounded his horn and that the pedestrian was checking for traffic when the collision occurred.
5. The NSW Ambulance patient health care record records that the patient was "attempting to cross the road at approximately 1550" when "a car was driving along at approximately 50 km/h". It records that the patient "stepped and collided with the passenger side door", and that there was "nil attempt to brake", after which the patient was "knocked to the ground". The report further records that the driver was said to have argued with the patient before leaving the scene.
6. Hospital records from St George Public Hospital confirm that the claimant presented following the accident and imaging demonstrated a minimally displaced fracture involving the base of the left fifth metatarsal.
7. The claimant also relied upon the witness statement, who resided nearby and observed the events. The eyewitness stated that he saw the claimant standing next to her parked vehicle and looking both ways before attempting to cross the road. He said that he observed a vehicle approaching at speed and that when the vehicle reached the claimant it struck the side of her foot, causing her to fall. The eyewitness further stated that after the collision the driver continued driving a short distance before stopping, approached the claimant briefly and then ultimately left the scene.
8. The insurer relied upon the same primary documentary material together with a factual investigation report prepared by Lee Kelly Investigations and the statement of the insured driver. In that account the insured driver stated that the claimant stepped into the roadway from between parked vehicles and collided with the side of his vehicle. He estimated that he was travelling at approximately 50 kilometres per hour and said that he sounded his horn upon observing the claimant.
9. The documentary evidence also included a range of medical material relating to the claimant's treatment following the accident, including certificates of fitness, imaging reports and rehabilitation material documenting the claimant's ongoing physical and psychological symptoms after the incident.
10. A photograph of the insured vehicle taken shortly after the accident forms part of the material before the Commission. The image depicts the vehicle positioned in the traffic lane of Flora Street with parked vehicles lining the left-hand side of the roadway.
11. The photograph also provides some indication of the spatial relationship between the insured vehicle and the parked vehicles along the kerbside. The insured vehicle appears to be travelling at a distance of approximately one metre or slightly more from the parked vehicles adjacent to the kerb. That position is broadly consistent with the insured driver's evidence that he was travelling along the left-hand side of the roadway but not immediately adjacent to the parked vehicles.
12. The insured driver attended the assessment conference and gave oral evidence. He confirmed that he had previously provided statements concerning the accident to police, to an investigator engaged by the insurer, and to the insurer.
13. The insured driver gave evidence that on 13 June 2024 he was travelling along Flora Street toward nearby traffic lights. He estimated that he was travelling at approximately 30 kilometres per hour and explained that he had slowed because the traffic lights ahead were red.
14. He described Flora Street as a residential street with vehicles commonly parked along the roadway and accepted that cars were parked along the street on the day of the accident. He also confirmed that the weather conditions were clear and visibility was good.
15. The insured driver maintained that he did not observe the claimant prior to the collision. His evidence was that the first time he became aware of her presence was when she struck the side of his vehicle. He said that the claimant "slammed into" the passenger side door of the vehicle and clipped the wing mirror.
16. He said that the claimant appeared suddenly from between parked vehicles and that the events occurred quickly, leaving him with no opportunity to react or take evasive action.
17. During cross-examination he was asked about statements he had made in a prior interview with the insurer's investigator in which he had stated that the claimant was using or holding a phone at the time of the accident. When asked how he could have formed that view if he had not seen her until the moment of impact, he said that he observed the phone in her hand when she struck the vehicle and that the phone contacted the wing mirror.
18. The insured driver maintained his estimate that he was travelling at about 30 kilometres per hour and disagreed with the suggestion that he had understated his speed when describing the incident to the investigator.
19. He gave evidence that after the impact he brought the vehicle to a stop approximately two to five metres further along the roadway. He exited the vehicle and approached the claimant, who was sitting on the road. He asked whether she was alright and said that she indicated she was fine.
20. The insured driver further stated that the claimant took photographs of his vehicle and asked for his driver's licence. He said that a number of bystanders began shouting at him, which caused him to feel threatened. He said that he returned to his vehicle and left the scene before later contacting his insurer.
21. He accepted that the claimant had been wearing a blue work uniform with yellow markings that could generally be visible to a driver. However, he maintained that he did not see her prior to the impact because she emerged suddenly from between parked vehicles.
22. The insured driver also said that he told the claimant after the accident that she should not cross the road while using a phone, although he was unable to recall precisely what response she gave to that remark.
23. During questions from the Member, the insured driver confirmed that while travelling along Flora Street his attention had been directed toward the traffic lights ahead and that he was looking forward along the roadway rather than toward the side of the street.
24. When asked when he first became aware of the claimant's presence, he repeated that he only noticed her when she struck his vehicle and that there had been no distance between them at that moment.
25. The insured driver was also asked to explain how he concluded that the claimant had been using a phone. He said that he saw the phone in her hand when she collided with the vehicle and that the phone made contact with the wing mirror.
26. He maintained that the claimant walked into the side of his vehicle and that there was nothing he could have done to avoid the collision.
27. The insured driver's evidence throughout was that the claimant emerged suddenly from between parked vehicles, struck the passenger side of the vehicle and that he did not observe her before that moment.
28. I have had regard to the entirety of that material in determining the issues arising in the proceedings.

1. The claimant submitted that the insurer had not discharged the evidentiary burden of establishing that she was wholly or mostly at fault for the motor accident within the meaning of ss 3.11 and 3.28 of the MAI Act. It was submitted that the statutory benefits scheme does not require the claimant to prove fault and that it was for the insurer to demonstrate, to the requisite state of satisfaction, that the claimant's contributory negligence exceeded 61%.
2. The claimant contended that the documentary evidence and witness material supported the proposition that she had taken reasonable care before attempting to cross the roadway. Reliance was placed upon the claimant's account that she had exited her parked vehicle and checked for approaching traffic before the collision occurred. It was further submitted that the police report recorded that the claimant was checking for traffic at the time of the incident and that the insured vehicle nevertheless ran over her left foot.
3. The claimant also relied upon the independent witness statement of Mr Vaccarella, which described the claimant as standing next to her parked vehicle and looking both ways prior to the collision. It was submitted that this evidence was consistent with the claimant's account and undermined the insured driver's assertion that the claimant had stepped suddenly into the roadway.
4. In oral submissions, counsel for the claimant further contended that the insured driver's own evidence revealed that he had not been directing his attention to the sides of the roadway but was instead focused on the traffic lights ahead. It was submitted that this demonstrated a failure to maintain an adequate lookout for pedestrians in a residential street where parked vehicles were present.
5. The claimant also submitted that the evidence concerning the mechanism of injury did not necessarily support the insurer's case that she had stepped into the vehicle's path. It was submitted that the evidence did not conclusively establish the position of her feet or body at the moment of impact and that the injury could have occurred after initial contact with the vehicle caused her to lose balance. In that regard it was said that it did not automatically follow that because the claimant's left foot was injured, she must have stepped into the path of the vehicle.
6. The claimant further submitted that the insured driver's evidence concerning the claimant's alleged use of a mobile phone should be given little weight. It was submitted that both the claimant and the independent witness had denied that the claimant was using a phone at the relevant time and that this inconsistency undermined the insured driver's account.
7. The claimant also submitted that aspects of the insured driver's conduct following the collision, including the allegation that he moved his vehicle forward and subsequently left the scene without providing his details, supported an inference of fault or consciousness of responsibility for the accident.
8. On that basis, the claimant submitted that the Commission should find that the insurer had failed to establish that she was wholly or mostly at fault. It was said that, even if some degree of contributory negligence were established, any apportionment would be modest and well below the statutory threshold of 61% required to terminate statutory benefits.
9. The insurer submitted that the evidence demonstrated that the claimant had failed to take reasonable care for her own safety when entering the roadway. It was contended that the claimant stepped onto the road from between parked vehicles without adequately checking for approaching traffic and that the collision occurred with the side portion of the insured vehicle, indicating that the vehicle had already passed the point at which the claimant entered the roadway.
10. The insurer relied upon the insured driver's account that the claimant appeared suddenly and that he had no opportunity to take evasive action. It was submitted that the insured driver was travelling at approximately 30 kilometres per hour, well below the posted speed limit of 50 kilometres per hour, and that he brought his vehicle to a stop within a short distance after the collision.
11. In oral submissions the insurer further relied upon the insured driver's evidence concerning the position of his vehicle on the roadway. It was submitted that the vehicle was travelling approximately one metre from the parked cars on the left-hand side of the street and that this indicated the claimant must have been at least that distance onto the roadway when the collision occurred. It was said that this was inconsistent with the claimant's contention that she had remained beside her vehicle.
12. The insurer also submitted that the absence of any impact with the front of the insured vehicle supported the conclusion that the claimant walked into the side of the vehicle. It was contended that if the claimant had been stationary beside her vehicle the front of the insured vehicle would have struck her rather than the side.
13. The insurer further submitted that the applicable principles of negligence and contributory negligence required consideration of the standard of care expected of a reasonable person in the claimant's position, with reference to s 5R of the Civil Liability Act 2002 (NSW). It was said that a reasonable pedestrian crossing a roadway would ensure that the path was clear in both directions before stepping onto the road and that the claimant's failure to do so constituted a significant departure from that standard.
14. Accordingly, the insurer submitted that the claimant's conduct was the sole effective cause of the accident and that she should be found to have been wholly responsible for the collision. In the alternative, it was submitted that her contributory negligence substantially exceeded the statutory threshold for a finding that she was mostly at fault.

1. The dispute for determination is whether, for the purposes of ss 3.11 and 3.28 of the MAI Act, the motor accident was caused wholly or mostly by the fault of the claimant, which requires a finding that the claimant's contributory negligence in relation to the accident exceeded 61%.
2. The principles attaching to such a dispute are well known and need not be restated, save to say as follows. The statutory benefits scheme does not require the claimant to prove fault in order to receive benefits. Where an insurer seeks to cease statutory benefits beyond the relevant period on the basis that the claimant was wholly or mostly at fault, the insurer bears the evidentiary onus of satisfying the Commission, to the requisite degree, that the statutory criterion is met:
3. The inquiry is evaluative. It requires a comparison of (a) the degree of departure from the standard of reasonable care expected of each party, and (b) the relative causal potency of their acts or omissions in bringing about the accident.
4. In assessing contributory negligence, the standard of care required of the claimant is that of a reasonable person in the claimant's position, determined by reference to what the claimant knew or ought to have known at the time.
5. It is also necessary to guard against "hindsight reasoning" in assessing breach and causation. The question is not whether, looking backwards, a different speed or different manoeuvre might have avoided the accident, but what reasonable care required prospectively in the circumstances as they presented.

The evidentiary picture and weight to be afforded the accounts of witnesses

1. It is necessary to say something about the evidentiary position in which this dispute falls to be determined. The insured driver attended the assessment conference and gave oral evidence which was tested in cross-examination. The claimant did not give evidence and the independent witness whose statement was relied upon by the claimant was not called for cross-examination. The result is that the only account of the accident which was tested in the adversarial process was that of the insured driver. That circumstance does not permit an adverse inference to be drawn against the claimant, nor does it relieve the insurer of the evidentiary burden it bears. However, it is relevant when assessing the weight to be given to competing versions of events, particularly where aspects of those versions depend upon matters clarified by oral evidence. In those circumstances, I approach the documentary accounts of the claimant and the independent witness with appropriate caution, while recognising that they remain part of the evidentiary record to be evaluated together with the insured driver's oral evidence and the objective features of the accident.

1. The claimant's account in the claim form was, in substance, that she exited her vehicle, intended to cross, looked to her left, heard a horn from her right, and before she could look to her right the vehicle brushed past, ran over her left foot and knocked her to the asphalt.
2. The police report recorded that as the pedestrian was checking for traffic, the vehicle beeped and ran over the pedestrian's left foot.
3. The independent eyewitness statement said that the claimant was standing next to her parked car, looking both ways, and that the approaching car was travelling "at a very high speed"; it also said the claimant attempted to step back but was still hit. It further stated that the driver did not honk his horn before the collision.

1. The insured driver's oral evidence was that he was travelling along Flora Street toward traffic lights and was doing about 30 kilometres per hour, having slowed because the lights ahead were red. He maintained he first became aware of the claimant only when she "slammed into" the passenger side door and "whacked" the wing mirror.
2. He repeatedly maintained that the incident happened quickly, that the claimant came out from between parked vehicles, and that he had no opportunity to take evasive action.
3. He accepted the claimant was wearing a blue work uniform with yellow markings/stripes. He accepted it would probably have been easy to see, but maintained it would not have been visible in between two cars.
4. After the impact, he said he stopped within a few metres, got out, asked if she was alright, and she said she was fine; he then left because he felt threatened by bystanders.

1. The insured driver's evidence about the phone was emphatic, and it featured as part of his explanation for how the accident occurred. He asserted that the claimant had a phone in her hand when she struck his vehicle, and that the phone made contact with (or clipped) the wing mirror. He further said he told the claimant she should not be crossing the road while reading her phone.
2. The difficulty is that the phone allegation sits uncomfortably with other parts of the insured driver's account. He was equally emphatic that he did not see the claimant until the moment she collided with the vehicle. When pressed as to how he could know she was reading her phone if he did not observe her before impact, his answer remained essentially that he saw the phone at impact because "the phone smacked into" the vehicle.
3. There is also an internal tension in the insured driver's description of the phone as a salient feature at the time. He said he admonished her for it, but he was unable to recall what response she gave. When questioned further, he shifted from presenting it as a contemporaneous observation to rationalising it by reference to his later general experience of seeing many pedestrians cross with phones. That shift reduces the probative force of the phone allegation as a reliable indicator of what occurred immediately before impact.
4. I treat the phone allegation with caution. It is possible the insured driver observed a phone in the claimant's hand after the collision (including when she was seated on the roadway) and that he conflated that observation with a conclusion about distraction before the impact. It is also possible he genuinely observed a phone at the moment of impact. The difficulty is that there is no objective corroboration of the phone allegation, and the claimant's and independent witness's accounts are inconsistent with distraction of that kind.
5. The phone anomaly does not of itself resolve the central question (who failed to take reasonable care such that the claimant's contributory negligence exceeded 61%). But it does mean that I do not accept the phone allegation as a secure foundation for any finding that the claimant was inattentive or distracted at the time she entered the roadway.

1. The claimant relied on the proposition that she was readily visible. The insured driver accepted the claimant was wearing a blue uniform with yellow markings and that it would likely have been visible, but he maintained that it would not be visible if she emerged suddenly from between parked vehicles.
2. The high-visibility aspect therefore cuts both ways. If the claimant was standing in a position where she could have been observed for a sufficient time in advance (as the claimant and independent witness suggest), the visibility of her clothing tends to support a conclusion that a reasonable driver exercising reasonable attention should have detected her. If, however, she emerged suddenly from between parked vehicles (as the insured driver asserted), then visibility alone does not answer the question; the issue becomes whether there was sufficient time and opportunity to perceive and respond.

1. The claimant's claim form referred to hearing a "beep" from the right immediately before impact. The police report recorded that the vehicle "has beeped" and ran over the claimant's left foot. The independent eyewitness statement, however, asserted that the driver did not honk his horn before the collision.
2. The insured driver did not give clear oral evidence about sounding the horn in his examination and cross-examination. The insurer's written submissions asserted that he beeped his horn.
3. I do not treat the horn as determinative. A horn could be sounded as a warning after a driver perceived a pedestrian hazard late; conversely, the absence of a horn would not necessarily establish fault if the driver did not perceive the hazard in time. The evidence on this point is mixed. I place little weight on it in resolving the central issue.

1. There is no dispute that the claimant's left foot was run over and that she sustained a fracture to the base of the fifth metatarsal. The real difficulty is reconciling (a) the injury (left foot run over) with (b) the claimed point and nature of contact (side door/wing mirror), and (c) the competing accounts about where the claimant was positioned and how the collision occurred.
2. The insurer submitted (including orally) that a collision with the side of the vehicle supported the inference that the claimant must have moved into the vehicle's trajectory (including laterally), because if she had been stationary beside her vehicle the front of the insured vehicle would have struck her. The claimant submitted, in response, that the injury mechanism could not be confidently reconstructed from the available evidence; she might have stumbled or her left foot might have been positioned forward at the time of impact, without it following that she "walked into" the vehicle as alleged.
3. In my view the mechanism of injury is not capable of precise reconstruction. However, two propositions may be stated.
4. First, the fact of a left-foot run-over is consistent with the claimant being in close proximity to the vehicle as it passed, and with her left foot entering, at some point in the sequence, the path of a wheel. It does not, by itself, establish whether her movement into the roadway was sudden or whether she was already in the roadway when the vehicle approached.
5. Second, the fact that the insured driver's account emphasised contact with the side door and wing mirror tends to favour the conclusion that the collision occurred as the vehicle was passing, rather than as a frontal impact on a pedestrian squarely in front. That is a feature which, if accepted, makes it less likely that the claimant remained wholly off the roadway until impact.
6. That said, the insured driver's description of the phone clipping the wing mirror and his attempt to incorporate the phone into the mechanism of injury reduces the reliability of his "mechanism narrative" at its edges. It is necessary to focus on what is securely established: the collision occurred, the claimant's left foot was run over, and the claimant fell.

Findings as to breach and comparative responsibility

1. It is well established that the exercise of reasonable care by a motorist requires reasonable attention to what is occurring on and near the roadway that may present a source of danger. Flora Street is a residential street with vehicles parked along its sides. Those conditions create an obvious possibility that pedestrians may be present and may attempt to cross the roadway from between parked vehicles.
2. However, the law does not impose strict liability upon a driver for all pedestrian movements, including sudden movements into the vehicle's path. Nor is the question answered by asking whether the accident might have been avoided had the driver travelled more slowly. The inquiry is whether, in the circumstances as they presented, the driver failed to exercise reasonable care. To reason backwards from the fact of the accident to conclude that a slower speed would have avoided it risks the hindsight reasoning criticised in Mobbs v Kain [2009] NSWCA 301; Aust Torts Reports 82-037.
3. In the present case, the question is whether the insurer has satisfied the Commission that the claimant failed to take reasonable care for her own safety to such an extent that her contributory negligence exceeded 61%.
4. I accept that aspects of the insured driver's evidence raise difficulty, particularly his assertion that the claimant was reading or using a mobile phone at the time of the accident. The insured driver maintained that he did not see the claimant until the moment of impact, yet also asserted that she was reading her phone. The explanation he offered was that he observed the phone when she struck the vehicle. That explanation does not establish that the claimant was distracted prior to entering the roadway. I therefore do not treat the phone allegation as a reliable explanation for the occurrence of the accident.
5. I also do not regard the evidence concerning the sounding of a horn as materially resolving the dispute. The claimant's contemporaneous account refers to hearing a horn immediately before the collision, whereas the independent witness asserts that no horn was sounded. The insured driver's oral evidence did not clearly resolve that inconsistency. In those circumstances the horn evidence does not materially assist in determining how the accident occurred.
6. The central factual issue therefore becomes whether the claimant was standing beside her vehicle exercising reasonable care before crossing, as she contends, or whether she entered the roadway without adequate vigilance and moved into the path of the insured vehicle.
7. The most persuasive objective feature is the point of contact described by the insured driver. His evidence was that the claimant struck the passenger side of the vehicle in the vicinity of the door and wing mirror. That description is consistent with the claimant having moved into the roadway at a time when the vehicle was already passing. It is less consistent with the claimant remaining stationary beside her vehicle and being struck by the front of the vehicle.
8. This feature is significant. Where the evidence indicates that a pedestrian collided with the side of a passing vehicle rather than being struck by its front, the inference that the pedestrian entered the vehicle's path at a time when the vehicle was already passing becomes materially stronger. The photographic evidence of the insured vehicle taken shortly after the accident also depicts the vehicle travelling in the traffic lane at some distance from the kerb, with parked vehicles aligned along the kerbside. That positioning is broadly consistent with the insured driver's evidence that he was travelling along the roadway but not immediately adjacent to the parked vehicles. On her own account she did not see the approaching vehicle before the collision occurred. Whatever checking she undertook, she entered a position where an oncoming vehicle travelling along the roadway from her right was able to run over her left foot.
9. I also accept that the claimant was wearing a blue uniform with yellow markings. Such clothing would ordinarily make a pedestrian more visible to an approaching driver. However, the insured driver's evidence was that the claimant emerged from between parked vehicles. Visibility of clothing cannot overcome the practical limitation that a pedestrian emerging suddenly from between parked vehicles may only become visible to a driver at the moment of entry into the roadway.
10. On the other hand, the claimant's account receives some support from the police report recording that she was checking for traffic, and from the independent witness statement describing her as looking both ways before the accident. Those accounts, although untested, provide some basis for concluding that the claimant did not act with complete disregard for approaching traffic.
11. Weighing those matters together, I am not satisfied that the insured driver's account establishes that the claimant was wholly responsible for the accident. The internal difficulty in his evidence concerning the phone, together with the existence of other accounts suggesting that the claimant had at least attempted to check for traffic, means that I am not satisfied that the accident was caused wholly by the claimant's fault.
12. In those circumstances, the fact that the accident might not have occurred had the vehicle been travelling more slowly does not of itself establish negligence or causation, because the relevant inquiry is whether the driver failed to exercise reasonable care in the circumstances as they presented, not whether a different speed would have avoided the accident.
13. The question then becomes whether the insurer has nevertheless discharged the evidentiary burden of establishing that the claimant was mostly at fault.
14. I am also satisfied that the insured driver was not entirely free from responsibility. He accepted that his attention was directed toward the traffic lights ahead rather than toward the side of the roadway. In a residential street with parked vehicles, a reasonable driver must maintain some vigilance to the possibility that pedestrians may emerge from between parked cars.
15. The task is therefore one of comparative responsibility. That exercise requires consideration both of culpability, in the sense of the degree of departure from reasonable care, and of causal potency, namely the relative importance of each party's conduct in bringing about the accident.
16. In the present case the claimant created the immediate risk of collision by entering the roadway without ensuring that it was safe to do so. The insured driver's conduct, although not exemplary, did not have the same causal significance as the claimant's movement into the path of a vehicle that was already travelling along the roadway.
17. Having regard to both culpability and causal potency, I am satisfied that the claimant's failure to ensure that the roadway was clear before entering it was the dominant cause of the accident.
18. I am therefore satisfied that the insurer has discharged the evidentiary burden of establishing that the claimant's contributory negligence exceeded 61%. The motor accident was therefore caused mostly by the fault of the claimant for the purposes of ss 3.11 and 3.28 of the MAI Act.
19. In terms of percentage, the competing accounts and the limitations of the evidentiary record make spurious precision inappropriate. Nevertheless, the evidence clearly supports a finding that the claimant's share of responsibility exceeded the statutory threshold. On the whole of the evidence, I assess the claimant's contributory negligence at 70%.
20. Accordingly, I determine that the claimant was mostly at fault within the meaning of the MAI Act.