Pedestrian’s claim for damaged belongings after a motorbike collision fails on appeal (ACAT, 2026)

What happened

On Sunday 23 April 2023 at about 6:25 pm, a pedestrian got off a bus on John Gorton Drive, a dual carriageway in the Molonglo Valley, and walked to a traffic-light intersection where Fred Daly Avenue and Steve Irwin Avenue meet the main road. He crossed the northbound lanes, reached the large middle pedestrian island, then moved into the southbound lanes. A motor scooter travelling south struck him. He suffered a serious fracture to his left lower leg, plus grazes and bruising, and several of his belongings were damaged.

The pedestrian's account was that the pedestrian signal was green when he started to cross, that it began flashing when he was about halfway, and that he saw no vehicles or headlights before he heard a loud engine noise and was hit. The rider's account was that he had a green light, that he was about 100 metres away when a first pedestrian ran across in front of him, that he eased off from 70 km/h to about 60 km/h in response, and that the second pedestrian then moved suddenly off the island directly into his path, leaving him about a second to brake and swerve left.

An independent witness was waiting in his car on Fred Daly Avenue to turn right. He gave a written statement and oral evidence that the pedestrian signal was red, that the pedestrian did not look both ways, and that he stepped into the scooter's path with no time for the rider to prevent the collision. The first pedestrian who had crossed earlier was not called as a witness; a text message from him said he only noticed the accident after it had happened.

The pedestrian got help from the Youth Law Centre, run by Legal Aid ACT, which sent a letter of demand for $8,891.95 for property damage in July 2023 and an amended demand in October 2023. Both were rejected. A separate personal injury claim was made under the motor accidents injury scheme, which the rider facilitated without admitting liability. The appeal tribunal said that did not imply any admission in the property claim.

What each side wanted

The pedestrian applied to the tribunal in September 2024 for about $6,000 in compensation for damaged property, later amended to $5,819.69 plus the filing fee and interest, on the basis that the rider had been negligent and was travelling too fast. The rider denied liability, saying he had a green light, was not speeding, slowed down when the first pedestrian crossed, and had no way to avoid a person who walked onto the road in front of him. On appeal the pedestrian argued the original tribunal had found he "suddenly ran into the road" without objective or corroborating evidence such as CCTV, had applied the wrong standard of care under the Civil Law (Wrongs) Act 2002, had not given him procedural fairness, had not taken his vulnerability into account, and had given too much weight to the rider's oral evidence.

What the tribunal decided

The original tribunal dismissed the claim on 5 March 2025. It found the pedestrian had not established negligence: the rider plainly owed a duty of care to other road users, but the tribunal was not satisfied on the balance of probabilities that he had breached it.

On appeal, the Presidential Member made one order on 28 May 2026: "The appeal is dismissed." No money was ordered to be paid by either side in the part of the decision available here. The appeal tribunal also acknowledged the long delay in finalising the decision and accepted responsibility for it.

Why the tribunal decided it that way

A claim in negligence in the ACT is governed by the Civil Law (Wrongs) Act 2002. The person bringing the claim has to prove four things: that the other person owed them a duty of care, that the duty was breached, that the breach caused the harm, and that the harm included the loss claimed. "Harm" includes property damage, and "negligence" means a failure to exercise reasonable care and skill. Section 42 sets the standard as what a reasonable person in that position, knowing what they knew or ought to have known at the time, would have done. Section 43 says a person is not negligent for failing to guard against a risk unless the risk was foreseeable, not insignificant, and a reasonable person would have taken the precaution.

The standard of proof is the balance of probabilities, which means more likely than not. The appeal tribunal set out that if the evidence leaves the tribunal unsure where the truth lies, or the case is evenly balanced, the person bringing the claim has not proved it. It also noted that a finding that someone failed to discharge the onus of proof does not mean their evidence was disbelieved; it means the evidence was not enough.

The original tribunal preferred the rider's and the independent witness's accounts, finding it more likely than not that the pedestrian stepped out suddenly in a way that made the collision impossible to avoid, and that the rider faced a green light. It accepted that motorists owe a high standard of care towards pedestrians, but found that once the first pedestrian had cleared the road the danger had passed, and that reasonable care did not require the rider to slow down any further.

On appeal, the task is not to re-run the case. An appeal by way of rehearing requires the appellant to point to an error of fact or law that was material to the result, and findings based on seeing and hearing witnesses are not lightly overturned. The appeal tribunal noted the original tribunal had said the pedestrian "stepped out suddenly", not that he ran, and that this finding was supported by probative evidence from the rider's crash report, statements and oral evidence, and from the independent witness's statement and oral evidence, which did not waver under cross-examination. The published text available here stops partway through the discussion of the grounds of appeal, so the full reasoning on each ground is not set out above.

What this means if you are in a similar position

If you are in a similar position, this decision shows how a tribunal handles a road collision claim where there is no footage and the two accounts conflict. The person bringing the claim carries the burden of proof. Being injured, and being a pedestrian, does not shift that burden: the tribunal still has to be satisfied it is more likely than not that the other person failed to take a precaution a reasonable person would have taken, and that the failure caused the loss.

It also shows how much weight an independent witness can carry. The witness here had no connection to either party, wrote his statement without seeing anyone else's, and held to his account under questioning. The decision also illustrates that an appeal is not a second attempt at the same hearing; the appellant has to identify a specific error that changed the result, and findings that rest on the original decision-maker seeing and hearing the witnesses are hard to disturb.

Another point worth noting is that one insurer or scheme assisting with a personal injury claim does not mean liability is admitted for a separate property damage claim. In disputes of this kind the usual first step is a written demand to the other party setting out what happened, what was damaged and what is sought, as happened here before any tribunal application was filed.

How to apply: our step-by-step guide to a ACAT application. More decisions: ACAT cases and other civil disputes.

Source: YE v RALSTON (Appeal) [2026] ACAT 28 (read the full decision). This summary was prepared from the published decision for general information. It is not legal advice, and the tribunal’s own reasons are the authoritative record.