In Issue

  • Whether the blameless accident provisions in NSW apply to a driver involved in a single vehicle accident.
  • Whether the driver is able to claim against the owner of the vehicle when the owner was not involved in the use or operation of the vehicle that caused the injury.

The Background

On 12 August 2011, the respondent was riding his friend’s motorcycle in a southerly direction between Hungerford in Queensland and Bourke in New South Wales when he or his motorcycle (or both) collided with a kangaroo.

The respondent brought an action against the owner of the motorcycle and the third-party insurer (the first and second appellants) for recovery for a “blameless accident” under Division 1 of Part 1.2 of the Motor Accidents Compensation Act 1999 (NSW) (MACA).

The appellants submitted that the effect of s 7E MACA (which provides that a driver cannot recover damages under Part 1.2 where the collision was “caused by an act or omission of that driver”) was to exclude all claims by drivers of motor vehicles (or motorcycles) and specifically drivers involved in single vehicle accidents. The appellants also argued that, in any event, the respondent caused the accident and therefore it was not a blameless accident. They argued that the respondent was negligent by riding at an excessive speed and by failing to keep a proper lookout for the kangaroo.

The Decision at Trial

The Supreme Court found favour of the respondent. The trial judge held that the accident was a “blameless motor accident” in accordance with the MACA on the basis that the respondent was not negligent in driving the motorcycle and there was no negligence of any other person. The trial judge also held that s7E MACA did not apply to deny the respondent any entitlement to recover damages.

The Issues on Appeal

Leave to appeal was granted by the Court to determine whether s7B MACA deems fault on the owner in the use or operation of the vehicle where the incident or accident involving the use or operation that caused the injury does not include any use or operation by the owner.

The Decision on Appeal

The Court of Appeal confirmed that s7B MACA could be relied upon to make a claim for damages against the owner or driver (or both) of a motor vehicle if it could be established that there was fault in their use or operation of the vehicle and that injury or death was a result of the fault. The Court of Appeal defined a blameless motor accident to be one in which there was a causative use or operation by the owner or driver (or both) but not fault in that use or operation. The Court of Appeal held that the accident did not involve a causally related use or operation by the appellant owner and therefore the section did not deem fault. The respondent’s claim for damages under s7E MACA therefore failed. The Appeal was allowed and the respondent was ordered to pay the appellants’ costs.

Implications For You

In order for a driver to recover damages in accordance with s7E MACA, a driver involved in a blameless motor vehicle accident will be required to prove that the owner of the vehicle was at fault by reason of the owner’s causative use or operation of the vehicle.

Whitfield v Melenewycz [2016] NSWCA 235