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Kangaroo Appeals and Wins in Motorbike Case!

The NSW Court of Appeal has recently handed down its decision in an Appeal hearing in the case of Whitfield v Melenewycz [2016] NSWCA 235. You will note in our earlier blog we set out the facts of a case where a motorcycle rider previously was successful in a claim under the ‘blameless motor accident’ provisions of the NSW Motor Accidents Compensation Act in circumstances where the motorcycle he was riding collided with a kangaroo on a country stretch of road. He was awarded damages for his injuries suffered in the accident against the CTP insurer of the motorbike. The Court of Appeal has now overturned the decision of the Trial Judge and in effect entered Judgment in favour of the kangaroo!

The rider of the motorcycle was not the registered owner of the bike and this proved to be the main sticking point in the case.
The case turns on the interpretation of Section 7B of the Motor Accidents Compensation Act. Judge Meagher JA wrote the main Judgment in the matter which was confirmed by Simpson JA and Sackville AJA. Whilst the reasoning of the Court is detailed, the matter turns on whether there was any causative element by the owner of the vehicle, in deeming fault on the part of the owner.
Put briefly, the decision can be summarised as follows:-

  1. Section 7B sets out liability for damages in the case of a blameless accident where fault is deemed on the part of the owner or driver.
  2. A driver in a blameless accident cannot blame himself and claim compensatory damages.
  3. The plaintiff in this case was therefore only able to make a case of deemed liability against the owner of the vehicle.
  4. The plaintiff had to establish that his injury was caused by the deemed fault of the owner in the use or operation of the vehicle. To that extent, the relevant fault must be in the use or operation of the vehicle and the injury was caused by that fault.
  5. Noting the principles laid out by the High Court in Allianz Insurance Australia Limited v GSF Australia Pty Ltd [2005] HCA26, for a blameless accident to occur there must be a causative use by the owner of the vehicle.
  6. Given that the owner did not cause or contribute to the accident and given that the plaintiff could not sue himself, the plaintiff was left with no remedy.

So in a way the kangaroo won on appeal because the driver could not deem fault on the part of the owner of the vehicle. This decision seems illogical because it goes against the grain of a ‘blameless accident’ by saying the owner must be deemed to be the cause of the accident!
The Melenewycz case can be distinguished from the decision in Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89. In the Connaughton case, the plaintiff was placed in a position of driving during the course of employment by the owner of the vehicle, which was his employer. With the causative element established, the driver in the Connaughton case
could make a claim because he was in an employer/employee relationship. In that case a tree branch unexpectedly smashed through his truck window injuring him severely.

If in the factual example of the Melenewycz decision, the rider of the motorcycle had a passenger on the back of the motorbike, then that person would have been able to successfully “sue the kangaroo” because in those circumstances there would be deemed fault on the part of the driver of the vehicle. Unfortunately, because the rider of the motorcycle could not sue himself, he was left without redress.

The case may be appealed to the High Court, however the High Court would need to work within the parameters of the legislation. Justice Sackville noted that the deeming provision in Section 7B did not allow the owner driver in a single victim blameless motor accident a right to claim damages under the above provisions. No doubt further case law will be decided by the District Court and the Supreme Court on this issue.

With planned further changes to the NSW Motor Accidents Compensation Act coming into effect from the 1st July 2017, the decision may only have limited importance for the small window of claims up until the 1st July 2017. The NSW Liberal Government is presently contemplating changes to the NSW Motor Accidents Compensation Act to introduce a no fault scheme for all people injured in accidents and allowing a limited common law benefits scheme for those people with very severe injuries, restricted to those people with a level of whole person impairment above 10%. Whilst this system may seem superficially attractive, the real problem is in the detail with the stripping away of injured persons’ rights and individual persons at the mercy of the insurance companies to decide what benefits are payable in smaller claims.

Bowing to enormous communal pressure, the Baird Liberal Government recently reneged on its banning of the Greyhound Racing industry and may be persuaded to drop the proposed changes to the MAC legislation. You may obtain further information about this campaign here: https://www.facebook.com/saveourctp/

If you require any further information about personal injury claims, please do not hesitate to contact Department Manager Rhiannon Garrett on Freecall 1800 621 071 or email rgarrett@attwoodmarshall.com.au for a free initial consultation and our ‘no win no fee’ terms.

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Jeremy Roche

Jeremy Roche

  • Compensation Lawyer
  • Insurance Litigation
  • Direct line: 07 5506 8222
  • Mobile: 0417 731 119