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Motorbike Rider Sues Kangaroo and Wins!

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Football, Meat Pies, Kangaroos and No Fault Motor Vehicle Accidents in NSW

Those who have been unfortunate enough to hit a kangaroo on our roads may be pleasantly surprised if this happens on a NSW road, after a recent case in the NSW Supreme Court.

Under new no fault provisions in the Motor Accidents Compensation Act 1999 NSW, drivers can make a claim for damages for personal injury in certain circumstances where a kangaroo, or any other animal, hops or runs into the path of their car or motorcycle and causes them to crash and/or sustain injuries from the impact (much like suing the kangaroo!).

The NSW motor accidents legislation contains a ‘no fault’ provision under Sections 7A to 7F of the Act. In the case of Melenewicz v Whitfield [2015] NSWSC 1482 the injured person was riding a BMW motorcycle on the highway between Hungerford and Bourke on the 12th August 2011, when a kangaroo leapt into his path and knocked him off his motorbike. The injured person brought proceedings against the owner of the motorcycle and the CTP insurer (the insurer nominated with the registration of the motorcycle). The owner of the motorcycle was indemnified by the CTP insurer. The injured person was relying on the blameless motor accident provisions under the NSW Act. Judge Hamill of the NSW Supreme Court found that the blameless accident provisions could apply to a driver or rider of a motorcycle. Judge Hamill followed a decision of Judge Norton in the District Court in a case of Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89 (a case that involved a tree falling onto a truck cabin), and found that the rider of the motorcycle could make a claim pursuant to those sections. However, there was also a proviso for damages to be reduced for contributory negligence under Section 7F of the Act. Put simply, this means that if you are driver/rider and the accident is partially your fault, your damages are reduced by the percentage of your proportion of responsibility.

In the Melenewicz decision above the Judge found that the plaintiff did not have sufficient time to react to avoid the presence of the kangaroo on the roadway and that the accident was caused not by the speed of the injured person’s motorcycle, but by the kangaroo crossing the road when it did.

The Melenewicz case expands the blameless accident provisions to drivers in single motor vehicle accidents who perceive a risk but have no opportunity to react to it. Other examples can be extrapolated from this case. For example, if other livestock or animals stray onto the road and if the driver has no time to react to their presence and a collision occurs, then compensation is payable under the no fault provisions.

Please note these claims are limited to damages for personal injury and do not cover property damage to your car or motorbike.

Anyone who suffers an injury as a result of a collision with livestock or fauna on NSW roads should contact our office for advice. Even though the animal may not be covered by any policy of insurance, you may be still covered under the insurance through your own vehicle in a ‘no fault’ claim. Time limits apply to lodge your claim form and you should report any accident to the police. Claim forms are required to be lodged within 6 months of the date of accident, although extensions of time can be granted if there is a full and satisfactory explanation for the delay.

If you require any further information please do not hesitate to contact Department Manager Kelli Costin on 07 5506 8220, FREECALL: 1800 621 071 or email: kcostin@attwoodmarshall.com.au. We will arrange an obligation free consultation so that you can find out where you stand. We accept most cases on a no win no fee basis.

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