Published 01 Aug 2011
The Legislation governing motor vehicle accidents in NSW has predominantly been a fault-based system i.e. where you can prove that the driver is at fault, you will be successful. However, there are provisions for blameless accidents from 1 October, 2007. This is governed by the legislation known as the Motor Accidents Compensation Act 1999 at S.7.
The legislation defines a blameless accident as a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use and operation of the vehicle and not caused by the fault of any other person. As set out in the Motor Accident Personal Injury Claim Form that one is to lodge if one has a claim, as per the front cover, examples are given and include:
- accidents resulting from the sudden illness of a driver such as a heart attack
- or stroke or
- vehicle failure, such as a tyre blow-out.
It goes on to state that you can make a claim if you were the passenger, pedestrian, cyclist, pillion passenger, driver or motor cycle rider.
However, there are special rules to drivers and motor cycle riders in blameless accidents i.e. you may not be entitled to make a claim if you were injured in a single vehicle accident or if you were driving or riding the vehicle that caused the accident i.e. you were the driver that suffered a medical condition which resulted in the motor accident.
The legislation therefore seems to cover an injured party, particularly a passenger left at the peril of a driver who has a blameless accident. The legislation deems the driver to be at fault. That way the victim does not miss out in compensation.
This is set out in Part 7B of the Motor Accidents Compensation Act, 1999. It states there that:
the death or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is…deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.
Another requirement is that the accident must occur in NSW. 7E confirms that there will be no coverage for the driver who caused the accident.
There are special benefits for children as set out in the Motor Accidents Personal Injury Claim Form on the front cover for accidents that occur from 1 October 2006. It states that you may make a claim for children’s special benefits even if the accident was not caused by the fault of an owner or driver of a motor vehicle accident i.e. the accident was caused by the child, provided that the following is satisfied:-
(1) The accident happened on or after 1 October, 2006.
(2) The child was under 16 years of age at the time of the accident.
(3) The child lived in NSW at the time of the accident.
The legislation on this is governed by the Motor Accidents Compensation Act 1999 at S.7. This also allows for damages for children where the driver or the owner was not at fault in the use or operation of the motor vehicle and death or injury results. This provision deems it to have been caused by the fault of the owner or driver of the motor vehicle as long as the owner has insurance cover for the accident.
In this way the injured child is not precluded from recovering compensation, even though the driver was not at fault. There are also special entitlements to recover damages in respect of the death or injury of a child. These include:-
(a) hospital, medical and pharmaceutical expenses;
(b) rehabilitation expenses;
(c) respite care expenses;
(d) attendant care services expenses;
(e) funeral or cremation expenses.
There are further requirements to receive this special entitlement. It must be that the motor accident occurred in NSW after 1 October, 2007 and the definition of child means a person who is under 16 years of age at the time of the accident.
Claims where a child is at fault, in respect of the death or injury of a child.
A court is not to award damages in accordance with S.7K of the Motor Accidents Compensation Act 1999in respect of the death or injury of a child if : -
(a) the Court is satisfied that the death of or injury to the child … constitutes a serious offence on the balance of probabilities; and
(b) the conduct contributed materially to the death or injury or the risk of death or
injury and if it is classified as a serious offence i.e. an offence punishable by
imprisonment for 6 months or more.
So in the above circumstances a child will miss out on compensation if the above criteria are present.
Contributory Negligence of a Child
In accordance with S.7L where a child and the driver are at fault there is not to be a reduction on account of contributory negligence of the child. That means that there is not to be a reduction in damages on account of the contributory negligence of a child as set out in S.7P.