The curious case of Burton v Martin – Would the fault of any person be sufficient to dismiss a blameless accident argument?

Published 23 Feb 2016

The discussion on what is a blameless car accident continues to provoke hair raising questions amongst lawyers. In this article, we consider an unreported decision of Ashford DCJ in Burton v Martin (unreported DC 13 November 2014).

The plaintiff was 5 years of age at time of accident and a pedestrian accompanied by her older sister and grandmother.  The three were crossing Bathurst Road in Orange.  They had crossed as far as the median strip and the plaintiff then darted out in front of a motor vehicle.

At trial, the plaintiff argued that either there was fault on the part of the driver of the motor vehicle, or in the alternative, this case was an uneventful blameless accident. In summary, pursuant to section 7A of the Motor Accidents Compensation Act 1999 (NSW) (MAC) a blameless accident is an incident not caused by the fault of the driver of any motor vehicle involved in the accident in the use or operation of the vehicle and an incident that was not caused by the fault of any other person.

It is understood amongst lawyers that a blameless accident must not contain or involve any element of fault, or in modern terms, a “freak accident”. The plaintiff successfully argued that there was no “fault” on the part of the grandmother, who was accompanying her as she crossed the road, so theoretically the accident was not a result of the fault of any other person’. However, it was not argued at trial that the grandmother could not be considered “any other person” for the purposes of section 7A.  It was seemingly accepted by the parties that the grandmother would be “any other person”.

The CTP insurer (NRMA) challenged the trial judge’s verdict in the Court of Appeal, arguing that there was fault on the part of the grandmother.  

Having to hear the submissions from the parties in the matter, the Court of Appeal interestingly raised an issue as to whether the phrase “any other person” should be given a narrower interpretation.

The argument put forward by the plaintiff on the appeal, (having taken the hint from the Court of Appeal), the plaintiff/respondent was effectively arguing that Section 7A should be read as being limited to motor accidents “not caused by the fault of any other person (in the use of a motor vehicle causing injury within the scope of the MAC Act).” The effect of this argument would certainly prevent parties from denying the case of a blameless accident by way of directing fault to any legal person whatsoever.