The recent decision by the Court of Appeal in Whitfield v Melenewycz has had a bad result for these accident victims in which are involved in these one vehicle blameless accidents.
On 12 August 2011 the Plaintiff was the driver which was injured when the motorcycle he was riding collided with a kangaroo on an unsealed road in rural NSW. He brought proceedings in the Supreme Court against two Defendants; the owner of the vehicle and the relevant CTP insurer.
There was no suggestion that the Plaintiff had caused or contributed to the accident by any relevant use or operation of the vehicle. It was not his fault.
The Plaintiff claimed damages on the basis that the accident was a “blameless motor accident” and that the injury was deemed, by s7B(1) of the Motor Accidents Compensation Act 1999 (NSW) to have been caused by the fault of the owner in the use or operation of the vehicle as per the definition in the act.
The primary trial judge found that the accident was “blameless” that the deeming provision was engaged and that s7E did not operate to deny the respondent’s entitlement to recover damages. According he found that the CTP insurer was liable to the Plaintiff for damages.
The CTP insurer appealed this decision.
The CTP insurer argued that the s7B applied in the context of this claim and therefore the accident was not “blameless” accident in the scheme of the legislation.
In the Alternative the CTP insurer argued that the trail judge erred in his understanding of s7E, and suggested that it did apply in the context of this accident and as a result the Plaintiff was barred from the blameless accident provisions.
Justice Meagher, with Justice Simpson agreeing, found that s7B applies “for the purpose of and in connection with any claim for damages in respect of the death or injury”. Such claims may be made against the owner or the driver of the vehicle or both.
S7B(1) apportions fault upon the driver or the owner (or both) of the vehicle when they have the use or operation of that vehicle.
This means the s7B deems someone who was not involved in the use or operation of the vehicle to be involved in the use of operation.
S7A (the definition of a Blameless accident) outlines that a Blameless accident is one where no fault can be apportioned.
When s7A and s7B are read together s7B extends to apportion fault onto either the owner or the driver (or both) of the vehicle in this way s7A is engaged and the accident no longer become “blameless” for the purposes of the legislation.
Thus Justice Meagher found that the accident was not one which would come under the Blameless accident provisions and the appeal was upheld.
Justice Meagher went on the comment about s7E but found that the trial judge had not erred in his interpretation of the section.
This is not good news for single vehicle accident drivers as it has effectively locked out anyone from claiming under the Blameless accident provisions.
There is a glimmer of hope however. Justice Sackville dissented against the majority in their decision.
In his dissent his honour stated that:-
“The statutory language supports a construction of s7b(1) that limits effect to deeming someone not at fault to be at fault, rather than deeming someone who was not involved in the use or operation of the vehicle to be involved in the use of operation.”
His honour went on to state that this interpretation gives room for s7E to work, in situation where there is two vehicles, whereas Justice Meagher’s interpretation pretty much renders the provisions useless.
We have been informed that a further appeal is being prepared on the above grounds and will be heard in the High Court in the near future. There is hope at least that the blameless accident provisions can be kept alive.