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Blameless accidents – Can you cause the accident and still claim compensation?

The 2006 amendment to the Motor Accident Compensation Act 1999 introduced two no fault schemes into Chapter 1 of the act. The first of which is for “recovery of compensation for blameless accident”.

The act defines “blameless accidents” 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 or operation of the vehicle and not caused by the fault of any other person.”

An import aspect of the blameless accident provision is that no party to the accident can be deemed as at fault of causing the accident.

Section 7E entitled “No coverage for a driver who caused accident” outlines that there is no entitlement to recover damages under the blameless accident provisions in respect to the death or injury to the driver of a motor vehicle if the accident was caused by an “act” or “omission” of that driver.

The section continues:-

“The death of or injury to the driver is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if:

(a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or

(b) the act or omission was involuntary, or

(c) the act or omission was not the sole or primary cause of the death or injury, or

(d) the act or omission would have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event.

Broadly speaking blameless accidents can be separated into two different categories. Firstly an accident involving one car and secondly an accident involving two cars.

To date there has been very few cases which have tested the blameless accident provisions.

One Car Accidents

Garry Connaughton v Pacific Rail [2015] was the first real time a one car accident was tested. In the case a tree branch fell on the car as it was driving along the high way. The court essentially proposed a three step test to determine in the blameless accident provisions apply.

  1. Has there been a motor vehicle accident?
  2. If yes, is it a blameless accident
  3. Is the plaintiff excluded from recover under s 7E of the act?

The court ultimately found that this was a blameless accident and it has become the precedent for all blameless accident tests.

Since then some cases have tried to make comments in the same vain.

  1. Hossain v Mirdha [2015] claimed that swerving to stop from running over a dog was blameless. The court held that this was incorrect as it was the act of the driver swerving that caused the accident and therefore S7E came into play.
  2. Melenewycz v Whitfield [2016] tried to claim that a kangaroo jumping into a motorcycle riding was blameless. At first instance the judge found in favour of the Plaintiff but upon appeal found that since the driver omitted to swerve from the kangaroo they were at fault.
  3. Hobbs v Fairall [2016] was an interesting case where a horse rider was thrown from their horse into an oncoming car. While the driver of the car was found to be fault the judge considered the blameless accident provisions. Finding that even if the driver of the vehicle was at fault the existence of the horse does not change the outcome of the case.

Two Car Accident

There has been even fewer two car accidents cases in relation to blameless accidents.

In the matter of Bramstedt v Nominal Defendant [2016] a driver come across a patch of road where the gravel had been dropped earlier. The Plaintiff applied their breaks and as a result lost control of the car slide onto the wrong side of the road and collided with another car.

The court found that the act of breaking while on the gravel was an “act” under s7E of the Act and therefore the Plaintiff was precluded from making a claim under the blameless accident provisions.

So where do we stand?

Currently we are no clearer in finding out when the blameless accident provisions will apply. We know that in freak accidents involving one car that they would apply. We know that if a horse throws a rider onto a car because the car scares the horse it is a blameless accident.

In the alternative we know that swerving (or omitting to swerve) out of the way of an animal does not count as a blameless accident as this is an “act” (or “omission”) which leads to the accident.

Section 7E (2) adds an extra threshold which sifts a lot of the potential claims out. Before starting a claim one must seriously consider was there something I could have done to avoid the accident and was the accident was my fault.

At Gerard Malouf and Partners we are compensation expert. We look the legislative and common law changes keenly to ensure that we produce to best outcome for each of our clients. We keep abreast of recent court decisions so as to be able to advise our clients.

We have an expert team of barrister who also are able to provide assistance and advice of the subject. We do all this to ensure we maximise our client’s entitlement and to make sure we provide them with up-to-date advice. All of which is done with our no win no fee cost agreement.

Have you been involved in a blameless accident? If so please contact us for a free consultation so that we can show you how your rights can be protected. We have a team of accredited specialist lawyers waiting to help you.

About Us
Gerard Malouf & Partners have provided friendly, experienced legal advice to communities across Australia for over 35 years. Our Personal Injury Lawyers have taken on ten’s of thousands of cases and we are proud to have won billions of dollars for our clients.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.
Meet the diverse and dynamic team of compensation lawyers and supporting staff that have made this all happen below. Our multi-lingual team can discuss your claims in Arabic, Assyrian, Turkish, Greek, Italian, French, Serbian, Croatian, Armenian, Mandarin, Hindi, Punjabi or Malayalam.

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