As documented in our previous article published on 23 July 2015, which examined the case of Gary Connaughton v Pacific Rail Engineering Pty Ltd NSW DC 89, the interpretation of Judge Norton in that case now opens up the blameless accident provisions in the Motor Accidents Compensation Act (NSW) 1999 (‘the Act) to cover drivers in single vehicle accidents involving inanimate objects and with no third party being involved.
For the purposes of this article, it would be useful to briefly revisit the general facts of the case. This plaintiff in this case was the driver of a registered truck, who was driving in a northerly direction on Mount Ousley Road at Mount Ousley. The defendant was the owner of the registered truck. It was alleged that as the plaintiff was driving north, a roadside tree fell and struck the cabin of the truck which then ran out of control and came to a halt.
However, this case was rather different as the accident was caused by a fallen tree, and not necessarily by a driver of another motor vehicle.
Previously, it has been suggested that the blameless accident provisions were introduced as a result of the accident in which Sophie Delezio was injured by a driver who claimed to have an epileptic fit. The provision was designed for the purpose of protecting an injured party, particularly a passenger or a pedestrian left at the peril of a driver who was blameless in the accident, as opposed to a person who was driving the vehicle.
Under section 7B of the Act, the provision seeks to deem the driver to be at fault, so that it would trigger the insurance coverage provided under section 10 of the Act for the driver who is supposed to compensate for the injured person’s losses.
In this case, the Court had to consider two issues:
1. Firstly, whether this was a motor vehicle accident under section 3 of the Act?
2. Secondly, whether this incident was a “blameless accident” as defined in section 7A of the Act, which extended to covering the blameless driver in a single vehicle accident.
To the first question, a motor vehicle accident in section 3 means an incident or accident involving the use of a motor vehicle that causes injury to a person, where the injury is a result of
In this case, it was clear that the truck was in use and the plaintiff consequently suffered injuries as a result of a collision with a tree that unexpectedly fell onto the truck. On the assessment of these facts, the Court concluded that the definition was satisfied.
To the second question, it was generally accepted and defined in section 7A of the Act that a “blameless accident” was an accident involving a motor vehicle that causes injury to a person during the driving of the motor vehicle; that is not caused by the negligence of the owner of the vehicle involved in the accident.
This definition when read in its literal sense appears to be clear in covering for persons injured in accidents, who were not negligent during the driving of the motor vehicle. In other words, a blameless driver of a motor vehicle who was injured in a single vehicle accident could arguably be entitled to make a claim under this provision.
As a result, this case has has stirred much commentary and controversy in the insurance sector about the potential breadth and application of this provision, which could extend to any accident involving a blameless driver who would want to claim for injuries suffered from a single vehicle accident.
The “noise” generated from this Court decision
Much of the debate has been advocated by the insurance sector for the exposure insurers are now faced with, from blameless accidents involving a single motor vehicle. For instance, incidents where a driver suffers from a stroke or heart attack and collides into a tree, or instances such as the present case where the plaintiff was driving a truck and is unexpectedly struck by a roadside tree. This case now opens circumstances for blameless drivers in pursuing a claim for injuries suffered in a single vehicle accident.
Much debate has arisen because these cases do not contain any element of fault nor another driver at fault who would be shielded by the insurance coverage provided under section 10. Section 10 states that a compulsory third party policy would only extend to covering the fault of the owner or driver.
It has been suggested that when section 7B of the Act is considered and read together with the blameless accident provision, the fact that section 7B appears to deem that a blameless driver is at fault, suggests that the blameless accident provision is limited to protecting a person who was injured in an accident caused by a blameless driver. Thus, a blameless driver who was merely injured in a single vehicle accident would be precluded from making a claim under the blameless accident provision.
In our view, section 7B was drafted for the purpose of merely triggering the insurance coverage available for a blameless driver who is asserted to be at fault for the injuries of a person. It should not be read as an indication of preventing blameless drivers from pursuing a claim under the blameless accident provisions in circumstances such as a single vehicle accident.
If this raises any concern, it is helpful to note that there is a safeguard in section 7E of the Act, which goes to prevent drivers in pursuing a claim through the blameless motor vehicle provisions for injuries suffered, if it is proved that the act or omission of the driver was the cause of the accident. This act or omission still holds even if it was involuntary or if it was not the fault of the driver.
It was suggested in the present case that the collision between the truck and the tree was an involuntary act by the plaintiff. Therefore, the plaintiff driver would not have been entitled to pursue a claim under section 7E.
However, the Court rejected this argument on the notion that the driving of the truck was no more than a background fact to explain how the plaintiff arrived to a position of being struck by a tree, so these series of events did not operate within section 7E of the Act. Arguably, there was no act, omission or involuntary act by the plaintiff because he was simply driving along the road in the ordinary state of things.
Rather, an involuntary act or omission under section 7E would be, say for an example, a driver who is driving along a highway and the driver happens to encounter a kangaroo. This forces the driver to swerve to avoid it and as a consequence the driver of the motor vehicle hits a tree. This involuntary act of avoiding the kangaroo and hitting the tree would be an example within section 7E that would prevent a blameless driver from pursuing a claim under the blameless accident provisions.
What blameless accident provisions mean now for injured drivers in a single vehicle accident?
It is reasonable to say that this recent Court decision has opened an opportunity for blameless drivers to make a claim for injuries suffered in a single vehicle accident. However, a blameless driver would have to rigorously justify how he/she was essentially and entirely “blameless”, and that there was no evidence to suggest there was an act, omission or involuntary act that contributed to the cause of the accident.
This present case certainly invites for more discussion and interpretations within the legal and insurance industries as it has just become more thought provoking. If you happen to be in an accident or have experienced an accident in the past in the lines of this court decision, the team at Gerard Malouf and Partners are happy to fully inform you about your case.