The plaintiff was riding a BMW F650 GS Dakar motorcycle on the Bourke-Hungerford Road between Hungerford and Bourke in New South Wales on 12 August 2011 when a large kangaroo leapt onto him and knocked him off his motorcycle. The plaintiff alleged that the circumstances of the accident was “blameless” and accordingly fell within the blameless accident provisions in Division 1 of Part 1.2 of the Motor Accidents Compensation Act 1999 (NSW).
Under section 7E of the Act 7E there is no entitlement to recover damages for the injuries sustained to the driver if the motor accident concerned was caused by an act or omission of that driver, or even in cases where there is “an involuntary act or omission”.
For example, a driver who encounters a cat darting across the road, and in turn swerves and collides into a tree as means to avoid the cat would arguably be “blameless” in the accident. However, the act of ‘swerving’ would be considered as an ‘act’ or of the driver causing the accident, which would strictly prevent the driver from pursuing a blameless accident claim.
In the present case, the plaintiff submitted that there was no evidence of an act or omission, which had caused the collision in the light of section 7E. The plaintiff sought to argue that there was a fundamental difference with an act or omission that causes an incident to occur and an act or omission that is “a background fact which explains no more than why he was in a position where he could be…” of been struck by a kangaroo. In other words, the plaintiff’s failure to react or his omission to react would not explain how he was struck by a kangaroo, i.e a “freak accident” in modern terminology.
The evidence at trial established that the plaintiff first saw the kangaroo blended in the bushes around 20 metres ahead of him, about six metres to the right side of the roadway and it was agreed that at a distance of 20 metres would have been incapable for the plaintiff to react either by braking, slowing down or swerving. The Court did not consider whether the ability to perceive danger and not reacting to the hazard would extend to the meaning of an “involuntary omission” that had caused the accident.
In our view, an involuntary omission would not extend to circumstances in which a driver is not expected to perceive or react to such danger, such as the case of Connaughton, when a truck driver travelling along the road was suddenly struck by a collapsing tree. This would not be contrary to the intentions of the provision in protecting road users in accidents where there is no element of blame. An involuntary omission would only suffice if it is demonstrated that the driver had an opportunity to react to a risk and omitted to do so.
Significantly, it is arguable that the Court in the present case has shed light on expanding the blameless accident provisions to drivers in single motor vehicle accidents who perceive a risk but have no opportunity reacting to such risk. This decision is welcoming to road users on country roads who are frequently faced with risks posed by trespassing wildlife.
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