RECENT COURT OF APPEAL DECISION CLARIFIES THE BLAMELESS ACCIDENT PROVISIONS FOR MOTOR ACCIDENT CLAIMS

Published 16 Nov 2016
Les Feher

Amendments were made to the motor accident laws in New South Wales apply from 1 October 2007 to allow claims to be made by persons injured in blameless motor vehicle accidents. Prior to these changes, a person injured in a motor vehicle accident could only bring a claim if they could show that their injuries were caused by the fault or negligence of another person. Under the Act, a blameless accident is defined 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 that vehicle, and not caused by the fault of any other person.

It was initially thought that the blameless accident provisions would allow claims to be made by a driver injured as a result of a sudden illness such as a heart attack or stroke which led to an accident, or a vehicle failure such as a tyre blowout or other single vehicle accidents such as where a driver has lost control of their vehicle as a result of an animal running out on to the roadway and causing an accident.

The Court of Appeal has clarified a number of issues regarding how the blameless accident provisions are to be applied in a decision involving a motorcycle rider who was riding alone and sustained injury as a result of colliding with a kangaroo. The rider was not the owner of the motorcycle and brought a claim against the owner and his CTP insurer under the blameless accident provisions of the Act.

The Court of Appeal found that the motorcycle rider could not be successful in his claim and found as follows:

1. In order for a motor vehicle accident to be considered "blameless" under the relevant provisions, it must be one that is caused by the use or operation that does not involve fault. Mere ownership of the vehicle is not sufficient. In this case, there would have had to be some element of driving or operation of the vehicle by the owner for the owner to be deemed to be at fault by the blameless accident provisions.

2. A driver who is also the owner of the vehicle in which he was injured would not be entitled to claim damages against himself as an owner. This would exclude claims by drivers involved in single vehicle collision who sustain injury as a result of losing control of their vehicle by reason of a sudden illness such as a heart attack or stroke.

3. It follows that single vehicle accidents may fall within the ambit of the blameless accident provisions, provided that the driver is not also the owner of the vehicle, but only where there is some relevant act by the owner of the vehicle in the use or operation of the vehicle causing the injury. For example, a passenger who is injured in a motor vehicle accident caused by a sudden illness of the driver such as a heart attack or stroke, is still be able to pursue a claim under the blameless accident provisions of the Act.

4. Each driver of a vehicle involved in an accident that is said to be blameless may make a claim for damages for their injuries caused by any other driver or owner of the vehicle, or any other vehicle involved. For example, if another driver or a pedestrian is injured as a result of the driver of a vehicle losing control of their vehicle due to a sudden illness such as a heart attack or stroke, then that driver or pedestrian can still bring a claim.

The decision of the Court of Appeal significantly restricts the rights of an injured person in a single vehicle blameless accident. The decision is presently subject to an application for leave to appeal to the High Court of Australia.