The Facts
Experienced motorbike rider injured in collision with kangaroo
As the judge noted, it was a case that “could only have taken place in Australia”. A motorbike rider who had borrowed the motorbike from his friend was travelling along an unsealed dirt road from Noccundra through Hungerford in Queensland, to Bourke in NSW, when a kangaroo bounded out onto the road and collided with the motorbike.
The rider was thrown from the motorbike onto the ground, landing heavily on his right shoulder, and lost consciousness.
Rider of motorbike brings legal action against its owner
The motorbike rider brought a legal action against his friend, the owner of the motorbike, and the friend’s third-party insurer. The basis of the claim was that the motorbike rider had been injured in a “blameless accident”, as defined by the Motor Accidents Compensation Act 1999, and that, according to the statute, he was entitled to claim for damages via the third party insurance policy held by the owner of the motorbike.
Expert commentary on the court's decision
Blameless accidents and the CTP insurance scheme
The legal arguments in this case revolved around the interplay between a number of sections of the Motor Accidents Compensation Act – section 7A, which provides a definition of a blameless motor accident, section 7B, which extends the scope of the Compulsory Third Party (CTP) insurance scheme to blameless accidents by deeming the owner or driver of the vehicle to be at fault, and section 7E, which precludes the driver of a vehicle from recovering damages if the accident in question was caused by an act or omission of the driver.
The complexity of this legislation and the extent to which it is open to interpretation is demonstrated by the fact that the Supreme Court decided in favour of the motorbike rider, but the Court of Appeal overturned the decision and decided in favour of the bike owner and the owner’s insurer. (See Melenewycz v Whitfield [2015] NSWSC 1482 and Whitfield v Melenewycz [2016] NSWCA 235.)
Supreme Court finds that motorbike rider entitled to claim damages
The judge in the first court case rejected submissions on behalf of the motor bike’s owner that the accident was caused by an act or omission of the rider and that the rider was negligent.
The judge’s view was that the motor accident was blameless and that the law did not disentitle the motor bike rider from claiming damages.
“Fault of the owner in the use or operation of the vehicle”
The Court of Appeal agreed with the first court that the motorbike rider was not to blame in the accident, however it took a different view on the issue of whether the particular legislation entitled the motorbike rider to recover damages.
The appeal focussed on the wording of section 7B of the legislation, the deeming provision, which refers to “the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle”.
The argument was that section 7B could not apply because the “fault of the owner in the use or operation of the vehicle” could not be established, because the accident which caused the motorbike rider’s injuries did not involve any use or operation of the motorbike by its owner.
The Court of Appeal accepted this interpretation in overturning the initial decision. The lucid explanation provided by one of the Court of Appeal’s judges clarifies the reasoning behind their decision:
In other words, the Court of Appeal concluded that the wording of the legislation, as passed by the NSW Parliament, meant that the motorbike rider was not able to recover damages from the third party insurer of the motorbike even though the accident was not his fault.
[Editor’s note: the legislation has changed since this decision was published. The Motor Accidents Compensation Act 1999 is no longer relevant and the NSW Motor Accidents Injuries Act 2017 applies to all accidents after 1 December 2017. Under current laws, the owner of the motorbike did not cause or contribute to the accident and given the injured person cannot sue himself, he is left with no remedy. A driver in a “blameless accident” cannot blame himself. If the accident occurred after 1 April 2023, the injured person would be entitled to statutory benefits for 52 weeks regardless of “fault”.]