Do not deem me at fault; I only employ the driver – Blameless accidents further restricted
Originally Published by Laura D'Alessandri on Sunday, July 1, 2018 9:00:19 AM
A driver claims damages from the owner of the truck, who was also his employer, in a single vehicle motor accident. Will the employer be deemed at fault because the employment relationship amounts to the "use or operation" of the vehicle? The New South Wales District Court considers how far the blameless accident provisions have been restricted since Melenewycz, in Galluzzo v JJ Richards [2018] NSWDC 165.
The plaintiff was the driver in a single vehicle accident during the course of his employment on 1 June 2011. His truck left the road surface and travelled down an embankment, coming to rest in a paddock at the front of a property.
The plaintiff claimed the front near side tyre deflated causing him to lose control of the truck and leave the road.
He commenced proceedings against his employer. During the course of the Hearing, the plaintiff abandoned his negligence claim and sought damages purely on the basis that the accident fell within the blameless accident provisions.
Judge Wilson did not accept that the tyre deflated whilst the plaintiff was on the roadway but rather that the tyre deflated after the truck left the roadway.
Having made that finding, his Honour found:
• the plaintiff failed to establish that the truck left the road surface for any reason other than through the fault of its driver (ie; the plaintiff);
• the cause of the accident was the manner in which the truck was driven by the plaintiff; and
• the sole cause of the accident was the plaintiff's failure to properly steer or control the vehicle at a safe speed around the right hand bend.
At the same time, Judge Wilson found the plaintiff failed to show a causal connection between any act or omission of the defendant and the accident. There was no causal link, negligent or otherwise. The defendant did nothing more that permit or require the plaintiff to drive its vehicle.
In the absence of deeming fault on the defendant, the plaintiff's claim of an entitlement to damages under the blameless motor accident provisions failed. Judgment was entered in favour of the defendant.
The decision of Melenewycz restricted when a driver in a single vehicle blameless motor accident would be entitled to recover damages. A driver was required to establish deemed fault of the owner in the use or operation of the vehicle.
Melenewycz did not, however, address how the Court would approach a plaintiff who was driving a defendant's truck in the course of his employment. Although not specifically addressed by Judge Wilson, the use or operation of a motor vehicle may include a situation encompassing a direction given to an employee (see Wagga Truck Towing Pty Ltd v O'Toole ); in those circumstances it is conceivable that a driver in a single vehicle blameless motor accident performing duties in the course of their employment could arguably remain entitled to damages under the blameless accident provisions. This concept was not, however, accepted by Judge Wilson in circumstances where the accident was caused by the plaintiff's actions.
We anticipate this issue will be further ventilated in the Court of Appeal. In the meantime, Insurers should review all remaining claims made by drivers in single vehicle blameless motor accidents in order to determine whether appropriate liability determinations have been made.
Principles
- If the owner of a motor vehicle involved in a single vehicle motor accident has no causal use or operation of the motor vehicle at the time the accident occurs, s 7B of the Motor Accidents Compensation Act (the MACA) will not deem the owner to have been at fault.
- A plaintiff must show a causal connection between any act or omission of the employer (negligent or otherwise) and the accident. A claim where an employer did nothing more that permit or require the plaintiff to drive its vehicle will not succeed.
- Section 7E of the MACA will apply in circumstances where the plaintiff's acts or omissions are the sole cause of the accident.
Background
The plaintiff was the driver in a single vehicle accident during the course of his employment on 1 June 2011. His truck left the road surface and travelled down an embankment, coming to rest in a paddock at the front of a property.
The plaintiff claimed the front near side tyre deflated causing him to lose control of the truck and leave the road.
He commenced proceedings against his employer. During the course of the Hearing, the plaintiff abandoned his negligence claim and sought damages purely on the basis that the accident fell within the blameless accident provisions.
Decision
Judge Wilson did not accept that the tyre deflated whilst the plaintiff was on the roadway but rather that the tyre deflated after the truck left the roadway.
Having made that finding, his Honour found:
• the plaintiff failed to establish that the truck left the road surface for any reason other than through the fault of its driver (ie; the plaintiff);
• the cause of the accident was the manner in which the truck was driven by the plaintiff; and
• the sole cause of the accident was the plaintiff's failure to properly steer or control the vehicle at a safe speed around the right hand bend.
At the same time, Judge Wilson found the plaintiff failed to show a causal connection between any act or omission of the defendant and the accident. There was no causal link, negligent or otherwise. The defendant did nothing more that permit or require the plaintiff to drive its vehicle.
In the absence of deeming fault on the defendant, the plaintiff's claim of an entitlement to damages under the blameless motor accident provisions failed. Judgment was entered in favour of the defendant.
Why this case is important
The decision of Melenewycz restricted when a driver in a single vehicle blameless motor accident would be entitled to recover damages. A driver was required to establish deemed fault of the owner in the use or operation of the vehicle.
Melenewycz did not, however, address how the Court would approach a plaintiff who was driving a defendant's truck in the course of his employment. Although not specifically addressed by Judge Wilson, the use or operation of a motor vehicle may include a situation encompassing a direction given to an employee (see Wagga Truck Towing Pty Ltd v O'Toole ); in those circumstances it is conceivable that a driver in a single vehicle blameless motor accident performing duties in the course of their employment could arguably remain entitled to damages under the blameless accident provisions. This concept was not, however, accepted by Judge Wilson in circumstances where the accident was caused by the plaintiff's actions.
We anticipate this issue will be further ventilated in the Court of Appeal. In the meantime, Insurers should review all remaining claims made by drivers in single vehicle blameless motor accidents in order to determine whether appropriate liability determinations have been made.