Blameless accident expanded: Motorcycle rider hits kangaroo – Melenewycz v Whitfield [2015] NSWSC 1482
Originally Published by Ian Jones on Sunday, December 6, 2015 12:00:00 AM
Author: Ian Jones
Judgment Date: 4th December, 2015
Citation: Melenewycz v Whitfield [2015] NSWSC 1482
Jurisdiction: Supreme Court of New South Wales1
In brief
The perception of a kangaroo on the side of a roadway without reacting to it is not a cause of a motor vehicle accident within s 7E(2) of the Motor Accidents Compensation Act 1999 (NSW) (MACA).
A reduced cone of vision by travelling at a higher speed on a country road does not amount to a motorcycle rider failing to keep a proper lookout.
Background
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 brought an action in damages in the Supreme Court of New South Wales against the first defendant as the owner of the motorcycle and the second defendant as the compulsory third party insurer under a Queensland policy, the motorcycle having been registered in Queensland.
It was accepted between the parties that the Bourke-Hungerford Road is an unsealed red dirt road typical of outback Australia with an average width of approximately 20 metres and then a further cleared area on either side of the road to the natural foliage giving a distance between the foliage on either side of the road between 23 and 32 metres. The speed limit on the Bourke-Hungerford Road is 100 kilometres per hour.
The issues of liability and quantum were severed by the Court and the hearing before Hamill J on 7 – 8 October 2015 proceeded on the issue of liability only.
The plaintiff brought an action in damages in the Supreme Court of New South Wales against the first defendant as the owner of the motorcycle and the second defendant as the compulsory third party insurer under a Queensland policy, the motorcycle having been registered in Queensland.
The plaintiff alleged that the circumstances of the accident fell within the blameless accident provisions in Division 1 of Part 1.2 of the MACA.
It was accepted between the parties that the Bourke-Hungerford Road is an unsealed red dirt road typical of outback Australia with an average width of approximately 20 metres and then a further cleared area on either side of the road to the natural foliage giving a distance between the foliage on either side of the road between 23 and 32 metres. The speed limit on the Bourke-Hungerford Road is 100 kilometres per hour.
The issues of liability and quantum were severed by the Court and the hearing before Hamill J on 7 – 8 October 2015 proceeded on the issue of liability only.
Supreme Court decision
The Court identified that the key issues to be determined were whether the plaintiff was involved in a blameless motor accident as defined in s 7A of the MACA, and, if so, whether the defendants were liable for damages in view of the provisions in ss 7B and 7E of the MACA. In particular, the defendants submitted that s 7E either:
In embracing the findings of Judge Norton in the District Court of New South Wales decision of Connaughton2, the plaintiff submitted that the evidence did not establish, on the balance of probabilities, that his own act or omission caused the collision for the purpose of s 7E. Further, the plaintiff drew a distinction between an act or omission that causes something 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…" struck by the kangaroo.
His Honour considered the relevant authorities on blameless accidents and the ambiguities in the Second Reading Speech made by the Minister for transport when the Bill amending the MACA was introduced in 2006. He acknowledged that none of the reported decisions to date were directly on point or binding on the Supreme Court of New South Wales.
In rejecting the defendants' first two contentions cited above, his Honour noted that such contentions do not give meaning to every word of the provisions as required in statutory construction.3
It was found that a construction of s 7E excluding all drivers from the blameless accident provisions would remove any need for the enquiry set out in s 7E(2). On that basis, it would make this subsection a "mere surplusage". In giving the extended meaning "caused by an act or omission of the driver", his Honour accepted that circumstances may arise where a driver can recover under the blameless accident provisions and that does not render otiose the contributory negligence provisions in s 7F. A harmonious construction of the MACA remains despite it being "difficult or impossible to envisage a circumstance in which a driver can succeed on s 7E but have his damages reduced under s 7F for contributory negligence.." in a single vehicle motor accident.
His Honour was swift to dismiss the defendants' third contention regarding drivers being excluded where there was a measurable period of time between the happening of an event (perceiving the kangaroo on the side of the roadway) and the motor accident itself. It was found that the submission placed a gloss on the provisions and was insufficiently precise to give real content to what is contained in s 7E.
This finding was on the background of evidence given at trial that when the plaintiff first saw the kangaroo it was around 20 metres ahead of him and about six metres to the right side of the roadway. While the expert evidence agreed that at a distance of 20 metres the plaintiff was incapable of reacting either by braking, slowing down or swerving, it was also accepted that this distance may well have been an underestimation.
While his Honour went on to consider whether the plaintiff's act or omission caused the collision and considered the accident reconstruction evidence with regard to perception and reaction times, he did not embark on any consideration of an 'involuntary omission' and whether that extends to the ability to perceive a danger but not react to it.
In dealing with the defendants' fourth contention, his Honour acknowledged that the plaintiff's act or omission must have been the cause of the accident in the relevant, and very expansive, sense contemplated by s 7E for him to be excluded from the operation of the Division. His Honour agreed that the act or omission must be something more than the act of driving that "was no more than a background fact which explains no more than why he was in the position" where the accident occurred. To that extent, the manner in which the motorcycle was being driven by the plaintiff did not assist in the formulation of the interpretation of the words in s 7E.
His Honour went on to analyse the evidence regarding whether the plaintiff failed to keep a proper lookout for the kangaroo and whether he was riding his motorcycle at an excessive speed in the circumstances. His Honour noted that the best evidence regarding the presence of the kangaroo was that of the plaintiff who stated that it was blending in with the surroundings.
The defendants' expert evidence that had the plaintiff been keeping a proper lookout the kangaroo would have been seen much earlier, was rejected by his Honour, particularly noting the inherent difficulties in seeing a four foot tall kangaroo of a brown or grey colour against the background of the Australian bushland with unknown shadows and foliage as at the date of the accident. There were too many variables such as the height of the foliage, the precise direction of the roadway at the point of impact and shadows being cast to come to any other determination. On that basis, his Honour did not accept that there was any relevant omission in the manner in which he was scanning the road ahead that caused the accident on the part of the plaintiff, despite his Honour also accepting that the "cone of vision" is decreased at higher speeds.
The defendants' evidence on the issue of speed was also rejected by the Court. It was accepted that the plaintiff was travelling at a speed between 90 and 100 kilometres per hour and this was unexceptional in the prevailing conditions for a motorcyclist such as the plaintiff, who was experienced in riding on country roads. There was no lateral instability or diminution in control created by the speed at which the plaintiff was riding his motorcycle.
To that extent, it was not the speed of the plaintiff's motorcycle which caused the accident but the kangaroo crossing the road when it did. His Honour held that this circumstance does not lead to the conclusion that the accident was caused by an act or omission of the plaintiff in the speed at which the motorcycle was being ridden.
His Honour entered judgment for the plaintiff. In doing so, his Honour acknowledged that while the factual question of whether the plaintiff caused the collision and whether he was at fault or negligent in doing so are questions readily and properly resolved by a judge at first instance, the question of whether these provisions exclude drivers altogether (or drivers involved in single motor vehicle accidents) is a question which will inevitably be resolved by the appellate courts in the absence of some clarifying amendment.
- Excluded all claims by drivers of motor vehicles (or motorcycles); or
- Excluded all claims by drivers of vehicles (or motorcycles) in single vehicle accidents; or
- Excluded all claims by drivers of vehicles (and riders of motorcycles) where for a measurable period of time, the act of driving continues between the happening of an event without which the motor accident would not have occurred, and the motor accident itself; or at the least;
- Excluded any claim by the driver of the motor vehicle (or rider of the motorcycle) except where the manner in which the vehicle (or motorcycle) is being driven (or ridden) is completely irrelevant to the occurrence of the accident.
In embracing the findings of Judge Norton in the District Court of New South Wales decision of Connaughton2, the plaintiff submitted that the evidence did not establish, on the balance of probabilities, that his own act or omission caused the collision for the purpose of s 7E. Further, the plaintiff drew a distinction between an act or omission that causes something 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…" struck by the kangaroo.
His Honour considered the relevant authorities on blameless accidents and the ambiguities in the Second Reading Speech made by the Minister for transport when the Bill amending the MACA was introduced in 2006. He acknowledged that none of the reported decisions to date were directly on point or binding on the Supreme Court of New South Wales.
In rejecting the defendants' first two contentions cited above, his Honour noted that such contentions do not give meaning to every word of the provisions as required in statutory construction.3
It was found that a construction of s 7E excluding all drivers from the blameless accident provisions would remove any need for the enquiry set out in s 7E(2). On that basis, it would make this subsection a "mere surplusage". In giving the extended meaning "caused by an act or omission of the driver", his Honour accepted that circumstances may arise where a driver can recover under the blameless accident provisions and that does not render otiose the contributory negligence provisions in s 7F. A harmonious construction of the MACA remains despite it being "difficult or impossible to envisage a circumstance in which a driver can succeed on s 7E but have his damages reduced under s 7F for contributory negligence.." in a single vehicle motor accident.
His Honour was swift to dismiss the defendants' third contention regarding drivers being excluded where there was a measurable period of time between the happening of an event (perceiving the kangaroo on the side of the roadway) and the motor accident itself. It was found that the submission placed a gloss on the provisions and was insufficiently precise to give real content to what is contained in s 7E.
This finding was on the background of evidence given at trial that when the plaintiff first saw the kangaroo it was around 20 metres ahead of him and about six metres to the right side of the roadway. While the expert evidence agreed that at a distance of 20 metres the plaintiff was incapable of reacting either by braking, slowing down or swerving, it was also accepted that this distance may well have been an underestimation.
While his Honour went on to consider whether the plaintiff's act or omission caused the collision and considered the accident reconstruction evidence with regard to perception and reaction times, he did not embark on any consideration of an 'involuntary omission' and whether that extends to the ability to perceive a danger but not react to it.
In dealing with the defendants' fourth contention, his Honour acknowledged that the plaintiff's act or omission must have been the cause of the accident in the relevant, and very expansive, sense contemplated by s 7E for him to be excluded from the operation of the Division. His Honour agreed that the act or omission must be something more than the act of driving that "was no more than a background fact which explains no more than why he was in the position" where the accident occurred. To that extent, the manner in which the motorcycle was being driven by the plaintiff did not assist in the formulation of the interpretation of the words in s 7E.
His Honour went on to analyse the evidence regarding whether the plaintiff failed to keep a proper lookout for the kangaroo and whether he was riding his motorcycle at an excessive speed in the circumstances. His Honour noted that the best evidence regarding the presence of the kangaroo was that of the plaintiff who stated that it was blending in with the surroundings.
The defendants' expert evidence that had the plaintiff been keeping a proper lookout the kangaroo would have been seen much earlier, was rejected by his Honour, particularly noting the inherent difficulties in seeing a four foot tall kangaroo of a brown or grey colour against the background of the Australian bushland with unknown shadows and foliage as at the date of the accident. There were too many variables such as the height of the foliage, the precise direction of the roadway at the point of impact and shadows being cast to come to any other determination. On that basis, his Honour did not accept that there was any relevant omission in the manner in which he was scanning the road ahead that caused the accident on the part of the plaintiff, despite his Honour also accepting that the "cone of vision" is decreased at higher speeds.
The defendants' evidence on the issue of speed was also rejected by the Court. It was accepted that the plaintiff was travelling at a speed between 90 and 100 kilometres per hour and this was unexceptional in the prevailing conditions for a motorcyclist such as the plaintiff, who was experienced in riding on country roads. There was no lateral instability or diminution in control created by the speed at which the plaintiff was riding his motorcycle.
To that extent, it was not the speed of the plaintiff's motorcycle which caused the accident but the kangaroo crossing the road when it did. His Honour held that this circumstance does not lead to the conclusion that the accident was caused by an act or omission of the plaintiff in the speed at which the motorcycle was being ridden.
His Honour entered judgment for the plaintiff. In doing so, his Honour acknowledged that while the factual question of whether the plaintiff caused the collision and whether he was at fault or negligent in doing so are questions readily and properly resolved by a judge at first instance, the question of whether these provisions exclude drivers altogether (or drivers involved in single motor vehicle accidents) is a question which will inevitably be resolved by the appellate courts in the absence of some clarifying amendment.
Implications
The Supreme Court decision further expands the blameless accident provisions to drivers in single motor vehicle accidents who perceive a risk but have no opportunity to react to it. To that extent, Melenewycz can be distinguished from Connaughton in that the mere occurrence of the driving in Connaughton allowed no opportunity to react to the tree falling on the cabin of the truck. In Melenewycz, the plaintiff perceived the presence of the kangaroo but took no evasive action to avoid a collision with it.
There remains little consideration of the extended definition of causation in s 7E. While it was acknowledged by his Honour that the facts of a particular case may give rise to a finding that the act of driving itself was the real and practical cause of a collision and injury, there was no analysis, for example, of what an 'involuntary omission' means and whether this phrase in s 7E(2) extends to the plaintiff's perception of the risk but his failure to act for whatever reason.
There are likely to be a multitude of factual circumstances that now arise whereby drivers will be able to recover damages under the blameless accident provisions. Indeed, where there is a collision between two motor vehicles and neither driver is found to be at fault because of insufficient time to react to the presence of the other motor vehicle on the roadway, both drivers would be entitled to recover damages. This is an unintended consequence of Division 1 of Part 1.2 of the MACA and goes well beyond codifying within the MACA the common law principles of an inevitable accident.
There remains little consideration of the extended definition of causation in s 7E. While it was acknowledged by his Honour that the facts of a particular case may give rise to a finding that the act of driving itself was the real and practical cause of a collision and injury, there was no analysis, for example, of what an 'involuntary omission' means and whether this phrase in s 7E(2) extends to the plaintiff's perception of the risk but his failure to act for whatever reason.
There are likely to be a multitude of factual circumstances that now arise whereby drivers will be able to recover damages under the blameless accident provisions. Indeed, where there is a collision between two motor vehicles and neither driver is found to be at fault because of insufficient time to react to the presence of the other motor vehicle on the roadway, both drivers would be entitled to recover damages. This is an unintended consequence of Division 1 of Part 1.2 of the MACA and goes well beyond codifying within the MACA the common law principles of an inevitable accident.
- Hamill J
- Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89.
- See Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28.