Do not deem me at fault, I only own the vehicle: Blameless accidents restricted – Whitfield v Melenewycz [2016] NSWCA 235

The full background of this matter, including the trial judge's³ decision, is set out in our previous Case Note.

The plaintiff was riding a motorcycle on a country 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 was successful in alleging that the circumstances of the accident fell within the blameless accident provisions in div 1 of pt 1.2 of the MACA. The trial judge held that the accident was a blameless motor accident on the basis that the plaintiff was not negligent in his driving of the motorcycle and there was no negligence of any other person. Further, there was no act or omission by the plaintiff that was causative of the accident that would deny any entitlement to recover damages under s 7E of the MACA.

The defendant appealed the trial judge's decision.

Meagher JA wrote the lead judgment with whom Simpson JA and Sackville AJA agreed. The ultimate determination of the Court of Appeal with regard to the statutory construction of the deeming provision in s 7B of the MACA evolved in the course of oral argument during the hearing. The defendant submitted that in the circumstances of this motor accident, s 7B did not deem any fault on the part of the owner, as distinct from the driver, in "the use or operation" of the motorcycle. No issue was taken by the plaintiff in this submission being put for the first time on appeal.

The question raised for the Court of Appeal to answer was whether the deeming provision in s 7B deems fault on an owner in the use or operation of the vehicle where the accident involving the use or operation that caused the injury does not include any use or operation by the owner. His　Honour noted the observations of McHugh J in Allianz Australia Insurance Limited v GSF Australia Pty Ltd⁴ that the definition of injury in s 3 of the MACA emphasised the element of 'cause' as key to determining the entitlement to damages. That is, a claimant has to establish that their injury was "caused by the fault of the owner or driver … in the use or operation of the vehicle". To that extent, the relevant 'fault' must be in the use or operation of the vehicle and the injury caused by that fault.

Applying the principles laid out by the High Court of Australia in Allianz Insurance Australia Limited v GSF Australia Pty Ltd,⁵ his Honour noted that a blameless motor accident is one in which there must be causative use or operation by the owner or driver (or both) but no fault in that use or operation. By s 7B, the deeming of fault is to the owner or driver (or both) whose use or operation caused the death or injury.
Unlike a claim that may arise by a driver against an owner in relation to an owner's fault for the failure to maintain the vehicle or where there is an employer/employee relationship, no such circumstances existed between the plaintiff and defendant. There was no causally related use or operation of the motorcycle by the defendant and as such, s 7B of the MACA did not deem the defendant to have been at fault.

In the absence of a deeming of fault on the plaintiff, the plaintiff's claim of an entitlement to damages under the blameless motor accident provisions failed. The Court of Appeal handed down judgment granting the defendant leave to appeal, the question raised as to whether this was a blameless motor accident being of general application and obvious importance in the New South Wales Motor Accidents Scheme. The Court of Appeal upheld the appeal and entered judgment for the defendant.

Sackville AJA made some additional comments which largely go to the rejection of the decision of Schmidt J in the Supreme Court of New South Wales case of Syed v Crumpton.⁶ Whilst Meagher J expressly noted at paragraph 31 that he disagreed with the conclusions in Schmidt JA's decision, a driver under the common law being unable to claim in negligence against themself, Sackville J provided more expansive reasoning on this issue. In particular, he noted that the deeming provision in s 7B does not suffice to give the owner-driver in a single vehicle blameless motor accident a right to claim damages under the blameless motor accident provisions. The deeming under s 7B of the owner-driver to be negligent does not permit the owner-driver to claim damages for their own injuries sustained in a blameless motor accident because deeming an owner-driver to be negligent in the use or operation of the motor vehicle does not entitle the owner-driver to sue themself or to claim damages from their CTP insurer.

The Court of Appeal's decision significantly restricts when a driver in a single vehicle blameless motor accident will be entitled to recover damages. A driver will be required to establish deemed fault of the owner in the use or operation of the vehicle. Presently, it is difficult to envisage how such an occurrence may arise in the absence of actual fault in how the vehicle was maintained by an owner.

That said, it is arguable that this decision has no impact on a factual circumstance arising in similar terms to that in the District Court of New South Wales' decision of Connaughton v Pacific Rail Engineering Pty Limited.⁷ In that case, the plaintiff was driving the defendant's truck in the course of his employment with the defendant when he suffered injuries as a result of a tree falling on the roof of the cabin of the truck. Applying the principles outlined above, and noting that 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'Toole⁸) a driver in a single vehicle blameless motor accident performing duties in the course of their employment would arguably remain entitled to damages under the blameless accident provisions where the act of driving is no more than a background fact to the accident. Such circumstances would not trigger s 7E of the MACA but do involve a causative use or operation of the vehicle by the employer.

Insurers should now closely consider all claims made by drivers in single vehicle blameless motor accidents in order to determine whether appropriate liability determinations have been made. In addition, insurers should continue to deny that the policy of insurance in s 10 of the MACA covers an owner-driver for their own loss in a single vehicle blameless motor accident.