April 26, 2013
The High Court’s refusal last month to grant special leave to appeal against the Court of Appeal’s interpretation of the Blameless Accident provisions of the Motor Accident Compensation Act (NSW) underlines the need for urgent legislative reform.
The case involved a claim by a 14 year old pedestrian who darted out onto the road and was struck by a car. The plaintiff’s tutor initially alleged the driver had been negligent, but abandoned that pleading, and instead alleged that the accident had been a ‘blameless accident’ as defined in s7A of the Motor Accidents Compensation Act (MACA).
The relevant legislation
Section 7A MACA defines a blameless motor accident as one not caused by the fault of the owner or driver of a motor vehicle, or the fault of any other person. A claimant injured in a blameless motor accident is entitled to recover damages against the owner or driver of the vehicle involved, subject to any reduction of damages for the claimant’s contributory negligence.
At first blush the concept of a claimant’s contributory negligence seems inconsistent with the requirement that the accident be no one’s fault, but a claimant’s failure to wear a helmet or a seatbelt, for example, would not contribute to the occurrence of the accident, but may well make their outcome worse, warranting a reduction of damages for that shortcoming.
The blameless accident provisions were enacted in 2006 at the same time as the NSW Parliament introduced special no fault damages for children. Those ‘special entitlement’ damages for children under 16 at the time of their injury mean that insurer’s of blameless drivers who injure children will have to pay for the child’s reasonable treatment and care needs, and those payments are not reduced for contributory negligence if the child is ‘at fault’.
The plaintiff’s argument in Axiak
The plaintiff contended that ‘fault’ is defined in s3 of the MACA to mean ‘negligence or any other tort’, and that therefore the definition of blameless accident in s7A, and specifically the phrase ‘not caused by the fault of any other person’ necessarily excluded consideration of a pedestrian’s want of care, because a pedestrian couldn’t owe a tortious duty of care to another road user, and therefore they could not be guilty of ‘fault’ in the relevant sense.
The insurer contended that, when enacting the suite of changes in 2006 which brought in damages for blameless accidents and special entitlement damages for children, Parliament obviously intended ‘fault’ to mean carelessness (traditional contributory negligence). This was so, the insurer contended, because the Parliament talks in s7K about the availability of special entitlement damages where the injury occurred through the child’s ‘fault’, and a child could not be a tortfeasor in any circumstances.
Justice Adamson of the Supreme Court heard the case at first instance in late 2011. She favoured the insurer’s interpretation, and found that the accident was not a blameless accident as the 14 year old pedestrian was clearly ‘at fault’ in the circumstances of her injury, as a child of her age should have enough road sense to know it is foolish to attempt to cross the road without ensuring it is clear and safe to do so.
In the event her Honour be wrong, and the accident did attract the blameless accident provisions, then the plaintiff’s damages should be reduced by 100% for her negligence, as the driver had, by definition, been blameless, and she had been the only one to blame for her own misfortune.
Her Honour commented that had the injured pedestrian been younger (she thought 10 or under) one could not expect them to exhibit better road sense, and in those circumstances, the injured child could not be considered to be ‘at fault’, and blameless accident damages would, in those circumstances, have been available. This extended what she considered to have been Parliament’s intention regarding the extent of no fault damages for children as enacted in the special entitlement damages provisions.
The plaintiff appealed, and in September 2012, the Court of Appeal upheld the appeal, accepting that the plaintiff’s interpretation was correct.
The insurer argued that blameless accidents were a special and very limited category of accidents in which people were injured through no fault of theirs, and no fault of the owner or driver of their vehicle (loss of control of the car because the driver suffers a medical emergency, or because of a tyre blowing out without warning etc). The Court of Appeal did not consider the legislation so confined.
The insurer also argued that the use of ‘fault’ in s7K was particularly instructive, as that part of the MACA was introduced at the same time as the blameless accident provisions. The Court of Appeal noted that ‘fault’ was mentioned over 30 times in the MACA, and it was only in one single context (namely, the s7K special entitlement context) that it carried the meaning for which the insurer contended, and that its usage in s7K could therefore be considered an anomaly.
The Court of Appeal disagreed with Adamson J than in the event the accident was a Blameless Accident, contributory negligence must be 100% as the plaintiff had been entirely to blame for her injuries, and said that to find that would defeat the intention of the legislation. It assessed the plaintiff’s contributory negligence at 50% after performing some ‘evaluative’ judgment of the degree to which the plaintiff had departed from the standard of care expected of a person in her position.
The insurer’s application for special leave to appeal to the High Court was heard, and dismissed, on 15 March 2013.
While it seems from reading the transcript of argument that the High Court had some sympathy for the insurer’s position, ultimately it determined that the interpretation preferred by the Court of Appeal was open to it, and if the insurers contended that interpretation confounded the parliament’s intentions in introducing damages for Blameless Accidents, it was a matter for Parliament to address through legislative amendment.
We have already seen a number of amendments to statements of claim to allege that a careless pedestrian has been injured in a Blameless Accident, in cases where liability has been denied by the insurer, and we expect that this trend will continue unless and until Parliament intervenes.
A Blameless Accident averment by a plaintiff puts the defendant’s insurer in an invidious position – if it succeeds in establishing its insured driver was not at fault, but cannot establish that anyone else was ‘at fault’ (disregarding the pedestrian’s contribution to their injuries), then it establishes the plaintiff’s entitlement to damages (albeit subject to reduction for contributory negligence).
This decision will significantly affect NSW insurers, but also has the potential to affect interstate insurers whose insured vehicles are involved in accidents within NSW in which pedestrians, in particular, are injured. The substantive law which will apply to such claims will be the law of NSW, and so it is likely a court asked to determine the question will find that the Blameless Accident provisions do apply.
In Suncorp Metway Insurance Limited v Wickham Freight Lines Pty Ltd and Ors  QSC 237 the Queensland Supreme Court was dealing with the ‘special entitlement damages for children’ provisions of the MACA (introduced at the same time as the Blameless Accident provisions). The case involved consideration of whether a Queensland CTP policy responded to a claim for special entitlement damages, and Applegarth J determined that the policy did respond.
To find otherwise would create a gap in the driver’s policy coverage which was neither intended nor desirable.
It remains to be seen whether Parliament will take up this invitation, but a legislative response is certainly required.
Ingram v Axiak and Ors  HCATrans 64, 15 March 2013
Authored by Judith Waldock, Partner, Sydney.
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