Stacks Law Firm Logo
Menu
Home › Which case won? › Motorbike rider injured in blameless accident seeks compensation from bike owner’s insurer – Which case won?

Which case won?

Motorbike rider injured in blameless accident seeks compensation from bike owner’s insurer – Which case won?
01 Mar | Which Case Won

Motorbike rider injured in blameless accident seeks compensation from bike owner’s insurer – Which case won?

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.

casea
The case for the motorbike rider
  • I had been travelling at 90-100 kilometres per hour, which was within the speed limit and a safe, appropriate speed for an unsealed road with corrugations. A dirt bike at that speed glides across the top of a corrugated road surface. At a lower speed it rides into the bumps and skids dangerously over the road.
  • I am a very experienced rider, was riding a bike designed to handle uneven roads and was keeping a close watch on the road ahead.
  • I only noticed the kangaroo when it was about 20 metres away and couldn’t have spotted it earlier because it blended into the surrounding terrain.
  • I was not to blame for the accident and I should be compensated for the significant injuries that I’ve sustained.
caseb
The case for the motorbike owner
  • The speed at which the rider was travelling was too fast to be safe on an unsealed road.
  • The rider did not notice the kangaroo earlier because he failed to keep a proper lookout on the road ahead. This has to do with his speed. He would have been more likely to see the kangaroo earlier if he had been travelling more slowly.
  • For these reasons, the rider was negligent. This means that the accident was not a “blameless accident” and the rider has no grounds for claiming damages for his injuries from the motorbike’s insurer.
  • In any case, the laws related to blameless accidents exclude the possibility of claims by drivers of motor vehicles (or riders of motorcycles) where the owner was not involved in the use or operation of the vehicle at the relevant time.

So, which case won?

Cast your judgment below to find out
Case A Case B

Case B won. You were right!

How people voted
a38%
b62%

Expert commentary on the court's decision

Jason SmithManaging Director
“The fault of the owner of the motorbike could not be established because the accident which caused the rider’s injuries did not involve any use or operation of the motorbike by its owner.”
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:

The mechanism employed by the legislation is that the death or injury resulting from a blameless accident is deemed to have been caused by the fault of whichever of the owner or driver was involved in the use or operation of the vehicle at the relevant time… The statutory language supports a construction of s 7B(1) that limits its effect to deeming someone not at fault to be at fault, rather than deeming someone who was not involved in the use or operation of the vehicle to be involved in that use or operation.

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.

NOTICE: This article is accurate as at the time of publication and does not constitute legal advice. Please see our legal notices page for more information.
Send case to a friend Get in touch with an expert Send me more cases
Have your say

Other cases

Could the buyer terminate the property sale contract due to mental illness? Which case won?
11 Feb 2020

Could the buyer terminate the property sale contract due to mental illness? Which case won?

A seller and a buyer entered into a contract for the sale of land near Grafton in NSW in
Read More
Does smacking children create an unacceptable risk of harm? Which case won?
28 Jan 2020

Does smacking children create an unacceptable risk of harm? Which case won?

The husband and wife had two children, born in 2010 and 2014, before they separated in
Read More
Cross border workers compensation claims in NSW and Queensland – which state’s insurer has to pay? Which case won?
13 Jan 2020

Cross border workers compensation claims in NSW and Queensland – which state’s insurer has to pay? Which case won?

The employee was a delivery driver working from his employer’s warehouse in Tweed Heads,
Read More
If a worker refuses biometric fingerprint scanning, is it unfair dismissal to sack them? Which case won?
06 Dec 2019

If a worker refuses biometric fingerprint scanning, is it unfair dismissal to sack them? Which case won?

A company introduced a biometric fingerprint scanning system as part of its new site
Read More
Was the employee who failed to follow her employer’s instructions to blame for her own injuries? Which case won?
26 Nov 2019

Was the employee who failed to follow her employer’s instructions to blame for her own injuries? Which case won?

In 1974 a woman secured an office job in a large Australian organisation. Her duties
Read More
Was it unfair dismissal to sack an employee for breaching the company’s social media policy? Which case won?
12 Nov 2019

Was it unfair dismissal to sack an employee for breaching the company’s social media policy? Which case won?

A man had been employed by a company for about fifteen months when he was dismissed for an
Read More
Was the email defamatory? Which case won?
29 Oct 2019

Was the email defamatory? Which case won?

The chairperson of the strata committee and the tenant lived in the same strata building.
Read More
Is it OK if you’re just a bit late applying to set aside a statutory demand? Which case won?
15 Oct 2019

Is it OK if you’re just a bit late applying to set aside a statutory demand? Which case won?

In late June 2017, a government department (the ‘creditor’) instructed a process
Read More
Was the victim of a phishing scam liable for his losses? Which case won?
02 Oct 2019

Was the victim of a phishing scam liable for his losses? Which case won?

The case of a man who fell victim to a phishing scam reads as a textbook example of cyber
Read More
Should the defendant go to jail for drug supply? Which case won?
16 Sep 2019

Should the defendant go to jail for drug supply? Which case won?

In June 2015, a young man was apprehended by police and found to be in possession of a
Read More
Was the doctor negligent for failing to identify meningitis symptoms? Which case won?
03 Sep 2019

Was the doctor negligent for failing to identify meningitis symptoms? Which case won?

In early September 2008, a woman, who was then 43, began suffering from neck pain and
Read More
Was the police officer’s PTSD a total and permanent disability or was the insurer right to reject her claim? Which case won?
20 Aug 2019

Was the police officer’s PTSD a total and permanent disability or was the insurer right to reject her claim? Which case won?

A police officer worked for NSW Police and was involved in a number of traumatic events
Read More
Get more cases
Find an office Find a lawyer Live chat

Fill out this form and one of our local law professionals will be in contact

By submitting this form you agree to the terms of our Privacy policy