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.

Send case to a friend Get in touch with an expert Send me more cases
Have your say

Other cases

Was an easement that let one landowner park on a neighbour’s land valid? Which case won?
11 Jun

Was an easement that let one landowner park on a neighbour’s land valid? Which case won?

Two landowners owned neighbouring harbourside properties (Property A and Property B) in
Read More
Was the accused guilty of manslaughter for failing to ring triple-0? Which case won?
24 May

Was the accused guilty of manslaughter for failing to ring triple-0? Which case won?

The deceased, the accused and another man were all misusers of prescription medications,
Read More
Did husband’s failure to disclose cause a miscarriage of justice? Which case won?
14 May

Did husband’s failure to disclose cause a miscarriage of justice? Which case won?

A couple moved in together in 1992 and married in 1997, but ultimately separated and were
Read More
Who should inherit the old man’s money? His friend or a charity? Which case won?
29 Apr

Who should inherit the old man’s money? His friend or a charity? Which case won?

In the years prior to his death at the age of 87, a man instructed his solicitor on a
Read More
Could a vendor terminate a contract to sell off-the-plan property after the sunset date? Which case won?
10 Apr

Could a vendor terminate a contract to sell off-the-plan property after the sunset date? Which case won?

The parties entered into a conveyancing transaction for off-the-plan (unregistered)
Read More
Could a police officer claim damages for psychiatric injury after attending a fatal accident? Which case won?
27 Mar

Could a police officer claim damages for psychiatric injury after attending a fatal accident? Which case won?

A Queensland police officer attended a motor vehicle accident in 2013 involving a car
Read More
Should the insurance company have to pay up after a fire in a brothel? Which case won?
12 Mar

Should the insurance company have to pay up after a fire in a brothel? Which case won?

On 1 January 2012, there was a fire in a brothel which was run from premises in the
Read More
Can threatening someone with religious sanctions be a criminal contempt of court? Which case won?
20 Feb

Can threatening someone with religious sanctions be a criminal contempt of court? Which case won?

In January 2016, two companies, one Australian-based and one US-based, entered an
Read More
Who gets to pick the child’s school when parents can’t agree? Which case won?
12 Feb

Who gets to pick the child’s school when parents can’t agree? Which case won?

A couple had a child in 2008 and separated in 2010. The parents had distinctly different
Read More
Who caused the car accident – the driver, or an unidentified vehicle? Which case won?
30 Jan

Who caused the car accident – the driver, or an unidentified vehicle? Which case won?

A car accident took place in Chatswood, NSW, on a dark and rainy day with poor visibility.
Read More
When co-executors go to war, will there be anything left of the estate? Which case won?
15 Jan

When co-executors go to war, will there be anything left of the estate? Which case won?

In April 2011 a woman died at 60 years of age. She was survived by her two adult children
Read More
Can an unsent text message be a valid will? Which case won?
12 Dec

Can an unsent text message be a valid will? Which case won?

A Queensland man took his own life, leaving behind his wife and several family members.
Read More
Get more cases