When no-one is to blame: single vehicle accidents – limits to the blameless accident provisions – Hossain v Mirdha

Author: Matthew Seisun

Judgement Date: 25th June, 2015

Citation: Hossain v Mirdha

Jurisdiction: NSW District Court [1]

In brief

  • The driver of a vehicle in a single vehicle accident, who brings a claim in which there is no tortfeasor, cannot obtain damages via the blameless accident provisions if the driver’s conduct contributed to the occurrence of the accident.
  • Contributory conduct that disentitles a driver to damages under the blameless accident provisions does not need to be the sole cause of the accident. The conduct can be involuntary and it need not constitute fault.

Background

The plaintiff was a taxi driver who drove his vehicle into the rear of a parked truck while avoiding a dog that ran across his vehicle’s path.

The plaintiff brought proceedings in the District Court, alleging that the circumstances of the accident satisfied the Motor Accident Compensation Act (MACA) blameless accident provisions. The defendant was the owner of the vehicle.

The parties agreed that no fault attached to the plaintiff or to a tortfeasor. The parties agreed that the circumstances of the accident were as alleged by the plaintiff.

The defendant filed a Notice of Motion to sever liability and have that issue addressed at the earliest opportunity. The plaintiff consented to that course.


District Court proceedings

The defendant argued that the plaintiff was the driver in a single vehicle accident and therefore his claim was precluded by s 7E of the MACA. He argued that the plaintiff’s actions when steering his vehicle into the rear of the parked truck satisfied the disentitlement to damages arising from s 7E(2). That is, the actions by the driver were acts/omissions that: caused the accident; did not constitute fault by the driver; were not the sole or primary cause of the accident; could be characterised as involuntary or inevitable.

The plaintiff submitted that the accident was a consequence of the dog’s behaviour and therefore the defendant’s actions ought not be captured by s 7E(2). In response, the defendant observed that there can be more than one cause of an accident and in this instance the dog’s behaviour and the driver’s response to that behaviour were both contributory (there was no need to apportion extent of contribution).

His Honour considered Connaughton v Pacific Rail Engineering Pty Ltd [2]

In Connaughton’s matter a tree fell onto a vehicle, causing injury to its driver. Her Honour concluded that no action by that driver contributed to the incident. Her Honour concluded:

“His driving on the road was no more than a background fact that explains no more than why he was in a position where he could be struck by a tree. Thus the driving of the plaintiff was nothing more than ‘near occasion of the injury’.”

Elkaim DCJ distinguished the matter at hand by observing that the accident was, in part or in full, a consequence of the plaintiff’s evasive manoeuvre:

“The driver in that case [Connaughton] had taken no act to cause the accident whereas the plaintiff here had acted by steering away from the dog and then into the truck. Thus it was the act of the driver in taking the avoidance measures which amounted to an act of causation disentitling the plaintiff to the benefit of Part 1.2.” [3]

Elkaim DCJ acknowledged a perception of injustice emerging from a possible conclusion that if the plaintiff did not act to avoid the dog but drove over it and consequently had an accident, he would not be disentitled to damages; the act of avoidance enlivened the statutory disentitlement. He concluded however that the accident would have been unlikely “if the driver had continued straight along the road without trying to avoid the dog”. [4]

His Honour concluded that s 7E precluded the claim. The claim was dismissed.  The defendant received an award of costs in his favour


Implications

This decision constrains the manner in which the blameless accident provisions apply to drivers in single vehicle accidents.

The driver of a vehicle in a single vehicle accident, who brings a claim in which there is no tortfeasor, cannot obtain damages via the blameless accident provisions if the driver’s conduct contributed to the accident’s occurrence. The driver’s conduct can be contributory if it is involuntary, free of fault and not the sole cause of the accident.


  1. Elkaim SC DCJ
  2. (unreported decision Norton DCJ, 12 February 2015)
  3. (Paragraph 26)
  4. (Paragraph 29)