District Court New South Wales Medium Neutral Citation: Hossain v Mirdha [2015] NSWDC 108 Hearing dates: 25 June 2015 Date of orders: 25 June 2015 Decision date: 25 June 2015 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Proceedings dismissed Catchwords: Blameless motor vehicle accident Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Connaughton v Pacific Rail Engineering Pty Ltd (unreported, Norton SC DCJ, 12 February 2015) Nettleton v Rondeau [2014] NSWSC 903 Nominal Defendant v Hawkins [2011] NSWCA 93 NSW Insurance Ministerial Corporation v Reeve (unreported NSWCA, 24 September 1993) O'Brien v Davjam Enterprises Pty Ltd [2014] NSWDC 270 Texts Cited: Motor Accidents Compensation Amendment Bill, Second Reading, 9 March 2006 Category: Consequential orders (other than Costs) Parties: Jahangir Hossain (Plaintiff) Monowar Mirdha (Defendant) Representation: Counsel: J Jobson (Plaintiff) W Fitzsimmons (Defendant) Solicitors: Stephen Spinak (Plaintiff) Curwoods Lawyers (Defendant) File Number(s): 2014/00272588 Publication restriction: No Judgment 1. On 16 September 2014 the plaintiff commenced proceedings against the defendant under the Motor Accidents Compensation Act 1999 (the "MACA"). 2. According to the pleadings the plaintiff was the driver of a taxi which was owned by the defendant. On 10 January 2013 the plaintiff, while driving the motor vehicle, was involved in an accident. He was injured. The proceedings are a claim for damages arising from his injuries. 3. The plaintiff does not allege the defendant was negligent. Rather he relies on the blameless accident provisions of the MACA contained in Part 1.2 (Division 1). 4. On 4 December 2014 the defendant filed a Notice of Motion requesting that there be a separate hearing to determine, in essence, whether the blameless accident provisions could be relied upon by the plaintiff. This Motion came before me today. 5. The plaintiff consented to the order that there be a separate question and also to the separate question being dealt with immediately. 6. For purposes of the Notice of Motion an Agreed Statement of Facts was put before the Court. It states: "1. On 10 January 2013 the Plaintiff was driving a motor vehicle taxi registration T 3000 in lane two of two east on Stanmore Road, Marrickville when an unidentified dog ran from the side of the road in front of the vehicle. 2. A truck and trailer registration number R21857 ('the truck) was parked on Stanmore Road, Marrickville on lane one of two of the eastbound lanes. 3. The Plaintiff applied the brakes and steered the motor vehicle in an attempt to avoid hitting the unidentified dog and in so doing, the front passenger side of the Plaintiff's vehicle collided with the rear driver's side of the stationary truck." 1. The defendant submitted: 1. The MACA provides for the recovery of damages by persons injured in motor vehicle accidents which are caused by the fault of the owner or driver of the motor vehicle. 2. The blameless accident provisions in Part 1.2 allow for the deeming of fault in certain circumstances. 3. Those circumstances do not extend to the facts of this accident. 4. The provisions of Section 7E specifically exclude an accident of the nature of the one that has occurred here. 1. The plaintiff responded that the accident was caused by the dog coming onto the road thereby entitling the plaintiff to rely on Part 1.2. 2. Section 7A says a: "blameless motor accident means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person." 1. I note here the defendant did not allege any fault on the part of the driver. The sentiment expressed by the then Chief Justice in NSW Insurance Ministerial Corporation v Reeve (NSW Court of Appeal, unreported decision, 24 September 1993) was not adopted. In that case a driver on the Pacific Highway had stopped suddenly to avoid some ducks crossing the road. The Chief Justice observed: "Perhaps somewhat generously to Mr Cotterill, his Honour did not seem to regard it as an aspect of negligence on his behalf that he did not decide to run over the ducks rather than imperil the people in the cars behind him." 2. The defendant did however submit that the plaintiff had performed an act which caused the collision. 3. I think at this stage it is worth including Section 7E. "7E No coverage for driver who caused accident (1) There is no entitlement to recover damages under this Division in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver. (2) The death of or injury to the driver is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if: (a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or (b) the act or omission was involuntary, or (c) the act or omission was not the sole or primary cause of the death or injury, or (d) the act or omission would have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event." 1. The defendant submitted that there can be more than one cause of an accident. In support of this submission I was referred to the decision of the New South Wales Court of Appeal in Nominal Defendant v Hawkins [2011] NSWCA 93, in particular at paragraphs 33 and 69. 2. On the basis that there could be more than one cause of an accident the defendant went on to submit that the act of the driver in steering the motor vehicle to avoid the dog, and thereby colliding with the stationary truck, was an act of causation in itself, notwithstanding that the dog running onto the road was also a cause of the accident, probably even the primary cause. 3. The defendant then submitted that under Section 7E(1) there was no entitlement to recover damages because the motor accident had been caused by an act of the driver. The defendant emphasised its approach by reference to Section 7E(2). It was pointed out that it did not matter if the plaintiff's act was "involuntary" (subsection (2)(b)) or that the act "was not the sole or primary cause of the … injury" (subsection (2)(c)). 4. Both parties referred me to the Second Reading Speech made by the Minister for Transport, Mr Watkins, when introducing the Bill amending the MACA on 9 March 2006. 5. The plaintiff referred me to this passage: "Secondly, the bill extends the scope of the CTP scheme to provide compensation entitlements for injury or death resulting from a blameless or inevitable accident, which is a motor vehicle accident where no-one is considered to have been at fault—for example, when a person is injured because a driver experiences an unforseen illness or medical condition, which results in a loss of control over the vehicle. Currently, under the common law, if a court finds that no-one was at fault in an accident the CTP compensation entitlements are not available to those injured in the accident." 1. The defendant highlighted this passage: "Part 1.2 of the bill provides a right of recovery to people injured in motor vehicle accidents occurring in New South Wales where no-one is at fault. That is an "inevitable" or "blameless" motor accident. For the purpose of making this new claim for death or injury, the motor accident is deemed to have been caused by the fault of the owner or driver of the motor vehicle. The injury must also be caused by a motor vehicle accident of a kind recognised by the Act. A person who is injured in a blameless accident will be entitled to CTP scheme benefits. The one exception is that the driver of the motor vehicle causing the accident will not be entitled to make a claim under these provisions. However, if that driver is catastrophically injured an application for entry to the Lifetime Care and Support Scheme may be made." 1. I have underlined the portions most relied on by the respective parties. I do not think the two excerpts are of assistance in determining the issue before me. Each side is entitled to draw support from the portions of the speech they have emphasised. 2. There does not appear to be any appellant authority, yet, on the point. There are some helpful general comments made Hoeben CJ at CL in Nettleton v Rondeau [2014] NSWSC 903, commencing at paragraph 84, but not addressing the question I have to decide. 3. I was referred to two decisions of judges of this Court. 4. In O'Brien v Davjam Enterprises Pty Ltd [2014] NSWDC 270 Taylor SC DCJ dealt with a Notice of Motion to amend a Statement of Claim to include a claim under Part 1.2. The plaintiff had been injured when, on his case, the steering of a vehicle he was driving failed and the vehicle drove into a rock wall. The defendant opposed the plaintiff's application saying that the facts could not amount to a blameless motor accident. His Honour allowed the amendment but did not specifically decide the issue. Rather he said it was a matter for the Trial Judge. As far as the relevance to the present case is concerned it does not go beyond his Honour's view that the amendment was not futile. 5. The other decision is Connaughton v Pacific Rail Engineering Pty Ltd, unreported decision of Norton SC DCJ, 12 February 2015. In Connaughton the plaintiff was the driver of a motor vehicle which was struck by a falling tree. The vehicle then ran out of control. 6. Her Honour found that the tree had fallen onto the vehicle as it passed. There was no suggestion of any act on the part of the driver other than simply 'driving along the road'. The defendant submitted that "it was the plaintiff's act of driving which "attracts the specific exclusion in 7E and it is clear there was no intention to cover the driver in a single vehicle accident"". Her Honour said: "On the facts as I have found them the plaintiff did not cause this accident. His driving on the road was no more than a background fact which 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 "the mere occasion of the injury"." 1. A little later her Honour said: "Looking at the words of the section and bearing in mind the words used in the second reading speech I find that even under the extended definition of causation in section 7E there was no act or omission on behalf of the plaintiff, either voluntary or involuntary, which can be said to have caused the accident. I do not accept that the words mean that drivers in single vehicle accidents are deemed to have caused that accident." 1. Although the defendant did not concede that, on the facts before her, Norton DCJ was correct, it nevertheless distinguished the facts in Connaughton on the basis that the driver in that case 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. 2. In addition, it was emphasised, that even accepting the dog running onto the road was a cause of the accident, Section 7E(2)(c) specifically allowed for the driver's act to be neither a sole or primary cause of the injury. Further, even if the driver's act could be classified as a reaction, and even involuntary, the same disentitlement would apply because of Section 7E(2)(b). 3. The plaintiff pointed out that it would be a somewhat unjust result if the plaintiff could recover damages if he had not steered away from the dog and had been injured in a collision with the dog, but could not recover damages because he had taken evasive action in order to avoid hitting the dog. 4. I agree that there is at least a perception of an unjust result on the distinction that I have just referred to. However, in my view the act of steering the vehicle away from the dog was an act of the driver and it was an act that was a cause of the injury to him. It was not the sole or the primary cause but nevertheless was an act which caused his vehicle to collide with the truck. Suffice to say here that it is assumed in my decision, derived from the Statement of Agreed Facts, that the taxi would not have collided with the truck if the driver had continued straight along the road without trying to avoid the dog by adjusting his direction of travel. 5. Accordingly I think the defendant is correct so that the plaintiff is not entitled to recover damages under Part 1.2 (Division 1) by reason of the provisions of Section 7(E). 6. I make the following orders: 1. Order 1 in the Notice of Motion filed on 4 December 2014. 2. The proceedings are dismissed. 3. The plaintiff is to pay the defendant's costs of the proceedings. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 26 June 2015