Since the Act commenced in October 2007 people (other than the driver) injured in a motor vehicle accident occurring in NSW when no one is at fault have been entitled to benefits or compensation under the compulsory third party scheme.
The Act defines a blameless motor accident as being “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” – for example when a driver suffers an unforeseeable heart attack or is stung by a bee while driving resulting in a severe allergic response.
Prior to the provisions introduced in October 2007 the insurer would escape liability in such situations as no fault could be established on behalf of the driver.
Now the onus is on the insurer to prove that such accidents are not blameless.
These provisions essentially attribute fault to the owner or driver of the motor vehicle in the use or operation of the vehicle, in a non-negligent way.
Once the blameless accident provisions are engaged, the plaintiff is entitled to compensation for such things as pain and suffering, wages, superannuation, medical expenses and domestic assistance.
However, it should be noted that blameless accidents still carry the opportunity for the victim or plaintiff’s damages to be reduced on the basis of contributory negligence.
The NSW Court of Appeal considered a case where a 14-year-old girl alighted from a school bus and was hit by a car travelling at 40 km/h as she attempted to cross the road in front of the bus, causing horrific injuries.
Her mother commenced a claim for compensation under the “blameless accident” provision. The parties agreed that the driver of the vehicle was not at fault as he had slowed to 40 km/h and the girl darted directly in front of his car from behind the bus.
The Court held that although the young girl was reckless in not taking care of her own safety she was not considered “at fault” as she was not considered to be legally the sole cause of the accident. The Court was not satisfied that she was principally responsible for the event.
The girl received compensation under the “blameless accident” provision. However the Court held that she contributed 50% to the accident and therefore her award was reduced by half on the basis of contributory negligence.
If you, your family or friends wish to enquire about a similar circumstance, please email us on our "Ask Us a Question" feature or call (02) 4228 8288 to speak to one of our specialist compensation lawyers.