Motor Vehicle Accident
DID YOU KNOW….. the NSW Court of Appeal has recently delivered a judgment in an interesting motor vehicle claim?
Master Smith (who was almost two years of age at the time of the accident) was a rear seat passenger in a car being driven by his father. Mr Messruther was driving a van in the opposite direction. Mr Messruther's van crossed onto the incorrect side of the road and collided with the car in which Master Smith was travelling. Tragically, Master Smith suffered catastrophic injuries. Mr Messruther died at the scene from a heart attack.
Master Smith brought proceedings for compensation against the greenslip insurer of Mr Messruther's car. NRMA Insurance denied liability.
The issue in the case was whether or not Mr Messruther was conscious and in control of his van at the time of the accident.
At the time, in order for a person injured in a car accident to be entitled to damages, the accident had to have been caused by the negligence (or fault) of another person.
Put simply, if Mr Messruther was conscious at the time of the collision he was undoubtedly negligent and at fault. If he was unconscious or otherwise incapacitated he was not negligent.
Ultimately, the case hinged on a simple question of fact - when did Mr Messruther suffer the heart attack, before the collision, or as a result of the collision?
As Master Smith brought the case, it was his onus of proof. That is, it was incumbent upon him to prove, that it was more likely than not that Mr Messruther was conscious and in control of his van at the time of the accident.
The court considered the evidence of various persons who witnessed the accident. It also considered evidence from medical experts and an engineer with expertise in the areas of accident reconstruction and biomechanics.
Ultimately, the court was not satisfied that it was more likely than not that Mr Messruther was conscious and driving at the time of the collision.
Unfortunately, Master Smith lost his case and did not receive compensation.
In recent years, the NSW Motor Accidents Compensation Act has been amended to include a provision for "blameless accidents". These amendments essentially arose as a result of the tragic circumstances in which Sophie Delezio was injured when a car crashed through the gate of the childcare centre she was attending. The driver of that car was found to have had a seizure immediately before the accident and was cleared of negligent driving.
If you believe that you have been injured as a result of an accident in which no particular person is to blame, please email us on our "Ask Us a Question" feature or call (02) 4228 8288 to speak to one of our specialist compensation lawyers.