ACT Supreme Court looks at the meaning of ‘motor accident’28 October 2013 | Compulsory Third Party (CTP)
Insurance Australia Limited Trading As NRMA Insurance v Tu’ulenana Iuli and Bensah Afiabo  ACTSC 209
At about 3:00am on 29 May 2011, the second defendant was driving his Volkswagen Golf motor vehicle when he lost control of his vehicle and was involved in a single vehicle collision. The second defendant’s vehicle left the roadway and crashed down an embankment near a bicycle and pedestrian path which passed under the road. As a result of the accident, debris from the road above came to rest on the path that ran under the road.
At approximately 3:40am, the first defendant was riding his bicycle to work along the underpass when he struck the debris on the path as a consequence of the second defendant’s accident. The first defendant suffered a fractured nose and injuries to his right shoulder, right arm, right shin and neck
NRMA Insurance, sought a declaration from the Supreme Court that the accident involving the cyclist was not a ‘motor accident’ within the meaning of section 7 of the Road Transport (Third-Party Insurance) Act 2008 (the Act). If that was correct NRMA would not have to indemnify the second defendant in relation to any claim brought against him by the cyclist.
Section 7 of the Act states:
7. Meaning of motor accident and injured person
In this Act:motor accident means an incident that –
(a) involves the use or operation of a motor vehicle; and(b) causes personal injury to an individual (the injured person); and(c) happens when –
(i) someone is driving the motor vehicle; or(ii) someone or something collides with the motor vehicle; or(iii) someone takes action to avoid colliding with the motor vehicle; or(iv) the motor vehicle runs out of control.
Both parties referred to the New South Wales Court of Appeal decision in Zotti v Australian Associated Motor Insurers Ltd (2009) 54 MVR 111 which involved a similar question. In the Zotti case a cyclist alleged that he slipped on a patch of oil that remained on the road at the scene of the motor vehicle collision. That collision occurred some two hours before and the vehicles involved in the collision had been towed away. The court said that the use which can be made of the decision in Zotti was limited because of the very specific wording in the New South Wales statute.
In this case the ACT Supreme Court held that the accident involving the second defendant was a motor accident within the meaning of the Act. The court said that section 7 requires that there be a causal link between the personal injury and the actions of the motor vehicle referred to in 7(c) but does not require that the injury is caused during the continuation of one or other of those actions. Therefore, unless the debris had been moved by police or someone else after the incident, there was a causal link between the personal injury suffered by the first defendant and the incident involving the second defendant’s vehicle which involved one or more of the activities in 7(c). In these circumstances the second defendant’s CTP insurance policy would respond to the first defendant’s claim even though the injury occurred some 40 minutes after the incident.
The declaration sought by the plaintiff was therefore not made.
A similar decision would most likely be made in Queensland where the Motor Accident Insurance Act 1994 (Qld) is said to apply to an injury caused by, through or in connection with a motor vehicle, if and only if the injury is a result of:
(a) The driving of the motor vehicle; or
(b) A collision, or action taken to avoid a collision with the motor vehicle; or
(c) The motor vehicle running out of control; or
(d) A defect in the motor vehicle causing loss of control of the vehicle while being driven; and
(e) The accident is caused wholly or partly by a wrongful act or omission in respect of the vehicle by a person other than the injured person.
The Queensland Act is very similar to the ACT Act in this regard.
For further information contact Robert Samut.