Statutory benefits and single vehicle motor accidents in NSW

The definition of “motor accident” under the 2017 CTP scheme is identical to the 1999 CTP scheme. Section 1.4 of the Motor Accident Injuries Act 2017 (NSW) (MAIA) and Section 3 of the Motor Accidents Compensation Act 1999 (NSW) (MACA) both define “motor accident” as accident involving the use or operation of a motor vehicle that causes death or injury to a person.

There is no dispute that the entitlement to statutory benefits is not conditional upon fault assessment for the first 26 weeks of the motor accident.¹ However, there appears to be a trend for drivers in single vehicle motor accident claims to be awarded an extension of weekly payments beyond the first 26 weeks even though a driver’s use or operation of a motor vehicle has caused their own injuries.

As we are in the fifth year of the 2017 CTP scheme, we still see inconsistent interpretations of “motor accident” in binding determinations as to fault of drivers in single vehicle motor accident claims for statutory benefits. Below are few more recent determinations on this issue:

1. A motorbike rider who failed to avoid gyprock on the roadway was not found wholly or mostly at fault as the presence of the gyprock on the roadway was one of the causes.₂
2. A rider who rode into a pothole was found to be wholly at fault due to the injury caused by the rider’s own use or operation of his own motor vehicle.³
3. A driver blinded by the sun and drove into a pole was found mostly at fault with partial cause attributed to the sun.⁴
4. In similar circumstances involving an injured driver’s vision obscured by the sun and dust kicked up from bike in front causing the driver to lose control of his vehicle on uneven road surface, a finding against the driver was made as the incident involved the driver’s own use of his own motor vehicle and that any finding of negligence against the Council would result the claim falling outside the definition of “motor accident” under s1.4 MAIA.⁵
5. More recently, a finding that the cause of an accident involving the driver driving at speed, losing control of his vehicle in loose gravel and colliding with a power pole due to a desire to kill himself as a result of his delusional beliefs that he was being persecuted and pursued, did not result a determination that the claimant was wholly at fault.⁶

The Supreme Court quashed a decision in finding a driver of a single motor vehicle accident claim, not wholly or mostly at fault, when the driver lost control of his vehicle because of a kangaroo suddenly appearing on the road in front of him.⁷ The Court found that “irrespective of whether the claimant veered off the side of the road because of the presence of a kangaroo or for some other reason, the motor accident was a single vehicle motor accident. The only motor vehicle which was involved which could satisfy the definition of motor vehicle was the claimant’s motor vehicle. … It was that motor vehicle which was involved in the motor accident that caused the claimant’s injury.”

Despite ss3.11(1)(a) and 3.28(1)(a) MAIA limiting the entitlement to weekly payments beyond the initial 26 weeks period if the motor accident was caused wholly or mostly by the fault of the driver, the term “wholly or mostly by the fault of the driver” appears to have resulted or at least contributed to the inconsistent interpretations of “motor accident” in single vehicle motor accident claims.

Fault or negligence can only be attributed to a legal person under the law of torts. In determining fault, losses incurred by one cannot be shifted to an object or the natural environment for compensation. If an accident circumstances do not fall under the definition of a “no-fault” accident, then in a single vehicle motor accident, the driver ought to be found at fault if the accident involved the driver’s own use or operation of the driver’s own motor vehicle that caused the driver’s own injuries. Any finding of negligence on another legal person that caused injury which did not involve the use or operation of a motor vehicle would result in the accident falling outside the CTP scheme.

In single vehicle motor accidents and in determining a driver’s entitlement for weekly payments after the first 26 weeks, the term “wholly or mostly by the fault of the driver”, is in itself inconsistent with the restrictions of the 2017 CTP scheme as the definition of “motor accident” requires an accident to involve the use or operation of a motor vehicle that causes (emphasis added) death or injury to a person.

In proving that an accident is covered by the CTP scheme and falls within the definition of “motor accident” under s1.4 MAIA, a driver in a single vehicle motor accident must establish that the accident involved the driver’s own use or operation of a motor vehicle that caused their own injuries as there are no other vehicles involved. By satisfying that the accident falls within the definition of “motor accident” under s1.4 MAIA, drivers in single vehicle motor accidents also in turn establishes fault against themselves. It must then follow that such accident was caused “wholly or mostly” by the fault of the driver who is not entitled to weekly payments after the first 26 weeks.

If drivers in single vehicle motor accidents dispute that they were at fault and establish other causes for their injuries and that the accidents did not associate with their use or operation of the motor vehicle, the circumstances of such accidents would not fall under the definition of “motor accident” for the CTP policy to respond to the claim by virtue of s1.9 MAIA.

It is evident that in assessing a claimant’s entitlement to weekly payments after the first 26 weeks period, the fault assessment process in determining whether a motor accident was caused “wholly or mostly by the fault of the driver” should not apply to single vehicle motor accident claims. CTP insurers are facing liability to pay statutory benefits for up to 5 years without available recovery of scheme costs from actual tortfeasors when injury caused by the only user or operator of the only motor vehicle is found to have CTP cover.

As the 2017 CTP scheme is not a no-fault scheme, an amendment to the MAIA is warranted to ensure a consistent approach is adopted when assessing statutory benefits claims by drivers in single vehicle motor accidents.