Melenewycz v Whitfield

The evidence, submissions and decision in a nutshell

1. The evidence was relatively confined and consisted of a joint memorandum of agreed facts, the evidence of the plaintiff himself, expert evidence given by two engineers with expertise in motor vehicle accident reconstruction, a draft statement (unsigned) of the plaintiff and a number of records generated by the police to whom the accident was reported.
2. The parties agreed that the question of liability should be determined first, with the damages to be agreed or assessed at a later date if the plaintiff establishes liability.
3. In his statement of claim the plaintiff avers that the accident was a blameless motor accident. Section 7C of the MAC Act provides that such an averment is "evidence of that fact in the absence of evidence to the contrary".
4. The defendants put what was described as a series of cascading submissions. In written submissions at [99] the construction point was articulated as follows: "The Defendants submit that when properly construed, s.7E of the MACA either: (i) excludes all claims by the drivers of motor vehicles (or motorcycles); or (ii) excludes all claims by drivers of vehicles (or motorcycles) in single-vehicle accidents; or (iii) excludes all claims by drivers of vehicles (and riders of motorcycles) where for a measurable period of time, the act of driving continues between the happening of an event without which the motor accident would not have occurred, and the motor accident itself; or at the least (iv) excludes any claim by the driver of a motor vehicle or rider of a motorcycle except where the manner in which the vehicle or motorcycle is being driven or ridden is completely irrelevant to the occurrence of the accident."
5. On the facts of this case, and putting aside the question of whether a driver might ever avail themselves of the blameless accident provisions or whether the driver in a single car accident could ever so avail themselves, the defendants submit that the plaintiff caused the accident in the relevant sense. He did so by riding at a speed that was excessive in the circumstances and by failing to observe the kangaroo at an earlier stage. The defendants contend that those two propositions are related in that the plaintiff was more likely to see the kangaroo earlier had he been riding more slowly.
6. The defendants submit (correctly) that it is not strictly necessary under the statute to determine that the plaintiff was at fault or negligent but only that his act or omission caused the collision. However, the defendants submit that the evidence establishes that the plaintiff was in fact negligent and failed to take reasonable care for his own safety.
7. The plaintiff submits that the defendants' interpretation of s 7E, and in particular the submission that the Division can never apply either to a driver or to a driver involved in a single car accident, is wrong. Further, the plaintiff submits that the evidence does not establish on the balance of probabilities that the plaintiff's own act or omission caused the collision for the purpose of s 7E. That submission is more than a submission that the plaintiff was not negligent (a submission which, on the terms of the statute, would not be sufficient for the plaintiff to succeed). Rather, it is a submission that there is a difference between an act or omission that causes something to occur and an act or omission that is "a background fact which explains no more than why he was in a position where he could be" struck by the kangaroo: see Connaughton at [71].
8. Relating that submission to the facts relied upon by the defendants as causing the collision, the plaintiff says that the fact that the defendant was riding at a speed of 90 to 100 km/h did not cause the collision with the kangaroo but rather created the coincidental circumstance whereby the kangaroo and the plaintiff collided at that particular time and place.
9. The opaque terms of the relevant provisions and the ambiguity of the Minister's Second Reading Speech - upon which Senior Counsel for both sides rely in attempting to make precisely the opposite point - create difficulties in resolving the issues. While the factual question of whether the plaintiff caused the collision and whether he was at fault or negligent in doing so are questions readily and properly resolved by a judge at first instance, the question of whether these provisions exclude drivers altogether (or drivers involved in single car collisions) is a question which will inevitably be resolved by the appellate courts (probably the High Court) in the absence of some clarifying amendment. Nevertheless, I have had the great advantage of thoughtful submissions by Senior Counsel appearing for each of the parties.
10. For the reasons that I will presently provide, I have come to the conclusion that the defendants' submissions should be rejected. There will be a judgment for the plaintiff with damages to be agreed or, if necessary, subject to further evidence and submissions. I will deal with the defendants' submissions in turn and will recount the relevant parts of the evidence in doing so. I will commence with the defendant's most expansive submission (which is the most restrictive in terms of the scope of the legislation) and finish with the submission that the plaintiff caused the collision and that, on any interpretation of the statute, the collision with the kangaroo was not a blameless or inevitable accident or, if it was, is one that is excluded by operation of s 7E.

Does Division 1 exclude all claims made by drivers or all claims made by drivers in single vehicle accidents?

Legislation

1. It is necessary to set out some of the relevant provisions: "7A Definition of "blameless motor accident" In this Division: "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. 7B Liability for damages in case of blameless motor accident (1) The death of or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. Note: Section 3B defines what is meant by a motor vehicle having motor accident insurance cover for a motor accident. (2) If the blameless motor accident involved more than one motor vehicle that has motor accident insurance cover for the accident, the death or injury is deemed to have been caused by the fault of the owner or driver of each of those motor vehicles in the use or operation of the vehicle. 7C Presumption that motor accident is blameless In proceedings on a claim for damages in respect of the death of or injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of evidence to the contrary. 7D Accident must occur in New South Wales after commencement This Division applies only in respect of motor accidents that occur in the State after the commencement of this Division. 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 [not] [3] have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event. 7F Contributory negligence This Division does not prevent the reduction of damages by reason of the contributory negligence of the deceased or injured person. Note: The contributory negligence of a deceased or injured child does not reduce damages of the kind to which the special entitlement to damages conferred by Division 2 applies. See section 7P. 7G Recovery of contribution from person actually at fault A person whose liability for damages in respect of the death of or injury to a person results from the person being deemed under this Division to be a person whose fault caused the death or injury is entitled to recover contribution in respect of that liability from a person (whether or not the driver of a motor vehicle) whose fault actually caused the death or injury. 7H No recovery by Nominal Defendant unless owner or driver actually at fault The Nominal Defendant is not entitled to recover any amount under section 39 from the owner or driver of a motor vehicle in respect of amounts properly paid by the Nominal Defendant in connection with the operation of this Division unless the motor accident concerned was actually caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. 7I Other entitlements not affected This Division does not affect any entitlement to damages apart from this Division."
2. Section 3 defines "fault" as "negligence or any other tort".

Authorities in the District Court

1. In Connaughton v Pacific Rail Engineering Pty Ltd, the plaintiff was driving a vehicle owned by the defendant when a tree fell on the roof of the cabin, causing injury to the plaintiff. The plaintiff sought damages under the blameless accident provisions. The defendants submitted (at [39]) "the plaintiff in this case is precluded from recovering because he was a driver and his act of driving was sufficient to attract the specific exclusion in s 7E as it is clear that Parliament never intended to cover drivers in single vehicle accidents." Judge Norton considered the context in which the provisions occurred and found a textual reading difficult because the provisions "involve a departure from the rest of the Act in that they operate outside concepts of fault and establish a partial no-fault scheme, or more accurately, a deemed-fault scheme" (at [48]). Her Honour rejected the defendant's submissions and concluded: "70. On behalf of the defendant it was 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.' 71. 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.' 72. In oral submissions it was emphasised that the section must be read in the context of the Part and that in circumstances such as the present case the plaintiff, as the driver, is deemed to be the person at fault and to have caused the accident. 73. 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."
2. In Hossain v Mirdha [2015] NSWDC 108, the plaintiff was driving a taxi when a dog ran in front of his vehicle. The plaintiff applied the brakes and steered the vehicle in an attempt to avoid hitting the dog. In doing so he collided with a stationary truck and suffered injuries. He sued pursuant to the blameless accident provisions and a preliminary hearing was conducted to determine whether those provisions applied in those circumstances. The defendant did not allege fault on the part of the driver [4] but submitted that his act of braking and steering caused the collision. As in this case, counsel for both sides referred to parts of the Second Reading Speech in support of their respective submissions. Judge Elkaim was not assisted by the excerpts relied on by the parties and also noted the absence of appellate authority. It seems that his Honour accepted the defendant's submission that Connaughton was distinguishable on the facts because in the earlier case there was no relevant act (apart from driving) that could be said to have caused the collision. Judge Elkaim concluded: "26. 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. 27. 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). 28. 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. 29. 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. 30. 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)."
3. Nothing in either of those District Court decisions supports the proposition that a driver can never rely on the provisions of Division 1. Nor do they support the proposition that a driver injured in a single car collision is never entitled to recover damages under the division. The reference in Judge Elkaim's decision at [28]-[29] to the possible outcome had the driver been injured by colliding with the dog (as opposed to actively steering the vehicle away and thus colliding with the truck) suggests that his Honour contemplated the possibility of recovery had the driver not taken the evasive action that caused the collision. It was critical to his Honours' decision that the collision with the truck would not have occurred had the plaintiff not steered away from the dog.

Axiak v Ingram

1. Both parties referred to the case of Axiak v Ingram. As I have said, the defendants submitted that the judgment of Tobias AJA (with whom the President and Sackville AJA agreed) is wrong. [5] In written submissions the defendant submitted that Axiak "should not be followed" although in oral submissions it was conceded that it was a binding authority.
2. Axiak v Ingram was not concerned with the driver of a motor vehicle and did not address the question that arises in this case. Further, the plaintiff was a child and the matter fell to be determined under Division 2 of Part 1.2. Section 7K allows a claim even where the child is at fault unless the actions of the child constitute a serious offence and materially contributed to the death or injury. Accordingly, the decision should be treated with some circumspection in addressing the issue in the present case.
3. The facts were that a child (the appellant) alighted from a school bus, darted behind the bus and then ran across the road into the path of the defendant's car. She suffered horrendous injuries as a result. The appellant abandoned any allegation of fault on the defendant's part and relied on the "blameless accident" provisions. The trial Judge accepted the defendant's submission that the accident was caused by the fault of the appellant and that, for the purpose of s 7A, it was therefore caused by "the fault of any other person". The trial Judge entered judgment for the defendant and the child plaintiff appealed.
4. Tobias AJA undertook a careful examination of the statutory scheme having earlier observed at [1] that the "serious inconsistencies and/or anomalies" which prima facie existed in the MAC Act seemed to make construing the statute in accordance with the principles of harmonious goals [6] "at one point difficult to achieve." His Honour accepted the appellant's submission that the definition of "fault" in s 3 must be construed such that the word "other" was a "reference back to the word 'negligence'". [7] His Honour said that it was appropriate "to read the words of the relevant definitions into the substantive enactment and then construe the provisions so extended". [8]
5. The plaintiff relies on his Honour's analysis to submit that the use of the word "fault" in s 7A is a reference to "tortious negligence" on the part of the driver. In the present case "the plaintiff did not owe the kangaroo a duty of care" and "he wasn't negligent because there was no damage suffered by anyone to whom he owed a duty of care". Accordingly, the accident is a "blameless motor accident" under s 7A. This accords with the analysis of Hoeben CJ at CL in Nettleton v Rondeau [2014] NSWSC 903 where the Chief Judge explained the ratio of the decision in Axiak v Ingram with his customary clarity: "87. The meaning of s 7A was considered in Axiak v Ingram [2012] NSWCA 311. That case is authority for the proposition that a pedestrian plaintiff could not constitute 'any other person' for the purposes of s 7A because any contribution to the cause of the accident by the pedestrian plaintiff constituted 'contributory negligence' rather than 'tortious conduct' meeting the definition of 'fault' in the Act (which is defined as being 'negligence or any other tort'). 88. I am satisfied that the effect of the decision in Axiak is that fault on the part of a plaintiff which contributes to the cause of an accident does not constitute 'fault' on behalf of 'any other person' for the purposes of s 7A. Accordingly, my finding that the plaintiff has contributed to the cause of the accident and that there should be a finding of contributory negligence against him would not prevent the accident being a 'blameless motor accident'."
6. As the defendants point out, Tobias AJA acknowledged at [64] that his construction of the word "fault" in s 7K was anomalous and the only example in the MAC Act of the word being used to mean "contributory or non-tortious negligence". Accordingly, in considering s 7E(2)(a), the injury is "taken to have been caused by an act or omission of the driver" even if the act or omission "does not constitute fault" (that is, tortious negligence) on the part of the driver. In other words, a driver cannot succeed in a claim under Division 1 even if his causative act was not a negligent one.
7. Axiak v Ingram does not resolve the fundamental question raised by the defendant in the present case. The judgment does not determine whether drivers are excluded from the operation of the blameless motor accidents provisions in Division 1. However, the analysis of the legislation generally, and the meaning of the word "fault" as it is used throughout the MAC Act (subject to the anomaly in s 7K), is instructive in considering the use of that term in both s 7A and 7E(2).

Davis v Swift

1. In Davis v Swift [2014] NSWCA 458, Meagher JA noted at [3] that neither party had submitted that Axiak was wrongly decided. Each of the judgments suggested or implied aspects of the decision in Axiak might be reconsidered in the future with Adamson J observing that it was binding on the trial Judge. [9]
2. Davis v Swift was not a case involving a claim by a driver and did not address the question of construction raised by the defendant in the present case. However, in terms of whether the accident was "blameless" Meagher JA provided an example at [34] which has some relevance to the present case: "The owner and driver may be without fault in circumstances where the driver loses control because of some catastrophic failure of a component of the vehicle which involves no negligence in its care and maintenance. They may also be without fault because an event or incident on or in the vicinity of the roadway (such as an animal running on to the roadway) results in the driver losing control, or having to take evasive action, and causing an incident or accident involving injury." (My emphasis)
3. While that passage, and the example given in parenthesis, has some relevance to the question of whether an accident is "blameless", it does not address the issue of causation, as that concept is modified by s 7E(2), that arises in this case.

Mamo v Surace

1. For completeness, I refer to the decision in Mamo v Surace [2014] NSWCA 58. That case involved a collision between a car and a cow that ran onto the road at night. The passenger in the car was injured and brought an action for damages against the driver. At trial, the plaintiff alleged fault (negligence) on the part of the driver. No reliance was placed on the blameless accident provisions. The trial Judge found that there was no breach of duty and, if there was, the breach did not cause the injury. The Court of Appeal upheld those findings. On appeal, for the first time, the appellant sought to raise a case based on the blameless accident provisions and did so by reference (amongst other things) to the decision in Axiak. The Court of Appeal refused to entertain the argument. [10] Any observations made by McColl and Ward JJA as to the construction of Division 1 were necessarily obiter and, like Axiak and Davis v Swift, the case was not concerned with an action by the driver of a vehicle in single car accident.

Second Reading Speech

1. I have considered the submissions of the parties that rely on things said by the Minister in the Second Reading Speech. I am unable to gain any assistance in an interpretation of the relevant provisions, or in resolving the present question, from what the Minister said. As I observed at the outset, the parties relied on the Second Reading Speech in support of diametrically opposed propositions.
2. I respectfully adopt what was said by Elkaim DCJ in Hossain v Mirdha when confronted with similar submissions based on the Second Reading Speech: "16. 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. 17. 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." 18. 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." 19. I have [highlighted] 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."

Conclusion: Division 1 does not exclude drivers (or drivers involved in single car accidents)

1. The authorities to which I have referred either do not decide the point directly or are not binding on this Court. The Second Reading Speech is ambiguous.
2. I have concluded that the words in s 7E are capable of being understood on their plain terms and consistently "with the language and purpose of all the provisions of the statute" based on an understanding that the MAC Act, and the provisions of Part 1.2 in particular, "are intended to give effect to harmonious goals." [11]
3. With the exception of Part 1.2, the purpose of the MAC Act is to establish a scheme for the compensation of people injured in motor accidents where the compensating party (or their insurer) is at fault. Section 3A makes it clear that the Act applies only in respect of an injury that was "caused by the fault" of the driver. Part 1.2 is an exception in that it provides for compensation where the accident was "blameless". It does this through s 7B which deems the death or injury "to have been caused by the fault of the owner or driver of the motor vehicle".
4. The defendants' submission that a driver involved in a blameless accident is not entitled to compensation turns on a particular construction of s 7E. It essentially requires an interpretation that means that the very act of driving is a (but not necessarily the only) cause of the injury. It also essentially requires an interpretation that means that all of the words after "driver of a motor vehicle" in sub-s 7E(1) add nothing to the provision. That approach is contrary to the general proposition, oft repeated and emphasised in paragraph [71] of the judgment in Project Blue Sky, that "a court construing a statutory provision must strive to give meaning to every word of the provision." [12]
5. If the driver may never recover under the blameless accident provision, there need be no inquiry - otherwise required by s 7E(1) - as to whether "the motor accident concerned was caused by an act or omission of the driver". [13] Further, the significant modifications to the meaning of the phrase "caused by the act or omission of the driver" made by s 7E(2)(a)-(d) are mere surplusage.
6. Senior Counsel for the defendants submitted that by adding the words in s 7E(2): "the draftsman was attempting to cover all bases, to cover all alternative circumstances knowing that a driver must be doing something if he's living and breathing at the time of the accident. [Section] 7E(2) we say was an attempt, perhaps an awkward or clumsy attempt but an attempt nevertheless which ought to be regarded as successful as covering all potential circumstances in which a driver might find himself or herself." [14]
7. I should also refer to an argument advanced by Senior Counsel concerning the provision in s 7F that allows for a reduction for contributory negligence in the damages to be awarded to the plaintiff who was injured in a blameless motor accident. It was submitted that: "The fact that it is difficult or impossible to envisage an circumstance in which a driver can succeed on s 7E but have his damages reduced under s 7F for contributory negligence, I would submit lends force to our submissions that s 7E is intended to and does disqualify drivers or riders of motorcycles from obtaining damages under this division." [15]
8. I am unable to accept this submission. Section 7E(2)(c) would disentitle a driver whose act or omission was the cause of their injury even if it was not the sole or primary cause. As cases such as Axiak and Davis v Swift show, s 7F still has significant work to do in cases where a plaintiff (other than a driver) is found to have contributed to an otherwise blameless accident. It is not the case that a construction that allows a driver to obtain damages under Division 1, except when their act or omission was the cause of their injury, would render otiose the contributory negligence provision in s 7F.
9. While there can be little doubt that s 7E is designed to place significant limitations on the circumstances in which a driver may recover in the case of a blameless accident, I am unable to conclude that the terms of the section mean that a driver may never recover under Division 1. Accordingly, I do not accept the primary submission advanced by the defendants.
10. Equally, and for the same reasons, I do not accept the defendants' second submission that the Division cannot or does not apply to any driver involved in a single car accident.
11. In coming to those conclusions, I acknowledge that the facts of a particular case may give rise to a finding that the act of driving itself was the real and practical cause of the collision and injury. An example, taken from the criminal law, is where a person voluntarily drives a vehicle with the knowledge of the possibility that they may suffer a seizure or fall asleep while at the wheel. [16]

the DEFENDANTS' THIRD CONSTRUCTION OF Section 7e

1. The next alternative interpretation of s 7E advanced by the defendants is that the section "excludes all claims by drivers of vehicles (and riders of motorcycles) where for a measureable period of time, the act of driving continues between the happening of an event without which the motor accident would not have occurred, and the motor accident itself".
2. One only needs to formulate the matter in this way to recognise the unworkable nature of such an interpretation. The phrase "measurable period of time" is insufficiently precise to give real content to the provisions contained in s 7E. It is the terms of the section that need to be applied to the facts of the case rather than what is, with respect, a gloss on the provisions that the parliament chose to enact.

the DEFENdANTS' FOURTH CONSTRUCTION OF section 7E

1. The defendant finally submitted that the s 7E "excludes any claim by the driver of a motor vehicle or rider of a motorcycle except where the manner in which the vehicle or motorcycle is being driven or ridden is completely irrelevant to the occurrence of the accident. While this formulation and interpretation comes closest to reflecting the apparent legislative intention behind s 7E, it is not a substitute for an application of the particular words of the section.
2. The terms of s 7E(2) make it inappropriate to apply ordinary principles of causation to the questions that arise. However, for the plaintiff driver to be excluded from the operation of the Division, their act or omission must have been the cause of the accident in the relevant, and very expansive, sense contemplated by s 7E. Causation under the section can be established even if the act or omission "does not constitute fault" (that is, tortious negligence), was involuntary, was not the sole cause of the injury and even if the act or omission "would [not] have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event." [17]
3. The plaintiff placed some reliance on cases concerning causation decided under the common law. For example, I was taken to a passage in R v Hughes [2013] UKSC 56; 4 All ER 613 where there was a discussion of "the distinction between 'cause' in the sense of a sine qua non without which the consequence would not have occurred, and 'cause' in the sense of something which was a legally effective cause of that consequence". [18] There are many similar discussions by courts of high authority. [19] However, I accept the submission of Senior Counsel for the defendants that the legal backdrop to the case of R v Hughes (that is, attribution of criminal liability) is very far removed from that of the present case (that is, the deeming of fault in a provision creating liability for a blameless accident). The modification of the law of causation made by s 7E makes it impossible to apply such statements to an interpretation of the provisions contained in Division 1.
4. Even allowing for these significant modifications to the concept of causation, I agree with the conclusion reached by Norton DCJ in Connaughton that the act or omission must be something more than an act of driving that "was no more than a background fact which explains no more than why he was in the position" where the accident occurred.

DID THE PLAINTIFF'S ACT OR OMISSION CAUSE THE COLLISION?

Omission in failing to see the kangaroo?

1. A key part of the defendants' case that it was the plaintiff's act or omission that caused the collision with the kangaroo was based around the plaintiff's evidence as to the manner in which he was keeping a lookout on the road ahead. Senior Counsel for the defendant challenged the plaintiff repeatedly, and quite appropriately, to the effect the plaintiff was focused almost exclusively on the road a short distance and directly ahead of him. The defendants relied on that part of the plaintiff's statement that said "I was driving along a straight stretch of road looking directly ahead concentrating on my ride and the road ahead". [20] However, in the same statement, the plaintiff went on to say: "Prior to seeing the kangaroo I was looking ahead and scanning the roadway ahead of me. I am unsure how long the kangaroo had been on the side of the road when I saw it. The colour of the roadway was red and the surrounding scrub appears a greyish colour and thus the kangaroo was blended in to the surroundings." [21]
2. The defendants relied on the condition of the road and put to the plaintiff that his concern about the condition of the road meant that he was focussed on the road immediately in front of him and that he was not scanning the road ahead. An earlier, unsigned version of the plaintiff's evidentiary statement said "the road was of bad quality". [22] The plaintiff agreed in cross-examination that he would describe the road as being of bad quality. [23]
3. The agreed facts assert that the when the plaintiff first saw the kangaroo, it was only around 20 metres ahead of him and about 6 metres to the right side of the roadway. [24] The expert evidence suggested that this may be an underestimate. However, the plaintiff maintained under cross-examination that the estimate was correct: "Q. You said that you first saw the kangaroo when it was about 20 metres ahead of you, in other words in terms of road length ahead of you? A. Yes. Q. As I've now said to you 100 kilometres an hour is nearly 28 metres a second, 90 kilometres an hour is 25 metres per second, if that estimate of 20 metres is right, the time between when you first saw the kangaroo and the collision would be less than one second, it didn't happen that quickly did it? A. Yes. Q. You say that from the time you first noticed the kangaroo to the time that it struck your motorcycle was less than a second? A. Yes. Q. Or could it be that that estimate of 20 metres is an underestimate and in fact the kangaroo was looking at it in terms of road length quite a bit more than 20 metres ahead of you? A. No." [25]
4. The distance attested to by the plaintiff can only be an estimate and I allow for the possibility that it may well be an underestimate. Both experts agree that at a distance of 20 metres no human being would be capable of reacting either by braking, slowing down or swerving. The evidence does not allow for any conclusion as to the precise distance between the kangaroo and the plaintiff when the marsupial was noticed by the plaintiff.
5. The defendant relied on the evidence of its expert who said that the combination of the speed at which the plaintiff was travelling (which the defendants say was too fast in the circumstances) and the plaintiff's concern as to the condition of the roadway, meant that it was likely that the plaintiff was not scanning the verge or side of the roadway where wildlife might be located. The defendant's case was that had the plaintiff been travelling more slowly, perhaps at 60 or 70 km/h, he would have been more likely to see the kangaroo at an earlier stage. The expert gave an opinion that the kangaroo "should have been detectable" from 100 metres [26] and that there was "a delay in detection for some reason". [27] Earlier detection would provide a greater reaction time to take some form of evasive action. It was pointed out in cross-examination that there was an assumption involved in this evidence that the kangaroo was stationary in the moments leading up to the plaintiff noticing it. The plaintiff gave evidence that the kangaroo was stationary when he saw it but the evidence is necessarily silent as to the movements of the kangaroo before that moment.
6. While the defendants' challenge to the plaintiff was a strong one, the plaintiff did not deviate from his fundamental position that he was maintaining a proper lookout. It was not established through the plaintiff that his vision and focus was on the roadway directly, and a short distance, ahead of him. I do not accept that it was. I accept that the plaintiff, who is an experienced motorcycle rider, was maintaining focus on the road well ahead of him and scanning the roadway.
7. I also accept the plaintiff's evidence that the kangaroo blended with the background. The evidence on this issue was somewhat unsatisfactory, it being difficult to reconstruct four years later the precise colour of the foliage behind the kangaroo or even the colour of the kangaroo itself. The plaintiff was unable to say whether the kangaroo was of the red or grey species and his description of a four-foot tall kangaroo of a brown or grey colour does not allow that distinction to be made. There is evidence in the photographs tendered in the defendants' expert report that shows shadows from the left hand side of the road were cast almost on to the roadway. That photograph was taken at about the same time of the year but at 11am. Senior Counsel for the plaintiff postulated in cross-examination of Mr Keramidas that at 2pm there may have been shadows on the right-hand side of the roadway. If that were so, the visibility of the kangaroo would have been further diminished. However, whether or not there were shadows at 2pm on the day of the plaintiff's ride is a matter of speculation. The height of the foliage at the relevant time and place is not known and nor is the precise direction of the road at the place of the collision. The evidence is not sufficiently clear and cogent to come to any determination as to whether the kangaroo was in shadow as the plaintiff approached. However, the best evidence is the evidence of the plaintiff himself that the kangaroo was blending with the surroundings. I accept that evidence.
8. I do not accept that the failure of the plaintiff to observe the kangaroo earlier and thereby take evasive action was a relevant omission that caused the accident for the purpose of s 7E.

The speed

1. The defendants' case is that the plaintiff was travelling at a speed that was excessive in the circumstances and that his act of driving at that speed caused the collision. The agreed facts said that he was riding at 90 to 100 km/h. The plaintiff's evidence was that the speed at which he was travelling was safe and appropriate. He agreed in cross-examination that his unsigned statement said 95 to 100 km/h and that he may have being doing 100 km/h but that the best estimate was 90 to 100 km/h. [28]
2. The experts gave conflicting opinions as to an appropriate speed for the conditions. For the purpose of preparing their reports, both of the experts travelled the road from Hungerford to Bourke in cars. As far as I am aware, neither of the experts was an experienced motorcyclist and neither undertook the journey on a motorcycle.
3. The defendants' expert, Mr William Keramidas said: "An Appropriate Speed One of the other issues the author was asked to address was whether a speed of 90 to 100 km/h was within the range of speeds available to a prudent driver having regard to the circumstances. In the author's opinion an optimal speed [being a balance between safety and convenience] would be in the range of 60-70km/h, while a prudent driver would not be expected to generally exceed 70-80km/h. Moving up the scale, at 80 to 90 km/h the limits of control [particularly laterally] are being approached, while at 90 to100 km/h [in the author's opinion] a two wheeled vehicle would be approaching inherently unstable motion. In reaching the above conclusions the author takes into account the surface type and condition, including the existence of varying surface types and conditions as well as the very real prospect of animals intruding onto the roadway [therefore requiring the rider to lift his gaze from directly ahead]. The author also takes into account [with respect to this particular journey taken by the Plaintiff] that travelling at 60 to 70 km/h would mean that he would still arrive at Bourke during daylight hours, and probably an hour before dusk. In addition, it is reported by the Plaintiff that he has 'borrowed' the subject motorcycle from a friend, and therefore it would be expected that he may not be as familiar with this motorcycle than if it was his own. Additional reference material which enabled the author to assess the various speed ranges quoted above was drawn from GPS data, which [among other things] graphically depicts the actual 'spot speed' of the author's test vehicle at intervals equating 1/20th of a second. An examination of that graph [a copy of which is enclosed with this report] reveals that the range of speeds adopted by the author was between 70 to 80 km/h, noting that the journey was carried out in a four-wheeled vehicle [therefore less prone to being destabilised by surface irregularities] as compared the Plaintiff's two-wheeled vehicle. Ultimately, it is the author's opinion that a speed range from 60-70km/h would be optimally safe and still convenient in the circumstances." [My italics]
4. In cross-examination, Mr Keramidas acknowledged that the italicised portion of the above quote was based on an erroneous understanding of the evidence and of the plaintiff's familiarity and experience with the kind of motorcycle he was riding. [29] It is common ground that the plaintiff was an experienced motor cyclist and was very familiar with the type of motor cycle that he was riding (a BMW F650 GS Dakar) which was designed for similar conditions to those prevailing at the time of the accident. [30]
5. Mr Keramidas' opinion was that the optimal speed, providing a balance between safety and convenience, would be in the range of 60 to 70 km/h, while a prudent "driver" would not generally be expected to exceed 70 to 80 km/h. He said that at 80 to 90 km an hour the limits of control, particularly laterally, would be approached while at 90 to 100 km/h a two wheeled vehicle would be approaching an inherently unstable motion. These opinions are contrary to the evidence of the plaintiff. Nothing in the plaintiff's evidence suggested that the speed at which he was travelling (90 - 100 km/h) created the kind of instability to which Mr Keramidas referred in his report. On the contrary, the plaintiff's evidence was that driving at that speed created a smoother and more comfortable ride. Apart from the opinion of the defendant's expert, there is no evidence that such instability manifested itself at the time or contributed to the plaintiff landing on the roadway.
6. The plaintiff was an experienced motorcycle rider and had experience in riding the type of bike that he was using on this occasion. It is the type of motorcycle designed to be used on dirt roads. The cross-examination included the following: "Q. But you were in no hurry at all? A. No. Q. There was nothing to stop you driving or riding a lot slower if you wanted to? A. Yes. Q. But instead it appears that you chose to ride very close to or on the speed limit, as you understood it, of 100 kilometres an hour? A. Yes. Q. You could, had you wished, have ridden at 60, couldn't you? A. No. Q. Why not? A. Slower you ride on rough dirt roads the harder it is to ride. Q. You mean the less comfortable? A. The harder it is. Q. What do you mean by the harder it is? A. Well bikes if you're a dirt bike rider just when you sit on the higher speed the bike works better and you glide across the road, you ride comfortable. It flattens out all the bumps, you don't ride into the bumps, you ride across the top of them. Q. But any difference in comfort must be balanced against risks involved in riding faster, would you agree? A. No. Q. There's not much point being comfortable if you have an accident and end up in hospital, that's a bad trade off? A. Not comfort, it's safety riding. Q. You're not suggesting that you can't ride a motorcycle safely along that road at 60 kilometres an hour, are you? A. Yeah. Q. What would cause it to be unsafe? A. You'd be skidding all over the road. Q. Skidding? Why would you be skidding over the road? A. Because the road is corrugated. Q. You've brought me to the next topic and I'll come back to what we're discussing but the next topic I was going to ask you about was the difficulties involved with the road surface itself. You've just mentioned corrugations? A. Yes. Q. There were corrugations on the road, weren't there and corrugations are a common feature of roads such as this? A. Yes. Q. Occasionally or intermittently the roads are graded to get rid of the corrugations but as soon as it rains the corrugations reappear, is that your experience? A. Yes. Q. Of course there's also the risk that there would be potholes? A. Yes. Q. Which again may only be an inconvenience for a car driver, at the worst might damage a wheel or an axle but can be catastrophic for a motorcyclist, would you agree? A. No. Q. If you hit a big deep pothole hard on a motorcycle you're almost certain to end up lying on the road, aren't you? A. No. Q. Would you agree that it's very undesirable to hit a large pothole on a motorcycle? A. It's undesirable, yes. Q. Very? A. Yes. Q. There was clearly on a road such as this the risk of potholes wasn't there? A. Yes. Q. There could also be rocks on the roadway? A. Yes. Q. Again hitting a rock while riding on a motorcycle could produce catastrophic results? A. Yes. Q. Tree branches? A. Yes. Q. All of these things were part of the nature of the risks you had to take into account? A. Yes. Q. Do you understand what a speed of 100 kilometres an hour means in terms of the number of metres you're covering each second? A. No. Q. Can I help you by suggesting that at 100 kilometres an hour your motorcycle will cover almost 28 metres each second? A. Yes. Q. Which means that you will reach a pothole 50 metres ahead of you in less than two seconds at that speed? A. Yes. Q. Would you agree that in common language that the faster you travel means that things, hazards come at you more quickly? A. Yes. Q. Isn't that something that has to be balanced against any comfort involved in riding more quickly? SHELDON: I object to that, your Honour. HIS HONOUR: Yes, he did use the word comfort and you latched onto it but he also was saying that it was a safety issue driving quicker. REWELL Q. Your view was that riding more quickly allowed the motorcycle to cross the corrugations more easily and perhaps you think more safely? A. Yes. Q. But certainly more comfortable? A. Well comfort doesn't come into it if you drive from A to B. Q. But if you're driving A to B and you're bouncing on corrugations that would be uncomfortable, wouldn't it unless you're out of your seat it would be uncomfortable? A. Well you're out of the seat half the time. Q. Riding slower and perhaps experiencing a more bumpy journey on the corrugations is not going to throw you off of the motorcycle onto the road, is it? A. Yes. Q. You say riding over corrugations at less than a speed of 90 to 100 would throw you on the road? A. Yes, yes. Q. That's just not right, is it? A. Yes, it is."
7. The plaintiff's expert, Nigel McDonald, provided two reports. The first report was directed mainly towards reaction times and possible dangers in braking and swerving to avoid the kangaroo. His second report was mainly responsive to the report of Mr Keramidas. He "found a speed of 80-100 km/h to be comfortable and safe". [31] He explained this opinion in various parts of his reports including: "2.12 On my journey from Bourke to Hungerford, I observed goats, cows, brolgas, sheep, kangaroos and emus in the immediate vicinity of the road at 10 locations over approximately 180 kilometres of travel. The frequency of observation increased notably as I videoed the subject section of roadway on my return journey, consistent with my experiences of typical increased activity at dusk. 2.13 I would expect a lower level of animal activity at the time of the plaintiff's incident being in the middle of the day when wildlife and livestock are more dormant and not as significant collision risk. This is based both on my experience travelling in rural areas, and my experience in dealing with mass data of an insurer regarding animal strikes. 2.14 I found it safe to travel at speeds in the order of 80 to-100 km/h, slowing for road features or wildlife and livestock as appropriate. Sight distances along road and due to cleared width allowed for easy identification of wildlife and livestock at an extended distance. 2.15 I encountered two oncoming vehicles (energy authority trucks travelling together) on the drive from Bourke to Hungerford, and was overtaken by one vehicle. On the return journey I passed one oncoming vehicle. Traffic volumes therefore appear to be very low. … 3.22 I consider a daylight animal strike in circumstances with a broad lateral clear zone and good sightlines to be a very rare event that does not warrant travelling at a speed of 60 to 70 km/h, and much slower than the 80 to 100 km/h I found to be comfortable and safe for the site. I do not believe that a two wheeled vehicle would be inherently unstable on a hard packed smooth unsealed road such as the Bourke - Hungerford Road to any extent more than a four or more wheeled vehicle. 3.23 A four wheeled vehicle may be more prone to instability from an unsealed surface as differences in conditions experienced by each wheel path can induce instability, whereas a motorcycle wheels both travel the same wheel path and therefore do not experience either slip or drag on one side only. 3.24 I agree with Mr Keramidas that as travel speed increases, a driver's effective cone of vision tends to reduce. This is true for any road Including high standard freeways and rural highways, and tends to be offset by the fact that higher speed environments are less demanding on road users' attention due to lower levels of activity. Hence the level of comfort road users have travelling at higher speeds on a road such as the Bourke - Hungerford Road, and the policy of signposting higher speed limits on such roads. 3.25 As described earlier, the subject road had a broad clear zone free of foliage to conceal animals, and therefore offered a relatively safe environment in terms of daytime animal strikes. 3.26 I agree that fast speeds require longer stopping distances. In this instance, my understanding is that the rider did not have time to brake or slow notably prior to impact. If that is the case, stopping distance does not appear relevant. 3.27 I have not seen any indicators to suggest that fatigue was a factor. I note that the plaintiff reports having stopped at Hungerford for lunch and therefore had ridden only 20 to 30 kilometres since his last extended break. Mr Keramidas and I both appear to have travelled more than 400 kilometres from Bourke to Hungerford and return in a day on a mainly unsealed road. I did not consider myself fatigue affected whilst making the journey."
8. Mr McDonald also referred to the average speed on his own journey as follows: "Travel Times and Average Speeds The travel time between Hungerford, Queensland and Bourke, New South Wales (a distance of 214 kilometres) is reported by Google Maps as 3 hrs 46 minutes. I made the journey from Bourke to Hungerford in a time of approximately 2 ¾ hours with a few brief stops. I completed the return journey in approximately 2 ½ hours. Travelling a distance of 214 kilometres in 2.5 hours gives an average speed of 86 km/h."
9. Over objection, Mr McDonald also gave some anecdotal evidence of his own experience concerning the visibility of kangaroos. That evidence was not based on a relevant area of expertise and, while I allowed it at the time, I have disregarded it in reaching my conclusion.
10. I accept the evidence of the plaintiff (as an experienced motor cyclist and based on his perceptions in the time leading up to the collision) and Mr McDonald (as an expert) that the speed at which the plaintiff was travelling at the time of the accident (90-100 km/h) was unexceptional in the prevailing conditions. I do not accept the evidence of Mr Keramidas that travelling at that speed would have created lateral instability or diminution in control. There is no evidence that it actually did so and the plaintiff was steadfast in refuting the suggestion. The accident did not occur because of any instability caused by a combination of the speed and "rutting" or corrugation in the road surface. It occurred because the kangaroo crossed the road when it did and collided with the plaintiff. I accept that the "cone of vision" is decreased at higher speeds but also accept that the plaintiff was able to, and did, maintain a view of the road ahead.
11. While it must be accepted as a matter of logic and common sense, that a slower speed creates a longer reaction time, the evidence does not lead to a conclusion on balance that a slower speed would have resulted in the collision not occurring. The obvious exception to that proposition is the fact that the speed at which the plaintiff travelled meant that he was in the location where the kangaroo ran into him at the time the kangaroo decided to bound across the road. However, even on the expanded concept of causation established by s 7E, that happenstance does not lead to a conclusion that the accident was caused by an act or omission of the plaintiff. As was pointed out by Senior Counsel for the plaintiff, on the same basis it could have been said that the actions of the plaintiff in not leaving Noccundra half an hour earlier caused the collision, or that the plaintiff's decision to stop for lunch at Hungerford caused the collision, because he would have arrived at the place where the kangaroo crossed the road half an hour before the kangaroo. However expansive be the modified and extended concept of the phrase "caused by an act or omission" in s 7F, it does not go so far.
12. I am satisfied that no act or omission of the plaintiff caused the collision or injuries. His actions leading up to the accident do no more than provide the background narrative by which he came to riding at the same time when, and place where, the kangaroo crossed the Hungerford Road and, in doing so, knocked the plaintiff from his motorbike causing him injury. The motor accident was blameless and the provisions of s 5F do not disentitle the plaintiff to damages.

Contributory negligence

1. The amended defence asserted that the plaintiff was negligent. However, it appears to be accepted by both parties that the provisions of s 7F have no application in the case of a driver. Clearly, by operation of s 7E(2)(c), a negligent driver whose actions were at least partly the cause of their injuries would be disentitled to compensation. Questions of contributory negligence would not arise.
2. For the reasons explained above, no act or omission of the plaintiff caused the collision. For the same reasons, the plaintiff's riding of the motorcycle was not negligent. He was not riding at an excessive speed, did not fail to keep a proper lookout and was not otherwise negligent.

ORDERS

1. For those reasons, I make the following orders: 1. Judgment for the plaintiff. 2. Defendant to pay the plaintiff's costs on the issue of liability. 3. Parties to agree on damages or upon a timetable for the future conduct of the proceedings. 4. The matter is adjourned for mention on Friday 11 December 2015.

Endnotes

1. Transcript (T) p 52.
2. T p 72.
3. Senior Counsel for each side agree that the word "not" should be included in s 7E(2)(d) even though it is missing in the text of the section: T p 4, 97
4. Compare NSW Insurance Ministerial Corporation v Reeve (Court of Appeal (NSW), 24 September 1993, unrep) where it was suggested that stopping suddenly to avoid running over ducks, thus imperilling people in the car behind, may be an aspect of negligence.
5. T p 7.
6. Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 at [70].
7. This part of the appellant's submission is set out at [45] and from [57] Tobias AJA sets out the reasons that "the appellant's submissions should be accepted"
8. At [62], applying McHugh J in Kelly v The Queen [2004] HCA 12; 218 CLR 216 at [103].
9. Meagher JA at [46], Leeming JA at [84], Adamson J (dissenting in the outcome) at [88]-[89].
10. McColl JA at [73]-[88]; Ward JA at [95]
11. Project Blue Sky at [69]-[70].
12. See also the cases collected in Dennis Pears & Robert Geddes, Statutory Interpretation in Australia (8th ed, 2014, Lexis Nexis) at 2.26.
13. Section 7E(1).
14. T p 90.
15. T p 85
16. Gillett v R [2006] NSWCCA 370 at [21]-[23], Jiminez v The Queen [1992] HCA 14; 173 CLR 572 at 578-579
17. Again, I have inserted the missing "not" into s 7E(2)(d) in accordance with the agreed position of the parties.
18. R v Hughes [2013] UKSC 56 at [23]-25].
19. See for example, Chappel v Hart [1998] HCA 55; 195 CLR 232 particularly at [27] (McHugh J).
20. Ex B paragraph 19.
21. Ex B paragraph 24.
22. Ex 1 paragraph 8.
23. T p 12.
24. Ex A paragraph 2(k).
25. T pp 23-24.
26. T p 67.
27. Ex 2 paragraph 29.
28. T p 11.
29. T p 67.
30. There are photographs of an exemplar BMW Dakar 650 in Ex C p 3 and Ex D p 12.
31. Ex D p i. 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: 07 December 2015