Sherwood v Hussain [2018] NSWDC 53 | Case summary

The submissions made on behalf of the defendant

Counsel for the defendant submitted that the plaintiff had not established in his case in chief the requirements to succeed under the "blameless accident provisions" in s 7A-s 7C of MACA on the evidence before the Court. In particular, it was submitted: 1. The admissions made in the Amended Defence were very limited. Only paragraphs 1 and 2 of the Statement of Claim had been admitted. The rest of the paragraphs in that pleading were either denied or not admitted; 2. The Notice to Admit Facts in Exhibit A did not admit anything establishing a connection between the relevant motor vehicle and either an accident or any injury to the plaintiff; 3. Exhibits B and C were only admitted as evidence of an injury occurring on 9 March 2013 and for no other purpose; 4. It was not established that MACA applied in the present case. The definition of "motor accident" in s 3 and the requirements of s 3A(1) were not established. First, there was no evidence that a "motor accident" within the definition in s 3 of MACA had occurred as there was no evidence of an incident or accident involving the use or operation of a motor vehicle that caused the injury to a person, where the injury is caused by one of the matters listed in the definition including the driving of the vehicle. In relation to s 3A of MACA, it was submitted that there is a pre-requisite to the application of the blameless accident provisions that the injury to a person is caused by the deemed fault of the owner or driver of a motor vehicle in the use or operation of the vehicle and only if the injury is a result of and is caused during various matters including the driving of the vehicle; 5. It was submitted that there is simply no evidence before the Court that the definition of "motor accident" or the requirements in s 3A for the application of MACA have been satisfied in the present case. Accordingly, it is said that the requirements of s 7C of MACA have not been satisfied because the section requires the "death of or injury to a person, resulting from the motor accident". This requires the definition of "motor accident" to be satisfied and it has not been; 6. A mere averment in a Statement of Claim of the application of the blameless accident provisions is not sufficient to establish that there has been a "motor accident" falling within the definition in s 3 of MACA or facts complying with s 3A of MACA. The plaintiff still, even where there is an averment, must prove that the injury in question fell within those two sections. Section 3A is a requirement before the blameless accident provisions apply and s 7C of MACA must be read with the limitation in s 3A; 7. This conclusion is established by the recent Court of Appeal decisions in Whitfield v Melenewycz [2016] NSWCA 235 and Fairall v Hobbs [2017] NSWCA 82; 8. As pointed out by the Court of Appeal in Whitfield, the definitions of "motor accident" and "injury" were replaced and s 3A was inserted into MACA at the same time by the Motor Accidents Compensation Amendment Act 2006 (NSW). That act also inserted the blameless accident provisions into MACA: see at [13] and [25]-[29] of the judgment of Meagher JA (with whom Simpson JA and Sackville AJA agreed); 9. It was submitted that the blameless accident provisions focused on the question of fault not causation, which was why the legislature inserted s 3A which provides that "this Act applies only in respect of the death of or injury to a person that is caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle…" (emphasis added); 10. In contrast to Whitfield, the plaintiff in the present case has not established that a motor accident occurred, or the requirement of causation; 11. A mere allegation or averment of a blameless accident under sections 7B and 7C of MACA was not sufficient in the absence of proof by a plaintiff that a motor accident had occurred as defined in s 3 of MACA and as restricted in s 3A of MACA because s 7C of MACA only refers to the concept of fault in a motor vehicle accident. The amendment to s 3A of MACA removes any doubt that causation must also be proved for the blameless accident provisions including s 7C to apply; 12. In the present case, the only evidence before the Court is that the relevant vehicle alleged was registered, it had insurance cover and that the plaintiff sustained an injury on the morning of 9 March 2013. The various exhibits, together with the pleadings, were not sufficient individually or in combination to prove: 1. That a motor accident had occurred; 2. That the vehicle in question which the defendant admitted driving was there at the time of the accident; and 3. That it was involved in an accident which caused the injury to the plaintiff; 1. The evidence did not establish that the defendant's vehicle was even in the area at the time of the accident; 2. Accordingly, the court could not be satisfied that the plaintiff had established his case on the evidence on the balance of probabilities and thus a judgment for the plaintiff could not be supported. At the very least, there was an equivocal case which must fail. The plaintiff had not established the elements of a blameless accident claim on the balance of probabilities under MACA.
Counsel for the plaintiff submitted that the elements to establish the plaintiff's claim under the blameless accident provisions of MACA had been established to the requisite standard. It was submitted: 1. The plaintiff's evidence had to be taken at its highest; 2. The requirements of s 7A of MACA were established. The evidence did not prove fault; 3. Section 7C of MACA merely required an averment in the form stated in the section. The present proceedings were clearly proceedings on a claim for damages in respect of injury to a person resulting from a motor vehicle accident and there had been an averment by the plaintiff in his Statement of Claim that the motor accident was a blameless motor accident. Accordingly, as the requirements in s 7C of MACA were established, the averment was evidence of the matters referred to in the absence of evidence to the contrary and thus there was a presumption that the motor accident was blameless for the purposes of MACA; 4. This construction accords with the ordinary and natural meaning of s 7C of MACA.
It was submitted that the cases relied upon by the defendant had not looked at this argument in relation to s 7C. It was also submitted that the construction accorded with the intention of the blameless accident provisions which was to provide for compensation to a plaintiff in circumstances where fault could not be established. It was also submitted that the evidence established that the plaintiff was likely to have been struck by a motor vehicle by evidence providing a foundation for an inference to that effect: see Simpson JA in Nominal Defendant v Dowedeit [2016] NSWCA 332 at [146].
In reply, counsel for the defendant submitted as follows: 1. Sections 7A, 7B and 7C of MACA cannot be considered in a vacuum and the references to "motor accident" in those sections must be seen in the light of the definition of "motor accident" s 3; 2. It is a pre-requisite that the facts of the case fall within the definition of "motor accident" in s 3 before s 7C of MACA applies; 3. The mere assertion in a pleading does not substitute for the need for evidence to establish the foundation requirements for the blameless accident provisions to apply to the facts of the case.

Consideration

In Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28, the majority of the High Court stated as follows at [69]-[71] "[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined "by reference to the language of the instrument viewed as a whole". In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court "to determine which is the leading provision and which the subordinate provision, and which must give way to the other". Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. In The Commonwealth v Baume Griffith CJ cited R v Berchet to support the proposition that it was "a known rule in the interpretation of Statutes that such a sense is to be made upon the whole as that no clause, sentence, or word shall prove superfluous, void, or insignificant, if by any other construction they may all be made useful and pertinent"."
In Allianz Australia Insurance Ltd v Dinov [2016] NSWDC 342 I stated as follows at paragraphs [42]-[46] : "[42] In AQO v Minister for Finance and Services [2016] NSWCA 248 (5 September 2016) the Court of Appeal had to consider a number of pieces of New South Wales State legislation. [43] McColl JA dissented in the result. However, her Honour set out helpfully some of the principles relating to statutory construction in the course of her Honour's judgment. It is clear from a reading of the judgments of the majority that their Honours did not disagree in relation to the general principles stated by McColl JA; see, for example, Ward JA's comments at paragraph [175]. [44] McColl JA stated as follows in AQO at paragraphs [73]-[75] and [77]-[79]: [73] The task of statutory interpretation is concerned with giving a statutory provision the meaning that the legislature is taken to have intended it to have. The exercise must begin with a consideration of the text. In Project Blue Sky the plurality explained the exercise as follows: [69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that 'the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed'. Thus, the process of construction must always begin by examining the context of the provision that is being construed. [70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other'. Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme. [Footnotes omitted] [74] The court is also required to undertake the exercise of statutory construction with a view to promoting the purpose or object underlying the PPIP Act and the HRIP Act rather than construing the Acts in a manner which would not promote that purpose or object. [75] In Cunneen, the majority referred with approval to Mason J's reasons in K&S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd, where his Honour emphasised that "[t]he modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise." "Context" is used "in its widest sense to include such things as the existing state of the law and the mischief which … one may discern the statute was intended to remedy." Expressions of indefinite connotation are especially susceptible to context and may mean one thing in one legislative context and something quite different in another, such that to ignore context is calculated to lead to error. This passage in Cunneen is apt when considering the interpretation of general words such as "person" in paragraph (d)." [77] It is next necessary to bear in mind that the statutory provision in issue in this case is a definition. The function of a definition is not to enact substantive law, but to provide aid in construing the statute. Statutory definitions should be construed according to their natural and ordinary meaning, without reading in limitations and qualifications unless clearly required by the terms of the definition or its context, for example if it is necessary to give effect to the evident purpose of the Act. It is also necessary to address the language used bearing in mind the functions which the defined terms serve in the operative provisions. [78] Reading in limitations and qualifications not clearly required by the terms of the definition or its context may defeat the intention of the legislature. However, once it is clear that the definition applies, the only proper course is to read the words of the definition into the substantive enactment and then construe the substantive enactment, whether in its extended or confined sense, in context and bearing in mind its purpose and the mischief that it was designed to overcome. [79] It is impermissibly circular to construe the words of a definition by reference to the term defined, or to assume the purpose of the Act and then reasoning, as if syllogistically, conclude that a meaning of a definition more consonant with the assumed purpose of the Act should be preferred. In cases where the purpose of legislation cannot be identified, it may be that the "best that can be done is to reason in terms of relative consistency … in accordance with the principles of statutory interpretation adumbrated in Project Blue Sky - to determine which of the two competing constructions of [the definition] is more harmonious overall." [45] It seems therefore that the general principles applicable are as follows: (a) The task of statutory interpretation is concerned with giving a statutory provision the meaning that the legislature is taken to have intended it to have; (b) The exercise of statutory construction must begin with consideration of the text of the legislation; (c) The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. That is achieved by determining the meaning of the provision by reference to the language of the instrument used as a whole; (d) The context of the provision that is being construed must be examined; (e) At least in New South Wales, a court is also required to undertake the exercise of statutory construction with a view to promoting the purpose or object underlying the legislation rather than construing the legislation in a manner which would not promote that purpose or object; (f) In construing the legislation in its context the court must take into account the existing state of the law and the mischief which the court may discern the statute was intended to remedy; (g) Statutory definitions in an Act should be construed according to their natural and ordinary meaning, without reading in limitations and qualifications unless these are clearly required by the terms of the definition or its context being that that approach is necessary to give effect to the evident purpose of the Act and the mischief that the legislative provision was designed to overcome. [46] I have attempted to set out in the above summary the relevant principles derived from AQO and the decision of the High Court in Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR355; [1998] HCA 28. The latter case has been followed in many subsequent appellate decisions.
This approach to statutory construction was not criticised in the subsequent appeal: [2017] NSWCA 270.
I also refer to s 33 of the Interpretation Act 1987 (NSW) which provides as follows: "33 Regard to be had to purposes or objects of Acts and statutory rules In the interpretation of a provision of an Act or statutory rule, a construction that would promote the purpose or object underlying the Act or statutory rule (whether or not that purpose or object is expressly stated in the Act or statutory rule or, in the case of a statutory rule, in the Act under which the rule was made) shall be preferred to a construction that would not promote that purpose or object."
Sections 7A, 7B and 7C of MACA all refer to a "motor accident". Section 7C by using the term "an averment by the plaintiff that the motor accident was a blameless motor accident", still requires the plaintiff to establish that the alleged accident in question was a "motor accident" within MACA. This conclusion is reinforced by s 7D of MACA which applies Division 1 of Part 1.2 of MACA only in respect of "motor accidents that occur in the State after the commencement of this Division". The term "motor accident" is also referred to in s 7E.
Section 3 of MACA sets out definitions which are used in MACA. It should be noted that even the definition of "blameless motor accident" in s 7A still refers to a "motor accident". Accordingly, in my view the definition in s 3 of "motor accident" applies to a consideration of whether the plaintiff has established on the balance of probabilities that the blameless motor accident provisions set out in MACA apply to the present case.
Further, in my view s 3A of the Act, when read in its context, provides a further restriction on the application of MACA to claims. There is no reference to the concept of "fault" in the definition of "motor accident" in s 3 of MACA. However, there is a reference to "fault" in s 3A(1) of MACA. In my view, s 3A(1) when read in the context of Division 1, Part 1.2, the blameless accident provisions, establishes that the operation of MACA is extended for limited purposes to motor accidents not caused by the fault of the owner or driver of a motor vehicle. However, I accept the submission on behalf of the defendant that this only relates to the concept of fault. A plaintiff must still establish that the vehicle in question was involved in a motor accident as defined and that it caused an injury to the plaintiff in a manner referred to.
If the plaintiff's submission was correct, then the mere averment of certain facts would be sufficient to bring into play the blameless motor accident provisions, even where there had not been a "motor accident" established within MACA and the death or injury in question was not established to be the result of, and caused by, the use or operation of the vehicle in one of the ways set out in s 3A(1) of the Act.
In my view, my conclusion is supported by the history of the amendments to MACA including the amendments in the Motor Accidents Compensation Amendment Act 2006 (NSW) ("the Amendment Act"). The Amendment Act: 1. Inserted a new definition of "injury": Schedule 1, [3]; 2. Inserted a new definition of "motor accident": Schedule 1, [4]; 3. Inserted a new s 3A as set out above: Schedule 1, [5]; 4. Inserted the blameless accident provisions in ss 7A-7P: Schedule 1, [7].
Accordingly, all of the relevant amendments as inserted by the Amendment Act were part of a series of changes to MACA introduced at the same time. I can see no indication in either the terms of the Amendment Act or MACA after the amendments, to suggest that a mere averment is sufficient to give rise to the presumption in s 7C of MACA.
In my view, that argument is excluded by the history of the amendments to MACA including in the Amendment Act, the text of s 7C by the reference to "motor accident" in the section, the context of s 7C with the other sections in Division 1 Part 1.2 and the definitions which I have referred to, particularly the definition of the term "motor accident" which is used in sections 7A, 7B, 7D and 7E. I can see no basis for the submission that the purpose or object underlying the legislation was to give relief to a plaintiff who merely alleged an accident falling within the blameless accident provisions, rather than requiring proof to the requisite standard that there was a motor accident in which injury to a plaintiff was caused within s 3A.
Further, in my view this conclusion is reinforced by the authorities relied upon by the defendant.
In Whitfield, above, at [11], Meagher JA stated as follows: "The applicability of the MAC Act and access to its scheme of compensation is governed by s 3A …".
Meagher JA stated the following in paragraphs [19]-[20], [22]-[26], [29], [33] and [37]-[40]: "[19] The MAC Act does not provide "a universal, comprehensive scheme to award damages to every person who sustains an injury that was in some way connected to a motor vehicle": Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26 ; 221 CLR 568 at [43] (McHugh J). Indeed, the scheme was, at least in part, designed to stabilise or reduce insurance premiums: Allianz Australia v GSF at [47], [53] (McHugh J), [80], [101] (Gummow, Hayne and Heydon JJ). Approach to construction [20] The objects of the MAC Act are to be taken into account "not only when its provisions are capable of more than one construction but also in determining whether more than one construction is open": Nominal Defendant v Uele [2012] NSWCA 271; 82 NSWLR 308 at [18]; ss 5, 6. However, the words of the statute continue to have paramount significance in the determination of its meaning: see Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529 at [22], [42] (Gleeson CJ, Gummow, Hayne and Heydon JJ), [81]-[82] (Kirby J). As Spigelman CJ observed in Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261 ; 52 NSWLR 193 at [26], notwithstanding an evident legislative purpose being to confine the application of the Act, the "restriction adopted by Parliament was reflected in specific words which must be construed in the normal way"." "[22] Prior to the 2006 amendments, the restriction on the recovery of compensation was principally affected through the narrow definition of "injury" in s 3. The first part of that definition provided: injury: (a) means personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during: (i) the driving of the vehicle, or (ii) a collision, or action taken to avoid a collision, with the vehicle, or (iii) the vehicle's running out of control, or (iv) such use or operation by a defect in the vehicle, and … [23] Following those amendments the content of that definition and accordingly the restriction on recovery is included in s 3A(1). As McHugh J observed in Allianz Australia v GSF at [17] this definition of "injury" emphasised the element of "cause" as the key factor governing the entitlement to compensation. A claimant had to establish that their injury was "caused by the fault of the owner or driver … in the use or operation of the vehicle". This required that the claimant establish as against the driver or owner (or both) that they were negligent or had committed another tort, that their relevant "fault" was "in the use or operation" of the vehicle and that the injury was caused "by" that fault: Allianz Australia v GSF at [16]. Thus there had to be fault, the fault had to be in the use or operation of the vehicle and had to cause the injury. That remains the position under s 3A(1). [24] The claimant also had to establish (and still must establish) that the injury was "a result of" and "caused during" the driving of the vehicle, a collision, or action taken to avoid a collision, the vehicle's running out of control, or such use or operation by a defect in the vehicle. This additional requirement is of a causal and temporal connection between the death or injury and the use or operation of the vehicle, to the extent that that use or operation is involved in the accident: Allianz Australia v GSF at [17], [24] and [38] (McHugh J). (There have been minor amendments that do not affect this analysis.) The 2006 Amending Act [25] This Act introduced the blameless accident provisions, as well as inserting s 3A and amending the definitions of "motor accident" and "injury". As earlier defined, a motor accident was an accident or incident "caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which causes the death of or injury to a person". The definition of "injury" relevantly was as set out above. The 2006 amendments removed the references to the fault of the owner or driver from each of these definitions and included the new definition of a motor accident as an incident or accident involving the use or operation of a motor vehicle that causes death or injury where that injury also satisfies the causal and temporal requirements that were previously in the definition of "injury". [26] It is clear from the Second Reading Speech to the 2006 Amending Act (New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 9 March 2006) that the blameless accident provisions were intended to extend the scope of the existing CTP scheme to circumstances in which death or injury had been caused by the use or operation of a motor vehicle by its driver or owner (or both) where that use or operation could not be shown to have involved fault on the part of the owner or driver. They do so by deeming fault in the relevant use or operation, so as to give rise to a claim to which the CTP scheme responds." "[29] The emphasised reference in the Second Reading Speech to "a motor vehicle accident of a kind recognised by the Act" must be understood as being to an incident or accident involving use or operation of a motor vehicle that causes death or injury." "[33] It is instructive at this point to consider some of the circumstances in which the driver of a vehicle, who is not the owner, might claim damages from the owner in respect of injury caused by the owner's fault. To maintain such a claim, the injury must be caused by fault of the owner in the use or operation of the vehicle, and must satisfy the further causal and temporal requirements in s 3A(1). The use and operation of the vehicle includes its maintenance: s 3. In Huseyin v Container Terminals Australia Ltd [2006] NSWCA 382; 46 MVR 1, this Court upheld a claim for negligence in such use and operation, finding an owner who failed to exercise reasonable care in the maintenance of a vehicle's engine liable for injuries suffered by the driver as a result of the sudden failure of that engine: [36], [39]-[40] (Handley JA). See also Wagga Truck Towing Pty Ltd v O'Toole; IAG Ltd t/as NRMA Insurance v O'Toole [2011] NSWCA 191 at [46] (Hodgson JA)." "[37] The deemed fault is in respect of death or injury that results from a "blameless" motor accident. A "motor accident" is one involving use or operation of a vehicle that causes death or injury. Although not expressly stated, that causative use or operation must be by the owner or driver (or both of them). A "blameless" motor accident is one in which there was causative use or operation by the owner or driver (or both) but no fault in that use or operation. It is in relation to such an accident that the deeming applies. [38] Section 7B(1) deems death or injury caused by the use or operation of the vehicle by the owner or driver "to have been caused by the fault of the owner or driver … in the use or operation of the vehicle". The use or operation is, in each case, the causative use or operation of the owner or driver (or of both). So understood the deeming is of fault on the part of the owner or driver (or of both) whose use or operation caused the death or injury. [39] This construction of ss 7A and 7B gives effect to the purpose for the inclusion of the blameless accident provisions which, as described in the Second Reading Speech (see [27] above), was to deem fault on the part of the person or persons whose use or operation of the vehicle caused the death or injury. By the deeming of "fault" s 7B extends the application of the Act to a "blameless" motor accident, which is one caused by use or operation that does not involve fault. [40] As there was no causally related use or operation of the motorcycle by the first appellant owner, s 7B did not deem him to have been at fault. Ground 2 should be upheld and the appeal allowed."
It seems clear from the decision of the Court of Appeal in Whitfield that: 1. The application of MACA and access to its scheme of compensation is governed by s 3A of MACA: [11]; 2. The legislative background to the blameless accident provisions involved amendments to the definitions of "injury" and "motor accident" in s 3 and the insertion of s 3A into MACA: [23]- [26]; 3. The blameless accident provisions inserted into MACA were intended to extend the scope of the existing compulsory third party scheme to circumstances in which death or injury had been caused by the use or operation of the motor vehicle by its driver or owner (or both) where the use or operation could not be shown to have involved fault on the part of the owner or driver. This was achieved by deeming fault in the relevant use or operation, so as to give rise to a claim to which the scheme responds: [26] 4. The injury must be caused in the use or operation of the vehicle and must satisfy the further causal and temporal requirements in s 3A(1): [33]; 5. The relevant deemed fault is in respect of death or injury that results from a "blameless" motor accident. However, the definition of "motor accident" applies and a "blameless" motor accident is one in which there was causative use or operation by the owner or driver (or both) but no fault in that use or operation: [37]; 6. Section 7B requires use or operation which is causative use or operation of the owner or driver (or of both). The deeming is of fault on the part of the owner or driver (or of both) whose use or operation caused the death or injury in question: [38]; 7. The purpose of the inclusion of the blameless accident provisions was to deem fault on the part of the person or persons whose use or operation of the vehicle caused the death or injury: [39]; 8. In Whitfield as there was no causally related use or operation of the motorcycle in question by the owner, s 7B did not deem him to have been at fault: [40].
The analysis by the Court of Appeal in Whitfield still clearly contemplates that the definition of "motor accident" in s 3 and the requirements of s 3A(1) of MACA be satisfied. Although the Court of Appeal did not directly consider the argument raised by the plaintiff in the present matter, its reasoning in my view is inconsistent with the assertion that a bare averment of a motor accident within the Act is sufficient for the blameless accident provisions to apply.
In Fairall v Hobbs, above, Payne JA gave the leading judgment and McColl A/P and Leeming JA agreed with Payne JA's reasoning. In Fairall, an issue before the Court of Appeal was whether the Trial Judge erred in finding that the plaintiff's injury was caused by a "motor accident" as defined in s 3 of MACA. It is clear from Payne JA's reasoning that if the plaintiff's injury was not caused by a "motor accident" that all of the claims of the plaintiff under MACA must fail, including the claims under the blameless accident provisions: see at [95]-[96] for the parties' contentions.
Payne JA stated the following in Fairall v Hobbs, above, at [105]-[106] and [112]: "[105] It was common ground that the use or operation of the vehicle had to have a "very substantial causative role" in the accident for it to fall within the definition of a "motor accident" in s 3 of the MACA: Nominal Defendant v Hawkins at [33] per Hodgson JA. [106] The primary judge did not give separate consideration to the question whether this was a "blameless motor accident" under s 7A of the MACA. The appellants' submission that the primary judge erred in finding that the respondent's injuries were caused by a "motor accident" should be upheld." "[112] I have addressed factual causation under s 5D(1)(a) above at [86]-[94]. As I have said, on the findings of the primary judge it is not possible to determine the speed at which the respondent's horse may have perceived the appellants' vehicle as "excessive" or a "threat". The horse regularly walked on this road, close to traffic travelling at 80 km per hour and above. The respondent did not prove that "but for" the speed of the appellants' vehicle on this occasion the horse would not have reacted as it did. Cars travelling at greater speeds and in closer proximity than the appellants' car had not caused the horse to react adversely on its regular walks on this very road. Other than bare assertion by the respondent and inadmissible speculation by Mr Doughty there was no evidence that the speed of the appellants' vehicle had anything to do with the horse's reaction on this occasion. The failure by the respondent to prove factual causation has consequences. The injury caused to the respondent was not proven to be caused as a result of a "motor accident" as defined in s 3 of the MACA."
It is clear from the analysis by Payne JA that it was necessary for a plaintiff to establish that the accident fell within the definition of a "motor accident" in s 3 of MACA and that the use or operation of the vehicle had to have a "very substantial causative role" in the accident for it to fall within the definition of a "motor accident". Payne JA held that due to the failure by the plaintiff to prove factual causation (that is "but for" the speed of the defendant's vehicle, the horse in that case would not have reacted as it did), the injury caused to the plaintiff was not proven to be caused as a result of a "motor accident" as defined in s 3 of MACA. What is also clear, however, is that his Honour required a "motor accident" within s 3 to be established before the blameless accident provisions applied.
Again, the Court did not expressly consider the argument put forward by the plaintiff in the present case based on s 7C of the Act. However, the reasoning of the Court of Appeal in Fairall v Hobbs is, in my view, inconsistent with the argument put that a bare averment is all that is necessary to give rise to the presumption of the operation of the blameless accident provisions.
I also reject the submission made by the plaintiff relying on Nominal Defendant v Dowedeit [2016] NSWCA 332. In my view the evidence does not establish that it was likely that the plaintiff had been struck by a motor vehicle falling within MACA let alone the defendant's motor vehicle.
In my view, there was not sufficient evidence in the plaintiff's case in chief to establish: 1. That the defendant was driving a motor vehicle at the place where the plaintiff was at the time and on the date when the plaintiff was injured; 2. That there was a "motor accident" within s 3 of MACA being an incident or accident involving the use or operation of a motor vehicle that caused the injury to a person where the injury is a result of and is caused during one of the alternatives set out in the definition including the driving of the vehicle; 3. In a scenario set out in the restrictions in s 3A(1) of MACA on the assumption that the blameless accident provisions deemed fault as required in that section to have been established.
Even if there was a real doubt in relation to the application of s 7C of MACA to the present case (which I reject), it is clear from s 7D that Division 1 Part 1.2 of MACA in relation to blameless accidents applies only in respect of motor accidents that occur in New South Wales after the commencement of the Division. The term "motor accidents" in that section must, in my view, be a reference to the definition of "motor accident" in s 3 of MACA.
For these reasons, in my view, the defendant has established that the proceedings should be dismissed on the ground that, on the evidence given, a judgment for the plaintiff could not be supported within Part 29.9 of the UCPR.
Accordingly, I make the following orders: 1. Judgment for the defendant. The Statement of Claim is dismissed; 2. I will hear argument from the parties in relation to costs; 3. The exhibits are to be returned after 28 days.

Sherwood v Hussain

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