Syed v Crumpton

1. [1]

   In 23 February 2012, Mr Syed was riding a motorcycle along Lady Game Drive at Lindfield, behind the car, Mr Crumpton was driving, when it collided with a wallaby, which fell to the road, where it was struck by Mr Syed’s bike, causing him to be ejected and injured. Mr Syed brings a claim in negligence against Mr Crumpton and, in the alternative, a claim under the blameless accident provisions of the Motor Accidents Compensation Act 1999 (NSW) against Mr Crumpton and NRMA, the third party insurer of his bike.

2. [2]

   By a second amended notice of motion filed in April 2016, NRMA seeks to have the relief sought against it struck out in accordance with Rule 14.28(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) and in the alternative, the proceedings against it dismissed under Rule 13.4. The motion is supported by an affidavit sworn by Mr Jones, NRMA’s solicitor. It claims that Mr Syed has no reasonable cause of action against it.

3. [3]

   Mr Crumpton appeared at the hearing of the motion, but advanced no submissions. There is no question that if fault on his part is established the blameless accident provisions of the Act will have no operation and the case against NRMA will fail.

4. [4]

   There is also no question as to the Court’s power to make the order sought by NRMA, but the discretion can only be exercised in the limited circumstances discussed in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 at [59], considered in O’Brien v Bank of Western Australia Ltd [2013] NSWCA 71, where it was observed at [3]:

5. [5]

   I am satisfied for the reasons which follow, that NRMA has not established a basis on which the orders it sought may be made, depending as its case does on the proper construction of the Act, which lay in issue between it and Mr Syed.

6. [6]

   Mr Syed’s pleaded case against NRMA is, relevantly, that:

7. [7]

   The case advanced by NRMA, in its written outline of submissions, was that Mr Syed’s s 10 policy did not extend first party insurance cover to him, nor did it indemnify him for his own loss, if the accident was a blameless accident under this statutory scheme. No cause of action arising either at common law or under the Act for his injuries against Mr Syed himself, his claim against it had to be dismissed. It was also submitted that authorities which supported the construction of the Act to different effect, were wrongly decided.

8. [8]

   In oral submissions it was explained that NRMA’s case was that properly construed, the s 10 third party policy it had issued to Mr Syed does not extend the insurance provided by the policy to him, for the injuries he suffered when he was struck by the wallaby and that it does not indemnify him against his own loss. Section 7A provides for blameless accidents not caused by Mr Syed and s 7B has the effect, given the motor accident insurance which he has with it, that in the event of the blameless accident he is deemed to have caused the accident, and is thereby deemed to be at fault if he were either the driver or the owner of the vehicle involved. There is no scope for the deeming provision to operate, however, in circumstances where he is both the driver and the owner of the insured vehicle

9. [9]

   It was accepted that if in such a case the injured person was a passenger, Mr Syed would have liability under these provisions. It was because he was not only the driver or owner, but also the insured person that the policy did not apply.

The statutory scheme

1. [10]

   There is no issue that Mr Syed has a compulsory third party policy with NRMA, to which s 10 of the Act applies. Section 10 relevantly provides:

2. [11]

   A “third party policy” is not otherwise defined in Act. It follows that while such a policy is called a “third party policy”, the s 10 requires that the policy make the provisions there specified, with the words and expressions used in the policy having the same meaning as in the Act. That approach involves a significant departure from general insurance law. “Fault” is thus defined in s 3 to mean “negligence or any other tort”. Section 4 deals with the meaning of “owner” of the vehicle. There is no issue that Mr Syed was the owner of the bike, as well as its driver.

3. [12]

   NRMA’s case is, however, that its s 10 policy does not insure Mr Syed for his own injuries, because he was both the owner and driver of the insured vehicle. It was accepted that if he were either only the owner, or the driver of the vehicle, the policy would apply to him to his injuries in a blameless accident involving the insured vehicle. Given, however, that he was both, the policy did not apply.

4. [13]

   The basis of this distinction is not immediately apparent from the words used in s 10.

5. [14]

   There is no issue that under the policy NRMA insures Mr Syed as both owner and driver of the vehicle. Undoubtedly he is “a person”. That term not being defined, it must take its ordinary meaning. The liability insured by the policy is “in respect of the death of or injury to a person caused by the fault of the owner or driver” of the insured vehicle. Mr Syed has suffered injury in an accident in which that vehicle was involved. It is its cause which is in issue.

6. [15]

   That is why the basis for the confined reading of the section for which NRMA contended, as including an injured person who is either a driver, or an owner of the vehicle, but not one who is both, is difficult to see.

7. [16]

   Support for such a construction was sought to be drawn from Digby v General Accident Fire and Life Assurance Corporation Ltd [1942] 2 All ER 319; [1943] A.C. 121. There a claim under an insurance policy entitled “General European Travel Comprehensive Automobile Policy”, described in marginal descriptions in the policy to be a “[t]hird party indemnity. Public liability and property damage” policy, promising “unlimited indemnity” in respect of a claim by the public (including passengers) for personal injury and damages to property against the policyholder or his personal representative and any person driving on the policyholder’s order”, arose to be considered. That, it is immediately apparent, was quite a different type of insurance to the third party policy established by s 10 of this Act.

8. [17]

   It was the proper construction of the operative clause of the policy, clause 2, which arose for consideration in Digby. It provided:

9. [18]

   Again, it is evident that those provisions are quite different to what is provided in s 10.

10. [19]

    It was concluded by majority in Digby that clause 2, properly construed, had the result that the policy did not cover injuries suffered by the owner of the insured vehicle, when injured in an accident which occurred while his chauffeur, an authorised driver, was driving. In the majority Lord Atkin observed at 135 - 136:

11. [20]

    Likewise in construing s10. It is the words used in the section which must be construed. The liability insured is in respect of death or injury “to a person caused by the fault of the owner or driver of the vehicle”. Those words cannot be read as if the section provided that the liability insured is in respect of death or injury “to a third party caused by the fault of the owner or driver of the vehicle”.

12. [21]

    Lord Atkin continued at 136:

13. [22]

    These observations, it was contended by NRMA, supported the construction of s 10 of the Act as not applying to an injured person who is both the owner and the driver of the insured vehicle. But, by its own submissions, NRMA accepts that the provisions made by the Act depart from those made by the policy which fell to be construed in Digby, and the insurance law Lord Atkin there discussed. Unlike that policy, the description of the liability insured under s 10 is not limited to members of the public. Nor does it exclude a claim for injuries suffered by the insured him or herself, if they were caused by the owner or driver of the vehicle.

14. [23]

    In the result, I can see no basis for the conclusion that s 10 applies to an injured person who is either the owner or driver of the vehicle, but not both.

15. [24]

    This conclusion is supported by a consideration of the statutory scheme as whole, which must be considered when s 10 is construed (see Certain Lloyd’s Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56; (2012) 248 CLR 378 at [23] – [25] and [68] – [88]).

16. [25]

    Section 3B(1)(a) provides that application of Chapters 3 - 6, including the blameless accident provisions in Part 1.2 of Chapter 1, in respect of death or injury that results from the use or operation of a motor vehicle, is limited to death or injury that is caused by a motor accident “for which the vehicle has motor accident insurance cover”. A “motor accident” is defined in s 3 to mean:

17. [26]

    There is no question that the accident involving the wallaby and Mr Syed’s bike was a motor accident as defined.

18. [27]

    Motor accident insurance cover is dealt with in s 3B(2), which provides:

19. [28]

    There is no issue that Mr Syed’s bike had such motor accident insurance cover with NRMA.

20. [29]

    Section 3A provides for general restrictions on the application of the Act, providing:

21. [30]

    Chapter 4 deals with Motor Accident claims. “Claim” is defined in s 3 to mean “a claim for damages in respect of the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle”.

22. [31]

    The language of s 3A is also similar to that of s 10. Both are concerned with death or injury of a person caused by the fault of the owner or driver of a vehicle. Why the injured person referred to in s 3A(1) must be a different person to the owner and/or driver, is also not readily apparent.

23. [32]

    By the deeming provisions of the blameless motor accident provisions in Chapter 1, the operation of the Act is extended beyond that specified in s 3A(1). It is by operation of these provisions that an owner and driver such as Mr Syed may come to be deemed to be a person at fault, for the purpose of s 10. Unlike the contract in issue in Digby, the Act does not exclude liability for injuries which he suffers, as general insurance law does, in such circumstances.

24. [33]

    “Blameless motor accident” is defined in s 7A to mean “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.”

25. [34]

    Section 7B(1) provides:

26. [35]

    Whether the accident involving Mr Syed’s bike was a blameless accident, need not now be determined. Section 7C Presumption that motor accident is blameless, provides:

27. [36]

    In the result, as NRMA accepted, these deeming provisions apply to Mr Syed, who, as both owner and driver of the bike, is deemed to have been at fault if the accident was a blameless one, as deferred. Those provisions also potentially apply, it is common ground, to Mr Crumpton as the driver of the other vehicle involved in the accident.

28. [37]

    Section 7E(1) however provides that if the accident was caused by an act or omission of the driver, he or she has no entitlement to damages for death or injury. Further, s 7E(2) provides that:

29. [38]

    It follows that in any of these circumstances Mr Syed, as the driver, has no right to damages for the injuries which he suffered, unless Mr Crompton has relevant liability as the driver of the other vehicle involved, if the accident is a blameless accident. It also follows from s 7E(1), however, that the statutory scheme also contemplates that in cases where the accident was not caused by an act or omission of a driver such as Mr Syed, he or she may have an entitlement to damages for death or injury caused by a blameless accident.

30. [39]

    An obvious example of such a situation would be where a driver was stopped in traffic next to a truck when a load fell onto his vehicle, or when a branch fell onto the vehicle from a tree, causing him injury. In such cases the provisions of s 7E would not apply, the accident not having been caused by an act or omission of the driver.

31. [40]

    Were it otherwise, s 7E would simply provide that a driver involved in a blameless accident has no entitlement to damages for death or injury which he or she suffers. It does not make such provision. Nor does it provide that a person who is both an owner and a driver has no such entitlement. Had either been intended, the section could easily have said so. It does not.

32. [41]

    NRMA’s case that the blameless accident provisions have to be read down, s 3A and s 10 having no application to a person who is both an owner and a driver, thus makes no sense in this statutory scheme, given the express provisions made as to drivers in s 7E.

33. [42]

    Also to be considered is that s 7F also makes provision for contributory negligence “by the injured person”. Such a person may be the owner or driver of the vehicle, or both, or of another vehicle, or a passenger, a pedestrian, or even a bystander. Further, s 7G provides:

34. [43]

    Section 7G is a provision made for the benefit of an owner or driver such as Mr Syed, who is deemed to be at fault for the blameless accident in which he was injured. Like other provisions of this legislative scheme, it is also of potential benefit to the insurer who has provided motor accident insurance cover for the vehicle involved in a blameless accident. Such insurers are given rights such as those provided by s 78, which entitles it to conduct and take control of negotiations in respect of a claim and by s 79, to be joined as a party in the proceedings.

35. [44]

    Construction of the blameless accident provisions arose for consideration in Axiak v Ingram [2012] NSWCA 311, where a school child who ran into the path of a vehicle from behind a school bus was injured, and again in Melenewycz v Whitfield [2015] NSWSC 1482, another case where a motorbike struck a kangaroo, there in a single vehicle accident.

36. [45]

    In Axiak it was observed at [17] that when the Act was amended in 2006, it and the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), “established a scheme to provide lifetime care and support for persons who suffered catastrophic injuries in motor vehicle accidents covered by the Act. It proposed that all persons so injured would receive medical care and support services throughout their life regardless of who was at fault in the motor vehicle accident.” Where an accident was not caused by the fault of the driver of a vehicle, the only way that certain damages for death or injury can be recovered is under Division 1 of Part 1.2 No-fault Claims - children and blameless accidents of the Act.

37. [46]

    Section 33 of the Interpretation Act 1987 (NSW) requires that a construction that would promote the purpose or object underlying the Act is to be preferred over one that does not. The Act does not expressly state its purpose, which must therefore be gleaned from its provisions. The approach which has to be adopted to the construction of the Act was said in Axiak at [57] to be that discussed in Wilson v State Rail Authority of NSW [2010] NSWCA 198, at [12]:

38. [47]

    It was the meaning of the word "fault" in the definition of "blameless motor accident” which arose for consideration in Axiak. The questions which arose for determination in Melenewycz were whether a driver, or a driver involved in a single vehicle accident, could ever have the benefit of the blameless accident provisions of the Act.

39. [48]

    In Melenewycz, Hamill J considered Axiak and various other authorities in which the operation of the Act had been considered, to which it is not necessary to turn in this case, as well as what had been said in the Second Reading Speech. He concluded at [44] - [45] that s 7E had been designed to place significant limitations on the circumstances in which a driver may recover damages in the case of a blameless accident, but that the section did not have the effect that a driver may never recover damages for death or injury caused by such an accident and that the blameless accident provisions could apply to drivers involved in a single car accident.

40. [49]

    While it was submitted for NRMA that Melenewycz was incorrectly decided, I can see no error in his Honour’s conclusions as to the proper construction of this statutory scheme. The blameless accident provisions of the Act gives people killed or injured in a blameless accident, including, in certain cases, people who are both owners and drivers such as Mr Syed, the right to pursue claims in respect of death or injury, when he or she has third party insurance of the kind provided for by s 10.

41. [50]

    True it is that a person cannot sue him, or herself, for negligence at common law. The claim which Mr Syed pursues does not, however, arise at common law, but under a statutory scheme with obvious beneficial purpose for persons injured in blameless accidents as the result of the statutory provisions I have discussed.

42. [51]

    In construing the Act the practical consequences of giving it a particular meaning must, of course, be considered (see Public Transport Commission (NSW) v J Murray-More (NSW) Pty Ltd [1975] HCA 28; (1975) 132 CLR 336). So, too, must its beneficial purposes, so that full relief is given to the fair meaning that its language will allow, but restrained by what is fairly open on the words actually used (see Nash v Sunshine Porcelain Potteries Ltd [1959] HCA 7; (1959) 101 CLR 353 at 361; Khoury v Government Insurance Office (NSW) [1984] HCA 55; (1984) 165 CLR 622 at 638 and IW v The City of Perth [1997] HCA 30; (1997) 191 CLR 1 at 11).

43. [52]

    In Kavalee v Burbidge (1998) 43 NSWLR 422, it was considered at 441 that a liberal approach to the beneficial legislation there being considered (the Family Provision Act 1982 (NSW)) was called for, given the legislative goal of providing adequate provision in favour of eligible persons, but it was also observed that:

44. [53]

    Here, the basis for choosing a construction of s 10 of the Act which provides insurance cover for injured persons when they are either the driver or the owner of an insured vehicle involved in a blameless accident, but not when they are both, escapes me, as does the conclusion that one is consistent with the purposes of this legislative scheme, but the other is not.

45. [54]

    It is s 72 which regulates the bringing of claims under this statutory scheme, including in the case of blameless accidents. It requires that claims be made against persons on whom liability is imposed by the Act, when insured, by notice given to the insurer. The section provides:

46. [55]

    Section 113 Proceedings against insurer if insured dead or unable to be served, deals with the pursuit of proceedings and the service of process, where a person cannot be served when proceedings are brought, not with the rights and obligations created by the legislative scheme, which might be pursued in such proceedings. It provides:

47. [56]

    This provision does not seem to be of relevance, in this case, even though it is relied on in Mr Syed’s statement of claim. It is s 19 of the Civil Procedure Act 2005 (NSW) which requires that civil proceedings such as this be commenced and conducted in accordance with the provisions of that Act and the Uniform Civil Procedure Rules 2005. Section 113 of the Act is a machinery provision which deals with circumstances where a person against whom such proceedings are sought to be brought are dead or cannot be served with process. This is not such a case.

48. [57]

    Mr Syed has s 10 insurance with NRMA. He claims, in the alternative, that the blameless accident provisions of Part 1.2 of Chapter 1 of the Act apply to this accident. If it was a blameless accident, which it was common ground does not arise for determination on this motion, he and Mr Crumpton the driver of the other vehicle, are thereby deemed to have been at fault and to have caused the injuries which he suffered, when his bike struck the wallaby. In accordance with s 72, any claim for damages in respect of that accident, whether suffered by him or someone else, had to be brought by notice given to NRMA, his s 10 insurer and to the insurer of the other vehicle.

49. [58]

    NRMA accepted that if it had been another person who had been injured in this accident, such notice would have had to be served upon it and if the accident were found to have been a blameless accident, Mr Syed’s policy would apply.

50. [59]

    It is common ground that Mr Syed brought a claim under s 72, which NRMA refused to accept. There is a dispute between them as to whether or not the policy covers the injuries he has suffered. While that has not been adequately pleaded in Mr Syed’s statement of claim, NRMA is a proper defendant in these proceedings in the circumstances, given the issues which lie between it and Mr Syed. NRMA accepted that if its motion failed, he must be given leave to amend his pleadings to squarely raise this issue.

51. [60]

    The construction of the Act for which NRMA contended, cannot be accepted, as I have explained. Accordingly, it has not met the onus which falls upon it and the proceedings brought against it cannot be dismissed and Mr Syed must be given leave to amend his pleadings, as it accepted.

52. [61]

    For the reasons given, the motion is dismissed and Mr Syed is given leave to amend his statement of claim.

53. [62]

    The usual costs order under the Rules is that costs follow the event. Given the conclusions I have reached the parties should confer and file proposed orders within 14 days. If there is any disagreement as to costs I will hear them.