Mr Melenewycz was injured in an accident on 12 August 2011. He was riding a motorcycle along a road in rural NSW when a kangaroo jumped out in front of the motorcycle and caused a collision.
In NSW, except in limited circumstances, you can only make a claim for compensation if you can prove that your accident occurred due to the fault of the owner or driver of another vehicle. In this case, the only vehicle involved was the motorcycle Mr Melenewycz was riding.
You typically can’t make a claim against the insurer of the vehicle you are riding/driving. That’s because doing so would be the equivalent of “suing yourself”.
This left Mr Melenewycz in a predicament. He couldn’t make a claim against another vehicle (because there was none), and he couldn’t make a claim against himself. Plainly, he couldn’t make a claim against the uninsured kangaroo!
Mr Melenewycz’s solution was to make a claim against his friend, Mr Whitfield, who owned the motorcycle. Mr Melenewycz said that he was entitled to do this because the accident was a “blameless accident”.
In a “blameless accident case”, the law deems that the owner or driver of the vehicle against which the claim is made, was “at fault” – so that the injured person is able to make a claim. Mr Melenewycz argued that the law deemed that Mr Whitfield was “at fault” for the accident even though Mr Whitfield had nothing to do with the accident.
Mr Whitfield’s CTP insurer denied the claim. The insurer relied on s 7E of the Motor Accidents Compensation Act which says that the driver/rider of a vehicle involved in a blameless accident is prohibited from making a claim.
The case was heard by the Supreme Court of NSW and Hamill J found in favour of Mr Melenewycz, on the basis that there was nothing about the way in which Mr Melenewycz was riding the motorcycle which contributed to the accident. Hamill J said that s 7E would only apply if there was something about the use or operation of the motorcycle which contributed to the accident.
The insurer appealed to the NSW Court of Appeal, comprised of three Justices of Appeal. The appeal was made on the basis that the Supreme Court had incorrectly applied s 7E of the Motor Accidents Compensation Act, and also that, in the peculiar circumstances of Mr Melenewycz’s accident, the law would not deem that Mr Whitfield to be at fault.
The Court of Appeal unanimously overturned the decision of the Supreme Court.
The Court of Appeal said that Mr Melenewycz could not make a claim against the owner of the motorcycle he was riding because the law would only deem that Mr Whitfield was “at fault” if Mr Whitfield was ‘using or operating’ the motorcycle at the time of the accident. As Mr Whitfield had nothing to do with the accident at all (aside from the fact that he happened to be the owner of the motorcycle), Mr Melenewycz was not entitled to make a claim against him.
Even though this issue did not arise for determination, the Court of Appeal agreed that s 7E does not necessarily prohibit an injured driver/rider from making a “blameless accident claim” (as contended by the insurer) if there was no act or omission of the driver which caused the accident.
Mr Melenewycz applied to the High Court of Australia, for special leave to appeal against the decision of the Court of Appeal. On 9 February 2017, two Justices of the High Court of Australia dismissed Mr Melenewycz’s application for special leave on the basis that there was no reason to doubt the correctness of the Court of Appeal’s decision.
The outcome of this case, and what it means for other injured people
The practical reality of this decision is that if a person is injured in a single-vehicle accident involving a kangaroo (or indeed, another animal), they will not be entitled to claim compensation unless the law is changed.
I believe that it would be appropriate to make such a change. Mr Melenewycz’s riding of the motorcycle was analysed in great detail, and the Court was satisfied that there was nothing wrong with the manner in which he rode his motorcycle. He was simply in the wrong place at the wrong time.
One possible solution would be to expand claims against the Nominal Defendant (which responds to claims involving uninsured vehicles or vehicles which cannot be identified) to include accidents caused by wildlife encroaching onto the roadway. This would require a change to the legislation, and given that the NSW Government is currently considering a complete overhaul of the NSW CTP scheme, it is unlikely that such a solution would be adopted.
The more likely scenario is that the NSW Government will point to the Melenwycz decision in support of its plan to introduce a ‘no-fault’, or “hybrid” CTP scheme, so that all people who are injured in motor vehicle accidents can claim compensation, regardless of fault.
Whilst this proposal would (appropriately) enable compensation to be paid to Mr Melenewycz and others injured in similar circumstances, in the views of the writer, it would do so at the expense of the many thousands of innocent victims of motor vehicle accidents supported by the current CTP scheme, who stand to receive significantly less compensation under the new scheme for accidents caused by the negligence of other road users.
Written by Brett Watts.
Brett Watts is a Solicitor in Tom Goudkamp and Ruth Hudson’s Practice Group. Brett represents people who have been injured in a variety of accidents including motor vehicle claims and public liability claims.