Mamo v Surace

In *Mamo v Surace*, the appellant, a passenger in a vehicle driven by the respondent, appealed a decision concerning a motor vehicle accident. The collision occurred when the respondent's car struck a cow that had entered the road. The respondent was driving within the speed limit in a semi-rural area at night, having momentarily taken his eyes off the road. There was no evidence suggesting animals were likely to stray onto the road in that location.

The appeal raised several legal issues. Firstly, the court considered whether the respondent had failed to keep a proper lookout. Secondly, it addressed the appellant's attempt to raise a new argument on appeal that had not been pleaded or pursued at trial, and whether exceptional circumstances justified its introduction, considering potential prejudice to the respondent. Thirdly, the court examined the construction of blameless motor accident provisions under the *Motor Accidents Compensation Act*, specifically whether they were confined to accidents as defined by the Act. Finally, the court considered the availability of a *Jones v Dunkel* inference given the respondent did not give evidence, and whether such an inference would have assisted the appellant's case.

The court found that the respondent had not failed to keep a proper lookout, noting that the incident involved a sudden and unpredictable event. Regarding the new argument on appeal, the court determined that exceptional circumstances were not present to allow its introduction, and that the respondent would have been prejudiced. The construction of the blameless accident provisions was also found not to assist the appellant. Furthermore, the court concluded that a *Jones v Dunkel* inference was not available or, if it were, would not have assisted the appellant's case.

The appeal was dismissed with costs.