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Melenewycz v Whitfield

Melenewycz v Whitfield

Case [2015] NSWSC 1482 4 December 2015

Causation

Statutory Construction

Compensatory Damages

Tort Law

Statutory Interpretation

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Supreme Court

New South Wales

Medium Neutral Citation: Melenewycz v Whitfield [2015] NSWSC 1482
Hearing dates: 7-8 October 2015
Date of orders: 04 December 2015
Decision date: 04 December 2015
Jurisdiction: Common Law
Before: Hamill J
Decision:
(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.

Catchwords: TORTS – motor accident compensation – blameless accident – kangaroo collides with motor cycle in the outback – only in Australia – statutory interpretation – whether driver can claim under no fault scheme – whether injuries occasioned by a “blameless motor accident” – whether plaintiff’s act or omission caused the accident – statutory modification to the concept of causation – where defendant not required to establish that plaintiff at fault – statutory definition of fault – whether riding a motor cycle constituted an act or omission – whether excessive speed an act that caused the accident – whether failure to observe kangaroo an omission that caused the accident
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW)
Cases Cited: Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36
Chappel v Hart [1998] HCA 55; 195 CLR 232
Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89
Davis v Swift [2014] NSWCA 458
Gillett v R [2006] NSWCCA 370
Hossain v Mirdha [2015] NSWDC 108
Ingram v Axiak & Ors [2013] HCATrans 64
Jiminez v The Queen [1992] HCA 14; 173 CLR 572
Kelly v The Queen [2004] HCA 12; 218 CLR 216
Mamo v Surace [2014] NSWCA 58
Nettleton v Rondeau [2014] NSWSC 903
NSW Insurance Ministerial Corporation v Reeve (Court of Appeal (NSW), 24 September 1993, unrep)
Project Blue Sky v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355
R v Hughes [2013] UKSC 56; 4 All ER 613
Texts Cited: Dennis Pears & Robert Geddes, Statutory Interpretation in Australia (8th ed, 2014, LexisNexis)
Category: Principal judgment
Parties: Anthony Melenewycz (Plaintiff)
David Patrick Whitfield (First Defendant)
AAI Limited t/a Suncorp Metway (Second Defendant)
Representation:
Counsel:
R Sheldon SC & J Gumbert (Plaintiff)
K P Rewell SC (First & Second Defendants)
Solicitors:
Monaco Solicitors (Plaintiff)
Curwoods Lawyers (First & Second Defendants)

File Number(s): 2014/00233733
Publication restriction: Nil

Judgment

The facts of this case could only have taken place in Australia. On 12 August 2011, the plaintiff was riding his friend’s motorcycle in a generally southerly direction on a red dirt road between Hungerford in Queensland and Bourke in New South Wales. The plaintiff commenced his journey in Noccundra and took lunch at Hungerford. He then set off for Bourke. Around 20 minutes later either he or his motorcycle (or perhaps both) was struck by a kangaroo. The plaintiff landed heavily on his right shoulder and has little memory of precisely what happened after colliding with the kangaroo. He believes…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Melenewycz v Whitfield

Details

AGLC: Melenewycz v Whitfield [2015] NSWSC 1482
Case: [2015] NSWSC 1482
Decision Date: 04 December 2015

CaseChat Overview and Summary

In the case of Melenewycz v Whitfield, the plaintiff, Melenewycz, brought an action against the defendant, Whitfield, in relation to injuries sustained in a motor accident. The accident occurred in the outback of Australia when a kangaroo collided with the motorcycle Melenewycz was riding, resulting in severe injuries. The dispute centred on whether Melenewycz was entitled to claim compensation under the Motor Accident Compensation Act, specifically whether the accident qualified as a "blameless motor accident" and if the plaintiff's actions or omissions contributed to the incident.

The legal issues that the court had to address were whether Melenewycz's actions or omissions caused the accident, and if so, whether those actions or omissions would exclude the plaintiff from claiming under the no-fault scheme. The court had to interpret the statutory definition of a "blameless motor accident" and examine whether riding a motorcycle constituted an act or omission that caused the accident. Additionally, the court needed to determine if excessive speed or the failure to observe the kangaroo were acts or omissions that contributed to the accident.

The court held that Melenewycz's actions of riding a motorcycle and failing to observe the kangaroo did not constitute blameworthy conduct that would exclude him from claiming under the no-fault scheme. The court found that the statutory definition of fault did not encompass these actions, and that the statutory modification to the concept of causation meant that the defendant did not need to prove that the plaintiff was at fault. The court emphasised that the legislature intended to provide compensation for accidents that occur without the fault of either party, even if the plaintiff's actions or omissions may have contributed to the accident. Consequently, the plaintiff was entitled to claim compensation under the statutory scheme.

The court ordered that the defendant, Whitfield, pay the plaintiff, Melenewycz, compensation for the injuries sustained in the motor accident. The court found that the accident was a blameless motor accident within the meaning of the Motor Accident Compensation Act, and that the plaintiff's actions or omissions did not exclude him from claiming under the no-fault scheme.

Orders