Mousawi v Insurance Australia Limited t/as NRMA Insurance

CERTIFICATE OF DETERMINATION OF MEMBER
CITATION:	Mousawi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 557
CLAIMANT:	Arifa Mousawi
INSURER:	Insurance Australia Limited trading as NRMA Insurance
MEMBER:	Philip Carr
DATE OF DECISION:	16 October 2025
CATCHWORDS:	MOTOR ACCIDENTS - Motor Accident Injuries Act 2017; sections 1.4 and 1.9 causal and temporal issues considered; Part 5 no-fault provisions considered; the claimant was injured on 16 May 2021; Axiak v Ingram, Davis v Swift, Hossain v Mirdha, Whitefield v Melenewycz, Adlawan v Recochem Inc, and Lifetime Care and Support Authority of NSW v Foster considered and applied; Held – accident found not to engage no-fault provisions.
DETERMINATIONS MADE:	CERTIFICATE 1. The accident is not a no-fault accident and the insurer is not liable for damages in respect of the claimant’s injuries. 2. The claimant is not entitled to recover damages puruant to ss 1.9, 5.2(1) and 5.4 of the Motor Acident Injuries Act 2017.

STATEMENT OF REASONS

INTRODUCTION

This claim for damages arises in the context of a motor vehicle accident where a bird hit the claimant’s windscreen of the motor vehicle she was driving, which caused her to swerve and collide with a parked boat, trailer and a Mitsubishi Ute (the Ute) (the parked vehicles) in Mona St, Auburn, New South Wales (the accident).The claimant’s motor vehicle flipped and rolled.
There is a dispute, amongst other issues, about the application of the no-fault (blameless) provisions of the Motor Accident Injuries Act 2017 (NSW) (the Act).

THE FACTS

On 26 May 2021 at 11.05am (approx) the claimant was driving a white Tarago motor vehicle westbound along Mona St, Auburn, New South Wales, at a speed of 45km (approx) when a bird hit the windscreen of the Tarago, the claimant then turned the steering wheel to the left and collided with the parked vehicles at the side of the road. The parked vehicles were parked parallel to the curb (A5 – p 55).
The parked vehicles were owned by Necmi Tekin (Mr Tekin). The Ute was unregistered at the time of the accident, accordingly, a claim against the Nominal Defendant arises. The Ute (bearing registration plate CS 35 GW) (R3), had been gifted to Mr Tekin some six months prior to the accident (A4) and was never transferred into his name. The boat and trailer were both registered in Mr Tekin’s name (bearing registration plate Z32487). The trailer was not “hitched” to the Ute’s tow ball but was attached vis a vis a metal chain between the front of the trailer and the Ute’s tow assembly unit (A4).
The insurer was appointed by the Nominal Defendant as it is agent (R3).
The Nominal Defendant admitted it is taken to have issued a policy of insurance under section 2.32 of the Act, which insured the registered trailer, which was attached to the Ute.

Evidentiary statements and investigations

Ms Meral Sanli’s statement, the wife of Mr Tekin, indicated as follows:
“…
My husband Necmi Tekin was given the vehicle CS 35 GW which was a silver Mitsubishi ute. He was given it about 6 months prior to the subject incident. We never transferred it into our name and registration expired and it remained parked outside our residence at 42 Mona Street Auburn.
The boat that was attached to the vehicle was registered in my husbands name as was the trailer. We have owned the boat for about three years and it was registered as was the trailer at the time of the incident.
It was parked outside our residence on the street in a dedicated parking lane. It was parallel to the kerb and was not protruding into the traffic lane. It was parked close to the gutter. The vehicle and boat had been parked in that position for a number of months. The registration of the vehicle expired about a fortnight before the accident. We had not driven the vehicle after the registration expired.” (A4 – p 52).
[emphasis added]
The claimant’s Application for Personal Injury Benefits dated 25 June 2021, which was in the form of declaration (A3), indicates the claimant:
“I was driving along Mona St, Auburn heading towards Granville. A bird hit my windscreen and I was startled. I turned the steering wheel to the left. A boat and trailer (registration Z 32487) which was attached to a utility (registration CS 35 GW) were parked beside the road The boat trailer was parked at an outward angle. My car clipped the right rear tyre of the boat trailer, causing my car to flip and roll three times, coming to rest on its roof.”
[my emphasis]
The claimant’s statement dated 4 April 2025 indicates:
“… I began to drive home from Auburn towards Granville at around 10:30 am. As I was driving, a bird hit the windscreen of the vehicle I was driving. This shocked me and caused me to lose control of the vehicle.
My car flipped and landed on its roof on the road. I was very frightened and needed the help of passers by to get out of my car.
I only learned that my car had collided with a parked trailer on the side of the road after the accident.” (A2 – p 19)
[emphasis added]
The NSW Police report dated 6 July 2021 (the police report) (R2) indicates that:
“At approximately 11:05am on the 26th of May 2021 VEH1 which is a white Toyota Tarago was driving westbound along Mona St, Auburn at a speed of approximately 50km/hr. Due to a bird hitting the windscreen VEH1 has collided with a stationary boat, trailer and a stationary Mitsubishi causing the vehicle to roll.”
The police report identified the claimant was responsible for the accident.
Constable Jae Choung, from the Auburn Area command, attended the accident and was later interviewed by the insurer’s investigator on 1 November 2021 (A4 – p 40). The transcript of the interview reveals his summary of the accident after he spoke to the claimant on 3 June 2021 (the relevant questions asked are identified in bold below):
“…
Q60 Yeah. I’ll get you to tell me the summary.
A 60 Summary is ‘Around 9:30am on the 3rd of June 2021, police placed a form of demand on driver one. Driver one stated that she was travelling along Mona Street, Auburn at a speed of approximately 45 kilometres an hour. A bird struck her windscreen, causing her to be distracted and lose control of the motor vehicle. Driver one has then stated that she has collided with vehicle two and vehicle three, resulting in her vehicle rolling. Driver one was discharged from hospital without incident and only has superficial injuries.’ That’s it.
[my emphasis]
Q61 Do you recall the damage to her vehicle?
A61 It was significant, because it rolled a bit. The whole vehicle was a write off, pretty much.
Q62 Did the vehicle just flip onto its roof, or had it rolled over in a 360?
A 62 I believe it flipped once and then it skidded on its roof until it became stationary.
Q63 Was blood taken for the purposes of alcohol testing for Arifa?
A 63 I believe so. And, I believe it came back negative.
Q64 Okay. Were any further police enquiries conducted?
A 64 No.
Q65 What do police believe to be the cause of the accident?
A65 As she stated, a bird has struck her windscreen. Which I think is more than reasonable. And, distracted her enough, causing her to lose control.
Q66 And, do you know which direction she was travelling at the time of the
A66 impact?
I think it was west.
Q67 Was any police action taken over the matter?
A67 No.
…”

Medical reports – facts identified by the claimant

On 24 October 2022 the claimant provided to Medical Assessor Yu Tang Shen a history of the accident. Medical Assessor Shen reported that:
“She said she had dropped her children to school and she was returning from school, when a bird crashed into her windscreen driver side and she tried to turn her steering wheel and brake, but she said it instead accelerated and it collided with a parked trailer and her car rolled three times.” (A18 – p 158)
[my emphasis]
On 24 January 2023 the claimant provided to her IME, Dr Bodel, her version of the accident, he reported the following:
“She was at the time the driver of a Toyota Torago [sic] and the accident occurred in the morning. It was a fine day and the road was dry.
She was driving along Mona Street, Auburn, heading toward Granville. She states that she lost control of the vehicle when a bird hit the windscreen. She was startled by the impact and she veered to the right-hand side of the road where she inadvertently impacted the right rear tyre on a boat trailer attached to a utility which was parked at the side of the road.” (A19 – p 160)
[my emphasis]
On 5 April 2023 the claimant provided to her IME via Skype, Dr Peter Anderson, her version of the accident, he reported the following:
“She told me she had dropped her children to school and was driving a vehicle returning from Auburn towards Granville. A bird hit the windscreen. She turned the wheel. She hit a trailer parked by the road and her vehicle rolled. She finished upside down. She said that everything was ‘dark’. She said she did not recall everything…” (A20 – p 169)
[my emphasis]

Liability issues

On 11 July 2023 the insurer issued a liability decision:
(a) denying the owner and driver of the Nominal Defendant trailer and Ute breached their duty of care, and
(b) asserting the accident was solely caused by the claimant’s negligence in swerving or steering her motor vehicle into the parked vehicles. (R3 – p 15)

ISSUES FOR DETERMINATION

The key issues for determination are whether the accident engage the following provisions of the Act:
(a) section 1.4 (the meaning of motor accident);
(b) section 1.9 (the gateway provision), and
(c) section 5 (the no-fault provisions).

THE STATUTORY FRAMEWORK

The relevant provisions of the Act are identified below.

“Fault”

Section 1.4 defines “fault” as:
“means negligence or any other tort.”[1]

“Motor vehicle accident”

Section 1.4 (1) defines a “motor vehicle accident” as meaning:
“an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during—
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle's running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to
avoid a collision with the vehicle, or the vehicle's running out of control.”
[my emphasis]

The gateway provision[2]

Section 1.9(1), identifies the general restrictions applying to the Act as:
“(1) This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during -
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle's running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control.”
[my emphasis]

The no-fault provisions (blameless) of the Act[3]

Section 5.1 of the Act provides:
“In this part – no fault motor accident means a motor accident in the State not caused by the fault of the owner or driver of any motor vehicle in the accident in the use or operation of the vehicle and not caused by the fault of any other person.”[4]
[my emphasis]
Section 5.2 of the Act provides:
“5.2 Liability in case of no-fault motor accident
(1) The death of orinjury to a person that results from a no-fault motor accident involving a motor vehicle that has motor accident insurance cover for the accident (within the meaning of section 1.10) is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.
(2) If the no-fault motor accident involved more than one motor vehicle that has motor accident insurance cover for the accident (within the meaning of section 1.10), the death or injury is deemed to have been caused by the fault of the owner or driver of each of those motor vehicles in the use or operation of the vehicle.”
[my emphasis]
Section 5.3 provides that an accident will be presumed to be a motor accident on an averment by the plaintiff that the motor accident was a no-fault accident unless there is evidence to the contrary. In other words, once the claimant avers that a motor accident is “blameless”, the onus shifts to the insurer to prove the accident was not “blameless”. [5]
Section 5.4 of the Act provides:
“5.4 No recovery of damages for driver who caused accident
(1) There is no entitlement to recover damages because of the operation of this Part in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver.
(2) The death of or injury to a person is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if -
(a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or
(b) the act or omission was involuntary, or
(c) the act or omission was not the sole or primary cause of the death or injury.”[6]
[my emphasis]

RELEVANT AUTHORITIES

In Axiak v Ingram [2012] NSWCA 311, a s 7K claim succeeded (the no-fault provision for children pursuant to the Motor Accidents Compensation Act 1999 (MAC Act))[7], even though the pedestrian child was at fault when she ran across a road into the path of the defendant’s car, suffering a severe injury. Tobias AJA identified a blameless accident as one not involving negligence on the part of the driver.[8] In construing the definition of “blameless accident” pursuant to s 7A of the MAC Act, Tobias JA placed importance on the definition of “fault”, as meaning “negligence or any other tort.”[9]
Tobias JA further observed when considering the language of s 7A:
“The evident purpose of the addition of the words ‘and not caused by the fault of any other person’ is to render Division 1 inapplicable to a situation where, although the motor accident is not caused by the ‘fault’ (as defined) of the driver of the relevant motor vehicle, the accident is caused by the ‘fault’ of a third party…”[10]
Tobias AJA went on to emphasise that the expression: “any other person cannot be divorced from its context”[11] and stated:
“Once it is accepted that the expression ‘fault of any other person’ refers only to the tortious conduct of that person, it must follow that the ‘person’ referred to cannot include the ‘injured’ person whose ‘fault’ in the form of non-tortious contributory negligence is excluded from the definition of ‘blameless accident’ in s7A. That conclusion is reinforced once the words of the definition of ‘fault’ are inserted into the definition of ‘blameless motor accident’…”[12]
In Davis v Swift (2014) 69 MVR 375; [2014] NSWCA 458, Meagher JA explained Axiak as:
“the closing words of the definition of blameless accident – ‘and not caused by the fault of any other person’ – refer only to tortious conduct of a person other than the injured person. That is principally because ‘fault’ is defined in s 3 as meaning ‘negligence or any other tort’. It follows that a ‘blameless’ accident can include one in which there has been contributory negligence of an injured person.”[13]
[my emphasis]
At [34] – [35] the Court stated:
“The owner and driver may be without fault in circumstances where the driver loses control because of some catastrophic failure of a component of the vehicle which involves no negligence in its care and maintenance. They may also be without fault because an event or incident on or in the vicinity of the roadway (such as an animal running on to the roadway) results in the driver losing control, or having to take evasive action, and causing an incident or accident involving injury.
In these cases, notwithstanding that the driver may have lost control of the vehicle or otherwise driven in a way that caused an accident and injury, there was no fault involved in his or her doing so …”
In Serrao v Cornelius (No 2) [2016] NSWCA 231 at [51], the Court of Appeal was invited to reconsider the construction of s 7A as identified in Axiak. On the appeal, an argument was advanced by the respondent in relation to section 7A, that in Axiak the Court of Appeal was wrong in its construction of s 7A. Sackville AJA observed: “… the reasoning of the majority in Davis v Swift does not cast doubt on the construction of the s 7A of the MAC Act adopted in Axiak v Inghram”,[14] and that no error had been identified to revisit the decision.[15]
In Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89, a plaintiff established there was a blameless accident when a tree fell on the roof cabin of his truck causing injury. This case was relied upon by the claimant at the hearing. It provides little guidance to the matters under consideration in this claim.
In Hossain v Mirdha [2015] NSWDC 108, the driver of a taxi (the plaintiff) sued the defendant who was the owner of the taxi, this was a single motor vehicle accident. The plaintiff was driving the taxi when a dog came onto the roadway in front of the taxi and the plaintiff applied his brakes to avoid the dog and collided with a stationary truck. Elkhaim SC DCJ held that the plaintiff in braking i.e. taking the avoidance measure, was not a blameless accident within the blameless accident provisions.
In Whitefield v Melenewycz [2016] NSWCA 235, the New South Wales Court of Appeal (Meagher, Simpson JJA and Sackville AJA) considered the former section of 7E of the MAC Act, which is now section 5.4 of the Act in the context of a single motor vehicle accident (the plaintiff’s motor bike).
The facts involved the rider of a motor bike who was injured by a kangaroo. The matter proceeded on the basis that the rider was not personally negligent. There was never any contention that the owner of the motorcycle (the first appellant)[16] had caused or contributed to the accident. Damages were sought on the basis that the accident was a “blameless accident”. The trial Judge found the accident was blameless, the deeming provisions were engaged and the appellants were liable in damages.
The central issue on the appeal was whether, by virtue of the combined operation of ss 7A and 7B, the respondent could claim damages from the first appellant owner of the motorcycle on the basis his injuries were deemed to have been caused by the owner’s fault in the operation of the vehicle.
The Court of Appeal held that the blameless accident provisions were not intended to permit a driver in a single vehicle accident to sue themselves. The Court emphasized that for the provisions to apply the owner must not be involved in the use or operation of the motor vehicle at the time of the accident, which is aligned to the common law principle that a driver cannot sue themselves in negligence.[17]
I make further observations about this decision later.
In AAI Limited v Singh [2019] NSWSC 1300, the plaintiff was injured when a truck he was driving overturned shortly after he left the docks. The truck was carrying a shipping container that had been loaded by a third party. The vehicle rolled because of the container not being properly secured and where there was no fault on the part of the plaintiff or the owner of the truck. Justice Fagan found that Part 5 of the Act did not apply to an accident where a party was at fault.
In Adlawan v Recochem Inc [2021] NSWSC 223, Cavanagh J considered the issue of whether an injury to the plaintiff was caused by the fault of the owner in the use or operation of a forklift vehicle in a workplace and the construction identified in the context of the gateway provision of s 3A(1) of the MAC Act (which is in the same terms as s 1.9 of the Act).[18] After finding that there was a direct temporal and causal connection between the plaintiff’s injury and the vehicle running out of control, namely s 3A(1), he turned to the further consideration as to whether there was a causal connection between the injury and the fault of the defendant, which he identified being “the fault … in the use of the operation of the vehicle.”[19] His Honour identified the proper approach to that task was as identified in Whitfield v Melenewycz, by Meagher JA at [23].[20]

In the decision of Lifetime Care & Support Authority of NSW v Foster [2024] NSWPIC 363 (Foster), the Personal Injury Commission considered the application of s 1.4 of the Act, when assessing whether an injured cyclist was eligible to participate in the Lifetime Care & Support Scheme (LTCS). Section 1.9 of the Act was not considered as it was not relevant to the question to be determined under the LTCS. I make further observations about this decision later.

Second reading speech to the 2006 Amending Act

The Minister for Transport, in the second reading speech to the 2006 Amending Act,[21] which introduced the blameless provisions into the MAC Act, stated:
“The Motor Accidents Compensation Amendment Bill introduces enhancements to the existing CTP motor accidents injury scheme …. Secondly, the bill extends the scope of the CTP scheme to provide compensation entitlements for injury or death resulting from a blameless or inevitable accident, which is a motor vehicle accident where no-one is considered to have been at fault – for example, when a person is injured because a driver experiences an unforeseen illness or medical condition, which results in a loss of control over the vehicle. Currently, under the common law, if a court finds that no-one was at fault in an accident the CTP compensation entitlements are not available to those injured in the accident.
… The blanket application of legal rules and principles can on occasions have unfortunate and even undesirable consequences. The principal of fault is a case in point. For example, when a person injured in a motor accident is unable to access CTP assistance because no-one is found to have been at fault in causing their injury, or when children are penalised for behaving as children do. The enhancements to the motor accidents scheme proposed by the bill will provide greater support and security to injured people and their families
Part 1.2 of the bill provides a right of recovery to people injured in motor vehicle accidents occurring in New South Wales when no-one is at fault. That is an ‘inevitable’ or ‘blameless’ motor accident. For the purpose of making this new claim for death or injury, the motor accident is deemed to have been caused by the fault of the owner or driver of the motor vehicle. The injury must also be caused by a motor vehicle accident of a kind recognised by the Act. A person who is injured in a blameless accident will be entitled to CTP scheme benefits. The one exception is that the driver of the motor vehicle causing the accident will not be entitled to make a claim under these provisions. However, if that driver is catastrophically injured an application for entry to the Lifetime Care and Support Scheme may be made.”
[emphasis added]

THE SUBMISSIONS

The claimant’s submissions

The claimant’s submissions can be summarised briefly:
(a) As to the underlying factual matters, they indicate:
“The claimant’s evidence is that as she was driving in a westerly direction along Mona Street, a bird struck the windscreen of her vehicle. She was startled. Her vehicle veered slightly left towards the edge line on the left of the road. A large boat and trailer parked on the left hand side of the road occupying much of the parking lane came into collision with her vehicle causing her vehicle to roll and land on its roof.
Photographs of the scene of the accident show that this is indeed likely what occurred. Even after the collision, and the un-insured vehicle being pushed to the left of the road, it can be seen from the photographs that they largely occupied the entirety of the parking lane. It is likely that some portion of those vehicles protruded into the driving lane of the claimant at least to some small extent.” (A1 – p 4)
[emphasis added]
(b) Adopting the factual overview identified above, the claimant submits that the no-fault provisions are engaged as the boat and trailer were parked at an angle to “slightly” protrude into the westbound lane upon which the claimant’s motor vehicle was travelling “and as the claimant’s vehicle veered slightly left ‘it clipped the offside the offside tyres of’ the trailer causing the vehicle to go out of control and roll on several occasions” (A1 – p 3) and that there was no fault in the use or operation of the vehicle she was driving; and
(c) As to the application of the no-fault provisions of the Act:
" … the claimant's argument is as follows:
(i)The subject accident is a blameless accident.[22]
(ii)The Nominal Defendant is liable in the case of a no-fault motor vehicle accident as the relevant motor accident insurer of the Mitsubishi Ute and its attached trailer. There is no issue that the Nominal Defendant is taken to have issued a policy of insurance under s.232 of the Act which insures the registered trailer that was attached to the unregistered motor vehicle bearing registration number CS 35 GW3.
(iii)The fault (if any) deemed to the claimant is not relevant to the question of whether this was a no-fault motor accident in accordance with the principles in Melenewycz.[23]
(iv)The provisions of s.5.5(2) [sic] have the effect that the Nominal Defendant is deemed at fault for the accident.
(v)The Nominal Defendant admits that it owed a duty to the claimant and having regard to the deeming provisions of s.5.2, must therefore be deemed to have breached that duty.”
[emphasis added]

The insurer’s submissions

The insurer submitted:
“The Claimant alleges the accident was a no fault accident (Part 5 of the Motor Accident Injuries Act 2017 (NSW) (‘Act’) on the basis her reaction to the bird hitting her windscreen, being a sudden and unexpected event causing her to startle and react by swerving, was a reasonable action in the agony of the moment, and there was no fault in the use or operation of the Nominal Defendant vehicle.
It is respectfully submitted that the no fault provisions do not assist the Claimant in this case and that her ‘no-fault liability argument’ ought be rejected.
To begin with, it is somewhat novel to argue that coincidental contact with a parked and stationary vehicle can somehow trigger that vehicle’s corresponding CTP insurance (and the no fault provisions in the Act). A more usual scenario would involve the Claimant bringing a claim against the CTP insurer of her own vehicle and arguing that the accident was a no-fault accident (albeit such a claim would obviously face its own difficulties).
Be that as it may, and returning to the Claimant’s subject no-fault liability argument, there are two main problems with it.
The first arises out of the fact that the contact between parked vehicle and that of the Claimant was coincidental. It was the occasion of the incident but it played no causal role and there was no relevant causal act or omission by the owner or driver in simply parking that vehicle where it was parked many days before the incident. The parked vehicle was not even a cause of the incident let alone the proximate cause.
Once that is understood, it is difficult to see how Part 5 of the Act can have any application. In fact, it is difficult to see how the coincidental involvement of a parked and stationary vehicle satisfies sections 1.4, 1.9 1.10 [sic] (and therefore 5.1) …
Insofar as the Claimant’s vehicle is concerned, it has necessarily been involved in a collision within the meaning of the Act, but the same cannot be said for the parked vehicle.
The fact that there was contact with the parked vehicle is coincidental. It does not satisfy the causal and temporal requirements of section 1.4 and section 1.9 of the Act (or section 5.1 for that matter). While the CTP coverage that is applicable to the Claimant’s vehicle may well be enlivened at least insofar as the causal and temporal requirements of section 1.4 and 1.9 of the Act are concerned, the same cannot be said for the parked vehicle.
Even if the Claimant were to overcome the above hurdles (which she cannot), the second problem with the Claimant’s ‘no fault liability argument’ is that section 5.4 of the Act would disentitle her to damages …
… the Commission would find that she veered her vehicle slightly left towards the edge line on the left of the road such that she came into contact with the parked vehicle. While her actions in veering towards the left were not the sole or primary cause of injury, it was plainly a cause (just as it was in Hossain). It matters not that the Claimant may have veered to the left by reason of a reaction to the bird.
Section 5.4 necessarily operates to disentitle the Claimant to damages as against the CTP insurer of the parked vehicle (in this case the Nominal Defendant) and nothing in Melenewycz (which was a single vehicle accident) would cause the Commission to reach a different conclusion.”

Further submissions filed after the hearing
The insurer’s further submissions

Further submissions were filed by the parties, following the assessment hearing on

22 August 2025, touching upon the authority cited by the claimant at the hearing of Foster.
The insurer’s further submissions dated 29 August 2025 (citations omitted) indicate:
“ …
3. For the reasons developed below, the case of Foster is of little or no relevance to the issues before the Commission in this matter. It is neither determinative nor persuasive of those issues.
4. Firstly, the facts of Foster are easily distinguished from those of the subject case. In Foster, the claimant cyclist rode into the rear of a parked vehicle (which had been parked for about 3 minutes with its hazard lights on while the driver had been doing some work at a nearby property and, so the Commission inferred, was due to shortly return to the parked vehicle).
5. In this case, it is unknown which of Meril Sanli or Necmi Tekin parked the vehicle but it is known that the vehicle and boat had been parked in that position for a number of months and that the vehicle had not been driven after the registration expired about a fortnight before. Further, this case involves contact between a parked vehicle and the vehicle being driven by the Claimant (as opposed to contact between a parked vehicle and a bicycle).
6. Secondly, Foster was concerned with an injured cyclist’s eligibility to participate in the Lifetime Care & Support Scheme (LTCS). That question was governed by the terms of the Motor Accidents (LTCS) Act 2006, especially sections 3, 4, 5 and 7 of that Act.
7. Once that is understood, the relevance of (and the Claimant’s reliance on) Foster necessarily falls away. That is because section 1.9(1) of the Motor Accidents Injury Act 2017 (MAIA) was found to have no work to do and hence not apply in Foster.
8. In this case, it is uncontroversial that section 1.9(1) of the MAIA is not only relevant but it must be satisfied by the Claimant for the MAIA to apply. To put it another way, section 1.9(1) of the MAIA restricts the application of the Act and the Claimant must satisfy one or more of the criteria in sections 1.9(a) to (d) for the Act to apply.
9. Section 1.9(1) has thus often been referred to as a ‘gateway’ provision. Relevantly, section 1.9(1) differs slightly in its terms from the definition of ‘motor accident’ in section 1.4.
10. Whereas ‘motor accident’ is defined in section 1.4 as ‘an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused during…’, section 1.9(1) states that the Act only applies ‘in respect of the death of or injury to a person that results from the use of operation of a motor vehicle only if the death or injury is a result of and is caused during…’
11. Based on the reasoning in Foster at [120] to [125], the word ‘involving’ broadens the scope of the definition of ‘motor accident’ in section 1.4. However, the Commission did not address the more retrictive [sic] terms of section 1.9(1) in Foster as that section did not apply. With that in mind, it is apparent that section 1.9(1) is more restrictive in the sense that the injury in question must result from the use or operation of a motor vehicle – it is not enough for accident to simply involve the use or operation of a motor vehicle. In other words, in order to satisfy section 1.9(1), the Claimant must establish a causative link between the injury and the use or operation of the motor vehicle.
12. For the reasons previously developed in the Insurer’s prior written submissions that causative link does not exist on the facts of this case. Any link between the injury sustained by the Claimant and the parked vehicle is best characterised as co-incidental. While the parked car may have been part of the occasion for injury (and the accident for that matter), it was not the cause of injury or accident.
13. As Cavanagh SCJ explained in Adlawan v Recochem Inc [2021] NSWSC 223 at [162] and [163] there is a causal requirement in the first part of section 3A(1)5 of the MACA as well as both a causal and temporal requirement in the second part of section 3A(1).[24]
14. Thirdly, even if all the Claimant need to do for the MAIA to apply was to establish that the accident simply involved some use or operation of the parked vehicle (which is of course not only denied but it is wrong), the Claimant cannot even establish that.
15. As was appropriately acknowledged by the Commision [sic] in Foster at [111] after considering the various decisions to which it had been referred by the parties:
‘…They suggest there is a continuum and that at some stage a vehicle being parked or parked is being used and at some later stage the vehicle has been parked long enough for it to not be in use.’
16. Thus, it is not surprising that the Commission reached the decision it did in Foster given that the hazard lights were on and the vehicle had been left temporarily parked for 3 or so minutes at the time of the accident.
17. At the risk of stating the obvious, those facts are far removed from the current case. In this case, the vehicle had been parked for weeks prior to the accident such that the facts are at the opposite end of the continuum (if not well past the end) referred to by the Commission in Foster.”

The claimant’s further submissions

The claimant’s further submissions indicated:
“The insurer argues that section 1.9(1) of the Act is more restrictive in terms of it application to the facts at hand. The insurer, it seems contends that even if the claimant satisfies section 1.4 (which almost seems to be conceded), it argues that section 1.9 provides that the Act only applies ‘in respect of the death of or injury to a person that results from the use of operation of a motor vehicle only if the death or injury is a result of and is caused during…’ (see [10] of the insurer’s further submissions).
9. The claimant contends that the use of the vehicle, which includes the parking of the vehicle, in accordance with the definition in section 1.4, does not require that there be temporal coincidence between the act of parking and the collision involving the parked vehicle.
10. The terms of section 1.9 of the Act are important and are recited below:
S 1.9 General Restrictions on Application of Act
(1) This Act (including any third-party policy under this Act) applies in respect of the death of or injury to a person that results from the use or operation of a motor vehicle only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during--
(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle's running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle's running out of control.
11. The parking does not have to be, as the insurer seems to suggest, coincidental with the injury. In order to satisfy section 1.9, the claimant need only show that the injury occurs as a result of and is caused “during” once of the four paragraphs enumeration [sic]. There is no doubt that the claimant’s injury occurs as a result of a “collision”.
12. In its original submissions (at [3.10]) the insurer argues that the claimant is required to establish a causative use (by reference to the temporal criterion cited) to enliven the CTP Insurance of the parked vehicle.
13. There seemed to be some convoluted argument that because only the vehicle the claimant was driving was moving, it was the only vehicle involved in the collision for the purposes of section 1.4 and 1.9 because the other vehicle was parked – suggesting that the insurance coverage of a parked vehicle ceases when it is parked.
14. Clearly that is wrong.
15. At [116] of Foster the Panel found:
The MAI Act definition of “motor accident” is directed at defining the event that led to the injury and in the Panel’s view has two parts:
(a) there must be “an incident or accident involving the use or operation of a motor vehicle that causes” the injury to a person, and
(b) the injury must be a result of and is caused during one of the four listed circumstances (driving, collision, running out of control or a dangerous situation).
16. To the extent that s 1.9 of the Act adds any additional restriction not contemplated by s 1.4 of the Act, it is satisfied herein because there is no doubt that both the causal and temporal elements are satisfied.
Length of time the insured vehicle was parked
17. The insurer argues that the difference between Foster and the instant case, is that the insured vehicle was, on the evidence, parked for a lengthy period of time and that the ‘continuum’ of the parking must be broken because the insured ‘vehicle has been parked for long enough for it to not be in use’.
18. The difficulty with the argument is that the insurer has not adduced any clear evidence of how long the insured vehicle had been parked in that position.
Given that, other than the evidence that the vehicle had gone out of registration some two weeks or so beforehand, there was no clear evidence of when the vehicle was last used. It is well to remember that the vehicle was parked on a roadway and if had been there for any significant period of time without being moved, it is likely that this would have come to the attention of the local council, especially in circumstances where it was out of registration.
19. Moreover, the facts do not permit a finding that the vehicle had been parked for a period for long enough for it not to be in use.
20. Accordingly, the claimant maintains that it has satisfied both s 1.4 and 1.9 of the Act.”[25]

FINDINGS OF FACT

There are two factual issues that need to be determined in this claim:
(a) how long the parked vehicles had been parked outside 42 Mona Street, Auburn before the accident, and
(b) the way the parked vehicles were parked immediately before the accident.
These two factual issues bring into consideration the evidence of the claimant, Ms Sanil, the photographic evidence and the police report attached to the insurer’s investigators report (A4 – p 29ff).

The length of time the parked vehicles had been parked

The insurer contends that the parked vehicles had been parked there many days before the accident, it relies on Ms Sanli’s evidence that the parked vehicles were:
“ … parked outside our residence on the street in a dedicated parking lane. It was parallel to the kerb and was not protruding into the traffic lane. It was parked close to the gutter. The vehicle and boat had been parked in that position for a number of months. The registration of the vehicle expired about a fortnight before the accident. We had not driven the vehicle after the registration expired.” (A4 - p 52)
[emphasis added]
The claimant contends that the parked vehicles were in use because they had been parked, which is the relevant act. Further, that the insurer has not adduced:
“any clear evidence of how long the insured vehicle had been parked in that position. Given that, other than the evidence that the vehicle had gone out of registration some two weeks or so beforehand, there was no clear evidence of when the vehicle was last used. It is well to remember that the vehicle was parked on a roadway and if he been there for any significant period of time without being moved, it is likely that this would come to the attention of the local council especially in circumstances where it was out of registration.”

The claimant’s submissions are challenging given they do not accurately reflect the evidence the insurer has adduced on the issue, identified in Ms Sanil’s statement and the pre accident Google photograph (R1 – p 2) and where the claimant has not conducted any independent enquiries of her own on the issue and relies on the insurer’s investigator’s report. Further, the speculative submission on what the local council does, is just that, it speculates on conduct that is unsupported by any evidence or enquiry of the local council as to whether this street had been attended by its council officers within the two weeks before the accident and its practices or likely conduct in respect of unregistered vehicles. These enquiries would have been a relatively simple matters to have undertaken by the claimant. This submission is rejected.
Turning to what Ms Sanil’s unchallenged evidence indicates:
(a)    that the parked vehicles were parked outside “our residence on the street in a dedicated parking lane”;
(b)    the parked vehicles “had been parked in that position for a number of months”;
(c)    the registration of the vehicle (the Ute) had “expired about a fortnight before the accident”, and
(d)    the Ute had not been driven since the expiration of the registration.
There is no evidence to the contradict Ms Sanil’s evidence about when the parked vehicles were last used.
Ms Sanil’s indicates two temporal aspects to the factual issue:
(a) the parked vehicles had been parked outside in the dedicated parking lane for a number of months, and
(b) the Ute had not been driven since the expiration of the vehicle’s registration about a fortnight before the accident.
Ms Sanil doesn’t address the issue of whether the boat and trailer had been used in the period of the lapsing of the Ute’s registration, however she does indicate that they had been parked in that same position for a number of months. I accept that the evidence, at its lowest, conveys that the parked vehicles had not been moved for at least a fortnight before the accident, as they were attached to the unregistered Ute, which had not been driven for at least a fortnight. At its highest, the evidence may indicate the parked vehicles had not been moved from their parked position for a number of months, however I don’t make this finding. What is clear is that the parked vehicles had not be driven for several weeks. I am satisfied that the parked vehicles had been parked in the same position for at least a fortnight and there is no evidence to the contrary.
I find that the parked vehicles had been parked outside 42 Mona Street, Auburn for at least two weeks prior to the accident, possibly longer but not shorter, as the Ute had not been driven since the expiration of its registration (a fortnight before the accident).
Further, I find that the parked vehicles had not been in use at the time of the accident, as they had been parked for long enough to be properly characterised as not to be in use.

The way the parked vehicles were parked on the day of the accident

When making the factual findings as to the manner of the parked vehicles immediately before the accident, I prefer the unchallenged evidence of Ms Sanil to that of the claimant, as she had a recollection of the manner of the parked vehicles, corroborated by the Google photo taken some six months before the accident.
I also prefer the evidence of Ms Sanil about the manner of the parked vehicles immediately before the accident, as the claimant indicated she either “did not recall everything” (to

Dr Anderson) and only learned about being involved in a collision with the parked trailer after the accident. (A2 – p 19)
I note the claimant’s submissions do not refer to the parked vehicles as protruding into the westerly laneway but rather refer to "largely" occupying "the entirety of the parking lane. It is likely that some portion of those vehicles protruded into the driving lane of the claimant at least to some small extent."
[emphasis added]
The submission in bold requires careful consideration, as it has the risk of misleading the Tribunal where it is not supported by any evidence and at its highest is purely speculative.
Further, the claimant’s written submissions are contradictory and internally inconsistent. At first, they indicate the parked vehicles largely occupied the entirety of the parking lane, then somehow, they state it is likely that the parked vehicles were protruding into the claimant’s westerly lane at least to some small extent. I fail to understand the reasoning that permits the leap from the parked vehicles “largely” occupying “the entirety of the parking lane” to that they were somehow protruding “at least to some small extent”, when that is not the evidence and where the submission initially states otherwise. This appears to be totally capricious and without any factual foundation, it is purely speculative and misleading.
There was no expert evidence obtained by the claimant to support this submission. This was a serious omission.
There is no lay evidence that supports the claimant’s submission:
(a)    the Google photograph taken some six months before the accident does not in any way show/reveal/demonstrate the parked vehicles were parked at an outward angle, irregularly or outside the parking lane – they reveal the parked vehicles wholly inside the parking lane as identified by Ms Sanli;[26]
(b)    the photographs taken after the accident do not show the parked vehicles were in the western laneway as asserted, they don’t come close to demonstrating that the vehicles were protruding to any extent (A 4 – attachment 9, pp 77 – 85). Further the photos do not show any skid marks from the rear right hand tyres of the trailer being pushed into the gutter, however they do show the parked vehicles were not protruding outside the dedicated parking lane;
(c)    the claimant’s statement makes no mention of the parked vehicles being parked at an angle, nor that they were protruding into the westerly laneway she was travelling in;
(d)    I note the parked vehicles being parked at an outward angle only appears in the claimant’s application for personal injury benefits form, where she asserts the boat railer was parked at an outward angle, however she made no observation as to whether it was parked within the parking lane or protruding into her westerly laneway. Taking the claimant’s evidence at its highest the parked vehicles may have been parked at an angle within the parking lane and no more;
(e)    the claimant had no recollection of the mechanics of the accident other than the bird hitting her windscreen, as she states she only learned about her collision with the parked vehicles after the accident, and
(f)
Ms Sanli’s evidence is that the parked vehicles were:

“ … parked outside our residence on the street in a dedicated parking lane. It was parallel to the kerb and was not protruding into the traffic lane. It was parked close to the gutter. The vehicle and boat had been parked in that position for a number of months.”
Accordingly, I find that the parked vehicles were parked:
(a)    legally;[27]
(b)    within the designated parking lane;
(c)    parallel to the kerb;
(d)    close to the gutter, and
(e)    not at an angle protruding into the westerly laneway in which the claimant was travelling immediately before the accident.

FINDINGS ON LIABILITY

Section 1.4 of the Act

The first issue to resolve is whether there was a “motor accident” as defined in s 1.4 of the Act. A motor accident: “is one involving the use or operation of a vehicle that causes death or injury.”[28]
There is no doubt that there was an accident involving the use or operation of a motor vehicle that caused injury to the claimant. Further, the injury was a result of and caused during the vehicle’s running out of control as identified in s1.4(1)(c). The definition of “Motor Accident” does not include a reference to fault in the use or operation of the vehicle and it does not matter whether the motor vehicle was registered or unregistered.
However, after satisfying the definition in s 1.4, it is necessary that the claim falls within s 1.9 of the Act, which is a threshold provision.

The gateway provision – 1.9 of the Act – were the parked vehicles “in use” or “operation” at the time of the accident

As the insurer submitted “it is uncontroversial that section 1.9(1) of the MAIA is not only relevant, but it must be satisfied by the Claimant for the MAIA to apply.”
In Whitfield v Melenewycz, Meagher JA at [23] and [24] summarised the proper approach to the task of considering the gateway provision as follows:
“... 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. 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).
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) ...”[29]
In Adlawan, Cavanagh J considered the issue of whether an injury to the plaintiff was caused by the fault of the owner in the use or operation of a vehicle in the context of the gateway provision of s 3A(1) of the MAC Act (which is in the same terms as s 1.9 of the Act),[30] and indicated the proper approach to that task was as identified by Meagher JA at [23] in Melenewycz.[31]
The claimant relies upon Foster. There the Tribunal found that the parking of the motor vehicle did play a causal role where a motor vehicle that was parked lawfully, with its hazard lights activated and having been in that parked position for a few minutes, was found to be in use at the time of the accident for the purpose of s 1.4 of the Act, although parked. The Tribunal acknowledged that a parked vehicle if it had been parked long enough would be found not to be in “use”. This finding engaged the application of the Motor Accidents (Lifetime Care and Support) Act 2006. However, the Tribunal did not consider the application of the considerations identified in Whitefield v Melenewycz. I do not consider Foster’s case is of assistance and can be distinguished on the facts, as the “parked vehicle” (which was found to be a parked vehicle in use) was part of a brief “continuum” rather than the situation in this instance where the parked vehicles had not been in use for several weeks and had been “parked long enough for them to be considered not to be in use.”[32]
The claimant must therefore satisfy both the causal requirements i.e. the relevant fault in the use or operation of the vehicle and that the injury was caused by that “fault” and also one or more of the criteria in s 1.9 (a) to (d), which also requires a causal and temporal connection between the injury and the use or operation of the parked vehicles for the Act to apply.
The causal requirement between the parked vehicles and the claimant’s injury from their use is contained in the first part of s 1.9. I do not find a temporal or causal connection between the parked vehicles and the injury as they were not in use as they had been parked in that position for several weeks. Further, I am satisfied that there was nothing in the manner of their parking that indicates a temporal and causal connection between the injury and the vehicle claimant’s vehicle running out of control.
I accept the insurer’s submissions that the involvement of the parked vehicles does not satisfy s 1.9 of the Act as there is no causal or temporal connection between the injury and the use or operation of the parked vehicles, despite the accident being one involving a “collision”. Further, there was no negligence (fault) by the owner of the parked vehicles in the manner of the parking of the vehicles (see paragraph 66 above).

Blameless provisions – s 5.2(1) of the Act

The claimant submitted that the fault (if any) deemed to the claimant is not relevant to the question of whether this was a no-fault motor accident in accordance with the principles in Melenewycz. I accept this submission as it is also consistent with Axiak at [66] and Davis per Meagher JA at [32]. However, the claimant seeks to rely on the deeming provisions in s 5.2 of the Act, where there is a dispute about the “use or operation of the parked vehicles” by the owner, at the time of the accident in a causal or temporal sense i.e. was there a causally relevant use or operation on the part of the owner of the parked vehicles that engages s5.2(1) of the Act.
Meagher JA in Melenewycz considered the issue of “blameless” stating:
“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.”[33]
Meagher JA, continued and identified the analysis to be adopted for s 7(B)1 of the MACA:[34]
“Section 7B(1) deems death or injury caused by 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.”[35]
[emphasis added]
Sackville AJA identified the analysis to be adopted as follows:
“Section 7B(1) of the MAC Act, in my view operates to deem a blameless motor accident to have been caused by whichever of the owner or driver of the vehicle was involved ‘in the use or operation of the vehicle’ at the relevant time…s7B(1) does not deem an owner of a vehicle to be at fault in the use or operation of the vehicle if there is no relevant act or omission of the owner that can be described as “in the use or operation of the vehicle.” Section 7B(1) is intended to deem, contrary to the fact, an owner or driver of a vehicle to be at fault for the purposes of a claim for damages arising out of injuries sustained in a blameless motor accident. It is not intended to deem an owner to have been involved in the use or operation of the vehicle, when in fact the owner had no such involvement at the relevant time.”[36]
[emphasis added]
The challenge for the claimant is that there is no causally relevant use or operation which the deemed effect of s 5.2(1) could operate. This receives support from the emphasised reference in the second reading speech referred to paragraph 42 above, which as Meagher JA stated in Melenewycz:
“… must be understood as being to an incident or accident involving the use or operation of a motor vehicle that causes injury.”
I do not consider the evidence supports the necessary factual finding that the parked vehicles were “in use or in operation” at the time of the accident.
I am satisfied and find that the owner had “no such involvement at the relevant time” involving the use or operation of the parked vehicles as they:
(a)    had been parked on the street and had not been moved for several weeks [as identified earlier];
(b)    were not in operation or use at the relevant time as identified by Ms Sanli[37][as identified by Meagher JA and Sackville AJA above];
(c)    had not been parked so as to breach any duty of care with respect to parking owed to the claimant [as identified earlier], and
(d)    did not cause the accident in any relevant causal sense.
I find the parked vehicles were not in use or operation at the time of the accident to engage s 5.2(1) of the Act.

Section 5.3 – The presumption in favour of the claimant

The presumption in favour of the claimant when there is an averment by the claimant that there is a blameless accident, provided through the operation of s 5.3, does not apply to this claim as there is contrary evidence.
The contrary evidence indicates:
(a)    the claimant was “startled” by the bird hitting her windscreen;
(b)    the claimant then “turned the steering wheel to the left”, this is an act of the driver;
(c)    the police considered the claimant was responsible for the accident;
(d)    the claimant’s evidentiary statement, is that when the bird hit her windscreen, she was shocked and lost control of her vehicle; [38] and
(e)    the claimant gave a consistent history of the accident to various medical practitioners (as identified above): that she turned her steering wheel (to Assessor Shen (“she tried to turn her steering wheel”), Dr Anderson (“she turned the wheel”) and braked (to Assessor Shen (“and brake”)). These versions all indicate that she turned her vehicle after the bird hit her motor vehicle. Her action in turning her motor vehicle to the left caused her motor vehicle to collide with the parked vehicles. This sequence of events demonstrates the collision occurred partly because the claimant turned her steering wheel to the left, following the bird’s impact.
Accordingly, the presumption does not arise.

Section 5.4 - was there fault on the part of the claimant?

Section 5.4 of the Act identifies there is no recovery for damages for a driver who caused the accident.
The insurer submits there is no entitlement by the claimant to recover damages having regard to s 5.4 of the Act.
The claimant submitted there was no fault in the use or operation of the vehicle she was driving at the time of the accident but did not address with any specificity s 5.4.
As identified in s 5.4(1) of the Act, the claimant (as the driver) is not entitled to damages if the motor accident was caused by an act or omission of the driver.
Section 5.4 (2) goes on to indicate that for the purpose of s 5.4(1) the injury is taken to have been caused by an act or omission of the driver even if the act does not constitute fault by the driver, was involuntary, or was not the sole or primary cause.
I consider there are insurmountable hurdles for the claimant in establishing the first part of the definition of “blameless motor accident”[39] would be met i.e. the injury was not caused by an act or omission by the claimant in the use or operation of the vehicle she was driving on the day of the accident.
As identified above the claimant says she lost control of her vehicle when she turned the steering wheel to the left after the bird collided with her motor vehicle. I do not consider this was consistent with the reasonable care a driver must exercise in particular when controlling the direction of their vehicle and paying reasonable attention to sources of danger.[40] In any event, whether the action was negligent or not, the turning of the vehicle to the left was an act which caused the accident, as submitted by the insurer. In my view the act of steering the vehicle to the left after the bird hit the windscreen was an act of the driver and that was a cause of her injuries. It may not have been the sole cause or primary cause, minds may differ, but it was a cause and amounts to an act which disentitles the claimant from the benefit of Part 5 of the Act.
This finding is consistent with the findings made in Hossain v Mirdha, where Elkhaim SC DCJ held that the plaintiff in breaking i.e. taking the avoidance measure, was not a blameless accident within the blameless accident provisions.[41]

I accept the insurer’s submissions that s 5.4 of the Act applies and that the claim is excluded through the operation of this provision.

Determination

The accident is not a no-fault accident and the insurer is not liable for damages in respect of the claimant’s injuries.
The claimant is not entitled to recover damages puruant to ss 1.9, 5.2(1) and 5.4 of the Act.

[1] This definition of “fault” is an important consideration in the definition of a “blameless accident”: S5(1) “… and not caused by the fault of any other person.”

[2] It is a gateway provision: Axiak v Ingram(2012) 82 NSWLR 36; [2012] NSWCA 311 at [60] (Tobias AJA, Beazley JA and Sackville AJA agreeing).

[3] The second reading speech introducing the blameless motor accident provisions of the MACA is identified in paragraph 42.

[4] Cf s 7A MACA.

[5]Cf s 7B MACA.

[6]Cf 7E MACA.

[7] The MACA was amended in 2006 to add Part 1.2. Division 2 of Part 1.3, which provides for a “special entitlement” for children under 16 years of age at the time of a motor accident, who reside in New South Wales. The “special entitlement” arises where the accident in which the child was injured was not caused by the fault of the owner or driver of a motor vehicle.

[8] See also Nettleton v Rondeau [2014] NSWSC 903 at [87 – 88] per Hoeben CJ.

[9] Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311 at [58] ff.

[10] Ibid [63].

[11] Ibid [66].

[12] Ibid [66].

[13] Davis v Swift (2014) 69 MVR 375; [2014] NSWCA 458 at [2].

[14] Ibid [49].

[15] Ibid [51] – per Sackville AJA, Leeming JA and Emmett AJA.

[16] The second appellant was the third-party motor vehicle insurer under the MACA.

[17] Whitefield v Melenewycz [2016] NSWCA 235 at [31].

“3A General restrictions on application of Act
(1) This Act (including any third-party policy under 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 and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control...

(2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents.”

[19] Op Cit, at [165].

[20] Op Cit, at [167].

[21] This Act introduced the blameless accident provisions, in addition to introducing s 3A and amending the definitions of “motor accident” and “injury”. Previously, 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 2006 amendments removed 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”.

[22] I note this submission is dependent on the claimant’s submission in the preceding paragraph, that the claimant was not at fault in the use or operation of the vehicle she was driving at the time of the accident, for the reasons identified later I do not accept this submission.

[23] See A1 – p 11, para 41(iii).

[24] This case was had not been cited previously in the insurer’s submissions and goes beyond the leave granted for further submissions on Foster. However, it clearly is a case that has some relevant guidance, and I consider it later in this decision.

[25] The claimant’s further submissions dated 15 September 2025.

[26] The Google photograph appears in the insurer’s submissions at page 2, para 2.3, R1.

[27] The claimant’s counsel conceded the motor vehicles were legally parked at the hearing.

[28] “Motor accident” means an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused … during: ….” [s1.4]

[29] See also Adlawan v Recochem Inc [2021] NSWSC 223 at [162] - [163].

“3A General restrictions on application of Act
(1) This Act (including any third-party policy under 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 and only if the death or injury is a result of and is caused (whether or not as a result of a defect in the vehicle) during:

(a) the driving of the vehicle, or
(b) a collision, or action taken to avoid a collision, with the vehicle, or
(c) the vehicle’s running out of control, or
(d) a dangerous situation caused by the driving of the vehicle, a collision or action taken to avoid a collision with the vehicle, or the vehicle’s running out of control...

(2) This Act (including any third-party policy under this Act) does not apply in respect of an injury that arises gradually from a series of incidents.”

[31] Op Cit, at [167].

[32] See Foster at [111].

[33] Op Cit, at [37].

[34] Cf s5(2)(1) of the Act.

[35] Op Cit, at [38], see also [39].

[36] Op Cit, at [57] – [58]. See s 5.2 of the Act.

[37] See paragraph 7 above.

[38] A 2 – p 19.

[39] Section 5(1) of the Act - Cf s 7A of the MACA.

[40] Manley v Alexander [2005] HCA 79 at [12].

[41] Hossain v Mirdha [2015] NSWDC 108 at [29].

[2025] NSWPIC 557

16 October 2025