Whitfield v Melenewycz

Case [2016] NSWCA 235

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Whitfield v Melenewycz [2016] NSWCA 235
Hearing dates:6 May 2016
Decision date: 31 August 2016
Before: Meagher JA at [1];
Simpson JA at [49];
Sackville AJA at [50]
Decision:

1. Grant leave to the appellants to appeal from the judgment and orders of the primary judge of 4 December 2015.
2. Direct the appellants to file their Notice of Appeal within 7 days.
3. Appeal allowed.
4. Set aside the judgment and orders made on 4 December 2015.
5. Judgment for the appellants as defendants in the proceedings.
6. Order the respondent pay the appellants’ costs of the proceedings at first instance.
7. Order the respondent pay the appellants’ costs of the application for leave to appeal and the appeal.

Catchwords: TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) – “blameless accident” – where respondent driver of motorcycle injured in collision with kangaroo – where respondent not owner of motorcycle – where injury not caused by any use or operation of owner – where motor accident “blameless” because not caused by fault of owner or driver or any other person - whether respondent entitled to recover damages from owner – whether s 7B deems injury to have been caused by fault of owner in “use or operation” of vehicle where motor accident causing injury does not involve any use or operation by owner.
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 3, 3A, 5, 6, 7A, 7B, 7E, 7F, 7K, 10, 112
Motor Accidents Compensation Amendment Act 2006 (NSW)
Motor Vehicles (Third Party Insurance) Act 1942 (NSW)
Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568
Axiak v Ingram [2012] NSWCA 311; 82 NSWLR 36
Davis v Swift [2014] NSWCA 458; 69 MVR 375
Huseyin v Container Terminals Australia Ltd [2006] NSWCA 382; 46 MVR 1
Izzard v Dunbier Marine Products (NSW) Pty Ltd [2012] NSWCA 132
JA & BM Bowden & Sons Pty Ltd v Doughty [2009] NSWCA 82; 52 MVR 552
Leach v Nominal Defendant [2014] NSWCA 257; 67 MVR 494
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529
Nominal Defendant v Uele [2012] NSWCA 271; 82 NSWLR 308
Portlock v Baulderstone Hornibrook Engineering Pty Ltd [2005] NSWSC 775; 44 MVR 147
RG & KM Whitehead Pty Ltd v Lowe [2013] NSWCA 117; 63 MVR 375
Simpson & Co v Thomson (1877) 3 App Cas 279
Syed v Crumpton [2016] NSWSC 500
TVH Australasia Pty Ltd v Chaseling [2012] NSWCA 149; 60 MVR 535
Wagga Truck Towing Pty Ltd v O’Toole; IAG Ltd t/as NRMA Insurance v O’Toole [2011] NSWCA 191
Zotti v Australian Associated Motor Insurers Ltd [2009] NSWCA 323; 54 MVR 111
Zurich Australian Insurance Ltd v CSR Ltd [2001] NSWCA 261; 52 NSWLR 193
Texts Cited: New South Wales Legislative Assembly, Parliamentary…

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AGLC
Whitfield v Melenewycz [2016] NSWCA 235
Case
[2016] NSWCA 235
Decision Date

CaseChat Overview and Summary

In *Whitfield v Melenewycz*, the appellants sought leave to appeal from a judgment of the primary judge concerning a claim for damages arising from a motor accident. The respondent, a motorcycle rider, was injured when the motorcycle collided with a kangaroo. The respondent was not the owner of the motorcycle, and the injury was not caused by the use or operation of the motorcycle by its owner. The central dispute revolved around whether the respondent was entitled to recover damages from the owner under the *Motor Accidents Compensation Act 1999* (NSW), particularly in circumstances where the accident was deemed "blameless" as it did not involve the fault of any person.

The legal issues before the court were whether the respondent, as the injured rider, could recover damages from the owner of the motorcycle, and whether section 7B of the *Motor Accidents Compensation Act 1999* (NSW) deemed the injury to have been caused by the fault of the owner in the "use or operation" of the vehicle, even when the accident did not involve any actual use or operation by the owner.

The Court of Appeal allowed the appeal, setting aside the primary judge's judgment and orders. The court reasoned that for an owner to be liable under the Act, the injury must arise out of the use or operation of the vehicle by the owner. In this instance, the accident involved a collision with a kangaroo and did not involve any use or operation of the motorcycle by the owner. Therefore, the preconditions for the owner's liability were not met, and the respondent was not entitled to recover damages from the appellants. The court ordered judgment for the appellants in the proceedings and for the respondent to pay the appellants' costs.

Orders

Orders of the court

1. Grant leave to the appellants to appeal from the judgment and orders of the primary judge of 4 December 2015.

2. Direct the appellants to file their Notice of Appeal within 7 days.

3. Appeal allowed.

4. Set aside the judgment and orders made on 4 December 2015.

5. Judgment for the appellants as defendants in the proceedings.

6. Order the respondent pay the appellants’ costs of the proceedings at first instance.

7. Order the respondent pay the appellants’ costs of the application for leave to appeal and the appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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