On 12 August 2011 the respondent driver was injured when the motorcycle he was riding collided with a kangaroo on an unsealed road in rural New South Wales. He brought proceedings in the Supreme Court against the first appellant as owner of the vehicle and second appellant as third-party insurer. There was no suggestion that the appellant owner had caused or contributed to the accident by any relevant use or operation of the vehicle.
The respondent claimed damages on the basis that the accident was a “blameless motor accident” and that the injury was deemed, by s 7B(1) of the Motor Accidents Compensation Act 1999 (NSW) (MAC Act) to have been caused by the fault of the first appellant owner in the use or operation of the vehicle.
The primary judge found that the accident was “blameless”, that the deeming provision was engaged, and that s 7E did not operate to deny the respondent’s entitlement to recover damages. Accordingly he found that the appellants were liable to the respondent for damages to be assessed. Because the decision was interlocutory, the appellants required leave to appeal.
The issues in the proposed appeal were:
Whether s 7B of the MAC Act deems injury to have been caused by “fault of the owner … in the use or operation of the vehicle” where the “incident or accident involving the use or operation” causing the injury does not involve any use or operation by the owner;
If s 7B applied as contended by the respondent, whether the primary judge erred in finding that s 7E did not apply to deny the respondent any entitlement to recover damages.
The Court held (per Meagher JA, Simpson JA and Sackville AJA agreeing), granting leave to appeal and allowing the appeal:
In relation to (i)
Section 7B(1) deems fault on the part of the owner or driver (or both) only if their use or operation was use or operation involved in the motor accident that caused the injury or death. As there was no causally related use or operation of the motorcycle by the first appellant owner, s 7B did not deem him to have been at fault: -, -.
Allianz Australian Insurance Ltd v GSF Australia Pty Ltd  HCA 26; 221 CLR 568.
In relation to (ii)
Although this issue does not arise, s 7E is capable of applying where there is only one or more than one motor vehicle involved in the motor accident which is said to be “blameless”: , , .
The respondent driver did not cause the accident by any “act or omission” so as to be disentitled from recovering damages (s7E(1)): -.