A man aged 65 years of age (the plaintiff), was riding his horse “Buck” near his property at Cartwrights Hill, a northern suburb of Wagga Wagga, NSW, about 9.30 on a Saturday morning in September 2011. The plaintiff said he was riding “Buck” about 12-18 inches off the bitumen.
A 1993 Daihatsu Feroza was being driven by an 18 year old female (2nd defendant) and owned by her mother (1st defendant), on the correct side of the carriageway. There are no median lines marked and no lines marked on the street where the car was being driven.
The plaintiff reiterated in evidence in chief, that the car was ‘in his face‘ (in sight at about 20 metres away) and then he referred to both the speed and ‘all of a sudden there was a noise and it (the car) was there’. He perceived, at that time, that the horse froze as the car passed. He said ‘Buck’ ‘just stopped (ceased moving) and he went very tight” Then he said:”The horse ‘just looked in fright and very tight and then he exploded.‘ The plaintiff thought to try to turn Buck to the left; that is, ……. away from the bitumen but the horse: […] ‘just took off behind that car, bucking. I couldn’t do anything. He was out of my control.” The plaintiff fell off the horse and sustained serious injuries, requiring ICU admission. Negligence? A MVA? A blameless MVA?
In the case of Hobbs v Fairly & Fairly  NSWDC 116, the plaintiff, who was represented by Mr Ian Roberts SC (Elizabeth Street Chambers), alleged that the circumstances of his suffering personal injury were a “motor accident” as that term is defined in the Motor Accidents Compensation Act 1999 (MACA) and that his claim for damages is governed by the provisions of MACA. The plaintiff said in the event that the Court is not satisfied that the injuries that he sustained were caused by the fault of the second defendant, for which the first defendant is by statute vicariously liable, then he was the victim of a “blameless motor accident” as that term is defined in MACA. What did the court consider, amongst other relevant sections, those listed below:
- Motor accident is defined in section 3 MACA
- Section 3A imposes general restrictions on the application of the MACA
- Part 1.2 extends the operation of the MACA to ‘no fault claims
- Section 5 specifies the objects of the MACA
- Section 7A MACA defines ‘blameless accidents’
- Section 7B MACA concerns liability for damages in case of blameless motor accident
- Section 7C MACA contains the presumption that the motor accident is blameless
- Section 7F considers contributory negligence
His Honour, Neilson DCJ, was provided with 14 authorities ‘in their original state’. His Honour made the following practical suggestion, which is useful for all practitioners, when providing authorities to the Bench:
I was not provided with the authorised reports. The authorised reports assist the Court because they often contain head notes which save the reader having to try to ascertain what the facts were before considering the dicta. Counsel ought provide the Court the authorised reports rather than just the reports as they were originally delivered. The other plea that I make is that the reports should be provided to me in some logical order rather than in a “scatter-gun” approach. For my part, I like to read reports in chronological order because one can more easily work out the progression of the learning.
His Honour considered each of the 14 authorities in his judgment, which is very useful analysis for practitioners working in this space. I recommend to you to read the case, with the associated authorities.
His Honour stated: ” For a better understanding of the definition of “blameless motor accident” in s 7A MACA, it is appropriate, as McHugh J observed in Kelly at , to read the words of the relevant definitions into the substantive enactment and then construe the provision as so extended. Relevantly, s 7A, when extended by the definitions of “motor accident” and “fault” would then read as follows:
‘blameless motor accident means an … accident involving the use … of a motor vehicle that causes … injury to a person where the … injury is a result of and is caused during the driving of the vehicle . . . [but] is not caused by the negligence or any other tort of the driver of [the] vehicle involved in the accident or the negligence or any other tort of any other person.’
At [203-204] Neilson DCJ relevantly stated:
The fact that a horse was involved in the current matter does not preclude the plaintiff from recovering damages. A horse can be involved in a “motor accident”. There must be both a temporal and causal relationship and the causal relationship must be, in essence, a very substantial cause of the plaintiff’s injury. If a motorist lost control of his vehicle and drove it off the carriageway on to the nature strip on the side of the road or adjoining footpath where a horse was being walked along the road and struck the horse, causing the horse to throw the rider that undoubtedly would be a motor accident. If a car was used by an errant motorist to harass a man riding a horse along the side of the road and the horse reacted to that harassment by throwing a rider, such facts would be on all fours with the facts in Nominal Defendant v Hawkins.
If a car were being driven along the street and there were a piece of blue metal loose on the roadway and the piece of blue metal were hit by the front driver’s side tyre of the car and projected across the road, such that it struck a horse being ridden on the verge of the road by an equestrian, and the projectile injured the horse, causing it to rear and throw the rider, the effective cause of that behaviour of the horse was the fact that it was hit by the projectile thrown up by the car. It would be most probably a “blameless motor accident” because it may have been exceedingly difficult for the motorist to see a loose bit of blue metal on a bitumenised road. It may not have been foreseeable but there would still be the relative temporal and causal relationship between the driving of the motor car by the motorist and the injury caused to the equestrian when he was thrown from the horse. There is no other competing cause for that injury. In saying that, I am referring to cases such as Allianz, such as Nominal Defendant v GLG Australia and such as Leach v The Nominal Defendant.
Neilson DCJ found that this was not a blameless motor accident, because he have found that it was due to the negligence of the second defendant in the way in which she drove her vehicle, the speed at which she drove the vehicle, and the proximity in which she drove the vehicle to the plaintiff’s horse when she had the ability to keep further away from him. He had no hesitation in accepting that this was a “motor accident” as defined in s 3 of MACA and satisfying the requirements of s 3A of MACA; at 
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