The blameless accident provisions are contained in Division 1, Chapter 1.2 of the Motor Accidents Compensation Act 1999 (MACA).  It provides a right of recovery to people injured in motor vehicle accidents occurring in NSW where no one is at fault.

The defence for inevitable accidents arise in one of the following situations:

  1. Sudden medical incapacity of a driver, e.g. epilepsy, heart attack, blackout, bee sting.
  2. Sudden mechanical defect, e.g. brake failure, tyre blow.
  3. Other outside interfering acts, e.g. a kangaroo crossing a country road in front of a car, a tree falling across the roadway in the path of a car.

The question is whether the driver knew of the potential risk/s beforehand, that is, whether they had prior notice of their medical symptoms or potential road hazards and whether they took adequate steps to avoid the collision.

The defendant driver would be required to establish that he or she was not negligent and argue that the plaintiff cannot prove fault.  On the other hand, the plaintiff needs to establish that the defendant driver had breached their duty of care by driving unsafely in the circumstances.

The blameless accident provision could only be utilised when there is no other party that can be found to be at fault for the accident under s7A of the MACA.  The Court in Axiak v Ingram [2012] NSWCA 311 held that in blameless accident cases, contributory negligence should be determined by enquiring how far the plaintiff had departed from the standard of care he or she was required to observe in the interest of his or her safety.

Prior to Axiak, pedestrians were required to prove fault of the driver of the motor vehicle in which they collided to recover damages.  However now, pedestrians need only allege a blameless motor vehicle accident on their CTP personal injury claim form.

Therefore, all persons injured by a motor vehicle accident (apart from the driver) are now able to make a CTP claim in respect of that accident, even if the driver (or owner) of the vehicle was found not to be at fault.