The New South Wales Court of Appeal in Fairall v Hobbs[1] recently overturned a decision of a trial judge in favour of a plaintiff who was thrown from his ‘traffic trained’ horse named Buck, and against the CTP insurer of a motorist who passed the plaintiff riding Buck on the opposite side of the road, which allegedly caused Buck to ‘buck’ causing the plaintiff to dislodge from Buck and fall onto the concrete kerb and gutter, suffering personal injuries. MACA, is the Motor Accidents Compensation Act 1999 (NSW), which the trial judge found was applicable to the plaintiff’s injuries.

The very long ‘tale’ in the title alludes to the trial judge’s oral decision which spanned 17 hours over 4 days, with the reasons being 138 pages long. From the outset, it seems to clear to the writer that the NSWCA were unimpressed, and somewhat bemused, with how the 4 day oral delivery could be an efficient use of the court’s resources and the minimisation of cost and delay, of course fundamental principles of the court rules. The writer is not entirely sure, but the judgment of Leeming JA, which only observes the 4 day oral delivery and nothing else, seems to be at times sarcastic, and even at times humorous, as he observed that oral judgments were delivered 2 centuries ago, and said that a "highly controversial" High Court decision on constitutional law was argued over 12 days and delivered in 1916 in a single day, as were other "large and important appeals".[2]

But was the 4 day decision the result of very careful consideration of the facts and law, in order to reach the correct result? According to the NSWCA, the answer to that question is no. At this juncture I should make it clear that I do not intend to show any disrespect to the trial judge, as Leeming JA said “there may be reasons not known to this Court for the course taken by the primary judge.”[3]

Payne JA delivered the leading judgment. The plaintiff’s case was essentially two-fold:-

1. his personal injuries were caused by the negligent driving of the defendant’s motor vehicle because it was travelling at between 60km/h - 70km/h, and not 40km/h as alleged by the first defendant driver;
2. alternatively, his personal injuries were a consequence of a “blameless motor accident”,

In both instances the plaintiff’s case was contingent on the primary judge being satisfied that the incident was a “motor accident” as that term is defined in s 3 of the MACA[4], which provides as follows:-

“‘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 (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.”

A “blameless motor accident” is defined in s 7A of the MACA:

“‘blameless motor accident’ means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.”

On appeal, the appellant insurer submitted that[5]:-

1. there was no physical evidence from which the speed of the vehicle could be deduced or inferred;
2. the primary judge erred in giving any weight to the plaintiff’s “impression” that the vehicle was going probably 60 to 70 km per hour as it passed the plaintiff and his horse, as the plaintiff did not see the vehicle until it was “in his face”.
3. there was no sound basis to reject the evidence of the second defendant or the passenger Mr Moore, both of whom were adamant that the vehicle was going no more than 40 km per hour when approaching and passing the plaintiff and his horse.
4. the primary judge had failed properly to identify the relevant duty of care and had failed to address the requirements of s 5B of the Civil Liability Act 2002 (NSW) as to the relevant risk of harm against which the questions of breach of duty and causation could be assessed.[6]
5. the plaintiff had failed to discharge his onus in establishing that “but for” the speed of the second defendant’s vehicle and its proximity to the horse, the horse would not have bucked.[7]
6. Finally, the primary judge erred in finding that the plaintiff’s injury was caused by a “motor accident” as defined and, accordingly, the plaintiff’s claims under the MACA must fail.[8]

The Appeal was upheld on all grounds set out above. In relation to the central ground of appeal at 6 above, Payne JA said that the driving of the motor vehicle had to have a “very substantial causative role” in the accident for it to fall within the definition of a “motor accident” in s 3 of the MACA[9]:

The case serves as a reminder that:-

1. For trial judges, written judgments will suffice;
2. in order to activate the provisions of the MACA, the plaintiff’s evidence alone, and vague evidence at that, as to the reasons why the MACA will apply in unusual cases, will unlikely be enough to open the door for compensation under the scheme.

[1] [2017] NSWCA 82.

[2] Para 10.

[3] Para 15.

[4] Very similar to the wording of section 5 of the Motor Accident Insurance Act 1994 (Qld).

[5] Paras 37-38, points 1-3 only.

[6] Para 67.

[7] Paras 81 - 84

[8] At para 95.

[9] At para 105, citing Nominal Defendant v Hawkins at [33] per Hodgson JA.