In this matter, the New South Wales Court of Appeal re-explored
the meanings of 'motor accident' and
'injury,' in the context of a projectile thrown from a
On 20 January 2006, the respondent ('Mr
Hawkins') was cycling on the roadway of the
Pacific Highway at St Leonards. He subsequently moved from the road
to the footpath to avoid the intimidating driving and boisterous
passenger conduct of a vehicle approaching from behind. The vehicle
had followed Mr Hawkins, beeping the horn and playing loud music.
The occupants of the vehicle were yelling. Whilst Mr Hawkins was
cycling, he was struck by an object, following which the vehicle
accelerated away. Before he could regain control of his bicycle, Mr
Hawkins collided with a piece of metal lying across the footpath
which blew out his front tyre, causing him to collide with a
telegraph pole and sustain injuries.
Decision at first instance
The claim was initially heard in the District Court before
Armitage DCJ. The primary judge found, on the balance of
probabilities, that the object was thrown from the vehicle, the
driver drove in a manner which facilitated the throwing of the
object, the action of throwing an object was foreseeably likely to
injure Mr Hawkins, and the injury was caused by the fault of the
A secondary issue related to costs, in particular, whether Mr
Hawkins was entitled to indemnity costs from the date of an offer
of compromise served on 8 January 2010 which was
'bettered' by the judgement sum. His Honour
Armitage DCJ, found that at the time the Nominal Defendant refused
Mr Hawkins' offer, it did not know and could not have known
of important evidence which emerged during the hearing.
Accordingly, the Nominal Defendant was held to have acted
reasonably in refusing the offer, and indemnity costs were not
Issues on Appeal
In essence, the Nominal Defendant appealed the decision of
Armitage DCJ on two basis:
The findings of fact made by the primary judge were not open to
him on the evidence
The primary judge erred in finding the injury to the appellant
fell within the relevant provisions of the Motor Accidents
Compensation Act 1999 (NSW) ('MAC
Mr Hawkins cross appealed, arguing the judge erred in not
awarding indemnity costs from the date of the offer of
All aspects of the appeal and cross-appeal were dismissed. The
purpose of this article is to focus on the argument set out at
subparagraph two, above.
Was this an 'injury'
Hodgson JA concluded there was fault in the use or operation of
the vehicle pursuant to the Nominal Defendant's use of the
vehicle's horn, as well as the slowing down and manoeuvring
of the vehicle close to Mr Hawkins, so as to also allow the
occupants in the vehicle to yell, and generally harass Mr Hawkins.
Furthermore, the throwing of an object at Mr Hawkins was considered
to be directly associated with the harassing manner in which the
vehicle was driven. Accordingly, Hodgson JA found there was an
'injury' which fell within s3(1) of the MAC Act.
Sackville AJA agreed with the conclusion adopted by Hodgson JA,
but in the alternative, also considered the driving behaviour of
the Nominal Defendant and the actions of the passenger in throwing
the object were concurrent causes of Mr Hawkins suffering injury.
This interpretation was also deemed to bring Mr Hawkins'
injuries within the definition of the MAC Act.
Beazley JA agreed with the conclusions of Hodgson JA and
Arguably, this decision demonstrates an attempt by the Court of
Appeal to expand the types of incidents which are classified as
'motor accidents,' under the MAC Act, and
appears to be a departure from the restrictive approaches adopted
by the High Court in Allianz Australia Insurance Limited v GSF
Australia Pty Limited and GLG Australia Pty Limited v The
Nominal Defendant. With this broader interpretation of
'motor accident,' CTP insurers may face an increased
exposure to dual insurance liabilities, for work place incidents
involving employer vehicles.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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This was an interlocutory decision about the appointment of a tutor for the child appellant, to carry on his proceedings.
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