Australia: Sticks and stones may break my bones – and it may also be a motor accident

Legal Directions May 2011
Last Updated: 19 May 2011
Article by Justin Coveney

Nominal Defendant v Hawkins [2011] NSWCA 93

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 motor vehicle.


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 driver.

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 awarded.

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 Act').

Mr Hawkins cross appealed, arguing the judge erred in not awarding indemnity costs from the date of the offer of compromise.

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 Sackville AJA.


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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