A rider who hit a kangaroo on an outback NSW road in 2013 won his bid for compensation in the NSW Supreme Court for a blameless accident last year, but now the judgement is mired in the appeals process.
The rider was travelling south on the dirt road between Hungerford and Bourke in 2013 on an BMW F 650 GS Dakar when a kangaroo jumped out of the shadows and hit the rider, resulting in serious injuries.
Hungerford road is one of the long straight and wide red dirt and bull dust roads typical of the far west of NSW. It is only graded every six months or so and often corrugated, with low scrub on both sides.
A claim for injury compensation was made under the NSW CTP no-fault insurance scheme.
The CTP insurer rejected the claim on the basis that the driver in a single vehicle accident was not entitled to claim under the NSW CTP scheme and secondly that it was not a blameless accident due to the speed the rider was travelling at even though it was under the 100km/h speed limit for the road.
The case required thorough examination of the way the NSW legislation is written to determine the ability of the rider to make the claim and then examination of whether the speed of the rider was a factor in the cause of the accident.
The court case found that under the NSW CTP scheme a rider or driver is entitled to claim where the accident is not as a result of their own actions or in other words is a “blameless accident”. This is an important legal point for riders and drivers.
Secondly the Judge accepted the rider’s judgement that the speed at the time of the accident was appropriate in the road conditions at the time of the accident. It is not often a rider’s judgement is accepted over the experts who are brought into a case years after the fact of an accident.
One aspect of the case and a previous case brought before the courts which is worth noting is that if the rider had swerved to avoid the kangaroo he may not have been entitled to claim as the resultant accident may have been considered due to his actions not the actions of the roo.
However, the judgement was appealed and a new decision handed down that also pointed out that it doesn’t matter if you perceive a threat and have no time to react.