Tribunal referee and lawyer Phena Byrne said while it was appreciated the car owner was not in any way at fault, and had “suffered an unfortunate loss in that his car was significantly damaged”, neither was the driver at fault.
A recently released decision describes how on March 20 this year the car owner parked on the road near his work.
Around lunchtime, a man driving along the road began to feel unwell and went to pull over. The man had epilepsy but had not had a seizure for about 40 years, was on medication, and had a doctor’s certificate to say he was fit to drive.
He recalled the feeling as similar to what he felt before his previous seizure and pulled over to the side of the road and found himself across a driveway so put the car in reverse to move back from blocking it.
In the process, he suffered a seizure and was likely unconscious or not in control of his body, the tribunal said.
The car accelerated backwards to the other side of the road and collided with the applicant’s car, plus one other, before coming to a stop.
He was taken to a nearby hospital and discharged later that day.
He believed that as a result of the seizure, his foot hit the accelerator and the car reversed at speed to the other side of the road, which was consistent with video footage provided to the tribunal.
The applicant’s car was so badly damaged it has been off the road since, unable to be driven.
The driver’s insurance company declined to pay towards the damage in the belief it was not liable because of the accident being the result of a medical event.
The tribunal said the insurance company was aware of the hearing but did not want to take part.
Byrne said the relevant law in this case was that of negligence.
The tribunal said that because the respondent’s vehicle was reversing at the time of the collision, it could be inferred that he failed to take care.
However, if a medical event caused the driver to lose control of the vehicle, the driver may not be at fault.
The respondent’s medical event was supported by evidence including discharge notes from the hospital where the respondent was taken immediately afterwards for treatment and where he was breath-tested by police who found no alcohol in his system.
Byrne said a driver may still be liable if, based on their knowledge of their medical condition, he or she should not have been driving.
The applicant argued that based on the respondent’s known history of epilepsy, he should not have been driving.
He said his last seizure was in 1984 and he had been taking the prescribed medication since then.
The claim was supported by a letter from his doctor, plus hospital notes.
Byrne found the driver took reasonable steps to stop driving once he began to feel unwell and that the crash likely happened as a result of the medical event he experienced.
“This displaces the usual inference that the damage to the other cars was caused as a result of [HL] failing to take care while driving.”
Byrne said in dismissing the claim that because negligence was not proved, the respondent was not liable for any damage caused and therefore not liable to pay any compensation.
The man was not currently permitted to drive until clearance from a medical team and Waka Kotahi (NZ Transport Agency).
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.
