Bird Stike – Driver Left With Nobody to Sue

In Brief

• Pursuant to section 1.4 of the Motor Accident Injuries Act 2017, the “use or operation” or a motor vehicle includes the parking of the vehicle.
• The time a vehicle has been parked is relevant to whether it continues to be “in use” at the time a motor accident occurs.
• Even if a parked vehicle remains “in use” at the time of a motor accident, its owner is not liable unless there is some fault in the way that the vehicle was parked.
• Pursuant to section 5.4 of MAIA, a driver is precluded from recovering damages, pursuant to the “no-fault” provisions in Part 5 of MAIA, if the accident was caused by some act or omission by that driver.
• The preclusion in s 5.4 applies even if the driver’s act or omission was involuntary, does not amount to fault and was not the sole or primary cause of the accident.

Facts

The Personal Injury Commission (PIC) published its decision in Mousawi v Insurance Australia Limited t/as NRMA Insurance [2025] NSWPIC 557 on 31 October 2025.

On 3 May 2021, the Claimant was driving in Auburn at a speed of approximately 45 kph. Suddenly a bird hit the windscreen of his Tarago. The Claimant turned the steering wheel to the left and collided with some parked cars which were parked parallel to the kerb.

The Claimant made a claim for damages against the Nominal Defendant on the following bases:

• The parked vehicles into which she crashed were unregistered and uninsured on the day of this accident.
• Her injuries were caused by fault in in the parking of the unregistered vehicles.
• In the alternative, the Claimant alleged that she was injured in a no-fault accident, as defined by section 5.1  of MAIA, and it follows that the owner of the parked vehicles was deemed to be at fault by section 5.2 of MAIA.

The Nominal Defendant denied liability on the grounds that the Claimant was wholly responsible for the accident.

Factual Findings

The Member made the following key factual findings:

• The vehicles had been parked in the same position for at least two weeks.
• The vehicles were parked within the designated parking lane, parallel to kerb, close to and the gutter and, contrary to the Claimant’s submission, without protruding into the westbound lane of the road.

The Member’s Reasons

The Member found that the Nominal Defendant was not liable for the following reasons.

Was the Claimant injured in a motor accident within the meaning of s 1.4 of MAIA?

There is no doubt that the Claimant was involved in a “motor accident” within the meaning of section 1.4 of MAIA given that:

• The accident involved the use or operation of a motor vehicle that caused injury to the Claimant, and
• The Claimant’s injury was “a result of and caused during the vehicle’s running out of control“.

Importantly, the definition of “motor accident” in s 1.4 does not include any reference to fault and does not limit itself to accidents involving registered vehicles.

Does the Claimant satisfy the gateway provisions in s 1.9 of MAIA?

The requirements of section 1.9 of MAIA are not met because:

• There was no causal or temporal connection between the Claimant’s injury and the use or operation of the parked vehicle. The vehicles were parked some two weeks prior to the accident and were no longer being “used” when the accident occurred.
• There was no fault by the owner of the parked vehicles in the manner those vehicles were parked. The vehicles were legally parked. They were positioned parallel with and close to the kerb. No part of the parked vehicles obstructed the westbound lane of the road.

Was the Claimant injured in a no-fault accident within the meaning of Part 5 of MAIA?

The no-fault provisions in Part 5 of MAIA do not aid the Claimant in establishing liability for multiple reasons, including:

• Section 5.1 is not satisfied because the accident was not caused by any relevant use or operation by the owner of the parked vehicles.
• The presumption in 5.3 does not arise because the accident was caused by the Claimant losing control of her vehicle after she moved the steering wheel to the left following the bird-strike.
• Section 5.4 precludes the Claimant, as the driver of the vehicle, recovering damages where the accident is caused by the driver’s own act or omission. The preclusion applies even if the act or omission was involuntary, did not amount to fault and was not the sole or primary cause of the accident. In this case, the Claimant’s act of moving the steering wheel to the left, following the bird strike was an act which contributed to the accident. As such, s 5.4 was engaged.

Why This Case is Important

The decision in Mousawi provides two useful reminders.

Firstly, where a driver crashes into a parked vehicle, it is extremely difficult for the driver to blame the owner of the parked vehicle for their injuries. This is particularly so if the evidence establishes that the vehicle has been in its parked position for a lengthy period of time, in which case it may no longer be “in use” at the time of the accident. Even more so if there is no evidence that there was any want of care in the way the vehicle was parked.

Secondly, drivers who contribute to their own accident are, for the most part, unable to recover damages pursuant to the “no-fault” provisions in Part 5 of MAIA.

It is worth remembering that the blameless accident scheme was first introduced into the Motor Accidents Compensation Act 1999 in response the tragedy which befell Sophie Delezio. In December 2003, Sophie was two-and-a-half-year-old girl. She was trapped under a burning vehicle for a prolonged period after an elderly driver suffered an unexpected medical episode and crashed into her childcare centre. The intention of the blameless accident / no-fault provisions is to protect the innocent victims of motor accidents, like Sophie Delizio, rather than the driver of the vehicle which caused their injuries.

Section 5.4 of MAIA executes that intention by making it clear that a driver is precluded from recovering damages, under Part 5, if they do the slightest thing wrong even if their act or omission is involuntary, even if their act or omission does not amount to fault and even if their act or omission is not the sole or primary cause of the accident. Any causative act or omission by the driver locks them out of Part 5.

If you would like to discuss this case note, please don’t hesitate to get in touch with CTP Practice Group Leader Peter Hunt today.

Additional McCabes Resources

• MC PIC Decision of the Week
• MC MAIA Toolkit
• The Proper Lookout Podcast
• MC Ready Reckoner