A driver who swerved and hit parked vehicles after a bird flew into her windscreen has lost her bid for damages.

The no-fault provisions of the NSW Motor Accident Injuries Act were tested when Arifa Mousawi claimed she was blameless because of how the vehicles were parked.

The NSW Personal Injury Commission rejected her arguments, finding it was not a no-fault accident and nominal defendant NRMA Insurance was not liable for damages.

Ms Mousawi was driving her Toyota Tarago in the Sydney suburb of Auburn in May 2021 when the bird hit her car, causing her to veer into an unregistered ute and a registered trailer and boat, all owned by Necmi Tekin.

Mr Tekin had been given the ute but had not transferred ownership and the registration had lapsed, which led to the claim against NRMA as the nominal defendant.

Ms Mousawi claimed she was blameless because the boat and trailer were protruding into her driving lane.

However, the commission found the vehicles were parked legally and there was no negligence by their owner.  

Peter Hunt, a consultant at law firm McCabes, says under the act the “use or operation” of a vehicle includes parking – but the owner is not liable unless there is some fault in the way the vehicle is positioned.

A driver may not receive damages under no-fault provisions if they caused the accident, even if their action was involuntary.

He says when a driver hits a parked vehicle, it is “extremely difficult” for them to blame the owner.

Read the determination here.