Australia: Blameless Pedestrian Darts Out
Curwoods Case Note

Axiak v Ingram [2012] NSWCA 311

Judgment date: 27 September 2012

Jurisdiction: Court of Appeal¹

In Brief

• The expression fault of any other person refers only to the tortious conduct of that person and does not include the injured person whose fault in the form of non-tortious contributory negligence is excluded from the definition of a blameless motor accident in s 7A of the Motor Accidents Compensation Act.
• Division 2 of Part 1.2 will still have work to do in such circumstances where the injured person is a child if a third party is found to be the cause of a motor accident but unable to meet any damages awarded to the injured person.
• It is impossible to determine the degree of fault which is to be attributed to a blameless driver in determining the injured person's contributory negligence under s 7F. The court is not required to assess the degree of culpability of each party in determining contributory negligence. ²
• Contributory negligence in a blameless motor accident is to be assessed on the basis of a value judgement of the extent to which an injured person has failed to conform to the standard of care of the reasonable person in their position. All of the circumstances, including an injured person's age will reflect in the evaluative judgement of the percentage reduction to be applied.

Background

On 27 June 2008, the first plaintiff, aged 14 years, was injured in a motor vehicle accident when, as a pedestrian, she crossed Sackville Road, Ebenezer after disembarking from a school bus.

When the school bus pulled to a stop, the first plaintiff and her sister alighted and walked around to its rear. The school bus then commenced to pull away from the kerb and, as this was occurring, the first plaintiff and her sister darted from behind the back of the school bus across its lane of travel and into the path of the defendant's motor vehicle being driven in the opposite direction.

It was accepted that the defendant had a completely obscured view of the first plaintiff and her sister by the school bus. The defendant had slowed to a speed of 40 km/h upon seeing the school bus but was unable to avoid colliding with the first plaintiff after she emerged from behind the bus in front of his motor vehicle.

The first plaintiff suffered a traumatic brain injury in the accident rendering her eligible for participation in the Lifetime Care and Support Scheme. She initially commenced proceedings in the Supreme Court through her tutor against the defendant for damages for the injuries sustained in the accident on the grounds that the defendant was at fault. This pleading was subsequently abandoned by the first plaintiff with an allegation that the accident was a "blameless motor accident" within the meaning of the definition of that expression in s 7A of the Act.

Section 7A provides:

The defendant contended in the Supreme Court that the fault of any other person extended to the first plaintiff by her failure to take reasonable care for her own safety. Her conduct not only caused the accident but was its sole cause.

At trial, Justice Adamson accepted the defendant's argument and the first plaintiff's claim failed in its entirely. That meant that the nervous shock claims brought by the second and third plaintiffs also failed.

Court of Appeal Decision

The first plaintiff contended that her Honour erred by:

• failing to accord to the word fault in s 7A its defined meaning in s 3 of negligence or any other tort;
• failing to read all of the provisions of Division 1 in context and, in particular, failed to take account of s 7F, which makes specific provision in relation to contributory negligence generally, the definition of fault recognising that the term negligence when used in the expression contributory negligence has a meaning different from that where negligence is used in the sense of constituting a cause of action; and
• failing to give effect to the totality of the definition of fault and, in particular, the words any other tort, contributory negligence not being a tort, irrespective of whether the relevant conduct caused or contributed to the accident as distinct from the injured person's injuries.

Justice Tobias, who delivered the lead judgment with Justices Beazley and Sackville agreeing, accepted the first plaintiff's submissions. His Honour noted that the stated purpose of the amendments to the Act on 1 October 2006 was to provide compulsory third party scheme entitlements to persons injured in motor vehicle accidents where there was no fault in the sense that the driver of the motor vehicle involved in the motor accident could not be made tortiously liable to the injured person for damages.

Tobias J accepted that the expression fault of any other person only refers to the tortious conduct of that person and cannot include the injured person whose fault in the form of non-tortious contributory negligence is excluded from the definition of a blameless motor accident. In reaching this conclusion, his Honour referred to a passage in the High Court decision of Astley v Austrust Limited ³ dealing with what contributory negligence is at common law. In particular, the High Court in Astley stated:

His Honour's conclusion that the injured person's non-tortious contributory negligence is excluded from the definition of a blameless motor accident was stated to be reinforced once the words of the definition of fault are inserted into the definition of blameless motor accident in the manner suggested by Justice McHugh in Kelly v The Queen ⁴ . This gives the effect of s 7A reading as follows:

His Honour stated that when the definition of blameless motor accident is read this way, it is evident that the expression any other person excludes the person who has been injured.

While Tobias J acknowledged an anomaly appears in the use of the word fault in s 7K(1), the trial judge erred in construing the word negligence in the definition of fault for the purposes of s 7A as including non-tortious negligence such as the first plaintiff's contributory negligence. On that basis, it was held that the first plaintiff is entitled to rely upon Division 1 of Part 1.2 of the Act and to claim modified common law damages.

Once determined that the first plaintiff was entitled to rely upon Division 1 of Part 1.2 of the Act, the issue of contributory negligence under s 7F arose. The first plaintiff had conceded that should she be entitled to claim modified common law damages such should be reduced by her contributory negligence. Tobias J confirmed that the only heads of damage affected by s 7F are those of future economic loss and non-economic loss, the first plaintiff being a student at the time of this accident and accepted as a lifetime participant in the Lifetime Care and Support Scheme entitling her to reimbursement of her treatment and care needs.

In the Supreme Court, the trial judge went on to consider contributory negligence in the alternative and found that the first plaintiff's damages ought to be reduced by 100% on the basis she was the sole cause of the accident. In reaching this finding, the trial judge had regard to the provisions of the Civil Liability Act and Prodrebersek in conducting a comparison both of culpability and of the relevant importance of the acts of the parties in causing the damage.

It was conceded by the defendant on appeal that the exercise called for in Prodrebersek has no application to contributory negligence in a blameless motor accident. Comparisons of culpability and of the relevant importance of the acts of the parties in causing the first plaintiff's injuries are inappropriate.

Tobias J held that the degree of the first plaintiff's contributory negligence can only be assessed upon the basis of a value judgement as to the extent to which her conduct failed to conform to the standard of care expected of a 14-year old girl in her position. His Honour stated that one cannot postulate that a 14-year old girl, no doubt keen to get home, would in every case adhere to a parental admonition that upon alighting from a bus no attempt should be made to cross the road until the bus drives off.

His Honour found that, taking into account all the circumstances, the first plaintiff's damages should be reduced due to her contributory negligence by 50%.

Implications

The Court of Appeal decision effectively creates a no fault scheme for all pedestrians, regardless of age. The extent to which a pedestrian will be entitled to recover modified common law damages in a blameless motor accident will involve an evaluative judgement of the pedestrian's contributory negligence.

The interpretation provided of the blameless accident provisions by the Court of Appeal does not appear to have been contemplated by the Parliament with the introduction of the amendments to the Act on 1 October 2006. In the Second Reading Speech it was stated that the Bill would extend to provide CTP cover for a person injured in a motor accident where "no-one is found to have been at fault in causing their injury".

Prior to Axiak, pedestrians were required to prove fault of the driver of the motor vehicle with which they collided to recover damages and such circumstances were never considered in the common law to give rise to an inevitable or blameless accident.

Pedestrians will now need to simply allege a blameless motor accident at question 14 of the CTP Personal Injury Claim Form and by s 7C the onus of proof will rest with the CTP insurer to establish fault of its own insured or a third party. Such an exercise would only be of value to the insurer where the reduction for contributory negligence would likely be higher on the Prodrebersek test than an evaluative judgement.

Footnotes

¹ Beazley, Sackville and Tobias JJ
² See Prodrebersek v Australian Iron & Steel Pty Limited (1985) 59 ALJR 492
³ [1999] HCA 6
⁴ [2004] HCA 12

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