Australia: High Court Refuses Leave in Blameless Pedestrian Dart Out

Curwoods Case Note
Last Updated: 17 March 2013
Article by Marco Nesbeth and Ian Jones

High Court Special Leave Application – Ingram v Axiak

Judgment date: 15 March 2013
Jurisdiction: High Court of Australia1

In Brief

  • No fault scheme for all pedestrians injured in a motor vehicle accident in New South Wales.
  • 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 circumstances of Axiak are well known and have been the subject of Curwoods Case Notes both following the decisions at first instance and the Court of Appeal.

In brief, on 27 June 2008, the first respondent, then aged 14 years, suffered a traumatic brain injury as a result of a motor vehicle accident when, as a pedestrian, she crossed Sackville Road, Ebenezer after disembarking from a school bus.

There was no contention that the applicant driver of the motor vehicle was not at fault for the accident. The first respondent abandoned her action in negligence in favour of an allegation that the accident was a "blameless motor accident" within the meaning of s 7A of the Motor Accidents Compensation Act (MACA). This argument formed the basis of the ongoing dispute between the parties.

Supreme Court

Justice Adamson considered the wording of s 7A which provides:

"A blameless motor accident means a motor accident not caused by the fault of the owner or driver of the motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person."

Justice Adamson found that s 7A extended to the first respondent who was the sole cause of the accident. Consequently the first respondent's claim failed in its entirety.

Court of Appeal

The Court of Appeal, comprising Justices Tobias, Beazley and Sackville, accepted the first respondent's submissions that Justice Adamson erred by:

  1. failing to afford the word 'fault' in s 7A its meaning within s 3 of the Act which characterised fault as "negligence or any other tort";
  2. failing to have regard to all the sections of Division 1 in context, in particular s 7F which refers specifically to the issue of contributory negligence, recognising that the term "negligence", when used in the expression of "contributory negligence", does not infer an act constituting a cause of action.

The Court of Appeal accepted the first respondent's submissions that the expression "fault of any other person" cannot refer to the injured person whose fault is in the form of non-tortious contributory negligence.

Applying a value judgement as to whether the first respondent's conduct failed to conform to the standard of care expected of a 14-year-old girl in her position, the Court of Appeal reduced her damages by 50% for contributory negligence.

Special Leave Application

The applicant sought special leave to appeal to the High Court primarily on the following grounds:

  1. The Court of Appeal's interpretation of the Blameless Accident provisions results in all pedestrians being entitled to damages under all heads of damage subject only to a reduction for contributory negligence. In so doing, the Court of Appeal failed to recognise the intention of the legislature to establish a cohesive hierarchy of potential entitlements articulated in the Second Reading speech.
  2. The Court of Appeal's decision results in difficulties and uncertainties associated with a "value judgement" approach to assessing the degree of contributory negligence.
  3. The Court of Appeal's decision has wide-reaching consequences for the general plausibility of the Motor Accidents Scheme in New South Wales.

The High Court dismissed the application for special leave. In doing so, Justice Hayne noted the construction of Part 1.2 of the MACA adopted by the Court of Appeal was available to it. If Part 1.2 extends beyond the intention of the legislature, it is for the Parliament of New South Wales to address by amendment of the MACA.


With the High Court dismissing the application for special leave, the Court of Appeal's decision has broadened the class of injured person who can bring a blameless motor accident claim. Any person, including pedestrians, bicycle riders or passengers in a bus, who suffers injury in a motor vehicle accident through their non-tortious negligence may be entitled to recover damages.

Although insurers will be able to challenge a proposition that an accident is a blameless motor accident, s 7C nonetheless creates a presumption in favour of the injured person. Insurers will need to carefully investigate such claims should they wish to contend that the injured person suffered injury through their own tortious conduct by, for example, establishing a right in the insured to sue for property damage.

Furthermore, insurers will need to review all existing pedestrian, bicycle and passenger claims to ensure appropriate reserves have been set having regard to both the non-tortious conduct of the injured person and the extent to which they have contributed to their own loss on an evaluative judgement. It is anticipated that a value judgement for contributory negligence will result in a wide range of outcomes given it requires a subjective analysis of all of the injured person's circumstances.

The High Court's decision has come at an important time in the context of the proposed amendments to the motor accidents legislation in New South Wales. While it is of significance to the current Scheme, the effects of the decision may be short lived due to a further legislative erosion of the common law fault-based system in this State.


1 Hayne and Keane JJ

Ranked No 1 - Australia's fastest growing law firm' (Legal Partnership Survey, The Australian July 2010)

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