Judgment date: 28 November 2011
Axiak by her tutor D. Axiak v Ingram  NSWSC 1447
Supreme Court of New South Wales1
- The definition of "fault" in s 3 extends to include contributory negligence for the purposes of identifying whether an accident is "blameless" within Division 1 of Part 1.2.
- Where a pedestrian's own negligence caused, or contributed to the accident, the accident will not be "blameless".
- Contributory negligence in s 7F applies to matters where the injured person's own lack of care contributes to his or her own injuries, but which did not cause the accident itself, such as where a passenger fails to wear a seat belt.
At approximately 4 pm on Thursday, 26 June 2008 the plaintiff (who was then 14 years old) and her younger sister were passengers on a school bus travelling in a northerly direction along Sackville Road, Ebenezer. The bus pulled partly onto the road shoulder opposite the plaintiff's home and stopped. The plaintiff and her sister alighted from the bus.
The plaintiff and her sister walked towards the rear of the bus and as the bus began to move away, the plaintiff and her sister ran into and across the northbound traffic lane, behind the bus and into the southbound traffic lane into the path of the defendant's vehicle.
The defendant was driving in a southerly direction along Sackville Road when he saw the bus with flashing lights on the road shoulder. He slowed his vehicle from the speed limit of 80 km/h to 40 km/h. His view of the plaintiff and her sister were completely obscured by the bus and the defendant did not see the plaintiff until she emerged from behind it.
The plaintiff was slightly ahead of her sister when she entered into the southbound traffic lane. Although the defendant braked straightaway, he was unable to brake before the plaintiff collided with the front right corner of the bonnet, propelling her onto to the bonnet, impacting and fracturing the windscreen and then landing on the roadway beside the defendant's vehicle.
The plaintiff sustained a traumatic brain injury in the accident and as at the date of the hearing had qualified as a lifetime participant in the Lifetime Care & Support Scheme.
The plaintiff alleged in an Amended Statement of Claim filed on 15 September 2011 that the accident was a "blameless accident" within the meaning of s 7A in Division 1 of Part 1.2 of the Motor Accidents Compensation Act (MACA).
The plaintiff contended that the words "any other person" in s 7A used in the expression "not caused by the fault of any other person" exclude the plaintiff. Her primary submission was that contributory negligence does not amount to "negligence" and accordingly does not amount to "fault". On that basis, an accident could still be a "blameless accident" within the meaning of s 7A, in circumstances where the plaintiff has been guilty of contributory negligence. This construction was stated to be required to give s 7F work to do. Under s 7F damages in a "blameless accident" claim may be reduced by reason of the contributory negligence of the injured person.
The defendant submitted that if the plaintiff's own negligence, namely contributory negligence, was a cause of the accident, the accident cannot be a "blameless accident" and Division 1 does not apply. To this extent, the plaintiff (being a child) would remain entitled to damages pursuant to Division 2 of Part 1.2 of MACA but not Division 1.
The defendant submitted that Divisions 1 and 2 of Part 1.2 of MACA were part of a package of measures designed to give additional protections over and above what would otherwise be available in a fault based scheme. Consistent with Parliament's Second Reading Speech for the introduction of these provisions, the defendant submitted that it would be artificial to construe the word "fault" in s 7A as excluding the plaintiff, just as it would be artificial to construe the word "negligence" in s 3 as excluding contributory negligence.
Justice Adamson rejected the plaintiff's arguments and held that the plaintiff was not injured in a "blameless accident" because the plaintiff was, herself, to blame.
Her Honour was not satisfied that "negligence or any other tort" in the definition of "fault" in s 3 is designed to limit negligence to the negligence of the defendant or other third party and exclude the plaintiff's negligence.
Her Honour stated that in the circumstances of this accident the defendant was not only blameless but his driving accorded in all respects with reasonable standards. It could not be stated that the defendant in any way caused the accident in any material legal sense. Further, having regard to the lay and expert evidence establishing that a reasonable 14-year old child ought not to have crossed the road as the plaintiff did on the day of the accident, her Honour found that the plaintiff's conduct was the result of carelessness, not youth, and the accident was caused by the plaintiff's fault thereby disentitling her to damages under Division 1 of Part 1.2 of MACA.
Her Honour noted that had the plaintiff been less than 10 years old there may have been a question whether she could be said to be blameless because an ordinary child of 10 would not be capable of appreciating the consequences of crossing the road in the manner in which she did. Consistent with the defendant's expert evidence, an ordinary child of 14 ought not to have run across the road behind a bus being unable to stop in time to avoid colliding with the defendant's vehicle, but waited for the bus to pull away before checking the road was clear and then crossing.
Her Honour assessed contributory negligence in the alternative on the basis the Court of Appeal may find contrary to her construction of s 7A. To this extent, her Honour confirmed that it is her interpretation of Division 1 that Section 7F (contributory negligence) only operates in circumstances where there is a blameless defendant on the one hand and the plaintiff whose own negligence has not caused the accident, but whose injuries have been made worse by his or her disregard for his or her own safety.
Consistent with the defendant's Submissions, her Honour accepted that the plaintiff's disregard for her own safety was the sole cause of the accident and on that basis, it was appropriate to reduce the plaintiff's damages by 100% as authorised by s 5S of the Civil Liability Act.
Despite Part 1.2 of MACA now having been enacted for more than 4 years, this is the first reported judicial consideration of the "blameless accident" provisions. Had her Honour been persuaded by the plaintiff's arguments, the effect would have been a no fault scheme for all pedestrians where there was no fault in the driver of the vehicle. No such intention was ever expressed by Parliament in the Second Reading Speech.
Justice Adamson has confirmed that the purpose of Division 1 of Part 1.2 of MACA when read with Division 2 of that Part and the Act as a whole is to extend the benefits of the compensation system only to "the innocent victims of accidents for which no one, including the plaintiff herself, is at fault".
Claims managers may continue to dispute that an accident is a "blameless accident" where the accident was caused, either wholly or in part, by the plaintiff's own contributory negligence.
1 Adamson J
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