AAMI Limited v Hain - [2008] NSWCA 46

Appeal Outcome: Special leave refused with costs by the High Court -1 August 2008

New South Wales

Court of Appeal

CITATION: AAMI LIMITED v HAIN [2008] NSWCA 46

HEARING DATE(S): 5 March 2008

JUDGMENT DATE:
1 April 2008

JUDGMENT OF: Beazley JA at 1; Tobias JA at 2; McClellan CJ at CL at 3

DECISION: Appeal dismissed with costs.

CATCHWORDS: NEGLIGENCE - motor accident - intoxicated driver - injury to passenger - s 138(2)(b) of Motor Accidents Compensation Act 1999 - whether respondent guilty of contributory negligence - whether respondent ought to have been aware of driver's impairment - whether ordinary person would have foreseen that accepting a lift from the driver was exposing them to injury

LEGISLATION CITED: Motor Accidents Compensation Act 1999 (NSW)

CATEGORY: Principal judgment

CASES CITED: Joslyn v Berryman (2003) 214 CLR 552
McGuire v GIO (1990) 11 MVR 385

PARTIES: AAMI (Appellant)
Sean Hain (Respondent)

FILE NUMBER(S): CA CA 40125/07; DC 38/2006

COUNSEL: S G Campbell SC/S E McCarthy (Appellant)
I D Roberts SC/ A J Black (Respondent)

SOLICITORS: Curwoods Lawyers (Appellant)
Creaghe Lisle (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 38/06

LOWER COURT JUDICIAL OFFICER: Charteris DCJ

LOWER COURT DATE OF DECISION: 2 March 2007

CA 40125/07
DC 38/2006

BEAZLEY JA
TOBIAS JA
McCLELLAN CJ at CL
TUESDAY, 1 APRIL 2008

AAMI LIMITED v HAIN

Judgment

1 BEAZLEY JA: I agree with McClellan CJ at CL.

2 TOBIAS JA: I agree with McClellan CJ at CL.

3 McCLELLAN CJ at CL: The respondent, Sean Hain, was seriously injured in a motor vehicle accident in Wagga Wagga on 17 May 2002. He was a passenger in the back seat of a vehicle being driven by Brett Wilson. The accident occurred at about 3.30 am after the respondent had accepted a lift to his home. The vehicle left the road at high speed, traversed a paddock and collided with a tree. Shortly after impact the vehicle burst into flames. The respondent, although severely injured, was able to escape from the wreckage but Mr Wilson, who was pinned to the steering wheel, died.

4 The appellant did not dispute that Mr Wilson was negligent. However, it was submitted at the trial that the respondent was guilty of contributory negligence. In this respect s 138(2)(b) of the Motor Accidents Compensation Act 1999 (NSW) provides that a court must find contributory negligence on the part of a motor vehicle passenger in particular circumstances.

5 Section 138(2)(b) provides as follows:

(a) where the injured person or deceased person has been convicted of an alcohol or other drug-related offence in relation to the motor accident, unless the plaintiff satisfies the court that the alcohol or other drug involved in the commission of the offence did not contribute in any way to the accident,

(i) the injured person (not being a minor) or the deceased person was, at the time of the motor…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AAMI Limited v Hain

Details

AGLC: AAMI Limited v Hain [2008] NSWCA 46
Case: [2008] NSWCA 46
Decision Date: 1 April 2008

CaseChat Overview and Summary

AAMI Limited (the appellant insurer) appealed a decision of the District Court of New South Wales concerning a motor accident in which the respondent, Mr Hain, was injured while a passenger in a vehicle driven by an intoxicated driver. The dispute centred on whether Mr Hain was contributorily negligent by accepting a lift from the driver, thereby disentitling him to damages under section 138(2)(b) of the *Motor Accidents Compensation Act 1999* (NSW).

The Court of Appeal was required to determine whether Mr Hain ought to have been aware of the driver's impairment and, consequently, whether an ordinary person in his position would have foreseen that accepting the lift exposed them to injury. This involved an assessment of the knowledge available to Mr Hain at the time he entered the vehicle and the objective foreseeability of risk.

The Court of Appeal upheld the District Court's finding that Mr Hain was not contributorily negligent. Their Honours reasoned that the evidence did not establish that Mr Hain was aware, or ought to have been aware, of the driver's intoxication to the extent that it would have made an ordinary person in his position foresee the risk of injury. The appeal was therefore dismissed.

Orders

Orders of the court

Appeal dismissed with costs.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	AAMI LIMITED v HAIN [2008] NSWCA 46
HEARING DATE(S):	5 March 2008
JUDGMENT DATE:	1 April 2008
JUDGMENT OF:	Beazley JA at 1; Tobias JA at 2; McClellan CJ at CL at 3
DECISION:	Appeal dismissed with costs.
CATCHWORDS:	NEGLIGENCE - motor accident - intoxicated driver - injury to passenger - s 138(2)(b) of Motor Accidents Compensation Act 1999 - whether respondent guilty of contributory negligence - whether respondent ought to have been aware of driver's impairment - whether ordinary person would have foreseen that accepting a lift from the driver was exposing them to injury
LEGISLATION CITED:	Motor Accidents Compensation Act 1999 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Joslyn v Berryman (2003) 214 CLR 552 McGuire v GIO (1990) 11 MVR 385
PARTIES:	AAMI (Appellant) Sean Hain (Respondent)
FILE NUMBER(S):	CA CA 40125/07; DC 38/2006
COUNSEL:	S G Campbell SC/S E McCarthy (Appellant) I D Roberts SC/ A J Black (Respondent)
SOLICITORS:	Curwoods Lawyers (Appellant) Creaghe Lisle (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	38/06
LOWER COURT JUDICIAL OFFICER:	Charteris DCJ
LOWER COURT DATE OF DECISION:	2 March 2007