Axiak b.h.t. D. Axiak v Ingram - [2011] NSWSC 1447

Supreme Court

New South Wales

Medium Neutral Citation: Axiak b.h.t. D. Axiak v Ingram [2011] NSWSC 1447
Hearing dates: 21 and 22 November 2011
Decision date: 28 November 2011
Jurisdiction: Common Law
Before: Adamson J
Decision:
(1) In matter 213758 of 2010 (Alana Axiak b.h.t. Donna Axiak v Ingram), order judgment for the defendant and plaintiff to pay the defendant's costs.
(2) In matter 206353 of 2011 (Mikaela Axiak b.h.t. Donna Axiak v Ingram), order judgment for the defendant and plaintiff to pay the defendant's costs.
(3) In matter 206313 of 2011 (Michael Axiak v Ingram), order judgment for the defendant and plaintiff to pay defendant's costs.

Catchwords: TORT - negligence - blameless accident - contributory negligence - 100% contributory negligence
Legislation Cited: - Civil Liability Act 2002 (NSW) - s 5R, s 5S
- Motor Accidents Compensation Act 1999 (NSW) - s 3, s.5(1)(b), s 6, s 7A, s 7B, s 7C, s 7D, s 7E, s 7F, s 7J, s 7K, s 7P, s 138
Cases Cited: - Astley v Austrust Limited (1999) 197 CLR 1
- Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297
- Harrison v Melhem (2008) 72 NSWLR 380
- McHale v Watson (1966) 115 CLR 199
- March v E & MH Stramare Pty Ltd (1991) 171 CLR 506
- Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642
- Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492
- Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355
Texts Cited: - Fleming's The Law of Torts (10th Ed, p 319)
- New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 9 March 2006, at 21403-21404
Category: Principal judgment
Parties: Alana Axiak b.h.t. Donna Axiak (Plaintiff)
Matthew David Ingram (Defendant)
Representation: Counsel:
S.G. Campbell SC, P.J. Nolan (Plaintiff)
K. Rewell SC (Defendant)
Solicitors:
Stacks/Goudkamp (Plaintiff)
Curwoods (Defendant)

File Number(s): 2010/213758

Judgment

The plaintiff brings a claim through her tutor for damages for injuries she sustained in a motor vehicle accident on 26 June 2008. The plaintiff, with her younger sister, Mikaela, alighted from a school bus which was travelling north along Sackville Road, Ebenezer. The plaintiff was struck by the defendant's vehicle as she crossed onto the eastern side of the road. She suffered catastrophic injuries. I was informed by Mr Campbell, senior counsel for the plaintiff, that she has qualified for the Lifetime Care and Support program because of the gravity of her injuries.

The statutory basis for the plaintiff's claim

The plaintiff has, by the filing of an Amended Statement of Claim on 15 September 2011, abandoned any allegation of fault on the part of the defendant. Rather, she alleges that the accident was a blameless accident within the meaning of s 7A of the Motor Accidents Compensation Act 1999 (NSW) ( the Act ), which forms part of Division 1 of Part 1.2 of the Act. That Part makes provision for "No-fault claims - children and blameless…

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.

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Details

Case: [2011] NSWSC 1447
Decision Date: 28 November 2011

CaseChat Overview and Summary

In the case of Axiak b.h.t. D. Axiak v Ingram, the plaintiff sought compensation for injuries sustained in a car accident that occurred when his vehicle collided with the defendant’s car. The case was heard in the Supreme Court of New South Wales. The plaintiff alleged that the defendant was negligent in causing the collision, and he claimed damages for his injuries. The defendant denied liability and argued that the accident was a blameless one, and that the plaintiff's own negligence contributed to the incident. The court had to determine whether the defendant was negligent and, if so, whether the plaintiff's contributory negligence was 100%.

The court examined the evidence presented and considered the applicable principles of negligence and contributory negligence. It found that the defendant's actions did not amount to negligence, as the accident was a genuine accident with no fault on either side. The court further found that the plaintiff's own negligence was the sole cause of the accident, as he had failed to maintain a proper lookout while driving. As a result, the plaintiff's contributory negligence was 100%, and he was barred from recovering any damages from the defendant.

The Supreme Court of New South Wales held that the defendant was not liable for the plaintiff's injuries, and dismissed the claim with costs. The court held that the accident was a genuine accident, and that the plaintiff's own negligence was the sole cause of the incident. The court also held that the plaintiff's contributory negligence was 100%, and that he was therefore barred from recovering any damages from the defendant. The plaintiff's claim was dismissed, and the defendant was awarded costs.

Orders