Beazley JA at [1] Sackville AJA at [2] Tobias AJA at [3]
Decision:
1. Appeal allowed.
2. Set aside the orders made by Adamson J on 28 November 2011 and in lieu thereof there be judgment for each of the appellants with damages in each case to be assessed in conformity with these reasons.
3. The respondent to pay the appellants' costs of the trial to date and of the appeal but to have with respect to the latter a certificate under the Suitors Fund Act 1951, if otherwise qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:
MOTOR ACCIDENT - motor accident not caused by the fault of the respondent - construction of Part 1.2 of the Motor Accidents Compensation Act 1999 (NSW) - whether appellants are entitled to damages under Division 1 of Part 1.2 of the Act - whether accident was a "blameless motor accident" within the meaning of the definition of that expression in s 7A of the Act - meaning of the word "fault" in the definition of "blameless motor accident" - construction of the definition of "fault" and whether it includes the non tortious negligence of the injured party - whether a restrictive construction of "fault" would be inconsistent with the use of the word "fault" in other provisions of the Act - whether the primary judge was correct in her assessment of the degree of the first appellant's contributory negligence - costs
Alana Axiak by her tutor Donna Marie Axiak (1st Appellant)
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
AGLC
Axiak v Ingram [2012] NSWCA 311
Case
[2012] NSWCA 311
Decision Date
CaseChat Overview and Summary
In *Axiak v Ingram*, the appellants, who had suffered injuries in a motor accident, appealed to the Court of Appeal of New South Wales against the decision of Adamson J. The central dispute concerned whether the appellants were entitled to damages under Division 1 of Part 1.2 of the *Motor Accidents Compensation Act 1999* (NSW), which deals with blameless motor accidents, given that the accident was not caused by the fault of the respondent.
The primary legal issues before the Court of Appeal were whether the motor accident qualified as a "blameless motor accident" as defined in section 7A of the Act, and the proper construction of the word "fault" within that definition. Specifically, the court had to determine if "fault" encompassed non-tortious negligence of the injured party, and whether a restrictive interpretation of "fault" would be inconsistent with its use in other provisions of the Act. The court also considered the primary judge's assessment of the first appellant's contributory negligence.
The Court of Appeal allowed the appeal, finding that the accident was a blameless motor accident. The court reasoned that the definition of "fault" in section 7A should be interpreted broadly and consistently with its use elsewhere in the Act, and that it did not require the fault to be tortious. Consequently, the court set aside the original orders and entered judgment for the appellants, with damages to be assessed. The respondent was ordered to pay the appellants' costs of the trial and the appeal, with a certificate under the *Suitors Fund Act 1951* granted for the appeal costs.
Orders
Orders of the court
1. Appeal allowed.
2. Set aside the orders made by Adamson J on 28 November 2011 and in lieu thereof there be judgment for each of the appellants with damages in each case to be assessed in conformity with these reasons.
3. The respondent to pay the appellants' costs of the trial to date and of the appeal but to have with respect to the latter a certificate under the Suitors Fund Act 1951, if otherwise qualified.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]