Axiak v Ingram

Case [2012] NSWCA 311


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Axiak v Ingram [2012] NSWCA 311
Hearing dates:29 August 2012
Decision date: 27 September 2012
Before: 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
Legislation Cited: Civil Liability Act 2002
Interpretation Act 1987
Motor Accidents Compensation Act 1999
Motor Accidents Compensation Amendment Act 2006
Motor Accidents (Lifetime Care and Support) Act 2006
Motor Vehicle (Third Party Insurance) Act 1943 (WA)
Suitors Fund Act 1951
Cases Cited: Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568
Astley v Austrust Limited [1999] HCA 6; (1999) 197 CLR 1
Axiak b.h.t. D. Axiak v Ingram [2011] NSWSC 1447
Insurance Commission of Western Australia v Leigh [2001] WASCA 232
Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552
Kelly v the Queen [2004] HCA 12; (2004) 218 CLR 216
McHale v Watson (1966) 115 CLR 199
Prodrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
Wilson v State Rail Authority of NSW [2010] NSWCA 198
Category:Principal judgment
Parties: Alana Axiak by her tutor Donna Marie Axiak (1st Appellant)

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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.]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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