Bayon v Bayon

Case [2014] NSWCA 434

Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Bayon v Bayon [2014] NSWCA 434
Hearing dates:20 November 2014
Decision date: 18 December 2014
Before: Basten JA at [1]; Meagher JA at [24]; Adamson J at [25]
Decision:

[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: TORTS - appellant accidentally shot when firearm discharged bullet in the course of a hunting expedition - shooter in rear tray of utility - appellant and driver in cabin - prey identified in front of vehicle - whether driver at fault - whether statutory third party policy responded - s 3A Motor Accidents Compensation Act 1999
Legislation Cited: Civil Liability Act 2002 (NSW), ss 3B, 5B, 5C, 5D, 5E
Motor Accidents Act 1988 (NSW)
Motor Accidents Amendment Act 1995
Motor Accidents Compensation Act 1999 (NSW), ss 3, 3A, 3B
Motor Accidents Compensation Amendment Act 2010 (NSW), Clause 38, Sch 1
Cases Cited: Australian Casualty Co Ltd v Federico [1986] HCA 32; 160 CLR 513
Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; 221 CLR 568
Barnes v Hay (1988) 12 NSWLR 337
March v Stramare (E&MH) Pty Ltd [1991] HCA 12; 171 CLR 506
GLG Australia Pty Ltd v The Nominal Defendant [2004] NSWCA 166
Lasermax Engineering Pty Ltd v QBE Insurance (Australia) Ltd [2005] NSWCA 66; 13 ANZ Ins Cas ¶61-643
Leach v The Nominal Defendant (QBE Insurance Australia) Ltd [2014] NSWCA 257; 67 MVR 494
Nominal Defendant v GLG Australia Pty Ltd [2006] HCA 11; 228 CLR 529
Nominal Defendant v Hawkins [2011] NSWCA 93; 58 MVR 362
Sahade v The Owners - Strata Plan 62022 [2014] NSWCA 208
Zotti v Australian Associated Motor Insurers Limited [2009] NSWCA 323
Category:Principal judgment
Parties: Favian Bayon (Appellant)
Juan Bayon (First Respondent)
Amy Catherine Mammone (Second Respondent)
GIO General Limited (Third Respondent)
Representation: Counsel:
R Sheldon SC/P Khandhar (Appellant)
P Deakin QC/N Compton (Third Respondent)
Solicitors:
File Number(s):2013/356119
Publication restriction:Nil
 Decision under appeal 
Date of Decision:
2013-10-29 00:00:00
Before:
Curtis DCJ
File Number(s):
2012/245442

Judgment

  1. BASTEN JA: As more fully explained by Adamson J, this matter involves a claim for damages by a person shot in the head by a friend operating a rifle during night time spotlighting from the back of a vehicle. The driver of the vehicle was the plaintiff's father: the claim was run on the basis that the respondent, as the third party compulsory insurer of the vehicle, would be liable for any damages to which the plaintiff was entitled.

  1. The plaintiff's claim was dismissed by the trial judge, Curtis DCJ, on…

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AGLC
Bayon v Bayon [2014] NSWCA 434
Case
[2014] NSWCA 434
Decision Date

CaseChat Overview and Summary

In *Bayon v Bayon*, the appellant, who was accidentally shot when a firearm discharged in the course of a hunting expedition, brought proceedings against the driver of the utility in which they were travelling. The appellant and the driver were in the cabin of the utility, while the shooter was in the rear tray. The incident occurred when prey was identified in front of the vehicle. The proceedings also concerned whether a statutory third-party policy responded to the incident under s 3A of the *Motor Accidents Compensation Act 1999* (NSW).

The Court of Appeal was required to determine whether the driver of the utility was at fault for the appellant's injuries. A further issue was whether the circumstances of the shooting fell within the scope of the statutory third-party insurance policy, specifically whether the incident constituted an "accident" for the purposes of the Act.

The Court considered the principles of negligence in relation to the driver's conduct. It examined whether the driver owed a duty of care to the appellant and, if so, whether that duty was breached in the circumstances. The Court also analysed the meaning of "accident" within the context of the *Motor Accidents Compensation Act 1999*, considering whether the discharge of the firearm, and the resulting injury, were sufficiently connected to the use of the motor vehicle to engage the statutory insurance provisions. The Court ultimately found that the driver was not at fault and that the statutory third-party policy did not respond.

Orders

Orders of the court

[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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