Ingram v Axiak and Ors - [2013] HCATrans 64

[2013] HCATrans 064

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S305 of 2012

B e t w e e n -
MATTHEW DAVID INGRAM
Applicant
and
ALANA FAY AXIAK BY HER TUTOR DONNA MARIE AXIAK
First Respondent
MIKAELA AXIAK BY HER TUTOR DONNA MARIE AXIAK
Second Respondent
MICHAEL AXIAK
Third Respondent
Application for special leave to appeal

HAYNE J
KEANE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 2013, AT 11.44 AM

____________________

MR K.P. REWELL, SC: I appear for the applicant with my learned friend, MR M.A. CLEARY. (instructed by Curwoods Lawyers)

MR R.S. SHELDON, SC: May it please the Court, I appear with my learned friend, MR P.J. NOLAN, for the respondent. (instructed by Stacks/Goudkamp Solicitors)

HAYNE J: Yes, Mr Rewell.

MR REWELL: Your Honour, this application involves a question of statutory interpretation which is of critical importance to the motor accidents scheme in New South Wales, but is also important to each and every interstate insurer, private or public, which deals with compulsory third party insurance of vehicles in each State and Territory of Australia, and I will explain shortly why.

The facts of the case are very straightforward, not in dispute and tragically common. This is what is colloquially called a dart‑out case. Ms Axiak, the accident victim, was a 14‑year old schoolgirl who ran from behind a departing bus straight into the path of the applicant’s vehicle. The applicant had no possibility of avoiding a collision. Unfortunately, Ms Axiak’s injuries are very severe. She is a permanent participant in the Lifetime Care and Support Scheme in this State. As such, fortunately her care and treatment is catered for by that scheme for the rest of her life.

At first the proceedings brought on behalf of Ms Axiak were quite conventional. A statement of claim was filed setting out as particulars the, what I might call, usual particulars of negligence against the applicant. Since the decision of this Court in Derrick v Cheung in 2001, it has been rather difficult for pedestrians such as Ms Axiak in dart‑out cases to succeed in obtaining damages. But this case took a novel turn when the statement of claim was amended so as to abandon each and every allegation of negligence against the applicant and to substitute instead a claim that this was a blameless motor accident as defined in section 7A of the Motor Accidents Compensation Act, and I will come back shortly to the legislative history of that provision and indeed the part of the Act in which it is included.

The withdrawal of the allegations of negligence was understandable. There can never have been much real doubt on the evidence that the driving of the applicant was beyond any criticism at all. But to describe the accident as blameless was rather innovative, given that it was plain that it was the conduct of Ms Axiak at the…

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: Ingram v Axiak and Ors [2013] HCATrans 64
Case: [2013] HCATrans 64
Decision Date

CaseChat Overview and Summary

This matter concerned an appeal to the High Court of Australia by the plaintiff, Ingram, against the decision of the Full Court of the Supreme Court of Queensland. The dispute arose from a motor vehicle accident where the plaintiff sustained injuries. The plaintiff had sued the defendants, Axiak and Ors, for damages for negligence.

The High Court was required to determine whether the Full Court of the Supreme Court of Queensland had erred in its assessment of the plaintiff's contributory negligence. Specifically, the appeal focused on whether the plaintiff's conduct, in failing to wear a seatbelt, constituted a failure to take reasonable care for his own safety, and if so, what proportion of the damages should be reduced as a result.

The High Court considered the principles of contributory negligence under the relevant legislation. Their Honours noted that the onus was on the defendants to establish contributory negligence. The Court found that the plaintiff's failure to wear a seatbelt was a relevant consideration in assessing contributory negligence, as it was a failure to take reasonable care for his own safety. However, the Court also emphasised that the degree of contributory negligence should reflect the causal contribution of the plaintiff's conduct to his injuries. The High Court ultimately held that the Full Court of the Supreme Court of Queensland had made an error in its apportionment of contributory negligence.

The High Court allowed the appeal, set aside the orders of the Full Court of the Supreme Court of Queensland, and remitted the matter to the Full Court to re-determine the apportionment of contributory negligence.

Orders