O'Brien v Davjam Enterprises Pty Limited

District Court

New South Wales

Medium Neutral Citation:	O’Brien v Davjam Enterprises Pty Limited [2014] NSWDC 270
Hearing dates:	28 February 2014
Decision date:	06 March 2014
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Grant leave to the plaintiff to file an amended statement of claim in the form of exhibit A to the application within 14 days. (2) Defendant to pay the plaintiff’s costs of the motion, but plaintiff to pay any other costs of the defendant thrown away by reason of the amendment. (3) Stand over the matter for directions in Gosford District Court on Monday, 24 March 2014 at 9.30am before the Judicial Registrar.
Catchwords:	PRACTICE AND PROCEDURE - pleadings - leave to amend - statement of claim - blameless motor accident - fault
Legislation Cited:	Motor Accidents Compensation Act 1999, Pt 1.2, s 3, s 7A, s 7B, s 7E, s 7J, s 7K, s 7L Uniform Civil Procedure Rules 2005, r 42.1
Cases Cited:	Axiak v Ingram [2012] NSWCA 311 March v E & MH Stramare Pty Limited (1991) 171 CLR 506
Category:	Procedural and other rulings
Parties:	James Joseph O’Brien (plaintiff) Davjam Enterprises Pty Limited (defendant)
Representation:	Counsel: Mr R Quickenden (plaintiff) Solicitors: Aubrey Brown Partners (plaintiff) Moray & Agnew (defendant)
File Number(s):	2012/225994

Judgment

1. James O’Brien entered a rental agreement for a motor vehicle from Davjam Enterprises Pty Limited, the owner of the vehicle. Mr O’Brien was supplied with a motor vehicle pursuant to that agreement. Some three days later whilst he was driving, the vehicle collided with a rock wall and Mr O’Brien was injured. He sued the owner in negligence, alleging that the steering failed.

2. Mr O’Brien applied by notice of motion to amend his statement of claim to add a claim under the “blameless motor accident” provisions in Part 1.2 of the Motor Accidents Compensation Act 1999 (“the Act”) and a cause of action based on breach of contract. The owner does not oppose the pleading of an action based on contract, perhaps because the owner’s defence is presently conducted by its insurer, which claims to have no liability in contract. However, the owner opposes a claim under the “blameless motor accident” provisions on the ground of futility.

3. A “blameless motor accident” is a “motor accident not caused by the fault of” any owner or driver or any other person (see s 7A of the Act).

4. “Fault” is defined to mean “negligence or any other tort” in s 3 of the Act. In Axiak v Ingram [2012] NSWCA 311 at [66] and [71], the Court of Appeal held, consistent with the plain wording of the definition of “fault” that “negligence” means the tort of negligence and, thus, a “blameless motor accident” in s 7A is one not involving a tort, including the tort of negligence. Accordingly, contributory negligence, not being a tort, is not “fault” under s 7A.