Axiak v Ingram [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) Mikaela Axiak by her tutor Donna Marie Axiak (2nd Appellant) Michael Axiak (3rd Appellant) Matthew David Ingram (Respondent) Representation: R Sheldon SC with P J Nolan (Appellants) K Rewell SC (Respondent) Stacks Goudkamp (Appellants) Curwoods Lawyers (Respondent) File Number(s): 2011/00412016 Decision under appeal Citation: [2011] NSWSC 1447 Date of Decision: 2011-11-28 00:00:00 Before: Adamson J File Number(s): 2010/213758 2011/206353 2011/206313