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. 5. The Court of Appeal also held obiter that s 7K(1) is anomalous in that "fault" in that subsection means "contributory negligence" (see Axiak at [47], [64] and [71]). For my part, I cannot see the anomaly because I cannot see why "fault" in s 7K(1) need not bear the defined meaning. I know of no principle that a child under the age of 16 (see s 7J(6)) is incapable of committing a tort, so the mere coupling of "child" and "fault" does not exclude the defined meaning. Further, the express reference to "contributory negligence" in s 7K(5) militates against "fault" meaning "contributory negligence" in 7K(1). 6. Admittedly, the heading to s 7L, which refers to the fault of a child, is inconsistent with the reference in the substantive provision of s 7L to "contributory negligence of the child". But, as the Court of Appeal noted at [46], headings are not taken to be part of the Act. 7. But, in any event, s 7K has no application to the present matter so I need do no more than adopt the decision of the Court of Appeal summarised in [4] above. 8. The principal argument of the owner is that Mr O'Brien cannot succeed because of ss 7B and 7E of the Act. They provide: "7B Liability for damages in case of blameless motor accident (1) The death of or injury to a person that results from a blameless motor accident involving a motor vehicle that has motor accident insurance cover for the accident is, for the purposes of and in connection with any claim for damages in respect of the death or injury, deemed to have been caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle. Note. Section 3B defines what is meant by a motor vehicle having motor accident insurance cover for a motor accident. (2) If the blameless motor accident involved more than one motor vehicle that has motor accident insurance cover for the accident, the death or injury is deemed to have been caused by the fault of the owner or driver of each of those motor vehicles in the use or operation of the vehicle." "7E No coverage for driver who caused accident (1) There is no entitlement to recover damages under this Division in respect of the death of or injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver. (2) The death of or injury to the driver is taken to have been caused by an act or omission of the driver for the purposes of subsection (1) even if: (a) the act or omission does not constitute fault by the driver in the use or operation of the vehicle, or (b) the act or omission was involuntary, or (c) the act or omission was not the sole or primary cause of the death or injury, or (d) the act or omission would have caused the death or injury but for the occurrence of a supervening act or omission of another person or some other supervening event." 1. Section 7B deems, for the purpose of damages claims, a "blameless motor accident" involving an insured vehicle to have been caused by the "owner or driver". Nevertheless, recovery of damages by the driver seems to be permitted so long as that entitlement is not excluded by s 7E. Whatever be the anomalies in Division 1 of Part 1.2 of the Act (see Axiak at [25]), it is apparent that s 7E can only assist the owner of the motor vehicle (and exclude the entitlement of a driver to recover) if the accident was "caused by an act or omission" of Mr O'Brien. 2. If the steering failed, as is alleged by Mr O'Brien, it is not apparent that he must, by some act or omission, have caused the accident. On the contrary, it is trite law that causation is a factual question determined by the common sense test (March v E & MH Stramare Pty Limited (1991) 171 CLR 506 at 515, 522-524). 3. Section 7E(2) identifies some circumstances which do not preclude causation. The text of this provision - "taken to have been caused...even if" - is confusing since there is no provision that deems the driver to have been the cause. Section 7B, which refers to the "owner or driver" does not have this effect. Further, I did not understand the owner to submit that s 7E deems Mr O'Brien to have caused the accident merely by reason of him being the driver of the vehicle and I do not, in any event, think that this is the effect of s 7E(2). 4. In my view, the question of whether Mr O'Brien has caused the accident is a question of fact to be determined at trial and assessed in the context of s 7E(2). On the case pleaded by him, his claim under the "blameless motor accident" provisions does not appear to be futile. 5. The circumstance that the "blameless motor accident" provisions are relatively new legislation and the ambit of their operation, including the effect of s 7E, has received limited judicial consideration seems to me to be another reason why the matter should be determined at a final hearing. 6. Accordingly, I propose to allow the amendments sought. 7. The parties did not address me on costs. Mr O'Brien has succeeded on the motion and, in accordance with Part 42.1 should have his costs. However, the price of the amendment is he should pay any other costs thrown away. 8. The orders of this Court are: 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. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 February 2015