Axiak v Ingram [2012] NSWCA 311

Axiak v Ingram [2012] NSWCA 311

The Court held that the definition of 'fault' in s 3 of the Motor Accidents Compensation Act 1999 (NSW) refers to tortious negligence or another tort and does not encompass contributory negligence by the injured person. Accordingly, the accident was a 'blameless motor accident' and the first appellant, and the other appellants, are entitled to modified common law damages under Division 1 of Part 1.2. However, damages must be reduced for contributory negligence, assessed objectively as a departure from the standard of care for her own safety, determined in this case to be 50%.

Parties
1st Appellant: Alana Axiak by her tutor Donna Marie Axiak; 2nd Appellant: Mikaela Axiak by her tutor Donna Marie Axiak; 3rd Appellant: Michael Axiak; Respondent: Matthew David Ingram
Jurisdiction
Australia
Judgment Date
27 September 2012
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed; orders of primary judge set aside; judgment for each appellant with damages to be assessed and reduced by 50% for contributory negligence.
Legal Topics
Motor Accident Compensation, Blameless Motor Accidents, Contributory Negligence, Statutory Construction, Damages Assessment
Tort Law Statutory Interpretation Compensation Law Motor Accident Compensation Blameless Motor Accidents Contributory Negligence Statutory Construction Damages Assessment

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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

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the accident was a 'blameless motor accident' under s 7A Motor Accidents Compensation Act 1999 (NSW)
  2. 2 Meaning of 'fault' in the statutory definition, and whether it includes contributory negligence
  3. 3 Whether the first appellant can recover damages under Division 1 of Part 1.2 of the Act despite her conduct

Ratio Decidendi

The Court held that the definition of 'fault' in s 3 of the Motor Accidents Compensation Act 1999 (NSW) refers to tortious negligence or another tort and does not encompass contributory negligence by the injured person. Accordingly, the accident was a 'blameless motor accident' and the first appellant, and the other appellants, are entitled to modified common law damages under Division 1 of Part 1.2. However, damages must be reduced for contributory negligence, assessed objectively as a departure from the standard of care for her own safety, determined in this case to be 50%.

Court Disposition

Appeal allowed; orders of primary judge set aside; judgment for each appellant with damages to be assessed and reduced by 50% for contributory negligence.

Orders

  • Orders of Adamson J on 28 November 2011 set aside.
  • Judgment for each appellant; damages to be assessed in conformity with reasons.