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

Judgment

1BEAZLEY JA: I agree with Tobias AJA.

2SACKVILLE AJA: I agree with Tobias AJA.

3TOBIAS AJA: This appeal concerns the construction of various provisions of Part 1.2 of the Motor Accidents Compensation Act 1999 (the Act) which were inserted into that Act by the Motor Accidents Compensation Amendment Act 2006 (the Amending Act). The intellectual difficulties encountered by the Court in performing that exercise appeared during the course of oral argument to raise, at least prima facie, serious inconsistencies and/or anomalies. Thus the admonition of the plurality in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [70] requiring a statute to be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals, seemed at one point difficult to achieve.

The Factual Background

4The first appellant instituted proceedings in the Supreme Court through her tutor seeking damages for injuries sustained by her in a motor vehicle accident on 26 June 2008. At the time of the accident, she was 14 years of age. She had been at school and was returning to her home in a school bus accompanied by her sister, the second appellant, who at the time was 12 years of age. As the school bus approached the family home which was on the eastern side of Sackville Road, Ebenezer, it was travelling in a northerly direction. At that point, Sackville Road had one lane in either direction and there were double unbroken lines along the centre of the road. Although there were a number of residences in the area, it was generally of a rural nature, there being farms and paddocks in the vicinity of the dwelling houses.

5The school bus carrying the first and second appellants stopped on the western side of Sackville Road opposite the family home at about 4 o'clock in the afternoon to enable the girls to disembark. The evidence established that when the bus pulled to a stop, three quarters of it was still on the bitumen surface of the road, the other quarter being on the dirt shoulder. Having alighted from the bus, the sisters walked around to its rear. A vehicle driven by a Mr Daniels was following the bus and came to a halt behind it as there was insufficient room for it to overtake the stationary bus without crossing over the double unbroken lines down the centre of the road. After the girls had alighted, the bus then pulled away until it was once again entirely on the sealed part of the roadway. Mr Daniels gave evidence, accepted by the primary judge, that the two girls darted behind the back of the bus between its rear and the front of his stationary vehicle. They were running, the first appellant preceding the second appellant.

6The respondent, Mr Ingram, was driving along Sackville Road in a southerly direction. On rounding a curve in the road he saw the bus and slowed from the speed limit of 80 kph to 40 kph. It was common ground that any view of the girls that he might otherwise then have had was completely obscured by the bus. Accordingly, his first view of them was when they emerged from behind the bus. The first appellant, who was slightly ahead of her sister, ran straight in front of the respondent's vehicle. Although he attempted to brake, he could not get his foot onto the brake before the first appellant collided with the extreme right of the bonnet of his vehicle. She was propelled onto the bonnet, struck and fractured the extreme right hand side of the upper part of the vehicle's windscreen and then slid off the bonnet to land on the side of the road beside the vehicle. She sustained horrific injuries.

7The respondent was travelling with his then girlfriend, a Ms Peirson, who was a passenger in the front seat of his vehicle. Her evidence, also accepted by the primary judge, was that when she first saw the first appellant, she was running and looking the other way, apparently a reference to looking at and watching the vehicle driven by Mr Daniels. Ms Peirson said that the first appellant tried to stop when she saw the respondent's vehicle but could not because of the momentum created by her running. Her centre of gravity was ahead of her legs because her upper body was leaning forward as she ran. Ms Peirson said that the leg that the first appellant led with as she was running was the part of her body that first hit the respondent's vehicle. In the split second before the impact, the first appellant looked in the direction of the respondent's vehicle for the first time.

The Proceedings

8As I have noted, the first appellant instituted proceedings through her tutor against the respondent for damages for the injuries sustained in the accident. The second and third appellants (the latter being the first and second appellants' father) each instituted separate proceedings seeking damages for nervous shock. It was common ground that the success or otherwise of the proceedings instituted by the second and third appellants was reliant upon the outcome of the proceedings instituted by the first appellant.

9In her amended statement of claim filed on 15 September 2011, the first appellant abandoned any allegation of fault on the part of the respondent. Rather, she alleged that the accident was a "blameless motor accident" within the meaning of the definition of that expression in s 7A of the Act. It is convenient to set out that definition at this point:

7A Definition of "blameless motor accident"

In this Division:

blameless motor accident means a motor accident not caused by the fault of the owner or driver of any motor vehicle involved in the accident in the use or operation of the vehicle and not caused by the fault of any other person.

10Before the primary judge there was no issue that the motor accident was not caused by the fault of the respondent, being the driver of the relevant motor vehicle. The issue that arose was whether the motor accident was caused by "the fault of any other person". It was contended by the respondent that it was caused by the fault of the first appellant in that, by her conduct in running across Sackville Road behind the bus without first ensuring that there was no vehicle travelling in a southerly direction, she failed to take reasonable care for her own safety; in other words, she was guilty of contributory negligence and was, therefore, at fault in that her conduct not only caused the accident but also was its sole cause.

11This contention was upheld by the primary judge with the consequence that the first appellant's claim failed in its entirety. As that claim failed, so did the claims of the second and third appellants. Accordingly, on 28 November 2011, her Honour entered judgment in all three proceedings for the respondent and ordered each of the appellants to pay the respondent's costs of those proceedings: Axiak b.h.t. D. Axiak v Ingram [2011] NSWSC 1447. It is from those orders that the appellants appeal to this Court.

The Statutory Regime

The position before the Amending Act

12The scheme of the Act, prior to the Amending Act, permitted recovery of modified common law damages by a person injured in a motor accident, where those injuries were caused by the fault of the owner or driver of the relevant motor vehicle in its use or operation. Both before and after the Amending Act, Chapter 5 of the Act which is headed "Award of damages", contained s 122(1) which provides that that Chapter

applies to and in respect of an award of damages which relates to the death of or injury to a person caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle.

Accordingly, the Act was at that time confined to a fault based scheme of compensation.

13The expression "motor accident" was originally defined by s 3 to mean:

an accident or incident caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle which cause the death of or injury to a person.

14The emphasis on "fault" was also to be found in the then definition of "injury" which relevantly meant:

personal or bodily injury caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if, and only if, the injury is a result of and is caused during:

(i) the driving of the vehicle; or

(ii) a collision . . . with the vehicle,

(iii) . . .

15The Act, both before and after the Amending Act, makes it compulsory for a motor vehicle to be the subject of a third-party insurance policy the terms of which, as provided by s 10, insure the owner of the motor vehicle or any other person who at any time drives the vehicle against liability in respect of the death of or injury to a person

"caused by the fault of the owner or driver of the vehicle".

16Section 3 of the Act, both before and after the Amending Act, defined the word "fault" to mean

"negligence or any other tort".

A critical issue in the present case was whether the reference in that definition to "negligence" is a reference to tortious negligence, or whether it includes non-tortious negligence such as contributory negligence as that expression is commonly understood, namely, a failure to take reasonable care for one's own safety.

The position after the Amending Act

17The Amending Act comprised one of two pieces of legislation which, in a sense, complemented each other and were presented to the Parliament as a package. The other Act was the Motor Accidents (Lifetime Care and Support) Act 2006. It established a scheme to provide lifetime care and support for persons who suffered catastrophic injuries in motor vehicle accidents covered by the Act. It proposed that all persons so injured would receive medical care and support services throughout their life regardless of who was at fault in the motor vehicle accident. It was common ground that the first appellant qualified for the Lifetime Care and Support Programme provided by that legislation. However, it is apparent, and understandable, that the first appellant wished to claim modified common law damages under Chapter 5 of the Act in respect of her injuries and, in particular, damages for future economic loss and for non-economic loss. There could be no doubt that, if otherwise entitled, she qualified for an award of non-economic loss as the degree of her permanent impairment as a result of the injuries sustained by her in the subject accident was greater than 10 percent: see s 131 of the Act.

18As it was accepted that the accident was not caused by the fault of the respondent as the driver of the relevant motor vehicle, the only manner in which the first appellant could recover damages for future economic loss and non-economic loss was under Division 1 of Part 1.2 of the Act as inserted by the Amending Act. Part 1.2 is headed "No-fault Claims - children and blameless accidents". It contained two divisions. Division 1 was headed "Recovery for blameless accidents". The first appellant's claim was brought under that Division.

19Thus if the first appellant's injuries were sustained as a consequence of a "blameless motor accident" as defined by s 7A (see [9] above), she was entitled to recover modified common law damages for future economic loss and for non-economic loss. If not, then she was only entitled to recover limited damages referred to as a "special entitlement" under Division 2 of Part 1.2. That Division is headed "No-fault recovery by children". The damages recoverable by a child under the age of 16 years pursuant to Division 2 are relevantly confined by s 7J(3) to the following:

(a) hospital, medical and pharmaceutical expenses,

(b) rehabilitation expenses,

(c) respite care expenses,

(d) attendant care services expenses.

20In the present case, the first appellant did not seek the special entitlement under Division 2 of Part 1.2 in the proceedings as an alternative in the event that she failed to establish that she was injured in a "blameless motor accident" as defined by s 7A. This was no doubt due to the fact that she would receive the equivalent of that entitlement under the Lifetime Care and Support Programme. A claim under Division 2 would not have resulted in her receiving any damages for future economic loss or non-economic loss.

21The Amending Act amended the definition of "injury" as well as the definition of "motor accident". It defined the former to mean, relevantly:

"personal or bodily injury".

It relevantly defined the latter to mean

an incident or accident involving the use or operation of a motor vehicle that causes the death of or injury to a person where the death or injury is a result of and is caused . . . during:

(a) the driving of the vehicle; or

(b) a collision . . ., with the vehicle; or

(c) . . .

22The Amending Act also inserted a new s 3A which provided, relevantly:

3A General restrictions on application of Act

(1) This Act (including any third-party policy under this Act) applies only in respect of . . . injury to a person that is caused by the fault of the . . . driver of a motor vehicle in the use or operation of the vehicle and only if the . . . injury is a result of and is caused . . . during:

(a) the driving of the vehicle, or

(b) a collision . . . with the vehicle, or

(c) . . .

23It will be appreciated that, relevantly, s 3A reinstated the requirement for "fault" on the part of the driver of a motor vehicle in causing a motor accident and which was originally contained within the definition of "injury". In order to set up, as it were, liability for Chapter 5 damages in the case of a "blameless motor accident", and in order to reflect the requirement of "fault" in s 3A, the relevant driver was deemed to be at fault in causing the motor accident. So much was provided by s 7B(1):

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.

24The other provisions of Division 1 of Part 1.2 relevant to the present matter are the following:

7C Presumption that motor accident is blameless

In proceedings on a claim for damages in respect of . . . injury to a person resulting from a motor accident, an averment by the plaintiff that the motor accident was a blameless motor accident is evidence of that fact in the absence of evidence to the contrary.

. . .

7E No coverage for driver who caused accident

(1) There is no entitlement to recover damages under this Division in respect of . . . injury to the driver of a motor vehicle if the motor accident concerned was caused by an act or omission of that driver.

(2) . . . 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 . . . injury, or

(d) the act or omission would have caused the . . . injury but for the occurrence of a supervening act or omission of another person or some other supervening event.

7F Contributory negligence

This Division does not prevent the reduction of damages by reason of the contributory negligence of the . . . injured person.

Note. The contributory negligence of a deceased or injured child does

not reduce damages of the kind to which the special entitlement to

damages conferred by Division 2 applies. See section 7P.

7G Recovery of contribution from person actually at fault

A person whose liability for damages in respect of the . . . injury to a person results from the person being deemed under this Division to be a person whose fault caused the . . . injury is entitled to recover contribution in respect of that liability from a person (whether or not the driver of a motor vehicle) whose fault actually caused the . . . injury.

7H No recovery by Nominal Defendant unless owner or driver actually at fault

The Nominal Defendant is not entitled to recover any amount under section 39 from the owner or driver of a motor vehicle in respect of amounts properly paid by the Nominal Defendant in connection with the operation of this Division unless the motor accident concerned was actually caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle.

7I Other entitlements not affected

This Division does not affect any entitlement to damages apart from this Division.

25It is convenient at this point to make the following observations with respect to these provisions:

a distinction seems to be drawn in the provisions between fault causing or, perhaps more accurately, not causing, a motor accident (as defined) and fault causing the relevant injury; thus s 7B(1) deems the injury to a person resulting from a "blameless motor accident" to be deemed to have been caused by the "fault", relevantly, of the driver of the relevant motor vehicle;

section 7G refers to the entitlement of the driver deemed under s 7B to be the person whose fault caused the injuries, to recover contribution in respect of that liability from a person whose fault actually caused those injuries: the words in brackets in s 7G may refer to or at least include the driver of a motor vehicle other than the motor vehicle which was involved in the motor accident. Again, the section refers to the relevant person "whose fault actually caused the . . . injury" as distinct from the person whose fault caused the motor accident;

section 7H seems to be inconsistent with the notion of a "blameless motor accident" as defined, since it assumes that the motor accident concerned was actually caused by the fault of the relevant driver of the vehicle whose identity cannot be established;

section 7F refers specifically to the "contributory negligence" of the injured person, thereby possibly distinguishing that form of non-tortious negligence from tortious negligence; given that s 7F specifically deals with "contributory negligence" in the context of a case where the definition of "blameless motor accident" in s 7A is satisfied, it might be said that contributory or non-tortious negligence was not intended to be included within the definition of "fault" which is confined, so the argument runs, to tortious negligence.

Prima facie, therefore, there seems to be some confusion in some of the language used in the provisions to which reference has been made and some lack of consistency of expression. However, at the end of the day, I do not consider that these textual issues bear directly upon the issue of construction the subject of the appeal, although they seem to create some anomalies.

26I turn now to Division 2 of Part 1.2 of the Act. The provisions relevant to this appeal are as follows:

Division 2 No-fault recovery by children

7J Damages for children where driver not at fault

(1) If the . . . injury to a child results from a motor accident not caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle, the . . . injury is, for the purposes of the special entitlement to recover damages conferred by this Division, deemed to have been caused by the fault of the owner or driver of a motor vehicle in the use or operation of the vehicle if the motor vehicle was involved in the accident and has motor accident insurance cover for the accident.

Note. Section 3B defines what is meant by a motor vehicle having motor

accident insurance cover for a motor accident.

(2) . . .

(3) The special entitlement to recover damages conferred by this Division is an entitlement to recover damages for the following in respect of the . . . injury to the child:

(a) hospital, medical and pharmaceutical expenses,

(b) rehabilitation expenses,

(c) respite care expenses,

(d) attendant care services expenses,

(e) . . .

(4) . . .

(5) . . .

(6) In this Division:

child means a person who is under 16 years of age at the time of the motor accident.

7K Claims where child at fault

(1) This Division applies even if the . . . injury to the child was caused by the fault of the child, except as provided by this section.

(2) A court is not to award damages pursuant to this Division in respect of the . . . injury to a child if the court is satisfied that:

(a) the . . . injury to the child occurred at the time of, or following, conduct of the child that, on the balance of probabilities, constitutes a serious offence, and

(b) that conduct contributed materially to the . . . injury or to the risk of . . . injury.

(3) . . .

(4) . . .

(5) There is to be no reduction of the damages provided for by this Division by reason of the contributory negligence of the . . . injured person, except as provided by this section. (Emphasis added)

7L Special provision where child and driver at fault

In a case in which this Division would confer a special entitlement to recover damages in respect of the . . . injury to a child but for the fact that the motor accident was caused by the fault of the owner or driver of the motor vehicle in the use or operation of the vehicle, a liability for damages of the kind to which that special entitlement relates (including any such liability of an insurer under section 83 or 84) is not to be reduced on account of the contributory negligence of the child (even though this Division does not confer that special entitlement in the case).

Note. The special entitlement to damages conferred by this Division is

only applicable where the owner/driver is not at fault. Where the

owner/driver is at fault, this section prevents a reduction in special

entitlement type damages that would otherwise result from the

contributory negligence of the child.

. . .

7P Relationship with Division 1

(1) This Division does not apply in a case to which Division 1 (Recovery for blameless accidents) applies, subject to subsection (2).

(2) In a case in which this Division would confer a special entitlement to recover damages in respect of the . . . injury to a child but for the fact that the case is one to which Division 1 applies, a liability for damages arising under that Division of the kind to which that special entitlement relates (including any such liability of an insurer under section 83 or 84) is not to be reduced on account of the contributory negligence of the child (despite section 7F).

27I have not set out sections 7M, 7N and 7O as they are in the same terms as sections 7G, 7H and 7I.

The parties' submissions to the primary judge

28Both at trial and on the appeal, the first appellant's primary submissions were, first, that the only "fault" which could be sheeted home to her was that she was guilty of contributory negligence in that she failed to take reasonable care for her own safety; secondly, that that form of negligence was not encompassed in the definition of "fault", which was confined to tortious as distinct from non-tortious negligence; thirdly, that contributory negligence (in the non-tortious sense) was dealt with separately by s 7F; and, fourthly, that it followed that the accident in which she sustained her injuries satisfied the definition of "blameless motor accident" in s 7A.

29In particular, the first appellant emphasised that s 7F provided for the consequences of her conduct in so far as it amounted to a failure on her part to take reasonable care for her own safety. Unless contributory negligence of this type was excluded from the definition of "fault" then s 7F would have no work to do. However, the respondent submitted that if the contributory negligence of the injured person constituted "fault" for the purposes of s 7A, then whether or not s 7F had work to do was academic for Division 1 would have no application as the definition of "blameless motor accident" would not be satisfied. I think this is so, but for reasons referred to below it does not assist the respondent's case.

30Reliance was placed by the first appellant upon the following passage from the judgment of Gleeson CJ, McHugh, Gummow and Hayne JJ in Astley v Austrust Limited [1999] HCA 6; (1999) 197 CLR 1 at [21] where their Honours' observed (omitting footnote references):

At common law, contributory negligence consisted in the failure of a plaintiff to take reasonable care for the protection of his or her person or property ... Although conduct amounting to contributory negligence may also constitute the breach of a duty which the plaintiff owes to the defendant, a plaintiff can also be guilty of contributory negligence notwithstanding that he or she owes no duty to the defendant or any third person. A pedestrian, for example, owes no duty to a speeding driver to avoid being run down but is guilty of contributory negligence if he or she fails to take reasonable care to keep a proper lookout for speeding vehicles ... A person may also be guilty of contributory negligence even though the negligence of the plaintiff did not contribute to the accident which caused the damage. That is because contributory negligence is concerned with the failure of the plaintiff to protect his or her person or property against damage and not with whether the failure contributed to the accident. [Emphasis in the original]

31The respondent fastened on the last two sentences of this passage as evidencing the distinction between the negligence of a plaintiff which causes or contributes to the accident which results in the injury and negligence which causes or contributes to the injury, but not to the accident. It was submitted that s 7A, being concerned with the question of whether the accident is or is not caused by the fault of the driver or any other person, was capable of including, on the facts of the present case, the negligence of the first appellant which clearly contributed to the accident. This was so notwithstanding that she was also guilty of contributory negligence in the sense that she failed to take reasonable care to protect herself from injury. In other words, the first appellant's negligence had two aspects to it: first, a failure to take reasonable care which contributed to or caused the accident; and, secondly, a failure to take reasonable care to protect herself from being injured. It was only to the latter (contributory negligence in the conventional sense) that s 7F is directed.

32In summary, the first appellant contended that Division 1 of Part 1.2 of the Act was designed to extend the no fault scheme by conferring a general right to modified common law damages on plaintiffs where, relevantly, the driver of the motor vehicle which caused the accident was not at fault and there was no other relevant tortfeasor who was implicated in the accident. Even if the first appellant's contributory negligence was a cause of the accident, that did not disentitle her from the benefits of Division 1 although it was required by s 7F to be taken into account in reducing the damages to which she would otherwise be entitled.

33The respondent submitted at trial, and repeated on the appeal, that if the first appellant's own negligence, albeit contributory negligence as conventionally understood, was a cause of the accident then the latter could not be a "blameless motor accident" as defined and Division 1 was not engaged. Any degree of causal fault was sufficient to disqualify the accident from being a "blameless motor accident" and thus the first appellant was disentitled from the benefits otherwise available under Division 1.

34The respondent relied both before the primary judge and on the appeal on the following part of the Second Reading Speech with respect to the Amending Act for the purpose of defining the purpose of Part 1.2:

The primary purpose of this Bill ... is to extend the scope of the New South Wales motor accidents scheme ... to provide CTP scheme entitlements to people injured in blameless accidents. The blanket application of legal rules and principles can on occasions have unfortunate and even undesirable consequences. The principle of fault is a case in point. For example, when a person injured in a motor accident is unable to access CTP assistance because no-one is found to have been at fault in causing their injury ... The enhancements to the motor accidents scheme proposed by the Bill will provide greater support and security to injured people and their families.

Part 1.2 of the Bill provides a right of recovery to people injured in motor vehicle accidents occurring in New South Wales where no-one is at fault. That is an "inevitable" or "blameless" motor accident. For the purpose of making this new claim for death or injury, the motor accident is deemed to have been caused by the fault of the owner or driver of the motor vehicle.

The injury must also be caused by a motor vehicle accident of a kind recognised by the Act. A person who is injured in a blameless accident will be entitled to CTP scheme benefits. The one exception is that the driver of the motor vehicle causing the accident will not be entitled to make a claim under these provisions. [Emphasis added]"

35The respondent submitted at trial and repeated and expanded on the appeal, that when considered in context, the scheme of Part 1.2 was to provide the following hierarchy of potential entitlements to adults and children injured in motor accidents in New South Wales:

(a) Where a person's injury in a motor vehicle accident is caused by the fault of the driver of the vehicle involved in the accident, the injured person is entitled to claim common law damages as modified by Chapter 5 of the Act; in this case Part 1.2 is not relevant;

(b) If the motor vehicle accident was caused by the fault of a third party, but not the driver of the vehicle, then the injured plaintiff is left to claim against that third party in accordance with normal common law principles; again Part 1.2 has no part to play;

(c) If the motor vehicle accident was caused, in whole or in part, by the injured plaintiff's fault, that plaintiff, if a child under the age of 16 years, would be entitled to claim damages pursuant to Division 2 but not Division 1 of Part 1.2; in this respect the injured child is protected, in terms of his or her need for treatment and care, by "the special entitlement" provisions in s 7J(3), a protection not available to adults;

(d) When no one is at fault in causing the motor vehicle accident, including the injured person, the latter is entitled to claim damages pursuant to Division 1 under all heads as if there was fault on the part of the driver of the vehicle involved, provided the vehicle has motor accident (third party) cover;

(e) If the plaintiff is guilty of non-causative contributory negligence and neither the driver or any other person is at fault in causing the accident, the plaintiff would be entitled to damages under Division 1 subject to the reduction of such damages pursuant to s 7F except with respect to those heads of damage referred to in s 7J(3) which, by virtue of s 7P(2), are not subject to any such reduction.

36By non-causative contributory negligence I understand the respondent to be referring to negligence or a failure to take reasonable care for their own safety on the part of the injured plaintiff which is not causative of the accident in which he or she is injured. Examples of such negligence would be the failure of the injured person to wear a seat belt or to wear a protective helmet (when riding a bicycle or motor bike) (cf s 138(2)(c) and (d) of the Act). Each of those examples involves contributory negligence which does not of itself cause or contribute to the relevant accident, although it may aggravate the injuries otherwise sustained.

37The respondent thus submitted that it would be artificial to construe the word "fault" in s 7A as excluding a negligent plaintiff, just as it would be artificial to construe the word "negligence" in the definition of "fault" in s 3 as excluding contributory negligence or non-tortious negligence. In this context, particular reliance was placed by the respondent on the provisions of s 7K(1) contained in Division 2 which, for convenience, I repeat:

This Division applies even if the . . . injury to the child was caused by the fault of the child . . .

38It was submitted that the fault to which that provision refers can only be to contributory negligence being the failure of the child to take reasonable care for his or her own safety. This being so, consistency requires that the reference in the definition of "fault" to "negligence" must include contributory or non-tortious negligence.

The decision of the primary judge

39The primary judge relevantly responded to the foregoing submissions of the parties in the following paragraphs of her reasons:

[31] Words take their meaning from context but it is generally to be expected that Parliament has used a term consistently. This principle is of importance when one considers the introduction of Part 1.2 which comprised Divisions 1 and 2. That "fault" is used in Division 2 of Part 1.2 to refer to contributory negligence is a powerful indication the Parliament intended it to include contributory negligence in Division 1. I consider that this textual analysis of Part 1.2 is sufficient to overcome the plaintiff's argument that "negligence or any other tort" in the definition of "fault" in s 3 is designed to limit negligence to the negligence of the defendant or other third party and exclude the plaintiff's negligence (which, as the plurality in Astley said in the passage set out above, may or may not involve a breach of duty to anyone).

...

[33] I do not consider this to be an instance where it is appropriate either to put a gloss on the plain meaning of the words in s 7A or to construe the word "fault" as being confined to the acts of a tortfeasor rather than to embrace a plaintiff's negligence. . . .

[34] If the plaintiff is guilty of negligent acts or omissions which caused the accident, wholly or in part, then the accident cannot be said to be "blameless" and therefore Division 1 does not apply.

[35] The expression "contributory negligence" is apt to include both acts that caused the accident and those which, although they did not cause the accident, played a causative role in the plaintiff's injuries. Where the plaintiff's own negligence caused, or contributed to the accident, the accident will not be "blameless". Where the plaintiff is guilty of contributory negligence, which did not cause or contribute to the accident, her damages may be reduced pursuant s 7F.

[36] This construction gives effect to all the provisions of the Act, and, in particular, preserves the distinction between Divisions 1 and 2 in Part 1.2. It accords a consistent meaning to the word "fault" throughout Part 1.2. Although it might be said to be anomalous for a plaintiff who is only partly at fault, to be disentitled to damages under Division 1 and to be confined to recovery of, or payment for, expenses under Division 2, this is the choice that Parliament has made. I find that Parliament has, through the enactment of Division 1 of Part 1.2, when read with Division 2 and the Act as a whole, evinced an intention to extend the benefits of a compensation system, which principally depends on fault being established, only to the innocent victims of accidents for which no one, including the plaintiff herself, is at fault.

40Her Honour accordingly found for the respondent.

Additional submissions on the hearing of the appeal

The submissions of the first appellant

41The first appellant submitted that her Honour erred by failing to accord to the word "fault" in s 7A its defined meaning in s 3 of "negligence or any other tort". Reliance was placed upon the following passage in the judgment of McHugh J in Kelly v the Queen [2004] HCA 12; (2004) 218 CLR 216 at [103] where his Honour said

As I earlier pointed out, the function of a definition is not to enact substantive law. It is to provide aid in construing the statute. Nothing is more likely to defeat the intention of the legislature than to give a definition a narrow, literal meaning and then use that meaning to negate the evident policy or purpose of a substantive enactment. There is, of course, always a question whether the definition is expressly or impliedly excluded. But once it is clear that the definition applies, the better - I think the only proper - course is to read the words of the definition into the substantive enactment and then construe the substantive enactment - in its extended or confined sense - in its context and bearing in mind its purpose and the mischief that it was designed to overcome. To construe the definition before its text has been inserted into the fabric of the substantive enactment invites error as to the meaning of the substantive enactment. . . .

42The earlier reference noted by McHugh J is to the following passage of his Honour's reasons at [84]:

However, a legislative definition is not or, at all events, should not be framed as a substantive enactment. In Gibb v Federal Commissioner of Taxation (1966) 118 CLR 628 at 635, Barwick CJ, McTiernan and Taylor JJ stated:

'The function of a definition clause in a statute is merely to indicate that when particular words or expressions the subject of definition, are found in the substantive part of the statute under consideration, they are to be understood in the defined sense - or are to be taken to include certain things which, but for the definition, they would not include ... [Definition] clauses are ... no more than an aid to the construction of the statute and do not operate in any other way. In addition, as Dixon CJ once pointed out, "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed.' (Emphasis in original)

See also Allianz Australia Insurance Ltd v GSF Australia Pty Ltd [2005] HCA 26; (2005) 221 CLR 568 at [12] per McHugh J.

43It was further submitted by the first appellant that her Honour failed to read all of the provisions of Division 1 in context and, in particular, failed to take account of s 7F, which makes specific provision in relation to contributory negligence generally. Even if one puts aside the defined meaning of "fault" and approaches the interpretation of s 7A on the basis that in ordinary language "fault" may embrace contributory negligence, the fact that express provision is made in s 7F with respect to contributory negligence is a strong pointer that the interpretation of the word "fault" as defined was used by the legislature in s 7A as excluding that form of negligence.

44It was then submitted that the definition of "fault" recognises that the term "negligence" when used in the expression "contributory negligence" has a meaning different from that where "negligence" is used in the sense of constituting a cause of action. In the context of Part 1.2, there is a dichotomy between "fault" as a tortious act or omission and "contributory negligence".

45Finally, her Honour erred, as did the respondent's submissions, by failing to give effect to the totality of the definition of "fault" and, in particular, for the words "any other tort". The use of the word "other" was a clear reference back to the word "negligence" and thereby evinced an intention that the "negligence" referred to in the definition was used in the sense of a tort. As contributory negligence is not a tort, irrespective of whether the relevant conduct caused or contributed to the accident as distinct from the plaintiff's injuries, it followed that her Honour erred in construing the word "negligence" in the definition as including "contributory negligence".

The submissions of the respondent

46The respondent sought to uphold the primary judge's construction of the word "fault" as including "contributory negligence" upon the ground that otherwise an unduly restrictive construction would defeat the purpose of what was a no-fault scheme. Further, such a restrictive construction would be inconsistent with the use of the word "fault" in other provisions of Part 1.2 of the Act and, in particular, in s 7K(1). The respondent also submitted that the use of the word "fault" in the heading of s 7L, "Special provision where child and driver at fault", is also used in the sense of "contributory negligence". However, s 35 (2) of the Interpretation Act 1987 provides that headings of sections shall not be taken to be part of the Act.

47No other provision, other than s 7K(1), was identified by the parties as plainly using the word "fault" in the sense of "contributory negligence". Nor have I been able to find any such provision. On the contrary, the use of the word "fault" in the other provisions of both Divisions 1 and 2 would indicate that it is used in its tortious sense: see, for example, s 7E(2)(a) and the other provisions to which I refer at [60] below. However, I acknowledge the correctness of the respondent's submission with respect to the use of the word "fault" in s 7K(1). One must accept that for the sake of consistency of language, it would have been more appropriate had the legislature used the phrase "contributory negligence" rather than the word "fault" in that provision. I shall return to this matter below at [64].

48The respondent further submitted that her Honour was correct in declining to read into s 7A additional words so as to exclude from the concept of "fault" that of the injured person. However, for reasons which I shall elaborate below, the construction which in my view should be adopted does not involve the addition of any words to the definition in s 7A.

49The respondent then submitted that if the first appellant's construction of s 7A is correct, then Division 1 would provide a "no-fault" scheme for pedestrians of all ages. However, it was not made clear why this should dictate a different construction. The purpose of Part 1.2 was to provide a "no fault" scheme for persons, be they adults or children, who sustained injuries in a motor accident in respect of which, but for the scheme, the injured person would not have a cause of action to recover damages for those injuries. Although special provision was made for children under the age of 16 years in Division 2, Division 1 applies to all persons whether they be children or not. I see no difficulty in understanding the scheme as one which seeks to provide a right of recovery to persons injured in motor vehicle accidents where the accident is "blameless" in the sense that fault cannot be sheeted home to any person such as to support a cause of action at law.

50The respondent then submitted that Divisions 1 and 2 of Part 1.2 create different entitlements and, in the case of children, alternative entitlements. Thus Division 2 entitles a child up to the age of 16 years to a "special entitlement" to recover limited damages even if the child is at fault, this being a reference to s 7K(1). It was submitted that a comparison of Divisions 1 and 2 evidences a distinction between a motor accident not caused by the fault of the driver of the relevant vehicle but caused by the conduct of the injured child (the "special entitlement" provisions) and a motor accident where no one is at fault (the "blameless motor accident" provisions). It was contended that the latter provisions do not expressly provide for any entitlement under Division 1 when the injured person is at fault. This is so, but, with respect, it begs the question.

51The respondent placed reliance upon the principles of statutory interpretation articulated by McHugh, Gummow, Kirby and Hayne JJ in Project Blue Sky at [69] - [71]. It is not inappropriate to repeat the relevant parts of those paragraphs (omitting footnote references):

[69] The primary object of statutory construction is to construe the relevant provision so that it is consistent with the language and purpose of all the provisions of the statute. . . . The meaning of the provision must be determined 'by reference to the language of the instrument viewed as a whole'. . . . In Commissioner for Railways (NSW) v Agalianos, Dixon CJ pointed out that "the context, the general purpose and policy of a provision and its consistency and fairness are surer guides to its meaning than the logic with which it is constructed". Thus, the process of construction must always begin by examining the context of the provision that is being construed. . . .

[70] A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals. Where conflict appears to arise from the language of particular provisions, the conflict must be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve that result which will best give effect to the purpose and language of those provisions while maintaining the unity of all the statutory provisions. . . . Reconciling conflicting provisions will often require the court 'to determine which is the leading provision and which the subordinate provision, and which must give way to the other' . . . Only by determining the hierarchy of the provisions will it be possible in many cases to give each provision the meaning which best gives effect to its purpose and language while maintaining the unity of the statutory scheme.

[71] Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision. . . .

52It was submitted that the first sentence of [69] recorded above militates against the first appellant's submission that the word "fault" in s 7K(1) should be given a different meaning from its use in s 7A. As I understand the submission, it was that, working backwards as it were, the word "fault" in s 7K(1) was a clear reference to contributory negligence so that it followed that its use in s 7A must also include contributory negligence on the part of the injured person. However, it should not be overlooked that s 7K(1) only applies to a child, whereas s 7A applies to both adults and children.

53It was then submitted that the word "negligence" has an everyday, as well as a legal, meaning. In support of that submission, reliance was placed upon the decision of McKechnie J, with whom Wallwork and Owen JJ agreed, in Insurance Commission of Western Australia v Leigh [2001] WASCA 232. That case concerned the construction of the following words of a statutory third party policy issue under the Western Australian Motor Vehicle (Third Party Insurance) Act 1943:

To insure the owner of the vehicle mentioned in the policy and any other person who at any time drives that vehicle . . . in respect of all liability for negligence . . . in respect of the bodily injury to any person directly caused by, or by the driving of, the vehicle.

54The issue which arose in that case was whether the word "negligence" in the statutory policy was confined to tortious negligence. McKechnie J dealt with this issue in the following terms:

[41] The word "negligence" is susceptible of different meanings depending on its context.

[42] One meaning refers to the rights which accrue when there is a breach of duty of care which in turn causes damage to another. These rights may be pursued in an action at law. When so pursued it is common and correct to refer to the action as a claim in tort for negligence.

[43] Another usage of the word, both in common speech and in law, is as a noun describing general neglect, carelessness or failing to exercise reasonable care. When qualified by the adjective "contributory", negligence assumes this second meaning.

[44] The use of the word "negligence" in the Act and the policy is of that character. It is not a term limited to the tort of negligence but encompasses any duty to take reasonable care, limited only by the nexus with motor vehicles.

55It was submitted that any "negligence" on the part of the first appellant might ordinarily be qualified by the word "contributory" so that the word "negligence" in the definition of "fault" in s 3 of the Act should be construed in accordance with the broader meaning "as a noun describing general neglect, carelessness or failing to exercise reasonable care".

56The difficulty of adopting the approach of McKechnie J is that when his Honour was construing the word "negligence" it was used in the phrase "in respect of all liability for negligence . . . in respect of the death of or bodily injury to any person". In the present case, s 3 defines "fault" as "negligence or any other tort". It is the expression "or any other tort" that distinguishes the present case from that with which his Honour was dealing.

The First Appellant's submissions should be accepted

57In Wilson v State Rail Authority of NSW [2010] NSWCA 198, Allsop P, with the agreement of Giles, Hodgson, Tobias and Macfarlan JJA, summarised at [12] the relevant principles of construction applicable to a case such as the present in the following terms (omitting citations):

I am mindful that any initial engagement with enactment history and context might be misunderstood as part of any enquiry as to the subjective intent of legislators or policy advisers so that such divined intent can be transferred to the words used by Parliament. Such an enquiry would be misdirected. It is the language of Parliament that must be interpreted and construed . . . However, as is now beyond dispute, in construing an Act, a court is permitted to have regard to the words used by Parliament in their legal and historical context. Context is to be considered in the first instance, not merely when some ambiguity is discerned. Context is to be understood in its widest sense to include such things as the existing state of the law and the mischief or object to which the statute was directed. These are legitimate means of understanding the purpose of the Act and of the relevant provisions, against which the terms and structure of the provisions and the Act, and a whole, are to be understood. Fundamental to the task, of course, is the giving of close attention to the text and structure of the Act, as the words used by Parliament to effect its legislative purpose. Nevertheless, general words, informed by an understanding of the context, and of the mischief to which the Act is directed, may be constrained in their effect.

58The principles of construction to which the President referred require consideration of the existing state of the law and the mischief or object to which Part 1.2 of the Act is directed and the structure of the Act in terms of the words used by the Parliament to effect its legislative purpose. As to the former, prior to the Amending Act, a person injured in a motor vehicle accident could only recover damages where he or she could establish "fault" on the part of the driver of the vehicle. In its context and given that the definition of "fault" has been in the Act since its inception, there can be no doubt that the legislation was directed to fault giving rise to a cause of action for damages. The stated purpose of the Amending Act was to provide compulsory third party scheme entitlements to persons injured in motor vehicle accidents where there was "no fault" in the sense that the driver of the motor vehicle involved in the motor accident could not be made tortiously liable to the injured person for damages.

59As to the second consideration, the first thing the Amending Act did was to change the definition of "injury" and "motor accident". As noted at [14] above, the former was originally defined to mean, relevantly, "personal or bodily injury caused by the fault of the owner or driver of a motor vehicle ...". It is apparent that in that definition "fault" is being used in the sense of a tort. It and the other provisions of the Act to which I refer in the next paragraph (and which were relevantly unaffected by the Amending Act) were and still are concerned with a driver's liability to a person injured in a motor accident. The definition of "fault", in my view, more than bears that out. The words "or any other tort" can only refer to any tort other than the tort of negligence.

60Apart from the plain words of the definition of "fault", the governing provision for the application of the Act (apart from Part 1.2) to a claim for damages by a person injured in a motor accident is s 3A(1) of the Act, the terms of which I repeat:

This Act . . . applies only in respect of the . . . injury to a person that is caused by the fault of the . . . driver of the motor vehicle . . .

The expression "fault of the . . . driver" is used in the following sections of the Act apart from its use in Part 1.2: ss 3A(1), 3B(2)(c), 10, 21(1), 22(2), 23(1), 33(1), 34(1), 35(1), 71(1)(d), 83(2)(c),112(1)(a), 122(1) and 145(1). These provisions emphasise the continuation of the fault based scheme whereby a person injured in a motor vehicle accident can claim damages where the accident is caused by the tortious conduct of, relevantly, the driver of the relevant vehicle.

61In the application of the Project Blue Sky principles, one can accept the necessity to adopt a construction of a particular provision or word in a provision that is consistent with the language and purpose of all provisions in the relevant statute. Equally, those provisions must be construed on the prima facie basis that they are intended to give effect to harmonious goals. But as is pointed out in Project Blue Sky at [70], where conflict appears to arise in the language of the particular provisions, that conflict must be alleviated, as far as possible, by adjusting the meaning of the competing provisions to give that result which will best give effect to the purpose and language of the provisions in question. Importantly, reconciling conflicting provisions will often require the court to determine which is the leading provision and which is the subordinate provision.

62For a better understanding of the definition of "blameless motor accident" in s 7A, it is appropriate, as McHugh J observed in Kelly at [103], to read the words of the relevant definitions into the substantive enactment and then construe the provision as so extended. Relevantly, s 7A, when extended by the definitions of ""motor accident" and "fault" would then read as follows:

blameless motor accident means an . . . accident involving the use . . . of a motor vehicle that causes . . . injury to a person where the . . . injury is a result of and is caused during the driving of the vehicle . . . [but] is not caused by the negligence or any other tort of the driver of [the] vehicle involved in the accident or the negligence or any other tort of any other person.

63The evident purpose of the addition of the words "and not caused by the fault of any other person" is to render Division 1 inapplicable to a situation where, although the motor accident is not caused by the "fault" (as defined) of the driver of the relevant motor vehicle, the accident is caused by the "fault" of a third party. Where such fault exists, the injured person would be entitled to pursue that third party for damages in the usual way. In those circumstances there is no necessity for the injured person to claim damages pursuant to Division 1 of Part 1.2 as the tortious third party can be made liable for damages which would not be modified under Chapter 5 of the Act, subject only to any applicable provisions of the Civil Liability Act 2002. In my opinion, such an approach is consistent with the purpose or object of the no fault provisions of Division 1 of Part 1.2 of the Act as explained by the Minister in his Second Reading Speech.

64It is true that a construction of s 7A which includes only a motor accident caused by the tortious negligence or other tort of the driver of the relevant vehicle or any third party is inconsistent with the use of the word "fault" in s 7K(1) where it can only refer to a child's contributory negligence in the conventional sense. There can be little doubt that this is an anomaly. It is the only example where the word is used in a sense different to that used in every other provision of the Act where the word is to be found. The principles of construction require that conflict to be resolved by interpreting the word "fault" in s 7K(1) to mean, as it clearly does, contributory or non-tortious negligence. As I have said, this is an anomaly that is dictated by the context in which the word "fault" is used not only in the various provisions of Part 1.2 but also in the other provisions to which I have referred and, in particular, ss 3A and 122(1).

65In addition to a consideration of the word "fault" in s 7A an issue arose as to whether "any other person" in s 7A includes the first appellant. The respondent submitted that the word "other" distinguishes a third party from the owner or driver of the relevant vehicle, there being nothing in the phrase "any other person" which requires it to be construed as excluding the injured person. The respondent further submitted that it was evident from the Second Reading Speech that there was no intention on the part of legislature to exclude that person.

66In my opinion, the respondent's submission cannot be sustained. This is because the phrase "any other person" cannot be divorced from its context. Once it is accepted that the expression "fault of any other person" refers only to the tortious conduct of that person, it must follow that the "person" referred to cannot include the injured person whose "fault" in the form of non-tortious contributory negligence is excluded from the definition of "blameless motor accident" in s 7A. That conclusion is reinforced once the words of the definition of "fault" are inserted into the definition of "blameless motor accident" in the manner suggested by McHugh J in Kelly, at [103] (see at [62] above). When the definition of "blameless motor accident" is read this way, it is evident that the expression "any other person" excludes the person who has been injured.

67The respondent then submitted that if the first appellant's construction of s 7A is adopted, Division 2 would never be engaged for notwithstanding that an injured child was guilty of contributory negligence, that child would still be entitled to claim damages under Division 1. The answer to this potential conundrum is two fold. First, as a matter of precedence Division 1 should take priority over Division 2. The latter is only relevant if Division 1 is not engaged. The question of contributory negligence on the part of a child or, for that matter, an adult, is accommodated by s 7F in Division 1 subject to the limitation provided for in s 7P(2).

68Secondly, where the fault of the driver of the relevant vehicle causes the motor accident, the injured plaintiff can claim Chapter 5 damages under the Act and is assured of receiving the damages awarded to him or her because of the applicable third party policy covering that driver. The same cannot be said where, within the meaning of s 7A, the fault of a third party is found to be the cause of the motor accident. That third party may or may not be insured and, therefore, may or may not be in a position to meet any damages that may be awarded to the injured plaintiff. If that third party is a person of straw or otherwise uninsured and/or unable to meet an award of damages, then it would be open to the injured plaintiff, if a child, to engage Division 2. He or she would be entitled to do so, as the provisions of s 7J(1) would be satisfied, namely, that the motor accident was not caused by the fault of the relevant driver. Thus Division 2 has work to do in such circumstances.

69Finally, the respondent raised an alternative argument during oral submissions in order to meet that proposition that the definition of "fault" did not include the non-tortious conduct of the first appellant. It was submitted that theoretically the respondent could have instituted proceedings against the first appellant for the cost of repairing the damage to his vehicle on the basis that she owed him a duty of care which she had breached. In this way, the respondent sought to establish that the first appellant was disentitled from bringing her claim under Division 1 of Part 1.2.

70However, the respondent accepted that this argument had not been raised at trial as a separate argument. To raise it on the appeal, the respondent needed to file a notice of contention. No such notice was given or foreshadowed. It therefore cannot be raised and in any event in my view is devoid of merit.

71In my opinion, therefore, subject only to the anomaly of s 7K(1), it follows that the primary judge was in error in construing the word "negligence" in the definition of "fault" for the purposes of s 7A as including non-tortious negligence such as the first appellant's contributory negligence. Accordingly, in my view the first appellant is entitled to rely upon Division 1 of Part 1.2 of the Act and to claim damages under Chapter 5 of the Act.

The issue of contributory negligence

72Notwithstanding that the first appellant's claim under Division 1 of Part 1.2 of the Act succeeds, nevertheless s 7F requires consideration of whether there should be a reduction of the first appellant's damages by reason of her contributory negligence, noting that any such reduction cannot apply to those heads of damage referred to in s 7J(3). It would follow that the only heads of damage affected by s 7F are those of future economic loss and non-economic loss.

The decision of the primary judge on contributory negligence

73The primary judge dealt with this issue in case she was wrong in her finding that the first appellant was not entitled to claim damages under Division 1. At [39] to [49] of her Honour's reasons she set out the relevant facts which I have summarised at [4] - [7] above. At [50] she noted that the issue was the extent to which the accident was caused by the first appellant's negligence. That question was required to be answered by reference to what one could expect of an ordinary child of the first appellant's age: McHale v Watson (1966) 115 CLR 199. The test is an objective one.

74Her Honour's findings relevant to the present issue commence at [55] of her reasons where she observed:

The defendant tendered material which showed that in the years up to and including Year 9 (being the year the plaintiff was in at the date of the accident), children are taught, as part of the usual school curriculum, various principles of road safety. The defendant established, by the tender of such materials, that children who receive instruction in accordance with such material would appreciate, before they reached Year 9, two fundamental principles: first, that one should not cross the road without looking in both directions to make sure that the road is clear; and secondly, that when one alights from a bus, one ought wait until the bus has departed before one attempts to cross the road. The material of this nature that was tendered by the defendant was produced on subpoena by both St Matthew's Primary School and Bede Polding College, being the primary and secondary schools that the plaintiff attended.

75At [59] - [62], her Honour set out the evidence of the first appellant's sisters which supported her findings at [55], namely, that not only at primary and high school was it reinforced that children ought to wait for a bus to leave before attempting to cross the road, a similar message was imparted to the first appellant's sisters by their parents.

76The primary judge's findings on "fault" at [65] involved the acceptance of the evidence of a Mr Griffiths, a Biomedical and Mechanical Engineer, that an ordinary child of 14 years ought not to have crossed the road as the first appellant did. Her Honour continued:

Not only did she not wait until the bus on which she had been travelling had departed so as to clear a line of sight of oncoming traffic, but she ran across the road at such a rate, when she could not see the side of the road where the [respondent] was, that she was unable to stop in time to avoid colliding with the [respondent's] vehicle. Had she been less than ten, there may have been a question whether she could be said to be blameless because an ordinary child of ten would not be capable of appreciating the consequences of crossing the road in that manner. But the plaintiff was already 14 on the day of the accident. Her conduct was the result of carelessness, not youth. Accordingly the accident was not a "blameless accident" because it was caused by her fault. She is therefore not entitled to damages under Division 1 of Part 1.2 of the Act.

77At [69] her Honour noted a concession on the part of the first appellant that there was material from which she could infer contributory negligence on the first appellant's part. Her Honour then referred to s 5R of the Civil Liability Act and s 5S which authorised the reduction of damages for contributory negligence by 100 percent in an appropriate case.

78Her Honour then referred to the well known passage in the judgment of Gibbs CJ, Mason, Wilson, Brennan and Deane JJ in Prodrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 (at 494) which, in a normal case, requires an apportionment as between the plaintiff and defendant of their respective shares in the responsibility for the damage and which involves a comparison both of culpability and of the relevant importance of the acts of the parties in causing that damage.

79Her Honour then proceeded to find that the respondent was not only blameless but that his driving accorded in all respects with reasonable standards. Accordingly, it could not be said that he caused the accident in any material legal sense. He was simply in the wrong place at the wrong time. At [78] she therefore found that the first appellant's disregard for her own safety to be the sole cause of the accident. Upon the basis that her interpretation of s 7A was erroneous, she would have found that the first appellant's damages ought be reduced by 100 percent.

The parties' submissions on the issue of contributory negligence

80The first appellant submitted that the primary judge's approach to the issue of contributory negligence was flawed in principle notwithstanding her finding that she was the sole cause of the accident thereby justifying a reduction of the damages by 100 percent pursuant to s 5S of Civil Liability Act. It was submitted that her Honour erred in failing to take account of the deeming provision of s 7B(1) wherein the relevant injuries to the first appellant were deemed to have been caused by the fault of the respondent. Furthermore, a "blameless motor accident" is still one which is caused by the use or operation of a motor vehicle and the respondent was responsible therefore. Even though he was found not to be negligent in his driving of the vehicle, nevertheless he was deemed to be negligent and, therefore, that negligence had to be weighed up against that of the first appellant in accordance with the approach adumbrated by the High Court in Prodrebersek.

81As noted above, the first appellant conceded that she should fairly be held to be a contributor to her own injuries to some extent. She contended that an appropriate apportionment should not exceed 33 percent. Her conduct, it was submitted, involved a moment of inadvertence on her part on a non-busy rural road in circumstances where she was aware that the vehicle driven by Mr Daniels which was following the school bus had stopped to let her pass in front of it. Furthermore, one is required to be mindful of the reality that the culpabilities of the parties can have little weight in what is a no-fault scheme. This notwithstanding, the relative damage that can be caused to a child by a motor vehicle travelling at 40 kph needs to be taken into consideration. As the respondent was deemed to be at fault and as the driving of a motor vehicle of that speed is always likely to cause serious damage to a child pedestrian if they collide, the appropriate apportionment should favour the first appellant.

82The respondent submitted that notwithstanding the provisions of s 7B, the "deeming" of the respondent to be at fault does not create "culpability" or "a departure from the standard of reasonable care" which were the considerations required to be taken into account by the High Court in Prodrebersek. There was therefore no culpable conduct on the part of the respondent "which must [or could] be subjected to comparative examination". Accordingly, it was contended that once one abandons the concept of "comparative examination" of the conduct of the first appellant and the respondent, there was no basis for disturbing the finding of the primary judge of contributory negligence of 100 percent. In other words, the comparative examination of culpability in Prodrebersek has no part to play in the circumstances of the present case. Contributory negligence is to be assessed simply on the basis of the first appellant's own conduct which, in the present case, was, as her Honour found, the sole cause not only of her injuries but of the accident itself.

Resolution of the issue of contributory negligence

83I would accept the respondent's submission that the exercise called for in Prodrebersek can have no application to a case such as the present. Part 1.2 of the Act proceeds upon the assumption that the defendant driver is not at fault. Accordingly, comparisons of culpability and of the relevant importance of the acts of the parties in causing the first appellant's injuries is inappropriate.

84I would also accept the respondent's submission that the deeming provision of s 7B(1) has no part to play in the present exercise. That is because it is simply impossible to determine the degree of fault which is to be attributed to the driver which, as submitted by the respondent, may be assumed to be minuscule. Although I accept that submission, it does no more than illustrate the inappropriateness of applying the principles in Prodrebersek.

85It follows that the concept of "contributory negligence" in s 7F of the Act has to be applied in a different manner to the usual comparative analysis of responsibility undertaken in personal injuries cases. This can be done consistently with the objectives of the legislation by inquiring how far the plaintiff has departed from the standard of care he or she is required to observe in the interests of his or her own safety. The reduction of damages under Division 1 of Part 1.2 by reason of contributory negligence will therefore be determined by assessing the extent to which the plaintiff departed from that standard.

86It is for this reason that I do not accept the respondent's submission that the first appellant, being the sole cause of the accident and her injuries, mandates a finding of contributory negligence of 100 percent. On the respondent's argument, a plaintiff guilty of contributory negligence in a "blameless motor accident" case must always be the sole cause of his or her injuries with the consequence that in every case there would be a finding of 100 percent contributory negligence. The legislature could not have intended such a result.

87In my view one obtains some guidance as to the appropriate approach from what was said by McHugh J in Joslyn v Berryman [2003] HCA 34; (2003) 214 CLR 552 at [34] where his Honour referred to

the established rule that "[i]n theory, a plaintiff is required to conform to the same standard of care as a defendant, with due allowance for the fact that here the enquiry is directed to what is reasonable for his own safety rather than the safety of others". No one would now suggest that the standard of care expected of a defendant is that which the defendant 'is in fact capable of'. To introduce such a standard into the law of contributory negligence would not only contradict the objective test of contributory negligence, it would impose on tribunals of fact the almost insuperable task of determining what standard of care the plaintiff was 'in fact capable of'.

88In my opinion the degree of the first appellant's contributory negligence can, in a case such as the present, only be assessed upon the basis of a value judgment as to the extent to which her conduct failed to conform to the standard of care expected of a 14 year old girl in her position. Although I accept the primary judge's findings as to the school and parental admonition that upon alighting from a school bus, no attempt should be made to cross the road until the bus drives off and it can be ascertained that there is no on-coming traffic, nevertheless, even looked at objectively, one cannot postulate that a 14 year old girl, no doubt keen to get home, would in every case adhere to the admonition referred to.

89Thus in the Second Reading Speech to the Amending Act, one of the purposes of the no fault provisions was to cater for the unsatisfactory situation "when children are penalised for behaving as children do". In the present case, the first appellant behaved as a 14 year old girl might well do, notwithstanding that in so doing she departed from the standard of care for her own safety which the law imposed upon her. Nevertheless, in all the circumstances, that ought not to have led to a finding of contributory negligence of 100 percent.

90There is no doubt that a determination of the appropriate percentage by which the first appellant's damages should be reduced due to her contributory negligence involves, in a case such as the present, an evaluative judgment on which minds may differ. But that is the natural consequence of the statutory task imposed by Part 1.2 on the court. Taking into account all of the circumstances to which reference has been made, in my view the first appellant's damages should be reduced due to her contributory negligence by 50 percent. It was accepted by the second and third appellants that that percentage reduction should apply to their nervous shock claims pursuant to the operation of s 30(3) of the Civil Liability Act.

Conclusion

91For the foregoing reasons, in my opinion the first appellant's claim under Division 1 of Part 1.2 of the Act succeeds subject to the reduction of any damages to which she is entitled (other than s 7J(3) damages) by 50 percent. The second and third appellants are also entitled to succeed subject to the same reduction. It therefore follows that the appeal of all three appellants should be allowed.

92I would therefore propose the following orders: