Axiak b.h.t. D. Axiak v Ingram

Supreme Court of NSW|2011-11-22|Before: Adamson J

Judgment 1The plaintiff brings a claim through her tutor for damages for injuries she sustained in a motor vehicle accident on 26 June 2008. The plaintiff, with her younger sister, Mikaela, alighted from a school bus which was travelling north along Sackville Road, Ebenezer. The plaintiff was struck by the defendant's vehicle as she crossed onto the eastern side of the road. She suffered catastrophic injuries. I was informed by Mr Campbell, senior counsel for the plaintiff, that she has qualified for the Lifetime Care and Support program because of the gravity of her injuries.

The statutory basis for the plaintiff's claim 2The plaintiff has, by the filing of an Amended Statement of Claim on 15 September 2011, abandoned any allegation of fault on the part of the defendant. Rather, she alleges that the accident was a blameless accident within the meaning of s 7A of the Motor Accidents Compensation Act 1999 (NSW) ( the Act ), which forms part of Division 1 of Part 1.2 of the Act. That Part makes provision for "No-fault claims - children and blameless accidents" and comprises two Divisions: Division 1, entitled "Recovery for blameless accidents", and Division 2, entitled "No-fault recovery by children". 3Section 7A of the Act defines "blameless accident" in the following terms: "... 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." 4Section 7B provides that the effect of an accident being found to be a "blameless accident" within the meaning of s 7A is that the plaintiff's injuries are deemed to be the result of the defendant's fault. Effectively, this gives the plaintiff the same right to damages as if the defendant had been negligent. 5Section 7C provides that an averment by the plaintiff that the accident was a blameless accident is evidence of the fact in the absence of evidence to the contrary. Section 7D provides that Division 1 of Part 1.2 applies to accidents which occurred after the commencement of the Division. The Division commenced on 1 October 2007 and therefore applies to the accident the subject of the proceedings. Section 7E excludes from the operation of the Division recovery by any driver who caused the accident. Section 7F provides: "This Division does not prevent the reduction of damages by reason of the contributory negligence of the deceased or 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." 6Division 2 of Part 1.2 introduces a scheme whereby all children under the age of 16 who die or are injured in motor vehicle accidents are entitled to recover treatment and care expenses irrespective of whether they can establish fault on the part of the driver, and irrespective of whether they themselves were guilty of contributory negligence (except where the child's conduct probably constituted a serious offence, being an offence punishable by imprisonment of 6 months or more). 7The relationship between Divisions 1 and 2 is governed by s 7P, which provides: "(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 death of or 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)." 8It follows from s 7P that a child who has been the victim of a blameless accident is entitled to damages in accordance with Division 1. However, where the child is guilty of contributory negligence there is a reduction in the damages to which he or she is entitled, except where the damages relate to the heads of damage specified in s 7J(3), namely: "(a) hospital, medical and pharmaceutical expenses, (b) rehabilitation expenses, (c) respite care expenses, (d) attendant care services expenses, (e) funeral or cremation expenses" in which case there is no such reduction.

The plaintiff's contentions as to the proper construction of Division 1 9The plaintiff contends that she is entitled to damages under Division 1 because the accident was a blameless one within the meaning of s 7A, subject to any reduction for contributory negligence pursuant to s 7F. 10The plaintiff contends that the words "any other person" in the expression "not caused by the fault of any other person" exclude the plaintiff. Her primary submission is that contributory negligence does not amount to "negligence" and accordingly does not amount to "fault". 11The plaintiff relies on the definition of "fault" in s 3 of the Act which provides that "'fault' means negligence or any other tort". She says that this means that someone can only be at fault if he or she is a tortfeasor and that these words are not apt to include someone who is guilty of contributory negligence. She says that, having regard to the definition, there is no need to add words to s 7A to exclude the plaintiff, since the plaintiff is already excluded by the definition. Accordingly, even if her own negligence played some role in causing the accident, it cannot be said to have been caused by her fault. 12The plaintiff says further that s 7F provides for the consequences of her conduct and therefore the legislature must have contemplated that an accident could still be a "blameless accident" within the meaning of s 7A, in circumstances where the plaintiff has been guilty of contributory negligence. The plaintiff argues that this construction is required since otherwise s 7F has no work to do. In answer to the defendant's contention that s 7F has work to do if it is confined to contributory negligence which did not cause the accident (as to which see further below), the plaintiff says that this is an artificial, and unstated, limitation on the ambit of s 7F, which Parliament cannot have intended. 13The plaintiff seeks to fortify her argument that s 7A does not extend to the plaintiff's own fault by reference to s 7B. Mr Campbell submitted that s 7B not only deems an owner or driver who is not at fault to be at fault, but it also, by subsection (2), authorises apportionment between two blameless owners or drivers. The plaintiff argues that s 7B(2) provides a warrant for apportioning responsibility between the defendant, who while not at fault is deemed to be at fault, and the plaintiff who may be guilty of contributory negligence. Such an apportionment could be done, so the argument goes, by reference to "causal potency" rather than culpability, since the blameless defendant has, by definition no culpability, other than that which is deemed. 14Mr Campbell relied on following passage from Astley v Austrust Limited (1999) 197 CLR 1, at 11, per Gleeson CJ, McHugh, Gummow and Hayne JJ and in particular the sentence which is underlined: "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 added, citations omitted.] 15He says that because a pedestrian owes no duty to a speeding driver, there can be no doubt that the plaintiff in the instant case did not owe a duty to the defendant. Accordingly, the plaintiff submits that she could not have been at fault because she owed no duty to anyone that was breached and is not otherwise alleged to be a tortfeasor. 16The plaintiff referred to s 7K, which is in Division 2, which provides: "(1) This Division applies even if the death of or 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 death of or injury to a child if the court is satisfied that: (a) the death of or 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 death or injury or to the risk of death or injury. (3) A serious offence is an offence punishable by imprisonment for 6 months or more. (4) This section operates whether or not the child whose conduct is alleged to constitute an offence has been, will be or is capable of being proceeded against or convicted of any offence concerned. (5) There is to be no reduction of the damages provided for by this Division by reason of the contributory negligence of the deceased or injured person, except as provided by this section." 17The plaintiff concedes that the word "fault" when used in Division 2 in s 7K is apt to include contributory negligence, including contributory negligence which does not involve the party being in breach of any duty owed to another. The plaintiff accepts that Divisions 1 and 2 were part of the same legislative package and were introduced to Parliament at the same time, although their commencement dates were different. 18The plaintiff submits that, even though the word "fault" is used in Division 2 to include contributory negligence, it ought not be found to bear the same meaning in Division 1. The plaintiff contends that the context in which the word "fault" appears in Division 2 is sufficient to displace the definition in s 3, but it is not sufficient to displace it in Division 1. She also submitted that this reading of s 7K was consistent with s 7A and that the words "was caused by" in s 7K means "was caused solely by". The plaintiff further submitted that although there may be ambiguity in s 7K, this ambiguity did not affect s 7A, whose meaning is clear, having regard to the definition in s 3. 19The plaintiff contends that Division 1 of the Act is designed to extend the no-fault system to confer general rights to damages on plaintiffs where the owner or driver of a motor vehicle was not at fault and there is no other relevant tortfeasor who is implicated in the accident. She says that the plaintiff's contributory negligence, even if it was a cause of the accident, does not disentitle her from the benefits of Division 1 and can be taken into account in an adjustment, if need be, for contributory negligence pursuant to s 7F. 20Mr Campbell pointed to s 5(1)(b) of the Act which provides that one of the objects of the Act is "to provide compensation for compensable injuries in motor accidents, and to encourage the early resolution of compensation claims" and contended that this warranted a beneficial construction being given to the Act in favour of the plaintiff in accordance with general principles. He also relied on s 6 of the Act which provides that an interpretation that would promote the objects of the Act ought be preferred to one that does not.

The defendant's contentions as to the proper construction of Division 1 21The defendant, by his senior counsel Mr Rewell, submits that the expression "and not caused by the fault of any other person" in s 7A includes the fault of the plaintiff. He says that if the plaintiff's own negligence, namely contributory negligence, was a cause of the accident, the accident cannot be a "blameless accident" and Division 1 does not apply. The defendant says further that any degree of causal fault is sufficient to disqualify the accident from being a "blameless accident" and therefore disentitle the plaintiff from the benefits otherwise available under Division 1. 22The defendant submits that the scheme of the Act is that a plaintiff who has been injured in a motor vehicle accident is entitled to damages under Division 1 if, and only if, the accident was not caused by the fault of the owner or driver, the fault of the plaintiff, or the fault of any third party. If the motor vehicle accident was caused by the fault of the owner or driver of the motor vehicle, then the plaintiff is entitled to damages as provided for by the rest of the Act. If the motor vehicle accident was caused by the fault of a third party, but not the owner or driver of a motor vehicle, then the plaintiff is left to claim against that third party. If the motor vehicle accident was caused, in whole or in part, by the plaintiff's fault, the plaintiff, if a child, will be entitled to damages pursuant to Division 2 of Part 1.2 of the Act, but not Division 1. If the plaintiff was guilty of non-causative contributory negligence, and neither the defendants nor any other person was at fault, the plaintiff will be entitled to damages under Division 1 which are discounted to take account of the plaintiff's contributory negligence, except for those heads of damage for which provision is made in Division 2. 23The defendant says that Divisions 1 and 2 of Part 1.2 were part of a package of measures designed to give additional protections over and above what would otherwise be available in a fault-based scheme. He referred me to the following passage from the Second Reading Speech and submitted that it could be used, consistently with Harrison v Melhem (2008) 72 NSWLR 380, to ascertain the purpose of the legislation and the mischief with which it was to deal: "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. However, if that driver is catastrophically injured an application for entry to the Lifetime Care and Support Scheme may be made. Part 1.2 also provides a special benefit for children aged up to 16 and a resident of New South Wales at the time of the accident, in those circumstances where the driver of the motor vehicle involved in the accident was not 'at-fault'. The child's injury must be caused by a motor vehicle accident of a kind recognised by the Act. The special benefit will cover the injured child's treatment, rehabilitation and care costs as currently prescribed by the Act. These expenses will be met on an 'as incurred' basis, in the same way that these payments are currently made to other scheme claimants. There will also be entitlement for any treatment and care required in the future. The special benefit also extends to cover burial expenses in cases where the child is killed. The special benefit will not be available to children killed or injured in a motor vehicle accident which occurred in the course of conduct which would constitute a serious offence and which materially contributed to their death or injury. In the event a child is injured in a motor vehicle accident where there was no-one at fault, entitlements under the new blameless accident provisions would take precedence." New South Wales Legislative Assembly, Parliamentary Debates (Hansard), 9 March 2006, at 21403-21404. 24The defendant submitted that it would be artificial to construe the word "fault" in s 7A as excluding the plaintiff, just as it would be artificial to construe the word "negligence" in s 3 as excluding contributory negligence. He said that whether a person is the plaintiff or the defendant in proceedings may be a matter of fortuity and in these cases the word "contributory" does not more than direct attention to the party whose negligence is under consideration. He cited March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 as an example. 25The defendant also said that "contributory negligence" is sometimes referred to as "the plaintiff's negligence", although it covers (as the High Court said in the passage in Astley referred to above) not only situations where a plaintiff could be said to be in breach of a duty owed the defendant, but also situations where a plaintiff can be said to have acted in disregard of his or her own safety. 26Mr Rewell submitted that such a reading of "fault" was consistent with the way the word was used in Division 2, and in particular s 7K, where it obviously referred to contributory negligence. 27Mr Rewell submitted that s 7E does not affect the construction of Part 1.2 as it arises in the instant case, except in so far as it fits harmoniously with the driver being deemed (by s 7B) to be at fault and therefore being unable to recover for his or her own injuries. It also fits within a third party compensation scheme. 28The defendant says further that this construction still leaves work for s 7F to do because it covers matters which amount to lack of care for the plaintiff's own safety, but which did not themselves cause the accident. The defendant instanced the failure by a passenger in a motor vehicle to wear a seat belt or the failure by a pillion passenger or a cyclist to wear a helmet. He says that this does not create an artificiality in s 7F since there is no need to apply a gloss to the expression "contributory negligence" in s 7F because the only instances in which s 7F will apply are those where the plaintiff's own negligence has not caused the accident, since, had the plaintiff's negligence contributed to the accident, the accident would not be a "blameless accident" within the meaning of s 7A.

Findings and reasons for decision on the construction of Division 1 29For the reasons which follow, I accept the defendant's construction of Division 1. 30The primary object of statutory interpretation is to construe the provisions of a statute in such a way as to be consistent with the language and purpose of all the provisions of the statute: Project Blue Sky Inc v Australian Broadcasting Authority (1988) 194 CLR 355, at [69] and [71] per McHugh, Gummow, Kirby and Hayne JJ. This means that the statute must be construed as a whole and effect must be given to the words of each provision. 31Words 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). 32Although there are instances where a court will read a statute as if it contained additional words, the circumstances in which this is appropriate are rare. A court would have to be satisfied of the intended purpose of the statute, the failure of Parliament and the draftsperson to give effect to that purpose, and of the substance of the provision Parliament would have made but for its inadvertence or drafting error: Cooper Brookes (Wollongong) Pty Limited v Federal Commissioner of Taxation (1981) 147 CLR 297, at 306-307 per Gibbs CJ, at 310-312 per Stephen J and at 322 per Mason and Wilson JJ; Minister for Immigration and Citizenship v SZJGV (2009) 238 CLR 642, at 651-652 per French CJ and Bell J. 33I 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. Nor do I consider that s 7K can properly be read as if it said "caused solely by the fault of the child", instead of "caused by the fault of the child". 34If 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. 35The 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. 36This 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. 37It follows from my interpretation of Division 1 that if I find the plaintiff to have been at fault, whether wholly or partly for the accident in which she was injured, she is not entitled to damages under Division 1. 38I propose to consider the evidence of the circumstances surrounding the accident, and to make findings accordingly.

The accident: the impact and the surrounding circumstances 39The plaintiff, who was born on 13 March 1994, was 14 at the time of the accident. Her sister, Mikaela, born on 9 September 1995, was 12. They were in years 9 and 7 respectively at the Bede Polding College. Because the Axiak family lived on the eastern side of Sackville Road, it was necessary for the plaintiff and her sister to cross the road, from the point where the bus stopped to let them off, to get home. At that point Sackville Road had one lane in either direction. There were double unbroken lines along the middle of the road, which signified that overtaking was not permitted. The area was residential in that there was a number of dwellings but it was also somewhat rural since there were farms and paddocks in the vicinity of the houses. 40A school bus, which was carrying the plaintiff and her younger sister, Mikaela, stopped opposite the family's home on Sackville Road, at about four o'clock in the afternoon to permit the girls to disembark. Sackville Road does not have a sealed shoulder at the point at which the plaintiff and her sister were dropped off. The weather was fine and the road surface was dry on that day. 41Mr Daniels, the driver of the vehicle which was following the bus, estimated that when the bus pulled in to stop, 3/4 of the bus was still on the road, and only 1/4 was on the dirt shoulder. 42The plaintiff and her sister did not, as a general rule, catch the school bus in 2008. Their eldest sister, Calina, who was doing the Higher School Certificate, had recently obtained her licence. Either Calina or her boyfriend would generally pick them up from school, but on the day of the accident, she had another engagement and the younger girls caught the school bus home. However, in the previous year, 2007, the four girls had generally caught the bus home together. 43After having got off the bus, the sisters walked around to the back of the bus. A vehicle driven by Mr Daniels was following the bus and came to a stop behind the bus. Mr Daniels was familiar with the road and was unsurprised by the presence of the school bus, since two of his children travelled on that bus, and indeed were travelling on it that afternoon. The bus then pulled away until it was once again entirely on the sealed part of the road. 44Mr Daniels watched the girls crossing the road in the space between the bus and his vehicle. In a statement which he prepared on the evening of the accident, he wrote: "... saw a bus leaving the curb [sic] opposite 728 Sackville rd as the bus pulled away two girls approx 12 and 14 years old ran behind the bus, I believe watching me coming but not watching the other way." 45Mr Daniels gave oral evidence that the two girls darted behind the back of the bus between his vehicle and the bus. He also said that they ran. 46The defendant, Mr Ingram, was driving in a southerly direction. He was familiar with the road since he regularly used it to travel to work. His then girlfriend, Nikki Peirson, was a passenger in the front seat. When he came around a curve in Sackville Road, he saw the bus and slowed in what the parties agree was an acceptable manner, from the applicable speed limit of 80 kms per hour to 40 kms per hour. Any view of the girls that he might otherwise have had was completely obscured by the bus. 47The defendant first saw the girls when they emerged from behind the bus. The plaintiff, who was slightly ahead of her sister, ran straight in front of the defendant's vehicle. Although the defendant braked straight away, he could not get his foot onto the brake before the collision happened. The plaintiff's body was struck by extreme right of the bonnet; she was propelled onto the bonnet, hit and fractured the extreme right hand side of the upper part of the windscreen of the defendant's vehicle and then came off the bonnet and landed on the side of the road beside the vehicle. 48Mr Ingram's evidence was relevantly unchallenged and was corroborated by that of Ms Peirson. 49Ms Peirson said that, when she first saw the plaintiff, she was running and looking the other way. She said that when the plaintiff saw the defendant's vehicle she tried to stop 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. She said that the leg that the plaintiff led with as she was running was the part that hit the defendant's vehicle. She saw, in the split second before the impact, the plaintiff looking in the direction of the defendant for the first time.

The evidence of what a reasonable child of the plaintiff's age would have appreciated 50In determining whether, and to what extent, the accident was caused by the plaintiff's negligence, the question arises what could be expected of an ordinary child of the plaintiff's age: McHale v Watson (1966) 115 CLR 199. The test is an objective one. If conduct such as the plaintiff's could reasonably be expected of an ordinary child of her age then the plaintiff may not be guilty of contributory negligence at all, and it could not properly be found that her fault caused or contributed to the accident. However, even though Mr Campbell did not expressly concede that there was some fault on the part of the plaintiff, he only faintly advanced the proposition that an ordinary child of the plaintiff's age could reasonably have been expected to act as she did. Rather, he put that her age was relevant to the reduction that ought be made to her damages. 51There are three principal sources of evidence that are potentially relevant to the question what could be expected of an ordinary child of the plaintiff's age: (a)The expert evidence of Mr Griffiths, a biomedical and mechanical engineer; (b)The evidence of what was taught in schools in NSW about road safety to children up to the age of the plaintiff at the time of the accident, including materials from the RTA Road Safety Kit; (c)The evidence of the plaintiff's sisters, two of whom were older, and one of whom was younger, than her, as to what each understood as the relevant road safety principles. 52The gist of Mr Griffiths' evidence was that ordinary children aged less than ten years were not sufficiently mature to cross the road safely without adult assistance. He referred to research which established that the ability of children under ten to control their impulses and base decisions on long-term consequences is still immature, which meant that they ought not be permitted to cross roads unsupervised. However, after the age of ten, ordinary children can be expected to cross the road safely. 53Mr Griffiths gave evidence that an ordinary child of 14 without developmental difficulties would wait until a bus from which he or she had alighted had gone, move to a location where the child had a good view of traffic approaching from either direction and, when the road is clear, make the crossing. He said that this proposition did not depend on any road safety education having been given to the child. Indeed, he said the research for the proposition that a child over the age of ten should be able to cross the road without adult supervision was performed before the RTA road safety kit was developed. 54When cross-examined by Mr Campbell, Mr Griffiths agreed that a child of 14 years is still a child, and that a child of that age may be easily distracted and forget the lessons concerning road rules that he or she has learned. He responded to the proposition that was put to him in cross-examination that "a good kid can make a mistake on a given day", by saying, "Oh well, people make mistakes." 55The 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. 56In lieu of videotapes being tendered by the defendant, the plaintiff conceded that there were RTA videotapes available at the plaintiff's school, the effect of which was that one ought not cross the road until a bus has departed from the scene. 57There was no evidence to establish that the plaintiff had been present at any lesson where instruction as to these matters had been given. Mr Campbell submitted that the material was, accordingly, incapable of establishing whether the plaintiff, and her peers, received such instruction. Mr Rewell said that the evidence comprised compelling circumstantial evidence that the plaintiff and her peers had received such instruction and that I should find accordingly, in the absence of evidence to the contrary. 58In light of the evidence of the plaintiffs' sisters set out below and the evidence of Mr Griffiths, which I accept, I do not need to determine whether the plaintiff herself was instructed as to the matters contained in the road safety material tendered by the defendant. It is difficult to see how this matter is a relevant fact in any event since the test is an objective one. 59The evidence of the plaintiff's sisters is relevant, in so far as it provides some indication of the level of awareness of ordinary children of particular ages. The plaintiff's sisters attended St Matthew's Primary School and Bede Polding College, as had the plaintiff. 60The plaintiff's eldest sister, Calina, agreed that it was reinforced during primary school and in the early years of high school that if one got off a bus, one ought wait for the bus to leave before attempting to cross the road. She agreed that a similar message was imparted by their parents. 61The plaintiff's second sister, Antonia, who is older than the plaintiff, gave evidence that she was aware that if she got off a bus she should let the bus leave and drive away before checking both ways and then crossing the road. Although she could not identify where she had learned the road safety principle, she agreed that she would have known if not by the end of primary school, then definitely by early high school. 62The plaintiff's third sister, Mikaela, who is younger than the plaintiff, was in her first year of high school, Year 7, at Bede Polding College at the time of the accident. She agreed that even when she was at primary school she knew that when she got off the bus, she should allow the bus to leave before looking both ways before crossing the road. She agreed that she was reminded of this from time to time either by her parents or her teachers or both.

The parties' submissions on the effect of the plaintiff's age on her degree of culpability 63The defendant submitted that the evidence amply established that the plaintiff, in crossing the road as she did, before the bus had departed, and without looking, until it was too late, in the direction from which the defendant was coming, acted in disregard of her own safety and that this was if not the sole then at least a contributing cause of the accident. 64The plaintiff submitted that her age was a factor relevant to the assessment of what reduction, if any, ought be made to the plaintiff's damages by reason of her contributory negligence, such that the reduction was "just and equitable". As I have said above, s 7F will only apply if I find that the plaintiff was not at fault

Findings on fault 65I accept the evidence of Mr Griffiths that an ordinary child of 14 ought not have crossed the road as the plaintiff did. 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 defendant was, that she was unable to stop in time to avoid colliding with the defendant'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.

Contributory negligence; introductory matters 66On my interpretation of Division 1, s 7F operates only in circumstances where there is a blameless defendant on the one hand and a plaintiff whose own negligence has not caused the accident, but whose injuries have been made worse by his or her disregard for his or her own safety. 67However, I propose to assess any reduction for contributory negligence in the alternative, lest it be found by the Court of Appeal that my construction of s 7A in particular and Division 1 in general is in error. 68Although the plaintiff originally contended that the defendant had elected, by an amendment to his pleading, to abandon an allegation of contributory negligence, she accepted that, if the defendant amended his pleading, as he undertook to do, he could rely on the allegation. The plaintiff did not oppose leave being granted on 22 November 2011 to the defendant to file an amended defence to the amended statement of claim in which a reduction for contributory negligence was alleged in the alternative. 69I note that the plaintiff concedes that there is material from which I could infer contributory negligence on the part of the plaintiff. 70The standard of contributory negligence is governed by s 5R of the Civil Liability Act 2002 (NSW), which provides as follows: "(1) The principles that are applicable in determining whether a person has been negligent also apply in determining whether the person who suffered harm has been contributorily negligent in failing to take precautions against the risk of that harm. (2) For that purpose: (a) the standard of care required of the person who suffered harm is that of a reasonable person in the position of that person, and (b) the matter is to be determined on the basis of what that person knew or ought to have known at the time." 71A finding of contributory negligence is mandated in the circumstances provided for by s 138 of the Act, none of which applies in the instant case. Section 138 covers matters which may have caused the accident and others, such as failing to wear a seatbelt, which are not generally causative. 72Mr Campbell conceded that there was material on the basis of which I could reduce damages on account of the plaintiff's contributory negligence, but said that I should take into account the plaintiff's age and that she was a child at the time of the accident. He submitted that, even if her age was not sufficient to render her blameless, it was a factor to be taken into account since the assessment of reduction for contributory negligence must be "just and equitable". 73Mr Campbell further submitted that there was no necessary starting point that the plaintiff's and defendant's respective responsibilities for the accident should add up to 100%, since the statutory scheme was based on the proposition that the defendant was not at fault, and therefore there was necessarily no culpability on the part of the defendant. 74Mr Rewell submitted that the accident was wholly caused by the plaintiff's careless conduct and that therefore even if I accept the construction of s 7A for which Mr Campbell contends, I should reduce damages under s 7F by 100%. A reduction of damages by 100% is authorised by s 5S of the Civil Liability Act . 75I was referred to the decision of the High Court in Podrebersek v Australian Iron & Steel Pty Ltd (1985) 59 ALJR 492, at 494 per Gibbs CJ, Mason, Wilson, Brennan and Dean JJ, which contains the following classic statement of apportionment by reason of a plaintiff's contributory negligence: "The making of an apportionment as between a plaintiff and a defendant of their respective shares in the responsibility for the damage involves a comparison both of culpability, ie of the degree of departure from the standard of care of the reasonable man ( Pennington v Norris (1956) 96 CLR 10 at 16) and of the relative importance of the acts of the parties in causing the damage: Stapley v Gypsum Mines Ltd [1953] AC 663 at 682; Smith v McIntyre [1958] Tas SR 36 at 42-49 and Broadhurst v Millman [1976] VR 208 at 219, and cases there cited. It is the whole conduct of each negligent party in relation to the circumstances of the accident which must be subjected to comparative examination. The significance of the various elements involved in such an examination will vary from case to case; for example, the circumstances of some cases may be such that a comparison of the relative importance of the acts of the parties in causing the damage will be of little, if any, importance." 76The difficulty with arriving at a reduction less than 100% in the instant case is that the defendant was not only blameless, but his driving accorded in all respects with reasonable standards. This is not a case of a defendant who had an unforeseeable heart attack and allowed his vehicle to swerve to the wrong side of the road, or who could not disable cruise control and therefore was unable to slow the vehicle to avoid a collision. In such cases it would be appropriate to make allowance for the relative importance of such, albeit innocent, deviation from proper driving standards when assessing the reduction in damages of a passenger who, say, was not wearing a seat belt. 77However, in my view, it cannot be said that the defendant in the instant case caused the accident in any material legal sense. The only test of causation he meets is the 'but for' test: he was simply in the wrong place at the wrong time. He was only a cause of the accident in the same way as it could be said that the bus driver was, for dropping off the girls at that particular minute. Even leaving aside the defendant's lack of culpability, this is insufficient to establish any causal connection at law. 78I find the plaintiff's disregard for her own safety to be the sole cause of the accident. Accordingly, if, contrary to my interpretation of Division 1, s 7K arose for consideration, I would have found that the plaintiff's damages ought be reduced by 100%.

The associated claims for nervous shock 79The plaintiff's sister, Mikaela, and her father, Michael, have brought claims for nervous shock. Mikaela witnessed the accident, and only narrowly missed being involved in the collision herself. Mr Axiak came upon the scene of the accident shortly after it had occurred. The parties asked that these proceedings be listed with the plaintiff's proceedings, since if the plaintiff's accident is not a "blameless accident" within the meaning of Division 1 of Part 2, neither she, nor her sister, nor her father, obtains the benefit of s 7B, which deems the defendant to be at fault. 80Accordingly, by reason of my finding that the accident was not "blameless", I make orders in each of the following proceedings as follows: (1)In matter 213758 of 2010 (Alana Axiak b.h.t. Donna Axiak v Ingram), order: (a)judgment for the defendant; and (b)plaintiff to pay the defendant's costs. (2)In matter 206353 of 2011 (Mikaela Axiak b.h.t. Donna Axiak v Ingram), order: (a)judgment for the defendant; and (b)plaintiff to pay the defendant's costs. (3)In matter 206313 of 2011 (Michael Axiak v Ingram), order: (a)judgment for the defendant; and (b)plaintiff to pay defendant's costs.

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: 28 November 2011

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