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.