Blameless Pedestrian Darts Out

Axiak v Ingram [2012] NSWCA 311

Judgment date: 27 September 2012

Jurisdiction: Court of Appeal1

In Brief

The expression fault of any other person refers only to the tortious conduct of that person and does not include the injured person whose fault in the form of non-tortious contributory negligence is excluded from the definition of a blameless motor accident in s 7A of the Motor Accidents Compensation Act. Division 2 of Part 1.2 will still have work to do in such circumstances where the injured person is a child if a third party is found to be the cause of a motor accident but unable to meet any damages awarded to the injured person. It is impossible to determine the degree of fault which is to be attributed to a blameless driver in determining the injured person's contributory negligence under s 7F. The court is not required to assess the degree of culpability of each party in determining contributory negligence. 2 Contributory negligence in a blameless motor accident is to be assessed on the basis of a value judgement of the extent to which an injured person has failed to conform to the standard of care of the reasonable person in their position. All of the circumstances, including an injured person's age will reflect in the evaluative judgement of the percentage reduction to be applied. Background

On 27 June 2008, the first plaintiff, aged 14 years, was injured in a motor vehicle accident when, as a pedestrian, she crossed Sackville Road, Ebenezer after disembarking from a school bus.

When the school bus pulled to a stop, the first plaintiff and her sister alighted and walked around to its rear. The school bus then commenced to pull away from the kerb and, as this was occurring, the first plaintiff and her sister darted from behind the back of the school bus across its lane of travel and into the path of the defendant's motor vehicle being driven in the opposite direction.

It was accepted that the defendant had a completely obscured view of the first plaintiff and her sister by the school bus. The defendant had slowed to a speed of 40 km/h upon seeing the school bus but was unable to avoid colliding with the first plaintiff after she emerged from behind the bus in front of his motor vehicle.

The first plaintiff suffered a traumatic brain injury in the accident rendering her eligible for participation in the Lifetime Care and Support Scheme. She initially commenced proceedings in the Supreme Court through her tutor against the defendant...