Creative Causes of Action
February 28, 2012
These two recent cases provide examples of some creative approaches taken by plaintiff lawyers, and the second case discussed demonstrates an unintended consequence of the NSW MACA Blameless Accident Provisions which may be of considerable significance to the industry.
Liability of occupier of land for injury to young motorist
Simpson v Grundy & Anor  QSC 299
The Queensland Supreme Court recently determined that the occupier of land did not breach his duty of care to supervise a young motorist who went for a ‘spin’ on his property.
On Christmas Day 2005, the plaintiff (17 year old learner driver with about 30 hours driving experience) and her relatives had lunch at the defendant’s 900 acre rural property. After lunch, the plaintiff asked her stepfather and grandmother (in the presence of the defendant) whether she could take an unregistered automatic Bluebird motor vehicle which was kept at the property, but which was not owned by the defendant, for a drive. Her stepfather and grandmother agreed, and warned her to be careful. This exchange took place in the presence of the defendant. She took off in the car with her brother. After travelling only a short distance on an internal dirt road on the property, the plaintiff, who was driving too fast for the road conditions, lost control of the vehicle, which overturned. The plaintiff was not wearing a seatbelt, and she was thrown from the vehicle and injured.
As the motor vehicle was not registered, she therefore tried to sue the property owner.
The court accepted that the dirt road was not in a dangerous state and was flat, straight and well formed, and there was nothing defective about the motor vehicle. The accident occurred as a result of the plaintiff driving too fast.
Quantum was agreed at $200,000 with both liability and contributory negligence in issue.
Liability turned on whether or not the defendant as occupier of the property where the motor vehicle accident occurred owed a duty of care to the plaintiff in this instance and, if so, whether or not such duty of care was breached.
The court referred to the High Court decision of Northern Sandblasting Pty Ltd v Harris  HCA 39 where Brennan CJ said:
‘The true bases of the occupier’s duty of care are the power of control which an occupier has to consent to another’s entry and power to safeguard the entrant against injury or loss from defects in the occupied premises’.
The court noted that the defendant as owner of the property upon which the plaintiff proposed to drive had authority to forbid the plaintiff to drive on his land, and therefore owed a duty of care. However the true character of the claim as pleaded was a failure by the defendant to supervise the plaintiff.
The court noted that whether or not the defendant breached the duty of care owed to the plaintiff depended upon what a reasonable person in the defendant’s position would have done in the circumstances by way of response to the foreseeable risks involved in the plaintiff’s driving.
The court noted that defendant was not one of the plaintiff’s parents. The plaintiff’s stepfather and her grandmother were present when she asked both of them permission to drive. Both allowed her to drive and both warned her to take care while doing so. The fact they were content to let the plaintiff drive was, in the court’s view, very significant to the outcome.
The driving the plaintiff proposed to do was not an unreasonable or uncommon activity. In the absence of anything dangerous or unusual about the road or the motor vehicle, the safety of the proposed drive depended to a large degree upon the plaintiff’s driving experience, ability and temperament.
The defendant was not aware that the plaintiff only had a total driving experience of 30 hours pre accident. There was no criticism of his failure to acquaint himself with her driving experience before he allowed her to drive on his property.
The court held that the plaintiff’s relatives were in the best position to assess the plaintiff’s ability to drive safely on the property, and as the defendant satisfied himself the relatives were content for her to drive, and he heard them warn her, there was no basis for the defendant to conclude he should have forbidden her to take the car for a drive.
Accordingly, Dalton J found that the defendant did not breach the duty he owed to the plaintiff when he did not forbid the drive she proposed. The plaintiff’s claim failed.
In the alternative (in the event of an appeal), he made findings in relation to contributory negligence.
The plaintiff admitted that she did not wear a seatbelt. An engineer gave evidence that the forces acting on the driver when the vehicle rolled was likely to eject the driver if a seatbelt was not worn and the window was open. The court accepted this evidence and found that had the plaintiff been wearing a seatbelt, she probably would not have been thrown from the vehicle.
After noting that the plaintiff was 17 and was specifically warned to drive sensibly immediately before the accident, the court indicated had she succeeded, her damages would have been reduced by 30% (15% in relation to failure to wear a seatbelt and 15% for driving too fast).
Authored by Richard Clayton, Senior Associate, Brisbane.
Axiak b.h.t. D. Axiak v Ingram  NSWSC 1447
Amendments to the Motor Accidents Compensation Act (MACA) in 2006 introduced the notion of ‘blameless accidents’. If an accident occurring after 1 October 2007 is a ‘blameless accident’ within the meaning of s 7A, then the plaintiff’s injuries are deemed to result from fault on the part of the defendant, giving the plaintiff the same right to damages as if the defendant had actually been negligent.
Section 7A of MACA defines ‘blameless accident’ as:
‘… 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.’ [emphasis added].
In this case, the plaintiff argued that these amendments to MACA effectively created a general no fault scheme, rather than in the limited cases the Parliament intended. While the court rejected that contention, it confirmed that in the case of very young children who could not be expected to have any road sense, the (unintended) effect of the blameless accidents provisions is to provide full MACA damages.
On 26 June 2008, the 14 year old plaintiff Alana Axiak alighted from a school bus with her 12 year old sister, and the girls ran out from behind the bus into the path of the defendant’s car. Alana was ahead of her sister, and she was hit by the defendant’s car. Her sister witnessed the accident, but wasn’t physically injured. Alana suffered catastrophic injuries, and by the time of the hearing, was a lifetime participant in the Lifetime Care and Support Scheme (LTCS).
Alana also sued the defendant’s CTP insurer, and her sister and her father brought mental harm claims. Although it was initially alleged that the defendant had been negligent, that pleading was abandoned before trial, and the judge had to determine if this accident was a ‘blameless accident’.
The plaintiff’s case was built on an argument that ‘any other person’ in s7A does not include a plaintiff. Her senior counsel argued that ‘fault’ was defined in s3 of MACA to mean ‘negligence or any other tort’, so a person at fault must be a tortfeasor, rather than someone just guilty of contributory negligence. The plaintiff claimed to find support for this theory in the wording of s7F. That section 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 eceased 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.’
The plaintiff argued that as s7F provides for the consequences of her conduct, then the legislature must have contemplated that an accident could still be a ‘blameless accident’ within the meaning of s7A, in circumstances where the plaintiff has been guilty of contributory negligence.
The defendant pointed out that the blameless accident provisions appeared in the same part of MACA (Part 1.2) dealing with no fault recovery of certain benefits for children (injured when under 16). The ‘special benefits’ amendments (Part 1.2 Division 2) were introduced by the same amending Act, but came into effect earlier than did the blameless accident provisions (Part 1.2 Division 1). The relationship between Divisions 1 and 2 is governed by s7P, which provides:
‘(1) This Division does not apply in a 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).’
The defendant argued 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. The word ‘fault’ is used in Division 2 to include contributory negligence, and it should have the same meaning in Division 1. The defendant argued that the contributory negligence of a plaintiff referred to in s7F must mean actions relevant to the severity of injury (eg not wearing a helmet or seatbelt etc), rather than actions relevant to causing the accident (eg failing to look before crossing the road etc).
The defendant also argued that on a proper construction of the legislation, the expression ‘any other person’ in s 7A must include the plaintiff, and that if the plaintiff’s own negligence (namely contributory negligence) was a cause of the accident, the accident could not be a ‘blameless accident’. Any degree of causal fault from the plaintiff means there has not been a ‘blameless accident’.
Justice Adamson accepted the defendant’s submissions.
Her Honour held that if a 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. The expression ‘contributory negligence’ includes both acts that caused the accident and those which only affected the severity of the plaintiff’s injuries. Where the plaintiff’s own negligence caused, or contributed to the accident, the accident is not ‘blameless’. Where the plaintiff is guilty of contributory negligence, which did not cause or contribute to the accident, and where the driver is also not at fault, then the accident will be a blameless accident, but the plaintiff’s ‘blameless accident’ damages are reduced pursuant to s 7F. If the plaintiff was under 16 when injured, then the special entitlement provisions of Division 2 are also recoverable, and are not subject to any reduction.
Adamson J noted that when determining whether the plaintiff had been at fault, it was relevant to consider what could be expected of an ordinary child of the plaintiff’s age.
It is an objective test. 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.
In this case the plaintiff was 14, and there was evidence including from the plaintiff’s siblings, that children of that age were aware it was unsafe to cross the road without looking, and before waiting for a school bus to move off. On that basis, the judge found the plaintiff had been at fault, and that therefore, the accident was not a blameless accident.
In case the Court of Appeal took a different view about whether the accident was blameless or not, the judge assessed the appropriate reduction to be applied to the plaintiff’s ‘blameless accident’ damages for her contributory negligence. As the driver was not at fault at all, and as the process of apportionment involves weighing up the competing culpability of each party, she said she could only conclude the appropriate reduction was 100%, because she found the plaintiff’s disregard for her own safety was the sole cause of the accident.
The plaintiff’s claim, and those of her father and sister, failed.
The plaintiff’s argument, if accepted, would have meant that the CTP scheme was no longer fault based, and that the limited exception to the need to prove fault in cases of ‘inevitable accident’ (e.g. a sudden medical emergency incapacitating the driver) would have opened the flood gates for all pedestrians to claim damages even when they were to blame for their injuries. It is not surprising the argument was rejected.
What is of more interest is her Honour’s observations regarding accidents involving very young children.
According to Adamson J, an infant who runs out into the path of a car whose driver has no time to react to avoid an accident will recover full damages from the defendant’s CTP insurer, if the child is considered too young to have developed road sense, because a child without road sense can’t be ‘at fault’, for s7A purposes.
This does not appear to have been intended by Parliament. We say this because the ‘special entitlement’ provisions of Division 2 were introduced to ensure treatment and care expenses of young children injured through no fault of a motorist were met, and if Parliament realised the blameless accident provisions already covered those expenses (and more), there would have been no need to introduce the ‘special entitlement’ provisions.
Authored by Judith Waldock, Partner, Sydney.
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