- First, as I have noted, the respondent’s counsel expressly stated at the outset of the trial that he did not press the pleaded defence that the appellant had not been injured in a “blameless motor accident” within the meaning of s 7A of the MAC Act. It was of course open to the respondent to acknowledge that the primary Judge was bound by Axiak v Ingram, but to reserve the right to challenge the correctness of the decision on appeal. However, this course was not followed and the trial proceeded on the basis that the pleaded defence was not pressed.
Secondly, the reasoning of the majority in Davis v Swift does not cast doubt on the construction of s 7A of the MAC Act adopted in Axiak v Ingram. Meagher JA indicated that there might be grounds for reconsidering the approach taken in Axiak v Ingram to the reduction of damages for a plaintiff’s contributory negligence, but his Honour did not criticise the Court’s construction of s 7A. Adamson J, in dissent, made a remark that perhaps suggests that she thought that there might be some merit in reconsidering the construction of s 7A, but her Honour did not express a firm view. There is therefore no conflict in the authorities as to the proper construction of s 7A and no judgment of an appellate court that has cast doubt on the reasoning in Axiak v Ingram on that issue.
- Thirdly, the respondent’s submissions do not identify an error in the reasoning of the Court in Axiak v Ingram of the kind that might justify reopening the decision. The submissions in essence repeat arguments that were considered at length in Axiak v Ingram and rejected by the Court. This is not to suggest that the reasoning in Axiak v Ingram is necessarily beyond challenge. It is merely to apply the well-established proposition that a party inviting the Court to review an earlier decision must provide cogent reasons for the Court doing so.