CASE NOTE: MAMO V SURACE  NSWCA 58
I - INTRODUCTION
Mamo v Surace (“Mamo”) examines fault and finality, in the context of an unavoidable accident. Definitional discussion emerges within the idea of “fault”, with the outcomes ultimately furthering the legal avenues of victims of blameless accidents, enabled by the separation of non-tortious negligence and “fault”. Notably, the dismissal of arguments raised at appeal furthers the notion that circumstantially, injustice must be endured for the sake of finality, to avoid greater an injustice inflicted upon the opposing counsel .
II - THE CASE
A - Facts
The appellant, Jesse Mamo, was a passenger in a vehicle driven by the respondent, Steven Surace. Whilst the respondent looked down to adjust the radio, a cow wandered on to the road, colliding with the vehicle . The appellant alleged that the respondent failed to use high beam or maintain a proper lookout. The respondent denied liability and pleaded contributory negligence. At trial, the Judge held that breach of duty of care had not transpired, as it was an unforeseeable risk causing an unavoidable accident, as the cow appeared too close to react. The Judge argued that the respondent acted appropriately toward ‘foreseeable risks”, which the cow was not part of.
These prior proceedings were held within the District Court of NSW on 22 February 2013.
B - Judicial reasoning
Carrying from the trial, the first issue arising was whether the primary Judge erred in his consideration of the scope of the respondent’s duty of care. The second was whether the respondent’s failure to give evidence produced a Jones v Dunkel inference, suggesting greater elapsed time between radio adjustment and collision.
Additionally, under the pro...
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...g it to be raised upon appeal.
V - AN INVIDIOUS POSITION
Axiak v Ingram (2012) 82 NSWLR 36 (Axiak) was extremely pertinent, standing as the “only decision of this court dealing with the construction of the blameless accident provisions of the MACA”. Critically, the case established that ‘non-tortious negligence’ is excluded from the MACA’s definition of “fault” in s3. Such provisions artificially place fault upon the driver in order to secure CTP claims for victims.
The refinement of this definition has significant legal implications, as it broadens the scope of those who can sue within blameless accidents. Prior to this, such victims would also face being labelled with “fault”. Supporting the findings of Axiak, by establishing non-tortious conduct as separate from “fault”, similar, future cases are more likely to proceed despite the plaintiff’s contributory