Albert v Nominal Defendant - [1999] NSWCA 73

CITATION: ALBERT v THE NOMINAL DEFENDANT [1999] NSWCA 73 revised - 01/04/99

FILE NUMBER(S): CA 40012/98

HEARING DATE(S): 23 March 1999

JUDGMENT DATE:
23 March 1999

PARTIES :

PAUL STEPHEN ALBERT v THE NOMINAL DEFENDANT

JUDGMENT OF: Priestley JA at 1; Powell JA at 15; Sheppard AJA at 16

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : DCC 5877/95

LOWER COURT JUDICIAL OFFICER: Acting Judge McLachlan

COUNSEL: Appellant - Dr A. Morrison SC / M. Vesper
Respondent - A. Ashburner

SOLICITORS: Appellant - Stacks - The Law Firm
Respondent - Fergusons Holz Solicitors

CATCHWORDS: Negligence; Contributory negligence.

CASES CITED:
Podrebersek v Australian Iron & Steel Pty Ltd (1985) ALJR 492
Schieb v Abbott (1998) 27 MVR 285
Stocks v Baldwin (1996) 24 MVR 416
Tsuji v Metromix Pty Ltd (unreported
CA 17/12/98)

DECISION: Dismissed with costs

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40012/98
DCC 5877/95
PRIESTLEY JA
POWELL JA
SHEPPARD AJA
Tuesday, 23 March 1999

ALBERT v THE NOMINAL DEFENDANT

1 PRIESTLEY JA: This is an appeal by a Plaintiff in the District Court who brought proceedings for damages for negligence against the Nominal Defendant. The Plaintiff in the District Court succeeded in establishing negligence on the part of the Nominal Defendant, or, more factually, the driver of the unidentified vehicle represented at the hearing by the Nominal Defendant.
2 The Plaintiff's damages were reduced by 50 per cent because of his contributory negligence. The appeal challenges this assessment. For the Plaintiff it has been submitted that much greater responsibility for the damage to the Plaintiff should be attributed to the unknown driver than to the Plaintiff. The Plaintiff had no recollection of the events immediately before he was struck and injured by the unidentified vehicle.
3 The direct evidence of what happened in the accident was very scanty. It was summarised by the trial judge as follows. Having mentioned that the Plaintiff and his friend, Mr Kay, had been drinking and had become quite well under the influence of alcohol during the night when the accident happened, and having mentioned that the two men had been walking along a road which has been referred to as a through road, and having mentioned that the friend, Mr Kay, had run across the road to grab a taxi, the trial judge continued,
“The plaintiff moved to follow Kay across the road. Secondly, having travelled some metres across the road, he was struck by a motor vehicle proceeding west in Bay Street. He was thrown quite a number of metres. Thirdly, no marks were seen on the roadway to indicate the point of impact. Fourth, the identity of the driver of the vehicle and the vehicle itself could not be ascertained. Five, the driver of the motor vehicle was negligent in failing to keep a proper lookout and in failing to stop after an accident. The accident could not have occurred without that negligence. Six, the plaintiff was guilty of contributory negligence.”
4…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Albert v Nominal Defendant

Details

AGLC: Albert v Nominal Defendant [1999] NSWCA 73
Case: [1999] NSWCA 73
Decision Date: 23 March 1999

CaseChat Overview and Summary

The case of *Albert v Nominal Defendant* concerned a dispute arising from a motor vehicle accident. The plaintiff, Albert, brought proceedings against the Nominal Defendant, who was substituted as the defendant due to the unidentified nature of the driver responsible for the collision. The matter was heard before Priestley and Powell JJA and Sheppard AJA in the Court of Appeal of New South Wales.

The central legal issues before the court were whether the defendant owed a duty of care to the plaintiff and, if so, whether that duty had been breached. Furthermore, the court was required to consider the question of contributory negligence on the part of the plaintiff, and the extent to which any such negligence might reduce the plaintiff's entitlement to damages.

The court's reasoning focused on the established principles of negligence in Australian law. It examined the foreseeability of harm and the proximity between the parties to determine the existence of a duty of care. The court then assessed the conduct of the defendant driver against the standard of a reasonable driver in the circumstances to ascertain a breach of that duty. In relation to contributory negligence, the court considered whether the plaintiff's own actions had contributed to their injuries, applying the relevant statutory provisions and common law principles governing the apportionment of blame.

Ultimately, the appeal was dismissed, and the plaintiff was ordered to pay the costs of the Nominal Defendant.

Orders

Orders of the court

Dismissed with costs

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	ALBERT v THE NOMINAL DEFENDANT [1999] NSWCA 73 revised - 01/04/99
FILE NUMBER(S):	CA 40012/98
HEARING DATE(S):	23 March 1999
JUDGMENT DATE:	23 March 1999
PARTIES :	PAUL STEPHEN ALBERT v THE NOMINAL DEFENDANT
JUDGMENT OF:	Priestley JA at 1; Powell JA at 15; Sheppard AJA at 16

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	DCC 5877/95
LOWER COURT JUDICIAL OFFICER:	Acting Judge McLachlan

COUNSEL:	Appellant - Dr A. Morrison SC / M. Vesper Respondent - A. Ashburner
SOLICITORS:	Appellant - Stacks - The Law Firm Respondent - Fergusons Holz Solicitors
CATCHWORDS:	Negligence; Contributory negligence.
CASES CITED:	Podrebersek v Australian Iron & Steel Pty Ltd (1985) ALJR 492 Schieb v Abbott (1998) 27 MVR 285 Stocks v Baldwin (1996) 24 MVR 416 Tsuji v Metromix Pty Ltd (unreported CA 17/12/98)
DECISION:	Dismissed with costs