Amy Savage v The Nominal Defendant - [2016] NSWDC 33

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Amy Savage v The Nominal Defendant [2016] NSWDC 33
Hearing dates: 4, 5 and 6 November 2015
Date of orders: 01 April 2016
Decision date: 01 April 2016
Jurisdiction: Civil
Before: Hatzistergos DCJ
Decision:
Verdict and judgment for the Plaintiff in the sum of $502,675.

Catchwords: TORTS – negligence – motor vehicle accident – plaintiff allegedly struck by unknown vehicle – claim by plaintiff for damages pursuant to Motor Accidents Compensation Act 1999; DAMAGES – quantum – assessment of claimed heads of damages; EVIDENCE – principles of inferential reasoning
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW) ss 7B, 7C, 7E, 33, 137
Civil Liability Act 2002 (NSW) ss 5B and 5D
Road Rules 2008 (NSW) r 69
Cases Cited: Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443
Fitzgerald v Dansey [2001] NSWCA 339 Fuller-Lyons v New South Wales [2015] HCA 31
Henderson v Queensland [2014] HCA 52
Loose Fit Pty Ltd v Marshbaum [2011] NSWCA 372
Luxton v Vines (1962) 85 CLR 352
Marshbaum v Loose Fit Pty Ltd & Anor [2010] NSWSC 1130
Najdovski v Crnojovic (No 2) [2008] NSWCA 281
Nominal Defendant v Livaja [2011] NSWCA 121 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99
Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262
State of New South Wales v Fuller-Lyons [2014] NSWCA 424
Van Gervon v Fenton (1992) 175 CLR 327
Category: Principal judgment
Parties: Ms Amy Savage (Plaintiff)
The Nominal Defendant (Defendant)
Representation:
Counsel:
Mr M Robinson SC (Plaintiff)
Mrs J Gumbert (Plaintiff)
Mr J Turnbull SC (Defendant)
Ms S Warren (Defendant)
Solicitors:
Schreuder Partners (Plaintiff)
McInnes Wilson Lawyers (Defendant)

File Number(s): 2014/265392
Publication restriction: Nil

Judgment

The Plaintiff, Ms Amy Savage, occasioned an accident on 25 October 2011 at about 6am in circumstances where she has no actual recollection and there are no eyewitnesses. The Plaintiff’s case was that the accident occurred as a consequence of a collision with another vehicle which, after due search and enquiry, cannot be identified. Accordingly, the Nominal Defendant has been joined pursuant to the provisions of s 33 of the Motor Accidents Compensation Act 1999 (NSW). [1] The Defendant made no issue of due search and enquiry but disputed that an unidentified vehicle was involved and/or it was negligent. [2] In the alternative, the Plaintiff alleged that the accident was a “blameless motor accident” pursuant to s 7C and Part 1.2 of the 1999 Act, [3] a case denied by the Defendant. [4]
1. Hereinafter referred to as “the 1999 Act”
2. T 6.21
3. Statement of Claim at [14]
4. Defence at [5]
The case presented was circumstantial.
The Plaintiff recalled that on the morning in question it was a bit overcast. She left her apartment at Bronte before heading into the city along Birrell St, Queens Park. She travelled on a motor scooter intending first to go to the gym before work. The light on her scooter was switched on as it turned…

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.

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Details

Case: [2016] NSWDC 33
Decision Date: 01 April 2016

CaseChat Overview and Summary

The plaintiff, Amy Savage, brought an action against an unidentified defendant seeking damages for injuries sustained in a motor vehicle accident. The claim was filed under the Motor Accidents Compensation Act 1999, with the identity of the defendant remaining unknown at the time of the proceedings. Savage alleged that she was struck by a vehicle while crossing a road, resulting in significant personal injuries. The case was heard by the court, which was required to determine the liability of the unknown defendant and the quantum of damages to which the plaintiff was entitled.

The primary legal issues addressed by the court were the establishment of the defendant's liability for the accident and the appropriate assessment of the plaintiff's claimed damages. Given the absence of direct evidence identifying the defendant, the court had to rely on inferential reasoning to infer the defendant's liability based on the circumstances presented. The court further had to evaluate the evidence regarding the extent of the plaintiff's injuries and the impact on her life, including medical expenses, loss of income, and pain and suffering.

In determining liability, the court found that the evidence supported an inference that the defendant was responsible for the accident. The court considered factors such as the location of the accident, the timing, and the absence of any other plausible explanations for the plaintiff's injuries. Regarding damages, the court meticulously assessed each head of claimed damages, including medical costs, lost earnings, and non-economic losses. After a detailed analysis, the court concluded that the total amount of damages payable to the plaintiff was $502,675.

The court delivered a verdict and judgment in favour of the plaintiff, awarding her the sum of $502,675 in damages. This amount reflected the court's findings on the liability of the unknown defendant and the appropriate compensation for the plaintiff's injuries and losses.

Orders

Orders of the court

Verdict and judgment for the Plaintiff in the sum of $502,675.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Amy Savage v The Nominal Defendant [2016] NSWDC 33
Hearing dates:	4, 5 and 6 November 2015
Date of orders:	01 April 2016
Decision date:	01 April 2016
Jurisdiction:	Civil
Before:	Hatzistergos DCJ
Decision:	Verdict and judgment for the Plaintiff in the sum of $502,675.
Catchwords:	TORTS – negligence – motor vehicle accident – plaintiff allegedly struck by unknown vehicle – claim by plaintiff for damages pursuant to Motor Accidents Compensation Act 1999; DAMAGES – quantum – assessment of claimed heads of damages; EVIDENCE – principles of inferential reasoning
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW) ss 7B, 7C, 7E, 33, 137 Civil Liability Act 2002 (NSW) ss 5B and 5D Road Rules 2008 (NSW) r 69
Cases Cited:	Boral Bricks Pty Ltd v Cosmidis [2013] NSWCA 443 Fitzgerald v Dansey [2001] NSWCA 339 Fuller-Lyons v New South Wales [2015] HCA 31 Henderson v Queensland [2014] HCA 52 Loose Fit Pty Ltd v Marshbaum [2011] NSWCA 372 Luxton v Vines (1962) 85 CLR 352 Marshbaum v Loose Fit Pty Ltd & Anor [2010] NSWSC 1130 Najdovski v Crnojovic (No 2) [2008] NSWCA 281 Nominal Defendant v Livaja [2011] NSWCA 121 Pollard v Baulderstone Hornibrook Engineering Pty Ltd [2008] NSWCA 99 Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 State of New South Wales v Fuller-Lyons [2014] NSWCA 424 Van Gervon v Fenton (1992) 175 CLR 327
Category:	Principal judgment
Parties:	Ms Amy Savage (Plaintiff) The Nominal Defendant (Defendant)
Representation:	Counsel: Mr M Robinson SC (Plaintiff) Mrs J Gumbert (Plaintiff) Mr J Turnbull SC (Defendant) Ms S Warren (Defendant) Solicitors: Schreuder Partners (Plaintiff) McInnes Wilson Lawyers (Defendant)
File Number(s):	2014/265392
Publication restriction:	Nil