Applin v The Nominal Defendant - [2004] NSWCA 217

CITATION: Applin v. The Nominal Defendant [2004] NSWCA 217

HEARING DATE(S): 25 June 2004

JUDGMENT DATE:
2 July 2004

JUDGMENT OF: Hodgson JA at 1; Tobias JA at 33; Cripps AJA at 34

DECISION: 1. Appeal allowed with costs. 2. Judgment below set aside. 3. In lieu thereof, judgment for the appellant in the sum of $230,637.64, and the respondent to pay the appellant's costs of the proceedings.

CATCHWORDS: TORT - Negligence - Motor accidents - Unregistered vehicle - Claim against Nominal Defendant - Whether farm motor cycle capable of being registered, by reason of eligibility for issue of unregistered vehicles permit - Whether necessary that the use immediately before the accident be rendered lawful by such a permit.

LEGISLATION CITED: Road Transport (Vehicle Registration) Act 1997, ss.4, 8, 18
Road Transport (Vehicle Registration) Regulation 1998, cl.44
Motor Accidents Compensation Act 1999, ss.3, 10, 33, 39.

PARTIES :
Richard Charles Applin - appellant
The Nominal Defendant - respondent

FILE NUMBER(S): CA 40776/03

COUNSEL: Mr. J. Maconachie QC with Mr. P. Sternberg for appellant
Mr. R. Bartlett SC for respondent

SOLICITORS: Pike & Associates, Bathurst for appellant
Hunt & Hunt, Newcastle for respondent

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 1/02 (Bathurst)

LOWER COURT
JUDICIAL OFFICER : Sorby DCJ

CA 40776/03
DC 1/02

HODGSON JA
TOBIAS JA
CRIPPS AJA
Friday 2 July 2004

APPLIN V. THE NOMINAL DEFENDANT

Judgment

1 HODGSON JA: On 4 August 2003, Sorby DCJ gave judgment for the defendant in proceedings in which the appellant had sued the Nominal Defendant in respect of injuries he received when struck by an unregistered Yamaha motor cycle ridden by his friend Sam Whalan. The finding of the primary judge was on the basis that this was not a case within s.33(1) of the Motor Accidents Compensation Act 1999 (MAC Act). However, in case he was wrong on this point, he found Mr. Whalan guilty of negligence and found contributory negligence to the extent of 30% against the appellant. He assessed damages at $329,482.35, so that the verdict for the appellant would otherwise have been $230,637.64.

2 The appellant appeals from this judgment. No appeal or cross-appeal has been brought in respect of the findings as to negligence, contributory negligence or damages.

3 The accident occurred on a dirt road passing through a property owned by Sam Whalan’s family. At the time, the motor cycle was being ridden purely for recreation. However, at other times it was used as a “farm bike” for such things as checking for open gates, straying stock, and downed fences.

4 It was clear that the motor cycle was not capable of being registered for general use on roads in New South Wales; but the appellant’s contention was that it was capable of being registered in the sense of having an unregistered vehicle permit (UVP) under s.8(1)(d) of the Road Transport (Vehicle Registration) Act 1997 (VR Act), and that this was sufficient in the circumstances to make the Nominal Defendant liable under s.33(1)…

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 Applin v The Nominal Defendant

Details

AGLC: Applin v The Nominal Defendant [2004] NSWCA 217
Case: [2004] NSWCA 217
Decision Date: 2 July 2004

CaseChat Overview and Summary

The appellant, Applin, brought a claim against the Nominal Defendant for damages arising from a motor accident. The central dispute concerned whether the appellant's unregistered farm motorcycle was a vehicle for which an unregistered vehicle permit could have been issued under the relevant legislation, thereby entitling the appellant to claim against the Nominal Defendant. The matter was heard in the Court of Appeal of New South Wales.

The primary legal issues before the court were: firstly, whether the farm motorcycle was capable of being registered, or alternatively, eligible for the issue of an unregistered vehicle permit, by reason of its nature and intended use; and secondly, whether it was necessary for the use of the motorcycle immediately before the accident to be rendered lawful by such a permit for the claim against the Nominal Defendant to succeed.

The Court of Appeal allowed the appeal, setting aside the judgment of the court below. The court reasoned that the farm motorcycle was a vehicle capable of being registered, and therefore, the appellant was entitled to claim against the Nominal Defendant. The court found that the legislative scheme contemplated that a vehicle which could be registered would not be covered by the Nominal Defendant provisions, but that a vehicle which could not be registered, but for which a permit could be obtained, would be. The court concluded that the appellant's vehicle fell within the latter category, and that the use of the vehicle immediately prior to the accident did not need to be rendered lawful by a permit for the claim to proceed.

Consequently, the Court of Appeal ordered that the appeal be allowed with costs, the judgment below be set aside, and in lieu thereof, judgment be entered for the appellant in the sum of $230,637.64, with the respondent to pay the appellant's costs of the proceedings.

Orders

Orders of the court

1. Appeal allowed with costs. 2. Judgment below set aside. 3. In lieu thereof, judgment for the appellant in the sum of $230,637.64, and the respondent to pay the appellant's costs of the proceedings.

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:	Applin v. The Nominal Defendant [2004] NSWCA 217
HEARING DATE(S):	25 June 2004
JUDGMENT DATE:	2 July 2004
JUDGMENT OF:	Hodgson JA at 1; Tobias JA at 33; Cripps AJA at 34
DECISION:	1. Appeal allowed with costs. 2. Judgment below set aside. 3. In lieu thereof, judgment for the appellant in the sum of $230,637.64, and the respondent to pay the appellant's costs of the proceedings.
CATCHWORDS:	TORT - Negligence - Motor accidents - Unregistered vehicle - Claim against Nominal Defendant - Whether farm motor cycle capable of being registered, by reason of eligibility for issue of unregistered vehicles permit - Whether necessary that the use immediately before the accident be rendered lawful by such a permit.
LEGISLATION CITED:	Road Transport (Vehicle Registration) Act 1997, ss.4, 8, 18 Road Transport (Vehicle Registration) Regulation 1998, cl.44 Motor Accidents Compensation Act 1999, ss.3, 10, 33, 39.
PARTIES :	Richard Charles Applin - appellant The Nominal Defendant - respondent
FILE NUMBER(S):	CA 40776/03
COUNSEL:	Mr. J. Maconachie QC with Mr. P. Sternberg for appellant Mr. R. Bartlett SC for respondent
SOLICITORS:	Pike & Associates, Bathurst for appellant Hunt & Hunt, Newcastle for respondent

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	1/02 (Bathurst)
LOWER COURT JUDICIAL OFFICER :	Sorby DCJ