CITATION: Applin v. The Nominal Defendant [2004] NSWCA 217 HEARING DATE(S): 25 June 2004 JUDGMENT DATE:
2 July 2004JUDGMENT 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 - respondentFILE NUMBER(S): CA 40776/03 COUNSEL: Mr. J. Maconachie QC with Mr. P. Sternberg for appellant
Mr. R. Bartlett SC for respondentSOLICITORS: 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 1/02Friday 2 July 2004HODGSON JA
TOBIAS JA
CRIPPS AJA
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)…
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- AGLC
- Applin v The Nominal Defendant [2004] NSWCA 217
- Case
- [2004] NSWCA 217
- Decision Date
CaseChat Overview and Summary
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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