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Buggy v The Nominal Defendant

Buggy v The Nominal Defendant

Case [2014] NSWDC 224 28 November 2014

Causation

Contributory Negligence

Compensatory Damages

Admissibility of Evidence

Reliability of Witness Testimony

Corroborative Evidence

Burden of Proof

Credit Findings

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Buggy v The Nominal Defendant [2014] NSWDC 224
Hearing dates: 3, 4 and 5 November 2014
Decision date: 28 November 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Judgment for the defendant.
(2) Plaintiff pay defendant's costs.
(3) Liberty to apply in relation to costs.

Catchwords: TORT - personal injury - plaintiff brings proceedings against Nominal Defendant for injuries incurred while avoiding a collision with an unknown vehicle - plaintiff illegally riding trail bike on the roadway at the time of the alleged accident - plaintiff describes an accident involving her trail bike and her boyfriend's trail bike, in different circumstances to those described to medico-legal experts, to hospitals and medical practitioners following the accident - plaintiff's evidence as to when she informed police of the accident challenged - reconciling different versions by a plaintiff of an accident - reliability of statements made to health professionals when the plaintiff was seriously injured - role of corroborative evidence - role of credit findings - discharging the burden of proof in proceedings against the Nominal Defendant - whether the defendant could raise due inquiry and search at the trial despite failing to object formally within the time frame set out in 34 and 34A Motor Accidents Compensation Act 1999 (NSW) - contributory negligence - damages
Legislation Cited: Motor Accidents Compensation Act 1999 (NSW), ss 34 and 34A
Cases Cited: Askarou v Nominal Defendant (NSW) (1989) 8 MVR 491
Azar v Kathirgamalingan [2012] NSWCA 429
Blandford v Fox 45 SR (NSW) 241
Cavanagh v Nominal Defendant (1958) 100 CLR 375
Container Terminals Australia v Huseyin [2008] NSWCA 320
Davis v Council of the City of Wagga Wagga [2004] NSWCA 34
Dimovski v GIO (NSW) (1995) 21 MVR 288
Freeman v Griffiths (1976) 13 SASR 494
Guest v The Nominal Defendant [2006] NSWCA 77
Harrison v Nominal Defendant (1975) 7 ALR 680
Hecron v Cousens [1990] NSWCA 93
Hill v Richards [2011] NSWCA 291
Hofer v Miller (1957) SASR 41
Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366
Lec v Matthews (1926) 25 Ll L Rep 525
Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117
Mason v Demasi [2009] NSWCA 227
Mastronardi v State of New South Wales [2009] NSWCA 270
McLennan v Nominal Defendant [2010] NSWDC 28
McLennan v Nominal Defendant [2014] NSWCA 332
Nesterczuk v Mortimer (1965) 115 CLR 140
Nominal Defendant v McLennan [2012] NSWCA 148
Parker v Nominal Defendant [2013] NSWDC 15
Rehn v Nominal Defendant (Supreme Court of New South Wales, 9 April 1990)
Sangha v Baxter [2009] NSWCA 78
Shekhani v Ardino [2009] NSWCA 361
Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Texts Cited: Lord Bingham, "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pp 3ff; Current Legal Problems, Vol 38 Stevens & Sons Ltd 1985 page 1-27)
The Honourable Justice Ipp "Problems with Fact-finding" (Supreme Court of New South Wales, 2 September 2006)
The Honourable Justice…

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 Buggy v The Nominal Defendant

Details

AGLC: Buggy v The Nominal Defendant [2014] NSWDC 224
Case: [2014] NSWDC 224
Decision Date: 28 November 2014

CaseChat Overview and Summary

Buggy brought an action against the Nominal Defendant, claiming damages for injuries sustained while riding a trail bike on a roadway. The plaintiff alleged that she was injured when she attempted to avoid a collision with an unknown vehicle. However, the Nominal Defendant argued that Buggy was riding the trail bike illegally on the roadway at the time of the alleged accident. The dispute required the court to determine several legal issues, including the accuracy of the plaintiff's account of the accident, the reliability of statements made by the plaintiff to medical professionals, and the role of corroborative evidence in such cases. Additionally, the court had to consider whether the defendant could raise due inquiry and search at the trial, despite not formally objecting within the time frame specified in the Motor Accidents Compensation Act 1999 (NSW). The court found that the plaintiff's evidence was not credible, and that there was no credible evidence that the plaintiff had informed the police of the accident. The plaintiff's accounts of the accident were inconsistent and could not be reconciled. The court also found that the statements made by the plaintiff to medical professionals were not reliable, given her serious injuries at the time. The court held that the plaintiff had failed to discharge the burden of proof in proceedings against the Nominal Defendant. The court also found that the defendant could raise due inquiry and search at the trial, despite not formally objecting within the time frame specified in the Motor Accidents Compensation Act 1999 (NSW). Finally, the court found that the plaintiff was contributorily negligent, and awarded judgment in favour of the defendant. The plaintiff was ordered to pay the defendant's costs, with liberty to apply in relation to costs.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) Plaintiff pay defendant's costs.

(3) Liberty to apply in relation to costs.

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

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Citations

AGLC Citation

Buggy v The Nominal Defendant [2014] NSWDC 224

Cases citing this decision · 0 of 0 shown

No citing cases yet.

Cases cited in this decision · 20 of 20 shown

McLennan v Nominal Defendant
[2014] NSWCA 332 Para 1

…be determined with care. This was apparent in both appeals brought in Nominal Defendant v McLennan [2012] NSWCA 148 and McLennan v Nominal Defendant [2014] NSWCA 332.…
Parker v Nominal Defendant
[2013] NSWDC 15 Para 1

…bjection within the two-month period, but did not take me to any authority on this issue. It may be that there is none. In Parker v Nominal Defendant [2013] NSWDC 15 Levy SC DCJ held (at [24]) that failure to do so within the 2 month period meant that the Nominal Defendant lost the right to bring an application fo…
Azar v Kathirgamalingan
[2012] NSWCA 429 Para 1

…JA at 118D-E, Shekhani v Ardino [2009] NSWCA 361 at [11] - [99], Sangha v Baxter [2009] NSWCA 78 at [13] and, more recently, Azar v Kathirgamalingan [2012] NSWCA 429 at [87] - [90], has carefully explained the role credibility plays in relation to personal injury proceedings.…
Nominal Defendant v McLennan
[2012] NSWCA 148 Para 1

…and/or injuries received, issues of credit need to be determined with care. This was apparent in both appeals brought in Nominal Defendant v McLennan [2012] NSWCA 148 and McLennan v Nominal Defendant [2014] NSWCA 332.…
Hill v Richards
[2011] NSWCA 291 Para 1

…320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23].…
McLennan v The Nominal Defendant
[2010] NSWDC 28 Para 1

…ff's own evidence suggests alternate explanations for the injuries. This was the case in the two hearings and appeals in McLennan v Nominal Defendant [2010] NSWDC 28; Nominal Defendant v McLennan [2012] NSWCA 148; McLennan v Nominal Defendant [2014] NSWCA 332, where the competing versions for the injuries were eit…
Shekhani v Ardino
[2009] NSWCA 361 Para 1

…rt of Appeal, in a series of judgments, notably Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 per Handley JA at 118D-E, Shekhani v Ardino [2009] NSWCA 361 at [11] - [99], Sangha v Baxter [2009] NSWCA 78 at [13] and, more recently, Azar v Kathirgamalingan [2012] NSWCA 429 at [87] - [90], has carefully ex…
Mastronardi v State of New South Wales
[2009] NSWCA 270 Para 1

…erminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23].…
Mason v Demasi
[2009] NSWCA 227 Para 1

…eatening injuries rather than to record how the accident occurred: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State…
Sangha v Baxter
[2009] NSWCA 78 Para 1

…alco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 per Handley JA at 118D-E, Shekhani v Ardino [2009] NSWCA 361 at [11] - [99], Sangha v Baxter [2009] NSWCA 78 at [13] and, more recently, Azar v Kathirgamalingan [2012] NSWCA 429 at [87] - [90], has carefully explained the role credibility plays in relation t…
Container Terminals Australia Ltd v Huseyin
[2008] NSWCA 320 Para 1

…: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [20…
Kappadoukas v Fransepp Pty Ltd
[2006] NSWCA 366 Para 1

…A 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 at [56]; Mastronardi v State of New South Wales [2009] NSWCA 270 at [87]; Hill v Richards [2011] NSWCA 291 at [23].…
Guest v The Nominal Defendant
[2006] NSWCA 77 Para 1

…and whether the judge should, in the absence of the burden of proof being discharged, decline to accept either theory: Guest v The Nominal Defendant [2006] NSWCA 77).…
Davis v Council of the City of Wagga Wagga
[2004] NSWCA 34 Para 1

…ncern is to treat what could be life-threatening injuries rather than to record how the accident occurred: Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 at [35]; Mason v Demasi [2009] NSWCA 227 at [2]; Container Terminals Australia v Huseyin [2008] NSWCA 320 at [8]; Kappadoukas v Fransepp Pty Ltd [200…
Hecron Ltd v Cousins
[1990] NSWCA 93 Para 1

…It is well-recognised that the demeanour of a witness in the artificial atmosphere of the witness box is of little assistance. In Hecron v Cousens [1990] NSWCA 93 Kirby P explained:…
Nesterczuk v Mortimore
[1965] HCA 60 Para 1

…In Nesterczuk v Mortimer (1965) 115 CLR 140, where one vehicle struck another a glancing blow, Owen J (at 155) described the apportionment of liability as "a mere guess". Windeyer J said at 154:…
Jones v Dunkel
[1959] HCA 9

…f which the tribunal of fact may reasonably be satisfied ( Guest v The Nominal Defendant [2006] NSWCA 77 at [108], citing Jones v Dunkel[1959] HCA 8; 101 CLR 298 at 304-5)."…
Jones v Dunkel
[1959] HCA 8 Para 108

…of the truth of which the tribunal of fact may reasonably be satisfied ( Guest v The Nominal Defendant [2006] NSWCA 77 at [108], citing Jones v Dunkel[1959] HCA 8; 101 CLR 298 at 304-5)."…
Cavanagh v Nominal Defendant
[1958] HCA 57 Para 1

…e insufficient. Whether the "due" element is satisfied is what a reasonable person would have done in the circumstances: Cavanagh v Nominal Defendant (1958) 100 CLR 375 at 380 - 1 per Dixon CJ.…
Malco Engineering Pty Ltd v Ferreira
[1994] NSWCCA 117 Para 1

…ed in Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB) at [73]-[74]. The New South Wales Court of Appeal, in a series of judgments, notably Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 per Handley JA at 118D-E, Shekhani v Ardino [2009] NSWCA 361 at [11] - [99], Sangha v Baxter [2009] NSWCA 78 at [13] and, more recently…

Legislation cited in this decision · 2

Motor Accidents Compensation Act 1999 (NSW)
34, 34A 3 mentions (from Para 1)
Road Transport Act 2013 (NSW)
1 mention

Medium Neutral Citation:	Buggy v The Nominal Defendant [2014] NSWDC 224
Hearing dates:	3, 4 and 5 November 2014
Decision date:	28 November 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Plaintiff pay defendant's costs. (3) Liberty to apply in relation to costs.
Catchwords:	TORT - personal injury - plaintiff brings proceedings against Nominal Defendant for injuries incurred while avoiding a collision with an unknown vehicle - plaintiff illegally riding trail bike on the roadway at the time of the alleged accident - plaintiff describes an accident involving her trail bike and her boyfriend's trail bike, in different circumstances to those described to medico-legal experts, to hospitals and medical practitioners following the accident - plaintiff's evidence as to when she informed police of the accident challenged - reconciling different versions by a plaintiff of an accident - reliability of statements made to health professionals when the plaintiff was seriously injured - role of corroborative evidence - role of credit findings - discharging the burden of proof in proceedings against the Nominal Defendant - whether the defendant could raise due inquiry and search at the trial despite failing to object formally within the time frame set out in 34 and 34A Motor Accidents Compensation Act 1999 (NSW) - contributory negligence - damages
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 34 and 34A
Cases Cited:	Askarou v Nominal Defendant (NSW) (1989) 8 MVR 491 Azar v Kathirgamalingan [2012] NSWCA 429 Blandford v Fox 45 SR (NSW) 241 Cavanagh v Nominal Defendant (1958) 100 CLR 375 Container Terminals Australia v Huseyin [2008] NSWCA 320 Davis v Council of the City of Wagga Wagga [2004] NSWCA 34 Dimovski v GIO (NSW) (1995) 21 MVR 288 Freeman v Griffiths (1976) 13 SASR 494 Guest v The Nominal Defendant [2006] NSWCA 77 Harrison v Nominal Defendant (1975) 7 ALR 680 Hecron v Cousens [1990] NSWCA 93 Hill v Richards [2011] NSWCA 291 Hofer v Miller (1957) SASR 41 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Lec v Matthews (1926) 25 Ll L Rep 525 Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117 Mason v Demasi [2009] NSWCA 227 Mastronardi v State of New South Wales [2009] NSWCA 270 McLennan v Nominal Defendant [2010] NSWDC 28 McLennan v Nominal Defendant [2014] NSWCA 332 Nesterczuk v Mortimer (1965) 115 CLR 140 Nominal Defendant v McLennan [2012] NSWCA 148 Parker v Nominal Defendant [2013] NSWDC 15 Rehn v Nominal Defendant (Supreme Court of New South Wales, 9 April 1990) Sangha v Baxter [2009] NSWCA 78 Shekhani v Ardino [2009] NSWCA 361 Thornton v Telegraph Media Group Ltd [2011] EWHC 1884 (QB)
Texts Cited:	Lord Bingham, "The Judge as Juror: The Judicial Determination of Factual Issues" ("The Business of Judging", Oxford 2000, pp 3ff; Current Legal Problems, Vol 38 Stevens & Sons Ltd 1985 page 1-27) The Honourable Justice Ipp "Problems with Fact-finding" (Supreme Court of New South Wales, 2 September 2006) The Honourable Justice…