30-31 May 2016, 1-3 June 2016 (Nowra); 7-8 June 2016 (Sydney)
Date of orders:
20 January 2017
Decision date:
20 January 2017
Jurisdiction:
Civil
Before:
Neilson DCJ
Decision:
Verdict and judgment for the plaintiff for $1,114,493
Catchwords:
MOTOR ACCIDENTS COMPENSATION – Collision between two motorcycles, one driven by plaintiff (P) and other driver by Lamont (L) – Each motorcycle was an “offroad bike” – Neither bike registrable or insured – Both P and L had been in each other’s company for over 18 hours – Each had been consuming alcohol – L’s BAC was 0.156 – P’s BAC was of no evidentiary value – Collision occurred before any natural light, about 5.15 am, on a public street – Neither P or L had any reliable recollection of the 12 hours preceding the collision – Whether L owed a duty of care to P – Extent of P’s contributory negligence – P was catastrophically injured – Extent of P’s non-economic loss – What P could have been expected to earn but for collision – Whether P had any earning capacity post collision
[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
AGLC
Cooper v Nominal Defendant [2017] NSWDC 3
Case
[2017] NSWDC 3
Decision Date
CaseChat Overview and Summary
In the matter of Cooper v Nominal Defendant, the plaintiff, Cooper, alleged that he was catastrophically injured in a collision with the defendant, Lamont, who was driving another motorcycle. The collision occurred before dawn on a public street, and neither party had any reliable recollection of the events leading up to the accident. Both parties had been consuming alcohol, and neither motorcycle was registrable or insured. The plaintiff sought compensation under the Motor Accidents Act, claiming that the defendant was negligent and that he suffered non-economic loss, loss of earnings, and loss of earning capacity due to the injuries sustained.
The primary legal issues before the court were whether the defendant owed a duty of care to the plaintiff and the extent of the plaintiff's contributory negligence. The court needed to determine if the defendant's blood alcohol concentration of 0.156, and the plaintiff's consumption of alcohol, contributed to the collision. Additionally, the court had to assess the extent of the plaintiff's non-economic loss, what he could have been expected to earn but for the collision, and his earning capacity post-collision.
The court found that the defendant owed a duty of care to the plaintiff, despite the challenging circumstances of the collision. It was determined that the defendant's blood alcohol concentration significantly contributed to the collision. The court also found the plaintiff to be contributorily negligent, though this did not absolve the defendant of liability. The plaintiff's non-economic loss was assessed, and his potential future earnings were calculated based on his age, occupation, and the nature of his injuries. The court concluded that the plaintiff had no earning capacity post-collision.
The final orders of the court were that judgment and verdict be entered in favour of the plaintiff, Cooper, in the sum of $1,114,493. This amount reflected compensation for the plaintiff's non-economic loss, loss of earnings, and loss of earning capacity.
Orders
Orders of the court
Verdict and judgment for the plaintiff for $1,114,493