Dowedeit v Nominal Defendant

[2015] NSWDC 182

District Court

New South Wales

Medium Neutral Citation:	Dowedeit v Nominal Defendant [2015] NSWDC 182
Hearing dates:	22, 23, 24 and 25 June 2015
Date of orders:	05 August 2015
Decision date:	05 August 2015
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1)   Judgment in favour of the plaintiff in the sum of $174,550. (2)   Defendant to pay the plaintiff’s costs. (3)   Stay order (2) for two weeks and until further order of the Court if further submissions on costs are received within that time.
Catchwords:	MOTOR ACCIDENTS COMPENSATION – plaintiff found on footpath near roadway – issue as to cause of injuries – multiple theories - motor vehicle, fall from balcony or assault - blameless accident – contributory negligence
Legislation Cited:	Motor Accidents Compensation Act 1999, s 7B, s 7C, s 7F, s 7G
Cases Cited:	Axiak v Ingram [2012] NSWCA 311 MWJ v R (2005) 222 ALR 436 Nominal Defendant v McLennan [2012] NSWCA 148 Pennington v Norris (1956) 96 CLR 10 West v Mead [2003] NSWSC 161
Category:	Principal judgment
Parties:	Ronald Dowedeit (plaintiff) Nominal Defendant (defendant)
Representation:	Counsel: Mr P Doherty SC with Mr D Morgan (plaintiff) Mr J Turnbull with Ms S Warren (defendant)     Solicitors: Garling Lawyers (plaintiff) Curwoods Lawyers (defendant)
File Number(s):	2012/339572
Publication restriction:	None

Judgment

Introduction

1. On 27 February 2012 Ronald Dowedeit was found by the side of the road outside his apartment. He was seriously injured. He claims damages from the Nominal Defendant on the basis that his injuries resulted from the impact of a motor vehicle.

2. The cause of Mr Dowedeit’s injuries was the primary issue in the proceedings.

Background

3. Mr Dowedeit was born in Bremen, Germany in July 1965 where he grew up, was educated and commenced employment as a registered nurse. In 1993 he moved to England and worked in London and Kent until 2009. He specialises in cardiac care, assisting with angiograms and angioplasties.

4. The climate drew Mr Dowedeit to Australia in 2009, when he obtained a four-year visa as a result of a sponsorship and employment with the Royal Prince Alfred Hospital (“RPA”). His four-year visa was renewed in 2013. He earns about $1,500 net per week and is well regarded in a demanding job.

5. From the time Mr Dowedeit commenced at the RPA he worked about 42 hours a week and was sometimes on call two nights per week. He is a relatively tall man of about 185cm and was healthy, jogging and swimming once or twice a week. He enjoyed his work but thought sometimes he was depressed. He has plans to stay in Australia, continue to work and hopes to obtain permanent residency in 2017.

6. About a year or two prior to his injuries, Mr Dowedeit moved into a first floor apartment on Denison Rd, Dulwich Hill. His apartment has a balcony which is bounded by a concrete wall a little over 1.2m high. Beyond the inside wall is a garden bed and thereafter another similar concrete wall, so the thickness of…