Dowedeit v Nominal Defendant

Case [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

  1. 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.

  2. 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.

  3. 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.

  4. 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…

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AGLC
Dowedeit v Nominal Defendant [2015] NSWDC 182
Case
[2015] NSWDC 182
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Queensland, the case of Dowedeit v Nominal Defendant concerned a plaintiff found on a footpath near a roadway, with multiple theories proposed regarding the cause of her injuries. These included a motor vehicle incident, a fall from a balcony, or an assault. The plaintiff sought compensation under the Motor Accidents Insurance Act 1994. The defendant argued that the plaintiff’s injuries were not caused by a motor vehicle accident and that the plaintiff was contributorily negligent. The court had to determine the cause of the plaintiff’s injuries, whether they resulted from a motor vehicle accident, and if so, whether the defendant was liable for compensation. Additionally, the court needed to consider the plaintiff's contributory negligence.

The court examined the evidence and found that the plaintiff’s injuries were caused by a motor vehicle accident. The court concluded that the defendant was liable for compensation as the plaintiff was blameless and her injuries were not due to contributory negligence. The court further found that the plaintiff was not contributorily negligent in the circumstances of the accident. The court awarded the plaintiff $174,550 in damages. The defendant was ordered to pay the plaintiff's costs, with a stay order on the payment of costs for two weeks and until further order of the court if further submissions on costs were received within that time.

The Supreme Court of Queensland found in favour of the plaintiff and ordered the defendant to pay $174,550 in damages. The court also ordered the defendant to pay the plaintiff's costs. The stay order on the payment of costs was set for two weeks and until further order of the court if further submissions on costs were received within that time. This decision provides clarity on the circumstances under which compensation can be claimed under the Motor Accidents Insurance Act 1994, particularly in cases where multiple causes of injury are proposed.

Orders

Orders of the court

(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.

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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