Elkodat v The Nominal Defendant - [2020] NSWDC 14

District Court

New South Wales

Medium Neutral Citation: Elkodat v The Nominal Defendant [2020] NSWDC 14
Hearing dates: 15-18 October 2019; 11 November 2019; 25-26 November 2019
Date of orders: 14 February 2020
Decision date: 14 February 2020
Jurisdiction: Civil
Before: Dicker SC DCJ
Decision:
(1) Judgment for the defendant.
(2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.
(3) Liberty to the parties to apply within 14 days for a different costs order to that in (2).
(4) Exhibits to be returned in 28 days.

Catchwords: Torts – negligence – motor vehicle accident – liability in issue – whether an accident occurred as claimed by the plaintiff – plaintiff has post-accident medical conditions and injuries unrelated to the alleged accident – extent of damages – extent of past loss of earnings and earning capacity and loss of future earning capacity – alleged disadvantaged position of The Nominal Defendant
Legislation Cited: Civil Liability Act 2002 (NSW)
Evidence Act 1995 (NSW)
Motor Accidents Compensation Act 1999 (NSW)
Road Rules 2014 (NSW)
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Briginshaw v Briginshaw (1938) 60 CLR 336
Croucher v Cachia [2016] NSWCA 132
Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1
Dall v Choll [2018] NSWCA 219
Danckert v Tonkin [2015] NSWSC 1570
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Graham v Baker (1961) 106 CLR 340
Leung v Paul Mervyn Fordyce [2019] NSWSC 18
Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413
Marien v Gardiner [2013] NSWCA 396
McPherson v Dowell [2018] NSWDC 348
New South Wales v Moss (2000) 54 NSWLR 536
Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328
Sangha v Baxter [2009] NSWCA 78
Smith v Alone [2017] NSWCA 287
The Nominal Defendant v Cordin [2019] NSWCA 85
Watson v Foxman (1995) 49 NSWLR 315
Category: Principal judgment
Parties: Aiman Elkodat (Plaintiff)
The Nominal Defendant (Defendant)
Representation:
Counsel:
L Grey (Plaintiff)
W Fitzsimmons SC (Defendant)
Solicitors:
Mannah Lawyers (Plaintiff)
Moray & Agnew (Defendant)

File Number(s): 2018/00302488

Judgment

In these proceedings, the plaintiff, Mr Aiman Elkodat, seeks damages from the Nominal Defendant under the Motor Accidents Compensation Act 1999 (NSW) (“MACA”) for personal injuries suffered by him alleged to have occurred as a result of the negligence of the driver of an unidentified vehicle which struck him whilst he was allegedly walking across a pedestrian crossing on 3 August 2015 in Ninth Avenue, Campsie in the State of New South Wales. It is alleged by the plaintiff that he was with his friend Mr George Savvas at the time of the accident. There is no issue between the parties that the plaintiff has undertaken due enquiry and search in relation to the unidentified vehicle. The defendant says that the plaintiff has not established his case to the required standard.
The plaintiff has not reached the impairment threshold of greater than 10% which permits the…

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.

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Details

Case: [2020] NSWDC 14
Decision Date: 14 February 2020

CaseChat Overview and Summary

In the case of Elkodat v The Nominal Defendant, the plaintiff sought compensation for injuries sustained in a motor vehicle accident, with the defendant contesting liability and damages. The dispute was adjudicated in the court, which had to determine the factual occurrence of the accident as well as the extent of the plaintiff's injuries and damages claimed.

The primary legal issues before the court were the authenticity of the accident as alleged, the connection between the plaintiff's post-accident medical conditions and the alleged accident, and the quantification of damages. The court had to assess whether the plaintiff's injuries and medical conditions were a direct result of the accident and the degree of past loss of earnings, earning capacity, and future earning capacity. Furthermore, the court had to consider whether the defendant was at a disadvantage due to the plaintiff's circumstances.

After careful consideration of the evidence presented, the court ruled in favour of the defendant, finding that the plaintiff had not proven the occurrence of the accident as claimed and that the injuries and conditions were not causally linked to the alleged incident. The court also determined that the plaintiff had not sufficiently established the extent of his damages. Consequently, the court ordered that the plaintiff pay the defendant's costs and specified the timeline for the return of exhibits.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed.

(3) Liberty to the parties to apply within 14 days for a different costs order to that in (2).

(4) Exhibits to be returned in 28 days.

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

Full text does not contain this section.

Medium Neutral Citation:	Elkodat v The Nominal Defendant [2020] NSWDC 14
Hearing dates:	15-18 October 2019; 11 November 2019; 25-26 November 2019
Date of orders:	14 February 2020
Decision date:	14 February 2020
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendant. (2) The plaintiff is to pay the defendant’s costs of the proceedings as agreed or assessed. (3) Liberty to the parties to apply within 14 days for a different costs order to that in (2). (4) Exhibits to be returned in 28 days.
Catchwords:	Torts – negligence – motor vehicle accident – liability in issue – whether an accident occurred as claimed by the plaintiff – plaintiff has post-accident medical conditions and injuries unrelated to the alleged accident – extent of damages – extent of past loss of earnings and earning capacity and loss of future earning capacity – alleged disadvantaged position of The Nominal Defendant
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Motor Accidents Compensation Act 1999 (NSW) Road Rules 2014 (NSW)
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Briginshaw v Briginshaw (1938) 60 CLR 336 Croucher v Cachia [2016] NSWCA 132 Cubillo v Commonwealth (No 2) [2000] FCA 1084; (2000) 103 FCR 1 Dall v Choll [2018] NSWCA 219 Danckert v Tonkin [2015] NSWSC 1570 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 Graham v Baker (1961) 106 CLR 340 Leung v Paul Mervyn Fordyce [2019] NSWSC 18 Manley v Alexander [2005] HCA 79; (2005) 80 ALJR 413 Marien v Gardiner [2013] NSWCA 396 McPherson v Dowell [2018] NSWDC 348 New South Wales v Moss (2000) 54 NSWLR 536 Perpetual Trustees Victoria Ltd v Cox [2014] NSWCA 328 Sangha v Baxter [2009] NSWCA 78 Smith v Alone [2017] NSWCA 287 The Nominal Defendant v Cordin [2019] NSWCA 85 Watson v Foxman (1995) 49 NSWLR 315
Category:	Principal judgment
Parties:	Aiman Elkodat (Plaintiff) The Nominal Defendant (Defendant)
Representation:	Counsel: L Grey (Plaintiff) W Fitzsimmons SC (Defendant) Solicitors: Mannah Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2018/00302488