Fuller v McLeod - [2016] NSWDC 377

District Court

New South Wales

Medium Neutral Citation: Fuller v McLeod [2016] NSWDC 377
Hearing dates: 21 – 24 November 2016
Date of orders: 30 November 2016
Decision date: 30 November 2016
Jurisdiction: Civil
Before: Neilson DCJ
Decision:
Verdict and judgment for the plaintiff against the defendant for $126,186.19
Order the defendant to pay the plaintiff’s costs on the ordinary basis until 22 April 2016 and on an indemnity basis from 23 April 2016
Catchwords:
MOTOR ACCIDENTS COMPENSATION – Collision between a prime mover being driven by P and a trailer being towed by a twin cab utility being driven by D – Property damage only – A short time later a road-side confrontation between P and D – What occurred hotly disputed – Credibility of both parties in question – Accepted that confrontation was acrimonious and that D drove off but in process his vehicle or its trailer collided with P and knocked him down
Defences of contributory negligence and under Civil Liability Act 2002 s52 considered
Legislation Cited: Civil Liability Act 2002
Workers Compensation Act 1987
Cases Cited: Fox v Wood [1981] HCA 41; (1981) 148 CLR 438
Sahade v Bischoff [2015] NSWCA 418
Category: Principal judgment
Parties: Craig Anthony Fuller (Plaintiff)
Peter William McLeod (Defendant)
Representation:
Counsel:
Mr J Ringrose (Plaintiff)
Mr D Hanna (Defendant)
Solicitors:
Ticli Blaxland Lawyers (Plaintiff)
Moray & Agnew Lawyers (Defendant)

File Number(s): 2014/96759
Publication restriction: No

Judgment

HIS HONOUR: The plaintiff, Mr Craig Anthony Fuller, of Bowraville, brings an action for damages for personal injury which he says he sustained in a motor vehicle accident on 27 April 2011. The plaintiff's claim is brought in the tort of negligence. It must be borne in mind that that is the tort relied upon rather than the tort of trespass to the person, many histories of such a tort having been given by the plaintiff to medical practitioners over the ensuing five years.
The first paragraph of the statement of claim is this:

"On 27 April 2011 at approximately 3.35pm the Plaintiff had parked his 604 Kenworth B‑Double registration number 141 KKV on the left‑hand side of Pacific Highway on northbound lane near New Italy[,] south of Woodburn, after an incident with a Mitsubishi twin cab Utility Triton registration number 161 KES with a trailer driven by the Defendant when the said vehicle driven [by] the defendant had parked behind the Plaintiff's B‑Double. The Defendant commenced driving the said vehicle in a northerly direction hitting the Plaintiff and running over the Plaintiff with the back wheels of the trailer."

Because it assists in the determination of the question of liability, it is important to bear in mind the plaintiff's background.

The plaintiff’s background

The plaintiff was born on 4 September 1971. At the time of the accident alleged, 27 April 2011, he was 39 years old. He is now 45 years old. The plaintiff was a poor scholar. He left school halfway through year 9 as he was unable to read or write.…

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 Fuller v McLeod

Details

AGLC: Fuller v McLeod [2016] NSWDC 377
Case: [2016] NSWDC 377
Decision Date: 30 November 2016

CaseChat Overview and Summary

The case of Fuller v McLeod involved a dispute between the plaintiff, Fuller, and the defendant, McLeod, regarding a collision between Fuller's prime mover and McLeod's trailer. The incident resulted in property damage only, but a subsequent confrontation between the two drivers led to further complications. Both parties disputed what occurred during the confrontation, and the court had to assess their credibility. The court accepted that the confrontation was heated and that McLeod left the scene, but not before his vehicle or trailer struck Fuller, causing him to fall. The plaintiff sought damages for the collision and related injuries, while the defendant raised defences of contributory negligence and attempted to rely on section 52 of the Civil Liability Act 2002.

The primary legal issues before the court were whether Fuller was entitled to damages for the collision and whether McLeod's defences of contributory negligence and section 52 of the Civil Liability Act 2002 were valid. The court had to determine the facts of the confrontation, assess the credibility of the parties, and apply the relevant statutory provisions. The court found that Fuller had been knocked down by McLeod's vehicle or trailer during the confrontation, and therefore, Fuller was entitled to damages for the collision and related injuries. The court also found that McLeod's defences were not successful, as Fuller's contributory negligence was not significant enough to bar his recovery, and section 52 did not apply to the circumstances of the case.

In reaching its decision, the court considered the evidence presented by both parties, including witness statements, expert opinions, and the physical evidence from the scene. The court found Fuller's evidence to be more credible than McLeod's, particularly regarding the events of the confrontation. The court also noted that McLeod's departure from the scene and the subsequent collision with Fuller were significant factors in determining liability. Based on these findings, the court awarded Fuller damages in the amount of $126,186.19, along with an order for McLeod to pay Fuller's costs on the ordinary basis until 22 April 2016 and on an indemnity basis from 23 April 2016. The court's decision provided a clear outcome for both parties and resolved the dispute in favour of Fuller.

Orders

Orders of the court

Verdict and judgment for the plaintiff against the defendant for $126,186.19

Order the defendant to pay the plaintiff’s costs on the ordinary basis until 22 April 2016 and on an indemnity basis from 23 April 2016

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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Medium Neutral Citation:	Fuller v McLeod [2016] NSWDC 377
Hearing dates:	21 – 24 November 2016
Date of orders:	30 November 2016
Decision date:	30 November 2016
Jurisdiction:	Civil
Before:	Neilson DCJ
Decision:	Verdict and judgment for the plaintiff against the defendant for $126,186.19 Order the defendant to pay the plaintiff’s costs on the ordinary basis until 22 April 2016 and on an indemnity basis from 23 April 2016
Catchwords:	MOTOR ACCIDENTS COMPENSATION – Collision between a prime mover being driven by P and a trailer being towed by a twin cab utility being driven by D – Property damage only – A short time later a road-side confrontation between P and D – What occurred hotly disputed – Credibility of both parties in question – Accepted that confrontation was acrimonious and that D drove off but in process his vehicle or its trailer collided with P and knocked him down Defences of contributory negligence and under Civil Liability Act 2002 s52 considered
Legislation Cited:	Civil Liability Act 2002 Workers Compensation Act 1987
Cases Cited:	Fox v Wood [1981] HCA 41; (1981) 148 CLR 438 Sahade v Bischoff [2015] NSWCA 418
Category:	Principal judgment
Parties:	Craig Anthony Fuller (Plaintiff) Peter William McLeod (Defendant)
Representation:	Counsel: Mr J Ringrose (Plaintiff) Mr D Hanna (Defendant) Solicitors: Ticli Blaxland Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendant)
File Number(s):	2014/96759
Publication restriction:	No