Hobson v Rogers

[2018] NSWDC 414

District Court

New South Wales

Medium Neutral Citation:	Hobson v Rogers [2018] NSWDC 414
Hearing dates:	30 October 2018 and 1 November 2018
Date of orders:	20 December 2018
Decision date:	20 December 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Judgment for the defendant. (2) Plaintiff pay defendant’s costs. (3) Liberty to apply in relation to costs. (4) Exhibits retained for 28 days.
Catchwords:	PERSONAL INJURY – plaintiff injured in motorcycle accident – liability – quantum – whether the explanation for delay in commencing proceedings was full and satisfactory conformably with s 109 Motor Accidents Compensation Act 1999 (NSW) – no issue of principle
Legislation Cited:	Motor Accidents Compensation Act 1999 (NSW), ss 66, 109 and 110
Cases Cited:	Container Terminals Australia v Huseyin [2008] NSWCA 320 Hill v Richards [2011] NSWCA 291 Kappadoukas v Fransepp Pty Ltd [2006] NSWCA 366 Makita (Australia) Pty Ltd v Sprowles (2001) 52 NSWLR 705 Mason v Demasi [2009] NSWCA 227 Mastronardi v State of New South Wales [2009] NSWCA 270 Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953 Walker v Howard [2009] NSWCA 408
Category:	Principal judgment
Parties:	Plaintiff: George Brian Hobson Defendant: Glenn Rogers
Representation:	Counsel: Plaintiff: Mr J Reimer Defendant: Mr A Black SC   Solicitors: Plaintiff: Maxwell Berghouse & Ives Defendant: Holman Webb Lawyers
File Number(s):	2016/373484
Publication restriction:	None

Judgment

The plaintiff’s claim for damages for personal injury

1. The plaintiff brings proceedings for damages arising out of the circumstances in which he suffered injury when he fell from his motorcycle onto the hard shoulder of the road while riding along Henry Lawson Drive, Mudgee in the State of New South Wales on 12 October 2008.

2. The accident is described in the statement of claim as follows:

“1. On 12 October 2008 at about 11.30am, the Plaintiff was riding his Triumph motorcycle, registered No. WUC70 in a generally southerly direction along Henry Lawson Drive, Mudgee in the State of New South Wales.

2. As the Plaintiff proceeded, the Plaintiff’s motorcycle approached a Honda motorcycle, register No. GROO, ridden by the Defendant which had slowed to almost a stop or had stopped.

3. Whilst the Plaintiff was overtaking the Defendant’s motorcycle, the Defendant accelerated his motorcycle rapidly which required the plaintiff to take sudden action to avoid a collision.

4. In so doing, the plaintiff lost control of his motorcycle, and crashed onto the hard shoulder of the road.”

3. The particulars of negligence pleaded in the Amended Statement of Claim are as follows:

1. Failing to allow the plaintiff to overtake in a safe manner;

2. Accelerating rapidly and into the path of the plaintiff’s motorcycle so as to oblige the plaintiff to take emergency action;

3. Failing to take any adequate precautions for the plaintiff’s safety;

4. Putting the plaintiff in a position of peril.

4. The defences raised in the pleadings are:

1. The defendant denies that the plaintiff had a valid cause of action in that the plaintiff first made a claim against the Nominal Defendant which was settled by a…