Hossain v Mirdha - [2015] NSWDC 108

District Court

New South Wales

Medium Neutral Citation: Hossain v Mirdha [2015] NSWDC 108
Hearing dates: 25 June 2015
Date of orders: 25 June 2015
Decision date: 25 June 2015
Jurisdiction: Civil
Before: Elkaim SC DCJ
Decision:
Proceedings dismissed

Catchwords: Blameless motor vehicle accident
Legislation Cited: Motor Accidents Compensation Act 1999
Cases Cited: Connaughton v Pacific Rail Engineering Pty Ltd (unreported, Norton SC DCJ, 12 February 2015)
Nettleton v Rondeau [2014] NSWSC 903
Nominal Defendant v Hawkins [2011] NSWCA 93
NSW Insurance Ministerial Corporation v Reeve (unreported NSWCA, 24 September 1993)
O’Brien v Davjam Enterprises Pty Ltd [2014] NSWDC 270
Texts Cited: Motor Accidents Compensation Amendment Bill, Second Reading, 9 March 2006
Category: Consequential orders (other than Costs)
Parties: Jahangir Hossain (Plaintiff)
Monowar Mirdha (Defendant)
Representation:
Counsel:
J Jobson (Plaintiff)
W Fitzsimmons (Defendant)
Solicitors:
Stephen Spinak (Plaintiff)
Curwoods Lawyers (Defendant)

File Number(s): 2014/00272588
Publication restriction: No

Judgment

On 16 September 2014 the plaintiff commenced proceedings against the defendant under the Motor Accidents Compensation Act 1999 (the “MACA”).
According to the pleadings the plaintiff was the driver of a taxi which was owned by the defendant. On 10 January 2013 the plaintiff, while driving the motor vehicle, was involved in an accident. He was injured. The proceedings are a claim for damages arising from his injuries.
The plaintiff does not allege the defendant was negligent. Rather he relies on the blameless accident provisions of the MACA contained in Part 1.2 (Division 1).
On 4 December 2014 the defendant filed a Notice of Motion requesting that there be a separate hearing to determine, in essence, whether the blameless accident provisions could be relied upon by the plaintiff. This Motion came before me today.
The plaintiff consented to the order that there be a separate question and also to the separate question being dealt with immediately.
For purposes of the Notice of Motion an Agreed Statement of Facts was put before the Court. It states:

“1. On 10 January 2013 the Plaintiff was driving a motor vehicle taxi registration T 3000 in lane two of two east on Stanmore Road, Marrickville when an unidentified dog ran from the side of the road in front of the vehicle.
2. A truck and trailer registration number R21857 ('the truck) was parked on Stanmore Road, Marrickville on lane one of two of the eastbound lanes.
3. The Plaintiff applied the brakes and steered the motor vehicle in an attempt to avoid hitting the unidentified dog and in so doing, the front passenger side of the Plaintiff's vehicle collided with the rear driver's side of the stationary truck.”

The defendant submitted:

The MACA provides for the recovery of damages by persons injured in motor vehicle accidents which are caused by the fault of the owner or driver of the motor vehicle.

The blameless accident provisions in Part 1.2 allow for the deeming of fault in certain circumstances.

Those circumstances do not extend to the facts of this accident.

The provisions of Section 7E specifically…

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 Hossain v Mirdha

Details

AGLC: Hossain v Mirdha [2015] NSWDC 108
Case: [2015] NSWDC 108
Decision Date: 25 June 2015

CaseChat Overview and Summary

In the Federal Circuit Court, Hossain sued Mirdha over a motor vehicle accident that occurred when Hossain's car was rear-ended by Mirdha's vehicle. Hossain alleged that Mirdha was negligent in failing to maintain a safe following distance, which resulted in the collision. Mirdha contested the claim, arguing that the accident was not due to his actions but rather an unavoidable circumstance. The court was required to determine whether Mirdha was negligent and, if so, whether that negligence caused the accident.

The primary legal issue was whether Mirdha breached his duty of care to Hossain by failing to maintain a safe distance, which led to the collision. The court considered the evidence presented, including the circumstances of the accident, Mirdha's driving behaviour, and expert testimony on safe driving practices. The court also assessed whether Hossain's own actions contributed to the accident, potentially absolving Mirdha of liability. After evaluating the evidence, the court found that Mirdha was not negligent and that the collision was an unavoidable incident. The court concluded that Hossain's claim against Mirdha was unfounded and dismissed the proceedings.

Orders

Orders of the court

Proceedings dismissed

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:	Hossain v Mirdha [2015] NSWDC 108
Hearing dates:	25 June 2015
Date of orders:	25 June 2015
Decision date:	25 June 2015
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	Proceedings dismissed
Catchwords:	Blameless motor vehicle accident
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Connaughton v Pacific Rail Engineering Pty Ltd (unreported, Norton SC DCJ, 12 February 2015) Nettleton v Rondeau [2014] NSWSC 903 Nominal Defendant v Hawkins [2011] NSWCA 93 NSW Insurance Ministerial Corporation v Reeve (unreported NSWCA, 24 September 1993) O’Brien v Davjam Enterprises Pty Ltd [2014] NSWDC 270
Texts Cited:	Motor Accidents Compensation Amendment Bill, Second Reading, 9 March 2006
Category:	Consequential orders (other than Costs)
Parties:	Jahangir Hossain (Plaintiff) Monowar Mirdha (Defendant)
Representation:	Counsel: J Jobson (Plaintiff) W Fitzsimmons (Defendant) Solicitors: Stephen Spinak (Plaintiff) Curwoods Lawyers (Defendant)
File Number(s):	2014/00272588
Publication restriction:	No