Jay Alexander Bramstedt v The Nominal Defendant

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District Court


New South Wales

Medium Neutral Citation: Jay Alexander Bramstedt v The Nominal Defendant [2016] NSWDC 4
Hearing dates:14, 15 & 18 December 2015
Date of orders: 28 January 2016
Decision date: 28 January 2016
Jurisdiction:Civil
Before: Sidis ADCJ
Decision:

(1) Verdict for the defendant.
(2) The plaintiff is to pay the defendant’s costs of the proceedings on an indemnity basis.
(3) The exhibits will be retained for 28 days.
(4) My reasons are published.

Catchwords: TORTS – negligence - motor vehicle accident - causation - material on road surface - source of material - whether a hazard - available inferences - alternative hypotheses - duty of care - blameless accidents - contributory negligence.
Legislation Cited: Australian Road Rules 2014
Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Cases Cited: Connaughton v Pacific Rail Engineering Pty Ltd [2015] NSWDC 89
Dominello v Nominal Defendant & Anor [2009] NSWCA 95
Hossain v Mirdha [2015] NSWDC 108
Incorporated Nominal Defendant v Knowles [1987] VR 138
Luxton v Vines (1952) 85 CLR 352
Melenewycz v Whitfield [2015] NSWSC 1482
Nominal Defendant v Genn [2004] NSWCA 306
Category:Principal judgment
Parties: Jay Alexander Bramstedt – Plaintiff
The Nominal Defendant – Defendant
Representation:

Counsel:
Dr Morrison SC with Mr Longhurst - Plaintiff
Mr Rewell SC - Defendant

  Solicitors:
Kells Lawyers - Plaintiff
McInnes Wilson Lawyers NSW - Defendant
File Number(s):2012/254562
Publication restriction:None

Judgment

  1. At about 4.30 pm on 2 September 2011 the car driven by the plaintiff in the northbound lane of Yellow Rock Road, Tullimbar, a small community near Albion Park, NSW, crossed into the southbound lane and collided with a Toyota Landcruiser. The plaintiff was seriously injured as a result of the collision. The Court was asked to deal with the issue of liability in advance of the assessment of any compensation to which the plaintiff might be entitled.

  2. The plaintiff acknowledged that the driver of the Landcruiser was not at fault. He claimed against the Nominal Defendant as the insurer of an unidentified motor vehicle, the driver of which was alleged to have negligently allowed gravel or like material to be deposited across both lanes of Yellow Rock Road. In the alternative, he claimed that his injuries occurred as a result of a breach of Regulation 292(c) of the Australian Road Rules or, in the further alternative, that they were suffered in a “blameless accident” as defined in s 7A of the Motor Accidents Compensation Act 1999.

The plaintiff’s account of the accident

  1. The plaintiff was driving a 1992 Ford Laser sedan that he owned for five to six weeks prior to September 2011. He was unaware that this early model vehicle was not equipped with the ABS braking system.

  2. He was an experienced driver. He held a driver’s license for 12 years with an unblemished driving record. He was familiar with Yellow Rock Road, having driven it twice daily over a period of four years while working at premises located on the road. He was…

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Details
Case
[2016] NSWDC 4
Decision Date

CaseChat Overview and Summary

The plaintiff, Jay Alexander Bramstedt, brought an action against the Nominal Defendant, claiming damages arising from a motor vehicle accident. The case was heard by the court, which had to determine whether the Nominal Defendant was negligent and if so, whether this negligence caused the plaintiff’s injuries. The central issue was whether material on the road surface constituted a hazard and if the Nominal Defendant had a duty of care to address this potential hazard. Another issue was whether the accident could be attributed to contributory negligence on the part of the plaintiff.

The court considered the evidence and arguments presented regarding the causation of the accident. It examined the available inferences and alternative hypotheses concerning the source of the material on the road surface and whether it constituted a hazard. The court found that the plaintiff had not discharged the onus of proving that the Nominal Defendant was negligent and that such negligence caused the accident. The court held that there were insufficient grounds to conclude that the material on the road constituted a hazard, and that the Nominal Defendant had no duty of care to address it. Furthermore, the court found that the plaintiff's actions contributed to the accident, thereby absolving the Nominal Defendant of liability. The plaintiff's claim was dismissed.

The court ordered that the Nominal Defendant be awarded costs of the proceedings on an indemnity basis. The plaintiff was directed to pay these costs. The exhibits were to be retained for a period of 28 days. The court’s detailed reasons for the decision were published.

Orders

Orders of the court

(1) Verdict for the defendant.

(2) The plaintiff is to pay the defendant’s costs of the proceedings on an indemnity basis.

(3) The exhibits will be retained for 28 days.

(4) My reasons are published.

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

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