Jay Alexander Bramstedt v The Nominal Defendant

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

3. 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.

4. 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…