Lutton v Willingham and Nominal Defendant

[2012] NSWDC 92

District Court

New South Wales

Medium Neutral Citation:

Lutton v Willingham & Nominal Defendant [2012] NSWDC 92

Hearing dates:

21 & 22/06/12

Decision date:

27 June 2012

Jurisdiction:

Civil

Before:

Levy SC DCJ

Decision:

1.Verdict and judgment for the plaintiff against the first and second defendants on the issue of liability;

2.The defendants are to pay the plaintiff's costs of the trial of the liability issues on the ordinary basis unless otherwise ordered;

3.The exhibits may be returned;

4.A directions hearing is appointed before the List Judge for 9.30am on Monday 9 July 2012 to ascertain the readiness of the parties for a trial of the remaining damages issues;

5.Liberty to apply on 7 days notice if further orders are required.

^{[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]}

Catchwords:

TORTS - motorcycle accident on crown land - collision between two unregistered uninsured motorcycles on bushland track - separate issues tried - whether the plaintiff was a trespasser on crown land - whether first defendant was negligent - whether contributory negligence of plaintiff

Legislation Cited:

Civil Liability Act 2002, s 5B
Crown Lands Act 1989, Pt 5, s 80, s 87, s 160
Motor Accidents Compensation Act 1999, s 3, s 33
Road Transport (Vehicle Registration) Act 1997, s 4

Cases Cited:

Barker v R [1983] HCA 18; (1983) 153 CLR 338
Council of the Municipality of Randwick v Rutledge [1959] HCA 63; (1959) 102 CLR 54

Category:

Principal judgment

Parties:

Troy Lutton (Plaintiff)
Timothy Willingham (First defendant)
The Nominal Defendant (Second defendant)

Representation:

Mr A Lidden SC with Ms E Welsh (Plaintiff)
Mr J Stonham (Solicitor for first defendant)
Mr J Sexton SC (Second defendant)
Brydens (Plaintiff)
John Stonham & Co (First defendant)
GILD Insurance Litigation Pty Ltd (Second defendant)

File Number(s):

2011/121669

Publication restriction:

None

Judgment

Table of Contents

Nature of case	[1] - [4]
Issues	[5]
Facts	[6] - [25]
Issue 1 - Whether plaintiff was a trespasser	[26] - [48]
Issue 2 - Alleged negligence of first defendant	[49] - [64]
Issue 3 - Alleged contributory negligence	[65] - [71]
Disposition	[72]
Costs	[73]
Orders	[74]

Nature of the case

1. The plaintiff, Mr Troy Lutton, brings this action for damages for personal injury against the first defendant, Mr Timothy Willingham in respect of a motorcycle collision that occurred at about 4.30pm on the afternoon of 26 April 2009 between two motorcycles on an unsealed earthen bush track or trail at an intersection of two such tracks located in bushland on crown land at Yanderra, NSW.

1. The proceedings are governed by the provisions of the Motor Accidents Compensation Act 1999 ["MAC Act"]. As…