Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Maric v Nominal Defendant [2013] NSWCA 190 Hearing dates: 11 June 2013 Decision date: 26 June 2013 Before: Meagher JA at [1];
Leeming JA at [59];
Sackville AJA at [60]Decision: (1) Appeal dismissed.
(2) Appellant pay the first respondent's costs of the appeal.
(3) No order as to the costs of the second respondent.
[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: MOTOR VEHICLE ACCIDENT - claim against Nominal Defendant under Motor Accidents Compensation Act 1999, s 33(1) - appellant injured in motorcycle accident which he claimed was caused by second respondent riding uninsured and unregistered motorcycle - issue as to whether accident happened on a "road" and due to "fault" of second respondent - only direct evidence of circumstances of accident from those parties - adverse findings made as to reliability of that evidence - in absence of independent evidence primary judge did not err in not being satisfied that accident happened on a "road" - erred in finding "fault" of second respondent Legislation Cited: Motor Accidents Compensation Act 1999, ss 33, 39
Road Transport (Vehicle Registration) Act 1997, s 4Cases Cited: Commercial Union Assurance Co of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; 243 CLR 361
Maric v Nominal Defendant [2012] NSWDC 69
Mercantile Mutual Insurance Co Ltd v W Turner Pty Ltd (1982) 1 NSWLR 728
Ryan v Nominal Defendant [2005] NSWCA 59; 62 NSWLR 192
Schubert v Lee [1946] HCA 28; 71 CLR 589Category: Principal judgment Parties: Stefan Maric (Appellant)
The Nominal Defendant (First Respondent)
Geoffrey William Morrissey (Second Respondent)Representation: Counsel:
DJ Russell SC, N Ghabar (Appellant)
KP Rewell SC, AJJ Renshaw (First Respondent)
No appearance (Second Respondent)
Solicitors:
NSW Compensation Lawyers (Appellant)
Hunt & Hunt Lawyers (First Respondent)
File Number(s): 2012/168411 Decision under appeal
- Jurisdiction:
- 9101
- Citation:
- Maric v The Nominal Defendant
[2012] NSWDC 69- Date of Decision:
- 2012-05-16 00:00:00
- Before:
- Elkaim DCJ
- File Number(s):
- 2009/338297
Judgment
MEAGHER JA: The appellant (Mr Maric) sustained injuries to his right shoulder and left wrist when he came off his trail bike at Rydal near Lithgow on 6 April 2007. The primary judge (Elkaim DCJ) held that those injuries were caused by the negligence of another trail bike rider, the second respondent (Mr Morrissey), who had overtaken the appellant and cut him off. That caused the appellant to take evasive action which resulted in his being thrown over the handlebars of his bike, and landing heavily on the ground. Mr Morrissey's…
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- AGLC
- Maric v Nominal Defendant [2013] NSWCA 190
- Case
- [2013] NSWCA 190
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal were whether the primary judge erred in failing to find that the accident occurred on a "road" and in finding that the appellant was contributorily negligent. The Nominal Defendant, by notice of contention, argued that the primary judge should have dismissed the claim on the basis that the appellant had not established negligence on the part of Mr Morrissey. The resolution of these issues hinged on the evidence presented regarding the circumstances of the accident.
The Court noted that the only direct evidence concerning the accident came from the appellant and Mr Morrissey. The primary judge made adverse findings regarding the reliability of both witnesses, finding their accounts had changed significantly over time and were not entirely consistent. These findings were not challenged on appeal. The Court found that, in the absence of independent evidence, the primary judge did not err in not being satisfied that the accident occurred on a "road". However, the Court found that the primary judge did err in his finding of contributory negligence.
The appeal was dismissed. The appellant was ordered to pay the first respondent's costs of the appeal, with no order as to the costs of the second respondent.
Orders
Orders of the court
(1) Appeal dismissed.
(2) Appellant pay the first respondent's costs of the appeal.
(3) No order as to the costs of the second respondent.
[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.]
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
For the appellant to succeed under s 33(1) he had to establish that his injuries were caused by the "fault" of the driver of an uninsured vehicle in its use or operation on a "road" as defined in s 4 of the Road Transport (Vehicle Registration) Act 1997 (the Vehicle Registration Act). That definition is: The primary judge dismissed the appellant's claim and the Nominal Defendant's cross-claim against Mr Morrissey: Maric v Nominal Defendant [2012] NSWDC 69. Although the finding that the appellant's injury was caused by the negligence of Mr Morrissey whilst driving a vehicle which was not insured, his Honour was not satisfied that the accident happened on a "road". If the appellant had succeeded on that issue, the primary judge would have assessed his damages at $477,583, and reduced those damages by 50 per cent for contributory negligence. Although Mr Morrissey was joined by the appellant as a party to the appeal, the Nominal Defendant did not cross-appeal from the dismissal of its cross-claim against him. Mr Morrissey was not represented or present at the hearing of the appeal. The appellant appeals from the primary judge's failure to hold that the accident occurred on a "road" and against his finding of contributory negligence. The first respondent, by its notice of contention, says that the primary judge should have dismissed the appellant's claim because he had not established negligence on the part of Mr Morrissey. The resolution of each of these issues depended upon the evidence led as to where and how the accident happened. The only witnesses who gave evidence as to these matters were the appellant and Mr Morrissey. The primary judge made adverse findings as to the reliability of the evidence of each of them. Neither of those findings is challenged, and each remains relevant to the resolution of the issues in the appeal. That is because, as will be seen, there was no evidence as to the circumstances of the accident which did not have as its source one or other of those witnesses. The primary judge found their evidence to be unreliable principally because the versions they gave as to what happened had changed significantly over time and, as finally given, were not wholly consistent. By his statement of claim filed on 30 November 2009 the appellant pleaded the following facts as entitling him to bring the action for recovery of damages under s 33: The Nominal Defendant denied the allegations in each of those paragraphs. During the course of the hearing, it made the two concessions recorded by the primary judge at [3]: The version of events which identifies Mr Morrissey as the driver of the motorcycle which caused the accident did not emerge as part of the appellant's claim until late August 2009. Before that time, and from at least September 2007, the appellant had made a claim against the Nominal Defendant on the knowingly false basis that he could not identify the driver of the other motorcycle. The accident happened on the Friday evening of an Easter weekend. The appellant, Mr Morrissey and a Mr Bridge had travelled from Sydney to the Lithgow area in the appellant's van. That van also carried three trail bikes. Their destination was a campsite near Lake Lyell. Mr Morrissey and Mr Bridge had consumed significant quantities of alcohol on that journey.