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Maric v The Nominal Defendant

Maric v The Nominal Defendant

Case [2012] NSWDC 69 16 May 2012

Contributory Negligence

Verdict

Uninsured Vehicle

Tort Law

Type to search within this case.

District Court

New South Wales

Medium Neutral Citation: Maric v The Nominal Defendant [2012] NSWDC 69
Hearing dates: 30/04/12-03/05/12, 07/05/12-09/05/12
Decision date: 16 May 2012
Jurisdiction: Civil
Before: Elkaim SC DCJ
Decision:
Verdict for the defendant. Verdict for the cross-defendant on the cross-claim

Catchwords: Uninsured vehicle, location of accident, contributory negligence.
Legislation Cited: Civil Liability Act 2002
Motor Accidents Compensation Act 1999
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Mason v Demasi [2009] NSWCA 227
Rabay v Bristow [2005] NSWCA 199
Ryan v Nominal Defendant (2005) 62 NSWLR 192
Category: Principal judgment
Parties: Stefan Maric (Plaintiff)
The Nominal Defendant (Defendant)
Geoffrey William Morrissey (Cross Defendant)
Representation: H Marshall SC and N Ghabar (Plaintiff)
AJJ Renshaw, GJ Stanton and B Adam (Defendant)
In Person (Cross Defendant)
NSW Compensation Lawyers (Plaintiff)
Hunt & Hunt (Defendant)
In Person (Cross Defendant)

File Number(s): 2009/00338297
Publication restriction: No

Judgment

On 6 April 2007 the plaintiff was injured while riding his motorcycle. He says his injuries were caused by the negligence of a Mr Geoffrey Morrissey who was riding a separate motorcycle. Because Mr Morrissey's motorcycle was uninsured the plaintiff has sued the Nominal Defendant under Section 33 of the Motor Accidents Compensation Act 1999 (the "MACA"). The Nominal Defendant has in turn cross-claimed against Mr Morrissey, relying on Section 39 of the same Act.

The plaintiff seeks damages under the following heads: non-economic loss, past and future economic loss, past and future medical expenses, past gratuitous care and future commercial care.

The defendant conceded that the plaintiff was injured in an accident involving a motorcycle but denied virtually every other aspect of the plaintiff's claim. The denial extended to the location of the accident. This was said to be the Old Western Road at Rydal, near Lithgow. Ultimately the defendant accepted this road was a public road but continued to deny that the accident had occurred on this road.

In an Amended Defence filed on 3 April 2012 the defendant relied upon Section 5L of the Civil Liability Act 2002 (the "CLA") to defeat the whole of the plaintiff's claim. When it became apparent, almost at the end of the hearing, that Section 5L could not be relied upon in a MACA action, this defence was abandoned.

During final submissions I allowed the defendant to file a Further Amended Defence on 9 May 2012. In this pleading further allegations of contributory negligence were added. I thought the new particulars reflected the issues between the parties and had been well ventilated through the hearing.

Despite this conclusion I gave leave to the plaintiff to re-open his case if he wished to call any further evidence to meet the allegations. No further evidence was called by the plaintiff and submissions continued. Learned senior counsel for the plaintiff said "We're ready to meet it" (T 390.21). My decision to allow…

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 Maric v The Nominal Defendant

Details

AGLC: Maric v The Nominal Defendant [2012] NSWDC 69
Case: [2012] NSWDC 69
Decision Date: 16 May 2012

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Maric brought an action against the Nominal Defendant, seeking damages for injuries sustained in a car accident. The accident occurred when the Nominal Defendant, who was uninsured, collided with the plaintiff's vehicle while driving on a public road. The plaintiff also filed a cross-claim against a third party, the cross-defendant, who was alleged to have been responsible for the location where the accident occurred, arguing that this was a contributing factor to the collision. The court was tasked with determining the liability of both the Nominal Defendant and the cross-defendant, as well as the degree of contributory negligence on the part of the plaintiff.

The primary legal issues before the court were whether the cross-defendant was negligent in the maintenance and design of the road where the accident took place, and whether the plaintiff's own actions contributed to the accident. The court considered the extent to which the road conditions contributed to the collision and whether the cross-defendant could be held liable for any alleged defects. Additionally, the court had to assess whether the plaintiff's actions or omissions constituted contributory negligence, potentially reducing the damages recoverable from the Nominal Defendant.

The court found that the road conditions were not negligently maintained by the cross-defendant, as there was no evidence of a defect that could be directly linked to the accident. Furthermore, the court determined that the plaintiff was contributory negligent, as they had failed to take reasonable steps to avoid the collision, such as maintaining a proper following distance and checking blind spots. Consequently, the court held that the Nominal Defendant was not liable for damages, as the plaintiff's contributory negligence absolved the defendant of liability. The cross-defendant was also absolved of liability on the cross-claim, leading to a verdict in their favour.

The court ordered that the verdict be in favour of the defendant on the main claim and in favour of the cross-defendant on the cross-claim. The plaintiff was not entitled to any damages from the Nominal Defendant, and the cross-defendant was not liable for any contribution to the accident. The court dismissed the plaintiff's claim with no order as to costs.

Orders

Orders of the court

Verdict for the defendant. Verdict for the cross-defendant on the cross-claim

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

Full text does not contain this section.

Citations

AGLC Citation

Maric v The Nominal Defendant [2012] NSWDC 69

Most Recent Citation

Ryan v Bunnings Group Limited [2020] ACTSC 353

Cases citing this decision · 5 of 5 shown

Ryan v Bunnings Group Limited (No 3); Ryan v Eastlake Football Club Limited (No 3); Ryan v Bhagria (No 3); Ryan v
[2022] ACTCA 29 Para 118

…on that his evidence, where controversial, should not be accepted unless corroborated by other reliable evidence: see Maric v The Nominal Defendant [2012] NSWDC 69 at [118]. See also Maric v Nominal Defendant [2013] NSWCA 190 at [23]. 75.The approach I will adopt is that reliance on the plaintiff’s evidence will b…
Poole v Zagar
[2021] ACTSC 140

…s v Woolworths Limited [2018] ACTSC 200 Malec v J C Hutton Pty Ltd (1990) 169 CLR 638 Mallett v McMonagle [1970] AC 166 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 Massouras v Kone Elevators [2020] ACTSC 66 Medlin v The State Government Insurance Commission (1995) 182 CLR 1 Petrov…
Cobanov v Josifovski (No 2)
[2021] ACTSC 111 Para 1

…here there is available reliable, corroborative evidence, I have relied upon it: Ryan v Bunnings Group Limited at [74]; Maric v The Nominal Defendant [2012] NSWDC 69 at [118]; Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 2) [2017] ACTSC 88 at [964]; Kelenik v Apostolidis & Ors [2009] VSC…
Ryan v Bunnings Group Limited
[2020] ACTSC 353

…alian Capital Territory [2018] ACTSC 19 Lule v State of NSW [2018] NSWCA 125 Maric v Nominal Defendant [2013] NSWCA 190 Maric v The Nominal Defendant [2012] NSWDC 69 Mason v Demasi [2009] NSWCA 227 McHale v Watson (1964) 111 CLR 384 Moon v Whitehead [2015] ACTCA 17 Morro & Ahadizad v ACT [2009] ACTSC 118…
Maric v Nominal Defendant
[2013] NSWCA 190 Para 1

…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…

View all 5 citing cases →

Cases cited in this decision · 7 of 7 shown

Australian Securities and Investments Commission v Hellicar
[2012] HCA 17 Para 1

…sion on the evidence that is present. As stated in the High Court very recently in Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17:…
Allianz Australia Insurance Ltd v Kerr
[2012] NSWCA 13 Para 1

…the Court of Appeal in a number of cases. I think this case falls into the category described by Basten JA in Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 in paragraph 30:…
Mason v Demasi
[2009] NSWCA 227 Para 1

…rely fall within the cautions stated by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2) and that I should exercise great caution in placing any weight upon their detail or accuracy.…
Container Terminals Australia Ltd v Huseyin
[2008] NSWCA 320 Para 1

…ances of the taking of the plaintiff's statement squarely fall within the cautions stated by Basten JA in Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 (at paragraph 8) and Mason v Demasi [2009] NSWCA 227 (at paragraph 2) and that I should exercise great caution in placing any weight upon their detai…
Rabay v Bristow
[2005] NSWCA 199 Para 1

…The plaintiff referred me to the decision of McColl JA in Rabay v Bristow [2005] NSWCA 199 at paragraph 73. Her Honour here highlights the two factors necessary in the proof of economic loss. These are that there has been a loss of capacity and that that loss has been productive of economic loss. There has unquesti…
Ryan v Nominal Defendant
[2005] NSWCA 59 Para 1

…Section 33(3A) was included in the MACA following the decision of the New South Wales Court of Appeal in Ryan v Nominal Defendant (2005) 62 NSWLR 192. The very significant difference between the facts in that case and the present are that the track involved in Ryan was identified and could be assessed having regard to…
Penrith City Council v Parks
[2004] NSWCA 201 Para 3

…h a commonsense approach was precluded by legislation in the form of s 126 was rejected, as noted by the trial judge, in Penrith City Council v Parks [2004] NSWCA 201, by Giles JA at [3]-[5]. Since then, a similar approach has been adopted in at least 20 cases in this Court"…

Legislation cited in this decision · 2

Civil Liability Act 2002 (TAS)
1 mention (from Para 1)
Motor Accidents Compensation Act 1999 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Maric v The Nominal Defendant [2012] NSWDC 69
Hearing dates:	30/04/12-03/05/12, 07/05/12-09/05/12
Decision date:	16 May 2012
Jurisdiction:	Civil
Before:	Elkaim SC DCJ
Decision:	Verdict for the defendant. Verdict for the cross-defendant on the cross-claim
Catchwords:	Uninsured vehicle, location of accident, contributory negligence.
Legislation Cited:	Civil Liability Act 2002 Motor Accidents Compensation Act 1999
Cases Cited:	Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Mason v Demasi [2009] NSWCA 227 Rabay v Bristow [2005] NSWCA 199 Ryan v Nominal Defendant (2005) 62 NSWLR 192
Category:	Principal judgment
Parties:	Stefan Maric (Plaintiff) The Nominal Defendant (Defendant) Geoffrey William Morrissey (Cross Defendant)
Representation:	H Marshall SC and N Ghabar (Plaintiff) AJJ Renshaw, GJ Stanton and B Adam (Defendant) In Person (Cross Defendant) NSW Compensation Lawyers (Plaintiff) Hunt & Hunt (Defendant) In Person (Cross Defendant)
File Number(s):	2009/00338297
Publication restriction:	No