McLennan v Nominal Defendant

[2014] NSWCA 332

Court of Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

McLennan v Nominal Defendant [2014] NSWCA 332

Hearing dates:

23 June 2014

Decision date:

25 September 2014

Before:

Basten JA at [1];
Emmett JA at [33];
Simpson J at [127]

Decision:

Appeal dismissed with costs.

[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 - negligence - claim against Nominal Defendant - whether the appellant was injured in a motor vehicle accident - whether, if so, the appellant's injuries were the result of the driver's negligence - whether the appellant had undertaken "due inquiry and search" for the purposes of s 34 of the Motor Accidents Compensation Act 1999 (NSW) in order to ascertain the identity of the motor vehicle

Legislation Cited:

Motor Accidents Compensation Act 1999 (NSW), s 34

Cases Cited:

Guest v The Nominal Defendant [2006] NSWCA 77
Harrison v Nominal Defendant (1975) 50 ALJR 330
Holloway v McFeeters [1956] HCA 25; 94 CLR 470
Jones v Dunkel [1959] HCA 8; 101 CLR 298
Nominal Defendant v McLennan [2012] NSWCA 148
Nominal Defendant v Meakes [2012] NSWCA 66
Nominal Defendant v Puglisi (1984) 54 ALR 636
Nominal Defendant v Ross [2014] NSWCA 212
Oztan v NSW Insurance Ministerial Corporation (1995) 23 MVR 259
Rhesa Shipping Co SA v Edmunds ("The Popi M") [1985] 1 WLR 948

Category:

Principal judgment

Parties:

Terrence McLennan (Appellant)
Nominal Defendant (Respondent)

Representation:

Counsel:
M Daley (Appellant)
J Poulos QC with J Ryan (Respondent)
Solicitors:
Brydens Compensation Lawyers (Appellant)
Moray & Agnew (Respondent)

File Number(s):

2013/168169

 Decision under appeal 

Jurisdiction:

9101

Date of Decision:

2013-05-17 00:00:00

Before:

Garling ADCJ

File Number(s):

2004/193754

Judgment

1. BASTEN JA: On 5 September 2000, the appellant, Terrence McLennan, suffered significant physical injuries whilst on his way to work. He said that he left home at about 4:30am and drove to Holsworthy railway station, intending to catch a train to the city at about 5am. He said in his evidence that he reached the car park of the railway station: he claimed to have been there for approximately four hours before driving home, reaching his house at about 10am. What happened to him in the interim was by no means clear. His case against the Nominal Defendant depended upon him being hit by a motor vehicle in the car park of Holsworthy railway station. If his own account were to be believed, he arrived at the railway station, parked his car, took his jacket and shut his car in order to proceed to the platform to catch his train. He later regained consciousness at about 9am, some two hours after sunrise, lying between two…