McLennan v The Nominal Defendant - [2010] NSWDC 28

CITATION: McLennan v The Nominal Defendant [2010] NSWDC 28

HEARING DATE(S): 30, 31 March; 1, 2, 3, 6, 7, 8, 9 April; 15, 22, 25 May and 11 June 2009

JUDGMENT DATE:
8 June 2010

JURISDICTION: Civil

JUDGMENT OF: Levy SC DCJ

DECISION: 1. Verdict and judgment for the plaintiff in the sum of $643,607;
2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;
3. The exhibits may be returned;
4. Liberty to apply on 7 days notice if further orders are required.

CATCHWORDS: TORT – negligence – collision between unidentified motor vehicle and pedestrian in a railway car park – no witnesses – all issues contested by Nominal Defendant - EVIDENCE – credibility of testimony – extensive credit challenges by defendant – consideration of expert medical evidence concerning genuineness of plaintiff’s claim - DAMAGES – assessment of damages pursuant to Motor Accidents Compensation Act 1999 – considerations for proof of claim for damages for domestic care and assistance pursuant to s 128

LEGISLATION CITED: Civil Procedure Act 2005
Motor Accidents Compensation Act 1999
Motor Accidents Act 1988
Motor Vehicles (Third Party Insurance) Act 1942
Workers’ Compensation Act 1987
Uniform Civil Procedure Rules 2005

CASES CITED: Angel v Hawkesbury City Council [2008] NSWCA 130
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Donoghue v St Luke’s Hospital Ltd [1969] 2 NSWR 647
Flounders v Millar [2007] NSWCA 238
Harrison v Nominal Defendant (1975) ALR 680
Luxton v Vines [1952] HCA 19
Malco Engineering Pty Ltd v Ferreira [1994] NSWCCA 117
Mason v Demasi [2009] NSWCA 227
Nominal Defendant v Smith (1998) 28 MVR 165
Nominal Defendant v Swift [2007] NSWCA 56
Oztan v Nominal Defendant (1995) 23 MVR 259
Sretenovic v Reed [2009] NSWCA 280
Strinic v Singh [2009] NSWCA 15

PARTIES: Terrence John McLennan (Plaintiff)
The Nominal Defendant (Defendant)

FILE NUMBER(S): 2004/00193754; 5365 of 2004

COUNSEL: Mr A J Lidden SC with Mr M Daley (Plaintiff)
Mr J Poulos QC with Mr JJ Ryan (Defendant)

SOLICITORS: Brydens (Plaintiff)
Moray & Agnew (Defendant)

JUDGMENT

Table of Contents

A. INTRODUCTION

Nature of the case [1] – [8]

Issues for determination [9] – [10]

Approach to evaluation of credibility of testimony of the plaintiff [11] – [15]

Summary of findings [16] – [18]

Assessed heads of damage [19] – [20]

Array of evidence [21] – [24]

Oral evidence
[22]

Documentary evidence
[23] – [24]

B. FINDINGS – BACKGROUND FACTS [25] – [27]

Plaintiff’s personal background [28]

Plaintiff’s pre-injury work history [29] – [39]

Plaintiff’s pre-injury health history [40] – [48]

Plaintiff’s pre-injury leisure pursuits [49]

C. EVIDENCE REVIEW - LIABILITY [50] – [58]

Plaintiff’s version of events [51] – [54]

Plaintiff’s account of subsequent events [55] – [56]

Inquiries made by plaintiff [57] – [58]

D. EVIDENCE REVIEW - DAMAGES [59] – [194]

Post-injury work history [60] – [61]

Domestic activities [62]

Medical and allied evidence review [63] – [194]

Reports relating to treatment
[64] – [105]

Dr Tablante

[65] – [83]

Dr Rail

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.

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Details

Case: [2010] NSWDC 28
Decision Date: 8 June 2010

CaseChat Overview and Summary

In the case of McLennan v The Nominal Defendant, the plaintiff sought damages for injuries sustained in an incident involving an unidentified motor vehicle and a pedestrian in a railway car park. There were no witnesses to the event, and all issues were contested by the defendant. The primary legal issues revolved around the credibility of the plaintiff's testimony and the admissibility and weight of expert medical evidence presented to support the plaintiff's claim. Additionally, the court had to assess the damages pursuant to the Motor Accidents Compensation Act 1999, specifically considering the proof of claim for damages for domestic care and assistance.

The court meticulously evaluated the evidence presented and the credibility of the plaintiff's testimony. It found that despite extensive challenges by the defendant, the plaintiff's account of the events and the resultant injuries was consistent and credible. The court gave significant weight to the expert medical evidence, which supported the plaintiff's claim regarding the nature and extent of injuries. Furthermore, the court detailed the considerations for proof of claim for damages for domestic care and assistance, concluding that the plaintiff had met the necessary burden of proof.

In summary, the court found in favour of the plaintiff, awarding damages in the sum of $643,607. The defendant was ordered to pay the plaintiff's costs on the ordinary basis, unless otherwise directed. The exhibits were to be returned, and the plaintiff was granted liberty to apply for further orders within seven days' notice. This decision underscores the importance of detailed examination of both direct and expert evidence in tort cases where the facts are contested and no direct witnesses are available.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the sum of $643,607;

2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered;

3. The exhibits may be returned;

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

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.

CITATION:	McLennan v The Nominal Defendant [2010] NSWDC 28
HEARING DATE(S):	30, 31 March; 1, 2, 3, 6, 7, 8, 9 April; 15, 22, 25 May and 11 June 2009
JUDGMENT DATE:	8 June 2010
JURISDICTION:	Civil
JUDGMENT OF:	Levy SC DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $643,607; 2. The defendant is to pay the plaintiff’s costs on the ordinary basis unless otherwise ordered; 3. The exhibits may be returned; 4. Liberty to apply on 7 days notice if further orders are required.
CATCHWORDS:	TORT – negligence – collision between unidentified motor vehicle and pedestrian in a railway car park – no witnesses – all issues contested by Nominal Defendant - EVIDENCE – credibility of testimony – extensive credit challenges by defendant – consideration of expert medical evidence concerning genuineness of plaintiff’s claim - DAMAGES – assessment of damages pursuant to Motor Accidents Compensation Act 1999 – considerations for proof of claim for damages for domestic care and assistance pursuant to s 128
LEGISLATION CITED:	Civil Procedure Act 2005 Motor Accidents Compensation Act 1999 Motor Accidents Act 1988 Motor Vehicles (Third Party Insurance) Act 1942 Workers’ Compensation Act 1987 Uniform Civil Procedure Rules 2005
CASES CITED:	Angel v Hawkesbury City Council [2008] NSWCA 130 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Donoghue v St Luke’s Hospital Ltd [1969] 2 NSWR 647 Flounders v Millar [2007] NSWCA 238 Harrison v Nominal Defendant (1975) ALR 680 Luxton v Vines [1952] HCA 19 Malco Engineering Pty Ltd v Ferreira [1994] NSWCCA 117 Mason v Demasi [2009] NSWCA 227 Nominal Defendant v Smith (1998) 28 MVR 165 Nominal Defendant v Swift [2007] NSWCA 56 Oztan v Nominal Defendant (1995) 23 MVR 259 Sretenovic v Reed [2009] NSWCA 280 Strinic v Singh [2009] NSWCA 15
PARTIES:	Terrence John McLennan (Plaintiff) The Nominal Defendant (Defendant)
FILE NUMBER(S):	2004/00193754; 5365 of 2004
COUNSEL:	Mr A J Lidden SC with Mr M Daley (Plaintiff) Mr J Poulos QC with Mr JJ Ryan (Defendant)
SOLICITORS:	Brydens (Plaintiff) Moray & Agnew (Defendant)

A.	INTRODUCTION
Nature of the case	[1] – [8]
Issues for determination	[9] – [10]
Approach to evaluation of credibility of testimony of the plaintiff	[11] – [15]
Summary of findings	[16] – [18]
Assessed heads of damage	[19] – [20]
Array of evidence	[21] – [24]
Oral evidence	[22]
Documentary evidence	[23] – [24]
B.	FINDINGS – BACKGROUND FACTS	[25] – [27]
Plaintiff’s personal background	[28]
Plaintiff’s pre-injury work history	[29] – [39]
Plaintiff’s pre-injury health history	[40] – [48]
Plaintiff’s pre-injury leisure pursuits	[49]
C.	EVIDENCE REVIEW - LIABILITY	[50] – [58]
Plaintiff’s version of events	[51] – [54]
Plaintiff’s account of subsequent events	[55] – [56]
Inquiries made by plaintiff	[57] – [58]
D.	EVIDENCE REVIEW - DAMAGES	[59] – [194]
Post-injury work history	[60] – [61]
Domestic activities	[62]
Medical and allied evidence review	[63] – [194]
Reports relating to treatment	[64] – [105]
Dr Tablante	[65] – [83]
Dr Rail