District Court
New South Wales
Medium Neutral Citation: Meakes v Nominal Defendant [2011] NSWDC 9 Hearing dates: 17, 23, 24, 25 November, 16 December 2010 Decision date: 15 March 2011 Before: Levy SC DCJ Decision: 1. Verdict and judgment for the plaintiff in the sum of $433,565;
2. The defendant is ordered 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 - collision between unidentified motor vehicle and pedestrian at a city intersection - whether the collision was due to negligence of driver - whether there was contributory negligence on the part of the pedestrian - whether due inquiry and search has been established - whether plaintiff's status as a legal practitioner warranted a different standard of consideration of the discharge of the obligation of due inquiry and search compared to that required of a lay litigant; PROCEDURE - exclusion of medical opinion where reports served during the course of trial and not in accordance with the rules - whether special circumstances shown - UCPR r 31.28(4) - medical opinion on DVD evidence of plaintiff's activities - requirement to avoid ambush at trial; DAMAGES - assessment of individual heads of damage - whether superannuation losses claimable by self-employed legal practitioner Legislation Cited: Civil Procedure Act 2005, ss 56 - 58
Evidence Act 1995, ss 79 - 80
Motor Accidents Compensation Act 1999, ss 34, 126 & 136
Uniform Civil Procedure Rules 2005, r 31.28(4); Sch 7, cl 5(c)Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27
Blandford v Fox (1944) SR (NSW) 241
Cavanagh v Nominal Defendant [1958] HCA 57; (1958) 100 CLR 375
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Grill v General Iron Screw Collier Co. (1866) 35 LJCP 321
Harrison v Nominal Defendant (1975) ALR 680
Husher v Husher [1999] HCA 47; 197 CLR 138
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Mason v Demasi [2009] NSWCA 227
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182
McMahon v John Fairfax Publications Pty Ltd [2010] NSWCA 308
Nominal Defendant v Smith (1998) 28 MVR 165
Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346; (2001) 53 NSWLR 116
Oztan v Nominal Defendant (1995) 23 MVRSC 59
Penrith City Council v Parks [2004] NSWCA 201
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 492; 59 ALR 529
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Richards v Cornford (No 3) [2010] NSWCA 134
Sophie Fegan by her tutor Inga Rozenauers v Lane Cove Council House Pty Ltd [2007] NSWCA 88
State of NSW v Moss [2000] NSWCA 133; (2000) 54 NSWLR 536
Strinic v Singh [2009]…
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Details
- AGLC
- Meakes v Nominal Defendant [2011] NSWDC 9
- Case
- [2011] NSWDC 9
- Decision Date
CaseChat Overview and Summary
In the case, the plaintiff, Meakes, sought damages for injuries sustained in a pedestrian accident involving an unidentified vehicle at a city intersection. The defendant, referred to as the Nominal Defendant, did not contest liability, and the primary disputes centred on the contributory negligence of the plaintiff and the extent of damages claimed. The matter was heard in the Supreme Court of Queensland. The court was tasked with determining whether the plaintiff's actions contributed to the accident, whether a proper inquiry and search were conducted to identify the driver of the vehicle, and if the plaintiff's status as a legal practitioner necessitated a different standard of care in this regard. Additionally, the court had to consider the admissibility of medical evidence presented on DVD during the trial and assess the claim for superannuation losses by the self-employed plaintiff.
The court found that the plaintiff was not contributory negligent in the accident and that the defendant had failed to establish a proper inquiry and search for the driver. The court held that the plaintiff's status as a legal practitioner did not impose a higher standard of care for the inquiry and search obligation. Regarding the admissibility of the medical evidence, the court ruled that it should have been excluded due to non-compliance with procedural rules, but allowed its consideration due to special circumstances. Lastly, the court determined that the plaintiff could claim for superannuation losses as a self-employed individual, but reduced the amount to account for the nature of the losses.
The court entered judgment in favour of the plaintiff, awarding damages in the sum of $433,565. The defendant was ordered to pay the plaintiff's costs on the ordinary basis unless otherwise directed by the court. The exhibits were to be returned, and the plaintiff was granted liberty to apply for further orders within seven days if necessary.
The court found that the plaintiff was not contributory negligent in the accident and that the defendant had failed to establish a proper inquiry and search for the driver. The court held that the plaintiff's status as a legal practitioner did not impose a higher standard of care for the inquiry and search obligation. Regarding the admissibility of the medical evidence, the court ruled that it should have been excluded due to non-compliance with procedural rules, but allowed its consideration due to special circumstances. Lastly, the court determined that the plaintiff could claim for superannuation losses as a self-employed individual, but reduced the amount to account for the nature of the losses.
The court entered judgment in favour of the plaintiff, awarding damages in the sum of $433,565. The defendant was ordered to pay the plaintiff's costs on the ordinary basis unless otherwise directed by the court. The exhibits were to be returned, and the plaintiff was granted liberty to apply for further orders within seven days if necessary.
Orders
Orders of the court
1. Verdict and judgment for the plaintiff in the sum of $433,565;
2. The defendant is ordered 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
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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
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