Morgan v Nominal Defendant

[2016] NSWDC 441

District Court

New South Wales

Medium Neutral Citation:	Morgan v Nominal Defendant [2016] NSWDC 441
Hearing dates:	11 November 2016
Decision date:	11 November 2016
Jurisdiction:	Civil
Before:	C O’Connor ADCJ
Decision:	Verdict for the plaintiff
Catchwords:	Civil, motor vehicle accident, unregistered motor cycles, s33 Motor Accidents Compensation Act.
Legislation Cited:	Motor Accidents Compensation Act 1999 Motor Accidents Compensation Amendment Act 2006
Cases Cited:	Nominal Defendant v Uele (2012) NSWCA 271 Nominal Defendant v Lane (2004) NSWCA 405
Category:	Principal judgment
Parties:	Hank Morgan – Plaintiff Nominal defendant - Defendant
Representation:	Counsel: Mr Stone SC – Plaintiff Mr Cleary - Defendant   Solicitors: Slater & Gordon Ltd – Plaintiff Curwoods Lawyers - Defendant
File Number(s):	2015/240318
Publication restriction:	N/A

Judgment

1. On 4 August 2012, the Plaintiff, Hank Morgan, then aged 15 sustained severe personal injuries in a motorcycle accident.

2. He was riding what is described as a Yamaha WR 450 motorcycle when he collided with a Pit Pro 140cc motorcycle being ridden by Nathan Cain.

3. The accident occurred on a dirt track on the Willyama Common outside of Broken Hill. Sadly, Nathan Cain died as a consequence of injuries he sustained in that collision. Both motorcycles were unregistered.

4. The Plaintiff claims damages from the Nominal Defendant as a consequence of the negligence of Nathan Cain. The Nominal Defendant admits breach of duty of care by the late Nathan Cain. Agreement has also been reached between the parties of a 20% allowance for contributory negligence.

5. It is further agreed that if the plaintiff is successful in his claim against the Nominal Defendant any discount for contributory negligence does not apply to any damages for the past and future treatment or past and future care. This is because the plaintiff was under the age of 16 at the time of the accident and is entitled to the Special Benefit under s 7J of the Motor Accidents Compensation Act 1999.

6. The issue of liability has been severed from the assessment of damages. The only liability issue for determination is whether the plaintiff's accident falls within the scope of the Nominal Defendant scheme.

7. In that regard the more discreet issue for determination is whether the motor cycle being ridden by the deceased was a motor vehicle within the meaning of the Motor Accidents Compensation Act (MACA). If so, there is no dispute the Nominal defendant is liable to compensate the plaintiff. If not there will be a verdict for the Nominal Defendant.

8. Mr Stone SC provided helpful written submissions (MFI 5). I have extracted a good deal of the material which follows from those submissions much of which is not in contention.

The following matters have been admitted on the pleadings

1. At about 2.00 pm on 4 August 2012 the plaintiff was riding his Yamaha WR450 motorcycle on a dirt track on Willyama Common at Broken Hill ("the track").

2. The plaintiff was born on xx June 1997

3. Willyama Common is Crown Land.

4. At the time of the accident, the track was open to and…