Nominal Defendant v Ayache - [2014] NSWCA 253

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Nominal Defendant v Ayache [2014] NSWCA 253
Hearing dates: 11 July 2014
Decision date: 06 August 2014
Before: Emmett JA at [1]
Tobias AJA at [5]
Beech-Jones J at [6]
Decision:
(1) The appeal be dismissed; and
(2) The Appellant pay the Respondent's 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: MOTOR ACCIDENT - claim against Nominal Defendant - whether due inquiry and search - injured respondent failed to obtain details of driver and vehicle at scene - finding that respondent disabled from making inquiries at scene due to injuries, shock and pain - no error in finding - appeal dismissed.
Legislation Cited: - Motor Accidents Compensation Act 1999 (NSW), s 34, s 34A
- Supreme Court Act 1970 (NSW), s 48
Cases Cited: - Cavanagh v Nominal Defendant [1958] HCA 57; 100 CLR 375
- Harrison v Nominal Defendant (1975) 7 ALR 680
- Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380
- Nominal Defendant v Ross [2014] NSWCA 212
- Vines v Australian Securities and Investments Commission [2007] NSWCA 126; 63 ACSR 505
- Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301; 64 MVR 542
Category: Principal judgment
Parties: Nominal Defendant (Applicant)
Ali Ayache (Respondent)
Representation: Counsel:
Dr K.P. Rewell SC (Applicant)
M.J. Joseph SC, R. Petrie (Respondent)
Solicitors:
Moray & Agnew (Applicant)
P.K. Simpson & Co (Respondent)

File Number(s): 2013/330144
Decision under appeal

Jurisdiction:

9101

Date of Decision:

2013-08-16 00:00:00

Before:

Curtis DCJ

File Number(s):

2013/056315

Judgment

EMMETT JA: The respondent, Mr Ali Ayache, was injured when he fell from the motorcycle that he was riding at Mount Pritchard in New South Wales on 25 April 2012. He commenced proceedings in the District Court against the appellant, the Nominal Defendant, seeking damages in respect of the injuries that he suffered. He claimed to be entitled to bring an action against the Nominal Defendant under s 34(1) of the Motor Accidents Compensation Act 1999 (NSW) (the Compensation Act) on the basis that a motor vehicle, the identity of which could not be established, failed to give way to him and caused him to lose control and fall.

However, under s 34(1AA) of the Compensation Act, such a claim cannot be made unless due enquiry and search has been made to establish the identity of the motor vehicle concerned. Under s 34A(3), the Nominal Defendant may apply to have proceedings dismissed on the ground that due enquiry and search to establish the identity of the vehicle has not been made. Where such an application is…

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 Nominal Defendant v Ayache

Details

AGLC: Nominal Defendant v Ayache [2014] NSWCA 253
Case: [2014] NSWCA 253
Decision Date: 06 August 2014

CaseChat Overview and Summary

The appeal concerned a claim brought by the respondent, Mr Ayache, against the Nominal Defendant, arising from a motor accident. The central dispute revolved around whether the respondent had conducted a "due inquiry and search" for the driver and vehicle involved in the accident, as required by the relevant legislation for a claim against the Nominal Defendant. The case was heard in the Court of Appeal of New South Wales.

The primary legal issue before the Court of Appeal was whether the primary judge had erred in finding that the respondent had made a due inquiry and search. Specifically, the court had to determine if the respondent's failure to obtain details of the driver and vehicle at the scene of the accident was excused by his injuries, shock, and pain, thereby satisfying the statutory requirement.

The Court of Appeal upheld the primary judge's finding that the respondent was disabled from making the necessary inquiries at the scene due to his injuries, shock, and pain. The court reasoned that the statutory requirement for a "due inquiry and search" did not necessitate an exhaustive investigation but rather a reasonable and diligent effort in the circumstances. Given the respondent's condition, his inability to gather details at the scene was considered a reasonable consequence of his injuries, and no error was found in the primary judge's assessment of this fact.

Consequently, the Court of Appeal dismissed the appeal and ordered the Nominal Defendant to pay the respondent's costs.

Orders

Orders of the court

(1) The appeal be dismissed; and

(2) The Appellant pay the Respondent's 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.]

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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Medium Neutral Citation:	Nominal Defendant v Ayache [2014] NSWCA 253
Hearing dates:	11 July 2014
Decision date:	06 August 2014
Before:	Emmett JA at [1] Tobias AJA at [5] Beech-Jones J at [6]
Decision:	(1) The appeal be dismissed; and (2) The Appellant pay the Respondent's 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:	MOTOR ACCIDENT - claim against Nominal Defendant - whether due inquiry and search - injured respondent failed to obtain details of driver and vehicle at scene - finding that respondent disabled from making inquiries at scene due to injuries, shock and pain - no error in finding - appeal dismissed.
Legislation Cited:	- Motor Accidents Compensation Act 1999 (NSW), s 34, s 34A - Supreme Court Act 1970 (NSW), s 48
Cases Cited:	- Cavanagh v Nominal Defendant [1958] HCA 57; 100 CLR 375 - Harrison v Nominal Defendant (1975) 7 ALR 680 - Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380 - Nominal Defendant v Ross [2014] NSWCA 212 - Vines v Australian Securities and Investments Commission [2007] NSWCA 126; 63 ACSR 505 - Workers Compensation Nominal Insurer v Nominal Defendant [2013] NSWCA 301; 64 MVR 542
Category:	Principal judgment
Parties:	Nominal Defendant (Applicant) Ali Ayache (Respondent)
Representation:	Counsel: Dr K.P. Rewell SC (Applicant) M.J. Joseph SC, R. Petrie (Respondent) Solicitors: Moray & Agnew (Applicant) P.K. Simpson & Co (Respondent)
File Number(s):	2013/330144
Decision under appeal	Jurisdiction: 9101 Date of Decision: 2013-08-16 00:00:00 Before: Curtis DCJ File Number(s): 2013/056315