Nominal Defendant v Buchan

The matter before the Court was a claim brought by the Nominal Defendant against the defendant, seeking recovery for a compromise made in relation to a dependency claim. The deceased was thrown from a bridge as a result of a motorcycle accident and was not seen again. The defendant, who was the owner of the motorcycle, was found seriously injured at the scene but had no recollection of the events. The police report and inquest were unable to determine who was the driver of the motorcycle at the time of the accident. The Court was required to determine whether it was reasonable for the Nominal Defendant to compromise the dependency claim on the basis of a likely finding of a trial court, on the balance of probabilities, that the defendant was the driver of the motorcycle.

The Court found that it was reasonable for the Nominal Defendant to compromise the dependency claim on the basis of a likely finding of a trial court, on the balance of probabilities, that the defendant was the driver of the motorcycle. The Court held that the Nominal Defendant had discharged the onus of proving that the defendant was the driver of the motorcycle on the balance of probabilities. The Court found that the police report and inquest were insufficient to determine who was the driver of the motorcycle at the time of the accident. The Court also found that the defendant's serious injuries and lack of recollection of the events did not necessarily mean that he was not the driver of the motorcycle.

The Court held that the Nominal Defendant was entitled to recover the amount of the compromise from the defendant. The Court awarded the Nominal Defendant judgment for the amount of $769,863.27, interest in the amount of $257,904.19, and costs, including reserved costs, to be assessed on the standard basis. The Court found that the Nominal Defendant had acted reasonably in compromising the dependency claim and that it was just and equitable for the defendant to bear the costs of the compromise.

The Court's judgment provides guidance for those involved in similar circumstances, where a compromise has been made in relation to a dependency claim and the identity of the driver of the vehicle involved in the accident is unknown. The Court's decision highlights the importance of considering all available evidence when determining liability in such cases. The Court's finding that it was reasonable for the Nominal Defendant to compromise the dependency claim on the balance of probabilities also underscores the importance of considering the likelihood of a finding at trial when making decisions about compromise.