Nominal Defendant v Dowedeit

Case [2016] NSWCA 332

Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Nominal Defendant v Dowedeit [2016] NSWCA 332
Hearing dates:20 May 2016
Decision date: 01 December 2016
Before: Meagher JA at [1]
Gleeson JA at [2]
Simpson JA at [139]
Decision:

1.   Appeal dismissed.
2.   Cross-appeal dismissed.
3.   Appellant pay 90% of the respondent’s costs in this Court.

Catchwords:

TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) Pt 1.2 Div 1 – blameless accident – where successful claim for damages against Nominal Defendant in lower court – whether respondent hit by motor vehicle or fell from balcony – where primary judge found collision with motor vehicle most likely cause of respondent’s injuries – where respondent found lying on footpath with serious injuries – challenge to factual finding of respondent’s rest position on footpath – whether inconsistent with witness and expert evidence – where competing witness evidence and police photographs of site of accident – challenge to factual finding of respondent’s belief he was hit by a car – where respondent gave contemporaneous account to police and hospital staff of going out to corner shop – credibility of respondent – whether primary judge erred in finding expert evidence of little assistance – consistency of expert evidence with nature of respondent’s injuries and other evidence

TORTS - negligence - contributory negligence – Motor Accidents Compensation Act 1999 (NSW) s 138 – whether primary judge erred in finding contributory negligence by respondent and assessing reduction in damages at 50% – where finding that respondent’s failure to look caused accident – where relatively quiet street – where little otherwise known of circumstances of accident – whether assessment manifestly inadequate or excessive
Legislation Cited: Civil Liability Act 2002 (NSW) ss 3B, 5B, 5R, 5S
Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9
Motor Accidents Compensation Act 1999 (NSW) Pt 1.2, Div 1, ss 138, 7A, 7C
Supreme Court Act 1970 (NSW) s 75A
Uniform Civil Procedure Rules 2005 (NSW), r 42.1
Cases Cited: Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311
Davis v Swift (2014] 69 MVR 375; [2014] NSWCA 458
Fox v Percy (2003) 214 CLR 118; [2003] HCA 22
Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97
Podrebersek v Australian Iron & Steel Pty Ltd [1985] 59 ALJR 492; [1985] HCA 34
Nominal Defendant v Green (2013) 64 MVR 354 [2013] NSWCA 219
Dowedeit v Nominal Defendant [2015] NSWDC 182
Category:Principal judgment
Parties: Nominal Defendant (Appellant)
Ronald Dowedeit (Respondent)
Representation:

Counsel:
Mr JB Turnbull SC with Ms S Warren (Appellant)
Mr PJ Doherty SC with Mr D Morgan (Respondent)

  Solicitors:
Curwoods Lawyers (Appellant)
Garling & Co Lawyers (Respondent)
File Number(s):2015/243870
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:
[2015] NSWDC 182
Date of Decision:
05 August 2015
Before:
Taylor SC DCJ
File Number(s):
2012/339572

Judgment

  1. MEAGHER JA: I agree with the reasons and proposed orders of Gleeson JA.

  2. GLEESON JA:

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Details
AGLC
Nominal Defendant v Dowedeit [2016] NSWCA 332
Case
[2016] NSWCA 332
Decision Date

CaseChat Overview and Summary

The appeal concerned a claim for damages under the *Motor Accidents Compensation Act 1999* (NSW) brought by the respondent against the Nominal Defendant. The respondent had sustained serious injuries and was found lying on a footpath. The central dispute was whether these injuries were caused by a collision with a motor vehicle, as found by the primary judge, or by a fall from a balcony. The Nominal Defendant challenged the primary judge's factual findings regarding the respondent's position on the footpath, the likelihood of a motor vehicle collision, and the respondent's contemporaneous account of his movements.

The court was required to determine whether the primary judge erred in finding that a collision with a motor vehicle was the most probable cause of the respondent's injuries, given the competing witness evidence and police photographs. Further, the court had to consider whether the primary judge was correct in accepting the respondent's belief that he was hit by a car, and whether the primary judge was justified in finding the expert evidence to be of little assistance. The court also had to review the primary judge's finding of contributory negligence and the assessment of a 50% reduction in damages, considering whether this assessment was manifestly inadequate or excessive in light of the limited information available about the circumstances of the accident.

The court dismissed the appeal and the cross-appeal. The judges found no error in the primary judge's factual findings regarding the cause of the respondent's injuries, accepting that the primary judge had properly considered the available evidence, including witness statements, expert opinions, and the nature of the injuries. The court upheld the primary judge's assessment of contributory negligence, concluding that the 50% reduction was not manifestly inadequate or excessive, given the respondent's failure to look and the limited evidence concerning the accident's circumstances. The appellant was ordered to pay 90% of the respondent's costs in the Court of Appeal.

Orders

Orders of the court

1. Appeal dismissed.

2. Cross-appeal dismissed.

3. Appellant pay 90% of the respondent’s costs in this Court.

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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