Beazley JA at 1; Hodgson JA at 3; Sackville AJA at 62
Decision:
(1) Appeal dismissed with costs. (2) Application for leave to cross-appeal dismissed with costs, such costs being limited to costs incremental to the costs of the appeal. [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:
TORT - Motor accidents - Cyclist harassed by driving of motor vehicle - Cyclist loses control and is injured after being hit by object thrown from the vehicle - Whether there was a "motor accident" and an "injury" within the meaning of the Motor Accidents Compensation Act 1999.
PROCEDURE - Costs - Offer of compromise by plaintiff - Plaintiff obtains judgment no less favourable - Primary judge does not order costs on an indemnity basis - Whether this an error in principle, or outside reasonable discretionary judgment.
[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.
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AGLC
Nominal Defendant v Hawkins [2011] NSWCA 93
Case
[2011] NSWCA 93
Decision Date
CaseChat Overview and Summary
The appeal concerned a claim brought by the plaintiff, Mr Hawkins, against the Nominal Defendant following injuries sustained by Mr Hawkins. Mr Hawkins, a cyclist, alleged that he was harassed by the driver of a motor vehicle, and subsequently lost control of his bicycle and was injured when an object was thrown from the vehicle. The central dispute revolved around whether Mr Hawkins' injuries constituted a "motor accident" and whether he suffered an "injury" as defined by the *Motor Accidents Compensation Act 1999* (NSW).
The court was required to determine two primary legal issues. Firstly, whether the events described by Mr Hawkins fell within the statutory definition of a "motor accident" and "injury" under the *Motor Accidents Compensation Act 1999*. Secondly, the court considered whether the primary judge erred in principle, or exercised their discretion unreasonably, by not ordering costs on an indemnity basis in favour of Mr Hawkins, despite him obtaining a judgment no less favourable than an offer of compromise he had made.
The court dismissed the appeal, upholding the primary judge's decision. It was held that the circumstances did indeed constitute a "motor accident" and that Mr Hawkins had suffered an "injury" within the meaning of the Act. The court found that the actions of the driver of the motor vehicle were causative of Mr Hawkins' loss of control and subsequent injuries. Regarding the costs issue, the court found no error in the primary judge's discretionary decision not to award indemnity costs, concluding that the judge had acted within the bounds of reasonable discretionary judgment. Consequently, the appeal was dismissed with costs. An application for leave to cross-appeal was also dismissed with costs, limited to costs incremental to the costs of the appeal.
Orders
Orders of the court
(1) Appeal dismissed with costs.
(2) Application for leave to cross-appeal dismissed with costs, such costs being limited to costs incremental to the costs of the appeal.
[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.]