Nominal Defendant v McLennan

Case [2012] NSWCA 148


Court of Appeal


Supreme Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Nominal Defendant v McLennan [2012] NSWCA 148
Hearing dates:12 and 18 August 2011
Decision date: 18 May 2012
Before: Beazley JA (at [1]), McColl JA (at [18]), Macfarlan JA (at [230])
Decision:

1. Appeal allowed.

2. Set aside the judgment of Levy DCJ of 8 June 2010.

3. Remit the matter to the District Court of New South Wales for a new trial.

4. Costs of the first trial to be in the discretion of the judge who hears the second trial.

5. Respondent to pay the costs of the appeal and have a certificate under the Suitor's Fund Act 1951 if otherwise qualified.

[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:

APPEAL AND NEW TRIAL - credibility of witness - adverse credit findings against plaintiff at trial - where liability reliant on plaintiff's evidence - whether whole of plaintiff's evidence should be rejected - whether judge palpably misused advantage as trial judge - whether trial judge dealt adequately with inconsistencies in evidence and medical opinions

EVIDENCE - medical evidence - whether plaintiff had retrograde amnesia - whether failure by trial judge to properly analyse medical evidence - whether trial judge erroneously substituted own opinion of medical issues for evidence

TORTS - negligence - mechanism of injury - alternate version of events equally probable

TORTS - negligence - motor vehicle accident - Nominal Defendant - Motor Accidents Compensation Act 1999 s 34 - whether plaintiff struck by unidentified vehicle - whether plaintiff undertook due search and inquiry
Legislation Cited: Motor Accident Compensation Act 1999
Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007
Suitor's Fund Act 1951
Supreme Court Act 1970
Cases Cited: Agbaba v Witter (1977) 14 ALR 187
Bradshaw v McEwans Pty Ltd (1951) 217 ALR 1
Brown v Harding [2008] NSWCA 51
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Divall v Mifsud [2005] NSWCA 447
Fox v Percy [2003] HCA 22; (2003) 214 CLR 118
Gett v Tabet [2009] NSWCA 76; (2009) 254 ALR 504
Guest v The Nominal Defendant [2006] NSWCA 77
Lithgow City Council v Jackson [2011] HCA 36; (2011) 85 ALJR 1130
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Makita (Aust) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705
Malco Engineering Pty Ltd v Ferreira (1994) 10 NSWCCR 117
Nominal Defendant v Meakes [2012] NSWCA 66
Nominal Defendant v Rooskov [2012] NSWCA 43
Seltsam Pty Ltd v McGuiness [2000] NSWCA 29; (2000) 49 NSWLR 262
Sretenovic v Reed [2009]…

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AGLC
Nominal Defendant v McLennan [2012] NSWCA 148
Case
[2012] NSWCA 148
Decision Date

CaseChat Overview and Summary

The appeal concerned a decision of the District Court of New South Wales, where the Nominal Defendant was ordered to pay damages to the plaintiff, McLennan, arising from a motor vehicle accident. The plaintiff's claim was predicated on being struck by an unidentified vehicle.

The primary legal issues before the Court of Appeal were whether the trial judge erred in making adverse credit findings against the plaintiff, and consequently, whether the entirety of the plaintiff's evidence should have been rejected. Relatedly, the court considered whether the trial judge had adequately addressed inconsistencies in the plaintiff's evidence and the medical opinions, and whether the judge had improperly substituted their own opinion for expert medical evidence, particularly concerning retrograde amnesia. The court also examined whether the trial judge had properly considered the mechanism of injury and the possibility of alternate, equally probable versions of events.

The Court of Appeal found that the trial judge had palpably misused their advantage as the trial judge by failing to adequately deal with the inconsistencies in the plaintiff's evidence and the medical opinions. The court determined that the trial judge had not properly analysed the medical evidence, particularly in relation to the plaintiff's alleged retrograde amnesia, and had erroneously substituted their own opinion for that of the medical experts. Consequently, the appeal was allowed, the judgment of the District Court was set aside, and the matter was remitted for a new trial.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside the judgment of Levy DCJ of 8 June 2010.

3. Remit the matter to the District Court of New South Wales for a new trial.

4. Costs of the first trial to be in the discretion of the judge who hears the second trial.

5. Respondent to pay the costs of the appeal and have a certificate under the Suitor's Fund Act 1951 if otherwise qualified.

[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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