Nominal Defendant v Meakes

Case [2012] NSWCA 66


Court of Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Nominal Defendant v Meakes [2012] NSWCA 66
Hearing dates:14 March 2012
Decision date: 04 April 2012
Before: McColl JA at [1]
Basten JA at [2]
Sackville AJA at [11]
Decision:

1. Appeal allowed.

2. Set aside Orders (1) and (2) made by the primary Judge on 15 March 2011.

3. In lieu thereof order that there be judgment for the Nominal Defendant.

4. Order the respondent to pay the Nominal Defendant's costs of the proceedings in the District Court.

5. Order the respondent to pay the Nominal Defendant's costs of the appeal.

6. Order that the respondent, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951.

[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: TORTS - NEGLIGENCE - road accident cases - unidentified vehicle - action brought against Nominal Defendant - Motor Accidents Compensation Act 1999 s 34(1) - whether there was "due inquiry and search" - where injured pedestrian could reasonably be expected to obtain details of the vehicle at accident scene - CONTRIBUTORY NEGLIGENCE - whether finding that pedestrian struck by vehicle was not contributorily negligent should be set aside - apportionment of responsibility - ECONOMIC LOSS - whether finding that the plaintiff had suffered a loss of earning capacity was supported by evidence.
Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1965
Motor Accidents Compensation Act 1999
Civil Liability Act 2002
Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007
Motor Vehicles (Third Party Insurance) Act 1942
Cases Cited: Blandford v Fox (1944) 45 SR (NSW) 241
Cavanagh v Nominal Defendant [1958] HCA 57; 100 CLR 375
Harrison v Nominal Defendant [1974] 1 NSWLR 146
Harrison v Nominal Defendant (1975) 7 ALR 680
Joslyn v Berryman [2003] HCA 34; 214 CLR 552
Kuru v New South Wales [2008] HCA 26; 236 CLR 1
Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1
Nominal Defendant v Smith (1998) 28 MVR 165
Nominal Defendant v Swift [2007] NSWCA 56
Oztan v NSW Ministerial Corporation (1995) 23 MVR 259
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529
Slinn v Nominal Defendant [1964] HCA 72; 112 CLR 334
Category:Principal judgment
Parties: The Nominal Defendant (Appellant)
Wallace Edward Meakes (Respondent)
Representation: K P Rewell SC, M A Cleary (Appellant)
D A Wheelahan QC, H J Halligan (Respondent)
Dibbs Barker Lawyers (Appellant)
Carneys Lawyers (Respondent)
File Number(s):2009/338245
 Decision under appeal 
Citation:
Meakes v Nominal Defendant [2011] NSWDC 9
Date of Decision:
2011-03-15 00:00:00
Before:
Levy DCJ
File Number(s):
5219 of…

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AGLC
Nominal Defendant v Meakes [2012] NSWCA 66
Case
[2012] NSWCA 66
Decision Date

CaseChat Overview and Summary

The appeal concerned an action brought by a pedestrian, the respondent, against the Nominal Defendant under s 34(1) of the *Motor Accidents Compensation Act 1999* (NSW). The dispute arose from a road accident where the pedestrian was allegedly struck by an unidentified vehicle. The primary judge had found in favour of the pedestrian, awarding damages for economic loss.

The legal issues before the Court of Appeal were whether the pedestrian had made "due inquiry and search" to identify the vehicle as required by the Act, whether the finding of no contributory negligence on the pedestrian's part should be set aside, and whether the evidence supported the finding of a loss of earning capacity.

The Court of Appeal allowed the appeal, setting aside the orders of the primary judge and entering judgment for the Nominal Defendant. The court reasoned that the pedestrian had not discharged the onus of proving that due inquiry and search had been made to identify the vehicle. Furthermore, the court found that the evidence did not sufficiently support the finding of a loss of earning capacity. Consequently, the respondent was ordered to pay the Nominal Defendant's costs of both the District Court proceedings and the appeal.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside Orders (1) and (2) made by the primary Judge on 15 March 2011.

3. In lieu thereof order that there be judgment for the Nominal Defendant.

4. Order the respondent to pay the Nominal Defendant's costs of the proceedings in the District Court.

5. Order the respondent to pay the Nominal Defendant's costs of the appeal.

6. Order that the respondent, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951.

[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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