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.
[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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Details
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.]