Nominal Defendant v Mokbel

[2015] NSWCA 3

Court of Appeal
Supreme Court

New South Wales

Case Name:	Nominal Defendant v Mokbel
Medium Neutral Citation:	[2015] NSWCA 3
Hearing Date(s):	6 November 2014
Decision Date:	6 February 2015
Before:	Basten JA at [1];  Ward JA at [60]; Adamson J at [61]
Decision:	(1)Allow the appeal and set aside the judgment of the District Court given on 25 March 2014. (2)In place of the orders of the District Court, (a)give judgment for the defendant, and (b)order that the plaintiff pay the defendant’s costs of the proceedings. (3)Dismiss the cross-appeal. (4)Order that the respondent pay the appellant’s costs in this Court. (5)Grant the respondent a certificate under the Suitor’s Fund Act 1951 (NSW) with respect to his costs of the appeal.
Catchwords:	APPEAL – challenge to assessment of evidence at trial – no issue of principle TORTS – motor accident – claim against Nominal Defendant – whether unidentified vehicle involved – whether unidentified vehicle negligently driven
Category:	Principal judgment
Parties:	The Nominal Defendant (Appellant/Cross-Respondent) Khoda Mokbel (formerly Saleh) by his tutor Siham Saleh (Respondent/Cross-Appellant)
Representation:	Counsel: Mr PJ Deakin QC/Mr DM Wilson (Appellant) Mr B Dooley SC/Mr J Jobson/Ms T Phan (Respondent) Solicitors: Sparke Helmore Lawyers (Appellant) Milicevic Solicitors (Respondent)
File Number(s):	CA 2014/117504
Decision under appeal:
Court or Tribunal:	District Court
Date of Decision:	25 March 2014
Before:	Norton SC DCJ
File Number(s):	DC 2004/18977

[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.]

JUDGMENT

1. BASTEN JA: On 5 June 2000 the respondent, Khoda Mokbel (formerly known as Khoda Saleh) was severely injured when he lost control of his car and collided with a street light pole on Stacey Street, Bankstown. The proceedings were brought against the Nominal Defendant on the basis that there was an unidentified vehicle, the negligent driving of which caused the respondent to lose control of his vehicle. A trial before Judge Norton SC in the District Court resulted in a judgment in favour of the respondent in a sum of $350,000, being the agreed damages reduced by 30% for contributory negligence.

2. The Nominal Defendant challenges the finding on liability and the inadequacy of the assessment of contributory negligence. The respondent, by a cross-appeal, challenges the finding of contributory negligence as grossly excessive. For the reasons explained below, the appeal must be allowed with respect to liability and the judgment set aside. As the evidence did not establish negligence on the part of any other driver, no question of contributory negligence could arise. It follows that the cross-appeal must be dismissed.

Background

1. The case has had a long and unfortunate history, which is relevant in so far as it explains the somewhat unusual course of the…