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Nominal Defendant v Rooskov

Nominal Defendant v Rooskov

Case [2012] NSWCA 43 20 March 2012

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Court of Appeal

New South Wales

Case Title: Nominal Defendant v Rooskov

Medium Neutral Citation: [2012] NSWCA 43

Hearing Date(s): 6 October 2011

Decision Date: 20 March 2012

Jurisdiction:

Before:
Campbell JA at [1]
Young JA at [148]
Garling J at [149]

Decision:
1. Appeal dismissed.
2. Appellant to pay the costs of the Respondent 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:
TORTS - negligence - contributory negligence - apportionment - collision of unknown motor vehicle with bicycle - gross intoxication of plaintiff and failure to wear helmet - significant injuries to spine - failure to take care only relevant to apportionment where particular failure led to particular harm - onus on defendant to show particular failure - unable to prove nexus of intoxication to loss of control - no error shown in judge's assessment of 5% contribution for lack of helmet

APPEAL AND NEW TRIAL - appeal - general principles - interference with Judge's findings of fact - whether trial judge failed to use or misused forensic advantage - trial judge found plaintiff to be a witness of truth and persuaded by consistency of contemporaneous evidence - insufficient evidence at appeal to establish misuse of forensic advantage - trial judge's findings undisturbed

Legislation Cited:
Civil Liability Act 2002
Evidence Act 1995
Freedom of Information Act 1989
Law Reform (Miscellaneous Provisions) Act 1965
Motor Accidents Compensation Act 1999

Cases Cited:
Abalos v Australian Postal Commission (1990) 171 CLR 167
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Anikin v Sierra [2004] HCA 64; (2004) 79 ALJR 452
Beach Petroleum NL v Kennedy (1999) 48 NSWLR 1
Blacktown City Council v Hocking [2008] NSWCA 144
Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389
Devries v Australian National Railways Commission [1993] HCA 78; (1993) 177 CLR 472
Fox v Percy (2003) 214 CLR 118
Halvorsen Boats Pty Ltd v Robinson (1993) 31 NSWLR 1
Jones v Dunkel (1959) 101 CLR 298
Jones v Hyde [1989] HCA 20; (1989) 63 ALJR 349
Joslyn v Berryman (2003) 214 CLR 552
Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361
Manly Council v Byrne [2004] NSWCA 123
Monie v Commonwealth of Australia [2007] NSWCA 230
Morley v ASIC [2010] NSWCA 331; (2010) 274 ALR 205
Phillis v Daly (1988) 15 NSWLR 65
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; (1985) 59 ALJR 492
Podrebersek, Liftronic Pty Ltd v Unver (2001) 179 ALR 321
Seiwa Australia Pty Ltd v Beard [2009] NSWCA 240
State Rail Authority of New…

Grounds of appeal

[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.

Continue reading Nominal Defendant v Rooskov

Details

AGLC: Nominal Defendant v Rooskov [2012] NSWCA 43
Case: [2012] NSWCA 43
Decision Date: 20 March 2012

CaseChat Overview and Summary

The Nominal Defendant appealed to the New South Wales Court of Appeal against a decision of the District Court, presided over by McLoughlin DCJ. The respondent, Nigel Andrew Rooskov, had been awarded damages for significant injuries sustained when he was struck from behind by an unidentified motor vehicle while riding his bicycle. The trial judge found the driver of the unidentified vehicle negligent and assessed the respondent's contributory negligence at 5%. The Nominal Defendant did not challenge the quantum of damages but appealed against both the finding of negligence and the apportionment of contributory negligence, arguing it should be 40%.

The primary legal issues before the Court of Appeal were whether the trial judge erred in finding that the accident was caused by the negligence of an unidentified motor vehicle, and if so, whether the assessment of the respondent's contributory negligence was too low. Specifically, the court had to consider whether the evidence supported the conclusion that an unidentified vehicle caused the collision, and if the respondent's intoxication and failure to wear a helmet constituted contributory negligence, and to what extent. The court also considered whether the trial judge had misused their forensic advantage in assessing the evidence.

The Court of Appeal upheld the trial judge's findings. It reasoned that the trial judge had properly considered the evidence, including the ambulance and hospital records, and the police reports. While the respondent was intoxicated and did not wear a helmet, the court found that the Nominal Defendant had not discharged the onus of proving a nexus between the respondent's intoxication and the loss of control of his bicycle. The court also found that the trial judge's assessment of 5% contributory negligence for the failure to wear a helmet was not an error, as the specific harm caused by that failure was not sufficiently established. The court concluded that there was insufficient evidence to establish that the trial judge had misused their forensic advantage and therefore undisturbed the findings of fact.

Consequently, the appeal was dismissed, and the Nominal Defendant was ordered to pay the costs of the respondent for the appeal.

Orders