Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: The Nominal Defendant v Ross [2014] NSWCA 212 Hearing dates: 11.04.2014 Decision date: 03 July 2014 Before: Beazley P at [1]
Meagher JA at [2]
Hoeben JA at [10]Decision: (1) The appeal is allowed in part.
(2) Other than the orders for costs, the judgment entered by Judge Levy SC in favour of the respondent against the appellant in the sum of $328,540 is set aside and in lieu thereof, judgment is entered in favour of the respondent in the sum of $266,939.
(3) The parties are to file agreed Short Minutes of Order as to the costs of the appeal within 7 days. In default of agreement, the parties are to file and serve proposed orders and short submissions not exceeding 3 pages and any evidence upon which they wish to rely within 21 days.
[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 - claim by pedestrian against Nominal Defendant - pedestrian injured by minibus at airport which departed shortly after the accident - whether driver of minibus was negligent - whether fact finding of trial judge glaringly improbable - failure by driver to keep a proper lookout - contributory negligence - failure by pedestrian to keep a proper lookout - apportionment of liability more heavily weighted against driver - whether due inquiry and search established - particular circumstances of accident - meaning of "due" inquiry and search - failure to access to CCTV film within 28 days - appeal allowed in part. Legislation Cited: Motor Accidents Compensation Act 1999 - s34(1) Cases Cited: Cavanagh v Nominal Defendant [1959] HCA 57; 100 CLR 375
Fox v Percy [2003] HCA 22; 214 CLR 118
Gordon v Truong; Truong v Gordon [2014] NSWCA 97
Harrison v The Nominal Defendant [1976] 50 ALJR 330
Hawthorne v Hillcoat [2008] NSWCA 340
Nominal Defendant v Browne [2013] NSWCA 197
Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380
Oztan v NSW Ministerial Corporation [1995] 23 MVR 259
Pennington v Norris [1956] HCA 26; 96 CLR 10
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 529
Ross v Nominal Defendant [2013] NSWDC 110
Warth v Lafsky [2014] NSWCA 94Category: Principal judgment Parties: The Nominal Defendant - Appellant
Ysaiah Ross - RespondentRepresentation: Counsel:
Mr K Rewell SC/Mr W Fitzsimmons - Appellant
Mr R Sheldon SC/ Ms E Welsh - Respondent
Solicitors:
McCourts Solicitors - Appellant
Brydens Law Office LP - Respondent
File Number(s): 2013/248126 Decision under appeal
- Citation:
- [2013] NSWDC 110
- Date of Decision:
- 2013-07-19…
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- AGLC
- Nominal Defendant v Ross [2014] NSWCA 212
- Case
- [2014] NSWCA 212
- Decision Date
CaseChat Overview and Summary
The court was required to determine whether the trial judge's finding of negligence against the driver was so improbable as to warrant intervention on appeal. Specifically, the court considered whether the driver failed to keep a proper lookout and whether the pedestrian was contributorily negligent by also failing to keep a proper lookout. Furthermore, the court had to assess whether the Nominal Defendant had established a "due inquiry and search" for the driver, particularly in light of the minibus departing the airport shortly after the accident and the failure to access CCTV film within 28 days.
The appellate court found that the trial judge's apportionment of liability, which weighted the driver's negligence more heavily, was not demonstrably wrong. However, the court determined that the Nominal Defendant had not established a "due inquiry and search" as required by the relevant legislation, primarily due to the failure to access CCTV footage within the prescribed timeframe. This failure meant the Nominal Defendant could not rely on certain defences.
Consequently, the appeal was allowed in part. The judgment in favour of the respondent was set aside and a reduced sum of $266,939 was entered in lieu of the original $328,540. The parties were directed to file agreed minutes of order regarding the costs of the appeal within seven days, with provision for default in the event of disagreement.
Orders
Orders of the court
(1) The appeal is allowed in part.
(2) Other than the orders for costs, the judgment entered by Judge Levy SC in favour of the respondent against the appellant in the sum of $328,540 is set aside and in lieu thereof, judgment is entered in favour of the respondent in the sum of $266,939.
(3) The parties are to file agreed Short Minutes of Order as to the costs of the appeal within 7 days. In default of agreement, the parties are to file and serve proposed orders and short submissions not exceeding 3 pages and any evidence upon which they wish to rely within 21 days.
[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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