Nominal Defendant v Swift

Case [2007] NSWCA 56

New South Wales


Court of Appeal


CITATION: THE NOMINAL DEFENDANT v SWIFT; WOLLONDILLY SHIRE COUNCIL v SWIFT [2007] NSWCA 56
HEARING DATE(S): 22-23 August 2006
 
JUDGMENT DATE: 
22 March 2007
JUDGMENT OF: Beazley JA at 1; Santow JA at 4; McColl JA at 104
DECISION: See orders at para [103].
CATCHWORDS: TORT – NEGLIGENCE – Unidentified vehicle – Nominal Defendant sued – was there due search and inquiry under s28(1) of Motor Accidents Act 1988 (NSW) – Liability of council for state of gutter – causation – contributory negligence from failure to wear seat belt.
LEGISLATION CITED: Motor Accidents Act 1988 (NSW) s28(1)
Motor Vehicles (Third Party Insurance) Act 1942 (NSW) s30(2)
CASES CITED: Almeida v Universal Dye Works Pty Ltd (No 2) [2001] NSWCA 156
Balesfire Pty Ltd t/as the Gutter Shop & Ors v Jamie Adams & Ors [2006] NSWCA 112
Blandford v Fox (1944) 45 SR (NSW) 241
Bullock v London General Omnibus Co [1907] 1 KB 264
Harrison v The Nominal Defendant (1975) 7 ALR 680
Nicholson v Nicholson (1994) 35 NSWLR 308
Nominal Defendant v Smith (1998) 28 MVR 165
Oztan & Ors v NSW Insurance Ministerial Corporation (1995) 23 MVR 259
Roads and Traffic Authority of New South Wales, Council of the Shire of Evans and Pioneer Road Services Pty Limited v Palmer (No 2) [2005] NSWCA 140
Sanderson v Blyth Theatre Co [1903] 2 KB 533
Sved v Council of the Municipality of Woollahra (1998) NSW ConvR 55-842
Wardle v Kick & Ors [2006] NSWSC 327
PARTIES:

CA 40975/05:
THE NOMINAL DEFENDANT (Appellant)
Craig Allan SWIFT (Respondent)

CA 40049/06:
WOLLONDILLY SHIRE COUNCIL (Appellant)
Craig Allan SWIFT (Respondent)
FILE NUMBER(S): CA 40975/05; 40049/06
COUNSEL: R BARTLETT, SC/ W FITSIMMONS (Nominal Defendant)
J MARSHALL, SC/ P SIBTAIN (Wollondilly Shire Council)
P WEBB, QC/ N C CANOSA (Respondent Swift)
SOLICITORS: Sparke Helmore (Nominal Defendant)
Phillips Fox (Wollondilly Shire Council)
Philip Lewis (Kiama) (Respondent Swift)
LOWER COURT JURISDICTION: District Court
LOWER COURT FILE NUMBER(S): DCW 116/01
LOWER COURT JUDICIAL OFFICER: Phelan DCJ
LOWER COURT DATE OF DECISION: 17 August 2005, 23 August 2005



                          CA 40975/05
                          CA 40049/06
                          DCW 116/01

                          BEAZLEY JA
                          SANTOW JA
                          McCOLL JA

                          22 MARCH 2007

THE NOMINAL DEFENDANT v Craig Allan SWIFT


WOLLONDILLY SHIRE COUNCIL v Craig Allan SWIFT

Judgment

1 BEAZLEY JA: I agree with the reasons of Santow JA and his proposed orders, save as in respect of costs. I do not consider that this is a case where the Court, in the exercise of its discretion, should make a Bullock or Sanderson Order: Bullock v London General Omnibus Co [1907] 1 KB 264; Sanderson v Blyth Theatre Co [1903] 2 KB 533.

2 The authorities draw a distinction between those cases where a party sues more than one defendant to protect its own position, should liability not be established against one or other defendant, and where the conduct of a party creates an uncertainty as to who is the proper defendant. This sometimes occurs in cases where defendants…

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AGLC
Nominal Defendant v Swift [2007] NSWCA 56
Case
[2007] NSWCA 56
Decision Date

CaseChat Overview and Summary

In *Nominal Defendant v Swift*, the New South Wales Court of Appeal considered an appeal by the Nominal Defendant concerning the liability of the Nominal Defendant and a local council for injuries sustained by the respondent, Ms Swift, in a motor vehicle accident. Ms Swift was a passenger in a vehicle that left the road and collided with a gutter, resulting in her injuries. The driver of the vehicle was unidentified.

The primary legal issues before the Court were whether the Nominal Defendant had conducted due search and inquiry as required by section 28(1) of the *Motor Accidents Act 1988* (NSW) to avoid liability for the unidentified vehicle, and whether the local council was liable for the state of the gutter which allegedly contributed to the accident. The Court also considered the issue of causation and whether Ms Swift's failure to wear a seatbelt constituted contributory negligence.

The Court of Appeal found that the Nominal Defendant had not discharged its onus of proving due search and inquiry under section 28(1) of the *Motor Accidents Act 1988* (NSW). However, it also determined that the council was not liable for the state of the gutter, as there was no sufficient causal connection between the condition of the gutter and the accident. The Court further held that Ms Swift's failure to wear a seatbelt did not amount to contributory negligence in this instance.

Consequently, the Nominal Defendant's appeal against Ms Swift was dismissed, and its cross-claim against the council was also dismissed. The council's appeal against Ms Swift was upheld. The Nominal Defendant was ordered to pay the costs of its appeal against Ms Swift and its cross-claim against the council. In relation to the council's successful appeal, the Nominal Defendant was ordered to pay 70% of the council's costs.

Orders

Orders of the court

(1) Appeal No. 40975/05 by the Nominal Defendant against the respondent be dismissed with costs as also the Nominal Defendant's cross-claim against the Council so that costs of the appeal are to be paid by the Nominal Defendant in each case. (2) Appeal No 40049/06 by the Council against the respondent is upheld. (3) In appeal No 40049/06 the Nominal Defendant to pay 70% of the Council's costs and otherwise there be no order as to costs.

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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