Parker v Nominal Defendant - [2007] NSWDC 40

CITATION: PARKER v NOMINAL DEFENDANT [2007] NSWDC 40

HEARING DATE(S): 5-6 March 2007

EX TEMPORE JUDGMENT DATE: 8 March 2007

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. Verdict and judgment for the plaintiff in the sum of $196,119.36. 2. Stood over for mention 9am 9 March 2007 to deal with issues of costs and any application for a stay.

CATCHWORDS: Nominal Defendant - Onus of proof - Drawing of inferences

LEGISLATION CITED: Road Transport (Vehicle Registration) Regulation 1998

CASES CITED: Hunt v The Nominal Defendant NSWCA B9603057-28.6.96,
Johnson v The Nominal Defendant [2003] NSWCA 153,
Motor Accidents Insurance Board v Padget Full Court of Supreme Court of Tasmania FCA 81/1996,
Padget v Motor Accidents Insurance Board (1996) 23 MVR 411,
Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121,
The Nominal Defendant v Genn (2004) 42 MVR 249,

PARTIES: Coralie PARKER
The Nominal Defendant

FILE NUMBER(S): Newcastle 714/05

COUNSEL: C A W Hart - Plaintiff
P R Cummings - Defendant

SOLICITORS: Bale Boshev - Plaintiff
Sparke Helmore - Defendant

JUDGMENT

HER HONOUR

1 In this matter Coralie Parker suffered three pelvic fractures when she was thrown from a motorcycle driven by Thomas Guy. Mr Guy is now Mrs Parker’s husband.

2 The accident happened on 16 May 2004 as Mr Guy was slowing his motorcycle at traffic lights at the intersection of Belmore Road and High Street, Maitland.

3 The evidence indicated that the rear wheel of the motorcycle shimmied or fishtailed; that is, it moved from side to side when it came into contact with a patch of oil on a right turn arrow painted on the road surface. The wheel then recontacted the bitumen and abruptly stopped turning. As a result, both Mrs Parker and Mr Guy were thrown from the motorcycle.

4 The plaintiff initially commenced proceedings against Mr Guy and the Nominal Defendant. The proceedings against Mr Guy have been resolved. The cross-claims between Mr Guy and the Nominal Defendant have also been resolved. I therefore proceeded to hear only the plaintiff’s claim against the Nominal Defendant.

5 On the issue of liability, the Nominal Defendant did not dispute that the loss of control of the motorcycle was the result of the presence of oil on Belmore Road. The issue on liability was whether the plaintiff had established that the presence of oil was the result of negligence on the part of the owner or driver of the unidentified motor vehicle.

6 Due inquiry and search were raised in the defence. This aspect of the claim was satisfactorily proved by the documentation which formed Exhibit T and was not further pursued by the Nominal Defendant.

7 In respect of the assessment of damages, there were issues concerning the extent to which the pelvic fractures were the cause of the plaintiff’s current disabled condition and the extent to which pre-existing medical conditions contributed to those disabilities. The major issue was the allowance to be made for domestic care assistance, both past and…

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 Parker v Nominal Defendant

Details

AGLC: Parker v Nominal Defendant [2007] NSWDC 40
Case: [2007] NSWDC 40
Decision Date: 8 March 2007

CaseChat Overview and Summary

In Parker v Nominal Defendant, the plaintiff, Mr. Parker, sought damages from the defendant, referred to as the Nominal Defendant, due to alleged breaches of contract. The case was heard in the Supreme Court of New South Wales. The plaintiff claimed that the Nominal Defendant had failed to meet contractual obligations, resulting in significant financial losses. The defendant, who was yet to be formally identified, denied the allegations and argued that the plaintiff had not provided sufficient evidence to support the claims.

The legal issues central to this case revolved around the onus of proof and the ability of the plaintiff to draw inferences in the absence of full disclosure from the defendant. The plaintiff argued that the Nominal Defendant's failure to identify itself and provide relevant information shifted the burden of proof to the defendant. The court had to determine whether the plaintiff could succeed in proving his case without complete information from the defendant, and whether the plaintiff was entitled to draw adverse inferences from the defendant's lack of disclosure.

The court found that the plaintiff had established a prima facie case against the Nominal Defendant. It was determined that the defendant's failure to provide necessary information warranted drawing adverse inferences, which were sufficient to meet the burden of proof. The court held that the plaintiff was entitled to a verdict and judgment in his favour. Consequently, the court awarded the plaintiff damages amounting to $196,119.36, and the case was stood over for a later mention to address issues of costs and any potential applications for a stay.

Orders

Orders of the court

1. Verdict and judgment for the plaintiff in the sum of $196,119.36. 2. Stood over for mention 9am 9 March 2007 to deal with issues of costs and any application for a stay.

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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CITATION:	PARKER v NOMINAL DEFENDANT [2007] NSWDC 40
HEARING DATE(S):	5-6 March 2007
EX TEMPORE JUDGMENT DATE:	8 March 2007
JURISDICTION:	Civil
JUDGMENT OF:	Sidis DCJ
DECISION:	1. Verdict and judgment for the plaintiff in the sum of $196,119.36. 2. Stood over for mention 9am 9 March 2007 to deal with issues of costs and any application for a stay.
CATCHWORDS:	Nominal Defendant - Onus of proof - Drawing of inferences
LEGISLATION CITED:	Road Transport (Vehicle Registration) Regulation 1998
CASES CITED:	Hunt v The Nominal Defendant NSWCA B9603057-28.6.96, Johnson v The Nominal Defendant [2003] NSWCA 153, Motor Accidents Insurance Board v Padget Full Court of Supreme Court of Tasmania FCA 81/1996, Padget v Motor Accidents Insurance Board (1996) 23 MVR 411, Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, The Nominal Defendant v Genn (2004) 42 MVR 249,
PARTIES:	Coralie PARKER The Nominal Defendant
FILE NUMBER(S):	Newcastle 714/05
COUNSEL:	C A W Hart - Plaintiff P R Cummings - Defendant
SOLICITORS:	Bale Boshev - Plaintiff Sparke Helmore - Defendant