Penrith City Council v Nominal Defendant - [2012] NSWDC 18

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Penrith City Council v Nominal Defendant & Anor [2012] NSWDC 18
Hearing dates: 1 & 2 March 2012
Decision date: 07 March 2012
Jurisdiction: Civil
Before: Levy SC DCJ
Decision:
1.Verdict and judgment for the first and second defendants on the plaintiff's claim;
2.The plaintiff is to pay the costs of each of the defendants on the ordinary basis unless otherwise ordered;
3.Exhibits may be returned;
4.Liberty to apply on 7 days notice if further orders are required.
[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 - near collision between bus and motor vehicle - injury to passenger on bus - subrogated claim - recovery action by workers' compensation insurer pursuant to s 151Z(1)(d) of Workers' Compensation Act 1987 - whether plaintiff established negligence of drivers of two unidentified motor vehicles - whether due inquiry and search established; DAMAGES - damages assessment in recovery proceedings
Legislation Cited: Australian Road Rules, r 126
Motor Accidents Compensation Act 1999, s 34, s 39
Workers' Compensation Act 1987, s 151Z(1)(d)
Cases Cited: Anikin v Sierra [2004] HCA 64
Derrick v Cheung [2001] HCA 48
Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250; (1999) 47 NSWLR 263
Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352
Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228
NSW v Nominal Defendant [2004] NSWCA 328
Oztan v NSW Ministerial Corporation (1995) 23 MVR 259
Category: Principal judgment
Parties: Penrith City Council (Plaintiff)
East Realisations Pty Ltd (in liq) (First defendant)
Nominal Defendant (Second defendant)
Representation: Mr M Jenkins (Plaintiff)
Mr R Cavanagh (First defendant)
Mr J Catsanos (Second defendant)
Turks Legal (Plaintiff)
Vardanega Roberts (First defendant)
Holman Webb (Second defendant)

File Number(s): 2009/336531

Judgment

Table of Contents

Nature of case and the parties

[1] - [ 7]

Facts not in dispute

[ 8 ] - [1 9 ]

Issues and summary of findings

[ 20 ] - [ 22 ]

Issue 1 - Negligence of the respective drivers

[ 2 3 ] - [ 57 ]

   The driver of the motor vehicle

[ 25 ] - [ 32 ]

   The driver of the bus

[ 33 ] - [ 56 ]

   Conclusions on alleged negligence

[ 57 ]

Issue 2 - Due inquiry and search

[ 58 ] - [ 70 ]

Issue 3 - Damages

[ 71 ]

Disposition

[ 72 ]

Costs

[ 73 ] - [ 75 ]

Orders

[ 76 ]

Nature of case and the parties

These proceedings are brought by the plaintiff pursuant to s 151Z(1)(d) of the Workers' Compensation Act 1987 by…

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.

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Details

Case: [2012] NSWDC 18
Decision Date: 07 March 2012

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the plaintiff sought recovery of damages against two defendants following a near collision between a bus and a motor vehicle, which resulted in injury to a passenger on the bus. The plaintiff, a workers' compensation insurer, subrogated the injured passenger's claim for damages and sought recovery from the defendants pursuant to section 151Z(1)(d) of the Workers' Compensation Act 1987. The plaintiff alleged that the defendants were negligent in their operation of unidentified motor vehicles, which caused the near collision.

The court was required to determine whether the plaintiff had established the negligence of the drivers of the two unidentified vehicles and whether the plaintiff had conducted a due inquiry and search to identify them. Additionally, the court had to assess the damages claim. The court examined the evidence and found that the plaintiff had not established the negligence of the drivers of the unidentified vehicles nor had the plaintiff conducted a due inquiry and search to identify them. The plaintiff's claim was dismissed.

The court held that the plaintiff's failure to identify the drivers of the unidentified vehicles was a significant obstacle to establishing negligence on their part. The court found that the plaintiff had not conducted a due inquiry and search to identify the drivers, and as such, could not establish their negligence. Consequently, the plaintiff's claim was dismissed, and judgment was entered in favour of the defendants. The plaintiff was ordered to pay the costs of each defendant on the ordinary basis unless otherwise ordered. The exhibits were to be returned, and the parties were granted liberty to apply for further orders if necessary.

Orders

Orders of the court

1.Verdict and judgment for the first and second defendants on the plaintiff's claim;

2.The plaintiff is to pay the costs of each of the defendants on the ordinary basis unless otherwise ordered;

3.Exhibits may be returned;

4.Liberty to apply on 7 days notice if further orders are required.

[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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Penrith City Council v Nominal Defendant & Anor [2012] NSWDC 18
Hearing dates:	1 & 2 March 2012
Decision date:	07 March 2012
Jurisdiction:	Civil
Before:	Levy SC DCJ
Decision:	1.Verdict and judgment for the first and second defendants on the plaintiff's claim; 2.The plaintiff is to pay the costs of each of the defendants on the ordinary basis unless otherwise ordered; 3.Exhibits may be returned; 4.Liberty to apply on 7 days notice if further orders are required. [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 - near collision between bus and motor vehicle - injury to passenger on bus - subrogated claim - recovery action by workers' compensation insurer pursuant to s 151Z(1)(d) of Workers' Compensation Act 1987 - whether plaintiff established negligence of drivers of two unidentified motor vehicles - whether due inquiry and search established; DAMAGES - damages assessment in recovery proceedings
Legislation Cited:	Australian Road Rules, r 126 Motor Accidents Compensation Act 1999, s 34, s 39 Workers' Compensation Act 1987, s 151Z(1)(d)
Cases Cited:	Anikin v Sierra [2004] HCA 64 Derrick v Cheung [2001] HCA 48 Grant v Royal Rehabilitation Centre Sydney [1999] NSWCA 250; (1999) 47 NSWLR 263 Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Manley v Alexander [2005] HCA 79; (2005) 223 ALR 228 NSW v Nominal Defendant [2004] NSWCA 328 Oztan v NSW Ministerial Corporation (1995) 23 MVR 259
Category:	Principal judgment
Parties:	Penrith City Council (Plaintiff) East Realisations Pty Ltd (in liq) (First defendant) Nominal Defendant (Second defendant)
Representation:	Mr M Jenkins (Plaintiff) Mr R Cavanagh (First defendant) Mr J Catsanos (Second defendant) Turks Legal (Plaintiff) Vardanega Roberts (First defendant) Holman Webb (Second defendant)
File Number(s):	2009/336531

Nature of case and the parties	[1] - [ 7]
Facts not in dispute	[ 8 ] - [1 9 ]
Issues and summary of findings	[ 20 ] - [ 22 ]
Issue 1 - Negligence of the respective drivers	[ 2 3 ] - [ 57 ]
The driver of the motor vehicle	[ 25 ] - [ 32 ]
The driver of the bus	[ 33 ] - [ 56 ]
Conclusions on alleged negligence	[ 57 ]
Issue 2 - Due inquiry and search	[ 58 ] - [ 70 ]
Issue 3 - Damages	[ 71 ]
Disposition	[ 72 ]
Costs	[ 73 ] - [ 75 ]
Orders	[ 76 ]