Raad v Cossey

Case [2022] NSWDC 59


District Court


New South Wales

Medium Neutral Citation: Raad v Cossey [2022] NSWDC 59
Hearing dates: 18 - 22 August 2018; 30 November 2021; 7, 21 and 22 December 2021; 11 February 2022
Date of orders: 15 March 2022
Decision date: 15 March 2022
Jurisdiction:Civil
Before: Cowdroy AO QC ADCJ
Decision:

(1) Judgment for the defendant.

(2) Costs reserved.

(3) Exhibits retained for 28 days.

Catchwords:

TORT – negligence – motor vehicle accident – plaintiff claiming damages for personal injury – judgment on liability only – defence of joint illegal enterprise – defence of conduct tainted with illegality – defence under s 5D of the Civil Liability Act – contributory negligence

Legislation Cited:

Civil Liability Act 2002 (NSW), ss 5B, 5D, 5R, 5S, 49 and 54

Civil Procedure Act 2005 (NSW), ss 56 and 64

Crimes Act 1900 (NSW), s 351B

Drug Misuse and Trafficking Act 1985 (NSW), ss 10, 12, 19 and 25

Evidence Act 1995 (NSW), s 128

Motor Accidents Compensation Act 1999 (NSW), s 138

Road Transport (Driver Licensing) Act 1998 (NSW), s 25

Road Transport (Safety and Traffic Management) Act 1999 (NSW), ss 12 and 42

Uniform Civil Procedure Rules 2005 (NSW), r 28.2

Cases Cited:

Bevan v Coolahan [2019] NSWCA 217

Cockburn v Jacobsen [2017] ACTSC 380

Cook v Cook [1986] HCA 73; (1986) 162 CLR 376

Cusack v Stayt [2000] NSWCA 244

Fabre v Arenales (1992) 15 MVR 303

Gala v Preston [1991] HCA 18; (1991) 172 CLR 243

Giorgianni v The Queen (1985) 156 CLR 473

Godbolt v Fittock [1964] NSWR 22

Goodrich Aerospace Pty Limited v Arisic [2006] NSWCA 187

Huynh v The Queen [2013] HCA 6

Insurance Commissioner v Joyce [1948] HCA 17; (1948) 77 CLR 39

Jackson v Harrison [1978] HCA 17; (1978) 138 CLR 438

Joslyn v Berryman (2003) 214 CLR 552; [2003] HCA 34

Leotta v Public Transport Commission of NSW (1976) 50 ALJR 666

Manning v Noa (1956) 77 Am LR 2d 955

McAuliffe v R (1995) 183 CLR 108

Miller v Miller [2011] HCA 9; (2011) 242 CLR 446

Miller v The Queen; Smith v The Queen; Presley v Director of Public Prosecutions (SA) [2016] HCA 30

Moors v Burke (1919) 26 CLR 265

Motor Accidents Authority of New South Wales v Mills [2010] NSWCA 82

Nominal Defendant v Green; Nominal Defendant v Golding; Nominal Defendant v Campbell [2013] NSWCA 219

Nominal Defendant v Meakes [2012] NSWCA 66

Osland v The Queen (1998) 197 CLR 316

Podrebersek v Australian Iron and Steel Pty Ltd [1985] HCA 34; 59 ALJR 492

Quine v Keeraswat [2014] WADC 150

R v Rawcliffe [1977] 1 NSWLR 219

Raad v Cossey (District Court of New South Wales, Cowdroy OAM QC DCJ, 21 August 2018)

Raad v Cossey (District Court of New South Wales, Cowdroy AO QC ADCJ, 24 February 2021

Raad v Cossey (re application to amend statement of claim) (District Court of New South Wales, Cowdroy AO QC ADCJ, 15 March 2022)

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AGLC
Raad v Cossey [2022] NSWDC 59
Case
[2022] NSWDC 59
Decision Date

CaseChat Overview and Summary

The case before the court involved a claim by the plaintiff, Raad, against Cossey, the defendant, for damages arising from personal injuries sustained in a motor vehicle accident. Cossey denied liability and raised several defences, including the defence of joint illegal enterprise and the defence under section 5D of the Civil Liability Act, which addresses conduct tainted with illegality. Cossey also claimed that Raad was contributory negligent.

The court was tasked with determining whether Cossey was liable for the injuries Raad sustained in the accident. This required the court to consider whether Cossey's defence of joint illegal enterprise and the related defence under section 5D of the Civil Liability Act were valid. Additionally, the court needed to assess Raad's contributory negligence.

In its decision, the court found that Cossey's defence of joint illegal enterprise and the defence under section 5D of the Civil Liability Act were successful. The court held that Cossey was not liable for Raad's injuries as the illegality defence outweighed any potential negligence on Cossey's part. Furthermore, the court found that Raad was contributory negligent, which further absolved Cossey of liability. Consequently, the court entered judgment in favour of Cossey.

The final orders of the court were that judgment be entered for the defendant, Cossey. The court reserved the issue of costs and allowed for the exhibits to be retained for 28 days.

Orders

Orders of the court

(1) Judgment for the defendant.

(2) Costs reserved.

(3) Exhibits retained for 28 days.

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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