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
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)
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
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.