Ragen v The Nominal Defendant (No 3)

CITATION:	Ragen v The Nominal Defendant (No 3) [2007] NSWDC 86
HEARING DATE(S):	27-28 February and 1-2 March 2007
JUDGMENT DATE:	21 March 2007
JURISDICTION:	Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ at 1
DECISION:	Judgment for the plaintiff
CATCHWORDS:	TORT (MOTOR ACCIDENT) - Due enquiry and search - Negligence of unidentified driver - No contributory negligence - Case turns on facts, with no matters of principle decided - DAMAGES - Psychiatric condition overlaying physical disabilities - Causation in respect of psychiatric condition - Additional discount for vicissitudes over normal 15%
LEGISLATION CITED:	Motor Accidents Compensation Act 1999: s 34(1), s 124, s 126(2), s 128(3), s 131,
CASES CITED:	Nominal Defendant v Lane [2004] NSWCA 405
PARTIES:	David Harry Ragen (Plaintiff) The Nominal Defendant (Defendant)
FILE NUMBER(S):	2746/03
COUNSEL:	Mr Lidden SC with Mr Khandhar for the plaintiff Mr Elkaim SC for the defendant
SOLICITORS:	Brydens Law Office (Plaintiff) Holman Webb (Defendant)

JUDGMENT
Introduction

1. Mr Ragen was injured in a motor accident when he was driving along the M4 Motorway at about 6.10am on 2 March 2000. He says the accident was caused by the fault of the driver of a motor vehicle the identity of which could not be established, after due enquiry and search, and brought this action for the recovery of damages against the Nominal Defendant: s 34(1) of the Motor Accidents Compensation Act 1999.

2. Mr Ragen alleged that the accident occurred when the unidentified vehicle struck the rear of the car he was driving in lane 3, pushing his car partially into the adjacent lane 2, where he was struck again by a third car travelling in that lane, which in turn forced his car into a fourth car, travelling in front of him in lane 3.

3. The Nominal Defendant denies liability. It says that Mr Ragen’s version of the accident cannot be accepted and he did not prove the accident happened in the way he alleged. Alternatively, it says that the accident arose solely out of Mr Ragen’s negligence and no cause of action arises. Or, it alleges, Mr Ragen was guilty of contributory negligence.

4. The Nominal Defendant also denied that Mr Ragen carried out due enquiry and search to establish the identity of the owner of the unidentified vehicle.

5. The issues for determination as to liability are:

· Did Mr Ragen carry out due enquiry and search?

· Was Mr Ragen injured as a result of negligence on the part of the driver of the unidentified motor

vehicle?

· Was Mr Ragen guilty of any negligence causing or contributing to the accident?

6. Mr Ragen says that as a result of the accident he sustained significant physical injuries and a severe secondary psychological condition. As a result he incurred medical, hospital and other out-of-pocket expenses and will require considerable future medical treatment and medication. He is and has been significantly incapacitated for any form of gainful employment and has lost wages and superannuation he would otherwise have earned;…