Rodney William Bateman v The Nominal Defendant

District Court

New South Wales

Medium Neutral Citation:	Rodney William Bateman v The Nominal Defendant [2012] NSWDC 155
Hearing dates:	12 and 13 September 2012
Decision date:	20 September 2012
Jurisdiction:	Civil
Before:	Mahony SC DCJ
Decision:	Verdict for the Plaintiff
Catchwords:	Motor vehicle; unidentified driver; contributory negligence; agony of the moment
Legislation Cited:	Motor Accidents Compensation Act 1999
Cases Cited:	Jones v Dunkel (1959) 101 CLR 298 Imbree v McNeilly (2008) 236 CLR 510 Nominal Defendant v Puglisi (1984) 54 ALJR 58 474 Manly Council v Byrne & Anor [2004] NSWCA 123 Guest v The Nominal Defendant [2006] NSWCA 77 Leishman v Thomas (1957) 75 WN (NSW) 173 Stuart v Walsh [2012] NSWCA 186
Category:	Principal judgment
Parties:	Rodney William Bateman - Plaintiff The Nominal Defendant - Defendant
Representation:	D Toomey - Plaintiff J Catsanos - Defendant McLaughlin & Riordan - Plaintiff Grant Galvin Sparke Helmore Lawyers - Defendant
File Number(s):	11/329754
Publication restriction:	Nil

Judgment

The Plaintiff's Claim

1. The plaintiff claims damages for injuries suffered by him on 7 February 2009 when he was riding his motorcycle in a northerly direction along Avoca Street Randwick, approaching the intersection of Stanley Street. The plaintiff suffered severe injuries and damages have been agreed between the parties in an as yet undisclosed sum.

1. By an amended Statement of Claim the plaintiff sues the Nominal Defendant pursuant to s 34 of the Motor Accidents Compensation Act 1999 ("MACA"). The plaintiff alleges that as he proceeded north along Avoca Street towards the T-intersection of Stanley Street, which ran in a generally westerly direction, an unidentified motor vehicle, driving in a southerly direction on Avoca Street, proceeded to turn right across the path of the plaintiff's progress along Avoca Street, thereby causing the plaintiff to take evasive action by veering his motorcycle to the left where it struck a small raised traffic island, causing the plaintiff to be thrown off the bike and onto the roadway.

1. The plaintiff was thrown onto the road and slid in front of the unidentified vehicle which had stopped, into and underneath a vehicle stopped behind the unidentified vehicle, being a BMW vehicle driven by Ms Emma Alvarez-Place.

1. After the incident, the unidentified vehicle proceeded to complete its turn into Stanley Street and left the scene of the accident. There is no issue that the plaintiff caused due enquiry and search as to the identity of the motor vehicle to be made, however, the vehicle was not identified.

1. The defendant denies that the driver of the unidentified motor vehicle was negligent and alleges that the plaintiff contributed to his injuries by his own negligence. The particulars of contributory negligence as pleaded were as follows:

(a)   "Failure to take care for his own safety;

(b)   Failure to keep his vehicle under control;

(c)   Failure to keep a proper lookout;

(d)   Over reacting to the presence of other vehicles on the roadway;

(e)   Failing to properly steer, manage and control his motor vehicle."

The Circumstances in which the Plaintiff…