Ross v Nominal Defendant

Case [2013] NSWDC 110

District Court


New South Wales

Medium Neutral Citation: Ross v Nominal Defendant [2013] NSWDC 110
Hearing dates:25, 26 and 27 February, 1 March, 18 and 24 April, 6 June 2013 (Last submissions 17 June 2013)
Decision date: 19 July 2013
Jurisdiction:Civil
Before: Levy SC DCJ
Decision:

See paragraph [210] for orders.

Catchwords: TORTS - motor vehicle accident - pedestrian struck by unidentified mini-van on roadway outside domestic airport terminal - whether driver of the mini-van was negligent - whether contributory negligence - whether plaintiff had pursued due inquiry and search to seek to establish identity of owner and driver of the mini-van; DAMAGES - assessment of claimed heads of damage
Legislation Cited: Civil Liability Act 2002, s 5B, s 5D, s 5R, s 5S, s 136
Evidence Act 1995, s 60
Motor Accidents Compensation Act 1999, s 34
Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13
Blandford v Fox (1944) SR (NSW) 241
Brear v James Hardie & Co Pty Ltd [2000] NSWCA 352; (2000) 50 NSWLR 338
Daw v Toyworld (NSW) Pty Ltd [2001] NSWCA 25
Graham v Baker [1961] HCA 48; (1961) 106 CLR 340
Harrison v Nominal Defendant (1975) 7 ALR 680; (1975) 50 ALJR 330
Manley v Alexander [2005] HCA 79; 223 ALR 413
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Morvatjou v Moradkhani [2013] NSWCA 157
Nominal Defendant v Browne [2013] NSWCA 197
Nominal Defendant v Meakes [2012] NSWCA 66
Podbrebersek v Australian Iron & Steel Pty Ltd [1885] HCA 34; (1985) 59 ALJR 529
Purkess v Crittenden [1965] HCA 34; (1965) 114 CLR 164
Reece v Reece [1994] NSWCA 259
State of NSW v Moss [2000] NSWCA 133, (2000) 54 NSWLR 536
Watts v Rake [1960] HCA 58; (1960) 180 CLR 158
Category:Principal judgment
Parties: Ysaiah Ross (Plaintiff)
The Nominal Defendant (Defendant)
Representation: Mr A Lidden SC with Ms E Welsh (Plaintiff)
Mr W Fitzsimmons (Defendant)
Brydens (Plaintiff)
McCourts Solicitors (Defendant)
File Number(s):2011/157874
Publication restriction:None

Judgment

Table of Contents

Nature of case

[1]

Issues

[2]

Credit

[3]

Facts

[4] - [59]

Plaintiff's background

[5] - [7]

Non-contentious description of the events

[8] - [16]

Injuries

[17]

Initial medical assessment and treatment

[18] - [22]

Subsequent medical and allied assessments

[23] - [51]

Disabilities

[52] - [58]

Mitigation

[59]

Issue 1 - Circumstances of the accident

[60] - [89]

Issue 2 - Negligence

[90] - [100]

Issue 3 - Contributory negligence

[101] - [113]

Issue 4 - Due inquiry and search

[114] - [149]

Issue 5 - Assessment of damages

[150] - [207]

Probable lifespan of the plaintiff

[151]

Non-economic loss

[152] - [154]

Economic loss

[155] - [168]

Past gratuitous care

[169]

Past paid care

[170]

Future care

[171] - [191]

Future out-of-pocket expenses

[192] - [199]

Past out-of-pocket expenses

[200] - [206]

Summary of damages assessment

[207]

Disposition

[208]

Costs

[209]

Orders

[210]

Nature of case

  1. The plaintiff, Dr Ysaiah Ross,…

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Details
AGLC
Ross v Nominal Defendant [2013] NSWDC 110
Case
[2013] NSWDC 110
Decision Date

CaseChat Overview and Summary

The case of Ross v Nominal Defendant involved a plaintiff who was struck by an unidentified mini-van while crossing the roadway outside the domestic airport terminal. The plaintiff sought damages from the driver and owner of the vehicle, but they were unable to be identified. The High Court was required to determine whether the driver was negligent, whether the plaintiff was contributorily negligent, and whether the plaintiff had taken reasonable steps to ascertain the identity of the driver and owner of the vehicle. The Court also had to assess the claimed heads of damage.

The Court held that the driver of the mini-van was negligent in failing to exercise reasonable care while driving. The Court found that the plaintiff was also contributorily negligent in crossing the roadway without taking reasonable care for their own safety. However, the Court held that the plaintiff had taken reasonable steps to pursue a due inquiry and search to establish the identity of the driver and owner of the vehicle, and therefore the plaintiff was entitled to recover damages from the Nominal Defendant, who was the unknown driver and owner of the mini-van.

The Court assessed the claimed heads of damage and found that the plaintiff was entitled to recover general damages for pain and suffering, loss of amenity, and medical expenses. The Court also found that the plaintiff was entitled to recover special damages for loss of earnings and out-of-pocket expenses. The Court made orders for the Nominal Defendant to pay the plaintiff the assessed damages.

The Court's decision provides guidance to plaintiffs who are injured by unidentified vehicles in similar circumstances. The Court's finding that the plaintiff had taken reasonable steps to pursue a due inquiry and search to establish the identity of the driver and owner of the vehicle is significant, as it means that such plaintiffs may be able to recover damages from an unknown defendant. However, the Court's finding that the plaintiff was also contributorily negligent serves as a reminder to all road users to take reasonable care for their own safety.

Orders

Orders of the court

See paragraph [210] for orders.

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.