Sherwood v Hussain

[2018] NSWDC 53

District Court

New South Wales

Medium Neutral Citation:	Sherwood v Hussain [2018] NSWDC 53
Hearing dates:	12 March 2018
Date of orders:	13 March 2016
Decision date:	13 March 2018
Jurisdiction:	Civil
Before:	Dicker SC DCJ
Decision:	(1) Judgment for the defendant. The Statement of Claim is dismissed; (2) I will hear argument from the parties in relation to costs; (3) The exhibits are to be returned after 28 days
Catchwords:	Torts – negligence – motor vehicle accident – “blameless accident” provisions – whether the plaintiff has established the necessary elements of a blameless motor accident claim – whether s 7C of the Motor Accidents Compensation Act 1999 (NSW) merely requires an averment of an accident involving a motor vehicle causing injury to the plaintiff to give rise to the presumption in the section.
Legislation Cited:	Civil Liability Act 2002 (NSW) Evidence Act 1995 (NSW) Interpretation Act 1987 (NSW) Motor Accidents Compensation Act 1999 (NSW) Motor Accidents Compensation Amendment Act 2006 (NSW) Uniform Civil Procedure Rules 2005
Cases Cited:	Allianz Australia Insurance Ltd v Dinov [2016] NSWDC 342 Dinov v Allianz Australia Insurance Ltd [2017] NSWCA 270 Fairall v Hobbs [2017] NSWCA 82 Nominal Defendant v Dowedeit [2016] NSWCA 332 Project Blue Sky v ABA (1998) 194 CLR 355; [1998] HCA 28 Roads and Maritime Services v Grant [2015] NSWCA 138 Whitfield v Melenewycz [2016] NSWCA 235
Category:	Principal judgment
Parties:	James Campbell Sherwood (Plaintiff) Talat Hussain (Defendant)
Representation:	Counsel: K Andrews and R Brown (Plaintiff) W Fitzsimmons (Defendant)   Solicitors: Slater & Gordon Lawyers (Plaintiff) Moray & Agnew (Defendant)
File Number(s):	2016/00139734

Judgment

1. These proceedings relate to a claim by the plaintiff against the defendant for damages for personal injuries said to arise:

1. From the defendant’s negligent operation of a motor vehicle being a taxi; and

2. In the alternative, relying on the “blameless accident” provisions of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”).

2. The plaintiff was alleged to have been injured in a motor vehicle accident on 9 March 2013 at approximately 2:40am in Marrickville in Sydney.

3. In his Statement of Claim filed 6 May 2016, the plaintiff pleads:

1. At all material times the defendant was the driver of motor vehicle registration number T1142;

2. At all material times the plaintiff was a pedestrian “walking across and/or on Illawarra Road, Marrickville” in Sydney in New South Wales;

3. On or about 9 March 2013 at approximately 2:40am the plaintiff was crossing “on and/or near a pedestrian crossing” on Illawarra Road when struck by the defendant’s vehicle causing injury to him;

4. The injury alleged was caused by the defendant’s breach of duty of care;

5. Further and in the alternative, the plaintiff relied on sections 7A, 7B and/or 7C of MACA.

4. The defendant relied on an Amended Defence filed on 12 March 2018.

5. In the Amended Defence the defendant:

1. Effectively admitted that he was the driver of motor vehicle registration number T1142 and that the plaintiff at all material times was a pedestrian walking across and/or on Illawarra Road, Marrickville;

2. Denied…