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 daysCatchwords: 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 2005Cases 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 235Category: Principal judgment Parties: James Campbell Sherwood (Plaintiff)
Talat Hussain (Defendant)Representation: Counsel:
Solicitors:
K Andrews and R Brown (Plaintiff)
W Fitzsimmons (Defendant)
Slater & Gordon Lawyers (Plaintiff)
Moray & Agnew (Defendant)
File Number(s): 2016/00139734
Judgment
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These proceedings relate to a claim by the plaintiff against the defendant for damages for personal injuries said to arise:
From the defendant’s negligent operation of a motor vehicle being a taxi; and
In the alternative, relying on the “blameless accident” provisions of the Motor Accidents Compensation Act 1999 (NSW) (“the Act”).
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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.
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In his Statement of Claim filed 6 May 2016, the plaintiff pleads:
At all material times the defendant was the driver of motor vehicle registration number T1142;
At all material times the plaintiff was a pedestrian “walking across and/or on Illawarra Road, Marrickville” in Sydney in New South Wales;
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;
The injury alleged was caused by the defendant’s breach of duty of care;
Further and in the alternative, the plaintiff relied on sections 7A, 7B and/or 7C of MACA.
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The defendant relied on an Amended Defence filed on 12 March 2018.
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In the Amended Defence the defendant:
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;
Denied…
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- AGLC
- Sherwood v Hussain [2018] NSWDC 53
- Case
- [2018] NSWDC 53
- Decision Date
CaseChat Overview and Summary
The court examined the statutory language of section 7C and the precedents interpreting its requirements. Sherwood contended that the provision requires only an averment of an accident involving a motor vehicle causing injury to the plaintiff, to give rise to the presumption. However, the court found that Sherwood had not met the burden of establishing that the accident was blameless as required by the legislation. The court held that section 7C does not merely require an averment of an accident but necessitates evidence that the accident was indeed blameless, which Sherwood failed to provide.
Given that Sherwood did not meet the statutory criteria for a presumption of a blameless accident, the court dismissed the claim. The judgment reflects a strict interpretation of the statutory requirements under the Motor Accidents Compensation Act. Consequently, judgment was entered in favour of the defendant, and the Statement of Claim was dismissed. The court also scheduled a future hearing to address the issue of costs and directed that the exhibits be returned to the parties after 28 days.
Orders
Orders of the court
(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
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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