The Nominal Defendant v Richards (No 2) - [2002] NSWCA 231

CITATION: The Nominal Defendant v Richards & Anor (No 2) [2002] NSWCA 231

FILE NUMBER(S): CA 40014/01

HEARING DATE(S): 08/10/01

JUDGMENT DATE:
19 July 2002

PARTIES :

The Nominal Defendant v Toni Richards & Rodney Craig Busbridge

JUDGMENT OF: Mason P at 1; Hodgson JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION : District Court

LOWER COURT
FILE NUMBER(S) : DC 816/99

LOWER COURT
JUDICIAL OFFICER : Delaney DCJ

COUNSEL: H J Halligan/J H Gibson (Appellant)
No Appearance (Respondent 1)
R Royle (Respondent 2)

SOLICITORS: D McLachlan (Appellant)
Garard Malouf & Parters (Respondent 1)
Blake Dawson Waldron (Respondent 2)

DECISION: (1) Appeal upheld (2) The orders made by Delaney DCJ be set aside (3) Ms Richards' action be remitted to the District Court for retrial both in respect of liability and damages (4) Mr Busbridge pay the Nominal Defendant's costs of the appeal (5) The costs of the trial be reserved for the judge at the retrial (6) Mr Busbridge to have a certificate under the Suitor's Fund Act if otherwise entitled.

CA 40014/01
DC 816/99

MASON P
HODGSON JA
IPP AJA
Friday 19 July 2002

THE NOMINAL DEFENDANT v TONI RICHARDS & RODNEY CRAIG BUSBRIDGE

SUPPLEMENTARY REASONS FOR JUDGMENT

1 MASON P: I agree with Ipp AJA.

2 HODGSON JA: I agree with Ipp AJA.

3 IPP AJA: On 18 July 1996 the first respondent, Ms Richards, was involved in a motor collision in Kingswood Park. The motor vehicle she was driving was struck in the rear by another vehicle, which drove away from the scene.

4 Ms Richards sought to recover the damages she suffered in consequence of the personal injuries she sustained in the collision. She had difficulties in identifying the vehicle that collided with her and the driver thereof. She sued the appellant, the Nominal Defendant, as the first defendant and, in the alternative, Mr Craig Busbridge, as the second defendant, alleging that he was the owner of the vehicle in question.

5 The matter came before Delaney DCJ. Initially, his Honour was required to decide only the issue of liability. In those proceedings, Ms Richards sought, firstly, to hold the Nominal Defendant liable for her damages. She alleged that the identity of the vehicle that had struck her vehicle, and the driver thereof, could not be established. She asserted that the unidentified driver had negligently caused her to suffer damages. She contended that the Nominal Defendant was, therefore, liable for her damages under s 28 of the Motor Accidents Act 1988.

6 In the alternative Ms Richards alleged that Mr Busbridge was the owner of the vehicle that collided with her and that the unidentified driver of that vehicle had negligently caused her to suffer damages.

7 Delaney DCJ held that the identity of the offending vehicle had not been established and that the Nominal Defendant was liable under s 28 of the Act for Ms Richards’ damages “as if it were the owner or driver of the motor vehicle”. He held…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWCA 231
Decision Date: 19 July 2002

CaseChat Overview and Summary

The appeal in *The Nominal Defendant v Richards (No 2)* concerned an action brought by Ms Richards against the Nominal Defendant, representing an unidentified driver. The dispute arose from a motor vehicle accident where Ms Richards alleged she suffered injuries due to the negligence of the unidentified driver. The case was heard in the Court of Appeal of New South Wales, with Mason P, Hodgson JA, and Ipp AJA presiding.

The central legal issues before the Court of Appeal were whether the primary judge had erred in finding the unidentified driver liable for Ms Richards' injuries and in assessing the quantum of damages awarded. Specifically, the court had to consider the sufficiency of the evidence presented to establish negligence on the part of the unidentified driver and the appropriateness of the damages awarded in light of that evidence.

The Court of Appeal upheld the appeal, setting aside the orders made by Delaney DCJ. The court reasoned that there were significant deficiencies in the evidence presented at trial, particularly concerning the establishment of liability and the assessment of damages. Consequently, Ms Richards' action was remitted to the District Court for a retrial on both liability and damages. The court further ordered that the Nominal Defendant recover the costs of the appeal from Mr Busbridge, with the costs of the trial to be reserved for the judge presiding at the retrial. Mr Busbridge was also to receive a certificate under the Suitor's Fund Act if otherwise entitled.

Orders

Orders of the court

(1) Appeal upheld (2) The orders made by Delaney DCJ be set aside (3) Ms Richards' action be remitted to the District Court for retrial both in respect of liability and damages (4) Mr Busbridge pay the Nominal Defendant's costs of the appeal (5) The costs of the trial be reserved for the judge at the retrial (6) Mr Busbridge to have a certificate under the Suitor's Fund Act if otherwise entitled.

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.

CITATION:	The Nominal Defendant v Richards & Anor (No 2) [2002] NSWCA 231
FILE NUMBER(S):	CA 40014/01
HEARING DATE(S):	08/10/01
JUDGMENT DATE:	19 July 2002
PARTIES :	The Nominal Defendant v Toni Richards & Rodney Craig Busbridge
JUDGMENT OF:	Mason P at 1; Hodgson JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 816/99
LOWER COURT JUDICIAL OFFICER :	Delaney DCJ

COUNSEL:	H J Halligan/J H Gibson (Appellant) No Appearance (Respondent 1) R Royle (Respondent 2)
SOLICITORS:	D McLachlan (Appellant) Garard Malouf & Parters (Respondent 1) Blake Dawson Waldron (Respondent 2)
DECISION:	(1) Appeal upheld (2) The orders made by Delaney DCJ be set aside (3) Ms Richards' action be remitted to the District Court for retrial both in respect of liability and damages (4) Mr Busbridge pay the Nominal Defendant's costs of the appeal (5) The costs of the trial be reserved for the judge at the retrial (6) Mr Busbridge to have a certificate under the Suitor's Fund Act if otherwise entitled.