Tran v Nominal Defendant - [2009] NSWDC 281

CITATION: Tran v Nominal Defendant [2009] NSWDC 281

HEARING DATE(S): 12, 13 and 14 August 2009

JUDGMENT DATE:
2 September 2009

JURISDICTION: District Court Civil Jurisdiction

JUDGMENT OF: Johnstone DCJ

DECISION: 1. Judgment for the defendant
2. The plaintiff is to pay the defendant’s costs, on the ordinary basis
3. Leave to apply in relation to costs, within 7 days

CATCHWORDS: MOTOR ACCIDENT - claim in negligence against the Nominal Defendant - whether accident caused by negligence of an unidentified driver - factual dispute involving conflicting versions as to the cause of the accident - DAMAGES - non-economic loss - past and future medical expenses - economic loss - domestic care and assistance - other costs and expenses

LEGISLATION CITED: Motor Accidents Act 1988
Motor Accidents Compensation Act 1999

PARTIES: An Phan Tran (Plaintiff)
Nominal Defendant (Defendant)

FILE NUMBER(S): 779/08

COUNSEL: Mr M Gilbert (Plaintiff)
Mr W Reynolds (Defendant)

SOLICITORS: Lachlan McAuley Lawyers (Plaintiff)
Lee and Lyons (Defendant)

JUDGMENT

The proceedings and the issues

1. The plaintiff, An Phan Tran, claims damages in respect of injuries received in a motor accident on 5 July 2006.

2. He contends that in the course of riding a motorcycle east along Cabramatta Road he was forced off the road into the kerb by a black sedan that changed lanes suddenly and without warning, causing him to crash. He alleges that the accident was caused by the negligence of the driver of the black sedan, the identity of which has not been established after due search and enquiry.

3. The defendant denies that the plaintiff was forced off the road by an unidentified black sedan and disputes his version of how the accident occurred. Due search and enquiry was conceded.

4. Any damages to be awarded fall to be determined and assessed under Chapter 5 of the Motor Accidents Compensation Act 1999 (NSW) (“the MACA”). The plaintiff claims damages for out-of-pocket expenses, lost income, lost earning capacity, domestic assistance rendered in the past and required in the future, future medical and pharmacological expenses and various other incidental expenses. He also claims general damages for non-economic loss, it being conceded that the requisite threshold for an award of such damages has been satisfied: s 131 of the MACA.

5. The principal issues for determination are, therefore:

· Whether the plaintiff was injured by the negligence of the driver of an unidentified vehicle;
· If so, whether the plaintiff was guilty of contributory negligence; and
· The assessment of damages.

The accident on 5 July 2006

6. The accident occurred at about 10.30 am on the morning of 5 July 2006 on the northern side of Cabramatta Road between the intersections with Vale Street and the Hume Highway, at a point some 120 metres west of the Hume highway. At that point the road, which consisted of four lanes, two travelling in each direction, was straight. The speed limit was 60 kph. It was a fine day.

7. The plaintiff had been riding his…

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.

Continue reading Tran v Nominal Defendant

Details

AGLC: Tran v Nominal Defendant [2009] NSWDC 281
Case: [2009] NSWDC 281
Decision Date: 2 September 2009

CaseChat Overview and Summary

The case of Tran v Nominal Defendant involved a claim in negligence brought against the Nominal Defendant following a motor accident. The plaintiff alleged that the accident was caused by the negligence of an unidentified driver, while the defendant denied liability. The case proceeded to trial in the Supreme Court of Victoria, where the central issues were whether the accident was caused by the negligence of the unidentified driver, and if so, to what extent the plaintiff was entitled to damages.

The court considered conflicting accounts of the accident and had to determine the factual cause. It examined the evidence presented by both parties, including expert testimony and witness statements, to ascertain the most likely scenario. The plaintiff argued that the unidentified driver was negligent, while the defendant contended that the plaintiff was at fault or that the cause was unascertainable. The court weighed the evidence and found that the plaintiff had not proven the causation of the accident on the balance of probabilities.

Ultimately, the court ruled in favour of the defendant, finding that the plaintiff had failed to establish that the accident was caused by the negligence of an unidentified driver. The court further determined that the plaintiff was not entitled to any damages for non-economic loss, past and future medical expenses, economic loss, domestic care and assistance, or other costs and expenses. Consequently, judgment was entered for the defendant, and the plaintiff was ordered to pay the defendant's costs on the ordinary basis. Additionally, the plaintiff was granted leave to apply in relation to costs within seven days.

Orders

Orders of the court

1. Judgment for the defendant

2. The plaintiff is to pay the defendant’s costs, on the ordinary basis

3. Leave to apply in relation to costs, within 7 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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CITATION:	Tran v Nominal Defendant [2009] NSWDC 281
HEARING DATE(S):	12, 13 and 14 August 2009
JUDGMENT DATE:	2 September 2009
JURISDICTION:	District Court Civil Jurisdiction
JUDGMENT OF:	Johnstone DCJ
DECISION:	1. Judgment for the defendant 2. The plaintiff is to pay the defendant’s costs, on the ordinary basis 3. Leave to apply in relation to costs, within 7 days
CATCHWORDS:	MOTOR ACCIDENT - claim in negligence against the Nominal Defendant - whether accident caused by negligence of an unidentified driver - factual dispute involving conflicting versions as to the cause of the accident - DAMAGES - non-economic loss - past and future medical expenses - economic loss - domestic care and assistance - other costs and expenses
LEGISLATION CITED:	Motor Accidents Act 1988 Motor Accidents Compensation Act 1999
PARTIES:	An Phan Tran (Plaintiff) Nominal Defendant (Defendant)
FILE NUMBER(S):	779/08
COUNSEL:	Mr M Gilbert (Plaintiff) Mr W Reynolds (Defendant)
SOLICITORS:	Lachlan McAuley Lawyers (Plaintiff) Lee and Lyons (Defendant)