Turnbull v Kyogle Council - [2024] NSWSC 1297

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Turnbull v Kyogle Council [2024] NSWSC 1297
Hearing dates: 14 October 2024
Date of orders: 16 October 2024
Decision date: 16 October 2024
Jurisdiction: Common Law
Before: Elkaim AJ
Decision:
1. The defendant is not permitted to rely on the amended defence which is Annexure A to the affidavit of Matthew Gerathy dated 3 September 2024.
2. The parties have leave to make submissions on costs.

Catchwords:
CIVIL PROCEDURE — pleadings — amendment — application to rely on amended defence — where amended defence asserts that plaintiff’s entitlement to common law damages is barred by his participation in the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) — plaintiff allowed to seek common law damages whilst at the same time being a lifetime participant of Motor Accidents (Lifetime Care and Support) Act 2006 (NSW)

Legislation Cited:
Civil Liability Act 2002 (NSW), s 15B(8)
Motor Accident Injuries Act 2017 (NSW), Pt 4
Motor Accidents Compensation Act 1999 (NSW), Ch 5, ss 122, 130A, 131A, 141A
Motor Accidents Compensation Amendment Bill
Motor Accidents (Lifetime Care and Support) Act 2006 (NSW), ss 7, 8, 11B, 54
Motor Accidents (Lifetime Care and Support) Bill

Cases Cited:
Berowra Holdings Pty Ltd v Gordon (2006) 225 CLR 364; [2006] HCA 32
Bitupave Ltd v Bollington (1998) 28 MVR 223
Daly v Thiering [2013] NSWCA 25
Daly v Thiering (2013) 249 CLR 381; [2013] HCA 45
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Roads and Traffic Authority v Ryan (2005) 62 NSWLR 609; [2005] NSWCA 34
Rouse v Shepherd (1994) 35 NSWLR 250
Thiering v Daly [2011] NSWSC 1345

Category: Procedural rulings
Parties: Mr Simon Charles Turnbull (Plaintiff)
Kyogle Council (Defendant)
Representation:
Counsel:
Mr D Hooke SC (Plaintiff)
Mr G Radburn (Plaintiff)
Dr S Hartford Davis (Plaintiff)
Mr John Tryon (Plaintiff)
Mr Jeremy Morris SC (Defendant)
Mr Reno Gambi (Defendant)
Solicitors:
Somerville Laundry Lomax (Plaintiff)
Makinson & d'Apice Lawyers (Defendant)

File Number(s): 2021/216575
Publication restriction: No

JUDGMENT

The plaintiff, who is now 74 years of age, was catastrophically injured in an accident on 5 May 2019.
The accident occurred when the plaintiff, riding his motorcycle on Summerland Way, within the local council district of Kyogle, rode into loose gravel that had been left by the defendant on the roadway following completion of roadworks. When the motorcycle went into the gravel, it slid to the left of the roadway and the plaintiff was ejected from the motorcycle.
On 12 July 2019 the plaintiff was informed by the Lifetime Care and Support Authority of New South Wales that he had been accepted as an interim participant into the Lifetime Care and Support Scheme (the Scheme). On 20 July 2021 the plaintiff was accepted as a permanent lifetime participant in the Scheme.
The plaintiff commenced proceedings against the defendant with the filing of a statement of claim on 29 July 2021. The defendant filed a defence on…

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 Turnbull v Kyogle Council

Details

AGLC: Turnbull v Kyogle Council [2024] NSWSC 1297
Case: [2024] NSWSC 1297
Decision Date: 16 October 2024

CaseChat Overview and Summary

The case of Turnbull v Kyogle Council involved the plaintiff, who sought damages for injuries sustained in a motor vehicle accident against the defendant council. The plaintiff argued that the council was negligent in maintaining the road on which the accident occurred. The dispute was heard by the Supreme Court of New South Wales. The defendant council applied for the plaintiff to be barred from claiming common law damages due to his participation in the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW). The court was required to decide whether the plaintiff could simultaneously seek common law damages and be a lifetime participant of the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW).

The primary legal issue before the court was whether the plaintiff's participation in the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) barred him from seeking common law damages. The court examined the compatibility of the plaintiff's rights under the Motor Accidents Act and the common law. The court also considered the legislative intent behind the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) and whether it precluded the plaintiff from seeking damages under common law. The court examined the relevant provisions of the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) and the common law to determine if there was an inconsistency or exclusion.

The court found that the plaintiff could seek common law damages while being a lifetime participant of the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW). The court held that the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) did not preclude the plaintiff from pursuing common law damages. The court reasoned that the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) provided for a comprehensive scheme for compensation, but it did not exclude the possibility of common law claims. The court determined that the plaintiff's rights under the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW) and the common law were not mutually exclusive. The court allowed the plaintiff to proceed with his common law damages claim.

The court ordered that the plaintiff could rely on the amended defence and proceed with his common law damages claim against the defendant council. The court denied the council's application to bar the plaintiff from seeking common law damages due to his participation in the Motor Accidents (Lifetime Care and Support) Act 2006 (NSW).

Orders