Warren Fitzgerald v The Nominal Defendant - [2018] NSWDC 175

District Court

New South Wales

Medium Neutral Citation: Warren Fitzgerald v The Nominal Defendant [2018] NSWDC 175
Hearing dates: 14, 15, 16, 21, 22, 23, 24 (written submission) and 28 May 2018
Date of orders: 29 May 2018
Decision date: 29 May 2018
Jurisdiction: Civil
Before: P Taylor SC DCJ
Decision:
(1) Judgment for the plaintiff in the sum of $349,905.25.
(2) Costs and any issues regarding the amounts agreed for past treatment expenses reserved.

Catchwords: TRAFFIC LAW AND TRANSPORT – motor accident compensation – motorcycle – unidentified motor vehicle – contributory negligence - alcohol
Legislation Cited: Civil Liability Act 2002, s 5, s 5B, s 5D, s 5R, s 49
Evidence Act 1995, s 64, s 66A
Interpretation Act 1987, s 7
Law Reform (Miscellaneous Provisions) Act 1946, s 5
Law Reform (Miscellaneous Provisions) Act 1965, s 9
Motor Accidents Act 1988, s 74
Cases Cited: Amanda's On The Edge Pty Ltd v Dries [2011] NSWCA 358
Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320
Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110
Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345
MacKenzie v The Queen (1996) 190 CLR 348
March v E & M H Stramare Pty Ltd (1991) 171 CLR 50; [1991] HCA 12
Mason v Demasi [2009] NSWCA 227
Nominal Defendant v Rooskov [2012] NSWCA 43
Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34
Smith v Randall [2016] QSC 191
Verryt v Schoup [2015] NSWCA 128
Watson v Foxman (1995) 49 NSWLR 315
Wells v Council of the City of Orange (No 2) [2017] NSWSC 510
Category: Principal judgment
Parties: Warren Rayment Fitzgerald (plaintiff)
The Nominal Defendant (defendant)
Representation:
Counsel:
Dr S C Thornton (plaintiff)
Mr J Ryan (defendant)
Solicitors:
Tiernan Lawyers (plaintiff)
Vardanega Roberts Solicitors (defendant)

File Number(s): 2017/130514
Publication restriction: None

Judgment

A. Introduction

Warren Fitzgerald sustained a serious leg injury when he collided with a parked vehicle when riding his motorcycle. He says the collision was caused by a gold Camry motor vehicle which failed to give way at a preceding intersection. The Camry was not located and Mr Fitzgerald sues the Nominal Defendant for personal injury damages.

B. Issues

The Nominal Defendant accepts that if a gold Camry or other motor vehicle failed to give way at the intersection, as Mr Fitzgerald asserts, then Mr Fitzgerald is entitled to damages. But it denies that any motor vehicle appeared at the intersection, or caused the collision.
The Nominal Defendant asserts that Mr Fitzgerald was intoxicated by alcohol, which caused him to collide with the parked vehicle. Mr Fitzgerald denies that he was intoxicated, but conceded that a small reduction in damages for contributory negligence should apply if a finding that his blood alcohol concentration was as asserted by the Nominal Defendant. This concession was amended to confine the contributory negligence finding to circumstances where Mr Fitzgerald's blood alcohol level was a cause of the collision.
Certain aspects of damages are also disputed.
Thus,…

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: [2018] NSWDC 175
Decision Date: 29 May 2018

CaseChat Overview and Summary

In the matter of Warren Fitzgerald, the plaintiff, and The Nominal Defendant, the case involved a motor accident compensation dispute. The plaintiff, a motorcyclist, claimed damages following a collision with an unidentified motor vehicle while riding his motorcycle. The plaintiff alleged that the collision resulted in severe injuries and sought compensation for past and future medical expenses, loss of income, and pain and suffering. The court was tasked with determining the extent of the plaintiff's injuries, the cause of the accident, and the appropriate compensation to be awarded. Additionally, the court had to assess whether the plaintiff's contributory negligence, including the consumption of alcohol at the time of the accident, should reduce the compensation.

The primary legal issues before the court were the identification of the unidentified motor vehicle, the degree of contributory negligence on the part of the plaintiff, and the calculation of damages. The court had to establish whether the plaintiff's injuries were directly caused by the collision and whether any actions or omissions on his part contributed to the accident. The court also needed to evaluate the extent to which the plaintiff's consumption of alcohol at the time of the accident should be considered in the assessment of damages.

The court found that the plaintiff's injuries were indeed caused by the collision with the unidentified vehicle. While acknowledging that the plaintiff had consumed alcohol at the time of the accident, the court determined that this factor did not absolve the defendant from liability. The court reasoned that the unidentified driver had a legal obligation to ensure road safety and could not evade responsibility for the accident merely because the driver's identity was unknown. The court concluded that the plaintiff's contributory negligence should be considered in the assessment of damages but did not absolve the defendant entirely. After careful consideration of all evidence and submissions, the court awarded the plaintiff $349,905.25 in compensation.

The court reserved issues regarding the costs and the amounts agreed for past treatment expenses for further determination. This comprehensive judgment provides clarity on the legal principles governing motor accident compensation, contributory negligence, and the impact of alcohol consumption on liability and damages in such cases.

Orders

Orders of the court

(1) Judgment for the plaintiff in the sum of $349,905.25.

(2) Costs and any issues regarding the amounts agreed for past treatment expenses reserved.

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.

Medium Neutral Citation:	Warren Fitzgerald v The Nominal Defendant [2018] NSWDC 175
Hearing dates:	14, 15, 16, 21, 22, 23, 24 (written submission) and 28 May 2018
Date of orders:	29 May 2018
Decision date:	29 May 2018
Jurisdiction:	Civil
Before:	P Taylor SC DCJ
Decision:	(1) Judgment for the plaintiff in the sum of $349,905.25. (2) Costs and any issues regarding the amounts agreed for past treatment expenses reserved.
Catchwords:	TRAFFIC LAW AND TRANSPORT – motor accident compensation – motorcycle – unidentified motor vehicle – contributory negligence - alcohol
Legislation Cited:	Civil Liability Act 2002, s 5, s 5B, s 5D, s 5R, s 49 Evidence Act 1995, s 64, s 66A Interpretation Act 1987, s 7 Law Reform (Miscellaneous Provisions) Act 1946, s 5 Law Reform (Miscellaneous Provisions) Act 1965, s 9 Motor Accidents Act 1988, s 74
Cases Cited:	Amanda's On The Edge Pty Ltd v Dries [2011] NSWCA 358 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Day v Perisher Blue Pty Ltd (2005) 62 NSWLR 731; [2005] NSWCA 110 Grima v RFI (Aust) Pty Ltd [2014] NSWCA 345 MacKenzie v The Queen (1996) 190 CLR 348 March v E & M H Stramare Pty Ltd (1991) 171 CLR 50; [1991] HCA 12 Mason v Demasi [2009] NSWCA 227 Nominal Defendant v Rooskov [2012] NSWCA 43 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34 Smith v Randall [2016] QSC 191 Verryt v Schoup [2015] NSWCA 128 Watson v Foxman (1995) 49 NSWLR 315 Wells v Council of the City of Orange (No 2) [2017] NSWSC 510
Category:	Principal judgment
Parties:	Warren Rayment Fitzgerald (plaintiff) The Nominal Defendant (defendant)
Representation:	Counsel: Dr S C Thornton (plaintiff) Mr J Ryan (defendant) Solicitors: Tiernan Lawyers (plaintiff) Vardanega Roberts Solicitors (defendant)
File Number(s):	2017/130514
Publication restriction:	None