Itskos v The Nominal Defendant [2021] NSWDC 244

District Court New South Wales

Medium Neutral Citation: Itskos v The Nominal Defendant [2021] NSWDC 244 Hearing dates: 24, 25 and 26 May 2021 Date of orders: 17 June 2021 Decision date: 17 June 2021 Jurisdiction: Civil Before: J Smith SC, DCJ Decision: 1. Judgment for the plaintiff in the sum of $585,000. 2. The defendant is to pay 90% of the plaintiff's costs as assessed or agreed. Catchwords: NEGLIGENCE – Motor Vehicle Accident – Nominal Defendant – collision with unidentified vehicle – denial of liability – were injuries caused by negligence of another driver – balance of probabilities – contributory negligence Legislation Cited: Motor Accidents Compensation Act 1999 Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Nguyen v Tran [2018] NSWCA 215 Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 Category: Principal judgment Parties: Carlo Itskos (Plaintiff) The Nominal Defendant (Defendant) Representation: Counsel: Mr W Fitzsimmons SC (Plaintiff) Mr K Rewell SC (Defendant)

Solicitors: Paramount Compensation Lawyers (Plaintiff) Moray & Agnew Lawyers (Defendant) File Number(s): 2017/141335 Publication restriction: Nil

Judgment 1. The plaintiff claims damages under the Motor Accidents Compensation Act 1999 against the Nominal Defendant for injuries suffered by him in a motor accident that occurred on 18 January 2015. He says that he was riding his motorcycle on a two lane road when he was hit by an oncoming vehicle driving on his side of the road, which caused him to lose control of the motorcycle and suffer injuries to his left hand and right foot. 2. The defendant does not dispute that the plaintiff was injured when he came off his motorcycle, but denies that the accident was caused by an oncoming vehicle. Alternatively, it argues that the accident was contributed to by the plaintiff's own negligence. 3. The only eye witness was the plaintiff. Apart from the plaintiff's father-in-law who gave evidence of what the plaintiff told him about the accident, the other witnesses were experts in accident reconstruction and in biomechanics. In those circumstances, the credit of the plaintiff as a witness is a very important issue; however, neither the issue of his credit, nor the other factual issues in the proceedings can be viewed or determined in isolation. President Beazley explained in Nguyen v Tran [2018] NSWCA 215 at [54] (Emmett AJA and Bellew J agreeing): "The fact finding exercise which is required to be undertaken by the tribunal of fact, whether that be judge or jury, is not properly approached in that segmented way. The tribunal of fact, after hearing the witnesses, making assessments as to the credit and reliability of their evidence and examining the documentary evidence, if any, must weigh the whole of the evidence to determine whether the party bearing the legal onus has proved his or her case." 1. Even taking that approach, it is often convenient for trial judges, and other decision-makers who are required to prepare written reasons for their decisions, to express their findings sequentially. For that reason, such a method of expression should not be taken to indicate that the evidence has not been viewed as a whole: see Re Minister for Immigration & Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; 77 ALJR 1165 at [14] (Gleeson CJ). 2. That said, it is important to record, at the outset, my impression of the plaintiff as a witness having had the opportunity to closely observe him as he gave evidence. My firm impression was that the plaintiff was an honest witness who made every effort to give accurate evidence without consideration of whether that evidence was favourable to him or not. As will be seen, some of his evidence, such as his speed at the time of the accident and his location on the road, was not favourable to him. I accept that the plaintiff may not have known that some of this evidence was not favourable to him; however, he was consistent in all of his evidence even when challenged and gave his answers honestly.