PARSONS v THE NOMINAL DEFENDANT [1994] NSWCA 249

PARSONS v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

HANDLEY, SHELLER and POWELL JJA 24 March 1994, 24 March 1994

[1994] NSWCA 249

Negligence — Sufficiency of evidence — Motor vehicle collision allegedly caused by unidentified motor vehicle — action against Nominal Defendant- Whether failure of vehicle to stop provides evidence of negligence.

Powell JA On Friday 21 October 1983, at about 11 pm, a motor vehicle which theAppellant, Mr Parsons, was driving in a Northerly direction in Marsden Road, Eastwood, collided with the rear of another motor vehicle which was, at the time, parked in a kerbside lane on the Western side of the carriageway of Marsden Road. As a result of the impact, so Mr Parsons says, he was thrown forward and his head hit the steering wheel rendering him unconscious. Thereafter, Mr Parsons was taken by Central District Ambulance to Westmead Hospital, where, after a number of comparatively minor injuries were observed, and some minor treatment was accorded to him, he was discharged but advised to consult his local medical practitioner.

On 25 January 1985, Mr Parsons, who claimed that the collision was caused by the actions of an unidentified motor vehicle, caused to be filed in the District Court an Ordinary Statement of Claim seeking, pursuant to the provisions of s30(2) of the Motor Vehicles (Third Party Insurance) Act, 1942, ("the Insurance Act'') to recover from The Nominal Defendant damages for the injuries which he claimed to have suffered in the accident.

In his Statement of Claim, Mr Parsons alleged (inter alia):

"2. At about 11.05 pm on Friday the 21st October, 1983, the plaintiff was driving his motor vehicle being a Renault sedan registered number MLQ 107 in a northerly direction in lane 1 Marsden Road, Eastwood in the State of New South Wales.