PARKER v NOMINAL DEFENDANT [2007] NSWDC 40

New South Wales District Court

CITATION: PARKER v NOMINAL DEFENDANT [2007] NSWDC 40

HEARING DATE(S): 5-6 March 2007 EX TEMPORE JUDGMENT DATE : 8 March 2007

JURISDICTION: Civil

JUDGMENT OF: Sidis DCJ

DECISION: 1. Verdict and judgment for the plaintiff in the sum of $196,119.36. 2. Stood over for mention 9am 9 March 2007 to deal with issues of costs and any application for a stay.

CATCHWORDS: Nominal Defendant - Onus of proof - Drawing of inferences

LEGISLATION CITED: Road Transport (Vehicle Registration) Regulation 1998

Hunt v The Nominal Defendant NSWCA B9603057-28.6.96, Johnson v The Nominal Defendant [2003] NSWCA 153, CASES CITED: Motor Accidents Insurance Board v Padget Full Court of Supreme Court of Tasmania FCA 81/1996, Padget v Motor Accidents Insurance Board (1996) 23 MVR 411, Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121, The Nominal Defendant v Genn (2004) 42 MVR 249,

PARTIES: Coralie PARKER The Nominal Defendant

FILE NUMBER(S): Newcastle 714/05

COUNSEL: C A W Hart - Plaintiff P R Cummings - Defendant

SOLICITORS: Bale Boshev - Plaintiff Sparke Helmore - Defendant

JUDGMENT

HER HONOUR

1 In this matter Coralie Parker suffered three pelvic fractures when she was thrown from a motorcycle driven by Thomas Guy. Mr Guy is now Mrs Parker's husband.

2 The accident happened on 16 May 2004 as Mr Guy was slowing his motorcycle at traffic lights at the intersection of Belmore Road and High Street, Maitland.

3 The evidence indicated that the rear wheel of the motorcycle shimmied or fishtailed; that is, it moved from side to side when it came into contact with a patch of oil on a right turn arrow painted on the road surface. The wheel then recontacted the bitumen and abruptly stopped turning. As a result, both Mrs Parker and Mr Guy were thrown from the motorcycle.