VAN HEMERT v SMITH [2006] NSWDC 106

New South Wales District Court

CITATION: VAN HEMERT v SMITH [2006] NSWDC 106

HEARING DATE(S): 23 August 2006

JUDGMENT DATE: 29 August 2006

EX TEMPORE JUDGMENT DATE : 08/29/2006

JUDGMENT OF: Sidis DCJ

DECISION: 1. Plaintiff's motion dismissed; 2. Each party is to pay its own costs of that motion; 3. On the defendant's motion, the defendant is granted leave to withdraw the admission of liability made by its third party insurer in a s 81 notice dated 22 October 2002; 4. The defendant is to pay the plaintiff's costs of that motion.; 5. The exhibits and the affidavit evidence may be returned

CATCHWORDS: Withdrawal of admission of breach duty of care

LEGISLATION CITED: Motor Accidents Compensation Act 1988

CASES CITED: Ness v Graffen (2003) 60 NSWLR 549 Maile v Rafiq [2005] NSWCA 410 @ [43]

PARTIES: Stephen Hewlett VAN HEMERT Delma Marjorie SMITH

FILE NUMBER(S): Newcastle 412 of 2005

Plaintiff D Benson COUNSEL: Defendant P Cummings

Plaintiff Reid & Reid SOLICITORS: Defendant Abbott Tout

JUDGMENT

1 In this matter there are two motions before the Court, a motion filed on behalf of the plaintiff on 23 November 2005 seeking to strike out paragraphs of the defence which deny liability to the plaintiff. The second motion was filed on behalf of the defendant on 29 December 2005 and it seeks leave to withdraw an admission of breach of duty of care made on 22 October 2002.

2 The plaintiff claims damages in respect of injuries suffered in a motor vehicle accident on 7 May 2002. The accident involved a collision between a vehicle driven by the plaintiff in the course of his employment and that driven by the defendant.