The Nominal Defendant v Richards & Anor (No 2) [2002] NSWCA 231

New South Wales Court of Appeal

CITATION : The Nominal Defendant v Richards & Anor (No 2) [2002] NSWCA 231 FILE NUMBER(S) : CA 40014/01 HEARING DATE(S) : 08/10/01 JUDGMENT DATE : 19 July 2002

PARTIES : The Nominal Defendant v Toni Richards & Rodney Craig Busbridge JUDGMENT OF : Mason P at 1; Hodgson JA at 2; Ipp AJA at 3

LOWER COURT JURISDICTION : District Court LOWER COURT DC 816/99 FILE NUMBER(S) : LOWER COURT Delaney DCJ JUDICIAL OFFICER :

H J Halligan/J H Gibson (Appellant) COUNSEL : No Appearance (Respondent 1) R Royle (Respondent 2) D McLachlan (Appellant) SOLICITORS : Garard Malouf & Parters (Respondent 1) Blake Dawson Waldron (Respondent 2)

DECISION : (1) Appeal upheld (2) The orders made by Delaney DCJ be set aside (3) Ms Richards' action be remitted to the District Court for retrial both in respect of liability and damages (4) Mr Busbridge pay the Nominal Defendant's costs of the appeal (5) The costs of the trial be reserved for the judge at the retrial (6) Mr Busbridge to have a certificate under the Suitor's Fund Act if otherwise entitled.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40014/01 DC 816/99

MASON P HODGSON JA IPP AJA

Friday 19 July 2002 THE NOMINAL DEFENDANT v TONI RICHARDS & RODNEY CRAIG BUSBRIDGE

SUPPLEMENTARY REASONS FOR JUDGMENT

1 MASON P: I agree with Ipp AJA. 2 HODGSON JA: I agree with Ipp AJA. 3 IPP AJA: On 18 July 1996 the first respondent, Ms Richards, was involved in a motor collision in Kingswood Park. The motor vehicle she was driving was struck in the rear by another vehicle, which drove away from the scene. 4 Ms Richards sought to recover the damages she suffered in consequence of the personal injuries she sustained in the collision. She had difficulties in identifying the vehicle that collided with her and the driver thereof. She sued the appellant, the Nominal Defendant, as the first defendant and, in the alternative, Mr Craig Busbridge, as the second defendant, alleging that he was the owner of the vehicle in question. 5 The matter came before Delaney DCJ. Initially, his Honour was required to decide only the issue of liability. In those proceedings, Ms Richards sought, firstly, to hold the Nominal Defendant liable for her damages. She alleged that the identity of the vehicle that had struck her vehicle, and the driver thereof, could not be established. She asserted that the unidentified driver had negligently caused her to suffer damages. She contended that the Nominal Defendant was, therefore, liable for her damages under s 28 of the Motor Accidents Act 1988. 6 In the alternative Ms Richards alleged that Mr Busbridge was the owner of the vehicle that collided with her and that the unidentified driver of that vehicle had negligently caused her to suffer damages. 7 Delaney DCJ held that the identity of the offending vehicle had not been established and that the Nominal Defendant was liable under s 28 of the Act for Ms Richards' damages "as if it were the owner or driver of the motor vehicle". He held that the claim against Mr Busbridge should be dismissed. 8 Thereafter, a further hearing took place during which Delaney DCJ assessed the damages to be paid by the Nominal Defendant to Ms Richards. When the matter was called for the purposes of this hearing, Mr Busbridge was represented by counsel. His counsel, however, did not remain in court and did not participate in the hearing at which his Honour determined the quantum of damages. This was understandable as Mr Busbridge had been exculpated from liability by the learned Judge. Delaney DCJ assessed damages in the sum of $328,677.28. 9 On 16 October 2001 this Court delivered reasons for judgment in which it held that there had been a fundamental error in reasoning on the part of Delaney DCJ which resulted in the trial as to liability being decided otherwise than according to law. In my reasons (with which Mason P and Hodgson JA agreed) I said: "As I have mentioned, the question whether Mr Busbridge was the driver (and, therefore, whether the vehicle was properly identified), depends for its resolution, at least to a degree, on the credibility of Mr Busbridge and Mr Last. This Court, not having seen the witnesses, is not in a position to make such a finding. Accordingly, this Court cannot accede to the Nominal Defendant's claim that a verdict and judgment be entered in favour of Ms Richards against Mr Busbridge. During argument on the appeal, counsel for the Nominal Defendant, recognising the difficulties that would arise from the fact that this Court would not be in a position to make the necessary credibility findings, applied for an amendment to the notice of appeal so as to incorporate an order granting a new trial. The Court indicated that it would decide this application in the course of giving its reasons for judgment. But for the situation of Ms Richards, I would have had no hesitation in proposing that the application for the amendment be granted and a new trial be ordered. Ms Richards' involvement, however, puts a different complexion on the issue. Ms Richards had no notice of the proposed amendment. Her omission to appear at the appeal may well have been predicated on the belief that, in accordance with the notice of appeal in its unamended form, she would not be prejudiced in any way should the Nominal Defendant succeed and obtain the relief claimed by it. In other words, her decision not to appear was presumably made on the basis that, should the Nominal Defendant succeed, the only consequence for her would be that Mr Busbridge would be substituted as judgment debtor for the Nominal Defendant. But, were the amendment to be allowed and a new trial ordered, there is the potential for Ms Richards to be prejudiced. It may be that, in theory, Mr Busbridge could (and would) argue that even if he were the driver, he was not negligent and therefore not liable to Ms Richards for her damages. Counsel for Mr Busbridge has indicated that the quantum of damages would be contested afresh by Mr Busbridge, and it is possible that, if held to be liable, Mr Busbridge will be ordered to pay Ms Richards a sum less than the judgment sum ordered by Delaney DCJ. In the circumstances, I propose that, at this stage, no order be made in regard to the application for the amendment to the notice of appeal or the appeal, and the Nominal Defendant be ordered to re-list the appeal after having given notice of the application for the amendment to Ms Richards and serving a copy of these reasons upon her. At the resumed hearing, the application for the amendment will be determined and argument can take place in Ms Richards' presence as to the orders that should be made in regard to the resolution of the appeal (including orders, if any, relating to restitution of any monies paid, pending the new trial) in the light of these reasons. There seems to be good reason for the parties to agree on the orders to be made. If they are unable to agree they should bring in short minutes of orders within 21 days." 10 The parties have been unable to agree on the orders to be made but have filed written submissions. 11 In the appellant's written submissions it submits that there should be a new trial only in regard to the identity of the vehicle that struck Ms Richards. It accepts that the findings of Delaney DCJ in respect of damages should not be challenged and states, "the assessment of damages should stand". 12 Ms Richards, in her written submissions, points to the unusually large amount of costs she has already incurred in the proceedings so far (through no fault that could be attributed to her) and submits that she would be prejudiced should there be a retrial of any kind. It is to be noted, however, that in an affidavit filed by Ms Richards' solicitor in support of her submissions the principal point made is that there should not be "a full hearing on liability and quantum" and in her written submissions the argument is directed virtually entirely against a retrial on the quantum of damages. Thus, although Ms Richards opposes any amendment to the Notice of Appeal (which would be required for an order to be made directing a retrial on any issue) the substance of her argument complains only about a retrial as to damages. 13 Mr Busbridge, in his written submissions, complains that if a retrial were to be ordered he would be prejudiced, both in regard to liability and damages. In regard to liability he complains in essence that there is a significant risk that he will be found to have been the owner and the driver of the vehicle that collided with Ms Richards. In regard to damages, he complains that he never had the opportunity of challenging the amount at which damages were assessed. 14 In the light of this Court's findings expressed in the reasons delivered on 16 October 2001, the trial as to liability was not decided according to law. Hence, the orders then made by the trial judge cannot stand. In particular, the judgment and orders made against the Nominal Defendant must be set aside. 15 Prima facie, the driver of the vehicle that collided with Ms Richards was negligent. A grave injustice would occur if Ms Richards were not granted a further opportunity of obtaining judgment against the party liable in law for the damages she suffered in consequence of the collision. The points made in opposition by Mr Busbridge as to the injustice that a new trial would cause to him have no substance. Therefore, there has to be a new trial in respect of liability. 16 In my view, despite the apparent strength of Ms Richards' case as to the negligence of the driver of the vehicle that collided with her (and the concession made by the Nominal Defendant), fairness to Mr Busbridge requires the new trial to encompass both the issue of the identity of the vehicle and the issue of the negligence of the driver. That is once there is to be a new trial, fairness to Mr Busbridge requires that both issues in regard to liability be canvassed. 17 As regards the quantum of damages, I accept that Ms Richards has been put to a considerable amount of inconvenience and expense in the litigation so far and that inconvenience and expense will be aggravated should the new trial involve damages as well as liability. But the injustice that Ms Richards would suffer in such event would be less than the injustice Mr Busbridge would suffer if he were required to accept the assessment of damages made by Delaney DCJ without having had an opportunity of challenging that assessment. Any injustice to Ms Richards of the kind complained of could be remedied by an appropriate costs order by the trial judge. 18 Indeed, it would be open to the judge presiding at the new trial to make a special order as to costs should he or she consider that it was unreasonable for any party to contest any particular issue. Without in any way intending to influence the judge concerned, it is obvious that the present is a case where such an order could well be made. 19 In the circumstances, I propose the following orders: