Ryan v Nominal Defendant [2005] NSWCA 59

Reported Decision : 62 NSWLR 192

New South Wales Court of Appeal

CITATION: Ryan v Nominal Defendant [2005] NSWCA 59

HEARING DATE(S): 15 October 2004

JUDGMENT DATE: 14 March 2005

JUDGMENT OF: Giles JA at 1; Santow JA at 22; McColl JA at 140

DECISION: (1) Leave is granted to the appellant to amend Ground 2 of the Notice of Appeal, and file within 14 days an Amended Notice of Appeal, amended in the manner identified in the judgment. ; (2) The appeal is allowed; ; (3) The judgment and orders of English DCJ, made on 2 October 2003, are set aside; ; (4) In lieu thereof, order that judgment be entered for the appellant in the sum of $1,900,000, such judgment to take effect as from 3 October 2003 and to bear interest at the statutory rates from that date. ; (5) The respondent is to pay the costs of the appellant on appeal and in the proceedings below.

CATCHWORDS: STATUTORY INTERPRETATION - Liability of Nominal Defendant dependent upon whether accident occurred on a "public street" under Motor Accidents Act 1988 or equivalent definition of "road" in the Motor Accidents Compensation Act 1999 - possible relevance of statutory purpose and legislative history - was area "used by the public" - meaning of term "used by the public" in relevant legislation - comparative meaning of "open to the public" in the relevant legislation - relationship between openness and usage - relevance of fact that private property and that though usage not permitted measures to prevent it quite ineffective - Jones v Dunkel inference - differential treatment of relevant witnesses by trial judge.

Metropolitan Traffic Act 1900 (Act No 8, 1900) Motor Accidents Act 1988 Motor Accidents Compensation Act 1999 Motor Traffic Act 1909 Motor Traffic (Amendment) Act 1951 (No 59, 1951) LEGISLATION CITED: Motor Vehicles (Third Party Insurance) Act 1942 (Act No 15, 1942) Municipalities Act 1897 Pt XIV, Div 1 Public Vehicles Act 1899 Road Transport (Vehicle Registration) Act 1997 Road Transport (Vehicle Registration) Regulation 1998 cl 7 Sydney Corporation Act 1879, Pt V)