Nominal Defendant v Stephens [2011] NSWCA 312

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nominal Defendant v Stephens [2011] NSWCA 312 Hearing dates: 6 September 2011 Decision date: 19 October 2011 Before: Giles JA at [1] Whealy JA at [2] Hall J at [88] Decision: Appeal dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: TORTS - NEGLIGENCE - plaintiff hit by unidentified truck whilst on highway - plaintiff intoxicated at time of accident - whether primary judge dealt adequately with cause of accident - whether primary judge advanced reasons as to what negligent driver should have done to avoid accident - whether evidence available that evasive action could have been taken by driver - whether primary judge gave adequate reasons.

TORTS - CONTRIBUTORY NEGLIGENCE - whether primary judge's apportionment should be overturned. Legislation Cited: Motor Accidents Compensation Act 1999 s 138 Law Reform (Miscellaneous Provisions) Act 1965 s 9 Cases Cited: Mifsud v Campbell (1991) 21 NSWLR 725 at 728 Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430 at 431 Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 278 - 279 Public Service Board of NSW v Osmond (1986) 159 CLR 656 at 666 - 667 Dobler v Halverson (BHT Kenneth Halverson) [2007] NSWCA 335; 70 NSWLR 151 at [71] per Giles JA Podrebersek v Australian Iron and Steel Pty Limited (1985) 59 ALR 529 at 532 - 533 Roads and Traffic Authority (NSW) v Dederer [2007] HCA 42; 234 CLR 330 at 379 per Kirby J Turkmani v Visvalingam & Ors [2009] NSWCA 211; 53 MVR 176 per Beazley JA Category: Principal judgment Parties: Nominal Defendant (Appellant / Cross Respondent) Rosalie Ann Stephens (Respondent/Cross Appellant) Representation: K Rewell SC / D Wilson (Appellant) DE Grieve QC / G Radburn (Respondent) Moray & Agnew (Appellant) Somerville Laundry Lomax (Respondent) File Number(s): CA 2010/400849 Publication restriction: Nil Decision under appeal Jurisdiction: 9101 Date of Decision: 2010-11-05 00:00:00 Before: Blanch DCJ File Number(s): DC 50/09