Nominal Defendant v Meakes [2012] NSWCA 66

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nominal Defendant v Meakes [2012] NSWCA 66 Hearing dates: 14 March 2012 Decision date: 04 April 2012 Before: McColl JA at [1] Basten JA at [2] Sackville AJA at [11] Decision: 1. Appeal allowed. 2. Set aside Orders (1) and (2) made by the primary Judge on 15 March 2011. 3. In lieu thereof order that there be judgment for the Nominal Defendant. 4. Order the respondent to pay the Nominal Defendant's costs of the proceedings in the District Court. 5. Order the respondent to pay the Nominal Defendant's costs of the appeal. 6. Order that the respondent, if otherwise qualified, have a certificate under the Suitors' Fund Act 1951. [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 - road accident cases - unidentified vehicle - action brought against Nominal Defendant - Motor Accidents Compensation Act 1999 s 34(1) - whether there was "due inquiry and search" - where injured pedestrian could reasonably be expected to obtain details of the vehicle at accident scene - CONTRIBUTORY NEGLIGENCE - whether finding that pedestrian struck by vehicle was not contributorily negligent should be set aside - apportionment of responsibility - ECONOMIC LOSS - whether finding that the plaintiff had suffered a loss of earning capacity was supported by evidence. Legislation Cited: Law Reform (Miscellaneous Provisions) Act 1965 Motor Accidents Compensation Act 1999 Civil Liability Act 2002 Motor Accidents Compensation Amendment (Claims and Dispute Resolution) Act 2007 Motor Vehicles (Third Party Insurance) Act 1942 Cases Cited: Blandford v Fox (1944) 45 SR (NSW) 241 Cavanagh v Nominal Defendant [1958] HCA 57; 100 CLR 375 Harrison v Nominal Defendant [1974] 1 NSWLR 146 Harrison v Nominal Defendant (1975) 7 ALR 680 Joslyn v Berryman [2003] HCA 34; 214 CLR 552 Kuru v New South Wales [2008] HCA 26; 236 CLR 1 Medlin v State Government Insurance Commission [1995] HCA 5; 182 CLR 1 Nominal Defendant v Smith (1998) 28 MVR 165 Nominal Defendant v Swift [2007] NSWCA 56 Oztan v NSW Ministerial Corporation (1995) 23 MVR 259 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALR 529 Slinn v Nominal Defendant [1964] HCA 72; 112 CLR 334 Category: Principal judgment Parties: The Nominal Defendant (Appellant) Wallace Edward Meakes (Respondent) Representation: K P Rewell SC, M A Cleary (Appellant) D A Wheelahan QC, H J Halligan (Respondent) Dibbs Barker Lawyers (Appellant) Carneys Lawyers (Respondent) File Number(s): 2009/338245 Decision under appeal Citation: Meakes v Nominal Defendant [2011] NSWDC 9 Date of Decision: 2011-03-15 00:00:00 Before: Levy DCJ File Number(s): 5219 of 2009