Maric v The Nominal Defendant [2012] NSWDC 69

District Court New South Wales

Medium Neutral Citation: Maric v The Nominal Defendant [2012] NSWDC 69 Hearing dates: 30/04/12-03/05/12, 07/05/12-09/05/12 Decision date: 16 May 2012 Jurisdiction: Civil Before: Elkaim SC DCJ Decision: Verdict for the defendant. Verdict for the cross-defendant on the cross-claim Catchwords: Uninsured vehicle, location of accident, contributory negligence. Legislation Cited: Civil Liability Act 2002 Motor Accidents Compensation Act 1999 Cases Cited: Allianz Australia Insurance Ltd v Kerr [2012] NSWCA 13 Australian Securities and Investments Commission (ASIC) v Hellicar [2012] HCA 17 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Mason v Demasi [2009] NSWCA 227 Rabay v Bristow [2005] NSWCA 199 Ryan v Nominal Defendant (2005) 62 NSWLR 192 Category: Principal judgment Parties: Stefan Maric (Plaintiff) The Nominal Defendant (Defendant) Geoffrey William Morrissey (Cross Defendant) Representation: H Marshall SC and N Ghabar (Plaintiff) AJJ Renshaw, GJ Stanton and B Adam (Defendant) In Person (Cross Defendant) NSW Compensation Lawyers (Plaintiff) Hunt & Hunt (Defendant) In Person (Cross Defendant) File Number(s): 2009/00338297 Publication restriction: No

Judgment 1On 6 April 2007 the plaintiff was injured while riding his motorcycle. He says his injuries were caused by the negligence of a Mr Geoffrey Morrissey who was riding a separate motorcycle. Because Mr Morrissey's motorcycle was uninsured the plaintiff has sued the Nominal Defendant under Section 33 of the Motor Accidents Compensation Act 1999 (the "MACA"). The Nominal Defendant has in turn cross-claimed against Mr Morrissey, relying on Section 39 of the same Act. 2The plaintiff seeks damages under the following heads: non-economic loss, past and future economic loss, past and future medical expenses, past gratuitous care and future commercial care. 3The defendant conceded that the plaintiff was injured in an accident involving a motorcycle but denied virtually every other aspect of the plaintiff's claim. The denial extended to the location of the accident. This was said to be the Old Western Road at Rydal, near Lithgow. Ultimately the defendant accepted this road was a public road but continued to deny that the accident had occurred on this road. 4In an Amended Defence filed on 3 April 2012 the defendant relied upon Section 5L of the Civil Liability Act 2002 (the "CLA") to defeat the whole of the plaintiff's claim. When it became apparent, almost at the end of the hearing, that Section 5L could not be relied upon in a MACA action, this defence was abandoned. 5During final submissions I allowed the defendant to file a Further Amended Defence on 9 May 2012. In this pleading further allegations of contributory negligence were added. I thought the new particulars reflected the issues between the parties and had been well ventilated through the hearing. 6Despite this conclusion I gave leave to the plaintiff to re-open his case if he wished to call any further evidence to meet the allegations. No further evidence was called by the plaintiff and submissions continued. Learned senior counsel for the plaintiff said "We're ready to meet it" (T 390.21). My decision to allow the filing of the Further Amended Defence is the subject of a separate judgment, which I delivered on 9 May 2012. 7The cross-defendant, Mr Morrissey, was self-represented. Although given the opportunity he took almost no part in the proceedings. He was, however, called as a witness by the plaintiff. After giving evidence he asked to be excused. He was informed of the day when addresses would commence and invited to address the court. He declined the invitation and did not return to court.