The Nominal Defendant v Ross [2014] NSWCA 212

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: The Nominal Defendant v Ross [2014] NSWCA 212 Hearing dates: 11.04.2014 Decision date: 03 July 2014 Before: Beazley P at [1] Meagher JA at [2] Hoeben JA at [10] Decision: (1) The appeal is allowed in part. (2) Other than the orders for costs, the judgment entered by Judge Levy SC in favour of the respondent against the appellant in the sum of $328,540 is set aside and in lieu thereof, judgment is entered in favour of the respondent in the sum of $266,939. (3) The parties are to file agreed Short Minutes of Order as to the costs of the appeal within 7 days. In default of agreement, the parties are to file and serve proposed orders and short submissions not exceeding 3 pages and any evidence upon which they wish to rely within 21 days. [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 - claim by pedestrian against Nominal Defendant - pedestrian injured by minibus at airport which departed shortly after the accident - whether driver of minibus was negligent - whether fact finding of trial judge glaringly improbable - failure by driver to keep a proper lookout - contributory negligence - failure by pedestrian to keep a proper lookout - apportionment of liability more heavily weighted against driver - whether due inquiry and search established - particular circumstances of accident - meaning of "due" inquiry and search - failure to access to CCTV film within 28 days - appeal allowed in part. Legislation Cited: Motor Accidents Compensation Act 1999 - s34(1) Cases Cited: Cavanagh v Nominal Defendant [1959] HCA 57; 100 CLR 375 Fox v Percy [2003] HCA 22; 214 CLR 118 Gordon v Truong; Truong v Gordon [2014] NSWCA 97 Harrison v The Nominal Defendant [1976] 50 ALJR 330 Hawthorne v Hillcoat [2008] NSWCA 340 Nominal Defendant v Browne [2013] NSWCA 197 Nominal Defendant v Meakes [2012] NSWCA 66; 60 MVR 380 Oztan v NSW Ministerial Corporation [1995] 23 MVR 259 Pennington v Norris [1956] HCA 26; 96 CLR 10 Podrebersek v Australian Iron & Steel Pty Ltd [1985] HCA 34; 59 ALJR 529 Ross v Nominal Defendant [2013] NSWDC 110 Warth v Lafsky [2014] NSWCA 94 Category: Principal judgment Parties: The Nominal Defendant - Appellant Ysaiah Ross - Respondent Representation: Counsel: Mr K Rewell SC/Mr W Fitzsimmons - Appellant Mr R Sheldon SC/ Ms E Welsh - Respondent Solicitors: McCourts Solicitors - Appellant Brydens Law Office LP - Respondent File Number(s): 2013/248126 Decision under appeal Citation: [2013] NSWDC 110 Date of Decision: 2013-07-19 00:00:00 Before: Levy SC DCJ File Number(s): 2011/157874