Huebner v The Nominal Defendant [2015] NSWCA 333

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Huebner v The Nominal Defendant [2015] NSWCA 333 Hearing dates: 9 October 2015 Date of orders: 28 October 2015 Decision date: 28 October 2015 Before: Hoeben JA at [1]; Sackville AJA at [83]; Emmett AJA at [89] Decision: 1 Grant to the appellant an extension of time to 2 April 2015 within which to bring the appeal.

2 The appeal is dismissed.

3 The appellant is to pay the respondent's costs of the appeal. Catchwords: TORTS – claim against Nominal Defendant – collision between motor scooter and two motor vehicles, one of which could not be identified – no issue that an unidentified vehicle involved in the accident – factual issue as to how accident occurred – unsuccessful challenge to factual findings of primary judge.

TORTS – Civil Liability Act 2002 (NSW) – s 5D – factual causation – whether conduct of unidentified vehicle caused or contributed to occurrence of accident – whether findings of primary judge allowed a finding of causation to be made against Nominal Defendant.

DAMAGES – Notional damages awarded in favour of appellant – apart from omission of past out of pocket expenses no error in assessment of damages by primary judge. Legislation Cited: Civil Liability Act 2002 (NSW) – s 5D Cases Cited: Fox v Percy [2003] HCA 22; 214 CLR 118 Holloway v McFeeters [1956] HCA 25; 94 CLR 470 Nominal Defendant v Puglisi (1984) 58 ALJR 474 Strong v Woolworths Ltd & Anor [2012] HCA 5; 246 CLR 182 Category: Principal judgment Parties: Nicole-Brook Huebner – Appellant The Nominal Defendant – Respondent Representation: Counsel: AS Morrison SC with AD Campbell – Appellant KP Rewell SC with WM Fitzsimmons – Respondent