Cordin v The Nominal Defendant [2016] NSWDC 12

District Court New South Wales

Medium Neutral Citation: Cordin v The Nominal Defendant [2016] NSWDC 12 Hearing dates: 27 October, 3, 4, 5, 6 November, 2015, 29 January 2016 Date of orders: 26 February 2016 Decision date: 26 February 2016 Jurisdiction: Civil Before: Judge Levy SC Decision: 1. Verdict for the plaintiff on the issue of liability without discount for alleged contributory negligence;

2. Judgment for the plaintiff in the agreed sum of $350,000;

3. The defendant is to pay the plaintiff's costs of the proceedings on the ordinary basis until 10 July 2015, and on an indemnity basis from 11 July 2015;

4. The exhibits may be returned;

5. Liberty to apply on 7 days notice if further or other orders are required. Catchwords: TORTS – negligence – motor vehicles – determination of contested facts – whether plaintiff fell from his bicycle due to a collision from behind with an alleged unidentified motor vehicle or whether he simply fell from his bicycle – whether plaintiff has established negligence on the part of the driver of an unidentified motor vehicle – whether the defendant has established contributory negligence on the part of the plaintiff – evaluation of conflicting expert accident reconstruction evidence – whether expert opinions supported by found facts; PRACTICE & PROCEDURE – application by defendant to call additional expert evidence – exercise of discretion according to the dictates of justice – whether leave should be granted to enable defendant to call additional evidence from its crash reconstruction expert where a report sought to be relied upon from that expert was prepared in draft form during the trial and had not been served 28 days prior to the hearing as required by UCPR r 31.28 – whether defendant was entitled to leave to call oral evidence in chief from its crash reconstruction expert where that expert was not required for cross-examination on content of his already served reports – application of UCPR r 31.21 Legislation Cited: Civil Liability Act 2002, s 5B, s 5C, s 5D, s 5E, s 5R Civil Procedure Act 2005, s 56, s 57, s 58 Motor Accidents Compensation Act 1999 Uniform Civil Procedure Rules 2005, r 31.20, r 31.21, r 31.24 - r 31.26, r 31.28, r 31.35 Cases Cited: Adelaide Stevedoring Co Ltd v Forst [1940] HCA 45; (1940) 64 CLR 538 Aon Risk Services Australia Limited v Australian National University [2009] HCA 27 Blacktown City Council v Hocking [2008] NSWCA 144 Dasreef Pty Ltd v Hawchar [2011] HCA 21; (2011) 243 CLR 588 Elayoubi v Zipser [2008] NSWCA 335 Kelly v Jowett [2009] NSWCA Luxton v Vines [1952] HCA 19; (1952) 85 CLR 352 Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705 Manley v Alexander [2005] HCA 79; 223 ALR 228 Mason v Demasi [2009] NSWCA 227 McLennan v Nominal Defendant [2014] NSWCA 332 Nowlan v Marson Transport Pty Ltd [2001] NSWCA 346 Phoenix Commercial Enterprises Pty Ltd v City of Canada Bay Council [2010] NSWCA 64 Richards v Cornford (No 3) [2010] NSWCA 134 Sgro v Australian Associated Motor Insurers Ltd [2015] NSWCA 262 Strinic v Singh [2009] NSWCA 15 Texts Cited: International Classification of Diseases, Version 10.R4(1.2) Category: Principal judgment Parties: Michael Timothy Cordin (Plaintiff) The Nominal Defendant (Defendant) Representation: Counsel: Mr P Doherty SC with Mr G Radburn (Plaintiff) Mr J Poulos QC with Mr J Ryan (Defendant)