Nominal Defendant v Dowedeit [2016] NSWCA 332

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nominal Defendant v Dowedeit [2016] NSWCA 332 Hearing dates: 20 May 2016 Decision date: 01 December 2016 Before: Meagher JA at [1] Gleeson JA at [2] Simpson JA at [139] Decision: 1. Appeal dismissed. 2. Cross-appeal dismissed. 3. Appellant pay 90% of the respondent's costs in this Court. Catchwords: TORTS – negligence – Motor Accidents Compensation Act 1999 (NSW) Pt 1.2 Div 1 – blameless accident – where successful claim for damages against Nominal Defendant in lower court – whether respondent hit by motor vehicle or fell from balcony – where primary judge found collision with motor vehicle most likely cause of respondent's injuries – where respondent found lying on footpath with serious injuries – challenge to factual finding of respondent's rest position on footpath – whether inconsistent with witness and expert evidence – where competing witness evidence and police photographs of site of accident – challenge to factual finding of respondent's belief he was hit by a car – where respondent gave contemporaneous account to police and hospital staff of going out to corner shop – credibility of respondent – whether primary judge erred in finding expert evidence of little assistance – consistency of expert evidence with nature of respondent's injuries and other evidence

TORTS - negligence - contributory negligence – Motor Accidents Compensation Act 1999 (NSW) s 138 – whether primary judge erred in finding contributory negligence by respondent and assessing reduction in damages at 50% – where finding that respondent's failure to look caused accident – where relatively quiet street – where little otherwise known of circumstances of accident – whether assessment manifestly inadequate or excessive Legislation Cited: Civil Liability Act 2002 (NSW) ss 3B, 5B, 5R, 5S Law Reform (Miscellaneous Provisions) Act 1965 (NSW) s 9 Motor Accidents Compensation Act 1999 (NSW) Pt 1.2, Div 1, ss 138, 7A, 7C Supreme Court Act 1970 (NSW) s 75A Uniform Civil Procedure Rules 2005 (NSW), r 42.1 Cases Cited: Axiak v Ingram (2012) 82 NSWLR 36; [2012] NSWCA 311 Davis v Swift (2014] 69 MVR 375; [2014] NSWCA 458 Fox v Percy (2003) 214 CLR 118; [2003] HCA 22 Gordon v Truong (2014) 66 MVR 241; [2014] NSWCA 97 Podrebersek v Australian Iron & Steel Pty Ltd [1985] 59 ALJR 492; [1985] HCA 34 Nominal Defendant v Green (2013) 64 MVR 354 [2013] NSWCA 219 Dowedeit v Nominal Defendant [2015] NSWDC 182 Category: Principal judgment Parties: Nominal Defendant (Appellant) Ronald Dowedeit (Respondent) Representation: Counsel: Mr JB Turnbull SC with Ms S Warren (Appellant) Mr PJ Doherty SC with Mr D Morgan (Respondent)