Nominal Defendant v Hawkins [2011] NSWCA 93

Nominal Defendant v Hawkins [2011] NSWCA 93

The appeal failed because it was open to infer that the driver deliberately drove close to Mr Hawkins, adjusted speed, used the horn and accelerated away in order to facilitate an object being thrown at him as part of a course of harassment. That conduct constituted fault in the use or operation of the vehicle, and the throwing of the object was part of and incidental to the harassing driving, so the injury was caused by that fault and was a result of the driving within s 3 of the Motor Accidents Compensation Act 1999. The costs cross-appeal failed because, although the Court may not have exercised the discretion as the primary judge did, the refusal of indemnity costs disclosed no error...

Jurisdiction
Australia
Judgment Date
15 April 2011
Procedural Posture
Motor Accident Damages Appeal and Costs Cross Appeal / Appeal From District Court Judgment and Application for Leave to Cross Appeal
Outcome
Appeal dismissed with costs; application for leave to cross-appeal dismissed with costs limited to costs incremental to the costs of the appeal.
Legal Topics
['meaning of Injury Under the Motor Accidents Compensation Act 1999' 'fault of Unidentified Driver in Use or Operation of a Motor Vehicle' 'causation' 'nominal Defendant Liability' 'offer of Compromise' 'indemnity Costs']
['tort' 'motor Accidents' 'civil Procedure' 'costs'] ['meaning of Injury Under the Motor Accidents Compensation Act 1999' 'fault of Unidentified Driver in Use or Operation of a Motor Vehicle' 'causation' 'nominal Defendant Liability' 'offer of Compromise' 'indemnity Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Motor Accident Damages Appeal and Costs Cross Appeal / Appeal From District Court Judgment and Application for Leave to Cross Appeal

Legal Issues

  1. 1 ["Whether the primary judge's factual inferences about the driver's conduct and knowledge were open on the evidence." "Whether Mr Hawkins' injuries were caused by the fault of the driver in the use or operation of the vehicle and were a result of the driving of the vehicle within s 3 of the Motor Accidents Compensation Act 1999." 'Whether the primary judge erred by refusing indemnity costs after Mr Hawkins obtained a judgment no less favourable than his offer of compromise.']

Ratio Decidendi

The appeal failed because it was open to infer that the driver deliberately drove close to Mr Hawkins, adjusted speed, used the horn and accelerated away in order to facilitate an object being thrown at him as part of a course of harassment. That conduct constituted fault in the use or operation of the vehicle, and the throwing of the object was part of and incidental to the harassing driving, so the injury was caused by that fault and was a result of the driving within s 3 of the Motor Accidents Compensation Act 1999. The costs cross-appeal failed because, although the Court may not have exercised the discretion as the primary judge did, the refusal of indemnity costs disclosed no error...

Court Disposition

Appeal dismissed with costs; application for leave to cross-appeal dismissed with costs limited to costs incremental to the costs of the appeal.

Orders

  • ['Appeal dismissed with costs.' 'Application for leave to cross-appeal dismissed with costs, such costs being limited to costs incremental to the costs of the appeal.']