Nominal Defendant v Stephens [2011] NSWCA 312

Nominal Defendant v Stephens [2011] NSWCA 312

The primary judge's findings were open on the evidence: the respondent was standing on or just west of the fog line, the B-trailer swung out and struck her, and the driver either failed to keep a proper lookout or reacted too late despite a sufficient sighting distance to allow effective evasive action. The reasons, read as a whole and as an ex tempore judgment, adequately explained the liability finding. The 55 per cent apportionment for contributory negligence reflected the respondent's intoxication and conduct but was not shown to be affected by appellable error.

Jurisdiction
Australia
Judgment Date
19 October 2011
Procedural Posture
Motor Accident Negligence Appeal / Appeal From District Court of New South Wales
Outcome
Appeal dismissed with costs.
Legal Topics
['unidentified Vehicle' 'nominal Defendant Liability' 'adequacy of Reasons' 'evasive Action by Truck Driver' 'apportionment of Contributory Negligence']
['torts' 'negligence' 'contributory Negligence' 'motor Accidents'] ['unidentified Vehicle' 'nominal Defendant Liability' 'adequacy of Reasons' 'evasive Action by Truck Driver' 'apportionment of Contributory Negligence']

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Procedural Posture

Motor Accident Negligence Appeal / Appeal From District Court of New South Wales

Legal Issues

  1. 1 ['Whether the primary judge erred in finding that the driver of the unidentified truck breached a duty of care to the respondent.' "Whether the primary judge failed to deal with or give reasons against the appellant's hypothesis that the respondent moved into the B-trailer." 'Whether the primary judge failed to specify what evasive action the driver could or should have taken to avoid the collision.' 'Whether the primary judge gave adequate reasons for the liability finding.' "Whether the primary judge's assessment of contributory negligence at 55 per cent should be overturned."]

Ratio Decidendi

The primary judge's findings were open on the evidence: the respondent was standing on or just west of the fog line, the B-trailer swung out and struck her, and the driver either failed to keep a proper lookout or reacted too late despite a sufficient sighting distance to allow effective evasive action. The reasons, read as a whole and as an ex tempore judgment, adequately explained the liability finding. The 55 per cent apportionment for contributory negligence reflected the respondent's intoxication and conduct but was not shown to be affected by appellable error.

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']