McLennan v The Nominal Defendant

McLennan v The Nominal Defendant - [2010] NSWDC 28 - NSWDC 2009 case summary — Zoe

Parties

Applicant/Plaintiff:

McLennan

Respondent/Defendant:

The Nominal Defendant

Cases Cited (13)

CITATION: McLennan v The Nominal Defendant [2010] NSWDC 28

Angel v Hawkesbury City Council [2008] NSWCA 130 Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320 Donoghue v St Luke's Hospital Ltd [1969] 2 NSWR 647 Flounders v Millar [2007] NSWCA 238 Harrison v Nominal Defendant (1975) ALR 680 Luxton v Vines [1952] HCA 19 CASES CITED: Malco Engineering Pty Ltd v Ferreira [1994] NSWCCA 117 Mason v Demasi [2009] NSWCA 227 Nominal Defendant v Smith (1998) 28 MVR 165 Nominal Defendant v Swift [2007] NSWCA 56 Oztan v Nominal Defendant (1995) 23 MVR 259 Sretenovic v Reed [2009] NSWCA 280 Strinic v Singh [2009] NSWCA 15

On my analysis of the evidence, I consider that it would be wrong to approach the matter simply by determining that because the plaintiff should not be believed on some aspects of his claim, his entire evidence should be assessed through the prism of suspicion as being tainted by credit findings, as was argued by the defendant, such that the plaintiff's case should be rejected entirely. The submissions made by the defendant makes no acknowledgment of the fact that it is open for me to either accept or reject parts of the plaintiff's evidence as dictated by the results of analysis of the evidence : Malco Engineering Pty Ltd v Ferreira [1994] NSWCCA 117 per Handley JA at 118.

No evidence was called on the diagnostic significance of the EEG findings or of the significance of the tension vascular picture. This is a matter on which speculation is not permitted : Strinic v Singh [2009] NSWCA 15; Sretenovic v Reed [2009] NSWCA 280. The follow-up report was not tendered by either of the parties although there is evidence in the report of Ms Barbuto that a later report from Dr Rail was in the possession of the defendant.

Associate Professor Spira commented that there was an association between the plaintiff's weight gain, hypertension and diabetes and the taking of the prescribed medication Nardil because of certain food interactions. Associate Professor Spira raised the suggestion that the plaintiff's account of not being warned about eating cheese and other foods whilst taking Nardil was hard for him to accept because Professor Lance had instituted the therapy. By implication, he doubted that Professor Lance would not have given the required dietary advice in this regard. In my view there is a procedural and fairness issue that precludes the drawing of such an inference in the circumstances : Mason v Demasi [2009] NSWCA 227 and Container Terminals Australia Ltd v Huseyin [2008] NSWCA 320.

In my view, had the driver of the vehicle steered a prudent course away from the plaintiff, which would have been a reasonable thing to do given the close proximity of the plaintiff to the rear of parked cars, a collision would most probable have been avoided. In that sense, I consider the plaintiff has discharged the onus of establishing that his injuries were caused by the negligence of the driver of the unidentified vehicle : Flounders v Millar [2007] NSWCA 238.

This decision has been considered and applied on numerous occasions including Nominal Defendant v Swift [2007] NSWCA 56 which dealt with a similar provision for due inquiry and search in s 28(1) of the Motor Accidents Act 1988. In my view the approach taken to due inquiry and search in those cases applies to a consideration of whether there has been due inquiry and search within the meaning of s 34(1) of the Motor Accidents Compensation Act 1999, which is a requirement the plaintiff must fulfil in this case.

Whilst the process of inference can in some cases be employed to guard against injustice where to award nothing for such services would be unfair to the injured person, in the context of the policy behind the legislative framework in which this case has to be assessed, that framework requires that the plaintiff has to discharge the onus of proof for an award of damages of this kind. Without specific evidence on the issue to enable an assessment, it is not for the court to engage in unwarranted speculation as to whether or not the statutory threshold required by s 128 of the Act has been met : Luxton v Vines [1952] HCA 19 at [8]; (1952) 85 CLR 352 at p 358.

(1998) 28 MVR 165

(1995) 23 MVR 259

(1952) 85 CLR 352

[2008] NSWCA 320

[2009] NSWCA 280

Cited By (2)

Buggy v The Nominal Defendant

Nominal Defendant v McLennan

At a glance

Court

Decision date

Before

Source

Judgment (42 paragraphs)

Parties

Cases Cited (13)

Cited By (2)