Dowedeit v Nominal Defendant [2015] NSWDC 182 – Man awarded $174,550.00 in “blameless accident”

PUBLISHED 30 Dec 2016

Dowedeit v Nominal Defendant [2015] NSWDC 182 was a litigated matter which concerned a man who was found on the side of the road after sustaining serious injuries as a result of being hit by an unknown motor vehicle.

The primary issue in this matter was the cause of the Plaintiff’s injuries. Mr Dowedeit had returned home after a long day at work and was enjoying a couple glasses of wine when he walked outside his apartment block. After a short period of being outside, the Plaintiff says he was ”hit” by a motor vehicle and “recalls lying on the ground”.

Police investigation failed to provide any solid evidence or proof that Mr Dowedeit had not been hit by a motor vehicle, as there were no witnesses to the accident, nor was there any CCTV footage available.

Each party in these proceedings put expert engineering evidence on to support the possibility that either the Plaintiff was in fact hit my a motor vehicle passing by, or the possibility that the Plaintiff may have sustained his injuries by falling from the broad ledge.

Both experts took the following factors into consideration: assumptions of the type of vehicle, the speed of the vehicle, the positioning of the vehicle, the direction of movement of the vehicle, the position of the plaintiff and his possible movements. 

After taking into consideration the expert reports and oral evidence provided by each expert at hearing, the Court was of the view that the Court “is in a good position to determine the likely cause of injury as the engineering experts”. His Honour found that the causation conclusions provided by both experts “to be of little assistance in determining the cause of Mr Dowedeit’s injuries”.

The Court did find that there was substantial medical evidence to show that the injuries sustained on the night of the accident were consistent with the possibility that the Plaintiff was in fact hit by a motor vehicle.

His honour found that pursuant to Section 7B and 7C of the Motor Accident Compensation Act 1999, the Plaintiff was entitled to recover damages for the injuries sustained as the requirements in these sections were satisfied.

“Section 7B of the Motor Accidents Compensation Act 1999 deems that the injury to Mr Dowedeit is caused by the fault of the owner or driver of the motor vehicle if the accident was a blameless motor accident. It was common ground that if I found that the injuries were caused by a motor vehicle and that there was no negligence, then the incident was a blameless motor accident.”

“Additionally, s 7C of the Motor Accidents Compensation Act 1999 presumes the motor accident to be blameless if that is alleged, and there is no evidence to the contrary. Both these requirements were satisfied in the present case.”

These proceedings found that the Plaintiff did leave his apartment and was hit by a motor vehicle and left on the footpath where he was found.  His Honour explained that an amount of $349,100.00 should be awarded to the Plaintiff, with the amount being reduced by 50% for contributory negligence as the Plaintiff ”departed from the standard of care he is required to observe in the interests of his own safety by failing to keep a proper lookout for vehicles when he proceeded to enter the roadway”, leaving the Plaintiff with $174,550.00.

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