Written by Peter CarterUpdated on July 21, 2020
A lawyer struck by a minivan as he stepped off the kerb outside terminal two at Sydney’s Kingsford Smith airport in May 2008 has successfully withstood an appeal against a court ruling in his favour that awarded $328k damages for a broken foot and other injuries.
American-born legal academic and author Dr Ysaiah Ross, was walking into the terminal to meet an arriving colleague when the incident happened. The van driver immediately alighted from the vehicle to assist his victim. Dr Ross replied in the affirmative to the immediate enquiry of “Are you okay?” The driver took some tissues from inside the bus to mop up blood from his wounds. The encounter lasted just 60 – 90 seconds during which he was “bleeding, groggy and confused”.
The driver then “scurried” off without Ross asking for or noting his details or registration.
He did not at first, think he had been seriously injured but later discovered the fracture to his right foot and decided on legal action.
The claim was defended by the regulatory body that is the “insurer” for unidentified vehicles under the states compulsory third party insurance scheme, the Nominal Defendant. It alleged he was in breach of his duty to conduct due to enquiry and search not only on the terminal apron, for failing to take down the van’s registration, but for also not promptly “seeking out possible CCTV footage.”
As it happened, the airport only keeps CCTV footage for 28 days and by the time the Nominal Defendant had been notified of the claim and attempted to retrieve it, the video had been destroyed. The appeal court agreed that Dr Ross’ was excused in respect of his “due enquiry and search” obligation at the terminal because the driver immediately drove off. And in relation to the CCTV footage, he was not expected to know that it would be discarded so soon and could not be held to blame for not making that request earlier.
The District Court verdict for $328k was on the basis of 20% contributory negligence for his part in the bang-up. On appeal, his fault contribution was increased from 20% to 35% resulting in damages being reduced to $267k.
The Nominal Defendant v Ross  NSWCA 212 Beazley P, Meagher JA and Hoeben JA, 03/07/2014 – view decision