THE NOMINAL DEFENDANT v ARIDA [1989] NSWCA 209

THE NOMINAL DEFENDANT v ARIDA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS (1) AP, MAHONEY (2) AND PRIESTLEY (3) JJA 23 August 1989, 23 August 1989

[1989] NSWCA 209

NEGLIGENCE — no question of principle. DAMAGES — quantum — no question of principle.

Samuels AP This is an appeal from a judgment delivered by Judge Denton in the District Court on Tuesday 22 September 1987. The facts are these. The plaintiff, the present respondent, was driving a motor vehicle in an easterly direction across a bridge over what is romantically called Duck River, but which is in fact in South Granville. The day of the accident was 26 February 1983. Mona Street, which lies either side of the bridge crossing, that is to the east and to the west, is, it seems, a four-lane highway which narrows in a waist, as it were, to two lanes when Mona Street comes to traverse the bridge.

The plaintiff's account of what happened was that, at 8 o'clock on that morning as he drove on his correct side of the road in a easterly direction across the bridge, a vehicle appeared directly in his path, heading towards him, and flashing its headlights. The plaintiff, in order to avoid the head-on collision which would otherwise have ensued, swerved up on to the footpath and collided with the bridge structure sustaining injuries of moderate severity. The vehicle which was said to have caused this accident did not stop; hence the proceedings which were brought against the Nominal Defendant.

The plaintiff himself said that he had no recollection of events at the scene following the accident, remembering next waking up in St Joseph's Hospital at Auburn. There is some conflict about this point because a witness, the principal prop of the appellant-defendant's case, Ms Cheeseman, deposed to having spoken to the plaintiff in his car at the scene and indeed made two statements, one contemporary and one later, to the same effect. Moreover, a police constable, Constable Conlon, who came to the scene, ultimately also said that he had spoken to the plaintiff. These conversations were not lengthy, but if believed they at least indicate that the plaintiff was not wholly unconscious, although there is medical evidence, that is the statement of the doctor who treated the plaintiff on admission, that he appears to have had retrograde amnesia for some minutes and post-grade amnesia for about thirty minutes.