THE NOMINAL DEFENDANT v WRIGHT [1990] NSWCA 139

THE NOMINAL DEFENDANT v WRIGHT SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and MEAGHER JJA 26 November 1990, 26 November 1990 [1990] NSWCA 139

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

Samuels JA This is an appeal from a judgment of Master Greenwood in which he found negligence against the appellant and assessed the respondent's damages in the sum of some $35,000.

The action being brought against the Nominal Defendant, it comes as no surprise to learn that the respondent's case was that he had been forced to swerve off the road by the appearance in front of him of a motor vehicle on its incorrect side of the road. In taking this avoiding action he had, he said, lost control of his car and it struck a telegraph pole, he sustaining the injuries which were the subject matter of the proceedings.

He was, according to the Master, an unsatisfactory witness, there being not inconsiderable discrepancies between the story he told in the witness box and the laconic account that we find in the police notebook. Furthermore, his sworn evidence was internally inconsistent and the account in the police notebook omitted, according at least to the submissions made by counsel for the appellant, one at least of the allegations which any reasonable person would have expected to have been included.

With all respect to the respondent, it does not exaggerate the Master's assessment of him as a witness to say that he was found to be shifty, unreliable, untruthful, implausible and, though this is by no means his fault, unfortunately of limited intelligence. The only relevance of the last element in this case is that it tended to make his evidence a little difficult to follow and required the tribunal of fact to discriminate carefully between clumsy attempts to deceive and the inability to convey clearly an honest account of what had happened. But in the end the Master said this: Whilst I am not, as I have indicated, satisfied with the nature of much of the plaintiffs evidence, I am satisfied that his basic contention that he took evasive action when he saw a vehicle travelling generally in his direction was a contention which I accept from him as the truth. I do not accept his embellishments on that story."