KEATES v NELSON [1992] NSWCA 122

KEATES v NELSON SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and Cripps JJA 16 April 1992

[1992] NSWCA 122

INTEREST — calculation of — damages for personal injuries calculation at commercial rates — defendant suggests reduction for delay by plaintiff in prosecuting appeal — trial judge (Allen J) refuses reduction of interest on the basis of delay by reference to the fact that the defendant was insured by the GIO, an institutional insurer which had put out its funds at commercial rates of investment — held: (Kirby P, Mahoney and Cripps JJA concurring): The considerations were legally irrelevant; the discretionary exercise had to that extent miscarried; the discretion should therefore be re-exercised by the Court of Appeal by reference to the statements of the law made since the trial in MBP (SA) Pty Ltd v Gogic (1990) 171 CLR 657; Metropolitan Meat Industry Board v Williams (1991) 24 NSWLR 54 (CA).

DAMAGES — allowance for special boots — evidence exists to sustain trial judge's decision.

Kirby P Before the Court is an appeal against the judgment for damages entered by Allen J sitting alone. Mr Mark Nelson (the respondent) sued Mr Adrian Keates (the appellant) in respect of the latter's alleged negligence in driving a motor vehicle on 12 February 1982.

Motor vehicle collision: Issues in the appeal

On that day, the respondent was proceeding on his motorcycle. At about 4.30 pm the appellant's vehicle appeared to cross the centre line and came straight at the respondent. A collision ensued, the full details of which it is unnecessary to record. The respondent was injured. There was a sharp dispute at the trial about the circumstances of the collision. The appellant denied negligence and alleged contributory negligence. Each of these contests was resolved by the trial Judge in favour of the respondent.