GARDINER v WHEARE [1993] NSWCA 105

GARDINER v WHEARE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and SHELLER JA 10 November 1993

[1993] NSWCA 105

The respondent when aged eleven was struck by a motor vehicle owned by the first appellant and driven by the second appellant. At trial the second appellant was found negligent, and the respondent contributorily negligent to a degree of 10 percent. The respondent sustained serious injuries and had difficulty in obtaining employment. He was awarded $316,175 for impairment of future earning capacity.

The appellants appealed on the grounds that the award for future economic loss was excessive and the percentage reduction for contributory negligence should have been greater.

Held: No ground was shown for interfering with the verdict which involved no error in principle or in findings of fact.

Sheller JA. On 24 August 1978 at about 8.30 pm a motor vehicle driven by the second appellant, Stanley Mervyn Flanagan, and owned by the first appellant, Ralph Gardiner, while travelling east on Allenby Avenue, Forest Hill struck the respondent, Duane William Wheare, while he was crossing the roadway from south to north. At the time the respondent was eleven years old. He suffered injuries and sued the appellants to recover damages for negligence. The accident occurred at a point approximately 250 metres east of the intersection of Allenby Avenue and Smith Street.

The proceedings came on for hearing before Wood J at Wagga Wagga on 26 June 1991. His Honour found negligence on the part of the second appellant involving a failure by him to keep a proper lookout ahead or respond properly when he saw a movement in front of him. His Honour also found a degree of contributory negligence but, as his Honour said, not a very great degree of negligence, on the part of the respondent.