LINACRE v STEPHENSON [1995] NSWCA 260

LINACRE v STEPHENSON

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

SHELLER JA 4 September 1995

[1995] NSWCA 260

Sheller JA. This is an application by the appellant that the judgment of his Honour Judge Moore delivered on | August 1995 in the District Court at Mudgee be stayed pending the determination of the appeal herein. The application is supported by two affidavits by Christine Denise Lazzarotto of 23 August 1995 and of 1 September 1995.

From this material it is apparent that the respondent claimed to have suffered whiplash injury to the neck and a shoulder injury in a motor vehicle accident which took place in 1992, she being the passenger in a car owned by the appellant/claimant. No claim was made for economic loss, nor were there out of pocket expenses. Some material has been put before me about the respondent who is a housewife and mother who cares for four children and is said not to be engaged in any form of paid employment. She lives with her four children and her de facto husband on a property at Cooks Gap, the property is owned by a third person.

The claimant relies upon two matters. Firstly it is said that any amount properly recoverable by the respondent in this case would have been less than the threshold figure under the Motor Accidents Act 1988. Second, that there was a defence based on contributory negligence and that his Honour erred in rejecting that defence.

I have not seen his Honour's reasons. However, as far as I can see from the material placed before me, the matter was entirely one of fact and I am informed by the respondent's counsel that questions of credit were involved. The trial judge determined these matters in favour of the respondent. The verdict is in an amount of $21,460. I am not satisfied on the material before me that this is one appropriate for the grant of a stay. Accordingly, I refuse the application with costs.