CLEUR v COLE [1995] NSWCA 78

CLEUR v COLE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and SHELLER JJA 16 November 1994, 3 April 1995

[1995] NSWCA 78 NEGLIGENCE — DAMAGES — NO QUESTION OF PRINCIPLE

The defendant appealed from a judgment in a running down case, challenging the findings of negligence, the degree of contributory negligence, and the award of damages. The trial judge had found that although the appellant's injuries affected his ability to gain other employment his resignation from work had been the result of his own misconduct - therefore damages for economic loss had been awarded on a conservative basis HELD: (1) The finding of negligence could not be disturbed. (2) The apportionment for contributory negligence could not be disturbed. Pennington v Norris (1956) 96 CLR 10 applied. (3) There was no ground for challenging the general damages. (4) The awards for past and future economic loss were not outside the range of what was appropriate, Medlin v SGIO (High Court not yet reported) applied.

Mahoney JA On 25 February 1981 the plaintiff was knocked down by the defendant's car when he was crossing Dunmore Road, Wentworthville at about 9-9.30 pm. He was significantly injured. He sued the defendant for damages.

On 22 February 1991 his Honour Judge Barbour gave judgment for the plaintiff in the sum of $88,582.58.

The defendant has appealed to this Court against his Honour's judgment.

Mr Russell, who appeared for the defendant on the appeal, made six submissions, which he described as "three weak and three which are arguable".

He submitted that his Honour's finding against the plaintiff's credibility should be set aside. He referred to what the plaintiff had said about the course of the accident and other matters. It is sufficient to conclude, as I do, that there is in the evidence nothing, within the principles referred to Voulis v Kozary 180 CLR 177; Abalos v Australian Postal Commission (1990) 171 CLR 167, which would warrant this Court coming to a different conclusion.