HERBERT v WATERS [1997] NSWCA 147

HERBERT v WATERS SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MEAGHER JA, HANDLEY JA and BEAZLEY JA

18 November, 4 December 1997

[1997] NSWCA 147

MOTOR ACCIDENTS ACT — contributory negligence — no question of principle

The defendant appealed from a verdict in a motor vehicle case. The collision occurred on a bend in a dirt road. The appellant, aged 17 and licensed, was driving a Ford Falcon. The respondent, aged 14 and unlicensed, was riding a motorcycle. The collision occurred on the defendant's side of the road. The trial Judge found for the plaintiff and held that there was no contributory negligence. The respondent sought to lead further evidence about the effect of his injuries on his job prospects.

HELD: (1) The finding that the defendant was negligent could not be disturbed. He was travelling at a dangerous speed and did not keep a proper lookout. (2) The plaintiff was guilty of contributory negligence. The motorcycle cut the corner and was travelling on the wrong side of the road. The plaintiff was travelling at an excessive speed and had not slowed down when he became aware that a car was approaching. Responsibility should be apportioned 40% to the plaintiff and 60% to the defendant. (3) The additional evidence should not be admitted as it concerned the area of uncertainty as to the plaintiff's future in which the trial Judge had made an estimation in assessing damages. Doherty v Liverpool Hospital (1991) 22 NSWLR 284 applied. (4) The Judge's assessment of the plaintiff's damages should not be disturbed.

Meagher JA. I agree with Handley JA.

Handley JA. This is an appeal by the defendant from the judgment of Sidis DCJ in a motor vehicle case. The accident occurred at about 5.30 pm on 1 February 1993 on Norman Henry Drive, an unsealed bush road on a mountain overlooking the city of Lithgow. It was daylight, the weather was fine, and the road was dry. Photographs in evidence revealed a reasonably well-formed road, with vegetation growing to the edge. Senior Constable Lintott measured the road and found that it was 4 metres wide. It is evident from the photographs which showed tyre tracks in the centre of the road, on either side of the crown, that this is where the traffic was concentrated. Visibility in some sections was obscured by bends in the road and vegetation.