THE NOMINAL DEFENDANT v MARTIN [1997] NSWCA 227

THE NOMINAL DEFENDANT v MARTIN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, HANDLEY JA and SHEPPARD AJA 1,, 26 September 1997

[1997] NSWCA 227

Motor Vehicles — contributory negligence — effect of alcohol — funds management — past and future care

The respondent was crossing a busy road, near an intersection, when he was hit by a motorised tricycle. The respondent was measured with a blood alcohol reading of 0.206gms/100ml. The Nominal Defendant was sued because the tricycle was exempt from registration.

The evidence at trial consisted of a number of eyewitnesses whose evidence conflicted in every material respect. The principal eyewitness accepted at trial was a government bus driver, Mrs Camatsos. The trial judge's reliance on her evidence meant that the appellant failed to establish contributory negligence.

Held: Appeal allowed in part:

1. Contributory Negligence - The trial judge misunderstood Mrs Camatsos' evidence in two respects. First, the driver of the trike, Mr Hanna, did not necessarily enter the intersection against a red light. It follows that the respondent may not have left the footpath in reliance upon no one coming through a red light. Second, the respondent would have had sufficient time to take reasonable care for his own safety and avoid impact. Accordingly, damages should be reduced by one-third on the basis of contributory negligence.

2. Past and Future Care - The allowance of 3 hours per day was within the permissible range.

3. Funds Management - The allowance for funds management was made consequent upon the injury suffered (which is recoverable) and was not based on the need to manage a large verdict (which is not recoverable).

Nominal Defendant v Gardikiotis (1996) 186 CLR 49 followed.

4. Future Medical Expenses - There was adequate evidence to support the trial judge's finding that ten shunt revision operations would be needed over the respondent's life.