WALKER v SNELSON [1998] NSWCA 252

WALKER v SNELSON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and SHELLER JJA 11 February 1998, 11 February 1998

[1998] NSWCA 252

CONTRIBUTORY NEGLIGENCE - review of trial Judge's findings of fact - Held: test in Devries & Anor v Australian National Railways Commission & Anor (1992-3) 177 CLR 472 applied DAMAGES - measure of personal injuries - prior symptoms - loss of future earning capacity - Held: trial Judge's award of damages upheld

Sheller JA At about 9pm on 15 March 1993 a vehicle driven by the appellant, Debra Ann Walker, collided with the rear of a vehicle driven by the respondent, Linda Faye Snelson, in Kogarah Road, Dubbo. The respondent sued the appellant, claiming damages for injuries she said that she suffered as a result of this collision.

At the time of the collision the respondent was unmarried and had four children, one born in 1982, one in 1983, one in 1987 and one in 1988. The proceedings were heard by his Honour Judge Moore. Liability was admitted but the appellant pleaded contributory negligence.

On 19 October 1995 Judge Moore entered a verdict and judgment for the respondent in the amount of $42,200, consisting of $32,000 for non economic loss and $10,000 for loss of earning capacity. His Honour rejected the defence of contributory negligence. The appellant's grounds of appeal as presented to the Court relate to his Honour's failure to find contributory negligence and the assessment of damages, both in respect of non economic and economic loss.

Immediately before the accident the respondent was driving the third of four cars approaching a level crossing which intersected Kogarah Street approximately from south to north. The four cars were moving in an easterly direction. A stationary or near stationary train was about fifty metres along the line to the right of the four cars. The driver of the first car, car one, a Mercedes Benz, drove on to the railway line and then reversed into the car behind it, car two. The respondent, who was driving the third car in the line, gave evidence that as she was approaching the railway line, there seemed to be two vehicles in front of her and a train on her right-hand side. There was a collision in front of her. She could see two cars: