NOMINAL DEFENDANT v McPHILLAMY [1998] NSWCA 161

NOMINAL DEFENDANT v McPHILLAMY

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and SHELLER JJA 16 February 1998, 16 February 1998

[1998] NSWCA 161

CONTRIBUTORY NEGLIGENCE — argued trial Judge erred in not finding contributory negligence — Held: Appellant did not satisfy onus — facts provided no inference, on balance of probabilities of contributory negligence — appeal dismissed

Sheller JA At 5.45 pm on a Sunday afternoon on 4 November 1990, the plaintiff, Michael Gerard McPhillamy, was riding a motor cycle in a westerly direction on the Tarana/Locksley Road, in the Bathurst area, when he collided with a Honda Odyssey motor vehicle driven in an easterly direction by Stephen Haynes. Neither vehicle was registered or insured. Stephen Haynes was uninjured. Mr McPhillamy suffered severe injuries which eventually resulted in the loss of his leg.

Mr McPhillamy commenced proceedings against Stephen Haynes, Robert Warry, who was the owner of the Odyssey vehicle and the Nominal Defendant, pursuant to s27 of the Motor Accidents Act. Simpson J heard the proceedings at Bathurst on 3 June 1997 and awarded the plaintiff $795,625 by way of damages. The Nominal Defendant has appealed.

Her Honour described the road on which the accident occurred as a poorly maintained, narrow country road sealed with bitumen in the centre with gravel shoulders. She said it was not wide enough for two vehicles to pass without at least one moving on to the gravel shoulder. No centre line was marked. The road travelled through undulating country with a number of crests and curves. No eye witness gave evidence of the accident. The plaintiff suffered from retrograde amnesia. Stephen Haynes was not called to give evidence.

Although liability was hotly contested at the trial, as I understand the submissions of Mr Morris QC who appeared for the appellant, that is not an issue on the appeal.