Turney v Galloway [2000] NSWCA 265

New South Wales Court of Appeal

CITATION : Turney v Galloway [2000] NSWCA 265 FILE NUMBER(S) : CA 40958/99 HEARING DATE(S) : 21/09/00 JUDGMENT DATE : 26 September 2000

PARTIES : Norman Kevin Turney (Appellant) Graham John Galloway (Respondent) JUDGMENT OF : Powell JA at 1; Fitzgerald JA at 2; O'Keefe AJA at 40

LOWER COURT JURISDICTION : District Court LOWER COURT 413/97 FILE NUMBER(S) : LOWER COURT Goldring DCJ JUDICIAL OFFICER :

COUNSEL : D L Ronzani (Appellant) S Hill (Respondent) SOLICITORS : Pricewaterhouse Coopers Legal (Appellant) Leo & Morrison (Respondent) CATCHWORDS : Negligence - motor vehicle accident - whether the trial judge erred in not allowing an adjournment application to plead contributory negligence - damages - ND LEGISLATION CITED : Motor Accidents Act 1988 DECISION : Appeal dismissed with costs. The amount of the respondent's damages reduced to correct the trial judge's arithmetical error from $301,606.17 to $299, 928.47.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40958/99 DC 413/97 POWELL JA FITZGERALD JA O'KEEFE AJA

TUESDAY 26 SEPTEMBER 2000

TURNEY v GALLOWAY

JUDGMENT

1 POWELL JA: I agree with Fitzgerald JA. 2 FITZGERALD JA: At about 5.00pm on Wednesday, 11 October 1995, a collision occurred between a motor cycle ridden by the respondent and a truck driven by the appellant at the intersection of the Princess Highway and Tongarra Road, Albion Park Rail. The respondent was injured. On 27 November 1997, he sued the appellant for damages for negligence. In a defence delivered in or about January 1998, the appellant admitted that he had breached his duty of care to the respondent "but save as herein admitted denies that he was negligent …". The appellant also alleged that the respondent was guilty of contributory negligence. 3 The trial commenced at Wollongong on 15 April 1999. The appellant, who was then represented by Senior Counsel, withdrew the allegation of contributory negligence and admitted liability. The action was then adjourned for the determination of the respondent's damages. In due course, it was re-listed for hearing on 11 November 1999. 4 On 5 November 1999, the appellant filed a notice of motion for an order vacating the hearing date or, in the alternative, an order that his evidence be heard at a later date because of his medical condition. The appellant also proposed to call evidence from a police officer. Although the police officer had been identified in the accident report, the appellant's solicitor had not ascertained what evidence he could give until shortly before the notice of motion was filed. When the matter came on for hearing, it emerged that the appellant had changed counsel and his new counsel was unaware that liability was not in issue. An application was then made by the appellant to reinstate his earlier allegation that the respondent had been contributorily negligent. If that course had been permitted, it would have been necessary to adjourn the trial. 5 The trial judge refused to allow the appellant's application and proceeded to hear the matter and determine the respondent's damages on 11 and 12 November 1999. His Honour gave judgment for the respondent against the appellant for $301,606.17 and made orders with respect to costs. 6 The appellant has appealed, seeking orders that the appeal be allowed and that the proceeding be admitted to the District Court for a re-hearing on contributory negligence and damages. 7 The first three grounds of appeal allege error by the trial judge in refusing to allow the appellant to contest the issue of liability and adjourn the trial for that purpose. Senior counsel then appearing for the appellant had, more than 6 months earlier, indicated that the respondent's claim was contested on the issue of damages only. The application for a further adjournment was first raised less than a week before the date fixed for the assessment of the respondent's damages and approximately two years after the action had been commenced. In the circumstances, the respondent was entitled to have a judgment for his damages without further delay. There is nothing which would justify this Court in interfering with the trial judge's discretionary decision. 8 The appellant's other grounds of appeal relate to the damages awarded by the trial judge to the respondent.