Thoroughgood v Emmerton [1999] NSWCA 394

New South Wales Court of Appeal CITATION : Thoroughgood v Emmerton [1999] NSWCA 394 FILE NUMBER(S) : CA 40219/99 HEARING DATE(S) : 10 September 1999 JUDGMENT DATE : 25 October 1999

PARTIES : Vicki Thoroughgood v Betty Emmerton JUDGMENT OF : Priestley JA at 1; Stein JA at 17; Davies AJA at 18

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : DC 6280/97 LOWER COURT JUDICIAL OFFICER : Her Honour Judge Murrell

COUNSEL : Appellant - Mr P. Semmler QC Respondent - Mr L.M. Morris QC, Ms C.E. Adamson SOLICITORS : Appellant - Marsdens Respondent - Abbott Tout CATCHWORDS : Amendment of defence - discretion CASES CITED: Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 House v The King (1936) 55 CLR 499 DECISION : Appeal dismissed with costs,

THE SUPREME COURT

OF NEW SOUTH WALES

COURT OF APPEAL

CA 40219/99 DC 6280/97

PRIESTLEY JA STEIN JA DAVIES AJA

Monday, 25 October 1999

THOROUGHGOOD v EMMERTON

AMENDMENT OF DEFENCE - DISCRETION - Motor car accident in 1991 - in 1994 injured driver seeks damages for negligence from other driver - in December 1994 defendant admits breach of duty but not damage - in November 1998 defendant seeks leave to amend to deny liability on ground of inevitable accident - leave granted - plaintiff obtains leave to appeal - on appeal, grounds of judge's exercise of discretion examined - estoppel and waiver not relied on by appellant/plaintiff. HELD: appellant/plaintiff failed to show error of relevant kind by trial judge in her exercise of discretion: House v The King (1936) 55 CLR 499 applied. ORDERS Appeal dismissed with costs.