Gable v Carlyle [2001] NSWCA 134

New South Wales Court of Appeal

CITATION : Gable v Carlyle [2001] NSWCA 134 FILE NUMBER(S) : CA 40835/99 HEARING DATE(S) : 03/05/01 JUDGMENT DATE : 18 May 2001

PARTIES : Peter Robert Gable v Terrence Carlyle JUDGMENT OF : Meagher JA at 1; Hodgson JA at 2; Ipp AJA at 8

LOWER COURT JURISDICTION : District Court LOWER COURT 3201/97 FILE NUMBER(S) : LOWER COURT Johnson ADCJ JUDICIAL OFFICER :

COUNSEL : F McAlary QC/N Abadee (Appellant) P Webb QC/B Smith (Respondent) SOLICITORS : G H Healey & Co (Appellant) Sparke Helmore (Respondent) CATCHWORDS : NEGLIGENCE - Motorcycle accident - Contributory negligence - Apportionment of damage - DAMAGES - Measure of damages - Future economic loss - lost earning capacity - NEGLIGENCE - Damages - Causation - whether injury caused by collision or by later incident - COSTS - Indemnity costs - whether should be ordered - weight to be given to Calderbank offer - INTEREST - Claim under Motor Accidents Act 1988 - whether award of interest available - s 73. ND LEGISLATION CITED : Motor Accidents Act 1988 Suitors Fund Act 1951 DECISION : (1) Appeal dismissed; (2) Cross-appeal upheld only on the interest point; (3) Judgment sum reduced accordingly to $136.437.21; (4) Appellant to pay costs of appeal; (5) No order as to costs in cross-appeal.

THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40835/00 DC 3201/97 MEAGHER JA HODGSON JA IPP AJA

Friday 18 May 2001 PETER ROBERT GABLE v TERRENCE CARLYLE

Facts: The appellant was injured in a motorcycle accident when he was hit by the respondent whilst both motorcycles were travelling in the breakdown lane of a freeway. The appellant suffered back, chest and knee injuries and was finally awarded $148,083.60 after a reduction of 40% for contributory negligence. Of these damages an amount of $68,816.00 was for loss of future earning capacity. The appellant appealed these findings on contributory negligence and the calculation of loss of future earning capacity. The respondent also cross-appealed in relation to the findings that the appellant's back injury was sustained in the collision and not at another time, and against the orders made in relation to interest and costs. HELD Contributory Negligence (i) Per Ipp AJA, Meagher JA and Hodgson JA agreeing. It was submitted in regard to contributory negligence that, the trial judge erred by finding that the appellant's acts in moving into the breakdown lane were proof of negligence, and that the appellant had failed to keep a proper lookout, and finally that the trial judge did not examine all the relevant circumstances when assessing the apportionment of damages. The finding that the appellant moved into the breakdown lane was unsatisfactory and this led to the inference that the appellant also failed to keep a proper look out. The trial judge considered all the relevant circumstances, and whilst the apportionment for contributory negligence was relatively high, it was within the appropriate range. No error was disclosed.