The Nominal Defendant v Lane [2004] NSWCA 405

New South Wales Court of Appeal

CITATION : The Nominal Defendant v Lane [2004] NSWCA 405 HEARING DATE(S) : 6 October 2004 JUDGMENT DATE : 17 November 2004

JUDGMENT OF : Giles JA at 1; Ipp JA at 95; Tobias JA at 96 DECISION : (1) Appeal allowed in part; (2) Cross-appeal dismissed; (3) Set aside the judgment for $2,688,382, and in lieu thereof judgment for such substituted amount calculated in accordance with these reasons as the parties notify the Registrar within seven days, taking effect on 30 January 2004; (4) Liberty to apply in the event of disagreement over the substituted judgment amount; (5) Appellant pay 90 per cent of the respondent's costs of the appeal and cross-appeal.

CATCHWORDS : Motor vehicle accident - unregistered vehicle - claim against Nominal Defendant - LIABILITY - claim if vehicle was capable of being registered after "repairs of minor defects" - identification of defects - whether minor defects - whether error in applying substantially economic test of ease and cost of repair of defects - no error - CONTRIBUTORY NEGLIGENCE - plaintiff and driver both drunk - whether judge paid regard to plaintiff's subjective appreciation of driver's condition - found plaintiff knew or ought to have known of driver's condition - no error - DAMAGES - plaintiff brain damaged - probable that plaintiff would have worked as nursing assistant - whether error in allowing a sum for possibility that plaintiff would have become enrolled nurse - consideration of s 126 of Motor Accidents Compensation Act - whether permissible to allow for possibility that future circumstances would be better than most likely future circumstances - can make such an allowance - result correct although requirements of s 126 not dealt with - RESPITE CARE - gratuitous care for ten years then professional care - whether error in allowance for respite care for period of care by professional carers - error made - allowance made for respite care for period of gratuitous care. D Applin v The Nominal Defendant [2004] NSWCA 217; Hodgson v Crane (2002) 55 NSWLR 199; Joslyn v Berryman (2003) 214 CLR 552; CASES CITED : K Mart Australia Ltd v McCann [2004] NSWCA 283; MacArthur Districts Motor Cycle Sportsmen Inc v Ardizzone [2004] NSWCA 145; Malec v J C Hutton Pty Ltd (1990) 169 CLR 638; Norris v Blake (No 2) (1997) 41 NSWLR 49; Penrith City Council v Parks [2004] NSWCA 201. PARTIES : The Nominal Defendant - Appellant Farren Lane - Respondent FILE NUMBER(S) : CA 40132/04 COUNSEL : D J Russell SC & W Chipchase - Appellant P Semmler QC, P Mahoney SC & G Young - Respondent SOLICITORS : Sparke Helmore, Newcastle - Appellant Stacks/Goodkamp