The Nominal Defendant v Armstead [2005] NSWCA 429

New South Wales Court of Appeal

CITATION: The Nominal Defendant v Armstead [2005] NSWCA 429

HEARING DATE(S): 25, 26 October 2005

JUDGMENT DATE: 5 December 2005

JUDGMENT OF: Handley JA at 1; Santow JA at 2; McColl JA at 148

DECISION: (1) Appeal disallowed, save that damages are reduced by $460.22. ; (2) Appellant to pay the respondent's costs of the appeal.

CATCHWORDS: NEGLIGENCE - LIABILITY - Respondent suffered injuries rendering him quadriplegic when thrown from his motor bike, striking his helmet against kerb – whether sufficient consideration given to evidence, both lay and expert, that there was in fact no other vehicle – whether respondent's multiple version evidence should be accepted - CONTRIBUTORY NEGLIGENCE - whether accident the result of excessive alcohol intake and/or excessive speed. - DAMAGES - - whether amount awarded for future paid care and computer needs excessive – relevance that would or might have acquired a computer even without injury suffered – relevance of need. - EVIDENCE – prior statements said to be self-serving and/or inconsistent – admissibility in evidence following s60 of Evidence Act.

Evidence Act s60 LEGISLATION CITED: Law Reform (Miscellaneous Provisions) Act 1965 s9(1)(b) Motor Accidents Compensation Act s138

Adams v The Queen (2001) 207 CLR 96 Campbell v Nangle (1985) 40 SASR 161 (FC) Chan v Mills (1995) 22 MVR 391 Cull v Judd [1980] WAR 161 GIO of NSW v Mackie (1990) Aust Torts Reps 81-053 CASES CITED: Marsland v Andjelic (1993) 31 NSWLR 162 Moriarty v McCarthy [1978] 2 All ER 213 Lopes v Taylor (1970) 44 ALJR 412 Pettersen v Bacha (1995) 21 MVR 71 Van Gervan v Fenton (1992) 175 CLR 327