R v Zamagias

[2002] NSWCA 17

CITATION:	Nominal Defendant v Byrne [2002] NSWCA 17
FILE NUMBER(S):	CA 40160 of 2001
HEARING DATE(S):	04/02/02
JUDGMENT DATE:	14 February 2002
PARTIES :	The Nominal Defendant and Timothy Slattery v Nora Mary Byrne
JUDGMENT OF:	Meagher JA at 1; Stein JA at 9

LOWER COURT JURISDICTION :	District Court
LOWER COURT FILE NUMBER(S) :	DC 70240 of 1998
LOWER COURT JUDICIAL OFFICER :	English DCJ

COUNSEL:	A: Mr P Webb QC with Mr Royle R: Mr Fennell
SOLICITORS:	A: Stewart Cuddy & Mockler R: Aubrey Brown Partners
CATCHWORDS:	Motor Vehicle Accident - whether trial judge failed to consider defendant's evidence - appeal dismissed.
LEGISLATION CITED:	Motor Accidents Act 1988
DECISION:	Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40160 of 2001
DC 70240 of 1998

MEAGHER JA
STEIN JA

Thursday, 14 February 2002

THE NOMINAL DEFENDANT & ANOR v NORA MARY BYRNE

THE FACTS

The respondent successfully sued The Nominal Defendant and the Second Defendant at trial and was awarded $711 794.40 damages for injuries suffered by her in a motor vehicle accident. The ground of appeal contended for was that the trial judge not only failed to take cognisance of the defendant’s evidence, but positively denied it existed, by stating that there was no medical evidence for the defendant except that of Dr T.

HELD per Meagher JA (Stein JA agreeing):

(i) The trial judge could not be expected to discuss at length every medical report tendered.

(ii) The trial judge did not deny the existence of medical evidence on behalf of the defendants emanating from persons other than Dr T.

(iii) A typographical mistake should not adversely affect the trial judge’s reasoning.

ORDERS

1 Appeal dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40160 of 2001
DC 70240 of 1998

MEAGHER JA
STEIN JA

Thursday, 14 February 2002

THE NOMINAL DEFENDANT & ANOR v NORA MARY BYRNE

Judgment

1 MEAGHER JA: Miss Byrne sued for injuries suffered by her in a motor vehicle accident which occurred at 6.50pm on 12 April 1997 on the F3 Freeway near the Ku-ring-gai Chase Road (said to be in or near Sydney). She sued two defendants: one, pursuant to s28 of the Motor Accidents Act 1988, was the Nominal Defendant, because a vehicle whose identity is unknown let fall a “lounge suite” immediately on the road in front of her, thus impeding her further progress in the lane of traffic in which she was travelling; and the other was a Mr Slattery who was driving his vehicle close – too close, as it happened – behind her. English DCJ found that both defendants were negligent and that Miss Byrne was not guilty of contributory negligence. She awarded Miss Byrne a verdict in the sum of $711,794.40. Her doctors were of the view that her back and neck injuries were of considerably gravity; the defendants’ doctors of the view that they were of only moderate gravity.

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