Nominal Defendant v Bogic [2000] NSWCA 164

Nominal Defendant v Bogic [2000] NSWCA 164

The appellant's challenges to the factual and legal findings on liability were rejected due to overwhelming evidence against the account of the driver and absence of contributory negligence by the deceased. While the nervous shock damages amount was reduced due to misapplication of the statutory provision, the remaining criticisms regarding calculation and reliance on the accountant's report were not sufficiently established to warrant interference or a retrial, especially as objections were not properly raised at trial. The Court accepted that proper apportionment of damages under the Compensation to Relatives Act should be made and ordered accordingly.

Parties
Appellant: The Nominal Defendant; Respondent: Kathy Bogic
Jurisdiction
Australia
Judgment Date
10 July 2000
Procedural Posture
Appeal / Appellate Judgment
Outcome
Appeal allowed in part
Legal Topics
Liability of Driver, Contributory Negligence, Assessment of Damages, Apportionment Under Compensation to Relatives Act, Nervous Shock Damages
Negligence Motor Vehicle Accidents Compensation Law Liability of Driver Contributory Negligence Assessment of Damages Apportionment Under Compensation to Relatives Act Nervous Shock Damages

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Parties

The Nominal Defendant

Appellant

Kathy Bogic

Respondent

Procedural Posture

Appeal / Appellate Judgment

Legal Issues

  1. 1 Whether the driver of the vehicle was liable for the accident that caused the death of the deceased
  2. 2 Whether there was contributory negligence by the deceased
  3. 3 Whether damages awarded were excessive or miscalculated

Ratio Decidendi

The appellant's challenges to the factual and legal findings on liability were rejected due to overwhelming evidence against the account of the driver and absence of contributory negligence by the deceased. While the nervous shock damages amount was reduced due to misapplication of the statutory provision, the remaining criticisms regarding calculation and reliance on the accountant's report were not sufficiently established to warrant interference or a retrial, especially as objections were not properly raised at trial. The Court accepted that proper apportionment of damages under the Compensation to Relatives Act should be made and ordered accordingly.

Court Disposition

Appeal allowed in part

Orders

  • Respondent's damages for nervous shock reduced from $233,999 to $191,905
  • Judgment under Compensation to Relatives Act varied to apportion 41.8857% to the respondent, remainder between three children in proportions 82/314, 97/314, and 135/314