HERBERT v WATERS [1997] NSWCA 147

HERBERT v WATERS [1997] NSWCA 147

The defendant was negligent for travelling at a dangerous speed and failing to keep a proper lookout, while the plaintiff was guilty of contributory negligence by cutting a corner and not slowing down when aware of the car. Responsibility was apportioned 40% to the plaintiff and 60% to the defendant. Additional evidence was not admitted, and the trial Judge's assessment of damages was affirmed after adjustment for contributory negligence.

Parties
Defendant: Herbert; Plaintiff: Waters
Jurisdiction
Australia
Judgment Date
04 December 1997
Procedural Posture
Motor Vehicle Accident / Appeal
Outcome
appeal allowed; cross-appeal dismissed
Legal Topics
Negligence, Contributory Negligence, Damages, Fresh Evidence on Appeal
Tort Negligence Contributory Negligence Damages Fresh Evidence on Appeal

Case Brief

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Parties

Herbert

Defendant

Waters

Plaintiff

Procedural Posture

Motor Vehicle Accident / Appeal

Legal Issues

  1. 1 Was the defendant negligent in the motor vehicle accident?
  2. 2 Was the plaintiff guilty of contributory negligence?
  3. 3 Should additional evidence regarding the plaintiff's injuries and job prospects be admitted on appeal?

Ratio Decidendi

The defendant was negligent for travelling at a dangerous speed and failing to keep a proper lookout, while the plaintiff was guilty of contributory negligence by cutting a corner and not slowing down when aware of the car. Responsibility was apportioned 40% to the plaintiff and 60% to the defendant. Additional evidence was not admitted, and the trial Judge's assessment of damages was affirmed after adjustment for contributory negligence.

Court Disposition

appeal allowed; cross-appeal dismissed

Orders

  • Appeal allowed with costs.
  • Cross-appeal dismissed with costs.