Warren v Coombes [1979] HCA 9

High Court of Australia Gibbs A.C.J. Stephen, Jacobs, Murphy and Aickin JJ. Warren v Coombes [1979] HCA 9

ORDER Appeal allowed with costs. Order that the judgment of the Supreme Court of New South Wales (Court of Appeal) be set aside and that in lieu thereof it be ordered:

(1) that the appeal to that Court be allowed with costs; and

(2) that the judgment of Yeldham J. be set aside and that in lieu thereof judgment be entered for the plaintiff for $80,000 with costs.

Cur. adv. vult.

The following written judgments were delivered:—

1979, March 13 Gibbs A.C.J., Jacobs and Murphy JJ.

On the 6th March 1969 the appellant, a boy of almost thirteen years of age, was seriously injured when the bicycle which he was riding came into collision with a car driven by the first respondent and owned by the second respondent. The appellant brought an action in the Supreme Court of New South Wales to recover damages for his injuries which he alleged were due to the negligent driving of the first respondent. The trial judge (Yeldham J.) found that the appellant had not established negligence on the part of the first respondent, but, very properly, went on to make an assessment of damages in case an appellate court should take a different view. He assessed the appellant's damages at $160,000 but gave judgment for the respondents. On appeal to the Court of Appeal was dismissed by a majority (Hutley and Samuels JJ.A., Moffitt P. dissenting). The appellant now appeals to this Court by special leave.

At the trial there was a conflict of testimony between the witnesses called for the appellant and those called for the respondents. The action was not tried until March 1976 and it would have been surprising if the witnesses had come to court with a fresh recollection of the circumstances of a collision that had occurred seven years before. The learned trial judge did not accept the evidence given by the appellant and those of his witnesses who were present when the collision occurred, and it is therefore unnecessary to recount their version of events, which the learned trial judge rejected. Perhaps, for completeness, it should be said that the learned trial judge did rely on some parts of the evidence given by those witnesses as corroborating certain evidence in the respondents' case which he accepted. However, there was one important witness called for the appellant whose evidence the learned trial judge did accept. This was the appellant's father, who gave evidence as to the position of marks on the roadway which the learned trial judge found were made by the wheels of the car driven by the first respondent (to whom we shall henceforth, for convenience, refer simply as "the respondent"). For the defence, evidence was given by the respondent himself and by four persons who had been passengers in his car at the time of the collision. As to this evidence the learned trial judge said: "Notwithstanding some discrepancies between them and errors by some of them in their observations and in their estimates of distance, I have come to the conclusion that their versions of what occurred were given honestly and with some expceptions are basically accurate."