WATERSON v BATTEN [1988] NSWCA 169

WATERSON v BATTEN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy P, MAHONEY and CLARKE JJA 4 February 1988, 13 May 1988

[1988] NSWCA 169

JUDGES — duty to give reasons — scope of that duty — degree of elaboration of conflicts of fact required — motor vehicle accident — which driver was on incorrect side of road — appellant claims that reasons for judgment defective in (a) accepting the necessity of a finding of police dishonesty for a verdict for the plaintiff; (b) in omitting to resolve important conflicts of testimony; and (c) in failing to reconcile alleged inconsistencies within the judgment — held (Mahoney and Clarke JJA; Kirby P dissenting) (1) reasons given are sufficiently elaborate and satisfactory; (2) appeal dismissed with costs. Brittingham v Williams [1932] VLR 237, 239; Housing Commission of New South Wales v Tatmar Pastoral Co Pty Limited & Anor [1983] 3 NSWLR 378. Selvanayagam v University of the West Indies [1983] 1 WLR 585 (PC); Pettitt v Dunkley [1971] 1 NSWLR 376; Public Service Board of New South Wales v Osmond (1986) 60 ALJR 209, and Chambers v Jobling (1986-7) 7 NSWLR 1 considered and applied. Sun Insurance Limited v Massoud, unreported, 9

December 1987; [1987] VJB 152 referred to. Supreme Court Act 1970, s75A.

ORDERS (By majority) Appeal dismissed with costs.

Kirby P (dissenting) The decision in this appeal is determined by two considerations. Each of them rests upon legal principles which are not in doubt or dispute. But when it comes to giving content to those principles, there is, inescapably, room for differences of opinion. Such differences arise, in part, from the varying circumstances of each particular case. In part, they arise from the inescapably personal reaction by appellate judges to the risks that an injustice has occurred, warranting a retrial.