ROBERTS v LALOGIANNIS [1989] NSWCA 178

ROBERTS v LALOGIANNIS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, MEAGHER JJA and Hope AJA

1 December 1989

[1989] NSWCA 178

COMMON LAW — PERSONAL INJURY — REVIEW OF FINDING OF FACT

Meagher JA This is an appeal of an action which was before Judge Lloyd-Jones, a judgment of 30 March 1988. The action involved a motor vehicle collision between the plaintiff's semi-trailer which was travelling on the Hume Highway in a northerly direction, and the defendant's vehicle, which was travelling on the Hume Highway in a southerly direction.

Although one would have thought in those circumstances it would have been clear to work out how the accident occurred, the evidence was in such a state it was extremely difficult to understand exactly what happened, neither party being able to given any evidence even as to where the point of impact was. It is not made any clearer by the fact that each party had an expert who gave different versions of the accident and, by his Honour's judgment, which contain at least one error when his Honour said that Mr Penny, the defendant's expert, looked at the scene of the accident on the day it occurred when in fact he did not obviously get to see it until four or five days later. Nor is it made clearer by the internal inconsistencies in the judgment. For example, on one page it is said the damage to the defendant's vehicle was at the front on the right driver's side and on the very next page says that the collision was at the rear of the Fairlane. Nor is it made any easier by the fact that the defendant in the original case, who is the present respondent, gave evidence as to a head-on collision where the photographic evidence of her motor vehicle seems to be entirely inconsistent with that.

Nonetheless the rival versions are: as far as the plaintiff is concerned, that the vehicle he was driving was on its correct side of the road when he saw the driver of the vehicle in front of him. He saw the defendant's vehicle behaving in a bizarre manner, moving from the correct side of the road to the incorrect side of the road. He braked heavily in order to avoid the vehicle. Unfortunately, he did not do so and then in getting out of control he veered on his incorrect side of the car and back again to his correct side.