GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KEMPTON [1990] NSWCA 73

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v KEMPTON

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY JA, CLARKE and HANDLEY JJ 7 August 1990, 7 August 1990 [1990] NSWCA 73

Appeal from Common Law Division — Plaintiff injured in motor vehicle accident — Sole issue: was the plaintiff or some other person the driver of the motor vehicle? — Trial judge accepted plaintiff's account — Acceptance based on matters of demeanour and assessment of the witnesses — Not proper case for interference with judge's findings — No issue of principle.

ORDER Appeal dismissed with costs.

Mahoney JA On 10 November 1984 the plaintiff was injured in a motor vehicle accident. On 18 September 1987 Foster J gave judgment for the plaintiff for $220,000 upon the basis that the plaintiff was injured as a result of the negligence of a driver for which the defendant, the Government Insurance Office of New South Wales, was liable. The defendant has appealed to this Court against his Honour's judgment.

The only issue which has been argued in the appeal is whether the plaintiff was, at the time of the accident, the driver of the motor vehicle. The grounds of appeal which were set forth in the notice of appeal and which were foreshadowed in a supplementary notice of appeal which was filed with the Court but not formally incorporated, have been reduced only to that issue. The cross-appeal which had been raised has not been pursued.

The evidence in the proceeding is, in outline, short but it has, of course, some little complication. The evidence was detailed by the learned judge in his judgment as follows:

"The evidence establishes clearly that at about quarter past eleven in the evening of that day the plaintiff was travelling in a station sedan which had been driven in a westerly direction along Red Range Road, Glen Innes, in the direction of that town. The vehicle quite clearly left the road in a bend at high speed, collided with a telegraph pole with sufficient force to snap it off, then continued on a not inconsiderable distance, whilst rolling over on at least two occasions. It finally came to rest on its driver's side close to an embankment of the road.