GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v FURNISS [1991] NSWCA 109

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v FURNISS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY and MEAGHER JJA 13 May 1991, 30 May 1991 [1991] NSWCA 109

DISTRICT COURT APPEAL — trial judge finds defendant in road accident claim negligent — finds plaintiff guilty of contributory negligence and 30% blameworthy — evidence relevant both to negligence and contributory negligence given by passenger in defendant's car — passenger an acquaintance of plaintiff passenger's evidence about accident favourable to plaintiff and inconsistent with defendant's evidence — evidence sought to be led in defendant's case to prove former statement by passenger relative to accident inconsistent with his evidence — objected to by plaintiff — rejected by trial judge — s54 Evidence Act not drawn to trial judge's attention — significant chance that evidence wrongly rejected — no alternative to new trial.

Samuels JA I agree with Priestley JA.

Priestley JA On 11 December 1989 Judge Gallen of the District Court sitting atWollongong gave judgment in the sum of $279,262.85 for the plaintiff, Mr Furniss, in proceedings he had taken against the defendant Government Insurance Office of New South Wales. The plaintiff had claimed damages for injuries he had suffered in an accident in which the motor cycle he was riding had collided with a car driven by Mr Eltahir. The accident had happened on Sunday 23 September 1984 shortly after midnight. Both liability and the quantum of the plaintiff's damages were contested before Judge Gallen. The defendant appealed to this court in regard to both issues.

The principal point relied on for the defendant in the appeal concerned the rejection of evidence by the trial judge. Before that point can be discussed, it is necessary to state summarily the way the trial judge decided the plaintiff had established Mr Eltahir's negligence.