SADLER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v WALLIN [1991] NSWCA 240

SADLER v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v WALLIN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, SAMUELS and CLARKE JJA 14 May 1991, 14 May 1991 [1991] NSWCA 240

NEGLIGENCE — motor vehicle collision — head on — which motorist to believe — trial judge's decision upheld.

EVIDENCE — view — use of photographs — criticism of use of rejected.

NEGLIGENCE — motor vehicle — collision — head on — trial judge (Denton DCJ) prefers evidence of one motorist — decides on liability accordingly — held: (Samuels JA; Kirby P and Clarke JA concurring): (1) The appellant had not shown that the trial judge's decision was wrong; (2) The judge's decision was supported by objective evidence; (3) In any case, the decision rested on the preference of the trial judge for the version of the other driver and could not be disturbed as, far from being undermined by incontrovertible facts, objective evidence supported the conclusion which the trial judge had reached. Abalos v Australian Postal Commission (1990) 65 ALJR 11, 16 applied.

EVIDENCE — view — use of by trial judge — used to understand evidence and photographs tendered in evidence — held: Within present authorities on the use of views the trial judge had not misused his impressions on an inspection of the accident site. ORDERS 1. Appeal in CA 309 88 dismissed with costs; and 2. Appeal in CA 626 88 dismissed with costs.

Samuels JA These are two appeals from two actions heard together by Judge Denton on 12 and 13 May 1988, in which Mr Sadler and Mr Wallin each sued the Government Insurance Office for damages for injuries sustained in a motor vehicle accident which occurred as long ago as 1 January 1986, and which each attributed to the fault of the other.

Mr Sadler has appeared before us today in person and has put his account of the accident to us. We have also been assisted by written submissions which were prepared by his barrister before he left the case.