HEALEY v GRAHAM [1991] NSWCA 147

HEALEY v GRAHAM SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SAMUELS, PRIESTLEY JJA and Hope AJA 24 April 1991, 24 April 1991 [1991] NSWCA 147

APPEAL FROM DISTRICT COURT — plaintiff injured upon fall from defendant's car — conflicting accounts of how fall occurred plaintiff's account not fully accepted — judgment for defendant — no basis for appellate court to change trial judge's findings -on those findings appeal must fail — appeal dismissed with costs.

Priestley JA This appeal arises from an incident that happened on 22 December 1979. On that day the plaintiff found himself in a situation where his wife and daughter were going away from his home in company with his wife's brother and father and the wife of his brother-in-law. The five persons I have just mentioned got into a panel van driven by his wife's brother, the defendant.

Prior to the panel van moving off on that day, as well as the emotion stirred up by the fact that the plaintiff's wife and daughter were leaving him, there had been additional stresses on the plaintiff in that there had been a scuffle described by some of the witnesses as a fight which did not last very long between him and the defendant and possibly also the defendant's father.

Precisely what happened next was the subject of evidence when in the District Court the plaintiff took proceedings proceedings against the driver of the panel van as defendant for negligence, claiming damages for injuries he suffered as a result of the panel van having driven off. Notwithstanding that a number of eye witnesses gave evidence of what happened, the evidence was not particularly clear about some matters which were essential for the plaintiff to prove if he was to establish negligence against the defendant.

The following things however are clear. Shortly before the panel van began to move away from in front of the plaintiff's home he had been speaking to his wife seated in the front passenger side of the panel van, trying to persuade her not to leave and not to take the child with her. The panel van moved off and travelled what, on the evidence, was estimated to be 100 to 120 metres before it stopped. It was going towards a dead end in order to turn around and then leave the area. When it came to a stop the plaintiff fell from some part of it and suffered injury.