WAYNE CONROY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1991] NSWCA 62

WAYNE CONROY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER and HANDLEY JJA 4 November 1991, 13 November 1991

[1991] NSWCA 62

MOTOR VEHICLE ACCIDENT — appeal by unsuccessful plaintiff injured in accident — appeal almost entirely on factual matters — no question of principle decided — no basis for interference by appellate court.

Priestley JA The accident, the claim, its dismissal. In the late afternoon of Easter Saturday, 29 March 1986, a Toyota utility owned by Mr W. Conroy, the appellant, was being driven from Lightning Ridge in northern New South Wales, on the road to Hebel in Southern Queensland. There was an accident and Mr Conroy was injured. His two principal injuries were to his right arm and his right temple. In the words of one of the specialist surgeons who treated him, the injury to his arm was "a severe degloving injury of his right upper limb involving the upper arm and the right forearm in the proximal half and the right upper arm in the distal one third. The wound was extensively ingrained road dirt and what looked like manure and there was much muscle tissue damage'. This injury permanently weakened the arm. The ability of the appellant, who was a roof tiler, to earn his living in his occupation was seriously affected by the reduced strength and capacity of his right arm.

The appellant brought proceedings in the Common Law Division of the Supreme Court against the Government Insurance Office of New South Wales (the GIO) in which he alleged that he had been a passenger in the utility at the time of the accident, that it was being driven by Mr P. Le Guier when the accident happened and that the accident and the injury to the appellant were caused by Mr Le Guier's negligent driving. In the defence it first filed, the GIO formally put all the paragraphs in the appellant's statement of claim in issue; on 5 October 1989, when the appellant's claim came on for hearing before Master McLaughlin, the GIO was given leave to file an amended statement of defence in which it asserted that the appellant was not a passenger in the utility as alleged. At the trial, the GIO contended that the appellant himself had been the driver of the utility at the time of the accident.