GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BOWER [1991] NSWCA 107

GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES v BOWER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, PRIESTLEY and HANDLEY JJA 22 March 1991 and 10 April 1991, 3 July 1991 [1991] NSWCA 107

APPEAL — review of fact finding — findings based, in part, on credibility and impression of witnesses — whether Court of Appeal authorised to set aside judgment — whether findings inconsistent with uncontroverted or incontrovertible facts held: (1) Errors of fact finding were disclosed in certain findings; (2) (per Kirby P) Other findings did not support the conclusions stated or were irreconcilable and unreconciled in the reasons given; (3) (per Handley JA, Priestley JA concurring) The errors showed that the trial judge failed to appreciate that contributory negligence was a live issue; (4) The Court of Appeal was therefore authorised to conclude that an error had occurred warranting the setting aside of the judgment entered; (4) But the Court of Appeal was unable to determine the matter for itself; (5) Accordingly, the matter should be returned for retrial limited to the issues of negligence and contributory negligence, those two issues being irreparably related.

Warren v Coombes (1979) 142 CLR 531;

Brunskill v Sovereign Marine and General Insurance Co Limited (1985) 59

ALJR 842; 62 ALR 53;

Jones v Hyde(1989) 63 ALJR 349;

Abalos v Australian Postal Commission (1990) 65 ALJR 11 and

Chambers v Jobling (1986) 7 NSWLR | applied.;

Winter and Anor v Boynton and Anor, Court of Appeal (England) unreported,

The Times, 6 February 1991 referred to.

MOTOR VEHICLES - negligence - collision at intersection controlled by traffic lights

- whether motor vehicle or motorbike ignored red light - conflict of evidence - proper approach by appellate court to review of fact finding by trial judge - inadequacy and incompleteness of reasoning at first instance - inconsistency of finding demonstrated held: The Court of Appeal was authorised to set aside the judgment at first instance and to require that the matter be retried and should do so. Mifsud v Campbell, Court of Appeal, unreported, 12 February 1991; (1991) NSWJB 29 applied.