INZAURRALDE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1992] NSWCA 115

INZAURRALDE v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, PRIESTLEY and CRIPPS JJA 8 October 1992, 28 October 1992 [1992] NSWCA 115

APPEAL from District Court — Verdict for defendant in damages claim. APPLICATION FOR LEAVE TO ADDUCE FURTHER EVIDENCE — Meaning of principle that further evidence be such as could not with reasonable diligence be obtained for the trial:

Commonwealth Bank of Australia v Quade (1991) 65 ALJR 674.

Mahoney JA On 12 January 1987 the plaintiff Renee Inzaurralde was, she claimed,injured in a motor vehicle accident. She brought proceedings against the defendant, the appropriate defendant in such proceedings, claiming damages for the injuries suffered by her. On 4 April 1991 her claim was tried before his Honour Judge Downs in the District Court. His Honour found a verdict for the defendant. He said:

"T have a strong suspicion that this claim is fraudulent but as my impression does not go beyond suspicion I do not propose to refer the papers to the Director of Public Prosecutions".

The plaintiff has appealed to this Court against his Honour's judgment.

In the context of the appeal, the plaintiff has moved this Court for leave to adduce further evidence upon the hearing of the appeal: see Supreme Court Act s75A(7) and subs(8) and Pt51 R13A.

The court has had the assistance of Mr McDermott for the plaintiff and Mr Mater for the defendant and it has heard argument both upon the motion and upon the appeal. It has reserved its decision in respect of both proceedings.

In order to understand the basis of the motion and the contentions made in respect of the appeal it is necessary to refer to the facts, to what happened at the trial, and to the terms of his Honour's judgment.

The plaintiff's claim was that on 12 January 1987 she was travelling as a passenger in the front seat of a vehicle driven by her husband. The vehicle was being driven on the Yerranderie Road, said to be approximately thirty miles from the town of Oberon. The vehicle was being driven towards the old mining town of Yerranderie. The plaintiff claimed that, as the vehicle followed a left hand turn in the road, it "turned, overturned", through an arc of about ninety degrees and came to a halt lying on its offside or driver's side. The plaintiff was "about to faint". There were two passengers in the back of the car, a Mr and Mrs Perdomo. Mr Perdomo, the plaintiff claimed, "jumped out of the door". He then assisted at the door of the vehicle where the plaintiff was and she jumped down from it. She said that as she came down from, as it was, the topside of the vehicle, her left lower leg came against the portion of the exhaust of the vehicle which ordinarily would be under the vehicle. This, she said, burned her leg.