McCOLL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1992] NSWCA 148

McCOLL v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, MAHONEY and MEAGHER JJA 11 August 1992, 11 August 1992 [1992] NSWCA 148

APPEAL — District Court trial — female passenger on motor cycle injured in collision — sues statutory insurer — gives evidence that cycle driven by T; owned by A — trial judge (Johnston DCJ) disbelieves evidence of plaintiff and A as to existence of T — late application following part-delivery of reasons for judgment on issue of liability to amend pleadings to claim against insurer in respect of liability of A — amendment allowed — no further evidence tendered that A was driver — trial judge dismisses claim for want of any proof of negligence of A— appeal to Court of Appeal — held: (1) The Court could not disturb the decision of the judge as to the dismissal of the claim on the basis that T was the driver as that decision was based on the judge's impression of the witnesses; (2) The Court should not otherwise disturb the decision in the absence of signification of instructions of fresh evidence which the plaintiff would seek to prove, in a fresh trial, that A was the driver (which evidence the plaintiff did not offer); (3) Accordingly, appeal dismissed. COSTS — indemnity costs — appeal — case dismissed at trial on basis that claim was false — plaintiff declines to offer instructions of evidence of fresh evidence of non false — persists with appeal — held: (On dismissal of appeal): Indemnity costs ordered.

Motor Vehicles (Third Party Insurance) Act 1942.

Meagher JA In this matter the appellant, Miss Lynn McColl, was the plaintiff inthe Court below and she sued the Government Insurance Office in respect of an accident which took place on 20 January 1985. She was a pillion passenger, and she was injured when a motor cycle on which she was a passenger, and which was owned by someone called Armstrong, came into collision with a parked car in the vicinity of Palmer Street and William Street, Sydney at about 1 am on that date.