HASNA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1992] NSWCA 108

HASNA v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MAHONEY JA, SHELLER JA and Cripps JA 10 November 1992

[1992] NSWCA 108

APPEAL from Common Law Division — Issues of fact — Issues not disposed of at trial — New trial on all issues — No question of principle.

Mahoney JA. On 19 August 1985 the plaintiff was injured when struck by a motor vehicle driven by the insured person represented by the Government Insurance Office. In December 1985 the plaintiff commenced proceedings against the relevant defendant for damages. On 28 August 1990 Master Greenwood, having heard the case presented by the parties, gave judgment for the defendant. The plaintiff has appealed to this Court against the Master's judgment.

The plaintiff's case at the trial, that is, the way it was put in his evidence, was rejected by the learned Master. The plaintiff's case as it is now presented by Mr Leslie QC is a frankly different case and is based essentially upon the evidence which was presented for the defendant at the trial. The plaintiff's case in this regard is that the learned Master failed to decide an essential point necessary for the decision of the matter, that the trial, therefore, miscarried and that there must be a new trial.

In order to understand the submissions that have been made and the conclusions at which I have arrived, it is necessary to refer to the evidence as it was presented at the trial. The Master in his judgment said:

The plaintiff was crossing Marrickville Road when he was struck. Marrickville Road in that vicinity is four lanes wide. It was 5 pm. The plaintiff said that he stood on the kerb and looked to the right on the northern side, there was not traffic coming, he got to the middle of the road, he looked to the left and could see no traffic and continued across and was struck by the defendant on the southern side of Marrickville Road in the kerbside lane. He said that he did not see the defendant. Constable Leighton was called to the scene of the accident. He found that the traffic conditions were heavy. He interviewed both the driver, a witness and later the plaintiff in hospital. The versions of the plaintiff and the defendant together with the witnesses" statements eventually finished in evidence before me. These read: