GOVERNMENT INSURANCE OFFICE OF NSW v DAVID [1992] NSWCA 81

GOVERNMENT INSURANCE OFFICE OF NSW v DAVID SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, SHELLER JJA and Hope AJA 24 March 1992, 24 March 1992

[1992] NSWCA 81

NEGLIGENCE — RES IPSA LOGUITUR DOCTRINE Negligence — doctrine of res ipsa loquitur — finding by trial judge that doctrine did not apply — GIO of NSW v Frederichberg (1968) 118 CLR 403 applied — inapplicability of doctrine affirmed — uncontested evidence at trial as to how accident occurred — inapplicability of doctrine in these circumstances — Held evidence did not establish negligence — appeal dismissed.

ORDERS Appeal dismissed with costs.

Hope AJA The plaintiff sued to recover damages for injuries which she suffered in a motor car accident which occurred at about 1.30 am on the night of 16 June 1986. The proceedings came on in the District Court before his Honour Judge Urquhart QC. His Honour found against the plaintiff on the issue of negligence and entered judgment for the defendant. The plaintiff appeals against that decision.

The plaintiff at the time of the accident was a back seat passenger in a car that was being driven by a Mr Ronnie Israel in Eucalyptus Drive, Macquarie Fields. The car came to the intersection of that road with Rosewood Drive and Mr Israel drove the car to the right into Rosewood Drive. The car skidded and hit a post at or near the side of that road.

The evidence concerning the circumstances of the accident was very limited and was set out in full by his Honour. The evidence was given by the plaintiff and by a Constable Slack, who gave evidence of a statement made to him by Mr Israel. Constable Slack was called for the plaintiff and the evidence as to the statement of Mr Israel was thus tendered to the Court by the plaintiff. The evidence was described by his Honour in these terms: