BOOTLE v KETTLEWELL [1993] NSWCA 30

BOOTLE v KETTLEWELL

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, HANDLEY and POWELL JJA 18 October 1993, 25 November 1993 [1993] NSWCA 30

MOTOR VEHICLE ACCIDENT — WHO WAS DRIVER? — ADVANTAGE OF TRIAL JUDGE SEEING WITNESSES — WHETHER APPEAL COURT MAY COME TO DIFFERENT CONCLUSION — INFERENCE TO BE DRAWN FROM NOT CALLING DEFENDANT WHO WAS CLAIMED BY PLAINTIFF TO BE DRIVER AFTER PREVIOUSLY SAYING HE WAS PASSENGER — PROCEEDING CONDUCTED BY INSURER — JONES v DUNKEL INFERENCE

APPEAL FROM DISTRICT COURT — Motor vehicle accident — Who was driver? — Plaintiff told police and others she was driver — Later claimed she was not driver — Judge accepted plaintiff's evidence — Held: Plaintiff was driver — Appeal upheld.

ADVANTAGE OF TRIAL JUDGE SEEING WITNESSES — Whether Appeal Court may come to different conclusion.

INFERENCE TO BE DRAWN FROM NOT CALLING DEFENDANT — Defendant claimed by plaintiff to have been the driver — Had previously said he was passenger — Proceeding conducted by Insurer — Jones v Dunkel inference.

Mahoney JA On 15 December 1980 Miss Maureen Kettlewell was involved in a serious motor vehicle accident at Geurie near Dubbo. She was injured. She sued the defendants claiming damages on the basis that Mr Malcolm Bootle was the driver of the vehicle at the time and that the accident was due to his negligence. On 27 March 1992 McDevitt DCJ found a verdict for the plaintiff and awarded damages of $44,487.36. The defendants have appealed to this Court against that judgment.

Miss Kettlewell's case depends upon her claim, made in evidence before the judge, that at the time of the accident Mr Bootle was driving the car. The case for the defendant has been conducted by the Government Insurance Office of New South Wales as the defendants' third party insurer. As was proper under the existing law, Miss Kettlewell sued the defendants as respectively driver and owners of the vehicle. Mr Malcolm Bootle was, at the time of the accident, the "boyfriend" of Miss Kettlewell and, as the evidence discloses, they became parents together of a child. They did not marry and have not been in their previous relationship for at least a substantial time. However, their relationship is, it has been suggested, relevant in the understanding of what happened and in deciding what inferences are to be drawn from the evidence.