NSW INSURANCE MINISTERIAL CORPORATION v JONES; NSW INSURANCE MINISTERIAL CORPORATION v MAZEPA [1994] NSWCA 244

NSW INSURANCE MINISTERIAL CORPORATION v JONES; NSW INSURANCE MINISTERIAL CORPORATION v MAZEPA

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, MEAGHER and HANDLEY JJA

22 March 1994, 22 March 1994

NEGLIGENCE — motor vehicle accident — head on collision — insured driver suffered rupture of aorta and immediately lost consciousness before collision — deceased insured driver's wife not called to give evidence at trial — whether it was possible and proper to draw an adverse inference against the respondent — held (1) prima facie the movement of a vehicle from its correct to incorrect side of the road constitutes negligence in accordance with the maxim res ipsa loquitur, unless explained by evidence to the contrary; (2) in circumstances where there are competing inferences to be drawn from the evidence, it is open to the court to draw an adverse inference against a defendant where a witness who may have aided the defendant's case was not called Jones v Dunkel (1959) 101 CLR 298; (3) the unexplained failure to call the deceased driver's wife enabled the trial judge to draw an adverse inference against the defendant that the rupture of the aorta occurred after a dangerous move by the vehicle onto the incorrect side of the road and accordingly supported the finding of liability: Jones y Dunkel (1959) 101 CLR 298 considered and applied.

ORDER

Appeal dismissed with costs.

Handley JA This is an appeal by the defendant, formerly the GIO, from judgments entered for two plaintiffs by his Honour Judge Dent QC in the District Court on 14 April 1993.

Proceedings arose out of a head on collision which occurred on the Pacific Highway at Sandcrox, near Port Macquarie, at 4.30 in the morning on 27 December 1986. The plaintiffs were in a motor vehicle being driven south by the plaintiff, Mr Mazepa. The defendant's insured, Mr Simon Outijans, was the driver of the vehicle travelling north.