LAM v GOVERNMENT INSURANCE OFFICE OF NSW; LE v GOVERNMENT INSURANCE OFFICE OF NSW; DUONG v GOVERNMENT INSURANCE OFFICE OF NSW [1994] NSWCA 177

LAM v GOVERNMENT INSURANCE OFFICE OF NSW; LE v GOVERNMENT INSURANCE OFFICE OF NSW; DUONG v GOVERNMENT INSURANCE OFFICE OF NSW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY, MEAGHER and POWELL JJA 23 March 1994, 9 August 1994 [1994] NSWCA 177

EVIDENCE — inference — motor vehicle collision — failure to tender evidence — in Plaintiff's case — failure to give evidence — by defendant — significance — whether explained.

NEGLIGENCE — proof of — res ipsa loquitur — motor vehicle collision — application of doctrine — when plaintiff fails to establish how, as opposed to why, collision occurred.

PRACTICE AND PROCEDURE — application to reopen plaintiff's case in chief — during course of addresses after close of evidence — no explanation for failure to tender evidence in chief — application refused — availability of appeal.

Mahoney JA On 26 January 1986 there was a motor vehicle accident at the intersection of Cowpasture Road and Prairie Vale Road, Bossley Park. The plaintiffs sued the Government Insurance Office of New South Wales for damages. Their proceedings were tried before Gibson DCJ. His Honour dismissed the plaintiffs' claims upon the ground that the plaintiffs had not satisfied him, on a balance of probabilities, that the accident was caused by the negligence of the driver for which the defendant was responsible. The plaintiffs have appealed to this Court against his Honour's judgment.

I have had the advantage of reading the judgment of Powell JA. I shall not repeat the factual material relevant to this appeal: the substance of it is referred to in his Honour's judgment and has been canvassed at length in argument.

Mr McManamey, for the plaintiffs, has submitted: that Gibson DCJ erred in not finding that the accident was caused by the negligence of, as I shall describe him, the defendant's driver; and that his Honour erred in refusing, towards the end of the proceedings, to grant an adjournment as requested for the plaintiffs.