REILLY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1994] NSWCA 263

REILLY v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MEAGHER, HANDLEY and SHELLER JJA

23 November 1994, 23 November 1994

The appellant brought a claim under s14A (1) of the Motor Vehicles (Third Party Insurance) Act 1942 with respect to injuries-suffered as a result of a motor vehicle accident in 1985. The appellant claimed that his semi-trailer had been forced to the side of the road by an on-coming white sedan which was overtaking a truck. He subsequently lost control of his semi-trailer, which "jackknifed" several times before the trailer broke away and the prime mover came to rest in some trees. The appellant was seriously injured as a result of the incident.

It was admitted that the claimant had a blood alcohol reading of.141 g/ml and had had no sleep for nearly twenty-four hours before the accident. The trial judge said that apart from a few discrepancies, there was nothing in the version given to the police after the incident that was inconsistent with the evidence given by the appellant in court. In the absence of any independent witness it became necessary closely to scrutinise the appellant's evidence to assess his credibility and to determine how what he said balanced with the objective evidence of the attendant police officer's observations of the site shortly after the incident. He gave evidence that there was no sign of any braking or skid marks and his Honour held that his observations were consistent with the semi-trailer being driven straight off the road; as such it was also consistent with the appellant suffering fatigue or the effects of alcohol or both, simply losing concentration or going to sleep at the wheel.

The trial judge held that the appellant bore the onus of proof. He was not satisfied to the civil onus that the claim had been made out.