WEBSTER v TAYLOR and ANOR [1994] NSWCA 341

WEBSTER v TAYLOR

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, HANDLEY and SHELLER JJA 4 March 1994, 23 March 1994

[1994] NSWCA 341

Appeal from common law division — Motor vehicle accident — Appellant was passenger in motor vehicle driven by respondent — car went round corner too fast, rolled over and hit another car — issue in trial concerned assessment of damages — appellant found to be an unmeritorious plaintiff and not a credible witness.

Whether the trial judge's finding on credibility can stand? Absence of analysis by the trial judge of the medical evidence, unsatisfactory nature of His Honour's reasoning process on the issue of credibility means that the judgment cannot stand. Damages reassessed.

Clarke JA The events out of which the appellant's action, and this appeal, arose occurred a very long time ago on 19 November 1980. At that time the appellant was thirteen years and eight months. Her action was commenced in 1985, some short while after she attained eighteen years of age, and the proceedings were heard and determined in November 1988. There was then a gap of in excess of five years before the appeal came on for hearing. The delay has not been properly explained and is, in my opinion, unacceptable. There may be a good reason for it but if, as was tentatively suggested, there was a lengthy difficulty in obtaining transcripts from the Court Reporting Branch the matter should have been brought to the attention of the court to ensure that there was no lengthy delay.

The appellant was a passenger in a motor vehicle driven by Mr Taylor, one of the respondents. He drove the car too fast around a corner and it rolled over and hit another car. Liability was not admitted but the car driver did not appear to defend his conduct and the trial judge found a verdict in favour of the appellant. The substantial issues in the trial concerned the assessment of damages. His Honour found that she was an unmeritorious plaintiff and clearly did not accept her as a credible witness. In the event he awarded her $12,500 for general damages and $266.30 for out of pocket expenses. The appellant has challenged this award and has asserted, inter alia, that his Honour's assessment depended upon his adverse view of the plaintiff and that that view was vitiated by a number of errors which his Honour made in assessing the appellant's credibility.