NASSAR v ANTONIOUS [1994] NSWCA 215

NASSAR v ANTONIOUS

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and HANDLEY JJA

27 June 1994, 27 June 1994

APPEAL — motor vehicle collision — judge prefers evidence of defendant over plaintiff and his father — whether rejection of plaintiffs evidence demonstrates that judge failed to use his advantage in conducting the trial — whether conclusions glaringly improbable or contradicted by objective evidence — held: (Handley JA; Kirby P and Clarke JA concurring): No appealable error demonstrated — no matter of principle — appeal dismissed with costs.

Abalos v Australian Postal Commission (1990) 171 CLR 167 applied. ORDER Appeal dismissed with costs.

Kirby P I will ask Handley JA to give the first judgment.

Handley JA This is an appeal by a plaintiff from a decision of Judge Nield in the District Court who heard the plaintiff's action for damages for personal injuries arising out of a car accident which took place as long ago as 27 July 1980.

The collision occurred in William Street, Earlwood and the essential question to be decided by the trial Judge was which of the vehicles was on its incorrect side of the road. If the defendant's verdict was on its incorrect side of the road then the plaintiff could be expected to recover. If, on the other hand, the defendant's vehicle was on the correct side of the road and the plaintiffs vehicle the incorrect side of the road, then the proper result would be a verdict for the defendant.

There were few objective signs which assisted in the determination of this question. The police constable who attended at the scene of the accident, Constable Glynn, said that the bulk of the debris was on the side of the road that was the plaintiff's correct side of the road. There was a skid mark made by the nearside tyres on the plaintiff's vehicle running from the approximate point of the collision ending on its incorrect side of the road at the northern kerb of William Street, which indicated the path which the plaintiff's vehicle took after the collision before it came to rest.