THE NOMINAL DEFENDANT v HENRY [1994] NSWCA 237

THE NOMINAL DEFENDANT v HENRY SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

SHELLER, POWELL and COLE JJA 26 August 1994, 26 August 1994

[1994] NSWCA 237

APPEAL AND NEW TRIAL — Functions of trial Judge Findings based on credibility — Whether appellate court may override.

VEHICLES AND TRAFFIC — Third party insurance — Unidentified motor vehicle causing accident — Due search and inquiry — To what extent search and inquiry must be established.

Devries v Australian National Railways Commission (1993) 177 CLR 472 Harrison v The Nominal Defendant (1975) 50 ALJR 330

Powell JA In the early hours of the morning of Sth August 1983, the Toyota Hi-Ace van, which was then being driven by the present Respondent ("Mr Henry") in an Easterly direction along the Bruxner Highway near Wollongbar, left the road and, after crashing through a fence and colliding with a tree, rolled over a number of times before coming to rest on its side. As a result of the accident, Mr Henry's right leg was seriously injured, so much so that, later, in the course of the morning, it was amputated.

Mr Henry's case at the trial before Mathews J, from whose Judgment this Appeal is brought, was that the cause of his van's leaving the road, and crashing, in the fashion which I have just described, was that he was blinded by the headlights of a motor vehicle which had approached him from the opposite direction, in consequence of which fact he failed to observe the gentle left hand curve which he was approaching, and, instead, drove straight ahead and off the road.

There were no witnesses to the accident itself, the only person who was in reasonable proximity to the scene of the accident being a lady who apparently lived nearby, and who, having heard the noise of the accident, came to investigate its cause; when she did so, she found Mr Henry, and, having noticed the extent of his injuries, and given some primary care, she then summoned the ambulance The ambulance appears to have arrived a little later, and, after they had given Mr Henry emergency treatment, the ambulance officers then drove Mr Henry to the Lismore Base Hospital where they arrived at about 2 04 pm.