HORN v YOUNG [1995] NSWCA 199

HORN v YOUNG

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, MEAGHER and POWELL JJA

20 April 1995, 20 April 1995

[1995] NSWCA 199

APPEAL — APPLICATION FOR ADMISSION OF FRESH EVIDENCE

Clarke JA The appellant was injured in a trail bike accident on Sunday, 21 August 1977. He was at that time a policeman, and was riding with a group of other policemen and one civilian, who is the respondent.

He claimed that his injuries were caused by the respondent's negligent riding. In particular, he said that the respondent accelerated his motorcycle past the appellant's motorcycle in such a manner as to lead to an impact between the two cycles, following which stones were flung up by the respondent's cycle towards the appellant. As a consequence of this incident he lost control of his motorcycle and sustained a significant injury to the right knee.

His action for damages was heard in September 1990. On 26 September, that is after the hearing had concluded, the appellant applied on notice for leave to reopen his case. That application was refused, and its refusal is not called into question in this appeal.

The evidence then sought to be adduced by the appellant was quite different to the evidence to which I will refer in a moment.

On 2 October 1990 the trial judge delivered his reasons for judgment and directed the entry of judgment for the respondent. On 30 October 1990 the appellant filed a notice of appeal in which he boldly asserted that the trial judge erred in preferring the evidence adduced by the respondent, and added that his Honour's decision was not based upon the evidence.

It should be mentioned that these are not proper grounds of appeal, insofar as they fail to identify with required specificity the errors which it is asserted the trial judge made. However, it is unnecessary to take time with the form of the notice of appeal, because the case has been argued upon the basis that the outcome of the appeal depends essentially upon whether the appellant is granted leave to adduce fresh evidence. If that leave is refused it is accepted that the appeal must fail. If, on the other hand, the application is successful, then discretionary questions may arise.