NSW INSURANCE MINISTERIAL CORPORATION v ROBERTSON; VASAILES v ROBERTSON; VASAILES v TANG [1995] NSWCA 339

NSW INSURANCE MINISTERIAL CORPORATION vy ROBERTSON; VASAILES v ROBERTSON; VASAILES v TANG

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KirBy ACJ, GILES and ROLFE AJJA 25 July 1995, 25 August 1995 [1995] NSWCA 339

NEGLIGENCE — contributory negligence apportionment — challenge to findings of primary judge — abbreviated reasons — adequacy of reasons — ability of CA to draw inferences from findings — held: finding set aside and new apportionment fixed — 80:20 substituted for 50:50.

JUDGES — reasons — adequacy of- abbreviated form — necessity to make findings of fact and to record conclusions on credibility — held: CA could draw inferences from judge's abbreviated findings on liability — damages stood over.

NEGLIGENCE — contributory negligence — appeal against apportionment by trial judge — abbreviated reasons — interpretation of — oncoming vehicle performs U turn in mouth of side street, re-enters main street and runs into side of vehicle proceeding in opposite direction — primary judge (Leslie AJ) finds each driver guilty of contributory negligence — finds each driver one-half responsible for the collision — enters judgments in respect of each driver reduced by 50% in each case for contributory negligence — on appeal against findings of liability, apportionment and damages

JUDGES — reasons — necessity for — duty to record grounds of decision and findings of fact — disputed claims of negligence and damages in motor vehicle accidents — abbreviated reasons of primary judge (Leslie AJ) — whether reasons adequate to permit Court of Appeal to perform its function of reviewing findings on liability, contributory negligence and damages

Held: (Giles AJA and Rolfe

AJA; Kirby ACJ concurring): (1) An appellate court is extremely hesitant to interfere with apportionments of contributory negligence. Pennington v Norris (1956) 96 CLR 10; Podrebersek v Australian Iron and Steel Pty Ltd (1985) 59 ALJR 492 (HC) applied; (2) Any such disturbance must be made in the light of the findings of the primary judge as to how the collision occurred; (3) No disturbance will be made except for the establishment of error on the part of the primary judge; (4) But in the circumstances, upon the findings made or inferred from the reasons of the primary judge, error was shown; (5) In lieu of the apportionment ordered by the primary judge, an apportionment of 80% contribution by the driver of the turning vehicle and 20% by the driver of the oncoming vehicle should be substituted.