DANIELE v GOVERNMENT OFFICE OF NEW SOUTH WALES INSURANCE [1995] NSWCA 115

DANIELE vy GOVERNMENT OFFICE OF NEW SOUTH WALES INSURANCE

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, POWELL and COLE JJA 7 February 1995, 7 February 1995

[1995] NSWCA 115

Appeal and New Trial — Motor vehicle accident — Identity of driver — Varying statements as to identity of driver made by parties at differing times — Master finds each of parties an unreliable witness — Master finds appellant driver — Whether finding may be disburbed.

Clarke JA I will ask Powell JA to give the first judgment.

Powell JA On Easter Monday, 31 March 1986, the Ford Falcon utility in which the Appellant, Nicolo Daniele and two other teenage boys, Geoffrey Lehmann ("Lehmann") and Graham Richards ("Richards"), left the carriageway of the Nine Mile Road, not far from Broken Hill, and, after overturning at least once, if not more, finally came to rest on its wheels some distance off the road. In the course of this incident Richards was thrown from the cabin of the vehicle and sustained a spinal injury of a serious nature.

When the vehicle came to rest, so the Appellant was later to say, Lehmann was first out of the cabin and assisted the Appellant from the cabin on the driver's side. Having then noticed that Richards appeared to have been seriously injured, and being aware that the Appellant appeared to be heavily winded, Lehmann then ran some distance to a place where two men, a Mr Sowden ("Sowden") and a Mr Dunn ("Dunn"), were riding motor bikes, with a view to obtaining their assistance.

Sowden then mounted his motor bike and went straight to the utility while Lehmann stayed behind for a short time with Dunn. When Sowden arrived at the utility he noticed that the Appellant was standing by the vehicle, leaning on it, and that Richards, who was apparently in some considerable pain, was lying, a short distance from it. Having taken a blanket from the cabin of the utility, Sowden covered Richards and then turned to the Appellant - whom he noticed had red hair - and then said, "Who was driving the car?" to which the Appellant replied, "I was".