ZAFIRIS v GOVERNMENT INSURANCE OFFICE OF NSW [1995] NSWCA 534

ZAFIRIS vy GOVERNMENT INSURANCE OFFICE OF NSW

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

GLEESON CJ, PRIESTLEY and COLE JJA 14 March 1995, 14 March 1995 [1995] NSWCA 534

NEGLIGENCE EVIDENCE — fresh evidence — not shown that evidence could not have been obtained with reasonable diligence for use at trial — not shown evidence would have materially affected the outcome of the trial.

NEGLIGENCE — FRESH EVIDENCE The appellant had been found liable in negligence for bodily injury resulting from a motor vehicle collision. The evidence accepted at the hearing was that the appellant had disobeyed a traffic control light. Subsequent to the hearing, the appellant received evidence which supposedly tended to contradict evidence at the trial about the state of the traffic lights at an earlier phase. However, the fresh evidence was consistent with the evidence at the trial concerning the material phase of the lights. On appeal, it was sought to tender this evidence — HELD — The tender should be rejected since — (a) it was not shown that the evidence could not have been obtained with reasonable diligence for use at the trial; and (b) it was not demonstrated that the evidence would have materially affected the outcome of the trial.

ORDERS Appeal dismissed with costs.

Gleeson CJ This is an appeal from a decision of Master Malpass in proceedings brought by the plaintiff against the Government Insurance Office claiming damages for bodily injury resulting from a motor vehicle collision.

The basis of the appellant's claim was that a vehicle in which he was travelling collided with a much larger truck being driven by a man named Terrence Farrar at the intersection of Livingstone Road, Sydenham Road and Frazer Street, Marrickville.

It was agreed at the hearing that the total loss and damage suffered by the plaintiff as a consequence of his injuries amounted to $165,000. The case was defended by the Government Insurance Office on the basis either that there was no negligence on the part of Mr Farrar or, alternatively, that if there were negligence there was also contributory negligence on the part of the appellant and indeed that the accident was principally the appellant's fault.