SCHUMACHER v THE NOMINAL DEFENDANT [1996] NSWCA 468

SCHUMACHER v THE NOMINAL DEFENDANT

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE, SHELLER and COLE JJA 25 June 1996

[1996] NSWCA 468

MOTOR VEHICLE ACCIDENT — res ipsa loquitur — whether doctrine applies — whether inference of negligence should have been drawn — GIO v Fredrichberg (1968) 118 CLR 403 at 413

Sheller JA. This appeal arises from events said to have occurred on the morning of 10 January 1990. The appellant, Frederick John Schumacher, claimed to be a passenger in a motor vehicle driven by the second respondent, Stanley Charles Higgins, on the Oberon Road driving towards Bathurst. According to the accounts given by the second respondent and to some extent by the appellant, the second respondent was proposing to turn left off the Oberon Road, into or adjacent to a paddock to travel through a cocky fence and was proceeding at something between 30 and 40 kilometres an hour.

A truck travelling in the opposite direction towards Oberon came round a bend and then onto its incorrect side of the road. Mr Higgins said he became aware of the other vehicle which was about 300 metres away from him and aware that it was entirely on its incorrect side of the road, about 70 to 75 metres away. He said that he took the only evasive action possible. He pulled across to the left onto the verge and ran into a culvert. In one action Mr Higgins sued the nominal defendant. In another the appellant sued the nominal defendant and Mr Higgins. These two actions were heard together by his Honour Judge Shillington.

On 8 October 1992 his Honour found for the nominal defendant in both actions on the basis that he regarded the accounts of both plaintiffs, that is to say the plaintiffs in both actions, Mr Schumacher and Mr Higgins, to be unsatisfactory, and did not accept them. His Honour also dismissed Mr Schumacher's claim against Mr Higgins. This claim was based upon the application of the principle res ipsa loquitur. It is from that part of his Honour's judgment that Mr Schumacher now appeals on the single ground that his Honour erred in finding that the second respondent, Mr Higgins, was not negligent.