KIRAN v THE NOMINAL DEFENDANT [1996] NSWCA 307

KIRAN v THE NOMINAL DEFENDANT SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and COLE JA 20 June 1996

[1996] NSWCA 307 MOTOR VEHICLE ACCIDENT — finding of fact.

APPEAL AND NEW TRIAL — PRIVILEGED MATERIAL WITHHELD — WHETHER SUBSTANTIAL WRONG.

The plaintiff alleged that on the evening of 18 June 1990 an unidentified vehicle forced him to cross a median strip and collide with an oncoming vehicle. On the basis of evidence from the driver of that vehicle, cross-examination, inconsistencies in earlier statements and assessment of the plaintiff's credit, the trial judge was not satisfied on the balance of probabilities that there had been any such unidentified vehicle. The appellant challenged the decision of the trial judge to disallow cross-examination by counsel for the plaintiff and to refuse access to documents of an insurance investigator for which privilege was claimed. However, during an adjournment the tapes from the trial disclosed that the cross-examination was not restricted. The issue on the appeal was whether the material from the investigation withheld from counsel caused any substantial wrong or miscarriage at the trial such as to call for the intervention of the Court.

HELD, dismissing the appeal: Having inspected the investigator's documents, it was clear that any error in the trial judge's ruling on the question of privilege was not such as to occasion a substantial wrong or miscarriage.

Handley JA. This is an appeal by a plaintiff from a verdict and judgment for the defendant entered by Patten DCJ on 18 August 1995. The plaintiff sued the nominal defendant for injuries allegedly sustained as a result of negligence of the part of an unidentified motor vehicle on the evening of 18 June 1990.

The plaintiff was driving his vehicle north in Bexley Road, Bexley North where there are two lanes for traffic in each direction divided by a median strip. At the point at which the collision occurred, the road curves to the right going downhill in the direction in which the plaintiff was travelling.