CATLEY v STONE [1996] NSWCA 96

CATLEY v STONE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, HANDLEY JA and COLE JA 27 June 1996

[1996] NSWCA 96

MOTOR VEHICLE ACCIDENT — liability — challenge to findings — evaluation of evidence.

About 4 a.m. on 20 June 1988 the plaintiff who was driving a tour bus ran into the rear of a semi-trailer travelling in the same direction. They were on a steep section of the freeway, the roadway was wet, and there was no overhead lighting. The plaintiff sued the owner of the semi-trailer for negligence alleging that its rear lights were obscured by the tarpaulin covering the load. An independent witness driving behind the bus had observed the lights on the defendant's vehicle before the accident. The trial judge found a verdict for the defendant. The plaintiff appealed on the grounds that the trial judge should have found that the tarpaulin did obscure the lights and relied on photographs taken after the accident. The appellant also argued that the evidence-in-chief of a passenger should have been accepted and that the evidence of the independent witness should have been discounted for reasons argued before the trial judge.

HELD, dismissing the appeal: (1) The photographs taken after the accident were not helpful because the force of the collision may have shifted the load or damaged tie-ropes for the tarpaulin; (2) The photographs did not establish incontrovertible evidence taking the case outside the general rule in Abalos v Australian Postal Commission (1990) 171 CLR 167; (3) The trial judge's preference for the evidence of the passenger in cross-examination could not be disturbed; (4) The trial judge was better placed to evaluate the submissions for discounting the evidence of the independent witness and his findings could not be disturbed.

Handley JA. About 4 a.m. on 20 June 1988 the plaintiff was driving a tour bus on the F3 freeway south of the Brooklyn Bridge in a southerly direction when it ran into the rear of a semi-trailer travelling in the same direction in the kerbside lane.