BROWN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES [1996] NSWCA 71

BROWN v GOVERNMENT INSURANCE OFFICE OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY, SHELLER and COLE JJA 21 June 1996

[1996] NSWCA 71 MOTOR VEHICLE ACCIDENT — personal injuries — credibility of witness

Sheller JA. This is an appeal from a judgment given by his Honour Judge Downs QC on 11 August 1995 in proceedings wherein the appellant, Margaret Brown, claimed damages for personal injury sustained by her on 20 November 1987 when the vehicle she was driving crossed to the incorrect side of Ramsgate Road, Kogarah Bay and collided with a small lorry. His Honour found against the appellant and entered a verdict for the defendant respondent.

The appellant claimed that an unknown vehicle had run into her vehicle forcing it onto the incorrect side of the road. She gave an account of events involving three youths she had earlier encountered at about 7.30pm outside a milk bar in Cronulla. One of these youths was armed with and displayed a knife.

According to her story they followed her in another car ultimately coming alongside and bumping the passenger side of her vehicle. The appellant alleged it was this conduct which caused her to cross on to the incorrect side of the road.

Evidence was given by David Kettlewell, the driver of the truck, which was proceeding in the opposite direction, that is to say in an easterly direction in Ramsgate Road, and Ms Marr, the driver of another vehicle proceeding alongside Mr Kettlewell's truck. Both of these witnesses said that they had not seen any other vehicle coming in the opposite direction in the vicinity of the appellant's vehicle before the accident.

His Honour said that on the evidence that they had given he was not satisfied that the incidents occurred as the appellant described them. He went on to say that he found the appellant to be an unsatisfactory witness and expressed a number of reasons for that conclusion. He ultimately said that he was satisfied that the appellant veered to the incorrect side of the road because she was not looking where she was going and she crossed to her incorrect side of the roadway because she failed to negotiate the kerb.