DOWZARD PTY LTD v STOCKS [1996] NSWCA 159

DOWZARD PTY LTD v STOCKS SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY P, PRIESTLEY and POWELL JJA 1 April 1996, 2 April 1996 [1996] NSWCA 159

Negligence — liability — whether appeal court able to interfere with trial judge's finding on credibility

Negligence — liability — whether appeal court could interfere with trial judge's findings on credibility — head on collision between motor cyclist carrying a pillion passenger and a car — motor cyclist exceeding speed limit — car being lawfully driven — motor cyclist took curve on the wrong side of the road — immediate admissions by plaintiff motor cyclist that accident his fault — motor cyclists case that motor cycle malfunction sent him to the wrong side of the road — motor cyclist sued company which allegedly repaired motor cycle's brake negligently — trial judge accepted evidence and credibility of plaintiff and awards damages — defendant appealed on liability — challenge to trial judge's factual conclusions and whether adequate reasons were given in judgment — principal question whether the trial judge had been correct in accepting that motorcyclist had been on the wrong side of the road immediately before and at the time of the accident was due to bike's defect. Held: per Priestley JA, Mahoney P and Powell JA agreeing: the trial judge did not err in being persuaded by the credibility and evidence of the plaintiff. The evidence in question did not fall within any of the circumstances or situations as defined by the High Court in Devries therefore the Court of Appeal was not entitled to interfere with findings of the trial judge properly based on his findings of credibility.

Abalos v Australian Postal Commission (1991) 171 CLR 167 Devries v Australian National Railways Commission (1993) 177 CLR 472 ORDERS Appeal dismissed with costs.