CHAVEZ v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION [1996] NSWCA 100

CHAVEZ v NEW SOUTH WALES INSURANCE MINISTERIAL CORPORATION

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE, SHELLER and COLE JJA 16 July 1996, 16 July 1996 [1996] NSWCA 100

NEGLIGENCE — assault — no question of principle.

Cole JA The appellant claimed damages from the respondent as the body responsible for the driving activity of Dr AP Tynan.

The accounts of the incidents giving rise to the claim given by the appellant, his wife and former son-in-law differed greatly from that given by Dr Tynan. Shortly stated the account given by the appellant and his witnesses was that whilst driving north along West Botany Road, late in the afternoon on 11 February 1986, Dr Tynan's four-wheel drive vehicle had, on four occasions, driven into the back of the appellant's vehicle, this occurring on two occasions whilst the appellant was driving two lanes out from the kerb, and on a further two occasions whilst he was driving in the lane adjacent to the kerb. On the appellant stopping after these incidents and alighting from his vehicle Dr Tynan had then driven his vehicle at the appellant. To avoid injury the appellant had jumped on to the bonnet of the four-wheel drive vehicle, clambered from there on to the roof rack whereupon Dr Tynan had driven off along the road swerving. To prevent this conduct the appellant had broken the windscreen with his knees, thus eliminating the driver's vision. When the driver stopped the four-wheel drive vehicle, Dr Tynan had seized two metal objects from the rear of the vehicle and attacked and struck the appellant with them.

On the other hand, Dr Tynan's account was that he had been overtaken by the appellant's vehicle with the appellant gesticulating and mouthing words to him as he passed. Immediately the appellant had passed the four-wheel drive vehicle he commenced a "stop-start routine", braking and accelerating in front of the vehicle which resulted in the four-wheel drive gently colliding with the back of the appellant's vehicle.