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. After the vehicles had stopped the appellant had gone to the front of the four-wheel drive vehicle where he commenced to shake and bounce the vehicle whilst shouting at the driver. The appellant had then leapt on to the bonnet of the four-wheel drive. To try to escape from him, Dr Tynan had driven off down the road whereupon the appellant clambered onto the roof rack and broke the windscreen with his heels. Dr Tynan agreed he had zig-zagged to try to dislodge the appellant. With vision obscured by the breaking of the windscreen he had stopped and, fearful of being attacked by the appellant who was coming towards him, he clutched two yacht winches but was wrestled to the ground by the appellant. The claim was pleaded in negligence and assault. Mahoney DCJ found, correctly in my view, that if the appellant's account was accepted the count in assault was established and no question of negligence would arise. If the 2 UNREPORTED JUDGMENTS respondent's account was accepted then neither the assault would be made out, nor would any question of negligence arise for the collision was due entirely to the actions of the appellant. Mahoney DCJ found, as a fact, that the respondent's account was the more probable and accepted it. His Honour did so principally on two bases. First, and of critical importance, his Honour relied "very heavily" on his impression of the witnesses, having special regard to their demeanour in giving evidence. Second, his Honour drew an inference from the appellant's failure to call evidence relating to the nature and extent of the damage to the rear of his vehicle, obviously being of the view that if the collision occurred on four separate occasions, as the appellant indicated, the damage would be greater than had there been the "gentle collision" caused by the appellant's stop-start activity. However his Honour regarded that inference as "surplusage" to his primary finding based on non-acceptance of the appellant's witnesses. Three grounds of appeal were raised. The first was that his Honour erred in holding that, although the claim was pleaded in negligence the case was really one of "trespass or nothing". For the reasons I had given in my opinion this ground fails. Acceptance of the appellant's case would result in a finding of trespass or assault and negligence would be immaterial. Acceptance of the respondent's case denied a finding of negligence on the part of the respondent. The remaining two grounds related to the trial judge's acceptance of the case advanced by the respondent and the rejection of the appellant and his witnesses. The circumstances in which an appeal can succeed on these grounds is limited.! Nothing has been advanced to entitle this Court to disturb the trial judge's finding of fact. In my opinion the appeal should be dismissed with costs. Clarke JA I agree. Sheller JA I also agree. Clarke JA: The order of the Court shall be as Cole JA has announced and Mr Foster the Court thanks you for your assistance in this case. You have had a very difficult case to plead and you said, I think, all that could be said on behalf of your client. Appeal dismissed with costs. Counsel for the appellant: G Foster Solicitors for the appellant: Evan A Kontoulas Counsel for the respondent: DJ Russell Solicitors for the respondent: NSW Insurance Ministerial Corporation 1. See Abalos v Australian Postal Commission (1990) 171 CLR 167 at 179; Devries v Australian Railways Commission (1993) 177 CLR 472; Ahmedi v Ahmedi (1991) 23 NSWLR 288 at 299.