NSW INSURANCE MINISTERIAL CORPORATION v HILL [1996] NSWCA 393

NSW INSURANCE MINISTERIAL CORPORATION v HILL

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

CLARKE JA, SHELLER JA and COLE JA

26 June 1996

[1996] NSWCA 393

LIABILITY — motor vehicle accident — no question of principle.

Clarke JA. I shall ask Mr Justice Cole to give the first judgment.

Cole JA. The appellant contends that at the trial before his Honour Judge Nash, at which a verdict was entered for the respondent in the amount of $78,746, there was a miscarriage of justice. It is argued in written submissions that the trial judge's findings on liability should be set aside and a verdict entered for the appellant; or alternatively that the respondent should be held guilty of contributory negligence, although this was abandoned on appeal; or alternatively that there should be a new trial, which was the position adopted in oral argument.

The circumstances giving rise to these submissions are as follows: The respondent was injured when involved in an accident on 31 March 1985. A motor cycle on which he was riding was then travelling in an easterly direction along Parramatta Road, Ashfield, when it collided with the rear of another vehicle travelling in the third lane from the kerb, Parramatta Road at that stage having three lanes in each direction.

The vehicle with which the motor cycle collided was stationary. The respondent alleged that he was previously travelling in lane two when an unidentified motor vehicle travelling in lane one suddenly, and without warning, changed into lane two, causing the respondent to take evasive action by swerving immediately into lane three whereupon he struck the rear of the stationary vehicle.

At the hearing before Judge Nash the plaintiff gave evidence to the effect that I have mentioned. The defendant, however, contended that the respondent's account was a fabrication. The contention was based upon a workers compensation claim form dated 4 April 1985. The claim form stated: