KERR v KRSTEVSKI [1997] NSWCA 175

KERR v KRSTEVSKI

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL COLE, BEAZLEY and STEIN JJA 1 September 1997, 1 September 1997

[1997] NSWCA 175

Motor Vehicle Accident — damages for negligence — no eye witnesses — no other vehicles in close proximity — adverse finding of credibility of evidence

Stein JA These are two appeals arising out of a single motor vehicle accident. The actions were determined by Nash DCJ on 12 November 1996 in the District Court. The appellant (Mr Kerr) was the plaintiff in one action suing the respondent (Mr Krstevski) for damages for negligence. In the other case, Mr Krstevski sued Mr Kerr for negligence. The matters were heard together. The trial judge found in favour of Mr Krstevski and, in his action, awarded the respondent $178,383 in damages. In the other action brought by the appellant, his Honour entered a verdict for the defendant.

The appeals challenge the factual findings by the judge.

The facts are in a narrow compass. At around 3.30 pm on 19 November 1993 the respondent was driving his motor vehicle east along Mowbray Road, Lane Cove. The appellant was driving in a generally westerly direction along the same road. As the vehicles were negotiating a relatively sharp bend they collided, more or less head-on. The surface of the roadway had unbroken double lines prohibiting vehicles in either direction from crossing onto the incorrect side. Each driver gave evidence maintaining that he was on the correct side and that the other driver crossed over the unbroken lines onto the incorrect side of the road.

In addition to the conflict between the respective drivers the task of the tribunal of fact was made more difficult because there was no passenger in either vehicle and no eye witness to the accident. No other vehicles were being driven in close proximity. A police officer visited the accident scene but his inquiries shed no direct light on how the accident had occurred or the point of impact. Although there were no witnesses to the collision, three people working in nearby premises heard the collision. They gave evidence but none of them could assist as to where on the road surface the collision occurred. His Honour found, and in my opinion was entitled to find, that no weight should be given to the final positions of the vehicles after the accident. I will return to this matter shortly.