NSW INSURANCE MINISTERIAL CORP v WEBSTER [1997] NSWCA 222

NSW INSURANCE MINISTERIAL CORP v WEBSTER

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CLARKE JA, ABADEE and SANTOW AJJA 14 November 1996, 5 February 1997

[1997] NSWCA 222

Motor vehicle accident — Negligence — Respondent's version of accident rejected — Vehicle in which respondent passenger leaves road after finding of tyre blow out immediately before doing so — Onus on appellant to establish significance of blow out — Onus not discharged — Inference of negligence available to be drawn — Res ipsa loquitur.

Clarke JA I have had the advantage of reading in draft the judgment of Abadee AJA. I regret that I am unable to agree with it and I will proffer my own reasons for upholding the judgment under appeal. Because, however, the facts are examined in detail by Abadee AJA I will restrict my examination to those facts which I regard as important to my course of reasoning.

The respondent was injured on 10 April 1987 while riding as a passenger in a vehicle, driven by the man who is now her husband and who was insured by the defendant, which left the left hand side of the Bruce Highway and came to rest in a ditch. Prior to the accident the vehicle had been proceeding in a northerly direction from Airlie Beach towards Cairns.

The respondent's version of the accident was that the vehicle moved to the right hand side of the road in order to overtake another car only to observe a truck coming towards them from the opposite direction. She feared there would be a head-on collision but at that moment the driver swerved their car violently to the left cutting in front of the car being overtaken and then went off the roadway on the left hand side.

This version of the accident was supported by the evidence of Constable McDonald, who was called by the appellant and who attended at the scene at about 3.30pm. He said that he recorded the path of the vehicle immediately before it left the road in a plan which indicated that the vehicle first travelled from its correct side of the road. It then returned to its correct side and after reaching that side it began to skid, leaving skid marks which commenced towards the left hand side of the road. However, there was other evidence which was inconsistent with the respondent's version. This was in the form of statements which she made to the police officer while in hospital and in histories given to doctors in which she did not mention the overtaking.