SWINBURNE v NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO OF NSW) [1997] NSWCA 302

SWINBURNE v NSW INSURANCE MINISTERIAL CORPORATION (formerly GIO OF NSW)

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MASON P, MEAGHER and POWELL JJA 29 October 1997, 29 October 1997

[1997] NSWCA 302

Evidence — Prospectant — "Presumption" of continuance — Whether available in instant case

Mason P The appellant appeals against a verdict for the defendant entered by his Honour Judge P R Bell. The appellant's claim is for damages for injuries sustained in an accident which occurred early in the morning of Good Friday 17 April 1987. In the preceding evening the appellant had been at a hotel where he met a woman whom he had known casually for some years, a Ms Thompson. After much drinking they met up with a group of motor cycle enthusiasts at some club premises in Middle Lane, Randwick.

At some time early in the morning, although how early is a matter of some confusion and debate, the appellant set off with Ms Thompson on a motor bike going up Middle Lane and turning right into Middle Street, Randwick, heading east. Near the intersection of Barker Street and Perouse Road, Randwick, the motor cycle struck a brick wall, having mounted the kerb. Both the appellant and Ms Thompson were injured, the appellant more seriously than Ms Thompson.

The case appears to have been fought solely on the issue of who was the driver and who was the passenger of the motor bike. The trial judge found in the ultimate that he was not persuaded that the appellant was the passenger.

The appellant had no recollection of the circumstances of the accident itself and gave no evidence on that matter. He was not challenged about this lack of recall. It was, however, his evidence, and it was supported by the evidence of a witness named Mr Halbert, that when he and Ms Thompson left the premises at Middle Lane Ms Thompson was the driver and he was the passenger.