EBEJER v WILKINSON [1997] NSWCA 99

EBEJER v WILKINSON

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

MASON P, PRIESTLEY JA and STEIN JA 23 May, 12 June 1997 [1997] NSWCA 99

The appellant was injured in a motor vehicle accident and sued the respondent claiming damages on the basis that she was the driver of the vehicle, that he was the passenger and that the accident was due to her negligence. Abadee J dismissed the claim because the appellant did not persuade him that it was the respondent (and not the appellant) who was the driver.

On appeal, the appellant challenged the trial judge's rejection of the respondent's evidence given on oath in the Local Court (the respondent did not give evidence before Abadee J). The trial judge's finding in relation to the insurer's obligation or otherwise to make an application under s 66A Motor Accident's Act 1988 (for joinder) was also challenged on appeal.

Held - Appeal dismissed:

1. The various attacks on the trial judge's reasoning process do not indicate appealable error, or convince the court that his conclusion that the plaintiff's onus was not satisfied should be displaced.

Mason P. This is an appeal against a verdict for the defendant. The appellant was injured in a motor vehicle accident that occurred sometime after 3.00am on 9 January 1988 at Liverpool. The appellant sued the respondent Ms Julie Wilkinson claiming damages on the basis that she was the driver of the vehicle, that he was a passenger, and that the accident was due to her negligence. The claim failed because the appellant did not persuade Abadee J that it was the respondent (and not the appellant) who was the driver. The appellant and the respondent had lived together in a de facto relationship since about 1987.

It is clear that whoever was the driver was negligent. Abadee J made such a finding. The car in which the parties were travelling failed to make a right hand curve, crossed the median strip, struck a light pole and various structures, and overturned anumber of times. The two parties were found unconscious at the scene, outside the vehicle and lying on their backs on the ground.