COWAN and ANOR v COWAN [1997] NSWCA 82

COWAN and ANOR v COWAN SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE, BEAZLEY and STEIN JJA 1 September 1997, 1 September 1997 [1997] NSWCA 82

NEGLIGENCE — whether trial judge's decision was supported by the evidence — admission by appellant that brakes (front and back) were faulty meant that the cause of the accident could be established.

Cole JA The appellants were the owners of an unregistered motorised farm tricycle which was being driven by the respondent on 7 January 1993 when it overturned after she had braked whilst turning to her left to avoid a farm dog which had run across in front of her. She alleged that "the motor bike had defective brakes" and it was that circumstance which caused the vehicle to overturn on top of her. She sued the appellants, one of whom was her husband, in negligence. In a judgment delivered 30 April 1996 Garling DCJ found a verdict for the respondent and awarded $31,400 damages. The appellant has contended that the only evidence before the trial judge was that the front brake only was defective and that brake was applied using a braking handle on the left handlebar. They have contended that the only evidence of the plaintiff was that she braked by applying her foot to a foot brake pedal, and by grabbing the brake handle on the right handlebar, both of which activated the brakes on the two rear wheels. They contend that there was no evidence that the rear brakes were defective. Accordingly there should have been a verdict for the defendants as there was no causal connection established between the negligence alleged and the accident. They contend that there was no evidence to justify the trial judge stating as he did:

"T am not sure if the plaintiff was accurate in what she said."! in reference to her evidence that she grabbed the brake lever on the right handlebar, or his Honour's statement that: