FOX v GOVERNMENT INSURANCE OFFICE [1997] NSWCA 111

FOX v GOVERNMENT INSURANCE OFFICE SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

Mason P, PRIESTLEY JA and GROVE AJA 18 April, 14 May 1997

[1997] NSWCA 111

The appellant was injured in a MVA in 1984 involving an unidentified motor vehicle. The appellant subsequently sued the GIO pursuant to s14A Motor Vehicles (Third Party Insurance) Act 1941. The trial judge held for the defendant on the basis that he was not satisfied that the plaintiff had discharged her onus of proof.

On appeal, the appellant argued that the reasoning of the trial judge as to assessment of credibility disclosed an appealable error.

Held: Appeal dismissed:

The trial judge correctly recognised that the appellant bore the onus of proof. His finding that the onus was not satisfied for reasons based on his assessment of credibility and on his examination of the photographic evidence of the accident scene did not involve an appealable error.

Mason P. The appellant (plaintiff) seeks to overturn a verdict for the defendant. A new trial is sought.

On 19 July 1990 the appellant commenced proceedings in the District Court claiming damages for personal injuries suffered in a motor accident involving an unidentified motor vehicle. The accident had occurred about six years earlier, on 20 July 1984.

The appellant's version of the accident, in her evidence at trial, was that she was driving easterly along Bringelly Road, Rossmore. It was approximately 4.30am, and the appellant was en route from her home at Bringelly to Warwick Farm Racecourse where she trained racehorses.

I was driving along the road as normal and a large truck was coming towards me and as he got closer he seemed to be coming on my side of the road and just as he came upon me he forced me to just come off the shoulder of the road. It was either that or a head-on