ACOSTA v CHEGWIN [1998] NSWCA 6

ACOSTA v CHEGWIN

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

COLE, BEAZLEY and STEIN JJA 3 March 1998, 3 March 1998

[1998] NSWCA 6 NEGLIGENCE — MVA — personal injury — no issue of principle

Stein JA This appeal revolves very much around the principles in Abalos v Australian Postal Commission (1990) 171 CLR 167 and Devries v Australian National Railways Commission (1993) 177 CLR 472.

In the latter case the joint judgment of Brennan, Gaudron and McHugh JJ stated (at 479):

More than once in recent years, this Court has pointed out that a finding of fact by a trial judge, based on the credibility of a witness, is not to be set aside because an appellate court thinks that the probabilities of the case are against - even strongly against - that finding of fact. If the trial judge's finding depends to any substantial degree on the credibility of the witness, the finding must stand unless it can be shown that the trial judge "has failed to use or has palpably misused his advantage" or has acted on evidence which was "inconsistent with facts incontrovertibly established by the evidence" or which was "glaringly improbable".

The appellant submits that the trial judge failed to use or palpably misused his advantage or acted on evidence 'inconsistent with the facts incontrovertibly established by the evidence'.

The brief facts are that on 20 May 1994 the plaintiff (the respondent to the appeal) was driving her motor vehicle behind that driven by the first defendant (the appellant) in a generally north easterly direction along the Hume Highway at the Lansdowne Bridge. The appellant was driving a small pantech truck owned by the second defendant.

The bridge had two lanes, one in each direction. At the north-eastern end of the bridge the roadway widened to four lanes, two of which were eastbound. As the road widened the plaintiff pulled to the right to overtake the small truck. At around the same time the defendant also moved to the right lane to attempt to make a right-hand turn. As a result, the plaintiff collided with the defendant with the passenger front corner of her vehicle striking the off-side portion of the truck in the vicinity of the driver's door. (AB 20)